Ministry of Transportation Ministère des Transports MINISTRY DIRECTIVE Program: Provincial Highway Management Division Directive: PLNG B012 Issuing Authority: Director, Highway Standards Branch Date of Issue: 16 March 2010 Effective Date: 16 March 2010 Revised: TO: Director Engineering Standards Branch, Regional Directors, Managers of Operational Services, Managers of Contracts, Managers of Engineering, Heads of Planning and Design, Heads of Property, Field Services Engineers SUBJECT: Drainage Act Ministry of Transportation Policy and Procedures ALTERNATIVE INDEX LISTING(S): Drainage Works Municipal Drains This directive supersedes Provincial Highways Directive B-63 last revised 87 06 01. REFERENCE: Drainage Management Manual, Part 1, Ministry of Transportation (MTO) Drainage Act, R.S.O. 1990, c. D.17, Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) Municipal Tax Assistance Act, R.S.O. 1990, c. M.59, Ministry of Municipal Affairs and Housing (MMAH) Contact Reference: Drainage and Hydrology, Design and Contract Standards Office, Ministry of Transportation DEFINITIONS: In this Directive, Drainage Engineer means a professional engineer appointed by the municipal council to undertake the drainage studies associated with a municipal drain. Highway Crossing means the crossing of a highway via a culvert or bridge excluding all other components of the highway drainage system.
Highway Drainage System means a system of pipes, ditches, and/or other appurtenances that convey runoff from the Highway Drainage Area to a sufficient outlet. Ministry means the Ministry of Transportation, which may be interpreted to mean Manager of Engineering, Head of Planning and Design, Manager Contracts and Operations or Field Services Engineer or Operations Engineer, at the discretion of the Regional Director. Mutual Agreement Drain means a drain constructed or improved under written agreement between two or more landowners, as defined by the Drainage Act. Petition Drain means a drain constructed or improved under a petition filed with a municipality, as defined by the Drainage Act. Requisition Drain means a drain constructed or improved under a requisition filed by a landowner, as defined by the Drainage Act. The requisition process is generally undertaken where an owner is unable to get sufficient signatures to initiate a petition drain. Organized Territory refers to territory with municipal organization. Unorganized Territory refers to territory without municipal organization. PURPOSE: (a) To clarify and document the Ministry's policy with respect to proceedings under the Drainage Act. (b) To define the responsibilities and key activities for the Ministry s area and regional staff in the initiation, review, and approval of drainage works implemented under the Drainage Act within or affecting highway rights of way and other lands owned by the Ministry, in both organized and unorganized territory. The directive is not intended to provide a detailed summary of Drainage Act procedures. PART A - ORGANIZED TERRITORY POLICY FRAMEWORK: The following statements reflect drainage policies established in accordance with applicable Acts, Regulations or Directives of the Ministry and other agencies. (1) Under Section 4(1) of the Drainage Act, property owners and others may petition the local municipality to solve their drainage problem. The Drainage Act considers a petition signed by the following parties to be a valid petition: i. the majority in number of owners of lands in the area that requires drainage; ii. the owner or owners of lands representing at least 60% of the hectarage in the area that requires drainage; iii. a director appointed under the Drainage Act; or iv. a road authority where the road requires drainage. 2 Directive PLNG-B-012
(2) Under the Drainage Act, the costs for construction, improvement, and maintenance of municipal petition drains are apportioned between owners of lands in the area drained by the works, including road authorities. Assessments under the Drainage Act including assessments for increased costs of drainage works caused by the existence of works owned by the Ministry of Transportation (Section 26 of the Drainage Act), are considered to be a tax. Therefore, these payments are administered by the Ministry of Municipal Affairs and Housing, Municipal Programs and Education Branch in accordance with the Municipal Tax Assistance Act (see Memorandum of Understanding, Attachment #1). (3) The fundamental purpose of the drainage systems of provincial highways is to serve the present and future transportation needs of the Province. Any other use of a highway drainage system which may inhibit accomplishment of the fundamental purpose will not be permitted (Directive PLNG-B-014). (4) The fundamental purpose of the rights of way of provincial highways is to serve the present and future transportation needs of the province. Any other use of a highway right of way which may inhibit accomplishment of the fundamental purpose will not be permitted (Directive PLNG-B-014). Any drain that must be located within the Ministry s right of way will be located so as not to impede the fundamental purpose of the highway right of way. (5) Before constructing a municipal drain on, through, or within the area of control of a Ministry highway right of way, the municipality must obtain an Encroachment and/or Building and Land Use Permit from the regional Corridor Control office (Public Transportation and Highway Improvement Act, Sections 31, 34, and 38). (6) Where the Drainage Engineer files a report with the municipality stating that the petitioned works is not required, is impractical, or cannot be constructed, the Ministry will accept an assessment for part of the cost of the Engineers Report only if the petition was signed by the Ministry (Drainage Act Section 40). (7) Where the Ministry wishes to relocate an existing drainage works, or part thereof, that is on or adjacent to the highway right of way, the Ministry may request the municipality to initiate such relocation (Drainage Act Subsection 77(2)). The relocation and associated costs including the cost of an Engineer s Report will be at the expense of the Ministry. (8) Where the Ministry wishes to relocate an existing drainage works as per Policy Framework (7) to another location entirely within the Ministry s lands the appointed engineer may prepare a written opinion rather than a full Engineer s Report (Drainage Act Section 77(3)). POLICY: Fundamental Policies: (1) In General, the Ministry will co-operate with municipalities in support of any reasonable works under the Act including construction, regular maintenance and future improvements. (2) The Ministry, in appropriate cases, will continue to make use of provisions of the Drainage Act for the purpose of procuring drainage of provincial highways or other property under the control of the Ministry. (3) Further to Policy Framework (4), municipal drainage under the Drainage Act, aside from that required for a highway crossing, is not considered a fundamental purpose of the highway drainage system. (4) For existing drainage works constructed under the Drainage Act, the Ministry will adhere to the provisions of the relevant municipal by-law. 3 Directive PLNG-B-012
Operative Policies: (1) Drainage Works Under the Drainage Act (i) Mutual Agreement Drains (Drainage Act Section 2) The Ministry may consider the use of mutual agreement drains, provided the agreement is between the Ministry and a municipality. (ii) Requisition Drains (Drainage Act Section 3) The Ministry will not initiate a requisition. The Ministry may consider requisition drains requested by others when the proposed drainage works are of tangible benefit to the Ministry. The drainage works cannot exceed more that $7500 in order for Section 3 to be applicable. (iii) Petition Drains (Drainage Act Section 4) The Ministry will utilize the petition drain process as the primary mechanism for acquiring drainage outlets under the Drainage Act. Further to Policy Framework (1)(iv), the Ministry will only sign petitions initiated by others when the proposed drainage works are of tangible benefit to the Ministry. Where the initiation of a petition may rectify a problem that affects a highway, the Ministry may initiate such a petition. Where the Ministry of Transportation has lands other than right-of-way or patrol yards that may be within the area requiring drainage, the regional Head, Property Section should be consulted. (2) Signing Authority for Drainage Works Under the Drainage Act The signing authority for works under the Drainage Act lies with area and regional staff as outlined below. (i) (ii) (iii) Where no current work project exists the Field Services Engineer or Operations Engineer has the authority to initiate a petition to rectify a problem affecting a highway or sign petitions initiated by others for drainage works under the Drainage Act. Where a current work project exists, the regional Manager, Engineering Office, has the authority to initiate a petition or sign petitions initiate by others for drainage works under the Drainage Act. The Chief Engineer, Provincial Highway Management Branch, has the authority to sign petitions as in (i) and (ii) above, when so requested. (3) Procedure (i) Upon Receipt by the Municipal Clerk of a Petition (a) Upon notification and where the highway is likely to be substantially affected or assessed the Field Services Engineer, Operations Engineer or designated representative will make reasonable efforts to attend the site meeting with the Drainage Engineer, to represent the Ministry s interests. 4 Directive PLNG-B-012
(b) The field Services Engineer, Operations Engineer or designated representative will advise the municipality and/or the Drainage Engineer of the Ministry requirement for application for an Encroachment Permit for all associated drainage works to be constructed on Ministry property. The regional Head, Property Section should be advised in cases where significant non right of way Ministry property is affected. (ii) Upon Receipt of an Engineer's Report (a) The Engineer's Report will be examined by the Ministry to determine whether consent in the form of an encroachment permit should be given to the municipality. The following aspects of the proposed drainage works deserve special attention: feasibility of the overall scheme as it relates to the highway (the engineering), design details (culvert end area, obvert and invert elevations, specifications, standards. etc.), construction method, restoration of roadway and right-of-way, scheduling (timing of highway projects and encroachment work), reasonableness of costs assessed to the Ministry for benefit, outlet liability, injuring liability, crossing or special benefit, and benefit/cost with regard to highway needs. (b) (c) The Ministry may bring to the attention of the municipality any major deviations from the procedures of the Act, doubtful assessments levied against the highway, or omission of the Ministry s requirements and request appropriate amendments. Once the Ministry is in agreement with the proposed works, associated details and the costs assessed to the Ministry, the Field Services Engineer or Operations Engineer will approve the municipal Application for Payment of the Drainage Assessment (see attachment 2). The Field Services Engineer or Operations Engineer may approve the encroachment permit application and issue the encroachment Permit or forward the encroachment permit application to Corridor Management Office with his/her recommendation for approval and issuance of the permit. The Corridor Management Office will issue the permit accordingly. The permit will contain the following additional stipulation: Notwithstanding any other provision of this permit, the Ministry may carry out such maintenance or alterations of the encroachment as may be required for the safe or proper operation of the highway as determined by the Ministry." The Field Services Engineer or Operations Engineer will not approve the municipal Application for Payment of Drainage Assessment, notify Corridor Management office or forward the encroachment permit application to Corridor Management for approval until he/she is in agreement with the proposed works, associated details and the costs assessed. Where significant other Ministry lands are involved, the Field Services Engineer or Operations Engineer shall advise the regional Head, Property Section of the location of the proposed drainage works. (d) During and after completion of construction of drainage works within the right of way, the site will be examined by the Field Services Engineer or Operations Engineer to ensure that: the facility has been built in accordance with the original design approved by the Ministry, 5 Directive PLNG-B-012
the work was carried out in conformity with Ministry standards and specifications, and the roadway and right of way or other Ministry lands have been restored to their original condition to the satisfaction of the Ministry. (e) Assuming that all concerns have been resolved via steps (b), (c), and (d), the form "Application for Payment of Drainage Assessments" (see Attachment 3) received from the municipality will be endorsed by the Field Services Engineer or Operations Engineer and forwarded to the Municipal Programs and Education Branch, Ministry of Municipal Affairs and Housing. A copy of the endorsed application will also be sent to the municipality. (iii) Upon Engineer's Written Opinion (subsection 77(3) of the Drainage Act) The Ministry may relocate a drainage works within the highway right of way upon an engineer's written opinion rather than a report, in accordance with subsection 77(3) of the Drainage Act. The Ministry will bear the full cost of the work. If the engineer recommends in his/her written opinion against the Ministry's proposal, and the Ministry cannot meet the engineer's objections but still wishes to relocate the drain, the Ministry may approach the municipality to initiate relocation under subsection 77(2). Procedure (2) Upon Engineer's Report", will then apply. (4) Appeals (i) (ii) In general, the Ministry will only approve costs assessments that the Field Services Engineer or Operations Engineer regards as reasonable and will not approve the municipal Application for Payment of Drainage Assessment. However, the Field Services Engineer or Operations Engineer shall have the discretion to make use of the assessment appeal procedures provided by the Drainage Act. Prior to appealing, the regional Manager, Operational Services and the Field Services Engineer or Operations Engineer will discuss the circumstances surrounding the appeal with the Regional Director. An example of a situation whereby the Ministry might appeal would be a case where a provisional bylaw has been passed and a local Court of Revision or the Tribunal has revised the original assessment to the detriment of the Ministry. If requested to do so by the municipality, the Ministry will make reasonable efforts to attend appeal hearings brought about by other parties and involving the Ministry PART B - UNORGANIZED TERRITORY POLICY FRAMEWORK: The following statements are overriding policies established by the Acts, Regulations, or Directives of Ministry or other agencies. (1) To assist in the construction of agricultural drains in-areas without municipal organization by the payment of grants for road crossings, an Order-in-Council was approved 80 06 11 by the Lieutenant Governor in council to establish the "Northern Ontario Drainage Assistance Program" (attachment 4). (2) The Ministry may consider the use of mutual agreement drains between the Ministry and private land owners as a means to acquire drainage in an unorganized territory. The agreement for the mutual drain shall be registered on title at the local registry office. (3) Clause 2 of the Order-in-Council states that the Ministry of Transportation will supply plans, specifications, contracting and supervision of the work on road crossings. Based on the expectation that such drainage works will not occur frequently and will not cause a high demand of Ministry of Transportation staff, the Ministry of Transportation will absorb its own contract preparation and inspection costs. Alternatively, Ontario Ministry of Agriculture and Food may choose to appoint a 6 Directive PLNG-B-012
POLICY: drainage engineer to perform these tasks, with the proposed works subject to Ministry of Transportation approval. (4) Clause 4 sets out the payment of the grant by the Ontario Ministry of Agriculture and Food upon satisfactory completion of the work within the highway right-of-way. Fundamental Policy: (1) In general, the Ministry will cooperate with the Ontario Ministry of Agriculture Food and Rural Affairs in support of any reasonable drainage works under the Act in unorganized territory. Operative Policies: (1) Upon being notified by Ministry of Agriculture Food and Rural Affairs of an application for a drainage works crossing or encroaching upon a highway right-of-way in an unorganized territory, the Ministry will review the proposed project either with or without Ontario Ministry of Agriculture and Food representatives, to assess Ministry requirements. (2) The Ministry will arrange for construction of the portion of the drain within the highway right-of-way. Work outside the right-of-way will be done by others. The work can be carried out by (a) day labour, or (b) a small contract prepared and administered by the Ministry, or (c) other suitable means (3) Since the work must be completed to the satisfaction of the Ministry of Agriculture Food and Rural Affairs, the Ministry shall consult the Ministry of Agriculture Food and Rural Affairs Drainage Coordinator prior to contract award (or start of work, in the case of day labour) and again prior to acceptance of the completed work. (4) The method of payment for the work is optional: (a) the Ministry may endorse the Contractor's billing and forward it to the Drainage Co-ordinator, Ministry of Agriculture Food and Rural Affairs, for direct payment to the Contractor; or (b) the Ministry may pay the Contractor and be reimbursed by the Ministry of Agriculture Food and Rural Affairs; or (c) if the work was done by day labour, the Ministry may bill the Ministry of Agriculture Food and Rural Affairs for a reasonable amount. (5) If the Ministry of Agriculture, Food and Rural Affairs appoints a Drainage Engineer for this work, policies (3), (4) and (5) above are not applicable. In these instances the Field Services Engineer or Operations Engineer should advise the Drainage Engineer that an Encroachment Permit for the project is required. - 0-7 Directive PLNG-B-012
Attachments 1- Memorandum of Understanding between Her Majesty the Queen in rights of the province of Ontario represented by the Minster of Transportation for the Province of Ontario and her Majesty the Queen in right of Ontario as represented by the Minster of Municipal Affairs and Housing for the Province of Ontario (2007). 2- Delegation of Authority 3- Application for Payment of the Drainage Assessment. 4- Order-in-Council No.1673/80. 8 Directive PLNG-B-012
Attachment 1
Attachment 1
Attachment 1
Attachment 2
Attachment 2
Attachment 3 Ministry of Municipal Ministère des Affaires Application for Payment of Drainage Assessments Affairs municipales The Municipal Tax Assistance Act Ontario Municipal Programs and Education Branch Direction des programmes municipaux et de la formation du personnel Transfer Payments Unit Unité des paiements de transfert 777 Bay Street, 3rd Floor 777, rue Bay Toronto ON M5G 2E5 Toronto ON M5G 2E5 Demande de paiement des évaluations Phone : (416) 585-7296 Téléphone : (416) 585-7296 de travaux de drainage Fax : (416) 585-7230 Télécopieur: (416) 585-7230 La loi sur les subventions tenant lieu d impôt aux municipalités Instructions: Please submit in duplicate and attach one copy of the final schedule of assessments and one copy of the most recent report, if not already provided to Ministry of Municipal Affairs at the above address. Note: If the assessed property is owned by the Ministry of Transportation (MTO), please complete and forward this application to the appropriate district office. Municipality / Municipalité Instructions: Prière de soumettre deux exemplaires de la demande et de joindre une copie du tableau final des évaluations et une copie du rapport le plus récent si ce dernier n a pas déjà été envoyé. une copie du rapport le plus récent si ce dernier n a pas deja été envoyé au ministère des Affaires municipales à l'adresse indiquée cidessus. Remarque: Si la propriété faisant l objet de l évaluation appartient au ministère des Transports, prière de remplir et d envoyer la présente demande au bureau de district approprié. County / Region / Comté / région Name of Drain / Nom de l installation de drainage Nature of Work Undertaken / Nature des travaux Date Drainage Works Completed θ Construction θ Improvement θ Maintenance and Repair Date d achèvement des travaux de drainage Amélioration Entretien ou réparation Total Cost Coûts totaux *Provincial Assessment *Évaluation provinciale* - *including a special assessment of *incluant une évaluation spéciale de Required Property Information / Renseignments sur la propriété Name of Ministry Assessed / Nom du ministère faisant l objet de l évaluation Estimated $ / Coûts prévus ($) Actual $ / Coûts réels ($) Roll Number and Legal Description of Property Assessed / Numéro du rôle d évaluation et description légale de la propriété évaluée Certificate of Treasurer I certify, that the information set forth in this application for grant is correct and that the estimated costs and assessments described above have been extracted from the most recent report prepared with respect to this drainage work, dated and that the actual costs, which are reflected in the books of account of the municipality, have been incurred and have been assessed in accordance with both the report and the provisions of the Drainage Act. Signature of Treasurer / Signature du trésorier Attestation du trésorier J atteste que les renseignements figurant sur la présente formule de demande de subvention sont corrects et que les coûts prévus et les évaluations indiqués plus haut proviennent du rapport le plus récent relativement aux travaux de drainage dont il est question, daté du et que les coûts réels, qui correspondent à ceux inscrits dans les livres de comptes de la municipalité, ont été engagés et évalués conformément au rapport et aux dispositions de la Loi sur le drainage. Date For MTO Use Only / Reserve au ministère des Transports I confirm that this drainage work has been undertaken and completed in a manner satisfactory to this Ministry and that the portion of the cost assessed upon the highway described above is both proper and acceptable. Signature of District Engineer / Signature de l ingénieur de district J atteste que les travaux de drainage dont il est question dans la présente formule ont été exécutés et achevés d une façon satisfaisante pour le ministère et que la portion des coûts évalués relativement à la voie publique décrite plus haut est conforme et acceptable. Date Parts:/Parties: 1 &/et 2 Transfer Payment Unit, MPEB / Unité des paiements de transfert, DPMFP 3 MTO / Ministère des Transports 4 Municipality / Municipalité
Attachment 4