Evaluating Ontario's Drainage Act and Wetland Management Practices: In The Case of Zona Township

by

Daniel F. Walters

Department of Geognphy

Submitted in partial fulfillment of the requirements for the degree of Master of Arts

Faculty of Graduate Studies The University of Western Ontario London, Ontario August, 1999

O Daniel F. Wdters 1999 National Library Bibliothèque nationale of Canada du Canada Acquisitions and Acquisitions et Bibliographic Services services bibliographiques 395 Wellington Street 395. rue Wellington Ottawa ON KIA ON4 Ottawa ON K1A ON4 Canada Canada Yow Ive Votre ret&mce

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Agricultural land drainage has long been recognized as the largest contributor to wetland losses. Wetland management and agricultunl drainage illustrate the conflict between economic development and natunl values. Previous research has focused primarily on the outcornes of agricultural drainage rather than the bargaining process amongst referral agencies and drainage officials.

Zorra Township was selected as an appropriate case study to assess the effectiveness of the referral process that is intended to mitigate the potential impacts of agricultural land drainage on wetlands. Data were acquùed from Zorra Township drainage files, gant applications, wetland files, interviews with relevant government officials, and aerial photography.

This research identified two levels of evaluation: (1) normative, and (2) operational. The normative evaluation incorporated the principles of integrated watershed munagement - science and informed decision making, partnenhips and participation, and ecosystem management. The operational evaluation was based upon the criteria of efficiency, equity, consistency, performance and adequacy.

The research findings indicate that the referral process is efficient and does not appear to delay the construction of drainage projects. In terms of equity, there have been

significant improvements with respect to the notification of referral agencies of upcorning

Section 4 and 78 drainage schemes. However, thete are fundamental problems with the

bargaining process. The performance measures indicate a continued loss of wetiand area.

There is a need for more regular updates of wetiand evaluation files. Despite attempts to incorporate environmentai considerations into the drainage process, they continue to be inadequate. Acknowledgements

First and foremost 1 would like to thank Dr. Dm Shrubsole for his guidance and support. This thesis would not have been possible without your continuous encouragement, enthusiasm and optimism. 1 especially appreciate the timely feedback

during your vacation which enabled me to complete ths thesis on schedule.

Others were critical to the successful completion of this thesis. 1 would like to

thank Gerry Legg, Drainage Superintendent of Zorra Township for making me feel

welcome and providing space in the office to collect data. Your insight into the drainage

process proved to be valuable. and your organization of information made data collection

an enjoyable experience.

From the UTRCA, 1 would like to thank Terry Chapman and Mark Snowsell. 1 am

forever appreciative of the supportmyouboth provided dwing the collection of data. 1

appreciate your assistance throughout the completion of this thesis.

Finally 1 would like to thank Jennifer, family and friends for their continued

support and encouragement. To al1 of you 1 am forever thankful. Table of Contents

TABLE OF CONTENTS ...... vi

LIST OF FIGURES ...... x

LIST OF TABLES ...... xi

.S. LIST OF APPENDICES ...... xi11

CHAPTER 1: INTRODUCTION ...... 1 1 .1 AGRICULTURALLAND DRAINAGE ...... 1 1.2 A REVEW OF AGRICULTUWDRAINAGE - WETLAND RESEARCH ...... 6 1.3. DRAINAGE AM^ WETLANDMANAGEMENT IN ONTARIO...... 8

1.4 ONTARIO'SDRAINAGEACT AND WmMANAGEMENT ...... ,...... 1 1 1.5 RESEARCHGOAL AND OBJECTIVES...... 14

CHAPTER 2: THE INSTITUTIONAL ARRANGEMENTS FOR WETLAND MANAGEMENT AND DRAINAGE REGULATION IN ONTARIO ...... 15

2.0. ~ODUC~ON...... 15 2.1. ?kE PLANNING ACT AND THE WETLAND POLICYSTATEMENT ...... ,,,. .. 15 2.2 DRAINAGEACT AND THE PETITION DRAINAGEPROCESS ...... 18 2.3 THE PROCESSTWAT PROVIDES FOR THE REPAIRAND R PR OVE MENT OF DRAINAGE WOW ...... *..22 2.4 SUMMARY AND PUC CATIONS OF ONTARIO's APPROACH ...... 23 2.4.1 Nomn've Criteria ...... , ...... 24 2.4.1.1 Informed decision making ...... W 2.4.1.2 Partnerships and Participation...... 25 2.4.1.3 Ecosystem Management ...... 25 2.4.2 Operational Criteria...... 26

CHAPTER 3: LITERATURE REVIEW ~~~o~~~~oo~~m~~m~~~om~mo~o~mma~~~momm~mom~oo~oo~m~~oooooo29

3 .O ~NTRODUCTION...... 29 3.1 INSTITUTIONAL ARRANGEMENTS...... 30 3.1.1 Properiy Rights ...... 30 3.1.2 Pennitting Processes ...... 33 3.2 SCIENCE...... 37 3.2.1 Wetland Identijicatton and Delineation ...... 37 3.2.2 Cumulative Impacts ...... 40 3.3 TECHNOLOGY...... 42 3.3.1 Restoration and Creation ...... 42 3.3.2 Wetiand Banking ...... 44 3.4 ON-SmBEST MANAGEMENT PRACTICES ...... -44 3.5 IMPLICATIONS...... -46

4.0 INTRODUCTION ...... 49 4.1 UPPERTHAMES RIVER WATERSHEDAND ZORRATOWNSHIP CASE STUDY ...... 50 4.2 STUDYPERIOD ...... 55 4.3 PERMITDATA COLLECIION ...... 56 4.3.1 Engineering Drainage Files ...... 56 4.3.1.1 Engineer's Reports ...... 56 4.3.1.2 Referral Documents...... -57 4.3.1.3 Application.* for Grants ...... 58 4.4 WETLANDEVALUATION FILES ...... 58 4.5 XNTERVIEWS WITH GOVERNMENTOFFICIALS ...... 59 4.6 GIS DATACOLLECTION ...... 60 4.6.1 Photo Musaics ...... 60 4.6.2 Accuracy of Digital Data ...... 65 4.7 EVALUATIVECRITERIA ...... 65

vii 4.7.1 Eflcierzcy ...... 66 4.7.2 Equiry ...... 67 4.7.3 Consistency ...... 68 4.7.4 Pe#ormance ...... 68 4.7.5 Adequacy ...... 69

CHAPTER 5: ANALYSIS ...... 70

5 .0 LNTRODUCTION ...... 70

5.1 CONTEXT...... r...... 72 5.1.1 The Tractability of the Problem ...... 73 5.1.1.1 Uncertainty of Wetland Mapping ...... 73 5.1.1.2 Complexity in Assessing Cumulative Impacts ...... 74 5.1.1.3 Applicability of Regulations ...... 74 5.1.2 Statutory Variables...... 75 5.1.2.1 Clear Objectives ...... 75 5.1.2.2 Hierarchical Integration within and among Implementing Institutions ...... 78 5.1.2.3 Participation ...... 80 5.1.3 Non-Statutory Variable ...... 81 5.1.3.1 Suppon of S tatutory Objectives ...... 83 5.2 PROCESS...... 84 5.2.1 Eficiency ...... 85 5.2.1.1 The Referral System ...... 86 5.2.1.2 Duplication of Effort ...... 91 5.2.2 Equity ...... 96 5.2.2.1 Referral Agency Notification Rocess ...... 97 5.2.2.2 Implementation of Mitigation Requirements ...... 99 5.3 OUTCOME...... 102 5.3.1 Consistency over Time...... 103 5 . 3.1.1 Site Meetings ...... 104 5.3.1.2 Recommended Mitigation ...... 104 5.3.1.3 Environmental Impact Sections ...... 105 5.3.2 Performance ...... 106 viii

List of Figures List of Tables

TABLE4.1 WETLANDCONVERSION STATISTICS FOR THREE UTRCA COUNTES...... 52 TABLE5.1 THE DISTRIBUTIONOF DRAINAGE WORKS COMPLETED IN ZORRA TOWNSHIP,1978-1997 ...... 72 TABLE5.2 THEAVERAGE TIME TO COMPLETEDRAINAGE WORKS IN ZORRA

TOWNSHIP,1978-1997 (DAYS)...... a....e....a*a~~mm~m~~ao~~~~o 85 TABLE5.3 AVERAGEAGENCY RESPONSE TIMES TO PROVIDEINITIAL COMMENTSOF DRAINAGEWORKS IN ZORRATOWNSHIP, 1978-1997 (DAYS)...... m.... 87 TABLE5.4 AVERAGEAGENCY RESPONSE TIMES TO PROVIDECOMMENTS ON ENCIMER'SREPORTS IN ZORRATOWNSHIP, 1978-1997 (DAYS) ...... 88 TABLE55 AVERAGE]RESPONSE TIIVESWHEN CONCERNSWERE EXPRESSEDWITH A DRAINAGEPROJECT, 1978-1997 PAYS)...... m...... a...... 89 TABLEDRA TI ME REQUIREDTO COMPLETEDRAINAGE WORKS WITH AND WITHOUTAN

APPEALIN ZORRATOWNSHIP, 1978- 1997 (DAYS)..m~..~....~.....*...*.m~*m~mm~m~mo*omm*~ 90 TABLE5.7 ATTENDANCEOF RE~RRAL AGENCIES AT SITEMEETINGS W ZORRA

TOWNSHIP,1978-1997 ...~.w~..m.m~momm~~o~*~m.*~o~***oma91 TABLE5.8 A COMPARISONOF DRAINAGEREVIEW GUIDELINESFOR TKE AND TABLE5.15 TOTALAREA (KM~)OF "WETLAND" IN ZOWTOWNSHIP. 1978-1989 ...... 112 TABLE5.16 A SMMARYOF TOTALWETLAND AREA(KM~) CHANGE Di ZORRA ToWNsHIP.197 8.1989 ...... 114 TABLE5.17 OWNIERSHIPOF PROVINCIALLYAND REGIONALLYSIGNIFICANT

WETLANDSIN ZORRATOWNSHIP (KM~). 1986-1987 ,...... ~...... 115 List of Appendices Chapter 1: Introduction

1.1 Agricultural Land Drainage

The drainage of wetlands for agricultural purposes illustrates the need for effective polices to resolve resource conflicts. On the one hand, agricultural land drainage is an integral part of farm operations in Canada and many other countries. In Ontario, drainage has been an important element of farm operations since the 1800s (Kettel and

Day, 1974). The intent of agricultural land drainage is to facilitate more productive agriculture. On the other hand, unaltered wetlands provide many other functions such as flood protection, erosion control, wildlife habitat, water quaiity improvement and the maintenance of ground water levels. Unfortunately, agricultunl land drainage is directly linked to the alteration of wetland functions and values, and permanent loss of wetland sites (Hill, 1976; Bardecki. 1982; Snell, 1987; Moms, 1989; Spaling. 1995). This situation lead Mitchell and Shmbsole (1992: 235) to conclude that "wetlands and agricultural land drainage in southern Ontario illustrates the conflict between economic development and nadvalues". A key consideration then is to identifj how this conflict is effectively resolved. This thesis addresses this question.

In order to control the water table and flooding, farmers often require a drainage system that incorporates municipal outlet drains and field tile drainage. Municipal outlet drains collect surface and subsurface water fiom the field tile drainage systems. which are

networks of buried plastic perforated pipe. Municipal outlet drains collect the water from

the field tile drainage systems. Drainage systems are typically installed for two reasons. First, they intend to remove water that allows for seedbed preparation. planting, harvesting and other field operations. Second, they remove excessive soi1 water from the root zone so that crop yields are not reduced by oxygen deficiencies caused by hydric soils (Atherton et al.,

1998). Morris (1989) identifies four benefits of farm drainage: (1) reclamation of land that was previously unsuitable for production; (2) drainage could allow for the

intensification of existing operations; (3) land use change for the purposes of switching to

more profitable enterprises; and (4) reduced production costs due to improved working

conditions. However, despite the potential benefits of draining wetlands for agricultural

production, there has been growing concem for the impacts of this activity (Bardecki,

1988; Spaling and Smit, 1995; Spaling, 1995).

The traditional method of municipal outlet drainage was the creation of an open

and often straight ditch. Agricultural field tile drains empty into municipal outlet drains.

which fiow into natural bodies of water (e.g., lakes, rivers, ponds). However, open drains

require stable banks, otherwise the sides would erode or slump causing the drainage

bottom to fil1 with sediment, thereby increasing maintenance costs. In order to ensure a

stable slope, the banks are usually designed with a 2: 1 or 3: 1 side dope depending on soi1

conditions (Figure 1.l) (UTRCA, 1993). This requires farrners to remove potentially

valuable agriculturai area out of production. -- -- . - +3 m buffer 3 m buffer~

I m ditch bottom

While open drains have allowed for agricultural development. there are several potential problems. First, poorly designed drains (e.g. steep slopes) are subject to dumping which further degrades the environment and results in higher maintenance costs. Drains that are too straight tend to erode either laterally or horizontally and contribute to similar outcornes (Hill. 1976). In these situations, farmers also lose potentially valuable agricultural land from production.

As commodity prices rise. cornpetition among agricultural producers increases and/or profit margins are squeezed and the significance of this loss of land is enhanced.

In response, recent municipal drain systems are sometimes 'closed' (Figure 1.2). In

conirast to open drains, closed systems do not preclude crop production. Although capital

costs are higher, closed drains require less maintenance (Legg, Personal Communication,

1998). However, many of the environmental benefits such as connecting naturai or

forested areas are seriously cornprornised with closed drainage systems. 1 6: 1 grassed waterway

O Buried pipe

Indeed, the installation and maintenance of open ditch or closed outiet drainage can result in the alteration of naniral environments (Snell. 1987; Krapu, 1996). Figure

1.3 illustrates the various environmental impacts associated with agricultural land

drainage. Drainage schemes directly impact lakes and rivers by causing increased Stream

discharge that can alter sediment loads, which impact aquatic organisms. Land drainage

can also locally alter the hydrology of an area, resulting in changes to soit moisture

content. which alters the soi1 properties. Drain installation and maintenance projects can

impact the ground water table, thus reducing the amount of wetiand area hat provides

habitat for fish and riparian species (Hill, 1976). The significance of these inputs are

often more pronounced in wetlands and their adjacent areas (Bardecki, 1988). Impacts on Rivers and Lakes

Water temperature and chemistry1

Channel form Discharge and sedirnent Impact of pollution SV r- filter

I I Impact on Reduction of Change in ground vegetation and wetland acreage 4-b water table wildlife

1 Land Drainage Change in water Changes in other -=b content of soi1 b soi1 propeizies

Source: Hill, 1976: 253

The unique interaction of physical, biological, and chernical components of a wetland provide for a number of hinctions that include flood protection. erosion control, groundwater recharge and discharge, and water purification through the retention of nutrients, sediments and pollutants (Whiteley, 1979). The values that wetlands provide to society include maintenance of water quality and quantity, recreation and tourism opportunities, timber production, and wildlife resources. However, historical studies have demonstrated that despite the naiural value of wetlands, southem Ontario has experienced a loss of wetland area at the expense of "improving" agricultural land (Snell, 1987). In

Ontario, outlet drains are regulated under the Drainage Act, while field tile drainage systems are regulated under the Tile Drainage Act. The focus of this research is the municipal outiet drains and the Ontario Drainage Act.

1.2 A Review of Agncultural Drainage - Wetland Research

As rnentioned earlier, the conflict between agicultural drainage and wetland maintenance has been long standing and widespread. Two popular foci of research that examines this conflict are: (1) to identify the econornic benefits versus the environmental

impacts; and (2) the institutional arrangements that manage this conflict.

With regards to economic studies. benefit-cost ratios have often been calculated to

determine the utility of drainage projects. Bowers (1983) and Turner et al. ( 1983)

examined the benefit-cost ratios of drainage projects in England. Bowers (1983)

concluded that the benefit-cost appraisals that supported drainage projects generally

overestimated benefits and contributed to an over-investment in land drainage. England's

remaining wetlands are faced with extinction because of high productivity farming

practices, and relatively free availability of subsidies for drainage (Turner et al. 1983).

On this basis. Turner et al. (1983) concluded that the agricultural developrnent on

wetlands could not be justified/supported on economic grounds.

Since the early 1980s, a combination of factors has brought about significant

changes to England's poiicy towards agricultural land drainage. The factors include (1)

an increased awareness of the environmental impacts associated with drainage; (2) with

the desire to reduce public expendihire; and (3) doubts about the economic viability of

agricultural drainage projects (Williams and Browne, 1987). As a result, England has

implemented a number of guidelines to incorporate drainage and environmental needs. Methods for assessing likely environmentai impacts have been developed and applied.

For instance, smdardized environmental impact statements were required to land drainage subsidies, and detailed environmental assessments are now required for

significant agricultural water management projects under the European Community

Directive. More ngorous assessrnent of agricultural benefits is also likely to reduce the

feasibiiity of many drainage proposais (Moms, 1993).

The institutional arrangements for managing the agricultural drainage versus

wetland conflict is the second major research thrust. Regulating drainage activity is often

used as a means of making drainage more 'sustainable'. However, research indicates that

often the regulatory provisions lack specific regulatory duties (Penning-Rowsell, 1980;

Williams and Browne. 1987; Moms, 1987). Williams and Browne (1987) argued that the

institutionai arrangements for drainage in Northem ireland were ineffective because no

specific conservation duty was required from any agency. Instead, they were only obliged

to "protect (so fa.as reasonably practicable) flora, fauna, geological and physiographical

features from any hamihi1 effects which may result from the exercise of its functions"

(Willaims and Browne. 1987: 10).

Morris (1987) indicated that the problem with wetland management in England is

as much ambivalence over policy objectives, as inadequate or insufficiently CO-ordinated

data bases on resource inventory. In Northern Ireland, there are no routine habitat surveys

prior to drainage work (Willaims and Browne, 1987). While benefit-cost analysis,

wetland data bases and environmental impact assessments can be used to assemble.

interpret and present information, these are not a substitute for the effective institutional

arrangements that remain a largely political process refiecting the power of various

groups negotiating their own interests within an institutional framework (Moms, 1987). From this perspective. wetlands need to be viewed in the politico-socio-economic context.

1.3. Drainage and Wetland Management in Ontario

The institutional arrangements for drainage and wetland management in Ontario are varied and complex. Like other junsdictions, improvements since the 1980s have emphasized education and voluntary programs. The intent has been to provide a balance between agncultural development and wetiandlecosystem preservation and improvement.

The Ontario Ministry of Naniral Resources (OMNR)and Ontario Ministry of

Agriculture, Food and Rural Affairs (OMAFRA), as well as Environment Canada,

Agriculture Canada and conservation authorities collaborate to produce materials that encourage farmers to improve famiing techniques that simultaneously benefit agricultural production and protect wetlands. The purpose is to educate farmers as to the benefits of incorporating Best Management Practices (BMP)into ail facets of farm operations. These guidebooks provide information about the benefits of wetlands to the economy, society

and environment,

Voluntary programs, like the Conservation Land Tax Reduction Rogram, provide

incentives for landowners to preserve designated wetlands on their property (Cox, 1993).

Another program is the conservation easement agreements that establish conservation

obligations for a property and are then registered on the land title. As a result, Landowners

agree to be legally bound to these conservation obligations, which can be enforced

against current and future landowners by the holder (conservation authonty or

government agency). In return, the landowner can receive a lower assessrnent on their property, or they can donate the property to a charity and receive a federal tax credit.

However, if a landowner chooses not to participate in the voluntary programs then the

Ontario govemment relies on land use regulations in an attempt to prevent funher loss of wetlands.

While there are both voluntary programs and regulatory policies able to protect wetiands from agriculnual land drainage in Ontario, economic subsidies, wetland inventories and regulation lie at the heart of managing the drainage - wetland conflict.

Under the Ontario cornrnon Law, landowners may protect their property from water flowing upon it. However, landowners cm not improve natural channels which

"injures" neighbouring properties without an agreement amongst the property ownen. As a result, Ontario created the Drainage Act which facilitates the construction of municipal outlet drains (Kettel and Day, 1974). The Drainage Act regulates the process through which new municipal outiet drains can be constnicted by munial agreement, requisition and petition (Found and Spence, 1977). Mutual agreement drains, covered under Section

2 of the Drainage Act, are created when two or more landowners decide to construct or

improve a drainage works on their lands and are willing to pay al1 the costs encountered

duhg the construction, improvement, financing and maintenance of such drainage works

(Drainage Act, 1990). The requisition type of drain (Section 3) is installed when a

landowner requires a drain to cross through one or more adjacent properties. The owner

of the property requesting the improved drainage can ask the municipality to appoint an

engineer. However, the total estimated cost of a requisition drain cannot exceed $7,500

(Drainage Act, 1990). The petition drain (Section 4) is the most common type of drain

appearing on Ontario's landscape. A petition for drainage may be filed at the local

municipality if it meets the requirements of a majority of the assessed landornefi in the drainage watershed, or represents 60% of the area in the drain watershed (DrainageAct,

1990). When either of these cnteria are met, a petition is drawn up which essentially

States "We request the appointment of an engineer to investigate the construction of a new drain at a certain location". Upon completion of the petition drainage work, a 33

113% subsidy is available to farmers based upon their assessrnent of costs associated with the benefits received.

The Drainage Act also addresses the need for maintenance, repair and improvement of existing drains under Sections 74,77, and 78. Section 74 and 77 drainage projects do not require an engineer's report to be subrnitted to council. Section

74 drainage projects fa11 within maintenance schedule as descnbed in the original engineer's report. Section 77 permits the deepening, widening or extension of a drain

without the need for an engineer's report. However, the total cost of the project can not

exceed $4,500 (DrainageAct, 1990). Section 78 drainage projects include the making of

a new outlet for the whole or any part of the drainage project, or constructing tile

drainage under an existing open ditch. Section 78 drainage schemes require the

submission of an engineer's report. Ali proceedings, including appeals, under Section 78

are to be the sarne as for the construction of a drainage works under Section 4 (Drainage

Act, 1990). Therefore, the Drainage Act only requires engineer' s reports and the

notification of drainage works to the referral agencies for Section 4 and 78 drainage

schemes.

Sections 4 and 78 are the most common types of drainage constxucîion because

they allow famiers to recover 33 1/3% of the cost of the project from the Ontario

Ministry of Agriculture, Food and Rurai Affairs. Environmental issues, including those

related to wetlands, are supported through a notification to the OMNR and local conservation authority. This mechanism was established following a 1972 Select

Cornmittee Report on agricultural drainage (Found and Spence, 1977). The referral agencies review the location and type of drainage construction and forward any comments or concems back to the municipality and/or engineer. The referrd process, that

will be discussed in more detail in Chapter 3, is the primary mechanism through which

environmental considerations are given to drainage projects. These agencies can also

request that an environmental study be completed for any drainage project. Since the

agency requesting the appraisal has to pay for the environmental study, there have not

been many conducted (Spaling, 1995). The process of conducting an environmental

appraisal under the Drainage Act remains undefined in the legislation.

This research will examine the effectiveness of the provisions of the Drainage Act

in protecting wetlands. An examination of the Drainage Act was chosen because

agncultural drainage continues to play an important role in farming operations.

Therefore, identifying the strengths and weaknesses of the current process by which

wetland are protected under the Drainage Act would result in recommendations to protect

the rernaining wetlands in Ontario.

1.4 Ontario's Drainage Act and Wetland Management

SUNlar to the research foci in other jurisdictions (Penning-Rowsell 1980; Moms

1987; Williams and Browne 1987), previous studies in Ontario have primarily addressed

economic analysis and institutional arrangements. Many of the studies considered the

hydrological and biological effects of drainage projects. Several suggested that

institutionai arrangements must be adjusted to better address the enviromentai damage caused by drainage, and that the assessments should allow for the evaluation of cumulative impacts (Bardecki 1981; Whiteley 1979; Spaling and Smit 1995; Spaling

1995). Mitchell and Shrubsole (1992) suggest that wetland reduction caused by drainage was the result of financial incentives, and the lack of any provincial agency responsible for wetland management prior to 1946. The 33 113% grant makes it more affordable for farmers to drain their property, and encourages the drainage of wetlands. This grantlsubsidy system has been fundamental in guiding the process of agricultural drainage (Kelly, 1975 as cited by Mitchell and Shrubsole, 1992). Despite the formation of conservation authorities in 1946 and the provision for these agencies and/or the Ontario

Ministry of Naturd Resources (OMNR)to request environrnental studies in

1975. significant problems remain. Far instance, the process for conducting

environmental assessments for the purpose of drainage is not clearly defined. Mitchell

and Shrubsole (1992) document the confusion encountered by the participants involved

in an environrnental assessment in the Grand River region. There were differences of

opinion amongst the participants regarding scope, method and andysis for the

environmental appraisal. However, only Kettel and Day (1974) evaluated the process

through which environrnental concems are addressed.

Kettel and Day (1974) exarnined the institutional arrangements to cope with the

environmental impacts, and concluded that they were inadequate in preventing

environmental detenoration. After assessing the regulatory process and outcome of

drainage projects, Kettel and Day (1974: 348) made three rccommendations for

improving the performance of the Drainuge Act. Fit, there needed to be a thorough

assessment of the range of environmentai impacts associated with drainage projects.

Seconcl, an institutional change was required to smngthen the authority of govemment agencies in evaluating new drains. Third, drainage legislation should give adverse drainage effects greater weight in the decision-making process. Since that time, there have been no other studies that examine the performance of the Drainage Act's regulatory process. Following the 1972 Select Cornmittee's Reports, there were changes to the Drainage Act in 1975. Found and Spence (1977) identified the potential weaknesses of the new legislation to protect against environmental impact. However, it was not timely for hem to evaluate performance. This current research project addresses this need.

The evaluation will follow other research efforts that evaluate the ability of the

regulatory process to protect the environment, specificaily wetlands. One piece of

legislation that has received extensive research on its effectiveness for wetland protection

is Section 404 of the United States Clean Water Act. This research incorporates the

techniques developed in the evaluations of wetland rnitigation measures by Hirsch

(1988). Abbruzzese et al. (1997), Lee and Gosselink (1988), Owen and Jacobs (1992),

Kentula et al. (1992), Berry and Dennison (1993), Brooks (1993). Allen and Feddema

(1996), Race (1985). and Torok et al. (1996). These authoa used various data sources,

including pemiits, interviews, and document reviews. From this information, the authors

were able to evaluate the effectiveness of the Section 404 program at maintaining the "no

net loss" policy. This research will also incorporate studies outside the United States that

evaluated wetiand management practices. These methods wiil be examined in Chapter 3

of the thesis. This research will incorporate these techniques to evaluate the performance

of the Drainage Act in rnitigating the environmental impacts of agricultural land drainage

on wetlands. 1.5 Research Goal and Objectives

The goal of this research is to evaluate the intent and practice of wetland management under the Ontario Drainage Act. The Drainage Act has a referral process that is intended to mitigate the potential environmental impact of agricultural land drainage on wetlands. Conservation authorities have the responsibility of protecting wetlands ftom being desuoyed or impaired by the process of land drainage under the

Drainage Act. The MNR had the responsibility of implementing the Fisheries Act legislation until September of 1997. This research will study the wetland management

process in Zorra Township between the years of 1978- 1997. In order to evaluate the

Drainage Act, the specific objectives are as follows:

i) describe wetland management in Ontario; (Chapter 2)

i i) review literature related to wetland management and to develop an

evaluative framework based on the principles of Integrated

Watershed Management which include informed decision making,

pmerships and ecosystem management; (Chapter 3)

iii) describe the method of data collection and analysis; (Chapter 4)

iv) assess the implementation process and outcomes of the wetland

management under the Drainage An based on efficiency, equity,

performance, adequacy and consistency; (Chapter 5)

idenûfy the streogths and weaknesses of the current wetland

management process under the Draimge Act; (Chapter 6)

vi) recommend changes to the current wetland management systern.

(Chapter 6) Chapter 2: The Institutional Arrangements for Wetland Management and Drainage Regulation in Ontario

2.0. Introduction

In order to establish academic and pr~cticalcontexts for the study, this chapter descnbes the institutional arrangements for wetland management and drainage regulation in Ontario. The first section bnefly identifies the major human-generated threats to wetlands. It dso descnbes the Wetland Policy Statement that has been developed under

Ontario's Planning Act. The regulation of agricultural drainage activities is outlined in

the second section. The final section identifies important themes that support Ontario's

current management efforts. These themes are further explored in Chapter 3.

2.1. The Planning Act and the Wetland Policy Statement

The four main threats to wetlands in Ontario are agricultural land drainage,

urbanization, invasion of exotic species, and non-point pollution sources (Cox, 1993).

Agricultural land drainage and urbanization are direct threats to the ecological integrity of

wetlands. The invasion of exotic species and non-point pollution sources cm have a

detrimental impact on wetlands but there is sometimes no direct human activity. Whiie

there is no perrnitting process or regulation of human action to control the invasion of

exotic species, regulation is central to urban development and drainage. In these regards,

the Ontario Govement has established a mix of policies, regulations and processes

under the Planning Act and Drainage Act. The Ontario Planning Act guides land development in municipalities pnmarily through the use of officiai pians, and zoning by-laws. Under Section 3 of the Ontario

Planning Act, planning bodies are required to "have regard to the provincial poiicy statements. After over ten years of often intense debate. a Wetland Policy Statement was introduced by the province in 1992.

Its goals are to: (1) identifi and protect wetlands in the land use planning process; and (2) to achieve no loss of provincially significant wedands (Ontario Ministry of

Municipal Affairs and Ontario Ministry of Natural Resources, 1992). In order to achieve those goals, the following objectives must be met: (1) development shall not be pennitted within provincially significant wetlands; (2) on adjacent land, development rnay be pennitted only if it does not result in any of the following: (a) loss of wetland function,

(b) subsequent demand for future developrnent, (c) conflict with existing wetland management practices, and (d) loss of contiguous wetland area. If development is to be permitted, then an environmental impact study must prepared by the proponent to

establish that it will not result in any of the previously staied outcomes.

The implementation of the Wetland Policy Statement relies upon an evaluation

system. Wetland functions are used to determine its significance based upon

hydrological, biological, social and special features components (OMNR,1994). Data are

collected for each of the individual components. Once each of the components is

individually assessed and given a score out of a maximum 250 points. the significance of

the wetiand is ranked. A score above 600, or greater than 200 points in either the special

features or biological cornponent results in a ranking of provincially significant. A score

below 600 will give a wetland the stanis of Locally signincant. This ranking is important

because the Ontario WetZad Policy Statement gives greater weight to the protection of provincially significant wetlands than it does to the locally significant wetlands. The

Wetland Policy Statement does not apply to the Drainage Act. However, within the data record sheets for each wetland is an abundant arnount of information assessing the function and value of individual wetlands that could be useful for decision makers - both urban development and drainage.

The essential intent of the Wetland Policy Statemenr is to protect provincially

significant wetlands (class 1-3) and to encourage the protection of locally significant

wetlands. Thus, the effectiveness of the policy is, in large part, based on the assumption

that a comprehensive inventory of wetland values has been completed. It also assumes

that the biophysical processes that support these values will aiso be maintained through

the policy's implementation. In addition, impact assessrnent studies must identify

potential impacts and their significance, and identifj and implement appropriate

rnitigative measures in order to protect or enhance existing wetland values and processes.

There are at least two concerns with Ontario's approach. First. the Planning Act

requires that municipalities "have regard" to the Wetland Policy Statement (Stade1 et al.,

1995). This wording lacks clarity and cornmitment. Second. agricultural drainage. which

is the largest direct contributor to wetland losses in Ontario is exempted from these land

use regulations. As will be seen in the next section, the OntaBo Wetlands Policy

Statement does not apply to Section 4 or 78 construction under the Drainage Act. The

procedures for conducting an environmental impact study adjacent to provincially

significant wetlands are also oot applicable for drainage activity. 2.2 The Drainage Act and the Petition Drainage Process

Petition drains may be filed at the local municipality if it meets the requirements of a majority of the assessed landowners in the drainage watershed, or represents 60% of the area in the drain watershed. When either of these criteria are met, a petition is drawn up that states in effect; "We request the appointment of an engineer to investigate the constmction of a new drain at a certain location." Notification is then forwarded to the applicable body - either a township council or municipal council (Figure 2.1). The council then decides whether or not to proceed with the petition. When this occurs,

Section 5 (1) states that:

when a Section 4 (drainage work] has been filed. the council shail forthwith consider the petition and shall, within thirty days after the filing of the petition,

(a) if it decides not to proceed with the drainage works, give written notice of its decision to each petitioner; or

(b) if it decides to proceed with the drainage works, give written notice of the petition and of its decision to each petitioner, the clerk of each local municipality that may be affected, and the conservation authority that has jurisdiction over any lands in the area or, if no such conservation authority exists, the Minister of Natural Resources (Drainage Act, 1990).

Once accepted, notification is sent to the referral agencies (Le. the conservation

authonty or MNR) for comments or concems of the petition location. At this stage, the

referral agencies can either approve, or approve with conditions (e.g. mitigative measures

in the construction of the drain). The MNR or conservation authority can also nquest an Figure 2.1 Petition Drainage Approval Process

Support of Others in Drain Watershed

1 Petition Submitted to Municipdity

ACCEPTED -REJECTED Petitioners, MNR, C.A. & Engineer

1 -- - MNR or C.A. Approves with Request Approval Conditions Environrnen ta1 i Appraisal Site Meeting

Engineer' s Report Submitted to Council ACCEPTED RUECTED i Landowners, C.A. 1 Appeal to Court of Revisions 1 and MNR Advised of l 1 Decision 1 Appeal to Drainage Tribunal Public Council Meeting to d Consider Report

Council Passes By-law

Apply-- - for OMAFRA Grant on Tender and Construction Completion

Source: Shmbsole, 1992 environmental appraisal of the work if they feel the drainage scheme has a high environmental sensitivity (UTRCA,1993; OMNR, 1993). Not al1 drainage works have high environmental sensitivity. However, the agency requesting the appraisal has to pay for it as stated in Section 6 (1):

Upon receipt of a notice from the initiating municipality under subsection 5 (l), a local municipality. conservation authority or the Minister of Natural Resources. as the case rnay be, may send to the council of the initiating municipality within thirty days a notice that an environmental appraisal of the effects of the drainage works on the area is required, and the cost thereof shall be paid by the party who requested it (Drainage Act, 1990).

This provision is inconsistent with the treatment provided under the Wetland Policy

Statement that identifies the proponent of an undertaking to pay for a study. Therefore, conservation authorities and MNR have infrequent use of this provision (UTRCA,1993).

The next stage is the appointment of an engineer to condua the report (Figure

2.1). Within the UTRCA jurisdiction, there are approximately six separate engineering firms that specialize in drainage engineering. The appointed engineer will make a

preliminary examination of the area, and then invite the affected landowners. drainage

superintendent, conservation authority and MNR officiais to a site meeting. The purpose

of the meeting is to discuss the preliminary findings of the engineer's report, including

the area requinng drainage, to note the extent of repairs and to request comrnents from

those present at the site meeting. The MNR and conservation authority usually attend site

meetings for those drainage schemes that may have a high level of environmental

sensitivity (UTRCA, 1993).

After the site meeting, the engineer writes the drainage report (Figure 2.1). The

engineer's report contains a review of dl historicai records and data on the drain and

estabüshes the cwrent ownership of each property. Always included in the report are assessrnent SChedules and dmin designs. Reports sometimes contain constmction practices and anticipated environmental impacts. These comments are not required under the Drainage Act.

The report is then forwarded to the landowners, council, the local conservation authority and MNR office. At this point, landowners can accept the report, or they cm appeal based upon their assessed costs, or the design of the drain. Appeals are submitted to the Court of Revisions (Figure 2.1). If landowners are not satisfied with the decision of the Court of Revisions, they can appeal to the Drainage Tribunal (Figure 2.1). The local conservation authority reviews the report in order to provide any comments relating to their mandate. Section 49 outlines the basis for an appeai by a conservation authority as follows:

Where the proposed drainage works is to be undertaken within a wateahed in which a conservation authonty has jurisdiction, the authority may appeal from the report of the engineer to the Tribunal on the ground that the drainage works will injuriously affect a scheme undertaken by the authority under the Conservation Authorities Act, and in every case a written notice of appeal shall be served within forty days after the mailing of the notices under subsection 46 (2) (DrainageAcr, 1990).

There is no specific provision that explains under what circumstances the MNR can

appeal the engineer's report. in these cases, the MNR would pursue court action under

the Fisheries Act. If there are no objections, the municipality wiil schedule a date of

consideration in front of council. Baring any appeals, the report would be adopted and a

provisional by-law circulated to ail affected landowners. Tenders are sent out for bidding,

and once awarded construction begins (Figure 2.1). 2.3 The Process that Provides for the Repair and Improvement of

Drainage Works

The decision-making process under Section 78 is sirnilar to the petition process, with the differences being highlighted below. Section 78 drainage works fa11 under the category of repair or improvement and also require an engineer's report.

78. (1) Where, for the better use. maintenance or repair of any drainage works constnicted under a by-law passed under this Act or any predecessor of this Act, or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, reconstruct or extend embankments, walls. dykes, dams, reservoirs, bridges, pumping stations and other protective works as anciilary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it, or to consolidate two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in section 4 but on the report of an engineer appointed by it, undertake and cornplete the drainage works as set forth in such report (DrainageAct, IWO).

Council cm improve a drain on the report of an Engineer, without a petition. An

owner can make a written request to Council for the improvements of a drain, or. Council

can initiate the improvements (Invin, 1997). Al1 of the procedures under this section shall

be the same as on a report for construction of a drainage works under Section 4.

However, Section 78 (2) also States:

an engineer shd not be appointed under subsection (1) until thirty days after a notice advising of the proposed drainage works has been sent by prepaid mail to the secretary-treasurer of each conservation authority that has jurisdiction over any of the lands that would be affected (Drainuge Act, 1990). The remaining procedures outlined in Section 4 petitions are to be adhered to during the implernentation of Section 78 repair and improvement works.

2.4 Summary and Implications of Ontario's Approach

Responsibility for regulating drainage resides at the provincial level in Canada.

Under the Constitution Act, provinces have the statutory control of private property and

civil nghts, as well as control over natural resources and public lands (Dahme, 1988).

The management of wetlands regularly deals with a conflict over pnvate property rights

and public rights. The indirect protection of wetlands through various Ontario statutes is

one means through which govemment agencies guide development on private property

(Dahrne, 1988). However, when dealing with wetlands, further protection is extended to

wildlife and the maintenance of the ecological integrity of an area. Therefore. law makers

and govemment officiais have to balance the rights of individual property owners with

the public interest.

Under the Ontario Drainage Act, the public's environmental interests are

balanced through the referral process to conservation authorities and MNR that was

described earlier. However, there are several assumptions about the wetland management

that the regulatory agencies rely upon. Fit, govemment agencies assume that there is a

comprehensive inventory of al1 the wetlands and other important environmental fatum

within their jurisdiction. Any wetland area not identified as such will not be given any

protection. Second, there is an assumption that the mitigation alternatives recomrnended

by the agency are sufficient to prevent any loss of function or value of a wetland. These

assumptions as well as Ontario's fragmentecl approach to wetland management prornote the need to assess not only the effectiveness of current practices, but their adequacy.

These requirements are met by identiQing both normative and operational criteria against

which performance cm be measured.

2.4.1 Normative Criteria

Since the publication of Our Commun Future, sustainable development or

sustainability has been viewed by many as the vision to be punued in resource and

environmentai management (Mitchell, 1995). Dorcey (1991) and Mitchell (1995)

maintain that within the context of water management. sustainability is synonymous with

the principles of integrated watershed management. The normative criteria for this

evaluation are drawn from the following principles of integrated watenhed management:

(1) informed decision making, (2) partnenhips and participation, and (3) ecosystem

management. Each is discussed below.

2.4.1.1 Infonned decision making

Data, information and knowledge are the pillars around which sound

environmental policies are built (Mitchell and Shrubsole, 1994). Dixon and Easter ( 1986)

(as cited in Sellers, 1993) suggest that total management of watenheds is largely

unsuccessfd due to the lack of institutional coordination, but more likely it is a result of

decision making and implementation without complete information. However, this does

not mean that if al1 the direct and indirect effects where known that water resource

decisions would be mon successful. SeIlers (1993) concluded that the more information

availabie, the pater the chances were of finding satisfactory solutions.

Mitcheil(1995) suggests since conditions within the environment, society and

economy are continuously changing, information and knowledge are incomplete. Therefore, adaptive approaches are required in order to respond to these uncertain conditions. Information should be collected and updated on a regular bais to ailow decision makers to be informed as to the present conditions of the environment. Regular updated information can also be used to monitor changes that are occdng at the landscape level. Monitoring can facilitate improved decision making or provide the bais for making necessary alterations of a poiicy.

2.4.1.2 Pnrtnerships and Participation

Partnenhips between government agencies and the general public can be fonned

through informa1 or legally binding institutional arrangements. As a result. compatibility

between the various stakeholders, equitable representation and power and

communication mechanisms play a key role in sustainable development (Mitchell. 1995).

Mitchell (1995) argues that inclusion of the aforementioned elements in the participation

pmcess will result in the Likelihood that a partnenhip will endure and be effective.

2.4.1.3 Ecosystem Management

Mitchell and Shmbsole (1994) suggest the ecosystem approach is a means to

achieve sustainability. Grumbine (1994: 3 1) defines ecosystem management as "the

integration of scientific knowledge of ecological relationships within a complex

sociopolitical and values frarnework toward the general goal of protecting native

ecosystem integrity over the long term." The ecosystem approach emphasizes the

Linkages among the environment, society and economy. In order to be sustainable,

Shrubsole (1997) suggests that decisions be balanced in the context of the environment,

society and economy. Therefore, econornic measures, as weil as, maintaining ecological integrity and incorporating society values must be included in the decision-making process.

Dorcey (1992) suggests that while the ethic of sustainability reinforces the principles of integrated watershed management. it has proven to be difficult to put the pnnciples into formal policies and practice in water resource management in Canada.

Therefore, this research will examine the sustainability of the provisions of the Drainage

Act in regards to wetland protection using the previously described normative critena.

2.4.2 Operational Criteria

While normative critena examine how policies "ought" to function. the

operational criteria focus on factors influencing the attainment of goals and objectives

(context), how the policy is being implemented (process), and the results of the

implementation process (outcomes). Impiementation failure is widespread in

environmental policy. It must be defined not simply as the failure to put a policy intention

into effect, but aiso as the failure to address adequately a significant problem (Weaie,

1992). The operational criteria wiiî examine the intent and practice of wetland

management as defined by the provisions of the Drainage Act based on the context,

process and outcomes (Figure 2.2).

Mannanian and Sabatier (1981) suggest that in order for regulation to be effective

and meet the anticipateci goals and objectives, six conditions should be met: Figure 2.2 Operational Evaluative Framework Context

uncert;iinty complexity

Statutory Variables Non-statutory Variables ckar objectives administrative support integration technology participation

Process

Implementation

Outcornes uConsistency Performance IAdequacy

Based on MaPnanian and Sabatier, 198 1 the legislation should have clear and consistent policy objective or at least the criteria necessary for resolving conflicts;

the legislation should incorporate a sound theory identifying the principal factors and causal linkages affecting policy objectives, and gives implementation officials sufficient junsdiction over target groups and other points of leverage to attain the desired goals;

the legislation should be stntctured in a manner that ailows the implementation process to maximize the probability that implementing officials and target groups will perfonn as desired;

the irnplementing agency possess substantial managerial and political ski11 and are cornmitted to statutory goals;

the program is supported by organized constituency groups and by a few key legislators throughout the implementation process;

the statutory objectives are not undermined over time by the emergence of conflicting public policies or by changes in relevant socioeconomic conditions.

These six conditions are incorporated into the evaluative framework described in Chapter

5. In addition, this section will evaluate wetland management based on critena emerging

from a growing body of literature on policy evaluations. The operational criteria include

efficiency, equity, performance, consistency and adequacy. These cntena are descnbed in

more detail in Chapter 4.

Rior to descnbing the methods employed and study findings, it is appropriate to

review iiterature related to important aspects of wettand and drainage management. This

objective is addressed in the next chapter. Chapter 3: Literature Review

3.0 Introduction

A review of previous studies surrounding wetland regulation and agricultural land drainage suggests that there are three dominant themes in the literature - science, law and technology (Berry and Dennison. 1993). These will be used to structure the literature review. For the purposes of this research effort, science refers to the study of wetland

ecology. The institutional arrangements associated with wetland regulation and drainage

are the focus of the legal frarnework. The range of mitigation alternatives available to

wetland managers is the technological component. In this sense. the interaction of

science, law and technology will provide the foundation in which this present research

will evolve.

While these three themes are interdependent each theme will be looked at

individually. This chapter is divided into three sections. First, the institutional

arrangements section will focus on the issue of individual property versus public nghts

and regulating development of wetlands on pnvate property. The complexities of the

administrative process will also be examined. Second, the science section will descnbe

the uncertainty associated with the identification and significance assessment of

wetlands. These issues are relevant to the development of wetland data bases that often

provide the foundation for environmental impact studies. The science section will also

examine the current practice of assessing cumulative impacts. Third, the technology

section provides insight on the subject of mitigation alternatives, and identifies the Best

Management Practices (BMPs) for drainage projects in the vicinity of wetiands. Mitchell (1995) suggests that resource and environmental management must deal with conflict and uncertainty on an ongoing basis. In the remaining sections of this chapter, the conflict and uncertainty associated with institutional arrangements, science, and technology of wetiand management will be established.

3.1 Institutional Arrangements

O' Riordan (197 1) (as cited by Mitchell, 1989) identified institutional

arrangements as one of the most fundamental research needs in resource management

The institutional arrangements or structures are defined as the linkages among

govemment agencies, laws, participants and policies relating to a given resource

(Mitchell, 1989). Two issues are particularly relevant to wetiand regulation. First, the

issue of property nghts and public nghts will be explored as it relates to wetland

management. Second, the permitting procedure of Section 404 of the US Clean Water

Act is examined to identify the strengths and weaknesses of referral processes as means

of wetland protection. Each is discussed below.

3.1.1 Property Rights

In 1972. the US. Congress passed the Clean Water Act, in order to restorr and

maintain the integrity of the nation's water. by requinng, through Section 404. permits to

discharge dredge or fil1 material into navigable waters (Kusler, 1992). Since wetiands

were included in the definition of navigable waters, Section 404 is the cornerstone of

wetland protection in the United States. In effect, Section 404 is a land use decision- making tool that regulates which wetlands cm be dredged or filled, and determines what mitigative measures are necessary, if any.

As a land use decision-making tool, the Section 404 permitting program regulates the development of wetlands on pnvate property. Since 75% of the rernaining wetlands in the United States are located on private property, the right to convert wetlands has become a contentious issue (Heirnlich et al.. 1997). One important problem thai policy makers and the courts face in regulating wetlands through Section 404 is the extent of landowner's rights to convert wetlands to other land uses. Marzulla and Marzulla (1997:

55) argue that "the wetlands pedtting program reaches far beyond those watenvays owned by the public. Instead, it purports to regulate virtually al1 land-distributing activities occurring on privately owned property ."

The courts in the United States have been inconsistent in determining who holds the right to convert wetlands (Heimlich et al., 1997). On the one hand, some decisions conclude that if the govemment wants to preserve these wetlands, then it must purchase them from the property owners. On the other hand, others have ruled that protection of

wetlands on private property constinites a "taking", and thus incorporate provisions ihat

compensate for those losses (Marzulla and Marzulla, 1997). Monetary compensation is

one rnechanism through which property rights and citizen rights are balanced. The other

rnechanism of compensation is in the form of mitigation measures that prevent or

minimize impacts. This topic will be discussed further in the technology section.

However, mitigation is seen as a method of compensating both property owners and

citizens. The intent is to prevent of "net loss" of wetland area, and allow development

projects to proceed. In order to determine the specific measure required for a particular development project, the Section 404 permitting procedure and referrai process supports the af5ected parties to negotiate a seulement.

The Ontario Drainage Act balances property nghts and citizen rights through a sirnilar referral process. However, the Drainage Act restncts the aitematives that refend agencies cm recommend. Unlike in the United States, the balance between the rights of property ownen and the general public is achieved through bargaining and negotiations of the design of the drainage work. There are no provisions that allow the compensation of wetland loss off-site through the creation. restoration or wetland banking. Thus, only on-site mitigation is supported under the Drainage Act. This limits the alternatives available to conservation authorities in their attempt to balance the rights of ownen and the public. This is discussed further in the next section.

Conservation authonties and individuais owning property within the watershed of a drainage project have the right to appeal any works proposed. With respect to petition drainage, property nghts of people living within the drain watershed are addressed through the requirements of Section 4 (1) (a) and (b) which require the petition be signed

by a majority of the landowners or owner (s) representing 60% of the area, respectively.

Once a petition has met either of these criteria, it can be fonvarded to council for their

acceptance or refusal (Figure 2.1). If council accepts the petition, a landowner may

appeal any of the benefits and costs associated with the drainage work as assessed by an

engineer under Section 48 (1) (a). Also, any landowner may appeal to the Tribunal that

the drainage works should be modified under Section 48 (1) (b). Conservation authorities

may appeal drainage works which will injuriously aFfect a management scheme

undertaken by an authority under Section 49. 3.1.2 Perrnitang Processes

In a review of literature around pennitting procedures, three criteria dominate the evaluation of permitting procedures: effectiveness, equity, and consistency.

The main focus in this subsection will be the pennitting procedures of the Section

404 program in the United States. There has been extensive research on that program's implementation processes. which are relevant to the assessrnent of the provisions under

the Drainage Act. Both pieces of legislation rely on a referral process that allows

different stakeholders to voice their concem towards individual applications. It is dunng

this part of the process thai, in part, conflicts cmbe resolved. Therefore. this aspect of the

institutional arrangements plays an important role in determining the efficiency, equity

and performance of policy implementation.

Three studies completed of Section 404 processes highlight this conclusion. First,

a report filed by the General Accounting Office concluded that "the United States Army

Corp of Engineen [USACE]districts consider but often do not implement resource

agency recomrnendations" (Owen and Jacobs, 1992: 351). Second. Owen and Jacobs

(1992) conducted a study which looked at the effectiveness and procedural faimess of

Section 404. Procedural fairness measured how open a process was to the groups

involved. Owen and Jacobs (1992) reviewed 58 permits from Wisconsin that revealed

that the Fish and Wildlife SeMce had objected to 14 permits, and 10 were denied. The

Office of the Wisconsin Intervenor and a public advocacy group objected to eight

applications with five receiving approvals. Four of the five approvals were given with

mitigation required. Local and regional govements did not play an active role in the

decision-making process. The review of permits in Wisconsin indicated that feded govemment agencies have the greatest influence on decisions, and private groups and individuals had the Ieast.

Third, a study was conducted by the National Marine Fisheries Service to determine whether their comments were effective in influencing the decision-making process. After examining a sample of the pennits between 1981 and 1985, and again in

1987, the National Marine Fisheries Service concluded that they had only been pariially effective in getting their conservation recommendations included in permits (Kentula et al., 1992).

With the exception of the Owen and Jacobs (1992) report, these studies have indicated that the Section 404 permitting process does not effectively incorporate recommendations frorn outside parties into the decision-making process. While there is an avenue for referral agencies to comment on projects relating to wetlands, the relative weight given to those opinions is apparently low.

Other research on Section 404 processes revealed how cumulative impacts are assessed. These impacts affect long-term performance and must be considered. When

considenng cumulative impacts, United States hyCorp of Engineers (USACE)must

determine whether the proposed activity will mate "significant degradation of the waters

of the United States" or have "significantly adverse effects" on wetlands (Hirsch, 1988:

717). The regulations suite that the permit decision must consider an evaluation of the

probable impacts, including cumulative impacts of the proposed activity. WhiIe

individual alterations may be perceived as minor, collectively they can result in a

significant impairment of wetland functions. Therefore, applications should be evaluated

on the basis that they are part of a larger interrelated wetland cornplex (Hirsch, 1988). Dalton (1989: 162) conducted a study of planning implementation in California and concluded that dependence on regulation reinforces a decision-making process that emphasizes bargaining and negotiation with applicants, permitting piecemeal adjustrnents to the plan overtime. She also maintained that the reactive nature of the regulatory

process leaves the initiative for implementation in developers' hands rather than

plamers'.

The research conducted in the late 1980s by Hirsch, and Bedford and Preston,

suggested that the Section 404 program could address the cumulative impact issue.

However, Abbruzzese and Leibowitz (1997) recommended that the permit process was

not the best mechanism to address cumulative impacts because it was a reactive form of

protection since it considered impacts on a case-by-case basis. Therefore, Section 404

does not allow for a comprehensive view of wetiand impacts, and cumulative impacts

would be better addressed as part of regional planning efforts, such as state wetiand

conservation plans or watershed protection plans. These programs support the assessrnent

of cumulative impacts outside the regulatory defined boundaries.

With reference to the Ontario Drainage Act, several studies suggest that existing

institutional arrangements be adjusted to reduce the environmental damage caused by

drainage, and to address cumulative impacts (Kettel and Day 1974; Bardecki 1981;

Whiteley 1979; Spaiing and Smit 1995; Spaling 1995).

Kettel and Day (1974) examined the Ontario Drainage Act and reviewed the

conservation authorities, and the former Department of Lands and Forests (now Ministry

of Natural Resources) role in the drainage application process. Fit, Kettel and Day

examined the responses of the four main pups involved in the drainage process. A

questionnaire was sent to drainage engineers, Department of Agriculture and Food extension engineers, conservation authorities, and the Department of Lands and Forests personnel, in attempt to determine their opinion of the potential benefits and impacts of drainage. Both the drainage engineers and the extension engineen highlighted the benefits of drainage projects. However, the drainage engineen also indicated that their work might adversely affect fiora and fauna, and hydrology. The other two groups. the conservation authorities and the Department of Lands and Forest highlighted the negative impacts associated with agriculniral land drainage (Kettel and Day, 1974: 343). The research highlighted the confiict between the proponents of drainage works and the groups involved in protecting the public interest.

Second, Kettel and Day (1974) surveyed conservation authorities involvement

with drainage projects in southwestern Ontario between 1967 to 1971. During that time.

conservation authonties were advised of only 21% of the drainage works. This was

despite the fact that within the ihi~geAct, it was necessary for conservation authonties

to be notified of aii drainage works. On only one occasion was a conservation authority

successful in an appeal of the construction cost of a drainage project. While the

Department of Lands and Forests received copies of the engineer's report, officials

maintained that they were not in a legal position to stop a project after it had been

approved by a municipality. This led Kettel and Day (1974) to conclude that govemment

agencies had not played an effective role in controlling the construction of outlet drains.

In sumary, a review of the institutional arrangement around the Section 404 and

the Ontario Dmi~geAct permitting procedure identified the strengths and weaknesses of

the process. The strengths of the permitting process are that it requires potential property

owners to apply for a permit before attempthg to detrimentally impact wetlands. Also,

the process provides some flexibility in decision making through the bargainhg and negotiation process. However, while stakeholden are allowed to comment of individual permit applications, their recommendations are not equally weighted with al1 the participants. Another weakness is the permit-by-permit review process that inadequately

supports the treatment of cumulative impacts. In both Section 404 and the Drainage Act,

the lack of regulatory authority made it impossible for referral agencies to successfully

prevent an application's approval. Therefore, bargaining and negotiations becorne the

pnmary mechanism through which environmental considerations can be incorporated

into the permitting process.

3.2 Science

The scientific study of wetland ecology has undergone a transformation over the

last 30 years, from a purely descriptive science to a discipline that relies on the most

technically advanced biological, chemical and mathematical procedures (Berry and

Dennison, 1993). However, despite this evolution there is uncertainty about wetland

identification and significance assessrnent (NRC 1995; Tiner 1993a; Tiner 1996; Kusler

1992).

3.2.1 Wetland Identifkation and Delineation

Wetlands are often defmed using three general cntena: (1) hydrology, (2)

hydrophytic vegetation, and (3) hydric soils. Wetland hydrology is defined by the

frequency or duration of continuous flooding or saturation within a given distance of the

surface during the growing season (U.S. NRC, 1995). This is the most dificult derion

to ver@ because not al1 wetlands are permanently wet (Tiner, 1993b). Hydrophytic

vegetation is plant life growing in areas permanentiy or periodicaily saturated near the surface and at lest periodically deficient in oxygen due to excessive water (U.S.MC,

1995). These can be mapped relatively easily but boundaries will change with changing conditions. Hydnc soils are areas that are saturated long enough to develop anaerobic conditions in the upper part of the soi1 profile (U.S. NRC, 1995). These properties help to distinguish wetiands fiom other ecosystems. Wetlands are zones of transition or ecotones between terrestrial and fully aquatic habitats. The transitional nature of wetlands, both in time and space, makes their identification difficult (Hollis and Thompson, 1998).

Even though there seems to be consensus on the use of these three cnteria to identify wedands, the adoption of guidelines that define which wetlands should be regulated has been problematic as evidenced by the experience in the United States.

There have been three main manuais developed to identify wetiands in the United States:

(1) 1987 United States Amy Corps of Engineea (USACE). (2) the 1989 Federal

Interagency Manual for Identification and Delineation of Wetlands, and (3) the 1991

Roposed Manual. While al1 three manuals used the same three delineation criteria. the dlowable combinations of these cnteria varied. For instance, while the 1987 USACE manual and the 1991 Proposed manuai required each of the three criteria be shown

separately. the 1989 Interagency manual only required strong evidence of two, sufficient

to support the third. The two critena were considered sufficient because if hydrophytic

vegetation and hydric soils were present then it was not considered necessary to show the

hydrology criteria. The implication of this was that more wetlands would have ken

protected using the 1989 system of wetland identification.

Much of the debate conceming wetlands pertains to the identification and

significance assessment. Failure to identify and delineate wetlands properly may lead to

wetland destruction and/or loss of value. In New Zealand, the Wetiands of Ecological and Representative Importance (WERI),undertaken by the New Zealand Commission for the

Environment, focuses on wetland classification and values (Hollis, 1991). WERI identifies representative wetlands as an urgent response to protect wetlands. Using the

WERI method, each wetland is classified in an "ecological hierarchy" according to hydrological character. landforms. biological communities and the dominant plants

(Hollis, 1991). The objective of WERi is to compile existing information on wetiand and ro transfomi these data into a form suitable for assessing wetiand values (Simpson, 1985 as cited by Hollis, 199 1).

The identification of the functions and values of wetlands is well developed in the

U.S. through the Habitat Evaluation Rocedures (HEP) (Beny and Dennison, 1993). HEP

uses computer models to link biological requirements and tolerances for certain indicator

species to environmental variables. The purpose is to determine habitat suitability by

measuring the relative quality of wetland functions (Berry and Dennison, 1993). This

type of evaluation method attempts to measure the significance of a wetland based on

various biophysical characteristics of an area.

In Southem Ontano, wetlands are identified delineated and assessed through the

Ontario Wetlands Evaluation Southem Manual (1994). The evaluation system

emphasizes the form of the wetland, aot its function, in detemiining boundaries (Huizer,

Personal Communication, 1999). Boundaries are based on the deof 5046, which is an

area where the hydrophytic vegetation indicator species represent 50% of the population

by species, not mass (OMM, 1994). The boundary delineation method is vegetation-

based. Tiner (1996) suggests that the "50% mle" may be good for salt marshes and the

wetter fieshwater nontidal wetlands where wetland and upland species dominate. However, it is less useful for identimng chier-end wetlands and wetland boundaries in areas of low relief.

Along with identiQing wetlands and assessing their significance, the

undentanding of wetland ecology is relied upon to assess the cumulative impacts of development projects around wetlands.

3.22 Cumulative Impacts

Wetland scientists attempt to determine the threshold of development at which

wetlands can no longer maintain their function and value through assessment of

cumulative impacts. Hinch ( l988), Preston and Bedford ( 1988). Gosselink and Lee

(1988). and Abbrunese and Leibowitz (1997) maintain that conducting cumulative

impact analysis in a proactive manner would be more effective than a reactionary

approach. These authors also suggest that evaiuations of cumulative impacts should be

conducted at the watershed level. rather than on site-specific review of impacts. This

would dlow government agencies to identify and designate aquatic sites as suitable or

unsuitable for filling or draining, without waiting for specific requests to be submitted.

The synoptic approach is the generally agreed upon method of assessing

cumulative impacts (Hirsch 1988; Lee and Gosselink 1988; Preston and Bedford 1988;

Abbruzzese and Leibowitz 1997; Lemly 1997). It provides a framework to compare

landscape subunits, such as watersheds, thereby allowing cumulative impacts to be

considered in management decisions. This approach was developed as a compromise

between the need for ngorous results, and the need for timely information (Abbmwse

and Leibowitz 1997). Hirsch (1988) and Abbruzzese and Leibowitz (1997) suggest the

most important pnnciple in conducting a synoptic assessment is that it is not a cookbook recipe for success. The quality and effectiveness of cumulative impact assessments can be improved if an ecosystem approach is taken (Lemly 1997).

Johnston (1994) suggests new tools are required for the purposes of analyzing multiple wetlands and multiple perturbations spread over large distances and long time penods. Geographic information systems can provide these capabilities and are becoming increasingly important for analyzing direct and indirect impacts. Since wetlands are not isolated, assessments that evaluate wetland impacts as isolated occurrences only provide a partial picture. Significant impacts to wetlands may result frorn the accumulation of many individual actions (Gosselink and Lee, 1989 as cited by Wilber et al., 1996).

Johnston (1994) encourages scientisu and regulators to think about wetlands as part of a bigger picture, as components of larger landscapes that include upland, surface water and groundwater. How cumulative impacts cm be addressed within the regulatory system

was discussed in the institutional arrangement section.

In Ontario, Spaling and Smit (1995) argue that the impacts of individual

agricultural land drainage projects are perceived to be insignificant. However, due to the

repetitive nature of drainage activities, ecosystems are unable to recover from a series of

drainage events. Spaling and Smit (1995: 99) maintained that "as drainage density

increases, changes in environmental components or processes manifest themselves as

cumulative effects. and that these accumulate at broader temporal and spatial scales."

Spaling (1995) applied a cumulative effects mode1 to agricultural land drainage in

southern Ontario by assessing the impacts of drainage on water flow, water quality, and

wetland area and disüibution. Cumulative impacts were examined by digitizing wetland

boundaries fiom aerial photography over selected temporal intervals and measuring the

total area, nurnber, patch size. and distribution of wetlands. Spaling (1995) concluded that drainage contributed to a decrease in total wetland area, average patch size, and distribution of wetlands. This implies that the present pmcess for assessing impacts of drainage projects ineffectively addresses cumulative impacts.

3.3 Technology

In reviewing the technological alternatives available to agencies under Section

404, performance was measured by its ability to restore, protect and create wetlands, as

well as the use of wetland banking. As described in the previous section, Section 404

allows referral agencies to make recornrnendations concerning the mitigation of potential

impacts. The requirement for mitigation as compensation for damages sustained by

wetlands is an important part of the United States federal govemment's ''no net loss"

policy. Although, mitigation is not.specifically required under Section 404, it is required

by the National Envirotiment Policy Act (Berry and Dennison, 1993). The final issuance

of a permit requires cornpliance with other state and federai laws. Therefore, in the

absence of denying approval mitigation alternatives can be in the form of restoration and

creation, or wetland banking.

33.1 Restoration and Creation

There were several shidies that assessed the performance of restoration and

creation projects as a mitigative strategy under Section 404 (Ailen and Fedderna, 1996;

Kentula et al., 1992; Owen and Jacobs, 1992; Race, 1985; and Torok et al., 1996). These

studies, that were conducted throughout the United States including Pemsylvania,

Wisconsin, Southeni California, New Jersey, Oregon, Washington and the San Francisco Bay area, generally concluded that restoration and creation projects were an ineffective form of mitigation. Four of the studies that quantified the area requiring mitigation

(Allen and Feddema, 1996; Kentula et al., 1992; Owen and Jacobs, 1992; Torok et al.,

1996) revealed that there was a "net loss" of area. These studies also detennined that

Section 404 was ineffective in achieving the "no net loss" goal.

An additional factor that may influence the actual loss of area is the ultimate

success of mitigation projects. The Section 404 program allows adoption of off-site

mitigation on the presumption that projects will succeed. Unfortunately, there is

substantial evidence provided by Race (1985) and Allen and Feddema (1996) that

mitigation projects are rarely as successful as the stated objectives. Another problem that

Race (1985) identified was that the quality of wetland produced was usually less than that

of the original. This conclusion is supponed by Fenner (199 1 as cited by Allen and

Feddema, 1996) who concluded that while restoration projects have been more successful

than wetiand creation projects. there are a large number of failures in both of these types.

In an attempt to reduce the loss of wetiand area, the USACE have often required

more area to be restored or enhanced than the area lost with ratios ranging from 2: 1 to 5: 1

(Fenner, 1991 as cited by Allen and Feddema, 1996). These ratios are quite high

compared to the results of the Torok, Lockwood, and Fanz (1996) who averaged ratios of

1.5: 1. However, despite these higher ratios, wetlands continue to be lost. Based on the

snidy by Ailen and Feddema (1996), the success of a wetland project relies on its size

with larger mitigation projects being more successful than smaller projects. On this

premise, they support wetland banking as an appropriate rnitigative alternative. 3.33 Wetland Banking

Wetland banking is based on the concept that restored or created wetlands are owned by private or public entities who receive wetland credits which can be applied at a later time for debits resulting from unavoidable impacts to natural wetlands (Berry and

Dennison. 1993: 299). In this way, wetland banking should increase the effectiveness of wetland mitigation, while reducing its cost. The focus of the Section 404 mitigation alternatives seems to focus on the off-site mitigation alternatives. as opposed to on-site

construction design.

Allen and Feddema (1996) and Torok et al. (1996) suggest that smaller wetland

projects be coordinated to create large contiguous mitigation areas. They feel that this

type of coordination results in easier monitoring of projects. The end result would be a

more effective balancing of wetland gains and losses (Torok et al.. 1996). However. since

neither of the reports provides cl= evidence that supports its effectiveness, the outcomes

from wetland banking are uncenain. This issue requires further research.

3.4 On-Site Best Management Practices

Through the referral process, the Ontario Drainage Act pmvides for on-site

mitigation measures in an attempt to nduce detrimental impacts of outlet drains. Kettel

and Day (1974) assessed the drainage engineers'. Drainage Superintendents',

conservation authonties', and MNR officiais' ability to mitigate the environmental

impacts of agricu1tura.l land drainage. They (1974) concluded that drainage technicians

and engineers seldom considend or understood the effect of drainage on the hydrological

or biological systems. The lack of knowledge to predict the hydrological and biological impacts of drainage led Kettel and Day to examine the regdatory process and mitigative measures in eliminating any environmentai darnage. They conciuded that neither the conservation authorities nor the Department of Lands and Forest played an effective role in mitigating the hydrotogical and biological impacts associated with outiet drainage projects.

Since the Kettel and Day study, the OMNR (1993) and UTRCA (1993) have

produced manuals that outline Best Management Practices (BMPs). The UTRCA

mandate focuses on the wetlands, while MNR is primariiy concemed with the protection

of fish habitat, wildlife and forestry. Genenlly, mitigation efforts in Ontario focus on

drain design. timing, construction or maintenance techniques (e.g. excavation and

sediment control), and bank stabilization.

To protect the drainage watershed ecosystem, the drain design should include in

areas of high velocity channel flows vegetative protection or rip-rap underlain by a

geotextiie filter cloth at bends. The UTRCA also encourages natural shading to be left on

the south and east banks to promote rapid revegetation of banks (UTRCA,1993).

The timing of construction or maintenance can help to maintain the integrity of

the ecosystem. The UTRCA (1993) and OMNR (1993) recommend construction be

initiated and completed dunng low flow conditions to minirnize channel and bank

erosion, and downstream sedimentation.

In order to reduce the nsk of increased sedimentation downstream, the UTRCA

(1993) and OMNR (1993) recommend certain precautiooary measures be taken during

the construction and maintenance phase. Clearing and pbbing should be rninimized to

leave as rnuch naniral vegetation as possible, yet suffïcient to carry out the construction

or maintenance. In sensitive wetland and forested areas, hand grubbing is recommended to minimize environmental darnage (UTRCA,1993). Sediment traps can be effective in reducing the downstream movement of sediments by reducing the flow, and allowing heavier sediment to settle (OMNR,1953).

Bank stabilization is an important component of the construction stage. To reduce erosion in the vicinity of the drain, drainage engineers should include such measures as buffer strips. mulching, revegetation, fencing, tiie outlet protection, and bank armouring

(rip-rap or bioengineering) (UTRCA, 1993; OMNR 1993).

The objective of a properly designed drain should be to provide sufficient outlet,

while minimizing costs associated with construction, environmental degradation and the

need for and frequency of future drain maintenance (UTRCA 1993). Sufficient outlet

means a point at which water can be discharged safely so that it will do no darnage to

lands or roads (Drainage Act, 1990). However, the UTRCA (1993) maintains that in an

attempt to reduce initial drain construction costs, environmental degradation is being

exacerbated.

Since the Kettel and Day (1974) study, there appears to be a greater understanding

of mitigation measures to reduce the likelihood of potential impacts of outlet drainage

construction. However, there have been no studies that evaluate the implernentation of

these recent mitigation measures within the Ontario drainage process.

3.5 Implications

Mer reviewing the previous studies associated with Section 404 and the Ontario

Dminage Act, there appear to be a number of common themes. Due to the dynamic

nature of the wetland ecosystem, it is difficult for scientists to accurately identiQ the limits of a wetiand. Under Section 404, there have been several manuals developed to assist in the delincation of boundaries. While each manual is similar in their focus on hydrology, hydrophytic vegetation, and hydnc soils, the critena Vary from manual to manuai. Deciding on the appropriate cntena for a manual is made more complex with the apparent regional differences and political pressure. This has implications for the level of regulatory protection afforded to designated versus undesignated wetlands.

Given the uncertainty with delineating boundaries, it is equally difficult to

precisely predict the cumulative impacts of individual projects. The site-by-site review of

permits impedes the consideration of landscape level impacts. The resutt is an ongoing

deterioration of wetlands. Bargainhg is an important component of the regulatory

system. However, public opinion and refenal agency comments under Section 404 and in

Ontario seem to be ignored. Managers and policymakers need to find a way to

complement the regulatory process, to deal with the limitations of the present wetland

protection system. The research supports a watershed approach to assessing cumulative

impacts.

Both Section 404 and the Drainage Act provide relevant agencies the opportunity

to comment on the issuance of a permit. However, research indicates that the referral

agencies lack the power to influence the ultimate decision to deny or approve permits.

Nevertheless, referral agencies can suggest mitigative rneasures to curtail potential

detrimenul impacts to wetlands. The effectiveness of restoration and creation rneasures

in the U.S. and BMPs in Ontario remains uncertain.

Kettel and Day (1974) concluded that refenal agencies did not play an effective

role in mitigating the hydrological and biological impacts associated with outlet drainage

projects because of their lack of understanding. As a nsult of their findings, Kettel and Day (1974) made three recommendations for improving the performance of the Drainage

Act. Fint, there needed to be a thorough assessrnent of the range of environmental impacts associated with drainage projects. Second. an institutional change was required to strengthen the authority of govemment agencies in evaluating new drains. Third. drainage legislation should give adverse drainage effects greater weight in the decision-

making process.

The uncertainty and complexity that has been identified in the literature around

wetland management makes regulation of activity around wetiands difficult. The results

of the previous study form the basis fiom which the provisions of the Drainage Act will

be assessed. Chapter 4: Methods

4.0 Introduction

The research design chosen to evaluate wetland management under the Ontario

Drainage Act was a case study approach. One advantage of a case study method is that it is an appropriate strategy for investigating "how" and "why" questions (Yin, 1994). The purpose of this thesis is to evaiuate the context, process and outcome of wetland management under the provisions of the Drainage Act. Program evaluation is the systematic collection of information about the activities, characteristics and outcomes of programs for use by specific people to reduce unceriainties, improve effectiveness, and make decisions with regard to what those programs are doing and effecting (Patton, 1986 as cited by Schaiock, 1995). The snidy of program implementation requires case data nch with the details of program context. Implementation evaiuations inform decision makers what is going on in the program and how the program has developed (Patton, 1986).

Case studies enable researchers to evaluate how weii a policy is implemented.

Rocess evaluations aUow decision makers to understand the dynamics of program operations. This type of research aüows people to decide about the extent to which the program is operating the way it is supposed to be operating. Rocess evduations are particularly useful for reveaiing areas in which programs can be improved as well as highlighting those strengths of the program that should be preserved (Patton, 1986).

Patton (1986) suggests the process focus in an evaluation emphasizes "how" an outcome

is proàuced rather than looking at the outcome itself. A decision maker can use

implementation information to rnake sure that a policy is king put into operation

according to design, or to test the very feasibility of the poticy. Where outcomes are evaluated without knowledge of implementation, the results seldom provide a direction for action because the decision maker lacks information about what produce the observed outcornes (Patton, 1986).

One cornrnon concem about case studies is that they provide little basis for scientific generalization (Yin, 1994). However, Cronbach and Suppes ( 1969 as cited by

Schdock. 1995) suggest that basic research is undertaken to test hypotheses and theones.

In this sense, basic research is conclusion oriented. In contrast, program evaluation is undenaken to infonn decision maken, cl&@ options, reduce uncertainties. and provide feedback to decision makers and stakeholders about the program. In adopting a case study approach for this research effort, important decisions concerned the study area, data collection, and evaluative rneasures. Each is considered below.

4.1 Upper Thames River Watershed and Zorra Township Case Study

The Upper Tharnes River watershed covers 3,482 square kilometen of land drained by the north and south branches of the Thames River (Figure 4.1). There are three counties within the Upper Thames watershed, Middlesex. Oxford and Perth. The

watershed is mainly niral except for the largcr urban areas of London, Ingersoil,

Stratford, St. Marys, Woodstock, and Mitchell. Agriculture accounts for 66% of the

watershed land, with approximately 3,600 farms (UTRCA, 1999). Figure 4.1 The Upper Thames River Watershed

Saurhem Ontario The Upper Thames Watershed was chosen as an appropriate study location because of the high level of drainage activity and historicd loss of wetlands. Snell (1987) reported that southwestern Ontario lost the greatest percentage of wetlands compared to other parts of southem Ontario. Table 4.1 illustrates the wetland loss in each of

Middlesex. Oxford and Perth County.

TABLE4.1 WETLANDCONVERSION STATISTICS FOR THREEUTRCA COUNTXES

. - ., 1 1982 (%) -. - ,_ _.. * ,-. .: . Agriculture Ide hnd ~aweçtatim ~ecreation ~xtmtive~ses Areas Middlesex 80.8 93.6 21 2.1 0.7 1.4 O Oxford 54.8 93 1.8 O O O 5.2 Perth 84.6 94.3 3.5 2.2 O O O

Source: Snell, 1987

Each of the three counties have experienced a high level of wetland conversion

since the 1800s, from 54.4% in Oxford County to 80.8% and 84.4% in Middlesex and

Oxford County respectively. The major land use of the converted wetlands between 1967

and 1982 was agricultural activity.

The selection of a township within the UTRCA for detailed study was guided by

four characteristics: (1) the number of different classes of wetlands, (2) the high level of

drainage activity, (3) availability of digital data, and (4) access to a cornplete set of

township drainage permit files.

Based on a review of wetland maps for the Upper Thames River Watenhed,

Zona Township has a wide variety of wetland classes (Figure 4.2). There are two Based on a review of wetland maps for the Upper Thames River Watershed,

Zona Township has a wide variety of wetland classes (Figure 4.2). There are two provincially significant wetlands (ciass 1-3) in Zorra Township, the Golspie swamp and the Wildwood wetland complex. The Wildwood wetland complex consists of fourteen individual wetlands, however they are complexed due to their close proximity to each other. There are dso five locally significant wetlands (ciass 4-7) in Zorra Township.

A preliminary review of permit files at the Upper Tharnes River Conservation

Authority identified several referrals conceming drainage activity around provincially

and locally significant wetlands. The UTRCA had a spreadsheet containing drainage

activity around wetlands between 1983 to 1998. The townships identified as having

drainage activity around provinciaily and locally significant wetlands were:

Blandford/Blenheim, Downie, Ellice, East Zorra-Tavistock, Fullerton, London, North

Dorchester, Norwich, Southwest Oxford, West Nissouri, and Zorra.

The UTRCA provided the locally significant wetland data in digitai format for

Zorra Township. In order to complete the analysis, several pieces of data were required

from other sources. The Middlesex County Planning Office did not have a digital

database of wedand related information. Perth County was in the process of having a

digital database built by the UTRCA. In contrast, the Oxford County Planning

Department had an extensive digital database and offered access to the provincially

significant wetland data and organic soi1 information. The UTRCA also provided aerial

photography for 1978 and 1989. Figure 4.2 Provincially and Regionaily Signifîcant Boundaries in Zorra Township, 1986-1987 Based on the results of the previous selection cntena, contact was made with the

Drainage Superintendent from Zona Township who agreed to make available the complete set of drainage records for the study penod required. He also offered to givc office space in which to record information fiom the permit files for as long as was required. Therefore, Zorra Township was selected as the case study area within the Upper

Thames River Watershed.

4.2 Study Period

The snidy period of 1978-1997 was selected based upon two criteria: (1) aerial photography, and (2) completed drainage. The permit data were collected based on the

availability of aerial photography. There were complete sets of aerial photography for

Zorra Township in 1978 and in 1989 available at the UTRCA. The aenal photography

was used to measure the wetland boundaries at those times. The permit data was

collected from 1978 foxward to document the drainage activity around provincially

significant, regionally significant and "wet land" areas. The 1978 aenal photography was

used as the base from which to measure spatial and temporal changes linked to

agricultural drainage. Al1 of the drainage files at the Zorn Township office were

collected between 1978-1997. This allowed for a comprehensive list of al1 the completed

drainage files. 4.3 Permit Data Collection

To evduate the wetland management provisions of the Drainage Act, five primary data sources were used to collect information between 1978- 1997: (1) engineenng drainage files. (2) wetland evaluation files, (3) interviews with govenunent officiais, (4) existing GIS databases, and (5) aerid photography for wetland cornparisons between 1978 and 1989.

43.1 Engineering Drainage Files

The complete set of engineering drainage files in Zorra Township between 1978 and 1997 was collected. In total, 139 files were examined over the twenty-year period.

Within the files, three pieces of information were sought: (1) the engineer's report, (2) refend comrnents among the UTRCA, and the drainage superintendent, and (3) the OMAFRA grant applications. A spreadsheet was created fiom these three sources of information.

4.3.1.1 Engineer 's Reports

For new drain construction (Section 4) and major maintenance projects (Section

78), an engineer is appointed who submits a report on the work required. Al1 139 of the

drainage files contained an engineer's report. The reports provided an overview of the

work that was to be completed. Information collected from the engineer's report

included: (1) the date of submission, (2) the objective of the drainage work, (3) a

summary of the work to be completed and identifjhg drainage work location. (4)

concems expressed at the site meeting, (5) description of the watershed, and (6),

environmental impact section. Not ail the engineer reports contained information on each of the seven categories. The level of information varied over time and among engineering

firms. For example, an environmental impact report was not submitted as part of every

engineer's reports. The level of detail of the work to be completed was inconsistent with

respect to the use of erosion and sediment controls. Therefore, in some instances the

analysis may be based on less than the recorded 139 drainage works.

4.3.1.2 Referral Documents

Under Section S.(l)(b), if council decides to proceed with the drainage works, written notice of the petition and of its decision must be forwarded to each petitioner. the clerk of each local municipality that may be affected, and the conservation authority that

has junsdiction over any lands in the area. Up until September of 1997, the MMwould

also receive written notice of the petition due to their delegated authonty for the Fisheries

Act. The Memorandum of Intent of the Management of Fish Habitat (MOI) signed in 1989

expired in 1997. The MNR failed to reach an agreement with Department of Fisheries and

Oceans (DFO) on the terms of a new agreement. Subsequentiy, some conservation

authorities such as the UTRCA have negotiated an agreement with the DFO to manage

fish habitat in their jurisdictions (Richards, Personal Communication, 1999). While MNR

has no officia1 role in the management of fish habitat, they frequently will field questions

fkom the UTRCA staff (Drewin, Personal Communication, 1999). It should be noted that

the MNR operated under the MOI during this research study period and received petition

notices.

The petition notice States the location of the drainage work. Upon receiving the

petition notice, conservation authorities and MNR officials would respond whether or not

there were any concems relating to the proposed location. The information coilected for the referral letters included: (1) the date the petition notice was sent to conservation authorhies and the MNR; (2) the date on which the referral response was retumed to the

Drainage Supenntendent; (3) documenting any comments or concerns relating to the petition; (4) recording the drainage works that were appealed to the Coun of Revisions ancilor Drainage Tribunal.

4.3.1.3 Application for Grants

Under Section 85 (a) (i) and (ii) of the Drainage Act provincial gants may be

made in respect to assessments upon lands used for agricultural purposes, inciuding

drainage works undertaken in accordance with Sections 4 and 78. The gant application is

sent upon completion of the drainage work. A sample gant application is in the

Appendix 1. The information recorded from the gant application included: (1) the

Section under which drainage was authorized; (2) recording the physical description of

the drainage work, area, length of drain, and type of work; (3) the cost of construction,

allowances, engineering charges, bridges and culverts. interest charges, other charges,

total cost, and the amount of gram received; and (4) the date the completion certificate

was issued.

4.4 Wetland Evaluation Files

The wetland evaluation files for dl the classified weuands in Zorn Township

were coilected. There are two proviacially signincant wetlands, and five regionally

significant wetlands (Figure 4.2). All of the wetlands in Zona Township were evaluated between 1986-1987. The evaluation of wetlands was based upon the 2" edition of the

Southem Ontario Wetland Evaluation Manual described in Chapter 2.

The wetland evaluation files reveal the significance assessrnent for the individuai wetlands. Wetlands are evaluated based on four components: social, hydrological, biological and special features. These four components are evaluated separately on a scale of 0-250 (Ontario Ministry of Naturai Resources, 1993) (Appendix 2). This evaiuation systern is used to determine the significance of individual wetland or complexes of wetlands. The purpose was to record how well the wetiand scored, and in

which component(s) the wetland scored the highest. The data was later linked to the

mitigation measures recommended during the referral process. in this way, it is possible

to determine whether or not the function or value of the wetland had any influence on the

recornmended and implemented mitigation measures.

4.5 Interviews with Government Onicials

Interviews were conducted with government officiais from the UTRCA, MM3

and the Drainage Superintendent The purpose of the interviews was two-fold: (1) to

allow the stakeholders to idene strengths and weaknesses of the Drainage Act; and (2)

to document the perception of the Drainage Act with respect to evaluative criteria

described below. This also allowed for a cross-checking of data contained from the

drainage and wetland evaluation files. The types of questions asked are locaied in

appendix 3. 4.6 GIS Data Collection

Several digital databases already existed and were acquired fiom severai sources.

The provincially significant (class 1-3) wetland boundaries, organic soils and a road network for Zorra Township were obtained from the Oxford County Planning Office.

The digital maps were at a scale of 1: 10 000. Using the ArcLink module within MapInfo

Professional Version 5. these files were converted from ArcExpon format to MapInfo format. The regionally significant (class 4-7) wetland boundaries were obtained from the

UTRCA in MapInfo format. This information was also at a 1: 10 000 scale. All of the data

was in the same UTM NAD 27 Zone 17 format. The boundaries for the wetland

information are based on the Southern Ontario Wetland Evaluation Manual.

4.6.1 Photo Mosaics

Larson et al. (1980), Golet and Parkhurst (198 1 as cited by Keddy. 1983), Spaling

(1995). and Krapu (1996) used aerial photographs to classi@ wetland ecosystems. By

cornparhg two sets of aenal photographs, they determined the relative abundance of

wetland ecosystems at each time and documented the change over the time interval

studied. Hollis and Thompson (1998) stated that aerial photographs combined with

precipitation records could yield useful hydrological information. Krapu (1996) used

precipitation records combined with aerial photography to document surface inundation

prior to and after a drainage ditch clean-out. Therefore, in order to assess the wetland loss

and gain in Zorn Township, photo mosaics were created for 1978 and 1989 using aenal

photography nom the UTRCA,and precipitation records hmthe London Airport.

The MNR offered its 1998 aerial photography for the Zorn Township region.

However, since it had not yet been processed by June 1999, it was impossible to incorporate into the study. In response, consideration was given to utilizing remotely sensed data. However, this solution was determined to be inappropriate because the 25 m resolution of the Thematic Mapper (TM) data was not conducive to the identification of wetland boundaries. As a result, comparison with the aerial photography up to 1998 was

unfeasible.

For the purposes of comparison, both sets of aerial photography were taken in

April of the respective year. Figure 4.3 displays the average annual precipitation

recorded at the London Airport five years prior to the 1978 and 1989 air photos. The

precipitation record shows a sirnilar pattern prior to the aerial photography. The five-year

average for each period pnor to the photography indicates that for the five-year period,

annual precipitation averaged 962 mm and 1007 mm for 1978 and 1989 respectively.

The records indicate that prior to 1989, precipitation patterns would not be a significant

reason for the loss of wetland area in Zona Township between 1978 and 1989. The

record shows bat there was actually an increase in annual average precipitation over the

five years pior to 1989 cornpared to the five years prior to 1978. ~GURE4.3 MUAL~CIPITATION (MM) RECORDEDAT THE LONDON AIRPORT FOR FTVE YEARSPNOR TO THE 1978 AND 1989 AEFUAL PHOTOG'IRAPHY

Source: U.S. National Climatic Data Center

The photos were scanned in using Adobe Photoshop version 5.0 (1998) that created a digital copy. Once in digital format, the centrai portion of each airphoto was copied and pasted on to an Ontario Base Map (OBM)at a scale of 1: 10 000. The OBM was used to help maintain the integrity of the mosaic as each additional photo was added.

The accuracy for well-defined features (roads) on OBMs is within 0.5 m (OMNR,1994).

The completed mosaics were imported into PCIs GCP Works Version 6.2 for geo- area using the same technique from air photos. Therefore, the Class 1-3 and Class 4-7 boundaries were used to identiQ the location of these areas on the photo mosaics. Using the wetland boundaries as a guide, the full extent of the vegetation was used as the boundary, and not the 50% upland and 50% wetiand vegetation as descnbed in the

Ontario Wetlands Evaluation Manual. The cornparison between 1978 and 1989 was based on the changes to forest boundary in swmp areas.

Another class of "wet land" was also identified, and was based on organic soi1 regions. These areas were not classified as either class 1-3 or class 4-7, but were evident in the aerial photography as being "wet" (Figure 4.2). Aerial photography is often used by MNR biologists to identify potential wetlands that may not have been classified

(Richards, Personal Communication, 1999). From the photo mosaic three categories of

wetlands were identified, class 1-3, class 4-7, and "wet" land. Agricultural land drainage

activity was examined in the context of these three categories.

A rnap with municipal outlet drains and drainage basins for Zona Township was

acquired from K. Smart Engineering. The hard-copy rnap was scanned and imported into

MapInfo for the purpose of digitizing and creating a vector layer of the municipal drains

and drainage basins. Rior to digitizing, the raster rnap was geo-referenced using 75

control points from an existing geo-referenced road rnap (OBM road map, Figure 4.2) of

Zona Township. The engineering rnap was last updated in 1992. Drains constnicted after

this period were added to the vector layer by tracing the location using the "as built"

blueprint designs. The drainage layer was overlaid on top of the photo mosaic consisting

of class 1-3 wetiands, class 4-7 wetiands, and "wet" lands. The purpose was to iden@

the drainage activity and proximity to the three categories of wetlands. 4.6.2 Accuracy of Digital Data

A digital OBM road network was used for the purposes of geo-referencing the non-digital databases, which included the photo mosaics and drainage network. The features on the OBM are stored on the UTM CO-ordinatebase. Accuracy levels for well- defined features (roads) are located within a tolerance of 0.5 m on the 1: 10 000 digital base maps (OMNR,1994). Therefore, the accuracy of the road intersections in the photo

mosaics is approximately the same as the accuracy of the OBMs. However. feature

positions away from the road intersection may experience a lower level of accuracy due

to relief in the terrain. In order to assess the level of accuracy in other locations. ten

concession blocks were chosen at random to measure area compared to that of the OBM.

Digitizing the concession roads of the OBM road map and the identicai concession roads

on the photo mosaic allowed for the comparison of area. The average error between the

two data sources was 0.0 11 square kilometers. The maximum error was 0.02lsquare

kilometers. and minimum error was -0.013 square kilometers. The error was based on

concession lots approximately 2.4 square kilometers. Therefore. the error on the

measurements of wetland boundaries from the photo mosaics was relatively low.

4.7 Evaluative Criteria

The conceptualization of wetland management and evaiuative framework was

described in Chapter 2 of the thesis. The purpose was to evaluate wetland management

under the Drainuge Act in relation io the principles of Integrated Watenhed

Management, which inchdeci the normative criteria of science and informed decision

making, partnerships and participation, and ecosystem management. For the evaluation of the implementation, the following operationai cnteria are evaluated: effkiency, equity, performance, consistency and adequacy.

4.7.1 Efficiency

Eficiency assessments, like benefit-cost analyses, provide information relating to the cost of a program to the results (Rossi and Freeman, 1993). Severai authors have used benefit-cost ratios to determine the efficiency of agricultural drainage versus the environmental impact on wetlands (Found and Spence, 1977; Bowers, 1983;Turner et

ai., L983; Morris, 1987; Morris, 1989). Shxubsole et al. (1997) measured the

administrative efficiency by exarnining the arnount of tirne to process applications

relating to floodplain regulations. Eficiency is concemed with the evaluation of methods

in terms of costs - money. time. personnel, and public convenience (Suchman. 1967).

Efficiency in this thesis is measured using time and personnel requirements by

evaluating: (1) time required to complete the drainage work, (2) length of time for

referral comrnents, and (3) overlapping jurisdiction with respect to environmental

concems. The time required to complete the drainage work was cdculated based on the

time when the petition was submitted to the time the certificaie of completion was issued.

The length of time required for referrai comments was recorded from the drainage files.

The dates on which letters were sent to the referral agencies, and the date on which they

were returned were used to rneasure the efficiency of the referral process. An

examination of site visits and referral commeats from the MNR and UTRCA measured

duplication of effort. Attendance at site meetings was recorded from the engineer's report

and hmthe drainage files. The drainage Nes were also used to record the recommended

mitigation measures hmeach agency. 4.72 Equity

Equitable programs contribute to balancing the needs and desires of the various groups in society (Schalock, 1995). Ervin et al. (1977) and Jacobs (1989 as cited by

Owen and Jacobs, 1992) defined two types of equity - procedural and allocative. A process has high procedural equity if it receives and takes into account the input for a wide variety of groups. If a process distributes costs and benefits fairly among the affected parties, then it is determined to have high allocative equity.

Rocedural equity in this research is measured using the notification of drainage works to referral agencies. Kettel and Day (1974) and Mitchell and Shrubsole (1992) identified the notification procedure as ineffective due to the fact that a large number of

drainage projects had gone without notification. The notification records for engineers,

the MNR and UTRCA are documented in the drainage files.

Rocedural equity was also measured by documenting if the referral agency

mitigation requirements were incorporated into the design of the drain. The MNR and

UTRCA suggest BMPs are reflected in the timing of construction. erosion and sediment

controls, construction design, and bank stabilization. Unfortunately, based on a review of

the engineer's report, it was difficult to determine whether or not the mitigation

requirements of erosion and sediment controls, construction design, and bank

stabilization were incorporated into the final design. Nomdy, once the final engineer's

report is submitted to the landowners, conservation authority, MNR, Drainage

Superintendent and members of Council, the report is not adjusted unless thete is an

appeal to the Court of Revision or Tribunal which require a change in assessment. The

timing of construction was recorded fiom the Grant Applications, which include the time when the completion cemficate was issued. To examine the equity of the bargainhg process, a record was made of the discussions between engineer's and referrai agencies.

Also, information recordrd during interviews with MNR staff, UTRCA staff, and the

Drainage Supenntendent was used to determine the perception of equity.

4.73 Consistency

In their research on the utility of land use regulations for shoreline development,

Kreutzwiser and Slaats (1994) suggested that in order to be accepted the regulation rnust be consistently applied. Tomick and Hendler (1992) studied how Ontario Guidelines and draft policy documents concerning wetlands influenced policy decisions over time. This research identified the consistency over time of: (1) attendance at site meeting by referral agencies, (2) recornmended mitigation measures around provincially, regionally, and

"wet" land areas, and (3) the inclusion of an environmental impact section in the engineers report. Consistency was also measured by evaluating how these activities changed over the study period. These three measures were recorded from the drainage files and engineen reports.

4.7.4 Performance

Performance-based evaluations dernonstrate what is obtained from or the result of a program (Schalock, 1995). Several authors have examined the performance of

regdatory programs. Lindall and Thayer (1982 as cited by Kentual et al., 1992)

examined the effectiveness of National Marine Fisheries Service in having conservation

recommendations included in permits. Kreutnuiser and Slaats (1994) measured the

performance of land use regulations in controlling development of hazardous shorelines. In order to measure performance of the Drainage Act in preventing loss of wetland area a calculation of wetland or "wet land" area losses and gains was made be between 1978 and 1989. Due to the lack of aerial photography for 1998, no measurement

of the losses or gains could be made over the last eight years of the study.

4.75 Adequacy

Suchrnan (1967) descnbes adequacy as the rneasure how effective a policy has

been in terms of the total arnount of need. In order to measure the adequacy of effort in

ternis of overall need in Zorra Township, this research examined the amount of wetland

area held under private ownership venus public interests. The information on ownership

of wetland area was obtained from the wetland evaluation data records. The amount of

wetland area held in private or public ownership is recorded for each wetland. The next

chapter uses these cntena to assess the performance of the environmental provisions of

the Drainage Act. Chapter 5: Analysis

5.0 Introduction

The Ontario Drainage Act's provisions for the protection of wetlands were examined based on the operational evaluative frarnework described in Chapter 2 (Figure

2.1). Chapter 4 is organized into three sections. First, the context section provides an evaluation of the Drainage Act based on the issues of tractability, statutory variables and non-statutory variables. Second, the process section examines the implementation of the provisions of the Drainage Act in Zorra Township based on the criteria of efficiency and equity. Third, the outcome section examines the consistency with which environmental concerns for wetlands are addressed under the Drainage Act. The performance of the provisions is measured by identifiing the impact of outlet drainage on wetlands in Zona

Township between 1978-1989 based on aerid photograph interpretation. The need for

wetiand management involving drainage activity was determined by assessing the

adequacy of the process.

There were 139 new (Section 4), and major repu and maintenance (Section 78)

drainage projects completed between 1978-1997 in Zona Township (Figure 5.1). 71

FIGURE5.1 COMPLETEDSECTION 4 AND 78 DRAINAGEWORK IN ZORRA

On a province-wide basis, MNR (1993) suggested that very few new drains are presently king created and that curreat work is predominantiy directed towards the maintenance of existing drains. This statement does not reflect the activity occhng in

Zorn Township in recent years. Between 1993-1997, of the 23 drainage works completed during that the, 22 were new drains, while oniy 1 of the drainage works represented maintenance. Over the entire study period, 58% of the drainage work was the installation of new drains, and 42% of the work was major repair or improvement projects. The total cost of these drainage works, as recorded fiom the OMAFRA Grant Application, was $6,895,734.94. The total amount of gant money reimbursed for these drainage works was $1,674,181.71.

This research focuses mainly on the activities of refeml agencies with respect to four wetland categories (1) provincially significant wetlands, (2) regionally significant wetlands, (3) "wet lands", and (4) other. The distribution of drainage works arnongst these four groups is displayed in Table 5.1.

J "W et" Land 4 3 O ther 1 07 77 - -

1 Total I 139 - r- 1 O0 --l

The data indicate that not aii the drainage works completed in Zona Township

between 1978-1997 directly impact wetiands. This makes it possible to determine how

drainage is influenced by the presence of either provincially significant, regionally

significant or "wet land" aeas compared to areas where there is no apparent wetland

present.

5.1 Context

The context section describes the factors which influence decision making with

respect to agricultural land drainage and the environmental impacts on wetlands. The

three areas of examination are: (1) the tractability of the problem, (2) statutory variables,

and (3) non-statutory variable. 5.1.1 The Tractabiiity of the Problem

According to Sabatier and Mavnanian (198 l), the implementation of regulations cm be hampered by the nature of the problem. Factors such as uncertainty, the diversity of behavioural change required, and the nature and characteristics of the population that is the "target" of policy change can affect implementation (Smith, 1993). This following discussion addresses some aspects of the uncertainty that affect wetland management.

5.1.1.1 Uncertainry of Wetland Mapping

The uncertainty in wetland mapping is largely associated with spatial and

temporal changes in wetland boundaries. The cornerstone of wetland management in

Ontario is the Wetland Evaluation System which delineates boundaries and quantifies the

value based on biologicai, hydrological, social and special features (Ontario, 1993). The

wetland evaluation system relies on vegetation to distinguish the wetland ecosystem from

terrestrial or aquatic systems. A 50% rule is used in order to define the lirnits of the

wetland boundary, and ultimately subjected to regulation. Tiner (1993 b) suggests that

relying solely on vegetation fails to recognize di wetlands due to the dynamic nature of

we tlands .

The wetland files are always considered "open files", which means if a wetiand is

re-evaluated and the boundary or evaluation score changes, the file can be updated.

However, the MNR does not make it commoo practice to re-evaluate wetlands in

southem Ontario. Instead, a proponent usually requests the "opening" of a wetland file

when they propose to develop on or adjacent to a wetland (Huizer, Personal

Communication, 1999). The evaluation system defines boundaries and scores wetlands

on the characteristics of the wetland at that particular tirne. Therefore, there is a level of uncenainty because the "snapshot" approach to evaluating wetlands does not take into account the dynamics of the wetland ecosystem.

5.1.1.2 Complexity in Assessing Cumulative Impacts

The Drainage Act establishes a process where bargaining arnong government

agencies balances private property rights and the public interest. The refenal agencies are

reiied upon to incorporate environmental concerns into the drainage process. However,

previous research indicates that the permitting process, which requires bargaining, is not

conducive to the identification of cumulative impacts to wetlands (Dalton, 1989;

Abbruzzese and Leibowitz, 1997). By its very nature, permitting requires applications to

be evaluated individually. The case-by-case evaluation makes it difficult to mess the

incremental loss of wetlands over time and space. Revious research suggests that a

proactive approach should be taken when evaluating activity around wetlands (Hirsh,

1988; Preston and Bedford, 1988; Gosselink and Lee, 1988; and Abbruzzese and

Leibowitz, 1997).

5.1.1.3 Applicability of Regulations

The main focus of the Drainage Act is the management of the land rather than the

maintenance of hydrology. However, water is the key to maintaining the function and

value of wetlands. The presence of water allows the formation of hydric soils, which

create an environment for the growth of hydrophytic vegetation. Therefore, the

provisions of the Drainage Act codd focus on maintaining water levels that support the

various hctions and values of wetlands. Current mitigation measures focus on the land

use. For example, fences are required in areas where livestock can access open drains, and erosion and sediment controls are encouraged to prevent the destruction of aqudc habitat.

5.1.2 Statutory Variables

The implementation process is outlined in the provisions of a particular policy or program. The implementation process is the means through which a policy attempts to

meet the objectives. Mamanian and Sabatier (1981) suggest that in order to be effective,

a policy should clearly state the objectives; integrate implementing agencies; include

adequate incentives for compliance; and include a mechanism for participation by non-

agency stakeholders.

5.1.2.1 CLear Objectives

The Ontario Drainage Act does not explicitly state the goal or objectives of the

legislation. However, based on a review of provisions of the Drainage Act provided

below its implicit goals are: (1) to allow landowners to discharge surface and sub-surface

water from their property to a sufficient outlet; and (2) to provide legal authority to

maintain the drain. For over 130 years, drains have ken constructed under this

legislation.

The Drainage Act outlines the process through which municipal outlet drains can

be constructed by mutual agreement, requisition and petition (Found and Spence, 1977).

Mutuai agreement drains do not nquire that referral agencies be given notification of the

commencement of this type of drainage. While there were no mutual agreement drains

constnicted in Zorra Township during the 20-year study, the absence of a referral

suggests that muniai agreement drains will not significantty impact wetlands. Mutual agreement drains are generally small in size with respect to the cost of the drainage project. The objective is to dlow this type of drainage project to proceed without any environmental impacts king considered. This contradicts the approach applied to petition drains and repairs and improvements

Sections 4 and 78 provide an opportunity for referral agencies to comment on drainage projects, which may senously impact the environment. There are two problems with this process. First, there is an assumption that either the UTRCA or MNR staff has identified the significant areas. Any significant environmental areas not previously identified will not be aff'orded any protection. The comprehensiveness of the wetland lists is uncertain (Richards, personal cornrnunication, 1999). Second, as previously noted, under section 6 (1) the agency requesting an environmentai appraisal has to pay for the costs. The council of the initiating rnunicipality rnay also request an environmental appraisal under section 6 (2), but they too are required to pay for the costs of an appraisal.

While no projects underwent an environmental appraisai in Zorra Township in the 20- year period, Mitchell and Shnibsole (1992) docurnented some of the uncertainty around the appraisal process. In the Drainage Act, there is no clear framework that structures how an appraisal should be cooducted as noted below.

10 (1) Where the council of the initiating municipality deems it expedient, it may, or if it has received notice under section 6 that an environmental appraisal is required, it shall instnict the engineer to prepare a preliminary report containing a sketched plan of the drainage works and an estimate of the cost thereof in so far as it is practicable to do so, and which shail include the environmental appraisal, if any, and the benefit cost statement, if any, and the engineer shali forthwith prepare and file such a preliminary report wiih the council.

This lack of a smictured framework led to conflict amongst the various stakeholders

described by Mitchell and Shnibsole (1992). Benefit-cost statements for individual drainage projects are not mandatory Under sections 7 (1) and (2), a municipality given notice of petition or repair work, or the initiating municipality may request a benefit-cost statement, the cost of which shall be paid by the initiating party. In both situations where a party may have environmental andlor economic concems with a project, the onus is left up to the concerned party to bear the costs. This means drainage projects where benefits are not cornmensurate with costs or result in environmental impacts would be approved because of the cost associaied with the request. However, when dissatisfied with an environmental appraisal or benefit-cost statement a landowner can appeal to the Drainage Tribunal at no cost to the requesting party under section 10 (7) (8) and section 48 (1) (2) respectively.

The Court of Revisions and Drainage Tribunal are compnsed of persons that tend

to have an agricultural or legal background (OMAFRA. 1986). Specific knowledge of

environmental issues is not a prerequisite to an appointment on the Court of Revisions or

Drainage Tribunal. Where only one municipality is affected by an appeal, the Coun of

Revisions consists of three or five members appointed by the Council. To be appointed,

the mernber must either be on Council or eligible to be elected to Council (OMAFRA,

1986). The Drainage Tribunal consists of a chhan,and other members appointed by

the Lieutenant Governor of Council for Ontario. In the pst, the Tribunal was made up of

a barrister and the rernaining rnembers were engineers, farmers andlor persons involved

in municipal government (OMAFRA,1986). In the majority of cases, the Court of

Revisions and Dminage Tribunal ruled in favour of the engineer.

In 1992, an environmental checkList was developed with representatives fiom the

Ontario Ministry of Agriculture and Rural Affairs (OMAFRA), OMNR, Ontario Ministry

of the Environment (OMOE),Department of Fisheries and Oceans (DFO), Drainage Superintendents Association of Ontario (DSAO), and a representative from the Rural

Ontario Municipalities Association (ROMA).The intent is to provide referral agencies with information on the type and extent of drain maintenance activity, allowing hem to quickly review projects and offer recommendations to mitigate impacts on the environment (MNR, 1993). However, the checklist is used infrequently because there is no legislative requirement, consequently it is optional (Snowsell, Personai

Communication, 1999; UTRCA 1993). In addition, there are no provisions that require

Drainage Superintendents to notiQ the referral agencies of upcoming minor maintenance

activities.

After reviewing these provisions, it is apparent that the primary objective of the

Drainage Act is to facilitate agriculniral land drainage, and not a process that attempts to

balance the economic benefit of drainage with environmental impacts.

5.1.2.2 Hierarchical Integration within and among Implemenling Institutions

Mamanian and Sabatier (1981) argue one of the most important attributes of any

statute is the extent of integration among the implementing agencies. Integration is

determined by: (1) the number of vetolclearance points involved in the implementation

process, and (2) the adequacy of sanctions.

The drainage petition and repair or improvement process has four points of

clearance before a by-law is passed (Figure 2.1). Fit, the municipal council can accept

the petition or repair request made by the farmer(s). Second, once it is accepted by

council, the conservation authority and MNR has the oppominity to express concerns

regarduig the location of the drainage works and the potential impacts on the a..Third, council can accept or reject the engineer's report. Fourth, there is an open public council meeting to discuss the report.

Sanctions are considered to be adequate when they are sufficient enough to convince the target group to alter their behaviour (Mazmanian and Sabatier, 1981). In examining the Drainage Act, there are no direct penalties or incentives that prevent farmers from draining wetlands. Under Sections 82(2) and 83(2), a $1000 fine can be levied against every penon who damages a drainage work or deposits liquid or material other than unpolluted drainage water, respectively. The provisions that attempt to alter a group's behaviour corne from other pieces of legislation. For example, the Fisheries Act. hkes and Rivers Improvement Act, Public Lands Act and the Conservation Authonties

Act provided the means through which a farmer cm be penalized for unauthorized

activity .

In 1994, a farmer in Zona Township was notifïed by the MNR that a work permit

would be required pursuant to the Lokes and Rivers Improvement Act or the Public Lundi

Act because the proposed work was not on a municipal drain. The farmer initiated the

drainage work without the proper work permit, and was subsequently charged under the

Public Lands Act. The farmer was also issued a Notice of Violation by the UTRCA for

the reasons of unauthorized mg,grading and excavation without written permission,

therefore was in violation of subsection 28 (b) (e) and (f) of the Conservation Authorities

Act. The famer pled guilty to the charge under the Public Lads Act, after which. the

charges against the fmer were dropped. The Drainage Superintendent settled the dispute

by negotiating with the UTRCA,MNR and the fanner through negotiation. The only

penalty to the individual was to go through the Drainage Act's implementation process.

This is representative of what Grad (1985 as cited by Smith, 1993) describes as a persistent problem with environmental law, which is a lack of effective sanctions or the failure to enforce sanctions.

Since there are no cornpliance incentives, the process relies heavily on the clearance points to alter behaviour. However, the municipal council in =rra Township did not deny any petition or repair requests during the study-penod. The provisions of the

Drainage Act make it difficult for referral agencies to alter drainage activity. Since referral agencies cannot solely veto a drainage work, they often resort to negotiating a settiement that both sides can agree upon.

5.1.2.3 Participation

Statutory design cm affect the participation of the groups involved in the implementation process (Mazmanian and Sabatier, 1981). The groups involved in the drainage process include the direct beneficiaries (citizens Living in the drain watershed), and those agencies representing the public interest (municipal council, conservation authorities, and the MNR). Citizens residing outside the drain wateahed are forced to

lobby the groups representing the public interest. In Zorra Township, a petition was

signed by 108 citizens requesting council to: (1) develop a clear policy to require the

preservation of wetlands; (2) avoid disturbance of the Cole Creek Drain; and (3) require

the restoration of previous unauthorized disturbance of Cole Creek Drain (Figure 5.2).

Wethe effect on council was not evident, inmaseci public pressure on council to

develop a policy on drainage around wetlands was the ody means through which outside

public interest could be represented in the drainage process.

The Drainage Act places the burden of prwf in the han& of the agencies

representing the public interest. A request for a benefit-cost statement is the responsibility of the municipal council, and environmental appraisals are the responsibility of the referrai agencies. A request for a benefit-cost statement or environmental appraisal is made infrequently due to the costs associated with these evaluations. Lobbying the local municipal council could increase the consideration of the general public interest. Despite the representation of public interest within the process, the agencies bear the cost of protecting the public interest. It appears that private property nghts are given more weight in the decision-making process than the public interest.

5.13 Non-Statutory Variable

While the statutory provisions provide the framework under which a policy is

implemented, non-statutory variables can affect the implementation process. An

important non-statutory variable affecting the wetland poücy outputs of implementing

agencies is the lack of administrative support for the statutory objectives (Mamanian and

Sabatier, 198 1). Figure 5.2 Section 4 Cole Creek Drainage Works, Zorra Township, 1996 5.1.3.1 Support of Statutory Objectives

An attempt to include environmental considerations into the drainage decision-

making process has undergone resistance from authorities directly involved in stmcturing

the Drainage Act. In the 1940s, land and water mismanagement and the misuse of

drainage legislation led to the formation of river basin conservation authorities (Memon,

1970 as cited by Kenel and Day. 1974). At that time, Section 24 of the Conservation

Authonties Act required written approval by the conservation authority pnor to the ,

construction of a new drain (Mitchell and Shnibsole, 1992). However, this provision was

reduced and subsequently repealed in 1949 after a conservation authority was successful

in preventing the installation of an outlet. "Such controls were in direct conflict with

municipal rights to initiate drainage in an intensively cultivated agricultural area" (Kettel

and Day, 1974: 336). After the provision was rescinded, municipdities were required to

notiQ conservation authorities of al1 drainage works under the Drainage Act (Mitchell

and Shnibsole, 1992). In this case, the veto power of conservation authorities for

environmental reasons was reduced because it inhibiteci the farmer's ability to improve

their agicultural land.

In the 1970s, a Select Committee established by the Ontario Legislanire was

requested to study affriculniralland drainage in Ontario. In the final report, the Select

Committee made recommendations to overcome the apparent inadequacies of the

Drainage Act of 1970 (Found and Spence, 1977). In regards to environmentai

considerations, the cornmittee suggested:

(1) that environmental impact staternents and benefit-cost certificates be filed with the engineer's report for petition drains and maintenance projects involving substantial changes; (2) that preliminary reports by engineers or others (e-g. environmental impact or benefit-cost statements) may be required to detennine the ment of completing a full report;

(3) that the MNR be permitted to appeal any new drainage proposal on environmental grounds and the OMAF may appeal on the grounds that farmers' legitimate drainage requirements are king stalled (Found and Spence, 1977: 55-56).

Found and Spence (1977) argue that the Cornmittee was clear in its request for environmental and benefit-cost considerations in every drainage project. However, the new legislation made both of these procedures optional for petition drains and maintenance projects. Only requisition drainage projects were required to complete an environmental appraisal and benefit-cost staternent (Found and Spence, 1977). As stated earlier, petition and maintenance projects are the most commoniy utilized drainage activity in Zorra Township, with no requisition drains completed during the study-period.

Therefore, this provision in the Drainage Act does not apply to the majority of drainage works occuning today.

The second major composent to the evaluative fnunework is the process through

which the provisions of the Dminage Act are implemented. The process itself has been

describeci in the preceding Chapter. Tne focus in this section will be on the mesures of

efficiency and equity as they relate to the decision-making process. 5.2.1 Effkiency

To measure efficiency of the irnplernentation the evaluation focused on: (1) the length of tirne to complete drainage works; (2) the length of time to provide refend comments; and (3) overlapping jurisdiction with respect to site visits and the drainage review process.

There has been concem expressed that MNR and conservation authonties' response times are too long in some instances, and delay the construction of drainage works (Legg, Penonal Communication, 1998; UTRCA. 1993). The perception is that when drainage occurs in the vicinity of environmentally sensitive areas, the referral mechanism slows down the construction process. Therefore, to provide some perspective on the potentiai delays of drainage works due to referral comments a calculation of the

length of time to complete construction was made based on four land categones (Table

5.2).

The number of &ys to complete the drainage works was calculatecl fkom the tirne

that the petition was submitted, to the thethe construction was completed. The overall

average number of days to complete Section 4 and 78 drainage projects was 336 days.

Drainage in the vicinity of provincially significant wetîands (Class 1-3) twk on average 18 and 17 days less time to complete than the average time for Section 4 and 78 drainage projects, respectively. The 'other' category refers to areas where there was no apparent provincially significant, regionally significant or "wet" area. These projects on average took 7 and 18 days longer to complete than the Section 4 and 78 drainage works in close proximity to provinciaiiy significant wetlands. However, the regionally significant (Class

4-7) completion times were significantly higher than the average. There was no apparent reason for the delay of these types of drainage projects. With respect to the provincially significant wetlands, there was no apparent delay in the completion of drainage projects.

The next subsection examines how the drainage process was influenced by the referrd system.

5.2.1.1 The Referral System

Within the process of implernenting the provisions of the Drainage Act, there are two opportunities for the refend agencies to provide cornments on the drainage works.

Fint, after council decides to proceed with the petition, conservation authorities and

MNR staff are given notification of the application and are given the opportunity to

respond with any concerns relating to the drainage work (Figure 2.1). A review of the

dates when a letter was sent by the Drainage Superintendent to referrai agencies and a

record of when the agency response was returned to the municipal office provided the

means to measure the length of thethat was necessary for the agencies to respond.

The total number of referrals does not equal 139 because on occasion the date in

which notice was sent to the referral agency was not available. Other times, the date

when the municipality received the referral was not available; therefore those responses

were not included in the measurement. TABLE5.3 AVERAGEAGENCY RESPONSE TIMES TO PROVIDEIMTIAL COMMENTSOF DRAINAGEWORKS IN ZORRATOWNSHIP, 1978-1997 PAYS)

The average number of days for the agencies to respond to Section 4 and 78 drainage works was similar. However. the response times for applications for drainage in the vicinity of provincially significant wetlands required more time compared to the other

three categones of land cover, with the exception of UTRCA response time to Section 78

regionaily significant wetlands. However, the average time to remcomments was well

within the time allotted under section 6 (1) which States "upon receipt of a notice from

the initiating municipality under subsection 5 (l),a local municipality, conservation

authority or the Minister of Natural Resources, as the case may be. may send to the

council of the initiating municipality within thirty days a notice that an environmental

appraisal of the effects of the drainage works on the area is required, and the cost thereof

shail be paid by the party who requested it." Under the Drainage Act the conservation

authorities and MNR have thirty days in which to decide whether or not an environmentai

appraisal is necessary.

The second refend opportunity was related to the number of days required to

provide comments on the completed engineer's reports. The date reports were forwarded to the referral agency, and the date when comments were retumed was used to measure the efficiency (Table 5.4). Again, the number of referral comments on engineer's reports does not equal 139 because the dates when reports were sent or comments rehuned were not recorded in the drainage files. The number of engineer's reports the MNR commented on was relatively lower than the UTRCAs because when the drainage works involved the installation of buried pipe with no fish habitat. MNR would not offer any comments since it was out of their jurisdiction. However, on three occasions the drainage work did involve a wedand with fish habitat recorded in the wetland evaiuation file and MNR did not offer any comments.

The results indicate that for Section 4 drainage works, the average arnount of time

to provide comments on the engineer's reports did not vary among the land cover

categories. The time required to respond was on average 9-12 days. The results for

Section 78 drainage works was sirnilar, with the exception of chinage work in the

vicinity of regionally significant and "wet" land areas. In an interview with the Drainage Supenntendent, he expressed some concem over the Iength of time it required MNR stafî to provide comments relating to drainage works, and commented on the UTRCAs' efficiency. However, the data fiom the files indicate response times for both agencies is sirnilar.

The response times for refend agencies was slightly higher for Section 4 drainage works when either agency had expressed a concern with a particular project in close proxirnity to a provincially significant wetland (Table 5.5). Concems would be identified if a project planned to disrupt any area which either agency had classified as environmentally sensitive. For Section 78 drainage projects, when an agency had expressed concem over provincially significant or areas with no apparent sensitivity, the response times were identical (16 days).

TABLE55 AVERAGE RESPONSE TIMES WHEN CONCERNSWERE EXPRE~SEDwrr~ A DRAINAGE PROJECT, 1978-1997 (DAYS)

1 Other 1\11 1 12 1) 16 1 14 1

A review of agency response times indicates that they do not appear to be the

cause of delays in the construction of drainage. This is especially hie for comments

under Section 78. Section 78 (2) States that,

An engineer shall not be appointed under subsection (1) until thirty days afier a notice advising of the proposed drainage works has been sent by prepaid mail to the secretary-treasurer of each conservation authority that has jurisdiction over any of the lands that would be affected. It is normal practice in Zona Township to send the notice to proceed with drainage works to the engineer at the same time UTRCA and MNR officials are sent notification. A review of drainage works that were referred to the Court of Appeais and the Drainage

Tnbunal suggest that these appeal processes are the cause of significant delays in the construction process (Table 5.6).

. # of Drains Awage Max.. Min, No Appeals or Tribunal Hearing - -... -. 61 295 675 56 r-. .. Section-4 ;.: - -- - . No.Appeals .or ;Tribunal Hearing 45 282 926 73 :,i: ; -isect& 78 v

A review of completion times for drainage works after an appeal to either the

Coua of Revisions andlor Drainage Tribunal increases the length of time to complete

consmiction. in Zona Township between 1978-1997, nearly 25% of drainage works were

appealed to one or both of the goveming bodies. With the exception of Section 78

drainage projects appealed to the Court of Revisions, there was a substmtial increase in

the length of time in order to complete construction. On average, the Section 4 and 78

drainage projects took 289 days to complete with no appeals to either body. In

cornparison, Section 4 projects appealed to the Court of Revisions took 43% longer - 125

extra days on average - to complete. The Section 4 drainage projects that went to a hearing in front of both the COUSof Revisions and the Drainage Tribunal took 89% longer - 256 extra days on average - in order to complete the drainage work. The Section

78 projects which were appealed to both the Court of Revisions and Drainage Tribunal required 143% more time - 4 13 days on average - to complete.

It appears to be a misperception that referral comments are causing delays in construction. It is the appeal by participants to the Court of Revisions and Drainage

Tribunal that is causing delays in the construction of drainage projects.

5.2.1.2 Duplication of Effort

To measure the overlapping responsibilities and duplication of effort between the referral agencies this research examined: (1) site visits, (2) the agency review guidelines, and (3) referral comments. Notifications of site meetings are sent to al1 the landownen in the drainage watershed, local conservation auth0nt.y and MNR officiais to discuss the preliminary report of the engineer. This is an oppominity to express any concems that an agency or landowner may have with a particular drainage scheme. Table 5.7 lists the number of site visits attended by referral agencies between 1978- 1997. Of the 139 drainage projects completed in &rra Township, referral agencies were invited to 133 of the meetings. On four occasions, there was no record of attendance at site meetings. One of those involved a regionaiiy significant wetland, the rest involved the 'other' category. There was one site meeting where no invitation was forwarded to the referral agencies. This involved a drain in the vicinity of a provincially significant wetland. The invitation was not fonvarded in time for the site meeting. The table indicates that at least one referrai agency had attended site meetings involving a provincially significant wetland 26% of the time. There was no representative from a referral agency at any of the drainage works influencing regionally significant or "wet land" areas. While 13% of the time a referral agency was present at site meetings involving 'other' areas.

The duplication of effort in regards to attendance at site meetings does not appear to be a major concem. The major@ of site meetings did not have a representative from either of the referral agencies. However. the UTRCA and MNR only target drainage works that will have a significant impact on the environment. Site visits will be discussed

in the next section.

The drainage review guidelines for both the MNR and UTRCA were examined to

determine the overlap and duplication of effort in reviewing drainage projects (Table

5.8). The manuals divide the review procedures into fou.main sections: (1) the time of

year for constniction, (2) erosion and sediment controls, (3) drain construction design,

and (4) bank stabilization. Each petition, and repair and maintenance project are reviewed

to ensure that ecosystem planning is incorporated into the drainage process (UTRCA,

1993). The documents are almost identical in their recommendations for BMPs. Timing of construction projects should be compieted during law flow conditions. This is recommended to reduce the impact on aquatic and riparian species. The MNR document focuses on aquatic species because of their administration of the federd Fisheries Act.

However, the recommended time of construction (July- August) is identicai to the

UTRCA document. Sediment and erosion controls are recomrnended to be installed in areas where there is a presence of fish habitat. Construction techniques should incorporate the least intrusive mechanisms feasible, by reducing clearing, incorporating natural channel design, and rnaintaining buffer strips. To maintain bank stabilization, bank slopes of 2: 1 or 3: 1 should be created depending on soi1 conditions. The banks

should be also seeded after vegetation has ken cleared, and fences should be erected

where there is livestock assess to open drains. After reviewing the two guidelines, it

could be concluded that there is an unnecessary level of duplication between the MNR

and UTRCA documents. 94

TABLE5.8 A COMPARISONOF DRAINAGEREVIEW GUIDELINES FOR THE MNR AND UTRCA

MNR UTRCA Timing

4 - low flow conditions - low flow conditions - avoid fish spawning and - avoid fish and wiidlife feeding timeshreas spawning and nesting - limit construction duration timeshreas

Erosion and Sediment Controls - setup pnor to construction - install during construction - clean debris fiom traps - clean debris from trap frequentiy frequently - recommended when sediment > 40 microns - do not place traps in areas containing existing fish habitat - use channei flow checks ie. silt fences, or straw bales

Construction Techniques

- rninimize clearing to dlow - minimue clearing to allow construction construction - natural channel design should be maintained - channel straightening and wherever possible res haping should be - utilize least intrusive minimized mechanism for drainage - where feasible select the work least intrusive form of debris - spi1 should be deposited in removal (hand, or backhoe is an area with little chance of prefened over a drag-line) it washing back into the - spoil should be removed or drain and revegetated spread to max. 300mm and - buffer strips should be tapered with a 2: 1 slope designed to address a - 5 m buffer strips should be specific problem, ie. the maintained function it is to perform Table 5.8 Continued

MNR UTRCA Bank Stabilization

revegetation should occur revegetation should occur the sarne day as removal immediately after ditch bank naturd vegetation should be is exposed maintained on the south open drains next to Pasture slope of the drain should have fences equipment setback zones rip-rap underlain with geo should considered to textile fabric should be maintain the integrity of the placed at erosion susceptible bank areas fencing is recommended is closed drains should be areas where livestock have equipped with grassed access to drains waterways to accommodate rip rap erosion susceptible overland flows areas (sharp bends, and tile outlets), where possible bio- engineering techniques should be utilized instead of np raP support the use of grassed waterways

Source: UTRCA, 1993; MNR, 1993

An examination of the recommendations by the referral agencies reveals the Ievel of duplication with regards to the referral comments (Table 5.9). Of the drainage works completed in Zorra Township between 19784997, mitigation was recomrnended by at least one referrai agency 64 out of the 139 times. The level of duplication appears to be low considering how closely the review guidelines resemble each other. The main recornrnendation to engineers is to incorporate erosion and sediment controls during the construction or maintenance of the drain.

Construction design and bank stabilization were the next highest recomrnended rnitigation measure, followed by the timing of construction. The MNR with the delegated responsibility of implementing the Fishenes Act legislation, recommended the timing of drainage works be completed during low flow conditions on seven projects. The cornpliance with this request will be exarnined in the equity section. In terms of efficiency, the referral process in wetland areas does not appear to significantiy delay the construction of drainage projects.

5.23 Equity

The inclusion of stakeholder input is an important component of procedural fairness. The stakeholden in the drainage process are the nsidents of the drain watershed, the local conservation authority, and MNR officials. There were two

measures of procedural fairness conducted in this research: (1) notification of refend agencies, and (2) success of referral agencies in having mitigation measures incorporated into the design of the drainage.

5.2.2.1 Referral Agency Notification Process

Previous researchers have expressed concem about the notification of drainage works to the referral agencies. Each of the stakeholders are required to be given notification of the petition under section 5. lm) of the Drainage Act:

5. (1) Where a petition in accordance with section 4 has been filed, the council shall forthwith consider the petition and shall, within thirty days after the filing of the petition.

(b) if it decides to proceed with the drainage works. give written notice of the petition and of its decision to each petitioner, the clerk of each local municipality that may be affected, and the conservation authotity that has jurisdiction over any lands in the area or, if no such conservation authority exists, the Minister of Natural Resources.

While it is not explicitly stated in the Drainage Act, notification in Zorra Township is

forwarded to the MNR office for comments relating to the Fisheries Acr.

In reviewing the 139 completed cirainage projects. 130 (94%) petitions were

fonvarded, and 2 (196) were found not forwarded to the referrai agency ( Table 5.10). The

two projects where a petition notice was not forwarded to the refend agency occurred in

1979. However, both agencies were forwarded a copy of the engineer's report, and in

both cases neither the MNR nor UTRCA had any concems with the drainage proposal.

This is a significant improvement over the results found in the Kettel and Day (1974)

study of 12 conservation authorities where only 21% of petitions were forwarded to

conservation authorities. 1 "Wet" Land 11 3 1[011311(0I 1 Other 1102 1 4 102 1 4 -]'130 2 7 130 2 7 - --

There were no projects in which an engineer's report or council's decision to

proceed with the drainage work were nor sent to the referral agency for cornments.

Therefore. in terms of procedural fairness, the refend system is treating dl the

participants the same.

When an agency was forwarded the petition notice. on occasions there would be

no response to the notification (Table 5.1 1). The MNR did not respond to 12 (9%)of the

L30 petitions sent to their office. The UTRCA did not respond to 7 (5%) of the 130

petitions forwarded to their office.

TABLE5.11 AGENCYRESPONSES TO NOTIFICATIONSOF A PETITIONIN

In terms of environmental sensitivity, none of the petitions that the UTRCA failed

to respond to involveci any class of wetland. One of the petitions the MNR did not reply to was a regiondly significant wetiand with fish habitat, as identified in the wetland evaluation files.

In responding to the fonvarding of an engineer's report, the MNR had a much

lower response rate. The MNR did not respond to four engineer's reports that involved

provincially significant wetlands and fish habitat. In addition. the MNR did not respond

to 34 drainage works in areas other than wetland cIassificûtions. However, none of these

sites involved fish habitat. The failure to respond by the MNR was higher when a closed

drain was the consmiction project. In their response to the Drainage Superintendent,

MNR would frequently state that "they inspected the area influenced and found that work

will not adversely affect any woodlot or natural watercourse in the area. and since the

project is closed drain construction and no alteration of a nanird watercourse will occur

we have no objections to the drainage work". Therefore, after an initial review of the

drainage works, the MNR would be able to conclude that the construction would not

impact any of their forestry or biological concerns.

In terms of procedurai equity, the provisions of the Drainage Act are fair in

regards to the notification process. The level of notification is significantly higher than in

previous studies. Procedural equity was also rneasured by examining the success of

referrai agencies in having mitigation requirernents incorporated into the drainage design

and construction.

5.2.2.2 Impiemenration of Mitigation Requiremettts

The second measure of procedural equity was based on bargaining between the

referral agencies and the engineer. This research reviewed the timing of construction and

the depth of the drain. The examination was limited to these mitigation requirements because it was difficult to detennine whether or not other recommendations were incorporated into the design. While letters would be forwarded to the engineer, there were very few occasions in which the engineer would reply in wnting to the referral agency 's concems.

When the MNR made a recommendation of rnitigation to construct during low flow conditions, they were not very successful at infiuencing the construction time. The low flow timing is recommended to reduce the amount of sediment entering the drain during construction. On seven occasions, the MNR recornmended that the drainage works take place during low flow condition. One of the seven was located in a provincially

significant wetland. The data suggest that on only one occasion after either the MNR or

UTRCA requested construction duhg low flow conditions was it complied with. On

three occasions, the MNR gave approval of the drainage work under the Mes and Rivers

Improvement Act on the condition that work was completed during July-August. In these

instances, the work was completed at another time, two of which were completed in

October, with the third being cornpleted in November. There were no comments from the

MNR in regards to the failure to comply with the request. It is assumed that there was no

monitoring of the drainage projects to check for cornpliance. Therefore, it can be

concluded that in these cases the referral agencies were not successful in altering

drainage construction times.

Of the twenty provincially and regionally significant wetlands identifieci in Zorn

Township, ten are documenteci to have fish habitat, as recorded in the wetland evaluation

files. Figure 5.3 reveals the timing of drainage projects which occurred in these wetland

areas. It is signifcant to note that only 60% of the drainage projects involving fish habitat

associateci with wetlands were completed during low flow conditions. FIGURE5.3 TaE TIMING OF DRAINAGECONSTRUCTION IN WETLANDS WHEREFISH HABITAT ARE IDENTIFIEDIN ZORRATOWNSHIP, 1978-1997

Q Q 6 9' & ,+? 5+ p39 %@Q $JI +04 9 q0 + v + The Month Drainage Work was Completed :

W Drainage Works i

On three occasions involving drainage and provincially significant wetlands, the

UTRCA had concems about the depth at which the drain was being lowered to. In 1984, there was a petition to extend the Golspie Drain thmugh the Golspie Swarnp (Figure 4.a

The UTRCA recommended that the ditch bottom be lowered 0.6m through the Golspie

Swamp, rather than the requested 1.2m. The engineer complied with the request.

However, a petition was submitted in 1987 that involved the extension of the Campbell

Drain, which is also located in the Golspie Swamp.The referral letter from the UTRCA suggested they had senous concerns with drainage in the area due to the loss of wetland vegetation after the completion of the Golspie Drain extension. The concem in the

Campbell Drain case was that the extension required a path through a portion of the wetland. While the UTRCA said they could not accept the extension of the drain, it was ulhtely installed. In another case involving the Golspie Swamp, the UTRCA stated it could only accept lowenng the drain 22.86 cm maximum, and not the 30.5 cm that was proposed.

The UTRCA stated that their goal was no net loss of function, and they could not compromise now or in the hiture. In a referral letter, the engineer stated that a compromise had been reached with the UTRCA, however, the details of the agreement were not disclosed in the letter.

In ternis of procedural equity, the UTRCA was able to rnitigate the drainage depth in two of the three cases. However, as indicated in a letter from the UTRCA,the

requested depth of 0.6 rn through the swamp instead of 1.2 m, resulted in the loss of

wetland area. The request for maintaining the hydrology of a wetland was requested only

three times out of the twenty-eight provincially and regionally significant wetlands which

were influenced by drainage projects. Reserving hydrology should be a key

consideration of the referral agencies in maintaining the function of a wetland.

5.3 Outcome

Outcome-based evaluations require a performance-based assessment to determine

how effective a policy is a meeting its objectives (Schalock, 1995). In this research, three

criteria are used to evaluate the outcome of the provisions of the Drainage Acr as a means

of wetland protection. The outcome section of the evaluation focuses directly on drainage

activity around three categories of wetiands. Understanding that not al1 drainage projects

significantly impact the environment, the research effort focused on the effectiveness of

the referral process in protecting wetlands in Zorn Township. First, the refend agencies'

comments and engineer's reports were examined to determine the consistency with which BMPs were incorporated into the approvd process of the Drainage Act. Second, the performance-based assessrnent utilized a map-based approach to identify drainage activity and quanti@ the wetland gains and losses in Zona Township between 1978-

1989. As noted earlier. the 1998 aerial photography was not available at the tirne of wtiting. Third, to determine the adequacy of the effort, an examination of the wetland area on private and public property was evaluated.

53.1 Consistency over Tirne

The provisions of the Drainage Act empower refe~aiagencies to express

concerns and/or mitigation requirements for the purpose of incorporating environmental

considerations into the drainage proccss. This section examines how the consistency of

site visits. mitigation requirements, and the inclusion of environmental impact sections in

engineer's reports has changed over the 20-year study.

Concems are communicated to the engineer, Drainage Superintendent, Council

and landowners through letters of referrai, site visits ancilor public council meetings

before a by-law is passed. This section examines how attendance at site meetings evolved

over the study pend.

There was no examination of the consistency of reninied referrai leners because

there were no incidents where referral letters were clearly not remed to the Drainage

Superintendent. Resence at the public council meetings was not examined because there

was no record of attendance for those meetings in the drainage files. 5. 3.1.1 Site Meetings

The purpose of the site meetings is to allow the engineer to present the results of

their preliminary report, and give the stakeholders an opportunity to comment on any

concerns helshe may have in regards to the preliminary report or the final design of the

drainage works.

There were a total of twelve drainage works involving provincially significant

wetlands between 1984- 1997. On one occasion neither of the refed agencies received

an invitation to the site meeting. Out of the eleven drainage works that referai agencies

were invited to, there was at least one referral agency in attendance at five of the

meetings. Nearly 46% of the time was a referral agency in attendance of a site meeting

after 1984. Not only was attendance up for provincially significant locations after 1984,

so too was attendance at site meetings for locations other than wetiands (Table 5.12).

Attendance at site meetings became more frequent after 1984 for both provincially

significant areas and non-wetland related drainage sites.

I 1 Total 1 107 1 2 1 14 1 1

5.3.1.2 Recommended Mitigatiun

In regards to the number of times mitigation was recommended for drainage in

the vicinity of wetlands, they too were more consistent after 1984. Between 1978- 1983

there was 14 drainage works involving the ttiree categones of wetlands. During that tirne. mitigation was recommended in seven of the cases. Between 1984- 1997 there was 17 drainage works, and mitigation was recommended in thirteen of the drainage works. The recommendation of mitigation involving wetland areas was more fiequent after 1984.

5.3.1.3 Environmental Impact Sections

The number of environmental impact sections contained in engineer's reports was up also after 1984. From 1978 to 1983 there were 53 drainage works. On only one

occasion was an environmental impact section included in an engineer's report. From

1984 through 1997 there were 86 drainage reports submitted and 32 of the reports

contained an environmental impact section. On no occasion were environmental impacts

anticipated to occur as a result of the drainage activity. The majority of the reports failed

to identiS the wetland areas or wildlife habitats.

The reason 1984 was chosen as an appropriate time period to examine consistency

was due to a series of events involving wetlands. The Ontario govemment introduced the

1' edition of the Ontario Wetland Evaluation System in 1983, with the 2"6edition being

released in 1984. This evaluation system provided the means for evaluating the

significance of wetlands in southem Ontario. In addition, the Wetlands for Tomorrow

conference was held in 1983. In 1984. the Ontario govemment issued the Guidelines for

Werland Management in Ontario (OMNR,1984). Tomick and Hendler (1992: 50)

suggest that "the document reflected the govemment's intent to better ensure the

management and protection of the remaining wetlands in the province." These events

may have heightened the level of awareness as to the importance of protecting

provincially significant wetlands. Also, the wetiands in Zona Township were evaluated

under the Ontario Wetlaad Evaluation System in 1986-1987. The evaluation established boundaries and identified wetlands wiîh provincially significance in Zorra Township.

Thus, the data show there appears to be a heightened awareness for wetlands.

5.3.2 Performance

In order to measure performance, a map-based approach was used to assess the wetland gains and losses in Zorra Township between 1978 and 1989. No assessment of wetland gains and losses were made between 1989 and 1997 because data with a

comparable resolution to the aerial photography was not available.

Not dl drainage projects are considered to be a significant environmental impact.

Thirty of the 139 drainage works completed during the study pend directiy involved

Class 1-3, Class 4-7, and "Wet Land" areas. Between 1978 and 1989 there were 24

drainage works that directly influenced one of the three wetlands category. The wetlands

were divided into their respective classifications to measure gains and losses. The

calculation of area was based upon vegetation boundaries, and the net gains and losses

for each wetiand. The results are presented in tabular form and visualized on a base map

of Zorn Township.

5.3.2.1 Provincially Significant Wetlands

The Ontario goverment designed the Wetland Evaluation System in order to

rank and quantify the remaining wetland anas in the province. Rovincially significant

wetlands (Class 1-3) are to be afforded the highest level of protection due to the functions

and values of these areas. RoWicially significant wetlands impacted by drainage and

areas not directly impacted by drainage both experienced a net loss. The results are

illustratecl in Table 5.13 and Figure 5.4. Wetiand Id. ' 1978 (Km2) 1989 (Km2) Net GainlLnss (Km21 Z032B 0.900 0.862 -0.038 Z033B 0.454 0.424 -0.030 I i C~S1-3 We t lands Impacted by Drainage Works

1 Total 1 l? 1 10.933 1 -1.435 1

C~S1-3 ZOMg* 0,632 0.575 -0.057 Wetlands Z034Bd 0.599 0.464 4.135 Nat . ZOWg* 0.446 0.367 -0.079 Irnpacted by Z034cbc* 0.295 0.284 -0.0 1 1 Drainage Z028A* 0.300 0.295 -0.005 works ZOIOD O. 172 O. 174 0.002 r 2037C 1.109 1.068 -0.0

* Areas of wetland complexes not directiy impacted by drainage Figure 5.4. Class 1-3 Wetland Area Gains/Losses in Zorra Towhship, 1978-f 989

IClass 1-3 Wetland Losses - Secrion 4 and 78 Drainage Between 1978 and 1989, there were 14 drainage works that directly impacted fifteen provincially significant wetland areas in Zorra Township. As a proportion of the area in 1978, the impacted provincially significant areas had a net loss of approxirnately

12%. The provincially significant wetlands not directly impacted by drainage had a net loss of approximately 9%.

These finding show that provincially significant wetlands are experiencing a loss of area, whether directly impacted by drainage or not. This suggests that there may be

other contributing factors leading to the loss of wetland area. Loss in area may also lead

to a loss of value. For example, the Wetland Evaluation System calculates wetland area

for the purposes of measure flood retention. The smaller the wetland, the less significant

the wetland will be for flood retention. In addition, the loss of species habitat or the loss

of provincially significant plant species will reduce a wetland's value, according to the

Wetland Evaiuation System in place in Ontario.

Losses to the Golspie Swarnp (Zû44A) were documented in a letter to the

Drainage Superintendent after an inspection by the UTRCA revealed the effects of the

Golspie drain extension in 1984. The UTRCA had senous concerns with the proposed

1987 drainage extension in this area because a survey of the area revealed that the

extension instailed in 1984 resulted in large parcels of land, which once exhibited

wetland characteristics drymg up. The effects of the drainage project were identified

during the 1986 wetland evaluation process. Without the wetland evaluation, the effects

of the drainage project may have gone unnoticed. The UTRCA had not monitored the

impacts of 0th drainage projects between 1978 and 1989. 5.3.2.2 Reg ionally Sign8cant Wetlandr

The provincial govenunent recognizes the importance of regionally significant wetlands within Ontario, and encourages the protection of these areas. In the regiondly significant wetland areas, there was a net loss of area for those directly influenced by drainage and a net gain for those not directly impacted by drainage projects. There was a

13% reduction in area for the impacted wetlands and a 1% increase to the non-impacted areas (Table 5.14).

Figure 5.5 illustrates the gains and losses associated with direct wetland drainage.

Wetland Z048P lost approximately 32% of the area recorded in 1978. In 1979, a new municipal outlet drain was installed through the wetland. Neither of the referral agencies identified this area as being significant, as a result there were no mitigation measures recommended for the design of the drain.

hpact ed by Drainage Ill

Figure 5.5 Class 4-7 Wetland Area Gainsnosses in Zorra Township, 1978-1989

--H- - M - /a* .- / - - - 0 / .,- .- - -/- lr - .-0-- < - - - /- - * .- a / * -.He I >*<- - S.. S.. - ,- *- -&--- *-<-. /C - r)- , < - - \ * /- . - d Z03;IB fl 4 .# ---'> / a- . <- * ..- 4 - - -- .' -, \,,

\ a a -p '\ -*- .zoji /.- - /* a - --~.------;-.:::.--. / 5 _,r ---- * <** *- CC a 2 4 rC _ -; i *.-IC, .r - _ -- Kilometun Class 4-7 Wedmci . - . .+ -< 'TlBoundanes , -r - - IClass 4-7 Wetland Gains IClass 4-7 Wetiand Losses -Section 4 and 78 Drainage 5.3.2.3 "Wet Land" Area

The category of "wet lands" reflects areas where no protection is afforded because ihey have not been identified as either provincially or regionally significant. However,

concern has been expressed by MNR staff that the present wetland inventory is not a

comprehensive list of ail wetlands (Richards, personal communication, 1999). MNR staff

use aerial photography and soi1 maps to identify potentially significant sites. The purpose

of rneasuring "wet land" area was to ascertain the impact on these areas that are not

protected. There was a 16 % reduction in "wet land" areas directly impacted by drainage

(Table 5.15.).

"WetLandst' WL6 0.180 0.123 -0.057 Impacted by WL~O 0.307 0.303 -0.004

Drainage WL14 0.043 0.029 4.014 l works WLl5 0.212 O. 168 -0.044 Total 0.742 0.622 -0,120

WL1 0.1 19 0.1 15 6.004 . I wu 0,006 0,003 -0.002 WL3 0.1 13 0.20 1 0.088 WLA 0.014 0.000 -0.014 I "Wet Landst' WL5 O. 138 0.154 0.016 WL7 0.324 0.29 1 -0.033 Not h Impacied by . WL8 0.0 14 0.000 -0.014 Drainage WL~ 0.324 0.2% -0.028 1' WLll 0.264 0.260 -0.004

Grand Total Figure 5.6 "Wett' Land Area GainsLosses in Zorra TownshipJ978-1989

* - -- "Wet hd"Losses

Section 4 and 78 ûrainage Figure 5.6 illustrates the loss of "wet lands" number 6, 14 and 15 through the direct clearing for drainage constmction. Since the identified "wet lands" do not appear on the Official Plan for Zorra Township, in the UTRCA wetland files, or are associated with any known significant fish habitat these potentially significant sites require no special consideration.

The measure of performance indicates that despite the identification of provincially and regionally significant wetlands, there continues to be a loss of wetland area due to municipal outlet drainage (Table 5.16).

Section 4 section 78 - Works wo'rk6.

9 6

The results indicate that wetland areas directly impacted by drainage have the

greatest wetland losses. The provinciaiiy significant wetland areas lost the most area

compared to the other two categories. The provincially significant wetlands account for

the largest area, which would explain why these areas have the highest loss of area. Men

the proportion of area between 1978-1989 is measured, the significance of a wetland

appears not to infiuence the raie of loss. Provinciaily significant and regiondy significant wetlands lost nearly the same percentage of area, 12% and 13% respectively.

While it would have been beneficial to mesure the impact on drainage over the entire snidy period, the data were not available. However, the regional map-based approach is a useful tool for identifiing losses and gains associated with past drainage projects. The regional approach facilitates the monitoring of wetland changes over a spatial and temporal scale.

533 Adequacy

This research measured adequacy in terms of the need for regulation compared to

the level of effort in Zona Township. The fact that drainage continues to play an

important role in agriculture suggests that the remaining wetlands in Zorra Township will

continue to be under pressure. Therefore, in order to determine the need for regulation in

Zona Township the amount of wetland area under public and private ownership was

calculated, Table 5.17.

Source: Wetland Evaluation Files, 1986-1987 The results show that the public controls only 19% of the remaining provincially significant wetlands in Zorra Township. The rnajority of the public areas are owned and

rnanaged by the UTRCA. However, areas controlled by the UTRCA can be irnpacted by drainage projects, which could result in costs being assessed to the UTRCA for the

benefit of drainage. Regardless of the fact that the UTRCA vies to maintain the

hydrology of the area, they are assessed like any other landowner in the drain watershed.

None of the regionally significant wetiands are owned by public interests. Of the

remaining 7.44 square kilometers of provincially and regiondly significant wetlands,

84% is owned and rnanaged by pnvate landowners.

The level of need was compared to the adequacy of resources available for the

implementation of wetland regulations. In this research, there was no investigation of

financial records of the referral agencies with respect to expenditure on managing

wetlands. However, previous research indicated that relative to the overall budget of the

UTRCA,little was spent on the implementation of regulations, specifically floodplain

regulations (Hammond, 1994). Hammond (1994) suggested the implementation of

floodplain regulations was but one of an array of concems. There was no examination of

MNR expenditure on wetlands related to fish habitat. While the private ownership of

wetlands indicates a continued need for the regulation of drainage in Zorra Township, the

adequacy of resources for the protection of wetlands is uncertain. Chapter 6: Conclusion

6.0 Introduction

This research evaluated the environmentai provisions of the Drainage Act that related to wetland management as implemented by the UTRCA and MNR in Zorra

Township between 1978-1997. The refed process established in the Drainage Act is the pnmary mechanism for protecting wetlands in the interest of the public. However, this process assumes there is a complete inventory of wetlands and that rnitigation measures are sufficient to maintain wetlands functions and values. These assumptions establish the need for both normative and operational levels of analysis. The review of iiterature

suggested that effective wetland management involved scientific, legal and technological

considerations. Conflict and uncertainty are also associated with wetland management.

The methods of anaiysis and results of the operationai critena were descnbed in Chapter

4 and 5 respectively. This research identified two levels of evaluation: (1) operational.

and (2) normative.

In order provide the practical and academic implications of the research, the

results of the operational evaluation are summarized below. 6.1.1 Efficiency

In terms of the length of time, the referral process appeared to be efficient. The perception that drainage construction is delayed by the referral process is not supported by the data obtained from the application files. The average time to complete drainage

works in the vicinity of provincially significant wetlands was less than areas with no

obvious environmental concems. The referral process took slightly longer in returning

commenis on petitions in wetiand areas. However, the provisions of the Drainage Act

allow referral agencies thirty days to respond to Section 78 drainage works. and the

average time for Section 4 and 78 approximately 17 days for both the UTRCA and MNR.

There were also no significant delays in returning comments on engineer's reports. As

expected, the construction process is delayed if permit decisions are appealed to the Court

of Revision and Drainage Tribunal. The Section 4 and 78 drainage projects were delayed

256 and 412 days on average when there was an appeal to both the Court of Revision and

Drainage Tribunal. Approximately 25% of al1 drainage works in Zorra Township were

appealed during the 20-year study. None of the appeals were based on environmental

concerns.

The duplication of effort between the UTRCA and MNR was evident in a

cornparison of their respective drainage nview guidelines. However, this inefficiency

was not evident with respect to attendance at site meetings and recornrnendations of

mitigation measures. Therefore, the referral process in wetland areas does not appear to

signiticantly delay the construc tion of drainage works. 6.1.2 Equity

Previous research had identified a major shortcoming of the process that pertained to a generai failure to notQ referral agencies of relevant drainage works. In Zona

Township, this did not appear to be the case with 94% of the drainage works forwarded to the referral agencies. Only 2 (1%) drainage works were found to not have been forwarded to the referral agencies. Therefore, in &rra Township the notification mechanism appears implemented in an equitable manner.

In spite of this improvement, concems about the effectiveness of the bargaining

process among public agencies involved in the referral process remain. Neither the

UTRCA nor MNR were successful in having drainage construction take place during low

flow conditions (July- August). This issue illustrates the conflict between agricultural

production and environmental issues. To protect fish and wildlife habitats, early October

to July should be avoided. However, this same period coincides with post-harvest and

pre-plant when rnost farrning operations would support drainage activities (UTRCA,

1993). The MNR had recommended construction take place during this time penod on

seven occasions; once involving a provincially significant wetland. However, only one of

the projects was completed during the requested time period (not the one involving a

provincially significant wetland). The UTRCA was successful in altering the construction

of two drainage projects with respect to hydrology in wetiand areas. However, while the

recommendations were complied with on one occasion, a loss of wetiand area resulted in

any case. Therefore, while some progress has ken made conceming the operation of the

referral process, fundamentai problems with current arrangements rernain. 6.13 Consistency

There appears to be an improvement with respect to attendance at site meetings. to the recommendation of mitigation measures and to the inclusion of environmental impact sections in engineer's reports that relate to works proposed in provincially signif'cant wetland areas. Over the twenty-year snidy period, several Ontario governrnent initiatives have enhanced the level of awareness with respect to provincially significant wetlands.

6.1.4 Performance

In order to determine the performance of the provisions of the Drainage Act in

protecting wetlands, a map-based was used to measured gains and losses for the period

1978- 1989. In tems of protecting or maintainhg wetland area, the provisions appeared to

be inadequate. Al1 three wetland categories directly influenced by drainage activity

experienced a net loss of wetland area. Only the regionally significant areas not

influenced by drainage activity had a net gain over the study period. While statistical

evidence was not provided, there was a greater loss in wetiand areas directly influenced

by drainage projects compared with those not influenced by drainage works.

6.15 Adequacy

Due to the apparent continued importance of drainage in agriculture, it was

appropriate to assess adequacy in terms of the level of need compared to the need for

regulation. h reviewing financial records at the UTRCA,previous research indicated that

expenditure on the enforcement of Section 28 and other regulations (e.g. Drainoge Act,

Planning Act) appeared to be inadequate (Hammond 1994). The continued need for effective regulatory as well as voluntary measures is evident by the 84% level of private ownership of wetlands in Zorra Township.

6.2 Policy Implications: Implementation of the Principles of Integrated

W atershed Management

Dorcey (1992) suggests that sustainability in water management involves the implementation of well-established principles often referred to as "integrated watenhed management". The principles of integrated watershed management inciude: (1) the need for gwd science and inforrned decision making, (2) partnerships and participation, and

(3) ecosystem management. Incorporating these principles into the provisions of the

Drainage Act should lead to a more effective program in ternis of efficiency, equity. consistency, performance and adequacy. For these reasons, the principles of integrated

watershed management will be used as the normative aiteria with which to structure the

recommendations with respect to the provisions of the Drainage Act for wetland

management.

6.2.1 Science/Informed Decision Making

The Ontario wetland evaluation files provide the most cornprehensive collection

of information relating to the signifcance of a wetland. While these files do not provide a

precise inventory of ail fiora and fauna species, they provide the basis for the ranking of

wetlands based on four components of biological, social, hydrological, and specid

features. In order to ensure that these features are maintained wetland managers should

ensure that mitigation measures associateci with drainage activity are related to the function and value of wetlands. For example, buffer zones should be linked to the function which they are to provide.

In order to monitor the impacts of drainage activity around wetlands, there needs to be a regular updating of wetland evaluation files. While remotely sensed data could provide some improvement, there are limitations to its ability to define wetland boundhes. At the present tirne, the best way to determine the delineation of a wetland boundary is through a field evaluation. In order to property mess the cumulative impacts of drainage activity changes in wetland boundaries, evaluation files should be updated every five years. Not only could this help assess the impacts of drainage activity, it would improve our understanding of the dynamics of the wetland ecosystem. The changes in wetland boundaries could be linked with climate data. Regular updating could be used as a tool for monitoring the impacts of specific projects. This would allow managers to adapt to changing conditions.

63.2 Partnerships and Participation

Public participation in the drainage process is facilitated with the open council

meeting prior to passing the petition by-law. The acceptance or deniai of the petition

application should be open to the public as well. This provides an opportunity for citizens

to express their opinion early in the process.

Since the completion of this shidy, the MNR is no longer under contract with the

Department of Fisheries and Oceans to implement the provisions of the Fisheries Act.

However, the local knowledge of MNR biologists should be utilized in order to faciiitate

the transfer of responsibility to conservation authorities. The development of a forma1

partnmhip between the two agencies wiii facilitate the exchange of information. At the present the, there is no forniai anangement that facilitates the exchange of information.

If the UTRCA staff have questions about a particular area or project, they must rely on the availability of MNR staff rnembers. This raises some concems with respect to efficient y.

Also, it is unclear what the new responsibility of the MNR staff wiil have with respect to wetlands. The MNR still has responsibility for the Lakes and Rivers

Improvement Act and Public Lands Act. Therefore, the fragmentation of wetland management will continue.

Conservation authorities give pnority to drainage activity in areas of high

environmentai sensitivity (UTRCA, 1993). However, site meetings provide an

opportunity for conservation authonty staff to have penonal contact with farrners in the

watershed. Using the BMPs as outiined in the manual, conservation authority staff cm

ernphasize the important mitigation measures as they relate to timing, erosion.

construction, and bank stabilization so they can be incorporated into al1 drainage

schemes. This could be an opportunity to discuss the incorporation of bioengineering

techniques or nanirai channel design.

The first site meeting is the time when stakeholders are given the opportunity to

discuss concerns with the project. This is a more appropriate time to discuss any potential

concems for a project than after the final engineer's report has been submitted to aU the

stakeholders.

6.2.3 Eeosystem Management

Ecosystem management should balance economic, social and environmental issues

in the decision-rnaking process. Despite attempts to incorporate environmental considerations into the process (e.g. environmental checklist), there continues to be an apparent lack of effective consideration in the approval of applications. Meeting the petition requirements of a majority of owners or 60% of the acreage seems to be the only provision that prevents the approval of drainage work. If the intent is to incorporate environmentai considerations into the drainage process, then environmental considerations should be incorporated for dl types of drainage, not only requisition drains.

In addition, the provisions in the Drainage Act should clearly define the process of conducting an environmental appraisal. While there was no request for an appraisal in

Zorra Township, previous research identified the uncertainty with respect to how to conduct an environmental impact study.

The UTRCA stated that their goal was "no net loss" of wetiand functions. However, even when mitigation measures are complied with (Golspie 1984) there continued to be a

"net loss" of wetland functions. Agencies should be able to incorporate off-site mitigation techniques in order to achieve their "no net loss" goals. Despite the mixed reviews of enhancement, restoration and wetland banking techniques, they provide managers with

the flexibility in finding alternative solutions to on-site mitigation, which is apparently

insufficient. In Zorra Township, there were six provincially significant, two regionally

significant., and nine "wet lad' areas not directly influenced by municipal drainage

works between 1978-1997. These locations provide an opportunity for partnerships to be

developed with landowners to attempt to restore areas once drained for agricultural

purposes.

The conservation authonties should be considering a wider range of environmental

impacts on wetlands. Municipal outlet drains can directly infiuence the function of a wetiand by reducing the water table, and clearing vegetation. However, the purpose of municipal outlet drainage is to provide safe removal of surface and subsurface waters from on field tile drainage systems. The Wetiand Policy Statement (issued under the

Planning Act) states that development in provincially sig~ficantwetlands can occur if it does not encourage future development. One way of supporting this belief would be for wetland managers to assess the entire drainage system rather than individual projects.

1) In order tu maintain the score of a wetland under the Ontario Wetland

Evaluation System, conservation authorities should ensare that mitigation

measures are reflective of the various functions and values of the particulam

wetland.

2) Wetland evaluation files should be updated every five years to enable the

assessrnent of cumulative impacts and monitoring of changes in wetland

boundaries.

3) The council meetings for the acceptance or rejection of petition by-laws

should be open to the public for comment.

4) A formal arrangement should be established with the MNR and the

conservation authorities in order to facilitate the exchange of information on

fisheries data between the two agencies.

5) Conservation authority staff should attend initial site meetings to enhance

their relationship with local fanners and drainage engineers. Attendance at site meetings will enable conservation authority staff to emphasize BMP in al1

drainage construction, not only in environmentally sensitive areas.

6) The Drainage Act should be arnended to give greater weight to environmental

and economic considerations of al1 drainage projects, not only the requisition

drains. The Drainage Act should also clearly define the process for conducting

an environrnental appraisal of drainage works.

7) In order to provide more flexibility, conservation authorities should be able to

incorporate off-site mitigation techniques (enhancement, restoration or

wetland banking) as an alternative to on-site mitigation.

8) Drainage works under the Tile Drainage Act should be incorporated into the

assessment of municipal outlet drainage schemes. To ensure the complete

range of environrnental impacts are being considered in the assessment of

drainage works, conservation authorities should be allowed to assess the entire

drainage system rather than the individual municipal drain.

9) The timing of drainage works in environmental sensitive areas should take

place during low flow conditions. The length of tirne pnor to consmiction

gives Drainage Superintendents the ability to schedule drainage works in

environmentally sensitive areas during the low flow tirne-period.

6.4 Academic Implications

Previous research on drainage and wetland management focused primarily on the environmental impacts associated with agricultural drainage. Performance measurements are limited to describing the physical alteration of wetlands or related environmental features. With the exception of Kettel and Day (1974), and Found and Spence (1977) there have been no evaluations of the implementation of wetland management with respect to drainage in Ontario. This research assessed the Drainage Act on two Ievels: (1) normative, and (2) operational. This enabled the evaluation of the effectiveness of the implementation process and facilitated the incorporation of the principles of integrated watershed management.

The utility of a regionai map-based approach to wetland policy evaluations is the ability to assess the cumulative impacts of drainage projects on the watershed level. This research dernonstrated the utility of incorporating aerial photography in measuring the

performance of wetland management. However, aerial photography should not be relied

upon as a substitution for field surveys of wetland boundaries.

6.5 Implications for future research

In evaluating the provisions of the Drainage Act and wetland management, there

were a number of anas that require future consideratioas. Due to a lack of aerial

photography, this research effort was unable to evaluate the performance of the

remaining eight years of the permit data. There were signs of an improvement with

respect to the consistency in recommending mitigation maures, increased attendance ai

site meetings. There was an apparent influence on the consistency due to the Ontario

govemment's wetland management strategies. There needs to be an evaiuation of wetland

gains and losses to determine whether these changes have Muenced the rate of change.

Future research must address the impacts that increasing use of closed municipal

outlet drains is having on the watershed ecosystem. Specifically, closed municipal drains may have significant impacts on both riparian and aquatic species, in part, due to the loss of connectivity between 'natural' areas. During the study period, the MNR was unable to becorne involved with the installation of closed drainage systems, unless it was identified as fish habitat. The UTRCA made no specific reference in referral letters as to the

potential impacts of closed municipal drains. Therefore, the installation of closed

drainage systems has gone on without any sort of investigation as to the impact on

riparian and aquatic species.

Areas not directly impacted by agricultural drainage were also experiencing losses.

Future research should examine the impact of the remaining three major threats to

wetlands: (a) urban development, (b) invasive plant species, and (c) pollution sources.

Future studies should address the nature of the conflict between farmers and non-

famiing families living in rural areas. Many of the appeals to the Court of Revisions and

Drainage Tribunal were frorn families living in the countryside that felt they were

unjustly assessed costs for drainage works wirhin their property. In one mling by the

Drainage Tribunal, the chair acknowledge the trend of families retreating to country

living, however, drainage is apart of rural living, and it is one of the pnces people will

have to pay for living in nual areas. Appendix 1

The Ontario Ministry of Agriculture, Food and Rural Affairs Drainage Grant Application Information The Ontario Ministry of Agriculture, Food and Rural Affairs Drainage Grant Application Information

1.Under which section was drainage authorized? Section 4 Section 74 Section 78

2. Physical description Total Area Assessed ha Length of drain: Open m Closed m Total rn 3. Actual Costs Construction Allowances Eng. Charges Bridges and Culverts

Interest Charges Other Charges Total 4. Analysis of Assessrnent Assessments

. Estimated Imposed

Canada Owned Lands Ont. Lands ( excluding f) Municipal lands Privately owned non-agriculniral

Privately owned agriculhiral land Ont. owned agriculniral land where Lesee has option to purchase Speciai assessments To ta1 Rorate 5. Items e and f

6.33%of 5. 7. Date of Completion Certificate Ontario Wetland Evaluation System Summary Sheets Wetland Evaluation Summary Sheets Wetland name: Class: Code: Evaluation Date: Wetland Size:

(1) Biological Productivi ty Growing degree dayslsoils Wetland type Site type Total Biodiversity Number of wetland types Vegetation communities Divenity of surrounding habitat Proximity to other wetlhds Interspersion Open water Size Grand Total (2) Social Component Economically valuable products Wood product Wild rice Commercial fish Builfrogs Snapping mes Furbearers Total Recreational ac tivities Landscape Distinctness Absence of human disturbances Total Roximity to areas of human senlement Ownership Size Abonginal and culhuai Total social (3) Hydrological component Flood attenuation Water quality improvement Short term improvement Long tern improvement Groundwater discharge Total Carbon sink Shoreline erosion control Groundwater recharge Site type Soils Total Grand total (4) Special Features Rarity Wetlands Rarity within landscape Rarity of wetland type Species Endangered species breed Endangered species use PS animals PS plants RS species LS species Total Significant features or habitat Colonial waterbirds Winter cover for wildlife Waterfow! staging and moulting Waterfowl breeding Migratory Fish habitat Ecosystem age GL coastal Grand total

(1) Biological (2) Social component (3) Hydrological component (4) Special features component Appendix 3

Types of Interview Questions Posed to Govemment Officiais Types of Interview Questions Posed to Government Officiais

(1) Do you think the referral process is efficient?

(2) What are the strengths and weaknesses of the refend process? Appendix 4

Drainage File Information Data Base

MNR mcA none none none none nme none 1 1 1 MNR 1 me nme none nonc me none ncme Forest none nom nae Noat NOIE None NOIE Nonc Nonc Nonc Nonc None NOIE Nonc Noac FOICS Nom Nonc Nonc Nom Nont mw Nam NOIE Nont NOIE None None No= Nam NOIE Nonc None None Nont NOIE Nom Nom Watcrcaw3e Norie , Socb MNR I Noir None Section

MNR Both

1 1 MNR i

MF(R MNR MNR MNR MNR UTRCA Nonc Nonc Nonc Nom 78 1985 hth None Nonc 4 1985 both 4 1985 dosai 4 1986 both 4 1986 closcd 78 1986 bath

Wam- Watmaim colxlc X VIRCA Bath MNR Nonc Nom

Nonc . Foren 1 1 Waiffcwne Nonc 1 1 MNR Nom FORS^ I Noœ None Folut Nom Nont Nonc Wawmune None 1 1 1 MNR 1 1 Nom Noœ I I Noac Noac Nonc Noœ Noœ Noir No= Nom None Urban 1 Both I mCA 1 Wamcomc Nom Watcmmc None TYF of Drain

MNR

botb Watnçoune Nonc 1 MNR 1 WiRCA dosd None Forta x 1 1 mCA Jcilcd Nonc mune 1 1 clmed None Nant closai Nonc Nonc c10bed Nont Nonc

, Watcr- both Watcrcainc course bai - Naat Nanc bath 1 W~wwunc1 None 1 I

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