Browsing the archives for the Legislative Gaps category.

The City’s Failed Wildlife Strategy

Green Reality, Legislative Gaps

The City of Ottawa’s Wildlife Strategy is a disappointing response to the public and to environmental groups who have been highly critical of the reactive and negative way in which the City responded to wildlife conflicts.

The public has been routinely frustrated that wildlife-related decisions are handled by an inter-agency group that included the City’s by-law department, the NCC and the Ministry of Natural Resources – without any transparency or accountability.

So, without any transparency or accountability, it appears that Mayor Watson has done what he seems to do best, a backroom deal that puts the City’s Wildlife Strategy in the hands of the City’s Agriculture and Rural Affairs Committee – even though this group has no mandate to do this and its chairman, Doug Thompson is an advocate for coyote culls.

Killing wildlife whenever there is conflict may be a strategy, but Mayor Watson is it a good one?

So after more than 3 years of deflection and delay and a 200-page report filled with a lot of empty platitudes, it will be ‘business as usual’ for beavers killed at the majority of conflict sites in Ottawa.  Neither will there be any real help for people experiencing a wildlife conflict.

As for the process, the City’s public consultation created a new low for public participation initiatives undertaken by the City because it was deliberately stalled and dragged out.  Several of the community stakeholder groups resigned because the working group had not met in over 16 months after the draft strategy was released. Nor were any community stakeholders involved in its development.

Meanwhile a parallel and secretive process was running in background between city staff and agency representatives, some of whom had obstructed the process on the working group from the very beginning.  This is the same inter-agency group that operates without transparency and accountability – take for example, the MNR’s arbitrary refusal to allow the Constance Creek Wildlife Centre to open.

According to the mayor, ARAC was given responsibility for City-wide wildlife management in 2011. If this is true it is another example of the secretive way that the Mayor runs the City because there is no public record of approval for it.  The wording in ARAC’s 2011 Terms of Reference with respect to wildlife is identical to that in its 2006 Terms of Reference and both documents explicitly state that its responsibilities do not extend outside the rural boundary.

So why is this committee now responsible for managing wildlife conflict within the urban boundary?

Mayor Watson’s abysmal record on the environment continues to reflect 18th century colonialist attitudes.  Maybe it’s time to

  • dispense with backroom deal-making
  • operate an inclusive decision-making process in the public sunlight
  • establish a balance between the needs of development and nature
  • look for creative 21st century solutions to age-old problems.

We can only hope for a new mayor in the near future actually cares for the environment, public participation, and for implementing democratic process.

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Prorogued or Paid?

Canadian Politics, Legislative Gaps

Dalton McGuinty’s decision to use his minority position to prorogue (i.e. suspend) Ontario’s legislature is the latest in a series of disturbing tactics by Canadian politicians that threaten our democracy.

The act of proroguing a legislature supposed to be used to end one session of a parliament so that another can be started under a new legislative agenda.

  • The new session starts with a Speech to the Throne that outlines the legislation that a government plans to bring forward during that session.
  • The session normally ends when the government has met its stated legislative objectives and needs to table a new agenda.
  • Prorogation is used to provide the time required to prepare the new agenda.

Prorogation is not intended to be used to abrogate democracy.  Both McGuinty and Stephen Harper have used loopholes in the prorogation procedure to escape public enquiry that might lead to a vote of non-confidence in their minority governments.

Just because something is legal doesn’t make it right.

The date of the next session of parliament / legislature should be announced when the previous session is prorogued.  The amount of time between sessions should be reasonable (60 to 90 days) so that a new legislative agenda can be prepared.

Unfortunately the Ontario Legislative Assembly Act does not require the date for the new session to be announced at the time of prorogation, and allows the Assembly to be suspended for up to a year.

The Ontario government doesn’t pay teachers for not teaching during the summer, or doctors who don’t see patients, so why do we pay our elected representatives for not representing us?

It’s time we closed these gaps in our democracy by amending the Legislative Assembly Act:

  • Members of the Assembly should be paid only when the Assembly is in session or is prorogued for less than 90 days.
  • The Lieutenant Governor should be required to proclaim the date of the next session at the time of proroguing the current session of the legislature.
  • In the event that a minority government requests prorogation before completing all of their objectives as declared in their most recent Speech to the Throne, the Lieutenant Governor should be required to ask the other leaders in the Assembly if they can form a government which can carry out its objectives.  Only if no other leader can form a government should premature prorogation be granted to a minority leader.

If every legislature and parliament in Canada made similar amendments, the likes of McGuinty or Harper would think twice about using prorogation to escape the democratic process.

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Will Ottawa’s Home Builders Ever Leave the 19th Century?

Climate Change, Green Reality, Legislative Gaps, South March Highlands

The Greater Ottawa Homebuilders Association (GOHBA) recently published an advertisement that appears to have no basis in any of reason, fact, or good judgement.  In what some may view as an  self-serving editorial, and by others as a not-so-funny comedy of errors, the GOHBA somehow managed to allow publication of an article in which virtually none of its facts were accurate.

This article uses tabs, click on each one to read the full article.

Misinformation

If that article is any indication of what the GOHBA’s members believe, one might wonder if they believe it is in their best interest to spread what seems to be misinformation about the need to protect endangered species:

  • According to Natural Resources Canada, urban land use in Ontario was already 1000x greater than claimed by the GOHBA over 15 years ago!
  • Not to mention the fact that Blanding’s Turtles were documented in the South March Highlands (SMH) 8 years prior to the Terry Fox Drive Extension (TFDE) proposal in 2000.
  • Ontario’s Endangered Species Act predates the Blanding’s Turtle studies done for TFDE by 5 years.
  • Macro-ecologists proved over 8 years ago that the number 1 cause of species loss is due to destruction of critical habitat because, duh, that species has nowhere left to live, eat, or reproduce.

Common Sense?

It appears that the anonymous authors of that article expect us to believe that Ontario should allow  developers to trash what remains of our environment because some “rural critters” “choose to” “hang out” in cities.  The article calls for, in the name of “common sense”, the abandonment of recent regulations that protect species at risk and in general require developers to behave as environmentally responsible businesses.

  • So was it common sense to build TFDE through the middle of the most environmentally significant area in Ottawa in the first place?
  • Why is the GOHBA quibbling about the cost of a fence when the entire $50 M cost of the road was not justifiable without the use of inflated population forecasts?
  • The Environmental Study Report done for the road in 2000 actually admits that the worst location for the road was chosen from an environmental point of view.  Could it be because that location was of greatest benefit to the handful of developers who needed the road to expand the urban boundary at that time?

According to the Environmental Commissioner of Ontario, relentless urban sprawl is a serious problem that does not make for cost-effective cities.   So is it common sense to allow developers to continually push the urban boundary outwards?  Several of the members of the GOHBA recently participated in the expansion of Ottawa’s urban boundary by 1103 hectares – a number nearly 5x higher than originally proposed in Ottawa’s 2009 plan.

Is it common sense for a developer to proceed with early phases of a subdivision plan based on a flawed master storm water servicing proposal?  And after it is discovered that earlier phases of that subdivision’s development are non-compliant with Provincial storm water approvals, is it common sense to allow that builder to continue to deforest the area?

Is an environmental assessment (EA) just red tape in a situation like that?  Is it environmentally responsible for the City of Ottawa to cancel the Class EA that exposed those very problems in the South March Highlands (SMH) in response to what appears to be a request by the non-compliant developer?

Is it common sense to increase flood risk by building storm water ponds in flood plains where these facilities could be submerged when we most need them?  Yet that is what developers appear to prefer along the Carp River adjacent to TFDE.  Even if Provincial authorities stretch the rules to allow them to get away with it, does that make those developers any more environmentally responsible?  Or should they take greater care and perhaps choose to build a few less homes so that those protective facilities are built on solid ground?  Even a subdivision with only a few hundred homes represents $millions in revenue for a developer.

Wildlife Contributes

Science informs us that a healthy climate depends on healthy forests and healthy forests depend on biodiversity. Even common species such as raccoons and porcupines are as important as endangered species when it comes to promoting a healthy environment because they are a major means for circulating a forest’s genetic resources.  Every species has a role to play and the loss of many species in one area inevitably leads to the loss of ecological function.

To portray species trapped within an arbitrarily changing urban boundary as merely “hanging-out” trivializes this essential natural function and suggests that the authors of the GOHBA article may be ignorant of how ecosystems function.  So when imbalances are caused by developers, is it common sense to reduce the protective measures that attempt to restore that balance?  Or does it make more sense to abandon current development in environmentally sensitive areas such as the SMH and to prevent future development in those areas?

In a world that is so obviously threatened by climate change, massive loss of biodiversity, and cancer-inducing pollution, no reasonable person can believe that the status quo is an appropriate response to these challenges.  Even the dimmest among us understands that our weather, crops, and economy are suffering as we pay the price for the excesses of the past.

Greed vs Sustainable

It is possible that a few greedy people may have a vested interest in the status quo which fails to allocate the long-term cost of recklessly exploiting the environment to those same businesses that gain from it in the short-term. However, it is hardly in the common good to continue to subsidize them by not making them do their homework and not requiring them to mitigate the impact of their business practices.

Fortunately a majority of industries are realizing that conducting business in a sustainable manner is not only socially responsible – it is also a more cost-effective and sensible way of doing business. The Canadian Council of Chief Executives has been lobbying our reluctant federal government for years to implement a carbon cap and trade system.  Modern businesses are realizing that their social license to operate depends on recognizing that the economy cannot be separated from the environment within which it exists.

A recent example is Imperial Oil that recently developed oil sands technology that has comparable carbon footprint to the extraction of conventional oil and is significantly better than the carbon footprint of extracting heavy oil in Saudi Arabia or Venezuela.  To quote Imperial Oil:

“Certainly it is Imperial’s belief that to gain and maintain a social license to operate and to grow, the oil sands industry needs to present a compelling case in how it’s addressing environmental challenges of oil sands development.”

While the oil sands industry has much further to go in becoming environmentally friendly, it is encouraging to see them making progress down that path.

Perhaps it is also possible that the less arrogant members of the GOHBA are embarrassed that the oil sands industry appears to be miles ahead of them when it comes to environmental responsibility.

In any event, why should Ontario tolerate less environmental responsibility from the industry that develops subdivisions? Is it so that a greedy few can continue to prosper at the expense of the common environment that we all must share?  The entire construction industry contributes less than 5% to Canada’s GDP and home building is a fraction of that number.  Where is the common sense in that?

If the green advertising of the members of the GOHBA is to be seen as more than superficial features in the houses they build likely depends on whether each builder is willing to make a meaningful commitment to improving our environment by conducting its business in a sustainable manner.

We can only hope that the more responsible home builders who may be members of the GOHBA will rapidly distance themselves from the colonial, 19th century style of thinking presented in that article and if necessary establish a more credible association that chooses to acknowledge that we all currently live in the 21st century and that the survival of our society depends entirely on our environment.

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Ottawa’s Watergate

Green Reality, Legislative Gaps, South March Highlands

You will need to read the entire article to fully appreciate what may appear to you as widescale incompetence and misconduct. This article uses tabs to separate each section – click on each tab to be sure to read the entire article.   You can also click on each illustration to see it in a larger size and can also consult this glossary if you get lost in the acronym soup.

1

Background

KNL’s plan of subdivision in the South March Highlands is based on a master servicing concept that assumes:

  1. that Kizell wetland and Beaver Pond can be used as storm water management (SWM) facilities,
  2. that sufficient storage volume exists in both Kizell and Beaver Pond to store storm water running off their subdivision, and
  3. that precipitation falling in the Shirley’s Brook subwatershed can be diverted to Kizell and Beaver Pond by using these wetlands as SWM cells.

KNL Proposed Water Diversion

These assumptions appear to conveniently avoid the high cost of building man-made SWM facilities at the expense of the environment.

Water runs off of developed areas up to 25x as fast as it does off of natural areas because pavement, roofs, and other hard surfaces do no absorb or slow the flow of surface water.  When it rains in a forest, water is absorbed by trees and plants.  Much of the groundwater recharges the underlying aquifer and some of the water is used by trees, plants, and animals to grow.  Water unused by plants as they grow is given back into the environment as water vapour through a process called transpiration.

When it rains in a developed area, storm water is intended to flow into SWM facilities where it can be detained in a holding area and more slowly released into the downstream water course.  Reducing the flow rate of storm water into downstream areas, prevents both flooding as well as the erosion that can be caused by fast-moving water.  The man-made SWM system approximates the natural flood control function of green infrastructure such as wetlands and forests but does a poor job of controlling more frequent “every-day” rain events, often leading to erosion downstream.

Storm water gathers pollution (oil, gasoline, antifreeze, etc.) from driveways and roads as they wash down man holes into the SWM system.  Under Ontario’s planning regulations, that pollution must be trapped in SWM facilities before storm water can be released into the natural environment.  SWM facilities are important for water quality management as well as for controlling the rate at which storm water re-enters the natural water courses.

2

Piecemeal Approval of KNL Stage 1

Up until recently, it was generally believed that KNL’s master servicing plan was adequately handling storm water flows based on the engineering work that they had presented to the City to get approvals for their subdivision.  KNL had originally proposed to develop in 4 phases as shown in Fig 2 of their 2006 Serviceability Study (below) with

  • Phase 1 on the south side of Kizell wetland,
  • Phase 2 on the north side of Beaver Pond,
  • Phases 3 & 4 on the north side of Kizell wetland.

These phases have since been renamed by KNL for reasons not disclosed to the public.  The original Phase 1 was renamed Phase 6, the original Phase 2 became Phase 9, and the original Phases 3 & 4 became Phases 7 & 8 respectively.  To avoid confusion over the phase renumbering, this article will refer to the original Phases as “Stages”.

KNL Original Phasing

Since Stages 2 – 4 were contingent on a water diversion from one sub-watershed (Shirley’s Brook) to another (Kizell / Watts Creek), the Municipal Class Environmental Assessment process (MCEA) established by the Environmental Assessment Act (EAA) requires that an Environmental Assessment (EA) be performed prior to any water diversion.

Consequently, the City should have been bound by the provisions of the MCEA to withhold approval of the SWM plan for the subdivision until after an EA had been completed.  The City should also have been bound by the Planning Act which requires approvals to be in accordance with the Provincial Policy Statement (PPS). The PPS States:

2.2 WATER

2.2.1 Planning authorities shall protect, improve or restore the quality and quantity of water by:

a) using the watershed as the ecologically meaningful scale for planning;

b) minimizing potential negative impacts, including cross-jurisdictional and cross-watershed impacts;

c) identifying surface water features, ground water features, hydrologic functions and natural heritage features and areas which are necessary for the ecological and hydrological integrity of the watershed;

But in 2007, the City piecemealed the approval of Stage 1’s SWM plan without ensuring that the remaining Stages 2 – 4 were environmentally viable.  This approval was an apparent violation of the MCEA that prohibits approval of parts of a project prior to approval of the entire project (hence the term “piecemeal“):

It is inappropriate for proponents to reduce their responsibility under the EA Act by breaking up or piecemealing a larger project into smaller component parts, with each part addressed separately. Piecemealing is not in compliance with the EA Act.

[Verbatim quote including emphasis from the MCEA.]

There is no evidence in any 2007-era documents that suggest that City planning staff ever intended to do an EA for the water diversion.  This suggests that, at that time, either the City planners were making engineering decisions even though most of them are not licensed as engineers (in violation of the Professional Engineers Act), or that a professional engineer (P.Eng) may have acted inappropriately by apparently ignoring the MCEA.

3

Piecemeal Approval of KNL Stage 2

In 2011, the City again piecemealed the approval process when it approved the clear-cut in Beaver Pond Forest for Stage 2 (aka Phase 9 north of Beaver Pond).  The watershed boundary between Shirley’s Brook and Kizell/Beaver Pond runs across Stage 2 as can be seen by the dark black line in the figure below.

Watershed Boundary in Phase 9

Once again the City allowed KNL to proceed without having an SWM plan that did not rely on a water diversion and without waiting for the results of the EA launched in 2010 for the water diversion.

In doing so, did the City violate the EAA by granting approval to KNL for site alteration after Notice of Commencement had been served for the long overdue EA on water diversion in the fall of 2010?

  • The EAA specifically forbids (Section 13.3) a proponent from proceeding with an undertaking prior to approval of the EA by the Minister of Environment once a Class EA has commenced.
  • How could the City reasonably expect to conduct an EA while allowing KNL to modify the very environment it was studying?

When questioned how this could possibly be justified, city planner Guy Bourgon responded that KNL was being allowed to proceed with the subdivision in the portions of Stage 2 that did not require a water diversion.

In the same letter Bourgon also admits that the City could not tell exactly where that watershed boundary was (even though they were simultaneously giving KNL the green light to proceed) and adopts the position that the forest must be cleared to find the watershed boundary!

How could it be that a professional engineer such as Bourgon was unaware that the City of Ottawa possesses high resolution ‘Digital Elevation Models’ (DEMS), which can be used to produce high resolution elevation maps, and can depict watershed boundaries to a high degree of accuracy?

  • DMS technology is generally capable of producing a horizontal resolution for these DEMs of approximately 1-10 meters and a vertical resolution of approximately 25 cm.
  • An entire library of DEMS maps is also available to every municipality in Ontario from the Ministry of Natural Resources (MNR), having a horizontal resolution of 10m, that is specifically intended for the purpose of mapping hydrological features such as a watershed boundary.

Did Bourgon fail to explore the use of DEMS information, or is it possible that he mislead elected officials and public in his response?  Assuming Bourgon was genuine in his response and was not aware of digital mapping technology, why did the City ignore the subsequent offer of the services of a professional cartographer from the Canadian Parks and Wilderness Society that offered to map the watershed boundary at no cost without removing trees?  Wouldn’t that have been more prudent given that this question concerned one of the highest rated ecological areas of Ottawa?

It would appear that the City is so eager to piecemeal approvals that, not only can a developer proceed with phases of a subdivision that are not directly dependent on a water diversion, a developer can even proceed with phases that are dependent on it as long as they can further piecemeal it into smaller pieces that aren’t!

4

Early Discrepancies Ignored

KNL retained the services of the engineering firm IBI Group to prepare a servicing study in 2006 which originally encompassed all the Stages of the subdivision.   Presumably KNL selected IBI because IBI had previously merged in 2004 with Cumming Cockburn Ltd (CCL)  who had done the SWM studies for Genstar, the developer that KNL had purchased the subdivision rights from in 2000.

Waiting for an EA would have meant that KNL could not proceed with any subdivision construction until its entire SWM plan was approved.  IBI did a second, apparently piecemeal, study for just Stage 1 in March – May 2007 (Kanata Lakes North South of Kizell Pond Serviceability Study) that supported the City’s decision to proceed with Stage 1 on the south side of Kizell wetland.

It appears that the City’s planning staff paid little attention to the two servicing studies done by IBI when deciding to piecemeal the approval of KNL’s SWM plan.  Had they done so they would have realized there is a 1 m difference in the assumed water level in Kizell between these two studies!

Such a significant discrepancy between these two serviceability studies is an indication that something was likely wrong with one or both models.  Engineering drawing number 5004 from the 2007 study, shows that it was modified from its 2006 original version – with no engineering change record identified on the drawing.  These drawings show different water levels for Kizell wetland and also differ in the boundaries of Area 10A (which drains to the Carp River) as illustrated above.

Notice how the 2007 permenent water elevation for Kizell is lower than in 2006 by about 3 feet (1 m).  The 2007 result suggests that there is considerably more storage in Kizell wetland than was determined by their 2006 modeling (thereby arriving at a lower elevation for the water – you might visualize this as different sizes of bathtubs holding the same volume of water – the water level is lower in the larger bathtub which has more storage).

This is particularly curious given that there were no physical changes to the Kizell wetland between 2006 and 2007.  However, Drawing 5004 in the 2006 study indicates that berming was to have been performed in the west side of the wetland – presumably to prevent spillage to the Carp River and to create extra storage up to 94.5 m.  Although this berm is also shown in their 2007 version, the Phase 1 Report (Section 7 item 3) states that no berm was built!

In August 2010, leaders of the community met with planning staff asking for confirmation that sufficient capacity existed in Beaver Pond given flooding earlier that spring.   The South March Highlands – Carp River Conservation (SMHCRC) non-profit organization had noticed this discrepancy in the two KNL studies and, along with the Kanata Lakes and Beaverbrook Community Association, opposed the planned clear cutting Beaver Pond Forest for Stage 2 (aka Phase 9) which would increase runoff into Beaver Pond.

It was only in Oct 2010, long after the approval was given to KNL for Stage 1, that the City published a Notice of Commencement for an EA regarding this water diversion. The City put a P.Eng, Darlene Conway, in charge of the study and retained the services of the engineering firm AECOM to do the hydrological analysis.

5

Why is an EA Necessary?

The MCEA Appendix 1 clearly lists “Construction of a diversion channel or sewer for the purpose of diverting flows from one watercourse to another.” as requiring a Schedule C EA.

Under the Ontario EAA there are several types of EA:

  • Schedule A (pre-approved) are short and cursory with no need to engage the public because it is assumed that other legislation (such as the Planning Act) governs them, or that they have insignificant impacts;
  • Schedule B requires limited public engagement and is intended for relatively simple undertakings such as the expansion of existing facilities;
  • Schedule C requires extensive public engagement due to their complexity or significant environmental impact and is typically used for the establishment of new facilities (such as KNL’s storm and sanitary sewer system).
  • Full EA which is done outside of the class process requires very extensive public engagement.  This is required whenever the proponent is not a municipality or other government body, or as ordered by the Minister of the Environment (MoE).

A water diversion across a watershed boundary is not a simple matter.  Every landowner that owns property that touches either the waterway that will lose water, or that will receive water, has “riparian” rights to water under well-established Common Law that dates back centuries.

This is affirmed in the findings of the National Capital Commission’s (NCC) Watt’s Creek Report done in 2011 by Stantec (click on the picture below to read the text).

Precipitation is the main method by which water courses are recharged with water, so the diversion of storm water can have a significant impact on both the subwatershed that loses storm water as well as the one that receives it.  Since water diversions can result in denial of water to landowners on one side, and flooding or erosion of landowners on the other side, the MCEA requires significant public engagement in any proposed project that involves a water diversion.

In summary, KNL has no exclusive right to drainage for the stormwater that does not naturally drain to the Kizell Drain/Watts Creek watershed.  This is a well-established legal principle regardles of whether a Class EA supports the diversion or not.  Legally, any landowner must obtain the consent fo all downstream riparian landowners in both the watershed being diverted from, as well as the watershed diverting to.

6

Kizell Always was a PSW

Then there is the fact that the entire area is environmentally sensitive!

In 1994, a study of the Kizell wetland mysteriously omitted any scoring for significant features (such as rare or endangered species of plants and animals), nor did it include any score for aboriginal cultural heritage (there is no evidence to suggest that the Algonquin First Nations were even consulted by them).

This is particularly mysterious because the Kanata Lakes NEA Study done in 1992 for the Regional Municipality by Daniel Brunton study covered the Kizell wetland specifically for the purpose of identifying significant natural features. Brunton found that:

Almost 500 vascular plant species were recorded, including many species found virtually nowhere else in the Regional Municipality of Ottawa-Carleton.

Some people might wonder whether the authors of the 1994 study were incompetent or were otherwise motivated to not find anything significant.

Amazingly, neither the City planning staff who commissioned the Brunton study, nor the staff at the Ministry of Natural Resources (MNR) who read both reports noticed this massive discrepancy either.

This omission had the convenient effect of Kizell scoring 582 out of the 600 necessary to be designated as a Provincially Significant Wetland (PSW) and cleared the way for developers who wanted to use Beaver Pond and Kizell as SWM cells.

In 2011, after pressure exerted by the SMHCRC, the Kizell wetland and Beaver Pond were finally properly evaluated by the City and subsequently recognized by the MNR as constituting a PSW.

Ontario’s Provincial Policy Statement (PPS) requires storm water to be treated PRIOR to entering a PSW. This means that KNL should re-mediate the development that has already occurred in Stage 1 (aka Phase 6) on the south side of Kizell wetland to ensure proper treatment of storm water.

It is possible that KNL might argue that the prior approval of Stage 1 grandfather’s it from complying with the PPS.   If so, such a line of argument would conveniently overlook:

  • the fact that the piecemeal approval of the SWM plan appears to have been in contravention of the Environmental Assessment Act at that time,
  • that the subsequent Certificate of Approval for the SWM works in Stage 1 may have been based on potentially false engineering modeling results (see tab 11),
  • that Condition 62  of subdivision approval requires KNL to minimize its disturbance on Kizell wetland.

7

Who Should be the Proponent for the EA?

Over the intervening years, due to the lack of regulatory protection as the result of the flawed 1994 Kizell evaluation, Beaver Pond has already been used as a storm water management facility for the Kanata Lakes community.  In fact the dredging of Beaver Pond in the mid-90s probably led to the extirpation of the Eastern Musk Turtle, a species-at-risk, which used to be common in the Beaver Pond area and hasn’t been sighted there since dredging occurred.

Consequently, Beaver Pond has been “owned and operated” by the City for over 20 years.  So the City legitimately chose to be the “proponent” for the EA.

The 40% Agreement between KNL and the City legally binds them for the purposes of development in the South March Highlands.  Under that agreement, originally negotiated with Campeau in 1981, Campeau and its successors (Genstar and KNL) must cede 40% of “open space” to the City for the purposes of SWM ponds, roads, schools, hydro lines, and parks.

As a result, we have the unusual situation where the City is legally the beneficiary of development under the 40% Agreement currently being pursued jointly by the City and KNL.  Pursuant to that agreement, the City has also come into ownership of several parcels of land, including the Beaver Pond SWM facility.  That satisfies the test of proponency required by the MCEA.

Since the cost of the EA is being paid for via development charges levied on KNL, it appears that the EA is now proceeding above-board even though it was started 3 years late.

The Ministry of Environment (MoE) shares a similar view as their Regional Office affirmed in 2010 the City’s decision to proceed as a proponent, stating that they had no issue with the City proceeding  with being a proponent for a Schedule C EA.

In that letter, the MoE also confirmed that the “integration provisions” did not apply in this case.  The “integration provisions” of the MCEA allow projects to be downgraded to a Schedule A if they are subject to the Planning Act and have insignificant environmental impacts, or non-complex considerations.

To-date no public engagement in the City’s EA has occurred despite the fact that it was promised to the public and was clearly planned by the City as evidenced by the workplan prepared by AECOM at the start of the project.

According to the MoE website on the EA process, “The EA program ensures that public concerns are heard. …. Public consultation is mandatory and the public is encouraged to get involved in an EA process.”

8

Why the Secrecy?

The first phase of any EA is a comprehensive study that documents existing conditions.  This creates a baseline from which the development proposal can be assessed for its environmental impact and also sets the context for gauging how potential mitigation measures can be assessed.

Since Stage 1 (aka Phase 6) was already substantially developed by KNL by the time that the City got around to doing the EA, AECOM correctly studied this portion of the subdivision as “existing condition” and treated the remaining Stages 2 – 4 as future development.

Since KNL’s prior work was done by a different engineering firm (IBI) this created the rare situation where the City conducted an independent review of the accuracy of a developer’s prior engineering work.  It also provided the public with an opportunity to validate whether or not the developed portion of the subdivision is actually in compliance with the approvals given.

Even though Phase 1 of the EA completed in April 2011 and the draft report was prepared in May, it appears that the City stonewalled the release of the findings to the public until December 2011.

It appears that not only did the City attempt to keep both the interim and final results from the public, but they apparently also stonewalled access by the NCC who is one of the many riparian landowners affected by upstream development in the SMH.

  • The NCC conducted a study that was published in Jan 2011 confirming the environmental sensitivity of Kizell/Watt’s Creek to the health of the Greenbelt.
  • Accordingly, the NCC had asked the City for the results of the Phase 1 Report but obtained their copy only as a result of downloading it from this website!

Several women had babies in less time than it took to force release of public information via access to information requests.  Why?

The Phase 1 Report found that KNL’s Stage 1 is NOT in compliance with either its previously submitted plans or the approvals prematurely given to them.  Not even close (as you will see in tab 11).

Ooops.

9

Why the Cover-Up?

Instead of disclosing the findings publicly, the City held a meeting in August 2011 between the City’s senior planning staff, led by John Moser, and with IBI and AECOM:

  • The minutes of this meeting were released in Appendix A of the Phase 1 Report and provides an account of what appears to be an attempt by IBI to question AECOM’s modelling.
  • The minutes indicate that AECOM successfully defended IBI’s questions and a detailed comparison of the draft and final versions confirms that AECOM did not modify the results.
  • The minutes also show that IBI in the end agreed with AECOM’s findings.
  • The minutes also reveal that the City’s project manager for the EA, Darlene Conway, was mysteriously absent at such an important meeting.

If the City wanted to review the results of the draft report with IBI, which was available in May 2011, why wait until August to hold the meeting when many people are usually on vacation?

It is possible that the project manager would have opposed having a meeting with KNL while simultaneously avoiding a meeting with the public.  In a letter from Conway dated October 12, 2010, the City promised that public consultation would occur when the Phase 1 Findings were available:

There will be an Open House at which the results of the phase 1 work will be made available for the public to review and comment upon…

Having previously declared that a public review of Phase 1 would occur, the City’s project manager would have been bound by her professional obligations to provide the public with the same opportunity to review the draft in a timely manner.  The Code of Practice for Class Environmental Assessments which affirms that ALL stakeholders should be treated fairly and equitably:

Consultation with interested persons is a cornerstone of the class environmental assessment process and is a legal requirement of the Environmental Assessment Act. The applicant and proponent should seek to involve all interested persons as early as possible in the planning process so that their concerns can be identified and considered before irreversible decisions and commitments are made on the chosen approach or specific proposals. …

The class environmental assessment process should be open and transparent. …

Means of achieving transparency can include, but are not limited to:

• Sharing complete information with all interested persons to support conclusions and recommendations at each phase in the process;

… proponents have a responsibility to provide appropriate information to interested persons in a timely manner …

[Verbatim excerpts from the Code of Practice]

10

Why Try To Downgrade the EA?

The City may respond that the fine print in the MCEA says that review of a Phase 1 EA report does not have to engage the public (unless the proponent chooses to do so in its terms of reference for the project).  However, AECOM’s workplan that was prepared in accordance with the terms of reference demonstrates that the City intended from the outset to consult with the public at the end of Phase 1.

So why did the City only meet with the developer while apparently keeping other stakeholders (community, interested persons, NCC) at bay?  Is it possible that Moser could have been meddling in engineering matters even though the City is supposed to be leaving all engineering accountability to professional engineers?   If Moser is not a P.Eng, did he violate the Professional Engineers Act if he did so?

Currently, there appears to be an attempt by KNL and City planners to drop the EA investigation in favour of relying on the completely opaque subdivision approval process.  It is very telling to read in Appendix A that IBI actually proposed that an EA was not necessary because “a suitable stormwater strategy can be determined through the current development process”.

Presumably that would be the same development process that has led us to the point where existing conditions are not compliant with the approvals given.  The minutes also state that IBI and the City will “follow-up” regarding the applicability of the EA process.

Subsequently, according to a conversation with the MoE’s acting Regional Manager, City planners have enquired about whether the Schedule C EA can be downgraded to a Schedule A – presumably to avoid further public scrutiny.

As previously mentioned the MoE  Regional Office has already said that they have no concerns with the City’s approach to the EA.  So it remains to be seen whether the MoE will flip-flop in response to what appears to be an attempt to cover-up by downgrading the EA to a Schedule A.

 11

Non-Compliance

The Phase 1 Report identifies that there is considerably less storage capacity in both Kizell wetland and Beaver Pond than what was used to justify the piecemeal approval of KNL’s Stage 1 development in 2007.  The blue line in Figure D-4 from the Phase 1 Report (shown below) depicts IBI’s 2007 model which predicts a more gradual rise in water elevation than the red line computed by AECOM.  The horizontal axis shows the amount of water storage in Kizell wetland at each elevation shown on the vertical axis.  From the graph, it is evident that there is about 74,000 cubic metres of less capacity because the red line rises so much faster than the blue line and because at the regulated max elevation of 93.3m the AECOM curve shows approximately only 12,000 cubic metres compared to approximally 86,000 cubic metres estimated by IBI.  A similar Figure D-5, in the report shows a shortfall of about 50,000 cubic metres in Beaver Pond.

Significantly Less Capacity in Kizell

As a result of this lack of capacity the Phase 1 Report shows that water will actually flow over Goulbourn Forced Road (GFR) and exceed the design limits of Beaver Pond Dam during a heavy rain fall. Water from Kizell will also spill in the opposite direction into the Carp River whenever more than 107 mm of rain falls in a 24 hour period.  The illustration below summarizes the results found in Table 1 of the Phase 1 Report and focuses on Scenarios 11 & 12 in the Phase 1 Report (Existing Conditions 107mm and 148 mm rain) as well as Scenarios 14 & 15 (Phase 9 with similar rain levels).  (Note that in the scenarios where the Phase 1 Report predicts an overflow, you need to add the overflow to the max outflow of the facility to arrive at the total flow. For example, total flow at Beaver Pond dam is 1.60 cubic metres/sec that it was designed for plus an overflow of 2.95 cubic metres/sec for a total of 4.55 cubic metres per sec).

Note that BOTH Beaver Pond and Kizell Wetland lack the necessary storage capacity to meet the Ottawa Storm Design Criteria (if they had sufficient capacity, their water levels and flow rates would not exceed the level approved by the MoE).

IBI, by agreeing on Aug 15 to the findings of the new report, appears to have tacitly admitted that their 2007 study was significantly flawed in claiming that there is 89,825 cubic metres of storage in Kizell Wetland when in fact the graph above shows that there is actually about 1/7 that amount!

So it appears that the MoE authorized Certificate of Approval (C of A) issued in 2007 for KNL Stage 1 (Phase 6) was based on such highly inaccurate data that you might wonder whether or not it was deliberately misleading.  In total, the Phase 1 Report shows that over 124,000 cubic metres of storage necessary to meet the Ottawa Storm Design Criteria is simply not present (74,000 in Kizell and 50,000 in Beaver Pond).  Large numbers are often difficult to visualize, so imagine every seat in the Scotiabank arena occupied by a person 1.5 feet wide and deep (ok a fat person like me) and 6 feet tall.  This is approximately a cubic metre.  Since the arena has a max capacity of about 19,150 seats, it would take about 6.5 Scotiabank arenas to seat this volume of missing storage.

Since there was no change to either Beaver Pond or Kizell between the IBI study in 2007 and the AECOM study in 2011, it appears from the Phase 1 Report that the IBI model was spectacularly wrong.

  • The inaccuracy might have been caught before Stage 1 was built had the City performed an EA prior to applying for approvals in 2008.
  • In the COA letter of application, Bourgon states that no EA was required because the facility was built prior to the EA Act being passed in 2007.
  • Yet when later challenged in a meeting held with community leaders during the week of Aug 8, 2010 about the lack of EA, Bourgon subsequently claimed (without providing any further substantiation) that an EA had been done previously.

Yet:

  • there is no public record of such an EA (which would have required a public Notice of Commencement),
  • nor is there any reference to it in any engineering study or any other EA done in the South March Highlands (SMH),
  • nor did Bourgon cite such a document in his application to the MoE for the C of A,
  • nor is one referenced by the EA Phase 1 Report finally done by AECOM.

What is the duty of a P.Eng. in cases like this when phases of subdivision are being apparently being piecemealed?

12

Tsunami Type Water Flow

The Phase 2 Report by AECOM shows that under the Ottawa Storm Design Criteria the EXISTING conditions result in an outflow from Kizell that is 4x larger than the 1.16 cubic metres/sec and from Beaver Pond at a rate that is 5x larger than the 0.96 cubic metres/sec allowed in the C of A.  The whole point of the Ottawa Storm Criteria is to ensure that existing conditions are always within provincially established limits which are based on the peak rainfall within a 24-hour period during the past 100 years.

Water Flow Rates - Existing Conditions

The maximum flow rate from Beaver Pond down Kizell Drain was established by the 1999 Subwatershed Plan, so are hardly a new target for KNL to comply with.  (Similar limits date back in 1984 when the first studies were done by CCL.)  In fact, KNL’s conditions of subdivision approval specifically requires compliance with the Subwatershed Plan (Condition 59) and in accordance with provincial regulations (Condition 60).

The 2011 Watts Creek Study done by the NCC independently confirms the targets in the 1999 Subwatershed Plan as being crucial for the health of the Greenbelt.  So there is no possibility that the requirements established in 1999 are out-of-date.

The Phase 1 Report estimates that the wall of water flowing over Goulbourn Forced Road could be as high as 2 1/2 feet and over 182 feet long.  This is visualized in the report as a series of rectangles of increasing size that correspond to the flood level elevations in the report.  Note the table on the left that shows that 40.5 meters of roadway will be over-topped when a flood elevation of 93.5m is reached.

This tsunami-style overflow would be dangerous to motorists during or after a heavy rain, just as it was on Terry Fox Road in July 2009 in the following photo taken by Jesse Dean for CTV news.

There is also no excuse for non-compliance, and there is even less excuse for this ongoing litany of bad approvals by City staff.  The resulting public safety hazard is unacceptable.

13

Unapproved Water Diversion

As previously discussed, the Phase 1 Report shows that the main cause of the discrepancy is the significant lack of available storage in both Kizell wetland and Beaver Pond.

A contributing cause also appears to be the absence of on-site detention of storm water within 57 ha of Stage 1 (Phase 6).  All subdivisions are supposed to have on-site water detention and KNL comes up short.  All of Area 10 in the chart below is supposed to have on-site detention and has none. Table C-1 in the Phase 1 Report confirms that the size of Area 10 is 56.8 ha.


How did this happen?  The AECOM report shows that the area originally studied by IBI (CCL) for Genstar back in 1994 had either erroneously mapped the catchment area (as seen in the redlines below), or that subsequent to 1994 the catchment area was changed by subdivision development.    As can be seen on the west side of the map produced by AECOM (below), most of Area 10-2 (18 ha) and significant portions of Area 10-4 (14 ha) and 2A (29 ha) were changed since 1994.

The 1999 Shirley’s Brook Watts Creek Subwatershed study done by Dillon Consulting indicates that the original subwatershed boundary was irregular and not a straight line as shown on the western edge of Area 10-A and 10-4. The map of the relevant area in the Subwatershed Study can be seen as the black boundary line inside the red oval below on the top left side of the illustration shown below.  This more or less aligns with the red line in the figure above.

14

Who Approved the Change To Watershed Boundary?

KNL purchased the development rights to the area from Genstar, in 2000 and subsequently IBI appears to have changed the watershed catchment area to align it to the subdivision boundary.  IBI’s 2006 Servicing Study (shown below) indicates that both the major and minor storm systems flow into Kizell and Beaver Pond.  The “minor system” is the storm sewer system which in Ontario is designed to handle the peak rainfall in a 5 year period.  The “major” system is a controlled flood that typically runs along roads when the minor system surcharges (reaches capacity).  The major system is basically determined by how the roads and lots are graded in a subdivision.

According to the MCEA, IBI’s proposed realignment of the Carp watershed boundary should have been subject to an EA in 2007.  This is in addition to studying the effect of the water diversion across Shirley’s Brook to Kizell.  In other words, KNL’s subdivision plan required a water diversion involving 3 watersheds (Carp, Kizell/Watts Creek, Shirley’s Brook)!  This should have been in the same EA that the City avoided when it piecemeal approved Stage 1.

It is possible that IBI may have at some point during the construction of Stage 1 discovered that too much water was going to flow into Kizell and that the missing berm might be problematic since it might otherwise have mitigated some or all of the spillage to the Carp River.  You might wonder whether IBI discussed this problem with KNL.

In any event, the Phase 1 Report also reveals that KNL’s Stage 1 is diverting water from 10 ha of land in the Kizell watershed into the Carp watershed (shown as area 10-A in the first map above).  In area 10-A, the major system routes water to the Carp, but the minor system routes water to Kizell.  The diversion of the major storm from Area 10-A appears to conveniently take some of the pressure off of the missing storage in Kizell.

So what is going on?  We seem to have a situation where (a) the original diversion of water from the Carp to Kizell as proposed in the 2006 plan was not correctly approved and (b) it appears that KNL is not even implementing that plan anyway!

Bottom line is that the situation is entirely out of control.  There are no approvals for any of these diversions, nor were any engineering or environmental impact studies ever done.

Does that also imply that the professional engineers at IBI who diverted water without approval may have acted inappropriately in what appears to be a possible violation of the MCEA, as well as possibly  the Ontario Water Resources Act which prohibits the removal of more than 50,000 L per day from a watershed?

This diversion of major system flows from Area 10-A directly affects the Richardson Ridge Subdivision and, according  to Figure 2 in their 2007 Servicing Study, the cumulative effect of those extra flows is not included in their SWM planning.  This illustrates the problem of not having a proper approval process.  If the City was not impeding public access to Regional’s SWM report we might be able to tell whether or not this extra drainage is accounted for in later studies, and if not, whether there is sufficient capacity in their plans for this unexpected water volume.

The Carp River Corridor was the subject of an MoE Minister’s Order at the time that the approvals for Stages 1 and 2 were piecemealed.  It would appear therefore that none of this water diversion is accounted for in the Third Party Review of the Carp River engineering models, the City is ignoring these findings and is currently pressing for zoning approvals in Kanata West based on obsolete data.

The dominoes are falling and affecting other developments.  When will the mayor act in the interest of public safety, hold City management accountable for this mess, and implement a proper approval process that does not piecemeal SWM plans?

15

Existing Beaver Pond Hazards

In 1985 Beaver Pond dam was designed to have an internal weir at 92.55 m and an emergency spill at 93.2m, meaning that it can regulate downstream water flow out of Beaver Pond and into Beaverbrook’s Kizell Drain to 0.96 metres/sec as long as water elevation in Beaver Pond is less than 92.55 m.  Anything over 92.55 m would cause an uncontrolled outflow of water into Beaverbrook and the Marshes Golf Course via Kizell Drain.  The Phase 1 Report confirmed that the existing design is still true today.

According to the Phase 1 Report, during a heavy rain, the extra water arriving in Beaver Pond under existing conditions will cause water levels in Beaver Pond will rise to 92.85 m, exceeding its design and spilling through the emergency overflow, causing an uncontrolled outflow into Kizell Drain into Beaverbrook of  4.55 cubic metres per second (5 ft x 5 ft x 6.4 ft every second).

This violates the C of A by a factor of 4.7x and is incompatible with the safe maximum allowed flow in both Kizell  and Beaver Pond established by the 1999 Subwatershed Plan and affirmed by the C of A.  According to the Subwatershed Plan, flow rates higher than the maximum allowed will cause significant erosion (which in turn causes many other problems downstream) as well as aggravating flood hazards by clogging drains and causing water backing up at culverts under roads.  This erosion risk was also confirmed by the NCC in the 2011 Stantec Study mentioned previously.

It is essential that water levels never be allowed to increase because homes have been built over the years assuming that the City would not permit water levels to exceed a maximum level.

Immediate Flood Risk

According to the Phase 1 Report, Chapter 7 Summary of Findings, para 4:

The corresponding Beaver Pond water levels also exceed the quantity control elevation identified in the MOE C of A and Kanata Lakes North Serviceability Study, KNL Developments (IBI Group, 2006) under ultimate development conditions (92.60 m).

This is quite an understatement given the immediate hazard to those who live adjacent to Beaver Pond.  Approximately 33 properties having an elevation of less than 93.5 m are in immediate risk of flooding due to the projected increase in flood elevations during a heavy rain.

  • Kanata Rockeries – 2 lots at risk
  • Ironside Court – 8 lots at risk
  • Cecil Walden Ridge – 8 lots – 7 appear to have basement elevations < 92.85 m
  • Hansen Ave – 15 lots at risk

The immediate risks can occur whenever more than 106 mm of rain falls and the consequences can range from flooded backyards causing property damage to flooded basements causing both property damage and long-term health hazards due to potential mold and fungus.

So why hasn’t the City warned those residents?  What has the City been doing to rectify these problems since they became known over 9 months ago?

16

Cumulative Flood Risk Affects Entire West End

In addition to the immediate risk is the cumulative risk of sewage backup as a result of storm water flowing down basement drains in flooded basements.  These drains are connected to the sanitary sewer system which, in most parts of Ottawa, is separate from the storm sewer system.

The underlying problem is that sanitary sewer system in most of Ottawa is near capacity and any extra stormwater entering via basement drains can easily cause the sanitary sewers to surcharge and back-up into basements.

This cumulative risk is confirmed by the West End Flood Investigation that found that many more homes beyond the immediate area of flooding may be at risk due to the fact that even a few flooded basements can overload the sanitary sewer system.  In July 2009, nearly 1500 homes were flooded across Kanata, Stittsville, and Carp because stormwater entered basement drains in some homes in Stittsville.  The investigation revealed that such a widespread impact was possible because the entire west end of Ottawa shares the same, near-capacity, sanitary sewer system.

Beyond flooding basements, the greatly increased outflow from Beaver Pond may cause surface flooding issues downstream in Beaverbrook and Kanata Research Park.  Some Kanata residents are also concerned that the original outflow target was established to prevent flooding a the former Atomic Energy of Canada nuclear facility which is now occupied by Nordion.

So flooding in Beaver Pond could affect far more homes than the ones immediately at risk near Beaver Pond.  The cumulative risk caused by KNL exceeding its C of A could possibly affect a thousand homes in Kanata, Stittsville, and the Village of Carp.

Perhaps instead of spending over a $billion on unnecessary and discretionary projects such as Landsdowne Park and a bus tunnel downtown, Mayor Watson should focus on fixing the far more serious and less sexy infrastructure problems that create widespread risks such as this.

17

Existing Carp River Hazards

The Phase 1 Report shows that Kizell wetland will overflow into the Carp River (in addition to the 10 ha diversion of water) and appears not to be accounted for in any of the Carp River flood models done by the Third Party Review ordered by the Minister of the Environment.  The Carp River model currently predicts that the Carp River will only be 2 inches less in elevation than Kizell wetland during a heavy storm.

If the Carp River model is in error, (the City’s own engineers have publicly raised many questions about the adequacy of the modeling parameters used in them and the City has declined to make the model and its data available to the public), there is little margin for error before the Carp spills into Kizell wetland and on down into Beaver Pond.  So which way the spillage will go in a heavy rain is anyone’s guess.  The Phase 1 Report says that Kizell will spill over into the Carp, but according to section 3.1 of their report, it appears that AECOM did not review the Carp River Models, or the TFDE SWM model, or the Richardson and Broughton Ridge SWM models which all “manage” the stormwater flowing into the Carp under the same assumed rainfalls.

If AECOM is right, the spillage from Kizell into the Carp watershed could aggravate flood risk everywhere upstream from, and including, the Village of Carp (which is the point of “sufficient outlet” according to a 1907 ruling which designated the Carp River above the Village as a Municipal Drain).

The Richardson Ridge development (owned by Regional Group) that lies between KNL’s development and the Carp River also appears to have problematic SWM planning due to the City’s piecemeal approval process.  The City approved the Regional’s development on the assumption that the SWM facility could be located in the floodplain of the Carp River – even though there was no supporting data, or policy argument supporting that decision.  To the contrary, Section 3.1 of the PPS specifically directs development and site alteration away from floodplains.

During an OMB challenge by the SMHCRC, the City identified that Richardson Ridge would proceed on the basis of a temporary SWM solution pending the permanent determination of where this facility could be located. It seems that the OMB has no difficulty in piecemealing approvals either as it decided not to rule on the challenge from the SMHCRC.

The Phase 1 Report shows that part of KNL’s Stage 1 will cause stormwater to flow into Richardson Ridge Subdivision whenever KNL’s minor storm sewers overflow (surcharge).  This major system flow is not included in the Richardson Ridge SWM plan and needs to be for public safety reasons.  Otherwise it is not known where this water will flow, or whether the SWM plans for Richardson Ridge have sufficient capacity to handle it.

Meanwhile City planners are proceeding with a rezoning of the flood fringe in the portion of Kizell wetland that is immediately east of Terry Fox Drive and adjacent to Richardson Ridge.  It appears that the City’s solution to the Richardson Ridge SWM problem is to simply “remove” the pesky floodplain via rezoning.  It is possible that Moser has never heard of King Canute who taught that he could not simply command the waters to go away.

Where is the Mississippi Valley Conservation Authority (MVCA) in all of this?   They are supposed to be the guardians of flood plains, yet appear to be willing to sit idly by while Ottawa drowns itself.

As a case in point, the City applied to the MVCA for a Fill Permit for Terry Fox Drive Extension (TFDE) in 2010 stating that approvals would not be necessary under the Planning Act (allowing the City to skip a few steps in the process in their hurry to build TFDE).   But less than a year later, the City is currently processing Zoning Bylaw approvals under the Planning Act that overlap with the same area!

Is there no respect for provincial regulation in Ottawa?  Why are provincially funded authorities in the MVCA, MNR, and MoE doing nothing to enforce provincial regulations?

18

Ottawa Storm Design Criteria vs Actual Observed Rainfall

Storm Water Management (SWM) design in Ontario is only obligated to ensure that subdivisions are designed to handle a so-called “100-year storm” event.  In Ottawa, this regulation is well-documented (2004 Ottawa Sewer Design Guidelines) as the Ottawa Storm Design Criteria and equates to 106.7 mm falling within a 24-hour period as calculated by a statistical regression algorithm.

However, a higher amount of rainfall actually occurred in Ottawa during July 22 – 24, 2009.  Note that the map below shows that heaviest area of rainfall for the most part narrowly missed the South March Highlands.  During that time 148 mm of rain fell over a 3-day period.  While this did not exceed 107 mm of rain in any single 24-hr period, the total amount of rain over 3 days caused more havoc than expected.  As previously mentioned, nearly 1500 homes were flooded in the west end during that rain storm.

Had that amount of rain fallen in the SMH, the Phase 1 Report Scenario 12 shows that the water levels would have risen in Kizell to the point where Kizell wetland would have spilled into the Carp River at a rate of 1.28 cubic metres per second in addition to creating tsunami-like conditions as water spills over Goulbourn Forced Road into Beaver Pond.

The Phase 1 Report also clearly shows that a July 2009 equivalent storm occurring in the SMH under existing conditions will result in a water level of 93.03m in Beaver Pond, a number that is considerably higher than the flood elevation that it was designed for.

The report documents that 17.50 cubic meters (618 cubic feet = 8 x 8 x 9.7 ft, roughly the size of a large garden shed) of water will spill over Beaver Pond dam every second during a rainfall that is comparable to what occurred elsewhere in Kanata-Carp in July 2009.

The City may respond that it is only obligated to ensure that subdivisions are designed to withstand the Ottawa Storm Design Criteria.  But KNL’s Phase 6 development doesn’t even do that.

Since the 148 mm that fell in July 2009 is an observed storm, it calls into question why the Ottawa Storm Design Criteria has not been amended by provincial regulation.  Clearly looking at only a 24-hr window is too narrow, so why has the MoE not required development in Ottawa to include this type of storm event in their SWM plans?  Especially since everyone expects heavier storms to occur more frequently in future due to climate change.

19

KNL Has No Feasible Plan for Phases 7 – 9

The Phase 1 Report also shows, in addition to the problems with existing Phase 6,  that future KNL Phase 9 development north of Beaver Pond is infeasible as is any further water diversion due to the lack of capacity in Beaver Pond and Kizell wetland.

According to Scenarios 14 & 15, allowing Phase 9 to proceed means that a 107 mm storm would result in water levels in Beaver Pond of 93.1 m and create an uncontrolled flow of water gushing at 2.23 cubic metres per second down Kizell Drain into Beaverbrook.

A repeat of the July 2009 storm along with Phase 9 development would result in an even worse water level of 93.5 m and a 5.55 cubic metre outpouring.  As a point of comparison, virtually all of the backyard elevations along Hansen Ave. are around 93.5 m and could be flooded.

Since the Phase 1 EA Report makes it obvious that KNL’s current SWM plans are infeasible due to lack of capacity in Kizell wetland and Beaver Pond, why hasn’t the City ordered a full stop on all site alteration for Phases 7 – 9?

What is Mayor Jim Watson Doing?

During the 9 months that the City has known about this hazard, it has done nothing to advise residents whose homes are in jeopardy.  Why have homeowners who are at risk not been advised by the City staff? Have staff forgotten that their salaries are paid for by these homeowner’s property taxes?

Nor has the City taken action to prevent the sanitary sewer system in the entire west end (serving all of Kanata, Carp, and Stittsville) from surcharging in the event of water entering the sanitary system via flooded basements in Beaver Pond.

Even though the City has known about the possibility of spill-over from Kizell since last March, none of these results appear to have been accounted for in the modelling done of the Carp River.  Instead the City decided to push ahead with Carp River Corridor development by publishing notice to finalize the zoning for the Carp River Corridor without apparently considering these results.

The broader question that affects all of Ottawa is how is it possible for the city’s senior staff to allow existing conditions to become worse?

  • Could it be that planning staff have been playing fast and free with approvals based on piece mealed engineering models?
  • Is it possible that it is a bad idea to rely solely on SWM models submitted by developers who have a vested interest in minimizing cost of SWM mitigation regardless of the consequences to other property owners downstream?

What action is the Mayor taking to reign in out-of-control development and to hold those accountable for it?

The root of the problem seems to be with the planning department that appears to rely on piece meal development studies that ignore cumulative effects on surrounding areas to be approved.  These staff are led by senior management who have implemented an approvals process that appears to be designed to rubber-stamp development approvals as fast as possible – a broken process that the Mayor is now trying to accelerate for developments that include “green” features.  This will be like trying to accelerate a train wreck!

It is incredible that the planning process in City Hall is so broken as to allow this mess to be created in the first place.  The citizens of Ottawa deserve better planning and much more professional engineering work than what has occured to-date in the South March Highlands.

Should City Manager Kent Kirkpatrick and his Director for Planning, John Moser, be held accountable for what appears to be a breach of their duty to serve the interest of the public?

20

Call to Action

It is URGENT that the problems with KNL’s development get resolved ASAP because we are talking about risk due to EXISTING CONDITIONS!

  1. ALL KNL development activity must stop until this gets sorted out – including the Phases 6 development that is nearly complete on the south side of Kizell as well as ongoing work in Phases 7-9.
  2. The missing site-detention of storm water must be added to Phase 6 without impacting the PSW in Kizell since the subdivision must be brought into compliance with the C of A and PPS.  Since the missing berm cannot be added now without adversely affecting the wetland, another solution must be found ASAP to eliminate the increased flood risk to residents.  This may require on-site detention to be added within Phase 6.
  3. All site alteration in Phases 7-9 (including further deforestation and stumping which reduces the ability of the forest to soak up water), must be halted until such time as KNL is able to present a SWM plan that demonstrates to the community that it is feasible and does not rely on more water diversion.
  4. Due to interaction between the Kizell and Carp water systems, the KNL subdivision, and its cumulative effect on the Broughton, and Richardson Ridge developments must also be added to the Carp River Corridor flood analysis.
  5. The effect of the unapproved realignment of the Carp watershed boundary must be added to the scope of the existing EA being conducted by the City on KNL’s water diversions.
  6. The unapproved realignment of the Carp watershed boundary and water diversion of 10 ha from Kizell to the Carp River needs to be included in the Richardson Ridge SWM plan and KNL should be required to pay for the extra costs incurred by Regional Group to do so.
  7. An investigation should be launched to determine whether engineers at IBI acted appropriately in preparing their 2007 study as well as seemingly not obtaining all necessary approvals for that realignment and water diversion.  Also whether or not they fulfilled their oversight responsibility in ensuring that the missing berm was constructed by KNL.
  8. In the interest of public safety, the MoE needs to order yet another hold on all development alongside the Carp River as well as the SMH until the big picture is better understood.
  9. The Mayor should ask the City Auditor and Professional Engineers of Ontario to investigate the actions of planning staff to determine whether the Professional Engineers Act was violated.
  10. City Council needs to review the criteria by which its Planning Committee issues approvals of subdivision plans.  More checks and balances need to be in place to prevent out of control approvals based on inadequate oversight by staff.
  11. The MoE needs to overhaul its criteria for stormwater planning so that it takes a broader view than simply 24-hrs of heavy rain.

All this is just yet another example of why developing the SMH is a bad idea.  The SMH is:

  • a major infiltration point for the Ottawa aquifer,
  • the most densely bio-diverse area in Ottawa, home to more than 20 documented species-at-risk and hundreds of significant species,
  • has unique geo-heritage value, and is of considerable cultural heritage value to the Algonquin First Nation,
  • is the source of the only two remaining cool-water streams left in the Greenbelt and these water-related issues have a direct impact on the NCC’s riparian rights.

When will the Mayor halt non-sustainable and infeasible development and act to protect the SMH?  Perhaps you should ask him by emailing him at <Jim.Watson@ottawa.ca>

3 Comments

Winter Kill in the South March Highlands

Green Reality, Legislative Gaps, South March Highlands

There are laws to protect nesting birds in Ontario, but incredibly no law protects nesting mammals!  This post uses tabs, so be sure to click on each one to see the entire article.

Protecting Birds

The Federal Migratory Bird Convention Act was passed as long ago as 1917 as a result of an agreement between Canada and the United States (the U.S. passed an identical act, the Migratory Bird Treaty Act, in 1918).  This law enables the Migratory Birds Regulations that further prohibit the destruction of nests for a wide variety of birds anywhere in Canada.  Penalties for violating the Act are stiff – up to $500 K for corporations and up to $100 K for individuals.

This effectively prevents the clearing of trees between April and the end of July in Ontario since it can be difficult to ensure that no breeding birds are nesting within a forested area.

In Ottawa, the City has published Standard Mitigation Measures that clearly sets out that no clearing of trees and vegetation is permitted between April 15 and July 31 unless a qualified biologist has conducted a pre-clearing survey within 5 days prior to the removal of trees.

Mammal Dens

In winter, most mammals either hibernate or den in a torpor-like state.  They will find dens (i.e. nests) for that purpose in trees, caves, fallen logs, or or create suitable dens in trees and other protected areas such as abandoned buildings.

Porcupine Den in South March Highlands

Hibernating mammals include bats, some species of ground squirrels, mice and several species of rodents,  some species of rabbit, skunks, chipmunks, woodchucks, ground hogs, etc.  Mammals that truly hibernate will slow their heart and breathing rates to conserve energy and allow their body temperatures to drop to near zero.  Many of these mammals will hibernate while pregnant so that they are ready to give birth by spring.

Many mammals that don’t truly hibernate will conserve energy by limiting movement by sleeping deeply and for long periods of time, but will wake up during warmer periods to find food.  Examples of these denning mammals include bears, raccoons, porcupine, some species of ground squirrels, shrews, mink, otter, fox, weasels, beaver, etc.

Some denning species will also slow their heart rates during sleep (but not as much as hibernating species), making them appear slow and lethargic when awake during winter.  Bears and raccoons are examples of species that do not truly  hibernate but come close to it.  Females of these mammals are also likely to be gestating over the winter so that they are ready to give birth when spring arrives.

Porcupine in Den

Vulnerable

Denning and hibernating mammals are as vulnerable as nesting birds.  If their dens are threatened, hibernating animals cannot be awakened to flee, and denning animals have no where to go during winter.

Many mammals have a limited range due to the territorial needs of others in its species.  For example a porcupine generally stays within a 100 m radius in winter and within 1.5 km in summer .  Most mammals will fight to defend their territory from invaders of their own kind.

Within it’s range, a replacement den may not be available and raw materials that could otherwise be used to construct a den (such as twigs, logs) are usually frozen or covered with snow.  This means that a displaced mammal is exposed to the elements.

Exposed Porcupine That Lost It's Den

The photo above was taken in Beaver Pond Forest shortly after tree clearing had begun in extremely cold temperatures.  Despite it’s protective fur, every non-hibernating mammal is vulnerable to cold during the dead of winter and can freeze to death without shelter.

Winter Clearing

The operator of heavy equipment, such as the one shown below employed by KNL to clear-cut the Beaver Pond Forest in winter, is not able to see if mammals are hibernating or denning and in any case is certainly not likely to exit the warm cab in winter to examine every tree prior to cutting it down.

Heavy Tree Clearing Equipment

The City of Ottawa’s mitigation guidelines state “Avoid the use of heavy equipment in wetlands and watercourses during the winter, when fish, amphibians and reptiles may be hibernating.” but is silent on the protection of mammals in winter when they are most vulnerable.

The City’s only mention of mammal protection is  “Avoid vegetation clearing during sensitive times of the year for local wildlife, such as spring and early summer (when many animals bear their young).” which ignores the winter-long gestation period for mammals.

Winter Kill

The result of winter tree clearing is inevitably death.  Either via direct injury caused by crushing the animal when the tree is felled by heavy equipment, or by freezing to death from exposure as a result of being homeless in winter.

Female Porcupine Frozen To Death

Based on the acreage  of the Beaver Pond Forest (30 hectares), and the average number of Porcupines within a given area (12 porcupines / km 2), it is possible to estimate the size of the porcupine population prior to tree clearing in Beaver Pond Forest to be approximately 4 porcupines.  A field study conducted immediately after tree clearing completed, located 3 of those porcupines and found 2 of them dead – both females who were likely pregnant and less likely to survive without shelter.

In other words, the winter tree clearing approved by the City and conducted by KNL killed at least half of the population of porcupines and possibly 2/3 of them (allowing for the possibility that there were only 3 at the outset).  Other mammals were undoubtedly killed too, however, porcupines are more readily found as they are less likely to be consumed by carnivorous birds and other mammals because of their quills.

So why do we have laws that protect nesting birds and not nesting mammals?

  • Why has Ontario not passed effective wildlife protection laws?
  • Why has the Canadian Wildlife Federation not pressed for protection of mammals?
  • Why does the SPCA not object to the winter slaughter of animals?
  • Why does the City of Ottawa authorize the winter slaughter of mammals, reptiles, and amphibians?
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No Bottom Line for the South March Highlands

Legislative Gaps, South March Highlands

The City of Ottawa is slowly moving towards a sustainability mindset. According to its Director for Community Sustainability, the City is considering wider application of so-called “Triple Bottom Line” decision-making.

Sustainability

Classical decision-making in the previous century viewed the economy in isolation of the rest of society and in a context that ignored the environment. As illustrated below, interrelationships between these 3 dimensions were rarely considered.  Limited consideration was given to overlaps between 2 of these dimensions and even more rare was a sustainability mindset in which all 3 were included.

Sustainability thinking is based on traditional North American Indian philosophy that situates the person within the environment and views the ecosystem around the person as a great circle encompassing both animal life as well as the different communities of man.  This philosophy is traditionally symbolized by a Medicine Wheel as illustrated below.

<<Note that this article uses tabs, click on each tab above to see all of it.>>

TBL

The Triple Bottom Line (TBL) is a term coined by John Elkington in his 1998 book Cannibals with Forks: the Triple Bottom Line of 21st Century Business. TBL is a concept that similarly situates economic decision making within a societal context, which in turn is situated within an environmental context.

A sustainable mindset acknowledges that our society exists within the environment and not independent from it. Similarly, our business decisions exist within the society that defines the economics for them.

Consequently we need to consider intangible value as well as tangible value in making sustainable decisions.  This is illustrated below:

Considering the intangible helps avoid the trap of McNamara’s Fallacy, however, it is still possible for businesses and governments to fall into the fallacy by relying only on measurable indicators when performing a TBL analysis.

An example of falling into the trap can be seen in the Australian Government’s TBL analysis of 135 sectors of the Australian economy.  Notice the reliance of only measurable indicators when assessing intangible factors — a classic symptom of falling prey to McNamara’s Fallacy.

Ottawa’s 4BL

With the caveat to be wary of McNamara’s Fallacy, TBL is certainly a step in the right direction towards sustainable decision-making.

Curiously the use of TBL in a municipal setting involves consideration of 4 (not 3) dimensions (4BL):

  1. Economic
  2. Environmental
  3. Social
  4. Cultural

The addition of a cultural dimension extends the influence of social factors.  The rationale for this is tenuous and appears to have originated in New Zealand.  In Canada, the concept seems to be gaining favour among various municipalities, including Ottawa.

According to the authors of the 4BL model, it was attractive to incorporate the 4 directions of the traditional medicine wheel as an aspect of their sustainability framework.  Evidently, there is much to be learned about sustainability from First Nations – even when it comes to creating a model for thinking about it in a holistic way.

Unfortunately, in the 4BL case this has been done in a way that hi-jacks traditional values and re-casts them in a way that inserts “money” at the expense of wildlife.  This recurring type of hi-jacking and revision of native symbols and philosophy is one of the causes of cultural genocide – and in this case is being done in the name of promoting culture!

Rather than re-invent a tried-and-true concept that has served First Nations well for thousands of years, perhaps it would have been better to centre the concept entirely on traditional concepts of stewardship and respect for Mother Earth.

As an example, a direct application of traditional values by the Ardoch Algonquin First Nation results in a rather sensible Principles of Development.

NBL for SMH

Unfortunately the City is not even close to applying TBL or 4BL criteria to the South March Highlands:

  • Neither Council or Staff took the opportunity to explore the economic benefits of green infrastructure and the Stewardship plan that was prepared as an alternative – even though it would have generated $25 M /annum in economic benefits to the city;
  • Continued development in the SMH is an environmental disaster that no one denies – yet no one at city hall does anything to prevent. Compounded by the continued wilful blindness to environmental problems caused by SWM piecemealing, water diversion, fragmentation of habitat, and extirpation of 20 species-at-risk.
  • At a social level, every community association in Ottawa endorsed protection for the SMH – yet the infrastructure staff plows forward in the face of opposition from 15,000 people.
  • The complete disrespect for the cultural heritage of first nations in the SMH is shameful. The refusal to accommodate even a reasonable request for an unbiased archaeological study is indefensible and a violation of the Canadian constitution.

Clearly there is no bottom line thinking (NBL) in the City at all when it comes to the South March Highlands.

Although Ottawa is starting to move in the right direction with sustainability thinking, it will take much more than the creation of a quad-focal “lens” and the self-congratulation that will no doubt accompany the City’s self-assessment process to implement a sustainability mindset in Ottawa.

Growing Gaps

Completely missing from the City’s implementation approach is ensuring that there is an opportunity for public participation in ALL key decisions affecting Environment, Social, and Economic dimensions.

Instead of closing this gap, the lack of acceptance of public review as an integral part of sustainable decision-making appears to be growing.  Some recent examples of a growing gap include:

  • Refusal by the City to make public review a part of any future lifting of holding conditions for lands formerly zoned as environmentally significant in the SMH;
  • Failure by City staff to bring final EAs and EA Addendum to City committees for public review and Council approval prior to issuing of Notices of Completion.  This has occurred recently for Kanata West and for the Glen Cairn Flood Investigation.
  • Issuing key technical documents less than 3 days prior to a City committee vote on the subject so as to curtail any opportunity for public review.  This occurred recently on the decision to allow a municipal drain to be constructed in the provincially significant Poole Creek Wetlands in Stittsville.

Talk and intentions are cheap and meaningless without changing how the City operates.  Not only is the current non-sustainable mindset entrenched, it appears to be  incorrigible.

As a case in point, the infrastructure approvals staff actually declared that they considered it necessary to raze Beaver Pond Forest in Kanata, just so that they could understand where the watershed boundary was!  Evidently it was not possible for them to see the watershed for the trees.

Changing how the City operates will require deep changes to management within the infrastructure approvals division.   Otherwise using the words sustainability and development in the same sentence in Ottawa will continue to be an oxymoron.

Time to walk the talk by doing the right thing!

So far Mayor Watson has done nothing to improve the situation and in fact has made matters worse by not promoting public participation as a fundamental pre-condition for sustainable development in Ottawa.

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Everything You Need to Know About SWM

Legislative Gaps, South March Highlands

This is a tabbed article, click on each tab in turn to read the whole thing.

Storm Water

Storm water is created when land development alters the natural water balance:

  1. A large portion of the rainfall is naturally absorbed by the trees, vegetation and ground surface and this significantly reduces the amount of water which will flow offsite.
  2. Forests perform a vital function to the city as “green infrastructure” that soaks up storm water, as well as combating air pollution and carbon emissions.
  3. Wetlands perform a vital function to the city as “green infrastructure” that helps store storm water to prevent flooding elsewhere.

When natural vegetation/trees and soil is replaced with roads, buildings, parking lots, less rainfall infiltrates into the ground, less gets taken up by vegetation/trees, and more becomes surface runoff:

  1. Infiltration is 14 – 35% higher for forests as compared to urban lawns for the same soil type. Looking at it the other way, runoff is up to 35% higher when forests are replaced by subdivisions [MOE SWM Design Manual 2003 ch 3 Table 3.1].
  2. Runoff is 37 -88% greater when forest vegetation is replaced by urban lawns for the same soil type.   [MOE SWM Design Manual 2003 ch 3 Table 3.1]
  3. Water holding capacity is 4 – 5x greater for forests than for urban lawns for the same underlying soil type  [MOE SWM Design Manual 2003 ch 3 Table 3.1]

Surface water flow is affected by land slope – the higher the land, the faster it flows:

  1. It is difficult, if not impossible, to control storm water flowing down hilly lands or an escarpment.
  2. The City of Hamilton knows this and was involved in a court case when the homes at the bottom of the escarpment flooded.

Surface water is affected by imperviousness of the soil and infiltration – bedrock is impervious and most of the South March Highlands have bedrock less than 1 m below the surface.

Storm water is dangerous – a well-recognized risk to human life and to property. 

SWM Basics

Storm water management (SWM) is supposed to manage:

  1. Volume of water to prevent flooding.
  2. Timing of water flow to prevent flooding and erosion.
  3. Pollution since runoff is often contaminated by oil, grit, etc. from city streets.
  4. Temperature since runoff is typically warmer than the streams that the water flows into and this can damage fish habitat.

Storm water management also handles heavy spring water flow caused by snow melt – in addition to water flow caused by storms.

Cutting trees without storm water management controls in place will cause storm water to:

  1. Flow uncontrolled offsite.
  2. Flow in much greater quantity.
  3. Flow at a faster rate than previously.
  4. Erode land, creating risk of mudslides on steep slopes.
  5. Erode stream and river banks, damaging property and changing the path of stream/river meander patterns.

While surface water runoff may not cause problems when a few trees are cut on flat lands, this is not true for highly forested and rocky areas, escarpments, or lands near floodplains and Urban Natural Features or wetlands – especially in Provincially Significant Wetlands.

In the absence of adequate SWM control:

  1. Urbanization usually dramatically increases surface runoff volumes and rates.
  2. Urbanization would convert a 100-year discharge to a 2-year discharge [Walesh 1989 pg 65].
  3. Peak flows after development are seen to be over 5 times peak flows before development [Walesh 1989 pg 58].

Servicing studies identify two systems to handle storm water runoff:

  1. The Minor System (the storm sewers) handle the runoff up to a 5 year storm.
  2. The Major System (roads, land, ditches) handle the overland flow as understood by a 100 year storm.
  3. Both of these systems are designed to flow to a stream or river, often via a SWM pond so the that flow is moderated over time.
  4. The regulatory flood level is the expected crest of the water during a 100 year storm.

Storm water management ponds are built to store storm water temporarily so it doesn’t flow downstream too fast and cause flooding:

  1. SWM without quantity control only handle the minor system flow and are prone to flooding (e.g. 351 homes in Stittsville in 2008).
  2. SWM without quality control do not deal with pollution or temperature impacts.

Watershed and subwatershed plans are required by the province to set the storm water management criteria and establish catchment areas:

  1. Water flows downhill.
  2. Loss of water retention resulting in increased runoff in highlands due to new development can flood lowlands with pre-existing developments.
  3. All development in a watershed or subwatershed is supposed to account for the cumulative effect of storm water as it flows downhill.
  4. Flow is not supposed to be diverted between watersheds and subwatersheds – a Schedule C Environmental Assessment (EA)is required if this is to be done as a last resort.

To learn more about SWM, read the Ontario Understanding SWM booklet produced by the MoE.

Ottawa SWM

The City’s storm water management program does not adequately take cumulative effect into account:

  1. An environmental management plan is required for managing cumulative effects yet none exist.
  2. A storm water policy is required for the escarpment and hilly lands, yet no policy exists.
  3. Ottawa is the only major city in Ontario without a site-alteration by-law that prevents tree removal prior to adequate SWM facilities or plans in place.

The City should require developers to use computer models to determine the impact of tree-cutting for and demonstrate in SWM plans that controls do not need to be in place prior to any removal of trees.  Otherwise, developers should be required to implement SMW controls prior to tree removal to protect public safety.

The City routinely appears to make decisions to develop lands and build roads based on incorrect models which will increase flooding in the West Urban Community:

  1. The current Carp River flood model is so incorrect that it shows water flowing upstream during a storm!
  2. No increase – not even 1 cm – should ever be permitted in a regulatory flood level because no one can predict all the engineering decisions that were made based on that flood level when prior developments were planned. 
  3. Yet the Carp River regulatory flood level has been allowed to increase by nearly 1 meter.  If it increases much more, or if the models are wrong, the Carp could actually overflow into Kizell and down Watt’s Creek.
  4. An increase in a regulator flood level increases flood risk both upstream as well as downstream.
  5. Further development along the Carp River without adequate flood plain compensation and improved SWM controls is a risk to residents in Carp, Kanata North, Kanata South and in Stittsville.

Flood Risk

The South March Highlands are the aquifer for Kanata North and for parts of West Carleton: 

  1. That means that development in this area has pervasive effects on both land and water downhill from it.
  2. For example, construction in Morgan’s Grant caused wells to go dry in March Rural.
  3. Loss of water retention in the highlands will substantially increase flood retention in the low lands were existing subdivisions are.

Flooding has been a chronic problem in North Kanata since the 1970s.  Beaver Pond was built as a dam to control flooding in the 1980s – especially to protect the MDS Nordion nuclear facility and NCC lands.

The Shirley’s Brook /Watt’s Creek Subwatershed study shows the drainage in this area is split 3 ways into SB3, KD1 and KD2 catchment areas.  Tree cutting will increase flow to all 3 of these drainage areas if no storm water management controls are in place.

KNL SWM

The Beaver Pond and lands immediately north are in the KD1 catchment area:

  1. Pathways around Beaver Pond flooded on 24 July 2009 and flood routinely every spring due to snow melt.
  2. Increasing flow into Beaver Pond without mitigation will cause increased flooding and backup into the Kizell Wetlands.

Part of KNL Phase 9 lands are also in the KD2 catchment area: 

  1. Flooding occurred downstream in this catchment area on 24 July 2009 at several of the 9 culverts which cross the Kizell Drain. 
  2. Adding additional flow may increase risk of flooding downstream and diversion to Shirley’s Brook may be the only alternative – a violation of the subwatershed plan.

Part of KNL Phase 9 lands are in the SB3 catchment area:

  1. These lands need to be coordinated in the Shirley’s Brook Diversion EA but are not in scope.
  2. City staff says only impacts KNL’s Phase 7 and 8 but are unable to produce documentation to back this up after 6 months of community questioning.

KNL’s 2006 Servicing Study ignores the Shirley’s Brook Watershed/Subwatershed Study recommendations:

  1. KNL’s Servicing Study requires a diversion – a violation of the subwatershed study.
  2. The subwatershed study does not allow for the removal of any water from Shirley’s Brook or the addition of any water to Kizell/Watt’s Creek.
  3. Condition 59 of KNL subdivision approval requires compliance with the subwatershed study.
  4. City staff say that KNL has somehow met all conditions of subdivision approval but are unable to explain how the servicing is in compliance with the subwatershed study.
  5. KNL’s Phase 5 appears to have diverted storm water from the Carp River Watershed to the KD1 catchment area without an EA being done.
  6. KNL  plans to apparently divert storm water from KD2 and SB3 to the Beaver Pond in KD1 without an EA being done.

Open Issues

KNL apparently plans to cut trees with no storm water controls in place. It is difficult to understand how this does not increase flood risk.

The Richardson Ridge tree-cutting is also proceeding on the Hazeldean Escarpment adjacent to the Compensation Lands and First Line Road which drain to the Kizell Wetlands.  This tree-cutting will result in increased runoff to the Kizell Wetlands and thus to the Beaver Pond, as well as to the Carp River.

The entire area needs to be studied at the same time – which is why the provincial policy requires an Environmental Management Plan – which has never been done despite the fact that this policy has been in place for almost 10 years.

The city’s West End Flood Investigation report identified a lot of culvert crossing problems further south in the KD3 portion – if these are fixed, then more flow would go downstream to the Watts Creek junction, and could impact the KD1/Beaver Pond drainage as well as flooding the NCC’s land.

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Ontario’s Broken EA Process

Canadian Politics, Legislative Gaps

No Checks and Balances

If the Harper government has their way, the limited responsibility of the Canadian Environmental Assessment Agency (CEAA) will be downloaded onto the provinces.  In the current budget, the federal government has already done that for all projects funded under the pork barrel commonly known as the Infrastructure Fund.

In Ontario, this means that environmental responsibility will be downloaded onto an environmental assessment (EA) process that the Environmental Commissioner of Ontario  (ECO) has outright declared as “broken”.

Ontario’s environmental protection process is broken in so many ways that a full discussion of these problems is well beyond the scope of this blog.  Instead, we will focus on arguably the most crucial issue – the almost total lack of checks and balances in the EA process.

The Ontario Environmental Assessment Act (EAA) sets out a decision-making process to be used by government ministries, municipalities, and the private sector that is intended to promote sound environmental planning.

The EAA establishes a minimum process for EAs and further defines that Classes of projects that routinely occur (such as municipal roads), can be defined by the Ministry of Environment (MoE) along with a Class EA process that such projects are to follow.

For example, the MoE decided long ago that the Class EA process for municipal projects is defined by the Municipal Class EA (MCEA) process and that the responsibility for the MCEA process was to be downloaded onto the Municipal Engineers Association of Ontario.  This is a professional association of the civil engineers who build municipal roads and infrastructure – having no expertise in ecological or natural environment matters.

Furthermore, since everyone expects that municipalities and provinical government ministries and agencies will act responsibly, the EAA  defines that Class EA projects are to be “proponent-driven”.

This puts class projects into a different league than those done by the private sector.  There are no checks on the Class process followed by a proponent, nor are there counter-balances that can be used to enforce compliance even if process irregularities are reported.  Meanwhile private sector proponents have to implement a process monitored by the MoE, creating a Do As I Say and Not As I Do situation.

This also means that provincial authorities such as the MoE and Ministry of Natural Resources (MNR) have actually no authority to tell municipalities how to conduct an EA.  At best, they provide an advisory role to municipalities and, except for their role in granting various permits that may be required for a project, have no authority to tell a municipality to shape up.

For example, the MoE cannot tell the City of Ottawa that the Terry Fox Project is overdue for public consultation and is unable to compell the City to review a decade’s worth of changes to the project with the residents who will be affected by it.

The MCEA process relies entirely on the City determining, on its own, that sufficient changes to project scope or context have occured to warrant the effort of preparing an EA Addendum (which effectively restarts the EA process).

No Public Comment

Ontario’s Environmental Bill of Rights (EBR) doesn’t help matters because, under Section 32, ministreies do not have to provide an opportunity for public comment for permits issued to implement a project that has been approved by the EAA.

This means that once an MCEA project is approved by the filing of a Notice of Completion for the EA that was done, there is only a narrow 30-day window in which it can be challenged.

Even though the project may not be implemented for years afterward, or may even be changed in scope subsequently, there is no opporuntity for further public intervention in the process.

Meanwhile a municipality can make significant changes, apply for permits, and obtain approvals for those changes all without public review and comment.  Depending on the permit application involved, there may be a limited window for comments on the application, but this is spotty and relies on public monitoring of little-known registries where these permit applications are posted.

Take the example of permits to take water.  Private-sector proposals to take water from wells, streams or lakes are posted on the Ontario Environmental Registry for public comment in case there may be concerns about significant environmental impact.  If the public continues to have concerns once a permit to take water is issued, the EBR provides the right to request an appeal.  An independent tribunal applies strict criteria to decide whether or not to grant the appeal, hears the case if an appeal is granted, or facilitates a settlement.

But if a municipality wants to take water, it is only required to go through an EAA process and no EBR notice is required.  Hence a change to a project involving the routing of a storm or sanitary sewer can be done silently after the 30-day Notice of Completion window has expired.

The public misses important opportunities to provide input on municipal water-taking approvals even though water quality and quantity issues have been of concern for many Ontarians since the Walkerton incident.

Enter The Clowns

The net result is that:

  • municipalities can and do assert that they are compliant with the EA process when often they are not.  In fact, they can make a total mockery of the process and get away with it.
  • the municipal EA process is effectively regulated by a non-governmental body having no public accountability.
  • there is no ecological natural “environment” expertise mandated in the EA process at all.
  • there are no checks on the process and even if there were, there are no balancing forces to assure the outcome intended by the EAA.
  • there is no tribunal that the public can appeal to when a municipality violates their trust.  Their only recourse is an expensive application to the court system where they will face an opponent funded by their own tax-dollars!

Is this how we want to protect our environment?

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Harper Owes Us Minimum EA Standards

Canadian Politics, Legislative Gaps

The changes to the Canadian Environmental Assessment Act (CEAA)  proposed by Harper will withdraw or limit the Federal government Canadian Environmental Assessment Agency from mandating or participating in a wide range of Environmental Assessments (EA).

Since the federal government will not require EAs on a broader range of projects, this creates a vacume of responsibility that effectively hands over more responsibility to the provinces for assuring that EAs are actually done.

While we should question the wisdom of a federal retreat on EAs, we must absolutely insist that if the government wants to retreat, then they must ensure that a higher minimum standard is in place to be enforced by other levels or branches of government.

There are many holes in the current set of provincial standards as is well evidenced by the current Terry Fox Road fiasco in Ottawa.

For example, current code of conduct for EAs:

  1. Do not require species impact assessment to be performed when species-at-risk are threatened by a proponent of a project.
  2. Do not identify hard minimium criteria for when mitigation alternatives must be considered by a proponent.
  3. Do not require that effectiveness assessment be performed for proposed mitigation measures when the are intended to protect endangered species.
  4. Do not require a proponent to specifically address the issues raised by public consultation – they only require that public consultation occurs.
  5. Do not provide a minimum standard of practice to be used when evaluating alternatives. For example, there is no requirement to prioritize criteria nor is there a required code of practice for evaluating alternatives.
  6. Do not identify hard criteria to guide the selection of scope for an EA. Existing guidance varies by province and uses woolly terms such as “project complexity” which is to be interpreted solely by the proponent.
  7. Do not require minimum criteria to ensure provincial oversight of the EA process. The Class EA process in Ontario, for example, is a proponent-driven process with little involvement from provincial authorities to ensure that it is properly completed.
  8. Do not identify hard criteria for determining when an EA Addendum is required due to changing project circumstances. As an example, the City of Ottawa took the position that it did not need to file an EA Addendum even though it’s project planned to divert the only tributary that drains a sub-watershed.
  9. Do not require proponents to publish and entertain feedback on planned environmental measures.
  10. Do not provide a basis for appeal after completion of the EA process when new information arises that contradicts the assumptions made during an EA. For example, a poorly executed study may fail to identify species-at-risk during the EA process. Subsequent discovery should be basis for appeal.

There are many, many other improvents that can be made to the EA process. If Harper wants to retreat, then he should strike a royal commission to assemble minimum standards to be left in his wake.

Please post your own suggestions for minimum EA standards.

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Why Engineering Standards For Evironmental Studies Are Needed

Canadian Politics, Legislative Gaps

Ecology Ottawa conducted an analysis of political contributions made by housing developers to Ottawa City Councillors during the last municipal election.

In total, over $121,300 was contributed to winning candidates (the study did not examine contributions to losing candidates).  Top of the list was Gord Hunter who received over 49% of funding for his political campaign from developers.

Not surprising considering that Mr. Hunter is a member of the City’s Planning & Environment Committee.  Other members of the PEC that received substantial contributions are Bob Monet (32%) and Michel Bellemare (25%).

Fortunately the Chair and Vice-Chair of the committee had the integrity to decline such donations.  However, there is nothing other than personal integrity preventing them from doing so.

The municipal planning & environment committee is the only oversight that municipal environmental studies have.  The City of Ottawa has an indepedant Environmetal Advisory Committee, however, their mandate does not include quality assurance of environmental studies.

As far as the provincial Ministry of Environment is concerned, Class Environmental Assessments are conducted on a self-assessment basis.  These are the vast majority of environmental studies and the  province only requires that they be done and that they address prescribed content  – not that they be done properly!

For example the province only requires that proponents of Class Environmental Assessments consider alternatives and document their decision making process – not that they follow any specific decision making process, or even test that they have a sound process for evaluating decisions!  This is the loophole that allowed the City of Ottawa to ignore it’s own planning criteria in evaluating alternatives for the Terry Fox Road Expansion.

Another example is that the province does not provide clear-cut criteria for measuring the impact of a proposed project.  For example, the Terry Fox Road Expansion which threatens 3 endangered species (because it cuts across a Provincially Significant wetland)  is subject to the same process as the Hazeldean Road Expansion which poses no threat to endangered species (because it occurs in a semi-urban area).

So without minimum standards governing engineering practice to be followed when conducting Class EAs, there are no checks and balances in the process – other than the checks written by developers!

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