7. David AdamS Municipal Drain

Installations municipales de drainage david adamS

COMMITTEE RECOMMENDATIONS

That Council:

1. Adopt the Engineer's Report dated April 2011 for the David Adams 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; and

2. In the event that Council adopts the Engineer's Report dated April 2011 for the David Adams Municipal Drain, direct the City Clerk and Solicitor to appeal the $219,682.00 special assessment that the drainage engineer assessed to the City lands within the area requiring drainage to the Court of Revision under Section 52 of the Drainage Act.

RECOMMANDATIONS DU COMITÉ

Que le Conseil :

1. adopte le Rapport de l’ingénieur en date du mois d’avril 2011 au sujet du drain municipal David-Adams et d’effectuer les première et deuxième lectures du règlement municipal correspondant, conformément aux articles 42 et 45 de la Loi sur le drainage de l'Ontario; et,

2. dans l’éventualité où le Conseil adopterait le Rapport de l’ingénieur en date du mois d’avril 2011 au sujet du drain municipal David-Adams, enjoingne au greffier et chef du contentieux de faire appel auprès de la Commission de révision en vertu de l’article 52 de la Loi sur le drainage de l’Ontario, relativement à l’évaluation spéciale de 219 682 $ des terrains de la Ville dans le secteur nécessitant un drain réalisée par l’ingénieur en drainage.

Documentation

1. Deputy City Manager’s Report, Infrastructure Services and Community Sustainability, dated 31 May 2011 (ACS2011-ICS-ESD-0022).

2. Extract of Draft Minutes, 2 June 2011.

Report to / Rapport au :

Agriculture and Rural Affairs Committee

Comité de l’agriculture et des questions rurales

and Council / et au Conseil

31 May 2011/ le 31 mai 2011

Submitted by / Soumis par : Nancy Schepers, Deputy City Manager / Directrice municipale adjointe; Infrastructure Services and Community Sustainability /

Services d’infrastructure et Viabilité des collectivités

Contact Person / Personne ressource: Dixon Weir, General Manager / Directeur général

Environmental Services / Services envrironnementaux

613-580-2424, x22002 Dixon.Weir@ottawa.ca

Rideau-Goulbourn (21)

Ref N°: ACS2011-ICS-ESD-0022

SUBJECT:	David AdamS Municipal Drain

OBJET :	Installations municipales de drainage david adams

REPORT RECOMMENDATIONS

That the Agriculture and Rural Affairs Committee recommend Council:

RECOMMANDATIONS DU RAPPORT

Que le Comité de l’agriculture et des affaires rurales recommande au Conseil :

1. D’adopter le Rapport de l’ingénieur en date du mois d’avril 2011 au sujet du drain municipal David-Adams et d’effectuer les première et deuxième lectures du règlement municipal correspondant, conformément aux articles 42 et 45 de la Loi sur le drainage de l'Ontario;

2. Dans l’éventualité où le Conseil adopterait le Rapport de l’ingénieur en date du mois d’avril 2011 au sujet du drain municipal David-Adams, d’enjoindre au greffier et chef du contentieux de faire appel auprès de la Commission de révision en vertu de l’article 52 de la Loi sur le drainage de l’Ontario, relativement à l’évaluation spéciale de 219 682 $ des terrains de la Ville dans le secteur nécessitant un drain réalisée par l’ingénieur en drainage.

BACKGROUND

The existing David Adams Award Ditch was constructed in late 1800 and is located in Rideau–Goulbourn Ward west of First Line Road. It runs in a general northerly direction to the Mud Creek Municipal Drain which outlets into the Rideau River. The David Adams drain provides outlet for surrounding agricultural lands and local and regional roads. The area requiring drainage is located in the southwest quadrant of First Line Road and Century Road, Lots 6 to 14 in Concession 1 (Document 1).

The City of Ottawa appointed an Engineer, Robinson Consultants Inc., in 2005 (Report # ACS2005-PWS-UTL-0014) to prepare a report as a result of a petition by landowners, under Section 4 of the Drainage Act, to improve surface and subsurface drainage on agricultural and residential lands in the drainage basin. Agricultural land use has intensified over the years resulting in an increase in cultivated land, expansion of the tile drainage systems, and a higher reliance on proper drainage to protect current land uses. This in turn has resulted in an increase in peak rate and volume of runoff in the drainage basin. In addition, a non-conforming man-made dam constructed on the watercourse in Lot 7 has severely restricted flows along the award ditch.

A new Engineer’s Report, under Section 4 of the Drainage Act, R.S.O. 1990, is required to address the need for improved drainage and the unauthorized changes to the award ditch within the subwatershed. Robinson Consultants Inc. was appointed by the City to prepare this report.

DISCUSSION

The Drainage Act prescribes the process and timelines that must be followed for any modification or construction of a municipal drain. At the writing of this report, the following steps have been completed:

· Petition filed with Clerk’s Office (30 March 2005);

· Council appointment of Drainage Engineer (11 May 2005);

· On-site meeting conducted with affected landowners to review the proposed modifications (05 July 2005); and

· Submission of the Engineer's Report, with all necessary regulatory approvals, to Clerk’s Office (April 2011).

The purpose of this report is to satisfy the Act’s requirements to conduct a Meeting to Consider the Engineer’s report before the Agricultural and Rural Affairs Committee (02 June 2011) and give first and second reading to the attached by-law (Document 3).

This report places the revised Engineer’s Report (April 2011) before the Agriculture and Rural Affairs Committee as the Meeting to Consider, as required by the Drainage Act. Pursuant to Section 41 of the Act, within 30 days of the filing of the Engineer’s Report, the initiating municipality is required to send a copy of the report and notice of the Meeting to Consider to the various landowners, municipalities, conservation authorities and utilities.

The increasingly complex regulatory framework and unique environmental features associated with the existing drainage scheme, and after several years of studies, reviews and requests for additional information from the Drainage Engineer, ultimately resulted in this project being referred by the Rideau Valley Conservation Authority (RVCA) to the Department of Fisheries and Oceans Canada (DFO) for a formal environmental assessment and HADD (Harmful Alteration Disruption and Destruction of fish habitat) authorization under Section 35 of the Fisheries Act. DFO approval, in the form of a Letter of Authorization, was not granted until August 19, 2010.

Subsequent review and approval from the RVCA (Ontario Regulation 174/06 – Letter of Permission) was granted on January 19, 2011. The presence of a heron rookery also necessitated extensive reviews and discussions with the Ontario Ministry of Natural Resources (MNR). 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 (ACS2008-ICS-WWS-0026.)

Proposed Drainage Works

The Engineer’s Report recommended modifications and improvements are identified on the drawing attached to this report (Document 2). The total length of drainage works is 3.75 km and lies within Lots 6 to 14, Concession 1. Modifications to the David Adams Municipal Drain commence at the confluence with Mud Creek, Station 0+000, and ends at Carsonby Road, Station 3+750 in Lot 14, Concession 1.

In summary, the new Engineer’s Report recommends modifications and improvements that include: the installation of a flow control structure through the existing unauthorized man-made blockage, new culverts, some deepening and widening of the existing channel along with bank restoration and stabilization, as well as the installation of fish habitat measures. The drainage works will provide a free-flowing drainage system with improved access and crossings, and provisions for routine maintenance. The total cost of the estimated drainage works, including the cost of the Engineer’s Report and associated studies, is $503,967.58.

Next Steps

Once the Act requirements are satisfied, the following steps are required:

1. Council approval of the Committee recommendation and first and second readings of the By-law (subject to the outcome of the Meeting to Consider and associated appeals process on 2 June 2011);

2. Convene a Court of Revision – a meeting of the Agriculture and Rural Affairs Committee where landowners may appeal their assessment;

3. Send out notices 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;

4. Committee may direct the Engineer to revise the assessment contained in their report;

5. All affected landowners must then be advised of any revisions and the Drainage Act provisions for further appeal by landowners of their assessment within prescribed time frames;

6. Third reading of the By-law at Council;

7. Construction of the drainage works; and

8. Assessment of the costs to benefiting landowners and road authorities (2014).

ENVIRONMENTAL IMPLICATIONS

In consultation with the RVCA, DFO and MNR, a fish habitat impact assessment and mitigation plan has been prepared and incorporated into the drainage works and includes: natural meanders, fish passable grades and culverts, riparian vegetative plantings, bank erosion protection, areas of gravel and cobble substrate, complexed refuge pools habitat areas, drain inlet and outlet erosion protection measures, and a construction monitoring plan. The proposed drainage works also includes features to preserve the established heron rookery. Plan 05020-A2 in the Engineer’s Report identifies the locations of the various environmental features.

RURAL IMPLICATIONS

The David Adams 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 were consulted and provided with a copy of the Engineer’s Report as well as 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 5 July 2005. Affected landowners, agencies and utilities in the watershed were notified in advance of the meeting.

Landowner information meetings were subsequently held on 15 August 2006, 1 December 2009 and 29 March 2011.

Assessed landowners were notified of the Meeting to Consider and provided with a copy of the Engineer’s Report.

The RVCA, MNR and DFO were consulted and provided with a copy of the Engineer’s Report. Necessary approvals have been received.

COMMENTS BY THE WARD COUNCILLOR

The Councillor for Ward 21 is aware of this report and has been consulted on the proposed drainage works.

LEGAL/RISK MANAGEMENT IMPLICATIONS

The meeting to consider the Engineer’s Report dated April 11, 2011, as revised on May 27, 2011 (the “Report”) under Section 41 of the Drainage Act, is the opportunity for Council to make a decision about the Report.

On May 27, 2011 the Engineer revised Assessment Schedules A, B and C in Appendix A to his Report to include a separated column entitled “Special Assessment (Fisheries)” that now includes the sum of $219,682 allocated to the City. The Engineer has advised that this should clarify the fact that the City’s allocation of $219,682 is not a “special benefit” under Section 24 of the Drainage Act or an assessment for a public utility or road authority under Section 26 of the Drainage Act. The revised Assessment Schedules A, B and C in Appendix A to the Engineer’s Report are attached to this report as Document 4.

The Council meeting to consider the Report is also the last opportunity for those persons who signed the Petition for Drainage Works to withdraw from it (by way of written notice to the City Clerk and Solicitor) as well as for other persons owning lands within the area requiring drainage to add their name to the Petition.

Briefly, there are three decision options available to Council:

1. Move to “provisionally adopt” the report (Subsection 45(1));

2. Not adopt the report (Subsection 45(2)); or

3. Refer the report back to the Engineer “if it appears that there are or may be errors in the report of the engineer or that for any other reason the report should be reconsidered” (Section 57).

However, the legislation does not provide Council with the authority to modify the Report to address a land owner’s particular concerns. Therefore, if modifications to the Report are required, it should be referred back to the Engineer under Section 57 of the Drainage Act.

Once an Engineer’s Report is adopted by Council, each owner of land affected by the drainage works has a right to appeal the Report itself under Section 47 and the design of the drainage works under Section 48 of the Drainage Act. To file a Section 47 appeal to the Referee and/or a Section 48 appeal to the Agriculture, Food and Rural Affairs Tribunal, an owner of land affected by the drainage works need not have been assessed for a portion of the cost of the drainage works under the Report.

In addition to a right of appeal under Section 47 and/or Section 48, each owner of land assessed for the cost of the drainage works may file a Section 52 appeal to the Court of Revision disputing the amount of the assessment.

Each notice of appeal must be filed within a short period of time after the City sends out the statutory notice advising: (i) that the Engineer’s Report has been adopted by a provisional by-law; and (ii) of the time and place of the first sitting of the Court of Revision.

Recommendation 2 is that the City Appeal to the Court of Revision (Section 52, Drainage Act) the Special Assessment of $219, 682.00.

Given the significant cost implications to the City for this municipal drain as well as any similar drainage works projects that the City undertakes under the Drainage Act in the future, should Council decide to adopt the Report, Legal Services recommends that the City appeal its assessment under Section 52 of the Drainage Act on the grounds that there is no provision in the Drainage Act to assess to the City the engineering, administration, construction and implementation costs associated with the federal Fisheries Act requirements.

More specifically, in Section 8.4 of the Report entitled, Special Benefit/Special Assessment on page 18, the Engineer states that “a special assessment is charged to the City for the additional cost of the Engineer’s Report and construction associated with the additional requirements to obtain approval for the harmful alteration, disruption or destruction of fish habitat (HADD) pursuant to Section 35(2) of the Fisheries Act. These additional works are required to offset the environmental impacts and are above and beyond the works normally associated with a routine municipal drain.”

The Report goes on to observe that, “although there is no specific provision in the Drainage Act to assess these costs to the City, it is not reasonable that the costs should be assessed to the property owners on the David Adams Municipal Drain.”

Legal Services therefore recommends that, upon adoption of the Report, Council direct the City Clerk and Solicitor to file an appeal under Section 52 of the Drainage Act on the grounds that there is no provision in the Drainage Act to assess to the City the engineering, administration, construction and implementation costs associated with the federal Fisheries Act requirements.

In the Bruce Municipal Drain No. 19 (“Bruce”) case, the Tribunal considered who should pay the Fisheries Act costs associated with the drainage works. In the Bruce case, the engineer had apportioned and assessed all of the Fisheries Act costs amongst all of the properties within the drainage area. The appellants, several property owners within the drainage area, took the position that all of the Fisheries Act costs should all be assessed to the local conservation authority.

Ultimately, the Tribunal decided that, with the exception of the cost of a fish habitat study, the “increased costs of designing and building the drain because of fish habitat, including continued monitoring” were to be apportioned and assessed against all of the properties within the area requiring drainage in accordance with Section 22 (assessment for benefit) and Section 23 (assessment for liability) of the Drainage Act.

The Tribunal also found that the “decision to obtain the fish habitat study was made by the Engineer”, so that the fish habitat study was an environmental study initiated by the Municipality. Therefore, the Tribunal directed the Engineer to amend his report so that the $5,400.00 cost of the fish habitat study was assessed to the Municipality.

It is the position of Legal Services that the principals applied by the Tribunal in the Bruce case to arrive at the conclusion that the Fisheries Act costs could not be assessed to the local conservation authority, apply likewise in this case. In effect, it is suggested that the special assessment of $219,682.00 against the City’s lands in the present case should have been apportioned by the Engineer against all of the properties within the area requiring drainage.

Finally, there is a potential for additional external legal costs to be incurred by the City Clerk and Solicitor Department with regard to this matter as follows:

(i) If the Engineer’s Report is adopted by Council, the City has the option of appealing the special benefit assessment in the amount of $219,682.00 to the Court of Revision;

(ii) If a landowner files an appeal with the Tribunal, the Drainage Act stipulates that the City Clerk and Solicitor is the “clerk of the Tribunal” and is therefore responsible for the administration of the hearing, including coordination of all documentation and correspondence filed by the appellants. The hearing that took place before the drainage Tribunal on August 24th , 2010, in relation to two appeals filed by landowners affected by the proposed modifications and improvements to the Dowdall Municipal Drain required in excess of seventy (70) hours of legal counsel time within the City Clerk and Solicitor Department; and

(iii) 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. Accordingly, external legal counsel will need to be retained for any legal advice required by the members of the Court of Revision.

CITY STRATEGIC PLAN

The proposed works meet several objectives set out in the Council’s 2007 – 2010 Strategic Plan. Once implemented, improvements to the David Adams Municipal Drain will provide a cost-effective solution that balances both environmental protection and maintenance of our infrastructure.

TECHNICAL IMPLICATIONS

There are no technical implications.

FINANCIAL IMPLICATIONS

The estimated total cost of the Drainage works, including the Engineer’s Report and associated studies and permit fees, is $503,967.58. Of this amount, $262,595.68 is to be assessed to benefiting property owners and $241,371.97 to the City. The City’s assessment includes a special assessment/benefit of $219,682.00 for costs associated with environmental studies and fish and heron habitat mitigation measures required by the RVCA, MNR and DFO and related engineering, administration and construction.

Project costs have and will be paid initially by the City of Ottawa, Surface Water Management Services Branch, Environmental Services Department, and will be recovered through assessments/recoveries to the benefiting landowners. Funds have been approved in the 2011 Capital Budget in internal order 906194 Municipal Drains Improvements.

SUPPORTING DOCUMENTATION

Document 1 - David Adams Municipal Drain Location Plan

Document 2 - David Adams Municipal Drain Location Required Work Areas Plan

Document 3 - David Adams Municipal Drain By-law

Document 4 - Revised Assessment Schedules A, B and C

A copy of the Engineer’s Report has been provided to all Agriculture and Rural Affairs Committee Members and is on file with the Clerk’s Office.

DISPOSITION

Upon approval by Council, the City Drainage Superintendent will notify all assessed landowners of the date of the Court of Revision.

DOCUMENT 1

David Adams Municipal Drain Location Plan

DOCUMENT 2

David Adams Municipal Drain Location Required Work Areas Plan

Man-made

blockage

DOCUMENT 3

BY-LAW NO. 2011 -

A by-law of the City of Ottawa to provide for drainage by the means of a drainage works of an area that is currently drained by the David Adams Award Ditch, and the future maintenance of drainage works in the City of Ottawa – David Adams Municipal Drain.

AND WHEREAS the David Adams Award Ditch was constructed in late 1800’s and the City of Ottawa does not have the ability to maintain an award ditch in accordance with the provisions of the Drainage Act, R.S.O. 1990, c. D.17;

AND WHEREAS a majority of the landowners within the southwest quadrant of Century Road and First Line Road petitioned the City of Ottawa under section 4 of the Drainage Act, R.S.O. 1990, c. D.17, requesting a change in the status of the existing David Adams Award Ditch to that of drainage works constructed under the Drainage Act, R.S.O. 1990, c. D.17, in an effort to improve surface and subsurface drainage on agricultural in the drainage basin as agricultural land use has intensified since the construction of the David Adams Award Ditch resulting in an increase in cultivated land and tile drainage which in turn has resulted in an increase in peak rate and volume runoff in the drainage basin;

AND WHEREAS a Drainage Engineer, Robinson Consultants Inc., was appointed on May 11, 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, being parts of Lots 6 to 14, Concession I, geographic Township of Rideau;

AND WHEREAS a report entitled Engineer’s Report, David Adams Municipal Drain , Rideau-Goulbourn Ward, dated April 2011, was prepared by Robinson Consultants Inc. (the “Engineer’s Report”) and the report is on file with the City Clerk;

AND WHEREAS the David Adams Municipal Drain, after it is constructed in accordance with the Engineer’s Report, will be located entirely within the City of Ottawa and pursuant to section 74 of the of the Drainage Act the City of Ottawa is responsible to attend to the required future maintenance and repair;

AND WHEREAS the estimated total cost associated with the construction, engineering, contract administration, allowances, report and contingencies of the drainage works is $503,967.58, as set out in Table 9.1 Cost Estimate of the Engineer’s Report;

AND WHEREAS $241,371.87 is the amount to be charged to the City of Ottawa for the construction of the drainage works, as set out in Table 9.1 Cost Estimate of the Engineer’s Report;

AND WHEREAS the remaining cost of the construction of the drainage works, $262,595.68 is to be charged to the landowners in the drainage basin as set out in Table 9.1 Cost Estimate and in Schedule A, Summary for the Construction of Sections of the David Adams Municipal Drain of the Engineer’s Report;

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 1^st and 2^nd reading on June 22, 2011 so that it is provisionally adopted pursuant to Section 45 of the Drainage Act:

THEREFORE the Council of the City of Ottawa enacts as follows:

1. The report entitled Engineer’s Report, David Adams Municipal Drain, Rideau-Goulbourn Ward, dated April 2011, filed with the 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 $503,967.58 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;

(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. Of the $241,371.97 to be charged to the City of Ottawa for the construction of the drainage works, the sum of $231,682.00 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 for the Construction of Sections of the David Adams Municipal Drain, of the Robinson Consultants Inc., Consulting Engineer’s Report dated April 2011.

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 “David Adams Municipal Drain By-law, 2011”.

ENACTED AND PASSED this XXth day of September, 2011

ENACTED AND PASSED this day of 2011

CITY CLERK MAYOR