DEVELOPMENT PERMIT APPLICATION: S/F/ /9097 James Young Part Lot 10, Concession 7, Township of Clearview, Simcoe County

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1 Niagara Escarpment Commission 99 King Street East P.O. Box 308 Thornbury, ON N0H 2P0 Tel. No. (519) Fax No. (519) Commission de l escarpement du Niagara 99, rue King est p.o.b. 308 Thornbury ON N0H 2P0 No de tel. (519) Télécopieur (519) October 7, 2013 STAFF REPORT DEVELOPMENT PERMIT APPLICATION: S/F/ /9097 James Young Part Lot 10, Concession 7, Township of Clearview, Simcoe County PROPOSAL DESIGNATION LOT SIZE ISSUE RECOMMENDATION REASON REPORT SUMMARY To re-establish a former pond site and construct an island feature Escarpment Natural Area 11 ha (27.5 ac) Pond has reverted to a natural state; not a permitted use in Escarpment Natural Area; re-establishment of a pond will potentially result in environmental degradation downstream Refusal New/expansion/enlargement of a pond is not permitted in Escarpment Natural Area; NVCA does not support the reestablishment of the pond; not consistent with the PPS. RECEIVED: October 17, 2012 SOURCE: James Young applicant/owner PROPOSAL: To re-establish a recreational use spring-fed pond, approximately 90 m x 35 m x 4 m (295 ft x 115 ft x 13 ft deep), construct a small island near the west end, and deposit the excavated material on-site in the upper pasture west of the house, on a 11 ha (27.5 ac) existing lot. RELATED FILES: S/T/97-98/124 (Young) A Development Permit was issued to rehabilitate an existing bridge providing private access across the Noisy River to a residence on the subject property. 1 of 7 1

2 ANALYSIS: 1. NIAGARA ESCARPMENT PLAN: The property is designated Escarpment Natural Area and Escarpment Rural Area by the Niagara Escarpment Plan. The pond site is located within the more restrictive Escarpment Natural Area designation. A non-farm pond is not included as a permitted incidental use or accessory facility in the Escarpment Natural Area list of permitted uses. The application submitted describes the proposed work as a clean-out of an existing pond. Existing uses (i.e., non-conforming uses) are permitted under the Escarpment Natural Area designation, subject to satisfying the applicable Development Criteria. The boundaries of the former pond, however, are not evident. The former pond has reverted to a wetland feature. The construction activity required to re-establish a pond and create an island feature at this location is more extensive than a clean-out and in staff s opinion represents an expansion or new construction. The historic pond was a recreational use pond and does not meet the definition of farm pond (necessary to an active and viable farm operation, and no feasible water supply alternative exists). The Existing Uses Development Criteria (Section 2.3.6) states that, The expansion or enlargement of existing ponds is not permitted unless it is a farm pond and is not located in the Escarpment Natural Area. As the pond is located in the Escarpment Natural Area and does not meet the definition of a farm pond, no expansion or enlargement is permitted. Objective 1 of the Escarpment Natural Area is to maintain the most natural Escarpment features, stream valleys, wetlands and related significant natural areas and associated cultural heritage features. The historic man-made pond has reverted to a natural wetland feature which functions as a groundwater discharge area supplying good quality, cold-temperature water to the Noisy and Mad Rivers. The proposed reestablishment of a man-made pond is not in keeping with the objective to maintain the most natural Escarpment features. The Objective of the Water Resources Development Criteria (Sec. 2.6) is to ensure that new development affecting streams, watercourses, lakes, wetlands and groundwater systems will have minimum individual and cumulative effect on water quality and quantity, and on the Escarpment environment. Man-made ponds often have a negative environmental impact as the increased surface area allows warming of the pond water and receiving waters, is vulnerable to the introduction of non-native species of plants and fish, and by removing bulrushes, the function of nutrient uptake is lost. The Water Resources Development Criteria with regard to Ponds (Sec ) states that, Existing ponds shall be encouraged to revert to a natural state (e.g. where there 2 of 7 2

3 are significant environmental impacts or structural problems). The original pond has reverted to a more natural state as a wetland feature. Disturbance of the area in an attempt to re-establish a pond will potentially result in downstream water quality degradation. Section Ponds also addresses existing ponds, indicating Where an existing pond has a substantial ecological or potentially hazardous impact, the property owner shall be encouraged to take corrective measures which may include the installation of a bottom draw-off device or the establishment of a natural vegetative buffer at the edge of the pond. Section Ponds states that, Where possible, ponds should be designed to be off-stream with bottom-draw-off control structures. In this case, the historic pond is located in a source area that discharges to a coldwater stream. This location is therefore considered to be an on-stream pond. Natural vegetation has established itself, forming a stable wetland community with a channelized outflow to the river systems. GIS mapping identifies two unclassified wetland features on the property. The Water Resources Development Criteria regarding Wetlands (Sec ) requires that, Development shall locate outside wetlands. It is staff s opinion that the reestablishment of the pond in close proximity to these features would be contrary to this criteria and could result in short term impact from sediment migration and long term negative affect of raising water temperature in the receiving waters. The reestablishment of a pond may result in the degradation of the wetland discharge function. The General Development Criteria (Sec b) states that permitted uses may be allowed provided that, The cumulative impact of development will not have serious detrimental effects on the Escarpment environment (e.g. water quality, vegetation, soil, wildlife and landscape). To assess the potential cumulative impact of the proposed pond clean-out at this location, the characteristics and location of other ponds existing within this area was considered. There are two on-line ponds existing on a tributary of the Noisy River to the south of the subject property that outlet into the Noisy River on the subject property. The Nature Conservancy of Canada (NCC) submitted a Development Permit Application in 2007 (S/F/ /9015) to remove one of these on-stream ponds from the tributary of the Noisy River within the Creemore Nature Preserve property. The proposal was to redirect flow to the original stream channel and restore the pond area to a wetland community. The intent was to lower water temperature, improve water quality and enhance brook trout habitat. The proposed removal of a dam was intended to eliminate the potential for structural failure and resulting downstream siltation. This proposal was not acted upon and the Development Permit has expired. NCC is in the process of submitting a new application with the work proposed for the summer of of 7 3

4 2. COUNTY OFFICIAL PLAN: The County of Simcoe Official Plan designates the property as Escarpment Natural Area and Escarpment Rural Area. Within the Niagara Escarpment Plan Area, the policies of the NEP apply, as well as the County OP policies and the Township of Clearview Official Plan where they do not conflict with the NEP. The County OP also designates part of the property as Greenlands, a designation that is part of their Natural Heritage Systems planning. Section of the County OP states that, Surface and ground water resources in sufficient quality and quantity shall be maintained, and enhanced where possible, to meet existing and future needs on an environmentally sustainable basis. 3. LOCAL OFFICIAL PLAN: The lands are designated Escarpment Natural Area and Escarpment Rural Area in the Township of Clearview Official Plan. The objectives and permitted uses are as per the NEP. Greenland areas are delineated in this plan to identify natural heritage resource areas of significant ecological importance. PROVINCIAL POLICY STATEMENT: Section Water of the Provincial Policy Statement (PPS) states that: Development and site alteration shall be restricted in or near sensitive surface water features and sensitive groundwater features such that these features and their related hydrologic functions will be protected, improved or restored. This development proposal is not consistent with the Provincial Policy Statement. 4. CONSULTED AGENCIES: a) Township of Clearview Planning Dept - does not object to the proposed construction, providing the development permit, if allowed, be conditional on the applicant obtaining and/or meeting the following: 1. The applicant obtain a permit from the Nottawasaga Valley Conservation Authority, if required. b) Simcoe County Planning Dept - advises that the County defers to the Nottawasaga Valley Conservation Authority. c) Ministry of the Environment - did not provide comments. d) Nottawasaga Valley Conservation Authority (NVCA) - reviewed this application in concert with regulations established under the Conservation Authorities Act; advised that the subject property is under the regulatory jurisdiction of the NVCA due to the erosion and flood hazards associated with the Mad River Subwatershed, as well as 4 of 7 4

5 an unidentified wetland at the location of the pond. The NVCA initially had no objection to the approval of this application subject to the Niagara Escarpment Commission including the following condition in any approval: 1. That a permit be obtained from the Nottawasaga Valley Conservation Authority under the Conservation Authorities Act. PLEASE NOTE: Any submitted site plans must show that the size and depth of the pond has not increased from its original size and depth. The pond must not be expanded any further east than the existing outlet, to maintain the existing stream. All excavated material will have to be placed in a location not regulated by the Conservation Authority; However, upon further field review by NVCA ecology and planning staff, they amended their comments and concluded that the expansion of the pond footprint and the re-establishment of the pond will incur significant thermal impacts to the coldwater Mad River system; and, the NVCA will not support the re-establishment of a small pond in this location. 5. SITE ANALYSIS: The property is located west of Creemore near the confluence of the Noisy and Mad Rivers. The Noisy River flows diagonally through the property dividing it in two. The existing dwelling and historical pond is located on the western portion of the property approximately 50 m (164 ft) upstream of the river. The historic pond that once existed adjacent the house has grown in with bulrushes and has reverted to a wetland feature. At the time of the site visit, there was little open water and it was difficult to determine the original pond dimensions. The applicant provided photographs of the pond from the early 1950s that show an expanse of open water north of the house. The former pond area contains seeps that flow and outlets through a 20 cm (8 inch) diameter pipe forming a small tributary. The small tributary flows to the Noisy River which joins the Mad River, immediately east of the subject property. There is no evidence of a bottom draw outlet or control structure. According to the applicant the intent of the proposed clean-out is to restore the pond, attract wildlife, improve the water quality and provide a holding pond for fire suppression and possibly native fish habitat. Grading around the pond would not change. The lawn area is to remain on the south side and the balance of the area surrounding would remain natural. The excavated material would be deposited in a pasture field to the west, well away from the watercourse and levelled off. Sediment and erosion control would be carried out with a straw bale check dam in the spillway installed according to general example drawings supplied by NVCA. The applicant intends to increase the diversity of the plant life and will be relying on NVCA advice regarding plant species. NVCA staff described the historic pond footprint as a cattail marsh with a smaller area of herbaceous emergent marsh along the south side. The NVCA observed a clearly defined, flowing channel along the cattail/herbaceous marsh edge. West of the large 5 of 7 5

6 willow the wetland grades to a thicket swamp (willow) and opens into a mixed swamp with the groundcover dominated by wetland flora (cattails, sensitive fern and ostrich fern). Seepage areas were scattered throughout this area. The wetland is supported by a groundwater discharge area and likely contributes to coldwater habitat in the Mad River. COMMENT: As the historic boundary of the pond is not evident, the re-establishment of a pond at this location will require substantial construction as opposed to a minor maintenance clean-out. It is staff s opinion that the extent of this proposal represents an expansion/enlargement of the former pond. The NEP does not permit the expansion/enlargement of an existing non-farm pond within the Escarpment Natural Area. The Development Criteria of the NEP does not support the creation of new on-line ponds and encourages existing ponds to revert to a natural state. A pond is considered an on-line (on-stream) pond if it creates a permanent outflow that connects to a watercourse. The historic pond on this property is by definition an on-line pond as there is a permanent flow which outlets to the Noisy and Mad Rivers. On-line ponds, which affect both the surface water hydrology and sediment budget of a stream, have the greatest potential for negative impact on the water resources. This historic pond site has reverted to a natural state that currently supports a diverse wetland community. The groundwater discharge from the wetland contributes to the coldwater habitat in the Mad River. The proposed re-establishment of a pond at this location will potentially result in both short term and long term environmental degradation downstream. The proposed re-establishment of a recreational use on-line pond on the subject property connected to a nearby coldwater river system is not a permitted use under the NEP and is contrary to current environmental practice. RECOMMENDATION: The application should be refused for the following reasons: 1. The proposed re-establishment/expansion/enlargement of an historic pond site is not a permitted use within the Escarpment Natural Area designation of the Niagara Escarpment Plan (Sec. 1.3). 2. The proposed re-establishment/expansion/enlargement of an historic pond site does not satisfy the General Development Criteria (Sec. 2.2), the Existing Uses Development Criteria (Sec. 2.3), and the New Development Affecting Water Resources Development Criteria (Sec. 2.6) of the Niagara Escarpment Plan. 6 of 7 6

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