Background

Development proposals in Kanata West may be traced back to the construction of the "Palladium" (a.k.a. the Corel Centre, a.k.a. ScotiaBank Place) in 1995. At the time, the Ontario Municipal Board (OMB) decided that the surrounding agricultural land could not be developed. But in 2000, months before the municipal election for an amalgamated City of Ottawa, Regional Council decided to designate the 1,900 surrounding acres (780 hectares) as General Urban land.

The 42 landowners in the Kanata West area formed a Kanata West Land Owners' Group (KWOG Inc.) An elaborate process of development of a Kanata West Concept Plan followed (Fotenn). At the same time, a Water/Subwatershed Study (CRWSS) of the Carp River was completed in December 2004. (Download the CRWSS from the Mississippi Valley Conservation website here -- a 3.3 MB document. See also the City's web site.) City Council approved the Concept Plan in March 2003 and approved posting of a Notice of Completion of the CRWSS in May 2005.

The Concept Plan did not at all focus on what would happen around the River. Only towards the end of the meetings of the Public Advisory Committee was mention made of a partial filling of the flood plain.

The CRWSS, on the other hand, contained a long list of prioritized recommendations to improve the functioning of the watershed in both the rural and urban reaches -- below (north of) and above (south of) Richardson Side Road respectively. In the urban reaches, it saw opportunities for narrowing the flood plain, subject to more detailed flood level analysis.

A large number of studies was commissioned:

- Pre- and Post-Development Flow Characterisation and Flood Level Analysis for Carp River, Feedmill Creek, and Poole Creek (CH2MHill)

- Master Servicing Study (Stantec/CCL)

- Transportation Master Plan (Delcan)

- Carp River, Poole Creek and Feedmill Creek Restoration - Class Environmental Assessment (TSH, Parish)

- Delcan also produced a Consultation Report

(In 2005, as a result of the City losing a developers' appeal to the OMB, another 455 ha in the area was designated Urban - the Del, Brookfield and Westpark lands [see the Fernbank Community Design Plan topic on the Wetlands and Water Intake/Outtake Forum.] Some 200 ha of that land is estimated to drain to the Carp River.)

On May 24, 2006, City Council approved the posting of Notices of Completion of the studies and gave the green light to some 22 projects proposed as supported by the studies. Twenty-eight hectares of the Carp's flood plain would be filled.

Over the course of 2006, members of the Friends of the Carp River, Ottawa Riverkeeper, Sierra Club of Canada-Ottawa Group and the Greenspace Alliance formed a "Carp River Coalition" and engaged in an intensive dialogue with KWOG and City representatives. Their concerns were not heeded and on July 20, 2006, the Coalition filed a "Part II Order" Request under section 16 of the Environmental Assessment Act with the Ontario Minister of the Environment to stay a number of the projects until further, more reliable studies were done.

Carp River Coalition's Part II Order Request

In July 2006, the Carp River Coalition submitted a Part II Order Request under section 16 of the Ontario Environmental Assessment Act.  The CRC's brief is attached. For these and several other related documents (including cover and follow-up letters to the Minister), please visit John Almstedt's web site.

The Coalition's key objections are:

- modifications to the main channel of the Carp River are subject to the Drainage Act;

- application of a 2-zone flood plain policy under the Planning Act has not yet been approved and has even not yet formally been proposed;

- the flow characteristics and flood level analysis reports are woefully inadequate and unreliable (Del/Brookfield/Westpark lands not considered; significant model deficiencies);

- as a result, the adequacy of most designs for road crossings over watercourses is uncertain;

- the restoration plan has an incorrect scope (it should include the rural reach to past Carp Village) and its assessment as a Class EA project is not appropriate.

Ottawa River Keeper on its own and Ted Cooper also filed Part II Order Requests regarding the Restoration Plan.

[Jump to the Minister's Order of July 21, 2008!]

For an excellent article about the controversy by Patrick Dare, see The Ottawa Citizen of September 9, 2006.  (You need an OPLibrary Card number to access this.)

A 2002 City of Ottawa decision under challenge

Back in 2002, then Planning and Development Committee agreed to change a portion of the Carp River flood plain, on the opposite shore of the then Corel Centre, into a 2-zone floodplain, the floodway and a flood fringe.  Then Councillors Munter and Stavinga dissented. Council approved this rezoning on 28 August 2002 without a recorded vote.  (See PDC's Report 33 to Council, Minutes 38.  For more on 2-zone flood plain policy, look here.)

On October 11, 2007, this item popped up on the agenda of Planning and Environment Committee because the developer (The Regional Group) wanted an expansion of the list of uses for the planned development, part of which is in the flood fringe.

Private citizen Ted Cooper, a water resources engineer, intervened, as did Erwin Dreessen.  An agent for The Regional Group also spoke briefly.  Under vigorous questioning from Councillors Holmes and Doucet, staff asserted that the flood analysis models for Kanata West had been rerun to correct for the error in the size of the watershed brought to light by Mr. Cooper last June, that the differences were negligible and that all agencies had signed off on the revised results.  A promise was also extracted for staff to send the report to the "appropriate person" at the Ministry of Natural Resources.  (By the rules, MNR's Regional Engineer needs to be involved when a 2-zone flood plain application is proposed.  There is a strong suspicion that no such sign-off took place in 2002, which would make that rezoning ultra vires.)  Councillor Qadri brought up the investigation by the City's Auditor General into staff's handling of the Kanata West/Carp River file; the A-G is expected to report in May 2008.  The agent for The Regional Group assured Councillors that a 100-metre corridor would be achieved along all of the development.

In the end, on motions from Ward Councillor Feltmate, some further additions were made to the list of permissible uses and a specific reference was added regarding garden centres, requiring that they be "floodproofed" to 0.3 m above the 100-year flood level.  Unfortunately, our further suggestions to put conditions on the lifting of the Holding symbol or deferral of the rezoning that pertains to the flood fringe, were not heeded.  The rezoning was approved, with Councillors Holmes and Doucet dissenting.

The staff report is here. 

Read the intervention by Erwin Dreessen.

Read the intervention by Ted Cooper.

5 February 2008: Objections to flood plain development validated

5 February 2008

Today is a red-letter day in the long struggle to bring sanity to the proposed development in Kanata West.  As a result of being given the computer model for post-development flood level analysis on the Carp River, Ted Cooper, a City water resource engineer who was pulled off the project in 2004 when he raised objections, was able to point to egregious errors in the model.  (He was given the model because he has appealed three Carp River-related zoning amendments to the Ontario Municipal Board.)

The media are focussing on the biggest error -- that the run-off from the 700 hectares of development was not included in the calculation -- but there are several more.  This one error could raise post-development flood levels by as much as half a metre; the additional errors could add as much again.

Read Ted Cooper's letters to Premier Dalton McGuinty and Mayor Larry O'Brien.

Ottawa Citizen coverage on Feb 5 2008, page A1: 

(You need an OPL card number to access these articles)

Patrick Dare    Randall Denley 

(Note: there are some factual errors in both stories.)

Follow-up story in The Citizen, on the Mayor congratulating Ted Cooper.

Ottawa Citizen Editorial, Feb 6 2008, p. C4.

Two letters to the Editor - Ottawa Citizen, Feb 7 2008.

An article also appeared in the Vancouver Sun, Feb 5, 2008.

 CBC Radio's Ottawa Morning, 5 Feb 2008) : report by Alistair Steele and interview with Councillor Peggy Feltmate.

CBC News web site.  CBC Radio's All in a Day.  CBC Television News at 6.  CTV News at 6.  Ottawa Business Journal.

Again on CBC Radio News, a.m., 6 Feb 2008; on Ottawa Morning, an interview with Ms. Sommerville of Canadians for Properly Built Homes.

See also a page put together by John Almstedt.

Surely the prize for the most ill-founded comment, as quoted in the Citizen, comes from Minto's Jack Sterling.  He says they may not be able to build in the flood plain but then may not have to improve the flow of the Carp River either.  As if run-off from the 672 hectares of proposed development outside the flood plain would not have to be accommodated!  Sooner or later, the solution that Ted Cooper and the Carp River Coalition have been advocating -- that improving the Carp River requires improving it up to its "sufficient outlet" (near Carp Village) -- will have to be taken seriously.

The Coalition, Ted Cooper and Ottawa Riverkeeper have been waiting since July 2006 for a response from the Minister to their Request for a Part II Order under the Environmental Assessment Act that the Class Environmental Assessments for Kanata West be elevated to a full-blown Individual assessment.  The City has now asked that the Minister put his decision on hold.

Councillors are asking that a third-party assessment be made.  The City's Auditor General will issue his report on the Kanata West/Carp River mess in May.  This story is not over, but it seems finally to be heading in the right direction.  The residents of Ottawa owe Ted Cooper a huge measure of gratitude for his persistence in protecting the public interest.

Erwin Dreessen

CRC media release of 18 February 2008

18 February 2008

The Carp River Coalition issued a media release in order to draw attention to what is believed to be the solution to the Kanata West conundrum:  The flow of the Carp River must be improved, not just in the urban reach as is planned by the developers and the City, but all the way to the Village of Carp.  That is where the Ontario Court of Appeal, in 1909, determined that the "sufficient outlet" of this watercourse is located.

Read the press release here:  English  -  Français

Erwin Dreessen

Updates: 

Our press release was reprinted verbatim in the February 22 edition of the West Carleton EMC weekly paper; there was also a Letter to the Editor.  As well, at the very end of his story on Day 2 of Ted Cooper's OMB hearing Patrick Dare in The Citizen had an oblique reference to the "comprehensive solution."

The press release brought about an article by Sara Falconer in the Ottawa Express of 28 February, dealing with the Kanata West fiasco in general and the "comprehensive solution" in particular.  (To avoid misunderstandings, a few corrections: 725 ha is the size of the Kanata West development; the planned intrusion in the flood plain [as determined in 1983] amounts to 28 ha.  Ted Cooper and Darlene Conway are two of the three water resources engineers employed by the City.  The quote "If you're going to turn the river into a municipal drain, that work would have to continue up to the village of Carp" was in reference to what the Ontario Court of Appeal confirmed in 1909.  However, that remains true today!)

David Spence, President of the Friends of the Carp River and member of the Carp River Coalition, made the same point again in The Citizen of 21 April 2008 (article by Patrick Dare).

A tale of an OMB hearing

Rezoning of Trinity land at the Carp River: A tale of an OMB hearing

For two and a half days, February 20 to 22, 2008, Ted Cooper stood his ground in a hearing before Susan Schiller, Member of the Ontario Municipal Board, and against Tim Marc, lawyer for the City of Ottawa, and Joel Farber, representing Trinity Development Group Inc.  Ted Cooper, a water resources engineer with the City of Ottawa who, at the developers’ request, had been taken off the Kanata West project in 2004, appeared on his own dime to appeal a rezoning of Trinity lands at Hazeldean Road near the Carp River.  (They comprise 17 hectares and are destined for big box development.)  The rezoning had been approved by City Council in August 2007 and involved relocation of Hazeldean Creek as well as (be it with a “Holding” provision) development of the so-called “fringe” of the Carp River flood plain at this particular location.

(The Provincial Policy Statement issued under the Planning Act allows establishment of a “2-zone” policy of flood plains under certain conditions.  Exactly when a distinction between the “fringe” and the “floodway” is allowed was one of the elements contested at the hearing.)

At 6:30 p.m. the night before the hearing, Tim Marc wrote Ted Cooper, advising him that there is case history forbidding an “advocate” (appellant or his/her agent) to also appear as an expert witness.  Joel Farber chimed in minutes later to agree, also announcing his planned list of witnesses.  Sure enough, at the start of the hearing in the Keefer Room at City Hall, Farber and Marc supplied the Member (and Ted) with case law buttressing their claim.  The Member then informed Ted that he had to make an election: provide evidence, or be the advocate, outlining the implications (rights and restrictions) of both.  There is no reference to this circumstance in the Board’s elaborate Rules and Procedures and no-one in Ted’s circle had been aware of this apparent convention.

Back in November, “the Board” had decided, at the request of Trinity, to hold a 3-day hearing.  Ted had asked for a pre-hearing, where a Procedural Order could have been discussed and an orderly and civil preparation of a hearing could have been organized.  Clearly, the City and the developer had decided that springing surprises was going to win the case with the least effort.

Ted, being the foremost expert on the water resources engineering aspects of the issues, had prepared an extensive Witness Statement with many Attachments.  Admittedly, here and there it veered over into “Argument” – reflective of his dual status.

The room was packed at the start of the hearing, with some familiar and many new faces.  Of the Ottawa Citizen, Patrick Dare attended all, and Randall Denley most of the hearing.  Their reports, Denley’s on Day 1, Dare’s on Day 2 and Day 3, and another column by Denley are fair reflections of the proceedings and this tale aims to minimize duplication.  (Note: You need an OPLibrary card number to access these  articles.)  Councillor Qadri’s assistant was present throughout as was Mr. Qadri much of the time.  As the hearing went on, the crowds thinned out considerably.  The prevailing picture became, behind City and developer, a dozen or more staff and consultants, at the ready to assist their lawyers, while on Ted’s side, besides those mentioned, few were seen.  I shared Ted’s table for almost all of the duration of the hearing.

After a 20-minute recess, Ted decided to abandon his Expert Witness Statement and be an advocate only, hoping that, through indirect means, his evidence could be brought to bear.

A few days before the hearing, his fellow water resources engineer at the City, Darlene Conway, had agreed to testify for Ted, like him on vacation time.  She prepared a Witness Statement, about which more later.  As Ms. Conway commented to me, there was nothing in her Statement that she had not conveyed to management earlier, so there were no surprises or should be no controversy about her statements.  Her interest was in making sure that the Board would hear the facts.

Ted’s documents filled a small 3-ring binder.  Marc and Farber provided a joint submission, two 4-inch binders with documents.  The City’s witness, however, had no written Witness Statement, nor did the key (and as it turned out only) witness for Trinity.

Trinity’s witness then proceeded with giving a lengthy “non-opinion” background briefing on the context and history of the by-law before the Board.  In the course of this it was learned that 70% of the work to relocate Hazeldean Creek had already been completed and water was flowing in the new channel. 

(On the second day of the hearing CBC News reported that dumping was going on at the Trinity site.  The innocent citizen wonders what the point is of a zoning by-law, let alone of an OMB appeal, if in fact the work implementing key provisions of the by-law is already taking place.  This is not an isolated instance of such practices – in fact it appears to be standard procedure for the development industry in this town.)

In a gracious move, the City then agreed to put its witness up first.  He testified that all is well and the by-law is appropriate.

In cross-examination, Ted got the City’s witness to agree that there “may” have been some errors in the flood level analysis underlying the Kanata West development and that, if flood levels were greater than currently expected, then allowing this by-law to stand would not be good planning.  It was also established that the floodline referenced in the by-law was the line determined by the Mississippi Valley Conservation Authority in 1983.  There have been at least five intrusions in the flood plain since then, and there have been several flooding incidents upstream and downstream of the Trinity lands.  Landowners downstream of Richardson Sideroad (which is at the urban boundary and where the developers’ proposed Restoration of the Carp River ends) over the years have found their lands flooded to ever higher levels during spring melt.

As to 1-zone or 2-zone flood plain policy, the City’s witness put forward the theory that, piece by piece, a 2-zone policy is being implemented (which is interpreted as allowing the “fringe” to be filled up and built upon), resulting eventually in a new 1-zone, namely the redefined channel and reduced corridor width of the River.  This has recently been referred to as “modified 1-zone” – a concept that is nowhere to be found in any legislation, policy statement or technical guideline.

Throughout the first day and the second, Ted ran constantly afoul of the rules prescribed by the Member on what were appropriate questions and what not.  Marc and Farber regularly rose to object to this or that.

On Day 2 Darlene Conway took the stand.  She has 20 years experience as a water resources engineer but this was her first time at an OMB hearing.  She was accepted as an expert witness.  Even as Ted was soliciting direct evidence from her, he continued to be admonished by Member or lawyer on what he could say or how, or on what exhibits were acceptable.  When it came to bringing forward the core of her testimony – that there were significant errors in the flood level analysis which casts doubt on the accuracy of the line upon which the by-law is based – all forces came down to prevent it.  Marc argued that the flood level modeling is not before the Board; Farber noted that Ted’s appeal letter does not reference the 1983 flood line; the Member instructed that determining the flood line is the responsibility of the Conservation Authority and none of her concern.  As a result, the Board did not hear that:

-    the flood level analysis and design of the River Restoration project have proceeded without adequate calibration and validation using real data;
-    sensitivity analysis is no substitute for the absence of actual data;
-    the post-development analysis indicated reduced flood levels – a physical impossibility, given the absence of major diversions or significant infiltration;
-    run-off from the 700 hectares of future development in Kanata West was omitted from the modeling exercise; correction of this error alone results in an increase in flood levels of 0.2 to 0.3 metres;
-    the size of the stormwater ponds assumed in the model is considerably larger than the sizes shown in the actual designs, resulting in an overestimation of water storage in the order of 18,000 cubic metres;
-    other storage is double-counted, resulting in a further overestimation of 12,000 cubic metres;
-    there is a discrepancy in run-off volumes between the hydrologic and hydraulic components of the analysis, which when corrected could result in even greater flood level increases;
-    the approximately 200 hectares of future development on the Fernbank lands that drain to the Carp River are not included in the analysis.

Another important part of Ms. Conway’s testimony was about where a 2-zone policy is appropriate.  Based on her experience and interpretation of the relevant documents, it was her professional opinion that establishing a “fringe” in a “greenfield” development is contrary to Provincial policy.  In Closing Argument later, Farber called this opinion “political.”

She also offered the opinion that relocation of a watercourse with two 90-degree angles is difficult to accept as conforming to “natural channel” design principles.  She further noted that, under current plans, more than 50% of the current drainage area for Hazeldean Creek would be directed elsewhere, which could significantly affect the viability of the creek’s plant and animal communities.

Trinity’s witness followed.  During cross-examination, after much argument, the City’s recent letter to the Ministry of the Environment was accepted as an Exhibit.  The letter asked that consideration of Part II Order Requests regarding the Kanata West projects be suspended due to apparent errors in the flood level analysis.

After instructions on the limited scope permitted in Reply Evidence, Ted attempted to re-open the matter of the use of the 1983 floodline, relying on a section of the Official Plan that he had not mentioned earlier.  Objections were raised all around and the Member agreed to take “judicial notice” that, as a City employee, he should have known about that provision.  End of that discussion.

On the third day, in Final Argument, having been frustrated on all sides to bring some reality to the proceedings instead of adhering to a narrow interpretation of the issues before the Board, Ted managed to hold forth for an hour.  He offered a proposal to extend the area near the River for which a “Holding” provision would apply and to likewise hold open the option of using 14 metres more land so that the Creek would have a 30-metre corridor throughout.  (The narrowing from the standard corridor came about because the City wanted more land for its Transit station.  However, the Environmental Assessment for this transit facility is far from completed.)

In summarizing the facts and making argument, he continued to be thwarted by objections from either lawyer but mercifully somewhat less so from the Member.  Even so she would frequently intervene to convey her take on what she had heard from the witnesses.  At the mention of the flooding in Glen Cairn, Farber exclaimed: “I don’t even know where Glen Cairn is!”  Well, he’s from Toronto.

Final Arguments by Marc and Farber followed.  Farber’s final point reached a new low – so low it received a gentle “now, now, Mr. Farber” from the Member and left others aghast.  He noted that Mr. Cooper did not live in Ottawa and that no-one in Ottawa had appealed, so that Mr. Cooper had no credibility in making this appeal.

In closing, Ted reiterated that his primary reason for appealing this by-law was his concern for Public Health and Safety, that the recent discovery of errors in the underlying modeling provide support for his concern and that this by-law should be considered in that light.

Don’t hold your breath on what the Decision will say.

Erwin Dreessen
26 February 2008

Update:  The OMB's Decision was released on April 25, 2008.  The appeal was denied.  The Decision turned on the finding that "the City has properly and reasonably relied upon Mississippi Valley Conservation to set the flood line.  If MVC felt its work was outdated and the flood line should be changed, it has ample opportunity to so advise the City and make that change.  ...  MVC has not objected to the by-law now before this Board."  And further: "The significance of any errors in the modelling for technical studies that support the Class EAs are under study by the City.  Additionally, the Minister of Environment must be satisfied and approve the Class EAs before any holding provision can be removed. The Board finds that the public interest in matters of public health and safety with regard to environmental flooding conditions is appropriately protected by these review and approval requirements."

E.D., 2 May 2008

Auditor General's report on Carp River project tabled

On April 23, 2008, the City's Auditor General tabled his report, "Audit of Carp River Watershed Study and Related Projects."  (Download it from here - 709 KB, 45 pp.  See also the AG's press release, the heavily slanted press release by City management and another highly contentious press release by the Mississippy Valley Conservation Authority.)

The report vindicates key objections raised by the Carp River Coalition in its July 2006 Part II Order request and its commentary on later discoveries of errors, including:

Public comments and Council decisions of 14 May, 2008

Following tabling of the Auditor General's report on the Carp River studies on April 23, the matter was referred to three Standing Committees of Council.  The Carp River Coalition appeared before all three to offer its comments.
 
Comments to Corporate Services and Economic Development Committee, 6 May 2008
Comments to Agricultural and Rural Affairs Committee, 8 May 2008
Comments to Planning and Environment Committee, 13 May 2008
 
Other interventions:
Ted Cooper at CSEDC, at ARAC and at PEC.
Darlene Conway and John Almstedt at PEC.
 
At PEC, reference was made to memos by Planning Director John Moser on interim development (PDF, 550 KB).
 
Council, on May 14, made some decisions, among them that a 3rd-party review based on the Auditor General's findings will be undertaken and that the public will have an opportunity to comment on the Terms of Reference for  this review.   This is to go to PEC on June 24.  Council's Disposition is here.  At the top it shows that it accepted the AG's report and then refers to the reports from CSEDC and PEC but you have to scroll down about two-thirds to find more meat.  (Note that CSDEC's report also contains directions to staff and that PEC's report contains the draft Minutes of ARAC's meeting of May 8.).  Other decisions include:

• on interim development: <That the Council of the City of Ottawa endorse the following with respect to applications for further development in Kanata West:
   
   
  + That any application for approval for development for lands within the floodplain not be brought forward to Committee and Council for approval, or not be approved pursuant to delegated authority, until such time as the Carp Restoration Environmental Assessment has been approved by the Minster of the Environment;
   
  + That in addition to other requirements of the Planning Act, any application for development approval within Kanata West, for lands outside the floodplain only be brought forward to Committee and Council for approval, or approved under delegated authority if:

  1)    The Carp Restoration Environmental Assessment has been approved by the Minister of the Environment; or

  2)   The Council Directed Review of the Carp Audit has been completed and reviewed by Council with Council being satisfied that development can proceed; or

  3)  The applicant, either alone or in concert with other developers, has provided a comprehensive analysis for all development in Kanata West, satisfactory to City of Ottawa, that addresses the question of stormwater, whether or not the Carp Restoration Environmental Assessment is approved.> ( a motion by Clr. Cullen, seconded by Clr. Holmes)

• on expanding the audit, a motion by the same Councillors, <That the Auditor General’s Audit of the Carp River Watershed Study and Related Projects be expanded to include a review of the Kanata West Lands project management and process.> was, on a motion by Clr. Wilkinson, seconded by Clr. Qadri, referred to Corporate Services and Economic Development Committee.

 
Media coverage:
Ottawa Citizen of May 7, 2008, by Patrick Dare - "Council moves to end Kanata West conflict - Staff to study creation of independent land-development company after auditor raises red flag about practices" (p. C1)
Ottawa Citizen of May 14, 2008, by Mohammed Adam - "City wants do-over on Carp River Study" (p. C3)
CBC TV News at Six on May 13 and May 14; also on CBC Radio news.
 
The Kanata West Owners Group Inc. also responded to the audit report, as did Dennis Jacobs, the former City manager who was responsible for this file.  Mr. Jacobs sent comments he had written for The Citizen to Council, saying the newspaper would only allow a letter to the editor.  His letter appeared on May 16.

CRC Media Release -- June 2, 2008

 
June 2, 2008 - The Carp River Coalition issued a media release today, demanding that all development approvals in Kanata West cease until validated studies are in hand.
 
A motion passed by Council on May 14 left a large loophole in the development approval process which would permit approvals to move forward simply based on "updates" produced by the Kanata West landowners' consultants.
 
Read the media release here:  English   Français.
 

Filling in a flood plain, Provincial policy and Conservation Authority practice

On May 12, apparently in response to questions raised, John Price, Watershed Management Coordinator at the Mississippi Valley Conservation Authority, sent a memo to the City "to review the policy basis for application of a floodway/flood fringe as part of the Carp River Restoration Plan and how some other Conservation Authorities have chosen to address similar situations."
 

In response, Darlene Conway, water resources engineer at the City, as a private citizen wrote to Council:
 

June 19, 2008

Re: Mississippi Valley Conservation Memo of May 12, 2008 -- Floodplain Management: Floodway/Flood Fringe Implementation

I was recently forwarded a copy of a memo from Mississippi Valley Conservation (MVC) dated May 12, 2008 to Rob MacKay regarding Floodway/Flood Fringe Implementation (copy attached). As stated therein, the memo reviews “the policy basis for application of a floodway/flood fringe proposal as part of the Carp River Restoration Plan and how some other Conservation Authorities have chosen to address similar situations.” From my reading, its apparent intent is to suggest that MVC’s approach to floodplain management is in keeping with that of other Conservation Authorities (CAs) across the province. This is contrary to my experience and I am concerned that the memo leaves the wrong impression with those unfamiliar with provincial floodplain policy. Also attached is a table providing a detailed, line by line, response to MVC’s memo.

As you may know, I am a Senior Project Engineer with the City, however, I am providing this submission as a private citizen. I am a Professional Engineer with 20 years of experience in water resources engineering in both the private and public sectors in southern and eastern Ontario. This experience includes five years with the Toronto and Region Conservation Authority.

My intent in providing this response to the MVC memo is to underline the floodplain policy confusion that has unfolded with respect to the proposed Carp River Restoration Plan, a project that entails the creation of 28 hectares of developable land from the regulatory (100-year) floodplain in exchange for the rehabilitation of an upper reach of the river. This misapprehension of policy is not just about terminology as the MVC memo implies – it is at the root of a risk-laden project that, as currently conceived, poses increased threats to public health and safety and exposes the City to increased liability. For these reasons, I urge Committee members to require that the terms of reference for the proposed third party review of the supporting studies, to be considered at the June 24th PEC meeting, be expanded to include a thorough
examination of how provincial floodplain policy was applied to this project.

Presumably, MVC has provided this memo in response to questions that have arisen regarding the application of provincial floodplain policy to this project. But the memo’s apparent suggestion that the Carp River Restoration is in keeping with the approaches 2 of other CAs does a disservice to those CAs and the CA system in general. And the memo falls victim to what it cautions against - that “comparisons between individual Conservation Authorities policies have to be undertaken carefully.” In fact, the examples given from other CAs are very different from what is being proposed for the Carp River Restoration. Yes, it is certainly true that most CAs will consider modifications to the regulatory floodplain in certain limited instances, but this is generally characterized as “nipping and tucking,” rather than the wholesale creation of developable land from floodplain. The reason for this is simple: experience has long shown that the safest and most economical approach to floodplain management is to restrict new development within floodplains and leave them to safely convey flood waters.

I would characterize the creation of 28 hectares of developable land from floodplain in a newly developing area such as Kanata West as antithetical to the essence of provincial floodplain policy. Further, the filling is proposed within the 100 year floodplain - a much less stringent floodplain criterion than the Hurricane Hazel or Timmins events which govern in 4 of the 5 CA jurisdictions referenced in MVC’s memo. One might wonder why other local CAs with the same floodplain criterion and within City of Ottawa boundaries (RVCA, SNC) were not considered in the MVC memo. The recent OMB appeal of the Taggart subdivision in Barrhaven South/Half Moon Bay which resulted in the elimination of 7 lots from the floodplain should be compared against what has been proposed in Kanata West. How is it that the creation of 7 lots in the floodplain is not permitted by RVCA while the creation of several hundred lots in the floodplain is supported by MVC? If nothing else, this lack of consistency within the same municipal jurisdiction warrants a thorough review. I urge Committee members to expand the scope of the third party review to include an examination of how provincial floodplain policy has been applied to the Carp River Restoration Plan.

Regards,
Darlene Conway, P. Eng.
Ottawa

cc. Rob MacKay, City of Ottawa
      John Price, Mississippi Valley Conservation
      {and others]

Darlene's sentence-by-sentence rebuttal of the MVC memo is here.

For further background on Ontario's flood plain policy, please look here.

Erwin Dreessen

Open Letter to Council from the Carp River Coalition - June 20, 2008

In light of the recommendations going to Planning and Environment Committee for its meeting of 24 June, the Carp River Coalition sent an Open Letter to City Council.
 
For more comment and information on the Terms of Reference for a third party independent review of the Carp River/Kanata West  file, please see here.
 
Erwin
20 June 2008
 

Council Disposition on the Terms of Reference for a Third Party Review

Planning and Environment Committee deliberated on the proposed Terms of Reference for a Third Party Review of Carp River-related projects on June 24.  Please look here for a report on this meeting, including all related documents.
 
At Council the following day, the amended recommendations were endorsed.  One key change from what staff proposed is that the Reviewer will consult with the Auditor General and those who have filed a Part II Order Request (including the Carp River Coalition, Ted Cooper and Ottawa Riverkeeper on its own).  The City Manager was authorized to make further minor adjustments to the Terms as a result of further consultation with the Ministries and the Auditor General.
 
The extract from Council's Disposition 39 is here.

Minister issues Order under s. 16 (3) of the EAA (updated)

OBJECTIONS TO KANATA WEST PROPOSALS VINDICATED
 
On July 21, 2008, just over two years after receiving "Part II Order Requests," Ontario's Minister of the Environment responded with an Order to the City regarding all further development in the Kanata West area.
 
In addition to the arguments put forward by the Part II Order Requesters, the 6-page letter [467 KB] refers to the City's own request of January 25 to halt the Ministry's review in light of errors discovered in the modeling underlying all the environmental assessments and project proposals; to a February 8 memo from the City's planning director about interim development (updated versions are here - 550 KB); and to the Auditor General's report.
 
In light of all this, the letter issues an Order under section 16 (3) of the Environmental Assessment Act, imposing a long series of Conditions in respect of all 22 Projects now held up (not just those subject to Part II Order Requests).  Highlights:
 

• Following the Third Party Review which Council authorized on June 25, the proponents (City and KWOG) are to report to the Ministry on the implication of its findings for the 22 Projects.
• The City must come clean on its flood plain policy. 
• The findings of the Third Party Review must be applied to all previously submitted reports. 
• The proponents must come up with a detailed phasing plan.
• The City must incorporate all that in Updated Project Documentation and may have to issue a new Notice of Completion with provisions for appeal.

 
To top it off, the letter puts great stress on climate change adaptation and urges the proponents to consider the implications for these projects.
 
Finally, the letter reminds the City and KWOG that failure to comply with this Order is subject to prosecution under section 38 of the EAA.  In closing, the letter makes reference to an earlier letter from an MOE Director spelling out in detail additional information required for future applications under the Ontario Water Resources Act for sewage works and storm water management facilities in Kanata West.
 
Comment
At last the Carp River / Kanata West debacle is turning in a positive direction!  The Minister's Order is a strong vindication of the concerns expressed by critics of the proposals.  The City and Kanata West Owners Group have only themselves to blame for the delay.  City engineer Ted Cooper was removed from the project in 2004 for asking the kind of questions which are now contained in the Order.  The Carp River Coalition for a while in 2006 had a constructive dialogue with some owner representatives, working towards an expanded scope of River restoration -- to its 'sufficient outlet' near the Village of Carp.  That dialogue has fallen silent.
 
It is never too late to turn a threat into an opportunity.
 
Erwin Dreessen
26 July 2008
 
Letters:
The Minister's cover letter to the Carp River Coalition
The Minister's letter and Order to the City (467 KB)
The Director, EAAB's letter to the City
Update:
Follow-up letter from the Director, EAAB, dated September 5, 2008 (2.1 MB)
 
Media coverage:
Partrick Dare, Ottawa Citizen, 26 July 2008, page A1