Report to/Rapport au :
Agriculture and
Rural Affairs Committee
Comité d'agriculture et des affaires rurales
and Council / et au Conseil
29 June 2010 / le 29 juin 2010
Submitted by/Soumis par : Agriculture and Rural Affairs Committee
Comité de
l’agriculture et des affaires rurales
Contact Person / Personne-ressource : C. Zwierzchowski, Coordinator, Agriculture
and Rural Affairs Committee / Coordonnateur, Comité de l’agriculture et des
affaires rurales
Legislative Services, City Clerk and Solicitor’s Department / Services
legislatifs, Direction du greffier municipal et chef du contentieux
(613) 580-2424, ext. / poste 21359
Christopher.Zwierzchowski@ottawa.ca
SUBJECT: |
UPPER FLOWING CREEK MUNICIPAL DRAIN |
|
|
OBJET : |
INSTALLATIONS
MUNICIPALES DE DRAINAGE UPPER FLOWING CREEK |
REPORT RECOMMENDATION
That the Agriculture and Rural Affairs Committee recommend Council
adopt the Engineer's Report for the Upper Flowing Creek Municipal Drain and
give first and second reading to the attached By-law in accordance with Sections 42 and 45 of the Drainage Act of Ontario.
Que le Comité de
l’agriculture et des affaires rurales recommande au Conseil municipal
d’approuver le rapport de l’ingénieur concernant les installations municipales
de drainage Upper Flowing Creek et de présenter en première et deuxième
lectures le règlement ci-joint, conformément aux articles 42 et 45 de la Loi
sur le drainage de l’Ontario.
At its meeting of 27 May 2010, the Agriculture and
Rural Affairs Committee (ARAC) considered an original report pertaining to the Upper Flowing Creek Municipal Drain
(appended as Attachment 1, ACS2010-ICS-ESD-0016). At
that meeting, the Committee deferred consideration of the report recommendation
to its meeting of 8 July 2010 to allow for greater consultation with
residents affected by the proposed works.
DISCUSSION
All pertinent information is included in the original report referenced below at “Attachment 1” and an extract of Draft Minute from ARAC's meeting of 27 May 2010 is included at “Attachment 2” for point of reference.
As per original report, attached at “Attachment 1”.
As per original report, attached at “Attachment 1”.
As per original report, attached at “Attachment 1”.
As per original report, attached at “Attachment 1”.
SUPPORTING DOCUMENTATION
Attachment 1 - Deputy City Manager’s report (Infrastructure Services and Community Sustainability) dated 20 May 2010 (ACS2010-ICS-ESD-0016).
Attachment 2 - Extract of Draft Minutes, 22 April 2010.
As per original report, attached at “Attachment 1”.
ATTACHMENT 1
Report
to / Rapport au:
Agriculture
and Rural Affairs Committee
Comité de l’agriculture et des affaires
rurales
and Council / et au Conseil
Submitted by / Soumis par: Nancy Schepers,
Deputy City Manager / Directrice municipale adjointe; Infrastructure Services and Community Sustainability /
Rideau-Goulbourn (21) |
|
Ref N°: ACS2010-ICS-ESD-0016 |
SUBJECT: |
|
|
|
OBJET : |
REPORT RECOMMENDATION
That the Agriculture and Rural Affairs
Committee recommend Council adopt the Engineer's Report for the Upper Flowing
Creek Municipal Drain and give first and second reading to the attached By-law
in accordance with Sections 42 and 45 of the Drainage Act of
Ontario.
RECOMMANDATION DU RAPPORT
Que le Comité de
l’agriculture et des affaires rurales recommande au Conseil municipal
d’approuver le rapport de l’ingénieur concernant les installations municipales
de drainage Upper Flowing Creek et de présenter en première et deuxième
lectures le règlement ci-joint, conformément aux articles 42 et 45 de la Loi
sur le drainage de l’Ontario.
BACKGROUND
Upper Flowing Creek is located in Goulbourn Ward and lies generally to the south and west of Stittsville and to the north and west of Richmond. The drainage area is bounded by the Jock River and the Carp River watersheds to the north, Hobbs Municipal Drain to the west, the Faulkner Municipal Drain to the east and outlets to the Flowing Creek Municipal Drain to the south. A map of the area, including the affected drainage area is attached as Document 1.
In 2006, the City of Ottawa was served with a petition for drainage works under Section 4 of the Drainage Act, R.S.O. 1990. Robinson Consultants Inc. was appointed by the City of Ottawa in October 2006 to prepare an Engineer’s Report under the Drainage Act, R.S.O. 1990 to address these modifications and drainage issues within the Upper Flowing Creek watershed. The required On-site Meeting was held on 23 October 2006 at the former Township of Goulbourn offices.
The Drainage Act prescribes the process and timelines that must be followed for any modification or construction of a municipal drain. (The “Þ” below indicates the current step in the process for the Upper Flowing Creek Municipal Drain.) In brief, the process includes:
· Council appointment of the Drainage Engineer (12 July 2006);
· Conduct an On-site Meeting with affected landowners to review the proposed modifications, (23 October 2006);
· Submission of the Engineer's Report to the Clerk (March 2010);
· Þ Conduct a Meeting to Consider – (The meeting of the Agriculture and Rural Affairs Committee to consider the Engineer’s Report and the By-law (Document 2) presented in this report) (27 May 2010);
· Council approval of the Committee recommendation and first and second reading of the By-law (subject to the outcome of the Meeting to Consider and associated appeals process) (9 June 2010);
· Convene a Court of Revision – (A meeting of the Agriculture and Rural Affairs Committee where landowners may appeal their assessment. Notices to be sent out within 30 days of provisional adoption of the By-law and Court of Revision to be held between 20 and 30 days of notices being sent). Committee may direct the Engineer to revise the assessment contained in the report. All affected landowners must then be advised of any revisions and the Drainage Act contains provisions for further appeal by landowners of their assessment within prescribed timeframes;
· Third reading of the By-law at Council;
· Construction of the drainage works; and,
· Assessment of the costs to benefiting landowners and road authorities (2010).
This report, places the Engineer’s Report, dated March 2010 before the Agriculture and Rural Affairs Committee as the Meeting to Consider as required by the Drainage Act. Pursuant to Section 41 of the Drainage Act, within 30 days of the filing of the Engineer’s Report the initiating municipality shall send a copy of the report and notice of the Meeting to Consider to the various landowners, municipalities, conservation authorities and utilities as described in the Act. The time for filing the Engineer's Report was extended under Section 39(1) of the Drainage Act by Council resolution on 10 December 2008.
DISCUSSION
The Upper Flowing Creek drainage area has experienced increased flooding in recent years due to changes to subwatershed boundaries related to ditching on private property, new residential development, aggregate resource operations, increased development of the Highway 7 corridor, the Trans-Canada Pipeline corridor and significant beaver activity resulting in an increase in peak rate and volume of runoff in the drainage basin. In particular, a large amount of surface water that should be conveyed via Flowing Creek is being directed to the adjacent Hobbs Municipal Drain watershed. The fact that Upper Flowing Creek does not have status under the Drainage Act has prevented the City of Ottawa staff to conduct preventative maintenance, manage beaver activity and restrict or correct unauthorized modifications to the watercourse and its watershed.
The northern half of the Upper Flowing Creek drainage area encompasses part of the Provincially Significant Wetland (PSW) known as the Goulbourn Wetland Complex. Certain lands within the area requiring drainage have been evaluated under the wetland evaluation process and have initially been found to be considered wetlands through complexing with other nearby Provincially Significant Wetland areas. However, the designation has not been adopted into the City of Ottawa’s Official Plan but rather has been designated by Council as Special Policy Areas which are to be re-evaluated five (5) years after the drainage works have been completed. The Special Policy Areas have been identified within Official Plan Amendment No. 76.
A man-made channel was constructed and improved over time diverting surface water flows from the Upper Flowing Creek watershed into the Hobbs Municipal Drain. The channel diverts flows between the watercourse and the Conley Road Branch of the Hobbs Municipal Drain. When the diversion is coupled with the impact of ongoing beaver activity and ice storm damage, flows within the Upper Flowing Creek have been significantly reduced to the point that large reaches of the watercourse have no flow during periods of the year. Conversely, this diversion and the lack of maintenance within the Upper Flowing Creek watershed has resulted in increased flows in the Hobbs Municipal Drain. The Engineer’s Report recommends removal of the diversion which will restore the flows to the original watercourse, Upper Flowing Creek, significantly reducing the risk of flooding and property damage along the Conley Road Branch and in the Hobbs Municipal Drain in general. Robinson Consultants Inc. was retained by the City of Ottawa to investigate this diversion and, in June 2006, submitted a report to the City entitled “Drainage Investigation-Hobbs Drain Extension-Conley Road Branch”.
External to the Drainage Act process a Provincially Significant Wetland designation was placed on several properties within the watersheds of Upper Flowing Creek and the Hobbs Municipal Drain. In consideration of the disputed PSW designation on several properties, Council amended and carried the recommendation of the Agriculture and Rural Affairs Committee (22 June 2006) giving direction for the removal of the diversion, supporting the petition for drainage works and approving the creation of Special Policy Areas in the Official Plan which are to remain as such until they can be re-evaluated five (5) years after the completion of the drainage works.
Proposed Drainage Works
The Engineer’s Report sets specific details for the modified watercourse. Please refer to the Upper Flowing Creek Municipal Drain Location Required Work Areas Plan, herein attached as Document 2, for further details for a high level overview of the required changes.
With Council’s approval of Upper Flowing Creek as a Municipal Drain, no further changes to the drain may be undertaken without proper approvals under the Drainage Act and other related regulatory approvals. Should unauthorized modifications or alterations to the drain occur, the City can intercede with legal action, if required, to address.
Key among the recommended modifications to be constructed is the infilling/blocking of the diversion ditch between the Upper Flowing Creek and Hobbs Municipal Drain watersheds. This will ensure that flows are re-directed into the Upper Flowing Creek, their natural watershed.
A short section of the drain will be diverted from the north side of Flewellyn Road to the south side to eliminate the need for large culverts under private entrance ways along the north side of Flewellyn Road.
Another section/area/branch of the Drain will be relocated to the north of the Flewellyn Road right-of-way (ROW) in the interest of public safety by eliminating the need for a ditch larger than that required to handle road water runoff. This relocation will also benefit fish habitat in the Drain by removing the section of drain currently in the ROW from the influence of road maintenance operations such as salting and periodic ditch cleaning.
Modifications to the watercourse will include some deepening and widening of the channel to provide sufficient outlet. Other improvements will include the repair and reinstatement of areas of the watercourse affected by erosion as well as the implementation of bioengineering and standard erosion control measures.
Existing beaver dams currently within the watercourse will be removed, thereby restoring flow. With the designation as a Municipal Drain, the City’s Drainage Superintendents will be able to re-enter the Drain in the future on an as-needed basis to remove beaver dams restoring and maintaining normal flows.
Several road, farm and private property crossings, i.e. culverts, are recommended for installation, replacement or lowering to ensure appropriate drainage.
An extensive fish habitat mitigation and compensation plan has been developed and approved for this drainage works. Features have been incorporated into the drainage works design to minimize impacts on fish habitat and other natural features.
In summary, the new Engineer’s Report recommends modifications and improvements, including some deepening and widening of the existing channel together with bank restoration and stabilization, and the installation of fish habitat measures, all with the intent of restoring adequate drainage to the area.
The Rideau Valley Conservation Authority (RVCA), Fisheries and Oceans Canada (DFO) and the Ontario Ministry of Natural Resources (MNR) have been consulted on the project and have been provided with a copy of the Engineer's Report. In consultation with the RVCA and DFO a comprehensive sensitivity analysis, fish habitat impact assessment and mitigation plan has been prepared and incorporated into the drainage works and includes: riparian vegetative plantings; bank erosion protection; areas of gravel and cobble substrate; refuge pools habitat areas; drain inlet and outlet erosion protection measures; and a construction monitoring plan. The Engineer's Report identifies the locations of the various environmental features. A qualified biologist will form part of the project team during construction. Necessary regulatory approvals have been received.
Pre-screening of the proposed drainage works has been completed by the MNR with regard to the Endangered Species Act (ESA) and a Letter of Advice issued by the MNR. The Screening Report and Letter of Advice are provided in Appendix F of the Engineer’s Report and provide direction for dealing with and mitigating impacts on species of note including butternut trees and spotted turtles.
Certain lands within the area requiring drainage have been evaluated under the wetland evaluation process and have initially been found to be considered wetlands through complexing with other nearby Provincially Significant Wetland areas. However, the designation has not been adopted into the City of Ottawa’s Official Plan but rather has been designated by Council as Special Policy Areas which are to be re-evaluated five (5) years after the drainage works have been completed. Other properties have been re-evaluated at the request of the landowners and have had the wetland designation removed.
The drainage problems in the area are, in large part, the result of extensive beaver activity on Upper Flowing Creek, which has not only altered the natural drainage patterns but has limited flows in the creek itself to the point where sections of the creek are dry during summer months. Through the Drainage Act process, the Engineer will be able to not only allow for the management of the beaver but also provide for and incorporate erosion and sediment control measures as well as fish habitat enhancement measures which will improve the functionality and health of the watercourse and allow for future maintenance of the watercourse to protect these features. The Engineer’s Report and By-law will also define legal subwatershed boundaries thereby preventing future unauthorized changes to the waterway and its associated subwatershed and ensure legal and sufficient outlet in perpetuity.
The Upper Flowing Creek Municipal Drain will continue to provide outlet for surrounding rural roads and lands and its status under the Drainage Act will allow for the provision of future maintenance, as required, by the municipality. Affected landowners have been consulted and provided with a copy of the Engineer’s Report and notified of the date, time and location of the Meeting to Consider.
CONSULTATION
The On-site Meeting, as required under the Drainage Act, was held on 23 October 2006. Affected landowners, agencies and utilities in the watershed were notified in advance of the meeting.
Dialogue with some of the original petitioners has been ongoing from the outset.
A landowner information meeting to present the Engineer’s findings was held in October 2009.
Assessed landowners have been notified of the Meeting to Consider and have been provided with a copy of the Engineer’s Report, as required.
The Rideau Valley Conservation Authority, Ontario Ministry of Natural Resources and Fisheries and Oceans Canada have been consulted on the project and have been provided with a copy of the Engineer's Report. Necessary approvals have been received.
The Councillor for Ward 21 is aware of this report and the proposed drainage works.
Although there are no legal/risk management impediments to implementing
the drainage works as recommended in this report, it should be noted that there
is a potential for significant external legal costs to be incurred by the City
Clerk and Solicitor Department with regard to this matter.
As noted in the “Background”, “Proposed Drainage Works” and “Financial
Implications” sections of this report, there is a significant amount of work to
be done. The “Financial Implications” section indicates the following: “The
estimated total cost of the drainage works, including the Engineer's Report and
associated studies, is $1,640,000. Of this amount, $1,200,000 is to be assessed
to benefiting property owners and $440,000 to the City.”
The Engineer’s Report
indicates that 156 landowners have been assessed for a portion of the
construction cost of the drainage works. There is a very real potential that a
significant number of assessed landowners will file an appeal with the Court of
Revision in dispute of their assessments. It is anticipated that a significant number
of hours of legal counsel work
will be required within a tight 60 day period. Thus, the bulk of the legal
services associated with these drainage works will need to be outsourced.
In addition, the members of the Court of Revision, similar to the
City’s License Committee, require independent legal advice with respect to
legal issues arising at any hearings of the Court of Revision and accordingly,
external legal counsel will also need to be retained for any legal advice
required by the members of the Court of Revision.
CITY
STRATEGIC PLAN
These works will fulfill the City’s 2007 – 2010 Strategic Plan service delivery goals by improving drainage in the area, and managing infrastructure in a cost effective and efficient manner.
There are no technical implications.
FINANCIAL
IMPLICATIONS
The estimated total cost of the drainage works, including the Engineer's Report and associated studies, is $1,640,000. Of this amount, $1,200,000 is to be assessed to benefiting property owners, and $440,000 to the City.
Project costs have
and will be paid initially by the City of Ottawa, Wastewater and Drainage
Operations Branch, Environmental Services Department, and will be recovered
through assessments/recoveries to the benefiting landowners. Funds have been approved in the 2010 Capital
Budget in internal order 902960 Municipal Drains Improvements. The City’s share of $440,000 will be
identified and included in the Public Works Department’s 2011 Draft Capital
Budget.
SUPPORTING DOCUMENTATION
Document 1 – Upper Flowing Creek Municipal Drain Location Plan
Document 2 – Upper Flowing Creek Municipal Drain Location Required Work Areas Plan
Document 3 – Upper Flowing Creek Municipal Drain By-law
A copy of the Engineer's Report
has been provided to all Agriculture and Rural Affairs Committee Members.
DISPOSITION
Upon approval by Council, the City Drainage Superintendent will notify all assessed landowners of the date of the Court of Revision.
DOCUMENT 1
Upper Flowing Creek Municipal Drain Location Plan
Upper Flowing Creek Municipal Drain
Location Required Work Areas Plan
DOCUMENT 3
BY-LAW NO. 2010 -
A
by-law of the City of Ottawa to provide for drainage works and the
future maintenance of drainage works in the City of Ottawa to be known as the Upper
Flowing Creek Municipal Drain.
AND WHEREAS a majority
of the landowners within the drainage basin petitioned the City of Ottawa under
section 4 of the Drainage Act, R.S.O. 1990, c. D.17 (the “Drainage
Act”) in an effort to improve surface and subsurface drainage on
agricultural, rural and residential lands in the drainage basin;
AND WHEREAS Drainage Engineer, Robinson Consultants Inc., was appointed on July 12, 2006 by the Council of the City of Ottawa pursuant to section 4 of the Drainage Act to prepare an engineer’s report for the area requiring drainage and the report entitled Engineer’s Report, Upper Flowing Creek Municipal Drain, Construction and Improvements, Goulbourn Ward - Final and dated March 2010 is on file with the Deputy City Clerk.
AND WHEREAS the section 2.1 on page 3 of the Robinson Consultants Inc., Consulting Engineer’s Report dated March 2010 indicates that “agricultural practices and urbanization, as well as increased development of the Highway 7 corridor, Trans-Canada Pipelines corridor, quarries, and beaver activity have impacted the drainage area, resulting in an increase in peak rate and volume runoff in the drainage basin and in the adjacent Hobbs Drain drainage basin through an undocumented diversion of flow. A significant increase in peak flows as well as flooding of downstream lands within the Hobbs drainage basin has occurred due to the diversion of flow caused in part by blockages in the upstream portion of Upper Flowing Creek.”
AND WHEREAS the section 3.2 on page 5 of the Robinson Consultants Inc., Consulting Engineer’s Report dated March 2010 indicates the drainage basin and limits as follows: City of Ottawa, formerly the geographic Township of Goulbourn, more specifically Lots 15 and 16, Concession XII, Lots 14 through 18, Concession XI, Lots 14 through 20, Concession X, Lots 15 through 22, Concession IX, Lots 17 through 23, Concession VIII, Lots 21 through 23, Concession VII, and Lots 21 through 24, Concession 6;
AND WHEREAS the estimated total cost associated with the construction, engineering, contract administration, allowances, report and contingencies of the drainage works is $1,640,000 as per Table 8.1 on page 42 of the Robinson Consultants Inc., Consulting Engineer’s Report dated March 2010;
AND
WHEREAS $440,000 is the amount to be charged to the City of Ottawa for
construction of the drainage works in accordance with Schedule A, Summary
Schedule of Assessment, in the Robinson Consultants Inc., Consulting Engineer’s
Report dated March 2010;
AND WHEREAS the remaining cost of the construction of the drainage works, $1,200,000, is to be charged to the landowners in the drainage basin in accordance with Schedule A, Summary Schedule of Assessment, in the Robinson Consultants Inc., Consulting Engineer’s Report dated March 2010;
AND WHEREAS Council of the City of Ottawa is of the opinion that the drainage of the area is desirable;
AND WHEREAS Council of the City of Ottawa considers it desirable to give this by-law 1st and 2nd reading on June 9, 2010 so that it is provisionally adopted pursuant to Section 45 of the Drainage Act:
AND WHEREAS the Upper Flowing Creek Municipal Drain, upon enactment and passage of this by-law, shall be maintained in accordance with the provisions of the Drainage Act;
THEREFORE the Council of the City of Ottawa enacts as follows:
1. The report entitled Engineer’s Report, Upper Flowing Creek Municipal Drain, Construction and Improvements, Goulbourn Ward - Final dated March 2010, filed with the Deputy City Clerk, is hereby adopted and the drainage works as therein indicated and set forth is hereby authorized and shall be completed in accordance therewith.
2. The Corporation of the City of Ottawa may borrow on the credit of the Corporation the amount of $1,640,000 being the amount necessary for construction of the drainage works.
3. The Corporation of the City
of Ottawa may arrange for the issue of debentures on its behalf for the amount
borrowed less the total amount of:
(a) grants received under Section 85 of the Act;
(b) commuted payments made in respect of lands and roads assessed within the municipality;
(c) money paid under Subsection 61(3) of the Drainage Act; and,
(d) money assessed in and payable by another municipality,
and such debentures shall be made payable within ten (10) years from the date of the debenture and shall bear interest at a rate to be set by the City of Ottawa.
4. $440,000 to be charged to the City of Ottawa for the construction of the drainage works is assessed for special benefit.
5. The
remaining cost of the construction and future maintenance of the drainage works
shall be charged to the landowners in the drainage basin in accordance with
Schedule A, Summary Schedule of Assessment, of the Robinson Consultants Inc.,
Consulting Engineer’s Report dated March 2010.
6. All net assessments of $1,000.00 or less are payable in the first year in which the assessment is imposed.
7. This by-law comes into force on the passing thereof and may be cited as the “Upper Flowing Creek Road Municipal Drain Improvement By-law, 2010”.
ENACTED AND PASSED this XXth day of September 2010
CITY CLERK MAYOR
BY-LAW NO. 2010 –
-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-
A by-law of the City of Ottawa to provide for drainage works in the City of Ottawa to be known as the Upper Flowing Creek Municipal Drain.
-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-
1st Reading….…….…June 9, 2010
2nd Reading……….....June 9, 2010
3rd Reading………….
-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-
Enacted by City Council at its
meeting of Sept XX, 2010.
-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-
LEGAL SERVICES
CLC/ File
COUNCIL AUTHORITY:
The Drainage Act, sections 4, 42, 45,
63, 74 and 84
ATTACHMENT 2
Extract
of draft ARAC
minutes 56 27
MAY 2010 |
|
extrait
de l’Ébauche du procès
verbal 56 du CAAR le
27 MAY 2010 |
10. UPPER FLOWING CREEK MUNICIPAL
DRAIn
INSTALLATIONS MUNICIPALES DE drainage upper
flowing creek
ACS2010-ICS-ESD-0016 RIDEAU-GOULBOURN
(21)
Prior to
Committee’s consideration of this item, the Chair read the following statement:
“In accordance with Section 42 of the Drainage Act notice is hereby given
as follows to all persons present at this meeting:
Any person who has signed the petition for the area requiring drainage
as described in the Engineer’s Report may withdraw from it at any time before
the recommendations in the report “Upper Flowing Creek Municipal Drain” are
approved by the Council of the City of Ottawa.
A person’s written notice of
withdrawal from the petition must be delivered to the City Clerk &
Solicitor on or before June 8, 2010 July
13, 2010.
Any person present who owns land with the area requiring drainage as
described in the Engineer’s Report may sign the petition for the drainage works
on or before June 8, 2010 July
13, 2010. Any person wishing to sign the petition should contact the Office
of the Drainage Superintendent at 613-580-2424 ext 25008 to arrange an
appointment to sign the petition.
If, after the removal and addition of names from the petition, the Section
4 requirements of the Drainage Act are not met, then the original petitioners
are liable to pay to the municipality the expenses incurred by the municipality
in connection with the petition and the engineer’s report.
If the number of names on the petition meets the requirements of Section
4 of the Drainage Act, the Council of the City of Ottawa may proceed to adopt
the Engineer’s Report dated March 2010 and no person who has signed the
petition may thereafter be permitted to withdraw.”
Councillor Thompson introduced
Councillor Brooks, who addressed the audience and emphasized the importance of
the present meeting as the next stage in a process that had been ongoing since
at least 2004, regarding the petition for Municipal Drain status for the Upper
Flowing Creek (UFC) drainage project. He
acknowledged that for many in attendance, this project had, at a current estimate
of $1.6 million, become prohibitively expensive, well beyond the original
$200,000.00 to $250,000.00 the original petitioners had signed on for. The Councillor told residents that all
options would be presented, and that all concerned parties including residents,
the Committee, and Council, would be faced with making a decision as to whether
or not to proceed with the project.
Chair Thompson introduced Mr. Dave
Ryan, Project Manager, Municipal Drainage, who in turn introduced Messrs. Dixon
Weir, General Manager, Environmental Services, and Andy Robinson, P.Eng., the
Council-appointed Drainage Engineer, Robinson
Consultants Inc. Mr. Ryan explained
that on 12 July 2006, Council considered a petition for drainage works under
Section 4 of the Drainage Act (DA)
and appointed Mr. Robinson as the engineer of record to prepare an Engineer’s
Report, which was submitted to the Office of the City Clerk in March of this
year. He further explained that the
current meeting was being held under Section 42 of the DA for the purpose of considering the technical aspects of the report, following which, a future meeting
will be held, with Committee convening as a “Court of Revision” to deal with
individual assessments, depending upon the outcomes of the current meeting and
that of City Council.
The Committee then received a
detailed PowerPoint slide presentation from Mr. Robinson, which served as an
overview of the project (held on file
with the City Clerk). Mr. Robinson’s
report, outlining the details (required under the DA), and presentation included a history of the UFC Municipal Drain
and project, originally initiated as a petition by local landowners for
improved surface and subsurface drainage on agricultural and residential lands
within the UFC drainage basin.
Councillor Brooks commented that
residents had originally signed on to this project with
the understanding that the proposed works would involve the removal of beavers
responsible for area flooding, mitigating measures to block the flow of water
illegally being diverted from another watershed, and work along a two-kilometre
stretch between two Concession Roads. He
noted the project had expanded to encompass 14 kilometres, which the
petitioners had not expected, and he asked the engineer for an explanation of how
this had happened.
Mr. Robinson said that the DA requires the Drainage Engineer to
ensure that drains are taken to an adequate outlet, based on the engineer’s
best judgement. In working on this
drain, he explained that measures need to be taken to improve downstream
conditions, i.e., erosion and culvert replacement, to accommodate an expected
increase in water flow resulting from works to include the eventual remediation
of previous works which diverted water inappropriately into the Hobbs Drain. In response to additional questions from
Councillor Brooks, Mr. Robinson confirmed that people along the full length of
the subject watercourse area would be assessed, albeit differently. He outlined that the assessment area had been
broken into sections to make assessments easier now and for future maintenance
work, as required. Noting that the
principle of the DA is that residents
pay only for the part of the drain downstream of where they are contributing
their portion of the runoff, Mr. Robinson referenced a map in his slide
presentation to illustrate how residents of Section 1, closer to the drain
outlet, would pay for Section 1 runoff, whereas residents of Section 2, farther
up the watercourse, would pay for part of their own section in addition to part
of Section 1, and so on.
Breaking down the project cost of
approximately $1.6 million (to date), Mr. Robinson reported that the City had
been assessed (figures approximate) $400,000.00 and property owners had been assessed just over
$1 million, with a $45,000.00 back-charge for fish habitat studies requested by
the Rideau Valley Conservation Authority (RVCA) on behalf of the Department of
Fisheries and Oceans (DFO) and a Cut-off Benefit assessment of $140,000.00 to
residents along the Conley Road branch of the Hobbs Municipal Drain.
Councillor Brooks stated that in
discussions with the RVCA Board, he had been informed that the RVCA, backed by
legal advice it had obtained, had indicated that it would not contribute
towards the $45,000.00 fish habitat study, which the Councillor noted would
subsequently be borne by residents. Mr.
Robinson then outlined several steps in an appeal process, should residents
believe they had been unfairly assessed, beginning with a Court of Revision, subsequent to which, appeals could be brought to
a Drainage Tribunal for further
adjudication.
Responding to a question regarding
total costs to the City including the associated works, Mr. Robinson explained
that the cost for culverts was in the area of $1.8 million, resulting in an
overall project cost of around $3.4 million.
He added that due to necessity, one culvert had already been replaced,
whereas the replacement of others might be accelerated because of this project. He further explained that should the project
proceed, the Roads Branch of the Public Works Department would be obligated to
perform the work on the culverts at the same time as work was being done on the
drain. Noting he could not speak to
departmental budget allocations for such work, Mr. Robinson pointed out that
the proposed work would not be done this year, but was being projected to be
done within the next two years. He added
that the consultants had met with the appropriate members of staff, who had
been alerted to this matter.
Councillor Brooks commented that in
reviewing the costs, it was clear that there was a disparity between what
people believed they were buying into versus what they were now obligated to
pay for, making drainage, a once-affordable necessity, now unaffordable.
In response to a query from
Councillor Jellett as to whom would pay the Hobbs Drain Cut-off amount of
$140,000.00, Mr. Robinson explained that a future update of the Hobbs Drain
report would presumably assess this amount back to property owners along the
Hobbs Drain, who would pay for the ‘benefit’ of a reduced amount of water
flowing through their drain due to the elimination of the improper diversion.
Referencing a slide from Mr.
Robinson’s presentation listing the cost of work required by Federal and
Provincial bodies at over $500,000.00, Councillor Jellett singled this out as
the primary reason such drainage works were unaffordable. He emphasized the need to have the bodies
requesting such work to pay for it themselves, but acknowledged that such was
not within the City’s ability to enforce.
However, he added that Councillor Thompson will address this issue with
the Rural Ontario Municipal Association
(ROMA) and that the City’s rural Councillors will also lobby area MP’s and
MPP’s on this matter. He then asked Mr.
Robinson to estimate how much of the flooding was man-made (i.e., quarries,
municipalities, etc.) versus as a result of natural activity (beavers, erosion,
etc.). Mr. Robinson acknowledged that a
combination of natural and man-made factors were involved, but that his
assessment had not been specific enough to delineate such.
Councillor Jellett wondered whether
there was any way to apportion more of the cost to the municipality, but Mr.
Robinson said he believed he had objectively assessed the City a fair and
reasonable amount, noting the City’s assessment included the full cost of
moving the drain from the road allowance as being of benefit to the City, along
with the costs associated with culverts.
He reiterated that should any party feel they had been unfairly
assessed, such assessments could be appealed, as noted earlier.
Responding to questions regarding
scaling back the amount of work being recommended in terms of “nice-to-have” versus “must-have”, Mr. Robinson said he did
not believe this was possible. He
further noted that should the City decide not
to proceed with the project, the original 19 petitioners could bring the matter
to the Drainage Tribunal for action, as he did not believe it was possible for
the City to take no action without
there being some consequence. He
emphasized that should a sufficient number of signatories to the petition
withdraw to the point where the petition was no longer valid, the stipulations
of the DA outlined that the
$365,000.00 incurred to date would be borne by these original 19
petitioners. Mr. Tim Marc, Senior Legal
Counsel, confirmed this, adding that were Council
not to approve the petition, the City would pay the cost.
Referring to drainage work involving
Highway 7, Councillor El-Chantiry asked whether the highway had been included
in the engineer’s assessment. Mr.
Robinson stated that although the works involved a relatively small section in
the watercourse, it had been assessed, as the pertinent section did drain
through Branch No. 1. He added that upon
further review, an increased assessment would be recommended at the Court of
Revision, but noted that the highway’s impact was of lesser significance than
many believed, with most of Highway 7’s reconstruction occurring in areas
outside of the drainage course.
Responding to a question from the Councillor as to why the Province’s
requirement to pay had not been identified in the report, Mr. Robinson
explained that costs had not been separated for assessed landowners (including
the Province’s Ministry of Transportation [MTO]), save for the City of Ottawa’s
portion.
Referencing the history of how an
improper diversion of water from the UFC watershed had created flooding
problems for residents along the Conley Road portion of the Hobbs Drain,
Councillor Hunter asked why the recommendation had been made to redirect the
flow back to UFC, which would require additional downstream work for UFC,
rather than improve the outlet for the Hobbs Drain. Mr. Robinson pointed out that despite past
history, the proposed work had been initiated by a petition for drainage from UFC area landowners. The engineer emphasized that the work will
not involve a quick discharge of backed-up water from the watershed once the
blockage is removed, but that where there is beaver activity, DFO requirements
stipulate that such water be released slowly.
Councillor Qadri pointed out that
there seemed to be a disparity in the assessment apportioned to Highway 7, in
that other landowners had seemingly been assessed based on their total acreage,
versus the assessment for one particular portion of the highway. Mr. Robinson explained that only a certain
portion had been assessed as it had been determined that only this portion was
contributing to drainage through this watercourse, and that other parts of the
highway contributing to drainage were doing so in different areas. Mr. Robinson also clarified that landowners
were only being charged for the portions of their property within the drainage basin, rather than on their total acreage. Responding to a question from Councillor
Qadri as to the flexibility or potential variance of the cost estimates, Mr.
Robinson said that while they did contain an allowance for certain
contingencies, he felt that overall, his estimates were realistic and accurate.
Noting that drainage of the subject
area would be a slow process, Councillor Qadri asked whether all of the
culverts identified in Mr. Robinson’s report would require complete
replacement, or whether work could be done to clear or straighten some of these
in order to minimize the scale of the work.
Mr. Robinson said that almost every suggestion regarding replacement had
been made because of under-sizing or to lower culverts to allow for improved
drainage, in adherence to current City of Ottawa design criteria.
Mr. Terry Hale, Rural Issues
Advisory Committee (RIAC), and Lead on the RIAC Sub-Committee on Drainage and Wetlands, recounted
that RIAC members had discussed this issue in detail at its meeting held the
previous week, and had approved three Motions which he presented to ARAC. Mr. Hale then spoke to a PowerPoint slide
presentation (held on file with the City
Clerk) which served to provide a background summary.
Speaking to the first of his Motions,
Mr. Hale noted that as early as 1988, an earlier engineer’s report had
identified the problems of a blockage and an excavated channel diverting
backed-up water over an unopened road allowance onto Conley Road. Mr. Hale said that rather than fix these
problems, Goulbourn Township had charged residents along Conley Road
$125,000.00 to extend the Hobbs Drain to provide an outlet for this water. Mr. Hale noted the current report’s
identification of the problems was identical, but was recommending the correct
solution; removal of the blockage and remediation of the improper diversion, to
send the water back to where it would drain properly. However, the speaker noted the report was
recommending an assessment of $140,000.00 to those who had already paid
$125,000.00 for a “band-aid solution” in the first place. Mr. Hale said that because of this, RIAC had approved
the following Motion:
WHEREAS the drainage blockage in Flowing Creek and the excavated channel
diverting water into the Hobbs drainage basin were identified in the Totten,
Sims, Hubicki Engineers Report of 1988, and
WHEREAS the solution employed by Goulbourn Township was to extend the
Hobbs Drain to accommodate this diverted water flow from the Flowing Creek
drainage basin, and provide suitable outlet for it, and
WHEREAS the property owners were charged for the cost of this solution,
and
WHEREAS the 2010 Engineers Report from Robinson Consultants also
identifies this drainage blockage and water diversion channel, and recommends
that the same property owners now be charged $140,000 to remove the blockage
and block the water diversion channel, and
WHEREAS such a charge would mean that the property owners were paying
twice for correcting the same problem,
THEREFORE BE IT RESOLVED THAT the Rural Issues Advisory Committee (RIAC)
recommends to the Agriculture & Rural Affairs Committee (ARAC), that this
recommended charge to the property owners in the Hobbs drainage basin be borne
by the City of Ottawa.
Mr. Hale then identified two areas
bounded by Fernbank and Flewellyn Roads, which continue to flood due to beaver
activity and blockages along Branch 1 and along the main UFC drain. He
identified these as the key areas which residents had petitioned to have
corrected, but likened the proffered solution to asking for a Volkswagen and
being forced to purchase a Cadillac, despite neither wanting, nor being able to
afford one. Referencing the involvement
of various environmental and government agencies who were adding to the amount
of work being proposed by demanding additional works and studies, Mr. Hale suggested
there was a need to differentiate between “must have” versus “nice to have”
solutions, given that the costs will be borne by those who had requested a
simple solution that they had believed would be affordable. He then introduced RIAC’s second Motion:
WHEREAS the property owners petitioned under the Drainage Act to have
the flooding conditions in the sections of Flowing Creek between Fernbank Road
and Flewellyn Road corrected through establishment of Upper Flowing Creek as a
Municipal Drain, and
WHEREAS the petitioners were lead to believe that this project would
cost in the range of $125,000 to $150,000, and
WHEREAS the Engineers Report now estimates the cost to be $1,600,000.00
of which $1,200,000.00 is to be charged to the property owners within the
drainage basin, and
WHEREAS the Engineers Report recommends work be undertaken along the
entire 14 km. length of the drain, as far downstream as Brownlee Road, in order
to bring the drain up to current specifications and to provide suitable and adequate
outlet,
THEREFORE BE IT RESOLVED THAT the Rural Issues Advisory Committee (RIAC)
recommends to the Agriculture & Rural Affairs Committee (ARAC), that the
Engineers Report be modified to include only that work which is absolutely
necessary to correct the original problem of blockages within the sections of
Flowing Creek between Fernbank Road and Flewellyn Road. Additional work downstream could be
undertaken at a later date, if it is deemed necessary after the results of this
initial work have been evaluated.
Speaking to the third of RIAC’s Motions,
Mr. Hale clarified an earlier point of contention regarding cost
estimates. He noted that at an on-site
meeting held approximately two years earlier on the property of Mr. Peter
Krauthaker, attended by himself, Messrs. Krauthaker and Westley, and a Robinson
employee, discussions had centred on the drain in general terms, and
specifically on the blockage and excavated diversion on the Krauthaker
property. Mr. Hale said that in response
to questions pertaining to cost, he had been told that most engineer’s reports
for municipal drains fall within the range of between $80,000.00 and
$120,000.00, but because the UFC Drain was larger, costs could be as high as
$135,000.00, with construction costs estimated to be equal to this amount. He pointed out that this was why people had
signed the petition, believing their total costs would be in the range of
between $200,000.00 and $300,000.00.
Referring to the assessment for the
portion of Highway 7 deemed to be contributing to the runoff, Mr. Hale pointed
out that in the 1950’s, the highway, then a portion of Flewellyn Road,
consisted of a 50-foot wide roadway. He
said maps of the era indicated that Flowing Creek did not extend north of
Flewellyn Road, and that there had been no issues with respect to
drainage. He said that moving the
highway to Hazeldean Road, along with additional construction to expand it to a
500-foot right-of-way and to link it to the Queensway, had resulted in vast
increases in surface runoff. Mr. Hale
felt the Province, responsible for highway expansion and for studies related to
fish habitat, should pay what he believed was its fair share, in
compensation. Further, he strongly
advocated that such costs and their remedial works, of benefit to the entire
population and not just adjacent property owners, should be allocated to the
general population through taxation, as reflected in the Motion below:
WHEREAS there has been a considerable increase in the amount of water
flowing through the Flowing Creek drainage basin due to construction of Highway
7 and the subsequent widening of highway 7 to four lanes,
THEREFORE BE IT RESOLVED THAT the Rural Issues Advisory Committee
recommends to the Agriculture & Rural Affairs Committee, that the Engineers
Report be revised to consider the effect of these increased water flows caused
by highway construction and the associated drainage changes, and allocate such
costs to the province in an equitable fashion,
AND BE IT FURTHER RESOLVED THAT the Rural Issues Advisory Committee
recommends to the Agriculture and Rural Affairs Committee that the City
consider that the costs of environmental studies requested by Provincial and
Federal bodies, and the remedial actions arising from these studies, be
allocated to those bodies.
Councillor El-Chantiry informed the
assemblage that Councillor Brooks had agreed to move the above Motions on
behalf of RIAC.
In response to questions from
Councillor Hunter, Mr. Hale clarified that flooding problems were caused not
only by beaver activity, but also by the accumulation of debris and fallen
trees. The Councillor pointed out that
eliminating beaver dams would likely solve little, as beavers would return, as
long as conditions remained favourable.
Mr. Hale informed that the City had embarked on a program to trap
beavers, but that their dams had not been removed. He added that once the area achieved
Municipal Drain status, the City would have the responsibility and authority
for maintenance and upkeep.
Councillor Hunter then commented on
quarry activity, and the likelihood that pumping to de-water quarries had
contributed to increased water runoff.
He asked why RIAC had not moved a motion in this regard. Mr. Hale said RIAC had had insufficient
information to be able to do so, but noted that flooding had been a problem
following Highway 7 expansion since before the quarries had commenced
operations, requiring the upsizing of area culverts from three- to seven-foot
diameters, which he said was still insufficient.
Mr. Jack MacLaren, President,
Ontario Landowners’ Association (OLA), categorized the issue as an intrusion on
landowners’ property rights. He
reiterated previous assertions that new or additional runoff was being created
at the upper end of the watershed because of Highway 7 expansion, quarry
activity, and the construction of new homes and subdivisions. Mr. MacLaren suggested it was unfair to
expect residents along the middle or bottom of the watershed to pay for costs
that should more fairly be borne by those creating or adding to the problems
upstream. He further suggested that
maintenance work, to include the removal of beaver dams, be performed along the
original petitioners’ two kilometre stretch of property to restore the drainage
area to a functional level, prior to making decisions on additional works. He added that residents should not be asked
to pay more than the figure they had originally been quoted and had been
prepared to pay.
Mr. Al Penchuk, an area resident had registered to
speak but opted not to, as he believed the preceding speakers had adequately
summed up his views.
Mr. Mike Westley, a resident in the Flewellyn /
Conley Road area since 1970, read from a prepared statement (held on file with the City Clerk)
echoing many of the points covered by the previous speakers, with an emphasis
on the changes he had witnessed during the past 40 years. He made particular note of the error in
creating the Hobbs extension to drain water from the UFC watershed (originally
designed to handle occasional overflows),
one of the causes of which had been an obstruction identified by engineers in
the mid-1980’s. In addition, Mr. Westley
pointed out that a number of errors had been made by the Township of Goulbourn
in replacing culverts, leading to the flooding of private property, its
eventual designation as Provincially Significant Wetland (PSW), and in not
providing residents with appropriate information regarding alternate
solutions. Mr. Westley also stated that
the residents who had signed on in good faith for a service for which they
believed they were paying a reasonable price, should not be expected to further
suffer increased costs resulting from fish habitat studies demanded by outside
agencies. In conclusion, he asked that
the bodies asking for additional studies be held accountable to pay for same,
that Hobbs Drain residents not be charged costs for drainage emanating from the
UFC watershed, and that costs be fairly allocated to the agencies supplying the
water to this area.
Mr. Ken McRae, a resident of Stittsville, said he
had advocated for the protection of PSW for over two decades. He reminded members that in speaking on
previous occasions regarding proposed drainage works, he had expressed that all
that was needed was the removal of beavers and their dams. He said he did not support the need for
drainage works within PSW, and did not believe that the general taxpayer should
subsidize landowners who wanted to destroy environmental features via the DA.
Referencing earlier comments about excessive water generated upstream,
he stated that people should have taken an interest in such matters a decade
earlier, when a local quarry had applied for approval of its license, permit to
take water, and sewage works. He noted
he had done so at the time, appealing to an Environmental Review Tribunal to
express concerns about the implications for downstream water. He suggested that ARAC bear this in mind for
future quarry applications. Mr. McRae
said he was familiar with the drainage area of Highway 7, and that its
contribution was small. He suggested
that highway expansion had had nothing to do with the amount of water
downstream between Fernbank and Flewellyn Roads, and that to expect MTO or the
Province to pay additional costs for a portion of the drainage works would be
improper. He suggested further studies
in this regard would be a waste of taxpayers’ money. In response to a question from Councillor
El-Chantiry, pointing out that Council does not approve quarry applications,
Mr. McRae noted the City does have approval over their rezoning and Official
Plan Amendments.
Mr. Richard Fraser read from a prepared statement (held on file with the City Clerk),
recounting the 140-year history of municipal drainage in the Province of
Ontario as it relates to today’s DA,
and the changes to municipal drainage cost-sharing agreements over time. He also distributed a fact sheet (also held on file with the City Clerk)
outlining municipal drainage legislation for the Province of Ontario. Mr. Fraser’s presentation touched upon how
drainage projects, once affordable because of government assistance, were now
becoming less so because of increased costs added by conservation bodies who
can demand additional works without having any financial obligation to pay for
same. While acknowledging that such
works may be justified as a benefit to the whole population, Mr. Fraser said it
is unfair to expect such expenses to be borne by those upon whose lands such
works centre. He said that if Council
believes in the preservation of farmland and those who work it, Council should
stand up for its citizens to ensure that the bodies who request additional
works pay their share. Mr. Fraser also
cautioned that the engineer’s report was allocating costs beyond the ability of
the land to generate payment income.
Further, were the project to be abandoned, there would remain a bill
that would still require payment. In
conclusion, he further cautioned that if this injustice is not dealt with,
future needed drainage works will remain unconstructed, as no-one will petition
for drainage no matter how badly such works might be needed, given their
ongoing history.
Mr. Immo Tilgner, P.Eng., having been informed that he could
not ask questions of either Committee or staff directly, submitted a comment
sheet listing a number of questions related to Pool Creek water diversion,
technical aspects of the proposed improvements to the UFC MD, processes dealing
with pollution control and silt build-up, and the effects of ongoing
Trans-Canada Pipeline construction. The
Chair assured that Mr. Tilgner’s questions will be referred to staff and/or the
engineer to be considered and addressed.
Messrs. Pat Fera, John Hutchison and
Peter Doyle,
although registered, did not speak, as they echoed that the preceding speakers
had adequately summed up their shared views.
Mr. Peter Krauthaker, an area landowner, explained that
his was the property referenced earlier by Messrs. Westley and Hale as the one
most affected. He recounted that his
father had purchased 100 acres on Flewellyn Road in the late 1960’s, at which
time the land had been dry. He said
there had been no problems until 1987, when the Township of Goulbourn increased
the size of the existing culvert to 7 x 50 feet, resulting in the flooding of
his farm. Mr. Krauthaker said landowners
had met with a Robinson engineer on his property two years earlier, and had
been told the work to resolve the flooding would cost between $80,000.00 and
$135,000.00. He indicated that neglect by
the Township had transformed 35 acres of his property into PSW, which he said
should never have been so designated. He
expressed frustration and felt that he and others were being penalized by being
asked to pay what had grown to a $1.6 million cost to resolve a problem which
should not have been created in the first place, and which he felt was due to
negligence on the part of Goulbourn, and a failure by the City to acknowledge
and deal with this issue. The speaker
also expressed frustration regarding the issues of local quarries contributing
to excess runoff, which he felt had remained unaddressed, beaver dam-related
flooding, and calls by the RVCA for fish habitat studies. Mr. Krauthaker said that in contacting
trappers to remove the animals, he had been told this was no longer financially
viable, and he reiterated Councillor Hunter’s view that if the dams were
removed but the beavers remained, flooding would continue. As for the RVCA’s demand for fish habitat
studies, he noted fish had never been present until the land had become flooded. In conclusion, Mr. Krauthaker said he
preferred a common-sense approach. He
asked to be provided common-sense answers to help him contribute to a
common-sense solution, but noted that no such answers had yet been provided.
Mr. Mark Russell said he had spent the past year
working on his Bachelor of Science thesis in Environmental Sciences, studying
the area between Flewellyn and Fernbank Roads.
He concurred with the statements of Messrs. Hale and Westley, and emphasized
that during Spring flows, a 1:1 ratio exists between the volume of water coming
across at Fernbank Road and the volume being discharged at Conley and Flewellyn
Roads. During the Summer, however, Mr.
Russell noted this changes to a 21:1 ratio, with Fernbank having the greater,
leading to the flooding which the speaker asserted is caused by the blockage
and redirected flow. He also confirmed
that a local quarry does add to the Spring runoff due to the necessity to begin
pumping water starting in the early Spring, but that the effect of this is less
significant on flows during the Summer months, as the wetland is, by this
point, absorbing the water, retaining it and slowly discharging it later.
Mr. Russell noted another area of
concern in the vicinity of the Capital City Speedway, north of Highway 7 where
residents along Spruce Ridge Road were bothered by their assessment. He drew Committee’s attention to three
culverts across Speedway Road which were not contributing to effective
drainage, as they had remained elevated due to work that had originally been
undertaken in 1977 when Highway 7 had been raised by one metre. Although the roadway and culverts along
Highway 7 were subsequently lowered, the culverts on Speedway Road remained
unchanged, leading to standing water along Highway 7 and assessments against
properties to the north.
In regard to the Hobbs Creek drain
extension, constructed to help drain the Fernbank and Flewellyn Road area, Mr.
Russell said that the elevation drop from Conley and Flewellyn Roads to where
it connects to the Hobbs Creek Drain was insufficient to allow water to flow
properly. The speaker then referenced
work performed on the Hobbs Creek Drain a number of years earlier, where a
contractor had excavated without a permit, for which the contractor had been penalized,
despite the area now having proper drainage and providing a healthy fish
habitat. Mr. Russell said the residents
in the current subject area had thought of undertaking similar work, but had
opted to do things the “right” way, for which they were now being asked to pay
a high price. He commented that in
promoting environmental ethics, charging too high a price to do things properly
might incite people to do things improperly.
In conclusion, as pertained to the maintenance of wetlands, Mr. Russell
offered that in his professional opinion as an environmental scientist, the
area in question was not a wetland, and that the PSW designation should be
reviewed.
Mr. Michael Erland commented on what he perceived as
the unfairness of holding landowners liable for excessive costs accrued over a
lengthy process at the determination of the consulting engineer. He related that when he had signed the
petition, he had been under the impression that the DA dealt with agricultural, and not municipal or industrial runoff
caused by construction. He also said he
had recently written to Council and his MPP asking that the report be suspended
on the grounds that the process was inconsistent with the DA, that the report was inaccurate, inconclusive and that the
costing had been unsubstantiated. He
also asked for an independent third-party audit of the whole process.
Commenting on the Motions proposed
by Mr. Hale and submitted to ARAC on RIAC’s behalf by Councillor Brooks, Mr.
Erland asked for an explanation of the time frames within which a resident
could remove their name from the petition, given that the Motions were, in
part, asking for a reconsideration or reapportionment of the assessed
costs. At Committee’s request, Mr. Marc
explained there was a difficulty related to the Motions pertaining to
financing, which properly belonged before the Court of Revision, the stage subsequent to the deadline for removing
one’s name from the petition. He advised
that in this case, the decision to either leave one’s name on or remove it from
the petition would have to be made prior to the consideration of such Motions. He added, however, that were Committee to
refer the matter back to the engineer for further study, the June 8th
date would no longer be fixed, and the new “target date” would depend upon when
the report would return to Committee for further consideration. Mr. Marc said he believed landowners would be
appropriately notified of the new date in such a case.
Mr. Tom Black explained that his farm is located
at the point at which Upper Flowing Creek joins the Hobbs Creek Drain, and that
in the past, both channels experienced a high volume of fast-flowing water for
two weeks every Spring, but that this had not happened for a considerable time. Speaking to the issues of slope and ditch
maintenance, Mr. Black surmised that rather than performing work on an entire
14-kilometre section of the ditch downstream of Flewellyn Road, it might be
more beneficial to clean out or remove rock from the smaller lead-in ditches
along Flewellyn Road. He related that
the Trans-Canada Pipeline, which owns property along Highway 7, had done so a
number of years ago at its own cost to alleviate problems with water along
Flewellyn Road.
Messrs. Amit Haziz and Alain Tilgner, although registered to speak, had
left by this point in the meeting.
Ms. Debbie Trouten said that roughly half of the 12
years she and her husband had lived on Fernbank Road had been taken up by this
process, which has negatively impacted on their lives. She asked that members of Committee and
Council think of landowners as real people rather than mere statistics when
making their decisions, and to consider the causes of water diversion. She noted that through no fault of their own,
their property had become flooded from drainage along three different areas,
resulting in 40% of their land currently being designated PSW, which had served
to lower its value. Ms. Trouten said she
and her husband were two of the original petitioners, and confirmed that at
earlier meetings, petitioners had been told their costs would be calculated in
the hundreds of dollars, and not in
the thousands. In conclusion, she asked for clarification of
the ramifications of their names being left on the petition versus having them
removed.
Mr. Marc informed that if the
parties were to remove their names from the petition, and the petition no
longer had the numbers to be valid, the $365,000.00 cost to date would be
apportioned equally amongst the petitioners; at roughly $19,000.00 each. If their names were to be left on the
petition and the work were to proceed, the petitioners would pay whatever
assessment would be generated from the drainage report.
Mr. Mark Henry, representing another area
landowner, said people had signed on to the petition based upon a rough
estimate which they had been told would total approximately $200,000.00, yet
now that the process had commenced, the petitioners would be asked to pay
roughly $365,000.00, shared equally, if they wished to have their names removed
from the petition. He asked if Council
would consider an option to defer such costs to allow petitioners to decide
whether or not to remove their names, based upon the merits of the actual
project and what they had originally signed on for.
Councillor Hunter expressed surprise
over some of the views presented. He
suggested that if petitioners collectively did not wish the project to proceed,
it would be cheaper for the City to pay their costs to date, than to continue. He further suggested that the petitioners
meet to discuss and decide what they wanted, and to communicate same to the
Committee. He said it had been believed
that the project would be of benefit to the community, but that it was not the
City’s desire to force anything at the political level.
Having concluded with delegations,
Councillor El-Chantiry said Councillor Brooks would introduce the RIAC motions
for staff comment prior to Committee discussion.
Speaking to Motion No. 1, in brief, “…that the cost of the Hobbs Drainage basin
be borne by the City of Ottawa…”, Mr. Marc explained that this Motion
properly belonged with the Court of Revision, and he recommended that the Motion
be referred to a Court of Revision, if such be held.
With respect to Motion No. 3, in
brief, “…that the engineer’s report be
revised to consider the effect of these increased water flows caused by the
highway, and that the City consider that the cost of the environmental studies
requested by Provincial and Federal bodies and the remedial actions arising
from these studies be allocated to those bodies…”, Mr. Marc advised that
the same advice given above would apply to the first recommendation (i.e., the
effect of increased water flow caused by highway construction, etc.). With respect to the second issue (i.e., the
reallocation of the cost of environmental studies, etc.), he explained that the
City is not in a position to charge such environmental studies to the Province
or to the Federal Government. For this
reason, he recommended that this second active clause of Motion No. 3 be ruled Out of Order. The Committee then opted to deal with Motions
Nos. 1 and 3 prior to the consideration of Motion No. 2.
Councillor Jellett said he would
move referral of Motion No. 1 to the Court of Revision, should it be convened,
at which time he said he would support the Motion, agreeing that it would be
improper to deal with it at this time.
He said he would do the same for the first active clause of Motion No.
3. The Councillor suggested the second
active clause be amended to direct staff to prepare a report, for the
Committee’s next meeting, to allow the City to take an official position to be
presented to the Provincial and Federal Governments, through ROMA, the
Association of Municipalities of Ontario (AMO), the Federation of Canadian
Municipalities (FCM) and all area MP’s and MPP’s.
Responding to questions from Councillors Brooks and Hunter as to
process, Mr. Marc clarified that Committee was not currently in a position to
vote on the above Motions, as the allocation of the finances for the drain is a
matter for the Court of Revision. He
explained that at present, Committee could only make decisions regarding the
engineer’s report, and not on the issues of the assessment and finances. Mr. Marc further elaborated that, assuming
the drainage report was “carried” by Committee and Council, the matter would be
brought before the Court of Revision, where both he and Ms. Crosby would take
the position of representing the City’s interests. He added that were the Court to adopt the recommendations,
legal staff would have a chance to acquire instructions from Council and return
to Committee a third time, but he emphasized that at this stage, he and Ms.
Crosby would no longer be acting in an impartial capacity, but would be
presenting the position of the Council of the City of Ottawa. He informed that Ms. Janet Bradley, Borden
Ladner Gervais LLP, would advise on process at
that time.
Proposing a hypothetical scenario that should Committee not make a recommendation to Council on
the above Motions, Councillor Hunter asked how direction could be sought from
Council for the Court of Revision. Mr.
Marc admitted that such a scenario had never before been encountered, but by
way of comparison, he offered that in the case of the Dowdall Drain, the amount
was modest enough to allow staff to make a decision not to object under delegated authority. As he was uncertain of the current dollar
amounts involved, Mr. Marc said a decision would have to be made as to whether
staff could establish the City’s position, failing which, a report would be
prepared to seek Council’s direction.
While acknowledging this process seemed somewhat awkward, Mr. Marc
assured the Committee that staff would find a way to make things work, in a
process similar to that of the Committee of Adjustment or the License
Committee.
Councillor El-Chantiry referenced DFO’s request for $519,000.00-worth of
fish habitat studies, the cost of which was to be passed on to residents who
had had nothing to do with this request.
He asked if there were a mechanism to request that the agencies
requesting such studies pay for them.
Mr. Marc differentiated this from the current Motion, which was
suggesting that such payments be directly allocated to those bodies. He reiterated that Committee could not do
this, but referred to Councillor Jellett’s request that this matter be taken up
with lobbying groups on behalf of municipalities. He also said that if requested, staff could
compose a letter asking these bodies to contribute, but he offered that the
chances of success for a favourable response were minimal.
There being no further discussion on
Motions 1 and 3, the Committee considered the Motions as follows.
Moved by G. Brooks:
That the following Motion from the Rural Issues Advisory Committee be
referred to the Court of Revision:
That the Rural Issues Advisory
Committee (RIAC) recommends to the Agriculture & Rural Affairs Committee
(ARAC), that this recommended charge to the property owners in the Hobbs
drainage basin be born by the City of Ottawa.
REFERRED
To
the Court of Revision
Moved by G. Brooks:
That the following Motion from the Rural Issues Advisory Committee be
referred to the Court of Revision:
That the Rural Issues Advisory
Committee recommends to the Agriculture & Rural Affairs Committee, that the
Engineers Report be revised to consider the effect of these increased water
flows caused by highway construction and the associated drainage changes, and
allocate such costs to the province in an equitable fashion.
REFERRED
To
the Court of Revision
Moved by G. Brooks:
That staff be
directed to provide comment on the directions outlined in the Motion submitted
by the Rural Issues Advisory Committee to Agriculture and Rural Affairs
Committee, as noted below, and modified to allow staff to prepare a report for the Committee’s next meeting, to allow the City to
take an official position to be presented to the Provincial and Federal
Governments, through ROMA, the Association of Municipalities of Ontario (AMO),
the Federation of Canadian Municipalities (FCM) and all area MP’s and MPP’s:
That the Rural Issues Advisory
Committee recommends to the Agriculture and Rural Affairs Committee that the City
consider that the costs of environmental studies requested by Provincial and
Federal bodies, and the remedial actions arising from these studies, be
allocated to those bodies.
REFERRED
to staff
Speaking to Motion No. 2, Mr. Marc
noted that the direction to refer the report back to the Engineer to perform
further analysis was within Committee and Council’s authority, but he suggested
the engineer might wish to comment. Mr.
Robinson acknowledged Committee could do so, but cautioned that it would have
to provide specific direction as to what it wished to have addressed. He said he felt there was little that could
be changed, as his firm had worked on this matter closely with DFO, the RVCA
and MNR over the course of two years to come up with a reasonable proposal and
solution that met all requirements and provided an acceptable level of drainage,
given that the drain must be taken to an adequate outlet, and while dealing
with a host of different approval bodies.
He suggested that any deferral of proposed works would lead to increased
erosion and greater sedimentation, which would, in turn, exacerbate flooding
over time.
In response to questions from
Councillor Jellett as to whether it was within the Committee’s purview to
specify the areas within which the work could be carried out (i.e., between
Fernbank and Flewellyn Roads), Mr. Marc explained that as a requirement of the DA, the City needs the advice of an
engineer to proceed, and thus it could not provide such direction independently.
Councillor Brooks pointed out that
the engineer could be requested to examine a variety of different issues,
consider additional modifications, etc., although he noted that every such
request would have an associated cost, which he felt was unjustifiable if the
answers already provided were unlikely to change.
Councillor Hunter commented that
erosion and sedimentation were natural processes, yet the ‘environmental industry’ was seeking to
stop such natural evolutionary processes from occurring, the result of which
were costs in the hundreds of thousands of dollars in studies, some of which
the Councillor labelled ridiculous.
However, he acknowledged that such were the rules which governed the
Province, Country, and much of the world at present. Councillor Hunter pointed out that Mr.
Robinson had indicated it was unlikely that he could return with different
advice, and the Councillor suggested Committee should accept this rather than
ask for additional review, given that the engineer was also constrained by
rules from senior levels of government by which he was forced to abide.
Councillor Brooks said he would
support the Motion, as he had originally felt that having work performed
between the two Concessions (between Fernbank and Flewellyn Roads) might have
solved most of the problems.
Councillor Jellett said he supported
what the Motion wished to achieve, but he noted that the
engineer had already indicated additional review would likely result in no
changes to his original recommendations.
Given that approval of the Motion would achieve little more than to
increase costs, Councillor Jellett said he could not support it.
Councillor Brooks asked what the
effect would be of Committee accepting a re-worded Motion, not asking the engineer to perform any additional work. Mr. Marc explained that Committee could not
ignore the legislation, which stipulates that an engineer’s report is required
to proceed. He suggested that if it was
Committee’s intent not to proceed with the project, Council could opt to vote
the report down at its meeting of 9 June, which would result in no work being
undertaken. Under such a scenario, the
City would pay the $365,000.00 in costs incurred to date. Councillor Jellett pointed out that the
current situation would remain unchanged, in that flooding would continue,
property values would remain diminished, and affected farmland would still be
unsuitable for cultivation. He felt it
was important to hear the wishes of the residents, and in particular, the 19
original petitioners, to determine how they wished to proceed. He then asked about the possibility of
deferring the matter to the Committee’s next meeting to allow time for such a
process to occur.
Following a brief pause to review
the pertinent legislation, Mr. Marc informed that there was no time limit,
hence, Committee could agree to defer the matter to its next regular meeting (8
July). He suggested Committee might wish
to give direction to staff to canvass the original 19 petitioning property
owners to determine their intent with regard to proceeding with the drainage
works.
Councillor Brooks felt it would be
good to bring the residents together to see if any common ground could be
found. He reminded those in attendance
that in regard to wetlands, the City had negotiated an agreement with the
Province’s MNR and MOE for a moratorium, and that certain areas identified as
wetlands could shrink if the drainage proved that these areas were not, in
fact, part of a wetland. The Councillor
said that if residents opted not to proceed with the drainage works, the City
could assume the costs incurred to date, but failure to provide proper drainage
would eventually worsen flooding problems and cause the wetlands to grow over
time. While not advocating either for or
against the project, Councillor Brooks suggested residents bear this in mind to
consider potential future scenarios. In
conclusion, he praised those in attendance for their patience and willingness
to listen, acknowledging that this issue had involved a considerable amount of
frustration and stress, but he said Committee would listen to residents’
wishes.
Responding to questions from
Councillor Jellett as to the status of the Motions earlier referred to the
Court of Revision, should this item be deferred to the next ARAC meeting, Mr.
Marc confirmed that if the Court of Revision did not meet, the Motions would expire. Councillor Jellett cautioned that this matter
would not necessarily be concluded with Committee’s meeting on 8 July, as
Council could still take a different position, a fact of which he said
residents needed to be aware. He
suggested that the community meet with Councillor Brooks on this matter to
allow the Councillor to provide context regarding MNR’s involvement. In regard to the City’s Official Plan,
Councillor Jellett asked whether the current Holding Zone designation would
continue, should the work not proceed.
Mr. Marc said that this provision was under appeal, and suggested that
it was difficult to foresee what would occur at the OMB if there was no intent
to proceed with the drainage works. He
suggested that unless Council directed otherwise, the City would likely request
that the Holding Zone remain in place for five years, as he felt this was a
defensible position, given that the Province and City supported the Special
Study Area. However, he suggested that
as this agreement had been reached by special understanding between the City
and the Province, he did not believe such would likely be repeated during a
subsequent review of the City’s Official Plan.
Councillor Jellett asked for a show
of hands from the original 19 petitioners to determine whether they were in
favour of deferring this item to ARAC’s meeting of 8 July to allow residents
time to meet with Councillor Brooks in the interim. An unidentified member of the audience
pointed out there were many names on the list of assessed property owners who,
although not part of the original 19 petitioners, and had not signed the
petition, had still been allocated assessments.
The speaker suggested that instead of a show of hands, it would be
better to poll all affected landowners whose names appeared on this list.
Chair Thompson asked whether
Committee wished to debate the merits of Motion No. 2, at which point
Councillor Hunter raised a Point of Order,
noting the Motion did not speak to sending
the report back to the engineer, but asked that the engineer’s report be modified. Councillor Hunter noted that as Committee did
not have this authority, he suggested the Motion was Out of Order. Chair Thompson
concurred, and ruled the Motion Out of
Order, following which Councillor Brooks withdrew the Motion.
Responding to Chair Thompson’s
request to provide an outline of what the next steps would be for the month
preceding the Committee’s next meeting, Mr. Marc said staff could do so, but
were first awaiting direction from Committee.
In response to a query from an unidentified member of the audience who
had asked why residents were being forced to rely on the opinion of one
consultant, and the possibility of acquiring additional opinions from different
parties, Mr. Marc explained that Mr. Robinson’s firm had been appointed by
Council as the engineer on this file under the requirements of the DA.
The Chair explained he had allowed the question for purposes of
clarification.
Councillor Jellett suggested there
was a possibility that costs could prove lower once the project was tendered,
but also acknowledged that the reverse could be equally true.
Councillor Hunter expressed that he
felt uncertain of what to do, and said he was inclined to support deferral, as
there had been no sense of certainty or unanimity from those who had initiated
the process, other than the shock of discovering they would bear the cost of
the work performed to date, should others withdraw from their petition. The Councillor said that even if the report
were approved at Committee, there would still be sufficient time for residents
to communicate their wishes to Council either individually, or collectively,
through their Ward Councillor by 9 June, the date at which this item would be
scheduled to be considered by Council. Councillor
Hunter felt the original petitioners had a greater say in the proceedings, as
they would be asked to pay a greater share of costs, but he expressed that
Committee and Council would do their best to accommodate residents’ wishes to
either proceed with, or abandon the project, noting both scenarios had merit,
for either improved drainage for residents, or financial savings for the City.
At Councillor Brooks’ request, Mr.
Marc outlined the next steps in the process, should Committee approve the report
and should it rise to Council for its meeting of
9 June. He explained that beyond
standard statutory requirements, Councillor Brooks will likely meet with the
original 19 petitioners and others to provide and receive additional
information or direction before 7 June.
If, by 8 June, no-one has removed their name from the petition, it will
remain valid, and the report will rise to Council on 9 June. Mr. Marc then outlined three different
possible outcomes. First, the 19
petitioners could request that the work proceed. Such would be communicated to Council, where
Council would likely vote in favour of the works and the works would
proceed. The subsequent step would be
the convening of a Court of Revision.
Second, the petitioners could ask that the work not proceed. Council could accept this position, as relayed
by Councillor Brooks, and terminate the project. Under such a scenario, the City would bear
the $365,000.00 cost incurred to date.
Third, the same position with petitioners asking that the work not
proceed might not be accepted by
Council, as Council is not bound to accept such advice. Mr. Marc added that petitioners would still
retain the right of appeal.
Councillor Jellett believed the
solution would be to proceed with the drainage works, while seeking to somehow
lessen the financial burden on the petitioners.
He then asked Mr. Marc to offer his views on the possible outcome of the
Motions referred to the Court of Revision.
Mr. Marc speculated that the Motions, if approved, could lead to appeals
before a Drainage Tribunal by those who might subsequently be assessed at
higher rates, although he said it was impossible to accurately foresee any
outcomes until at least the Court of Revision stage, or perhaps
beyond.
Councillor El-Chantiry suggested
that based on the advice staff had provided, it would be prudent for Committee
to defer consideration of this item to allow Councillor Brooks the opportunity
to communicate with the community and to bring a preferred position back to
Council. While he said he hoped Council
would support Councillor Brooks’ position, he cautioned that the community
consider its options carefully, as this process was the near culmination of a
request for work that had commenced in 2006.
Councillor El-Chantiry acknowledged that the petitioners were hesitant
to proceed because of the unanticipated costs, but said he did not wish the
residents to miss an opportunity to acquire proper drainage, failing which,
their land would remain flooded and devalued.
He promised that the Committee would support the community’s wishes, but
admitted that he could not speak for the rest of Council. In conclusion, he asked that Councillor
Brooks be given clear direction during follow-up meeting(s) with his community.
Speaking to the validity of the
petition, Councillor Qadri asked how many petitioners would need to withdraw
for the petition to no longer be valid.
Mr. Marc directed this question to Mr. Robinson, who explained that for
the petition to be valid, one of two things was required; either a majority of
the property owners in the area requiring drainage, or over 60% of the land
area. Mr. Robinson said that in the
present case, the petition consisted of roughly 54% of the property owners and
87% of the land area, meaning the question would depend on which property
owners decided to withdraw.
There being no further discussion,
Councillor El-Chantiry moved the following.
Moved by E. El-Chantiry:
That consideration of Agriculture and Rural Affairs Committee Agenda 56,
Item 10, Upper
Flowing Creek Municipal Drain be
deferred to the Agriculture and Rural Affairs Committee meeting of 8 July 2010.
CARRIED
Mr. Marc informed that this item was
now scheduled to return for consideration by the Agriculture and Rural Affairs
Committee at its meeting of 8 July, to be held at the Richmond Memorial
Community Centre, 6095 Perth Street, in Richmond. He further clarified that in so doing, should
petitioners choose to remove their names from the petition, the date had
accordingly been extended from 8 June to 13 July, 2010.
The Committee then considered the
report as amended by the foregoing.
Moved by G. Brooks:
That the following Motion from the Rural Issues Advisory Committee be
referred to the Court of Revision:
WHEREAS the drainage blockage in Flowing Creek and the excavated channel
diverting water into the Hobbs drainage basin were identified in the Totten,
Sims, Hubicki Engineers Report of 1988, and
WHEREAS the solution employed by Goulbourn Township was to extend the
Hobbs Drain to accommodate this diverted water flow from the Flowing Creek
drainage basin, and provide suitable outlet for it, and
WHEREAS the property owners were charged for the cost of this solution,
and
WHEREAS the 2010 Engineers Report from Robinson Consultants also
identifies this drainage blockage and water diversion channel, and recommends
that the same property owners now be charged $140,000 to remove the blockage
and block the water diversion channel, and
WHEREAS such a charge would mean that the property owners were paying
twice for correcting the same problem,
THEREFORE BE IT RESOLVED THAT the Rural Issues Advisory Committee (RIAC)
recommends to the Agriculture & Rural Affairs Committee (ARAC), that this
recommended charge to the property owners in the Hobbs drainage basin be borne
by the City of Ottawa.
REFERRED
to
the Court of Revision
Moved by G. Brooks:
That the following Motion from the Rural Issues Advisory Committee be
referred to the Court of Revision:
WHEREAS there has been a considerable increase in the amount of water
flowing through the Flowing Creek drainage basin due to construction of Highway
7 and the subsequent widening of highway 7 to four lanes,
THEREFORE BE IT RESOLVED THAT the Rural Issues Advisory Committee
recommends to the Agriculture & Rural Affairs Committee, that the Engineers
Report be revised to consider the effect of these increased water flows caused
by highway construction and the associated drainage changes, and allocate such
costs to the province in an equitable fashion.
REFERRED
to
the Court of Revision
That the Agriculture and Rural Affairs Committee recommend Council adopt
the Engineer's Report for the Upper Flowing Creek Municipal Drain and give
first and second reading to the attached By-law in accordance with Sections 42 and 45 of the Drainage Act of Ontario.
DEFERRED
to ARAC
meeting
of 8 July 2010
Directions to staff
That staff be directed to canvass the 19 original petitioning property owners to
determine their intent with regard to proceeding with the drainage works, and;
That staff be directed to provide comment on the directions outlined in
the Motion submitted by the Rural Issues Advisory Committee to Agriculture and
Rural Affairs Committee, as noted below, and modified to allow staff to prepare a report for the Committee’s
next meeting, to allow the City to take an official position to be presented to
the Provincial and Federal Governments, through ROMA, the Association of
Municipalities of Ontario (AMO), the Federation of Canadian Municipalities (FCM)
and all area MP’s and MPP’s:
WHEREAS there has been a considerable increase in the amount of water
flowing through the Flowing Creek drainage basin due to construction of Highway
7 and the subsequent widening of highway 7 to four lanes…
“THEREFORE BE IT RESOLVED THAT the
Rural Issues Advisory Committee recommends to the Agriculture and Rural Affairs
Committee that the City consider that the costs of environmental studies
requested by Provincial and Federal bodies, and the remedial actions arising
from these studies, be allocated to those bodies.”