Florent-Chretien Drain (Re), 2000 ONAFRAAT 17

Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

APPEAL: Florent-Chretien Drain Municipality of West Nipissing

Florent-Chretien Drain (RE) 2000 ONAFRAAT 17

STATUTE: Drainage Act

HEARING: July 31, 2000

DATE OF DECISION: August 16, 2000

NEUTRAL CITATION: 2000 ONAFRAAT 17

Florent-Chretien Drain Municipality of West Nipissing

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 Agriculture, Food and Rural Affairs Appeal Tribunal by Isabel Mosseler, Mariette Gareau-Foster and Louis Dobrich under Section 48 of the Drainage Act from the report of the engineer on the Florent-Chretien Drain, Municipality of West Nipissing.

Before: Jim Rickard, Chair; Bill Sears, Vice-Chair; John Taylor, Vice-Chair.

Appearances: Louis Dobrich, appellant. Isabel Mosseler, appellant. Mariette Gareau-Foster, appellant. Gilles Chretien, petitioner and assessed owner. Carmen Girouard, assessed owner. William Lane, assessed owner. Ed Seguin, assessed owner. Ken Smart, P. Eng., on behalf of the Municipality of West Nipissing.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council chambers of the Municipality of West Nipissing in Sturgeon Falls, Ontario on July 31, 2000. Isabel Mosseler, Mariette Gareau-Foster and Louis Dobrich appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the December 20, 1999 report of Ken Smart, P. Eng., on the Florent-Chretien Drain, Municipality of West Nipissing (the Municipality).

Diane Charlebois, Clerk of the Municipality 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.

48. (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).

R.S.O. 1990, chap. D.17, s. 48.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the December 20, 1999 engineer’s report signed by Mr. Ken Smart P. Eng., on the Florent-Chretien Drain, Municipality of West Nipissing parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The December 20, 1999 engineering report on the proposed Florent-Chretien Drain was prepared under authority of Sections 4 and 8 of the Act. The report recommends the repair, maintenance and improvement of 12 different drainage courses that exist in parts of Lots 4 to 10, Concessions 5 and 6, former Township of MacPherson.

The Florent-Chretien Drain was originally constructed in 1974 pursuant to Section 123 of the Drainage Act in the unorganized Township of MacPherson. The project consisted of four open channels labeled Drains A, B, C and D.

Drain A commenced in the center of Lot 5, Concession 6 and ran in a westerly direction to outlet into a natural channel near the west part of Lot 8, Concession 6. Drain A was to be a drain with a 0.9 to 1.2m bottom, 1.25:1 side slopes and depths varying from 0.6 to 2.1m (2 to 7 feet).

Drain B was located north of Drain A and ran from the easterly portion of Lot 7 to outlet into Drain A at the half lot line of Lot 8. Drain B was to have a 0.9m bottom, 0.9m depth and 1.25:1 side slopes.

Drain C started at Millrand Road, just east of the road through the center of Lot 7, and ran westerly to outlet into a north-south running channel in Lot 8 (the outlet channel had been surveyed as the Hurtubise Drain, from the easterly portion of Lot 10, Concession 5, MacPherson to Lot 9, Con. 2, Kirkpatrick except for parts of Lots 5 and 6, Concession 6). Drain C was to have a 0.9m bottom, 1.2 to 1.8m depth and 1.25:1 side slopes.

Drain D was an extension of Drain A to the northeast, through the east half of Lot 5, Concession 6. Drain D and was to have a 0.9m bottom, a 0.6 to 1.5m depth and 1.25:1 side slopes.

In 1974 an open drain project called the Hurtubise Drain was initiated. It was a substantial project that proposed improvements to sections of the open channel in Lots 9 and 10, Concession 5 of MacPherson downstream of the Florent-Chretien Drain.

Further reports on the Florent-Chretien drain were prepared in 1981, 1982 and 1986. These reports recommended replacing some of the open ditch portions of the drain with tile drains and removal of 130 cubic meters of rock on parts of Lots 6 and 7, Concession 6. The 1986 report also stated that there was a beaver dam downstream of the work which was adversely affecting the project and noted that the owner would not allow it to be removed. It noted that poor soils could be encountered in parts of Lots 5 to 7. There had been a soils report obtained which noted that the soils in this area were peat over clay or a sand layer in clay.

The open channel from the rock cut in Lot 7 upstream to the top end was cleaned out privately by the landowners in 1992.

The majority of the cleared area in Lot 7 has been systematically tile drained over the past 20 years. In addition, the channel of Drain B upstream of the road has been replaced by a tile system. Drain C has also been replaced by a tile system east and west of the road on the east side of the west half of Lot 7.

These drains, while constructed under the Act, have no status since they existed in an unorganized territory. Once the land became part of the Municipality, the owners petitioned for improvements as well as for status under the Act for future maintenance. The main concern expressed by the landowners was the beaver dams which were causing water to sit at approximately half of the height of the culvert across the side road in Lot 7, Concession 6 (MacPherson Township). There is one large beaver dam on the Mosseler/ Dobrich properties just upstream of the road and there may be others.

Throughout the channel there is to be a bottom clean out, as required, with the banks being brushed but left in an undisturbed state. The work also involves removal of beaver dams and enlargement of rock cuts. The major beaver dam and rock cut that exists on the Pilon property at the lower end is to remain. This dam and rock cut is lower than the upstream channel work and it will remain as a major silt sedimentation collection area. Upstream of this rock cut where the work starts, a natural sediment area exists since the already excavated channel is lower than the rock to be cut.

The project consists of 11,534m of open drain work and 1,515m of tile work. The total estimated cost of the project is $361,875. The area served by the project is 2,024.9 hectares (5,003 acres).

The Issue

There are two issues before the Tribunal:

1. Are the benefits commensurate with the estimated cost of the work?

2. Should the drain be modified by eliminating or reducing the work on the main drain?

The Evidence and the Findings

Mr. Smart outlined the proposed project to the Tribunal. He said that the work is mainly a spot clean out of the existing drain bottoms – no work is proposed on the drain banks – lowering of two rock cuts and the removal of beaver dams. He said he does not anticipate any significant changes in water quality as a result of the work and has provided temporary silt traps to control any erosion that does occur during construction.

Mr. Louis Dobrich, appellant, asked the Tribunal to order the municipality to prepare a benefit vs. cost statement for the project. He said that he feels there will be little, if any increase in agricultural production as a result of the work. While he agreed that the watershed shown on the plan included with the report was accurate, he provided a copy of an air photo which he claimed showed an alternate route for the drain from the upper watershed to take. This route bypasses his land and the large beaver pond and would reduce the proposed work on the main channel. He also argued that the beaver pond should be maintained as a source of water in the event of forest or house fires. He pointed out that there are four houses and a camp close to the existing beaver pond. Mr. Dobrich also argued that there should be water quality monitoring on the channel to protect the water quality in Bear Lake and further downstream to Lake Nipissing.

Ms. Isabel Mosseler told the Tribunal that she is a non-resident landowner who lives in Sturgeon Falls. She said her main concern was environmental and she feels that her concerns have not been taken seriously. She said she understood that the farmers in the area had reduced their fertilizer use but she was concerned that the creek from the beaver dam downstream was a natural watercourse tributary to Bear Lake. It has fish in it. She filed with the Tribunal various articles and papers relating to creeks, fish habitat and concerns over farming practices. She urged the Tribunal to require as part of the work, that the farmers of the watershed utilize best management practices in all of their operations. She noted that there is no water quality data in the area and this data should be obtained prior to work being done so any changes in water quality could be identified and the cause addressed. She told the Tribunal of the group Enviro-Connect which she founded to bring attention to water quality issues in the area and to lobby for the preservation of Bear Lake as a natural habitat. She emphasized that her concerns were not short term but on the long-term effect of agricultural practices on water quality in the stream. She believes that the beaver pond provides natural cleansing of the water and should be preserved.

In support of her position, Ms. Mosseler introduced witnesses from the West Arm Water Improvement Incorporation. The West Arm is part of Lake Nipissing west of the drainage area of the Florent-Chretien Drain and south of St. Charles.

Mr. Gaston Perault, told the Tribunal that a small rock chute where the river enters the West Arm was blasted in the 1960’s and the water quality in the West Arm had deteriorated ever since. He explained to the Tribunal that the West Arm Water Improvement Corporation has been active for the past five years and as a result of monitoring water quality and work done on the upstream watercourses, the water quality in the West Arm has improved over this time. He said that it is easier to prevent a problem that to clean it up after the fact.

In response to questions, Mr. Perault told the Tribunal that he had not reviewed the report on the Florent-Chretien Drain.

Mr. Raymond Houle, a member of the West Arm Improvement Corporation told the Tribunal that water samples have been gathered in the west end of Lake Nipissing for the past four years. He filed with the Tribunal copies of the analysis on this water sampling. He said his concern was that if the Florent-Chretien Drain was not properly constructed the lake will suffer again. He said that the rock chute rapids should not be removed since these areas add oxygen to the water. Mr. Houle told the Tribunal that he felt that there should be a monitoring program in place before the work is done and continued thereafter. As well, he said that adequate or superior construction procedures should take place to make sure there is no problem with sediment from the work.

In response to questions, Mr. Houle told the Tribunal that he has not reviewed the report on the Florent-Chretien Drain.

Ms. Angela Martin, a resort owner on the West Arm of Lake Nipissing, told the Tribunal that she was concerned about water quality. She said that the water quality where her business is located has deteriorated and now few businesses are left on Muskie Bay. A citizens committee has been formed to do what it can to improve the water quality. Ms. Martin filed with the Tribunal copies of correspondence with various government offices that had been lobbied in an effort to draw attention to the water quality situation and generate action to clean up the problem. Ms. Martin told the Tribunal that her main point is that no one should be allowed to pollute the lake.

Ms. Martin told the Tribunal that early in the spring she thought she had found a Blue Eyed Walleye in Lake Nipissing. She said this fish was introduced into the lake about 1923 but the population declined and the species was declared extinct early in the 1970’s. She said she has submitted specimens to the U.S. Fish and Wildlife Service for DNA testing to see if she had caught a species thought to be extinct. If she has, then Lake Nipissing is truly a unique area that warrants protection.

In response to questions Ms. Martin told the Tribunal that:

• She has not reviewed the report on the Florent-Chretien Drain.
• She is not opposed to the drain but opposed to any pollution.
• She has no data on the current water quality in the drain or in Bear Lake.
• She suggested that each property should have a pond to clean the pollutants from the water before it is discharged into the natural creek, as well as to water stock, and for fire protection. Each property should have a filter to remove any substances from any runoff.

Mrs. Mariette Gareau-Foster told the Tribunal that she had several concerns. She asked the Tribunal to:

1. Order a benefit vs. cost statement on the project.
2. Acknowledge there is an impact on local citizens, landowners and tourist operators regarding drainage projects and these concerns should be considered.
3. Acknowledge that the creek is part of a natural living Eco-system.
4. Acknowledge that a project is underway to have Bear Lake and its watershed protected.
5. Order that water quality be monitored.
6. Order that any approved drainage project be modified to require the agricultural sector to utilize filtration methods commonly practiced in neighboring municipalities.

Mrs. Gareau-Foster told the Tribunal that the Ministry of Natural Resources (MNR) has just begun a study of the water quality and fisheries in Bear Lake. She asked the Tribunal to reserve their decision until the study on the fish habitat and water quality is completed and reported on.

Ms. Barb Roth told the Tribunal that she operates Camp Raymond on North West Bay. She and her husband came from Oxford County. She has noticed a decline in the water quality of the Bay over the 14 years that they have been in the area. She said she thought there is an ongoing problem with deteriorating water quality that has not been addressed in any manner as yet. She said she is not aware of the specifics of the Florent-Chretien Drain project and is not directly affected by the proposal, however, she may be impacted by the long-term effects. She told the Tribunal that her main concern is the pressures on Lake Nipissing. She said that Eco-tourism is now the trend and all businesses in the area; farmers, resort owners, lodge operators all need to work together to preserve the natural landscape and promote the area to attract people and improve everyone’s business.

Mr. Ian Bowhey, President West Nipissing Upper French Tourist Association, told the Tribunal that he was concerned about the water quality aspects of the project. His position is that water is the essence of life and should be protected and no pollution should be allowed. He asked the Tribunal to take all precautions so no pollution is put into the lake.

In response to questions, Mr. Bowhey told the Tribunal that he has no specific suggestions for improvement on the project.

Mr. Gilles Chretien, assessed owner, told the Tribunal that he is a third generation farmer who owns 220 acres, 170 of which are workable of which 160 are tiled. When he petitioned the drain the water was within six inches of the surface of the ground on his land. After Mr. Dobrich removed the beaver dam and released some of the water, his tiled outlets were under sediments created by muskrats. The muskrats were working in the bank because the beaver dam kept the bank wet. He said that he loses $100 per acre when his tile drains are not working. He is concerned with winter flooding. If there is water on the surface in the winter the tile freezes and the crops are killed.

In response to questions Mr. Chretien said:

1. The water overflows the road in the spring nine years out of ten.
2. He takes two crops of alfalfa each year and if the drain is not fixed the tile will fail and he will not maintain his crop yield.
3. He will get two tons per acre of barley this year on his tiled land. With no tile drainage he expects half to one ton per acre of barley.
4. He said he farms as close to the drainage ditch as possible.
5. He supports the drainage project as designed in the report.

Mr. Gilles Piquette, assessed owner, told the Tribunal that he is a part time farmer operating 500 acres, 250 workable, that drain to the Florent-Chretien Drain. He has 30 acres tiled and is investigating tiling 60 acres more this year. He said he fully supports the project as designed.

Ms. Carmen Girouard, assessed owner, told the Tribunal that she works four farms in the watershed. In her opinion, the drainage is needed in the watershed. She said she lost part of her hay crop this year on the Seguin property that she rents. She got stuck right beside the ditch.

Edward Seguin, petitioner told the Tribunal that work on the drain is needed. He said that, in his opinion:

• There is no more pollution in the stream now that there was ten years ago.
• Removing the top two feet from the rock chute should not affect the water quality since there is a ten-foot drop there now.
• In the spring the water backs up in the channel.
• Most of the work to be done involves widening the path of water flow so the amount of pollution should not change as a result of this work.
• The proposed work stops two miles upstream of Bear Lake. As a rule of thumb, a mile of river will purify the water naturally.
• By opening the beaver dam and the channel the fish will come back into the creek.
• The ditch was dug on his property in 1948.

Mr. William Lane told the Tribunal that he owns the next farm upstream from Mr. Gilles Chretien. He said that in his opinion:

• This is a necessary project to improve water flow and help the farmers improve the environment.
• The project will not harm the environment but will improve it.
• Improved drainage means better crops, less fertilizer, less fuel, less soil compaction, all are better for the environment.
• The drain has had no cattle pasturing near it for four years. Last year he fenced the cattle from the creek. The recommended distance for a fence from the top of the bank is 12 feet.
• He suggested a filtering swamp be built at the end of the drain before Bear Lake.
• He was a volunteer fireman. The Mosseler/Dobrich beaver pond is too far from the road to be useful for fire protection.

Mr. Smart told the Tribunal that the petition for this work is very strong – virtually all of the owners abutting the channel except Dobrich and Mosseler have signed the petition. There are no new ditches being dug as a result of this report – existing ditches are being maintained, a minor amount of rock is being removed, a number of erosion and sediment control features are included in the project, (120 square meters of rip rap, 45 sediment trap areas) as well as the natural sediment trap areas that exist on the channel. MNR and the Department of Fisheries and Oceans (DFO) both received documentation on the project and no objections to the work have been raised by these agencies. DFO has approved the project. He said he found no evidence of pollution. No cattle graze near the drain. In his opinion, the sedimentation issue has been addressed in the report. If any change were made it would be to incorporate some of the natural sedimentation areas as part of the work so that they could be maintained in the future if necessary. He said this would mean lowering the design gradeline in the profile to the existing ditch bottom in those areas.

The Tribunal examined the evidence filed and submissions made. While the Tribunal was impressed with the sincerity of the appellants, it appears that they are in the wrong forum. Under the Act, the Tribunal is charged with certain responsibilities. Specifically under Section 48, the section that the appeals were filed under, the Tribunal can examine issues relating to the total benefits of the project vs. the total estimated cost of the project, modifications to the project that have been recommended, the amount of the allowances provided by the engineer and in proper circumstances, whether the engineer made the right decision in recommending that a project not proceed. In evaluating an appeal, the Tribunal has to rely on the parties to bring evidence to the hearing that would convince the panel to order that the position of that party should supercede the position of the opposing party. The Tribunal does not seek out information independently of the hearing. It is a decision-maker based on the evidence placed before it during the hearing process. In making a decision between two opposing positions, the Tribunal must have good evidence. If the engineer has recommended one route and a party prefers another, then it is up to that party to bring sufficient evidence to show that the alternative is practical and as cost effective as the one recommended by the engineer. In this case, if Mr. Dobrich wanted the Tribunal to give serious consideration of his proposed alternative route, he should have brought a profile survey showing that the water could in fact flow in that route and an estimate of the cost of constructing the channel. The Tribunal also expects that Mr. Dobrich would share that information with Mr. Smart prior to the hearing so that Mr. Smart would be prepared to respond to the Tribunal at the hearing. This principle has been set out by the Tribunal in many cases in the past.

Mr. Smart told the Tribunal that, in his opinion, the alternate route proposed by Mr. Dobrich had not been investigated. There is no evidence of a channel in this location on the Ontario Base Maps or the air photos that he has reviewed. The Tribunal accepts the position of Mr. Smart on the issue of the alternate route suggested by Mr. Dobrich.

Each of the parties and their witnesses was asked if there were specific recommendations they would make to the Tribunal to modify the project. Mr. Dobrich said that he was not concerned with any of the work upstream of his property but felt that the beaver dam on the main channel did not have to be removed since the water did not flood anyone. Mr. Smart projected the elevation of the water level at the beaver dam upstream to show that this dam did hold water back, on the land of the petitioners. The Tribunal accepts the calculations of Mr. Smart that the beaver dam on the main channel needs to be removed in order to provide good drainage outlet.

Several of the witness expressed concern about the long-term effect of sediment on the downstream receiving watercourse. None of the witnesses provided evidence of sedimentation in the present drains. These drains have been in existence for some years now without maintenance therefore, if sedimentation in the area was a problem there should be evidence of sediment in the channel bottom. While the Tribunal believes that Mr. Smart has recommended sufficient sediment control during construction, he also suggested that there are several locations on the channel where natural sedimentation ponds exist. He said that in the locations where access by equipment is practical, the design gradeline of the drain could be lowered so the municipality has the authority to clean sediments from these natural basins in the future. The Tribunal accepts this recommendation and directs that, before the by-law is passed, Mr. Smart is to prepare a new profile incorporating as part of the project those natural sedimentation basins that, in his opinion, are accessible for maintenance. The Tribunal also accepts the recommendation from Mr. Lane that the buffer strip be approximately 3.6m (12 feet) wide next to any land that is farmed either for livestock or crops.

On the issue of benefits vs. cost the Tribunal accepts the evidence of Mr. Gilles Chretien. He said that he loses $100 per acre per year when his tile drains do not work. The evidence indicates that Mr. Chretien and Mr. Lane have a total of 200 acres of tile drained land in the watershed. At $100 per acre this equates to $20,000 per year in benefit for just these two properties. The Tribunal finds that the project is warranted and ought to proceed.

The Tribunal feels that the requests of the other appellants for water quality monitoring, monitoring and enforcement of best management practices on farms and businesses in the watershed and land use protection for the Bear Lake watershed, while noble goals, that should be strived for, are in the wrong forum. The Tribunal does not have the authority to order these requests be granted. The Tribunal suggests that the appellants approach the parties authorized to attend to these issues and make their views known to those authorities.

The Tribunal was impressed by the sincerity of the witness from the West Arm Improvement Corporation. Perhaps the appellants should consider forming a similar action group in the MacPherson Creek watershed to work in conjunction with the West Arm Improvement Corporation. Analysis of sufficient water samples over a period of time will provide information upon which future decisions can be made.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The appeal of Isabel Mosseler under Section 48 of the Drainage Act is dismissed.

2. The appeal of Mariette Gareau-Foster under Section 48 of the Drainage Act is dismissed.

3. The appeal of Louis Dobrich under Section 48 of the Drainage Act is dismissed.

4. Before passing the by-law, Mr. Smart is to modify the plan and profile for the Florent-Chretien Drain to show that those naturally occurring sediment basins are included as part of the work on the drain. Only those naturally occurring sediment basins that also have reasonable access by equipment are to be designated as part of the work and included for future maintenance purposes. Mr. Smart has discretion to determine which areas are included.

5. Before passing the by-law Mr. Smart is to clarify the paragraph on Buffer Strips contained in his report on page 37. The clarification is that “a narrow buffer strip” means a buffer of approximately 3.6m (12 feet) in width.

6. The non-administrative costs of the Township with respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Guelph, Ontario this 16th day of August, 2000.