Upper W.J. Douglas Municipal Drain and Lower W.J. Douglas Municipal Drain (Re), 2002 ONAFRAAT 24

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

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

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Upper W.J. Douglas Municipal Drain and Lower W.J. Douglas Municipal Drain Township of Champlain

Upper W.J. Douglas Municipal Drain and Lower W.J. Douglas Municipal Drain (RE) 2002 ONAFRAAT 24

STATUTE:

Drainage Act

HEARING:

June 17, 2002

DATE OF DECISION:

July 16, 2002

2002-24

NEUTRAL CITATION:

2002 ONAFRAAT 24

Upper W.J. Douglas Municipal Drain and Lower W.J. Douglas Municipal Drain

Township of Champlain

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 Ulrich Schaerer under Section 54 of the Drainage Act from a decision of the Court of Revision and from the Engineer’s Report on the Upper W.J. Douglas Municipal Drain in the Township of Champlain.

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Jean-Paul Cusson and Victor Reasbeck under Section 54 of the Drainage Act from a decision of the Court of Revision and from the Engineer’s Report on the Lower W.J. Douglas Municipal Drain in the Township of Champlain, and in the Township of East Hawkesbury the appeal having been continued by the order of the Ontario Drainage Tribunal order of October 4, 1999 and the order of the Drainage Referee of September 25, 2001

AND IN THE MATTER OF: An appeal to the Drainage Referee by Cindy Sauve to the Drainage Referee under Section 47 of the Drainage Act certain aspects of which have been referred to the Agriculture, Food and Rural Affairs Appeal Tribunal by the order of the Drainage Referee of September 25, 2001

Before:

John Taylor, Vice Chair; Jack Young, Vice Chair; Gertrude Levac, Member

Appearances:

Neil Levac, P. Eng., engineer who prepared the report

Andrew Robinson, P. Eng., representing Ms. Cindy Sauve, appellant and the following assessed

landowners: B. & B. MacDonald, A. & T. Dunsmore, B. and A. MacKinnon, D. MacKinnon & M. Nixon, R. Stevens, J. Franche, Mrs. Reatajczaki, R. & S. Billingsley, G. Durocher & E. Smith, J., R. & L. Gauthier, W. & J. Young, Y. & U. Schoerer

Cindy Sauve, appellant

Ulrich Schaerer, appellant

Victor Reasbeck, appellant

David Dawson, assessed landowner

Guy Durocher, assessed landowner

Allan Simpson, downstream landowner

Jean Jacques Demers, downstream landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Alfred, Ontario on June 17, 2002. Mr. Ulrich Schaerer appealed from a decision of the Court of Revision and from the Engineer’s Report on the Upper W.J. Douglas Municipal Drain in the Township of Champlain (the municipality). The hearing into this matter was delayed while the Drainage Referee heard an appeal by Ms. Cindy Sauve on the question of whether the proposed drainage works was taken to a sufficient outlet. The Drainage Referee referred certain matters, as outlined below, to the Tribunal and those issues were consolidated into this hearing by the Tribunal in its pre-hearing order dated May 22, 2002.

Mr. Robert Lefebvre, Clerk of the municipality, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal made all landowners identified in its pre-hearing order parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing. At the outset of the hearing, Mr. Allan Simpson stated that he had received the notice of hearing seven days in advance of the hearing, rather than the ten days specified by the Drainage Act (the Act). However, he said that he did not want the hearing to be adjourned. Mr. Lefebvre stated that the notices had been mailed on time.

Statutory Context

Section 51 of the Act states:

Powers of Tribunal

51. (1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act. R.S.O. 1990, c. D.17, s. 51 (1).

Parties

(2)The parties to an appeal or reference to the Tribunal under this Act shall be the person making the appeal or reference and such other persons as the Tribunal may specify. R.S.O. 1990, c. D.17, s. 51 (2).

Section 54 of the Act states:

Appeal to Tribunal

54. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1).

Notice

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal. R.S.O. 1990, c. D.17, s. 54 (2).

Procedure

(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, c. D.17, s. 54 (3).

Background

The W.J. Douglas Municipal Drain, also referred to as the Lower W.J. Douglas Municipal Drain, was established in 1927, improving a watercourse that has its outlet in the Little Rideau Creek. The watercourse appears to have commenced some distance above what is now the Lower W.J. Douglas Municipal Drain. From the outlet of the drain, Little Rideau Creek meanders about 10 km to the Ottawa River. The drain was improved pursuant to an engineer's report prepared in 1998 and revised in November 1999 as a result of an order of this Tribunal.

A second engineer's report, dated December 20, 2000 and revised March 21, 2001, was prepared in response to a petition for drainage by landowners upstream of the W.J. Douglas Municipal Drain. The proposed new drainage works is known as the Upper W.J. Douglas Municipal Drain. It is designed to outlet into the W.J. Douglas Drain.

The Drainage Referee heard an appeal with regard to the sufficiency of the outlet of the proposed new drainage works on September 21, 2001. The Referee considered the sufficiency of outlet of the W.J. Douglas Municipal Drain (Lower) and the proposed Upper W.J. Douglas Municipal Drain and concluded the W.J. Douglas Municipal Drain had not been taken to a sufficient outlet. The Referee ordered additional engineering work and referred questions on the design of the proposed drainage works and the adequacy of culverts in the W.J. Douglas Municipal Drain to the Tribunal. The Drainage Referee’s order (September 25, 2001) in the Sauve appeal provided that:

The Drainage Engineer immediately conduct a survey of the Little Rideau Creek, downstream of the drain outlet, and prepare a preliminary report with respect to obstacle removal and straightening, if deemed necessary, together with an estimate of cost for such work or in the alternative proposals for injuring liability. Such Report to be submitted to the Drainage Tribunal at or in advance of their scheduled Hearing. The determination of the extent of the downstream extension of the Drain or the measure of relief by way of an injuring liability award is hereby referred to the Ontario Drainage Tribunal.

The Drainage Engineer review the existing culverts in the W.J. Douglas Municipal Drain and those immediately downstream in the area of concern so as to be in a position to make recommendations to the Tribunal with respect to sizing and revisions in the Report so as to control culvert alterations.

Engineer's Overview

Mr. Neil Levac provided a brief overview of the proposed drainage works and indicated:

• Over 7000 ha of land drained into the Ottawa River through the Little Rideau Creek.
• The W.J. Douglas Municipal Drain (Lower) drained a watershed of 527 ha.
• The proposed Upper W.J. Douglas Municipal Drain would drain a watershed of 238 ha.
• Five additional sub-watersheds drained into the Little Rideau Creek; one sub-watershed was drained through a municipal drain - the Upper Little Rideau Creek Drain. Its outlet into the creek was near the outlet of the W.J. Douglas Drain.

Mr. Levac said that he had estimated discharges and water levels for flood events of 2, 5, 10, 25 and 50 year recurrences at four critical locations and determined that buildings near the drainage works would not be affected by storm events with up to 50 year recurrences. He said that municipal drains were typically designed to a 2 or 5 year standard. Mr. Levac said the Little Rideau Creek had reasonable structural stability and was a sufficient outlet to the W.J. Douglas Drain. He explained that two culverts of a fixed size act as storm water management devices, limiting the flow of the water entering the Little Rideau Creek.

Mr. Levac said that the Department of Fisheries and Oceans (DFO) was expected to have concerns about any proposed structural changes to the Little Rideau Creek but was not expected to oppose the removal of natural obstructions such as beaver dams. He said that modification or installation of culverts in the creek would likely require a DFO permit.

Mr. Levac said he recommended that the Little Rideau Creek from north of the CPR crossing to the Ottawa River be made a municipal drain, solely for the purpose of maintenance. He said the installation of new crossings and the alteration of existing crossings should require the approval of the Drainage Superintendent and natural and man-made obstructions to water flow should be removed.

Mr. Levac also recommended an amendment to the engineer's report on the W.J. Douglas Municipal Drain. He recommended:

• All future culvert replacements from Station 1+500 to Station 2+302 must have a diameter of 1.2 metres (or equivalent).
• All future culvert replacements from Station 2+302 to Station 3+913 must have a diameter of 1.6 metres (or equivalent).
• All future culvert replacements from Station 3+913 to Station 4+293 must have a diameter of 1.8 metres (or equivalent).

The Issues

The issues before the Tribunal were:

1. Should the assessment on Mr. Schaerer's property (Roll No. 04-014-00) be varied?

2. Should the drainage works be extended downstream and if so, how far downstream should the municipal drain be extended, and should there be limits to the work that can be undertaken in the Little Rideau Creek?

3. Should an injuring liability award be granted to any landowners?

4. Should the engineer's report on the W.J. Douglas Municipal Drain be modified to place restrictions on the size of culverts that may be installed in the drain?

The Evidence

Assessment Issue

Mr. Ulrich Schaerer told the Tribunal his assessment was too high because the size of the culvert draining his property (Roll No. 04-014-00) will be restricted and water will pool on his land if the size of downstream culverts is not increased. He said that a culvert under the CPR railway was a particular concern. He said that he had 76 acres of black muck land that cannot be drained. Mr. Schaerer suggested that if he was required to pay a benefit assessment then the size of the downstream culvert should be increased. He said he would receive no benefit from the proposed drainage works, as he would not be able to drain tiles into the proposed drain.

Mr. Levac testified that the proposed drainage works would lower the elevation of the culvert draining the Schaerer property by 0.75 metres. He said the property needed drainage and he believed the property could be tile drained once the culvert was lowered. He said he stood by his original assessment.

Design Issues

Ms. Cindy Sauve told the Tribunal she had lived on her property (Roll No. 0209 006 003 00705) since 1980 and that the basement had flooded in June 1994 and July 1996. She said she was concerned that the risk of flooding would increase if the proposed Upper W.J. Douglas Municipal Drain was constructed. She said her neighbours were concerned with the possibility of erosion and de-stabilization of roadways.

Mr. Andrew Robinson, P. Eng., was accepted as an expert witness. He testified that:

• His clients' properties had experienced flooding on a regular basis each Spring. Two series of photographs were entered into evidence.
• The proposed drainage works would cause an increase in flooding because water cannot drain quickly enough through the Little Rideau Creek, due to obstructions.
• He supported Mr. Levac's recommendation that the Little Rideau Creek be cleared of obstructions.
• He agreed with Mr. Levac's conclusion that the Little Rideau Creek was structurally stable.
• The Little Rideau Creek would be a sufficient outlet to the W.J. Douglas Municipal Drains (Upper and Lower) if it were cleaned out as per Mr. Levac's suggestion. It was not a sufficient outlet with the existing obstructions.
• Controlling culvert sizes on the W.J. Douglas Municipal Drain would be desirable as this would control the flow of water in the drain.
• He did not believe that his clients should be compensated for injuring liability if the Little Rideau Creek were cleared and the culvert sizes on the drain were controlled.
• His clients preferred a solution that would resolve their flooding problems rather than a solution that would provide compensation due to injuring liability.
• He had walked the creek from Pleasant Corners Road downstream 500-800 yards and had viewed it where he could access it from the road.
• He had reviewed Mr. Levac's preliminary report on the Little Rideau Creek but had not undertaken an in depth analysis of the report.

Mr. Dave Dawson testified that he was the owner of the property previously owned by Jean-Paul Cusson (Roll No. 04009 0004). He said that he understood that a previous Tribunal order required the municipality to perform maintenance work on the W.J. Douglas Municipal Drain (Lower) before it was extended. He submitted that this work was not completed satisfactorily as hardpan was buried on his property, a pile of stumps was not removed from his property and the culvert installed was too small.

Mr. Dawson said he did not want the drain to be extended upstream as he was concerned that water would pool on his land and he did not believe there would be a benefit to agricultural land. He also questioned the validity of the petition, as he said Mr. Schaerer was no longer in favour of the project. He said he was also concerned with the proposal to extend the drain downstream as this would increase the cost to upstream landowners. He said he did not have faith in the people who would be responsible for undertaking the construction and maintenance work.

Mr. Dawson said the drainage on his property was improved by earlier improvements to the W.J. Douglas Municipal Drain.

Mr. Victor Reasbeck said his concerns had been addressed.

Mr. Guy Durocher testified that he had walked the entire drain and creek and there were undersized culverts under driveways and trees blocking the flow of water. He said he did not object to the drain being extended upstream but the lower part of it should be cleared out first. He said he had owned his property since 1994 and his basement had not flooded.

Dr. Allan Simpson testified that he and his wife owned properties in the watershed in East Hawkesbury and that they farmed almost all the agricultural land adjacent to Little Rideau Creek. He testified that:

• Farm tiles were drained into the Little Rideau Creek and it had been deemed to be an adequate outlet for these tiles by several drainage professionals.
• The Little Rideau Creek is a stable creek.
• There was no need to change the creek or clear debris from the creek in East Hawkesbury Township as the floodplain was different in East Hawkesbury and Champlain townships.
• The stream has a flood plain of 100-150 feet then it rises to agricultural land in East Hawkesbury Township. That characteristic does not exist in Champlain Township.
• He valued nature and did not want the creek disrupted any more than necessary. He has been working to make the creek more attractive to water fowl.
• Flooding is not a problem on the agricultural land in East Hawkesbury. When the culverts in the Little Rideau Creek are filled to capacity water flows around the sides in the floodplain.
• He believed the flooding problems in Champlain Township could be resolved by removing the obstructions in the portion of the creek that lay in Champlain Township.
• alleviate flooding properties on one property in East Hawkesbury Township.
• The culverts and dams in the East Hawkesbury portion of the Little Rideau Creek were holding back some water but it was a small amount.
• On May 31, 2002 he took some measurements and determined the fall between the high water point behind a small laneway culvert to his farm culvert 200 feet away was two feet. The flow beside the culvert was 250 feet wide.
• He did not believe his culvert was an obstruction.
• The flooding did not damage buildings on the properties he farms.

Mr. Jean-Jacques Demers, a downstream landowner just south of Greenlane Road, told the Tribunal he was concerned about flash flooding which causes the Little Rideau Creek to back up and flood his property. He said he lived downstream from the landowners represented by Mr. Robinson and he did not want their problem moved downstream. He said he had lived on his property for 26 years and his basement had not flooded as it was raised. However, he said Greenlane Road was washed out one Spring, prior to the installation of a 4-foot diameter culvert. He said the water was level on both sides of Greenland Road when the culvert was full. Mr. Demers said he doubted the Creek could take any additional water, even if the obstructions were removed. He said that the water level in the creek had increased when farmland upstream was tiled. He entered photographs into evidence.

Mr. Levac replied to the appellants and landowners design concerns as follows:

• The Little Rideau Creek was a sufficient outlet for the W.J. Douglas Municipal Drain (Upper and Lower) to accommodate a 2 and 5 year storm event.
• The creek had been deemed to be a sufficient outlet in 1927 and the watershed had not changed substantially over the years.
• No additional water was being routed through the creek as a result of the proposed drainage works.
• The Upper Rideau Creek Drain and the W.J. Douglas Drain were designed for two-year flood events; not flash floods that occur less frequently. The 1994 flood was a rare flood event.
• His study showed that a 50-year storm would not flood basements.
• Road bridges along the Little Rideau Creek were designed for a 20-year flood event.
• Ideally, Little Rideau Creek would be made a municipal drain for the purposes of clearing obstructions and controlling any alteration to existing crossing and installation of new crossings.
• He recommended that the cost of culvert installation be shared equally between the landowner and the municipality and that the cost of removing manmade obstructions be charged to the landowner. He said obstructions with natural causes should be removed at the cost of the municipalities.
• Seven existing culvert crossings do not meet the standards for 2-year storm events and should be removed or upgraded.
• The floodplain is not significantly different between Champlain Township and East Hawkesbury Township but the creek does meander more between Greenland Road and Culvert #14.
• The watershed of the proposed drainage works is less than 6% of the total watershed which drains through Little Rideau Creek to the Ottawa River.

Mr. Levac told the Tribunal that the petition for the Upper W.J. Douglas Municipal Drain was valid, as Mr. Schaerer had not removed his name from the petition at the appropriate time.

Summations

Mr. Robinson told the Tribunal that a computer model would provide more accurate hydrological data than the calculations undertaken by Mr. Levac. He said Ms. Sauve's testimony that her basement flooded twice in eight years suggested the outlet was not sufficient. He noted that the Drainage Referee had ruled that his clients were entitled to some relief from flooding, through an improvement to the outlet or through an injuring liability award. He said that clearing the Little Rideau Creek as per Mr. Levac's recommendation would resolve the issue. Mr. Robinson stressed that it was important to clear the obstructions in East Hawkesbury Township as well as those in Champlain Township. He suggested that three under-sized culverts downstream of the Demers property were responsible for his flooding problem. He said his clients had a strong preference that proposed work on the Little Rideau Creek be done in conjunction with the proposed Upper W.J. Douglas Municipal Drain. He also asked the Tribunal to consider awarding his clients costs. He noted he had represented them at the hearing before the Drainage Referee as well as this hearing.

Mr. Dawson reiterated his position that no work should be done. He noted Mr. Levac indicated that the Little Rideau Creek was a sufficient outlet for the existing W.J. Douglas Municipal Drain and said Ms. Sauve and Mr. Robinson had not proven it was not. He said he was concerned with the cost of the proposed drainage works.

Dr. Simpson said he was far enough down the drain that costs would not be a concern but that he was not persuaded that all the culverts identified by Mr. Levac actually required replacement.

Dr. Simpson presented a written summary of his presentation and pointed out that several other landowners had signed statements to the effect that they supported his views. He told the Tribunal it was important that all landowners in the watershed be notified if there was to be any work undertaken on the creek, not just those with properties adjacent to the Little Rideau Creek.

Dr. Simpson also told the Tribunal:

• Removing obstructions in the Little Rideau Creek could lead to flooding of downstrream properties.
• He believed the removal of some beavers would future crossings.

Mr. Levac said the proposed drainage works would send no more water through the Little Rideau Creek than was already flowing through it. He said cleaning the ditch, lowering two culverts and fixing the size of future culverts would improve drainage for the petitioners. He said a clean out of the Little Rideau Creek would be beneficial and that it was critical to control the installation of culverts.

Mr. Levac suggested the Tribunal could make an order that would extend the drainage works to include the Little Rideau Creek, but limit work on the creek to the removal of obstructions and the control of crossings.

The Findings

On the question of the assessment to Mr. Schaerer, the Tribunal is not persuaded by the evidence that he will not receive a benefit from the drainage work or that his assessment for statutory benefit is overstated.

On the question of amending the engineer's report on the W.J. Douglas Municipal Drain to restrict the size of culverts that may be installed in the drain, the Tribunal accepts the recommendation of Mr. Levac. It is clear that changes in the size of culverts on this municipal drain affect the flood risk to downstream landowners.

With regard to the sufficiency of the outlet of the drainage works, the evidence of Mr. Levac was that the Little Rideau Creek was a sufficient outlet for the 2 and 5 year storm events for the W.J. Douglas Municipal Drain (Upper and Lower) and that an injuring liability allowance was inappropriate. However, the Tribunal was persuaded by the evidence of Ms. Sauve and Mr. Demers that the outlet should be improved. The Tribunal concurs with Mr. Robinson that it is preferable to improve the outlet and alleviate the risk of flooding, rather than provide landowners compensation for flooding through an injuring liability award. In any event, no party presented evidence as to what amount of compensation would be appropriate and which landowners should receive compensation in the event that the outlet is not improved.

The Tribunal finds that the Upper W.J. Douglas Municipal Drain should be extended through the W.J. Douglas Municipal Drain (Lower) to include the Little Rideau Creek from the outlet of the W.J. Douglas Drain (Lower) to the Ottawa River. The Tribunal will order that any work on the Little Rideau Creek be restricted to the removal of obstructions, both natural and manmade, and a requirement that any future installation of crossings, or modifications to existing crossings be approved by a Drainage Superintendent and be in accordance with an engineer's report where the local municipal council requires it.

The question of the extent of work required on the Little Rideau Creek in order to provide a sufficient outlet was raised by Dr. Simpson. Mr. Levac maintained that no work on the creek was strictly necessary but suggested actions that could be taken to improve the drainage through the creek. Mr. Robinson maintained that all of the work suggested by Mr. Levac was necessary but acknowledged he had not walked the length of the creek. While the Tribunal is persuaded that some work is necessary to alleviate flooding problems, it is unable to determine the extent of the work required based on the evidence before it. The Tribunal reviewed the evidence before it and found no significant difference between the Little Rideau Creek floodplain in Champlain Township and East Hawkesbury Township. The Tribunal finds that there is no justification for restricting work on the Little Rideau Creek to Champlain Township.

The Tribunal will order that the engineer's report be reconsidered. The engineer will be required to determine which obstructions must be removed to prevent excessive flooding of upstream properties and to prepare an assessment schedule for this work. Natural and manmade obstructions will only be removed as necessary to satisfy requests for reduction in flooding. The engineer will be required to hold a site meeting(s) and affected landowners will have the right to appeal to the Court of Revision and/or the Tribunal.

The Little Rideau Creek is the outlet to the Upper Little Rideau Creek Drain and the W.J. Douglas Municipal Drain (Lower) as well as being the proposed outlet for the Upper W.J. Douglas Municipal Drain. When he prepares his report, the engineer has the authority to re-name and consolidate these drains as he sees fit.

The Tribunal will order the engineer to consult with and to consider the recommendations of the DFO and obtain the appropriate permits for work to be undertaken on the Little Rideau Creek segment of the drain.

On the question of costs, the Tribunal is inclined to allow half the cost of the preparation of the preliminary report on the Little Rideau Creek and the half the cost of the engineer preparing for and attending the Tribunal hearing to be assessed to the affected municipalities, on a 50:50 basis. The Tribunal notes that the engineering work on the Little Rideau Creek is of benefit to all the landowners in the watershed of some 7,000 hectares. The engineer is to include the remainder of the cost of the preliminary report in the cost of preparing the new report.. With respect to any costs of the proceedings before the Drainage Referee, the Referee has seemingly reserved that determination to himself.

The Tribunal is not persuaded that the costs of this appeal incurred by Ms. Sauve and other assessed landowners represented by Mr. Robinson should be charged to the drainage works.

ORDER OF THE TRIBUNAL

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

1. The appeal by Mr. Ulrich Schaerer made pursuant to Section 54 of the Drainage Act is dismissed.

2. The revised engineer's report by Kiama Engineering Inc. on the W.J. Douglas Municipal Drain in the Township of Champlain and the Township of East Hawkesbury and the Town of Vankleek Hill dated November 1999 is to be amended as per the draft amendment prepared by Kiama Engineering Inc. dated January 15, 2002. This amendment will provide that: All future culvert crossings shall abide to the following: "The crossings and/or culverts on the Lower W.J. Douglas drain from Station 1+500 to Station 2+302 shall have a diameter of 1.2m (or equivalent); from Station 2+302 to Station 3+913 shall have a diameter of 1.6m (or equivalent); from Station 3+913 to Station 4+293 shall have a diameter of 1.8m (or equivalent). The culverts being replaced in the future shall be of exact size specified above, no bigger nor smaller. The culvert size is based on using corrugated steel pipe culverts. It is further directed that any alterations or relocations of culverts located in the drain shall require the permission from the Township of Champlain Drainage Superintendent.”

3. The revised engineer's report by Kiama Enginerring Inc. on the Upper W.J. Douglas Municipal Drain dated December 2000, and revised March 2001 is referred back to the engineer for the purpose of:

i) Extending the proposed drainage works to include the Little Rideau Creek from the outlet of the W.J. Douglas Municipal Drain to the Ottawa River.

ii) With respect to that portion of the works downstream of the outlet of the lower W.J. Douglas Drain, the report need only address the removal of obstacles, both natural and manmade, that contribute to upstream flooding and also address such other concerns that are raised by the persons attending the on-site meeting(s), if any.

iii) Setting standards for the repairing, installation or alteration to crossings, culverts, and other works in any part of the drain.

iv) Providing distinct schedules of assessment, for the removal of natural obstructions and for removal/replacement/installation of other works. The Little Rideau Creek Extension is to be divided into segments of approximately one-to-two kilometres in length for the purpose of the maintenance schedule. The cost of the removal of natural obstructions is to be assessed to upstream landowners.

4. Such report shall be treated as a report obtained under Section 78 of the Drainage Act and all proceedings required thereunder shall be taken.

5. The engineer shall consult with the DFO and obtain permits where required.

6. Champlain Township and East Hawkesbury Township are each to be assessed 25% of the cost of the preparation of the preliminary report on Little Rideau Creek which was ordered by the Drainage Referee. and 25% of the engineer's costs of preparing for and attending the Tribunal hearing. The balance of the cost of this report is to be assessed by the engineer in the new report

7. Except as noted above, the non-administrative costs of the Township in 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 16^th day of July, 2002.