Understanding the Drainage Act

Questions at the door: Continuing with detailed and technical questions and answers, the next one on my list is my understanding of the Drainage Act and its effect on Municipal governments.

I spent one week during the term when teaching Introduction to Canadian Agricultural Law in the Winter of 2022 at Lambton College on the Drainage Act. It wasn’t on the original course outline, but I made it a part of the course plan upon request from local farmers.

Upon reviewing past Council Meetings’ agendas and minutes, drainage makes up a good portion of the discussions held by Council.

Here is a portion of what I taught:

Water issues causes disputes between:

Neighbours
Family Members
Landowners vs. Road Authority

The Drainage Act empowers the municipality to facilitate & maintain the resulting drainage scheme.

Details of the procedures required to resolve drainage problems:

Improvements
Repairs
Maintenance

Since drainage projects are communal projects, involvement of the Landowners is necessary.

A Drainage System is either an open ditch or enclosed pipe system or any other water control structure that:

Improves a natural watercourse
Regulates the level of the waters of a drain, reservoir, lake or pond
Includes a dam, embankment, wall, or protective works

Landowners have 3 ways to make an application for a drain, or maintenance of a drain:

Mutual / Written Agreement
Petition (signatures of majority of the landowners and >60% of the land drained)
Requisition (for when signatures are insufficient for a petition)

Procedure:

Application to Council
Council Appoints an Engineer
- On-site meeting is held to review the drainage concern with all concerned
Report Preparation
- Plans, profiles and specifications of the drainage works
- Site Survey is completed
- Description of the area requiring drainage
- Estimate of the total cost
- Assessment of the amount portioned to landowners/road benefit or allowances
Preliminary and/or Final Report is presented to Council for approval or sent back for revision

Landowner concerns that need to be recognized:

Future maintenance costs
Working area and access to the drain
Buffer strips
Bridges/Culverts
Pumps and various erosion control structures
Cattle management
Crop harvesting
Tree, stump, or stone removal
Fence replacement
Spraying weeds until grass or cover can take over

Other concerns:

Conservation Authority – Drainage Act Project Review
- Engineer’s report is reviewed to ensure no impacts to flooding, erosion, wetlands, or conservation of land.
- Permits are required when new drains or improvements are proposed
Ministry of Natural Resources
- Endangered Species Act
Department of Fisheries and Oceans
- Projects near fish and fish habitat

Appeals

Appeals are allowed in categories of assessment, benefits and costs, construction and design, legal and procedural, and other:

Court of Revision (Municipal)
Ontario Drainage Tribunal (Provincial)
Drainage Referee (Provincial Court)

A complete table of Appeal types and which body would hear the appeal are listed on OMAFRA Factsheet 86-014.

New Developments

2021 Modernization and Updated Regulations

Under the old regulatory regime, the same process that applied to the construction of any new drainage works applied to any improvements of existing drainage works, including minor improvements.
The new regulations allow family farm operations to obtain approvals for minor improvements in a less burdensome, streamlined process (with limited exceptions).

Green Infrastructure Considerations for new drainage projects

Incorporation of erosion control features and sediment control basins along drains.
Structures utilizing the natural environment and engineered systems to manage water.
Small earthen dams holding water on the land for up to 24 hours, releasing it slowly through surface and blind inlets into the tile drainage system.

~Gary Martin~

Understanding the Drainage Act