The Drainage Act: Drying up Ontario’s Wetlands
Once viewed as dank wastelands, wetlands are now considered vitally important ecological features in Ontario’s landscape. They filter and purify water, provide habitat for both aquatic and terrestrial species, store water during flooding and release it during droughts. Given that wetlands share features of both aquatic and terrestrial systems, they are rich in biodiversity and contain unique plants and animal species adapted to wet conditions. Despite their environmental importance, 72 per cent of Southern Ontario’s pre-settlement wetlands have been lost through agricultural drainage, development, encroachment, land clearance and filling. Additionally, some landowners view wetlands on their land negatively because of land use restrictions. During this reporting year, the ECO received a number of concerns from the public about conflicts over wetland protection within the City of Ottawa. These conflicts illustrate the disconnect between agricultural drainage activities and responsible environmental planning.
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Municipal Agricultural Drains
The Drainage Act (the “Act”), administered by the Ministry of Agriculture, Food and Rural Affairs (OMAFRA), directs the creation, maintenance and repair of municipal agricultural drains in Ontario. Municipal drains, including open ditches and tile drains, are used to remove water from land to increase agricultural production and productivity. Open ditches remove surface water from fields and tile drains, through underground ‘plumbing,’ remove water from the soil. Water that is removed is usually diverted into a receiving river or stream.
The Act gives legal status to municipal drains, and municipalities are responsible for their construction, improvement, maintenance, repair and operation. Landowners can petition their local municipality to carry out agricultural drainage works (e.g., the construction of a new drain) on their property. While the cost is assessed to all landowners in the drainage area, OMAFRA provides grants for a portion of the cost through the Agricultural Drainage Infrastructure Program. Under certain circumstances (e.g., for the maintenance and repair of existing drains), funding may be available for drainage projects in some wetlands.
Wetland Protection
The Ministry of Natural Resources (MNR) determines which wetlands in Ontario are considered provincially significant, using a scientific point-based ranking system known as the Ontario Wetland Evaluation System (OWES). Provincially significant wetlands (PSWs) are protected from development and site alteration through the 2005 Provincial Policy Statement (PPS), administered by the Ministry of Municipal Affairs and Housing (MMAH) under the Planning Act. Although MNR is responsible for identifying PSWs, wetlands must then be designated as such in municipal official plans for the PPS protection provisions to apply. Locally significant wetlands (e.g., wetlands that do not score high enough by OWES to be considered provincially significant) and unevaluated wetlands are not protected under the Planning Act or the PPS.
The Conservation Authorities Act (CAA) provides additional wetland protection. Conservation Authorities (CAs) regulate development and activities in and adjacent to wetlands, including Drainage Act works. CAs, however, have some discretion as to which wetlands they regulate in their watershed. While some CAs regulate provincially and locally significant wetlands in their watershed, others only regulate PSWs identified in municipal official plans.
However, PSWs are not protected from all land use activities that are harmful. Drainage Act works (e.g., the construction of new drains or the maintenance and repair of existing drains) are allowed within all wetlands in Ontario under the PPS, including provincially significant, locally significant and unevaluated wetlands.
To protect wetlands and other natural features, OMAFRA developed a referral process for landowners and agencies (e.g., CAs and MNR) to provide input into the design and approval of drainage works. However, as a result of agency budget constraints and their inability to actually prevent the approval of drainage works, MNR and CAs often are left with little option but to recommend mitigation measures (e.g., erosion control and alterations to the drainage design). The referral process has had limited influence on drainage works and is inadequate to maintain the area of wetlands, since incremental losses continue to occur.
In addition to OMAFRA’s referral process, the general public also has some opportunities to comment on proposed drainage works, such as during municipal council meetings. The Drainage Act, however, is not prescribed under the Environmental Bill of Rights, 1993 (EBR), and therefore the public is unable to submit EBR applications for review or investigation related to the Act.
Goulbourn Wetland Complex
In 2005, MNR confirmed the addition of 20 new wetland units to the provincially significant Goulbourn Wetland Complex, located in the City of Ottawa, formerly Goulbourn Township. Wetland complexes are two or more functionally linked wetland units that are separated by a non-wetland area. That same year, the City of Ottawa began its official plan amendment process to designate the new wetland units in the Goulbourn Wetland Complex.
Some landowners claimed that lands added to the Goulbourn Wetland Complex were not natural wetlands, but rather lands that were flooded because of poor drainage from beaver activity and unmaintained private ditches. In 2006, landowners filed a drainage petition with the municipality for an area within the Goulbourn Wetland Complex: Upper Flowing Creek (north of Flewellyn Road). Later that year, the City of Ottawa canceled and withdrew its plan to designate the wetlands evaluated as provincially significant in the wetland complex area. The city also established a Wetland Stakeholder Group to address drainage issues and concerns. In 2008, another group of landowners filed a second drainage petition for an area within the Goulbourn Wetland Complex: Hazeldean Road (west of Stittsville). As of July 2010, the city has not officially declared either drainage petition as a municipal drain.
Some landowners in both drainage petition areas altered their land (e.g., filled, drained and removed vegetation) in an effort to eliminate the wetland and remove the PSW status. Because the landowners in the Upper Flowing Creek area did not obtain permission under the CAA to alter their land, the Mississippi Valley Conservation Authority (MVCA) laid charges. However, since the charges were laid more than six months after the violation occurred, MVCA was forced to drop the case. The statute of limitations for CAs is just six months. In contrast, MNR has a two-year window under the Public Lands Act to lay charges on similar offences.
Ottawa’s Official Plan Amendments
In June 2009, the City of Ottawa submitted an official plan amendment to MMAH as part of its five-year comprehensive official plan review. The proposed amendment included the creation of the Flewellyn Special Policy Area to “allow for correction of drainage problems and protection of provincially significant wetlands” in the Upper Flowing Creek drainage petition area. The draft amendments proposed that the wetland be designated as a “special policy area” rather than as a PSW in the city’s official plan.
Initially, MMAH recommended removal of the “special policy area” designation because it was not consistent with the PPS. However, in January 2010, the ministry completely reversed its position and approved a “Flewellyn Special Study Area” to “restrict development until such time as the appropriate local studies are completed” (see Environmental Registry #010-7300). No new development is allowed in the special study area, but site alteration is not explicitly prohibited.
Wetlands in the Hazeldean Road drainage petition area are now designated as part of the provincially significant Goulbourn Wetland Complex in the city’s official plan.
ECO Comment
The Goulbourn Wetland Complex story is a cautionary tale that highlights the discord in Ontario between wetland protection and agricultural drainage. Drainage works, by their very nature of dewatering land, pose a real and significant threat to wetlands in rural Ontario. While the approval of one drain petition in a wetland may seem insignificant, the cumulative impact of many municipal drains may result in significant losses of function, value and area of wetlands in a watershed. The City of Ottawa has over 700 municipal drains, totaling more than 1,200 kilometers in length. It begs the question what the cumulative impacts of 700 drains on Ottawa’s wetlands have been.
The Goulbourn Wetland Complex lies just west of Ottawa’s urban boundary. There is no doubt that some rural landowners oppose a PSW on their property since land use restrictions would make their land less desirable to developers. The City of Ottawa’s four-year delay in designating newly identified PSWs in its official plan gave landowners the opportunity to “bulldoze” and file drainage petitions for some PSW identified areas. To the city’s credit, in 2010, the City of Ottawa amended its official plan so that PSW policies apply to PSWs identified by MNR, regardless of whether they are designated by the city. The ECO encourages MMAH to ensure that all municipal official plans similarly protect undesignated PSWs.
The ECO is disappointed that MMAH failed to defend the PPS by approving a “special study area” for lands MNR confirmed, on several occasions, to be included within a PSW complex. The ECO believes that MMAH should have required the city to designate all PSWs identified by MNR in its official plan. Creation of a special study area for a portion of a PSW complex confirmed by MNR is not consistent with the PPS because it allows site alteration within a PSW – which is explicitly prohibited by the PPS. Site alteration, such as grading, excavation and the placement of fill in a wetland, can destroy fish and wildlife habitat, impair water quality, and destroy or damage its ecological functions. Placing fill in wetlands can also increase downstream flooding because it reduces water storage in the floodplain.
The ECO is pleased that Bill 68, the Open for Business Act, 2010, includes proposals to amend the CAA and extend (from six months to two years) the period within which CAs may prosecute regulation violations, including development and site alteration in and around wetlands. It can be difficult for CAs to collect evidence within six months of an offence, especially with respect to site conditions in wetlands during the winter months. The ECO believes that the proposed CAA amendment will enable CAs to successfully prosecute more landowners who damage or destroy wetlands in southern Ontario.
MNR and CAs are unable to stop works under the Drainage Act through the referral process established to protect wetlands and other natural features. While the Planning Act and PPS require developers to demonstrate that there will be no significant impacts on a PSW before project approval, the Drainage Act wrongly puts the onus on the referral agencies to show that there would be an impact on the wetland. The ECO believes that OMAFRA should review and amend the archaic Drainage Act and its associated policies to ensure that the features and functions of wetlands are protected and conserved. The government has made no progress on a similar recommendation in our 2004/2005 Annual Report that OMAFRA, MNR and the Ministry of the Environment review public policies related to drainage and stormwater management. Furthermore, given the environmental significance of this piece of legislation, the ECO believes that the Ministry of the Environment (MOE) and OMAFRA should prescribe the Drainage Act under the EBR.
Agricultural drains threaten wetlands by removing water – the very substance that is critical to their existence. In Ontario, agricultural drains have contributed to and continue to contribute to the degradation, fragmentation and loss of wetlands. Rural land owners in the City of Ottawa were able to use the Drainage Act to bypass provincially significant wetland protection provisions in the PPS. The ECO believes this was possible because of conflicting provincial legislation and policies related to wetland protection in Ontario. While the PPS and the Planning Act protect PSWs from urban development, it does not protect PSWs from agricultural drainage under the 'Drainage Act. Additionally, OMAFRA provides grants for drainage works within wetlands. The ECO believes that if the provincial government continues to allow and provide funding for municipal drains in wetlands, it is inevitable that this loss will continue. The ECO believes that the PPS should be revised to restrict Drainage Act works, particularly new and petition drains, in provincially and locally significant wetlands.
| Recommendation :
The ECO recommends that the Ministry of Agriculture, Food, and Rural Affairs amend the Drainage Act and its policies to ensure that provincially significant wetlands are protected from being drained. |
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| This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2010. "Draining Ontario's Wetlands." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. .
