EBR posting 019-1106, Oak…

EBR posting 019-1106, Oak Bay Developments Environmental Compliance (Sewage) - Public Comment, February 11, 2020

As a long-term waterfront resident of Port Severn, I have concerns with the proposal presented by Oak Bay Developments Inc. for MOECP approval. My home is located within 1 km of the Oak Bay development, and as a result, I have an interest in maintaining local water quality and the general health of the local environment. I am familiar with the surrounding waters of Georgian Bay, including the Potato Island Provincially Significant Wetland and the Oak Bay Provincially Significant Wetland that border the Oak Bay development. I am also familiar with the history of the development, which was originally approved by plan of subdivision in 2006 to be completed in phases over several years. Phase 1 consists of residential Blocks 1 & 2 (Links Trail and Masters Crescent), as well as Block 13 (Marina Village Drive) consisting of residential units and a marina. Phase 1 is in progress and is the subject of this application. Additional phases are planned for which similar EBR concerns exist.

Draft subdivision approval for the development was received on Oct 30, 2006 (District Municipality of Muskoka, By-law 2006-69, S2005-7, S2005-10). Since then, Oak Bay's stormwater management plans have undergone significant alteration and now bear little resemblance to the plans originally submitted for approval. The plan currently proposed deviates from the stormwater recommendations of the Environmental Impact Study that were included as conditions of draft plan approval. Key infrastructure contained in the original plans has been eliminated. At the same time, the amount of permeable surface area associated with the development has increased due to growth in the number of residential units proposed. Of greatest concern is the elimination of stormwater detention ponds intended to buffer outflows to the highly sensitive and ecologically significant wetlands that are adjacent to the property.

The Potato Island Wetland is approximately 89 ha in size and was designated "Provincially Significant" in 1996. It provides habitat for rare species such as Blanding's Turtle, Eastern Foxsnake and Least Bittern. It is also documented spawning and nursery habitat for muskellunge, and is important for at least 64 other fish species. The Oak Bay marina basin and access channel sit entirely within the PSW. The marina was formerly a small, accessory trailer park marina. It was expanded and excavated to greater depth in 2013 to accommodate larger boats up to 30' in length. The current marina plan includes 60 wet slips plus dry-stack storage accommodations for another 126 boats. In addition to providing boating facilities, the marina basin serves as the outlet for the subsurface portion of the Oak Bay stormwater system, which is sized to handle front yard and street flows up to the 5 year storm event. Rear yard and excess flows for more intense storm events will be directed overland directly to the adjacent PSW.

2006 Stormwater Plans

The original Functional Servicing Report (C.C. Tatham, April 2006) included a stormwater plan for the entire development, a portion of which addressed stormwater flows from the Marina and Marina Townhome development blocks that are the subject of Oak Bay's compliance application. The plan included a .73ha detention pond with sediment forebay designed to "Enhanced Level 1" standards. The wet pond was sized to detain up to 132,000 litres of water from the upstream residential and marina blocks, and slowly discharge to the surrounding Potato Island Wetland, and from there to the open waters of Georgian Bay. Post-development storm flows for the Woodland/Marina catchment area were predicted to be more than twice the pre-development volumes, hence the need for detention. (Port Severn Village Functional servicing Report, C.C. Tatham, April 2006)

2006 Environmental Impact Study (Gartner Lee)

The original subdivision application was supported by an environmental impact study (Gartner Lee, April 2006) that also described the stormwater facilities required to protect the Potato Island Wetland from the potential negative effects of increased flows from the development. In addition to providing Enhanced Level-1 water quality management, the EIS states that detention ponds throughout the property were to be naturalized with native plantings to serve as restoration breeding areas for amphibians. Run-off from the area immediately adjacent to the marina basin was to be processed through an oil and grit separator (OGS), and then directed to the detention pond (Port Severn Village Development Environmental Impact Study, Gartner Lee Ltd. April 2006, Sections 9.1.2, 9.2.1.4, 9.2.3).

Oak Bay's current stormwater plan does not follow the original EIS design requirements. The plan proposed may meet minimum MOECP requirements for storm flows discharging to an open water body, but it does not provide the level of protection afforded by the design mandated by the EIS for discharge of stormwater to a provincially significant coastal wetland containing sensitive fish habitat.

2018 Stormwater Plan (Current Plan)

Oak Bay's current stormwater plan omits the detention pond and proposes to re-direct the subsurface flow from the marina and residential units directly to the marina basin through two OGS units (STC9000, STC2000) nominally capable of 80% suspended solids removal, and with a combined total of approximately 50,000 liters of storage capacity according to the manufacturer. Surface flows continue to be directed overland to the PSW. While it appears the detention capacity of the system has been reduced, at the same time, the number of residential units served has increased from 93 permitted in 2006, to 111 units under the current plan. (Oak Bay Development Functional Servicing Assessment, C.C. Tatham, January 2018)

It is noted that detention ponds originally planned for two other residential blocks, Waterside (30 units) and Trailside (92 units) also have been removed from the master plan, however, compliance approval for those blocks is not being sought as part of this application. Nevertheless, it appears Oak Bay plans to reduce the number of detention ponds across the entire development.

Provincial Policy Statement

The Provincial Policy statement provides protection from the effects of development for significant natural heritage features. Sections 2.1 and 2.2 apply to fish habitat, provincially significant wetlands and water quality.

Fish Habitat Protection

The marina basin, the marina access channel and surrounding shoreline areas below the normal high water contour have all been identified as Fish Habitat and are subject to PPS Section 2.1.6:

2.1.6 Development and site alteration shall not be permitted in fish habitat except in accordance with provincial and federal requirements.

The direct discharge of stormwater into fish habitat is a threat to the ongoing health of the habitat. The proposed plan will result in increased siltation within the marina basin and in the surrounding PSW zones. The effluent will also contain chemical elements that cannot be filtered out such as fertilizers, pesticides and salt, all of which will negatively impact nearby spawning areas. The marina basin is a largely contained body of water. Deleterious substances introduced with the stormwater will accumulate rather than disperse quickly, as would be the case with an open water outlet.

Protection of Provincially Significant Coastal Wetlands

PPS Section 2.1.8 prohibits development and site alteration on lands adjacent to natural heritage features unless it can be shown through environmental review by a qualified biologist that no negative impact will occur as a result of the development:

2.1.8 Development and site alteration shall not be permitted on adjacent lands to the natural heritage features and areas identified in policies 2.1.4, 2.1.5, and 2.1.6 unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated that there will be no negative impacts on the natural features or on their ecological functions.

The last known environmental impact study was published in 2006 (Gartner Lee Ltd.) and specified the stormwater facilities that would be required to achieve the "no negative impact" threshold. Significant changes to the development plan and the stormwater servicing plan have been made and those changes should have automatically triggered the appropriate environmental reviews. When Oak Bay chose to deviate from the approved stormwater plan, municipal approval authorities should have required a supporting environmental assessment confirming no negative impact to the receiver would result from the changes.

Protection of Water Quality

PPS Section 2.2 addresses protection of the Province's water resources from the cumulative impacts of development:

2.2.1 Planning authorities shall protect, improve or restore the quality and quantity of water by:
b) minimizing potential negative impacts, including cross-jurisdictional and cross-watershed impacts;
e) implementing necessary restrictions on development and site alteration to:
1. protect all municipal drinking water supplies and designated vulnerable areas; and
2. protect, improve or restore vulnerable surface and ground water, sensitive surface water features and sensitive ground water features, and their hydrologic functions;
h) ensuring stormwater management practices minimize stormwater volumes and contaminant loads, and maintain or increase the extent of vegetative and pervious surfaces.

2.2.2 Development and site alteration shall be restricted in or near sensitive surface water features and sensitive ground water features such that these features and their related hydrologic functions will be protected, improved or restored.
Mitigative measures and/or alternative development approaches may be required in order to protect, improve or restore sensitive surface water features, sensitive ground water features, and their hydrologic functions.

MOECP guidelines (MOE SWMP Planning and Design Manual, 1994, Table 2) list the relative effectiveness of various approaches to managing stormwater flows. The end-of-pipe OGS method currently proposed by Oak Bay appears to be the least effective approach, whereas the original stormwater plan included detention ponds and provided a more robust solution that would minimize volumes and contaminate loads as required by the PPS. Oak Bay asserts that quantity control of stormwater is not required as the receiver is Georgian Bay. In actual fact, the receiver is a wetland environment that could be badly degraded by periodic, uncontrolled storm flows.

Conclusions

Given the significant amount of time that has passed since the development was approved in 2006, and given the changes in ownership of the property that have occurred since then, it is not surprising that the Oak Bay vision has undergone changes. Oak Bay has the right to deviate from its original development plan, however, in view of the surrounding natural heritage features, changes that alter the conditions under which approval was granted need to be reviewed from an environmental perspective. Increasing the density of development may be profitable, but it also carries with it potential for increased environmental degradation if not properly assessed and mitigated.

In my opinion, this compliance application should be denied pending evidence from a qualified biologist that stormwater infrastructure changes that have occurred since 2006 have not compromised the effectiveness of the system in terms of its ability to control the quantity and quality of the discharge, and its ability to minimize the negative impact to surrounding natural features. At an absolute minimum, MOECP should consult with MNRF on the proposal before ruling on the application.

The Potato Island Wetland and the fish habitat it supports are increasingly rare natural heritage assets belonging to all the people of Ontario. The interest of the public in maintaining these assets in a healthy state should not be compromised for the benefit of a single landowner, or a local municipality focused on economic growth and development. Oak Bay is maximizing the development opportunity by proposing a minimum level of stormwater protection when the situation calls for nothing less than conservative development buffered by the most effective solution possible.