What seems to many as a bizarre perversion of the Environmental Assessment (EA) process under the direction of City of Ottawa’s General Manager of Planning & Growth Management, John Moser, continues to unfold in the South March Highlands (SMH).
This is a large post so please click on each tab below to view each section in turn. The contents tab provides an overview of the other tabs.
If you get lost in the acronyms, see the Acronym Soup listed in the left side column under Green Related links. The first expose of Ottawa’s Watergate was published last year and describes current Storm Water Management (SWM) problems in more detail.
1 – Introduction & How Drainage Affects Stream Flow
2 – (1906 – 1979) Early History of Flood Control
3 – ( 1980 – 1989) Campeau’s Drainage Concept
4 – (1999 – 2003) Recommendations of Environmental Studies
5 – (2003 – 2005) KNL’s Application for Subdivision
6 – (2005 – 2007) Draft Plan Approval & OMB Appeal
7 – (2008 – 2009) Issues Found with Drainage Concept
8 – (2010) NCC and MVC Concerned About Diversion
9 – MCEA Master Planning and EA Process Explained
10 – (Jan – July 2011) City Declares Schedule C is Necessary
11 – (Jun – July 2011) Attack of the Planners
12 – (Aug – Sept 2011) Public Safety Issues Surface
13 – Applicability of MCEA Schedule Requirements
14 – (Oct 2011) Yet Another Planning Opinion
15 – (Oct 2011 – Dec 2011) City Decides to Flip Flop
16 – (Dec 2011) MoE Abdicates
17 – (Feb 2012) City Buries The EA
18 – (March 2012) First (and only) Public Meeting
19 – Is Secrecy A Good Idea?
20 – Time To Do The Right Thing
How Drainage Affects Stream Flow
It appears that City is interfering with the EA process required for Stormwater Management (SWM) infrastructure to placate the developer KNL (a joint venture of Urbandale and Richcraft) by reducing public scrutiny of a proposed drainage area diversion in the SMH.
- The City also appears to be ignoring the need to coordinate multiple overlapping environmental studies per the requirements of the EA Act of Ontario (EAA) which requires the City to avoid piecemealing approvals by using a common, Class EA process requiring more public participation.
- These overlapping studies include the planning for a walkway in and around the provincially significant Kizell wetland, a study of the threatened Blanding’s Turtle, an addendum for proposed realignment of Goulbourn Forced Road (GFR), and the review of the SWM Master Plan for KNL’s subdivision Phases 6 through 9.
Understanding the events surrounding this seemingly dubious course of action by the City requires a basic understanding of how drainage areas affect the flow of water in streams, the history of engineering and planning for KNL’s SWM plans, and how the EA process is supposed to work in Ontario.
Water from rainfall and snow melt is a significant component of hydrologic flow in a watercourse which is comprised of both direct runoff water and the recharge of ground water from precipitation. The total amount of a stream’s flow is a combination of base flow (from groundwater) and peak flows (from runoff) as illustrated in the figure below (this type of figure is called a hydrograph).
- “Base flow” is an engineering term that refers to the amount of overall stream flow that is provided by ground water sources. Peak flows arise from water that hasn’t infiltrated into the ground (e.g. during and after a storm) and is running directly off the land into the watercourse.
- It is well-understood by engineers that any significant diversion of storm water drainage from one watercourse to another impacts the natural function of rainfall recharge of near-surface ground water and in turn reduces or eliminates the base flow of the watercourse that is being denied this recharge by the diversion. In other words, if you drain off or redirect water before it seeps into the ground, it cannot recharge ground water sources that ultimately feeds base flow.
- Since diverted water has to go somewhere else, the addition of diverted storm water to a receiving watercourse also leads to impacts that professional engineers must address if they are to prevent public safety hazards of increased flooding and erosion.
In reading this post, it is important to appreciate that the Municipal Class EA (MCEA) process is a Class EA engineering process established under the EAA and governed by the Municipal Engineers Association (MEA). Note that Mr. Moser is not an professional engineer (P.Eng.), nor does he appear to be a member of the MEA, and is just a registered professional planner with the Ontario Institute of Professional Planners (OIPP) and a member of the Canadian Institute of Planners.
One of the many differences between the training of professional planners and professional engineers is that civil engineers study hydrology. Some civil engineers specialize in hydrology and are referred to as water resources engineers. The less-qualified opinions of a planner should never be accepted over those of a water resources engineer in matters of hydrology and SWM infrastructure planning.
Base & Peak Flow Relationship in Shirley’s Brook (Click to Enlarge)
Early History of Flood Control
This 1925-era map of the SMH shows that no lake was present in the Kizell wetland at that time. Beaver Pond is located at the cross-hairs on the map and the west tributary draining Kizell wetland can be seen at the location of the South March Station adjacent to the wetland area. The Kizell to both Watt’s Creek and the Carp River are more easily seen in an earlier 1906 map.
In 1964, the Kizell tributary to Watt’s Creek was designated as a Municipal Drain by the Township of March.
In 1965 Bill Teron initially developed the Kanata Beaverbrook community under the concept of creating a lake in the eastern part of the Kizell wetlands. According to the Kanata Standard, Teron started to create Kanata Lake by clearing trees and attempting to dredge the wetland, however, his equipment started to sink into the swamp and the project was abandoned.
According to the Kanata Standard, in 1970 there was a serious flooding problem in the vicinity of Atomic Energy of Canada (AECL’s facility is now owned by MDS Nordion). Campeau, who had assumed development rights from Teron, was required to remediate the flooding issues caused by the golf course in Beaverbrook.
- In 1970, Campeau built a rock weir with a sluice gate at Kanata Lake (now called Beaver Pond) so that the Kizell tributary to Watt’s Creek could be detained during spring snow melt.
- However, the deeper water in Kanata Lake attracted increased beaver activity which contributed to chronic flooding in the area, including another flood at AECL in 1972.
In 1973,the Kizell Drain was improved under March Township Bylaw 34-73 and consolidated with a portion of the Walter Bowes Municipal Drain to attempt to control the chronic flooding arising from the combination of beaver activity and continued development in Beaverbrook. The Kizell Drain now extends the full length of the Kizell tributary from Beaver Pond to where Kizell joins Watt’s Creek inside the National Capital Greenbelt.
- The Environmental Study of the Marchwood Area of Kanata, 1976, describes the majority of Kanata Lake as being at most 2 1/2 feet deep at that time.
- In Aug 1978, a study by F.F. Slaney, Review of Campeau Lands Within the Proposed South March Highlands Conservation Lands, identified that dredging to a depth of 16 feet would be necessary for improved storm water management and flood control.
- It appears that it was the possibility of deeper dredging that led Campeau to consider the option of a drainage area diversion to support more extensive development in the area.
Campeau’s Drainage Concept
By 1980, continued development in Kanata had caused the Kizell Drain to again become overloaded. In June 1980 Dillon Consulting prepared a SMW Study for Campeau’s Proposed Marchwood and Lakeside Subdivisions. No diversion was required by Dillon because this subdivision included only part of what is now KNL Phase 9, and not Phases 6 – 8.
- “Existing open watercourses within the proposed development should be maintained as closely as possible to their natural states.” … “Since the receiving streams (Kizell Drain and Watts Creek) are already overloaded, on-site control, of excess runoff resulting from the proposed urbanization, is warranted.”
- “When a structure such as a retarding dam or holding pond is installed, hydraulic routing procedures can be used to determine the effect on peak discharges. However, when a large volume is available for storage, the shape of the inflow … has little effect on the outflow … and is controlled by the hydraulics of the outlet structure.”
- In other words, the outflow from a large dam is different than smaller SWM holding facilities because its outflow is not affected by sudden changes in inflow.
- “The proposed [reservoir] has relatively large storage volume compared to the volumes of the inflow hydrographs. Consequently, the outlet structure is the controlling factor in setting the release rates from the storm water detention pond. … A combined overflow weir and outlet pipe [overflow with emergency spillway] appears to be suitable.”
- The report describes the function of each component. The overflow weir is intended to control inflows up to the regulated 5-year rate, the reservoir storage is intended to control inflows up to the regulated 100-year rate, and the hydraulics of the outlet pipe and overflow weir control the outflow release rate. Outflows beyond these levels would be handled by the emergency spillway.
In 1981, as a result of agreeing to maintain a 40% open space commitment, Campeau obtained the right to develop what is now Kanata Lakes and the Marchwood portion of the SMH (now referred to as KNL’s Phases 7-9).
- Marianne Wilkinson represented the Regional Municipality in negotiating the 40% Agreement in which SWM facilities were included in the definition of open space along with other infrastructure such as the hydro corridor. However, residents believed that a 40% greenspace agreement had been reached that would protect the unique natural areas in and around the development.
- KNL’s plan of subdivision is bifurcated by the Kizell Provincially Significant Wetland (PSW) which includes the wetlands on both sides of GFR, including the western portion of Beaver Pond. This wetland has been continuously designated as a Natural Environment Area (NEA) and supposedly protected from development since the 1960s.
- KNL’s Master Servicing Plan is based on Campeau’s now out-dated concept of diverting surface water drainage from a large area within the headwaters of Shirley’s Brook into headwaters of Watt’s Creek – in other words a major diversion of water across a watershed boundary.
- The drainage diversion concept was first proposed as an optional part of the Marchwood Lakeside Master Drainage Plan prepared by Cumming Cockburn Ltd (CCL) for Campeau Corp in 1984. CCL identified that the AECL building, located 500 m downstream on Kizell Drain was susceptible to flooding if water quantity was not properly managed. This building has large, radioactive water tanks on it that are still in-use by MDS Nordion.
- CCL acknowledged in their study that such a diversion would reduce base flow in Shirley’s Brook but did not model its impact.
In 1985, the consulting engineering firm of Oliver, Mangione, McCalla & Associates (OMMA) was retained to do the detailed design of the Storm Drainage System, resulting in the construction of a 4.5 m high x 170 m wide dam across Kizell stream at Beaver Pond to control the flood risk.
- “The outflow from Beaver Pond will be controlled by a new dam and outlet structure…The dam would have an impervious sheet metal piling cut-off driven to refusal with a clay dyke keyed into the bottom behind the metal sheet.” [Storm Drainage Report, page 14, emphasis added]
- According to former City engineer Guy Bourgon, this facility at Beaver Pond was built in 1987 prior to the passage of the EA Act of 1990 and it is owned and operated by the City. As the City cannot locate a copy of the permit, it is possible that the dam was originally constructed without the necessary approvals under the Lakes and Rivers Improvement Act.
- The “Dam & Outlet Structure Operation and Maintenance Manual” prepared in 1990 by OMMA identifies that a permit was obtained under the Water Resources Act.
“[OMMA] designed an earth dam which consists of a sheet pile and clay core, woven filter mat and blasted rock for erosion protection, an outlet structure, an emergency spillway and an outlet channel….Daming [sic] of the creek required a Permit to Take Water. The permit number 85P4010 authorizes the on-stream storage of water, by ponding, of a tributary to Watts Creek.” [emphasis added]
In 1988 the 40% Agreement was amended to allow Campeau to transfer it and in 1989 Genstar acquired the development rights from Campeau. CCL was retained to undertake the design of several phases of development.
- In his submission of Genstar’s plan for SWM quality control, Peter Spal, P.Eng., acknowledged on Nov 16, 1994 that “The Kanata Lakes community is a complex development serviced by a comprehensive stormwater management system.” [emphasis added]
Recommendations of Environmental Studies
In 1999, the Shirley’s Brook/Watt’s Creek Subwatershed Study conducted by professional engineers at Dillon Consulting recommended that “To minimize the potential for flooding, erosion and environmental problems, every attempt must be made to preserve the existing drainage pattern” because Shirley’s Brook contained Type 1 & Type 2 fish habitat that was highly sensitive to reduced base flow and the Kizell Drain was highly prone to erosion and flooding.
- Section 3.8.6 states: “Base flow is recognized as an important contributor to the biological habitat quality and to the structure of aquatic ecosystems identified in Shirley’s Brook, Watt’s Creek, and the Kizell Drain. Groundwater discharge is crucial to the maintenance of base flow and to buffering thermal changes that could otherwise impact aquatic habitat (MOEE, 1991b)” [emphasis added]
- According to later studies done by the National Capital Commission (NCC), Shirley’s Brook and Watt’s Creek are the only cool water streams left in the nationally significant Greenbelt. Protecting base flow is clearly essential to preserving this unique national feature within the Greenbelt.
- The requirement to comply with the Subwatershed Study was later incorporated into KNL’s conditions of subdivision approval in 2005 as Conditions #59 and #60.
In 2000, KNL purchased the development rights from Genstar and retained CCL to prepare Master Servicing Plans including a SWM plan. CCL was merged with IBI in 2004 but the same engineers, including Peter Spal, appear to have worked on the CCL/IBI SWM plans throughout its history.
In 2001, the City’s NEA Implementation Plan for Kanata Lakes prepared by CH2M Hill:
- Identified that Blanding’s turtle were recorded in Kizell by Brunton in 1992 and by Slaney in 1978. Blanding’s turtle were subsequently designated as a Threatened Species-at-Risk in May 2005 by the Federal Committee on the Status of Endangered Wildlife in Canada.
- Confesses in chapter 2 that “The wetland area running west of the Beaver Pond is the evolution of what was formerly a much wetter area but was significantly de-watered when the current Beaver Pond was constructed by digging a deeper pond.” (emphasis added)
- Reveals in chapter 3 that a comparison of the original diversion area proposed by Campeau in 1984 with the KNL Serviceability Study prepared by IBI/CCL in 2000, found significantly increased drainage area diversion that was not acknowledged by IBI.
“The Serviceability Study does not acknowledge the increased diversion area or the resulting total developed area [draining] to Beaver Pond, nor does it provide any analysis to confirm that Beaver Pond can handle the additional flows”
- Confirms in chapter 4 that a diversion will have a negative impact on Shirley’s Brook and recommends abandoning it.
“diversion of all flows (especially low flows) away from Shirley’s Brook would likely have negative impacts on aquatic habitat. The headwaters of any stream system represent an important source of base flow to the system, and given that summer dry weather flows in the lower reaches of Shirley’s Brook are less than 10 L/s, any flow reduction due to diversion from the system should be considered a significant loss. The most effective method of mitigating the negative impacts associated with the diversion would involve … abandoning the plans for at least some of the diversion…” [emphasis added]
- It refers to Beaver Pond as a dam and notes the presence of pollution downstream in Kizell Drain.
- Identifies that even the construction of recreational pathways may impact storage capacity in Kizell/Beaver Pond and recommends that “floodplain cut-and-fill issues are addressed for any construction within the Beaver Pond Area.”
- Section 3.2, states that although modifications to a SWM facility is normally a Schedule B Class undertaking, which could be done as a pre-approved activity should a plan of subdivision be approved, but:
“For piped utilities all other options should be explored first and piping in the Kanata Lakes NEA should be discouraged and only considered as a last resort. In cases where this is considered an Environmental Assessment [Schedule B or C] should be done and to consider the short and long-term impacts and recommend mitigation measures for both the permanent installation and the construction techniques to be used.” [emphasis added]
In 2003 the MoE published the SWM Planning and Design Manual to provide environmental design criteria for engineers in the design of SWM systems that effectively preclude drainage diversion projects from good engineering practices.
- Section 4.1 states that SWM plans “will meet the criteria established to ensure that: groundwater and base flow characteristics are preserved; water quality will be protected; the watercourse will not undergo undesirable and costly geomorphic change; there will not be any increase in flood damage potential; and ultimately that an appropriate diversity of aquatic life and opportunities for human uses will be maintained.”
KNL’s Application for Subdivision
In April 2003, KNL formally applied for permission for subdivision development in the SMH.
- The fact that KNL required its own subdivision approval speaks to its distinctiveness from the earlier Campeau approvals. Furthermore, a drainage area diversion was only optional in the Campeau plans due to 50% lower proposed density compared to KNL’s plan.
On April 13, 2004, Ned Lathrop, General Manager for Development Services presented a staff report to the City Council’s Planning Committee that recommended approval of the plan of subdivision and acknowledged:
- “The Council approved Shirley’s Brook, Watt’s Creek Subwatershed Study (September, 1999) requires the protection of Shirley’s Brook, using a 30 metre wide buffer. The brook is situated within the development area north of the Kizell Pond EPA. Shirley’s Brook has been identified as fish habitat along its entire length within the subdivision area. Under the Federal Fisheries Act, Shirley’s Brook must be protected.”
- “The “EPA” boundaries include provision for stormwater management, some existing trails and the space required for new trail alignments on both sides of Kizell Pond and on the north side of Beaver Pond. The south side of Beaver Pond is already developed and contains a pedestrian pathway. The new recreational trail alignment was designed to protect the more sensitive environmental features while providing the desired social experiences that could be achieved within the “EPA”.
- “Mississippi Valley Conservation has taken the following position with respect to Kizell Pond: … Among other functions, this wetland area temporarily stores water that then contributes to the base flow of Kizell Drain in dryer periods. Substantial sections of Shirley’s Brook dry up in the summer months.”
- “MVC further states: … The western limit of the KNL ownership is also very close to the split in watersheds between the Kizell Drain and Carp River. The low lands to the west of Kizell Pond are not available as an alternative stormwater outlet as it would mean diverting drainage from one watershed to another. Diversion of flows from one watershed to another is generally discouraged because of its negative environmental impacts on both watersheds. This is reinforced in the Council approved Shirley’s Brook/Watts Creek Subwatershed Study which recommends that no diversion of drainage can be undertaken as it would have negative impacts on base flow and fisheries within Shirley’s Brook.”
- “… to the east of the Second Line Road allowance [i.e. downstream from KNL’s plan of subdivision], Shirley’s Brook and Kizell Drain were included in the Environmental Protection Area designations associated with Trillium Woods and Beaver Pond.”
- “Shirley’s Brook was identified as fish habitat in the Council approved Shirley’s Brook/Watts Creek Subwatershed Plan. The report classifies Shirley’s Brook within the development as Type 1 habitat. Mississippi Valley Conservation and Department of Fisheries & Oceans conducted a further review of the fisheries resources within Shirley’s Brook. Field investigations conducted by both agencies verify that Shirley’s Brook constitutes fish habitat within its entire length of stream …”
- “The proposed Draft Plan of Subdivision therefore conforms with … the [NEA] designations of the Regional Official Plan.” thereby maintaining continuous protection of the Kizell wetland natural area.
In 2005 Ontario’s Provincial Policy Statement came into effect and is intended to guide planning decisions and approvals.
- Section 2.2.1, states: “Planning authorities shall protect, improve, or restore the quality and quantity of water by: (a) using the watershed as the ecological meaningful scale of planning; (b) minimizing potential negative impacts, including cross-jurisdictional and cross-watershed impacts;…“
In January 2005 the City of Ottawa published its position paper for the SWM Strategy that it was developing as a consequence of its Infrastructure Master Plan of 2003.
- “… the need to protect the natural functions of watercourses has led to significant changes in how municipalities plan and practice stormwater management. Evolving stormwater management practices reflect a more balanced approach that considers the protection of natural systems and associated fish habitat as well as people and property.“
- “Small or low order streams typically represent a high percentage of the total stream length in a watershed. The loss of these streams on a site-by site basis can lead to significant cumulative impacts.”
Draft Plan Approval and OMB Appeal
KNL’s subdivision proposal received draft plan approval on March 1, 2005 and IBI again reworked the Master Servicing Plan which includes SWM.
- The June 2006 version of KNL’s Master Servicing Plan supposedly reduced diversion of the major system (i.e. flows greater than the storm sewer capacity) but not the minor system (i.e. the rainfall trapped and channeled into storm sewers). The prior versions of the plan proposed to divert both the major and minor systems.
- This revised version features “surface ponding” that will be provided via sawtooth street design (i.e. flooded streets) so that “major flow trapped in the street low points will be released into the minor system via catchbasins” (i.e. ultimately diverted)
- Since page 6 states that “with the on-site detention scenario, the majority of total effective runoff is ultimately conveyed into the minor system, and to the Beaver Pond” it is unclear how much reduction in major system drainage diversion is actually achieved by the revised plan.
In March 2005 Kanata residents objected to the draft approval and Kanata Beaverbrook Association (KBCA) and the Greenspace Alliance appealed to the OMB on the basis of protecting the unique NEA values of the area, asking that “open space” be interpreted only as “greenspace” for the purposes of subdivision planning under the 40% Agreement.
The Greenspace Alliance also challenged the expansion of the urban boundary in the area but was forced to drop its appeal to the OMB due to lack of legal resources. On Dec 5, 2005, in the absence of any opposition, the OMB approved an expansion of the urban boundary to the proposed Terry Fox Drive Extension (TFDE), and re-designated the NEA lands as Urban Natural Area (UNA).
The OMB also ruled on February 6 2006 that:
- City of Ottawa planning policies adopted after 2003 did not apply to KNL, but provincial and municipal policies and regulations in effect prior to April 2003 did. Both the Planning Act and Condition #86 of subdivision approval provides for the City to apply new standards or request new studies that it deems appropriate for KNL to comply with at any time prior to final approval. KNL must clear all conditions to obtain final approval.
- KNL could proceed in accordance with the development rights in the 40% Agreement it inherited from Campeau because the plan of subdivision respects NEA requirements and boundaries.
- The OMB was satisfied with the testimony of Robert Wingate, P.Eng. for CCL that an extension of existing servicing could be accomplished “… in an orderly and cost-efficient manner and that it follows the master servicing strategy put into place when the entire parcel was first developed in the 1980s.“
In 2007, the City of Ottawa published its Stormwater Management Policy to consolidate policies of former municipalities.
- This policy states that management of storm water should occur on a watershed basis in accordance with the Provincial Policy Statement. It also states that the City will promote the preservation of low order and headwater systems (such as Kizell and Shirley’s Brook).
Issues Found With Diversion Concept
In 2008, CH2M Hill was again retained by the City to provide an independent professional engineering opinion on SWM development approvals in the SMH and on June 13, 2008, CH2M Hill’s water resources engineer, Eric Emery, P.Eng., issued a statement of opinion that:
- “The [IBI/CCL] Serviceability Study did not acknowledge the increased diversion area or the resulting total developed service area to the Beaver Pond. It also did not provide analysis to confirm that Beaver Pond could accept the additional flows“
- “The diversion of all flows (especially low flows) from Shirley’s Brook could have a negative impact on fish habitat. It is commonly understood that the headwaters of stream systems represent an important source of base flow to a system downstream, and … any flow reduction due to diversion from the system would be considered a critical loss.” [emphasis added]
- A Schedule C Class EA was required according to the MCEA and harmonization with Federal EA process may also be necessary to protect fish habitat in downstream federal lands.
- “we recommend that the City undertake a new Class EA following Schedule C.” [emphasis added]
On October 9, 2008, Spal identified that IBI had subsequently eliminated diversion of most of Phase 8’s drainage to “maintain the natural equilibrium on a subwatershed basis“.
- According to KNL’s Serviceability Study, the controlled inlet capacity of the minor SWM system is 85 L/s/ha and the minor system will still divert approx 150 ha of drainage.
- In other words, KNL’s “minor” system has the capacity to divert up to 85 x 150 = 12,750 Liters of rainfall per second that would otherwise drain and recharge to Shirley’s Brook.
- According to the Subwatershed Plan survey done on Shirley’s Brook, table C.7 shown below, at no time during the year is the flow through the portion of Shirley’s Brook within KNL’s subdivision greater than 30 L/s!
- With KNL capable of diverting 425 times that amount, it appears that there is a legitimate risk that this may significantly de-water, and may even entirely dry up, the portion of Shirley’s Brook that flows through the subdivision. It is difficult to fathom how this could possibly “maintain the natural equilibrium” in Shirley’s Brook!
Streamflow in Shirley’s Brook (Click to Enlarge)
NCC and MVC Concerned About Diversion
On July 16, 2010, according to an email released under Access to Information, the Mississippi Valley Conservation (MVC) agency’s water resources engineer, Doug Nuttall, P.Eng., wrote to the City expressing the MVC’s position that their clearance of Conditions 59 and 60 requires no diversion of either major or minor systems:
“My position would be that to clear the one condition, I’d need to see a [SWM] report that does what the 1999 SB study presents – which is pretty clearly no diversion of major or minor events.” [emphasis added]
August 2 2010, the KBCA, KLCA and SMHCRC public interest group met with City planners and expressed concern that the proposed deforestation of Beaver Pond forest by KNL’s Phase 9 would create increased runoff that might exceed the capacity of Beaver Pond.
August 9 2010, according to minutes obtained under Access to Information, an inter-agency meeting was held between the City, MVC, DFO, MNR, and NCC which records:
- “MVC’s position is that if the channel and flood plain of both watercourses can be shown to have the capacity for the change in flows without causing an impact on flooding, erosion, pollution, or the conservation of land, we can consider the diversion. It should be noted, however, that it is practically impossible to make a significant change in the flows and not cause an impact on these issues….In general,… MVC would not support a diversion of any watercourse into a different watershed.” [emphasis added]
- “A major landowner downstream, NCC, has indicated that they do not want to be deprived of water. Per Common Law, it is possible that NCC can demand that the flow regime in Shirley’s Brook be effectively unchanged. This means that some portion of the tributary area to Shirley’s Brook that is intended to be diverted, must not be, and that peak flows must be attenuated to below pre-development levels.” [emphasis added]
In October 2010, the City published Notice of Commencement of a SWM Master Plan EA study to examine the impact of KNL’s proposed water diversion on the City’s existing storm water management infrastructure in Beaver Pond. This study was to be led by the City’s water resources engineer, Darlene Conway, P.Eng., and contracted to AECOM for completion in two phases:
- Phase 1, completed in 2011, to understand existing conditions and assess the ability of Beaver Pond to meet existing water quality and flood control targets as a result of KNL Phase 6 and to assess the impact of developing KNL Phase 9 as planned.
- Phase 2, nearing completion, to create a hydrologic model for both Shirley’s Brook and Watt’s Creek and to identify potential SWM solutions for KNL Phases 7 – 9, including Beaver Pond capacity constraints.
On December 16 2010, the City confirmed that the intent of the AECOM study was to assist in the determination of whether KNL’s diversion proposal should be pursued further as a Schedule C Class EA or whether an alternative SWM approach that precludes diversion should be pursued.
- The City properly elected to conduct this study as a Master Plan EA process given the complexity and widespread impact of the proposed water diversion beyond the boundaries of KNL’s plan of subdivision.
- A Master Plan EA process is intended to be used as a “front-end” to create a common framework for a series of related projects that participate as part of an overall system such as storm water or waste water management. According to Section A.2.7.1 of the MCEA, this process requires public consultation: “It is imperative that public and agency consultation take place during each phase of the study process“. [original emphasis]
MCEA EA Process Explained
The MCEA identifies that the primary basis for the selection of the appropriate process (i.e. Schedule) is the extent of impact and complexity that the proposed undertaking may have.
- Municipal Class EA processes are streamlined versions of the Individual EA process which are much more involved and are to be followed by private corporations (other than subdivision developers). The different MCEA Schedules (A, A+, B, C) range from a Schedule A & A+ processes which are pre-approved and have little to no public participation, to progressively more involved processes that provide for formal public participation and appeal.
- In the cases where a project is initiated as a result of an approval under the Planning Act (such as subdivision development), any of these Schedules can be optionally integrated with the planning processes and approvals under the Planning Act in projects where the developer is the proponent for a project. “Regardless of the approach taken for any undertaking subject to this Class EA, the proponent is responsible for ensuring that the requirements of this Class EA and principles of its application are met.” [original emphasis]
- The pre-approved Schedules A and A+ are supposed to be used for routine subdivision projects where the impacts are “limited in scale” (e.g. contained largely within the scope of a developer’s plan of subdivision) and have “predictable outcomes” performed in compliance with the requirements of the Planning Act and Provincial Policy Statement.
The most significant difference between Schedule A-B projects and a Schedule C project is that the requirement to document alternatives, environmental impacts, and mitigation measures in an Environmental Study Report (ESR) only applies to a Schedule C undertaking.
“With the integrated approach the proponent can be the applicant under the Planning Act. It is worth noting that when the proponent is a private sector developer, Ontario Regulation 345/93 of the EA Act applies and only Schedule C projects associated with residential developments are subject to the EA Act. All other projects where the private sector is the proponent are exempt from the EA Act.” [MCEA section A.2.9 emphasis added]
This has the effect that Schedule A/A+ projects are pre-approved under the EA Act and Schedule B projects are exempted from the EA Act, so that subdivision development is subject only to approval by the subdivision approvals process (as well as whatever other approvals may also be required under the Drainage Act, Endangered Species Act, Water Resources Act, etc.). The only exception is for Schedule C and Master Plan projects where public participation and creation of an ESR is mandatory.
Whether a developer or the City is the proponent for a Class EA can be significant, since the EA process is proponent-driven – meaning that the proponent makes all the decisions about the content and sufficiency of the activities performed as long as they follow the appropriate Schedule process.
- As was revealed by the legal challenge made to the Terry Fox Drive Extension EA Addendum approval process, this can sometimes mean that process steps can be done out of sequence, years apart, and still be approved.
- It is also possible for both the developer and City to be co-proponents on a project. But given the City planning department’s apparent pre-disposition to pushing subdivision approvals through over the objections of the public, this alternative doesn’t seem to be too different than letting the developer drive the process outright.
The difference in process phases is illustrated below:
MCEA Phase Requirements for Different Schedule Processes (Click to See Entire Figure)
City Declares Schedule C Is Required and MoE Agrees
On January 20, 2011 the NCC”s study of Watt’s Creek revealed that:
- “The NCC views the stream a valuable geological and ecological feature to the National Capital and as such any detrimental impact is of concern.”
- “The Study also noted that Watts Creek maintains cooler temperatures (17 C) than the Kizell Drain (22 C). This difference in temperatures has been attributed to factors such as the warming effect of the beaver ponds situated on the Kizell Drain, the lack of shade, and the warming effect of stormwater runoff from large pavement areas.”
- “NCC should request the MOE for changes to the [Beaver Pond] CoA to include complete and exhaustive sets of quality and quantity monitoring…. Actively participate in the planning process [for KNL’s subdivision] and if necessary appeal to the OMB.”
- Kizell Drain was measured on July 20, 2010 as having a stream flow of 25 L/s, compared to the allowed flow rate of 20 L/s established by the Subwatershed Study.
On April 15, 2011 the Ministry of Environment’s (MoE) Regional Manager, Bruce Hawkins, confirmed that the City of Ottawa is the correct proponent for the Master Plan EA and that the City had previously concluded that a Schedule A process was inappropriate:
“The City commented that the ‘integration provisions’ in section A.2.9 [of the MCEA process] are not applicable to the types of undertakings anticipated, and therefore the [Schedule A] integration process will not be followed for this Class EA project.” [emphasis added]
In May 2011, Phase 1 of the City’s Master Plan EA exposed that KNL appears to have compromised regulatory approvals when developing Phase 6. As detailed in a previous post, according to AECOM’s engineers, KNL made existing conditions 4 times worse than allowed by the Certificate of Approval (CoA) for Beaver Pond.
- The Kizell wetland lacks 74,000 cubic meters of storage capacity assumed by KNL
- Beaver Pond lacks 50,000 meters of storage capacity assumed by KNL
- Beaver Pond water level and flow rates set by the CoA are exceeded when a major storm event occurs
- Beaver Pond dam will over-top should further development of Phase 9 proceed
- Nearly two years later, as of Jan 2013, no remediation has been done to rectify existing flood risk caused by its construction of Phase 6 because the City continues to contemplate a drainage area diversion that would enlarge the capacity of Beaver Pond.
On June 21, 2011, (according to a letter obtained under Access to Information) the City’s senior water resources engineer, Darlene Conway, P.Eng., issued a letter of opinion to KNL’s legal council, Alan Cohen, stating that KNL had previously confirmed their acceptance that a Master Class EA was necessary to explore alternatives to a diversion and, if as a result of the Phase 2 study a diversion was still the best alternative, “It is the City’s position that such a diversion represents a Schedule C undertaking “.
Attack of the Planners
It seems that KNL solicited the opinion of two external professional planners, neither of whom are professional engineers, in what appears to be an attempt to overcome Conway’s engineering decision:
- On June 27, 2011, Derek Coleman at Ages Consulting, who appears to have no formal training in either hydrology or engineering, asserted that the diversion provision of the MCEA refers only to diversion of a watercourse and that some diversion of drainage is commonplace in subdivision development.
- On July 21, 2011, Pamela Hubbard, asserted in her “expert opinion” that the diversion provision of the MCEA refers only to diversion of an entire watercourse and that the diversion of flows in the definition does not include overland flow.
- Since KNL’s SWM plan purports not to redirect major (i.e. overland) flows, it appears that Hubbard may not comprehend the full complexity of the drainage diversion.
Neither Coleman nor Hubbard indicate that they reviewed the Shirley’s Brook Watt’s Creek Subwatershed Study. This appears to be an egregious oversight given that the Provincial Policy Statement requires that environmental planning in Ontario be done on a watershed-scale basis.
It appears that neither Coleman or Hubbard were advised of, nor did they enquire into, the collateral impact of the proposed diversion on the NCC, or of the MVC’s opposition, or the downstream risk to the Nordion nuclear facility. Nor does it seem that they were advised that KNL’s development of Phase 6 had caused the CoA to be exceeded and that remediation would likely require changes to a dam and possibly to a municipal drain.
It is not evident that either Coleman or Hubbard have any expertise in hydrology given that the credentials they cite are only as registered professional planners. They do not appear to appreciate the hydrologic relationship of storm drainage to base flow in a watercourse, nor the negative impacts that can result from drainage area diversions.
In contrast to urban/environmental planners, all civil engineers have some training in hydrology and water resource engineers (such as Conway, Nuttall, and Emery) have made hydrology their specialty and are experts in it.
- So it is not surprising that planners would be ignorant of the hydrologic relationship between storm water, groundwater recharge, and base flow in a watercourse.
What is surprising is that the planners’ apparent lack of expertise in hydrology did not seem to prevent them from limiting their professional opinion to matters within their training. Furthermore, it seems that they did not fully review all relevant documents pertaining to the matter on which they rendered their professional opinion.
- Whether this fails to meet the standard of professional care expected from them as registered professionals, or not, is a matter for the Ontario Institute of Professional Planners to decide.
- Whether or not their “professional” review of these engineering opinions and expression of opinion in an engineering activity which may impact public health and safety (i.e. increased flooding and erosion) constitutes a violation of the Professional Engineers Act of Ontario is a matter for the Professional Engineers of Ontario to adjudicate.
Public Safety Issues Surface
It appears that throughout the spring, summer, and fall of 2011 the City stonewalled public access to the May AECOM draft report despite repeated requests to the City for its release.
Meanwhile, an impact analysis conducted by City engineers in July 2011 (obtained under Access to Information) confirmed that 8 homes in Kanata could be at risk of flooding if KNL were allowed to proceed with any further development under existing conditions.
- City engineers identified that further engineering analysis was required to assess the fact that the minimum safety margin would be compromised.
Clearly public safety is a legitimate concern in the event of further modification to water flows in the area.
According to minutes published by AECOM, on August 15 2011, John Moser convened a private review of the AECOM findings for KNL – a meeting in which Conway, the project manager for the study, was notably absent.
- IBI adopted the position that “the EA process being undertaken by the City is not necessary and that a suitable SWM strategy should be determined through the current development process“.
- Working solely within the development process would mean that the EA would be replaced by the subdivision planning approvals process and hidden from the public because KNL’s draft plan of subdivision is already approved – even though it is based on what appears to be an increasingly problematic, out-dated, diversion concept.
- This is the same subdivision approvals process, as administered by the City’s planning department, that enabled the SWM problems in Phase 6 to develop to the point of apparently contravening Condition 60 of subdivision approval that requires compliance with the CoA.
- Changing to a Schedule A would also put KNL in greater control of the process since the developer becomes the proponent responsible for conducting the pre-approved project.
On August 26, 2011, the SMHCRC advised the NCC of concerns by KBCA about the potential impact of flooding of the MDS Nordion nuclear processing facility that is a riparian landowner downstream on Kizell Drain. Some of the buildings on that property are on the Kizell floodplain.
- According to the Canadian Nuclear Safety Commission report August 8, 2005, MDS Nordion’s radioactive liquid containment protocol depends, as a last resort, on Nordion’s ability to block Kizell Drain in the event of a problem with its holding tanks accompanied by a compromise to radioactive water containment.
- “MDS Nordion stated that there are two storage tanks within the building that would capture water from the active areas for sampling before release. MDS Nordion explained that it could retain millions of gallons of water inside the facility if needed before releasing it. In addition, MDS Nordion stated that it could temporarily block the Kizell drain if necessary to increase the on-site containment.”
- It is not apparent how MDS Nordion can legally block the Municipal Drain, even in the event of an emergency, given that doing so might flood upstream properties with radioactive water. It is also not evident how much blockage would be necessary in the event of a flood condition and whether sufficient materials are at hand to do so quickly, or whether doing so to contain a radioactive spill might contaminate nearby properties.
- In any event, MDS Nordion clearly needs to be kept advised of potential flood levels and flows in Kizell Drain to avoid safety measures from becoming out-dated. According to the Canadian Nuclear Safety and Control Act, the Canadian Nuclear Safety Commission should also be advised of any changes that may affect safety at this nuclear processing facility.
According to City Councillor Marianne Wilkinson, the designation of Kizell wetland and a portion of Beaver Pond as a provincially significant wetland (PSW) in September 2011 now precludes a drainage diversion into these wetlands because they are now provincially protected. KNL Phases 7 & 8 must now provide greater onsite detention and water quality control before dumping storm water into the Kizell wetlands.
On Sept 30 2011, the MoE District Engineer, Charles Goulet, P.Eng., concurred that a Schedule C process was necessary from an engineering perspective. In his letter to the City of Ottawa, he notes:
- “construction of storm sewers to divert flows … constitutes a Schedule C undertaking under the MEA Municipal Class EA“
- “site preparation methods recently employed by Ottawa by construction contractors in the presence of uneven bedrock surface also lead to the diversion of interflow and percolating waters destined for groundwater recharge, a matter which is environmentally significant” – in other words, blasting for subdivision creation in the SMH is a concern because it can also cause unintended diversion of ground water.
- Such an incident previously occurred during construction of nearby Morgan’s Grant subdivision.
Applicability of MCEA Schedule Requirements
KNL’s proposed water diversion appears to match several of the criteria requiring an elevated schedule:
- If no further development were to proceed, remediation of existing conditions to bring Phase 6 back into CoA compliance would trigger at least a Schedule B Class process to pursue any of the following potential solutions:
- find more storage or enlarge existing SWM detention at substantially the same location (e.g. adding a berm in Kizell to create more storage would be a Schedule C undertaking);
- increase capacity to handle outflow and erosion downstream, which might include modifying existing water crossings for flood control;
- increase channel capacity downstream for the purposes of flood control (this would also trigger the Municipal Drain process);
- construction of additional spillway facilities at Beaver Pond;
- The drainage diversion requires the construction of a new sewage system with outfall to a receiving water body (Beaver Pond) that exceeds the rated capacity of existing facilities as determined by the applicable CoA.
- According to the MCEA Glossary, the term “Sewage” is the same as “Wastewater” which “Means liquid waste which may be sanitary waste, combined sewer flows, drainage, storm water, commercial wastes, or industrial waste.”;
- Reconstruction of an existing weir or dam at the same location where the capacity is changed is a Schedule B Class project unless additional land is required, which elevates it to a Schedule C.
- The Beaver Pond facility is a dam constructed in the western headwaters of Watt’s Creek to control flooding. Existing problems with this facility have significant consequences downstream and any remediation may affect 3 separate subdivisions that are adjacent to its reservoir (Kanata Lakes constructed by Campeau, Rockeries constructed by Teron, Marchwood in-progress by KNL).
- KNL’s proposed wastewater sewage facilities in Phases 7 – 9 are completely independent of existing servicing and would require completely new piped facilities in an area where such facilities are known to be problematic.
- KNL’s SWM facilities also will be built within the larger context of a recreational trail system and affects Beaver Pond that has abutting residential properties, and is accompanied by significant community concern over downstream flood risk and damage to the natural environment. This perfectly fits the example provided in Appendix 1 of the MCEA as being a legitimate Schedule C Class EA.
“..dams and weirs … are flow control structures located within a watercourse. [SWM] facilities, whether located within a watercourse, or not, would not [necessarily] be considered a dam or weir [for the purposes of the MCEA]. Take, for example, the expansion of a water storage facility in an existing utility corridor … is a Schedule A+ project. However, if the utility corridor contains recreational trails and has abutting residential properties it is possible that the construction could have significant community impacts and as such should perhaps be considered as a Schedule B or C project.” [original emphasis]
- It will construct a [storm] “sewer for the purpose of diverting flows from one watercourse to another” – including both base and peak water flow.
- The MCEA Glossary defines a “Watercourse” as “Meaning flowing water, though not necessarily continuous, within a defined channel and with a bed and banks that usually discharges itself into some other watercourse of body of water.”
- The MCEA only refers to the “diversion of flows” (such as base flow) from one watercourse to another and not to the diversion of the entire watercourse or even the diversion of an entire flow.
- As a result of the 2005 MoE SWM Design Guidelines, most subdivision SWM plans are designed to drain within the same subwatershed with only very minor diversion of minor system flows into an adjacent subwatershed, if at all. But KNL is proposing to divert the drainage of 150 ha (roughly the size of the community of Rockcliffe Park) and both the MVC and IBI/CCL have previously acknowledged this will impact base flow and is contrary to the applicable Subwatershed Plan.
KNL should not be the sole proponent for a reconsideration of the Master Plan because
- It studies the impact on a 25-year old, City-owned dam, and
- Remediates a CoA issued to the City, and
- Affects existing subdivisions created by 2 other developers (Teron and Campeau), and
- It has far reaching impacts downstream that is well-beyond the scope of KNL’s subdivision.
Regardless of the EA, any potential modification to the Kizell Municipal Drain is subject to the municipal drains process which protects riparian landowners such as the NCC and MDS Nordion.
KNL’s SWM appears to be full of engineering complexities and is not a localized undertaking having predictable outcomes that should be pre-approved via integration with the Planning Act. One might also imagine that IBI’s engineers might be concerned about their own potential professional liability if a Schedule C Class EA is not done by the City in the event that KNL decides to pursue the drainage area diversion.
Yet Another Planning Opinion
Even though every water resources engineer who is independent of KNL and who has professionally assessed this situation concurs that the proposed diversion should require a Schedule C EA, in response to the planning opinions provided by KNL the City’s legal counsel, Tim Marc, apparently felt it necessary to solicit another opinion from yet another planner, Janet Amos.
In her letter of opinion dated October 6, 2011:
- Amos opines that the City should not be the proponent for the EA because KNL will transfer ownership of completed facilities to the City after they are built, and that integration of new and existing SWM ponds is not sufficient to warrant a Schedule C.
- However, according to the list of documents she reviewed, she only reviewed the AECOM presentation and not the full Phase 1 document.
- Two of the major differences in these documents is that the summary presentation does not highlight the need for a major expansion of the facilities in Beaver Pond nor that the flows are in excess of the amount regulated by the CoA.
- Neither document describes the impact of Phase 7 & 8 development and only considers Phase 9.
- Amos, who appears to be a resident of Bracebridge Ont., may not have the same contextual knowledge as Ottawa residents about the magnitude of public concern about KNL’s subdivision development, or the existence of the recreational trails within Beaver Pond, or the protected status of the Kizell wetland. There is no indication of what attempts she made to understand the local context prior to rendering her opinion about a distant environmental setting.
- She did not identify that modification to the capacity of a dam, in the presence of significant public concern, should not a pre-approved activity according to the example in the MCEA.
- After reading “excerpts” from the applicable subwatershed study she affirms that “Condition #59 of KNL’s draft approval requires that the Shirley’s Brook/Watt’s Creek Subwatershed Study (1999) be followed as the guiding document for the design of the storm water management facilities with no diversion.” [emphasis added]
- Amos appears to not fully appreciate the impact on Shirley’s Brook and Watt’s Creek as she does not further discuss the potential impact of the diversion on either base flow in Shirley’s Brook, or Kizell stream temperature downstream in the nationally significant Greenbelt, or the potential for increased flooding and erosion.
- She appears to be unaware of the Watt’s Creek Study done for the NCC that states that even if water quantity and quality are better controlled upstream, water temperature changes caused by KNL’s development in the headwaters of both Shirley’s Brook and Watts Creek will negatively impact fish habitat in the Greenbelt.
- There is no evidence that the City advised her of the significant population of Blanding’s turtle in the SMH, including the Kizell PSW, or of Blanding’s nesting sites adjacent to Shirley’s Brook.
- Nor is there any evidence that the City advised her that the radioactive water holding tanks located downstream were designated by previous studies as flood susceptible infrastructure.
- It appears that Amos established her opinion that KNL’s SWM facilities should be pre-approved, because she may be unaware that such facilities may have widespread impacts downstream that are hardly local in scope.
- Amos asserts that the diversion of flows is “incidental to the provision of storm water management facilities” which appears to be applying the dubious principle that the end justifies the means. The MCEA provides examples where an elevation in Schedule should occur due to complexity, scope of environmental impact, or need to promote public consultation. The added complexity of a drainage diversion causing significant downstream impacts is far from being merely an incidental consequence to the provision of SWM facilities.
- Referring to KNL’s Condition #59 of subdivision approval (Compliance with the Subwatershed Study) she acknowledges that, “According to staff meeting notes, it has become clear that MVC will not clear this condition without significant changes to the plans.”
Amos cites her expertise as a registered planner and as an “EA practitioner” but appears to have no formal training in engineering despite her participation in MCEA working groups. In fairness she appears to be the most diligent of the planners that submitted letter opinions, but also appears to be unaware of the full complexity of the situation possibly because of the incomplete nature of the information presented to her by the City, or what appears to be lack of engineering training.
The complexity of this situation is precisely why a Schedule C Class EA is required for any future SWM activity and why this determination should be made by a licensed water resources engineer.
City Decides to Flip-Flop
On October 25, 2011, the NCC’s principal planner, Sandra Candow, wrote to the City requesting an update on the SWM Master EA Study, noting that it affected watercourses that are within Federally designated National Interest Land Mass (NILM) and thus considered to be of national significance. Her letter states:
“As previously indicated at the meeting convened by MVC on August 9, 2010, NCC staff continue to have concerns with the proposed diversion and the impact it will have on the Kizell Drain and Watts Creek corridors within the Greenbelt.”
Yet in response to what seems to be KNL’s preference to make the EA disappear from public view, it appears that the City’s planning department ignored the agency objections from the NCC and MVC, and seemingly dismissed the professional opinion of the 3 water resources engineers most expert in the situation: the CM2H Hill consulting engineer, the City’s own engineer managing the study, and the MOE’s District Engineer responsible for this area.
- The question of whether or not this seemingly dubious decision by the City’s General Manager for planning constitutes a breach of the Professional Engineers Act of Ontario is a matter for the Professional Engineers of Ontario to investigate.
On December 5, 2011, the City asked the MoE for its concurrence on the application of the integration provisions of the MCEA to drop the Master Plan EA process and to treat any subsequent water diversion as a pre-approved Schedule A instead of a Schedule C Class undertaking.
This resulted in a teleconference on December 12, 2011 between the City and MoE’s EA Approvals Branch. It is unclear whether City engineers or the MoE’s District Engineer were in attendance, however, based on the list of information provided by the City to the MoE (enumerated in the MoE’s response letter) it appears that:
- Hydrologic issues affecting Shirley’s Brook and Watt’s Creek were not presented,
- Engineering concerns over the capacity constraint in Beaver Pond were not presented,
- Environmental impact on the Kizell PSW, Blanding’s Turtle, and Type 1 fish habitat were not presented,
- Letter opinions of engineers were not presented,
- Phase 1 findings of the AECOM study were not presented – only the workplan for the study
- Agency objections of the MVC and NCC were not presented
- But the the letter opinions of the 3 external planners were presented.
It appears that the art of perception management via selective information suppression has become highly advanced during Mayor Watson’s administration of City affairs. Or could this simply be another indication of what appears to be incompetence by planners regarding matters of SWM engineering?
- The City’s planning department also oversaw the non-conforming SWM approvals for KNL Phase 6 and the debacle of SWM planning in the Carp River development of Kanata West.
On Dec 21 2011, the MoE agreed that the City could apply the integration provisions, clearing the way for KNL to proceed with any subsequent diversion as a pre-approved undertaking.
- Based on the casual reference to Beaver Pond capacity in the MoE’s letter, it would appear that the MoE was also NOT advised by the City of capacity constraints in Beaver Pond that surfaced during the Phase 1 Study, or that KNL does not seem to be in full compliance with its planning approvals having compromised the CoA.
- If KNL’s development did not require a water diversion and if it did not depend on an increase in capacity in Beaver Pond, then it is easy to understand why the MoE Approvals Branch concurred that the creation of SWM facilities is a straightforward Schedule A undertaking.
- But since KNL’s SWM plan does require a diversion of water from an area that is highly sensitive to base flow reduction and into an area that is highly prone to erosion and flooding, with the collateral impact of requiring a significant upgrade of an existing dam not owned or created by KNL, and has collateral impact on fish habitat and species-at-risk, it is apparent that not all the engineering issues were fully presented to the Approvals Branch to consider.
- It appears that the City may have also downplayed the extent of the area being diverted as the MoE’s letter refers to 100 ha being diverted when in fact diversion of 150 ha is proposed. The difference of 50 ha is 3 times the size of Parliament Hill.
- It appears that no one compared the impact of the drainage diversion to the size of Shirley’s Brook. It is difficult to imagine that a drainage mechanism that is 425 times larger than the base flow in Shirley’s Brook will have any predictable outcome other than the destruction of aquatic Type 1 cool-water habitat via diminished base flow and temperature change.
When challenged about the decision, the MoE abdicated its responsibility stating that EAs in Ontario are “proponent-driven”; with the apparent interpretation that a municipal proponent can write its own rules. Consequently they are predisposed to allowing a municipality significant latitude in the management of municipal class EAs.
- Without without even cursory public engagement, such as requesting comments via the Environmental Bill of Rights Registry or soliciting input from registered persons of interest, no information contrary to the City’s objective is ever presented in such cases. Thus a decision to allow the City to do whatever it asks for is almost a foregone conclusion.
- Asking a provincial authority to download responsibility on an issue is a well-known tactic by the City. The City has employed this strategy at least twice previously on matters affecting the SMH in order to claim legitimacy when ignoring provincially mandated responsibilities to protect the environment or cultural heritage.
According to its December 21 response letter, the MoE’s only concern was that proceeding under the subdivision development process would have insufficient public engagement to satisfy the obvious need for public consultation.
“… it is not clear to MOE staff what other opportunities for public involvement in the planning and decision-making for this project are available through the Planning Act process, or other planning processes.”
City Buries the EA
On Feb 13 2012, the City’s planning department advised the MoE that the City would treat KNL’s drainage area diversion as an undertaking that would be integrated with the subdivision approvals process, but that it would still complete Phase 2 of the AECOM study outside of the EA process.
This decision by the City appears to be in conflict with Section 8.1 of the Code of Practice for Preparing Class EAs in Ontario:
“It is important to recognize that there should be flexibility within a process to be responsive to specific project complexity. For example, while a project may be on a schedule that is pre-approved without any further assessment required and there is significant public interest in the project or there is the potential for significant negative environmental effects, a proponent may find it prudent to subject the project to some higher level of investigation in order to assess alternatives, environmental effects and public, Aboriginal communities and government agency issues and concerns. While this is not a requirement, a proponent may wish to do this in order to avoid significant concerns at the end of the planning process.” [emphasis added]
Doesn’t the possible risk of flooding of people’s homes and other impacts on downstream properties qualify as having a “potential for significant negative effects”? Let alone the possible destruction of:
- Type 1 & Type 2 cold water fish habitat within the subdivision as well as habitat downstream
- Blanding’s turtle habitat, a semi-aquatic Species-At-Risk (SAR) known to be present within the drainage area
- Other aquatic and semi-aquatic SAR habitat in the nationally significant Greenbelt lands downstream.
According to the City’s letter to the MoE on Feb 13, 2012, the City acknowledges that there is significant public interest in this undertaking.
Section 4.3 of the Code of Practice spells out the need to engage the general public and other interested parties when establishing the terms of reference for a class EA.
- Changing the terms of reference behind the back of the general public is hardly consistent with the Code of Practice.
- Changing the Class EA schedule to be followed, or changing the proponency of an EA, is a change to the Terms of Reference
Section 6.2.5 of the Code of Practice is prescriptive about the requirement for public consultation when changing the process being followed for a Class EA. Since changing the Schedule removes entire activities from the process, a change in process is a major amendment:
“A major amendment could include the removal of certain project activities from the class environmental assessment, moving project activities into a category where a lower level of assessment is required or the inclusion of a new group of project activities.”
As a registered party-of-interest in the Master Plan EA, I can attest that the public was neither informed, nor consulted, prior to the City’s decision to drop the Master Plan EA process. There is also no evidence that the City consulted with any aboriginal community prior to making this decision.
First (and only) Public Meeting
Despite having reviewed the Phase 1 findings with KNL on August 9 2011, the first public meeting was to discuss the Phase 1 findings was not held until 9 months later on March 26, 2012 during which:
- The City confirmed that existing conditions were worse than allowed and the City committed that no further development or tree removal would be permitted prior to the submission of a revised, acceptable SWM Plan by KNL.
- The City also identified that while the AECOM study was now proceeding under the integration provisions with the subdivision approvals process, and depending on the outcome of the AECOM Phase 2 study, a decision on whether to continue under an elevated EA schedule would be made.
Yet the MCEA states that all stakeholders should be treated equally and that the most restrictive schedule is to apply whenever multiple schedules overlap. It also states that a pre-approved schedule process is intended to be used only for projects that are limited and scope and when the outcome is predictable.
- Since the City admits that more than one outcome exists depending on the findings of the Phase 2 AECOM study, clearly the outcome is not predictable. To-date, the City has not been able to explain their rationale for this.
The City also disclosed during the meeting that a significant population of Blanding’s turtle has been found within the drainage diversion area.
- Blanding’s are designated as a Threatened SAR protected under the Ontario Endangered Species Act, and are sensitive to even a 1% increase in mortality rate (which is why it has become Threatened).
- As a hybrid aquatic/terrestrial species, any change to base flow or wetland hydrology in either Kizell or Shirley’s Brook may have a negative effect on individuals and ultimately the entire population.
- According to slide 8 presented by the City’s senior environmental planner at the meeting, Nick Stow, the City does not believe that the proposed development can proceed without harm to the turtles.
- Consequently KNL will require permits issued by the Ministry of Natural Resources (MNR). Under Section 17 of the Endangered Species Act, the MNR will require mitigation by KNL to ensure the maintenance of a viable population of Blanding’s Turtle, as well as measures which will improve its habitat.
- For some mysterious reason, the City Planning Department would have the public believe that all this is merely a “business-as-usual”, pre-approved factor within the subdivision’s SWM planning process – with no opportunity for public comment on mitigation measures.
- However, this constitutes a significant change to environmental setting that was seemingly NOT previously disclosed by the City to the MoE or to Amos. According to the MCEA, a significant change in environmental setting is supposed to trigger a re-evaluation of the terms of reference and process schedule being followed. Nearly a year later, the City has not responded to why this has not occurred.
The next public meeting, to disclose Phase 2 findings and an update on the ongoing, independent Blanding’s study, was scheduled for Jan 30, 2013 but appears to have been postponed by the City so that further exploration of the drainage area diversion project can continue in secret.
Is Secrecy A Good Idea?
Without a well-defined Schedule C Class EA process to follow, the City’s planners could be characterized as “winging-it” with no legally defined process by which it can engage the riparian landowners downstream that would be affected by KNL’s drainage area diversion – creating a potential legal liability for both the City and KNL in the event of future damages.
- A Drainage Act process is required to engage riparian interests only if changes to the Kizell Municipal Drain are contemplated.
The lack of a well-defined process for public consultation, no assurance, nor any requirement for the City to continue to hold public meetings significantly undermines both the spirit of, and the guidelines of conduct for EAs in Ontario.
- Why has City Councillor Marianne Wilkinson apparently failed to impress upon the Planning Department that a Schedule C Class process must be followed in recognition of the widespread community concern about the recognized problems with KNL’s existing and future SWM plans?
- Why is the Planning Department apparently catering to KNL’s desires, at the expense of the broader public interest, by not asserting the City’s legitimate right to conduct a Master Class EA process to re-evaluate what seems to be a messed-up situation that affects residents in multiple subdivisions as well as riparian landowners downstream?
- Why does the Planning Department seem to put more weight on the opinions of unqualified planners over those of licensed professional engineers when making decisions in engineering matters related to public health and safety?
With no defined public disclosure and feedback process, what will occur if the subsequent engineering studies continue to bring into the sunlight more embarrassing facts? A Schedule A or A+ process will allow KNL and the City planning department to keep these facts hidden from public view.
- Is this the model of public transparency that should exist in Ontario?
Allowing a subdivision approvals process to steamroll ahead regardless of environmental, health, and safety issues is a disservice to the citizens of Ottawa and contrary to the intent of provincial law.
- Meanwhile, the public continues to find gaps, inconsistencies, and errors as information about subdivision approvals continues to slowly be disclosed. These range from conflicting engineering assumptions about the size of a critical culvert under GFR, to missing approvals.
- The root cause for these gaps appears to be apparent lack of due diligence in fact-checking KNL documents compounded by the apparent rush by planners to push development approvals through the process.
Shouldn’t Mayor Watson be concerned when planners and lawyers apparently meddle in engineering decisions already made by qualified professional engineers – especially if it is to avoid embarrassment?
Time To Do The Right Thing
It is not too late to do the right thing by ensuring that this Master Plan Class EA be completed as originally commenced under a well-defined Schedule C process, led by qualified engineers who are independent of KNL, and conducted as a model of open and transparent decision-making in the sunlight of public engagement.
In view of the overwhelming problems associated with the drainage area diversion, why is a diversion being considered any further?
- Any diversion will require adding over 124 Million Liters of capacity to Beaver Pond to replace missing capacity documented by the 2011 AECOM Phase 1 study.
- According to the 2001 NEA Implementation Plan, deepening Beaver Pond reservoir will de-water the PSW just as it did the last time the reservoir capacity was increased. In addition to compromising riparian rights of adjacent landowners such as Teron, it will also require approvals under the Ontario Water Resources Act.
- According to the 2010 TFDE CEAA Part B section 11.3.5, any blasting in the SMH releases contaminants into nearby wetlands and risks fracturing the bedrock, causing unintended groundwater flows. This may increase base flow in Kizell Municipal Drain.
- The Provincial Policy Statement Section 2 states in no-uncertain terms that development is not to be permitted in significant natural areas and that planners are supposed to protect surface and ground water.
The questionable handling of this EA process highlights the need to limit interference by unqualified staff in the regulated activities of professional engineers.
- The Professional Engineers Act of Ontario requires that only licensed professional engineers may legally conduct or direct work that affects public safety.
- Registered planners are not licensed engineers and the apparent failure to separate their respective duties within the City’s Planning department appears to be risking public health & safety.
To deal with what appears to be the underlying problem of systemic interference in SWM engineering activities, a comprehensive review of the organization of and responsibilities within the City’s Planning & Infrastructure Portfolio should be conducted to assure that:
- All engineering-related planning approval work is conducted only by engineers in a manner that is free from any interference by less-qualified planning staff.
- All SWM engineering work and the discretion to direct engineering work is in fact under the control of a qualified water resources Professional Engineer who is professionally accountable for its results.
- Safeguards and process checks are in place to identify and prevent piecemealed planning approvals that are a chronic problem in Ottawa.
Public participation should also be promoted in the conduct of environmental assessments including obtaining public input on the selection of appropriate EA Schedules; as well as open public access to engineering documents submitted by developers.