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.