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Ottawa’s Watergate II – How-To Bury an EA

Green Reality, South March Highlands

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.

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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.

Contents

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

1

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)

Base & Peak Flow Relationship in Shirley’s Brook (Click to Enlarge)

2

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.

1925 SMH 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.

3

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]

4

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.”

5

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.”

6

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).

7

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)

Streamflow in Shirley’s Brook (Click to Enlarge)

8

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]

9

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 Shedule Processes

MCEA Phase Requirements for Different Schedule Processes (Click to See Entire Figure)

10

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 “.

11

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.

12

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.

13

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;
    • etc.
  • 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.

14

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.

15

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.

16

MoE Abdicates

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.”

17

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.

18

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.

19

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?

20

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.

1 Comment

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?

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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.

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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?

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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.

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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?

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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>

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Where are the Leaders?

South March Highlands

Shame

South March Highlands – Carp River Conservation Inc. (SMHCRC) – the formal entity that is otherwise known as the Coalition to Protect the South March Highlands has done what no federal, provincial, or municipal politician has managed to do – propose a fair and concrete plan for an alternative outcome.

One might think that the politicians might now rush in with great relief to join the Public-Public Partnership that the SMHCRC is proposing.  They all recognize privately that the situation is a mess because of bad planning decisions in the past; decisions made in ignorance of the significance of the area.  They all admit that these decisions would not be made today and no one wants to try to change past to solve the problem. 

Fortunately they don’t have to.  The SMHCRC’s proposal deals with the current reality and does not try to change the mistakes of the past.  It’s an agenda for moving forward, not backward, and towards an alternative development outcome that preserves and leverages the value of green infrastructure.

But yet our elected politicians feel no accountability or responsibility and appear to be devoid of moral imperative.  

Under Ottawa’s Official Plan, the city is responsible for acquiring land as important as the South March Highlands whenever the opportunity arises.  Yet there are no funds allocated for that purpose.  Shame.

In 2010, the City spent $5 B on capital projects.  This includes $1.7 B for road infrastructure and $ 183M for economic development projects.  Only $179 M of capital spending in the $1.7 B is offset by the federal Infrastructure Stimulus fund (which in combination with the province funds 2/3 of that total). 

Yet there are zero dollars available for acquiring green infrastructure and few of our politicians see the need for allocating any!  Shame.

Meanwhile the provincial politicians stand by while environmental standards are ignored and precious cultural heritage is destroyed.  Shame.

Federal politicians such as Gordon O’Connor, who managed to extend spending on $48 Billion of black infrastructure funding, cannot see how the $20 M SMHCRC proposal for green infrastructure qualifies for funding – even though it will meet the objective of the funding program by creating jobs and improving air and water quality. 

Evidently you have to pour concrete to qualify for green infrastructure funding. Shame.

Public Service?

Tim Marc, a city lawyer, represented the public at the OMB meeting organized by Urbandale on Nov 23.  This is the same Tim Marc who told Community Association Presidents and the SMHCRC in July that “The trees are coming down – no matter what”. 

Is it surprising that the result of the meeting was that OMB told Urbandale they cut down trees equal to 2 years supply of housing inventory?  One can only guess how vigorously Mr. Marc represented the public interest at that meeting. 

It is worth observing that the city’s legal department has had a very close relationship with developers over the years.  Not surprising since they work with developers on a daily basis – on both sides of the legal table. 

What is surprising is that the former city lawyer for the Regional Municipality of Ottawa Carleton now works for a developer, presumably to supplement his meagre city pension.  What does this say about the lack of conditions for accepting a public pension?  Why should we hold Cesaers wife to a higher standard of ethics than our public servants?

City staff originally estimated that fair market value of unserviced developable land inside the urban boundary is $210 K / acre which would put the acquisition of the Beaver Pond Forest at approximately $13 M.  Subsequently staff hired a consultant to arrive at a 3rd party valuation based on similar recent transactions.  That valuation is not far off of the staff estimate.

Yet staff are inexplicably refusing to release the 3rd party market evaluation they contracted for in October – not even to city council.  It is difficult to see this behaviour as consistent with public service.  Perhaps like the City police, they appear to have forgotten that they work for the public.

Win-Lose

Why does Urbandale appear to lack any moral responsibility for not developing the most ecologically sensitive lands in Ottawa?  A charitable view might be that they were unaware of the significance of the area when they purchased it.  This establishes a case for paying them fair market value for leaving it undisturbed.  However, Urbandale’s recent behaviour raises questions in the minds of some about their sincerity as a responsible developer.

According to Marianne Wilkinson, Urbandale recently decided to unilaterally reduce the 12 acre swap to 10 acres and to also dictate which 10 acres would be preserved in such a manner as to optimize their subdivision north of the Beaver Pond.  Then Urbandale pulled the land swap off of the table so that they can be paid more during an expropriation.

Many responsible businesses would attempt to reach a win-win situation in a situation like this.  Does Urbandale believe that win-lose deals with the community are best for maintaining a healthy public image?

Worse, Urbandale appears to have no interest in negotiating in good faith on selling the land to the City/Community and are now alledgedly asking for $40 M in compensation – a price increase that includes being paid for 40% land that they paid nothing for because they cannot develop it.   Is this more evidence of a win-lose mindset at Urbandale?

This is the same developer who is paying property taxes on a $6 M appraisal (which is presumably close to what they bought the land for in Sept 2000).  Do they see no shame in this? 

Meanwhile the public and other buisnesses are expected to pay urban property taxes at close to fair market value.  The city could easily find the funds for acquiring natural heritage land if developers paid their fair share of taxes!

Urbandale has also hired a lobbyist who has met with most city councillors, except Marianne Wilkinson, to ensure that they understand the developer’s position.  Some of the new councillors, even experienced ones such as Peter Clark, have declined to meet with representatives of the SMHCRC as a result.  So much for the city’s public participation policy. 

It does not appear that Jim Watson’s administration is off to the fresh start that everyone who voted for him hoped for.  Developers evidently still think that they run City Hall and that the public purse exists for their benefit.

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