Bad Drainage Planning: The McNabb Drain
Two applicants requested an EBR investigation of the flooding and erosion of a stream channel and pollution of both the stream and Lake Simcoe that they believed resulted from changes to an artificial drainage system in Ramara Township. The applicants experienced the impacts of these problems in the McNabb Drain watershed beginning in 1998, allegedly caused by unauthorized construction of drainage works in the upper watershed. The application was sent to the Ministry of the Environment for a response to alleged contraventions of the Ontario Water Resources Act (OWRA), the Environmental Protection Act (EPA), and the Environmental Assessment Act (EAA). The application was also forwarded to the Ministry of Natural Resources because the applicants alleged that unauthorized work on the drain had been done and had caused habitat disruption in contravention of the Lakes and Rivers Improvement Act and the Fisheries Act.
The McNabb Drain is an artificial drainage system that was originally established in 1903 as an “Award Drain” under the Ditches and Watercourses Act, which was repealed in 1963. Located in Ramara Township in the northeast quarter of the Lake Simcoe drainage basin, the McNabb Drain receives runoff from approximately 511 hectares of predominantly agricultural land. During the 1970s and 1980s, the Township of Ramara rezoned part of the upper watershed as industrial land and developed an industrial park. A quarrying operation also went into operation in this area. Subsequently, road drains and ditches in the area were rerouted, dug out and enlarged by the township and private landowners.
In spring 1998, flooding and damage occurred at a number of properties along the lower, natural section of the stream, and large sediment loads were observed entering Lake Simcoe. Between 1998 and 2002, erosion, flooding and sedimentation resulting from runoff and snowmelt continued to be observed. Eroded sediment carries phosphorus downstream and can fill in gravel bottom stream and lake areas, making them unsuitable for fish spawning.
It is noteworthy that Lake Simcoe is under an Environmental Management Strategy, which has a goal of improving and protecting the health of the Lake Simcoe watershed ecosystem. MOE, MNR, the Ministry of Municipal Affairs and Housing, and the Lake Simcoe Region Conservation Authority are all parties to the Strategy. Despite this broad environmental goal and other upstream wetland and fisheries concerns related to the drain, attempts in 1998 and 1999 by the downstream property owners to elicit support and action from some of these government agencies were not met with any meaningful response.
The flooding and erosion impacts experienced by the applicants led to a civil suit for damages initiated by them in 1999 and to years of hearings presided over by Ontario’s Drainage Referee. Orders of the Drainage Referee led to the development of an interim control strategy in 2000 and a Drainage Engineer’s report and plan for re-engineering of the McNabb Municipal Drain in 2002. Two stormwater management ponds, one servicing the industrial park and the other the Lafarge quarry operation property, were specified under the 2002 plan for the McNabb Municipal Drain to protect downstream riparian lands and Lake Simcoe from runoff from these areas. The applicants believed these facilities should require approval from MOE under the OWRA, following the Municipal Engineers Association (MEA) Class Environmental Assessment. The township held the view that they were exempted from the requirement for OWRA approvals and the Class EA because of exemptions in the OWRA and the EAA pertaining to agricultural drainage works.
Ministry response
MNR responded to the application, stating that it would not conduct an EBR investigation on the McNabb Drain, because under the Lakes and Rivers Improvement Act, approvals are not required for “installation or maintenance of a drain, subject to the Drainage Act.” MNR forwarded the applicants’ concerns regarding fisheries to Fisheries and Oceans Canada for its review. (The Fisheries Act and Lakes and Rivers Improvement Act issues are discussed in more detail in the Supplement, at page 315.)
Between summer 2002 and February 2004, prior to filing the EBR application, the applicants had been requesting intervention under the authority of the OWRA by MOE. In February 2004, MOE advised the applicants that their District office would be posting a proposed Director’s Order for comment by the public on the Environmental Registry for a 30-day period, commencing March 1, 2004. MOE indicated that it had already been conducting an investigation in response to their complaints, but that it expanded the scope of the investigation in response to the EBR application. As a direct result of these processes, MOE finalized the Director’s Order in August 2004 requiring the Township of Ramara and Lafarge Canada to undertake a number of actions. These included assessing and reporting on the sewage and drainage works constructed in the McNabb Drain watershed, and the submittal of an application for approval of any of those works, subject to section 53 of the OWRA. The ministry stated in its report that the McNabb Drain was “dysfunctional and unstable,” but that it believed the response to this order would resolve the concerns of the applicants and prevent further adverse impacts in the watershed. As of March 2005, the township had submitted applications for section 53 OWRA approvals for the two stormwater management ponds in the industrial areas, and MOE was in the process of reviewing them.
ECO Comment
The McNabb Drain story highlights a number of issues of concern to the ECO. It illustrates the extensive environmental damage and expenditure of resources that can be incurred by drainage schemes that are not developed in a manner consistent with planning procedures specified by statutes, provincial policy, and ministry guidelines. When a municipality is contemplating a drainage scheme, it has three main options.
It can apply the Drainage Act, via a petition from constituent landowners, develop the project under the Conservation Authorities Act in cooperation with the local Conservation Authority, or use its authority under the Municipal Act. A typical scenario might involve a small but growing settlement where municipal drainage works upstream or downstream require upgrading. For decades, smaller municipalities have favored the Drainage Act as a way to proceed, partly because it provides a convenient way to develop an assessment schedule whereby all landowners will share the costs, and partly because of exemptions from environmental approvals under the OWRA and the EPA. Municipalities can also apply on behalf of all agricultural land owners for a grant of one-third of their assessments under section 88 of the Drainage Act. It may also be possible to obtain 50 per cent funding from MNR via the local Conservation Authority under the provisions of the Conservation Authorities Act, where flooding and erosion problems are being addressed. If, alternatively, the municipality uses the Municipal Act for a drainage project, the full cost of the project will be allocated through the municipal tax base. Clearly, use of the Drainage Act approach by a municipality has several features that commend it to a municipality faced with rural drainage issues.
However, the Drainage Act was never intended to provide for the development of drainage beyond an agricultural land use setting. It simply does not provide for the review and review and input of technical standards that would be required for urban stormwater management. As was the case of the McNabb Drain, use of the Drainage Act to provide drainage for urbanizing or industrializing areas can have extreme environmental consequences. In areas undergoing the “hardening” process of paving and building, and enclosing previously open drainage ditches into buried pipes, major changes in runoff intensity and volume occur that can have devastating impacts on down- stream watercourses. In most of these cases, the municipality or project proponent should apply the MEA Municipal Class EA, design appropriate stormwater control measures, and apply to MOE for OWRA approvals.
MOE’s Stormwater Management Planning and Design, reviewed in the ECO 2003/2004 annual report (see pages 106-110), provides procedural and technical guidance. Its application would result in a much higher level of downstream environmental protection than would be provided for under the Drainage Act.
The ECO is pleased with the response of the Ministry of the Environment to this EBR application. This represents the first known example of MOE’s issuing a Director’s Order to the proponents of an agricultural drainage scheme where the OWRA needed to be enforced. To prevent such confrontational situations, municipalities need to develop proper planning procedures for drainage in rural settings. The ECO believes that more resources should be committed to informing and educating staff of smaller municipalities on drainage planning issues. While there are many good stormwater management courses, seminars and workshops, they tend to be more accessible to the staff of larger urban municipalities. The Ministry of Agriculture and Food, MNR (perhaps through Conservation Ontario), and MOE could show leadership in this area and sponsor low-cost workshops and publications designed to better inform and educate smaller municipalities on stormwater management. In addition, smaller municipalities often have only part-time drainage engineers, thereby limiting their ability to review and develop drainage works and stay up to date on provincial initiatives and regulatory requirements. These initiatives would be particularly appropriate, given the Ontario government’s plan to create a legislated basis for watershed-based source water protection.
| Recommendation 10:
The ECO recommends that OMAF, MNR, and MOE review current public policies related to drainage and stormwater management to ensure that ecosystem functions are safeguarded. |
| This is an article from the 2004/05 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2005. "Bad Drainage Planning: The McNabb Drain." Planning our Landscape, ECO Annual Report, 2004-05. Toronto, ON : Environmental Commissioner of Ontario. 152-155.]]
