February 18, 2020 Sara…

February 18, 2020

Sara Peckford
Food Safety & Environmental Policy Branch
Ministry of Agriculture, Food and Rural Affairs
1 Stone Road West
Ontario Government Building, 2nd Floor SW
Guelph, Ontario
N1G 4Y2

Re: Drainage Act Amendment Proposal
Stakeholder Consultation
ERO No. 019-1187

Dietrich Engineering is a consulting engineering firm providing engineering services under the Drainage Act. Please find below our submission to the above noted Stakeholder Consultation.

1.0 Beyond the DART Protocol, what additional protocols could be established to help streamline approvals?

1.1 Extend the existing DART protocols that apply to maintenance activities to Engineer’s Reports prepared under Sections 4 & 78 of the Drainage Act. This would create a consistent approach to both maintenance work and new construction by streamlining the environmental approvals required under other legislations and agencies such as the Conservation Authorities, Ministry of Natural Resources, Ministry of Environment, Conservation and Parks, and the Fisheries and Oceans Canada.
1.2 Develop protocol to address obtaining permits for crossings of Ministry of Transportation (MTO) and railway (federal owned and local) right-of-ways as well as dealing with other common utilities (Hydro, Bell, Cable TV, Natural Gas, Pipelines). The protocol would provide guidance and expectations for both the Drainage Engineer and the Public Utility across the province leading to early consultation, efficient design, and expedient approval and permit process.
1.3 Municipalities have developed procurement policies that function well for projects where a detailed scope of work is known at the outset of the project. Projects initiated under the Drainage Act require the appointed engineer to determine the scope of work, and therefore cannot rely on typical municipal procurement policies. Unproductive time and money are spent by municipalities in preparing and awarding Requests for Proposals (RFPs). These costs accumulated before a project is awarded are ultimately passed on to the ratepayer. Dietrich Engineering Limited supports the development of a ‘protocol for appointing an engineer’ that acknowledges the unique nature of projects under the Drainage Act; that offers a simplistic and efficient procedure for municipalities to follow; and ultimately results in an efficient use of time and money in selecting a practitioner to prepare a report under the Drainage Act.

1.4 The flexibility granted to landowners who wish to appeal is accommodating, as it should be. In some circumstances the lack of rigor required to appeal results in needless time and expense which is then passed on to other landowners who hold no responsibility for unsubstantiated appeals. Parties who exercise their right to appeal must be responsible for preparing a proper appeal. A protocol which assists the Appellant in preparing a clear and unambiguous appeal would reduce hearing time and legal costs, and in many cases will eliminate petty appeals entirely. Point No. 4.1 of this letter discusses modifications to the Drainage Act which could be considered along with a Protocol for filing a proper and complete appeal.

2.0 What projects should be included in the definition of minor improvements? What else would you like a minor process to achieve?

2.1 Dietrich Engineering Limited supports the initiative proposed by OMAFRA with regards to streamlining the process for minor improvements. Once a detailed process and project list is developed and clearly identified criteria for a “minor improvement” is established Dietrich Engineering Limited would be interested in commenting on further publications.
2.2 Culvert crossings and culvert extensions where it is appropriate to assess 100% of the costs to the Landowner could be initiated under Section 78 as a minor improvement. Eliminate meetings to consider the report and Court of Revision. Also, the Engineer must follow the design guidelines that were prepared by OMAFRA and approved by the Conservation Authorities and Fisheries and Oceans Canada. To save time and costs there would be no need to circulate the Engineer’s design and report to these authorities for their authorization.

3.0 Do you have any specific concerns with any of the items discussed in the paper?

3.1 If the Drainage Act is open to changes, it is important to maintain Section 6(1) in that the costs of requesting an Environmental Appraisal shall be paid by the party requesting it. The payment arrangements included in Section 6(1) have greatly reduced red tape and regulatory burden, and must be left intact.

4.0 Do you have any additional suggestions to reduce burden or contribute to additional opportunities for your business?

4.1 To improve the process of passing the by-law while in the absence of appeals, Dietrich Engineering Limited suggests changes to the Court of Revision and other appeal processes could be considered. Eliminating verbal appeals to the Court, eliminating the sitting of the Court of Revision if no appeals are received and offering landowners the ability to formally waive their appeal rights to remove the mandatory timelines could further streamline the process to allow it to be completed sooner, with less costs to landowners. Many projects and landowners would save time and money from an accelerated process for passing the by-law. This could be set out in a protocol and a standard waiver form created for use by landowners/municipalities.
4.2 There has been some confusion with the interpretation of Section 78 and how to apply the Drainage Act once the process has started. Clarity with regards to the use of Section 10, 40 and other sections of the Act when applying it to Section 78 reports could allow for a clearer direction to provide completion of reports sooner. This clarity would also provide landowners a clearer direction about being provided a preliminary report and determine if completion to final report is warranted. Additionally, in a situation where a report is not accepted by Council and does not ultimately result in a by-law Dietrich Engineering would be interested in clarity regarding payment responsibility and expectation.
4.3 Currently the expansion of scope of work or the addition of subsequent petitioners under an existing Section 78 project requires petitions to appear before Council and results in an additional appointment of an Engineer. A protocol could be developed to address these situations and potentially avoid the time and expense associated with filing two reports instead of one.
4.4 Conservation Authorities through Regulations under the Conservation Authorities Act now require a permit for all work under the Drainage Act. If the Conservation Authority conditions for a permit cannot be addressed by the Engineer or the Conservation Authority denies a permit there is no clearly defined appeal process. The appeal process under the Conservation Authority Act is not well defined and appeals to the Drainage Tribunal are usually considered outside the jurisdiction of the Tribunal. A defined appeal process involving both the Drainage Act and the Conservation Authority Act would help to expedite the approval process under both statutes.
4.5 There is a need for legislation regarding payment of costs associated with Conservation Authority recommendations or design requirements.
4.6 With the recent changes to the Fisheries Act, there has been additional burden with the industry in obtaining an Authorization from DFO and the corresponding requirement of a Letter of Credit. Since the Drainage Act requires a Municipal Drain to be constructed under a local by-law, the purpose of ensuring compliance to an Authorization from DFO through a Letter of Credit is redundant. Dietrich Engineering Limited would like the federal and provincial government to address this unnecessary step between different levels of government, reducing barriers and allow the report and approvals to be obtained more effectively.
4.7 In order to avoid unnecessary overlap of construction work, the varying of original assessments for maintenance through Section 76 is a very useful and functional part of the Drainage Act. Per Section 76(2), and upon the submission of a Section 76 Report, the proceedings shall be the same for the construction of the drainage works. However, a Section 76 Report specifically deals with matters pertaining to the varying of assessment, and construction works do not form part of this report. With no technical merits to these types of project, should a Section 76 Report need to proceed with a Consideration Meeting? By removing the Consideration Meeting, the approval process of a Section 76 Report could streamline the overall process.
4.8 Many municipal drainage systems exist with outdated or unfair maintenance schedules. When these drains require regular maintenance, landowners often request a full-scale Section 78 report to conduct the maintenance work and to correct the unfair maintenance schedule. If Section 85 of the Drainage Act were modified to include grant for reports prepared under Section 76, this would incent landowners to request a new maintenance schedule under Section 76 (a much simpler report than what is required by Section 78), and then conduct maintenance in accordance with Section 74, as intended. The potential savings (in addition to time savings) include eliminating a detailed survey, drafting, design, cost estimates, preparation of assessments for capital works, and the processing of a full-scale report under Section 78. The grant saved from filing a report under Section 78 is expected to outweigh the new grant approved for a report under Section 76.

Dietrich Engineering Limited appreciates the opportunity to participate in the Stakeholder Consultation and we look forward to the outcome.

Sincerely
Yours truly,

DIETRICH ENGINEERING LIMITED

William J. Dietrich, P.Eng.
President.
WJD:sm