In the matter of
The Lakes and Rivers Improvement Act;
And in the matter of
The proposed refusal of the application of R.V. Harrington of 976 Lakeshore Road, Burlington, Ontario for approval of the construction of a dam on a tributary of the Meux Creek known as unnamed Creek on the West Half of Lot 8, Concession VI, of the Township of Normanby, in the County of Grey.
Report to the Minister of Natural Resources
Pursuant to an appointment dated the 27th day of October, 1982 by the Honourable Alan W. Pope, Minister of Natural Resources, under subsection 11 (1) of the Lakes and Rivers Improvement Act, the undersigned has held an inquiry to determine whether the proposed refusal of the approval of the location of a dam on an unnamed creek on the West Half of Lot 8 in Concession VI, of the Township of Normanby, in the County of Grey, which is a tributary of the Meux Creek, is fair, sound and reasonably necessary for the achievement of the purposes of the Act.
The hearing was held in the City Hall in Owen Sound on March 5, 1983. The applicant, R.V. Harrington, appeared in person. C.L. Cottle appeared on behalf of the Ministry of Natural Resources. Shirley Neal appeared as agent for Gordon Belfry, the owner of Lot 7 in Concession VI of the Township of Normanby through which the water-course flows. Arthur Pries, the owner of Lot 7 in Concession V of the Township of Normanby, appeared. Arthur Pries and Gordon Belfry were made parties to the hearing.
Although the carriage of the hearing was offered to the applicant, who elected to appear without counsel, it was agreed that the Ministry would have carriage of the hearing. In this regard it may be noted that the approach, if not the attitude, of the applicant was that the hearing provided him with an opportunity to be critical of the action taken by ministry officials rather than accept it as an opportunity to provide to you, through the tribunal, a clear definition of his proposal and the benefits to be derived therefrom.
In summarizing the evidence, the first witness for the Ministry was Jacob G. A. Imhof, M.Sc., the Southern Ontario Fisheries Rehabilitation Biologist. The witness graduated in Honours Biology from the University of Waterloo in 1975 and obtained a M.Sc. Degree in Aquatic Ecology from that university in 1978. He has experienced a wide range of responsibilities in the public and private sector related to his field and was clearly established as an expert in biology.
The witness outlined the policy of the provincial Government in respect of cold water streams indicating that stress was made on the maintenance and rehabilitation of fisheries in Ontario and particularly the protection and rehabilitation of the cold water streams. He pointed out that the habitat of cold water streams has four components, namely, water quality, space, food and shelter. He stated that the "bottom line", by which I understand him to mean the basic consideration, is water quality which involves matters of temperature, sediment, pollution and food. There are maximum temperatures for the continued existence of most species with rainbow and brown trout having a maximum temperature of seventy degrees Fahrenheit and brook trout having a lower maximum temperature of sixty-eight degrees Fahrenheit or twenty degrees centigrade. To maintain such low maximum temperatures it is necessary to have a constant flow of spring-fed water. Such flows should be supported with shading to prevent an undue amount of sunshine impinging upon the stream and raising the temperature above maximum levels. Similarly, temperature control is better in narrow streams as wider streams permit too much sunshine to strike the water and raise the temperature. A more ideal habitat is one with narrower and deeper streams.
With reference to sediment it was submitted that all streams have, in a state of nature, a certain amount of sediment. If nature does not wash this sediment from the stream beds the bottoms are clogged creating layers of sediment over the natural bottom of the streams. The riffle areas and gravel beds can be covered, smothering the aquatic bugs and animals that provide food for fish. One of the best methods of controlling sediment is the maintenance of the banks of the streams with adequate vegetation which will keep the sediment locked up and prevent it entering the stream.
With reference to pollution the witness mentioned two categories. Firstly, pollution can arise from over enrichment of the natural supply of phosphorous that is found in streams from leaf mould and other natural processes that create nutrients. Once this supply becomes excessive problems develop. Such excesses are derived from fertilizer, manure, waste water from fish farms or hatcheries, etc. The result of an overabundance of nutrients is the growth of algae which uses up the oxygen necessary for fish life and for the food on which fish depend.
A second category of pollution is derived from industrial activities such as metallic pollution from lead, zinc, etc. or chemical pollution from mirex, dioxin, D.D.T., etc. The results of such pollution vary from immediate kills to long range insidious kills such as cancerous growths.
With reference to space the witness stated that in the study of stream morphology, the physical characteristics of streams are broken into four parts, namely, riffles, which are sloping areas with shallow, fast water, pools which are deep and slow flowing areas, runs which are deep and fast and flats which are broad, shallow slopings. He pointed out that in the development of streams there is a tendency for the water to bounce from bank to bank and create a meandering effect. This creates the pools or food supply. Trout require all of these four aspects in their life cycle and it is essential that a trout stream provide the four categories of habitat. Emphasis was placed on the riffles which provide spawning areas, food supplies and in effect are the nursery areas for younger fish and the bread basket for the fish population.
With reference to food the witness pointed out that food supplies are created in the riffle areas. These areas provide a habitat for the insects and other aquatic animals that provide a food source. This food is trapped in the rocks and gravel in the riffle areas and the waters in the area are oxygenated through the riffling effect.
With reference to shelter the witness pointed out the need of hiding places for trout to evade its predators. Trout prefer areas that are covered on three sides such as under cut banks, boulders, logs and debris. Smaller fish can rely on grass, twigs and branches.
With reference to reproduction of species the witness indicated that in his studies he had established that there are specific requirements of habitat for good reproduction. Rainbow trout are not as specific as brooks. Larger gravel may provide an adequate habitat for spawning grounds for rainbow trout. Brook trout require areas containing smaller gravel of pea size. However, more significant to good reproduction is a constant flow of spring water. If the nests, i.e. redds, become silted the eggs are smothered and fail to hatch. While this may not be too significant on one occassion, constant siltation over a period of time will deplete the population through failure to reproduce.
With reference to species found in Ontario streams, Imhof referred to Atlantic salmon and brook trout which are indigenous species and rainbow and pacific salmon which are introduced species. While the introduced species have some tolerance to changes in habitat, the brook trout have a very narrow tolerance to changes in habitat and are frequently referred to as the "canary in the mine" indicating that the species is most vulnerable to changes. The conditions necessary to maintain a population of brook trout include cold water not above sixty-eight degrees Fahrenheit for more than a few days at a time, low silt loads, optimum habitat and food supplies.
The witness referred to the brook trout as being a "the stream resident trout", as distinguished from rainbow trout which may live in a stream for a period of two years but ultimately in the life cycle move toward the lakes and return later for spawning. In contrast brook and brown trout spawn in the streams and live their entire life in the stream. Some studies have shown that brook trout do not migrate beyond one-quarter of a mile in their lifetime.
With reference to the reaction of brook trout to mechanical devices inserted in streams, the witness stated that brook trout are not strong swimmers, particularly as compared to rainbow trout, and while they may feed in fast waters they spend the greater portion of their time in slow flowing areas. The witness indicated that in his experience brook trout will only migrate through devices in which they can swim and unlike rainbow trout are unable to jump over impediments.
With reference to the resource value of the brook trout, the witness indicated that it is an original species found in Ontario and is part of the heritage of our province. From an economic point of view brook trout is the more sought after species. Most anglers fish for brook trout at sometime in their activities and anglers come from across Ontario, the United States and parts of Europe to participate in brook trout angling.
With reference to loss of habitat of brook trout, the witness stated that as a result of watershed mapping conducted two years ago, it has been established that only thirty per cent remains of the streams in Ontario that once sustained brook trout populations and in southwestern Ontario only ten per cent of such streams are presently providing habitat for brook trout. This loss is due to agricultural and milling operations. The loss of the Atlantic salmon was attributed to the construction of dams. Where dams have been abandoned there is evidence that species are being re-established.
With reference to the effect of construction of dams, diversions of streams or instream ponds on brook trout populations, the witness stated that there are several effects. Firstly, there is an alteration in the natural flow of the stream. If the stream is straightened there is an increase in the gradient of the bottom of the stream. The natural meandering of a stream provides greater distances than exist where the stream is straightened. With an increased gradient more materials are washed into the stream causing the banks to slump and changing the morphology of the stream by the addition of silt and other garbage. It also changes the natural sequence of riffles and pools reducing the number of hiding and feeding areas. These changes result in overcrowding of the remaining areas leading to health and other detriments on the population attributable to a loss of shelter, space, food and water quality.
These changes frequently affect the temperature of the water and the silted conditions of the bottom of the stream. The increase in temperature results from the loss of bank vegetation and the increased temperature and the silt affect not only the area in question but downstream areas and it takes several years for the newly constructed bed to stabilize. In the interval there is not only the loss in connection with the diversion but also the downstream effect from the increased temperature and silt.
The effect of instream ponds is that temperature is increased by enlarging the size of the surface exposed to the sun. Temperatures are increased from the fact that the water is held and does not move on to shaded areas. The Fish become less tolerant as a result of the exposure to higher temperature. In addition the beds of the ponds constitute silt catchers which may have a temporary beneficial effect in preventing downstream siltation but they have to be cleaned out at intervals. The pond creates a nutrient sink which fosters algae production with its detrimental result on the downstream waters. The creation of ponds remove, spawning areas and stops migration of populations to spawning areas. The result is that the portions of the stream that are made inaccessible will fail to maintain a population of brook trout which it otherwise would be capable of sustaining.
With reference to temperature, the witness indicated that where ponds are sufficiently deep, perhaps in excess of ten feet, the water tends to stratify and the upper levels of water will increase in temperature as much as five to six degrees centigrade. If the warm water is spilled from the top of the headpond the downstream water will be increased in temperature. Where bottom draws are provided the temperature problem may be evaded but there are still problems related to silt and food supplies.
The witness indicated that the headwater springs and streams are the most important part of a watershed. The tributaries are similar to capillaries in an animal body and provide the life forming necessities related to water quality. It is essential to maintain the clear, cool waters to support the downstream portions of the watershed. Where one tributary is lost or harmful effects are created in the tributary the downstream quality is affected and there is a cumulative effect where more than one headwater areas are affected.
When questioned in respect of the length of time it would take a cold water stream to recover from the effects of a diversion, the witness stated, assuming there was no interference with the temperature of the water, approximately five to ten years would be required to rehabilitate the diversion, assuming the diversion was accompanied by suitable rehabilitation steps such as stabilization of the banks and provision of cover. If the work were not done properly there would be a minimum of fifteen years before nature could re-establish the diverted portion of the stream.
In the witness's opinion the preservation of cold water streams fell within the purview of the Lakes and Rivers Improvement Act.
On cross-examination Neal inquired as to the ratio between loss of streams and renewal of streams and the witness indicated that the ideal situation would be for there to be an equal return for those destroyed but his estimate was that at present there is only one area being rehabilitated for every ten areas that are destroyed.
On cross-examination by the applicant the witness discussed the distinction between ponds and pools, pointing out that pools are relative in size to the stream and agreed in the term of the questioner that it is not desirable to have a "ubiquitous trough". He was questioned as to whether streams can be too cold for the proper development of fish and the witness indicated that temperatures of one degree centigrade sustain fish populations in areas that he has fished and that in the United States and England there are streams with temperatures in the range of fifty degrees Fahrenheit that produce trout of substantial weight.
The applicant pointed out that he had not seen any gravel beds of the size mentioned by the witness. The witness indicated that brook trout have some flexibility with regard to type of bottom and he has observed spawning on areas with larger gravel and even sand. He stated that the most critical issue is the temperature and the spring water source. Thirdly, cover is essential and trout will adapt to areas with boulders or other rubble.
The witness was further questioned with regard to the ability of brook trout to swim up through culverts with elevations and the witness's position was that if the slope were too great the trout could not be expected to traverse the entire sloping area.
When asked by the applicant whether the period of rehabilitation could be reduced by a conscientious person the witness submitted that perhaps with very careful practices the period of time could be reduced but at the minimum it would take three to four years for a population to readjust.
With reference to cover the applicant inquired as to the effect of twenty-four agricultural tiles measuring two feet in diameter. Apparently, at one time these tiles formed part of an agricultural drain but in a cleaning operation the township had decided that it would no longer use the tiles and has left them on the property of the applicant. It was submitted to the witness that these tiles would, for a distance of one hundred feet, provide both shade and protection. The witness indicated that total shading was as equally harmful as lack of shading. A certain amount of sunshine is necessary to assist the growth of natural bodies in the water which are essential to the fish population. While the tiles might provide shelter the food content of the water in the tiles was questioned and the ability of fish to migrate through the tiles would depend on the speed of the flow of water through the tiles.
The witness indicated that brook trout can swim through a flow of one foot per second for very short distances but if the distance becomes longer the trout are not able to swim upstream against such a flow. The witness related an experience in connection with rainbow trout of establishing that where there are pitches of one per cent over distances in excess of sixty-seven feet, the rainbow trout have difficulty in swimming through the stretch of water. It is only where there are current breaks, i.e. spaces of dead water in which the current is stopped, that fish can navigate through a long stretch of rising water. In the witness's opinion it might well be that the tiles would not assist in the future propagation of the brook trout population.
With reference to maximum temperature the witness reiterated that, while brook trout can sustain life for a few days of temperatures approximating twenty degrees centigrade, they are in such circumstances exposed to parasites and diseases and are likely to not survive. In temperatures higher than twenty degrees centigrade the species dies.
The applicant submitted to the witness that the source of his water was drainage from an agricultural area. He admitted that there were springs along the watercourse but that the main headwaters of the stream through his property was a roadside ditch collecting the outflow from agricultural drains. With reference to the silt problem the witness suggested that the best approach was to remove the source of the silt by the creation of buffer strips, fencing against cattle and stimulation of vegetation growth which would retain the silt.
On re-examination the witness confirmed that where there is evidence of spawning of brook trout it is a safe assumption that the absolute requirements for spawning are present, namely, water of adequate temperature and quality. He further outlined the factors causing reduction in temperature as the loss of spring water, the reduction of canopy or cover, the widening and making shallower of streams and the artificial heating of water through such devices as headponds.
Kenneth Woods, the Water Resources Technician and the officer of the Ministry of Natural Resources whose duty it is to administer the Lakes and Rivers Improvement Act in the Owen Sound District, produced as Exhibit 3 the application, as Exhibit 4 an aerial photograph of the area, as Exhibit 5 a report he made following an inspection in July, 1982, as Exhibit 7 a report of the District Biologist and as Exhibits 6 and 8 correspondence with the applicant respecting the intention to refuse approval of the location of the proposed dam.
The witness indicated, with reference to Exhibit 4, that the proposal was to reconstruct a dam that existed on the subject lands many years ago, creating a headpond and diverting the existing stream downstream from the dam to the westerly aide of the property of the applicant. In addition the applicant proposes to construct three dug ponds to the north of the dam. The witness indicated that it was not considered that these dug ponds, by themselves, fell within the jurisdiction of the Act.
Following the witness's inspection which confirmed, as he had confirmed in the previous December, that the part of the stream in question contained brook trout and that it was a spawning area for brook trout he recommended against any diversion, instream dam or bypass pond. Following the investigation of the District Biologist, it was recommended that the approval not be forthcoming.
Steven James Kerr, the District Biologist, who graduated in 1977 with a Bachelor of Science Degree in Biology and who has been employed in a seasonal capacity with the Ministry from 1971 and in a permanent capacity since 1978, gave evidence. Following receipt of the application, this witness caused two members of the stream survey crew to survey the creek in question. This survey was performed on July 28, 1982 and the data obtained by the crew is attached to Exhibit 7. Further the written report of the crew was filed as Exhibit 11. A portion of the data, entitled Aquatic Habitat Inventory, dealt with the physical characteristics of the stream. This showed that fifty per cent of the banks of the stream were stable and fifty per cent were unstable.
With reference to temperatures, it showed an air temperature of nineteen degrees centigrade and a water temperature of twelve degrees centigrade. With reference to stream cover it showed that ninety per cent had dense cover and ten per cent was partly open with no part of the stream being entirely open. The report classifies the substrata of the stream as having fifteen per cent rubble, twenty per cent gravel, ten per cent sand, fifteen per cent silt, twenty-five per cent clay, ten per cent muck and five per cent marl.
In addition with, reference to the degree of silt it was reported as being moderate, namely, in the range of twenty-five to fifty per cent covered. Algae was reported as being sparce. The report showed eight springs feeding the stream through seepage and five flowing streams with an average temperature of twelve degrees centigrade. It also showed two tile outfalls. There was no indication of any natural or artificial barriers. The aquatic vegetation was classed as emergent and submergent (watercress).
With reference to instream cover the report shows that there was thirty per cent of the stream with undercut banks, ten per cent with logs and trees and twenty per cent with organic debris. In classifying the habitat the report showed that seventy per cent of the habitat qualified as nursery habitat and thirty per cent qualified as spawning habitat. The witness pointed out that this last item was most exceptional and that it is rare that one hundred per cent of a stream tested is useful as habitat. Eighty per cent is an exceptional figure. The report showed that eighty per cent of the stream was bounded by firm pasture, twenty per cent by swamp with equal percentage of hardwood and conifers. The data also contains the count of fish taken through sampling with the electric shock method. A representative fish sample was taken and forwarded to Toronto for identification and the report shows that three species have been taken namely, brook trout, central mud minnow and brook stickleback.
The witness gave evidence that in his opinion the stream provided excellent brook trout rearing and spawning habitat. The temperatures of twelve degrees centigrade indicated an excellent spring supply of water. There was a large percentage of undercut banks and instream protection, particularly, for junior populations. There was shading from bank vegetation, protection and food supply and in the witness's opinion the stream provided high quality nursery habit for brook trout.
The witness attended the site himself confirming the report of his crew. He mentioned that the stream ranged from one and one-half to three feet in width in its upper areas and from four to five feet at the junction of the Meux Creek which is downstream from the applicant's land and on the land of Belfry. He confirmed that the stream contained stable undercut banks and had a number of instream structures and an abundance of overhead vegetation. He noted a number of springs seeping and flowing into the watercourse which provided cold spring water. In his opinion the area was a spring recharge area important not only for itself but also as a source of cold water for Meux Creek. Any watershed system is only as good as the water flowing into it and it is important not only for the stream itself but for Meux Creek that the cold spring waters not be interfered with. The existence of watercress indicated a low temperature of the water and a good source of nutrients.
He noted faint evidence of an old dam and a stream leading in a northerly direction from that dam. When asked the effect of a channel that might be created in lieu of the existing channel the witness indicated that such a channel would probably have a width of five to six feet, be shallower than the present creek and not have any of the desirable characteristics such as undercut banks and overhead protection. In his opinion a man-made channel would not be a suitable replacement for the existing creek.
From the point of view of the resource value of the creek the witness indicated that in the Owen Sound District they are faced with a disappearing resource and a decreasing number of spawning and nursery areas. A number of such areas have been lost over the years and in the witness's opinion it was very important to retain the existing stream in its natural condition.
With reference to the effect of the proposal the witness did not see any significant problem in connection with the digging of ponds. However, the reconstruction of the old dam and the loss of habitat from the diversion would provide a restraint on the movement of fish upstream. Even with a bottom draw system there would be negative effects on the fishery. The Meux Creek contains a resident brook trout population. The creek warms up in sunny weather in the summer. The fish seek out areas at the mouths of feeder streams and the populations move into the feeder streams where the water is cooler. The creek in question would also provide a nursery for the Meux Creek population which could go up from Meux Creek into the spawning areas in the existing creek. The young would remain in these locations for a period of two years and then would probably migrate down again into Meux Creek.
The witness indicated that the importance of these tributaries is that there is a finite supply of cold water sources. Their importance lies in their effect on the quality of larger downstream areas and the water that they feed into such areas. There is a cumulative effect on the watershed downstream. Cold water sources and headwater areas have to be protected to maintain the fisheries in the opinion of the witness.
The witness estimated that the stream had been in its present location for at least twenty to thirty years. Exhibit 12 is a number of photographs taken by the witness during his inspection of the property confirming the quality of the habitat of the stream.
On cross-examination by Pries, the witness indicated that they had no historic records of the populations of the stream in question. It was suggested that if the applicant had not applied the Ministry would not have known of the existence of the stream. The witness pointed out that the local conservation officer had indicated his familiarity with the existence of the stream and its containing a population of brook trout when the matter first came to his attention. Pries raised the question of whether the amendment of the proposal to permit the outlet from the dam to be in the same location as the present stream would assist the problem. The witness's answer was that while it would not destroy the habitat which is proposed to be lost, there are still problems of degradation of thermal quality, blocking of migration and siltation.
Neal raised questions regarding the alternative of having cleaned out the tiles rather than build a ditch. The witness indicated that he could not offer any evidence as to how such an alternative could have been carried out but did offer the view that the action that had been taken has caused a serious siltation problem downstream from his observations made while attending the site.
In cross-examination the applicant raised questions regarding the instructions of the crew which did not appear to be of assistance. He put the question to the witness that if the purpose of the Act was to ensure the use, management and perpetuation of the fish and wildlife resources would it not be better to permit his proposal rather than have the lands returned to agricultural use. The witness pointed out that the Game and Fish Act provides for management agreements between a landowner and the Crown under which management of the stream can be carried out and be financed publicly with the result that steps can be taken to preserve the stream in a natural condition. The witness also indicated that he had seen some evidence of the old channel along the west boundary of the applicant's lands but that it was difficult to find.
On re-examination the witness said that in reviewing applications under the Lakes and Rivers Improvement Act he looks at the potential impacts on the fish and wildlife resource as a direct or indirect result. He examines the work proposed and its location. He then takes into account the concerns, often in consultation with other officials, including the Fish and Wildlife Supervisor.
Arthur Pries' evidence was that as a result of the drainage work the tiles on his property which are upstream of the subject lands are now running freely. He indicated that in the past he had obtained fish by fishing through cracks in the tiles. There was some discussion between Pries and Neal as to the effect of agricultural drains on their respective properties but this appears not to be relevant to the present inquiry other than it indicates that there is a siltation problem resulting from the outflow from the agricultural drains.
The applicant asked Pries how he maintained the flow of water during his ownership of the subject lands. He indicated that it had been necessary to use a rake to keep the water flowing. At one time, approximately twenty years ago, the ditch was blasted out but it subsequently filled in. He indicated that there had been problems with silt over the years. Further during his ownership the creek did not flow on the Belfry property but followed the line fence flowing directly into Meux Creek. It subsequently was diverted through filling and made its way across the Belfry lands.
Counsel for the Ministry brought out that the ownership and leasehold interest by the witness go back as far as 1936 and during that period there was no dam on the property and the creek was in its present location.
The evidence on behalf of Gordon Belfry was given by Shirley Neal who indicated that Belfry purchased Lot 7 in Concession VI containing one hundred acres in 1977. He proposes to retire in 1985 but in the meantime the witness resides on the property. The lot is suitable for part time farming and contains a wooded area with a creek flowing through the wooded area. The witness expressed concern that if the water warmed up it would affect the trout and detrimentally affect the recreational value of the property. This witness again made reference to the issue of the action taken by the township.
On cross-examination by the applicant it was brought out that there is a flow of spring water from the Belfry property onto the applicant's property but it does not flow through any recognizable channel.
On cross-examination by counsel for the Ministry, the witness claimed that the creek in question originated on Belfry's land, flowed onto the applicant's land and came back to Belfry's land. She also gave evidence that Belfry derives pleasure from the creek and the trout populations on his property and he has a concern for the effects of the proposed dam in respect of the continued use of his property. The witness stated that one of the selling points of the Belfry property is the existence of live trout in the stream on the property.
In his evidence in chief the applicant stated that he and his wife had for some time been looking for a rural property that would enable them to make a living off the land. One of their wishes and wants is the creation of a happy living through the raising of fish. After touring Ontario and Canada for a potential site he acquired the subject lands in September, 1981. He was pleased with the site because it had running water, springs and a remnant of an old dam indicating previous development. Upon acceptance of his offer he attended three one-day courses at the University of Help in respect of related matters such as fish farming and pond construction. While at Help he obtained his initial set of application forms which were subsequently submitted to the Ministry. He made an application but it was put over for consideration until the spring of 1982. However, in 1981 the township undertook steps to open and clean out an agricultural drain and an area at the south side of his property on which bulrushes were growing and which was said by the township road superintendent, Smith, to contain three feet of material that should not have been there, was bulldozed out and a large "ugly ditch" was opened up across the front of his property.
The witness produced as Exhibit 13 a large aerial photograph which he understood to be 1975 photography. He pointed out that the photograph shows that the stream, at the southerly end of his property, meanders through the bulrushes but these were removed by the township operations.
In the spring of 1982 he examined the property further and was able to establish on the ground the overflow of the old dam by virtue of the growth of marsh marigolds. In his view there was considerable silting but the land still was in a wet condition permitting the growth of such plans.
The applicant admitted that he did not wish to operate to anyone's detriment and did not wish to deprive his neighbour to the west of his creek which he does enjoy. He thought his proposal was fair to all concerned including the Ministry. He stated that he was flattered that he had a nursery creek that spawned brook trout which would feed Meux Creek.
The applicant indicated that he had invested funds in the purchase of the property, without identifying the amount, and had funds available in the bank awaiting the construction of the ponds. He indicated that he had considered smaller ponds at the side of the existing creek but in his opinion these would not justify the cost of their construction. In the event he is not able to divert the creek it will be necessary for him to invest in another type of operation and fifty acres is a small acreage on which to support oneself. He indicated he could see no option but to replace the lands back into pasture which he did not wish to do because of the detriment to the creek.
On cross-examination by Neal, the applicant stated that he intended to make his complete living in raising fish and that the commercial operation would be carried on in the three large ponds that would be northerly of the proposed dam. He indicated that he proposed to construct a building to house pigs on the marshy part of the property. The manure from the pigs would be used for growing worms as the witness did not believe in the feeding of fish with cereal.
He indicated that two of the ponds would be stocked with rainbow trout and one with bass. He further enlarged upon his proposed dealing with the area downstream from the dam by suggesting that he proposed to construct the three ponds in such a way that the water from the two upper ones would cascade downwards into the third pond and in so doing there would be a considerable amount of fill produced which would enable the raising of the areas around the upper ponds and also provide a berm approximately forty feet from the lot line between the two properties and would permit a forty foot strip to return to a state of nature. He indicated that there was evidence of old streams flowing through this area and he thought that the berm would prevent this. The proposal was that the diverted stream would flow through the forty foot strip and the berm would create a barrier preventing the water flowing from the Belfry lands proceeding further onto the applicant's lands. The diversion and such waters would flow through the new channel to a junction with the existing creek near the location where it enters the Belfry lands.
With reference to the heating of the water in the creek, the applicant stated that he felt he could prevent the heating of the creek water by controlling the upper levels of the headpond and that the berm would prevent the flow of water from the dug ponds into that diverted channel.
When asked as to whether he had taken steps to prevent poachers coming on his land and ultimately onto the Belfry property he indicated that he had given consideration to this matter but no details were provided.
On cross-examination by counsel for the Ministry, the applicant was asked why he wished to build the three ponds in the location shown on his application. His answer was that he wished to keep as far away from the creek as possible. He enlarged upon this by stating that there are economic considerations in the construction of the ponds and in order that he may have a flat area around each pond the construction of ponds without affecting the existing creek bed would provide only small ponds that would not have any economic viability as a commercial operation. He stated that he had a contractor on the property who advised that the only way that viable ponds could be created would be to use a bulldozer and excavate large holes building up the areas adjacent thereto with the excavated material. He stated that the contractor advised him that it was not economical to construct small ponds.
Reference was made to an original submission in which one of the dug ponds would be on one side of the existing channel and two of the ponds would be on the opposite side of the channel. The applicant indicated that it was this plan which had been submitted to the contractor who indicated that it would not be economical to attempt to construct dug ponds in these locations.
The applicant admitted that his whole purpose of the diversion was to provide a location for the construction of the pond a for the commercial raising of fish. When asked the reason for the proposal to construct an instream dam reference was made to his wife's aquarium and a desire to have fish in a natural state as contrasted with commercial ponds which often develop green colours and in which fish cannot be seen. He stated that the purpose of the instream pond was solely for recreational purposes. When asked the size of the proposed dam he referred to the remnants of the old dam. When referred to his application which stated that the dam would be three feet above the level of the stream bed the witness indicated that the pond would have to be dug down. It did not appear that the applicant had given consideration to this aspect of the matter and when it was suggested that his application referred to a "top draw off" he suggested that there was a typographical error in his application. Reference was made to his application where he stated that the maintenance of the trout stream on his neighbour's property was resulting in five acres of his land becoming a cedar swamp. Notwithstanding this the applicant insisted that he had no intention of or desire to deprive his neighbour of the trout stream on his property.
The applicant indicated that he felt that he appreciated the concerns of the Ministry with reference to cold water streams and he suggested that the Ministry should co-operate to ensure that the cold water stream remains. The applicant appeared to indicate an understanding of the concerns and the need for the retention of cold water streams but adopted the position that the Ministry should provide some advice or engineering studies which would permit the continuation of such a condition and that the Ministry was failing to co-operate with him in not providing such a service. He indicated that he felt the Ministry should provide some engineering information which would permit a bottom draw off which would permit the water to rise from the bottom of the headpond which would be some twelve feet below the ground level and that such a device would not interfere with the migration of brook trout. He further gave evidence that in his opinion there would be no effect on spawning by the creation of the headpond and that the headpond and the spawning area. could exist side by side.
Counsel put to the applicant the question of whether he would admit that the warming of the waters in the headpond would affect the temperature of the upstream nursery areas for brook trout. The applicant indicated that he felt that that would not be a significant factor. Upon persistent questioning of counsel for the Ministry the applicant finally admitted that his approach was that the migration would occur through the top flow of the outlet of the headpond.
On examination by the Bench it appeared that the applicant has taken no steps to obtain any independent consulting advice with reference to either the commercial aspect or the diversion or the dam that he proposes to construct. When questioned again regarding his purpose for the instream dam he referred to the recreational value to the owner from having a pond in which he would be able to view fish, submitting that it was not possible to view fish in the natural state in a stream.
S.J. Kerr was called to give reply evidence. He stated that in examining the proposal of the applicant he was satisfied that the proposal constitutes a top water draw off. The applicant intervened suggesting that a bottom draw off could be arranged which would provide for thermal protection at periods during which such protection was required. The witness indicated that such protection in a cold water stream is required on a full year basis. The witness indicated that he failed to see that there was anything in the applicant's proposal or in a bottom draw off system accompanied by some type of piping which would alleviate the problems of thermal increase and interference with migration.
The witness also pointed out that it appeared that the applicant had not fully considered the requirements in respect of a commercial operation such as approval of species of fish, approval of location, approval of water source, approval of effluent by the Ministry of the Environment, etc. He pointed out that there are a number of matters to be dealt with and there is a concern if nonnative or undesirable species were able to escape into natural watersheds and affect the natural species. The witness stated that they had experienced no problems with dug ponds in the area. Further he stated that he had seen nothing in, the proposal of the applicant that removed his concerns respecting the stream diversion and the dam, the degradation of thermal quality, the interference with migration and the loss of habitat.
On cross-examination the applicant suggested that brook trout have been observed in water filled pipes that were used as cattle watering devices. The witness took the position that this was not a likely method through which brook trout would migrate. The witness also took the position that in a pond that was twelve feet in depth, a person could not see trout living in such a pond. He gave evidence that he felt it would be easier to view them in the existing natural environment.
In submissions, counsel for the Ministry referred to clauses 2 (c), (d) and (e) and subsection 11(4) at the Lakes and Rivers Improvement Act and submitted that the role of the inquiry officer was to weigh the public interest expressed by the Lakes and Rivers Improvement Act with the private rights of the owner of the land in question. It was submitted that the evidence showed a significant public interest in the maintenance of the quality of the water and in the habitat of brook trout in the stream in question and that this public interest outweighed the interest of the applicant whose evidence was that the purpose for an instream dam was merely in order that he could observe the natural species in a pond. Reference was also made to section 27 of the Fisheries Act.
It was submitted that the evidence clearly showed that the stream which was to be dammed up and diverted contained both spawning and nursery areas as well as excellent habitat and that all these attributes would be destroyed by the construction of the dam and the diversion of the stream.
Reference was made to the evidence that indicated that brook trout are sensitive to very slight changes in environment and that impediments to migration have a serious effect on the existence of populations. It was submitted that the proposal would destroy a habitat that is required by brook trout, a habitat that is limited in its existence and is decreasing in its quantity.
Reference was made to the concerns of the downstream owner respecting temperatures and silt from the actual construction. It was submitted that the public interest overrides the private interest of the applicant and that it would be fair, sound and reasonably necessary for the achievements of the purposes of the Lakes and Rivers Improvement Act to deny the approval requested.
The applicant submitted that it was his wish to coexist with the fish and in contrast the Ministry was taking a position that his property should be left in a state of abandonment in which he purchased it and that it should be kept functioning in the way they found it at the time of his application. He indicated that he had listened to Imhof and did not feel that it was impossible for him to live within his criteria. He suggested that there might have been a change if he had been contacted previously by the Ministry before his opinions had become relatively fixed and he resented the implication from the Ministry's presentation that his proposal was a frivolous gesture. As far as a deeper study was concerned he submitted that if he could not have his commercial ponds it was pointless to study the matter further. He suggested that in the circumstances there should be some type of compromise between leaving the property in a state of abandonment and utilizing the property for the benefit of the owner.
In reply it was submitted that the wish to coexist of the applicant is not consistent with the effects of his project which would destroy the resource as it presently exists on his land. It was said that the Ministry did not consider the application frivolous but merely questioned whether sufficient research had been done to find the best method of developing the applicant's property. Counsel for the Ministry held out that the Ministry would be prepared to consider any further plans of the applicant from time to time and to assist the applicant in developing a viable use of his property.
With reference to finding of fact there is very little conflict in the evidence. The applicant failed to provide any expert testimony to offset the evidence of the Ministry. His experience was so limited that he could not be considered an expert witness and he brought no expert evidence of his own to the hearing.
There was one area where there was a factual disagreement. The applicant took the position that his purpose in constructing an instream headpond was in order that he might be able to view the actives of fish in a natural state. Throughout his presentation the applicant appeared to be recognizing the principles brought forward on behalf of the Ministry and appeared to attempt to adjust his application so that it would be interpreted as meeting these principles. With regard to this particular aspect there was nothing in the application that indicated that the pond would be excavated and yet the applicant gave evidence that he intended to excavate the pond to a depth of twelve feet. In the particular situation the evidence produced on behalf of the Ministry was that one could not see trout in a pond that was twelve feet in depth and one is inclined to adopt the view that the applicant was being opportunistic in respect of his options and probably was faced with many of the issues in connection with his proposal for the first time at the hearing. So far as the particular issue is concerned the tribunal finds that if the purpose of the applicant was merely to be better able to observe the activities of fish, this purpose was not shown to be achievable in fact and as the applicant failed to provide any other evidence as to need or purpose for the instream dam this tribunal can only conclude that he failed to establish any real purpose.
Generally speaking, the applicant failed to present his case in a comprehensive or in an understandable manner. The proposal outlined in the evidence, particularly the evidence given in cross-examination of the applicant rather than in chief, turned out to be so inconsistent with his application that it is difficult to unstand how the Ministry's officials appreciated the objectives of the applicant. The applicant failed to produce on his own behalf any comprehensive plan of his proposal, any evidence of his title, any significant drawings to illustrate his proposal and any competent expert evidence to deal with the issues arising from his proposal. While the tribunal may not be unsympathetic with the objectives of the applicant, the applicant failed to either define or establish any justification for his overall project. This failure made it very difficult to understand his proposals and to deal with them at the hearing until the latter part of the hearing particularly, after much of the appropriate evidence had been elicited from the applicant through cross-examination or questioning from the Bench.
A further irrelevancy in the hearing is the action taken by the municipality in opening the most upper end of the tributary in question. It is not the role of this tribunal to deal with the appropriateness of the action taken by the municipality. Suffice it to note that the tribunal is satisfied that there was a siltation problem in connection with the stream and that problem, while it may be temporarily increased as a result of the township activity, appears to be one that would have to be dealt with for many years to come.
In summarizing the proposal of the applicant the following findings of fact are made. The applicant acquired a fifty acre parcel of land composed of the west half of the township lot in September, 1981. The half lot measures approximately ten chains in width and fifty chains in length. A stream flows through the property commencing at the southerly limit and after meandering approximately half way through the property crosses into Lot 7 which is owned by Gordon Belfry and ultimately flows into Meux Creek. Although there are a number of springs along the creek itself the watercourse is also fed with the outfall of agricultural drains on lands in the vicinity of the south boundary of the applicant's property.
The proposal of the applicant was to construct an instream dam at a site approximately one-quarter of the distance from the south boundary and divert the outfall from the dam along a constructed channel on the west side of his property until it reaches the present channel. There was some evidence that an old dam existed but it is clear that this dam had ceased to function in 1936 and the matter, as a result of the passage of such a period of time, can only be construed as a new application rather than as an application to repair. It appears that there may have been an earlier channel at the site to which the applicant proposes to divert the bed of the stream below the dam. However, this channel by virtue of its straightness appears to have been a man-made channel and may have extended directly into Meux Creek which flows through the applicant's property at a distance approximately two-thirds of the distance from the south boundary.
In addition to the construction of the dam with its head pond and the diversion the applicant proposes to construct three large dug ponds over the site of the existing bed of the stream which ponds will be fed by table water and drainage from agricultural lands to the east. He proposes to create a berm to prevent the drainage of springs from his neighbour's land reaching his ponds and maintain this source of water in the new channel. In addition the applicant proposes to establish a residence, a building to house pigs and a number of other buildings, some of which have already been erected.
The evidence produced on behalf of the Ministry showed that the stream in question is an exceptionally high quality cold water stream feeding Meux Creek which in itself is habitat for brook trout. The evidence showed that the stream contains spawning and nursery areas and in fact sustains an existing population of trout as well as other minnow species. The temperature of the water in mid-summer was only twelve degrees centigrade which is eight degrees below the maximum for brook trout species and is an essential element of the quality of the stream as habitat for brook trout. In addition the stream in its present condition provides a significant cover to protect the trout both by way of vegetation, under cut banks and instream devices.
The evidence of the Ministry clearly shows that the proposal will raise the temperature of the water flowing through the stream and ultimately into Meux Creek increasing the temperature of that creek. In addition there will be a loss of nursery and spawning habitat in the headpond and in the diverted portion of the bed until such time as nature can re-establish such habitat. It may well be that the applicant is in a position to assist nature in this regard but the fact that the proposed channel is straight is inconsistent with the evidence of Imhof, who indicated that in the morphology of streams, the streams do not stay in a straight channel. Further the evidence showed that the proposed dam would not be capable of permitting the migration of trout from either above or below the dam. The applicant brought no evidence to illustrate any Method by which he could replace any of the lost habitat on an early occasion or any method whereby his project could reduce the thermal degradation of the water. It is also apparent that with the straight channel there is a risk of future siltation in addition to the immediate siltation which would result from the project itself and the continuing supply of silt from the agricultural drain.
While it is indicated above that the applicant failed to establish any feasible reason for the construction of an instream dam and headpond, he did give evidence that stated there was an economic advantage to him in diverting the channel from the location at which he proposed to locate his commercial ponds. This evidence was most unsatisfactory and was composed of hearsay evidence of an opinion without supporting facts given to him by a contractor whom he did not identify. It may well be that had his presentation been properly presented by persons with appropriate knowledge they could have established economic aspects which the tribunal could take into consideration. However, in the absence of any plan prepared by a person with appropriate knowledge, including evidence that the diversion would be rehabilitated this tribunal cannot even speculate on what might have been said if the applicant's case had been presented in this fashion.
The duty of this tribunal is to come to an opinion whether the refusal of the approval of the proposed dam and diversion is fair, sound and reasonably necessary for the achievement of the purposes of the Lakes and Rivers Improvement Act. These purposes are set out in section 2 of the Act and read as follows.
- The purpose of this Act is to provide for the use of waters of the lakes and rivers of Ontario and to regulate improvements in them, and to provide for,
- the preservation and equitable exercise of public rights in or over such waters;
- the protection of the interests of the riparian owners;
- the use, management and perpetuation of the fish, wildlife and other natural resources dependent on such waters;
- the preservation of the natural amenities of such waters and on the shores and banks thereof; and
- ensuring the suitability of the location and nature of improvements in such waters, including their efficient and safe maintenance and operation and, having regard to matters referred to in clauses (a), (b), (c) and (d), their operation in a reasonable manner.
It will be noted that this section was first enacted in 1971 and created a legislative declaration of the reasons for the prohibitions contained in the statute and establishes and limits the areas of consideration in respect of the powers given to the Minister under the Act to control the location and the plans and specifications of dams, which by definition in the Act includes diversions. Clause (c) specifically deals with the issues involved in this case. At common law an owner of land bordering a stream had the right to erect a dam on the stream provided he did not interfere with the quality or the quantity of the flow passing to downstream property. This principle has been incorporated into the matters to be considered by the Minister and illustrates that, in considering applications, the Minister should consider not only the public interests but the rights of private owners. Clause (c) has a broader application in that it contemplates the effect not only on the downstream owners but on the land in question and the upstream owners and in addition to such private rights an element of public interest in such matters is recognized. Notwithstanding that the rights mentioned can be construed as being private in certain circumstances, the effect of adding the purpose of use, perpetuation and preservation is consistent with the recognition of a public interest in such use, perpetuation and preservation. In other words one might interpret the subject matter of this clause solely with regard to the interest of the applicant as owner of such right. However, I believe it is apparent that the intent of the Act is not merely to prevent the landowner from affecting his own property rights whether it be intentional or otherwise but to confirm that there is a public interest in such use, perpetuation and preservation.
Sections 10, 11 and 12 of the Act, which were added to the Act in 1971 provide a means of weighing such public interest against the rights of the landowner. The day has long gone when the landowner could do as he desired with his own land or dispose of his own land in any manner he saw fit. Zoning, planning and subdivision control legislation have changed the freedom of action historically enjoyed by the owner of land, particularly, land that has not been developed. This new legislation recognizes areas of land use that ought to be managed, perpetuated and preserved and the controlling mechanisms of the Lakes and Rivers Improvement Act are by the 1971 legislation related to these factors which are set out in section 2 of the Act.
Having regard to the test to be adopted in hearings of this manner, this tribunal has, in the past, adopted the test shown in the case of Walters et al. v. Essex County Board of Education  3 O.R. 346 in which Stark, J. said at p. 349,
In applying the words used in the Act, namely, "fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority" and lacking any judicial pronouncement as to the meaning of these words, the inquiry officer adopted the suggestion made by Mr. John W. Morden in the Special Lectures of the Law Society of upper Canada, 1970, "Recent developments in Real Estate Law", p.226, where that writer had suggested, "that it would be more realistic to regard the formula as conveying the broad standard - having regard to the objectives of the authority is this expropriation reasonably defensible." Similarly, as to the meaning of "fair" the inquiry officer adopted Mr. Morden's suggestion, "that it involves a balancing of the public interest allegedly being advanced by the expropriation with that of the private interest owner".
Reviewing the evidence of this case against the tests of "reasonably defensible" and "balancing of interest" it is apparent to this tribunal that on the evidence produced before it that the Ministry has shown a preponderance of public interest over the private interest, particularly, in respect of the application as it was submitted. This tribunal makes no comment in respect of any subsequent application which the applicant may wish to bring based on a diversion only of part of the stream which would provide room for the placing of his proposed commercial ponds.
I cannot adopt the approach that the proper way to deal with applications is to require the parties to compromise. It is my view that with the principles clearly set out in the Act the applicant should be able to justify his proposal, not only to the Ministry but to an independent inquiry officer appointed for the purpose, and an applicant cannot expect to come before an inquiry officer with twice as much as he really wishes to be permitted to do and expect, through some process of compromise to be permitted half of which he asks for which is, in reality, all that he wishes.
If the applicant has a proper case it should be established and if so established and has a predominance over the public interest then an applicant should expect the full support of the inquiry officer. However, in this case the applicant has failed to show any feasible reason for the instream dam and with the diversion being so interwoven with the dam in this application this tribunal cannot sever the application into two parts and deal with the diversion separately. Even if such were possible the tribunal is not satisfied that the applicant has produced sufficient evidence before the tribunal on which a conclusion could be reached to show that the economic needs of the applicant in respect of the use and development of his property outweigh the public interest in maintaining the unusual fisheries resource that exists on his property.
Accordingly, I am of the opinion that the proposed refusal of the application is fair, sound and reasonably necessary for the achievement of the purposes of the Lakes and Rivers Improvement Act.
Dated this 25th day of April, 1983.
Original signed by G.H. Ferguson