1) Background

Purpose of this Submission
At the end of this document the MNR and Conservation Ontario are asked to take a position on whether there is sufficient evidence that would support the need for an operational audit to be conducted on the Mississippi Valley Conservation Authoritys approach to floodplain management out of concern that the MVCA:

1. Regulates and applies Provincial floodplain policy inconsistently within its own jurisdiction;
2. Regulates and applies Provincial floodplain policy inconsistently with other Conservation Authorities in the Province of Ontario; and
3. Enforces the Conservation Authorities Act in ways that are inconsistent with Decisions of the Ontario Mining and Lands Commissioner, who has been assigned the authority, duties and powers of the Minister of Natural Resources under the Ministry of Natural Resources

Over the last five years the MVCA has been participating in planning studies within its jurisdiction in which filling and development of as much as 60 Ha of floodplain along the Carp River has been recommended. Currently the proposal involves the filling and development of 28 Ha of floodplain in a Greenfield Development area known as Kanata West. Grading and servicing of this 700 Ha development area has begun recently fortunately outside regulated floodplain areas. However,development applications are likely soon to be received whereby lands currently subject to One Zone floodplain regulations will be allowed to be developed, based on the planning studies that have met with the apparent approval of the MVCA.

Through the completion of an operational audit of the MVCAs approach to floodplain management, it is the desire of the author of this request that the MNR would intervene forthwith in the current decision-making of the MVCA concerning floodplain regulation along the Carp River, and in other areas of its jurisdiction as the MNR sees fit.

Role of Ministry of Natural Resources

According to the 2001 Publication Understanding Natural Hazards An introductory guide for public health and safety policies 3.1, provincial policy statement:

The role of the MNR in flood management is further identified in Our Sustainable Future Ministry of Natural Resources Strategic Directions, February 2005. Relevant excerpts from this document are included in Attachment 1. The MNRs operating philosophy respects the precautionary principle:

From both a sound business and environmental perspective it is less costly and more effective to anticipate and prevent negative environmental impacts before undertaking new activities than it is to correct environmental problems after the fact."

Implementation of MNRs Strategic Plan includes monitoring activities and enhanced integration with other agencies:

Prior to moving to the Ottawa Valley in 1999, the author of this request, a water resources engineer, had practiced in Southern Ontario where he had completed a number of projects for Conservation Authorities, including Subwatershed Plans for the Credit Valley Conservation Authority and the Upper Thames River Conservation Authority. While practicing in Southern Ontario, he had also became familiar with the practices of Conservation Authorities including the Toronto Region Conservation Authority, the Lake Simcoe Region Conservation Authority, the Halton Region Conservation Authority and the Grand River Conservation Authority, to name a few.

Based on this experience, the author of this request became familiar with the approach to floodplain management taken by the largest Conservation Authorities in the Province. This approach that is reflected in Decisions of the Ontario Mining and Lands Commissioner involves being consistent in all of their decisions, to be concerned about precedence, and the cumulative impact of their decisions.

Section 3) of this document provides a number of excerpts from the following Decisions of the Ontario Mining and Lands Commissioner:

1) April 25, 1997 - Chalmers vs. Grand River Conservation Authority; and
2) February 11, 1994 611428 Ontario Limited vs. Metropolitan Toronto and Region Conservation Authority.

These decisions are particularly relevant to the circumstances of the proposal to fill and develop the floodplain of the Carp River. Compared to many of the Decisions of the Mining and Lands Commissioner, Chalmers vs. GRCA and 611428 Ontario Limited vs. MTRCA are very detailed in their consideration of floodplain management issues, and include testimony of some of the most respected practitioners involved in floodplain management in the Province of Ontario.

The Ontario Mining and Lands Commissioners Decision of 611428 Ontario Limited vs. MTRCA, was in fact Appealed, but the approach to floodplain management and the conservation of land taken by the MTRCA was upheld by Divisional Court.

After summarizing the key facts and findings of these two Decisions in Section 3), eight different projects involving decisions / comments by the MVCA are presented in Section 4). In each of these cases, a number of questions are posed about the approach to floodplain management taken by the MVCA.

Section 5) provides a summary of this document, and the formal request for an operational audit of the MVCA

Relevant documents in which contents of this request have been prepared are cross-referenced throughout the discussion, and are provided in the Attachments to this submission.

3) Decisions of the Ontario Mining and Lands Commissioner

Attachment No. 2 is a speech delivered on March 20, 2002 by Ontario Mining and Lands Commissioner (OMLC) Linda Kamerman to the Urban Development Institute. The speech provides the basis on which decisions of Conservation Authorities are made under Section 28 of the Conservation Authorities Act, that is also the basis on which Appeals to the OMLC are Decided. Following are a number excerpts that are of particular relevance to this request for an operational audit of the MVCA (key statements have been underlined):

On page 2-3 the OMLC differentiates between application of the Conservation Authorities Act and Provincial Policy under the Planning Act:

"By the provisions of the Conservation Authorities Act, a CA has, over those lands within its jurisdiction, the power to outright prohibit, regulate or grant permission to a private property owner the right to develop his or her land as he or she sees fit. For purposes of an application under section 28, Official Plan designations or zoning are not relevant. Just to be clear, lands having a certain designation for municipal planning purposes such as residential, industrial or commercial, does not mean that permission under section 28 must follow as a foregone conclusion. For purposes of development, which includes most kinds of construction as well as the placement of fill, for purposes of straightening or channeling a watercourse or interfering with a wetland, the overriding considerations which govern are determinations concerning the inherent capacity of that land in that location, in relation to its surroundings, to withstand in a physical sense, the proposed development, alteration or encroachment.

These are questions which can be answered through technical information about the property involved, as well as the watershed systems which may be affected. A properly prepared application and appeal requires the research and presentation of evidence and opinions of specialized technical experts. Not wishing to disparage land use planners, it must be stressed that municipal land use planning is of little or no use in answering the very real and difficult technical questions which section 28 applications give rise to. An appellant, or his counselor agent, needs to rely on experts who can address the issues raised by the provisions of section 28, the particular Construction, Fill and Alteration to Waterway Regulations, answer to issues raised by either the Provincial Policy Statements or the CA individual policy, or both."

Later on pages 5-6, the OMLC comments on matters related to conservation of land and the application of the precautionary principle that has been upheld in Divisional Court:

"The existing decisions, pursuant to the pre-1998 version of section 28, were based on whether the proposed activity would affect the control of flooding, pollution, or conservation of land. For the most part, decisions centered solely on the question of control of flooding. There were a few decisions involving pollution. The sources of pollution could either be from run off or involving septic systems, but in any case, they were not too numerous. There were also few decisions on the meaning of conservation of land. Two significant decisions were Hinder v. Metropolitan Toronto and Region Conservation Authority, (1984), 16 O.M.B.R. 401, which found the phrase to mean "wise use" and 611428 Ontario Limited v. Metropolitan Toronto and Region Conservation Authority, (M.L.C.)(February 11th, 1994) (unreported) which found the phrase to comprehend "conservation of an ecosystem". The decision further stands for the proposition that a precautionary principle would be applied to development involving first order and intermittent streams located within the headwaters of a watercourse, with a threshold of no net impact. This was upheld on appeal by the Divisional Court in an unreported decision (Court File 123/94) released April 22, 1996; leave to appeal was denied.

This seeming expansion of the meaning of "conservation of land" has been embodied in the 1998 version of section 28. It is also reflected in the draft Generic Regulation and can be seen in the principals of the Provincial Policy Statement. The latter document actually dates back to 1996, and some of its provisions can be found in many of the individual Conservation Authority policies used in determining applications.

On page 9 of Attachment 2, the OMLC comments on Floodplain Policy, including Two Zone Policy:

One and Two Zone Approaches and Special Policy Area

Some CAs have implemented within certain floodplains what is referred to as the Two Zone approach to the permit process. Essentially, the floodplain is divided into two areas, the floodway and the flood fringe. Development is prohibited in the floodway and certain types of development will be permitted in the flood fringe. This concept is explained and illustrated very well in the Implementation Guidelines.

There are also areas known as Special Policy Areas, which are located within the floodplain proper, but for which certain flood works are in place. Development in the Special Policy areas will still require a permit, but different standards may apply.

The remaining CA's, unless specifically otherwise indicated, apply the One Zone approach. The matter of whether a specific reach would benefit from the Two Zone approach is initially a planning matter. This is not an issue which is considered before the Commissioner. To have a two-zone approach applicable, it is necessary for the municipality to go through the necessary planning process in consultation with the Ministries of Municipal Affairs and Housing, Natural Resources and the local Conservation Authority. Again, this process is described in detail in the Implementation Guidelines.

On page 16 the OMLC comments on the priorities of Conservation Authorities when considering encroachments within floodplains:

On pages 17-18 of Attachment No 1 the OMLC comments on precedent and cumulative impact:

Precedent and Cumulative Impact

The matters of whether permission for development may create a precedent or cumulative impact on the flood storage capacity within the floodplain are perhaps the most predominant issues in applications, aside from the site-specific evidence. This approach is part of a balancing act undertaken by CA's and endorsed to date by the Commissioner. It is recognized that the absolute storage capacity may not be known. The CA's policies do allow for certain types of construction and renovations, such as additions of moderate size to existing buildings [my emphasis]. Each new encroachment affects the available storage.

The balance is achieved through generally not allowing new development within extremely flood prone lands. This runs up against proposed infill development, where there are few or only one vacant lot available in the immediate area. The problem is that the design of the safety net does not include loss of all the vacant lots within a watershed, and it is the impact of building on all of those lots which is of concern.

Before examining two of the OMLCs Decisions, the author of this request would like to briefly highlight a response that he received from a recent posting on the Environmental Bill of Rights Registry (PB06E6012). The posting, that is included as Attachment No. 3 notes the following:

Comment 4: There is disparity in the apparent capabilities of Conservation Authorities to apply sound floodplain management which they are tasked with under Section 28 of the Conservation Authority Act.

Response 4: Engineering support would continue to be offered by MNR to conservation authorities that do not have sufficient technical expertise, upon their request. Some conservation authorities already have working arrangements for pooling or sharing their technical resources with those of surrounding CAs who possess the required capabilities. The Regional Engineer of the MNR will continue to be involved in decision making regarding potential application of two-zone floodplain management.

Two Decisions of the OMLC are examined below. A number of excerpts from the Decisions are first presented, then a summary of the key findings in these decisions, in the view of the author of this request for an audit of the MVCA, are subsequently presented. The findings of the OMLC in these Decisions form the basis on which Decisions of the MVCA on the case studies in Section 4) are examined.

The following excerpts from the Decision included as Attachment No. 4 describe the nature of the proposed development within the regulated floodplain. Key points in the text have been underlined [my emphasis]:From Page 5 of the Decision:

From Page 6 of the Decision:

ii) It is the intent of the application to construct the buildings above the regional flood elevation of 324.78 metres. Fill would be added to bring the building envelopes and septic beds to the regional flood elevations. The dimensions of the fill would be 60 metres in length and having a height of approximately two metres. The width of each building envelope is approximately 20 metres. Under cross-examination, Mr. Haley [planner for Chalmers] was asked to calculate the volume of fill, which was estimated at between 1800 and 2400 cubic metres. This translates to a range of between 257 and 342 truckloads, based upon a capacity of 7 cubic metres. Mr. Haley felt that the amount of fill was reasonable and maintained that the number of truckloads was not relevant. What is relevant is the upstream and downstream impacts, which based upon modelling done by Totten Simms Hubicki, was, in his opinion minimal.

From Page 7 of the Decision:

From Page 10 of the Decision:

iv) The building sites themselves, before the placement of fill, would be severely flood prone, subject to 1.8 metres of flooding in a regional storm event. If the placement of fill and building were allowed, this would have the effect of reducing available flood storage capacity in the flood plain.

From Page 15 of the Decision:

v) Mr. Rungus [GRCA water resources engineer] gave evidence on the effects of the proposal, which is also contained in his witness statement at page five. He pointed out that the impacts modelled by Totten Simms Hubicki on behalf of the appellant were similar to the results of the HEC-2 analysis performed by the GRCA. His conclusions are that the placing of fill would result in upstream increases in flood level elevations of 1.9 inches at cross-section 145. The local velocities would also increase from the proposed placing of fill by a factor of nine percent in the channel and south overbank areas, across from the Chalmers site. Local velocities at the site would increase by a factor of 12 percent to velocities of 4.93 feet per second.

From Page 18-19 of the Decision:

vi) Ms. Minshell [GRCA water resources manager] stated that the application is contrary to the established watershed management principles of both the GRCA and the Province. All planning boards must have regard to the implications of any actions concerning the aggravation of existing flood plain management problems. It is their duty to consider [my emphasis].

All of the flood plain of the Grand River watershed is a one zone area, unless it has been otherwise designated. As such, new development is prohibited, and this is further defined in the Implementation Guidelines at page 19 (Ex. 4, Tab 18):

Under the one zone concept new development is generally prohibited. However, certain buildings and structures must locate in the flood plains by the nature of their use. Buildings and structures which can be located outside the flood plain are not permitted

Ms. Minshell echoed Ms. Caston's evidence that the Chalmers' land does not qualify for a two zone approach, stating that she felt it was necessary to include this analysis, as evidence led on behalf of Mr. Chalmers suggested that these lands were in the flood fringe. In her opinion, they are not. As a general approach, this concept will be considered where there is existing development, where previous agreements have existed prior to the establishment of the Policy and where the municipality feels that the viability of the community may be affected. In this case, there has been no such discussion with the municipality that the one zone approach is too onerous.

Under the best case scenario, even if this stretch of the Grand were two zone, the Chalmers lands would not be within the flood fringe according to the Two-Zone Policy Areas General Approach (Ex. 4, Tab 11) which has as criteria that the site cannot have flooded more than one time since 1948, incur more than 1.2 metres of flooding, development would cause increases in flood line elevations upstream and downstream, and pedestrian and emergency access of .8 meters of flooding cannot be experienced.

Mr. Lorant [consultant to GRCA] gave evidence that the historical perspective brought to the issue of flooding is that of the watershed basis. In the early days of conservation authorities, namely the 1940's and 1950's, the focus was on protection. This was soon recognized as a band aid approach, and the Province recognized that the entire watershed would have to be considered in terms of land use, protection and prevention. Protective measures would occur where a vulnerable community is protected by a dyke. Recent flood disasters in the U.S. and Quebec illustrate the impact of the absence of development control in the floodplain. The focus in Ontario, which has helped prevent repetition of this mistake, is on prevention. The preventative aspect was incorporated into the Policy Statement as a means of exercising land use control in that a determination could be made as to where development should not be permitted and to define flood prone areas. This was the genesis of the flood plain mapping program.

viii) it is within the objectives of the GRCA to prevent new homes from being built in the flood plain.

From Page 25 of the Decision:

9. Ms. Minshell stated that she believes there may be hundreds of situations within the greater watershed significantly similar to the Chalmers application which, if allowed, would severely impact on the ability of the GRCA to manage.

From Page 25 of the Decision:

10. Ms. Caston stated that she was concerned that approval of this application would create substantial pressure to approve similar applications within the watershed, for which there are considerable opportunities. The issue of applying the GRCA mandate fairly, on a case by case basis, does not mean granting a significant exception to one landowner. This type of exception would result in others feeling that they have been treated unfairly, should similar approval not be granted.

From Page 26 of the Decision:

11. Ms. Minshell stated that the resulting encroachment from successive permissions would be cumulative. This would, in turn, pose a serious threat that the Provincial and GRCA Policies would not be able to stand up. Once there is a substantial exception to a policy, it would result in exceptions that were so numerous that it would not be a policy anymore.

From Page 26 of the Decision:

12. Other applications having similar characteristics, would have to be approved, as there would be no justifiable reason to disallow them. This would result in major loss of control over the watershed by the GRCA.

From Page 27 of the Decision:

13. One application will not cause measurable effects. However, over a series of approved applications of similar impacts, cumulatively impacts will be noticeable both up and downstream. This progressive encroachment will increase flooding. The Chalmers' proposal would remove available storage for any storm greater than a five year return period. Cumulatively, such proposals would harm communities downstream.

From Page 35 of the Decision:

14. The application itself involves a substantial intrusion into the flood plain. At least 370 truck loads of fill would be required, representing 82 metres or a one third distance across the width of the flood plain. This is significant.

From Page 36 of the Decision:

15. xv) There is no evidence to suggest that the proposal is consistent with good watershed management principles. There is no evidence to indicate why an exception should be made, especially as there are significant hydrological and hydraulic issued to be addressed. The nub of this case is for the appellant to show why an exception should be made, providing good, cogent reasons. There is no evidence to rebut the GRCA's position, including that of Mr. Lorant, the province's most pre-eminent water management specialist, of cumulative impact, loss of storage capacity, minimal evidence on access and cost of evacuation.

From Page 36 of the Decision:

16. The GRCA position is that the proposed construction under cumulative impact is contrary to well established flood plain management policies and principles, and in this case, there was a real danger of cumulative impact occurring. There is a major intrusion, involving loss of storage capacity. It would also constitute a blow against the ability of the GRCA to manage the watershed in a coherent manner, using sound principles. Others, with similar proposals, of which there is considerable opportunity, would want similar treatment.

From Page 36 of the Decision:

17. Sound watershed management principles, as embodied in the Provincial Policy and adopted by the GRCA, are based upon prevention, which is a cost-effective means of ensuring that new buildings and structures are not susceptible and that upstream and downstream problems do not occur as a direct result of such new development. Effective flood plain management can occur only on a watershed basis. Therefore, when considering issues from the individual property owner's perspective, the tribunal has a duty to the public and to who is living on the watershed, to look after their interest, in effect examining the issues from a macro rather than a micro perspective. The watershed perspective requires that consideration must be had to upstream and downstream impacts, as well as the cumulative impacts of development.

From Page 37 of the Decision:

18. Mr. Lorant also expressed concern regarding the ability of the GRCA to manage the watershed, suggesting that the effect of leaving open the door to similar development would be devastating. It would strike at the very core, the GRCA's ability to protect the public through prevention of destructive flooding, which can cause risk to life and property.

19. The issue to be determined is whether the watershed can support the proposed development with respect to control of flooding, pollution and the conservation of land. As has been stated elsewhere, the fact that a municipality may deem lands suitable for development does not serve to supersede the jurisdiction of a conservation authority to ensure that the watershed can withstand the proposed development.

From Page 54 of the Decision:

20. xx) The tribunal finds that granting permission in this case would constitute a precedent for new residential development of other portions of the flood plain in one zone concept areas, involving considerable placing of fill which has measured impacts upstream. It is found that those residing, visiting or providing services to the new residences would unnecessarily be placed at risk. Moreover, it would provide precedent for granting of permission in other cases without the necessary calculations being performed on a reach or subcatchment basis, thereby putting unknown others at risk from increases in flood elevations upstream or increases in flood velocities downstream. If allowed, the Chalmers proposal would amount to a rewriting of the Provincial Policy in respect of new development in the floodplain for areas within a one zone concept area, being a precedent of such an order of magnitude that it cannot be allowed. The tribunal finds that it will adopt the words of Mr. Lorant, whose expert evidence matters of watershed management bears considerable weight, in finding that the proposed filling and construction poses a dangerous precedent, both in terms of the Chalmers land itself and on the ability of this and other conservation authorities to manage watersheds within their jurisdictions.

Case II - 611428 Ontario Limited vs. Metropolitan Toronto and Region Conservation Authority

Due to the size of the file, the OMLC Decision has not been included amongst the Attachments. The reader can download the decision from the following webpage under the Toronto and Region Conservation Authority Decisions list:
http://www.omlc.mnr.gov.on.ca/conservation.cfm

From Page 2 of the Decision:

From Page 3 of the Decision:

The subject lands are located between the flood line and the fill line delineated on Map M.T.R.3-30 (Ex. 9), pursuant to Schedule 3 of O.Reg. 293/86. The subject lands were referred to alternatively as a valley feature, a minor tributary valley, a first order stream valley and misfit stream throughout the hearing.

Immediately to the west of the subject lands is the proposed extension of Highway 427.  Should this extension proceed, the means of access to the subject lands will become problematic.  Immediately south, and containing a watercourse, is what was referred to as the Roybridge Lands, in respect of which the MTRCA has received an application to place fill (Ex. 15A, B and C).  It was suggested by the MTRCA that the only means of access to the subject lands would be from the Roybridge Lands, possible only if the watercourse on the latter were filled.

From Page 3 of the Decision:

Issues:

1. Is the appeal hearing before the tribunal a new hearing or is it a true appeal?  Ancillary to this issue is whether the decision of the MTRCA can be overturned only where there is an error of fact or an error of law as opposed to whether the tribunal can substitute its own decision for that of the MTRCA.
2. Does the placing of fill proposed by the appeal affect the conservation of land?  Ancillary to this issue is the scope of the meaning of "conservation of land", including what factors may properly be  taken into account.
3. Will the permission to place the fill proposed in the appeal cumulatively effect the watercourse in question?
4. Can the conditions proposed by the appellant be attached to permission to place fill, or is there no authority given either to the MTRCA or the tribunal for the conditional granting of permission?

From Page 6 of the Decision:

Testimony by Dr. Bruce Alan Brown, a Professional Engineer, on behalf of the Appellant:

The refusal to give permission for filling of the subject lands would result in sterization of a larger portion of lands designated as industrial. To compensate for the loss of lands so designated would result in urban sprawl in this area which functions as the headwater of the Humber River.  It is Dr. Brown's evidence that greater portions of land would have to be urbanized to compensate for this loss, which would have a much  larger effect on the cumulative impact on the watershed than expected by the MTRCA in its reasons for refusal.

Dr. Brown stated that the temporary and  permanent measures advocated by the appellant, including the storm water detention and retention pond, could alleviate any concerns of the MTRCA.  He suggested that any contamination anticipated through the procedure of placing of fill would be no greater than that experienced through the plowing of the field.  The proposed measure would not simply mitigate, but would control impact on the watercourse below, through the control of the base flow of water, sediment control from perforated piping, snow and silt fences, straw bales, geotechnical filters, a detention pond to precipitate out clay.  The newly created slopes would not be left unvegetated.  The appellant proposed to vegetate the area by hydroseeding and placing within trees and shrubs in the newly created slope to ensure stability.   This would create a more enclosed main stream valley, which would enhance all t he functions which the valley currently provides.

From Page 8 of the Decision:

The 1977 photograph of the subject lands (Ex. 14A) shows some channel delineation from the top of the feature.  Dr. Brown suggested that the hairlines seen on the photograph do not connote drainage, as the land could drain elsewhere.  There may be some recharge or subsurface function.  However, just because some water passes through the grade does not mean that it all does.  The proposed appeal shows a water detention pond which replicates the detention and recharge function of the land in its natural state.

From Page 12 of the Decision:

Testimony by Dr. Paul Eagles, a Planner, on behalf of the MTRCA:

From Page 12-13 of the Decision:

Donald Raymond Haley, P. Eng., is the Project Engineer, Water Resources Division of the MTRCA.  Through the use of the drainage area for the subject lands provided by Richard Lloyd and the MTRCA's "Regional Headwater Hydrology Study", MacLaren Plansearch, 1991, a regional flow estimate was developed.  Through the use of the HEC2 backwater model and the MTRCA Floodplain Mapping M.T.R.3-30 (Ex. 9), 10 cross-sections were developed.  The resulting calculations were used to plot the floodline in the subject lands watershed.  The floodplain shows a width of between 10 and 26 metres and a depth ranging from .24 to .33 metres.  Estimates of the drainage area were 10 hectares of land external to the subject lands and 4 hectares within the subject lands flowing into the bottom of the minor river tributary.

From Page 13 of the Decision:

Renee Phyllis Jarrett is the Manager, Plan Review Section, Water Resource Division of the MTRCA.  Ms. Jarrett referred in her evidence to the December 1980 Watershed Plan for the MTRCA (Ex. 10), the 1986 Watershed Plan (Ex. 11), the January 1989 Greenspace Plan for the Greater Toronto Region and the July 1989 Greenspace Strategy for the Greater Toronto Region - "A Conservation Vision for the 21st Century" (Ex. 12) and the April 1992 Draft "Valley and Stream Corridor Management Program" (Ex. 13) in her evidence.  Her Witness Statement (Ex. 40) sets out that the MTRCA receives many applications pursuant to O.Reg. 293/86 to alter or eliminate well defined valley systems to create tableland for development which must be considered in light of  the cumulative effects of the proposals, so that the MTRCA must determine the extent and type of alterations and losses which are acceptable in light of its Program objectives.

According to Ms. Jarrett, another application has been received by the MTRCA to place fill in a similar valley in lands immediately to the south of the subject lands.  It is this type of situation which the MTRCA must consider, and if left unmanaged, will result in continued loss and deterioration of the greenspace system.  In her opinion, the current appeal is contrary to the policies and objectives of the respondent. 

From Page 16 of the Decision:

From Page 16 of the Decision:

In conclusion, Ms. Jarrett discussed the staff recommendation to the Board, which was reiterated before the tribunal, that the granting of permission to fill the subject lands would not be a wise use of  the lands, which perform valuable valley corridor functions.  Referring to the fundamental relationship between the land form and ecological function, Ms. Jarrett stated that the subject lands perform a function in controlling the base flow of West Rainbow Creek, provides nutrient and sediment transport, impacts on water quality and contributes to the fish and wildlife habitat of  the system as a whole.  Any intrusion into the subject lands will decrease the capacity of the whole system to perform these functions and result in degradation of the water downstream.

From Page 41-42 of the Decision:

Mr. Johnathon Wigley was Counsel for MTRCA.

Mr. Wigley submitted that natural resources such as valley features are limited, and should not be regarded through one single snap shot in time.  The very type of maturing of this resource which the MTRCA is encouraging is also promoted along the main channel of the creek, which has gone unquestioned, so that its value must be recognized.  The attention of the tribunal was drawn to the vegetative diversity which can be found within the feature, and not just between features.  There are a multitude of micro climates found.

Permission to place fill would cause a loss of open space and deprive the area of one form of landscape diversity.  While the flood storage in a regional storm is not as great as within the main channel, it does perform a function of retarding flows and this storage function will be particularly desirable in times of ice jams.  The opportunity for nutrient creation and transfer should not be overlooked.  Also provided is temperature stability, through ground water.  There is no doubt that the groundwater is close to the surface at the mouth of the valley, so that the function is not simply one of recharge, as put forth by Dr. Brown.  Should the placement of fill be allowed, according to the evidence of Dr Newbury, the result would be a narrower, deeper channel at the mouth of the feature.

In considering the application, Mr. Wigley submitted that there are no benefits for conservation of land purposes by the proposed fill.  Rather, it is simply an opportunity for the developer to obtain a maximum number of building lots on the subject lands.  Not withstanding that the functions performed by the feature are small compared to the main channel they merit being retained for purposes of conservation of land.

From Page 42 of the Decision:

Cumulative Effect:

The impact of granting a permission to fill this valley feature will have implication for at least 9 watercourses in this watershed, not the least of which is the Roybridge valley to the south.  It must be recognized that if everyone who applied were to be given permission to place fill, there will be no storage capacity left in the watershed, except through the use of the cut and fill method.  While this feature represents an infinitesimally small portion of the flood storage capacity, the cumulative effect of filling of many or all such opportunities is a legitimate concern.

By the same reasoning, Mr. Wigley submitted that river valleys themselves must be regarded as finite resources, which will be cumulatively impacted by permission being granted, as evidenced in the Roybridge Lands.

From Page 69 of her Decision, OMLC Kamerman states:

Much evidence and argument was heard concerning the significance of the landform feature and the vegatation found.  The concept of significance can be misleading insofar as those portions of an eosystem which may not be unique in that they occur in a multitude of locations, may perform an integral, necessary and valuable function within the system overall.  The tribunal is not  persuaded that signficance, taken to mean rare or unique, should be determinative.

Taken to its extreme, preservation of only those features which can be characterized as significant could result in the fragmentation of complex portions of the ecosystem, eliminating the linkages necessary to the watershed as a whole.  While clearly the appellant has in no way advocated such extreme fragmentation by inviting the tribunal to recognize that its proposal would in no way harm the main channel of the West Rainbow Creek, the tribunal finds that it cannot agree with this approach.

The evidence has shown that first order streams, or headwater reaches of the watershed, play an integral role in the health of the downstream watercourse.  This role cannot be measured  by the number of disparate or endangered species, the volume of flowing water found throughout the year.  It is the often minuscule evidence of water seepage, of intermitent flow or any growth found in wet areas which will indicate the presence of a first order stream.  That the very presence of these attributes exists points to a different meaning of significance for headwater areas of a watershed.

On Page 70, the OMLC continues

No model was presented at the hearing to indicate a threshold for intrusion into the watershed beyond which development should not be allowed.  In the absence of such a model, the tribunal finds that it is appropriate to apply a precautionary principle to development involving first order and intermittent streams within the headwaters of a water course, so that, in the absence of calculations of a threshold or demonstration of no net impact, development within such land should not proceed.  This precautionary priniciple is applied in recogntion of the integral role of water in environmental and human health.

For purposes of clarity, it must be stated that the jurisdiction of any conservation authority arises by virtue of a legislative mandate which is directly concerned with a specific watershed.  Dr. Brown questioned the juisdiction of the MTRCA over the subject lands suggesting that, if taken to the extreme, would support it exercising jurisdiction over any swale or undulation in the landscape.  The tribunal is satisfied that the subject lands are properly within the juridiction of the MTRCA, and these findings should in no way be construed as giving any conservation authority a mandate to regulate green space.  These finding are limited to lands which are scheduled pursuant to regulations made under the Conservation Authorities Act and are only applicable in connection with proposed development within a watershed.

From Page 72 of the Decision:

The impact of potential flooding was only touched on in the hearing.  However, the fact that flooding concerns are minimal in headland areas, and more particularly on the subject lands, is not sufficient to alleviate concerns for the system with respect to flooding.  The respondent submitted that sedimentation has the potential to alter the terrain sufficiently downstream to expose areas to flooding which currently are not considered in risk assessment calculations.  The tribunal finds that these concerns are warranted.  The appellant's evidence concerning sedimentation was not persuasive and the tribunal finds that the long term effects of the sediment entering the main channel of the West Rainbow Creek is of sufficient concern that is has not been irrevocably proved that the downstream will not be significantly altered, thereby exposing lands not currently floodprone to flooding.

From Page 74 of the Decision:

The introduction of municipal planning documents into conservation authority hearings and appeals are of no significance in the issues to be determined. The suggestion that the designation, once made by a municipality, is not subject to further determination by a conservation authority based upon its jurisdiction, is contrary to the intent of the legislation and is found to be repugnant by the tribunal.

Conclusions:

The appeal of 611428 Ontario Limited is dismissed due to the impact of the proposed placing of fill on the conservation of land.

Floodplain Management Principles Interpreted from the OMLCs Speech, the EBR Posting, and the GRCA and MTRCA Cases

The OMLCs Speech and EBR posting identified specific principles and procedures that apply to floodplain management in Ontario. The two OMLC cases cited above identify several important principles that are worth consideration in the examination of Decisions of the MVCA (discussed in Part 4 of this submission) in its application of floodplain policy.

OMLC Speech:

1. For purposes of an application under section 28, Official Plan designations or zoning are not relevant. Just to be clear, lands having a certain designation for municipal planning purposes such as residential, industrial or commercial, does not mean that permission under section 28 must follow as a foregone conclusion.
2. Not wishing to disparage land use planners, it must be stressed that municipal land use planning is of little or no use in answering the very real and difficult technical questions which section 28 applications give rise to.
3. The decision further stands for the proposition that a precautionary principle would be applied to development involving first order and intermittent streams located within the headwaters of a watercourse, with a threshold of no net impact. This was upheld on appeal by the Divisional Court
4. To have a two-zone approach applicable, it is necessary for the municipality to go through the necessary planning process in consultation with the Ministries of Municipal Affairs and Housing, Natural Resources and the local Conservation Authority.
5. There is no power in conservation authorities to weigh or consider the relative merits of economic and social implications with those of susceptibility to flooding, risk to loss of property or life, pollution of the surface waters or soils, and general ecosystem concerns within the watershed. The conservation authorities are specifically charged with determining the merits of a proposed encroachment based on risk not only to the applicant, but to affected persons both upstream and downstream of the proposal. In other words, in considering the right of a property owner to use his or her land, a conservation authority will weigh the individual's rights against the public interest, in so far as it concerns flooding, pollution or conservation of land

BR Posting

6. Engineering support continues to be offered by MNR to conservation authorities upon their request.
7. The Regional Engineer of the MNR will continue to be involved in decision making regarding potential application of two-zone floodplain management

8. All planning boards must have regard to the implications of any actions concerning the aggravation of existing flood plain management problems.  It is their duty to consider.
9. nder the one zone concept new development is generally prohibited. However, certain buildings and structures must locate in the flood plains by the nature of their use. Buildings and structures which can be located outside the flood plain are not permitted.
10. As a general approach, Two-Zone floodplain policy will be considered where there is existing development, where previous agreements have existed prior to the establishment of the Policy and where the municipality feels that the viability of the community may be affected.
11. Under the best case scenario, even if this stretch of the Grand were two zone, the Chalmers lands would not be within the flood fringe according to the Two-Zone Policy Areas General Approach (Ex. 4, Tab 11) which has as criteria that the site cannot have flooded more than one time since 1948, incur more than 1.2 metres of flooding, development would cause increases in flood line elevations upstream and downstream, and pedestrian and emergency access of .8 meters of flooding cannot be experienced.
12. In the early days of conservation authorities, namely the 1940's and 1950's, the focus was on protection. This was soon recognized as a band aid approach, and the Province recognized that the entire watershed would have to be considered in terms of land use, protection and prevention. Protective measures would occur where a vulnerable community is protected by a dyke.
13. The focus in Ontario, which has helped prevent repetition of this mistake, is on prevention. The preventative aspect was incorporated into the Policy Statement as a means of exercising land use control in that a determination could be made as to where development should not be permitted and to define flood prone areas. This was the genesis of the flood plain mapping program.
14. It is within the objectives of Conservation Authorities to prevent new homes from being built in the flood plain.
15. The pproval of this application would create substantial pressure to approve similar applications within the watershed, for which there are considerable opportunities. The issue of applying the GRCA mandate fairly, on a case by case basis, does not mean granting a significant exception to one landowner. This type of exception would result in others feeling that they have been treated unfairly, should similar approval not be granted.
16. The resulting encroachment from successive permissions would be cumulative. This would, in turn, pose a serious threat that the Provincial and GRCA Policies would not be able to stand up. Once there is a substantial exception to a policy, it would result in exceptions that were so numerous that it would not be a policy anymore.
17. Other applications having similar characteristics, would have to be approved, as there would be no justifiable reason to disallow them. This would result in major loss of control over the watershed by the Conservation Authority
18. One application mayl not cause measurable effects. However, over a series of approved applications of similar impacts, cumulatively impacts will be noticeable both up and downstream. This progressive encroachment will increase flooding.
19. There is no evidence to suggest that the proposal is consistent with good watershed management principles. There is no evidence to indicate why an exception should be made, especially as there are significant hydrological and hydraulic issued to be addressed. The nub of this case is for the appellant to show why an exception should be made, providing good, cogent reasons. There is no evidence to rebut the GRCA's position, including that of Mr. Lorant, the province's most pre-eminent water management specialist, of cumulative impact, loss of storage capacity, minimal evidence on access and cost of evacuation.
20. Sound watershed management principles, as embodied in the Provincial Policy and adopted by the GRCA, are based upon prevention, which is a cost-effective means of ensuring that new buildings and structures are not susceptible and that upstream and downstream problems do not occur as a direct result of such new development. Effective flood plain management can occur only on a watershed basis. Therefore, when considering issues from the individual property owner's perspective, the tribunal has a duty to the public and to who is living on the watershed, to look after their interest, in effect examining the issues from a macro rather than a micro perspective. The watershed perspective requires that consideration must be had to upstream and downstream impacts, as well as the cumulative impacts of development.
21. The effect of leaving open the door to similar development would be devastating. It would strike at the very core, the Conservation Authoritys ability to protect the public through prevention of destructive flooding, which can cause risk to life and property.
22. The issue to be determined is whether the watershed can support the proposed development with respect to control of flooding, pollution and the conservation of land. As has been stated elsewhere, the fact that a municipality may deem lands suitable for development does not serve to supersede the jurisdiction of a conservation authority to ensure that the watershed can withstand the proposed development.
23. The tribunal finds that granting permission in this case would constitute a precedent for new residential development of other portions of the flood plain in one zone concept areas, involving considerable placing of fill which has measured impacts upstream. It is found that those residing, visiting or providing services to the new residences would unnecessarily be placed at risk. Moreover, it would provide precedent for granting of permission in other cases without the necessary calculations being performed on a reach or subcatchment basis, thereby putting unknown others at risk from increases in flood elevations upstream or increases in flood velocities downstream. If allowed, the Chalmers proposal would amount to a rewriting of the Provincial Policy in respect of new development in the floodplain for areas within a one zone concept area, being a precedent of such an order of magnitude that it cannot be allowed. The tribunal finds that it will adopt the words of Mr. Lorant, whose expert evidence matters of watershed management bears considerable weight, in finding that the proposed filling and construction poses a dangerous precedent, both in terms of the Chalmers land itself and on the ability of this and other conservation authorities to manage watersheds within their jurisdictions.
24. Note: This proposal involved the proposed filling and development of portions of 2.4 Ha and the creation of 2 lots. Total fill amounted to an estimate of 1800-2400 m³.

611428 Ontario Limited vs. TRCA

25. Any part of a river valley will contribute to the control and storage of flood waters. Filling valleys cannot be said to have no effect on the control of flooding.
26. There is a cumulative impact of allowing minor valleys to be filled on the health of the entire watercourse.
27. The TRCA received another application to place fill in a similar valley in lands in the immediate vicinity of the Application under Appeal. It is this type of situation where the TRCA must consider, and if left unmanaged, will result in continued loss and deterioration of the Greenspace system.
28. Headland and valley feature lands may not seem important when taken individually. However, when viewed as the limbs of a tree, each valley which is developed is the equivalent of chopping a limb of the tree.
29. Valley systems perform a function of controlling baseflow. Provide nutrient and sediment transport, impacts on water quality and contributes to the fish and wildlife habitat of the system as a whole. Any intrusion into the subject lands will decrease the capacity of the whole system to perform these functions and result in degradation of the water downstream.
30. Natural resources such as valley features are limited, and should not be regarded through one snap shot in time.
31. Permission to place fill would cause a loss of open space and deprive the area of one form of landscape diversity. While the flood storage in a regional storm is not as great as within the main channel, it does perform a function of retarding flows.
32. There are no benefits for the conservation of land purposes by the proposed fill. Rather, it is simply an opportunity for the developer to obtain a maximum number of building lots on the subject lands. Notwithstanding that the functions performed by the feature are small compared to the main channel, they merit being retained, for the purposes of conservation of land.
33. It must be recognized that if everyone who applied were to be given permission to place fill, there will be no storage capacity left in the watershed, except through the use of the cut and fill method. While this feature represents an infinitesimally small portion of the flood storage capacity, the cumulative effect of filling many or all such opportunities is a legitimate concern.
34. Preservation of only those features which can be characterized as significant could result in the fragmentation of complex portions of the ecosystem, eliminating the linkages necessary to the watershed as a whole.
35. The evidence has shown that first order streams, or headwater reaches of the watershed, play an integral role in the health of the downstream watercourse. This role cannot be measured by the number of disparate or endangered species, the volume of flowing water found throughout the year. It is the often miniscule evidence of water seepage, of intermittent flow or any growth found in wet areas which will indicate the presence of a first order stream.
36. No model was presented at the hearing to indicate a threshold for intrusion into the watershed beyond which development should not be allowed. In the absence of such a model, the tribunal finds that it is appropriate to apply a precautionary principle to development involving first order and intermittent streams within the headwaters of a watercourse. So that, in the absence of calculation if a threshold or demonstration of no net impact, development within such land should not proceed. This precautionary principle is applied in recognition of the integral role water in environmental and human health.
37. The tribunal is satisfied that the subject lands are properly within the jurisdiction of the Conservation Authority, and these findings should in no way be construed as giving any conservation authority a mandate to regulate green space. These findings are limited to lands which are scheduled pursuant to regulations made under the Conservation Authorities Act.

4) A review of Decisions and Comments of MVCA

The following Decisions of the MVCA are examined with respect to the control of flooding, pollution, or conservation of land:

Case I - Carp River - Glen Cairn Community / Kanata

The MVCA conducted a floodplain mapping study of the Carp River in 1983. This study was undertaken by the then Willowdale, Ontario office of Cumming Cockburn Limited, where the author of this request worked for seven years as a water resources engineer.

In 1983 much, but not all of the community of Glen Cairn had been developed. There was still development yet to occur within the Glen Cairn Community upstream of the Castlefrank Drive and Rickeys Place culverts. Furthermore, the planning of the future Bridlewood Community that is also upstream of these culverts (east of Hazeldean Road) was just beginning (see Attachment No.5).

Planning of the Glen Cairn community occurred in the late 1960s. In the early 1970s the Carp River was diverted, channelized, and enclosed in places. Former floodplain lands were filled and developed.

While completing the floodplain mapping of the Carp River, the consultant identified capacity limitations in the channelization of the Carp River through Glen Cairn. These observations were recorded in the report, and specific recommendations were made to the MVCA regarding the deficiencies in the capacity of the Carp River through the built-up area of Glen Cairn.

Following are a few excerpts from the report:

c) Carp River at Glencairn

On the Carp River in Glencairn a spill area was found at the Castlefrank Road crossing.  At this site the capacity of the culvert is exceeded under the major storm events and spill would occur in a southerly direction.  At this site the road slopes in a southerly direction. Therefore, spill occurs prior to the level of the water reaching the top of the roadway at the culvert.  The estimated spill as interpreted from the HEC 2 printouts is in the order of 10 cms., for the 1:100 year storm event.  Based on the available topographic information, it appears that the spill would re-enter the main channel in the vicinity of the Carp detention basin.  However, additional mapping is required in order to identify the flow path and severity of the flooding associated with the spill flow.

A second spill area was also found in Glen Cairn upstream of  Rickey Place.  As shown on Drawing CG2, spill would be in a southerly direction.  Additional mapping is required in order to define the direction and limits of the flooding.  The estimated spill is 5.0 cms based on the use of Manning's equation (n = .04, s = .001, L = 55 m, 0.22 depth).  It should be noted that containment of the flow to the main channel could be achieved by increasing the height of the southerly channel bank by a maximum depth of 0.6 m.

Both the hydrologic and hydraulic systems that function within the study watersheds were examined using the most up-to-date computational methods to determine the criteria on which the Mississippi Valley Conservation Authority will regulate development within the subject basins.

Based on the results of these analyses, the following is recommended:

3. Results of the hydraulic analysis indicate that a spill area exists on Watts Creek immediately upstream of the Old Highway 17, and on the Carp River at the Castlefrank Road Crossing and upstream of Rickey Place.  It is recommended that a more detailed analysis be conducted at these sites to better define the flood condition at each.

4. Results of the hydraulic analysis indicate that a number of areas exist along the study systems (refer to Section 4.5) where a flood hazard exists.  It is recommended that a detailed analysis of alternative flood mitigative schemes be completed at these sites.

Comments:

The Carp River flooded the Glen Cairn Community in 1996 and in 2002 as a result of water backing-up at the Castlefrank Road and Rickeys Place culverts the very locations that were identified in the 1983 floodplain mapping report as having deficient capacity. In the years between 1983 and 1996, the year of the first flood, the Glen Cairn Community upstream of the deficient culverts was built-out, and much of the Bridlewood Community had been built-out.

Besides its specific responsibilities under the Conservation Authorities Act, the MVCA is also a commenting agency on development applications in areas under its jurisdiction. Attachment 6 shows the headwater area of the Carp River and the communities of Glen Cairn and Bridlewood. Within this area headwater tributaries and the main channel of the Carp River have been altered.

Questions:

• When the headwater tributaries and main channel of the river were altered, what impact did this have on floodplain storage? Was the precautionary principle applied to the development of the first order and intermittent streams located within the headwaters of the Carp River, with a threshold of no net impact?
• After receiving the warnings about the capacity limitations of the Castlefrank Road and Rickeys Place crossings in 1983, did the MVCA introduce specific stormwater management criteria for development upstream of these crossings in the Glen Cairn and Bridlewood communities?
• Did the MVCA conduct detailed analysis of alternative flood mitigative schemes at the flood hazard locations identified in the study?
• Did the MVCA arrange for the embankment at Rickeys Place to be increased in height by 0.6m to contain the 100-year flow?
• What action did the MVCA initiate between 1983 and 1996 - before the first flooding incident occurred, as a result of the 1983 Study?
• What action did the MVCA initiate between 1996 and 2002 - before the second flooding incident occurred?

Case II - Kizell Drain North Kanata

The MVCA participated in the Shirleys Brook and Watts Creek Subwatershed Plan in the late 1990s. Characteristics of this $350,000 Study are presented in Attachment No. 7. The text of the Subwatershed Study is provided in Attachment No 8.

The study included documentation of existing conditions, including those areas where the MVCA had already Registered floodplain mapping. The study also provided a number of recommendations including the identification of proposed channel restoration locations, and meander belt widths. Figures from the Subwatershed Plan showing these areas are included in Attachment No. 9. The former Region of Ottawa Carleton approved the Subwatershed Plan on April 12, 2000 (see Attachment No. 10).

The Kizell Drain is a tributary of Watts Creek, and was included in the Subwatershed Plans investigation and recommendations. On September 9, 2004 the Kizell Drain experienced flooding that caused the March Pumping Station to become flooded, which eventually caused sewage to back-up into dozens of new homes and into a recently constructed Nursing Home (see news report in Attachment No. 11).

Besides the heavy rainfall that contributed to the flooding of the Pumping Station, a culvert under a construction access road was found to be backing up water to a level that flooded the Pumping Station. A close inspection of the Figures in Attachment No. 9 creates a number of questions.

A report dated May 6, 2002 was Approved by the City of Ottawas Planning and Development Committee involving the Marshes Village Residential Development (see Attachment No. 12). It would appear that the construction access road that contributed to the flooding on September 9, 2004 was in fact constructed to access this development, that by all appearances is situated in the area of Regulated Floodplain according to information shown on Figure 3.9b of the Subwatershed Study (Attachment No. 9), and in Schedule 11 of Ontario Regulation 159 under the Conservation Authorities Act, in effect at the time (see Attachment No. 13).

Attachment No. 14 is an aerial photograph of the subject area that has been marked-up showing recent development in the Kizell Drain area. In the aerial photograph it is evident that the Kizell Drain has been channelized along a reach where no such recommendation was made in Figure 7.1b of the Subwatershed Plan. The channelization that did occur is along a narrow 15-30m (max) corridor width while Figure 7.2b of the Subwatershed Plan identified a meander belt width of 55-70m being required. The Marshes Village Residential Development has been developed within the Regulated Floodplain area shown in Figure 3.9b.

The channelization and floodplain development that has occurred along the Kizell Drain required Approval by the MVCA. By all appearances the development that has met with Approval of the MVCA is not only contrary to Provincial Policy, it is contrary to the very recommendations of the $350,000 Subwatershed Plan that had just been approved. A number of excerpts from the Subwatershed Plan (Attachment No. 8) specific to floodplain management have been provided below. In places, the text has been made bold to draw the readers attention to specific statements within the Subwatershed Plan and to ponder how there could be any explanation for what ultimately ended up being constructed with the apparent Approval of the MVCA. The excerpts also include warnings that were made in the Subwatershed Study about the risks involved in altering drainage systems in the area:

From Page 7-41 to 7-46 of the Subwatershed Plan:

7.3 Management Strategy #2 - Flood Management

The formulation of a strategy to manage areas susceptible to hazards is premised on recognition that areas within the Shirleys Brook and Watts Creek Subwatershed are inherently susceptible to increased risk arising from hazards associated with flooding, and that this risk may present an unacceptable threat to human life or property. This requires that areas susceptible to flooding be identified and that new development or non-compatible land uses be required to locate in areas outside of hazardous lands. In some instances, development and site alteration may be permitted in certain areas of hazardous lands if the hazards can be safety addressed, no new hazards are created, and no adverse environmental impacts will result.

For the most part, many of the components necessary for the management of flood hazard within the Shirleys Brook/Watts Creek Subwatershed are already in place. This includes: the MVCAs previously prepared flood line mapping of portions of Shirleys Brook, Watts Creek and the Kizell Drain to denote hazards associated with flooding, and, relevant Official Plan policies and land use schedules dealing with flood hazards within the respective OPs of the City of Kanata and the Regional Municipality of Ottawa-Carleton.

The fundamental elements of the flood management strategy are provided below.

7.3.1 Identification and Reduction of Flooding

Mapping of the flooding hazards within the Shirley's Brook/Watts Creek Subwatershed has been previously prepared by MVCA. Flood plain limits based on the 100year storm have been delineated on the MVCA's 1:2,000 scale topographic based mapping.

Watercourse reaches that have been mapped include:

• Shirley's Brook main branch, extending from Ottawa River 1,200 m north of Goulbourn Forced Road;
• Shirley's Brook Tributary 1, extending from main branch to March Road;
• Shirley's Brook Tributary 2, extending from Tributary 2 to 400 m north of March Road;
• Watts Creek main branch, extending from Ottawa River to Eagleson Road;
• Kizell Drain, extending from Watts Creek to the Beaver Pond; and
• Kizell Drain Tributary, extending from Kizell Drain to Beaverbrook Road.

The following points are recommended to assist the municipalities and the MVCA in managing hazardous areas associated with flooding:

Assess Flooding Hazards to New Development, Site Alteration or Land Use Change: The following points are recommended to assist the municipalities and the MVCA in reviewing development applications in or adjacent to natural hazard areas associated with flooding:

1. For areas where flood lines have been mapped, the flood line should be used by the MVCA to assess the hazards associated with flooding. If the MVCA feels that site-specific information is required to assess the potential flooding impacts associated with a development proposal, the proponent of the development proposal shall be required to prepare a hydrotechnical study that conforms to the items listed in point iii).

3. Pursuant to the Provincial Policy, development and site alteration proposed in hazardous lands associated with flooding must demonstrate that all of the following can be achieved:

1. the hazards can be safely addressed, and the development and site alteration is carried out in accordance with the established standards and procedures listed in point iv);
2. new hazards are not created and existing hazards are not aggravated;
3. no adverse environmental impacts will result;
4. vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies; and
5. the development does not include institutional uses or essential emergency services or the disposal, manufacture, treatment or storage of hazardous substances.

4. All technical and planning related issues pertaining to delineation of the flooding hazards and the technical assessment of impacts thereof should adhere to the procedures, methods and technical standards requirements defined in the Province's "Flood Plain Planning Policy Statement - Implementation Guidelines" and accompanying "Technical Guidelines" (MNR, 1988) and the MVCA's, "Fill, Construction and Alteration to Waterways" regulations.
5. Any hydrotechnical studies conducted under points i) or ii) shall recognize and be consistent with the methodologies and findings established in the hydrologic investigations conducted as part of this Study.

7.3.2 Policy Recommendations

The fundamental elements of the strategy includes the following policy basis:

1. Pursuant to the Provincial Policy, the municipalities of the City of Kanata, City of Nepean and the Regional Municipality of OttawaCarleton should establish appropriate land use planning controls, designations and mechanisms in their respective Official Plans to prohibit/restrict development in hazardous areas associated with flooding and permit development subject to conditions in areas defined as less hazardous. The actual limits of the hazardous lands along river and stream systems impacted by flooding should be based on the flood hazard limits defined by the regulatory flood standard, established as the one hundred year (100year) flood.

In addition to relying on the 100year flood lines, Fill Lines should be used when considering development or redevelopment along a watercourse. The purpose of these Fill Lines are to provide an additional setback beyond the flood limits, where environmental hazards, such as steep bank or meander belt are present. Before any filling or development is permitted outside the flood line but inside the fill line, an engineering study will have to be undertaken to determine the potential effects of development on the hazards. The findings of the investigation, recommended measures and the long term effects of the proposed development on the watercourse and the riparian environment should be submitted to for approval to the Conservation Authority.

2. The municipalities and/or the MVCA may request that detailed hydrotechnical studies be prepared by proponents of development proposals in order to identify and fully assess the site-specific hazards associated with flooding.

From Page 8-37 to 8-38 of the Subwatershed Plan:

8.3.2.2 Flood Control

The following flood control measures shall be recognized. Section7.3.1 of this report should be reviewed for further information.

• No development and no fill should be located in the 100 year flood plain (to be based on updated floodplain mapping);
• Development or fill within the regulated flood and fill lines is subject to approval by MVCA and the City, and may require a hydrotechnical to determine impacts and measures to eliminate any environmental hazard;
• Runoff from new developments should control the peak flows for the 2 to 100 year event to pre-development levels; and
• Where no flood lines are available, the 100 year flood line should be defined and development or fill should be kept outside the computed line.

Other considerations to be taken into account in developing the Stormwater Management Plan include:

• Storm sewers and internal drainage systems should be sized in accordance with the City of Kanata design standards, without accounting for any flow attenuation achieved by onsite measures such as ponds, rooftop and/or parking lot storage.
• A fundamental component of an urban drainage system is the provision of an adequate major system flow route.Therefore, attention must be given to proper grading of the roadways and the incorporation of flow easements where necessary to ensure a continuous flow route to a safe outlet. In this regard, consideration must be given to:
• maintaining the existing drainage pattern;
• providing a continuous overland flow route to safe outlets;
• minimizing flow depths along roadways; and
• minimizing ponding depths in parking areas.
• minimize the potential for flooding, erosion and environmental problems, every attempt should be made to preserve the existing drainage pattern.

From Page 8-37 to 8-38 of the Subwatershed Plan:

8.3.1 Benefits of the Subwatershed Plan

One of the most important aspects of the approvals process for land development is to ensure a level of fairness and certainty in therequirements of the various government review agencies. Incorporating the principles of subwatershed planning in this process is one way of achieving this in a cost-effective and timely manner. In fact, the adoption of subwatershed planning principles is already playing an increasing role in land development elsewhere in the province. It has been recognized that planning within a watershed context provides a basis for the successful integration of existing natural systems with proposed urban land uses.It also provides the basis for the next level of detail required in the development proposal, that is, the servicing needs.

But perhaps more important than ensuring that a process is in place for reviewing development proposals is the benefit of having all stakeholders buy in to the environmental basis for planning on a subwatershed basis. If, for example, it becomes routine to identify environmental constraints and opportunities as the first step in developing a subdivision plan, then the best mix of stormwater management practices can be developed which both preserves and enhances environmental features while meeting technical needs. Other innovative strategies for the development can also be discussed at these early stages, and tradeoffs can potentially be made which satisfy all parties. Detailed planning can then proceed with a high level of certainty that the final development proposal will be accepted and approved. Some of these innovative strategies could include:

• preservation of designated environmental features within the plan by allowing residential density changes which make if feasible for the owner to develop the site from a cost point of view;
• restoration of degraded valley systems as part of an overall environmental management plan for the site, thereby allowing the delineation of buffers to be based on environmental quality rather than on a pre-set distance from the top of bank of centre of the stream;
• encouraging the plan to incorporate green space preservation in corridors or adjacent to green uses such as parks and schools.

This process will ensure that good decisions are made early enough in the process to satisfy the developer, the municipality and government review agencies, and the public

It is also recognized that there are many development applications in process throughout the subwatersheds. The recommendations/strategy in this plan are not to be viewed as a new set of rules as the strategy has been developed based on existing provincial and federal legislation.

For these in process development plans, the City of Kanata would like to work with developers so that development plans are consistent with the subwatershed strategy as much as is realistically possible recognizing the point at which the development plan is.

Comments:
It would appear that, at considerable expense, the Shirleys Brook and Watts Creek Subwatershed Study was completed to establish guidelines to be followed during the urbanization of these Subwatershed areas. Compared to the time that the Carp River floodplain mapping study was completed (1983), a significant change in the way planning was conducted in the Province had occurred. Rather than mitigating impacts caused by incremental development, as was the case in the 1983 floodplain mapping study for the Carp River, Subwatershed planning was established such that the cumulative impact of development could be understood. Through this process lands subject to flooding would be set-aside from development, and criteria aimed at guiding the land development industry and approval agencies was established on a Subwatershed basis. These processes also involved public consultation, because, just like the developers, the public is also a stakeholder.

Comparing the Figures from the Subwatershed Plan provided in Attachment No.9 to what actually has been constructed, as shown in Attachment No. 14, it would appear that MVCA has approved a lot of alterations to drainage systems and approved development within areas subject to its Fill Regulations alterations and development that, if anything, were not recommended in the Subwatershed Plan that had just been completed.

Questions

• Did the MVCA issue a Fill Permit to permit the construction of the Marshes Village Residential Development?
• If a Fill Permit was issued, can the MVCA explain how it upheld the objectives of the Conservation Authorities Act control of flooding, pollution, and the conservation of land ?
• Given that the Subwatershed Plan was specific about where channelization works were required, and the width of meander belts, can the MVCA explain how channelization works were approved where no such needs were identified in the Subwatershed Plan, and at a configuration / corridor width that is not in compliance with the Plan that based its recommendations after considering the impact of development on a Subwatershed basis?
• Given that alterations to drainage systems also require Approvals under the Lakes and Rivers Improvement Act, an Act administered by the MNR, before the MVCA Granted its Approval under R.R.O. 1990, Regulation 159, did the MVCA ensure that the planned channelization of the Kizell Drain also secured the necessary Approvals from MNR under the LRIA?

Case III - Mississippi Mills 2005 OMB Decision

The Ontario Municipal Board heard an Appeal by a landowner in the Township of Mississippi Mills in 2005 after her request to secure a building permit and zoning by-law amendment were denied by the Township.

Following is an excerpt from the OMB Decision that is included as Attachment No. 15:

From Page 2-3 of the OMB Decision:

The following contextual information and details of the appeal were provided by Mr. Symon [the Town Planner]. The property is approximately 2,800 m² with the vast majority of the property located within a floodplain area. Access to the property is through a private laneway from an unassumed road. The vast majority of the site is bound by a cement retaining wall. Fill has been brought in to bring the elevation to the top of the retaining wall. There is a septic system, a well, footings and foundations, and some sub-floor structure. Permits were originally given under the Mississippi Valley Conservation Authority (MVCA), the Leeds-Grenville-Lanark Health Unit and the Township of Ramsay (now amalgamated into the Town of Mississippi Mills (the Town)).

The following information is disclosed by the Town of Mississippi Mills Planning Department Report (Exhibit 5, Tab E) which this panel accepts. The Appellant received building permit #96-77 in August 1996 from the Township of Ramsay. Because of a lack of building progress on the site, the building permit was revoked. The Appellant was advised that MVC and Health Unit permits would be required before a permit could be reissued. The Town of Mississippi Mills passed Zoning By-law 01-70 (Environmental Hazard (EH) Zone) in November 2001. Prior to this date (1992-2001), Zoning By-law 1545 of the Township of Ramsay was in effect.

The Appellant made another building permit application in January 2002. The Appellant was notified of deficiencies in the application and the need for additional information in March of that year, and when a site inspection revealed that work was proceeding on the Appellants, a stop work order was issued. In September 2003, by means of a rezoning application to special EH, the Appellant again sought to build a residential dwelling in a flood plain. The Board notes that the municipal planner for the Township of Ramsay had recognized the property as flood plain in September 1992, as did the Mississippi Valley Conservation Authority.

The Appellants Counsel, her husband, said the property is the site of an eventual seasonal home. He said no one has ever mentioned to him about the zoning information, especially the 2001 by-law, and he alleges it was all done without notice. The Appellant and her husband live in Ottawa, a considerable distance away from the Town. He said the Conservation Authority made flood proofing improvements and he considers the building permit originally issued to him by the Township of Ramsay to be valid. He said the Town tried to revoke the permit in February 2000 but they never provided him with sufficient reasons. He said that the building inspector came to the property in the winter without tools so he could not accurately determine the Appellants new elevations and building foundation.

The Appellants husband said the building permit was cancelled and a stop work order was issued. He recounted his version of the chronology of experiences he had with having to reapply for a building permit after February 1999 and the fact it has taken longer to build the home than the five years he had originally planned for. The Appellant said his property is not in a flood plain anymore since his land now sits two feet higher. He added that MVCA Engineer John Price says that despite the higher elevation, the property continues to be situated within a floodplain.

From Page 5 of the OMB Decision:

The Board notes that even before ZBL 01-70 came into effect, the previous ZBL 1545 from the Township of Ramsay also required watercourse setbacks. Exhibit 5, Tab G, p.58 shows that as far back as 1992 the MVCA had determined that the Appellants proposed construction did not conform to the development setback requirements from a watercourse in ZBL 1545. Despite the Appellants husbands statement that his property no longer sits in the flood plain because it has been raised two feet, the fact is that the property still physically sits in the flood plain of the Mississippi River. Further, MVC Engineer John Price confirms by way of letter dated 17 May 2005 (Exhibit 8) that the Conservation Authority consider the high water mark of the Mississippi River to be along the wall that has been constructed on the Appellants property. In this Exhibit, the MVC rejects the Appellants request to place additional fill on the property to re-locate the high water mark. However, the letter states that the MVC only supports fill placement for flood proofing; the Appellants request is not for flood proofing or for access to the property. The Board prefers the evidence of the expert witness and the contents of the letter in Exhibit 8 to that of the Appellants counsel and finds the subject property to sit in the floodplain.

Comments:

This OMB Decision exposes a number of apparent inconsistencies in the administration of Floodplain Regulations by the MVCA. It would appear that in the early 1990s the MVCA supported the filling and development of the subject lot in the One-Zone floodplain of the Mississippi River, when it issued a Fill Permit under its Regulations.

However, the position of the Conservation Authority has changed in 2005, based on the testimony of the MVCA at the OMB Hearing.

Questions:

• On what basis did the MVCA approve the Fill Permit Application in the 1990s?
• The OMB Decision noted that the MVCAs position at the 2005 Hearing was that it only supports fill placement for floodproofing. If that is the case, why was a Fill Permit Approved previously for the subject lot?
• If the MVCA only supports fill placement for floodproofing, on what basis did it approve the development of the Marshes Village Residential Development in Case II above?

Case IV - Carp River Terry Fox Drive

The former Region of Ottawa Carleton completed an Environmental Study Report in 2000 for the extension of Terry Fox Drive north of Highway 417, in the former City of Kanata. The outcome of the project planned under the Municipal Engineers Association Class EA was an alignment paralleling the Carp River that would result in a loss of 27,000 m³ of floodplain storage.

The Class EA for the Terry Fox Drive Extension was amended in 2004. As a result of the amendment, the alignment of Terry Fox Drive was moved further into the floodplain with an additional loss of 18,000 m³ of floodplain storage. The MVCA supported the loss of 45,000 m³ of floodplain storage as is discussed in the Transportation Committee Report in Attachment 16. An excerpt is included below.

The Minutes of the Committee Meeting included as Attachment 17, indicate that a number of Councillors voted against the project. One of the Councillors concerns were directed at the MVCA: "Councillor Legendre expressed disappointment about the comments of the Mississippi Valley Conservation Authority (MVCA)". The Minutes of the meeting indicate that a former Deputy City Manager defended the decision of the MVCA: "Mr. Lathrop added that staff relies on the MVCA, respects their ability to make valuable recommendations, and are satisfied about their comments with respect to the loss of land in the floodplain being minimal. He pointed out that such losses are something that staff tries to minimize as much as possible and thus the reasoning for choosing this alignment."

Excerpt from Transportation Committee Report (Attachment 16)

Carp River

The Mississippi Valley Conservation Authority has reviewed the proposed road alignment on active farmland in the flood fringe adjacent to the Carp River.The MVCA has confirmed that they have no objections to the proposed alignment and have identified no significant adverse impacts on the natural function of the river based on the road location.

Calculations were completed, during the preliminary design, to determine the loss of flood plain due to the new road alignment encroaching into the Regulatory (100-year) flood plain of the Carp River.  The cross sections from the existing Conservation Authority HEC2 backwater model were employed in the analysis. An estimated 45,000 cubic metres of floodplain storage area will be lost due to the proposed EA Addendum alignment.  The proposed EA Addendum alignment is approximately 18,000 cubic metres more than the 2000 ESR alignment that had a total impacted of about 27,000 cubic metres. The MVCA is aware of this additional floodplain impact, and have agreed that the loss of floodplain storage will have a negligible effect on the Carp Rivers flood regime since the Carp River is wide and shallow in the vicinity of the proposed Terry Fox Drive alignment.

The general MVCA requirements for the Terry Fox Extension within the Carp River floodplain are as follows:

• The road surface must be above the 100-year flood plain elevation to ensure appropriate flood proofing.
• The loss of flood plain storage due to the roadway footprint will be compared to the additional flood plain storage created from the construction of any stormwater management and any required fish habitat compensation works.  Local grading that creates additional storage can be used to compensate for any residue loss of flood plan storage.
• The cross culvert near Station 13+400 must remain to allow the existing backwater flood plain storage to remain upstream of the road.

These issues will be addressed during the detailed design phase.  Under Ontario Regulation 159/90 a permit will be required from MVCA for any fill placement and/or construction within the Regulatory flood plain of the Carp River.  This process will ensure that the flood plain issues will be addressed to the satisfaction of the MVCA.

Comments:

At the time the MVCA was dismissing the loss of 45,000 m³ of floodplain storage as being insignificant on the basis that the Carp River floodplain is wide and shallow, they were also advocating the filling and development of up to 60 Ha of floodplain in Kanata West in the Carp River Subwatershed Plan. There is no indication of the impact of the total cumulative loss of floodplain storage from all of the encroachments into the Carp River floodplain.

Part of the justification attributed to the MVCA for allowing the loss of floodplain storage is the mitigative impact of stormwater management controls. It is the author of this requests experience that stormwater management storage is different than riparian storage. Storage volumes provided by SWM facilities are typically occupied by runoff from the local catchment areas, and provide little or no riparian / floodplain storage. It is submitted that to count on SWM storage being available to substitute for losses in floodplain storage is a precarious approach to floodplain management.

Questions:

• Is it the MVCAs position that there should be no limit to the amount of fill that can be placed on a wide-shallow floodplain?
• At the time the Terry Fox Drive Class EA Addendum was being completed, the Carp River Subwatershed Plan was also being completed that included a recommendation that the floodplain mapping along the subject reach had to be updated. On what basis can MVCA approve one undertaking (the Class EA) with existing modeling, and in the case of the other undertaking (the proposed Kanata West development of the floodplain) require floodplain mapping to be updated?
• On what basis is the MVCA satisfied that stormwater management facilities provide riparian / floodplain storage?
• How can the MVCA support the filling of 45,000 m³ of floodplain storage on the Carp River, but not approve the fill requested by Gudrun Kazda along the Mississippi River in Case III?
• For a riparian landowner on the Carp River downstream of the Terry Fox Drive undertaking, if they were to review the TRCA and GRCA Decisions of the OMLC referred to in Section 3) of this submission, what is different about the Carp River that they should not be concerned about the Decision of the MVCA?

Case V - Carp River Terry Fox Business Park

The Terry Fox Business Park is located downstream of the Glen Cairn Community on the east side of the Carp River, opposite Kanata West. On July 25, 2002 the City of Ottawas Planning and Development Committee approved a Zoning By-law Amendment, in effect implementing Two-Zone floodplain policy in the subject Business Park. Attachment 18 includes the Report Approved by Committee.

As is discussed in the excerpt below, as early as 2002 the MVCA was supporting the application of Two-Zone Floodplain Policy on the Carp River from the Glen Cairn Detention Facility located upstream of Hazeldean Road downstream to Richardson Sideroad a reach of nearly 5 km. The MVCA also appears to accept that the Two-Zone Policy can be applied in phases i.e. not on an entire reach basis, but on a site-by-site basis.

It is interesting to note that the MVCA supported the Approval of this Report in July 2002, four years before the MVCA Carp River Restoration Project and supporting floodplain mapping update were completed. Furthermore, the MVCA supported this rezoning despite the fact that the Community of Glen Cairn, located just upstream from the Terry Fox Business Park, flooded less than one month before the Committee Meeting. This was the second time in six years that the Carp River flooded the Glen Cairn Community.

Less than two years after Zoning for 20-50 Frank Nighbor Place was approved, the MVCA supported the development of the Sensplex arena complex located in the Terry Fox Business Park, just upstream from Nighbor Place, between Palladium Drive and Maple Grove Road. In that development a stormwater management facility and embankment were constructed in the floodplain with the Approval of the MVCA. Again, this development proceeded in advance of the completion of updated modeling and floodplain mapping that would assess the impact of encroachment / Two Zone floodplain policy over the 5 km reach on a comprehensive basis.

Excerpt from Attachment No. 18:

"A comprehensive analysis of the Carp River system and the potential for a two zone for the reach from Richardson Side Road to the Glen Cairn Detention Pond has been conducted. The findings indicate that a two-zone approach can be applied to the subject lands. As a result, the City is now the proponent of this application, with the support of the property owners affected. Application of the two-zone approach along this reach of the Carp River will be done in phases, with the area shown on the Location Map (Document 1) being the first to be implemented. The remaining development parcels along this reach of the River will be pursued through a separate process, as part of the Kanata West Concept Plan and the Carp River Watershed/Subwatershed Study."

CONSULTATION
The affected landowners have been involved with the process of implementing the two-zone flood plain along this portion of the Carp River.

Mississippi Valley Conservation has been involved with the preparation of this report and has reviewed the two-zone analysis.

Comments:

There have been many changes to the Carp River and its floodplain from the Community of Glen Cairn, downstream to Richardson Sideroad over the last 10 years. The flooding of Glen Cairn has resulted in improvements in conveyance capacity of the Carp River through a reach of the river where flood flows used to be impounded. The Sensplex has been constructed and an embankment narrows the effective width of the flood way. Discussion in Attachment No. 18 indicates that additional amounts of fill were placed in the floodplain of the Carp River during the construction of the Corel Center and the Terry Fox Business Park because of inaccurate survey information during the planning of those undertakings. Downstream of Highway 417 stormwater management facilities and Terry Fox Drive have encroached within the original floodplain area.

With so many changes and alterations being made to the floodplain and conveyance system all of which exacerbate potential flooding problems, in the absence of any comprehensive modeling of these changes, it is uncertain how there could be any basis on which an understanding of flood levels could occur. Despite the fact that the Carp River Restoration Project and its supporting modeling were not completed until June 2006 (and is the Subject of four Part II Order Requests with the Minister of Environment), the MVCA was able to give its approval of these developments developments that are immediately downstream from the flood damage center in Glen Cairn.

Questions:

• When it comes to implementation of Two-Zone Floodplain Policy, what is MVCAs position with respect to its application in Greenfield Development areas?
• Is it reasonable to allow Two-Zone floodplain development to proceed on a site-by-site basis, in the absence of a comprehensive watershed model?

Case VI - Carp River - Village of Carp

Attachment No. 19 is a July 27, 2006 report that was Approved by the City of Ottawas Agriculture and Rural Affairs Committee in August 2006. The subject of the report is the rezoning of land in the Village of Carp to allow intensification of residential land use (townhouses and apartment buildings) on lots that are within the floodplain of the Carp River and within the Well-head protection area of the Villages communal wells.

Attachment No. 20 is a mark-up of a recently completed community design plan of the Village of Carp. It is evident that the subject rezoning is located immediately downstream of lots of another townhouse development that has encroached within the Carp River Floodplain.

This reach is downstream of the Terry Fox Drive extension that, as discussed above, involves the loss of 45,000 m³ of floodplain storage. The development is also located downstream of the proposed filling and development of 28 Ha of floodplain in the Kanata West development. Between the Kanata West development, the Del Brookfield lands that are upstream of Kanata West, and the development of the Interstitial lands that are downstream of Kanata West, nearly 1000 Ha of additional intense urban development will drain through the Village of Carp reach of the Carp River.

An inspection of the upstream townhouse development (shown in Attachment No. 21) revealed that fill has been placed to raise the entire lots out of the former floodplain. This is corroborated by the depiction of the land use in Attachment No. 20. Despite statements by the MVCA in the Committee Report (provided in the excerpts below from Attachment No. 19) that development will have to be located outside the 100-year floodplain, on what basis could the MVCA be able to deny a Fill Permit application for this new development area?

Excerpts from Attachment No. 19

Purpose of Zoning Amendment

The purpose of the proposed amendment is to have a range of permitted residential uses including multiple attached dwellings and low-rise apartments.

Existing Zoning

In the former Township of West Carleton Zoning By-law 266 of 1981, the site is zoned as R1 and R1-FP (Residential Type 1), which permits only the use of a fully detached dwelling house.

Proposed Zoning

The applicant proposes to amend the By-law to a Special R6 Exception Zone (R6-XX and R6-XX-FP) to permit an apartment building and other residential uses such as street townhouses. The applicant also seeks special side and flank building setback provisions and an increase in building height.

ENVIRONMENTAL IMPLICATIONS
The applicant was made aware of the existing environmental constraints of constructing close to the Carp River and advised to design the stormwater management plan based on the Conservation Authority, MOE and City of Ottawa guidelines.

The Mississippi Valley Conversation (MVC) did not have objections to the rezoning as long as the development was located outside of the 1:100 year flood plain. The applicant was informed that the entire property falls within the MVCs regulation limit for the Carp River and that a permit would be required for any development on the property.

The Environmental Advisory Committee does not support the application as the proposal raises issues of potential contamination to the Carp River and requested that the environmental assessment be performed before recommending approval of the rezoning application. As there is current capacity for additional residential units and the environmental assessment study is not scheduled until the fall, the rezoning application is considered appropriate. The environmental assessment relates to servicing and infrastructure upgrades to accommodate future growth in the Village of Carp and is not an environmental assessment of the Carp River. Details for servicing and impact to the surrounding environment will be handled when the site plan control application is submitted for review.

The Village of Carp is within a Wellhead Protection Area. Residential development is not considered a use that will contaminate the public water system. Examples of uses that are prohibited within Wellhead Protection Area are agriculture and industrial.

Comments:

The subject rezoning and proposed development increases the intensity of uses not only within areas subject to One Zone Floodplain Regulations, but also within the Wellhead protection area. Based on the proximity of the proposed development to the communal wells, the subject development is likely approaching the 50-day capture zone. In this case the interest of the Conservation Authority is two-fold fulfilling its responsibilities under the Conservation Authorities Act, and the source water protection of the communal wells under the Clean Water Act.

This appears to be another case where the floodplain of the Carp River will inevitably be subject to more filling and development, yet there is no evidence of any supporting hydrotechnical analysis such as hydraulic modeling or updates to floodplain mapping on a reach basis.

Questions:

• Given that the townhouse lots immediately upstream from the lots subject to the Zoning By-law Amendment have been allowed to be filled to above the 100-year floodplain, on what basis could the MVCA deny a Fill permit application for the new development area?
• -What is the MVCAs position with respect to development in well-head protection areas? Does it favour intensifying land uses within these areas? Or, does it believe in the precautionary principle, preferring to reduce the intensity of development in such areas?
• Based on 611428 Ontario Limited vs. Metropolitan Toronto and Region Conservation Authority, in the absence of a model indicating a threshold for intrusion into the watershed beyond which development should not be allowed, would the MVCA agree with the OMLC that it is appropriate to apply a precautionary principle to development in this case, particularly given the proximity of the development to the communal wells?

Case VII Two Zone Policy Town of Mississippi Mills / Constance Bay

There appears to be inconsistency in why, where, and how the MVCA allows application of Two Zone floodplain policy. The experience of the author of this request in other parts of the Province is that Two Zone floodplain policy is allowed in areas of existing development on lots of record, so that development and redevelopment of existing/ historical development areas does not get sterilized should the area be found to be located in a floodplain after the technical studies are completed.

Two Zone floodplain policy does not apply to Greenfield development areas.Two-zone floodplain policy involves floodproofing of structures not the raising of entire development areas involving placing fill to a level above the regulatory flood elevation without compensating cut.

The decision of the MVCA to support the application of Two-Zone floodplain policy in Kanata West, a Greenfield development area, appears to be inconsistent with application of Two-Zone floodplain policy in other areas within its jurisdiction.

Attachment No. 22 is the recently MMAH approved Official Plan of the Town of Mississippi Mills.  Attachment No. 23 is the recently approved Community Design Plan for the Village of Constance Bay within the City of Ottawa.  Excerpts from each of these planning policy documents are provided below.  In each of these cases the MVCA has taken the position that Two-Zone Policy applies only to existing lots of record.

Excerpt from Attachment No. 22 - Mississippi Mills Official Plan:

3.1.3.1.5 Mississippi Lake Two Zone Flood Plain Policies

1. For areas of existing development within the Mississippi Lake flood plain, two zone flood plain policies have been developed. Lands within the flood plain in the Two Zone Policy Area shall be divided into the Floodway and Flood Fringe zones defined as follows:
   

• Floodway: Lands lying below the 135 m elevation - the hazardous portion of the flood plain where flood depths and/or velocities are considered to be such that they pose a significant threat to life and/or property. The floodway is that area of the flood plain required for the safe passage of flood flows. In all circumstances the floodway shall be defined and approved by MVC based on depth or a combination of depth and velocity parameters.
• Flood Fringe: Lands lying between the 135 m elevation and 135.6 m elevation - the portion of the flood plain between the limits of the floodway as established by MVC and the regulatory floodline establishing the limits of the floodplain. Flood depth and velocity is generally less severe in this portion of the floodplain.

2. The use of the Two Zone Flood Plain concept may allow for some development within the flood fringe areas of the flood plain that can be safely developed. Development in the flood fringe shall be restricted to development on existing lots of records, redevelopment, replacement and additions or alterations of existing buildings and structures. Such development shall be regulated through the Zoning By-law and MVC Fill Construction and Alteration to Waterway permit processes.
3. No development within the Floodway shall be permitted, including the expansion or addition to existing structures.
4. The creation of new lots within the floodway or the flood fringe shall be prohibited.

Excerpt from Attachment No. 23 - Constance Bay Community Design Plan

Mississippi Valley Conservation (MVC)

MVC commented that their staff has been involved in reviewing and providing input on the draft document and their comments and recommendations have consistently been addressed throughout the process. One item, however, requires clarification regarding the flood plain. The two-zone concept for flood plain management as described in Section 3.6 applies only to already developed residential lands along the Ottawa River and Buckhams Bay and provides for development on lots of record only.The Plan should be revised to indicate that in the New Residential Development Area, the entire flood plain should be treated as one zone where new development is prohibited within the entire flood plain.

Response

Schedule A has been revised to indicate that the flood plain within the area designated New Residential Development Area is within the Floodway. No new development is permitted within the Floodway

Comment:

The OMLC has stated her position with respect to the planning process involved in the application of Two-Zone floodplain policy:

To have a two-zone approach applicable, it is necessary for the municipality to go through the necessary planning process in consultation with the Ministries of Municipal Affairs and Housing, Natural Resources and the local Conservation Authority. Again, this process is described in detail in the Implementation Guidelines.

There is no evidence that the MNR or MMAH has been consulted about the application of two-zone policy.

Questions:

• Should the MVCA carry through with approving the implementation of Two-Zone floodplain policy on the Carp River in Kanata West, on what basis could it refuse application of two zone floodplain policy in an Appeal to the Ontario Municipal Board in communities like Constance Bay or the Town of Mississippi Mills?

Case VIII - Kanata West / Carp River Restoration Plan

The MVCA supported the recommendations of the Carp River Subwatershed Plan completed in 2005 that included the development of up to 60 Ha of existing Regulated floodplain in a Greenfield Development area known as Kanata West. The MVCAs support for the floodplain development was unconditional despite the fact that the impact assessment of the non-compensated filling of up to 400m of the 500m wide floodplain showed increases in flood levels of as much as 0.3m using the results of non-calibrated modeling that the Subwatershed Plan also recommended be re-done.

Attachment No. 24 shows a mark-up of an Ontario Basemap of the Kanata West Area. The basemapping information predates development in the area since the early 1990s including Scotia Bank Place, Centrum, and the Terry Fox Business Park.

In addition to the impact of the filling and development of 28 Ha of the Carp River floodplain now identified in development plans in Kanata West that are supported by the MVCA, there is also concern about the cumulative loss of riparian storage through the elimination or alteration of original headwater / intermittent drainage systems in the area. Attachment No. 24 shows tributaries that have been lost as a result of previous developments within the MVCAs jurisdiction. Attachment No. 24 also shows other tributaries within Kanata West that will be either filled-in or altered as a result of development of Kanata West.

Not until 2005 when the MNR got involved in the review of the Carp River Restoration project with respect to approvals under the Lakes and Rivers Improvement Act, was there any consideration given to maintenance of existing storage volumes. The documentation provided to the public for its review through the Class EA process for the Carp River restoration project in June July 2006 suggests that significant grading is now proposed within the 100m corridor that is supposed to provide the floodplain storage function of the existing floodplain that is up to 500m wide.

This recent interest in maintaining pre-development floodplain storage volumes suggests that a shift in the approach to floodplain policy is being considered by MVCA in Kanata West. Under Two-Zone floodplain policy the focus is on floodproofing existing structures or proposed development on existing lots of record (see examples in Case VII). There is no fundamental requirement in a Two-Zone Floodplain Policy area to maintain pre-development floodplain storage. Maintenance of floodplain storage is a design objective of proposed alterations to lands subject to One-Zone Floodplain Regulations.

It is submitted that the latest attempt by MVCA to justify the planned filling and development of 28 Ha of floodplain that is currently Regulated using One-Zone floodplain policy, can not be supported by Natural Hazards Policies of the Provincial Policy Statement.

If floodplain areas within the Kanata West development area were treated as One Zone Policy Areas at the time the Subwatershed Plan and Kanata West Concept Plan were approved by the City of Ottawa, the existing Regulated floodlines would have established the limit of development. Instead, the approach to floodplain management employed by the MVCA by considering application of Two-Zone floodplain policy in a Greenfield Development Area opened the door (floodgates?) to abuse and misuse of floodplain policy on a drainage system with a history of flooding problems.

Under the circumstances, it is appropriate to repeat a quote of the OMLC from Chalmers vs. GRCA:

The tribunal finds that granting permission in this case would constitute a precedent for new residential development of other portions of the flood plain in one zone concept areas, involving considerable placing of fill which has measured impacts upstream. It is found that those residing, visiting or providing services to the new residences would unnecessarily be placed at risk. Moreover, it would provide precedent for granting of permission in other cases without the necessary calculations being performed on a reach or subcatchment basis, thereby putting unknown others at risk from increases in flood elevations upstream or increases in flood velocities downstream. If allowed, the Chalmers [Kanata West] proposal would amount to a rewriting of the Provincial Policy in respect of new development in the floodplain for areas within a one zone concept area, being a precedent of such an order of magnitude that it cannot be allowed. The tribunal finds that it will adopt the words of Mr. Lorant, whose expert evidence matters of watershed management bears considerable weight, in finding that the proposed filling and construction poses a dangerous precedent, both in terms of the Chalmers [Kanata West] land itself and on the ability of this and other conservation authorities to manage watersheds within their jurisdictions.

5) Summary

Section 3) of this submission summarized the findings of the Ontario Mining and Lands Commissioner on two Appeals of refusals by Conservation Authorities in Southern Ontario to issue Fill Permits pursuant to Regulations under Section 28 of the Conservation Authorities Act. Each of these Decisions concerned development that raised similar policy issues as those discussed in the eight Case Studies involving the MVCA presented in Section 4).

It is the position of the author of this submission that the eight case studies support the need for MNR to conduct an operational audit of the Mississippi Valley Conservation Authoritys approach to floodplain management out concern that the MVCA:

1. Regulates and applies Provincial floodplain policy inconsistently within its own jurisdiction;
2. Regulates and applies Provincial floodplain policy inconsistently with other Conservation Authorities in the Province of Ontario; and
3. Enforces the Conservation Authorities Act in ways that are inconsistent with Decisions of the Ontario Mining and Lands Commissioner, who has been assigned the authority, duties and powers of the Minister of Natural Resources under the Ministry of Natural Resources Act.

Submitted by: Ted Cooper, M.A.Sc., P.Eng
500 Lake Clear Road
Eganville ,ON
K0J 1T0
613-754-2562 taee.cooper@sympatico.ca

October 1, 2006