Drainage Act and Conservation Authorities Act protocol for drain maintenance and repair

Learn how to meet the requirements of the Drainage Act, 1990 and the Conservation Authorities Act, 1990 for drain maintenance and repair.

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This infosheet provides municipalities, drainage superintendents and conservation authorities with information on new protocol requirements in effect for drain maintenance and repair.

Drain Maintenance and Repair Requirements

Under the Drainage Act, municipalities are required to maintain and repair all drainage works constructed under by-law. Under certain circumstances, municipalities can be held liable for damages if they do not perform these duties. Under the Conservation Authorities Act, conservation authorities (CA) have a responsibility to regulate work in watercourses and wetlands, among other things. The definition of watercourses is broad and can include municipal drains constructed under the Drainage Act.

The Protocol

The Ontario Ministry of Agriculture, Food and Rural Affairs ( OMAFRA ) and the Ministry of Natural Resources (MNR), in cooperation with the Drainage Act & (Section 28) Regulations Team (DART), have created a protocol to provide guidance on how to meet the requirements of the Drainage Act and Conservation Authorities Act for drain maintenance and repair.

The protocol simplifies the process of acquiring permission under the Conservation Authorities Act in order to perform drain maintenance and repair work under the Drainage Act, while maintaining standards to meet the requirements of the Conservation Authorities Act regulations.

The protocol is a provincially-approved guidance document for use by conservation authority staff and municipal representatives.

Standard Compliance Requirement

The protocol includes Standard Compliance Requirements (SCRs) for repair and maintenance activities that, if met, would constitute permission under Section 28 regulations. Each SCR contains activity-specific and general mitigation requirements. It is important to note that SCRs will not always be applicable and a full permit application and process may still be necessary in some circumstances. Figure 1 lists when a SCR or regular permit is recommended, subject to the discretion of the conservation authority (CA).

Figure 1. Activities subject to Permits and Standard Compliance Requirements.

Drain Maintenance or Repair Notification Form

This new form can be used to apply for permissions or authorizations to the regulations under the Conservation Authorities Act as well as to the Fisheries Act and the Endangered Species Act.

Procedures to Apply for Drain Maintenance and Repair

The protocol includes procedures for applying for regular maintenance and repair activities, along with best practices for communication among all parties.

A summary of the procedures to apply for permission are:

1. The municipality completes a Drain Maintenance or Repair Notification form and submits it to the CA.
2. The CA then screens the work proposed and determines if a SCR is appropriate for the activity.
3. If so, the CA sends a signed copy of the SCR for that activity to the municipality. The signed SCR constitutes permission under the appropriate Conservation Authorities Act regulation.
4. The municipality then undertakes the work in accordance with the SCRs.

More detailed steps are described in the Protocol document itself.

Drainage Issues Resolution Team

If a dispute occurs over a permission to maintain or repair a drainage works, parties have the option to refer the issue to a Drainage Issues Resolution Team (DIRT). This mediation team will consist of drainage sector and CA representatives, who will independently assess the best means of addressing the requirements of both statutes and make a recommendation.

The Acts

The Drainage Act, administered by OMAFRA , defines a process whereby property owners can petition their local municipality to develop communal solutions to solve drainage problems. The end result is the construction of a "municipal drain".

The Conservation Authorities Act, administered by MNR, allows municipalities within a common watershed to enter into a partnership with the Province to establish or join a CA for local resource management work.

Specifically, Section 28 regulations of the Conservation Authorities Act authorize CAs to regulate, among other activities, interference with or alterations to watercourses, including municipal drains where applicable.

The Actors

Under the Drainage Act, municipal councils have the key central role for administration of the Drainage Act procedures and for responsibility of the management of the drainage systems. Section 93 of the Drainage Act allows for the municipal council to appoint a drainage superintendent. The superintendent is responsible for many drain activities such as inspections and maintenance and liaising with affected parties, such as landowners and environmental approval agencies.

Under Section 28 of the Conservation Authorities Act, CAs use a permitting process to regulate activities that may alter or interfere in any way with a watercourse or wetland, and to regulate proposed development in areas prone to water-related hazards for the control of those hazards. A CA may decide to approve, approve with conditions, or refuse an application for a Section 28 permit through a CA board decision.

In the end, the success of this protocol depends on regular communication between municipalities and CAs. Both should understand one another's interests and communicate changes and developments as soon as possible. Working cooperatively is in the best interests of all involved.

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