RE: Drainage Act Discussion…

RE: Drainage Act Discussion Paper Comments (ERO #019-1187)

Questions for Consultation:
1. Beyond the DART Protocol, what additional protocols could be established to help streamline approvals?
2. What projects should be included in the definition of minor improvements? What else would you like a minor process to achieve?
3. Do you have any specific concerns with any of the items discussed in the paper?
4. Do you have any additional suggestions to reduce burden or contribute to additional opportunities for your business?

Responses to Questions for Consultation:
1. Additional protocols could be developed with the other responsible agencies, such as MNRF (natural hazards), DFO (fisheries) and MECP (endangered species). MECP’s responsibility for the ESA has added to the possible red tape and complexity of decision making.

Consider negotiating Standard Compliance Requirements similar those for drainage repair and maintenance activities in areas regulated under Section 28 of the CA Act. Permits should still be required for Cleanouts within regulated areas (e.g. fisheries, endangered species). However, efforts to streamline the process should not come at the expense of maintaining environmental standards based on sound science.

2. Minor works should be restricted to activities that maintain the drain to the engineer’s report. Minor activities should include brushing top or slope of banks, bank repair and maintenance, debris removal, culvert replacement, water control structure maintenance, pump station repair, bottom cleanout outside regulated areas. Perhaps widening or adding a crossing could be considered a minor improvement. However, relocating a drain on an individual property or the addition of a water retention area would seem major. Any on-site necessary design changes would likely be minimal, and not anticipated to affect the engineer’s approved design. If a significant design change were proposed during construction, it would raise questions about the initial engineer’s report. The approval process normally requires a site visit, so significant design changes seem unlikely. Further, water retention areas or small ponds can increase flood risk if the designed storm threshold is exceeded. It would seem appropriate to consider water retention areas within a larger watershed context, more so than just engineer’s upstream areas for allocating costs.

An engineer’s report should be required for any new municipal outlet drain (Section 4 drains). The Drainage Act states “The engineer in the report shall assess for benefit, outlet liability and injuring liability, and shall insert in an assessment schedule, in separate columns, the sums assessed for each opposite each parcel of land and road liable therefor (R.S.O. 1990, c. D.17, s. 21). Section 78 drains, repairs and maintenance could likely be assessed through standard compliance requirements for other protected ecosystem services.

3. The discussion paper seems to suggest that since the Drainage Act was enacted nearly 150 years ago, with an update in the 1970s, is justification for creating efficiencies. However this act has enabled the creation of more than 45,000 km of municipal outlet drains servicing 1.75 million hectares of cropland. It would seem that the Drainage Act has served the agricultural sector very well. This economic benefit has come at the expense of wetlands, ground water recharge and other ecosystem services. How will streamlining the process better balance the social, economic and environmental values?

Consider following Ontario’s watershed planning guiding principles when considering amending the Drainage Act. The guiding principles include an ecosystem based approach informed by the best available science, landscape analysis, precautionary approach, adaptive management, and collaboration and engagement. The discussion paper works towards engaging the public for input. However, it is unclear how the other guiding principles are considered as part of the process to update the Drainage Act.
There is no indication that resources will be committed to collecting data to make informed decisions based on the best available science. Drain water quality and quantity data can help to reduce flooding and to meet phosphorus targets for the Great Lakes. Further, municipal open ditch drains are corridors that connect natural areas. Consider documenting the conversion of open to close drainage outlets. The discussion paper support maintaining [scientifically sound] environmental standards. There needs to be a vision established to know the environmental standards to be achieved or maintained. Adaptive management requires monitoring and reporting progress towards goals. A commitment to ensure agencies have the capacity to accommodate a streamlined process is essential. The discussion paper identifies the enormous economic value that drainage provides, so there should be a commitment to ensure sufficient resources are available to maintain high environmental standards. There is no discussion about the capacity of agencies to help streamline the process. How will austerity measures affect the capacity of agencies to fulfill their mandate or accommodate a streamlined process that maintains oversight responsibilities?

The Drainage Act restricts the alternatives that referral agencies can recommend. Unlike in the United States, the balance between the rights of property owners and the general public is achieved by limiting comments to the design of the drainage work. No provisions allow the compensation of wetland loss off-site through the creation, restoration or wetland banking. Thus, only on-site mitigation is supported under the Drainage Act. This limits the alternatives available to conservation authorities in their attempt to balance the rights of owners and the public. In the present legislative context, perhaps the desirability and feasibility of these other approaches could be discussed in Ontario (Walters and Shrubsole, 2003: 378). The use of wetland off-sets to compensate for losses is an ongoing discussion in the province. Consider using a landscape approach to address broader ecosystem targets.

What evidence is there that the process needs streamlining? Where is the bottleneck in the system? See Figure 1 below that outlines the section 4 and 78 drainage works approval process. Is there evidence that the referral agency notification and commenting process slows the process or increases the cost? If an environmental appraisal is required, the referral agency is responsible for covering the cost.

How will streamlining the process impact businesses and jobs associated with drainage activities? The discussion paper reports that there are hundreds of jobs and businesses that benefit from drainage works. It is not clear how the proposed changes will affect their economic benefits.

4. Will streamlining the process increase the number of Section 4 and 78 drain applications, thereby increasing expenses for upstream agricultural and non-agricultural land owners? The costs associated with improved drainage are shared proportionally among land owners. Only agricultural lands receiving improved drainage are eligible for grants to off-set the costs. Will there be more of a financial burden on non-agricultural land owners?