Wetland Will Be Enhanced: Pointes OMB Hearing, Week Two

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Bill Wierzbicki, planner for the developer, completed his testimony at the Pointes Ontario Municipal Board hearing yesterday. Much of his testimony and cross-examination was rooted in the interpretation of Provincial Policy Statements, the City of SSM’s Official Plan and the Planning Act. These three regulating statements, and how they are interpreted by all involved parties, are central to the final outcome of the hearing.

Specific issues of testimony included water quality related to the canal, wetland loss, flood lines and sceptic and potable water. Wierzbicki’s testimony supported that of Sault Ste. Marie City Planner, Don McConnell’s testimony last week.

“I agree with everything that Don McConnell said,” remarked Wierzbicki during his presentation yesterday.

Wierzbicki’s provided his testimony on November 21st and November 25, 2014. Below is a chronological summary of the key issues touched on during his November 25th presentation.

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The 2014 Provincial Policy Statement (PPS) is in effect and the OMB Chairman will issue his final decision under this guidance. With the new PPS in effect Wierzbicki was required to address his original reports written during the 2005 PPS regime.

“Since the 2014 PPS came into effect and with respect to planning act my advice to my client would be consistent with the 2014 PPS application. I went through the 2013 report and revised it and brought it up to PPS 2014 to meet any changes that may have occurred. Reports took in to consideration amendments that may have occurred with the city’s official plan- rural area policies specifically.”

Relating to policies dealing with development in the rural areas of the City, Wierzbicki explained that there is a degree of perspective that needs to be applied in conjunction with adhering to policy guidelines.

When you look at 91 lots you say ‘my gosh that’s a significant development’. But when you look at the take up rate after doing market analysis- the take up rate of the subdivision would be 10 -12 lots per year within the rural area. I agree with his Don McConnell’s evidence that if you look at it in that regard it is limited development.”

The impact of the development on the canal has been the hugely contentious issue at the heart of the Pointe Estates matter. When Orlando Rosa, Counsel for the developer, asked Wierzbicki to address the wetland loss with consideration to the 2014 PPS statements Wierzbicki quoted the statement.

“It says ‘unless it demonstrates no negative impacts on the natural features or the ecological functions’. As a planner my opinion is that if this development is approved in manner presented with recommendations and studies that support it that this proposal would meet that criteria. I think there is a big focus on ‘no negative impact’. When you look at that- what does that mean?”

Wierzbicki went on to quote a section written in the Natural Heritage Manual published by the MNR that deals with coming to a determination of what ‘negative impact’ means.

“It says Provincial Policy definition for negative impacts does not state that all impacts are negative. It does not preclude the use of mitigation to prevent, modify or alleviate the impacts to significant heritage feature areas. There is no doubt that this development will impact the wetland and have negative impact on  the wetland as it exists now. At the end of the construction those negative impacts will be addressed. From the reports that I read water exiting the St. Marys’ River will be enhanced. That is partly due to the way the canal is going to be created and partly due to the riparian edge that will be at the borders of the canal.”

When asked about his opinion in regard to negative impact and ecological function Wierzbicki expressed that he was not only satisfied with mitigation but believed that some areas of the wetland would actually be enhance by the development.

“The deer habitat will not be impacted. The existing fishery is very minimal in quality. As a result of the development, the fish habitat will be enlarged and improved- good for all types of sport fishing in the area. Water quality would be improved. And to me those are the primary functions.”

Wierzbicki goes on to address that policy encourages balance in development. “And that’s what this plan does. Some of the wetland is going to be destroyed but some of it’s going to be improved.”

Referring back to the most historical bone of contention, and one that may be moot with the enforcement of the 2014 PPS, Wierzbicki commented on the issue of the wetland being rated as not ‘provincially significant’.

I believe that everybody agrees that this particular wetland has been ranked in terms of provincial significance at least three different times or at least twice and then once with a  review of methodology. It ranks below provincial significance and that threshold is the lowest threshold for a wetland to rank as provincially significant.  In terms of the Official Plans in dealing with wetlands- development in or adjacent to a wetland may be approved by Council if accompanied by an environmental impact study.”

During the cross examination of his testimony Nuala Kenny, Counsel for the City, asked Wierzbicki to qualify his earlier statements that indicated he believed that the Pointe Estates development would benefit the entire community. Wierzbicki focused his reasoning on the improved quality of life for residents of the subdivision and area having the convenience of a boat launch and storage in the area. He also emphasized that the improved fish habitat was integral to the economic well-being of the City.

Kenny also asked of Wierzbicki if he agreed with a statement made by the city planner last week to the effect that the 40% loss of wetland ‘is a huge chunk’ to which Wierzbicki replied, “I agree if we’re looking at the area- and 40% loss versus 60% retained. In the part that’s retained there’s the benefit that it will be enhanced- some portions of its functions will be increased and some will be improved. I think there is a balance there. If we just look at the loss of the wetland- you can’t – you have to look at the whole thing.”

Noting in the City’s Official Plan Kenny read in part that “the City shall promote stewardship of the community’s natural resources and features to ensure an environment that is ecologically sound, that recognizes the importance of a healthy diverse ecosystem and is responsive to the health, safety and well-being of future residents.”

Kenny posed to Wierzbicki, “Is it your position that a 40% wetland loss is consistent with the stewardship of the community’s natural resources and ensuring ecological soundness?”

Wierzbicki offered, “Yes. Again back to – if we look at 40%- if we look at the variance in circumstance it might well be minor within the intent. My opinion from a land use planning report is that you can’t just look at the percentage figure. You have to look at what’s the end result.”

When asked by Kenny what percentage of wetland loss, short of 100%, would not be acceptable Wierzbicki replied,“Well can I answer it this way? If this wetland was removed 100% and replaced with another wetland- a constructed wetland on another piece of property of the same size- would it be consistent with the official plan? Because the official plan allows that to happen. What I’m saying is that you can’t just look at it as a percentage. So you can go to a 100% loss and I can still say that the intent and purpose of the official plan was met because something else was done.”

When pressed further by Kenny on the proposed development and how it aligns with regulating statements Wierzbicki addressed mitigation measures. “When they’re talking about the loss of wetland function they’re talking about ‘what’s the function of that wetland? If it’s affected can it be mitigated? Can it be corrected? Can something occur? And in this instance it can.”

Wierzbicki further clarified, “The proponent is creating another wetland area and we can look at the canal as part of the wetland and part of the wetland function and the riparian edge –that’s being done to offset the loss of the wetland.”

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Counsel for the Pointes Protection Association, Helen Scott, asked Wierzbicki to provide the calculations that led to the 40% figure indicating wetland loss but he was unable to provide that stating that the information came from other reports submitted by the developer. There is debate on both sides as too how much wetland will be lost.

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