Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: June 13, 2018

CASE NO.: 17-047

PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended

Appellant: GolfNorth Properties Inc.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Terms and conditions of a Permit to Take Water

Reference No.: 3605-AM6MHH

Property Address/Description: Lot 89, 91, Concession German Company Tract

Municipality: Township of Woolwich

Upper Tier: Regional Municipality of Waterloo

ERT Case No.: 17-047

ERT Case Name: GolfNorth Properties Inc. v. Ontario (Environment and Climate Change)

Heard: May 17, 2018 by telephone conference call and in writing

APPEARANCES:

Parties GolfNorth Properties Inc. Counsel/Representative+ Doug Breen+

Parties Director, Ministry of the Environment and Climate Change Counsel/Representative+ Jessica Rosenberg

Participant Regional Municipality of Waterloo Counsel/Representative+ Richard Brookes

DECISION DELIVERED BY MARLENE CASHIN, JUSTIN DUNCAN AND HELEN JACKSON

REASONS

Background

1On June 8, 2017, the Director, Ministry of Environment and Climate Change (“MOECC”) issued Permit to Take Water (“PTTW”) No. 3605-AM6MHH to Brookfield Country Club Limited, owned by GolfNorth Properties Inc. (“GolfNorth” or “Appellant”), for its golf course located at 400 Golf Course Road in Conestogo, Township of Woolwich, Ontario. PTTW No. 3605-AM6MHH provided for the taking of water from an online pond and two groundwater wells, identified as PW 1/00 and PW 1/88, for the purpose of irrigating the Appellant’s golf course. The expiry date on PTTW No. 3605-AM6MHH is February 28, 2028.

2On July 4, 2017, GolfNorth appealed to the Environmental Review Tribunal (“Tribunal”), under s. 100(4) of the Ontario Water Resources Act (“OWRA”), Conditions 4.4 and 4.5 of PTTW No. 3605-AM6MHH, which relate to a requirement to install nested bedrock monitoring wells in the shallow and deep bedrock aquifer, and to undertake water level monitoring from those wells.

3On November 8, 2017, a Pre-hearing Conference (“PHC”) was held, at which time the Tribunal granted the Regional Municipality of Waterloo (“Region”) Participant status in the proceeding, and granted the Region permission to participate in mediation in accordance with Rule 68(e) of the Tribunal’s Rules of Practice (“Rules”). The Region was interested in this matter because it operates two bedrock water supply wells about two kilometres southeast of the Appellant’s property and, in September 2016, one of the Region’s wells was shut down due to a decline in the well’s water level below the pump intake. In addition to adding the Region as a Participant, the Tribunal set a date for the disclosure of relevant documents and scheduled a continuance of the PHC by telephone conference call (“TCC”) to follow mediation between the parties and the Region.

4At the March 9, 2018 TCC, the parties advised that, although the mediation was helpful, the parties had failed to reach a settlement of the appeal. The Tribunal then set dates for a hearing to take place during the week of July 9 to 13, 2018, and established a schedule for the remaining steps of the proceeding.

5On April 23, 2018, the parties advised the Tribunal that they had reached an agreement in principle and anticipated finalizing a settlement agreement in short order. A settlement hearing was scheduled to occur by TCC on May 17, 2018. Written settlement materials, filed by the Director prior to the TCC, included:

a. Settlement submissions of the Director;

b. Executed Minutes of Settlement (“MOS”); and

c. A draft Amended PTTW agreed upon by the parties.

6The draft Amended PTTW agreed upon by the parties is attached to this decision as Appendix 1. In summary, the draft Amended PTTW modifies Conditions 4.4 and 4.5, includes additional reporting requirements, and shortens the expiry date of the PTTW from the existing 10 years to two years. As a requirement of the MOS, the Appellant agrees that it will withdraw its appeal.

7During the TCC on May 17, 2018, the Tribunal heard the submissions of the parties and the Region in relation to the settlement. The parties requested that the Tribunal: find that the settlement is consistent with the purpose of the OWRA and is in the public interest; order the Director to revoke PTTW No. 3605-AM6MHH and issue a new PTTW substantially in the form as the draft Amended PTTW attached to this Order as Appendix 1; and dismiss the appeal. The parties requested that the Tribunal issue an oral ruling during the TCC in order for the Appellant to begin monitoring as soon as possible as required by the conditions contained in the draft Amended PTTW, as it would be ideal to obtain data for two full seasons in order to obtain the necessary information to support the Director’s consideration of a longer-term permit in future.

8During the TCC, the Tribunal considered the submissions and the settlement materials that were filed prior to the TCC and issued an oral decision as requested by the parties pursuant to Rule 201 of the Tribunal’s Rules: ordering the Director to revoke PTTW No. 3605-AM6MHH and to issue a PTTW substantially in the form as the draft Amended PTTW attached to this Order as Appendix 1; accepting the withdrawal of the appeal by the Appellant; and dismissing this proceeding. These are the reasons for the Tribunal’s decision.

Issue

9The issue is whether to accept the proposed settlement and dismiss the appeal pursuant to Rule 201.

Relevant Rule and Legislation

10Rule 201 provides the steps the Tribunal must take in reviewing a settlement agreement that alters the decision under appeal and deciding whether to dismiss an appeal as follows:

201. Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.

11The purpose of the OWRA is set out in s. 0.1 of the Act, which provides:

Purpose of Act

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.

12Section 34.1 of the OWRA authorizes the issuance of PTTWs, and outlines what a Director can require in a PTTW. A non-exhaustive list of matters for the Director to consider in issuing a PTTW is provided in s. 4 of Ontario Regulation (“O. Reg.”) 387/04.

Discussion, Analysis and Findings

13Counsel for the Director, Jessica Rosenberg, explained that according to the MOS, the Director proposes to revoke PTTW No. 3605-AM6MHH and replace it with a PTTW in substantially the same form as the draft Amended PTTW. Ms. Rosenberg explained that the Appellant intends to withdraw its appeal in accordance with the MOS, and indicated her understanding that the Region is supportive of the settlement as proposed. She noted that the executed MOS were signed by the Director, the Appellant, and the Region.

14As noted above, the Appellant only appealed Conditions 4.4 and 4.5 of PTTW No. 3605-AM6MHH, which had provided as follows:

4.4 Between the date of issuance of the Permit and April 30, 2019, the Permit Holder shall install a nested bedrock monitoring well in the shallow and deep bedrock aquifer. The nested well shall be equipped with pressure transducers. Water level monitoring at the Weldwood, Snyder, VandDerGeld and PW1/00 wells can cease after commencement of the water level monitoring in the nested bedrock monitoring well.

4.5 The Permit Holder shall undertake continuous water level monitoring of the following wells:

a) shallow and deep bedrock monitoring wells (new wells to be installed) and

b) PW1/88.

15The draft Amended PTTW proposes to modify Conditions 4.4 and 4.5 by requiring the Appellant to convert the existing standby production well PW1/88 into a multi-level observation monitoring well. This well is to collect shallow aquifer and intermediate aquifer water level data on an hourly basis at a minimum. The requirement to drill a shallow and deep bedrock monitoring well is removed, and the need for such monitoring wells is to be evaluated in the reporting that is required by the draft Amended PTTW over its two-year life.

16These amendments are intended to provide for two years of enhanced water level data in order to better assess the hydraulic interaction between the Appellant’s water taking from the deeper bedrock aquifer and the Region’s H5 well from the upper bedrock aquifer. The additional data collected will assist in the Director’s determination as to whether a deep bedrock monitoring well will be required when a renewal of the Appellant’s Amended PTTW is considered in 2020.

17The parties took the opportunity to revise and enhance other conditions of PTTW No. 3605-AM6MHH that were not part of the Appellant’s appeal, such as requiring an annual report (as opposed to one report after 10 years of operation) which will interpret and evaluate water level data, identify water conservation measures and expand the scope of the report to include the impact of the water takings on the surrounding hydrogeological environment, with specific reference to the Region’s municipal well site.

18During the settlement TCC, the Director indicated that the hydrogeologists with the MOECC, the Appellant, and the Region were present in the discussions leading to the settlement and were in agreement. The MOECC’s hydrogeologist had recommended the settlement to the Director.

19The Director submits that the settlement agreement is consistent with the purposes and provisions of the OWRA, and is in the public interest for the following reasons:

a. The settlement agreement contemplates the issuance of a PTTW which enhances the availability of water level data, while leaving open the possibility of requiring a deep bedrock monitoring well in the future, as well as imposing additional reporting requirements. Collectively, the amendments are in furtherance of the purpose of the OWRA, outlined in s. 0.1 of the Act, set out above.

b. The amendments are in accordance with s. 34.1 of the OWRA, which authorizes the issuance of PTTWs, and outlines what a Director can require in a PTTW. The amendments are also consistent with s. 4 of O. Reg. 387/04, which outlines a non-exhaustive list of matters for the Director to consider in issuing a PTTW.

c. As a result of the settlement discussions, the requirements under the draft Amended PTTW have been discussed amongst all parties. GolfNorth should therefore be well-positioned to meet the Director’s strict expectations.

d. The Director believes the settlement agreement is in the public interest as it fairly balances the Appellant’s concerns while ensuring that the purpose of the OWRA is satisfied.

e. Settling this appeal avoids the cost, time, and resources of a hearing, promoting the public interest in the efficient use of the Tribunal’s resources, and allowing additional resources to be directed to the work to be done and the protection of the environment.

20On behalf of the Region, Richard Brookes concurred in the submissions made by counsel for the Director. He stressed that the draft Amended PTTW will ensure that the Region has a better sense of how the Appellant’s operation is connected with the Region’s drinking water wells. Similarly, Doug Breen, representative for the Appellant, concurred with the submissions made by counsel for the Director and stressed that hydrogeologists for the parties had gone to great lengths to find a path to settlement of the appeal.

21Having considered the parties’ and the Region’s submissions, including the written submissions of the Director, the Tribunal is satisfied that the settlement agreement is consistent with the provisions and purpose of the OWRA and is in the public interest. In particular, the Tribunal finds that the revised conditions contained in the draft Amended PTTW will provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use consistent with the purpose of the OWRA. As a result, the Tribunal finds that the proceeding should be dismissed in accordance with Rule 201.

DECISION

22The Tribunal orders the Director to revoke PTTW No. 3605-AM6MHH and to issue a PTTW substantially in the form as the draft Amended PTTW attached to this Order as Appendix 1. The Tribunal accepts the withdrawal of the appeal by the Appellant and dismisses the proceeding.

Director Ordered to Revoke Permit to Take Water

Director Ordered to Issue Amended Permit to Take Water

Appeal Withdrawn

Appeal Dismissed

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Justin Duncan”

JUSTIN DUNCAN

VICE-CHAIR

“Helen Jackson”

HELEN JACKSON

MEMBER

Appendix 1 – Draft Amended PTTW No. 3605-AM6MHH

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