Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: Michener Drain M-1 Relocation City of Port Colborne
Michener Drain M-1 Relocation (RE) 1997 ONAFRAAT 10
STATUTE: Drainage Act
HEARING: April 3, 1997
DATE OF DECISION: April 11, 1997
1997-10
NEUTRAL CITATION: 1997 ONAFRAAT 10
Michener Drain M-1 Relocation City of Port Colborne
IN THE MATTER OF: THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: An Appeal to the Ontario Drainage Tribunal by Bill Walker under Section 48 of the Drainage Act, against the report of the Engineer with respect to the Michener Drain M-1 Relocation.
Before: Mr. Andrew Wright, Vice Chair; Mr. Herbert Todgham, Vice-Chair; Mrs. Betty Lambert, Member.
Appearances: Mr. Bill Walker, appellant Mr. Bryon Wiebe, P. Eng., on behalf of the respondent the City of Port Colborne.
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers, City Hall, City of Port Colborne, Ontario on April 3, 1997. Mr. Bill Walker, an assessed owner, appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act), against the report of the engineer with respect to the Michener Drain M-1 Relocation, City of Port Colborne (the City).
Mrs. Pat Premi, Deputy Clerk of the City performed the duties of the Clerk of the Tribunal.
Section 48 of the Act is as follows:
48 (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,
may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.
The Background
The engineer's report on the Michener Drain M-1 Relocation was prepared after the City received a request to modify the Michener Drain M-1 from the owners of Whisky Run Golf Club (the Club), an existing 18 hole golf course. The portion of the Michener Drain M-1 through the property owned by the Club (Roll No. 4-4-47) is a straight line drain. The Club wants to develop a nine hole course on this property. The Club desires some sweeping bends and flatter banks to be established on the drain to aesthetically compliment the golf course lay out. The Club started that work themselves without approval from the City. When the City became aware the Club was advised to stop working and informed that a report under the Act was required. Wiebe Engineering Group Inc. (Wiebe) was appointed by the City to investigate the work that had been done and to indicate what additional work was required to meet the needs of the Club. The result is a report under the Act dated November 15, 1996 proposing a relocation of the existing Michener Drain M -1 on the property identified as Roll Number 4-4-47. Included in the report is drawing Number 1 dated November 15, 1996 which shows the present and proposed location of the drain. The shaded portion on the plan indicates the work that has to be done; the work already done is also shown on the plan.
The proposed drain on the property is longer in length than the present channel. Because the drain is lengthened on the property, there will be increased maintenance costs. The report assesses all of the cost of the present work, including engineering, to the Club. The report also includes a revised schedule for future maintenance to account for the increased maintenance costs caused by the lengthening of the drain.
The report was considered by council, adopted by preliminary by-law and the Court of Revision was held. There were no appeals to the Court of Revision. Mr. Bill Walker appealed to the Tribunal under Section 48 of the Act expressing concerns about adverse impacts on water quality that may occur as a result of the construction and the future use of the Golf Club.
The Issue
The issue before the Tribunal is whether the report should be modified to address the possibility of adverse impacts on water quality.
The Findings
Mr. Walker told the Tribunal that he is the owner of property on Lorraine Bay about 700 feet from the mouth of the drain. Currently the Bay has high levels of algae growth making it unfit for swimming during July and August. This is an existing situation which he does not want to see get any worse. Mr. Walker told the Tribunal that he had talked to staff in several provincial ministries and was told that golf courses use fertilizers, herbicides, fungicides and pesticides and he is concerned that runoff of this material will get into the drain and then into the Bay and make a bad situation worse. He said he does not bring any scientific data to support his position, he is basing his argument on the common sense of the matter. He argued that since these chemicals are used and a drain goes through the property is just makes sense that the chemicals and nutrients will get into the water and then flow to the Bay.
Mr. Walker said that he was not opposed to the development of the golf course but he was concerned that there did not appear to be any mechanism in place to monitor the situation so corrective action could be taken if the water quality deteriorates. Mr. Walker told the Tribunal that he had contacted staff at the Ministry of the Environment and Energy, the Ministry of Natural Resources and the Department of Fisheries and was told that none of these agencies had jurisdiction over the issue. He said he was concerned that no one appeared to be prepared to enforce the provisions of Section 83 of the Act and he wants the Tribunal to establish a requirement for the City to monitor the situation and enforce Section 83.
In response to questions Mr. Walker agreed that his concern was the possibility of chemicals getting into the water and not with the construction of the drain as proposed by the engineer.
Mr. Bryon Wiebe, P. Eng., the engineer who prepared the November 15, 1996 report on the Michener Drain M-1 Relocation spoke on behalf of the City. Mr. Wiebe told the Tribunal that the existing channel is shallow with side slopes of 1.25:1. The proposed channel matches the design bottom elevation of the existing drain at the upstream and downstream ends of the Club property. On the property, the drain will follow two sweeping "S" curves beginning and ending in the present entrance and exit locations of the drain. The side slopes vary between 3:1 and 5:1. Buffer strips are to be constructed along both banks and a sediment basin is to be constructed at the lower end of the project and is to be maintained as part of the drain. These features will trap sediments and thereby improve water quality exiting the property. Mr. Wiebe pointed out that, while there is an increase in channel size on the property, there is no change proposed in the design channel on the upstream or downstream properties so the effect of the work on the overall discharge capacity of the drain will be minimal.
Mr. Wiebe agreed with the Tribunal that there is the possibility of some confusion in the future over exactly what constitutes the drain on the Club lands. He agreed with the Tribunal that the order should indicate that the entire channel on Property Roll No. 4-4-47 as shown on Drawing 1, November 15, 1996 labelled Michener Drain M-1 Relocation between Station 0+412 and Station 0+732 = 0+663 is to be incorporated as part of the drain.
Mr. RenP Landry, drainage superintendent for the City told the Tribunal that he had investigated the cost of a monitoring procedure to look at the water quality before and after construction of the drain. The Niagara Peninsula Conservation Authority (NPCA) and three firms were invited to submit a brief proposal outlining the requirements and associated cost of a water sampling and analysis program. Based on a "grab sample" and analysis technique a monitoring program would cost in the order of $1,000.00 per event after an expenditure of about $4,000.00 to establish the "background" situation. Mr. Landry told the Tribunal that the City was not opposed to establishing a monitoring program but was not prepared to do so out of the general funds of the municipality. He also told the Tribunal that the City has six drains that outlet into Lake Erie and if one is monitored he expected requests to monitor the others as well. Mr. Landry said the cost of monitoring could get as high as $50,000 per year in the City alone.
Mr. Landry told the Tribunal that the City is concerned about the quality of the water flowing in municipal drains. He said that, if a problem arose where pollution of a drain was occurring, his preference would be to first talk with the landowner and see if they could solve the problem. If this approach did not work he would then prefer to take the information to the Ministry of the Environment and Energy and have that Ministry take action under the Environmental Protection Act (the EPA). As a last resort, if he felt there was a sufficient case, he would recommend to the City Council that the City prosecute under section 83 of the Act. Mr. Landry emphasized to the Tribunal that this was his personal preference and he has not taken a proposal to the City Council for instructions.
Mr. Landry also told the Tribunal that algae was not a problem in the Michener Drain M-1. He said that for most of the year this drain is dry. He said that his observations indicate that the drain flows in the spring and only during heavy rains once the spring freshet has passed.
Mr. Lou Nieuwland, majority shareholder in the Club told the Tribunal that he also was concerned about the environment. He filed with the Tribunal copies of several published articles which indicate that turf grass is second only to forest land in reducing run off of water and nutrients. Mr. Nieuwland acknowledged that there is a potential for abuse of any property but he assured the Tribunal that the Club intended to use good management practices and materials. Mr. Nieuwland pointed out that he also has a young family that lives in the area and he wants a clean environment for his children just as Mr. Walker does. Mr. Nieuwland told the Tribunal that the published research indicates that the management that the Club uses should not only ensure no additional contamination in the water but it may in fact improve the situation over the present.
Mr. Allan Kara, superintendent at the Club, told the Tribunal he has had extensive training in management of turf and is licensed to apply pesticides. (Class 1 and 3 licenses). Mr. Kara also acknowledged a potential to cause pollution of the water in the drain if improper management practices were applied at the golf course but he also indicated that he had the knowledge necessary to ensure good management practices were followed and he intended to apply that knowledge on this property. Mr. Kara told the Tribunal that the Club intends to allow the buffer strips to grow up in a natural state and clip only the out side edges for the fairways. He indicated this would have the effect of improving the water quality by reducing the nutrients getting to the ditch and filtering out any sediments that may be flowing overland to the ditch. He also pointed out this would keep any pesticide sprays further away from the water.
Mr. Michael Lakie, the owner of an adjacent property addressed the Tribunal. Mr. Lakie confirmed the earlier evidence that the Michener Drain M-1 is dry during most of the year. He said that even when water is flowing, most of the time you can step across the water flow. He said after a three day rain you might have to jump but you can get across the water.
In summation, Mr. Walker told the Tribunal that his purpose for appealing was to ask that, when significant changes are made in the channel capacity, Tribunal should set up a mechanism requiring monitoring of the drain so that Section 83 of the Act can be enforced. He said that he was concerned that no one appeared to be responsible for enforcing this section of the Act. He believes that the City should be required to enforce Section 83 of the Act. Mr. Walker could not point to any specific section of any legislation that supported his proposition that the City be made responsible.
Mr. Walker also told the Tribunal that he believes the Club owners when they said they intend to manage the property so that there is no or minimal runoff of contaminants from the property.
Mr. Walker told the Tribunal that he did not think he should pay any of the cost of this hearing. He said that he had tried to get someone to take responsibility for enforcing the Act and this appeal was the avenue he was advised to take in order to get a decision on the matter.
In summation Mr. Wiebe told the Tribunal that the cost of monitoring drain outflows to the lake are a major concern for the City. He argued that there was no evidence presented at the hearing to show that the existing enforcement mechanisms in the legislation will not work. He argued that the report should be adopted, with the minor modification to clarify the extent of the drain. Mr. Wiebe argued that, the Tribunal should recognize that this hearing is costly to the City and costs should be charged to Mr. Walker.
In this case, Mr. Walker comes before the Tribunal anticipating that a problem may result from the proposed work. Mr. Walker is asking the Tribunal to make an order in aid of enforcement of Section 83 of the Act but he brought no evidence to support his contention. The forum for enforcement is under Section 83 of the Drainage Act if there is evidence of pollution. The Tribunal is also cognizant of the prohibition of pollution contained in section 14(1) of the EPA, and the dramatically larger fines that are available under Section 187 of the EPA and the authority of the Courts to order restoration in Section 190 of the EPA. The Tribunal cannot assume the responsibly or authority of the Courts. The Tribunal has no power to police drains under the Act. The Tribunal believes that it is not appropriate for it to act as a policing agent in light of the much greater powers available through the environmental protection legislation.
The Tribunal recognizes that the appellant is concerned about the environment. The Tribunal is sympathetic to those who seek to protect the environment and would be responsive to concrete evidence of adverse environmental impacts that are likely to be caused by a project proposed under the Act. In this case however, there was no evidence of any adverse impacts to the environment. All of the evidence was to the contrary. Specifically, the evidence before the Tribunal was that the grass cover proposed as part of the golf course development will retain not only sediments but nutrients that might otherwise have found their way into the water course. The evidence was that the water course is dry during most times of the year. On the evidence the Tribunal finds that the concerns expressed by the appellant about run off of nutrients as a result of the proposed work are misplaced.
The appellant's evidence was that he found no fault with the work on the drain as proposed in the report. The appellant told the Tribunal that he believed the evidence of the owners of the Club when they said that their management practices would reduce the nutrients coming from this property.
The appellant came to the hearing completely unprepared. He had no concrete evidence to support his appeal. In the circumstances that he was unsatisfied with responses from municipal and provincial officials, the appellant took the opportunity to chat about his concerns with the Tribunal. An appellant cannot expect to come before the Tribunal and just chat about a matter. The Tribunal must have proper evidence upon which to base a decision. This appellant demonstrated either a profound misunderstanding of or a complete lack of respect for the Tribunal process and, in either case, a disregard for the cost that a hearing imposes on both the Provincial taxpayers and the proposed project.
The City staff, the Club and Mr. Wiebe took this appeal seriously and prepared carefully to respond to the issues as they understood them. The Tribunal appreciates their assistance in this appeal. In fixing the amount of costs, the Tribunal intends to reflect the extent of the preparation that appears to have gone into the municipality's case.
The Tribunal agrees with the position on costs argued by Mr. Wiebe. The Tribunal directs that the cost of the engineer for preparation for and attendance at the hearing to a sum not exceeding $3,000.00, shall be charged to Mr. Bill Walker, the appellant.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made, the Tribunal orders:
1/ The appeal of Mr. Bill Walker under Section 48 of the Drainage Act, against the report of the Engineer with respect to the Michener Drain M-1 Relocation is dismissed.
2/ The November 15, 1996 engineer's report on the Michener Drain M-1 Relocation is to be amended by inserting a paragraph indicating that the entire channel on Property Roll No. 4-4-47 as shown on Drawing 1, November 15, 1996 labelled Michener Drain M-1 Relocation between Station 0+412 and Station 0+732 = 0+663 is to be incorporated as part of the drain.
3/ The cost of the engineer for preparation for and attendance at the hearing to a sum not exceeding $3,000.00, shall be charged to Mr. Bill Walker, the appellant. This sum to be paid to the City within 45 days of receipt of this decision and is to be credited to the account of the drain. If unpaid within the 45 day period, the City Council is directed to add this sum to the taxes in arrears on Roll Number 4-4-1-1, part Lot 21, Concession 1, City of Port Colborne (W. Walker). This sum is not to be considered eligible for grants.
4/ There is no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
The reason for this decision is that the appellant brought a concern that a problem of increased nutrient runoff as a result of this proposed work ought to be anticipated and addressed but he brought no evidence to support his concern. During the hearing all of the evidence adduced was to the contrary; in fact, the evidence was that the proposed work is likely to improve the nutrient runoff situation.
Dated at London, Ontario this 11th day of April, 1997.