Gardiner Drain (Re), 2005 ONAFRAAT 31

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:appeals.tribunal@omaf.gov.on.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal@omaf.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Gardiner Drain

Municipality of Perth South

Gardiner Drain (RE) 2005 ONAFRAAT 31

STATUTE:

Drainage Act

HEARING:

November 23, 2005

DATE OF DECISION:

November 30, 2005

2005-31

NEUTRAL CITATION:

2005 ONAFRAAT 31

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, C.D.17 AS AMENDED.

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Ron Christie, Staffa, ON under Section 54 of the Drainage Act from the decision of the Court of Revision and under Subsections 48(1)(a), (b) and (c) from the engineer’s report on the Gardiner Drain in the Municipality of Perth South.

Before:

Kirk Walstedt, Vice Chair; Jack Young, Vice Chair; Ron Gelderland, Member; Russell Piper, Member

Appearances:

Ron Christie, appellant

Tim Shute, witness for the appellant

David Marshall, assessed landowner, witness for the appellant

Martin Curtis, Department of Fisheries and Oceans, witness for the appellant

Gerry Culliton, counsel to the Township of Perth South

Paul Elston, P. Eng., the engineer who prepared the report, on behalf of the Township of Perth South

Mark Snowsell, Upper Thames River Conservation Authority, witness for the Township of Perth South

Catherine Paul, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Kirkton, Ontario on November 23, 2005. Mr. Ron Christie appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 and Subsections 48 1 (a), (b) and (c) of the Drainage Act (the Act) from the Revised Report dated February 1, 2005 and the Addendum Report dated May 26, 2005 both prepared by Paul Elston of R.J. Burnside & Associates Limited (the Engineer) on the Gardiner Drain Extension 2004.

Ms. Muriel King Clerk/Treasurer for the Township of Perth South (the Municipality) performed the duties of Clerk of the Tribunal.

Statutory Context

Section 48 1. (a), (b) and (c) of the Act states:

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;

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.

Section 54. (1) of the Act states:

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.

Preliminary Matter

Mr. Christie explained to the Tribunal that his appeal was confined to issues under Section 48 of the Act and that he would not be addressing matters pertaining to Section 54 of the Act.

The Background

The initial reports for the Gardiner Drain Extension 2004 were prepared at the request of the Township of Perth South under Section 78 of the Act.

The steel access bridge over Fish Creek on Lot 7, West Boundary Concession, owned by D. & C. Paul, was in critical condition and required replacement. Mr. and Mrs. Paul operate a dairy farm necessitating the speedy replacement of the crossing with a structure that could accommodate milk transport trucks and farm implements. This was confirmed by a consulting engineering firm and a new culvert crossing was designed and constructed in 2002

Mr. Paul had concerns that the flow capacity of Fish Creek, (a natural watercourse) was inadequate to handle peak flows of water that entered it from the Gardiner Drain, located upstream of his property. Mr. and Mrs. Paul requested that their access culvert be incorporated into an extension of the Gardiner Drain. The Gardiner Drain Extension would also serve to incorporate a portion of Fish Creek as a municipal drain.

An initial report was prepared July 27, 2004 and revised February 1, 2005.

The Municipality referred the February 1, 2005 report back to the Engineer for consideration of concerns relating to the constriction of flows in Fish Creek at the site of a bridge south of the town of Kirkton and allowances made for lands that were to be designated as buffer strips under the February 1, 2005 report.

A subsequent “Gardiner Drain Extension 2004 - Addendum Report” dated May 26, 2005 was prepared; it incorporates the “Gardiner Drain Extension 2004” report dated February 1, 2005

The Issues

The issues before the Tribunal were:

1. Are the allowances for lands to be designated as buffer strips along the Gardiner Drain Extension 2004 appropriate?

2. Should the section of Fish Creek as proposed in the Gardiner Drain reports be constructed or should Fish Creek be left in its present state?

The Evidence

Paul Elston

Mr. Paul Elston, P. Eng., made his opening comments stating that he was appointed Engineer on the project for the Gardiner Drain Extension 2004 under Section 78 of the Act. Mr. Elston stated that the work necessary to repair the access culvert at the Paul property should be done under the Act. He explained that the surrounding watershed consisted of approximately 11,000 acres of rural lands and the village of Kirkton. He stated that water entered Fish Creek from the Gardiner Drain upstream and that water flowed from Fish Creek into the Fish Creek Drain downstream.

Mr. Elston said that two site meetings were held to discuss the proposed drain extension with riparian landowners. The first site meeting was held in 2002 and the second meeting in 2004. He explained that the initial report dated July 27, 2004 was hastily prepared in order to meet the deadline for the termination of a Ministry of Agriculture, Food and Rural Affairs grant program. It was subsequently revised in a report dated February 1, 2005.

Mr. Elston explained that the addendum report dated May 26, 2005 was prepared because the Municipality requested that the costs associated with allowances for the buffer strips, engineering, and construction of the works be reviewed.

Ron Christie

Mr. Christie submitted to the Tribunal that the affected landowners had very little time to review and consider the report before attending the March 15, 2005 meeting to consider the report. He stated that landowners, the Huron Federation of Agriculture, the Perth Federation of Agriculture and commodity organizations had concerns with the proposed project. Mr. Christie read into the record the opinion of the Huron County Federation of Agriculture. Its concerns were that: the benefits to be derived from the project did not justify the cost, that the allowances to landowners for buffer strips along the drain were excessive and that alterations to the natural watercourse would injure fish habitat.

Mr. Christie submitted a petition to the Tribunal signed by assessed landowners who were opposed to the Gardiner Drain Extension 2004. He stated that the amount of excavation that was proposed for the natural watercourse had been reduced from 2000 m initially, to 500 m. He stated that one quarter of the cost of Mr. and Mrs. Pauls’ access bridge should be assessed upstream. Mr. Christie referred to an enlarged aerial photograph of the area where the proposed works was to be constructed. He also referred to enlarged photographs of the existing buffer strip along the proposed project area. Mr. Christie told the Tribunal that:

• The proposed works threatened fish habitat in Fish Creek. It was nonsensical to construct a works that would necessitate rebuilding fish habitat that already existed in the channel.

• The site of the proposed works was an environmentally significant wetland and source water aquifer.

• The gradient along the existing water course was very shallow. The existing buffer strip consisted of grassed runways and treed areas. Trees are important for the protection of source water and groundwater.

• The findings from the Walkerton inquiry have brought forth the importance of protection of source water and wetlands.

• He was advised by a hydrologist that the Kirkton area sits on top of an underground lake of fresh water that is the best shallow water aquifer in Perth County.

Mr. Christie responded to questions that:

• The petition against the project was directed to the municipality.
• All the landowners who signed the petition are upstream landowners assessed for outlet assessment only on the proposed works.

Tim Shute

Mr. Shute testified before the Tribunal that:

• He is not an assessed landowner on this drainage project
• His parents are assessed on the Gardiner Drain Extension 2004 and he owns property that is assessed on the Fish Creek Drain, located downstream of the proposed works.
• There is a decrease in the gradient in the watercourse as it progresses downstream toward the Fish Creek Drain.
• At issue was the funding of Mr. and Mrs. Pauls’ access culvert under the Act..
• There appeared to be support for the project among the assessed landowners who attended the second on site meeting to consider the report; however, they did not have enough time to seriously consider the implications of the proposed works. It was not until some time after the meeting that concerns with the project were raised.

In response to questions, Mr. Shute told the Tribunal that:

• The first site meeting to consider the proposed works was held pursuant to the requirements under the Act.

• Assessed landowners were given proper notice of the second site meeting and were given adequate opportunities to express their concerns with respect to the project.

• The project was initiated as a means of incorporating the bridge access to the Paul property into a municipal drain. It was not initiated as a result of drainage problems on upstream lands.

• He had no objection to the incorporation of Mr. and Mrs. Pauls’ access bridge into a municipal drain.

• The people at the site meeting coerced the assessed landowners to agree to the project as it was presented in such a way as to indicate that nuisance issues such as fallen trees would be cleared out of the channel.

• He did not agree that conditions in the natural watercourse contributed to the damage to Mr. and Mrs. Pauls’ access bridge. He is aware of the existence of beaver dams in the channel but testified that they are not the cause of any drainage problems. The proposed project will not limit or stop beaver activity in the channel; however, maintenance on the proposed project will disrupt the beaver on a consistent basis.

• Systematic drainage tiles on land abutting the site of the proposed works are often underwater. The proposed works will alleviate this condition.

• The report acknowledges that the proposed works is sited on fish habitat, therefore it make no sense to disrupt the habitat only to reconstruct it.

Martin Curtis

Mr. Martin Curtis testified before the Tribunal on behalf of the appellant. He stated that he is a Fish Habitat Biologist with the Department of Fisheries and Oceans (DFO). Mr. Curtis referred to the gradient profiles and drawings of the proposed works. He told the Tribunal that:

• There has been dialogue with the Upper Thames River Conservation Authority (UTRCA) about the proposed works.
• He has been consulted on the proposed project to provide advice about alterations to fish habitat.
• The site of the proposed works provides habitat for approximately six species of warm water fish and mussels.
• Fish habitat that is destroyed by excavation in the channel will have to be replaced and protected against future erosion.
• He has worked with Mr. Elston.and the UTRCA with regard to resolving issues to satisfy the requirements of the Fisheries Act.
• To date there are no species living in the channel that have been identified as threatened or endangered under the Species at Risk Act (SARA). However, the Rainbow Mussel which lives in the stream may soon be identified as being at risk under SARA. The dilemma that lies with the issue of the Rainbow Mussels is the cost associated with protecting them should they be classified as endangered. However, it is not practical to make special arrangements for the protection of the Rainbow Mussels until they are classified under the SARA.

In response to questions, Mr. Curtis told the Tribunal that:

• The DFO has not placed any restrictions on the proposed project nor has it held up any part of the process because of the presence of the fish and mussels in the channel.
• If at any time during the construction of the project, Rainbow Mussels become identified as endangered under SARA, provisions for their protection would have to be made.
• Due to his recent relocation, he has not been involved with the Gardiner Drain Extension 2004 from its inception. The DFO should be involved from the outset with any project that may impact fish habitat.
• Despite relocating from another province, he is familiar with the Ontario Drainage Act.
• Buffer strips are an important factor in the creation and maintenance of fish habitat.
• It is acceptable practice to recreate fish habitat in the incumbent or an alternate waterway should the habitat be altered or destroyed as a result of construction. This practice is known as providing compensation. With respect to the Gardiner Drain Extension 2004, the provision of buffer strips, pools and riffles has been included in the report as compensatory fish habitat.
• The construction of the fish habitat structures increases the cost of the works.
• The DFO’s position with regard to drainage works is strictly advisory. The DFO does not issue prescriptive directives.
• If it were his decision to construct a municipal drain in the natural watercourse or to leave the channel in its current state, he would choose to leave the natural watercourse untouched.
• DFO provided verbal confirmation that it would grant approval of this project if it proceeds as now presented.

David Marshall

Mr. David Marshall told the Tribunal that he was a landowner assessed on the proposed works. He stated that he first became concerned with the proposed project when he reviewed the report in preparation for the site meeting in March 15, 2005. Mr. Marshall told the Tribunal that:

• He assisted Mr. and Mrs. Paul with the replacement of their access bridge.
• He was shocked to see that the cost of the proposed works had risen sharply from $50,000, the cost of the access bridge, to over $200,000 for the proposed channel work and allowances for buffer strips.
• The allowances for buffer strips under the report make no sense as the lands are valued far above their current use. The lands in the proposed buffer strip under the report are currently serving the same function at present. There is no agricultural activity on lands that directly abut the channel.
• The report proposes to provide allowances to the Ministry of Transportation and the Municipality of South Huron for land that has very little value.
• The proposed total cost of allowances for buffer strips, clearing and providing a working area and access to the waterway of $45,770 is completely unreasonable.

In response to questions, Mr. Marshall told the Tribunal that:

• Though the lands abutting the watercourse are not presently under cultivation, there is no impediment to bringing them under cultivation in the future.
• It is his understanding that buffer areas for waterways are protected by municipal bylaws.
• He does not agree with the proposed cost of providing allowances or maintenance for the buffer areas under the report.
• The lands to be used as buffer strips should be valued at $0.00. There will be no loss of production or change to their current use under the report.

Catherine Paul

Mrs. Paul told the Tribunal that she and her husband realized the need to repair the steel access bridge to their property in April 2002. She stated that a consulting engineer advised that the bridge should be replaced as it was too badly damaged to repair. Mrs. Paul explained that the bridge had to be sturdy enough to carry fire trucks should the need arise, as well as the milk transport trucks and other heavy equipment associated with farming. She stated that she and her husband understood the potential liability and possible environmental damage that could occur if the bridge were to collapse. Mrs. Paul told the Tribunal that the UTRCA and the DFO approved of the design of the new bridge by the firm of B. M. Ross and Associates Limited.

Mrs. Paul stated that she and her husband wished the bridge to be incorporated into a municipal drain and said that the work on the proposed works under the report as amended should proceed. Mrs. Paul submitted to the Tribunal the costs for design, materials and construction of the bridge totaled $52,858.13.

Mark Snowsell

Mr. Mark Snowsell stated that he was appearing on behalf of the Municipality. Mr. Snowsell submitted his Curriculum Vitae to the Tribunal indicating that he had extensive training and professional experience with matters pertaining to land and water use, planning and conservation. He submitted that he is the Land Use Regulations Officer with the UTRCA. Mr. Snowsell told the Tribunal that:

• He co-ordinates environmental assessments with respect to proposed drainage works under the report of an engineer. He reviews, on average, 20 to 30 drainage reports per year.

• The UTRCA works in consultation with DFO as necessary. The UTRCA can draw upon the expertise of its staff Aquatic Biologist as needed.

• He became involved with the Gardiner Drain Extension 2004 soon after the first report was prepared.

• The UTRCA raised concerns with the firm that prepared the reports with respect to the effects of maintenance of the works on downstream areas. The UTRCA owns property downstream of the new culverts on the drain.

• He is confident that downstream areas will not be adversely affected by the proposed works.

• The UTRCA preferred to limit the size and scope of the works in an effort to limit its impact on the channel and surrounding lands.

• The UTRCA and the assessed landowners recognized that the existing flood plains and grassed waterways served a necessary function and that it was unreasonable to expect that flood plains could be used as productive agricultural land.

• Upon reviewing the reports and results of the site meetings and consulting with the authors of the reports he was satisfied that the proposed works was needed and would resolve the initial concerns of the Municipality.

In response to questions Mr. Snowsell told the Tribunal:

• The construction of the project under the Act provides a vehicle to address maintenance issued such as beaver dams and fallen trees.
• The proposed works will not adversely affect the shallow water aquifer underlying the watershed.
• Fish Creek is an environmentally significant watercourse; every effort should be made to maintain and improve it.
• Any proposed works to the channel should be limited and non invasive.
• The UTRCA provides consultation with regard to fish habitat but it is not authorized to enter into negotiation to establish or set compensatory measures for fish habitat.
• He did not attend the first site meeting; however the UTRCA was notified that it was being held.
• No solution to drainage concerns will resolve all the concerns of all the parties involved. Occasionally, beaver dams and fallen trees will create obstructions in a waterway but a works constructed under the Act provides the most practical means of systematically removing obstructions.

Paul Elston P. Eng.

Mr. Elston told the Tribunal that the UTRCA was notified of the site meeting being held in December 2002 to consider the extension of the Gardiner Drain. He stated that no one from the UTRCA attended that meeting. Mr. Elston told the Tribunal that:

• The proposed works will outlet into the Fish Creek Drain.
• Approximately 700 m of spot work is to be done. The reason for the work secondary to incorporating Mr. And Mrs. Pauls’ access bridge, is the removal of beaver dams and fallen trees and to provide freeboard for tile outlets.
• If the works is not constructed under the Act, landowners in the watershed are left to cope with issues on an ad hoc basis.
• The need for reduction of impact on the environs of the proposed works is expressed in the design and scope of the proposed works.
• The UTRCA and the Ministry of Agriculture, Food and Rural Affairs preferred the use of buffer strips in the works.
• Outstanding issues that have not been resolved are concerns with the engineering fees and allowances; allowances and construction costs have been reduced. Allowances for buffer areas were reduced from $4000 to $2000 per acre.
• There is a justifiable need for the works to be constructed under the Act and to leave the watercourse as it is would not be the correct action to take.

In response to questions, Mr. Elston told the Tribunal that:

• Although the bridge on Highway 23 was identified as constricting the flow of water in the channel a Ministry of Transportation hydrology study found that this was not the case.
• The flood plains existent upstream and downstream of the works as well as those abutting the works are necessary to lower water levels in the creek and to provide freeboard for tile outlets. It is not unusual to expect that tile outlets may be submerged during certain times of the year.
• The report proposed to recreate fish and mussel habitat in certain areas where the habitat will be destroyed by excavation. There is no established protocol for moving mussels during construction to replace them in reconstructed habitat.
• The DFO and UTRCA will be consulted as necessary during the construction phase of the works.
• It is acceptable practice to make allowances for lands based on its current use.
• He disagreed that the lands to be used for buffer strips have no value. The buffer lands are valuable as flood plain and aquifer.

Summations

Mr. Ron Christie asked the Tribunal to significantly reduce or eliminate the allowances for buffer lands under the report. He requested that no work be undertaken on the channel bed of Fish Creek. He argued that if no work were done on the channel bed, the need for access and right of way allowances could also be eliminated from the cost of the project. Mr. Christie stated that he was advised that a minimal allowance for access and buffer lands would satisfy the requirements of the Act.

Mr. Christie stated that the engineering fees for the project were excessive and requested that the Tribunal reduce them. He said that the majority of assessed landowners took no issue with the incorporation of Mr. and Mrs. Pauls’ access bridge into a municipal drain but the taxpayers of Ontario should be considered with respect to the provision of grant money for a project that was not necessary to construct. Mr. Christie reminded the Tribunal that in the post Walkerton era the preservation of ground water recharge, flood plains and environmentally sensitive lands was widely recognized.

Mr. Culliton asked the Tribunal to retain the report as written. He stated that to create a municipal drain without undertaking work on the watercourse was not a solution to the matter. He stated that the engineering recommendation supported the need to undertake the proposed works under the report.

The Findings

The Tribunal agrees with the evidence of the Engineer that the proposed works is necessary. It is satisfied that the local conservation authority and DFO were notified that a drainage works was proposed and they were invited to make submissions with regard to their respective positions on land and water use and preservation of fish habitat in a timely and proper manner. From the evidence of Mr. Curtis, the Tribunal finds that the DFO is satisfied that adequate provisions for maintenance or compensation of fish habitat have been addressed under the report.

The Tribunal accepts the testimony of Mr. Snowsell that the proposed works is necessary to provide a mechanism for future maintenance of the drainage project. As it presently exists there is no provision for systematic maintenance of the channel.

The Tribunal considered the testimony of both the appellant and the engineer on the allowances for the buffer strip and for the working area required to maintain the drain. The Tribunal accepts the fact that buffer strips are an important part of the project both for the protection of the drainage channel and the protection of fish and mussel habitat. The buffer strips will assist in the groundwater recharge process. The engineer reduced the allowance on these buffer strips by approximately half in the course of reconsidering the project and the Tribunal does not consider that a further reduction is warranted. The engineer was qualified as an expert witness and has extensive experience in assessing the value of land used in drainage works.

The Tribunal relies on the expertise of Mr. Snowsell and Mr. Curtis with respect to their evidence that the watershed of Fish Creek is a significant aquifer and that the watercourse and surrounding area are home to fish and mussel species and provide necessary and valuable wet lands. The Tribunal is satisfied that the construction of the works will not adversely affect areas of the watershed downstream.

The Tribunal finds that the Municipality has acted in a proactive manner in referring the report back to address their concerns and those of the landowners. The Engineer was faced with difficult problems in coordinating the requirements of DFO and the UTRCA while satisfying the interests and requirements of the landowners within the watershed.

Mr. Christie raised a concern about the engineering fees. That matter was not before the Tribunal. The Tribunal may only review an engineer’s account on an application by the Municipality under Section 72 of the Act

ORDER OF THE TRIBUNAL

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

1. The Tribunal confirms the “Gardiner Drain Extension 2004 - Addendum Report” dated May 26, 2005 which incorporated the “Gardiner Drain Extension 2004” report dated February 1, 2005

2. The appeals of Ron Christie under Subsections 48 1 (a), (b) and (c) and Section 54 of the Drainage Act are dismissed.

3. 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 Essex, Ontario this 30th day of November, 2005.