• Protecting Water and Farmland in Simcoe County

Updated: Innisfil votes 5-3 against dock structure

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In Agencies
Feb 5th, 2018
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Lakefront owner wants to extend dock structure

Lakefront owner wants to extend dock structure, add boathouse

HOW THEY VOTED:

AGAINST
Ward 2 Richard Simpson
Ward 3 Donna Orsetti
Ward 5 Bill Loughead
Ward 6 Carolyn Payne
Ward 7 Rob Nicol
IN FAVOUR
Deputy Mayor Lynn Dollin
Ward 1 Doug Lougheed
Ward 4 Stan Daurio
ABSENT
Mayor Gord Wauchope

For update, follow this link: Innisfil quashes resident’s request for on-water boathouse

Background:

Proposed Innisfil dock structure highlights hands-off approach by DFO, MNRF, LSRCA.But lack of approval doesn’t mean approval – due diligence now falls to  municipality, neighbour says. The matter is before Innisfil Town Council on Wednesday (Feb. 7)

The following letter has been sent by Lindsay Histrop to Innisfil Mayor Gord Wauchope and members of council regarding item # (D.2) Staff Report DSR-005-18 – 3567 Crescent Harbour Road Zoning By-Law Amendment Application – Rivkin (Recommendation That Council approve By-law 006-18 to rezone the subject lands at 3567 Crescent Harbour Road from “Residential 1 – Waterfront (R1-W) Zone” to “Residential 1 – Waterfront (R1-W-50) Zone”, as outlined in Staff Report DSR-005-18 on the February 7, 2018 agenda of Innisfil Town Council

Mr. Mayor and Council members,

Councillor Duario has brought to the attention of Jodi Napolitano, President of the Crescent Harbour Beach Association, who has shared his email with me, an apparent misunderstanding regarding the position taken by Lake Simcoe Region Conservation Authority (“LSRCA”), Ministry of Natural Resources and Forestry “MNRF” and Department of Fisheries and Oceans (“DFO”) regarding the Andrew Rivkin boathouse Zoning Bylaw Amendment Application # D14-2017-007) to build an approximately 257 sq m (2764 sq f) boathouse complex, all over the lake, just south of Friday Harbour at Crescent Harbour Road.

Councillor Daurio indicates his understanding that all these agencies have “approved” the Rivkin boathouse.

In fact I have confirmed with the agencies that there have been no approvals, only confirmation that based on the limits of their authority, no permits are required. As I have also been very confused, and had hoped that these agencies would participate actively, I have reproduced below the confirmation from each of these agencies that their position is that no review and therefore permit is required because the empowering legislation does not require it, or does not allow it. This is NOT APPROVAL. It is a decline to process a review.

I encourage you to contact these individuals to verify the quotations provided below because what this actually means is that no environmental review has been conducted by LSRCA, MNRF or DFO as to the impact of the as built groin and piers because these agencies were not required to do anything. The responsibility has been pushed down to the municipal level. Given strained resources and under staffing at the provincial and federal level, they apparently do not participate unless they must.

I have had two esteemed environmental scientists, Dr. Kilgour and Dr. Bahar complete careful studies regarding the environmental impact of the groin and piers/foundation but their findings were not included in the Town staff report to Council on the rationale that the ZBA is for the superstructure house only.

Please see below the quotes provided attesting that there have in fact been no environmental scrutiny and approvals, simply “sign offs” on the basis that no participation by these agencies is required:

Ministry of Natural Resources and Forestry Per John Almond, MNRF Jan 10 2018:

“In accordance with the recent regulation changes under the Public Lands Act, the construction and authority to occupy Crown land with these waterfront structures, including the proposed boathouse, no longer requires approval from the Ministry. As a result of these changes, whether the boathouse can be built at this location is a matter for the municipality to regulate. The construction of the breakwater … was not in accordance with the work permit issued for the work. Charges were laid and the contractor paid a significant fine.”

Mr. Almond pointed me to the change to Regulation 1 of the Public Lands Act. It now states that a permit from MNRF is not required for Crown land construction unless the total area “attached” to the Crown lands adds up to more than 15 square metres. The Ontario government effectively overruled the 2015 decision in Glaspell v MNR wherein the judge found MNR’s interpretation of what constituted 15 square metres “fallacious”. A hue and cry went out after the court decision, that MNRF would be overwhelmed with permit applications as a result, costing the taxpayer millions of dollars. Given that the sum of the Andrew Rivkin 70 pipe piles that are intended to support the boathouse do not exceed 15 square metres, MNRF has never reviewed the effect of the piers/foundation structure on the environment and has now confirmed that given the revision to the Public Lands Act, it is no longer required to provide a permit for the Rivkin docks nor the boathouse and has therefore closed its file. This is NOT AN APPROVAL.

Lake Simcoe Region Conservation Authority per Rob Baldwin LSRCA, January 29, 2018:

“First off I would like to make perfectly clear that the LSRCA has no approval authority for the boat house. The matter before the Town of Innisfil is a zoning by-law amendment (ZBA). The approval authority is the Town of Innisfil (Town). The Town is responsible for approval / denial and in the case of an approval then the Town would also administer the Building Code Act through their building department. …

The LSRCA does not issue permits under O.Reg.179/06 on Crown land as is the case with the Rivkin dock and now potential boathouse. The bed of Lake Simcoe in this instance is considered Crown land and is subject to the Public Lands Act administered by OMRNF. The 2015 proposal provided by Rivkin for the construction of the dock/s showed all works were occurring on Crown land and therefore subject to the Public Lands Act. The LSRCA provided a clearance not an approval in regards to the dock. The clearance is provided to indicate that a permit under O.Reg.179/06 is not required.”

Mr. Baldwin is crystal clear. LSRCA has NOT APPROVED the Rivkin boathouse. It has conducted no environmental review of the in water project and provided no permit for the piers/foundation, the rock groin, nor the proposed boathouse as it has no jurisdiction. A site clearance means it has no jurisdiction to be involved. It is NOT AN APPROVAL. Department of Fisheries and Oceans per Emily Morton,

DFO per Emily Morton, DFO – October 2016 telephone interview:

“No permit is required for the works because the pipe piles touching the lake bed do not exceed 20 square metres. It is measured based on where the fish cannot swim. DFO does not monitor fresh water fish stocks. We do consultation projects that require Fisheries Act approval and consult with First Nations”.

The policy of not requiring permits where the structure touching the lake bed does not exceed 20 square metres is published on the DFO website. Ms Morton was also crystal clear, in that no permit is required for the Rivkin works under the DFO legislation, such that no review was required of the piers/foundation. This again is NOT AN APPROVAL.

I trust that this is helpful. It is an extremely complex series of legislation and regulations and like Councillor Daurio, I too assumed that by “signing off” these agencies meant they had conducted their studies and approved all the works, until each agency finally clarified it for me. Again, a “site clearance” or a “sign off” is not an approval. It means that the responsibility is delegated legislatively to Council to review the environmental issues within its jurisdiction.

While the environmental issues are just one small aspect of the Rivkin ZBA, I believe it is very important that these misunderstandings be clarified, as this revision to the Public Lands Act Regulation 1 clearly places all responsibility for pipe pile type in water construction over Crown lands strictly in the hands of the Town and its Council.

Given this regulation, theoretically one could build a deck over the lake the size of 3 football fields before the sum of all the supporting pipe piles would add up to 15 square metres requiring a permit from the MNRF.

And 4 football fields before a permit from DFO is required.

This does not mean that the Province has approved unbridled over water development on Crown lands. Rather it has put the administrative and financial burden of safeguarding against the environmental impact of these structures on municipal governments.

Respectfully,
Lindsay Histrop

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