At long last, there are changes to the Drainage Act which will help farmers, landowners and municipalities save time and money through a more simplified process when undertaking drainage projects. By reducing the approval time to make minor improvements, these changes can provide both positive environmental and economic benefits to farmers and municipalities.[1] The updated regulations came into effect on June 30, 2021.
Minor Improvements
Under the old regulatory regime, the same process that applied to the construction of any new drainage works applied to any improvements of existing drainage works, including minor improvements. For example, if a landowner wanted to install a new crossing, or relocate a section of open channel drain to improve farming operations in order to make more effective use of their land, they would need to go through the same regulatory process as if they were installing a new drainage system.
The new regulations allow family farm operations to obtain approvals for minor improvements in a less burdensome, streamlined process (with limited exceptions). The subject property which requires the minor improvement must be either:
A. Owned by the same person;
B. Owned by members of the same family;
C. Owned by corporations where a majority of the directors of each of the corporations are members of the same family; or
D. Owned by partnerships where the majority of the partners for each partnership are members of the same family.[2]
The exceptions to a qualifying “minor improvement” include the following:
1. The activity does not require construction access from neighbouring properties, unless consent is provided;
2. The work must not result in any changes to the way in which future repair and maintenance costs are allocated to the other owners in the watershed;
3. The drainage work does not change existing drainage capacity or erosion capacity;
4. The drainage work does not result in the existing drainage works being enclosed; and
5. The activity does not take place within any wetlands.[3]
Process for Updating the Engineer’s Report
Under the old regime, there was no process or requirement set out in the Drainage Act that would allow for an amendment to the engineer’s report to account for any necessary changes to the drainage work due to unforeseen site conditions. As a result, the engineer’s report would not accurately reflect the implemented drainage works, which created subsequent issues for both landowners and the municipality’s drainage superintendents who are responsible for the maintenance and repair of the drainage works. The new amendments now have a simplified process to update the engineers’ report to account for changes to the drainage design made during construction, which will help municipalities who are ultimately responsible for maintaining municipal drains.
Anticipated Cost Savings and Growing Pains
The estimated annual cost savings is approximately up to $898,100.[4] The majority of these cost savings are from the minor improvement process and the reduction in time an engineer would need to spend on a report for an eligible low-risk minor improvement project. [5] It is estimated that the minor improvements process can potentially reduce the approval processes by half.[6]
Time will tell to see how effective the improved regulatory regime works in reality. There will be a learning curve for municipalities, drainage engineers, drainage superintendents, conversation authorities and rural property owners to become familiar with the new processes.
If you have a drainage issue on your farm or are looking to learn more about the new regulatory processes, please contact us to learn more.
If you are looking to learn more about municipal drains specifically, please visit my colleague Joseph Hentz’s blog post here.
[1] Ontario Modernizing the Drainage Act
[2] O Reg 500/21 at Section 7(1). Members of the same family” include a spouse, child, parent or sibling
[3] O Reg 500/21 at Section 7(2).
[4] Ontario's Regulatory Registry
[5] Ontario's Regulatory Registry
[6] Ontario Ministry of Agricultural, Food and Rural Affairs, Drainage Act Discussion Paper at page 3.
