Appeal No. CA 003-93

L. Kamerman
Mining and Lands Commissioner

Wednesday, the 24th day of November, 1993.

The Conservation Authorities Act

In the matter of

An appeal to the Minister under subsection 28(5) of the Conservation Authorities Act against the refusal to issue permission under Ontario Regulation 175/80 to place fill and install a culvert on part of Lot 8, Concession I, in the Township of Osgoode, Regional Municipality of Ottawa-Carleton.

Between:

Don Lowe
Appellant

and

Rideau Valley Conservation Authority
Respondent

Order

Whereas an appeal to the Minister of Natural Resources was received by the tribunal on the 6th day of April, 1993, having been assigned to the Mining and Lands Commissioner by virtue of Ontario Regulation 364/82;

And whereas a hearing was held on November 18, 1993 in Ottawa, Ontario;

Upon hearing from the parties and reading the documents filed;

  1. This tribunal orders that the appeal from a refusal of the Rideau Valley Conservation Authority to issue permission to install a culvert and place fill on part of Lot 8, Concession I, in the Township of Osgoode, Regional Municipality of Ottawa-Carleton, is hereby dismissed.
  2. This tribunal further orders that no costs shall be payable by either party to the appeal.

Reasons for this Order are attached.

Dated this 24th day of November, 1993.

Original signed by L. Kamerman
Mining and Lands Commissioner

Appeal No. CA 003-93

L. Kamerman
Mining and Lands Commissioner

Wednesday, the 14th Day of November, 1993.

The Conservation Authorities Act

In the matter of

An appeal to the Minister under subsection 28(5) of the Conservation Authorities Act against the refusal to issue permission under Ontario Regulation 175/80 to place fill and install a culvert on part of Lot 8, Concession I, in the Township of Osgoode, Regional Municipality of Ottawa-Carleton.

Between:

Don Lowe
Appellant

and

Rideau Valley Conservation Authority
Respondent

Reasons

Sitting in Hearing Room 2 of the Rent Review Hearings Board Offices, 4th floor, 255 Albert Street, Ottawa, Ontario, on November 18, 1993.

Appearances:

Don Allan Lowe Representing himself
Helmut Brodmann Representing the Rideau Valley Conservation Authority

Witnesses:

Bruce A. Reid, P. Eng., Water Management Coordinator for the respondent, gave evidence on the function of grassed waterways and discussed its Draft Policies Regarding Storm Water Management.

Don Allan Lowe gave evidence concerning his reasons for making the Application and concerning flooding at his residence.

Background

An Application (Ex. 1) was filed by Don Lowe with the Rideau Valley Conservation Authority (the "RVCA") on December 7, 1992 for the Alteration of a watercourse, installation of a culvert and placement of fill to existing grade on part of Lot 8, Concession I, in the Township of Osgoode, Regional Municipality of Ottawa-Carleton, municipally known as 1627 River Road, Manotick, Ontario (the "subject lands"). Pursuant to a hearing held on March 25, 1993, permission was refused. Mr. Lowe was notified by letter from the RVCA on March 26, 1993 (Ex. 11) which sets out the following reasons:

  1. The affects (sic) the control of pollution in that grassed waterways allow for nutrient release and the potential presence of the only pipes outlet at this location provides one of the only opportunity's (sic) for nutrient take up and ground water infiltration;
  2. the affects (sic) of the conservation of land in that the removal of the last grassed waterways in the area is not considered to be a coordinated approach to the use of land as it relates to water management and quality;
  3. the area is entirely within the limits of the 1:100 year flood plain;
  4. the granting of permission would have precedential implications.

The Mining and Lands Commissioner (the "tribunal") is appointed by Order in Council pursuant to subsection 6(7) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M. 31. The tribunal has been assigned the role of the Minister of Natural Resources for conducting appeals under subsection 28(5) of the Conservation Authorities Act by Ontario Regulation 364/82 passed pursuant to the Ministry of Natural Resources Act.

Facts not in dispute

The subject lands lie south of Kilby Lane and west of Regional Road 19, in the Township of Osgoode. Along the west side of the subject lands is a portion of a larger easement in favour of the Township of Osgoode, being a municipal drainage ditch which runs south from Kilby Lane a drains into the Rideau River 50 metres away. The easement has been further described as Part 1 on Plan 5R-5344, registered October 28, 1980 (Ex. 24), and Parts 3, 5, and 7 on Plan 5R-12953 (Ex. 23), registered August 10, 1989.

The easement was granted to the Corporation of the Township of Osgoode by James Clifford Davidson on September 10, 1980 (Ex. 25).

The entire easement lies within the flood line marking the regional flood, as described pursuant to Schedule 3, of Ontario Regulation 166/90 ("O.Reg. 166/90")(Ex. 26), being set out on map RV3-36, sheet 33 (Ex. 27). O.Reg. 166/90 governs applications for the alteration of watercourses, installation of culverts and placing of fill, among others. In particular, sections 3 and 4 are applicable:

  1. Subject to section 4, no person shall,
    1. construct any building or structure or permit any building or structure to be constructed in or on a pond or swamp or in any area susceptible to flooding during a regional storm;
    2. place or dump fill or permit fill to be placed or dumped in the areas described in the Schedules whether such fill is already located in or upon such area, or brought to or on such area from some other place or places; or
    3. straighten, change, diver or interfere in any way with the existing channel or a river, creek, stream or watercourse.
  2. Subject to the Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of the land.

Issues:

  1. Will the proposed interference with a watercourse, installation of a culvert and placing of fill affect the control of flooding, pollution or conservation of land?
  2. Would the granting of permission create a precedent for similar applications?

Evidence:

Mr. Lowe appealed the refusal to the Minister of Natural Resources by letter dated April 16, 1993 setting out the following reasons:

  1. That the Executive Committee of the RVCA is using a heavier hand to limit my enjoyment of my property.
  2. That as a life long farmer in the area I have always sought to improve and care for the land that I have farmed.
  3. That the works proposed by me are very minor in changing the municipal drainage easement which runs through my property.
  4. That the Township of Osgoode has no objection to my installing these drain pipes.
  5. That this area is developed and the present ditch is a hazard to children who pay in the area.
  6. That there will be no loss of capacity to hold water as a result of the installation of these two drainage pipes.
  7. That the area of grassed waterway is so small in relation to the rest of the grassed waterways on my land that it is unreasonable for the RVCA to refuse this insignificant request.
  8. That the granting of this request could easily be distinguished from other similar requests due to the above factor.

Mr. Lowe gave evidence concerning the drainage problems he was encountering on his own property. He stated that eight feet of fill had been allowed on a neighbouring property for the construction of a residential dwelling. The placing of this fill has caused flooding in his residence. The neighbouring dwelling, being the grey house shown on the montage of four photographs labelled Exhibit 29A, has a cedar hedge running the depth of the property, which runs alongside the easement/drainage ditch. Mr. Lowe's portion of the drainage ditch is south or to the right of where the hedge ends. While the Lowe residence fronts on Kibly Lane, it runs along the east and south side of the land belonging to the grey house.

Mr. Lowe's Application is to install two pipes within the ditch, of 30 inch and 20 inch diameters, and filling in over the pipes to create a flat surface matching the rest of his property. He stated that if permission is not granted, he would be installing culverts elsewhere on his property away from the drainage ditch, to promote better drainage from his property in the vicinity of his house to the ditch.

Mr. Lowe agreed that part of the reason for his Application is aesthetic. As matters now exist, he must rely on the Township to clean the ditch every fall, thereby clearing out growth of vegetation.

Bruce Allan Reid is responsible for flood control and implementation of the RVCA's policies. Viewing the photographs filed, he stated that Exhibit 29A is taken from just west of the intersection of Kilby Lane and a private lane which is immediately west of the drainage ditch. The drainage ditch is located between the hedge alongside the grey house and the private lane. Exhibit 29B is taken from Kilby Lane looking south along ditch. Exhibit 29C is similar, having been taken from a more westerly point. All photographs were taken on August 24, 1993.

Mr. Reid characterized the purpose of the ditch as being the main storm run off for the Kilby Lane Subdivision, which is located north of Kilby Lane. Most of the drain is grassed, rather than piped, with the exception of portions running under roads. The ditch serves to convey runoff to the Rideau River. Roadside ditches run into the drainage ditch, which serves as an integral part of the drainage system for the subdivision, and part of the storm water management program.

Mr. Reid referred to the RVCA Draft Policies for Storm Water Management (Ex. 14). He quoted the following:

Modern urban drainage practice combines the traditional local drainage objectives with receiving stream protection objectives, including:

  • controlled runoff rates, as required to avoid increased flooding and/or accelerated erosion rates downstream
  • water quality control to meet established criteria for public heath protection and protection of aquatic habitat
  • designation of stream reaches to be maintained in a natural state during and after development for ecological and public use and enjoyment purposes
  • base flow maintenance for sustained ecological integrity

Mr. Reid explained that storm water management had historically been thought of as an engineering problem, having been a means of protecting buildings and inhabitants from flooding. In other words, the only context for the infrastructure was a means of getting rid of excess water for reasons of public health and safety.

As thinking has evolved, the impact of storm water management systems on the environment was better understood, so that the drainage systems came to be regarded as a natural resource.

The function of naturalized grassed waterways was to enhance water quality in addition to storm water management. The RVCA's policies fit in with its regulatory function in that its role in assessing how encroachment into a drainage ditch, which the RVCA regards as a grassed waterway, will impact on concerns over which the RVCA has jurisdiction, namely the control of flooding, pollution or the conservation of land.

Mr. Reid stated that the location on the subject lands upon which Mr. Lowe is seeking to install a culvert is located within the limits of the 1:100 flood plain of the Rideau River, thereby being flood prone. The placing of fill will remove some of the flood storage capacity provided. While the amount of fill proposed may not be great, with numerous applications, there can be a cumulative impact on the capacity of the flood plain to accommodate flood waters in times of a severe flood event. Mr. Reid stated that it is not clear from the correspondence filed, but it would appear that the placing of fill is not a major factor in the decision of the RVCA. He acknowledges that the amount of fill proposed is minor.

Regarding the control of pollution, Mr. Reid explained that a grassed waterway provides an opportunity for nutrient up take not found in an engineered drainage system. He stated that the RVCA would prefer to see the waterway remain in an open condition, with more rather than less vegetative growth at its base. The vegetation allows sediment which is suspended in run-off to be filtered through vegetation. Also, the appropriate vegetation, which Mr. Reid calls enhancements, can utilize nutrients in runoff before it runs into river.

Mr. Reid notes that the base of the grassed waterway is bare silt and cobbles. The presence of vegetative growth would enhance the ability of the watercourse to perform the filtering and delaying functions in regard to run-off. If pipes were installed, the result would be that the same pollutants and sediment as would enter the pipes would come out the other end, and thus impact the river downstream. Many naturally occurring benefits and opportunities for improvement in the quality of storm run-off would be lost through installation of pipe.

Referring to the conservation of land, Mr. Reid stated that the removal of grassed waterways goes against the concept of wise use of the land. Within the urban landscape, drainage becomes integral to the management of the land. It is better, in the RVCA's opinion, to utilize better land stewardship practices. Mr. Reid added that, even though it forms part of the drainage system, for purposes of flood management, the RVCA regards this grassed ditch as a waterway, therefore being subject to its jurisdiction.

Mr. Reid stated that the RVCA recognizes that the Application only concerns 25 metres of a 90 metre watercourse. However, if permission is granted, there could be no reason for the remaining portion of the waterway to be piped and filled as well, should applications to do so be received.

Mr. Reid stated that, while there is nothing in the documentation filed to indicate the purpose of the Application being essentially for an improvement to aesthetics, this does have bearing on the matter and the reasons for refusal. He stated that, had the Application been for purposes of accessibility to a lot, it would likely have not been refused, recognizing that staff has no authority to bind the Executive of the RVCA. Accessibility would require a much shorter piece of pipe for a lane. The reason for this is that the RVCA is aware, in its decisions, of the need for the proposed application. Mr. Reid did question whether appearance is a sufficient reason to warrant the granting of permission.

Referring again to the photographs (Ex. 29A through C), Mr. Reid pointed out the luxuriant growth of vegetation in the ditch along its east side. The west side shows maintenance which he stated the RVCA would discourage. Rather, it would encourage natural growth to enhance pollutant removal.

Under cross-examination, Mr. Reid stated that the rest of the Subdivision is not piped, being drained by roadside swales. The only pipes are under Kilby Lane. Upstream of Mr. Lowe's property the grassed waterway appears as an open ditch with cattails.

Submissions

Mr. Lowe submitted that he is seeking permission to finish off his lot and contain the drainage. As far as the flood plain is concerned, flood waters could flow over the top of the pipe, so that he does not see how giving him permission would interfere with flood flows.

If his Application is allowed, the Township would not have to clear out the ditch every year. Also, the eyesore created by cattails would be removed. Mr. Lowe stated that he does not want the water on his land, either at this location or near his house.

Mr. Brodmann submitted that the Conservation Authorities Act and O.Reg. 166/90 give the RVCA a wide mandate to control development of land located within the floodplain. Section 3 of the regulation sets out a clear prohibition against installation of a culvert, interfering with a watercourse or placing of fill. It is only with the permission of the RVCA authorized under section 4 that an applicant could proceed. Permission would be granted only where the control of flooding, pollution or the conservation of land would not be affected.

Mr. Brodmann submitted that the RVCA recognized that there would be only a small loss of flood storage capacity within the flood plain because of the proposed filling. However, there are impacts on pollution and the conservation of land which must be recognized in reaching a decision.

The RVCA has concerns with regard to a proposal which would see filling and installation of culverts to convey the water which drains from the Subdivision. If the waterway is not left in its natural condition, it will lose the capacity to filter nutrients and trap sediment found in run off. Unimpeded, these nutrients and sediment will go directly into the Rideau River, which is fragile, and under pressure for development.

While it is Mr. Lowe's position that his Application involves only a small expanse of the waterway, being 25 metres, the RVCA has concerns that granting permission would impact on other similar applications, with the result that none can be denied. This would have precedential implications and have a cumulative impact on the storage capacity of the floodplain, pollution and the conservation of land.

Mr. Brodmann submitted that Mr. Lowe should not be permitted to make what is arguably a minor change in the landscape which would have more significant impacts elsewhere in the watershed.

Mr. Lowe gave evidence of the problems of flooding experienced elsewhere on his land. Mr. Brodmann submitted that there is no evidence that this is caused by the waterway nor is it clear how the culvert would lessen the problem.

As for the necessity to have the Township clean out the ditch annually, Mr. Brodmann submitted that this is, in fact, unnecessary. Vegetation enhances the beneficial attributes of a watercourse left in its natural state. As to whether it would be more pleasing to have the ditch covered over, Mr. Brodmann submitted that the benefits derived do not outweigh the potential harm this would create.

Findings of fact

The function of the grassed waterway which runs through the subject lands is to handle drainage for the subdivision to the north. Rain falling on land left in its natural state will be absorbed until the soils are saturated with the rest of the rain flowing overtop of the land. The resultant flows will either be sheet flows, meaning that they will flow over a broad expanse of land, or they will drain into any naturally occurring depressions and may appear as intermittent or permanent streams.

Soils which are exposed or loosened through cultivation will become suspended in the flowing waters. If there are no opportunities for trapping this sedimentation, it will flow into the watercourse downstream, in this case the Rideau River. This sedimentation, if in sufficient quantities, will have severe impacts on the fisheries and their habitat. Areas for feeding, shelter and spawning may be filled in or covered over. Invertebrates and plant life which the fish feed on may be smothered. Also, the sediments can damage the gills of fish (See Ex. 15, "Guidelines on the Use of "Vegetative Buffer Zones" to Protect Fish Habitat in an Urban Environment" at page 3).

Nutrients which are found in land similarly can become either dissolved or suspended in surface run-off and can impact on the quality of water downstream. This would include chemical and natural fertilizers and animal or bird waste. Fish are impacted by harmful chemicals. Also, excessive nutrients can result in the overproduction of algae which renders water oxygen poor, reducing the available oxygen to fish and other bottom dwelling species.

Overland flows of run-off during a storm event provides several important functions to the downstream watercourse. Sedimentation is more readily trapped by vegetation, thereby lessening the impact of sedimentation. The vegetation is able to either use or trap the nutrients contained in the flows which would otherwise end up in the watercourse. Vegetation also traps or retards the overland flow, so that the impact of the storm is not felt as strongly in the river, although it may last longer.

Urban development has two implications for the impact of run-off on a watercourse. There is less area available for rain to be absorbed into the soil, so that surface run-off is increased. Also, new pollutants from cars will be picked up by overland flows. Downstream, water is expected to flow more quickly and in greater volume than would have been the case with the pre-development state.

While urban storm water management originally saw the underground conveying of storm waters, this method of drainage had several impacts. The beneficial properties of overland drainage were lost, resulting in impacts downstream. Water flowing through pipes is warmer than overland flow, which greatly impacts on fish and habitat.

The recent change in the paradigm back to overland conveyance of run-off is without question beneficial in mitigating the impact on watercourses.

The grassed waterway which runs over the subject lands serves to drain a wide area of land. It is just this type of waterway which is at severe risk from development because of its seemingly minor role in relation to a large watercourse such as the Rideau River. It is through a vast number of such drainage ditches and grassed waterways that water comes to flow into a river. The tribunal finds that for purposes of section 28 of the Conservation Authorities Act the grassed waterway is a watercourse which is subject to O.Reg. 166/90.

The tribunal finds that the proposed installation of a culvert and the placing of fill will affect pollution downstream in the Rideau River. It will also impact on fish and fish habitat, thus affecting the conservation of land.

It has been agreed that the proposed placing of fill is minor. However, every cubic metre of fill placed within the flood plain reduces the capacity of the floodplain by one cubic metre. This reduced capacity does not, as Mr. Lowe suggests, allow the flood waters to merely pass over the filled area. It pushes the limits of the flood plain back from its existing boundaries onto land which was not initially part of the flood plain, thereby impacting on other properties upstream and downstream which might otherwise not have been affected. The tribunal finds that, however small in this case, the proposed filling will affect the control of flooding.

It appears that the most significant reason for the Application is improved aesthetics. In Mr. Lowe's own words, he encourages cleaning of the ditch to remove the eyesore created by cattails.

The evolving policies surrounding the beneficial contribution of natural or man-made watercourses and particularly their role in storm water management is a recent phenomenon. Inevitably there will be tension between this approach and practices of the recent past. It must be recognized that this will be particularly the case for farmers such as Mr. Lowe. Under the regulation made pursuant to the Weed Control Act, R.S.O. 1990, c. W.5, 23 weeds are listed as noxious weeds which must be destroyed unless excluded by local by-law. Similarly, lowlands which may be subject to seasonal or permanent wetness have been regarded in the past as swamps. Swamps have long been regarded by the agricultural community as worthless land. The attitude of Mr. Lowe that cattails or other naturally occurring species are an eyesore is not uncommon in this community.

While there is no jurisdiction in the tribunal, the RVCA is encouraged to develop a list of plants, including perennials, shrubs and trees, suitable for planting in and around grassed waterways, which can be found in cultivated gardens. While a cultivated and manicured result is in no way encouraged by this suggestion, and in fact disruption to the soil is discouraged, landowners could be encouraged to be stewards of these natural resources, through the selection and introduction by intermixing with the naturally occurring vegetation plants which could be grown in preference to certain plants which are found by some to be offensive.

Clearly, the prevailing attitude towards the role of overland drainage in the health of the environment will evolve over time. While it is not yet the norm to discourage lawns which are a monoculture, providing few benefits and substantial detrimental impacts depending on the amount of fertilizer and pesticides used, the starting point for the process will necessarily be in those areas where public agencies such as conservation authorities have jurisdiction. These areas comprise one of the last opportunities to naturally filter overland flows of sediment, nutrients and toxins found in run-off before flows enter into watercourses.

Conclusion

The appeal of Mr. Lowe is dismissed due to the impact on control of flooding, pollution and the conservation of land.