Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: September 18, 2015

CASE NO.: 14-092

PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Appellant: Citizens Against Melrose Quarry

Instrument Holder: C.H. Demill Holdings Inc.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Permit to Take Water from Long’s Quarry Sump issued under section 34.1 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended

Reference No.: 7742-9E9TGN

Property Address/Description: Lot 6, Concession 3

Municipality: Township of Tyendinaga

Upper Tier: County of Hastings

ERT Case No.: 14-092

ERT Case Name: Citizens Against Melrose Quarry v. Ontario (Environment and Climate Change)

Heard: May 19-22, 25-26, 2015 and June 16, 2015 in Belleville, Ontario

APPEARANCES:

Parties

Counsel

Citizens Against Melrose Quarry

Richard D. Lindgren and Joseph F. Castrilli

C.H. Demill Holdings Inc.

Tony Fleming

Director, Ministry of the Environment and Climate Change

Andrea Huckins and Sarah Kromkamp

DECISION DELIVERED BY HUGH S. WILKINS

REASONS

Overview

1C.H. Demill Holdings Inc. (the “Permit Holder”) owns and operates Long’s Quarry near Shannonville, Ontario. Limestone has been excavated there since the 1930s and today up to 500,000 tonnes of limestone is extracted each year. Under its licence (issued under the Aggregate Resources Act, R.S.O 1990, c. A. 8 (“ARA”)), it may extract limestone to an elevation of 99 metres above sea level (“masl”). Long’s Quarry (the “Quarry”) has an extraction area of 18.2 hectares and is approximately 20 metres (“m”) deep.

2Since the mid-1990s, limestone extraction at the site has occurred below the water table. The Quarry floor recently reached approximately 104 masl. It is expected that the Quarry will reach its limit of extraction over the next couple of years.

3There is both a shallow overburden aquifer and a bedrock or “deep” aquifer in the ground around the Quarry. Since the Quarry is below the current water table elevation, there is shallow groundwater inflow into the Quarry from the shallow overburden aquifer. Surface runoff also enters the Quarry as does precipitation. The deep aquifer is below the final Quarry excavation floor.

4Quarry operations cannot be safely undertaken at the Quarry when there is water accumulated on the Quarry floor. To address this issue, water that accumulates in the Quarry is directed to a collection sump and then pumped out to a settling pond at the southwest corner of the site. The water is then pumped towards a small ditch that discharges into the nearby Blessington Creek. This sewage works is approved under Environmental Compliance Approval (the “ECA”) No. 4008-93RJMM, dated September 5, 2013, under section 53 of the Ontario Water Resources Act, R.S.O. 1990, c. O. 40 (“OWRA”). The ECA limits the maximum discharge rate to Blessington Creek to 2,740 L per minute with a maximum discharge period of eight hours under normal Quarry conditions and 24 hours under spring thaw and melt water conditions. The ECA also requires monitoring and reporting on the quality of the effluent discharged.

5The previous owner of the Quarry, Warren Paving & Materials Group Limited, held a 10-year permit to take water (no. 7777-5ZLPX3) from 2004 to 2014, which allowed water taking from a nearby pond for dust control purposes, but not for dewatering. Before this, permit to take water no. 89-P-4081 was issued to Tarmac Canada Inc. on June 24, 1997, for dewatering purposes. It expired on March 4, 2004.

6The Permit Holder applied for a permit to take water in 2005 for dewatering, but the Director refused the permit in July 2005 based on, among other reasons, concerns over the risk of a “pop-up” occurring. A pop-up is a stress-induced buckling of rock strata, which can have adverse impacts on local groundwater users and the ecosystem. There was a pop-up at the Quarry in 1994.

7Despite the lack of a permit to take water, prior to 2012, the Permit Holder continued the practice of dewatering the Quarry and, until 2013, discharging water without authorization under section 53 of the OWRA. These water-taking and discharge activities were detected by the Ministry of the Environment and Climate Change (“MOECC”). The Permit Holder was not prosecuted.

8The Permit Holder again applied for a permit to take water in September 2011, requesting a 10-year permit. A permit to take water (no. 6270-8PJLN9) was granted in February 2012 for a two-year period. This permit authorized water taking for the purposes of dewatering, dust suppression and domestic water supply. To address the risk of unacceptable impacts to the ecosystem and to existing water users in the area, the 2012 permit to take water required that the Permit Holder develop and implement a monitoring plan for impacts to groundwater and surface water resulting from the water taking.

9In November 2013, the Permit Holder applied for a renewal of the 2012 permit to take water, again requesting a 10-year permit. Forty public comments on the proposal were received by the MOECC. These addressed the impact of the water taking on water quality and quantity in neighbouring wells; the potential for pop-up events as a result of structural concerns; the potential impact of water taking on flows in Blessington Creek; and the increase in water taking over historic levels. Concerns were also raised relating to blasting noise, dust, traffic, financial assurance, the Permit Holder’s compliance history, cumulative impacts, and the proposed Melrose Quarry, which is planned nearby.

10On June 27, 2014, the Director, MOECC, issued permit to take water no. 7742-9E9TGN (“the PTTW”) to the Permit Holder for a one-year period. The PTTW allows water taking volumes that are similar to the maximum amounts permitted under the 2012 PTTW. It permits water taking for (i) dewatering of snowmelt, runoff and rainfall (the previous permit only permitted “spring thaw and melt water”) (3.9 million litres (“L”)/day); (ii) dust control (up to 164,400 L/day for 300 days maximum per year); and (iii) water supply (up to 2,250 L/day for up to 365 days a year).

11In relation to concerns about the risk of pop-ups, the PTTW added a new condition that required the Permit Holder to conduct an investigation of the structural geology in the vicinity of the Quarry. This was designed to reduce uncertainty in relation to the geology in the local area. In March 2015, the Permit Holder completed the structural geology investigation as well as a diamond core drilling project, which tested the competency of the rock below the Quarry’s floor and investigated the subsurface conditions between the Quarry and Blessington Creek and interactions between the Quarry and the Creek.

12The PTTW includes a contingency measures plan, which in the event of a reported loss of non-seasonal water availability to local domestic wells, compels the Permit Holder to immediately provide a temporary potable water supply (if needed), hire a qualified professional to conduct an assessment, and if quarry water takings are determined to be responsible for the problem, continue to provide potable water until the well can be restored and an alternative water supply is developed.

13Citizens Against Melrose Quarry (the “Appellant”) is a not-for-profit group consisting mainly of local residents, farmers and other persons living or working in the vicinity of the Quarry. On October 27, 2014, the Environmental Review Tribunal (the “Tribunal”) granted the Appellant leave to appeal the PTTW in its entirety (the “Leave Decision”), pursuant to sections 38 to 48 of the Environmental Bill of Rights, 1993. In the Leave Decision, the Tribunal indicated that the automatic stay of the PTTW (imposed under s. 42 of the Environmental Bill of Rights, 1993) would remain in place pending a motion to lift it. The Appellant filed its Notice of Appeal on November 7, 2014.

14On February 27, 2015, the Permit Holder filed a motion requesting the Tribunal to lift the automatic stay (the “Stay Motion”). The Tribunal issued an order on April 24, 2015 partially lifting the stay on a conditional basis for a period of 10 days to allow dewatering to be undertaken. On May 4, 2015, the Permit Holder filed a second motion requesting that the April Order be reviewed and varied so as to increase the number of days over which the Permit Holder may dewater the Quarry from 10 days to 30 days or until the Quarry is dewatered, whichever comes first. The Tribunal issued an order on June 11, 2015 partially lifting the stay on a conditional basis for an additional 10 days.

15With the PTTW set to expire at the end of June 2015 and the appeal process continuing forward to a hearing, the Permit Holder filed an application to renew the PTTW on April 10, 2015. It again requested a 10-year permit. (At the time of the hearing of this appeal the Director had not yet made a decision whether to grant this application.)

16The appeal was heard on May 19-22, 25-26, 2015 and June 16, 2015 in Belleville, Ontario. In overview, the Appellant based its appeal on arguments that the PTTW should not have been issued because (1) the Permit Holder’s supporting documentation is inadequate and does not address the potential risks caused by the water taking; (2) the PTTW’s terms and conditions do not safeguard public and private interests; and (3) the PTTW should not have been issued based on the Permit Holder’s history of non-compliance.

17On June 26, 2015, the Tribunal allowed the Appellant’s appeal in part, with reasons to follow. The Tribunal amended the PTTW by reducing the volume of water that may be taken, increasing monitoring at the Site and requiring the Director to develop and include additional contingency, compliance and water conservation measures in the PTTW.

18These are the reasons for that decision.

Relevant Legislation and Rule

19Ontario Water Resources Act

0.1 The purpose of this Act is to provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use, in order to promote Ontario’s long-term environmental, social and economic well-being.

34 (1) Despite any other Act but subject to section 47.3 of the Environmental Protection Act, a person shall not take more than 50,000 litres of water on any day by any means except in accordance with a permit issued under section 34.1.

34.1 (1) The Director may, on application, issue or renew a permit for the purpose of section 34.

(7) A permit is subject to the terms and conditions that are prescribed by the regulations.

(8) A permit is subject to any other terms and conditions that the Director considers appropriate and that are specified in the permit.

(9) Without limiting the generality of subsection (8), the Director may include terms and conditions in a permit,

(a) limiting the amount of water that may be taken under the permit;

(b) limiting the rate at which water may be taken under the permit;

(c) governing the manner in which water may be taken under the permit;

(d) governing the return, after use, of water taken under the permit;

(e) governing the monitoring and reporting of,

(i) the amount of water taken under the permit, including amounts of water that are returned after use,

(ii) the rate at which water is taken under the permit,

(iii) the use of water taken under the permit, and

(iv) the effects of water takings under the permit, including their effects on water quantity and quality;

(f) governing the keeping of records with respect to the matters that are monitored and reported as described in clause (e);

(g) requiring reports referred to in clause (e) to be made to the Director, to other persons or both;

(h) governing the use and conservation of water taken under the permit, including requiring the holder,

(i) to implement specified measures to promote the efficient use of the water or reduce the loss of water through consumptive use,

(ii) to ensure that an audit is conducted by a specified person or body in order to evaluate whether the water is being used efficiently, and to provide the results of the audit to the Director, to other persons or both, or

(iii) to prepare a water conservation plan and submit it to the Director, to amend the plan if required by the Director, and to implement the plan;

(i) requiring the holder to restrict the amount of water taken under the permit, in the circumstances specified in the permit;

(j) requiring the holder to implement specified measures,

(i) to prevent the water taking under the permit from causing interference with other water takings, and

(ii) to remedy any interference with other water takings that is caused by the water taking under the permit; and

(k) requiring the holder to use specified laboratories or testing methods.

53 (1) Subject to section 47.3 of the Environmental Protection Act, no person shall use, operate, establish, alter, extend or replace new or existing sewage works except under and in accordance with an environmental compliance approval.

100 (10) Subject to sections 86, 101 and 102.1, a hearing by the Tribunal under this section shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.

Ontario Regulation 387/04

4 (2) The Director shall consider the following matters, to the extent that information is available to the Director, and to the extent that the matters are relevant to the water taking or proposed taking in the particular case:

1. Issues relating to the need to protect the natural functions of the ecosystem, including,

i. the impact or potential impact of the water taking or proposed water taking on,

A. the natural variability of water flow or water levels,

B. minimum stream flow, and

C. habitat that depends on water flow or water levels,

ii. ground water and surface water and their interrelationships that affect or are affected by, or may affect or be affected by, the water taking or proposed water taking, including its impact or potential impact on water quantity and quality, and

iii. the potential to restore the hydrologic conditions and functions of the source watershed.

2. Issues relating to water availability, including,

i. the impact or potential impact of the water taking or proposed water taking on,

A. water balance and sustainable aquifer yield, and

B. existing uses of water for large municipal residential systems and small municipal residential systems, both as defined in subsection 1 (1) of Drinking Water Systems, for sewage disposal, livestock and other agricultural purposes, for private domestic purposes, and for other purposes,

ii. low water conditions, if any,

iii. whether the water taking or proposed water taking is in a high use watershed or a medium use watershed,

A. as shown on the Average Annual Flow Map, or

B. as shown on the Summer Low Flow Map, and

iv. any planned municipal use of water that has been approved,

A. under a municipal official plan in accordance with Part III of the Planning Act, or

B. under the Environmental Assessment Act.

3. Issues relating to the use of water, including,

i. whether water conservation is being implemented or is proposed to be implemented in the use of the water, in accordance with best water management standards and practices for the relevant sector if these are available,

ii. the purpose for which the water is being used or is proposed to be used, including the amount of water that is or will be lost through consumptive use, and

iii. if the water is not currently being used, whether there is a reasonable prospect that the person will actually use the water in the near future.

3.1 Issues relating to the return, after use, of water, including,

i. the manner in which the water is being returned or is proposed to be returned, and

ii. the location or area to which the water is being returned or is proposed to be returned.

4. Other issues, including,

i. the interests of other persons who have an interest in the water taking or proposed water taking, to the extent that the Director is made aware of those interests,

ii. whether the water taking or proposed water taking is in compliance with,

A. the Boundary Waters Treaty of 1909, and

B. the International Boundary Waters Treaty Act (Canada), and

iii. any other matters that the Director considers relevant.

Issue

20The issue is whether the Tribunal should confirm, alter or revoke the PTTW based on the evidence presented at the hearing.

21In general terms, the Appellant argues that the Tribunal should revoke the PTTW on the grounds that the Permit Holder’s supporting documentation is inadequate, the PTTW’s terms and conditions do not safeguard public and private interests, and the Permit Holder has a history of non-compliance. Among other things, it argues that the Permit Holder should have:

• developed more accurate hydrogeologic models of the site and its surroundings;
• used pumping tests to determine the hydrogeological relationships among the aquifers;
• undertaken more comprehensive monitoring around the site and expanded monitoring to south of Blessington Creek; and
• included numeric triggers in the contingency plan.

22The Director and the Permit Holder disagree. They argue that the supporting documentation is adequate and that the Appellant has not put forward evidence of risk of unacceptable interference caused by the PTTW. Among other things, they argue that:

• further models are unnecessary as the PTTW’s monitoring program will generate more reliable hydrogeologic data;
• there is insufficient water in the vicinity of the Quarry to undertake accurate and reliable pumping tests and that such tests would therefore only be of academic interest;
• the existing monitoring array is comprehensive and Blessington Creek acts as a hydraulic barrier and therefore monitoring south of the Creek is unnecessary; and
• the existing triggers provide the public with a better ability to trigger the contingency plan than technical numeric triggers would.

23The Permit Holder argues that its supporting materials properly characterize the water and the hydrogeology of the area and that the PTTW was properly issued.

24The following sections review the evidence and submissions that were made by the parties on the issues arising in the appeal.

Evidence

Evidence of the Appellant

Susan Munro

25Ms. Munro is a founding member and Chair of the Appellant. She gave fact evidence on behalf of the Appellant. She has lived next to the Quarry for the past 18 years. She stated that none of the local properties or farms in the vicinity of the Quarry is serviced by a municipal drinking water system and all are dependent on private wells for drinking water, domestic uses, livestock watering and other agricultural purposes.

26Ms. Munro expressed her view that most of the local domestic wells draw water from the shallow overburden aquifer and said there may be no other viable source of potable water in the area if those wells become unusable. She expressed her view that the water in the deep aquifer is unpotable and would be expensive or difficult to treat for drinking water purposes.

27Ms. Munro described the Appellant’s efforts to participate in decision making regarding the water taking at the Quarry, including through correspondence and meetings with the Permit Holder, the Director, Tyendinaga Township, Hastings County, Quinte Conservation, and others. She said those efforts did not result in much progress. She reviewed the Appellant’s concerns, including the potential interference with local groundwater resources and private wells and the potential impacts on local environmental features and ecological functions, including Blessington Creek.

28Ms. Munro expressed her views regarding the Permit Holder’s past compliance with environmental requirements. She said that she believes the Permit Holder dewatered the Quarry without a PTTW for over six years and discharged waste water without an ECA until 2013. She stated that she understands that the Permit Holder has also contravened setback and fencing requirements in its ARA site plan and has contravened annual monitoring reporting requirements and water taking volume limits under the PTTW. She stated that no MOECC enforcement actions have been taken against the Permit Holder to date.

29Ms. Munro stated that on March 31, 2014, representatives of the Appellant, along with the Appellant’s hydrogeologists, John Pyke and Steven Rose, met with the Director’s staff to discuss concerns regarding a draft of the PTTW and gaps in the supporting documentation. She said that the Appellant questioned the volume of water to be taken, recommended that a cumulative impact study should be undertaken and urged that the PTTW should include financial assurance provisions.

30Ms. Munro expressed concerns regarding the proposed Melrose Quarry for which the Permit Holder is in the process of applying for an ARA licence from the Ministry of Natural Resources and Forestry (“MNRF”). The proposed quarry would lie immediately adjacent to Long’s Quarry. Ms. Munro stated that the Appellant is concerned that the Permit Holder will manage water that accumulates at the proposed Melrose Quarry by directing it to Long’s Quarry and discharging the water from both quarries through the existing discharge point leading into Blessington Creek. She stated that correspondence from the Director and MNRF appears to confirm this and that adequate studies on the impacts of this have not been undertaken.

Stephen McLennan

31Mr. McLennan gave fact evidence on behalf of the Appellant. He stated that for the past 64 years, he has lived on a farm located 3.5 kilometres from the Quarry. He said low yield domestic-use wells in the area are common and expressed the view that the PTTW may adversely affect the quality and quantity of water in those wells. He said he has voiced his concerns regarding the PTTW to the Director and Director’s staff on several occasions.

32Mr. McLennan produced aerial photographs of the Quarry and its vicinity, which he took in April 2014. He stated that the photographs depict conditions, structures and features of the Quarry and the surrounding area.

John Pyke

33Mr. Pyke was qualified by the Tribunal as “an expert to give opinion evidence in environmental geoscience and hydrogeology”. He described the low yield and vulnerability of the shallow aquifer and aquitard, raised concerns regarding the adequacy of the Permit Holder's supporting documentation regarding the PTTW, including its monitoring program, proposed contingency measures, and structural geology investigation and discussed his concerns regarding the volume of water to be taken.

34Mr. Pyke opined that:

• the water taking should be characterized as moderate to high risk due to proximity to domestic wells and Blessington Creek;
• local groundwater and surface water interactions are poorly understood;
• the Permit Holder’s site conceptual model is incomplete, inconsistent and inadequate and does not reflect or describe the hydrogeological setting of the Quarry;
• the PTTW’s terms and conditions are inadequate to safeguard environment and domestic wells; and
• there is a lack of a proper contingency plan despite that the deep aquifer is poor quality and cannot provide suitable water to residents.

35Mr. Pyke’s evidence focused on alleged interference with private wells, impacts to groundwater and surface water, the volume of the water takings, uncertainty over whether Blessington Creek is a hydraulic barrier, concerns that there is a disconnect between the PTTW and the ECA, and concerns that the Permit Holder’s structural geology investigation and the PTTW’s monitoring program and contingency measures are inadequate.

(a) Interference with private wells

36Mr. Pyke stated that dewatering has “the clear potential to cause unacceptable or significant impacts” to local wells. He stated that in 2011 the Ministry raised significant concerns regarding interference with private wells and recommended that an improved groundwater model should be prepared, but that this has not been acted upon. He said the Ministry also recommended that the Permit Holder’s groundwater model should not be based on steady-state assumptions, but take into account seasonal and other variations and scenarios.

37Mr. Pyke stated that the Permit Holder’s claims that the dewatering will not cause adverse impacts have not been adequately substantiated by scientifically sound investigations and appear contrary to the Permit Holder’s own modelling which predicts impacts on nearby domestic wells. Mr. Pyke stated that based on the Permit Holder’s modelling data, there could be drawdowns of 6.3 m in wells in the vicinity of the Quarry, which would be significant, especially as the water levels in the region are highly vulnerable and given the thin nature of the shallow aquifer. He said the Permit Holder should assess the water taking’s impacts on a well-by-well basis.

38He stated that the models do not reflect reality and need to be improved so that there is a good foundational basis and understanding of what is hydrogeologically taking place. He stated that data must be collected and applied to the model for a long period of time and then assessed.

(b) Impacts to groundwater and surface water

39Mr. Pyke stated that the dewatering interrupts the natural function of Blessington Creek to support base flows and associated ecological functions. He stated that the nature, extent, duration and magnitude of the potential direct and cumulative impacts of dewatering upon the quantity and quality of groundwater and surface water have not been adequately identified or assessed in the Permit Holder’s supporting documentation. He said the Quarry intercepts precipitation and instead of storing and then releasing the water over time, it promptly discharges it through dewatering, thus preventing recharge in the summer. He stated that this disrupts the hydrological cycle. He said that if the Quarry did not exist, local groundwater would flow into Blessington Creek, instead of into the Quarry.

40He opined that there may be a hydrogeological connection between Blessington Creek, the shallow aquifer, surface water, and the Quarry. Mr. Pyke stated that this possible connection could be most effectively delineated by undertaking pumping tests. He said the Permit Holder conducted bail tests, which only provide data for the immediate vicinity close to the test site and does not provide a bulk view of the aquifer. He stated that pumping tests would provide comprehensive data regarding the shallow aquifer, its boundaries, and how the creek bed sediments interact with the shallow aquifer. Mr. Pyke stated that conducting pumping tests would reduce many of the data gaps concerning the hydrogeology in the area. He said these tests are technically feasible and it would be prudent to do them.

41He stated that water conservation measures have not been addressed to decrease surface run-off into the Quarry. Mr. Pyke suggested snow trucking as a water conservation measure and said tile drains in neighbouring fields could also be altered to reduce water flows into the Quarry.

42Mr. Pyke agreed under cross-examination that the Quarry has been excavated below the shallow aquifer for over a decade, but noted that there remains uncertainty as to whether the impacts have been properly characterized. He said impacts do not happen instantaneously and a state of equilibrium may not yet have been reached. Stating that the environment is dynamic and all impact scenarios have not been assessed, including severe drought or wet conditions, he said substantive data is needed on a year-to-year basis to assess how dewatering affects the natural system.

43Mr. Pyke stated under cross-examination that when water sits in the Quarry it does not interact with the shallow aquifer, but when it is removed and goes back into the natural regime, it does. He said the predominant impact comes when the water is drained out and the natural water cycle is short-circuited.

(c) Volume of the water takings

44Mr. Pyke stated there has been insufficient justification for the proposed water taking volume and the PTTW’s removal of seasonal restrictions on enhanced water takings. He stated that the volume of the water taking is much higher than what the Permit Holder’s model stated is necessary. He also expressed concern that the PTTW may also include dewatering of the proposed Melrose Quarry as well.

(d) Blessington Creek as a hydraulic barrier

45Mr. Pyke stated that the Permit Holder’s claims that Blessington Creek serves as a hydraulic barrier to dewatering impacts south of the Quarry has not been adequately substantiated by the Permit Holder’s documentation. He said the Permit Holder’s monitoring data shows one result and its model predicts something different in terms of whether groundwater flows to the Creek. He stated that performing pumping tests would resolve this issue.

(e) Disconnect with the ECA

46Mr. Pyke stated that there is a discrepancy between the PTTW’s enhanced water takings and its ECA for sewage works. He said the Permit Holder is allowed to dewater more during certain times of the year than it is allowed to discharge under the ECA and that this disconnect must be addressed.

(f) Structural geology investigation

47Mr. Pyke stated that the Permit Holder’s structural geology investigation required under the PTTW did not produce the types of information and data needed to fully describe baseline conditions, to assess the risk of additional pop-ups in the Quarry floor, or to predict, with a high degree of confidence, that dewatering activities will not cause any unacceptable or significant environmental impacts. He said the structural geology investigation does not provide the data needed to assess the risk of pop-ups and environmental impacts. He stated that the groundwater flow in the aquitard is through fractures in the rock, which can be difficult to assess and may not have been adequately addressed. Regarding the risk of pop-ups, Mr. Pyke stated that if a pop-up were to intersect the deep aquifer, the poor quality water in that aquifer might rise under artisan pressure and mix with other groundwater. He stated that the impacts of such a scenario need to be assessed. He said the investigation solely provides a geologic interpretation of flow patterns and that a hydrogeologic assessment using pumping tests is needed to fully evaluate the situation. He stated that although monitoring wells have been drilled, there is no guarantee that they intersect the preferential flow pathways in the area. He said these wells may also act as a sump for the area and provide misleading results. Based on the results of the investigation, Mr. Pyke stated that the risk of pop-ups is less than previously thought, but the consequences of a pop-up must still be better evaluated.

(g) Monitoring program

48Mr. Pyke stated that the PTTW’s monitoring program requirements are inadequate, unduly limited in geographic scope, and lack sufficient detail regarding triggers, parameters, and methodology. He stated that there needs to be a base characterization of the hydrogeology of the area and then the setting of a robust monitoring program that validates or refutes the characterization. He stated that the monitoring program should be integrated with the ECA’s monitoring program and that a standard methodology should be used so that it can be repeated and evaluated. He added that the program should be adaptive to changing circumstances, require the engagement of qualified persons, require immediate reporting of impacts, and be updated annually.

(h) Contingency measures

49Mr. Pyke stated that the PTTW’s contingency measures are insufficient to detect, mitigate or remediate the effects of dewatering upon groundwater or surface water, particularly since there are no identified alternative local sources of potable groundwater in the event that the dewatering adversely affects the quantity or quality of the shallow aquifer. He stated that many of the contingency plan’s triggers are too vague and/or subjective and that numeric triggers should be used.

50Under cross-examination, Mr. Pyke described the subjectivity in the triggers and noted that domestic well users may not be aware of the conditions under which the contingency plan is triggered. He also expressed concerns that the MOECC may not be notified promptly when the plan is triggered. He said the MOECC should be engaged in the investigation of trigger events.

Evidence of the Director

Robert Holland

51Mr. Holland was qualified by the Tribunal to give opinion evidence as an expert in hydrogeology. He stated that he has worked as a hydrogeologist for the MOECC since 1990. He said he was assigned by the Director to review the PTTW renewal application and that he recommended the renewal application’s approval.

52Mr. Holland stated that the purpose of the MOECC’s PTTW program is to ensure the conservation, protection and wise use and management of the waters of Ontario in line with the objectives of the OWRA. He said all PTTW applications are reviewed to determine whether they meet the requirements of the OWRA and Ontario Regulation 387/04 on water taking (the “Regulation”), and align with the MOECC’s Statement of Environmental Values (“SEV”). He stated that the Permit Holder’s PTTW renewal application was approved after taking into account these documents.

53Mr. Holland said the overarching principles that are embodied in the above-mentioned documents are set out in the MOECC’s Permit To Take Water Manual (the “PTTW Manual”). He stated that these overarching principles include:

(a) the MOECC will use an ecosystem approach that considers both water takers’ reasonable need for water and the natural functions of the ecosystem;

(b) water takings are controlled to prevent unacceptable interference with uses of water, wherever possible, and to resolve such problems if they occur;

(c) the MOECC will employ adaptive management to better respond to evolving environmental conditions;

(d) the MOECC will consider the cumulative impacts of water taking; and

(e) the MOECC will incorporate risk management principles into the permit application/review process.

54He also reviewed the MOECC’s Technical Guidance Document for Category 3 PTTW Applications, dated April 2008 (the “Technical Guidance Document”) and its concepts and definitions that help guide the process, including the definition of “unacceptable impacts”. He elaborated on how the above-noted overarching principles were applied in this case.

(a) Ecosystem Approach

55With respect to the application of the ecosystem approach, Mr. Holland stated that the Director recognised the Permit Holder’s reasonable needs as well as those of water users and the ecosystem by, among other things, ensuring that there are no adverse impacts to Blessington Creek. Mr. Holland stated that pursuant to s. 4 of the Regulation, he considered during his review of the renewal application the need to protect the natural functions of the ecosystem, issues related to water availability, issues relating to water use, and other issues. He stated that the PTTW requires the installation of groundwater monitoring wells to assess the extent of hydraulic connection between the Quarry and Blessington Creek and stream gauges are required to be installed in the Creek to monitor and protect the natural functions of the ecosystem. He stated that to protect local water well supplies, the PTTW requires a structural geology investigation to explain anomalies in past water readings observed at monitoring wells P-3 and TW-7b in which water levels varied unexpectedly.

56Mr. Holland stated that in his technical evaluation of the PTTW application, he assessed the complexity as moderate to high due to the questionable contingency aquifer (i.e. the deep aquifer), the relationship of the Quarry to nearby wells, and interactions between groundwater and surface water. He stated that since writing that evaluation, the interactions of surface water and groundwater are better understood, but due to the lack of a contingency aquifer, the shallow aquifer and nearby wells must be adequately protected through contingency plans.

57Mr. Holland stated that based on his review of the PTTW renewal application, he concluded that:

• since the Quarry has been excavated below the level of the shallow aquifer for many years, groundwater levels have generally stabilized in that aquifer;
• the water entering the Quarry is from the shallow aquifer, precipitation and snowmelt, with little, if any, seepage from the aquitard;
• as surface water monitoring data from Blessington Creek show no signs of it being drained by the Quarry and groundwater data from monitoring wells show no signs of significant drawdown associated with the dewatering, the dewatering is not having a significant impact on the Creek;
• groundwater monitoring shows that “dewatering by seepage of the shallow aquifer and aquitard does not extend to the Blessington Creek” and that there is not a significant hydraulic connection between the Quarry and the Creek;
• Blessington Creek is a hydraulic barrier to the shallow aquifer as groundwater discharges to it, but it is not a hydraulic barrier to the aquitard or the deep aquifer;
• surface water monitoring results in the Creek show that the Creek gains water as it goes downstream and is thereby not being significantly affected by the Quarry; and,
• the discharge of the Quarry’s water to the seasonally dry Blessington Creek may benefit the Creek.

58Mr. Holland stated that there are limitations to the effectiveness of any model, noting that they have parameters that may not allow for a greater understanding of the hydrogeology of the area. He said there is no substitute to having a “good solid monitoring array”. He stated that applications for new quarries rely on estimates and modelling data and, if they are approved, must verify that the estimates are correct by supplying monitoring data on their operations over time. He stated that for existing quarries, if most of the impact has already occurred and groundwater levels are relatively stable, the Director looks at monitoring data as the priority.

59Regarding pumping tests, Mr. Holland stated under cross-examination that the Permit Holder’s monitoring data shows the relevant hydrogeological conditions in the area and there is no reason to require pumping tests. He said the monitoring wells located between the Quarry and the Creek adequately show the relationship between them. He said monitoring seepage and groundwater levels provides a higher level of understanding than a pumping test would provide. He said in addition that there is insufficient water available to make pumping tests in this case work properly and that the results would likely be inaccurate.

(b) Interference with existing uses of water

60In his technical assessment of the PTTW application, Mr. Holland stated that there was a moderate to high risk that the water taking may cause unacceptable impacts to sensitive receptors in the area due to the close proximity of the water taking to those receptors and based on the comments from past reviewers. Mr. Holland stated that he recommended at the time of the technical assessment that a structural geology investigation should be undertaken to better understand the geology in the area and that the PTTW should only be renewed for one year so that the investigation could be completed and analyzed before dewatering is continued for a longer term. He said the structural geology investigation and diamond core drilling project have now addressed these concerns.

61He said the geologic setting at the Quarry can be subject to vertical faulting and that the situation is complex. Mr. Holland testified that he had concerns regarding the possible presence of a fault running in a northeast to southwest near the Quarry. He stated that the PTTW application did not provide a satisfactory explanation for fluctuations in groundwater levels and what role, if any, a fault plays in those fluctuations. He stated that the one-year renewal of the PTTW and PTTW’s requirement that the Permit Holder conduct a structural geology investigation were required to determine whether a fault may have caused the anomalous reading of groundwater levels at wells P-3 and TW-7b.

62Mr. Holland’s evidence was that the likelihood of future pop-up events is “less than first thought as the strata subject to shallow buckling is very limited in depth and not thought to be well connected to the bedrock aquifer” and that the structural geology investigation shows that anomalous water level readings in 2012 (that showed unexpectedly variable water levels) were not likely related to deep groundwater and that groundwater levels are stable.

63Mr. Holland stated that seepage of the shallow aquifer into the Quarry began when it was intersected years ago and that the lowering of groundwater in this aquifer has stabilized. He said that the aquitard extends 14 m below the Quarry floor and that water in the aquitard is confined and generally yields little water. He concluded that further quarrying at the site poses little threat to the shallow aquifer.

64He stated that groundwater levels are generally stable in the aquitard and dewatering impacts on groundwater contained in the aquitard and on existing drilled wells are highly unlikely. He said he ensured that a contingency plan existed to address any unforeseen interference with existing uses and water users. Mr. Holland stated that he considered requiring water conservation measures, but found that although a water-use audit might be useful, there were few opportunities for conservation measures due to the non-consumptive nature of the dewatering.

65Regarding drawdown, he stated that there is no data that depicts the drawdown on individual wells, although acquiring such data was recommended by the MOECC in 2011. He noted that some well owners may not wish to have such an analysis done on their private wells.

(c) Adaptive management

66Mr. Holland said the PTTW uses adaptive management through its monitoring provisions and requirements for the development of necessary actions based on new information as it emerges.

67Mr. Holland stated that he reviewed the Permit Holder’s monitoring data, the ECA and potential effects on other groundwater users. He said that the Quarry has a more extensive monitoring system than most quarries of its size and that no impacts have been found and no complaints from neighbouring users have been received.

68He noted that the Permit Holder’s 2005 PTTW application had been denied by the Director in part due to uncertainty regarding the risk of pop-up events. He stated that based on the information before him, the risk of a significant pop-up event now appears small. He said if a pop-up did occur, there is insufficient pressure for water from the deep aquifer to interact with water in the shallow aquifer. Mr. Holland stated despite these findings, he required the Permit Holder to conduct a structural geology investigation to determine the cause of anomalous groundwater readings in 2012; to provide an additional year of groundwater monitoring data to assess whether any further anomalous readings occur; and to determine whether vertical structures such as faults exist, which may clarify the risk of future pop-up events that may impact local water users and the environment.

69Mr. Holland said the Permit Holder’s structural geology investigation and diamond core drilling project confirmed the competency of the rock and indicated that the anomalous well readings were likely due to transcription errors.

70Mr. Holland stated that the adaptive management approach is reflected in the additional monitoring wells that he required to be drilled between the Quarry and the Creek subsequent to the issuance of the 2012 PTTW. He said data from these wells has confirmed the Permit Holder’s findings. He stated that the data showed that water does not flow from the Creek to the Quarry and that there is not a significant hydraulic connection between the Quarry and Blessington Creek in the shallow aquifer.

(d) Cumulative impacts

71Mr. Holland stated that based on the relevant criteria in the PTTW Manual, the need for a cumulative impacts study was not triggered. He stated that there have not been significant groundwater declines in the area of the Quarry, low water conditions have not been declared, the watershed is not classified as a high or medium water use area for summer flow, and there is not a high density of permitted water takings in the area of the Quarry. He said he also considered data from the MOECC’s Groundwater Monitoring Network in deciding not to recommend a cumulative impact study.

(e) Risk management principles

72Regarding risk management issues, Mr. Holland focused on the Appellant’s concerns regarding the adequacy of the Permit Holder’s modelling of the site as a risk management tool. Mr. Holland stated that mathematical models are generally used for new quarries to predict their zone of influence and that the determination of dewatering impacts of an existing quarry generally relies on actual groundwater monitoring to assess the likelihood of groundwater interference. He stated that with the pre-existing quarry at the site, monitoring is a more reasonable and accurate means of assessment than modelling. Mr. Holland stated that due to the fact that the Quarry is near the end of its life and will not be excavated to lower depths, the maximum amount of impact is presently being experienced. He stated that in these circumstances, monitoring data is relevant and modelling data is not as important.

73Regarding the PTTW’s contingency plan and the Appellant’s comments that it is not sufficiently adaptive, Mr. Holland stated that every PTTW has standard conditions to address interference, providing mechanisms so that interference complaints can be addressed. He stated that this system has been effective in resolving issues at quarries in the past. Regarding the Appellant’s call for numeric triggers in the contingency plan, Mr. Holland stated that such triggers can be effective, but may restrain the public from making complaints and triggering the plan’s measures, if they do not understand the triggers.

Gillian Dagg-Foster

74Ms. Dagg-Foster was the Director at the time of the PTTW’s issuance. She gave fact evidence. She described the conditions in the PTTW and how she applied the considerations set out in the Regulation, the SEV, and the PTTW Manual. She reviewed the PTTW history at the Quarry and her consultations with the Appellant. She stated that the MOECC has received no complaints of well interference in the area and that based on three years of monitoring, groundwater levels appear stable. She then described the factors that were taken into account when the PTTW was issued, including the protection of natural functions of the ecosystem, water availability, water use, cumulative impacts, adaptive management, and contingency planning.

(a) Protection of natural functions of the ecosystem

75Regarding the natural functions of the ecosystem, Ms. Dagg-Foster stated that impacts in water quality and quantity in Blessington Creek have been monitored and no impacts have been observed or are anticipated over the lifespan of the PTTW. She expressed her view that the discharge of water back into the Creek, as required by the ECA, ameliorates the impacts of the water taking. She stated that surface water monitoring of the Creek provides further safeguards to ensure that any impacts are detected before they become significant. She expressed her view that these monitoring and reporting requirements aid in preventing any potential adverse impacts and that extensive monitoring shows that Blessington Creek is not losing water to the Quarry. Based on this, she stated that she understood that the quantity and quality of the water in the Creek is not adversely affected by the water taking. However, she stated that any disconnect between the PTTW and the ECA should be addressed by the Permit Holder.

76Ms. Dagg-Foster stated that she reviewed all aspects of the environment likely to be affected by the water taking and expressed her view that issuing the short-term PTTW would not result in significant harm to the environment.

(b) Water availability

77With respect to water availability, Ms. Dagg-Foster stated that neighbouring wells are being monitored and that no impacts have been observed or are anticipated over the lifespan of the PTTW. She said on-site monitoring is designed to detect any adverse impacts before they appear off-site and that if off-site adverse impacts occur, contingency measures will be triggered. Ms. Dagg-Foster expressed her view that although the area in the vicinity of the Quarry “can be poor in terms of providing good quality water of sufficient quantity”, she did not expect the dewatering to cause any substantive interference with neighbouring well supplies.

78Ms. Dagg-Foster stated that the quantity and timing of dewatering in response to precipitation events do not need to be restricted and that there would be no change through the issuance of the PTTW to the net volume of groundwater taking in comparison to previous years.

79Regarding drawdown, she stated that she was not aware of the degree of impact to each neighbouring well as a result of drawdown, but noted that she did not expect any changes in conditions and said there is no evidence of any well interference in the past.

80Regarding pop-ups, she expressed her view that stopping water taking will not stop pop-ups from happening if quarrying continues.

(c) Water use

81Regarding the volume of water that is permitted to be taken, Ms. Dagg-Foster stated that the Permit Holder is allowed to take more water than it needs, providing flexibility in case there is a large rainfall event. She stated that the PTTW must be practical and allow the Permit Holder to empty the Quarry when there is a large rainfall event.

82Regarding the consideration of water conservation measures, Ms. Dagg-Foster stated that quarry operators by their nature do not aim to conserve water as their intent is to dewater the site to allow for safe working conditions. She stated that the Permit Holder is not, for the most part, a consumptive water taker and that the removed water, apart from water used for dust control and domestic use, is discharged back into the environment. She stated there were not many options for water conservation at the Quarry and questioned whether such considerations were relevant.

(d) Cumulative impacts

83Regarding consideration of the need for a cumulative impact study, Ms. Dagg-Foster expressed her view that although there is drawdown from the Quarry, it does not overlap with those of neighbouring homes. She stated there are no cumulative impacts to users to be studied. She said any drawdown that has been experienced occurred decades ago and that groundwater levels are now in a steady-state condition.

84Ms. Dagg-Foster expressed her view that water takings from neighbouring private wells are not of sufficient volume to cause significant cumulative impacts and stated that the MOECC’s technical assessment found that the water taking for the duration of the Permit would not cause interference with water availability to those private wells. She stated that concerns regarding the impacts of the proposed Melrose Quarry have no bearing on the decision to renew the PTTW for the Long’s Quarry as the Melrose Quarry application is pursuant to different legislation and no application for a PTTW for Melrose Quarry has been submitted. Ms. Dagg-Foster stated that she did not consider the estimated impacts of the proposed Melrose Quarry when she reviewed the application. She stated that if the Melrose Quarry were approved and dewatering is necessary, the Permit Holder would need to apply for a new PTTW. She stated that the Permit Holder is not permitted to dewater the proposed Melrose Quarry using the Long’s Quarry PTTW.

(e) Adaptive management

85Ms. Dagg-Foster stated that the PTTW incorporates the concept of adaptive management as it requires ongoing monitoring and investigative work, the results of which can be used to develop future enhanced terms and conditions.

(f) Contingency Plan

86Ms. Dagg-Foster stated that if impacts are detected, contingency measures must be immediately implemented or the water taking reduced or stopped. She stated that the Director may amend the PTTW to accommodate changing conditions, if necessary.

87Ms. Dagg-Foster stated that the Permit Holder dewatered the Quarry from 2005 to 2011 without a PTTW or an ECA to discharge the water until 2013. She stated that although the Permit Holder has had compliance issues in the past, she found there was no need for special compliance conditions to be imposed in the PTTW.

88Ms. Dagg-Foster stated that she considered the risks posed by the Quarry over the one-year period of the PTTW and found that they were low and did not justify the imposition of a financial assurance requirement. She stated under cross-examination that financial assurance should be considered if the PTTW is being requested for a 10-year term, but that for a short-term period where the risks are low, financial assurance is not needed.

Evidence of the Permit Holder

Brian King

89Mr. King was qualified by the Tribunal to give opinion evidence in the areas of geology and hydrogeology.

90He stated that he has done extensive hydrogeological and environmental studies of the Quarry and its surroundings and that based on these studies and investigations, he has found that:

• the water takings under the PTTW will not cause impacts to private wells relying on the shallow aquifer as drawdowns on these wells occurred decades ago when the Quarry initially intersected the shallow aquifer. He said those effects have stabilized and the continued dewatering has no ability to cause any further effect;
• the water taking has an insignificant risk of impacting private wells relying on the aquitard as the aquitard consists of highly competent limestone strata with few water bearing features. He said monitoring wells in the aquitard show water levels above the floor of the Quarry indicating that is no hydraulic connection between the Quarry and the aquitard;
• the PTTW will not impact private wells relying on the deep aquifer. He stated that there is only one known well using this aquifer and it is used by the Permit Holder. He said that as the deep aquifer is 14 m below the Quarry floor and is highly competent, there is neither a risk of fracturing nor pathways for groundwater movement;
• the bedrock is highly competent and 14 m thick. Based on this, he opined that the risk of a pop-up event at the Quarry that would intersect the deep aquifer is “so theoretical as to be practically impossible”; and,
• Blessington Creek is isolated from the limestone of the Quarry and is unaffected by dewatering activities and there is little, if any, potential for hydraulic connection between the Quarry and the Creek. He said monitoring data and observations show that the flow of shallow groundwater is primarily from the Quarry towards the Creek and that any impact occurred decades ago. He opined that continued dewatering “cannot have any further impact on shallow groundwater flows and therefore the Creek will not be affected”.

91Mr. King opined that the nature of dewatering is well understood and documented. He stated that the primary source of the water in the Quarry is precipitation and there is no significant amount of groundwater in the Quarry. Mr. King stated that precipitation must be removed to permit quarrying and that the magnitude of dewatering under the PTTW is largely irrelevant as the water removed generally does not exceed the volume of precipitation.

92Mr. King described the site and the modelling, mapping, monitoring and other work that he has done regarding it. He reviewed the geologic layers underneath and surrounding the Quarry and stated that the soil and bedrock are all of low permeability, noting that the aquitard in particular has very little hydraulic conductivity.

93During his testimony, Mr. King discussed the impacts of the water taking on the shallow aquifer, the aquitard, the deep aquifer, and Blessington Creek. He also addressed the modelling that has been undertaken regarding the Quarry and the adequacy of the PTTW’s monitoring program and contingency plan.

(a) The shallow aquifer

94Mr. King stated that the shallow aquifer is the primary water supply source for well users in the area around the Quarry. He reviewed water contour maps stating that the contours show the water levels in the aquifer and demonstrate the drawdown cone and other effects of the Quarry on water levels. He stated that monitoring records show that the water levels in the vicinity of the Quarry have been static for years. He said dewatering in the Quarry has no effect on the shallow aquifer and that seepage will continue until dewatering at the Quarry is stopped and the Quarry is filled with water.

95Regarding groundwater seepage into the Quarry from the shallow aquifer, Mr. King stated that visual observations of the Quarry walls are regularly conducted. He stated that his review of the volume of water removed and statistics on the amount of precipitation shows that the dewatering is less than the amount of rain received. He stated that the difference is from evaporation as well as infiltration and recharge into the aquitard.

96Regarding the Appellant’s argument that pumping tests are needed at the site, Mr. King stated that there is insufficient groundwater available in the vicinity of the Quarry to make such tests practical or useful. He stated that the monitoring data available regarding the groundwater and surface water conditions at the site provides the most accurate and useful data for determining the hydrogeological and surface water conditions in the area. Mr. King stated that seepage occurs because there is a Quarry, not because of the dewatering. He said that further studies would be of academic interest but of no practical value as there is nothing that could be done with the information once it is obtained. He stated that he is very confident about his findings and that several years of data show the same results consistently.

97He said that continued quarrying will have no impact on neighbouring wells as the quarrying will be taking stone out of the aquitard and has no link to the shallow aquifer from which the neighbouring wells draw their water. He said there is a sufficient number of monitoring wells in place to give a good indication of how groundwater flows in the area.

98Regarding Mr. Pyke’s opinion that dewatering has a clear potential to cause unacceptable or significant impacts to local domestic wells and Blessington Creek, Mr. King stated that there is no potential for impacts as the water taking is unrelated to the shallow aquifer or to wells in the aquitard or deep aquifer. He said there will be no additional impacts and no additional data is needed.

99With respect to Mr. Pyke’s opinion that potential direct (and cumulative) impacts of quarry dewatering upon the quantity and quality of groundwater and surface water have not been adequately identified, Mr. King stated that his multiple years of observation and sampling is enough to formulate a dependable opinion that the water taking will not result in impacts.

100Concerning Mr. Pyke’s opinion that there is insufficient justification for the proposed volume of water taking, Mr. King stated that the dewatering is a water management issue and not a water consumption issue and that the goal is to remove the water in order to allow safe quarrying at the site. He stated that the amount of water to be pumped depends on the amount of rain received and whether it is a high or low number, it does not matter. He stated that restricting higher levels of pumping to the spring season ignores that there could be extreme rainfall events during other seasons.

101Regarding water conservation measures, Mr. King stated under cross-examination that a water use audit would reconcile the amount of water that is pumped out with what goes in. He stated that if an audit found an imbalance that cannot be explained, then it would indicate that there are groundwater inputs or there is an error in a meter. He stated that the water taking for dust suppression could be audited for its efficiency in its use of water as could tile drains in lands adjacent to the Quarry.

(b) The aquitard

102Mr. King stated that the aquitard is of a low permeability. He said there is water in the aquitard but that its water-bearing components are not well-interconnected. He stated that a pumping test was attempted on monitoring well W-5a, but was not successful. He stated that in addition to the structural geology investigation, the Permit Holder undertook the diamond core drilling project. He said the Permit Holder’s diamond core drilling project included the drilling of nine holes, three of which tested the competency of the rock below the Quarry’s floor to test for the likelihood of pop-ups and the other six investigated the subsurface conditions between the Quarry and Blessington Creek and interactions between the Quarry and the Creek. He said the results show that the aquitard rock is very competent and there is very low groundwater connectivity in the aquitard. He said that fractures in this zone have been naturally cemented shut and there are few conduits for groundwater to flow. He stated that the absence of seepage from the aquitard into the Quarry further confirms the competency of this zone. He also stated that water in well TW-3, which lies only metres from the Quarry’s edge, shows no signs of losing water to the Quarry. Based on these findings, he opined that the aquitard is not an active part of the hydrogeologic regime in the area.

103Regarding pop-ups, he said the 1994 pop-up event was insignificant and that any future pop-ups would not go further than 0.6 m below the Quarry floor. He noted that the deep aquifer lies 14 m below the Quarry floor, so the risk of breaching it is low. He opined that a pop-up event reaching the deep aquifer is a theoretical concept and there may be pop-ups but they will have no adverse impacts. He added that dewatering will have no effect on pop-ups.

(c) The deep aquifer

104Mr. King stated that the Permit Holder’s diamond core drilling project provided new data and understanding regarding the deep aquifer. He stated that it showed that the deep aquifer is low yield and has highly mineralized water. He said the deep aquifer is very narrow and is essentially a crack in the rock with a thickness varying between 1 to 10 centimetres. He said two wells were drilled into the deep aquifer, which confirmed these findings. He opined that with the low yield in the deep aquifer, doing pumping tests would be impossible. He said the Permit Holder’s office washroom is supplied with non-potable water from the deep aquifer, which has allowed the Permit Holder to closely monitor how the deep aquifer behaves. Based on this, he said if the deep aquifer were tapped, it would produce “so little water that it would be a non-event”.

(d) Blessington Creek

105Regarding Blessington Creek, Mr. King stated that the rock between it and the Quarry is constituted by low permeable materials, which yield little groundwater. He stated that the little water that does flow in this area flows gradually toward the Creek. He stated that the groundwater levels there are stable and it is a fairly stagnant system. He stated that this is confirmed by the fact that the Creek is not a cold water creek, indicating that it is not significantly supplied by groundwater. He said he concluded that there is no risk of impact on Blessington Creek from dewatering the Quarry and that the Creek is isolated from the Quarry.

106Mr. King stated that performing pumping tests in this area would not be possible as the hydraulic conductivity is so low that such a test would not work. He stated that slug tests were instead conducted, the results of which were consistent with low permeability.

107Regarding the anomalous well readings in 2012, Mr. King stated that the wells in question were inspected and a forensic assessment showed that the anomalies were likely caused by transcription errors and a broken meter. He stated that two new monitoring wells were also drilled nearby and added to the PTTW’s monitoring program. He stated that since the time of the anomalies, the data from these wells have reflected stable water levels.

108With respect to whether monitoring wells are needed on the south side of Blessington Creek, Mr. King stated that there is no risk to private wells south of the Creek from dewatering or quarrying. He stated they lie in a separate flow regime and that the Creek is a water boundary into which water flows.

109Regarding Mr. Pyke’s opinion that there is insufficient data to show that Blessington Creek serves as a hydraulic barrier to dewatering impacts south of the Quarry, Mr. King stated that there is enough data from boreholes and monitoring wells to understand the hydrogeologic regime and to confirm that areas to the south of the Creek are separated from the Quarry.

(e) Modelling

110With respect to modelling, Mr. King stated that he has prepared analytical models regarding the Quarry focussing on the aquitard under a worst case scenario for risk assessment purposes and all three layers including the shallow aquifer, aquitard and deep aquifer under real world conditions. He stated that monitoring data is more reliable than modelling predictions. Mr. King stated that models are only as good as the data that is put into them and use of monitoring data for an existing quarry, such as Long’s Quarry, should be the priority.

(f) Monitoring and contingency planning

111Regarding Mr. Pyke’s opinion that the monitoring program is inadequate, Mr. King stated that the program is extensive compared to monitoring at other quarries. Mr. King stated that due to the extensive number of monitoring wells and holes that have been drilled, he is confident that he did not miss any key aspects of the hydrogeology of the area.

112Regarding Mr. Pyke’s opinion that the contingency measures are insufficient, Mr. King stated that there are a limited number of contingency measures that are available due to the absence of a viable alternative potable aquifer. He stated that the triggers are based on common sense and in plain language so that people can understand them. He said they allow private well owners the ability to report concerns if they identify something unusual or have a loss of water. He stated under cross-examination that the triggers could be both in plain English and also numeric. He added that the plan could be amended quite easily to include numeric triggers.

Submissions

Submissions of the Appellant

113The Appellant argued that the three main issues on the appeal are (1) the Tribunal’s legal authority on the appeal; (2) the law and policy framework; and (3) whether the Director should have issued the PTTW.

114The Appellant stated that under s. 100(10) of the OWRA, the Tribunal has a broad scope of authority for addressing the appeal. The Appellant stated that the appeal is a de novo hearing at which the Tribunal may confirm, alter or revoke the action of the Director and may direct the Director to take such action as the Tribunal considers the Director should take in accordance with the OWRA and its regulations. The Appellant submitted that the Tribunal may substitute its opinion for that of the Director.

115Referring to Trent Talbot River Property Owners Association v. Ontario (Director, Ministry of the Environment), 2011 CarswellOnt 3254 (E.R.T.) (“Trent Talbot”), at para. 26, the Appellant submitted that the Tribunal stands in the shoes of and can reach a different conclusion than that reached by the Director.

116The Appellant argued that the Tribunal is not limited to considering documents that were in existence prior to the original decision of the Director, but may consider new information, analysis and opinions obtained after the fact.

117The Appellant submitted that the relevant law and policy that must be considered on the appeal includes the purposes and provisions of the OWRA, the requirements under the Regulation, the MOECC’s SEV, and the PTTW Manual. The Appellant stated that the Director submitted that she considered these documents in making her decision to issue the PTTW; but the Appellant argued that there is no pre-decision paper trail collaborating this. The Appellant stated, for example, that the SEV is not mentioned in the MOECC’s technical review of the PTTW application and is not reflected in the PTTW. The Appellant submitted that key aspects of the SEV, including the need to consider cumulative effects and to apply the precautionary principle, are missing from the PTTW. The Appellant argued that the issuance of the permit for one year and the Permit Holder’s argument that there have been no complaints of impacts are not precautionary. The Appellant submitted that such an approach is reactive whereby the Director waits for harm to occur before taking action and argued that past performance in this case is not necessarily indicative of future impacts. The Appellant stated that the conditions at the Quarry are changing with deeper aggregate extraction than in the past and impacts may vary over time. The Appellant submitted that the Quarry is like a giant dug well, which continues to intercept and divert the natural flow of groundwater and cause risks to well users.

118The Appellant stated that the PTTW should not have been issued because (1) the Permit Holder’s supporting documentation is inadequate and does not address the potential risks caused by the PTTW; (2) the PTTW’s terms and conditions do not safeguard public and private interests; and (3) the Permit Holder’s history of non-compliance should have prevented the PTTW’s issuance.

119Regarding the Permit Holder’s supporting documentation, the Appellant argued that it contains gaps and deficiencies. The Appellant submitted that the groundwater – surface water interactions in the area are poorly understood, particularly with respect to the Permit Holder’s position that Blessington Creek is a hydraulic barrier. The Appellant argued that the standard tool for identifying these interactions is a pumping test, which it stated the Permit Holder has not adequately done. The Appellant submitted that further work is needed to understand the interactions and assess aquifer properties. The Appellant stated that the Permit Holder’s conceptual model of the area is incomplete, inconsistent and inaccurate and does not adequately describe the hydrogeological setting. It argued that there is only anecdotal information on seepage and the Permit Holder’s model is out of sync with real world conditions. The Appellant stated that based on the Permit Holder’s supporting documentation, Mr. Pyke found there is potential for unacceptable impacts.

120The Appellant reviewed the PTTW’s terms and conditions and submitted that the PTTW’s authorization for the dewatering of roughly 600 million L of water per year is excessive and without rationale. The Appellant stated that this volume creates an operational disconnect between the PTTW and the ECA, which only allows higher volumes of discharge during the spring. The Appellant stated that the Permit Holder has acknowledged this disconnect, but has done nothing about it.

121Regarding the PTTW’s monitoring plan, the Appellant argued that it is insufficiently robust or adaptive and does not address the outstanding data gaps in the Permit Holder’s documentation. In particular, the Appellant stated that the monitoring plan does not require the installation of monitoring wells to the south of Blessington Creek.

122Regarding the PTTW’s contingency plan, the Appellant argued that it includes insufficient details on what the contingency measures entail. Noting that there is no contingency aquifer in the area, the Appellant argued that the plan is inadequate. The Appellant submitted that the plan’s triggers are ambiguous and subjective and that numeric triggers are needed. The Appellant submitted that crafting and consulting on a workable, reliable and credible contingency plan should be a pre-condition for a PTTW approval.

123Regarding the risk of pop-ups, the Appellant submitted that the past record of several pop-ups in the Quarry is an indication that further pop-ups could occur and result in the release of mineralized groundwater from the deep aquifer. The Appellant stated that the Permit Holder’s 2005 PTTW application was denied because of the risk of pop-ups and argued that the investigative and monitoring work done since that time still indicates that there is a moderate to low risk of pop-ups at the Quarry. The Appellant submitted that if a pop-up were to occur again, it could have significant impacts on groundwater.

124Regarding the Permit Holder’s compliance history, the Appellant referred to McRae v. Ontario (Director, Ministry of the Environment), [2009] O.E.R.T.D. No. 41 (“McRae”), at para. 25, to argue that compliance with the PTTW is important to achieve the OWRA’s objectives and that an applicant’s compliance history is relevant to determining whether there is a risk that PTTW conditions will not be complied with and whether the PTTW should be issued.

125The Appellant submitted that it is uncontested that the Permit Holder has had compliance issues in the past, but that the Director issued the PTTW in any event and failed to impose conditions to ensure compliance, such as consequences for failing to monitor or report or for an independent qualified person to assess compliance. The Appellant submitted that business as usual is not acceptable or prudent given the Permit Holder’s history of non-compliance.

126The Appellant outlined several matters that it stated are not addressed in the PTTW, including provisions for water conservation measures, a water use audit, and financial assurance requirements.

127The Appellant submitted that the PTTW is unreasonable, premature and fails to contain conditions that are tailored to meet the specific circumstances of the Quarry.

Submissions of the Director

128The Director argued that the Appellant has not put forward any evidence of risk of unacceptable interference caused by the PTTW. The Director stated that the Appellant has raised concerns and questions but these are not supported by reliable evidence and do not demonstrate on a balance of probabilities that the taking of water will result in unacceptable impacts.

129The Director agreed that the hearing is de novo, but argued that the Tribunal does not have limitless jurisdiction. Referring to RPL Recycling & Transfer Ltd. v. Ontario (Director, Ministry if the Environment), [2006] O.E.R.T.D. No. 13 (“RPL Recycling”), at para. 20, the Director stated that the Tribunal is limited to addressing the subject matter of the proceeding and applying the powers given to the Director under the Act and the associated regulations.

130The Director submitted that in this case the subject matter upon which the Tribunal must focus is the question of whether the Quarry will result in unacceptable impacts. The Director stated that there are three issues that the Tribunal must address: (1) whether there is sufficient and reliable information to make a determination of the impact of the water taking; (2) whether the water taking will result in unacceptable impacts or risks to the environment; and, (3) whether proper measures are in place to prevent unanticipated and unacceptable impacts.

131The Director stated that the hearing is not an appeal of the ECA, is not about the proposed Melrose Quarry or the predicted cumulative impacts of the Quarry and the proposed Melrose Quarry, and is not about the Director’s decision-making process. The Director submitted that those issues are not relevant to this appeal.

132Regarding whether there is sufficient and reliable information to make a determination of the impact of the water taking, the Director stated that the Appellant’s case is based on the argument that there is insufficient information to issue the PTTW because no pumping tests were conducted and the Permit Holder’s modelling is insufficient. Regarding pumping tests, the Director submitted that each party’s experts agreed that such tests would be useful, but disagreed on whether they are necessary. The Director stated that Mr. Holland questioned whether pumping tests were practical or necessary because of the volume of monitoring data that has already been produced and because of the lack of water at the proposed test sites. Due to the low water yields in the area, the Director stated that it was Mr. Holland’s opinion that pumping tests would not provide reliable or worthwhile information. The Director submitted that she required the structural geology investigation to be done in place of pumping tests to improve the Director’s understanding of the hydrogeology at the site. The Director argued that the Appellant failed to demonstrate why the structural geology investigation and slug/bail tests were insufficient or unreliable and submitted that the Appellant did not state why these conclusions were incorrect; but rather only stated that more information was needed. The Director submitted that the Permit Holder has provided detailed information regarding the site and that pumping tests would not provide information beyond what has already been provided.

133Regarding the Permit Holder’s modelling, the Director argued that the Appellant failed to show why revised modelling was necessary at the site. The Director stated that monitoring data exists since 2011 and there is also historic data that may be relied on. The Director stated that this data is more reliable and useful than modelling data. The Director said that the Permit Holder’s worst case scenario predictions set out scenarios that will likely never occur and that therefore the monitoring should not align with those predictions unless those worst case situations arise. The Director questioned the value of requiring additional modelling when the real world data is available, reliable and sufficient. The Director said the multi-years of existing data from the on-site monitoring wells and from offsite wells show that the shallow aquifer is in a stable condition and was so even in 2012, which was a drought year.

134Regarding the Appellant’s concerns over the structural geology investigation, the Director submitted that the investigation studied the relationship between the local fault and the deep aquifer. The Director stated that the investigation found that the confined aquitard bedrock is largely competent and extends 14 m below the Quarry. The Director submitted that the investigation found that the Permit Holder’s anomalous water readings in 2012 were not related to the deep aquifer and that Blessington Creek is not related to a fault. The Director stated that the investigation confirmed the Director’s understanding of the Quarry and how it interacts with its surroundings.

135The Director argued that the Appellant did not challenge the reliability of the Permit Holder’s data, but rather only suggested that they are insufficient.

136The Director submitted that the PTTW application must be assessed based on whether it will cause “unacceptable impacts”. The Director referred to paras. 151-152 of Trent Talbot, at which the Tribunal states:

[The MOECC’s] Technical Guidance Document for Category 3 PTTWs (April 2008) states under Part A, section 2, that: “the ministry will not issue a PTTW until it is satisfied that the proposed taking is unlikely to result in unacceptable impacts. The (hydrogeological) study must also propose contingency and mitigative measures that will be implemented in the event that unforeseen unacceptable impacts occur”.

The Technical Guidance Document includes two key tests for a water taking: “unlikely to result”, and “unacceptable impacts”. It further defines unacceptable impacts, as follows:

An unacceptable impact is normally considered to occur when an impact prevents an established water user from continuing their established pattern of use, or when an impact hinders the ability of the water resource to support existing natural functions of the ecosystem.

137The Director stated that, in this respect, the Appellant raised concerns regarding unacceptable impacts from pop-ups, impacts to Blessington Creek, and impacts to well users.

138Regarding whether impacts from pop-ups will be unacceptable, the Director stated that there is only evidence of one pop-up ever occurring at the Quarry. The Director submitted that these concerns were addressed by the structural geology investigation, the results of which showed that pop-ups are no longer a concern as the 14 m of competent rock below the bottom of the Quarry make the risks of a pop-up remote. The Director stated that Mr. Holland’s evidence was that, in any event, if a pop-up did occur, there is insufficient pressure for water from the deep aquifer to interact with water in the shallow aquifer.

139With respect to possibly unacceptable impacts to Blessington Creek, the Director stated that the Appellant’s expert only asked for more information. The Director stated that there is already extensive monitoring data regarding the Creek showing there will be little impact on it from dewatering. The Director stated that the Permit Holder’s data shows that there is a topographical high between the Quarry and Blessington Creek that prevents water from flowing from one to the other. The Director also stated that the evidence shows that the ground between the Quarry and the Creek is of low permeability. The Director submitted again that the Appellant did not take issue with the data, but only raised concerns that there should be more of it.

140Regarding possibly unacceptable impacts to water users, the Director stated that the Appellant presented no evidence of this. The Director submitted that there is no evidence of any issues concerning water quality or quantity. The Director stated that the Appellant did not provide any expert evidence of cumulative impacts or any expert opinion that a cumulative impact assessment is needed. The Director stated that the impacts from other permitted water takers, the density of water takings in the area, and data from the Groundwater Monitoring Network were considered and that based on these considerations, Mr. Holland did not recommend that a cumulative impact study should be conducted. The Director submitted that this recommendation was consistent with the requirements in the PTTW Manual. The Director stated that the extensive monitoring data that has been accumulated over several years do not indicate any unacceptable impacts.

141With respect to whether the PTTW’s terms and conditions are protective and address any remaining uncertainties from the water taking, the Director submitted that they are in accordance with the requirements in the MOECC’s Technical Guidance Document. The Director argued that they are strong and effective and that several of them are crafted site-specifically. The Director argued that the monitoring program, for instance, is detailed with more monitoring than most other quarry sites and has requirements for the Permit Holder’s consultant to regularly visit the Quarry to collect data. Regarding the PTTW’s contingency plan, the Director stated that while the Appellant suggested the inclusion of numeric triggers, it made no suggestions on what they should look like. The Director submitted that the existing broad triggers require the Permit Holder to take contingency steps in a very wide set of circumstances.

142Responding to the Appellant’s concerns regarding the volume of water taking permitted, the Director stated that since most of the water removed is from precipitation, a flexible volume limit is more practical. Regarding any disconnect between the PTTW and the ECA, the Director submitted that this is an issue that is not before the Tribunal on this appeal.

143Regarding the Appellant’s call for a financial assurance requirement, the Director submitted that the Appellant did not explain why it is needed for a short one-year PTTW. The Director stated that it considered requiring financial assurance, but did not require it because there was no perceived risk from this undertaking.

144The Director concluded by submitting that the PTTW should be confirmed.

Submissions of the Permit Holder

145The Permit Holder submitted that the manner in which the PTTW characterizes the water and the hydrogeology of the area and an assessment of the Appellant’s evidence in comparison to that of the Director and the Permit Holder demonstrate that the PTTW was properly issued and the appeal should be dismissed.

146Regarding the water in the Quarry, the Permit Holder submitted that it is almost exclusively precipitation and spring melt water, which the Permit Holder stated is evident when comparing precipitation and dewatering data for the Quarry. The Permit Holder submitted that the water in the Quarry is not connected to the shallow aquifer and therefore the water that is being removed is from the Quarry and not actively from the aquifer. The Permit Holder stated that the amount of seepage of water from the shallow aquifer to the Quarry is small, but has not been quantified.

147The Permit Holder submitted that the main issue to be addressed is whether the dewatering is causing an unacceptable impact. The Permit Holder argued that although the amount of inflow has not been determined, there is no evidence that it is unacceptable or is creating unacceptable consequences.

148Regarding possible impacts to the hydrogeologic cycle, the Permit Holder submitted that the dewatering has been ongoing for decades and impacts to the hydrogeologic cycle will not change for many years after the dewatering stops as the Quarry will need to fill with water before those impacts change.

149The Permit Holder submitted that its conceptual model is derived from monitoring data and observations and provides a mechanism for understanding how the hydrogeology of the area behaves. The Permit Holder stated that monitoring has been ongoing for years and that the number of monitoring wells on the site is excessive for a quarry of this size.

150Regarding impacts on the shallow aquifer, the Permit Holder submitted that those impacts occurred decades ago when the Quarry first went below the shallow aquifer and that there have been no additional impacts. The Permit Holder submitted that the monitoring data shows that the shallow aquifer is stable and that the Appellant has provided no evidence to refute this evidence.

151Regarding impacts to the aquitard, the Permit Holder submitted that the aquitard has little fracturing and therefore little groundwater to supply. The Permit Holder stated that only a few residential wells in the vicinity of the Quarry rely on the aquitard for their water supplies. The Permit Holder stated that the competency of the aquitard is reflected in Mr. King’s evidence showing that water in a monitoring well lying a few feet from the Quarry’s edge does not seep into the Quarry. The Permit Holder submitted that the results of its structural geology investigation confirmed that there are no fractures that could provide a pathway for water to move in the aquitard. The Permit Holder submitted that fractures that have existed have been sealed naturally and are not pathways for groundwater. The Permit Holder stated that Mr. King opined that the Quarry poses no risk to any well relying on water contained in the aquitard and there are no fracture pathways that connect groundwater to the Quarry. The Permit Holder stated that the Appellant produced no evidence on this issue.

152Regarding impacts to the deep aquifer, the Permit Holder submitted that there is no dispute that the deep aquifer lies 14 m below the bottom of the Quarry. The Permit Holder stated that its structural geology investigation confirmed that the barrier between the deep aquifer and the Quarry is competent and there are no pathways to the Quarry from the deep aquifer. The Permit Holder submitted that the structural geology investigation also allowed Mr. King to find that there is no risk of a pop-up event that could intercept the deep aquifer. The Permit Holder submitted that the Appellant produced no evidence of a significant risk of a pop-up that would intercept the deep aquifer.

153Regarding impacts to Blessington Creek, the Permit Holder submitted that its monitoring wells demonstrate that the groundwater flow is from the Quarry to the Creek and that the Creek is not dewatered by the Quarry. The Permit Holder stated that its structural geology investigation demonstrated that there are no groundwater flows through the aquitard from Blessington Creek to the Quarry and there is no need for monitoring south of the Creek.

154The Permit Holder submitted that in assessing the Appellant’s evidence, the Tribunal must take into account Mr. Pyke’s experience, the scope of his retainer and the type of work he has done on the file and compare them with those of Mr. King. The Permit Holder submitted that the Appellant has presented concerns, which have been addressed by the Permit Holder, including whether pumping tests are practical or necessary, whether the Permit Holder’s modelling was adequate or necessary, what volume of water taking is acceptable, and whether water conservation measures are needed. The Permit Holder submitted that there is insufficient water for pumping tests, adequate monitoring is in place, the impacts caused by the Quarry have existed for decades diminishing the value of any modelling, and the volume of water is irrelevant as it is primarily water from precipitation that is pumped. The Permit Holder reiterated that the water in the Quarry is not connected to the aquifers and water conservation is not necessary as there is no water to conserve.

155The Permit Holder submitted that Mr. Pyke did not comment on the existing data, his requests for additional information would not increase understanding of the hydrological issues, and he relied on outdated comments often relating to the proposed Melrose Quarry as the basis for his opinions.

156Regarding the Permit Holder’s compliance history, the Permit Holder stated that this was considered by the Director in making her decision to issue the PTTW. The Permit Holder submitted that unlike in McRae, the Permit Holder has never been prosecuted for any alleged non-compliance regarding the Quarry.

Analysis and Findings

157The Tribunal has a broad scope of authority for addressing appeals under s. 100(10) of the OWRA. The appeal is a de novo hearing and the Tribunal may substitute its opinion for that of the Director. As noted in Trent Talbot, the Tribunal must decide, based on the evidence presented at the hearing, whether the PTTW should be confirmed, altered or revoked.

158The Tribunal may consider relevant documents that were in existence prior to the original decision of the Director as well as new information, analysis and opinions obtained after the fact. However, as noted in RPL Recycling, at para. 20, the Tribunal’s jurisdiction is “constrained by the subject matter of the proceeding, the underlying powers that the Director may exercise in accordance with the Act and regulations, and the purposes of the legislation”.

159A decision to issue a PTTW must be based on whether the application is consistent with the purposes and provisions of the OWRA and the Regulation, taking into account the MOECC’s SEV and other relevant policy documents. The Tribunal will, therefore, review the Permit Holder’s PTTW application and evidence, including the supporting documentation available at the time of the application and new information, analysis and opinions obtained after the time of the application, and assess them based on these statutory, regulatory and policy provisions. The Tribunal’s assessment will consider whether there is sufficient and reliable information to make a determination of the impact of the water taking, whether the water taking will result in unacceptable impacts or risks to the environment, and whether proper measures are in the PTTW to prevent unacceptable adverse impacts. Based on its assessment, the Tribunal will determine whether a PTTW should be confirmed, altered or revoked under s. 100(10) of the OWRA.

1. The OWRA and the Regulation

160Section 34 of the OWRA restricts the amount of water that may be taken without a permit to 50,000 L per day. Section 34.1 sets out the procedure and criteria for the issuance of permits for the taking of water over that amount.

161Under s. 34.1, the decision-maker may include terms and conditions in the permit including those limiting the amount and rate of water that may be taken, governing the manner in which it may be taken, returned and used, and regarding monitoring and reporting, record keeping, and report filing. The decision-maker may also order terms and conditions governing the use and conservation of water taken under the permit, including requiring the permit holder to undertake a water audit to evaluate whether the water is being used efficiently, and to require the permit holder to implement measures to prevent the water taking from causing interference with other water takings. It may also include provisions allowing for remedies for any such interference.

162The Regulation provides guidance on how these powers under s. 34.1 should be exercised. Section 4 of the Regulation provides guidance on protection of the natural functions of the ecosystem, water availability, and water use. Section 34.1(9) of the OWRA states that risk management principles should be applied. Each of these aspects of the Regulation and the OWRA is addressed below.

(i) Protection of the natural functions of the ecosystem

163Sections 4(2) 1 and 4(2) 3.1 of the Regulation address the protection of the natural functions of the ecosystem. They require the decision-maker to consider the impact of the proposed water taking on the natural variability of water flow or water levels, minimum stream flow, and habitat that depends on water flow or water levels. The decision-maker may also consider groundwater and surface water and their interrelationships and consider the potential to restore the hydrologic conditions and functions of the source watershed.

164The Tribunal first notes that, as part of a settlement proposal brought with respect to the Stay Motion, the Permit Holder suggested the insertion of language in the PTTW requiring it to sample and analyze water from the Quarry sump, document the volume of water present in the Quarry, confirm the volume of anticipated dewatering and measure the water levels in three representative wells identified in the monitoring program prior to commencing dewatering for the first time in any calendar year. The Permit Holder also recommended the insertion of language requiring it to monitor the Quarry for groundwater seepage during dewatering to remove snow melt and runoff during the spring. Also the Permit Holder recommended the insertion of language stating that “water takings after the spring snow melt has concluded in any calendar year may only proceed at this volume and for this duration if the discharge is permitted by the Environmental Compliance Approval”.

165The Tribunal observes that the structural geology investigation, diamond core drilling project, increased monitoring and the insertion of PTTW language proposed by the Permit Holder address the issues set out in s. 4 of the Regulation. The natural variability of water flow and water levels, minimum stream flow, and habitat that depends on water flow or water levels has each been monitored and will continue to be monitored. The groundwater and surface water and their interrelationships have been assessed through the structural geology investigation and diamond core drilling project and monitoring. The return and after use of water, including the manner and location in which the water is being returned, is addressed by the Permit Holder’s proposal to add language to the PTTW restricting water takings after the spring snow melt to only proceed if the subsequent discharge is permitted by the ECA. This aspect is also addressed by the PTTW’s existing requirements for continued water quantity and quality measuring in Blessington Creek. There was no dispute regarding the potential to restore the hydrologic conditions and functions of the source watershed after the Quarry’s operations are ended and the excavation is filled with water.

166Although the Tribunal has considered the Appellant’s concerns regarding the need for pumping tests, the Tribunal finds that the evidence of the Permit Holder, which unsuccessfully attempted a pumping test in the vicinity of the Quarry, and the Director’s evidence, which indicates that there is insufficient water in the area to conduct such tests, raises questions as to the usefulness of these tests in this situation. Moreover, the Tribunal accepts that the completion of the structural geology investigation, diamond core drilling project and continued monitoring has reduced the need for such testing. Similarly with respect to modelling, the Tribunal finds that the value of improving the Permit Holder’s models is reduced when there has been extensive monitoring over a period of several years in and around the Quarry. The Tribunal accepts the evidence of the Permit Holder and the Director that, for existing quarries, which have been in operation for an extended period of time, monitoring data is of greater value than modelling data and finds that additional modelling is not required at this specific time. The Tribunal notes that fulsome monitoring, when accompanied by effective adaptive management, can play an important role in the protection of the natural functions of ecosystems.

167The PTTW Manual states that “there are limits to the amount of water that can be taken without causing unacceptable impacts”. The MOECC’s Technical Guidance Document elaborates on this, setting out the standard to be applied and defining the term “unacceptable impacts” to the ecosystem. It states in its Part A, s. 2:

The Ministry will not issue a PTTW until it is satisfied that the proposed taking is unlikely to result in unacceptable impacts.

An unacceptable impact is normally considered to occur when … an impact hinders the ability of the water resource to support existing natural functions of the ecosystem.

168As summarized in Trent Talbot, the Technical Guidance Document recommends that a PTTW application should be assessed by asking whether the water taking is “unlikely to result” in “unacceptable impacts”. For impacts to the natural functions of the ecosystem, this requires that the decision maker should assess whether he or she is satisfied that the water taking is unlikely to result in hindering the ability of the water resource to support the existing natural functions of the ecosystem.

169The Tribunal finds that the structural geology investigation, diamond core drilling project, and increased monitoring address the Appellant’s concerns questioning the adequacy of the Permit Holder’s supporting documentation. They provide data on the geological stratigraphy, the risk of pop-ups, whether Blessington Creek is a hydraulic barrier, and the hydrogeological conditions at the Quarry and the surrounding area.

170With the insertion of the language below proposed by the Permit Holder into the PTTW, and given the results of the structural geology investigation, diamond core drilling project, and increased monitoring, the Tribunal finds that the provisions in s. 4 of the Regulation will be satisfactorily addressed. The Tribunal is satisfied that the water taking, carried out in accordance with the revised and new provisions set out below, is unlikely to result in hindering the ability of the water resources in the vicinity of the Quarry to support the existing natural functions of the ecosystem.

171As noted above, fulsome monitoring, when accompanied by effective adaptive management, can play an important role in the protection of the natural functions of an ecosystem. The Permit Holder’s proposal to further increase the monitoring regime at the Quarry provides an important tool for ensuring this protection. The Tribunal thereby orders that the PTTW is amended by adding the following new paragraphs inserted immediately after paragraph 4.3:

4.4 Immediately prior to commencing dewatering for the first time in any calendar year, the Permit Holder shall:

a) obtain a representative sample of water from the quarry sump and have that sample analyzed for all parameters listed at paragraph 4.3.3 in the approved monitoring program;

b) document the volume of water present in the quarry;

c) confirm the volume of anticipated dewatering; and

d) measure the water levels in the three (3) representative wells identified in the monitoring program.

4.5 During dewatering that occurs to remove snow melt and runoff during the spring, the Permit Holder shall monitor the quarry for groundwater seepage and record any observations of seepage.

172To help address the disconnect between the PTTW and ECA, the Tribunal further orders that s. 3.2 and Table “A” of the PTTW are amended as follows:

row 1, column "Source Name/Description", of Table “A” is amended by inserting an asterix immediately after the text in parentheses and adding text immediately after Table "A" that reads, "* water takings after the spring snow melt has concluded in any calendar year may only proceed at this volume and for this duration if the discharge is permitted by the Environmental Compliance Approval"

(ii) Water availability

173Under s. 4 of the Regulation, the decision-maker must consider water availability issues. The decision maker should take into account the potential impact of the water taking on water balance and sustainable aquifer yield; existing uses of water for sewage disposal, livestock and other agricultural purposes, and for private domestic purposes; and the potential impact of the water taking on low water conditions.

174The Tribunal notes that, in his technical review of the PTTW renewal application, Mr. Holland stated that there was a moderate to high risk that the water taking may cause unacceptable impacts to sensitive receptors in the area due to the close proximity of the water taking to those receptors and based on the comments from past reviewers. But Mr. Holland also testified that the structural geology investigation and diamond core drilling project addressed these concerns. Moreover, he stated that the PTTW also included a contingency plan to address any unforeseen interference with existing water users. The Director’s evidence indicates that neighbouring wells are being widely monitored and that no impacts have been observed or are anticipated over the lifespan of the PTTW. Mr. Holland testified that the risk to off-site wells is low.

175The Tribunal also notes that, respecting the volume of water permitted to be taken, the Permit Holder suggested in its Stay Motion settlement proposal that the maximum amount of water to be dewatered from the Quarry per day should be reduced from 3,945,600 L to 3,000,000 L. It further recommended that the maximum volume of permitted water taking for dust control purposes per day be reduced from 164,400 L to 50,000 L. To address concerns over dewatering during low-water periods, the Permit Holder suggested the insertion of language in the PTTW stating that “where the Permit Holder is advised by the Quinte Conservation Authority of a low-water advisory, the Permit Holder shall only take an amount of water each day equal to the amount of precipitation received at the site in the preceding day”.

176As noted above, the MOECC’s Technical Guidance Document directs that the Director will not issue a PTTW until it is satisfied that the proposed taking is unlikely to result in unacceptable impacts. With respect to water availability issues, an unacceptable impact is one that prevents an established water user from continuing his or her established pattern of use.

177The Tribunal finds that the structural geology investigation and diamond core drilling project have reduced the uncertainties regarding the structural geology surrounding the Quarry and provides the decision maker with an adequate factual record in order to fully consider the needs of existing users of water. The undisputed evidence is that the Quarry has been excavated at levels below the shallow aquifer for the last 20 years, including during dry years, without direct adverse impacts to existing water users. The structural geology investigation and diamond core drilling project show that the rock in the aquitard is competent. The monitoring data support these geological findings and indicate there is little hydraulic conductivity in the aquitard. Therefore, the risk of pop-up events that could cause adverse impacts as a result of continued quarrying is limited. Given this evidence, the Tribunal finds that the impacts on water balance, aquifer yield, low water conditions and existing uses of water for sewage disposal, livestock and other agricultural purposes and for private domestic purposes are unlikely to be unacceptable. Therefore, the Tribunal is satisfied that the proposed taking is unlikely to result in unacceptable impacts that prevent established water users from continuing their established patterns of use.

178Although the Tribunal is satisfied that the proposed taking is unlikely to result in unacceptable impacts that prevent established water users from continuing their established patterns of use, the Tribunal accepts as a further precautionary measure the Permit Holder’s proposal to reduce the volume of water taking at the Quarry. The Tribunal orders that Section 3.2 and Table “A” of the PTTW are amended in the following manner as follows:

row 1 of Table “A” is amended by deleting the number 3,945,600 from the "Max. Taken per Day (liters)" column and replacing that number with the number 3,000,000;

row 3 of Table “A” is amended by deleting the number 164,400 from the "Max Taken per Day (liters)" column and replacing that number with the number 50,000;

the final row "Total Taking" in Table “A” is amended to read "3,002,250”.

179The Tribunal further orders that a new paragraph is inserted immediately after Table “A” of the PTTW that reads:

3.3 Where the Permit Holder is advised by the Quinte Conservation Authority of a low-water advisory, the Permit Holder shall only take an amount of water each day equal to the amount of precipitation received at the site in the preceding day. The calculation of the amount of precipitation received at the site for purposes of this provision shall be determined by the Permit Holder based on its on-site precipitation monitor and the area of the site;

(iii) Water use

180The purposes of the OWRA are “to provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use, in order to promote Ontario’s long-term environmental, social and economic well-being” (see s. 0.1 of the OWRA). Water conservation and the efficient use of water, therefore, should be considered in the PTTW decision-making process. This is reflected in s. 4 of the Regulation, which requires the decision maker to consider whether water conservation is to be implemented and to take into account the purpose for which the water is to be used. The decision maker must also consider the needs of other persons who have an interest in the water taking.

181Section 34.1(9)(h) of the OWRA allows the decision maker to include PTTW terms and conditions governing the use and conservation of water taken under the permit, including requiring the Permit Holder to undertake a water audit. The Tribunal finds that although most of the water taking is for dewatering, water conservation measures remain important, both in terms of ensuring that adequate measures are in place to minimize the amount of seepage and water flow into the Quarry and also to ensure that the water takings for dust suppression and water supply are as efficient as possible. This is particularly important for low-yield aquifers such as those surrounding the Quarry.

182To ensure the efficient use of water at the Quarry, the Tribunal finds that the Permit Holder must prepare amendments to the PTTW (to the satisfaction of the Director) setting out water conservation measures to be taken at the site. The Tribunal further finds that a water-use audit also must be a requirement in the PTTW for the dewatering, dust suppression and water supply components of the water taking. Based on the results of the audit, the Tribunal expects that the Director, in using an adaptive management approach, will require the Permit Holder to implement additional conservation measures as are necessary.

183The Tribunal orders that the following new sub-paragraph is inserted into paragraph 5 of the PTTW:

No later than September 30, 2015, the Permit Holder shall prepare amendments to the PTTW that are to the satisfaction of the Director setting out water conservation measures to be taken at the site and requiring that a water-use audit to be undertaken at the site; and the PTTW shall be amended accordingly.

(iv) Risk management principles

184Section 34.1(9)(j) of the OWRA states that the Director may include terms and conditions in a PTTW “requiring the holder to implement specified measures (i) to prevent the water taking under the permit from causing interference with other water takings, and (ii) to remedy any interference with other water takings that is caused by the water taking under the permit.” The MOECC’s Technical Guidance Document adds that the Category 3 applicants must propose “contingency and mitigative measures that will be implemented in the event that unforeseen unacceptable impacts occur”.

185Section 5.2 of the PTTW requires the Permit Holder to take specific steps in the event of a reported unusual loss of non-seasonal water availability. The Permit Holder must immediately provide a temporary potable water supply, if needed; have a qualified professional conduct an assessment; and continue to provide potable water until the affected well can be restored and an alternative water supply developed (if quarry water takings are determined to be responsible for the problem). These steps are elaborated in the contingency plan attached in Schedule A to the PTTW.

186The Tribunal observes that, in an effort to settle the Stay Motion, the Permit Holder proposed amendments to the PTTW that would clarify when the triggers would be engaged and include language that is compatible with that in the MOECC’s Technical Guidance Document. The Permit Holder proposed amending the contingency plan to expand the scope of trigger events to include the following occurrences:

• any unusual change in aesthetic water quality (colour, taste, odour) reported by a well owner in the vicinity of the quarry;
• exceedances of a chemical parameter beyond the normal range of variability with respect to its baseline condition;
• exceedances of a parameter above any applicable standard or objective, or as provided in an ECA as determined through monitoring;
• sudden occurrence of non-potable conditions (i.e. bacteria or chemical); and
• a decline in the static (i.e. “at rest”) well water level, exceeding 20% below the normal range of variation as determined by monitoring, not including normal seasonal variations.

It further suggested the insertion of language that when a trigger event occurs, the Permit Holder shall immediately undertake enumerated contingency measures.

187The Tribunal finds that the contingency plan’s triggers must be accessible and understandable to established water users, but they should also provide certainty regarding when the triggers apply. The Tribunal finds that the PTTW’s contingency measures can meet these requirements by including both subjective and numeric triggers. The Tribunal notes that for the contingency measures to address unacceptable impacts, they should cover both unacceptable impacts to existing well users and to the ecosystem.

188The Tribunal orders that Schedule “A” of the PTTW is amended by incorporating the following amendments to the Contingency Plan prepared by Oakridge Environmental Ltd., as provided in a letter to the Director, Section 34, and dated March 19, 2014, as follows:

(a) Paragraph 1.1 shall read:

“A ‘trigger event’ occurs where any of the following occur:

• any unusual change in aesthetic water quality (colour, taste, odour) reported by a well owner in the vicinity of the quarry;
• exceedances of a chemical parameter beyond the normal range of variability with respect to its baseline condition;
• exceedances of a parameter above any applicable standard or objective, or as provided in an ECA as determined through monitoring;
• sudden occurrence of non-potable conditions (i.e. bacteria or chemical); and
• a decline in the static (i.e. “at rest”) well water level, exceeding 20% below the normal range of variation as determined by monitoring, not including normal seasonal variations.”

(b) Paragraph 1.2 shall read:

“In the event of a reported claim that a trigger event has occurred or where the monitoring program identifies a trigger event has occurred, the Permit Holder (or delegate) shall immediately undertake the following:”

[The numbered contingency measures remain un-amended]

189There must also be assurance that the contingency measures will be engaged when triggered. The Appellant made submissions concerning the Permit Holder’s past non-compliance with regulatory requirements and argued that financial assurance provisions should be included in the PTTW. It referred to McRae in which the Tribunal found that the Director must consider an applicant’s compliance history when deciding whether to issue a permit.

190The Director stated that the short one-year term of the PTTW and the fact that the Director believed that there was “no perceived risk from this undertaking”, led her to conclude that a financial assurance requirement was not necessary for the PTTW. The Permit Holder did not make submissions on this point.

191The Tribunal observes that the Environmental Registry posting of the decision to issue the PTTW notes in regard to the need for financial assurance that “further consideration [of the need for financial assurance] may be made at the time of Permit renewal in 2015, particularly if a long-term Permit is sought”.

192The Tribunal finds that mechanisms must be included in the PTTW to ensure that the contingency plan is put into action when triggered. The Tribunal finds that the fact that the PTTW is for a short term should not influence whether such a guarantee is in place. An unforeseen unacceptable impact could occur in the short term or the long term. Furthermore, in this case, although the risk is low, the consequences of unacceptable impacts could be significant given the low yield aquifers and the absence of viable contingency aquifers. For these reasons, the Tribunal finds that satisfactory compliance mechanisms must be included in the PTTW to ensure that the contingency measures will be put into effect when triggered.

193Given that the practicalities of determining what financial assurance, penalties or other compliance mechanisms should be included in the PTTW, the Tribunal finds that they should be determined by the Director based on proposed amendments made by the Permit Holder after it has consulted on the issue with the Appellant.

194The Tribunal orders that the following new sub-paragraph is inserted into paragraph 5 of the PTTW:

No later than September 30, 2015, after consultation with Citizens Against Melrose Quarry (“CAMQ”), the Permit Holder shall prepare amendments to the Contingency Plan that are to the satisfaction of the Director establishing compliance mechanisms and setting out additional measurable trigger mechanisms; and the Contingency Plan shall be amended accordingly;

2. The MOECC’s SEV

195The Tribunal in this case, like the Director, is guided by the SEV in carrying out its statutory mandate. The parties agreed that relevant provisions set out in the MOECC’s SEV that apply to the PTTW application include the ecosystem approach, the precautionary principle, cumulative impacts and adaptive management. Each of these principles is addressed below.

(i) Ecosystem approach

196The ecosystem approach, as mandated by the MOECC’s SEV, requires consideration of the interactions among the air, land, water and living organisms, including human beings. Guidance on the application of the ecosystem approach is provided in the PTTW Manual. It states that the ecosystem approach should consider both the needs of water takers and the environment and asserts that water taking should not cause unacceptable adverse impacts. It states:

The Ministry will use an ecosystem approach that considers both water takers’ reasonable needs for water and the natural functions of the ecosystem.

The ecosystem approach recognizes the physical, chemical and biological components of water resources and their inter-relationships. Water takings will be managed to protect the natural functions of the ecosystem.

The Ministry’s environmental protection strategy places highest priority on preventing significant environmental harm. Water takings are managed to ensure sustainability of the resource.

The Ministry recognizes that there are limits to the amount of water that can be taken without causing unacceptable adverse impacts. Permits will be controlled or not issued if current science standards indicate that additional or current takings will adversely impact existing users of the environment.

197In the Leave Decision, the Tribunal found that, based on the uncertainties identified by the Appellant regarding the sufficiency and reliability of the Permit Holder’s supporting documentation, there was good reason to believe that no reasonable person would have issued the PTTW after taking into consideration the ecosystem approach. It stated at para. 57 that “[a]mong other facts, it is apparent that there is little to no information about the potential effects of water takings, and the source of the waters being taken, at the depths which are now being mined in this fourth lift of the Quarry” and found that the anomalies in groundwater testing and the potential risks of pop-ups had also not been fully assessed by the Permit Holder. Based on this, the Tribunal found that the ecosystem approach had not been properly considered.

198In the Leave Decision, the Tribunal concluded that the Director’s issuance of the PTTW was based on an incomplete factual record, which was not consistent with the ecosystem approach. However, as noted above, since the time of the Leave Decision, the Permit Holder has conducted its structural geology investigation and its diamond core drilling project, which have provided subsurface data on rock competency below the Quarry floor and between the Quarry and Blessington Creek. The Permit Holder has also investigated the anomalous 2012 monitoring well readings and added additional monitoring wells to its array. Based on the results of the structural geology investigation, the diamond core drilling project and the Permit Holder’s monitoring data, the Tribunal finds there is now an adequate factual record on which to make a reasonable determination on the potential future environmental impacts from the PTTW, including the interrelationships between groundwater and surface water, and the impact of the proposed water taking on the natural variability of water flow or water levels, minimum stream flow, and habitat that depends on water flow or water levels.

199Taking into consideration the requirements in s. 4 of the Regulation to protect the natural functions of the ecosystem and the direction provided in the Technical Guidance Document, the Tribunal is satisfied that based on the evidence on the competency of the aquitard and the lack of connectivity of groundwater in the vicinity of the Quarry, and on monitoring results, the water taking, carried out in accordance with the revised and new provisions set out in this Decision, is unlikely to result in unacceptable impacts to the ecosystem. The Tribunal finds that it is unlikely that the dewatering will result in unacceptable impacts to groundwater or to the natural variability of water flow or water levels, minimum stream flow, and habitat that depends on water flow or water levels. The Tribunal further finds that, based on the evidence on water availability, it is unlikely that the dewatering will result in an unacceptable impact that prevents established water users from continuing their established patterns of use. The Tribunal has considered both the needs of the environment and existing water users and finds that, based on the evidence adduced in this proceeding, the water taking should not cause unacceptable adverse impacts, provided that the amendments outlined in this Decision are implemented. Therefore, the Tribunal finds that its decision to amend the PTTW applies the ecosystem approach.

(ii) Precautionary principle

200The MOECC’s SEV states that as it develops Acts, regulations and policies, the Ministry will use “a precautionary, science-based approach in its decision-making to protect human health and the environment.” The parties did not dispute that this principle applies to the Director’s consideration of PTTW applications.

201The Tribunal observes that the use of “a precautionary, science-based approach in its decision-making to protect human health and the environment” requires the permit to take water applicant to provide the Director with sufficient scientific data to make the decision. In the Leave Decision, the Tribunal concluded that, at the time that the PTTW was issued, more data regarding the geology and water quality and quantity in the area of the Quarry was needed for the Director to make such a decision. Based on the data that has been generated by the Permit Holder since the time of the Director’s decision, namely from the structural geology investigation, diamond core drilling project, and monitoring, the Tribunal finds that there is now an adequate factual record for the Tribunal to a take a precautionary, science-based approach.

202The provisions set out in s. 34.1 the OWRA, s. 4 of the Regulation and the Technical Guidance Document provide for a comprehensive assessment of the proposed water takings and their potential impacts, which the Tribunal has undertaken. Basing its assessment on the scientific evidence presented at the hearing, including the data generated since the time of the Leave Decision, the Tribunal is satisfied that there are no threats of serious or irreversible damage that would result from water takings under the PTTW, as amended by this Decision, and that harm is unlikely. The Tribunal finds that its decision to amend the PTTW thereby uses a precautionary, science-based approach as required by the SEV.

(iii) Cumulative impacts

203The PTTW Manual states, at page 23, that the Director has “the discretion to initiate or cause to initiate an assessment of the impact of a group of takings on water balance or sustainable yield to better understand the cumulative impact of these takings on surface water and groundwater resources.”

204In its Leave Decision, the Tribunal found at para. 71 that there appeared to be good reason to believe that no reasonable person would have issued the PTTW taking into account that the cumulative effects of existing users of the aquifer were not adequately quantified. The Tribunal observed that cumulative impacts must be assessed prior to the issuance of permits.

205The Tribunal notes that the parties do not contest that the aquifers in the vicinity of the Quarry are low yielding. It is also not contested that there are 300 homes within two kilometres of the Quarry that are dependent on local groundwater for drinking water and/or agricultural uses. Although Mr. Holland testified that these circumstances did not appear to trigger a cumulative impact study based on the indicators in the PTTW Manual, he also stated that the Director has discretion regarding when to require such a study and that the Manual’s indicators are not binding. Mr. Holland did not fully elaborate on why a low yielding aquifer would not be considered a vulnerable water supply regardless of whether low water conditions have been declared. He also did not elaborate on why a high density of permitted water takings in an area could trigger a study, while 300 domestic water users and farmers within a two kilometre area would not.

206At the time of the PTTW’s issuance there was significant uncertainty regarding the competency of the aquitard and groundwater flows. To resolve this uncertainty, the Tribunal finds that the Director was required to fully consider the need for a cumulative impact study before renewing the PTTW (see: McIntosh v. Ontario (2010), 50 C.E.L.R. (3d) 161 (Ont. Env. Rev. Trib.), paras. 104-105). However, the structural geology investigation and diamond core drilling project, and additional monitoring, acted as alternative means to assess the uncertainties associated with the impacts of dewatering.

207Based on the information derived from the structural geology investigation and the diamond core drilling project, the Tribunal finds that uncertainty regarding competency of the aquitard and groundwater flows has been lessened and the Tribunal is satisfied that the proposed taking will not likely result in unacceptable impacts to the ecosystem or existing water users. However, the Tribunal observes that further uncertainties could arise, particularly should the proposed Melrose Quarry be approved. No evidence was adduced at the hearing regarding whether a cumulative impact assessment will be required in an application for an ARA licence or a future PTTW application respecting the Melrose Quarry. The Tribunal recommends that any application for a PTTW for the Melrose Quarry be required to include a cumulative impact study if water taking at that quarry would be carried out at the same time as water taking at Long's Quarry. Amendments to the Long's Quarry PTTW may become warranted as a result of that cumulative impact study.

(iv) Adaptive management

208The MOECC’s SEV states that “planning and management for environmental protection should strive for continuous improvement and effectiveness through adaptive management”. The PTTW Manual states that the MOECC “will employ adaptive management to better respond to evolving environmental conditions.” It elaborates, at page 4, stating that:

Adaptive management is a process that explicitly recognizes changes in natural systems, stresses learning from experience and monitoring, and revisiting management goals and objectives to adapt them as required in light of new information gained. As applied to the PTTW program, it comprises evaluating permit applications in light of available information on potential impacts, setting of permit conditions, and adjusting of water taking and permit conditions, as necessary.

209The MOECC’s Technical Guidance Document describes the purpose of PTTW groundwater monitoring plans, noting that they are to confirm that the water taking does not result in unacceptable impacts to either the natural functions of the ecosystem or to existing water uses, ensure that ground water elevation levels do not fall below an unacceptable level, confirm whether there is significant deviation between actual and predicted impacts, and initiate contingency action in the event that unforeseen impacts occur.

210Section 4.1 of the PTTW summarises the objectives of its monitoring program, which requires monthly groundwater level measurements from representative accessible on- and off-site wells within 500 m of the licensed area boundaries to determine on-site impacts before any off-site wells are impacted.

211In its settlement proposal brought with respect to the Stay Motion, the Permit Holder proposed the insertion of language in the PTTW requiring the Permit Holder to prepare a dewatering plan prior to dewatering for the first time in any calendar year. It also proposed that during any period of water takings that exceeds eight hours per day, manual private well monitoring will be increased from monthly to weekly. In addition, the Permit Holder proposed that three representative wells (to be mutually agreed upon by the parties) in close proximity to the Quarry would be instrumented with dataloggers to collect water level data every 20 minutes. It added that prior to commencement of 24-hour pumping, the representative wells would be sampled and analysed and the data would be provided to the well owners to facilitate comparison should a trigger event occur. It also proposed that all data would be provided to the MOECC and the Appellant in a timely fashion after the spring dewatering has concluded.

212In the Leave Decision, the Tribunal found that adaptive management requires more than monitoring and the issuance of the Permit for a short period to allow further studies to be done, especially in circumstances where the applicant has a history of non-compliance with Ministry requirements.

213The Tribunal finds that the Permit Holder’s proposed amendments both increase monitoring at the site and improve the provision of monitoring results to the MOECC, which will facilitate the Ministry’s ability to adjust the PTTW’s conditions, as necessary. The Tribunal also finds that the short one-year duration of the PTTW facilitates the Director’s ability to evaluate the available information on potential impacts, monitor the Permit Holder’s compliance and adjust the permit’s conditions, as needed. The Tribunal finds that with the Permit Holder’s proposed amendments and a one-year term to the PTTW, an adaptive management approach is taken.

214The Tribunal orders that the monitoring program, dated April 30, 2012, as described in Item 1 of Schedule “A” to the PTTW, is amended by including the following:

(a) prior to dewatering for the first time in any calendar year, the Permit Holder shall prepare a dewatering plan that shall include:

• the anticipated commencement date of dewatering;
• the anticipated volume of accumulated water in the quarry;
• the anticipated length of time dewatering will take; and
• a communication protocol to advise CAMQ of the plan.

(b) during any period of water takings that exceed eight (8) hours per day (e.g., spring melt or storm), the mandated manual private well monitoring will be increased from monthly to weekly;

(c) three (3) representative wells in close proximity to the quarry will be instrumented with programmable water level measuring and recording devices (dataloggers) which will collect water level data every 20 minutes;

(d) the list of representative wells to be instrumented shall be agreed upon by the Permit Holder’s consultant, MOECC and CAMQ’s consultant, and will be completed expeditiously;

(e) prior to commencement of 24-hour pumping, the representative wells referred to above will be sampled and analysed for the parameters mandated by the existing monitoring and those data will be provided to the well owner(s) to facilitate comparison should a trigger event occur; and

(f) all data will be provided to the MOECC and CAMQ in a timely fashion after the spring dewatering has concluded.

Conclusion

215Upon review of the statutory, regulatory and policy provisions that are relevant to a request for a permit to take water, the Tribunal finds that the PTTW should be amended, by adding the terms and conditions enumerated in Appendix A to this Decision.

216The Tribunal finds that the results of the structural geology investigation, diamond core drilling project, and continued monitoring have addressed gaps and uncertainties that were left unanswered at the time of the submission of the Permit Holder’s application to the Director.

217Based on the results of the structural geology investigation, diamond core drilling project, and continued monitoring, the Tribunal finds that the proposed water taking is unlikely to result in unacceptable impacts to the ecosystem or existing well users if the PTTW is amended as set out in Appendix A to this Decision. Based on the new data generated since the Leave Decision, the Tribunal now has the factual record to properly apply the ecosystem approach and precautionary principle. The Tribunal further finds that the reduced geologic and hydrogeologic uncertainties surrounding the Quarry and its impacts have alleviated the need for a cumulative impact study to be completed at this time, but the Tribunal recommends that, should the circumstances change and/or the proposed Melrose Quarry is approved, the need for such a study should be re-assessed by the Director.

218The Tribunal finds that a water-use audit must be performed regarding all water taking activities under the PTTW and, as ordered below, that appropriate water conservation measures must be developed and included in the PTTW by the Director. The Tribunal also finds that the one-year term of the PTTW is appropriate to ensure that adaptive management of the water takings can be facilitated.

219The Tribunal finds that the Permit Holder’s proposed amendments to the PTTW’s monitoring program are reasonable and should be included in the PTTW and that additional conditions, as set out below should be included in the PTTW to ensure compliance with, and the effective implementation of, the PTTW’s contingency plan.

DECISION

220The appeal is allowed in part.

221Permit to Take Water 7742-9E9TGN, dated June 27, 2014, is amended to include the provisions set out in Appendix A to this Decision.

Appeal Allowed in Part

Permit Amended

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Appendix A - Amendments to Permit to Take Water 7742-9E9TGN

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix A

Amendments to Permit to Take Water 7742-9E9TGN

Permit to Take Water 7742-9E9TGN, dated June 27, 2014 (“the PTTW”), is amended as follows:

1. Section 3.2 and Table "A" of the PTTW are amended in the following manner:

(a) row 1 of Table “A” is amended by deleting the number 3,945,600 from the "Max. Taken per Day (liters)" column and replacing that number with the number 3,000,000;

(b) row 1, column "Source Name/Description", of Table “A” is amended by inserting an asterix immediately after the text in parentheses and adding text immediately after Table "A" that reads, "* water takings after the spring snow melt has concluded in any calendar year may only proceed at this volume and for this duration if the discharge is permitted by the Environmental Compliance Approval";

(c) row 3 of Table “A” is amended by deleting the number 164,400 from the "Max Taken per Day (liters)" column and replacing that number with the number 50,000;

(d) a new paragraph is inserted immediately after Table "A" that reads,

"3.3 Where the Permit Holder is advised by the Quinte Conservation Authority of a low-water advisory, the Permit Holder shall only take an amount of water each day equal to the amount of precipitation received at the site in the preceding day. The calculation of the amount of precipitation received at the site for purposes of this provision shall be determined by the Permit Holder based on its on-site precipitation monitor and the area of the site”;

(e) the final row "Total Taking" in Table “A” is amended to read "3,002,250”.

2. The following new paragraphs shall be inserted immediately after paragraph 4.3 of the PTTW:

“4.4 Immediately prior to commencing dewatering for the first time in any calendar year, the Permit Holder shall:

a) obtain a representative sample of water from the quarry sump and have that sample analyzed for all parameters listed at paragraph 4.3.3 in the approved monitoring program;

b) document the volume of water present in the quarry;

c) confirm the volume of anticipated dewatering; and

d) measure the water levels in the three (3) representative wells identified in the monitoring program.

4.5 During dewatering that occurs to remove snow melt and runoff during the spring, the Permit Holder shall monitor the quarry for groundwater seepage and record any observations of seepage.”

3. The existing paragraph 4.4 of the PTTW shall be re-numbered “4.6” and the number “4.3” in the third line of that paragraph shall be changed to “4.5”.

4. The following new paragraphs shall be inserted immediately after paragraph 5.3 of the PTTW:

5.4 No later than September 30, 2015, after consultation with Citizens Against Melrose Quarry (“CAMQ”), the Permit Holder shall prepare amendments to the Contingency Plan that are to the satisfaction of the Director establishing compliance mechanisms and setting out additional measurable trigger mechanisms; and the Contingency Plan shall be amended accordingly;

5.5 No later than September 30, 2015, the Permit Holder shall prepare amendments to the PTTW that are to the satisfaction of the Director setting out water conservation measures to be taken at the site and requiring that a water-use audit to be undertaken at the site; and the PTTW shall be amended accordingly.

5. Schedule “A” of the PTTW is amended by incorporating the following amendments to the Contingency Plan prepared by Oakridge Environmental Ltd., as provided in a letter to the Director, Section 34, and dated March 19, 2014 (“the Contingency Plan”), as follows:

(c) Paragraph 1.1 shall read:

“A ‘trigger event’ occurs where any of the following occur:

• any unusual change in aesthetic water quality (colour, taste, odour) reported by a well owner in the vicinity of the quarry;
• exceedances of a chemical parameter beyond the normal range of variability with respect to its baseline condition;
• exceedances of a parameter above any applicable standard or objective, or as provided in an ECA as determined through monitoring;
• sudden occurrence of non-potable conditions (i.e. bacteria or chemical); and
• a decline in the static (i.e. “at rest”) well water level, exceeding 20% below the normal range of variation as determined by monitoring, not including normal seasonal variations.”

(d) Paragraph 1.2 shall read:

“In the event of a reported claim that a trigger event has occurred or where the monitoring program identifies a trigger event has occurred, the Permit Holder (or delegate) shall immediately undertake the following:”

[The numbered contingency measures remain un-amended]

6. The monitoring program, dated April 30, 2012, as described in Item 1 of Schedule “A” to the PTTW, shall be amended by including the following:

(g) prior to dewatering for the first time in any calendar year, the Permit Holder shall prepare a dewatering plan that shall include:

• the anticipated commencement date of dewatering;
• the anticipated volume of accumulated water in the quarry;
• the anticipated length of time dewatering will take; and
• a communication protocol to advise CAMQ of the plan.

(h) during any period of water takings that exceed eight (8) hours per day (e.g., spring melt or storm), the mandated manual private well monitoring will be increased from monthly to weekly;

(i) three (3) representative wells in close proximity to the quarry will be instrumented with programmable water level measuring and recording devices (dataloggers) which will collect water level data every 20 minutes;

(j) the list of representative wells to be instrumented shall be agreed upon by the Permit Holder’s consultant, MOECC and CAMQ’s consultant, and will be completed expeditiously;

(k) prior to commencement of 24-hour pumping, the representative wells referred to above will be sampled and analysed for the parameters mandated by the existing monitoring and those data will be provided to the well owner(s) to facilitate comparison should a trigger event occur; and

(l) all data will be provided to the MOECC and CAMQ in a timely fashion after the spring dewatering has concluded.