1 Report to Rapport au: Agriculture and Rural Affairs Committee Comité de l'agriculture et des affaires rurales 24 November 2016 / 24 novembre 2016 and Council et au Conseil 14 December 2016 / 14 décembre 2016 Submitted on November 17, 2016 Soumis le 17 novembre 2016 Submitted by Soumis par: Kevin Wylie, General Manager / Directeur général, Public Works and Environmental Services / Services des environnementaux et des travaux publics Contact Person Personne ressource: Dave Ryan, Drainage Superintendent / Superintendent de drainage 613-580-2424, ext. 25106 David.Ryan@ottawa.ca Ward: KANATA NORTH (4) / KANATA NORD (4) File Number: ASC2016-PWE-GEN-0003 SUBJECT: KNL Lands Proposed Drainage Diversion to the Kizell Municipal Drain - Report Findings and Recommendations and Appointment of Engineer for Supplemental Study and Report OBJET: Terrains de KNL Déviation de drainage proposée vers le drain municipal Kizell Conclusions et recommandations du rapport, et nomination d un ingénieur pour effectuer une étude supplémentaire et préparer un rapport complémentaire
2 REPORT RECOMMENDATIONS That the Agriculture and Rural Affairs Committee recommend that Council: 1) receive for information the Engineer s Report entitled KNL Lands Proposed Drainage Diversion to the Kizell Municipal Drain dated March 9, 2016 under Section 65 of the Drainage Act. 2) appoint Mr. Andy Robinson, P. Eng., of Robinson Consultants Inc. under Section 78 of the Drainage Act to prepare a new supplemental report to address required repairs that currently exist, and improvements and modifications that are required, to accommodate proposed development from the portion of KNL Phase 9 lands that are currently within the existing Kizell Municipal Drain drainage area. RECOMMANDATIONS DU RAPPORT Que le Comité de l agriculture et des affaires rurales recommande au Conseil : 1) De prendre connaissance du rapport d ingénieur intitulé KNL Lands Proposed Drainage Diversion to the Kizell Municipal Drain (Terrains KLN - Déviation de drainage proposée vers le drain municipal Kizell), daté du 9 mars 2016, conformément à l article 65 de la Loi sur le drainage de l Ontario; 2) De nommer M. Andy Robinson, ingénieur chez Robinson Consultants Inc., conformément à l article 78 de la Loi sur le drainage, afin qu il élabore un rapport supplémentaire concernant les réparations nécessaires au drain existant et les améliorations et modifications requises pour permettre la réalisation de l aménagement proposé, sur la portion des terrains de la phase 9 du projet de KNL qui se trouvent actuellement dans l aire de drainage du drain municipal Kizell existant. BACKGROUND The Township of March adopted the Kizell Municipal Drain pursuant to the Drainage Act under By-law 21-64 in 1964. The original drainage report was superseded by a report on the improvement of the Kizell Municipal Drain under the Drainage Act 1970 as presented to the Township of March in April 1973 under By-law 34-73. On April 9, 2014, KNL Developments Inc. made a request to the City to connect additional lands to the Kizell Municipal Drain watershed. As Subsection 65(5) of the
3 Drainage Act states that no person shall connect to drainage works without the approval of the council of the municipality, on September 10, 2014, Council appointed a qualified Drainage Engineer to prepare a report to inform Council on the impact of the connection and whether sufficient outlet under the Drainage Act could be obtained. The staff report presented at Council on September 10, 2014 (ACS2014-COS-ESD-0012), indicated that any recommended improvements and/or modifications to the existing Kizell Municipal Drain would require a subsequent appointment of an engineer in accordance with Section 78 of the Drainage Act. KNL Developments Inc., an owner of lands currently and partially within the Kizell Municipal Drain drainage area, has requested approval for the diversion of approximately 150 hectares of drainage area from the upper end of the Shirley s Brook watershed into the Kizell Municipal Drain watershed. The proposed diversion lands are described as Lots 7 and 8 Concessions 2 and 3, Township of March, City of Ottawa. As part of the KNL Developments Inc. Master Drainage Plan (MDP), a storm outlet was to be constructed along the south and east property limits of the KNL lands with an outlet to the Beaver Pond, on City property. The Beaver Pond outlets into an urban water course on private property and then into the Kizell Municipal Drain further downstream at Leggett Drive. John van Gaal, P.Eng., of Stantec Consulting Ltd. was appointed by the City of Ottawa on September 10, 2014, as the engineer of record to prepare a report under Section 65 of the Drainage Act. Section 65 of the Act deals with the subsequent connection to a drainage works, including any changes to the nature and extent of the use of the drainage works, and subsequent subdivision of lands within a drainage works. An on-site examination of the Kizell Municipal Drain was completed by the engineer of record on June 11, 2015 and June 22, 2015. DISCUSSION The report of the Council-appointed drainage engineer dated March 9, 2016 states that the Kizell Municipal Drain does not currently have sufficient capacity for the proposed diversion of additional KNL Developments lands to the Kizell Municipal Drain. As such, it is the recommendation of the Council-appointed Drainage Engineer that should the proponent wish to proceed with the contemplated development, they should petition the City of Ottawa under Section 4 of the Drainage Act, which would likely extend the Kizell Municipal Drain drainage works upstream to the Beaver Pond, and, at the same time, address existing identified capacity issues upstream of the Kizell Municipal Drain
4 between Legget Drive and Walden Drive. The costs of construction of the new drainage works will be assessed by a drainage engineer in accordance with the principles of the Drainage Act. At this time, KNL Developments Inc. has decided not to petition for new drainage works; however, in the course of the investigation and assessment of KNL Developments Inc. s connection request, the engineer identified some existing issues within Kizell Municipal Drain that should be addressed before any further water is added to the drainage system. As such, it is recommended that Council appoint an engineer to prepare a supplemental report under Section 78 of the Drainage Act. This report will be limited to examining the existing Kizell Municipal Drain and addressing and any recommended repairs, improvements, and modifications to the drain downstream of Legget Drive for Council s consideration. Staff are recommending the appointment of Mr. Andy Robinson, P. Eng, of Robinson Consultants Inc. as the engineer of record, as they have experience with similar Drainage Act projects - a specialized field of engineering in Ontario. Costs associated with the preparation of this document dated March 9, 2016 in accordance with Section 65 of the Drainage Act have been paid by the City of Ottawa s Parks, Forestry and Surface Water Services Branch of the Public Works and Environmental Services Department from Capital Internal Order 907718 Kizell Municipal Drain. All costs will be recovered from the benefiting landowners as determined by the Council-appointed engineer. All costs associated with the engineer s report will be initially paid by the Parks, Forestry and Surface Water Services Branch of the City of Ottawa, and will be recovered from the landowners, pursuant to the Drainage Act. The estimated cost of the initial review by the drainage engineer is $85,000. Additional costs are expected if the engineer determines that modifications and improvements to the drainage works are required. These costs will be assessed back to all benefiting landowners as determined by the Drainage Engineer. Funding is available in the 2016 Council-approved Rate Supported Capital Budget - Municipal Drains Program. The Drainage Act prescribes the approval process and timelines for any modification or construction of a municipal drain.
5 Schedule for the Kizell Municipal Drain Should the Agricultural and Rural Affairs Committee and Council approve the appointment of Mr. Andy Robinson, P. Eng, of Robinson Consultatns Inc., the anticipated schedule will be as follows: Council appointment of engineer to prepare a report for Council s consideration November 2016 Preparation of engineer s report November 2016 to September 2017 Submission of engineer s report and staff report containing staff s recommendation to Council October 2017 Consideration of report and Council decision under Section 78 of the Drainage Act based on implications and evaluation in the engineer s report and staff s recommendation to Council November 2017 Court of Revision December 2017 Drainage Tribunal 40 day appeal period Q1 2018 RURAL IMPLICATIONS The existing Kizell Municipal Drain will continue to provide legal outlet for urban and rural lands and roads. CONSULTATION As part of the development planning process, consultation between the developer, their representatives, City staff, the Council-appointed drainage engineer and regulatory agencies is ongoing. The City has satisfied the two requirements to provide information to the Interested Persons under the September 23, 2014, Memo from Tim Marc, Senior Legal Counsel, Legal Services, City of Ottawa, to the Chair and Members of the Agriculture and Rural Affairs Committee (ARAC) that was prepared in accordance with the Direction to Staff issued at the September 4, 2014, ARAC meeting.
6 COMMENTS BY THE WARD COUNCILLOR(S) The Councillor for Kanata North has been consulted and is aware of this report and the proposed drainage works. LEGAL IMPLICATIONS There are no legal impediments to Council receiving for information the engineer s report described in the 1 st recommendation of this report For the reasons that follow, there are no legal impediments to the implementation of the 2 nd recommendation in this report. The City has a legislated duty to maintain and repair all drains under Drainage Act (Sections 78 and 79 of the Drainage Act). The City may be liable for any damages incurred by owners of land within the Kizell Municipal Drain drainage area if the City fails to appoint an engineer under Section 78 of the Drainage Act to prepare a report to address repairs that may be required to accommodate current flows and any improvements required to accommodate the proposed change in use of lands within the Kizell Municipal Drain drainage area. If the drainage engineer appointed under Section 78 reports that a drainage works project is required to repair the existing drainage works and/or accommodate the proposed land use changes within the Kizell Municipal Drain drainage area, the existing 1973 drainage engineer s report will need to be updated and new schedules of assessment produced for the following: (i) the costs of repairs that are required to the existing drainage works, (ii) the costs of construction of the required improvements to accommodate the proposed land use changes, and (ii) the future maintenance and repair of the drainage works. Although there are no legal impediments to Council appointing a drainage engineer as recommended in this report, it should be noted that there is a potential for costs to be incurred by the City, over and above the dollar amounts the City is responsible to pay under assessments of City-owned lands. The City may be exposed to costs associated with the recovery of assessments that fall due while assessed land is exempt from taxation under the provincial Assessment Act, R.S.O. 1990, c.a.31, and the owner of the tax exempt assessed land fails to reimburse City in accordance with federal or provincial legislation that provides for the City to be otherwise compensated for the amount of the assessment. Rights of Appeal:
7 Any person may appeal to the referee Council s decision on the appointment of the drainage engineer (Drainage Act, s. 106). Any person affected by the condition of a drainage works may apply to the referee for an order compelling the City to perform maintenance and/or repairs to the drainage works (Drainage Act, s. 79). RISK MANAGEMENT IMPLICATIONS There are no risk implications associated with this report. FINANCIAL IMPLICATIONS The cost of the preparation of the document dated March 9, 2016 in accordance with Section 65 of the Drainage Act has been paid by the City of Ottawa s Parks, Forestry and Surface Water Services Branch of the Public Works and Environmental Services Department from capital internal order 907718 Kizell Municipal Drain. All costs will be recovered from the benefiting landowners, as determined by the Council-appointed Drainage Engineer, pursuant to the Act. The preparation of the Section 78 report has no tax or budget implications. The estimated cost of $85,000 for the engineer s report will be initially paid by the City of Ottawa s Parks, Forestry and Surface Water Services Branch of the Public Works and Environmental Services Department, and will be recovered through assessments from the benefiting landowners upon completion of the drainage works. Funds are available in the 2016 Council-approved Rate Funded Capital Budget - Municipal Drains Program. ACCESSIBILITY IMPACTS There are no accessibility impacts associated with this report. ENVIRONMENTAL IMPLICATIONS There are no environmental impacts associated with this report. TERM OF COUNCIL PRIORITIES The recommendations of this report align to the 2015-2018 City Strategic Priority Sustainable Environmental Services, specifically Strategic Objective ES1 Support an environmentally sustainable Ottawa.
8 SUPPORTING DOCUMENTATION Document 1 Location Plan - Kizell Municipal Drain Document 2 KNL Lands Proposed Drainage Diversion to the Kizell Municipal Drain, City of Ottawa, Kanata North Ward dated March 9, 2016 DISPOSITION The Drainage Superintendent shall notify all affected landowners and the local conservation authority of the decision of Council. Once this report is approved by Council, a separate new internal order will be created for this specific drain and all necessary funding will be transferred to it from within the Municipal Drains Program approved Capital Budget.