Royal Oak Municipal Drain (Re), 2016 ONAFRAAT 23

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 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Royal Oak Municipal Drain (RE) Township of Huron-Kinloss

Royal Oak Municipal Drain (RE) Township of Huron-Kinloss 2016ONAFRAAT23

STATUTE: Drainage Act

HEARING: October 25, 2016

DATE OF DECISION: November 29, 2016

008RoyalOak16

NEUTRAL CITATION: 2016ONAFRAAT23

ROYAL OAK MUNICIPAL DRAIN Township of Huron-Kinloss

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 Joel Armstrong of Kincardine, Ontario; Donald MacDonald of Ripley, Ontario; Eric Thacker of Kincardine, Ontario and Alexander Pollock of Ripley, Ontario under sections 48(1) of the Drainage Act with respect to the Royal Oak Municipal Drain 2016 in the Township of Huron-Kinloss.

Before: Jeffrey Hewitt, Vice-Chair; Ed Dries, Member and Lee Holling, Member

Appearances: Joel Armstrong, Appellant Donald MacDonald, Appellant Eric Thacker, Appellant Corey Pollock for Alexander Pollock, Appellant Bill Dietrich, Dietrich Engineering Limited, Engineer who prepared the report Steven Brickman, Dietrich Engineering Limited, Witness Grant Collins, Drainage Superintendent, Township of Huron-Kinloss, Witness

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Township of Huron-Kinloss on October 25, 2016. The Engineer’s report dated March 22, 2016 for the Royal Oak Municipal Drain 2016 (“Report”) was prepared by Dietrich Engineering Limited and submitted by Mr. Bill Dietrich, P. Eng., (“Engineer”). Appeals to the Tribunal were filed by Joel Armstrong, Donald MacDonald, Eric Thacker and Alexander Pollock.

Sonya Watson Clerk of the Township of Huron-Kinloss performed the duties of Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. Mr. Reid and Mr. Van Westerholt, assessed landowners were made parties to the appeals filed. The Municipality filed an Affidavit of Service, dated July 11, 2016, as proof that all parties had been served with the notice of hearing.

Overview

The Royal Oak Municipal Drain (the “Drain”) is located in the Township of Huron-Kinloss, near Kincardine, Ontario. The Drain is 9,362 metres (m) in length and services a watershed area of 1,237 hectares (Ha), (3,057 acres (ac)). Over the years, it has been subject to several drainage reports, first in 1967, that have resulted in the construction of several extensions and branches bringing it to its current length. Given the nature of the issues before the Tribunal, as will be discussed below, it is not necessary to look at that history of the Drain.

However, the latest review of the Drain, and the subject matter of this decision, is the report prepared by Dietrich Engineering Limited (“Dietrich”) and dated March 22, 2016 (the “Report”). Dietrich was appointed under Sections 4 and 78 of the Drainage Act by way of a resolution of the Township of Huron-Kinloss Council at its December 15, 2008 meeting. The first on-site meeting regarding the Drain was held on January 27, 2009. For reasons that could not be fully explained by the Engineer, the first information meeting was not held until March 2015, followed by two more information meetings in July 2015 and February 2016. Eventually, Council adopted the Report and passed By-Law 2016-34 being a by-law to provide for drainage works on the Royal Oak Municipal Drain. Although the Report was before the Court of Revision on May 25, 2016, the appeals now before the Tribunal do not concern assessments or allowances; consequently, discussion of what happened at the Court of Revision is not relevant to this Appeal.

Instead, the appeals before the Tribunal are brought under Section 48(1) of the Drainage Act, which 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,

may appeal to the Tribunal, and in every case a notice of appeal shall be served within 40 days after the sending of the notices under section 40 or subsection 46 (2), as the case may be.

The Report identifies issues of severe erosion and deteriorating farm crossings. It recommends the deepening and widening of the drain through various reaches, a downstream extension of the drain, the addition of riffle structures, the repair and improvement of farm crossings, and efforts to mitigate erosion, at an estimated total cost of $1,049,200. It is this total cost that shocks the sensibilities of the Appellants and creates their dissatisfaction with the Report. To metaphorically and succinctly summarize their concerns: Why are they being forced to buy a Cadillac when a basic Chevy will do?

Issues

Based on the evidence of the Appellants, which is set out below, the Tribunal identifies the issues that are to be decided as follows:

1. After re-sloping and improving the Drain, the Engineer proposes hydro seeding the slopes; the Appellants argue hand seeding is more cost efficient. Issue: Which method of seeding should be used?

2. The Engineer proposes adding “riffles” in the Drain bed to assist both in water-flow management and to provide fish habitat; the Appellants argue that riffles are an unnecessary expense and are not the concern of the Drainage Act. Issue: Are riffles appropriate in the circumstances?

3. The Engineer proposes using a material commercially known as “Flexamat”, which is a mat of linked concrete blocks used on the slopes of a waterway to prevent or minimize erosion; the Appellants argue that there are less expensive methods (such as stone riprap) to control erosion. Issue: Is Flexamat a proper erosion solution in the circumstances?

4. The Appellants raised concerns that significant areas of land adjacent to the Drain bed will have to be clear-cut of trees to carry out the drainage improvements; the Engineer argues that, while some trees will have to be removed, it is far from clear-cutting. Issue: Do the proposed improvements require unnecessary removal of too many trees?

5. The Appellants claim that the Engineer’s plans for crossings are too expensive, with the crossings costing approximately $20,000 each; the Engineer states that only one or two crossings will cost that much and the others will be less expensive. Issue: Are the costs of the proposed crossings appropriate in the circumstances?

6. Mr. MacDonald requested that the ‘cable concrete low level crossing’ recommended for installation on his property be completely removed from the report. Issue: Should the drain crossing on the MacDonald property be removed from the report?

Evidence

Mr. Armstrong

Joel Armstrong owns lands within the Drain’s watershed. Although he questioned why six years had transpired between the first on-site meeting in 2009 and the Report being issued in 2016, his major concern was “the very extravagant measures” proposed in the Report. He expressed concern that Flexamat is expensive, is imported from the USA, has only been used a minimal number of times in Ontario, and is not the most cost-effective solution. He questioned the need to hydro seed and the costs of doing so versus hand seeding. He stated that crossings would cost $20,000. He stated that thousands of trees, which had been planted by the landowners themselves, would be clear-cut.

According to Mr. Armstrong, the minor repairs required by the Drain have turned into a million dollar project that many cannot afford. Instead, he suggested that the landowners themselves could take on any improvement initiatives, utilizing erosion control measures such as grass buffer strips.

Lastly, he questioned why he and the other landowners who take good care of the Drain should have to pay for those who do not.

Mr. MacDonald

Donald MacDonald, a farmer for over forty years, owns lands within the Drain’s watershed. He, too, raised concerns about the crossings, the use of Flexamat, and the loss of trees.

With respect to the crossing, he stated that the crossing proposed in the Report was not the crossing that he expected and that he does not believe the proposed crossing is worth the expense. He stated that he could do without the crossing and requested that it be removed from the Report altogether.

Mr. MacDonald disagreed with the use of Flexamat. He felt using stone with strategically placed trees would yield the same result and be less disruptive to the habitat.

He raised the issue of the clear cutting of trees, many of which he had planted on his property, as well as the expense of hydro seeding when hand seeding is more cost effective.

Overall, Mr. MacDonald said that he was retired and living on a pension, and that the “outrageous cost” of these improvements was “a little steep” for him.

Mr. Thacker

Eric and Lynda Thacker are landowners within the Drain’s watershed. Speaking on their behalf, Mr. Thacker gave evidence that, in the instances of (i) hydro seeding, (ii) riffles and (iii) the use of Flexamat, the Report recommended a more expensive approach despite there being less expensive, and equally effective, options.

With respect to the hydro seeding, Mr. Thacker pointed out that the Report costs hydro seeding for distribution of grass seed on the disturbed side slopes and buffers at $72,010, being approximately $1.099 per square meter (based on 65,500 m²). He advised that the same Engineer had recommended hand seeding for another drain in the Municipality (the Nesbitt Drain) at a cost of only $0.233 per square meter, or 470% less expensive than hydro seeding. Using these values as a guide, Mr. Thacker estimated the cost of hand seeding on this Drain to be $15,261.

On the subject of riffles, “being a shallow section of a stream or river with a surface broken by gravel, rubble or boulder, and mainly associated with fish habitat”, Mr. Thacker stated that the Report recommends the construction of fifteen riffle structures at a cost of $19,500. It was his position that riffles benefit fish and not farmers, as they do not provide any “benefit” as defined under the Drainage Act, they should not be included in the Report. Further, Mr. Thacker stated that riffles could actually pose a cost and/or liability to the Municipality due to, among other things, attraction of pests and the blockage of water.

Mr. Thacker also questioned the use of Flexamat, at a cost of $157,498, recommended for use on certain eroded side slopes in order to provide protection of those slopes from future erosion. He expressed concerns about this product as it is relatively new and he is unaware of its use in a similar application in Ontario. In the alternative, Mr. Thacker suggested using readily available rip-rap or stone, alone or together with a vegetative cover, to achieve the same limits on erosion, as has been done in many other drains in the Municipality; the cost of doing so would be approximately $62,999.

In conclusion, Mr. Thacker stated that a total of $165,999 could be saved by (i) hand seeding, at a savings of $52,000; (ii) eliminating the riffles, at a savings of $19,500; and (iii) using stone or rip-rap, at a savings of $94,999.

Mr. Pollock

Corey Pollock gave evidence on behalf of his father, Alexander Pollock, an Appellant in this matter who owns land in the watershed of the Drain. It should be noted that Corey is also a landowner in the watershed but he did not appeal.

Mr. Pollock’s evidence was similar to those who went before him. He, too, questioned the six-year delay in getting this Report. On the issue of Flexamat, he stated that this material is unproven in the agriculture setting and is expensive. He argued that more cost effective methods, such as locally available field stone, should be used, as it has been in the past on this particular Drain and others.

He was against the clear-cutting of trees. He stated that his family has planted over one thousand trees along the Drain, which plantings were subsidized by the Saugeen Valley Conservation Authority. It was his position the removal of trees would increase erosion and the use of Flexamat would prohibit future tree planting in those areas where used.

Mr. Pollock believed that some of the problems in the Drain, such as washouts and excessive ponding, should be repaired before money is spent extending the Drain downstream, replacing every bridge and adding riffles. He expressed concerns about the cost of the improvements as proposed, and that some property owners within the watershed would not be able to afford the work.

Mr. Dietrich, Engineer who signed the report

W. J. “Bill” Dietrich is the principal of Dietrich Engineering Limited (“DEL”), which produced the Report. Mr. Dietrich acknowledges that his role was in a supervisory capacity and that, while he signed the Report, the majority was prepared by Steven Brickman, another engineer at DEL with other employees’ assistance. As is noted later in this Decision, Mr. Brickman gave the technical evidence for this Report.

Mr. Dietrich presented the overview of the Drain and his Report, which has been briefly summarized above. There is no need for a greater discussion of the finer details of the Report.

According to Mr. Dietrich, this was initiated as a repair and improvement project, the components of which kept changing over time. He stated that it was found necessary to extend the Drain downstream. He said he was faced with additional requests from landowners for various improvements along the Drain. He had to deal with the local Conservation Authority and the Department of Fisheries and Oceans Canada (“DFO”) regarding the inclusion of buffer strips, riffles and fish habitat. All of this consultation and the requests made resulted in the six-year delay and, ultimately, the increased cost of this project.

Mr. Collins, Drainage Superintendent, Witness

Grant Collins has been the Drainage Superintendent for the Municipality since 1993. It was his evidence that the Drain needed repairs and improvements, and thus the need for the Report. His goal was to bring the Drain back to a more consistent stable condition as opposed to the hit-and-miss approach achieved through spot maintenance used over the years. Further, the existing bylaws that currently apply on this Drain do not allow the extent of works now necessary to stabilize the banks of the Drain. Finally, he expressed the opinion that a re-assessment on the Drain was also necessary.

Under questioning by the Appellants, Mr. Collins admitted that, to date, the Municipality has not used hydro seeding in similar circumstances, has not constructed riffles in drains, has not used Flexamat, and would normally use hand seeding in minimal side slope areas. In response to a question from the Tribunal, Mr. Collins advised that very little maintenance had been done on this Drain and no maintenance had been carried out on the structures.

Mr. Brickman, Witness

Steven Brickman is an engineer with DEL, and has been involved with municipal drains for seven or eight years. His experience is mostly on the construction side of drains and he was mostly involved with the design of this Drain. Mr. Brickman focused his evidence on the five issues raised by the Appellants.

With respect to seeding, Mr. Brickman advised that both the rate of growth and the rate of success is better with hydro seeding than hand seeding; in other words, grass grows quicker and more successfully with hydro seeding. These attributes are necessary in order to prevent erosion as soon as possible. In his opinion, hydro seeding is absolutely necessary in sloped areas of the Drain. He did concede that hand seeding techniques could be successfully applied on flat areas such as buffer strips.

With respect to riffles, Mr. Brickman stated that the cost of their construction and inclusion in the improvements to the Drain was less than 2% of the total costs. The inclusion of these features provided hydraulic benefits to the Drain in reducing flow velocities. Further, they improved fish habitat and were the requirements of the governing agencies, such as the local Conservation Authority and the federal Department of Fisheries and Oceans.

With respect to the recommended use of Flexamat, Mr. Brickman gave extensive evidence as to the ability of various options available for side slope erosion protection to withstand shear stress necessary to minimizing the erosive impact of moving water. Native field stone was determined to be the least stable and provided the least protection due to its rounded shape and smooth surfaces. Graded stone rip-rap is more angular and more stable but the thickness of the stone layer required to resist the erosive forces resulted in a unit cost that rivals that of Flexamat on an area basis. Flexamat-like products provide significantly greater protection against shear stress. There was also a direct correlation between higher shear stress and cost, with the greater the protection, the higher the cost. Based on the shear stresses in the channel of the Drain, Mr. Brickman chose to utilize Flexamat. However, Mr. Brickman advised that, since the issuing of the Report, a Flexamat-like material, produced by International Erosion Control Systems (“IECS”) in Ontario was investigated as an option. This product was found to provide even greater protection against sheer stresses at a potentially lower cost and that such a system would be acceptable.

With respect to tree clearing, Mr. Brickman’s evidence that the use of the term “clear-cutting” was misleading. He reviewed aerial photographs of the Drain and pointed out that the number of trees that would have to be removed is low, and certainly not a case of clear-cutting. He identified treed areas along the banks of the drain where no work would be undertaken at all. He confirmed that tree removal would be required to complete the work on the drain but only be undertaken where necessary and on a selective basis.

With respect to the crossings, Mr. Brickman provided photographic evidence of several crossings in disrepair. He also provided a chart in which the cost of each of ten crossings was set out. While two of the ten exceeded $20,000 ($23,700 and $22,800), the other eight ranged in price from a low of $11,140 to $16,200. Mr. Brickman confirmed that he designed each of the new farm crossings using standard design parameters as recommended by OMAFRA with no special or unusual features on any crossing.

Regarding the MacDonald crossing, Mr. Brickman had no issue with the at-grade crossing being removed from the report. Upon questioning from the Tribunal he did confirm that the removal of this crossing would give rise to the consideration of an allowance for the loss of access under Section 33 of the Act to this property. He also acknowledged that this alteration would result in modifications to the assessment against this property and all lands upstream of this crossing site.

Statements of Assessed Landowners

Two assessed landowners wished to make statements to the Tribunal regarding the Drain. The Tribunal advised these landowners that, as their statements would not be subject to cross-examination, the Tribunal would hear what they had to say but could not consider their statements as evidence.

Herbert Van Westerhold was one such landowner, whose property is located at the lower end of the Drain. His statement to the Tribunal was that he experienced a significant amount of flooding of the lands in the Drain’s watershed and that he was in favour of the improvements to the Drain.

Don Reid was the second assessed landowner who wished to make a statement. It was his position that it does not make “business sense” to use Flexamat because of the cost when stone has worked well in the past. Further, he advised that he had paid for his own culvert in the past.

Findings

There can be no arguing that, at a cost of over $1 million, this is an expensive drainage works and perhaps more than the landowners anticipated or wish to fund. However, the Report quite properly identifies measures that must be taken to enable the Drain to meet current standards, and absent the issues raised by the Appellants, no one has suggested the Report is flawed or that the work overall is not required.

Therefore, dealing with the five specific issues that have been raised, the Tribunal makes the following findings and comments:

1. Hydro seeding vs. hand seeding: While there appears to be no disagreement that hand seeding is a significantly cheaper alternative to hydro seeding, hydro seeding on sloped ground provides benefits that, in the long run, may make this method of seeding certain areas more cost effective as the vegetation establishes itself quicker and reduces erosion on those sloped areas. Therefore, the Tribunal finds that hydro seeding on sloped areas is acceptable; however, the Report should require that hand seeding be considered as an alternative for flat areas such as buffer strips.

2. Riffles: Given that the local Conservation Authority and the DFO require riffles for fish habitat, given that the riffles provide some erosion control benefits, and given the minimal cost of construction of the riffles, the Tribunal sees no basis to interfere with this aspect of the Report.

3. Flexamat vs. rip-rap (stone): The difference in the pricing of these two options as presented by the Appellants is significant, although when comparing a properly designed rip-rap stone erosion protection system as outlined by the Engineer, the costs become much more competitive. However, as the saying goes, ‘you get what you pay for’. The evidence is clear that a Flexamat-like option provides greater protection against erosive forces caused by shear stresses. Over time, the Flexamat-like option makes for a better functioning drain with reduced maintenance costs in the future. Given Mr. Brickman’s evidence that there is now a cheaper and technically superior option available, the Report should be modified to include the ICES option, or any comparable alternative, and the cheapest of these Flexamat-like options be utilized on the Drain.

4. Clear-cutting of trees: The Tribunal is satisfied, based on the photographic evidence provided by Mr. Brickman, that there will be no clear-cutting of trees, and that only the practical minimum number of trees will be removed to provide unrestricted access to the Drain in order to carry out the works .

5. Crossings: It is clear that all of the existing crossings referenced in the report are in poor condition and need replacing. The Appellants’ concerns that the crossings will cost $20,000 each are not supported by the cost estimates done by the Engineer. No evidence was provided to suggest that the cost of the culverts was inordinately high due to the recommendation of extravagant culvert lengths, design standards or features. Given that Mr. MacDonald has requested that the at-grade crossing on his property be removed and Mr. Brickman agrees, the Report should be modified to reflect this change. That being the case, the report must give consideration to an allowance under Section 33 for loss of access on this property. These alterations will impact the body of the Report, the plans, specifications and the assessments.

Order of the Tribunal

The Tribunal therefore orders that:

1. The appeal of the Appellants under Section 48(1) be granted in part.

2. The Engineer shall revise the March 22, 2016 Report as follows:

   • The Report shall require hydro seeding on sloped ground, but shall require hand seeding for flat areas.
   • The Report shall specify that the lowest costing Flexamat-type product available, be it the ICES product or any other ‘approved equal’ similar product, be used in the Drain where indicated.
   • The Report shall be modified to remove all references and costs related to the at-grade crossing currently described on the MacDonald property.
   • The Report shall be modified to include consideration for an allowance for the loss of access on the MacDonald property.
   • The Report shall be modified to include all adjustments in the total project costs resulting from the orders herein.
   • The Schedules of Assessment for Construction, Open Drain Maintenance and Culvert Maintenance shall be modified as required.
   • The revised Report shall be dated the same date as this decision.

3. Once the revised Report has been completed, the Tribunal directs that the amended Report be circulated to all assessed owners on the Royal Oak Drain. The revised Report shall not be brought before the Drainage Board, Council or the Court of Revision.

4. The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works, and such costs shall include the Engineer’s fees and expenses for preparing the Report, the revised Report as well as the Engineer’s fees and expenses for preparing for and attending the Tribunal hearing.

5. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at Tecumseh, Ontario this 29^th day of November, 2016.