February 18, 2020 RE: …

February 18, 2020

RE: DRAINAGE ACT AMMENDMENT PROPOSAL

To Whom It May Concern:

We appreciate this opportunity to provide input on regulatory changes being considered to expedite approvals and reduce administrative costs for projects under the Drainage Act.

K. Smart Associates Limited has specialized in engineering services under the Drainage Act for nearly 45 years. We offer the following responses to the discussion questions given in the Drainage Act Discussion Paper circulated in January 2020, and the February 7, 2020 webinar presentation titled “Drainage Act Amendment Proposal.”

1. Beyond the DART Protocol, what additional protocols could be established to help streamline approvals?
• Conservation Authorities
o Expand the existing protocol so it may be used for reports under Section 4 and Section 78 of the Drainage Act.
o Different CAs have different policies re. drain enclosures. An expanded protocol should outline general criteria for drain enclosures that all CAs recognize (e.g. requirements for pre vs post flows, offsetting options for lost vegetation, role of other agency approvals, etc.).
• MECP
o Any protocol work pertaining to the Endangered Species Act should clarify the requirements/role for mitigation plans. MECP’s Proponents Guide to Preliminary Screening (currently in draft form) makes no mention of mitigation plans. A protocol could include mitigation plans for commonly encountered species at risk, similar to the one-page “Standard Compliance Requirements” forms that existing in the DART Protocol.
• Although additional protocols could be considered for a wide range of players (utilities, railroads, MTO, etc.), there are generally well-defined processes for working with these entities and we feel efforts invested in new protocols should prioritize environmental approvals.

2. What projects should be included in the definition of minor improvements? What else would you like a minor process to achieve?
• We concur with the minor improvement examples listed on page 3 of the discussion paper.
o Some minor improvements that would be best implemented under a streamlined S. 4. or S. 78 process:
 A new closed drain branch as an addition to an existing closed drain.
 An upstream extension of an existing closed drain.
 Drain relocation on a property to accommodate a new building or development that does not require additional capacity downstream.
o Other minor improvements could proceed under a new regulation enabled by an amendment to S. 77 that expands application of S. 77 from roads to include private lands also:
 Channel modifications/improvements to increase bank stability, reduce erosion, etc.
 Deepening an existing closed or open drain to accommodate new tile drainage outlets
 Formally establishing buffer strips where desired by a landowner
• We believe eligibility for “minor improvement” designation should be based on conformance with general criteria vs. inclusion in a list.
o Initiation/eligibility screening
 The Drainage Superintendent and the owner(s) of the land affected by the minor improvement indicate their support in writing
 The minor improvement does not adversely affect any upstream or downstream property or road.
 There should not be an upper limit on minor improvement costs
o Process considerations
 The Drainage Superintendent may conduct the on-site meeting without the engineer
 Need a written description of the minor improvement signed and stamped by a P. Eng. including:
• A plan indicating the location of the minor improvement.
• Sufficient detail to allow construction and future maintenance.
• Sufficient design to ensure the minor improvement does not adversely affect the function of the existing drain.
• Cost sharing for initial construction and future maintenance.
 What notification requirements are necessary?
 Consider limiting the right of appeal to those assessed or those owning the land where the minor improvement is built.
 Consolidate consideration and Court of Revision into a single step by mailing the written description to affected landowners in advance along with a notice indicating the date for consideration and deadline for design or assessment appeals. If no appeals are received in advance, Council may pass the bylaw, but the Engineer is not required to attend the meeting.
 If no appeals are received, the minor improvement may be adopted by bylaw and proceed to construction.
 Direction for attaching/connecting the minor improvement bylaw with the drain bylaw
 Will need to address the inevitable question of how to handle engineering costs should be process stop.
 ADIP language may require updates to clarify grant eligibility for minor improvements
 Could the minor improvement process be used to incorporate private work that occurred after the last engineer’s report

3. Do you have any specific concerns with any of the items discussed in the paper?
• Since DART (Drainage Act and Regulations Team) is a broad acronym, would it be simpler to expand the DART Protocol vs. creating new protocols?
• New protocols may be difficult to due to ongoing changes in legislation, agency mandates and personnel. Once created, these protocols should be reviewed annually.

4. Do you have any additional suggestions to reduce burden or contribute to additional opportunities for your business?
• We support the “Simplifying Administrative Processes” paragraphs in the Discussion Paper to find a way to formally recognize changes made during drain construction.
• The simplest implementation may be for as-built drawings, signed and stamped by the Engineer, to be part of the Section 62(1) amending bylaw, often called the actual cost bylaw.
• A very good example of where simplifying administrative processes to account for changes in drain design during construction would be the Holland Marsh project.
 Here a number of changes were necessary and changes that had to be done at the time of construction due to the massive equipment on site and the channel isolation methods adopted.
 There was and is no necessity of any changes in assessments. Actually, the project has been billed out already.
 KSAL has already had discussions with OMAFRA as to how the changes can be recognized for future maintenance.
• KSAL has considered pursuit of this process through the Drainage Tribunal, we have considered use of Section 78 and lastly we have considered use of Section 106 to make an application to the Referee.
• Perhaps this process, if specifically allowed through the Drainage Act, could also provide the opportunity for circulation of any as-built drawings and changed specifications to the watershed so that all owners are aware of the changes.
• This circulation could be left to the discretion of the Municipality perhaps. Perhaps this circulation could be implemented where it is felt that if changes that occurred are known by all, the project may as a whole be more easily maintained by the Drainage Superintendent.
• The circulation may be as simple as notifying the watershed that as-built drawings have been prepared and such are available at a designated site or perhaps such could be forwarded electronically if desired.
Thank you for reviewing these comments. We have also taken this opportunity to compile the attached list of recommended amendments to the Drainage Act that should be considered to address long-standing grey areas, questions, etc.
As practitioners working on projects under the Drainage Act, we appreciate the efforts being made to reduce red tape and improve the Drainage Act process. Please contact any of the undersigned should you require clarification or further information.

Respectfully submitted,
Kenn Smart, P. Eng, John Kuntze, P. Eng., Neal Morris, P. Eng., Joel Miller, P. Eng., Curtis MacIntyre, P. Eng.

FURTHER RECOMMENDATIONS AND COMMENTS RE. DRAINAGE ACT CHANGES TO CONSIDER
Submitted by K. Smart Associates, February 2020

i) Can the Act be amended to allow appeals to either the Referee or the Tribunal depending on whether the issue is a matter of Law or a matter of Engineering on agency decisions where the activities of the agency are not covered by any newly created protocols, as it exists at the current time. I am thinking specifically with respect to some Conservation Authorities.
At the present, if the Engineer, landowners or Municipalities disagree with the decisions of the Conservation Authority staff, the only appeal is to the Conservation Authority’s Board of Directors.
There obviously is a potential conflict when challenging a decision of the CA staff to the superiors/employers of the staff.
ii) With respect to Section 84 and abandonments, the Act allows the Municipality by itself to abandon a drain and to notify owners of their intention to do so. Then if owners appeal the intention to abandon, an Engineer’s report, can be obtained.
I would recommend that the Act be amended to allow the Municipality to request the report of an engineer by itself when both the abandonment and the report re such is desired by the Municipality. This would replace the steps of notifying owners and of hoping that owners request the Municipality to initiate a report on an abandonment.
iii) Section 78 should be expanded to deal with the situation where a Section 78 report is desired to be abandoned at the time when it is considered by Council.
Currently, if Council elects to abandon or stop proceedings on a Section 78 report, there is no clear direction as to costs.
Also if landowners request Council to stop proceedings on a Section 78 report, again there is no clear decision regarding costs.
The new Guidelines for Engineers Working under the Drainage Act has suggested that where a Section 78 report has been prepared and the recommendations of the Section 78 report may be considered beneficial for the long term maintenance of the drainage project, such costs could be applied to the watershed.
This is a discretionary call however and there is no consideration as to what would happen on appeal. The Act should address this matter and provide direction even if it is only to say that the decision of the costs of a Report that is to be cancelled can be that of the Engineer and that appeals to the decision of the Engineer to the Drainage Tribunal are available.

iv) Regarding Grants, I would like to see Section 85 not only list the Sections of the Act that provide for Reports eligible for grants but also list the Sections of the Act that provide for Reports which do not qualify for grants.

iiv) If the Act is opened up to allow for references to Ontario Regulations, there are several locations in the Act that refer to outdated dollar values (fines for obstruction, minimum appeal-able assessments, etc.). Consideration should be given to replacing dollar values with a reference to an Ontario Regulation that can be updated more easily when the dollar values become obsolete.

Follow-up email questions can be directed to Joel Miller, P. Eng., jmiller@ksmart.ca