The Holland Marsh Drainage…

The Holland Marsh Drainage System Joint Municipal Service Board would like to thank the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) for the opportunity to provide feedback on Drainage Act Discussion Paper which was posted on the Environmental Registry of Ontario’s Website on January 17, 2020. Town staff have reviewed the discussion paper and would like to provide the following feedback.

The Holland Marsh Drainage System Joint Municipal Service Board is in favour of the proposed three amendments to the Drainage Act:
• Create a new streamlined Drainage Act process for minor improvements to drainage systems;
• Enable a simplified process to update the engineer’s report to account for changes to the design made during construction; and
• Provide the minister with legislative authority to adopt technical protocols such as the DART Protocol by reference in regulation.

The Holland Marsh Drainage System Joint Municipal Service Board is supportive of the proposed changes to the Drainage Act as outlined in the Discussion Paper and believes that if the proposed changes above are implemented, that historic delays, increased costs and repetition in the drainage process can be reduced or eliminated.

Questions for Consultation

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

Will the legislative authority for the Minister to adopt protocols provide ample authority to bind the various approval agencies (Conservation Authorities, Ministry of Environment, Conservation and Parks (MECP), Ministry of Natural Resources and Forestry (MNRF))? While the development and implementation of protocols has the potential to improve and streamline the approval process, the success of these protocols will depend entirely to the ability of the protocol to bind everyone involved.

Potential additional protocols include:

1. DART Protocol expansion to include additional options of what Municipalities/Drainage Superintendents can do in regard to drain maintenance and repair activities. Additional options if works are not like for like but similar (ex. 600mm CSP replaced with 750 HDPE).

2. If this process can be applied to federal legislation, the Fisheries Act procedures developed by Fisheries and Oceans Canada (DFO) through their Drains Action Working Group (DAWG) should be recognized by protocol.

3. A protocol to include new and existing stormwater management facilities under the Drainage Act to allow Municipalities the ability to maintain and cost share this infrastructure moving forward. With the assumption that no grant would be available on these types of projects.

4. A protocol to assist drainage engineers, municipalities and the Ministry of Transportation (MTO) regarding crossings that will be required to be constructed, improved or replaced along the MTO right-of-way as part of a drainage project. A Protocol could assist all parties with collaboration to save time and duplication of work and money. MTO typically requires the Provisional By-law to have final reading before starting design work on their crossings. A Protocol to help align timing for the crossings design and the passing of the By-law, could be extremely beneficial moving forward.

5. A protocol to address the protection of endangered species that would allow municipalities to perform their statutory duties on municipal drains. The MECP should develop a list of mitigation measures or best management practices, that are required to be followed, for every endangered species that may be located in or adjacent to municipal drains.
a) An option would be to follow processes that have already been developed between the drainage community and the MNRF.
b) Update items related to the Endangered Species Act (ESA) to reflect the changes to the administration bodies.
c) MECP should also provide timely and consistent information and dedicate the appropriate staff to facilitate above.

6. Section 270(1) of the Municipal Act, 2001 requires municipalities to adopt and maintain policies for the procurement of goods and services. While a competitive process for procuring goods and services can generally reduce costs, it can have the opposite effect for the procurement of engineering services provided under the Drainage Act. This is because the scope of an engineering project is not well defined at the on-set of the Drainage Act process. In some cases, the scope of the project is not fully known until well into the project and prior to the preparing of the engineer’s report. As a result, proposals for engineering services under the Drainage Act will be conservative which will likely increase the cost of the project.

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

A minor improvement should allow for minor changes or improvement to be made to a drain as long as the improvement satisfies the following:
• Has little to no impact on the functioning of the drain (upstream or downstream);
• Has little to no cost to property owners other than the owner receiving the improvement;
• Can be completed in a much shorter time frame than under the current Drainage Act process;
• Allows the property owner receiving the minor improvement to waive their appeal rights;
• Eliminates the appeal rights of upstream property owners provided (a) they are not assessed and (b) the engineer has verified that the construction of the minor improvement will have no impact on the upstream property owners; and
• The municipality agrees with the proposed work.

An engineer’s report (perhaps as simple as a letter or a brief including drawings) would still be required that would define the minor improvement and this report must still comply with all environmental regulations. The report (or memorandum of understanding), if required, should be adopted by By-law or an amending By-law to make the improvements legally part of the drain. Provide the Town Clerk with the ability to pass this type of By-law in order to simplify the process.

Possible suggestion for work to be included in the definition of minor improvements:

1. Crossings Replacements (Private/Road Crossing)
a) Road crossing replacement on a Road Authority Right-of-Way should fall under this definition. An Engineer’s Report with drawings and watershed. No cost upstream, stays with Road Authority.
- This would include Road crossing replacement with structure that is bigger, longer and of different material (ex. Existing 10m long, 1000mm CSP to 14m long, 1.2m Concrete Box Culvert).
- We understand that this is not a ‘minor improvement’ in regards to costs or construction, however, all costs will be borne by the Road Authority and no effects on the drain upstream or downstream, no change in assessments. The current process requires a new report through the Drainage Act process which adds time, costs and possible appeals to the crossing replacement project.
b) Adding a new crossing to an existing drain.
c) Incorporating an existing private crossing into an existing drain which was never part of the drain.
d) For an existing crossing that had been installed as part of the drain, the ability to change the size of the crossing, change the length of the crossing and/or change the location of crossing (ex. Existing 10m long, 1000mm CSP to 14m long, 1.2m Concrete Box Culvert).

2. Relocating, Deepening and/or Enclosing a section of an existing municipal drain.
a) A property owner may require a section of a drain to be relocated on their property to help better facilitate farming operations (through property to around the outside of property).
b) A property owner may require a section of an open municipal drain to be deepened in order to accommodate tile drainage outlets.
c) A property owner may require a section of an open municipal drain to be enclosed to help better facilitate farming operations.

3. The ability to install bank stabilization (i.e. riprap, river-stone or other green infrastructure) features not originally part of the drain to protect areas of scour/erosion, unstable meanders, tile outlets, etcetera. In lieu of stabilization, the ability to re-grade the existing bank(s) flatter than the specified side slope.

4. Improvements to existing drain that are designed to improvement the drains current function (i.e. water control structures, wetland rehabilitation or creation, fish ladders, buffer strips, in-stream design concepts such as pool riffles).

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

Overall, the Holland Marsh Drainage System Joint Municipal Service Board is in favour of the proposed changes to the Drainage Act proposed in the discussion paper. Town staff would like to comment on the simplified process to update the engineer’s report to account for any changes made during construction (‘As Built’ Drawings).

There are always changes made during construction which should be captured in the final report. Making it a requirement that “as built” are provided and included in the overall cost of the project will recognize and align with existing engineering practices. It is crucial that all Environmental mitigation is captured in the “as built” so that it is protected under the by-law.

A simplified process to account for changes during construction will ensure that the drain is maintained as constructed and the environmental mitigation protected. We believe it is important to have the authority to recognize and make legal changes to the drain design that are sometimes necessary during construction. This way, maintenance moving forward can take place according with the engineer’s report. This process should be included in the overall cost of the project and completed before the levying by-law is passed. It is important this is a simple process without notice to landowners in order to keep costs down.

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

Listed below are suggestions that can reduce burden or improve efficiencies:

1. Updates to reflect current day technology.
a) The DART Protocol forms to excel or workable PDF with drop down menus (electronic versions).
b) Notification forms to be sent out electronically, if requested.
c) Copies of reports (USB or put on the municipality’s website for download).

2. The notice period for all meetings that are required under various sections of the Drainage Act should be a modified to a consistent 14 days or 10 business days to allow landowners to receive the notice well before the meeting take place. Amend the Act to include a clear definition of service.

3. Light Detecting And Ranging (LiDAR) data has been extremely useful for the efficiency in the development and management of drains. However, this is currently only available in some parts of the Province. Making this data available for all of Ontario would significantly increase efficiencies for those who currently do not have this data available.

4. In an effort to reduce frivolous appeals to the Agriculture, Food and Rural Affairs Tribunal (AFRAAT) and the Drainage Referee, the Drainage Act should be amended to require potential appellants to pay a fee to appeal or require a specific dollar amount to appeal. These appeal fees could be used to help offset the overall cost of the appeals that are levied against the entire watershed.

5. Amendments to the Drainage Act in order to clarify the responsibility for the cost of a Section 78 report that does not proceed.

6. Currently the Drainage Act requires a Court of Revision to be held for all drain construction or improvement projects, even if no appeals have been filed. This can add costs to the project. Consider amending the Drainage Act to allow the sitting of the Court of Revision to be cancelled if no appeals have been filed in advance.

7. On-line Training/Information Videos:
a. Training for members of the Court of Revision: An effective Court of Revision can reduce project costs by resolving local issues on drainage projects and potentially reducing more expensive appeals. However, too often there is a lack of knowledge among individuals appointed to serve on this municipally run appeal body. Costs to the Government of Ontario, municipalities and property owners would be reduced if the Province developed and made available on-line training for members of the Court of Revision.
b. Information Videos for Appeal Process under the Drainage Act: Providing on-line training opportunities for individuals planning to appeal to the Court of Revision or Tribunal. The training should include information on the appeal body, the appeal process and preparation for the appeal. This could help landowners know how the appeal process work reduce and could potentially reduce frivolous appeals.
c. On-line training opportunities for Conservation Authorities: Conservation Authorities that are not regularly involved in Drainage Act projects and are unsure of their responsibilities throughout the process could benefit greatly on training that could inform them of such.

8. Add a deadline for a petitioner to appeal to the Tribunal if petition has been denied.