Eden Grove Municipal Drain (Re), 2006 ONAFRAAT 21

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:appeals.tribunal@omafra.gov.on.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: appeals.tribunal@omafra.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Eden Grove Municipal Drain Township of Leeds and the Thousand Islands

Eden Grove Municipal Drain (RE) 2006 ONAFRAAT 21

STATUTE: Drainage Act

HEARING: May 11, 2006

DATE OF DECISION: July 5, 2006

2006-21

NEUTRAL CITATION: 2006 ONAFRAAT 21

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

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Geoff Bradley, Christine Bradley, Marjorie Tiemersma and Louise Tiemersma under Subsection 54(1) of the Drainage Act from the decision of the Court of Revision, by Mac Donnelly and Robert Carey under Subsection 48(1)(b) of the Drainage Act from the engineer’s report and by Paul Garrah under Subsections 48(1)(b) and 48(1)(c) of the Drainage Act from the engineer’s report on the Eden Grove Municipal Drain in the Township of Leeds and the Thousand Islands.

Before: Gene Trotman, Vice Chair; Jack Young, Vice Chair; Ron Gelderland, Member

Appearances:

Donald Good representing appellants Louise Tiemersma, Marjorie Tiemersma, Geoffrey Bradley, Christine Bradley

Graham Lord, representing David Ashie and Patricia Ashie, affected landowners

Paul Garrah, appellant

Mac Donnelly, appellant

Robert Carey, appellant

Brian Paquin P. Eng., Ainley Group, the engineer who prepared the report

Patricia Ashie, witness

Jim Dobson, witness

Steve Knechtel, Cataraqui Region Conservation Authority

Holly Evans, Cataraqui Region Conservation Authority

DECISION OF THE TRIBUNAL

These appeals were heard in Lansdowne, Ontario on Thursday, May 11, 2006 and Friday, May 12, 2006. The appeals relate to a report dated May 2004 on the “Eden Grove Municipal Drain” (the Report) in the Township of Leeds and Thousand Islands (the Municipality), prepared by Brian Paquin, P.Eng, (the Engineer) of the Ainley Group.

Mr. Good represented the appellants, Louise Tiemersma, Marjorie Tiemersma, Geoffrey Bradley, Christine Bradley who appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act). They sought a reduction in the assessments to their properties.

Mr. Lord represented David Ashie and Patricia Ashie, landowners who were satisfied with the assessment schedule.

Mr. Garrah, Mr. Donnelly and Mr. Carey all had concerns with the design of the drain in the Report. Mr. Garrah also appealed under Subsection 48(1) (c) of the Act.

Mr. John Theriault, Chief Administrative Officer/Clerk of the Township of Leeds and the Thousand Islands (the Municipality) acted as clerk of the Tribunal.

Statutory Context

Subsection 48(1) 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;

(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. R.S.O. 1990, c. D.17, s. 48 (1).

Subsection 54(1) 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. R.S.O. 1990, c. D.17, s. 54 (1).

The powers of the Tribunal are laid out in Section 51 of the Act which 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).

Also relevant in this matter are Subsection 8(1) of the Act and Section 40 of the Act which read as follows:

Appointment of engineer

8.(1) Where the council of the initiating municipality has decided to proceed with the drainage works described in a petition, the council shall by by-law or resolution appoint an engineer to make an examination of the area requiring drainage as described in the petition and to prepare a report which shall include,

(a) plans, profiles and specifications of the drainage works, including a description of the area requiring drainage;

(b) an estimate of the total cost thereof;

(c) an assessment of the amount or proportion of the cost of the works to be assessed against every parcel of land and road for benefit, outlet liability and injuring liability;

(d) allowances, if any, to be paid to the owners of land affected by the drainage works; and

(e) such other matters as are provided for under this Act. R.S.O. 1990, c. D.17, s. 8 (1).

Engineer's finding, drainage works not required, etc.

40. Where the engineer finds that a drainage works is not required or is impractical, or cannot be constructed under this Act, the engineer shall forthwith file with the clerk of the initiating municipality a report to that effect, stating the reasons therefor, the amount of the engineer's fees and other charges and by whom they shall be paid, and the clerk shall forthwith send a notice of the filing of such report, by prepaid mail, to all persons who signed the petition or requisition, as the case may be, and the matter shall not be further proceeded with unless the decision of the engineer is reversed on appeal. R.S.O. 1990, c. D.17, s. 40.

Preliminary Matter

Mr. Good informed the Tribunal that the appeals of Messrs. Garrah, Donnelly and Carey were filed very late, more than five months after the statutory deadline. He submitted that if the Tribunal did agree to extend the time for initiating an appeal that these appeals be disposed of first, because, if Mr. Garrah was successful in having the by-law rescinded there would be no assessment schedule for his clients to appeal.

Mr. Garrah and Mr. Carey told the Tribunal they were acting on the direction of the Council of the Municipality and that was why their appeals were filed late.

The Tribunal extended the time in which appeals may be initiated for Messrs. Garrah, Carey and Donnelly. The Tribunal noted there appeared to have been a miscommunication regarding the date by which appeals were due.

The Tribunal directed Mr. Good to submit his evidence with regard to the Section 54 appeals as the Tribunal would not be issuing an interim decision on the Section 48 appeals during the hearing.

Mr. Steve Knechtel, Cataraqui Region Conservation Authority (CRCA), asked for standing at the hearing as the CRCA had lands in the watershed. Mr. Lord asked that his clients have standing as some of the appellants had suggested their assessment be increased. There were no objections to either request and the Tribunal allowed the CRCA and Mr. and Mrs. Ashie standing at the hearing.

The Background

Mr. Brian Paquin, P. Eng., told the Tribunal he had 17 years of engineering experience and had worked on environmental projects and designed storm water management systems and was the manager of the Belleville office of Ainley Group. He said the Eden Grove Municipal Drain project was the second report that he had prepared under the Act. He stated he had completed a Drainage Superintendent course run by Sid Vanderveen of the Ontario Ministry of Agriculture and Food and that he consulted with his peers and Mr. Vanderveen throughout the process pertaining to the Eden Grove Municipal Drain.

Mr. Paquin gave a brief overview of the history of drainage in the area in question. He said that

• a Trans Canada pipeline was constructed in the area in the 1970s and at that time a farm lane was built up to allow wood to be harvested for a corduroy road;
• three culverts – sections of the 400 mm pipeline – were installed under the farm lane and that two culverts eventually got plugged;
• a fourth culvert was installed over the remaining functional culvert
• in 1997 the CRCA was contacted and it prepared a report detailing drainage problems and environmental issues and made some recommendations;
• in 2003 his firm was appointed to prepare a report under the Act; and
• a preliminary report was filed on March 2, 2004; his final report (the Report) was filed in June 2005.

Mr. Paquin explained the work recommended in his report was to remove the existing culverts under the farm lane and replace them with appropriately sized culverts which would match the capacity of the three original culverts, which had apparently worked well in draining the area in the past. He said it was a simple, cost effective solution. Mr. Paquin acknowledged there was some interest in dealing with beaver activity at the west end of Bullfrog Bay Road and said there may be some benefit to this proposal.

With regard to assessments, Mr. Paquin said the properties that benefited from the proposed drainage works were Lot 3 and a small part of Lot 4. He said he used a 70:30 statutory benefit:outlet liability ratio. He explained that a large number of properties would have very little assessment and the Municipality had agreed to pay their assessments. He said the outlet assessment worked out to $1.29/ha.

Mr. Paquin also indicated that

• there were over 2,100 ha in the watershed;
• everything in his drawing related to a 100 m assumed elevation that he used as a benchmark;
• the drain would outlet into a bog, disperse through the bog and eventually flow into the Gananoque River;
• in early spring and fall the proposed culvert would be at capacity and would overflow the lane; upstream lands would act as a storage pond but would eventually drain through the culvert;
• a culvert had been installed under Bullfrog Bay Road by the Municipality and provided some relief to the North;.
• he used Mannings equation to calculate the capacity of culverts and a SWMHYMO computer model to predict water flows; and
• he was aware that the peak flow – 6.34 cubic metre/second - was 25 times the capacity of the proposed culvert. It was intended to overflow in larger storm events.

The Issues

1. Are the assessments to the Bradley and Tiemersma properties fair?
2. Should other properties be assessed?
3. Should the drainage works be modified?

During the course of the hearing, the additional issues enumerated below arose out of questioning by the Tribunal.

4. Does the Report address all of the concerns identified by the landowners?
5. Is the project feasible and will the proposed work lower the water levels enough to satisfy the farming expectations of the petitioners?
6. Do the benefits to be derived from the project merit the cost of the proposed drainage works?

The Evidence

Design Issues

Mr. Steve Knechtel told the Tribunal that

• he is the General Manager of the Cataraqui Region Conservation Authority and that he had spent over 20 years working for conservation authorities, was a Certified Engineering Technician and held Bachelor degrees in Geography and Environment
• the Eden Grove Creek generally flows to the north into Wiltsie Creek and the Gananoque River;
• the area requiring drainage is a provincially significant wetland and has been identified as an Area of Natural and Scientific Interest (ANSI);
• the area in question is very low and minor obstructions impact water levels over a considerable area for extended periods of time;
• a pilot project between the CRCA and the Municipality allowed the installation of a culvert under Bullfrog Bay Road and a short channel onto CRCA land, taking some water from the area requiring drainage to the CRCA;
• the CRCA and the Municipality were prepared to retain the pilot project; and
• water flowed to the north and west in the watershed; a second outlet to the west would help alleviate ponding.

In response to questions Mr. Knechtel indicated that

• the water level south of Bullfrog Bay Road was lowered after the culvert was installed under the road;
• there was once an old wooden bridge under Bullfrog Bay Road, west of the location of the culvert installed as part of a pilot project;
• the channel running north from the new culvert under Bullfrog Bay Road extended approximately 75 m;
• initially there was a rush of water through the new culvert but a small amount continued to flow;
• he was familiar with some of the culverts under the farm lane on the Ashie property and had seen them when clear and when plugged;
• the culverts have deteriorated over time and beaver activity also contributed to the flooding;
• the pilot project would not resolve the drainage problems in the area; a second outlet would let water move out more quickly and still retain the wetland;
• it may not be necessary to include the pilot project in the Report;
• the wetland had expanded in recent years;
• the Wiltshie marsh was extensive and generally water flows into the marsh then out to the Gananoque River which can back up into the marsh due to damming of the river by a power company;
• the Bullfrog Bay Road was a road allowance but was not widely used; and
• the conservation authority was trying to reach a balance between the agricultural needs and the environment on this project.

Mr. Paul Garrah told the Tribunal his property was west of the Ashie property and he was concerned that the culvert proposed by the engineer would allow water to flood an access road that ran through his property to six others and disallow him to access the north end of his property. Mr. Garrah provided photographs and drawings of the area. He said the topography was very flat over a great expanse of land and any minimal change in water would affect a large area.

Mr. Garrah said he was very concerned over the accuracy of the Report as he understood the engineer had only taken one elevation measurement, had not undertaken hydrological studies and had misnamed a creek on his plan. Mr. Garrah also said that

• the proposed outlet was a peat bog over clay and water would drain very slowly through it;
• the landmass is designated as an ANSI and was difficult to drain;
• he agreed with earlier testimony that water from Eden Grove Creek could travel both west and north;
• northward drainage options were not seriously considered;
• two of the TransCanada pipeline culverts had never been found so the engineer could not know their capacity;
• if the pilot project to take water north under Bullfrog Bay Road is to be maintained it should be included in the report; and
• he would be more comfortable with two outlets.

In response to questions from the other parties, Mr. Garrah indicated that

• at a council meeting the CRCA asked the target water level and Mr. Paquin said it was to bring the water down to the level it was before the bridge on Bullfrog Bay Road was removed;
• he agreed the Municipality could put a culvert under its own road without using the Act;
• he had seen the Ashie causeway in fall and winter and in winter there was ice on the east side but a trickle of clear water could be seen coming through the two culverts;
• based on his experience with a Ducks Unlimited project he expected to see more data to support the Engineer’s proposal; and
• his access road had been flooded in the past due to beaver dams.

In response to questions from the Tribunal, Mr. Garrah said he had owned his property for 12 years and was not familiar with the area before the Ashie causeway was constructed. He said he did not add his name to the petition requesting drainage as he did not think he would gain any land that could be used for agriculture.

Mr. Mac Donnelly told the Tribunal that

• the Ashie causeway was the only obstacle in the drainage area that he was aware of and nothing had changed in it in 12-15 years;
• he had only visited it in May;
• his concern was that the access road through the Garrah property remain intact and not washed out by the proposed drainage works;
• water flows to the north in the watershed, not to the west;
• water from Eden Grove Creek flows north, then northeast across Bullfrog Bay Road;
• there were no beaver in the area until the 1990s; and
• there was no farming on the Bradley property except a small field on the east side.

Mr. Donnelly provided photos which he indicated showed that beaver bafflers are not effective. He also provided letters from former long time residents of the area, Mr. Stan Heasler and Mr. David Bradley. These letters stated that there was harvesting of swamp grass during dry years but the land was too wet for conventional farming. These letters also indicated that the water from Eden Grove Creek flowed to the north across Bullfrog Bay Road at that time and not west through the Ashie property.

In response to questions Mr. Donnelly indicated that

• he was familiar with the Ashie causeway and felt the culverts had been poorly constructed;
• if the causeway were not there, the water level of the swamp would drop 15-18 inches but it would not be completely dry;
• water wants to go north but it is blocked and if the causeway were removed it would flow to the west;
• no one knows when the culverts in the Ashie causeway functioned; and
• if he lost use of the access road the only other way to his property was to walk through the woods.

Mr. Jim Dobson said he had trapped beavers in the area in the winter and they were plentiful. He told the Tribunal that

• water flowed mostly to the north with some flowing to the west;
• the area could not be drained because a power company backs water up into Wiltsie Creek;
• ice freezes in the area in the form of shell ice - freezing, thawing and re-freezing;
• the Eden Grove Creek enters the Bradley property and spreads out. There were cattails on the Bradley property; and
• water flowing under the Eden Grove Road was brown.

In response to questions, Mr. Dobson agreed that

• if water cannot pass Bullfrog Bay Road it flows south;
• water is always lower on the west side of the Ashie causeway except when it overflows;
• there is a marsh just south of the causeway but it is not as marshy as the Bradley property;
• the causeway was approximately 100 feet long and 14-20 feet wide;
• water was about one foot below the culvert when he viewed it between October and March;
• he had trapped in the vicinity for 10-12 years, mainly on CRCA land;
• the floodplain was silting up;
• he took a beaver dam out of the northwest corner of the Bradley property and water flowed to the north; and
• if culverts in the causeway are blocked the water flows north; there is also a rift there.

Mr. Bob Carey told the Tribunal that

• there were more flooded lands to the northeast of the area requiring drainage;
• he had seen beaver dams on the CRCA property blocking water from flowing north and that he notified the CRCA but CRCA did not remove the dams;
• he understood there was 1,000 acres of drowned land;
• The Eden Grove Creek runs through the Tiemersma property into the Bradley property and then runs north;
• the CRCA indicated the Eden Grove Drain ran westerly but that was not possible due to a high rock outcrop;
• the power company has a high dam on the Gananoque River. It had the rights to the water;
• Eden Grove Road used to flood before the new box culvert was installed in 1995;
• large farms to the south are now tiled and their water flows through this culvert;
• there were no soil studies referenced in the Report;
• he was concerned that if a lot of water was dumped behind his land it would block his drainage and he would be flooded instead; and
• the recommended solution would change the natural flow of the watercourse.

Mr. Carey provided photographs to the Tribunal. He noted that in 1950 the Eden Grove Creek ran under Bullfrog Bay Road where an old wooden bridge used to be. He said he told the engineer there were once three functioning culverts in the Ashie causeway as someone had once given him this information.

In response to questions from the other parties, Mr. Carey indicated that

• he had attended all the meetings related to the proposed drainage works;
• he thought the Tiemersma lands could be drained with a big trench to the north, but the CRCA might object;
• the culvert proposed in the Report would not work;
• he agreed the engineer had not provided for drainage to the north when this was contemplated by the Council of the Municipality;
• the new culvert on Bullfrog Bay Road was installed at too high an elevation;
• he had been on the Ashie causeway approximately 25 times;
• he had seen water flowing over the north end of the causeway; the land there was almost bare rock;
• he had seen cut trees and debris from beavers in the area of the causeway but water still flowed through both culverts;
• land northeast of the causeway was a mud bog but the water was clearer closer to the causeway; and
• if the Bullfrog Bay Road were removed all the water would flow north.

In response to questions from the Tribunal, Mr. Carey said that

• he first saw the causeway 25-30 years before but he did not recall seeing it before the pipeline was installed;
• in dry times water was 1–1.5 feet below the top of the causeway and the first week of May 2006 it was 8-10 inches from the top; and
• the embankment was 2-2.5 feet high on the west side.

Ms. Holly Evans told the Tribunal that she worked for the CRCA and was involved in the pilot project and had qualitative observations of water levels but no measurements.

In response to questions from the parties, Ms. Evans indicated that

• she had reservations as to whether the proposed drainage works will work as she had not seen enough information on elevations in the area;
• the CRCA was comfortable with the proposed works but its concern was the sufficiency of water in the marsh to preserve the ANSI;
• the proposed project would not vastly reduce the flooded area and the special features should be preserved;
• she did not disagree that the drainage area was a headwater area with drainage in different directions at different times of the year;
• there were similar shrubs and cattails on the north and south sides of Bullfrog Bay Road and the density of plants seemed similar;
• she had not conducted a vegetative survey;
• Mr. Knechtel had identified a slight increase in the wetland area over time but she did not recall the time period over which that was identified;
• she had not been aware of the 1950 map prior to the hearing;
• the CRCA would want an environmental assessment done before any trenching through its property to the north;
• she was concerned that a wide trench would attract beavers;
• the CRCA was not concerned about farmland being drained and the loss of fringes of wetland, but wanted the core of the wetland preserved;
• the Ministry of Natural Resources (MNR) was responsible for the ANSI designation; and
• there should be a balance between agricultural and environmental needs.

In response to questions from the Tribunal, Ms. Evans indicated that

• the CRCA had level 2 approving authority from the Department of Fisheries and Oceans (DFO);
• DFO had commented on the Report and had no concerns with regard to fish habitat;
• the CRCA was authorized to give a permit and require proper timing of the proposed drainage works under the Conservation Authorities Act and it may require more small details to be worked out before issuing a permit;
• the ANSI does not extend to the area under consideration for drainage, it is northwest of the area in question which is a provincially significant wetland;
• the CRCA would want to see a study if the causeway were to be removed and if there is a natural ridge between the ponded area and the wetland then it may be possible to drain the land and preserve the wetland; and
• the CRCA would not want the entire Bradley property drained for agriculture, due to concerns about the wetland.

Ms. Evans provided a map showing the ANSI area and the area of provincially significant wetland.

Mr. Lord presented two video clips which he said demonstrated that there were two potential outlets for water on the petitioners’ lands, one to the north and one to the west. One clip also showed beaver activity on the Bradley property.

Mr. Paquin told the Tribunal that he appreciated that Mr. Garrah and some of the other appellants had concerns with the downstream impact of the proposed drain but that he had concluded in his Report that the downstream impact would be negligible. He pointed out there was a hydrological study in an appendix to the Report.

Mr. Paquin said he questioned the accuracy of the testimony that water had run predominantly to the north as late as 1991. He said the evidence was that the pipeline was constructed in the 1970s and the water flowed to the west at that time. He acknowledged that beaver dams would have to be removed in order to maintain drainage in the area.

He said it was clear that water would flow north if the damming is unplugged, but that it was unclear how much the damming to the west has caused the buildup of water that could be carried to the north.

Mr. Paquin also said that

• water levels in the Gananoque River vary from year to year;
• there may be merit to continuing the pilot project but he was concerned there may be a backwater effect that will result in more flooding in the area requiring drainage;
• he did not recall the discussion at a council meeting held April 5, 2004 when a culvert at Bullfrog Bay Road was requested on the proposed northern drainage route and could not find the minutes of that particular meeting in his file;
• he had a proposed channel in his preliminary report but was concerned about the stability of the soil and the potential for beaver dams;
• no ditching was proposed in his Report;
• the proposed culvert is well under capacity and the upstream area will not drain well in the spring runoff;
• the drainage solution he proposed had worked historically; and
• he had visited the causeway three times and there was a trickle through the culverts but they were mainly blocked.

In response to questions from the other parties, Mr. Paquin indicated that

• the owners of the Tiemersma and Bradley properties had petitioned for drainage;
• if the drainage work he proposed was constructed water would drain from these properties; there may be merit in draining some water to the north as well;
• there was no drainage problem when the original three culverts through the Ashie causeway were working;
• he agreed he had misnamed one waterway in the Report;
• the end objective was to re-establish drainage of the subject lands to the extent they had been drained in the past;
• he used aerial photographs, maps, stereoscopes and consultation with the CRCA, local landowners and other professionals in determining the direction of flow of water in the area;
• the impact to downstream landowners would be similar to what occurred in a large storm event;
• he walked the downstream area as far as Spring Valley Creek and then walked along the creek;
• wetland does change over time;
• when the culverts in the Ashie causeway are functioning, water flows to the west.
• he did not recall when he received the 1997 CRCA report but believed he received it from the CRCA;
• it was his job to be objective;
• the proposed drainage works would allow the upstream lands to drain in a more efficient manner and the extent to which the lands may be used for agriculture would vary depending on seasonal factors;
• he agreed the topography of the area was flat and that any change in the water level would affect a large area;
• he thought the fourth culvert was installed in the Ashie causeway before the CRCA completed its 1997 report but would have to check his records to verify this; and
• he had viewed the culverts when they were completely blocked and when a trickle of water was passing through.

In response to questions from the Tribunal, Mr. Paquin stated that

• he knew he was required to date and stamp his reports and drawings but it was an oversight that this was not done for the Eden Grove Municipal Drain Report;
• a cover letter with details of the location of his company was submitted with the Report. The Report was submitted on May 12, 2005;
• an earlier version of the Repot called for two culverts;
• he consulted with his peers throughout the project and his assessment schedule was circulated to his peers before he finalized it;
• he had limited experience with the Act but considerable experience with storm water management. His other project that arose out of the Act went smoothly;
• he provided a profile of the Ashie laneway in the Report but not of the proposed drain;
• he felt using floodplain data and aerial photographs was the most efficient way to determine the direction of flow of water;
• he used existing information to establish the watershed;
• he collected physical survey data in the area of the Ashie causeway and he relied on floodplain data for downstream elevations;
• he could not find all of the original three culverts but he saw one old culvert and the culvert that had been installed over it;
• the culvert in the Report was a good solution, taking into consideration the needs of the petitioners and the concerns of downstream landowners;
• the pilot project could supplement the culvert called for in the Report;
• because the topography was so flat, lowering the water level a small amount would affect a large acreage;
• the water level should fall 16-17 inches as a result of the proposed drainage works and this would vary according to seasonal factors and whether it was a wet or dry year, and
• engineering fees to December 31, 2005 were $21,033.72; they were higher than the original estimate of $12,500 due to a more complex process than originally envisioned.

Mr. Good indicated his clients supported the design of the proposed drainage works but objected to assessments.

Assessment Issues

Mr. Geoffrey Bradley told the Tribunal he and his wife had purchased their property to farm in 1991. He said there was a wet area at the back and when he asked neighbours about it was first told it was caused by beavers, and then later told it was caused by the farm lane on the Ashie property. Mr. Bradley said he had observed the laneway and seen that it did block the flow of water. He stated that the wet area was farmed by a previous owner who used it as pasture, and grew hay on it and he wished to do the same. He said the pilot project between the CRCA and the Municipality had not alleviated flooding on his property.

In response to questions from the other parties, Mr. Bradley said that

• there was a high rock and a pine tree at the northwest corner of his property and old fence posts and pieces of remaining fence on the other side of his property;
• the flooding had worsened since he purchased the property and the north end had been under water since he owned the property;
• the Eden Grove Creek could not be seen on his property, due to flooding;
• when he viewed the culverts through the Ashie causeway in 1993 there was a trickle of water flowing through a partially crushed culvert;
• there was evidence of a beaver dam that had been cleared away;
• the causeway was damming water to his side and the water level was about one foot below the level of the causeway;
• he understood the Trans Canada Pipeline company had provided Mr. and Mrs. Ashie with a new culvert and beaver guard which they were to maintain;
• three-four weeks after the new culvert was installed it was blocked;
• he had viewed the Ashie causeway four or five times over the years;
• he was aware of a beaver dam on the north side of Bullfrog Bay Road;
• he wanted the benefit assessment on his property transferred to the Ashie property;
• he would try to clear out a beaver dam on his property if the Ashie’s would allow water through the causeway; and
• the dam could not be reached as the water was too deep.

In response to questions from the Tribunal, Mr. Bradley said that

• there was at least three feet of water on the North end of his property which was 9-10 inches higher during spring runoff and approximately one foot lower in the driest part of the summer;
• the Ashie laneway was 10-12 feet wide and slopes down;
• the causeway is made of stone with rubble on top and;
• he estimated it was four feet from the top of the road to the top of the culvert.

Mrs. Marjorie Tiemersma said she owned two properties in the watershed, purchased in 1960 and 1961. She said in the past her family had been able to work the low lying land with a tractor and plough but could not work it in early April or late fall. They also used it for pasture. Mrs. Tiemersma also said that

• she noticed the land was getting wetter 8-10 years before when her tractor got stuck;
• there was a lake of water just beyond the Bradley property on the Modler and Ashie properties;
• she had been to the Ashie causeway once, four or five years before and the culverts were plugged and she could only see one;
• there was more water coming onto her property from the south as farmers had cleaned out their ditches;
• the water level on her property had not dropped after the pilot project was constructed;
• she had seen the pilot project once;
• land that she had farmed was getting to be a swamp; and
• she wanted the assessments on her properties transferred to the Ashie property.

In response to questions from the other parties, Mrs. Tiemersma indicated that

• a new culvert had been installed under Eden Grove Road a few years before;
• the Eden Grove Creek flowed west through her property and over a small waterfall;
• the Eden Grove Creek sometimes overflowed her culverts; she kept her culverts cleared of debris;
• a beaver trapper had permission to trap anywhere on her property. There were beavers everywhere; and
• water flooded Bullfrog Bay Road west of the McGarvey gate.

In response to questions by the Tribunal, Mrs. Tiemersma indicated that

• she had two culverts at the back of her property and had to repair them with a backhoe every spring;
• she needed rubber boots to walk on Bullfrog Bay Road to view the pilot project in the fall of 2005 and there was some water on the road but not a great deal;
• water is much higher now on her properties than it had been in the past.

Mr. Paquin stated the Tiemersma properties would benefit from the proposed drainage works more than the Bradley property and that was why they were assessed a greater benefit assessment.

In response to a question by Mr. Lord, Mr. Paquin said the Modler property was not receiving much benefit and that was why it was not assessed.

In response to questions from the Tribunal, Mr. Paquin stated that

• there were likely 1,000 properties in the watershed;
• he determined the administrative cost of assessing each property individually would exceed their assessments;
• he asked the Municipality to pass a by-law under Subsection 61(3) of the Act and pay the small assessments out of general funds;
• he did not think he had to first assess the properties before such a by-law could be enacted;
• normally more landowners than those in the area requiring drainage are invited to the site meeting and in this case the site meting was advertised;
• the Ashies required the farm laneway to access the back of their property;
• if the causeway was not there water would flow to the west, the natural flow of the water;
• the purpose of the culvert was to relieve the flooding upstream and convey the drainage from east to west;
• the culvert was necessary because of the Ashie causeway;
• if the culvert were not in the causeway the Ashies could probably still access the back of their property but if the causeway were removed they would have difficulty accessing the back of their property;
• the laneway is a benefit to the Ashie property but he was unsure as to whether the culvert was a benefit;
• he had read proceedings of drainage engineers’ conferences but was not familiar with a paper on assessing the costs of farm culverts;
• he was unsure how much land would be reclaimed for agriculture, but there would be a greater benefit to the Tiemersma properties than the Bradley property;
• the Modler property contained a spring in one corner and was lower and wetter than the other properties and would, therefore, receive little benefit from the proposed drainage works.
• he could tell by observing water flow that the Modler property is lower;
• he did not know the value of land in the area or the intended use; and
• the landowners who petitioned for drainage saw value in the proposed drainage works.

Mrs. Patricia Ashie told the Tribunal her farm laneway was used to access 15 acres of hay and a woodlot at the back of their property and that Mr. Carey and the CRCA also used the laneway.

Mrs. Ashie said the causeway was on the property when her family purchased it in 1984 and there had been no significant changes to it apart from a new culvert installed over the old culvert by the owners of the pipeline. Mrs. Ashie described the original culvert as basically round with a little bend in it. She said that the new culvert was installed after the CRCA made its report and pointed out that the pipeline owner arranged for MNR approval and covered the entire cost of the culvert. Mrs. Ashie stated she did not know why the culvert was placed above the existing culvert. She understood the MNR would not allow the water flow through the Ashie causeway to be changed.

Mrs. Ashie said there was no flooding on the farms between her property and the Bradley and Tiemersma properties and questioned why those farms should be drained at the expense of the others. Mrs. Ashie said she had seen water flooding over the north end of the causeway in spring runoff but had not seen the culvert plugged. She said clear water ran through the culvert.

Mrs. Ashie said she did not believe the area could be drained as a pipeline worker told her it was the worst place in Canada that he had ever worked and the company lost a backhoe that sank into swamp. She said there were cattails but no swamp adjacent to the causeway. She questioned the point of the project if the engineer could not demonstrate a benefit.

In response to questions, Mrs. Ashie indicated that

• drainage through the culvert was adequate and continuous through the years until beavers blocked it;
• beavers control drainage at the culvert; and
• she did not believe a new culvert was necessary but did understand that more of the Tiemersma land was flooding than was the case in the past.

Summations

Mr. Good told the Tribunal his clients had used the Act in good faith. He said this was a situation where there was a historical flow, then a blockage which resulted in flooding. He submitted that if the historical flow were restored the flooding would be addressed to some extent. He said the petitioners saw it as a simple solution.

Mr. Good referenced Section 23(2) of the Act and submitted that this was a case where lands should be assessed for injuring liability as the Ashie causeway was an artificial obstruction which at one time had allowed water through three culverts but which now obstructed the flow of water. He pointed out the engineer, Mr. Paquin, had observed this obstruction.

Mr. Good noted that the Tribunal had heard evidence questioning whether or not the drainage project would actually work. He said his clients would not pursue a drain if they did not have a reasonable expectation that they would recover land that could then be farmed. He submitted that the Tribunal had three choices:

1. throw the Report out
2. send the Report back to the engineer; or
3. dismiss the Section 48 appeals and consider only his clients’ appeals.

He argued that if the Tribunal consider the third choice then his argument regarding injuring liability should be accepted as the Ashie causeway was causing water to flow onto the Bradley and Tiemersma properties. He provided a copy of a case heard by the Supreme Court of Canada in 1900 to support his position (Sutherland-Innes Co. v. Romney (Township) (1900), S.C.R. 495). He said the present owners were responsible for the obstruction and the costs of the entire project should be borne by the Ashie property.

Mr. Lord told the Tribunal that the evidence heard indicated the Report was seriously flawed in many respects including the premise that the Ashie causeway was responsible for water backing up onto the Bradley and Tiemersma properties. He suggested that water carried from the wetland to the causeway passed through the culvert or flooded over the top of the causeway at its northerly end. He said there was no evidence that there ever were three culverts through the Ashie causeway.

Mr. Lord argued that as the Wiltsie Marsh spread southward it interfered with the natural flow of Eden Grove Creek and the creek now ended in the marsh and was plugged with vegetation. He said there was no direction of flow, there was no common law right to drainage. Mr. Lord also theorized that water from the marsh might be spilling into the pond that was just upstream of the Ashie causeway. He said either or both of the common law and the CRCA might prohibit drainage in the area. He suggested that there was no way to redeem the Report and the Tribunal should reject it and either start over again or abandon attempts to drain the area. He submitted the drainage works proposed was impractical and of no benefit to anyone.

Mr. Donnelly said the Report should be sent back to the drawing board and asked the Tribunal to order that the lands in question be drained to the north, not the south.

Mr. Garrah told the Tribunal his concerns had been clear from the outset and submitted there was not enough engineering information to substantiate claims made in the Report or to alleviate his concerns.

Mr. Carey had no closing arguments.

Mr. Paquin told the Tribunal he continued to maintain that the work recommended in his Report will alleviate flooding in the area requiring drainage. He said he had struck a good balance between agricultural and environmental needs.

Mr. Paquin said he agreed with the testimony of Mr. Knechtel that the pilot project could supplement the Report. He was unsure as to the necessity of including the pilot project as part of the Report if there were a long term agreement between the Municipality and the CRCA.

The Findings

The water from the Eden Grove Creek outlets to the Gananoque River after traversing the Wiltse Creek Marsh and Wiltse Creek. The Wiltse Marsh is an “Area of Natural and Scientific Interest” (ANSI) and is located north of Bullfrog Bay Road. Part of the subject area is designated as “Provincially Significant Wetland” and as such the area is environmentally sensitive and proposed changes in the area require environmental approvals. The whole outlet area is heavily populated by beaver. In addition, the water levels in the Gananoque River and the marsh are controlled by a downstream power dam and the water levels fluctuate over the year.

A great deal of evidence dealt with whether the outlet flowed to the north across Bullfrog Bay Road or to the west over the Ashie property. Evidence was given that several decades ago there was limited agricultural production on land at the rear of lots 1 to 4 of concession 2. The testimony of two letters written by long time residents of the area indicated there was harvesting of swamp grass during dry years but the land was too wet for conventional farming. This was verified by several witnesses that there are old fence posts at the rear of these properties that now only their tops are showing above the water. These letters also indicated that the water from Eden Grove Creek flowed to the north across Bullfrog Bay Road at that time and not west through the Ashie property.

Most evidence indicated that the drainage patterns had changed over the years and the water levels at the rear of these lots has risen to levels such that any form of conventional farming is not possible. This has caused water to flow to the west as well as north however still ending up in the Gananoque River. Evidence indicated that water was flowing west in the 1970’s when the culverts were installed by TransCanada Pipelines to gain access to the rear of what is now the Ashie property. Several landowners testified that this causeway and culverts is their only access to their properties to the north and west.

The Cataraqui Region Conservation Authority (CRCA), last year, constructed a pilot channel north from Bullfrog Bay Road and while this channel caused water to flow north toward the Wiltse Marsh it did not provide any significant lowering of the water levels in the subject area. There is considerable beaver activity in that area.

The CRCA has been granted approving authority from the Department of Fisheries and Oceans (DFO) and its representatives stated that it is prepared to accept a balance between the interests of agriculture and the environment. The CRCA would approve a reduction in flooding around the periphery of the wetland yet retain the environmentally sensitive area. It would require an Environmental Assessment before it would consider any trenching on their property north of Bullfrog Bay Road. It would not want the Bradley property drained for agricultural production due to its concern for the wetland.

The Engineer testified that the CRCA had agreed to allow the replacement of the existing culvert under the Ashie lane to allow drainage to take place “as it was before” and that this may lower the water level at certain times of the year by up to 0.4 metres (16 inches). There was no evidence presented that this minor lowering would have any effect on the water levels on the Bradley and Tiemersma properties (the petitioners) to the east or that a single hectare of land would be reclaimed for agriculture.

The survey data in the Report relating to elevations within the watershed is almost non-existent. While the flooded land restricts the use of conventional survey equipment, Global Positioning (GPS) equipment, commonly used by many drainage engineering firms would have provided elevation data to confirm flow directions and verify if any land reclamation is possible within the restrictions provided by the CRCA.

There is also little information in the Report with respect to water flow volumes. The Engineer stated that the proposed culvert on the Ashie property would carry only 1/25 (4%) of the Eden Grove Creek peak flow. There was little explanation of what happened to the balance of the flow.

The design of this project has been based on the CRCA restrictions and not on engineering data. The Engineer should have realized at an early stage of the project that this slight lowering, if any, of the water levels on the Bradley and Tiemersma properties would not meet their expectations for agricultural drainage and that the project was impractical. The Engineer should then have reported to the Municipality under Section 40 of the Act that the project was impractical. If the petitioners had been aware, at the preliminary report stage, that these restrictions would not allow drainage of their lands to the extent they were drained several decades ago, they may have reconsidered their petition.

During the hearing there was general confusion as to the date that the Report was presented. The Engineer testified that the final report was first presented to the Municipality in May 2004. Subsequent to that, Appendix B, “Capacity Calculations” was added and the design of the project was changed from two 600 mm culverts to one 600mm culvert with a beaver baffler. There was no documentation of why or when these changes were made and there was no adjustment to the cost estimate to reflect these changes or for the additional engineering involved. The Engineer stated that the final report (the Report) was submitted with a transmittal letter dated May 12, 2005. This letter was not provided to the hearing. The report included with the engineer’s documents presented to the hearing as Exhibit 2, which the Engineer stated was the most recent May 12, 2005 report, show a “May 2004” date on the cover page as well as all text pages in the main report.

There are a significant number of deficiencies in the Report which make it difficult for the landowners to know who is responsible for the engineering work. The only identification of the Engineer anywhere in the report is “Ainley Group” which appears on most pages along with the May 2004 date. There is no address or phone number and no identification of the “individual engineer who will have charge of the project” as required by Section 8(2) of the Act. The report is unsigned and the engineering drawings do not have the Professional Engineers stamp with the date and signature.

The report does not provide for distributing the cost for future maintenance of the project. While a small working area is provided adjacent to the proposed culvert, there is no right of way provided to allow access to the area for future maintenance. Allowance for damages and right of way have not been considered.

The basic principle of funding the costs of projects constructed under the Act is that of “user pay”. This means that payment of the total cost of the project is distributed over the lands that benefit directly from the project and the lands that use the project as an outlet for water that flows from lands within the watershed. (Sections 21 to 23 of the Act).

On this project the Engineer stated that he has used the “Todgham Method” (a well accepted method) to distribute the cost of the project over the lands within the watershed. The Todgham method requires engineering judgment to determine the ratio of benefit assessments to outlet assessments (Benefit/Outlet Ratio). While the Engineer testified, after consulting his documents during a hearing break, that he used a Benefit/Outlet Ratio of 70%/30%, the Total Outlet Assessment of $2,718.75 shown in his report represents only 10.00% of the project cost.

The Engineer was unable to justify the distribution of the Benefit Assessment of $24,468.75 over the Bradley and Tiemersma lands (the petitioners) other than to say that the Tiemersma lands would benefit more than the Bradley lands. There was no reason given for not assigning a Benefit Assessment to the Ashie or Modler lands to the west even though these lands, with 17% of the “area requiring drainage”, have similar flooding problems as the Bradley and Tiemersma lands which contain 58% of the “area requiring drainage”. On questioning by the Tribunal, the Engineer did not consider that the Ashie lands should be assessed a benefit assessment for the construction of their lane culvert which they and other landowners use for access to their properties to the north of the proposed culvert. He also stated that he was unaware of an accepted method used by drainage engineers, and published in a Drainage Engineers Conference Proceedings, which generally assigned approximately 50% of the cost of farm lane culverts to the land requiring the culvert for crossing the drainage project.

Considering “Outlet Assessment, Section 23 of the Act requires the Engineer to distribute this portion of the cost of the project to the upstream lands that use the project as a drainage outlet. The Engineer has mistakenly used Section 61(3) of the Act to assess the total outlet costs to the Municipality. Section 61(3) applies only after the project has been constructed and is not used in the assessment process.

A number of landowners expressed their dissatisfaction with the Report. A number of the items and issues discussed with the Engineer at the various meetings over the course of the project were not considered in the final report. One example of this is the requested culvert on Bullfrog Bay Road.

Mr. Garrah expressed his concern that there was little investigation of the existing causeway culverts and there were few measurements available to show that the access to his property would not be flooded when the project is completed. He stated that his concerns had been clear from the outset and submitted there was not enough engineering information to substantiate claims made in the Report or to alleviate his concerns.

Many of the landowners testified that the beaver activity in this general area was now unmanageable and that the problem will worsen when proposed new trapping regulations come into effect in the near future. Mr. Donnelly provided pictures and testified that the beaver bafflers as proposed in the Report are not effective

Mrs. Ashie questioned the point of proceeding with the project if the Engineer could not justify a benefit.

Ms. Evans, of the CRCA, made it very clear that no significant drainage would be permitted to the north. She stated that they have reservations as to whether the proposed drainage works will work as they had not seen enough information on elevations in the area. She also indicated that the proposed project would not vastly reduce the flooded area.

The Engineer testified that this drainage engineering project was one of only two drainage projects that he has undertaken and that he worked on them concurrently. While he said that he had conferred with his peers, he was unable to provide names of other engineers in their firm with drainage engineering expertise.

In an appeal which the Tribunal adjudicated regarding the Foster Municipal Drain in Beckwith Township (decision dated September 5, 2003) it was held that: it has been the custom in the drainage engineering profession to “apprentice” with experienced drainage engineers and to acquire expertise under the guidance of an established experienced professional. There is good reason for the custom. Just by reading the Act and consulting with someone with drainage experience, the engineer could not, and in fact did not, acquire sufficient competence in Act matters to do this project justice.

This panel of the Tribunal is of the opinion that the Engineer should not have taken on this project. As a result considerable expense has been incurred with little positive results to show for it and a project that cannot be justified practically or financially.

Under the Act, the Municipality has the responsibility to carry out all the procedures on the project. The Act gives the Municipality the authority to administer the project and, by bylaw, levy assessments against properties within the watershed. This also includes the selection process in appointing an engineer under Section 8. The Municipality, not having many projects under the Act, should have been more diligent in acquiring an experienced professional to guide them through the process. It has been an expensive learning experience for all involved in the project. The petitioners and the other landowners relied on the Municipality to obtain this expertise.

A great deal of engineering costs have been incurred on this project that would not have been incurred had the project been determined “impractical” at the preliminary report stage and terminated at that time under Section 40 of the Act. Had the project been terminated, the petitioners would have been responsible for a portion of the engineering costs incurred up until that time. It is therefore reasonable to assign a portion of the total engineering costs to the petitioners.

The Municipality has the right to apply to the Tribunal to request a review of the engineering costs in accordance with Section 72(1) of the Act.

In summary the Tribunal finds as follows:

1. The engineering data is not sufficient to show that the proposed solution would provide any measurable relief to the flooding on the Bradley and Tiemersma lands.
2. There is no evidence that any land will be reclaimed for agriculture after the project is completed.
3. That the future beaver problems in the area will likely cause an increased problem, if not an impossible problem, to maintain water levels low enough to allow even limited agricultural production in the subject areas.
4. The design of the project is limited by the restrictions on drainage dictated by the CRCA and not on engineering data. By the lowering the water level on the Bradley and Tiemersma properties by less than 0.4 metres (16”) the expectation of the petitioners could not be met and they should have been so advised. The project should have been terminated under Section 40 of the Act without incurring any further engineering costs.
5. The division of the cost for Benefit Assessment is flawed in that the Engineer can not provide any rationale for allocating the benefit assessments and did not consider other lands that should have been assessed for benefit.
6. The division of the cost for Outlet Assessment is flawed in that the Act requires the outlet portion of the assessment be assessed to the upstream lands in accordance with Section 23 of the Act and not assessed as a blanket assessment to the Municipality.
7. Since the Tribunal will order that the project will not proceed, the Tribunal did not rule on the evidence presented on the Section 54 appeals.
8. The Engineer stated that the engineering costs not including the costs of preparing for and attending this Tribunal hearing are over $21,000. This would increase the total project cost to the $40,000 range. The physical construction would only be a 600mm (24 inch) lane culvert which is equivalent to an average farm entrance culvert over a road ditch.
9. Although there was no appeal under Section 48(1)(a) of the Act, there is no indication that there will be even a minimal return on investment from this project.
10. The Municipality erred in appointing an engineering firm, under Section 8 of the Act, which did not have experience in preparing reports under the Act.
11. The Engineer did not have the necessary drainage engineering expertise to properly complete this project. The report was deficient in many ways and did not meet many of the requirements of the Act. The Engineer should not have taken on this project without the assistance of an outside experienced drainage engineer.
12. The number of deficiencies in this report makes it impossible for the Tribunal to make the necessary modifications to the Report and Assessment Schedule that would allow the project to proceed to the construction stage.
13. The Ainley Group be relieved of their appointment as engineer under Section 8 of the Act.
14. The petitioners should share a portion of the engineering costs as they initiated the project under the Act. The Township of Leeds and Thousand Islands, because its conduct in the selection of the Engineer with no experience in handling the assignment which resulted in fatally flawed Report, should pay the balance.
15. Taking into consideration the number of negative components of this project and that there is little prospect of ever achieving a positive solution to provide agricultural drainage to the petitioners lands, the Tribunal finds that the Eden Grove Municipal Drain be terminated.

ORDER OF THE TRIBUNAL

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

1. The appeals under Section 48 of the Act by Mac Donnelly, Robert Carey and Paul Garrah are allowed to the extent that their dissatisfaction with the report was justified. The defects of the Report preclude the Tribunal from making the determinations required under Subsections 48(1)(b) and 48(1)(c) of the Act.

2. The Council of the Township of Leeds and Thousand Islands is ordered hereby to terminate all proceedings with respect to the Report on the Eden Grove Municipal Drain dated May 2004 (which the engineer claimed was later submitted on May 12, 2005).

3. Since the project has been terminated, the Tribunal did not rule on the Section 54 appeals.

4. Council is also directed to terminate the engineering contract with the Ainley Group for preparation of the Report and everything associated with it.

5. The Municipality’s costs to date shall be assessed as follows: Marjorie & Louise Tiemersma (Roll #’s 03502100 & 03502600) - $2,500.00 Geoff & Christine Bradley (Roll # 03501900) - $1,000.00 The balance shall be paid by general funds of the Municipality.

6. The non-administrative costs of the Municipality 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.

Dated at Ottawa, Ontario this 5th day of July, 2006.