FINAL DRAFT
Discussion Paper - Implementation Process for Carp River Restoration Project

Background
There appears to be much uncertainty about the process that is being followed in the planning and approval of the Carp River Restoration Project (Project). A number of setbacks have occurred with the planning of the project in the time since the Project was recommended in the Carp River Watershed / Subwatershed Plan (Plan), which was Approved by City of Ottawa (City) Council on January 12, 2005. Among the first setbacks was the Project proponents’ need to respond to the many concerns raised by the Ministry of Transportation (MTO), Ministry of Natural Resources (MNR), and the Ministry of Environment (MOE) in their review of the Plan subsequent to Council’s Approval of the Plan. Other set-backs that followed included the need to respond to the three Ministries’ concerns dated November 22, 2005 and January 31, 2006 on technical documentation prepared by the Project proponents - the City and the Kanata West Landowners Group (KWLG), in support of the Project as a Schedule B undertaking under the Municipal Engineers Association Class Environmental Assessment (MEA Class EA) process.

Through discussions and correspondence by members of the Carp River Coalition (Coalition) with the Provincial Ministries, City Staff, Ward Councilors and KWLG representatives, the Coalition is getting mixed messages about the status of the Project, and the timeframe under which a Notice of Completion for the Project may be expected. If we are to believe the newspaper article in the March 4, 2006 Ottawa Citizen, the Public is led to believe that it could take another twelve months or more to complete.

Coalition members are anything but confident that the process through which the Project is being planned meets the requirements of the Environmental Assessment Act (EAA). Coalition members had raised concerns with the MOE Environmental Assessment and Approvals Branch (EAAB) about the City and KWLG planning the Project using the “Integration with the Planning Act” provisions of the MEA Class EA. These concerns were raised many months ago, and it wasn’t until February 2006 that the City and KWLG were informed by the EAAB that the Project had to be approved under the Environmental Assessment Act, not the Planning Act. The delay in making this decision has cost all of those involved unnecessary time and effort. As is documented in this Discussion Paper, the Coalition maintains that projects involving the planned filling and development of floodplain to increase developable land fall outside the definition of a Class undertaking, hence requiring the completion of a Full Environmental Assessment. The Coalition believes that the Project proponents and EAAB could save additional time and effort by early consideration of the issues raised in this Discussion Paper.

Members of the Coalition have been exchanging ideas over the last number of months about how best the Project could proceed in not only an environmentally sustainable manner, but also with the necessary expedience, fully acknowledging that for the Project to proceed and succeed, it has to be in the form of a partnership between the City, KWLG, ministries, agencies, and watershed stewardship groups. Of all of the Project partners, the KWLG clearly has the most at stake. While there may be opportunities for the KWLG to reap huge benefits in the form of yielding additional developable land through rezoning and development of existing Hazard Lands, the Coalition recognizes that the process to implement the Project cannot be fraught with delays and uncertainty that would undermine the apparent good faith that the KWLG has shown in committing to the restoration of the Carp River.

Purpose of Discussion Paper
Based on correspondence that Coalition members have received from the EAAB, it is understood that the KWLG and City are in agreement that the Class EAs for the Project and the Kanata West Transportation and Infrastructure Master Plans are subject to Approvals under the Environmental Assessment Act, and not the Planning Act, as had been originally proposed by the Project Proponents. One of the main differences with this change in the Approval Authority is that the Public has an opportunity to file Part II Order Requests with the Minister of Environment, should their concerns not be addressed by the Project proponents within timelines outlined in the MEA Class EA process - rather than having to Appeal to the OMB to resolve any outstanding concerns.

Given the Coalition’s desire to have the Project move forward expeditiously, the input provided in this Discussion Paper is intended to re-scope the range of impacts the Coalition firmly believes need to be addressed by the Project. Through this exercise, the terms of reference of the on-going Class EA is examined with the purpose of determining whether there is the possibility that the full range of anticipated impacts can be resolved. Other approaches are then developed and evaluated with respect to environmental sustainability, ability to address the full scope of impacts, and the ability to be implemented in an expeditious manner.

The selection of the Coalition’s preferred implementation approach for the Project is identified. The Coalition would be interested in elaborating on this approach with the Project’s proponents, with the intent of resolving issues up-front, and hopefully avoiding any need to request Part II Orders on the Class EAs currently underway in support of the Kanata West development.

Re-Definition of Project Scope
The main concern of the Coalition is that the present scope of the Project is too limited to avoid aggravating drainage and pollution problems downstream of Richardson Sideroad, the current downstream limit of the Project. Not only would this approach to the undertaking cause impacts to the existing riparian conditions and landowners, but also it could jeopardize the sustainability of the largest stewardship project underway in the City of Ottawa - the restoration of the Carp River near the Village of Carp by the Friends of the Carp River.

The Coalition’s position concerning the need to expand the scope of the Project is based on the findings of the Plan, and the 1909 Ontario Court of Appeal Decision (Township of Huntley v Township of March) (Huntley v. March).

Based on Huntley v. March, it is evident that the issue of flooding and development in the Carp River watershed has been around for nearly 100 years. Based on the learned judgment of the then five members of the Ontario Court of Appeal:

“Drainage water must go not merely to an outlet by means of which it satisfactorily escapes from the lands which are being drained, but to a "sufficient outlet" which as defined in sec. 2, sub-sec. 10, means the "safe discharge of water at a point where it will do no injury to lands and roads." And sec. 3, sub-sec. 4, as it now stands, shews that it is not sufficient in order to escape from liability simply to shew that the first discharge was into a "swale ravine, creek or water course."”

The Plan identified not only the need for river restoration work within the urbanizing / Subwatershed Plan portion of the watershed area, but it also identified “Priority 1 and Priority 2” areas along the river in the rural/watershed area of the Plan. On the basis of findings of the Plan, urbanization of the upper watershed area - such as that in Glen Cairn, Stittsville, and the North Kanata/Centrum area, has increased runoff rates to the Carp River. This is not unlike the set of circumstances that led to the original channelization work nearly 100 years ago under the Municipal Drainage Act.

In effect the ruling in Huntley v. March is consistent with the Natural Hazards policies of the 2005 Provincial Policy Statement, and with Ontario Regulation 454/96 under the Lakes and Rivers Improvement Act. The improvements and alterations being made to the drainage systems upstream of the Carp River at the turn of the 20th Century could be viewed as “development and site alteration” that led to the creation of new or aggravation of existing flood conditions along the Carp River. Similarly, with respect to the LRIA, the improvements and alterations being made to the upstream drainage systems at the turn of the 20th Century was negatively impacting the interests of riparian landowners along the Carp River.

The Huntley v. March Decision found that agricultural drainage in higher lying lands was aggravating flooding conditions along the Carp River, and that the upstream landowners contributing to the downstream drainage problems must also contribute to the remediation of the problems downstream. Furthermore, Huntley v. March affirmed the recommendations of Mr. John Harrison Moore, C.E. (the Drainage Engineer) whereby drainage improvements along the Carp River would have to be carried out to a point downstream of the Village of Carp before it would reach a point in the drainage system where there is a “sufficient outlet”.

One hundred years later, development within the watershed consists not only of agriculture, but of many intense land uses that have, and are continuing to, contribute to flooding and environmental degradation problems along the Carp River, not only through Kanata West, but also downstream of Kanata West until the point of “sufficient outlet”. The current Class EA process for the Project appears to be disregarding the finding of the Ontario Court of Appeal in Huntley v. March. It is the Coalition’s position that the EAAB and the Project proponents should give due consideration to Huntley v. March.

Failing to adequately define the scope of the Project is at the top of the list of reasons the Coalition would consider submitting a Request for a Part II Order, based on the present approach being followed in the Class EA for the Project.

Adequacy of Existing Project Class EA
The present Project is being planned through one of several studies being commissioned by the KWLG intended to result in the ultimate approval of development applications in the Kanata West Concept Plan (KWCP) area under the Planning Act.

The KWCP, which was approved by City Council in 2003, proposed development of portions of the Carp River flood fringe for a variety of uses including residential development, as well as stormwater management facilities. In other words, in the context of the Provincial Policy Statement, development of hazardous lands adjacent to the Carp River is being proposed.

The acknowledgement that the Kanata West Class EAs can no longer be Approved under the Planning Act using the Integration Provisions of the MEA Class EA should not lead to a misunderstanding that “integration” of Planning Act and Environmental Assessment Act issues is no longer required. This is on the basis the following statement found in Section A.1.2.1 of the MEA Class EA document:

“The Class EA process, however, does not replace or exempt the formal processes of other applicable federal and provincial legislation and municipal by-laws, such as permits or approvals, and the specific public agency consultation that they may require.”

The Coalition continues to have difficulty agreeing with the characterization of the Project as a Schedule B “flood and erosion control” project. This is based on findings of the Plan in which no flood damage centers were found in the Subwatershed Plan area. Furthermore, if anything, the Carp River suffers from sedimentation rather than erosion problems. The Coalition further believes that the need for a “flood control project” should not be the result of poor planning decisions. In other words, planning non-compatible landuses in a flood hazard area does not constitute “Good Planning” in a Greenfield development area.

Floodplain elevations documented in the Plan and subsequent Class EA reports (on the basis of comments raised in the January 31, 2006 Tri-Ministry letter) indicate that the planned filling and development of hazardous lands through Kanata West results in increases in flood levels along certain reaches of the Carp River, and in particular at the Highway 417 bridge structures. The fact that the environmental impact of the Class EA undertaking results in an increase in flood levels creates a number of questions about the Authority that should be involved in the decision making of whether the impact is acceptable.

The following excerpt is from Section 3.1 of the Provincial Policy Statement:
3.1.5     Where the two zone concept for flood plains is applied, development and site alteration may be permitted in the flood fringe, subject to appropriate floodproofing to the flooding hazard elevation or another flooding hazard standard approved by the Minister of Natural Resources.

3.1.6     Further to policy 3.1.5, and except as prohibited in policies 3.1.2 and 3.1.4, development and site alteration may be permitted in those portions of hazardous lands and hazardous sites where the effects and risk to public safety are minor so as to be managed or mitigated in accordance with provincial standards, as determined by the demonstration and achievement of all of the following:

a.    development and site alteration is carried out in accordance with floodproofing standards, protection works standards, and access standards;
b.    vehicles and people have a way of safely entering and exiting the area
during times of flooding, erosion and other emergencies;
c.    new hazards are not created and existing hazards are not aggravated; and
d.    no adverse environmental impacts will result.

If the Coalition’s interpretation of Section 3.1.6.c of the Provincial Policy Statement is correct, by the fact that increases in flood levels have been detected in the Class EA underway for the Project, and pursuant to the discussion in Section A.1.2.1 of the MEA Class EA document, the decision of whether or not the approval of the Carp River Restoration Plan Class EA can proceed does not rest entirely with the Minister of the Environment.

The same reasoning applies with respect to Approvals required under the Lakes and Rivers Improvement Act.

Therefore, if the Class EA documentation shows flood or flow levels increasing as a result of the proposed Project, before any additional time is committed to completing the Project’s Class EA process, the Coalition highly recommends that the EAAB comment on how it could respond to Part II Order requests, or proceed with the approval of the Project under the EAA if the supporting documentation fails to show that “new hazards are not created and existing hazards are not aggravated”, or that the rights of riparian landowners are not protected.

The Coalition believes that the aggravation of existing flood levels is the result of:
1)    Failure to fully compensate for the loss of floodplain storage; and
2)    Failure to adequately define the Project’s scope.

It is therefore submitted by the Coalition that the current scope of the Project is inadequate to satisfy the approval requirements for the planned development of hazardous lands under the Planning Act, or to protect the rights of riparian landowners under the LRIA. Consequently, it would appear that there is little merit in continuing with the Project and its limited scope. Without expanding the scope of the Project, the Coalition would request a Part II Order in the event a Notice of Completion is posted for the Project.

Arguments in Favour of Full Environmental Assessment for Project
The Coalition supports and encourages recommendations like those of the Plan that call for improvements to the Carp River, in which fish habitat conditions are expected to be enhanced. However, is it sufficient to justify such an undertaking, whereby positive impacts to such a narrow part of the environment could be negated by detrimental impacts to other parts of the environment?

The EAA defines environment as:
(a) air, land or water,
(b) plant and animal life, including human life,
(c) the social, economic and cultural conditions that influence the life of humans or a community,
(d) any building, structure, machine or other device or thing made by humans,
(e) any solid, liquid, gas, odour, heat, sound, vibration or radiation resulting directly or indirectly from human activities, or
(f) any part or combination of the foregoing and the interrelationships between any two or more of them,

in or of Ontario.

Can the Project be justified considering the full definition of the Environment? Should the Project, which offers to enhance the fish habitat of the Carp River, be supported despite the fact that Public Health and Safety risks are increased to the human or built environment?

The Public is routinely informed that the MEA Class EA process has been used successfully on thousands of undertakings throughout the Province to fulfill the EAA requirements for municipal undertakings that occur frequently, are relatively small in scale, generally have a predictable range of effects or have minor environmental significance. The Coalition maintains that the Project exceeds the characteristics by which Class EA undertakings are normally defined, thereby warranting the Project to be subject to Part II of the EAA.

As a proponent driven process, the application of the MEA Class EA process to municipal undertakings is subject to interpretation that can lead to differences of opinion between proponents and opponents of undertakings as to whether the Class EA process is fulfilling the intent of the EAA. The intent of the proponent driven, public consultation process, is to provide an opportunity for proponents and opponents to resolve their differences, and hopefully avoid the need to request that the undertaking be subject to Part II of the EAA. In the case of the Project, members of the Coalition have been unsuccessful in convincing the EAAB or the Project proponents that the Project falls outside of the definition of a Class undertaking.

Instead of continuing the debate on the basis of whether or not, by definition, the Project qualifies as a Class EA undertaking, the Coalition would like the EAAB and Project proponents to consider the review process that lays ahead by the Minister of Environment, should Part II Orders be requested after the Notice of Completion for the Project is posted.

To date the Coalition has observed in the Plan, and in the Ministry comments, evidence that the Project will result in increases in flood elevations, which appear contrary to the Natural Hazards Policies of the Provincial Policy Statement, and the purpose of the Lakes and Rivers Improvement Act. The significance of the increase in flood elevations, we can only imagine, is likely the subject of on-going debate.

In the event that the Class EA analysis documents an increase in flood levels, and such documentation forms the basis of supporting documentation when the Notice of Completion of the Project is posted, under what Authority will the MOE Minister be able to decide whether such increases in flood levels are acceptable under the Planning Act and Lakes and Rivers Improvement Act (i.e. Acts administered by different Ministers)?

On this basis alone, should any change in flood levels result from the Project, pursuant to Section A.1.2.1 of the MEA Class EA document, the undertaking falls outside the bounds of a Class undertaking and MUST be subject to Part II of the EAA.

Preferred Comprehensive Project
It is the position of the Coalition that the restoration of the Carp River is desirable, and the opportunity to realize this laudable goal should not be jeopardized by problems with the current planning process for the smaller scoped Project. The Coalition’s preference is for the completion of a “Comprehensive Project” that involves the restoration of the Carp River to a point where there is a sufficient outlet.

There are two alternative implementation processes for undertaking the Comprehensive Project: through the completion of a Full Environmental Assessment under the Environmental Assessment Act, or through the implementation of the Watershed / Subwatershed Plan’s recommendations for the Carp River improvements, using the Drainage Act process in lieu of the EAA. Irrespective of which process is selected, the intent would be to build on the work completed to date on the Project so that the Comprehensive Project could be completed in the most expeditious timeframe possible.

Alternative 1 - Full Environmental Assessment
The completion of the Full Environmental Assessment modifies the scope of the current planning process in the following ways:
i)    the Terms of Reference of the Comprehensive Project would be established through a public consultation process;

ii)    the Terms of Reference for an Interim Carp River improvement scheme would be established with the intent to allow limited development in Kanata West to proceed (Mattamy, Loblaws/Taggart, for example) in the interim, while work on the Comprehensive Project continues;

iii)    the scope of field investigation work would need to be expanded downstream to at least the limit of the 1910 Municipal Drain undertaking (near the railway crossing below the Village of Carp);
iv)    the impact of future development work outside of Kanata West (Broughton Subdivision, Terry Fox Drive extension, Highway 417 expansion, Hazeldean Road widening/bridge alterations. Del Brookfield development etc.) would need to be integrated in the project;

v)    land acquisition and / or securement of easements through private property downstream of Kanata West would need to be initiated to provide access for construction of the preferred alternative; and

vi)    preparation of a comprehensive cost sharing agreement in which all benefiting parties are responsible for covering project costs.

Realistically, the Coalition expects that by the end of 2006, Mattamy and Loblaws / Taggart will have been able to implement interim flood and erosion control works upstream and downstream of Highway 417 such that those developments could proceed without aggravating existing flood hazards, or creating new flood hazards (Kanata West is likely to take many years to build-out completely, so it is expected limited development could proceed in the next few years before the Comprehensive Project would be completed/constructed). By the end of 2006, the Coalition also believes that fieldwork could be completed downstream such that alternative restoration plans could be prepared at a conceptual level to allow evaluation and selection of the preferred alternative.

By 2007 the Taggart/Loblaws development will have been constructed, as well as the initial phases of the Mattamy subdivision. Preliminary design alternatives will be evaluated for the preferred alternative, and a preferred solution will be selected by Fall 2007. Property acquisition and / or negotiations for drainage easements would commence after the Preferred Solution has been identified. Detailed design of the preferred solution will proceed over the winter of 2007/2008. Tendering and Construction of the Comprehensive Project will be undertaken in phases commencing in 2008, and implemented over 2+ years.

Mandatory Public Consultation / Notification would be conducted throughout the study process.

Alternative 2 - Drainage Act Process
The initiation of the Drainage Act process would commence with the filing of a Petition with the City signed by landowners within Kanata West and points downstream desiring drainage improvements pursuant to Section 4 of the Drainage Act. The formal process of establishing a Municipal Drain under the Drainage Act would be followed.

The scope of work required to execute the Drainage Act process is not expected to differ much from that outlined in the Full Environmental Assessment process. Due to the nature of the undertaking, an Environmental Appraisal (Section 6) and a Preliminary Report (Section 10) should be prepared, with results being made available by the end of the summer of 2006 to provide preliminary feedback with respect to costs and environmental compliance of the Comprehensive Project.

Because this is not a standard undertaking under the Drainage Act, the Drainage Engineer should expect that additional effort may be required for Public Consultation, preparation of design alternatives, completion of the Environmental Appraisal and securing the necessary permits under the Fisheries Act from the Department of Fisheries and Oceans and allocation of project costs. Due to the complexity of the project, it would be advisable to have the project assessments peer reviewed.

The main advantage of application of the Drainage Act process is that there is no need to engage in negotiations to secure land or easements, and the costs involved in this aspect of the project do not have to be borne by those requiring drainage. Timelines for execution of the Drainage Act process could be less than the Full Environmental Assessment owing to the fact that property acquisition issues do not have to be dealt with. However, because of the formal Appeal processes under the Drainage Act, there is the chance that the completion of the planning and design phase could take longer than the Full Environmental Assessment (assuming that there would be no challenges of the Full EA process).

Coalition Preferred Process
The Coalition could support either the Full EA or Drainage Act process as a means to proceed with undertaking the Comprehensive Project, providing that the full scope of development and consideration of potential impacts result in a sustainable solution.

Based on the experience of the Coalition members, there may be some strategic advantages for all partners in the Comprehensive Project if the Drainage Act process was employed, merely by the fact that the current impasse on the Class EA Project would dissipate, because Drainage Act projects are not subject to Approvals under the EAA. Furthermore, the Drainage Act process will result in a legal outlet, and there are formal Appeal mechanisms and established procedures for allocating project costs. There is no formal process for allocating project costs under the EAA, and therefore there would be some unpredictability about the length of time required to settle disputes that invariably arise on such projects.

Summary
Based on the foregoing discussion, it is the position of the Coalition that Watercourse Management projects described in Section C.1.3 of the MEA Class EA document do not include projects intended to increase lands available for development if new hazards are created and existing hazards are aggravated. Furthermore, not only does such an undertaking fall outside the definition of a Class EA undertaking, it falls outside the Approval Authority of the Minister of Environment.

In the scenario that a Full Environmental Assessment was deemed to be required, and was executed 100% in accordance with the requirements of the Environmental Assessment Act, and that all necessary Planning Act approvals (rezoning of hazard land etc.) were secured, the project still could not proceed until all of the necessary arrangements were in-place to secure access to actually construct the undertaking. Implementation of a Drainage Act process would enable legal and property access issues to be resolved, and flood hazard issues to be addressed such that re-zoning of the land could proceed.

Therefore, in the interest of completing the Comprehensive Project in the most expeditious time schedule, the Carp River Coalition would consent to the Carp River Restoration Project proceeding on the basis of the Drainage Act process, as per the scope of work outlined above. If properly executed, there is no reason that the same land development, drainage, and environmental enhancements can result - along a longer reach of the Carp River - providing such a project follows the recommendation of the City of Ottawa Council Approved Carp River Watershed Plan that recommends the use of Natural Channel design.