“Save-Silverlake.com” is a busy place where people curious about lawn signs scattered around the community can go to research the story behind the Lake. This story includes its history, its role in flood and quality water management and flood control, economic development and tourism, and in supporting biodiversity in the ecosystem . Since setting up the website last September, our busiest day drew in 265 visitors. During this past week alone, 165 people checked out the web. Not bad stats for a place that has no vampires or zombies to provide a viral theme. Our visitors rarely leave comments but on occasion they do contact us with questions.
Recently a student sent us a list of questions for a school project. Given the present frustration of local residents regarding the length of time since the waters in the lake were lowered to investigate the stability of Misner dam and no forth coming action, we have put together some of these frequently asked questions with our take on the answers.
Question One: How do you feel about the conflict on the ownership of Misner Dam and Silver Lake?
The Friends of Silver Lake feel frustrated about the conflict as it is delaying getting the dam repaired and the lake restored. The longer the wait, the more it will cost. The dam needs repair and not rebuilding but the longer it stands open to the elements, the more wear and tear there will be on the structure and the more repair will be needed. The same goes for the Lake – the wildlife is under immense stress and beginning to migrate into unsafe areas; the silt is building up even faster than ever as the water is not moving it along. The amount of water from the storm sewer system has increased with new housing developments and it is all being diverted into the Lynn River. The longer we wait, the bigger the job to remove it. The abandoned lake has become a dumping ground for garbage. This is not surprising – once an area begins to deteriorate, people lose respect for the environment and they take out their frustration by with graffiti and destructive behaviour. A drive through many American cities is illustrative to what Port Dover is facing if we don’t get the mess cleaned up.
Question Two: Who do you feel owns the Dam and the land in the lake-bed?
The Land Registry Office in Simcoe, declares the parcel of land identified as “50253-0006” upon which sits the Misner Dam as being owned by the County. It is incontrovertible that the County owns the land and the old bridge directly above the dam. From earliest times the map for Plan 207 depicts a dam beneath the “Lynn Street” municipal road allowance. Municipalities own their road allowances and the land beneath them. There is no document at hand showing that the municipality ever in any manner waived its ownership to the lands beneath the Lynn Street bridge crossing over the dam. When Norfolk County expropriated lands (and “flowage rights” from the Misners) in 1969 for the westward widening of the Lynn Street road allowance to provide for the new bridge, the expropriation says nothing about granting the County any rights vis-a-vis the dam structure and yet the County proceeded to use the concrete works of the dam to support the concrete buttressing for the new bridge. This in itself is consistent with a right of ownership already prevailing. Similarly, the County approached no presumed owner for permission when it lowered the water level in 2009/2010. This too can be taken as implying ownership on the part of the County. The County’s disclaimer of ownership is based on non-possession of a document conferring ownership. The existence of a title document is denied by other involved parties. In the matter of the lake itself, it can be shown that Andrew Thompson, the dam builder bought up properties that would be flooded by the dam, removing any later claims. On his death he did NOT bequeath the lake to his heirs, causing any possibility of title to revert to the crown; indeed County maps showing the Lake characterize it as “unpatented land”, ie crown land. While it has also been suggested that MNR might be an owner based on provincial legislation giving MNR ownership over river beds, the same legislation also states that this “ownership” ceases if the river flow is diverted into a man-made channel. Such is the case for the Misner dam as old survey documents show that the dam was erected some 60 feet north of the natural channel which was then stopped up when the dam was completed. All the above points to the conclusion that the County owns the dam. “If” there is anyone in the area who feels they have title to the land, they have not come forward. Under common law, if a property is abandoned for 7 years and no taxes have been paid or levied during that time, the land becomes the property of “the crown”.
On the basis of public safety the County has responsibly proceeded with asking the regulatory agency for permission to repair the dam. Council has been steadfast in its support since its 2011 Fall resolution to put 2011 repair monies into the 2012 budget. The latest vote (7 to 2 in favour) on having to fund an “Inflow design study” as requested by MNR is the latest example of their belief that repairing the dam is the correct decision for the County.
Question Three: How long do you think it will take for this to be resolved?
Bureaucracy is defined as government by central administration. The problem is now in the hands of bureaucracy – Norfolk County, Ministry of the Environment, and Ministry of Natural Resources. Past experience would indicate the focus has become following “due process” and “doing things right” rather than “getting the right things done”.
The Friends of Silver Lake have been meeting with the Ministry of Environment, the Ministry of Natural Resources and the Ministry of Oceans & Fisheries together. All parties have given favourable feedback on the work plan to dredge the lake. No work will move forward until it is clear and confirmed by all parties that the dam will be repaired.
One of the reasons the County may be hesitant to claim ownership of the lake bed is that there are deposits of contamination that exceed the recommended limits in certain pockets of the lake bed. If any soil is to be disturbed or moved, the owner may be legally liable to ensure the contaminated soil is taken to a special facility and cleaned before being put into land fill sites. The FOSL have a plan that could alleviate the problem by moving the affected silt to berms along the lake edge but our hands are tied until the dam is repaired and we can consult with MOE. We are committed to work in partnership with the County.
Once the County signs contracts for repairing the dam, dredging could follow. In the meantime, we can move to secure the necessary approvals for dredging (another lengthy but necessary bureaucratic process).. We are awaiting word from MOE as to whether the earlier SNC study undertaken by the County on lake bed contamination is sufficient or whether more extensive testing would be required.
In the meantime, we face a delay. The actual work time to repair the dam and complete a first phase of dredging will take less than a year. Friends of Silver Lake believe there is only one choice. We are stewards of a heritage that belonged to our ancestors and the responsibility has been passed on to our community to preserve that heritage for generations to come. If we leave the situation as it is, it will not go away. There are safety hazards relating to the status quo which we will address separately..
Question Four: Who filled out the application to repair the Dam and why does the Ministry keep asking for more studies ?
In 2010 Norfolk County engaged Valley Consulting Engineers to inspect the dam as a health and safety precaution. The Safety Inspection report to Council advised that the dam required some structural repairs and maintenance work but the Dam did not have to be replaced. City staff submitted an application for repairs and maintenance work on the Misner Dam January 2011. February 2011, the County received notice that their application was incomplete and the reasons were detailed. At this point, work by the County to resubmit seemingly lapsed while research was undertaken by the County on “ownership”. This “research” ended with a September 27, 2011 Press Release declaring the County did not own the Dam. February 27, 2012, City staff re-submitted their application form with a cover letter saying they disagreed with the requirement to provide the information requested as the application was only for repair of an existing structure that had been in place for over 150 years and also that Norfolk County did not own the dam but would undertake the work to ensure public safety. The covering letter further stated that an additional submission providing all necessary detail would be forthcoming on MNR agreement with the major points made in the County’s cover letter.
The Ministry of the Environment responded May 25 that their earlier request for an “Inflow Design Study” remained. Consequently, Council has requested City Staff to send out a Request for Proposal to have the requested “Inflow Design Study” commissioned.
Due process has to be followed, but bureaucracy works quickly only when leadership has passion and motivation to communicate face to face with those who have the power and influence to move work efficiently through the system. What kind of leadership do we have in Norfolk County. Time will tell!
Other Questions You May Have?
Please let us know and we will do everything we can to get an answer!