RE: Comments on Drainage…

RE: Comments on Drainage Act Discussion Paper

There is not sufficient detail in the discussion paper to understand exactly what is intended. It is unclear to me if you are considering actual changes to the Drainage Act and/or issuing technical bulletins. Therefore, I have organized my comments by general topics.

CREATE A NEW STREAMLINED DRAINAGE ACT PROCESS FOR MINOR IMPROVEMENTS TO DRAINAGE SYSTEMS.

1. Difference between Maintenance and Improvement
There is a big difference between maintenance and improvement projects. The objective of a maintenance project is to repair or maintain a drainage works, or portion thereof, so that it continues to operate according to a previously approved design. A simplified process makes sense for these types of projects as they have been through the legislated scrutiny and consultative and approval processes.

Improvement projects on the other hand, by definition, are changing and/or supplementing the existing and approved design. There is a large range of initiatives that could potentially fit into this category, and there is no financial limitation. The cost of these projects can reach into the millions of dollars.

Here it is important to remember who pays for these projects. These projects are funded by landowners in the watershed through municipal assessments. If the drain is “improved” assessments will be increased beyond what currently exits and what has been through a consultative process with landowners, approvals by various agencies, and city council. It is imperative that this process, which is part of the Drainage Act, be continued so that impacted landowners have a say in what will be done, and the project undergoes the scrutiny of environmental and ecological agencies. If there is a potential to be assessed in excess of $10,000 (an actual case), then the democratic process must be preserved and landowner input retained.

2. Have the Correct Causes of the Problem Been Identified?

a. Management of Engineering Contracts
The objective of the proposed changes to the Drainage Act and/or supplemental technical protocols, seems to be to fast-track improvement projects. The Discussion Paper assumes that the cause of project delays is rooted in a cumbersome process of approvals through various agencies. This assumption likely stems from comments by certain landowners, drainage engineers, and municipalities. But is this the real issue?

My professional background is as a Management Consultant. I specialized in identifying what went wrong on projects and/or programs. I also reviewed process and organizational barriers to achieving targeted outcomes, and recommended actions to remove those barriers. I have had experience in appealing a very large “improvement project.” The project took 3 years to produce an Engineering Report. It was not the delays of an onerous process of approvals that caused this amount of elapsed time.

First of all, the Drainage Act specifies that an Engineer’s Report shall be completed within a year’s time (section 39). When this requirement is not met by the Engineer and/or the municipality, it is all too easy to blame an “onerous process.” I strongly suspect that the real cause is lack of focused effort where time is spent on other projects and activities.

Further, municipalities should be required to exercise basic governance processes, as defined by the internationally recognized Project Management Institute standards which have been adopted long ago by most organizations and private sector firms. Municipalities need to manage these contracted projects properly. They need to have documented requests for improvement projects from those landowners who want the improvements. They need to prepare a Statement of Work which defines required activities and expected deliverables from the contract engineering firm. This document should also include a schedule and a budget. This document then becomes part of the contract and a baseline upon which to govern the project. Any required changes to this document should be formal and agreed upon by both parties. The municipality should require regular written status reports from the contracted engineering firm, which explains any deviations from budget and schedule and documents any issues. The municipality should have regular project review meetings. Minutes should be taken which record attendance, meeting content, and any decisions taken. This rigor should also apply to any meetings required by the Drainage Act, including those with Conservation Authorities, etc, and landowners. These procedures are very basic project management. An unmanaged project will always incur schedule delays and exceed budget. A technical protocol on this issue would be help to control project delay, as well as monitoring adherence to the one year rule within the Drainage Act.

b. Effective Consultation and Collaboration

Adequate stakeholder engagement is another very important principle of project management. The Drainage Act requires consultation with affected landowners and various approval authorities. But is the process employed effective?

Meetings with landowners can be reduced to “information sessions.” Input may not be solicited in an effective manner and insufficient information may be provided in these sessions to enable landowners to provide meaningful input. The activity from the Drainage Act is checked off as done, but no real consultation (which is 2-way communication) has occurred. Failure to communicate and effectively consult with impacted landowners will result in delays through up to three levels of appeal.

As for the various approval authorities, it would be best to take a collaborative rather than a consultative approach. Why not involve them effectively in the development of the design? If they have an opportunity to provide meaningful input into the design of the improvement works and any mitigation activities for environmental concerns, their concerns are more likely to be met and the approval process accelerated. When this is not done, a design prepared by an engineer is put on the desk of someone working in these agencies, who must read it, consult with others in their agency, and either approve or disapprove the drainage works. If these agencies were collaboratively involved during the formulation of the design, the agency activities could happen concurrently with the preparation of the engineers report, and not subsequently. Also it would mitigate the potential need for rework. If the agencies concerns are thoughtfully considered in the design, the likelihood of approval should also increase.

This proposed change to process presupposes that these agencies have the adequate manpower to collaboratively contribute to the design effort. I suggest that the way to address this issue is that the agency charges back time to the engineering project, as funded by the municipality. These agencies should prepare time and budget estimates for their involvement at the onset of the project. This is the way that the private sector operates, and it is an effective way to make sure you have the right people contributing to your project and that contributing parties have sufficient staff.

Considered approval by the various concerned agencies must be maintained, and not be eliminated in any changes to the Drainage Act or in any technical protocols.

ENABLE A SIMPLIFIED PROCESS TO UPDATE THE ENGINEER’S REPORT TO ACCOUNT FOR CHANGES TO THE DESIGN MADE DURING CONSTRUCTION

The Engineer’s Report is a key and important decision document. It is the basis for consultation with watershed landowners. It is the basis upon which agency approvals are granted or refused. It is the basis of a decision by Municipal Councils to approve the project and provide funding. It is the basis upon which landowners will be assessed for the construction and future maintenance of the improved drainage works. It forms the basis for the development of tender documents to implement the works. These are important functions of that document. Municipal and landowner money is at risk. The environment and ecosystems are potentially at risk. And the successful implementation of the proposed solution is at risk.

In order for the Engineering Report to successfully fulfill this function as a decision document, the design must be sufficiently detailed to support those functions. The ones I have seen were not, and I have reviewed many decision documents over the course of my career. So if the real problem is that the Engineer’s Report did not sufficiently consider risks in the construction (due to soil conditions for example), or required design elements, or costs of implementing or maintaining the solution, should that issue not be addressed? Was there a problem associated with insufficient field work, because so much data is now available online? Is the Engineer’s Report really at the level of a Preliminary Report instead of an Engineer's Report and insufficiently developed?

My very real concern is that in implementing a change mechanism, it might encourage municipalities and engineering firms to provide insufficient detail in Engineering Reports because they can always be changed. Also, changes could impact the environment, endangered species, drainage of selected properties, cost, and the level of assessments. These changes require an approval process and an assessment as to whether the change should have been forseen (e.g. inadequate Engineer’s Report).
Statistics for required changes should be kept by the OMAFRA, by Engineering firm, and those firms with excessive number and/or magnitude of changes should be at risk for provincial and/or municipal contracts. These are the elements of basic Quality Assurance.

PROVIDE THE MINISTER WITH LEGISLATIVE AUTHORITY TO ADOPT TECHNICAL PROTOCOLS SUCH AS THE DART PROTOCOL BY REFERENCE IN REGULATION.

What is being proposed here is unclear to me. Is the sole proposed change to the Drainage Act to grant legislative authority to the minister responsible for OMAFRA in order to develop and sign off on technical protocols?

If it is a collaborative process, should not the other agencies indicated in the Drainage Act also have to sign off? I would certainly strongly recommend this, because you are dealing with their responsibilities under the Drainage Act and their responsibilities under other Ontario legislation pertaining to their organizations.

You mention other stakeholder organizations outside of the provincial government. Presumably this would be a consultative and/or collaborative process that would include the public.

Not knowing the proposed content of these Technical Protocols, I have concerns about providing the minister for OMAFRA with legislative authority. Who would ensure consistency with the Drainage Act legislation? Ministers hold political positions and change periodically with an elected government. Elected governments may have different policy positions on the subject content of these Technical Protocols. I see potential for regular shifts in direction as governments change, creating instability in process and confusion.

LOOKING FORWARD INTO THE FUTURE

For a given area of rural land, different Ontario legislation applies. The following important legislation comes to mind:

• Drainage Act
• Conservation Authorities Act
• Source Water Protection Act
• Endangered Species Act

I am not suggesting that one of these concerns should take precedence over another. Rather a drainage solution that balances all of these factors needs to found. Social, Economic, and Environmental concerns need to be considered in any drainage solution and importance needs to assigned to these factors based on the associated risk.

How do we get to the point where such balanced solutions are the norm? I think part of the solution is education. Drainage Engineers need to be educated about environmental and ecological issues so that they are more receptive to including them in their design of solutions. Perhaps a provincial certification program for drainage engineers in environmental/ecological awareness should be considered. The curriculum could include both general awareness of issues and then sample solutions that have been found to be effective. I have proposed earlier in this document a collaborative approach to drainage engineering projects, which I believe to be essential to success.

Whether you believe in climate change or not, you must agree that in recent years we have seen a change in precipitation patterns in Ontario. Rain events produce more intense precipitation and over a longer period of time. It is said the Ontario’s number one risk is flooding. We must find a way to develop drainage solutions that do not increase the risk of flood.

The function of flood plains is to temporarily store excess water until it is absorbed through transpiration (absorption by plants), evaporation, and percolation (filtering down to aquifers or underground runoff). Wetlands are important to flood control because they store water subsurface until it is dealt with by these natural processes. Drainage solutions should not jeopardize this important natural infrastructure. Tile drains reverse the function of wetlands and flood plains, taking water out of the soil and depositing it into municipal drains and then receiving waterbodies. Reversing these natural processes can increase water flow to those receiving water bodies, thereby increasing the risk of flood elsewhere downstream. The cost of losing this natural infrastructure (wetlands and floodplains) is real. It would include:

• Remediation for flooding (where the solution impacts wetlands and floodplains),
• Potential building of artificial, engineered solutions to replace the natural infrastructure that has
been lost due to the “improvement,”
• Remedial costs of polluted water ways, and
• Remedial costs of substitutes for contaminated drinking water.

Flooding of agricultural fields is likely to increase the pollution of water in municipal drains, receiving waterways and potentially aquifers. It is important here to remember that those who live rurally rely on wells and not processed municipal water systems. Large scale commercial farmers do not live on the land.

OMAFRA has the opportunity to pre-empt some of these concerns which would result in drainage projects rejected by the environmental authorities and appeals by landowners opposed to the works. These opportunities include:

• Putting a priority on transitioning farming operations to sustainable practices,
• Tile drainage:
o Do not allow installation of tile drains below the level of the receiving drain
o Do not allow installation of tile drains in all wetlands, not just provincially significant ones.
o Do not allow installation of tile drains in designated flood plains.

It is a myth that is 150 years old that rural Ontario is populated by farmers and those who want to be farmers, if only their land would better support agriculture. There are many reasons why people choose to live rurally. These reasons include significant appreciation for various aspects of nature and recreational opportunities including fishing and hunting. Some individuals may be attracted to more space and the potential for lower costs of living. Others have small scale animal husbandry operations. The rural landscape is different today than it was 150 years ago. Small farms are being supplanted by large commercial operations, many of which do not employ sustainable farming practices and many of which are funded by non-Canadian entities. Foreign temporary workers are employed. Profit seems to be foremost in mind for many of these commercial farms, at the expense of trees, natural vegetation and habitats for flora and fauna. The diverse needs of those who live rurally need to be balanced.

Current assessment formulas employed by drainage engineers also can produce inequitable costs to landowners. These assessment formulas should be reviewed and principles and guidelines established that reflect current rural conditions. Should the owner of a woodlot property (which takes up a very large amount of water through transpiration), or the owner of a wetland property which stores water, be assessed the same amount as the landowner who has deforested the land, tile drained it, and converted wetland to agricultural production? The later burdens the municipal drain. Those who make such significant use of the drain should pay the cost or at least the greatest share.

OMAFRA stands for Ontario Ministry for Agricultural, Food and Rural Affairs. Those of us who live in the country but do not farm are also your constituents.

By the way, your publication number 852, "A Guide for Engineers Working Under the Drainage Act in Ontario," is a well thought out and excellent document that recognizes environmental and ecological considerations. Perhaps a requirement for Engineers to be guided by this document in performing their work is in order. It would improve projects.