LAKESHORE PRESERVATION OF POLICY 2 (highly sensitive lake trout) LAKES

ISSUE - Shoreline preservation of a Policy 2 lake where a new lot (future boat launch site) has been created contrary to:
WHY IT IS IMPORTANT
LOCATION - Hardwood Bay, Lake Clear, Bonnechere Valley Township, Renfrew County

DESCRIPTION OF SEVERED LOT (referred to as Turners Island mainland access)



The island access lot is approximately 1 acre in size with a 100' shoreline.  It is located in Hardwood Bay which is generally shallow with a weedy bottom and with the exception of one year-around home is uninhabited.



The shoreline remains in its natural condition
consisting of mainly cedar and pine


A fairly steep shoreline is well protected with roots and organic material

PROPOSED SITE PLAN
(Ted will forward)




CHRONOLOGY OF EVENTS
August 2005
Thomas Dampsy's lot severance request to Renfrew County
Application was made to the County of Renfrew for a consent severance of an existing lot of record.  No Environmental Impact Statement was prepared pursuant to Section 9.3(2)(e) of the County Official Plan. What is unknown is whether the application was for a lot addition or for the creation of a new lot.  The original application was to allow the construction of buildings up to 10% of the lot area (0.4 Ha – 1 acre), including a septic system.  The County rejected the request for a septic system.  Instead they would permit a garage (non-dwelling unit) and a privy (outhouse).

Severance for the proposed lake right-of-way is from property owned by Albert Verch.  Mr. Dampsy was able to win a successful OMB appeal in 1998 to construct a seasonal residence on Turner Island.  An outdoors enthusiast, he is a member of the Ontario Private Campground Owners Association.

September ??
County's Consent Application
form sent to Township and MNR

Land consent severance process initiated by County (the County's Severance Consent form to be posted)
September 12
Township Council approves County's request and initiates zoning by-law amendment process
Councillors Bob Peltzer moved, Brian Weckworth seconded that Council had no objections in granting approval to the County's request for comment on the severance consent proposal and that an appropriate Zoning By-Law Amendment Application No. ZBA2005-4  from Rural Marginal (RM) to Rural Marginal-Exception zone (RM-Exception zone) for Part of Lot 30, Con. 9, former Township of Sebastopol, which would permit the parcel of land to be used for mainland parking for access to Turner’s Island (Dampsy), will be forthcoming.

Sept. 15
MNR Pembroke office gives conditional approval
Joanna Gaweda, MNR district planner writes letter to County and Twp. that the MNR gives conditional approval of the severance consent request.  Basic shoreline erosion reduction requirements and property development conditions were outlined.  The main concern was to control phosphate run-off, no consideration was given to other nutrients, vegetation or micro-organisms.

There was no recognition for the need of an Environmental Impact Study in order to conform to County policy.

Sept. 21
Flegal/Haycock write letter of concern to County
 The adjacent property owner to the site of the proposed lake access severance express concerns to the County in response to the County's 60 metre notification policy.  No one else around the lake was aware of the severance proposal.

Sept. ??
County gives conditional approval of severance consent
County planning department give approval of severance consent request and recommends a new lot of record; done under MNR conditions and posted (somewhere) .  Dampsy used the 20 day appeal period to appeal. terms related to providing a site plan showing structures, access location and docking etc.  No one else that might have been interested in the severance request was made aware of the posting, therefore, missing the 20 appeal period.

Sept. 26
Township Council recommends approval
Township Council recommends that consent application No. B140/05, for Part of Lot 30, Con. 9, former Township of Sebastopol, which would implement the OMB hearing decision and permit the parcel of land to be used for mainland parking for access to Turner’s Island (Dampsy) be approved with the following conditions: the submission of a site plan showing where the storage garage, parking area, boat dock and access routes would be located; the subject land be rezoned with conditions that it be registered on title with the property on Turner’s Island and merged as one parcel; AND THAT: the Township, who owns the 66 ft. unopened shoreline road allowance fronting the subject lot , will ensure that the natural vegetation shall be retained in its natural state; AND THAT: the Township CBO will oversee the location of the path and dock over said shoreline road allowance.

October 5
Township posts notification of zoning by-law amendment
Township Zoning by-law amendment for property as posted in the Eganville Leader.  The Notice indicated that the amendment was a “prerequisite” to the approval of the consent application.

Nov. 13
Lake Clear Conservancy expresses concern to Township

Send  letter to Township describing importance of upholding the County Official Plan and the highly sensitive lake designation.
Nov. 14
Township Council, withholds passing by-law ammendment
Some lake property owners attend Council meetings to express concerns.  Council  had difficulty understanding the concerns of the by-law amendment.   Eganville Leader's reporting of Council meeting gave the impression that possible OMB costs were of greater concern than the upholding the County's Official Plan or the "highly sensitive" designation.  Council urged Dampsy and the Conservancy to work on finding a compromise.  Final passing of the zoning by-law amendment would be made at the next Council meeting on Nov. 28

Nov. 21
Lake Clear Conservancy submits letter to Leader

LCC writes letter to Eganville Leader reminding the community about the "real issues".
Nov. 21
Lake Clear Conservancy expresses concern to MNR

An e-mail expressing concern for the MNR's decision  was sent to Joanna Gaweda, MNR Pembroke, district planner
Nov. 24
Lake Clear Conservancy expresses concern to County

Concerns about the consent application were expressed to Larry Cotton, Renfrew County planner.
Nov. 25
Dampsy ignores Township Council's request to seek a compromise

Township Council, Nov. 14, requested that Dampsy consider working with the Township and Conservancy to reach a compromise.  This request was ignored.
Nov. 25
MNR responds to Lake Clear Conservancy
Since the severance is for a non-residential lot there is no threat to the lake.  No Environmental Impact Study is necessary since potential negative environmental impacts can be dealt with in Conditions of Approval. (MNR letter)

Nov. 28
Township Council passes re-zoning by-law

Nov. 29
LCC board reflects


The LCC's feels people who are truly concerned about protecting the ecological integrity of Lake Clear and its watershed have been betrayed by the Township, County, the MOE and MNR to uphold the principles and policies outlined in the County Plan and the MNR "sensitive lake" document. 

A County Plan is supposed to afford some lake protection.

It is worth remembering that the Ministers Modifications to the County's Official Plan in 2002 were necessary because the County had failed to include basic Policies from the Provincial Policy Statement, such as those related to Natural Hazards such as Floodplain Policies in Section 2 of the Official Plan (General Development Policies).

A recent statement by MNR Minister David Ramsay continues to express concern for the future well-being of Ontario's trout lakes:
The LCC feels strongly that the MNR failed to require that a high quality Environmental Impact Study that demonstrated that the physical features and proposed alteration of the lot  site, the siting and location of the buildings and infrastructure and the design of the development shall not result in a negative impact on the lake function, dynamics and ecology.

The LCC is a Land Trust with obvious environmental interests but with no mandate to appeal the decisions creating the new lot.

Dec. 19
Phil Lancaster, submits OMB appeal

Concerned Lake Clear resident submits OMB appeal of BVT re-zoning by-law.
Dec. 21
Eganville Leader article

Leader alerts readers with first page headline BV ratepayers facing a costly OMB hearing
Jan. 2006
New lake group Friends of Lake Clear

Friends... to advocate on behalf of the lake is organized to launch a judicial review of  County planning process and appeal Township by-law amendment.
May 17, 2006
Friends of Lake Clear initiate OMB Appeal

Appeal of BVT re-zoning of Dampsy property to Rural to permit the construction of a parking area for up to four cars, the construction of a storage building and pit privy, and the construction of boat docking and launching facilities.
August. 1, 2006

3 day OMB appeal began
August 29, 2006
OMB delivers Partial Order

OMB Partial Order
Sept.13, 2006
Eganville Leader article

Leader article reports on OMB ruling Final decision pending from OMB on Lake Clear development
Feb 23, 2007
BVT requests MNR Site Plan approval
BVT Planning Consultant Brian Whitehead sends Site Plan application package to MNR without contacting Appellants
Mar. 2, 2007
BVT requests MOE Site Plan approval
BVT Planning Consultant Brian Whitehead sends Site Plan application package to MOE without contacting Appellants
April 16, 2007
Appellants contacts OMB and Ward Councillor about Site Plan
Appellant's e-mail reflects rumour that he is being left out of the consultation process as outlined in the Partial Order, namely, "The Board requests that when the real site plan and accompanying documentation and analysis required to complete outstanding matters is received, that the Appellants, MOE and MNR be notified, and given the opportunity to review same. The Appellants should be given the opportunity to address Council when it is deliberating."
June 13, 2007
Appellants receive Site Plan
BVT disregarded the direction given by Member Jackson as noted on Page 9 of the Decision: "The Board requests that when the real site plan and accompanying documentation and analysis required to complete outstanding matters is received, that the Appellants, MOE and MNR be notified, and given the opportunity to review same."

Rather than receiving the package at the same time as MNR and MOE the Appellants feel they were asked for comment after BVT had successfully negotiated their interests with the two Ministries.
June 20, 2007
MNR responds to Appellant's information request

Pembroke District Manager, Paul Moreau clarifies MNR's role in the severance application to Ted Cooper
June 29, 2007
BVT sends Appellant an engineer report on site plan
Engineer Report indicates stormwater runoff from boat launch and access poses no threat to lake water quality
July 3, 2007
BVT and Appellants meet as instructed in the OMB report
Appellants express concern for nutrient stormwater and Spring runoff into the lake as a result of a proposed 30' wide, steep sloped (25% gradient) vehicle launch ramp.  BVT agrees to seek the opinion of an independent engineering consultant on the Appellant's concerns.
July 10, 2007
MOE responds to Appellant's information request

MOE planner, Alida Mitton in the Kingston Regional office, clarifies how she handled the site plan request from BVT
August 7, 2007
BVT and Appellants conclude the July 3 meeting
Independent engineering consultant (Golder and Associates) recommended acceptance of the proposed site plan providing there is no shoreline parking and that a more explicit implementation plan be made.  Appellants sought assurance that the speed and volume of runoff was accurate


ROLE OF RENFREW COUNTY

The Renfrew County Official Plan was considered an important planning tool when it was officially adopted by the County in 2003.  It was assumed that it would become a planning template for BVT and end years of bickering on what and what should not be happening around the Lake Clear.  The most noteworthy conflict being the 1998 OMB Appeal by Thomas Dampsy to be allowed to build on Turners Island something which the former Township of Sebastopol felt had been covered in their Lake Plan.  It was therefore with great dismay that within two years of the OP adoption lake planning seems to have reverted to its former uncertainties when the County passed in January 2006 approval to severe a new lot for purposes of serving Thomas Dampsy's island property.

"Friends of Lake" were very surprised when the County gave approval for the new lot using "Consent" rather than going through a more public OP Amendment process which would have given the Lake Clear community an opportunity for comment.  Why an OP Amendment process should have been followed is outlined in this link.

MINISTRY OF ENVIRONMENT FAILS TO RECOGNIZE  THE UNIQUENESS OF AT-CAPACITY POLICY 2 LAKE

Lake Clear is an at-capacity lake and hence a Policy 2 lake under MOE Policy B1-5 that states: Water quality which presently does not meet the Provincial Water Quality Objectives shall not be further degraded and all practical measures shall be undertaken to upgrade the water quality to the Objectives, in short, there are to be no new sources of nutrients.  MOE is not dealing with an Ontario Water Resources Act Approval (OWRA), so the "design issue" / Regulatory issue doesn't have anything to do with the OWRA or thresholds that would otherwise trigger MOE's involvement - it has to do with new sources of nutrients getting into an at-capacity lake.
 
MOE (Charles Goulet, Engineer, District Office) testified at the OMB hearing about concerns with non-point sources getting into Lake Clear, indicating that less loading is better than more loading, for an at-capacity lake. There would be less loading if there was less opportunity / gradient for surface runoff to migrate toward the boat launch - that was not anticipated during the MNR Detailed EIS - because all that was anticipated was a "path and dock" - not a launch and parking area at the lake shoreline.
 
MOE's approach seems to be to ignore the at-capacity lake designation and treat the application just like all of the other applications on all of the other lakes in Ontario  - obviously this should not be.

MOE views nutrient loading two ways when it comes to at-capacity lakes:
  1. nutrient loading that results from the physical disturbance of an otherwise natural shoreline; and
  2. development that includes septic systems
The loading from shoreline disturbance is estimated to be around 0.04 kg/year which when compared with 1.65 kg/year from septic systems makes the threat from the former appear rather insignificant. Such a conclusion is not appropriate for an at-capacity lake and appears to differ from the priorities seen by the Ministry of Municipal Affairs and Housing (MMAH) Minister while enforcing the Planning Act.

Minister's Modification 45 of the Renfrew County OP, Approved under the Planning Act, reads as follows:

*(Minister's Modification No. 45)*
*(e) In certain cases, lake trout lakes that are classified as highly sensitive may have unique and/or special circumstances such as the physical features of the surrounding lands that may allow some limited development to occur. In these cases, detailed Environmental Impact Studies (EIS) undertaken in accordance with the provisions of Section 2.2 (24) of this Plan, shall be required to demonstrate that the physical features and proposed alteration of the site, the siting and location of the buildings and infrastructure and the design of the development shall not result in a negative impact on the lake function, dynamics and ecology. The County and the Local municipality shall consult with The Ministry of Natural Resources and the Ministry of Environment prior to any planning approvals and prior to the preparation and any approval of the required EIS.*

The key elements to be considered in a detailed EIS are:
  1. the physical features and proposed alteration of the site; and
  2. the siting and location of the buildings and infrastructure and the design of the development shall not result in a negative impact on the lake function, dynamics and ecology.
It is apparent that the MMAH Minister views things differently in protecting Highly Sensitive Lakes in Renfrew County than the MOE. If the MMAH Minister didn't care about the supposed trivial impact of nutrient loading that results from the physical disturbance of an otherwise natural shoreline, he would have excluded the need for the Detailed EIS to consider the impact on "physical features and proposed alteration of the site". If the MMAH Minister only cared about development that included septic systems, then he would have only included the second part of the impact assessment in Minister's Modification 45 - "the siting and location of the buildings and infrastructure and the design of the development".

MOE's disinterest in the comparitively smaller impacts that result from shoreline disturbance as proposed in the Dampsy Site Plan are irrelevant when considering the Planning Act Approval. Presumably, when considering the importance of tourism in Renfrew County, and the importance that it plays on the local economy, the MMAH Minister has distinguished the importance of protecting lakes like Lake Clear - moreso than even the MOE Ministry would protect under the OWRA.

Furthermore, Minister Modification 45 does not state that "Notwithstanding Policy 9.3 (2)(a)" (the Policy that says no new lots by Consent or Plan of  Subdivision". Minister Modification 45 also only states that MOE and MNR are to be consulted - it does not say that they dictate whether the development is allowed.


THE MINISTRY OF NATURAL RESOURCES LACKS A CLEAR POLICY IN PROTECTING LAKE CLEAR

The Planning Act as amended in the 2005 PPS is considered the over-riding policy intended to protect provincial interests in fish habitat on “at capacity” Lake Trout lakes.  Section 2 of the Planning Act states the importance of protecting the ecological systems, including natural areas, features and functions.

In the Kearney Twp. OMB decision on protecting an at-capacity lake it was stated that "Allowing lot creation on lakes at capacity to further a private interest of the property owner to create a new lot, does not protect the public interest in protecting maintaining and improving water quality of lake trout lakes for the broader public interest."  And, that the province is not supportive of development on lakes that have been determined to be at-capacity, except under three specific circumstances:
1. The tile fields on each new lot are set back at least 300 metres from the shoreline, or such that drainage from the fields would flow at least 300 metres to the lake;
2. the tile fields on each new lot are located such that they would drain into the drainage basin of another water body which is not at capacity;
3. to separate existing, habitable dwellings, each having a separate septic system, provided that the land use would not change.

The MNR Pembroke office appears to have taken a similar approach to assessing the impact of the proposed lot on Lake Clear, namely, since there is no septic system involved there will be in-significant impact.  This approach has let Lake Clear down in two respects in that it has allowed lot creation:
  1. without an Official Plan Amendment, and
  2. without a detailed EIS as required in the County of Renfrew Official Plan
Not conducting a detailed EIS has now resulted in the approval of a driveway and boat launch within the 30m setback that will bring cars and trucks to the waters edge instead of the original path and dock approach that was approved in September 2005.  Transparency in this decision is lacking and the piecemealing of the approval suggests no clear policy direction in protecting the lake.


TOWNSHIP OF BONNECHERE VALLEY (BVT)

BVT's role has been:
to bring both parties together
to defend the appropriateness of the lot
to abide by OMB ruling to allow appellants to comment on the site plan
seek the opinion of a neutral observor
to trivialize the impact of stormwater runoff on the lake
pass a motion to amend the by-law to allow the creation of a new lot


Significance
- win-win, compromise, practical, common sense are expressions used by BVT that expressed expediency rather than environmental interests
- contrary to the OP a lot was created by Consent rather than through an Amendment
- re-engineering of shoreline is contrary to OMB statement that the solution should not be less than what was imposed on Turner Island
- BVT defended the proponent

Ted, do you know anything about the consultants mentioned below.  Sure sounds like the type of consultant that might have been more sympathetic than Golder was yesterday.  What an environmentally insensitive review that was, but as he said MOE and MNR passed on the environmental stuff and "he was only the road builder".  In a perfect world where the ramp is constructed according to plan and properly maintained over the years the ramp might work, but we know neither will happen.  I view the site as being high risk and as such should be left in it's natural condition and not experimented with in an engineering solution.  A biologist would have crapped all over his comment about preserving a meaningful shoreline buffer, how could this happen when the launch ramp is 30' wide with slopping banks on either side that will affect at least 20' of vegetation on either side in the ramp in most need of protection in the 66'  road allowance zone.  In the end I estimate that at least 70 feet of shoreline will likely loose its vegetation cover.
 
We know Zig isn't overly bright and he sure illustrated this in his comparision of runoff from the 400 sq m ramp with that from the remaining part of the lake - sure there is great desparity, but how did things get this way, yes, by a number of similar innocuous 400 sq m additions over the years.  As they say, "death by a thousand cuts".
 
It's truly ridiculous that a somewhat senile Albert should endeavour to create a lot in a most inappropriate setting which then results in so many well educated and informed people having to use their expertise to rationalize his stupid idea.  Sadly, in our society a landowner can get away with just about anything.  Ted, I think you'll have to move to Scandinavia.


SUMMARY - WHO LOOKS AFTER THE LAKE?


The Township and County look after our roads and have responsibility for guiding development of private property through community input, Official Plans and Zoning by-laws, but who manages the lake?  Certainly the MNR and MOE have a responsibility, so does Bonnechere Power who have use of the lake as a reservoir but how does the community have meaningful input when it comes to questions affecting water and lake ecology?

The LCPOA has been watching with interest over the past year an OMB appeal that is examining the adequacy of the approval process of the County, Township and MNR involving proposed development in Hardwood Bay. Because of the timing of the Township By-law – in December when there are the fewest number of people around the lake, there was little time or notice for concerned property owners to get organized.

As a result, the OMB Appeal had to be initiated by a couple of individuals, rather than as a group, which would have been the preferred way to proceed with the Appeal. While many may question the value of proceeding with the Appeal over concerns about the impact of proposed development on one more lot on Lake Clear, the real issue is the apparent failure of the Township, County, MNR and MOE to adhere to the Policies in the Official Plan that are there to protect the lake for present and future generations.

At the hearing the MOE acknowledged that the lake was approaching a critical point in being able to accept additional phosphorus. The OMB Member - and even the Township’s lawyer - “disassociated” themselves from the plan approved by the Township in support of the Zoning Bylaw Amendment because it was nothing more than a hand sketch on a rough piece of paper. Is that the level of effort that should be acceptable to allow development on Lake Clear, a Highly Sensitive Lake?

One of the fundamental outcomes from the Hearing was the requirement of the proponent to prepare a proper Site Plan, and an opportunity provided to the Appellants to have equal opportunity in reviewing and commenting on the Site Plan, as the MOE and MNR. As it turns out, the Appellants have recently learned that they were not included in this review process as was required by the OMB Member. The next step in the process is for comments to be made on the Site Plan at Committee, before Council votes on the Site Plan. Before the Site Plan process is finalized, the matter must return to the OMB Member for final approval, and Appeal periods on matters of law to Divisional Court must be expired.

While there have been only two named Appellants, they represent the interests of many around the lake – and their future generations. Costs of the Appeal have been mounting, and there is a genuine need for financial assistance to see this matter through to its proper conclusion. If you are able to help with a financial contribution, please contact _______

For additional background on planning issues affecting the lake and the OMB appeal refer to http://www.lakeclear.org/lcpoa/planning.html


Golder Assoc. presentation, August 7

Assessment of site plan was based upon
Basic concern and method of assessment
  1. How to minimize the nutrient impact from stormwater runoff (no mention of Spring melt)?
  2. Comments are based upon site plan elevation data and visual inspection from a site visit
  3. MNR and MOE have approved the site plan (Gord Miller might question this)

Parking area
Conclusion:
General flatness of area reduces any threat from runoff velocity or volume

Launch Ramp
400 sq m
12 to 25% (1 to 4) grade
Conclusion:
3 swales and limestone surface controls runoff velocity and volume
3 soak-aways control nutrients

Recommendations
  1. remove 2 shoreline parking spaces to upper parking area
  2. write a detailed ramp construction plan and provide proper supervision (is BVT's Kennedy up to this?)
BVT response
  1. The appellants have been allowed to comment as required in the OMB interum report
  2. It's only 400 sq m with minimal impact compared to the runoff from the entire lake.
  3. We've spent enough time and money on this, what more can we do?
  4. Pass the by-law amendment on condition that Dampsy agrees with no shoreline parking and implements the construction plan (no mention on insuring the ramp specs. will be maintained