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Drainage liabilities being investigated in 38 Avenue area

Posted on April 20, 2023 by Taber Times

By Trevor Busch

Taber Times

The Town of Taber is investigating legal liability and the responsibility of neighbouring landowners regarding water drainage issues in the area of 38 Avenue in the town’s southeast.

At their March 27 meeting, council had passed a motion directing administration investigate the feasibility of water drainage at that location, and the cost to repair including the sidewalk.

Public Works has been aware of water issues in the area and had been working with St. Mary River Irrigation District (SMRID) and the owner of the land to fill in a water ditch south of 38 Avenue. According to administration, every year during irrigation season the landowner fills the ditch with irrigation water to pump it out to their fields, but the ditch isn’t clay lined and the water is seeping into the residential area causing water issues. A proposal to install an irrigation pipe and backfill the ditch had been presented to the landowner. 

“That’s all overland drainage on 38th (Avenue), but it’s believed that the water table at the back where the irrigation canal is – it’s just a ditch – and that being filled with water aggravates 38th Avenue,” said CAO Derrin Thibault during discussion at town council’s April 11 meeting. “We believe they’re linked…the idea was that there would be a one third, one third, one third split, but one of us isn’t willing to pay the one third.”

A pipe extension and pond infill project proposed by SMRID comes in at $62,744.98, however, the private owner involved  is unwilling to contribute to any of the costs associated, and the SMRID is not proceeding with the project prior to the 2023 irrigation season.

Thibault pointed out the Town wasn’t the “primary driver” of the proposed project.

“To be the ‘primary driver’, what does that entail with this ditch?” questioned Coun. Jack Brewin. “What do we need to do to get something done about that ditch?”

Thibault suggested the Town could consider taking on the project in partnership with SMRID, but without a financial commitment from the landowner.

“It does abut right up against the back of our lane. There is some safety involved, and eventually it may erode away the lane, so it will affect the town at some point. But it’s not actually on our land, so council would have to give administration whatever direction you think.”

“I drove over there last week and spoke with the gentleman that was at ‘Coffee with Council’, and I definitely see his concerns,” continued Brewin. “Being that it’s a private ditch, St. Mary’s does not own that ditch, so he’s just taking water from the end, filling that ditch, and pumping from the ditch.”

“That’s my understanding,” confirmed Thibault.

As the sidewalk repair/replacement is already in the 2024 Sidewalk Replacement Program, “there is no need to add additional funds for this project unless council would like the sidewalk repair completed this year, but we would not recommend it until the water issues have been rectified.”

“We’ve replaced a couple portions of it, so this is another end that needs to be replaced,” said public works director Gary Scherer. “It’s already in the 2024 capital budget – we already had it all in there so there’s nothing additional. Unless you want to move forward with it this year, then we would bring back a cost. But we’d rather deal with the water issue now, and that would be better for the sidewalks.”

“It just seems like its a little bit worth our investment if we have to keep repairing the infrastructure and the sidewalks there,” said Coun. Joanne Sorensen.

According to a March 15 SMRID letter to the landowner (identity redacted) from engineering services lead Colin Haugen, backfilling the private pond on the property (SW 32-09-16 W4M) would enhance public safety, reduce seepage, and prime the irrigation pump.

During a meeting on Oct. 27, 2022 between SMRID and the landowner, renter and the Town of Taber, options for resolution of the problem were discussed and a cost estimate prepared. The scope of work includes sleeving the existing CSP pipe with high-density polyethylene (HDPE) pipe to reduce the amount of damage caused to trees and landscaping, installation of HDPE pipe along the bottom of the pond and backfilling it, and installing a steel riser to service the existing pump site, which coincides with the location of the existing power service.

“We want to clarify that SMRID’s responsibility begins and ends at the steel riser turnout (point of delivery) that delivers irrigation water to the pond,” reads a statement in the letter. “SMRID is not bound by legislation to undertake the work at our cost.”

To help complete the project, the Town of Taber had offered to donate the full amount of clean clay required to backfill the private pond, while SMRID offered in-kind work for hauling material.

Coun. Alf Rudd felt the landowner bears no responsibility considering the circumstances.

“We need to take responsibility, take that over, and get something done. We need to be the driving force behind it and get that resolved. It’s impacting us already with the sidewalk issues, it’s impacting the residents with whatever problems they have – maybe there’s problems they don’t even know they have yet, an older house starts to tip. I tried to find out the history of the ditch, we don’t know who dug it, ancient societies perhaps. There’s nobody to blame – you can do what you like on your own property, and that gentleman has taken advantage of that, and I don’t blame him for not accepting any kind of financial responsibility to fix it. It’s not his problem. So I see us as having to drive that and negotiate with St. Mary irrigation (SMRID) and get that buttoned up.”

Coun. Garth Bekkering inquired if there was a direct correlation between the water ditch and sidewalk issues in the area.

“It sweats in that area, only in the summertime,” said Scherer. “When we bring our garbage truck down the lane – you can see it – it’s soft, and that’s from the water seeping in. It’s been like that for years. We’ve known that – if you look at the aerial photos in the summertime, you can actually see the curb is wet, but later in the fall it’s not. So the water has to come from somewhere, right? That’s the only source.”

Bekkering viewed the issue differently than others on council.

“Shouldn’t the owner take responsibility for the water on his property? Isn’t that one of the old laws of water?”

“Council might want to suggest we look at this through a legal review, to see what your options are,” suggested Scherer.

Brewin appeared to agree with Bekkering.

“If you have a dugout on your property that’s causing seepage on your neighbouring property, you’re responsible for the dugout. This is kind of the same situation, and I think we could investigate different avenues for him to get water delivery…you suggested maybe legal opinion, it might be something to consider before we spend a whole bunch of money on a pipeline.”

Mayor Andrew Prokop attempted to draw a line in the sand, and pushed for completion of the project.

“The sidewalk’s in really rough shape – I know it hasn’t been that long since they’ve been repaired – but they are rough right now. I think that has to be taken care of sooner than later. I think 2024 it would be appropriate to wait that long, 2023 I think would be the preference considering what kind of shape those are in and the hazard it creates. But more importantly the ditch issue has been noted by a number of residents over there as a safety issue, and that certainly has to be considered sooner than later. With young kids playing in that ditch area – I think it’s four feet of water when it’s full. It’s an eyesore, but also we’ve witnessed some of the sluffing. Mr. Thibault and I, and Mr. Egan (director of planning and community services), witnessed sluffing at that location. So it’s already affecting us on our piece. To me, as has been said, I think we need to be the driving force behind that and make this happen, sooner than later, this season I think would be the most appropriate before anything serious happens. It’s bad enough as it is, but we certainly don’t need any tragic mishaps as result of what’s going on right there.”

Bekkering appeared to back away from extensive Town involvement in the proposed project.

“I know this could be quite contentious. From my perspective, from my history with water, you’re responsible for the water that’s on your land. There’s no use fixing that sidewalk unless that ditch is removed or a pipe put in, or something. So I’m not in favour of doing that this year…but I do believe that the homeowner that the ditch belongs to – it doesn’t even belong to SMRID – it’s a conveyance, and he’s responsible for that ditch. I know it’s bad for kids, and it’s a safety issue, but it’s his ditch, it’s not our ditch. Why would we get involved with something like that? I don’t understand.”

Coun. Monica McLean was unclear about the legislation that regulates water issues in the community, and disputes between different landowners.

“There is the Water Act. The Water Act specifies that you cannot put your water into your neighbour’s property,” said Scherer. “So that’s why I’m suggesting a legal review…there may be something in the Irrigation Districts Act, too, but I’m not an expert in those two fields.”

Following discussion, council voted unanimously to investigate the legalities of fixing the back ditch/waterway and which party is responsible for alleviating any danger and seepage in that area; and for the Town to temporarily repair the sidewalk while the ditch issue is being resolved.

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