07 06 2004 Public Agenda
MERIDIAN
PLANNING CONSULTANTS INC.
WATER TAKING AS A LAND USE
Public Information Session
July 6, 2004
Township of Oro-Medonte
AGENDA
1. Introduction
2. Purpose of Meeting
. to review the current water taking process
. to identify how the municipality wishes to see the policy changed
. to identify implementation options
. to solicit public input
3. What happens after this meeting?
. Public has until August 13, 2004 to submit comments in writing
. All comments to be reviewed and a follow-up report to Council prepared
. Public meeting under Planning Act to be held in October 2004
. Adoption of water taking by-law could occur this year
4. Overview of current Permit process
. application made to MOE
. proposal posted on EBR website for at least 30 days
. Decision posted on EBR
. Decision can be appealed to ERT
....
5. Shortcomings of the Current Approach
. Complete review undertaken by ECO as part of the Walkerton Inquiry
. No clear evidence that MOE consistently applies ecosystem approach
. No ability to determine how much water taken and still available
. No formal public process
. No direct notification
NOTICE OF PUBLIC INFORMATION SESSION
WATER TAKING AS A LAND USE IN THE TOWNSHIP OF ORO-MEDONTE
Please be advised that the Township of Oro-Medonte will be hosting a public information session
on Water Taking as a Land Use on Tuesday, July 6th, 2004 at 7p.m. in the Township of Oro-
Medonte Council Chambers.
The intent of the Public Information Session is to solicit public input on the inclusion of Water
Taking as a Land Use in the Township's Comprehensive Zoning By-law. If Water Taking is
included as a land use, applications for re-zoning would have to be filed to permit the drilling of
new wells that have the ability of pumping more than 50,000 lit res per day of water. In considering
such an application, Council would have to be satisfied that:
(a) The quality of ground water and surface water in the area will be maintained and, where
possible, improved or restored; and,
(b) The quantity of water available for other uses in the area and as base flow for rivers and
streams in the subwatershed will not be affected.
The basis for considering Water Taking as a Land Use is found within Official Plan Amendment
#17, which was adopted by Council on August 21st, 2003. This policy indicates that Water Taking
will be considered as a land use pursuant to the Township's Comprehensive Zoning By-law once
a detailed review of the issue has been undertaken. A further basis for this policy direction is the
recent decision of the Divisional Court which indicates that Water Taking is a land use pursuant to
The Planning Act and should be subject to Planning Act processes such as Zoning By-laws.
A comprehensive discussion paper on the issue prepared by Meridian Planning Consultants Inc.
is available on the Township's website at www.oro-medonte.ca. The intent of the public
information session on July 6th, 2004 is to provide members of the public with an overview of the
discussion paper and to then obtain public comments on what direction the Township of Oro-
Medonte should take with respect to Water Taking, the application process and the conditions
under which a re-zoning would be granted.
Following the holding of the public information session, members of the public will be given until
August 13th, 2004 to provide written comments. These comments will be reviewed by Township
staff and Meridian Planning Consultants and a further report to Council on the issue will be
prepared in September, 2004. This further report will contain recommendations on what changes
to the Zoning By-law are required and will further recommend that a formal public meeting under
The Planning Act be held to consider these changes. The tentative date for such a public meeting
would be October, 2004.
For further information on this issue, please contact Nick McDonald at Meridian Planning
Consultants Inc. at 737-4512, ext. 226 or at nick@meridianplan.ca or Andria Leigh, Senior
Planner at 487-2171 Ext. 225 or planninq@oro-medonte.ca
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The Walkerton Well
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_.
WATER TAKING AS A LAND USE:
OPTIONS FOR MUNICIPALITIES
Prepared for the Township of Oro-Medonte
May 14, 2004 MERIDIA
PLANNING CONSULTANTS INC
.
TABLE OF CONTENTS
Executive Summary
1.0 INTRODUCTION..................................................................................................................... 1
2.0 THE EMERGENCE OF WATER TAKING AS AN ISSUE......................................................2
2.1 Water Issues Over Time..................................................................................................2
2.2 Emergence as a Major Issue: Walkerton ........................................................................3
2.3 Recent OMB and ERT Decisions on Water Taking .......................................................4
2.3.1 Grey Association for Better Planning v. Artemesia Waters Ltd..............................4
2.3.2 Gold Mountain Springs Inc. v. Township of Oro-Medonte......................................5
2.3.3 Connor v. Ministry of Municipal Affairs and Housing (Trent Hills)..........................5
2.3.4 Dillon et al. v. Director, MOE (OMYA Permit to Take Water).................................6
2.4 Moratorium on New and Expanded Permits...................................................................7
3.0 TH E PERM ITTI NG PROCESS....................... ........................................................................ 7
3.1 How the Process Works .................................................................................................. 7
3.2 Shortcomings of the Process .............................. ............... .............................................8
3.3 Recent Water Protection Initiatives ............. ................ .................................................... 9
3.3.1 Groundwater Studies and the Provincial Water Protection Fund...........................9
3.3.2 Bill 79 ............................................................................. ......................... ................10
3.3.3 Impact Assessment Review ...................................................................................10
3.4 White Paper on Watershed-based Source Protection Planning ..................................11
3.4.1 Source Protection Planning ...................................................................................11
3.4.2 Permit to Take Water Program Management .......................................................11
3.4.3 Water Taking Charges .................... .......................................................................12
4.0 CURRENT THOUGHTS ON WATER TAKING ...................................................................12
4.1 Environmental Commissioner of Ontario (ECO) ..........................................................12
4.2 Association of Municipalities of Ontario (AMO) ............................................................13
4.3 Canadian Environmental Law Association (CELA) ......................................................14
4.4 Conservation Ontario.................................................................................................... .15
5.0 SHOULD WATER TAKING BE CONSIDERED A LAND USE?..........................................16
5.1 Yes, it Should ................................................................................ .................................16
5.2 How to Establish Local Control .....................................................................................16
5.2.1 Official Plan Policies ............................................................ ....... ............................16
5.2.2 Zoning By-law Provisions...................................................................................... .17
5.2.3 Water Monitoring Agreements ...............................................................................17
6.0 THE ORO-MEDONTE CONTEXT....................................................................................... .18
6.1 Types of Water Takings in Oro-Medonte......................................................................18
6.2 Pros of Regulation. ...................................... ........ ..........................................................19
6.3 Cons of Regulation ............................ ........................... ................ ...................... .......... .19
6.4 Which Water Takings Should the Township Consider as Land Uses? .......................20
7.0 CONCLUS ION................................................................. ......................................................... .20
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EXECUTIVE SUMMARY
This paper recommends that water taking be included as a land
use pursuant to the Township of Oro-Medonte Official Plan and
Zoning By-law.
Currently, the Planning Act permits a mu c
regulate uses on the land through Offic' I PI
laws. Some of these land uses can im ct on
available to other users or have an .
surface and groundwater. The nsi
impacts is currently an integra a
process.
The basis for our reco endation is the recent ruling by The
Superior Court of Justice, Divisional Court (Grey Association for
Better Planning v. Artemesia Waters Ltd.). On whether the taking
of water is considered to be a land use, the Divisional Court ruled
that:
"... the taking of water as proposed by the present
respondents was a use of land within the meaning of
the Planning Act and properly the subject matter of
the appeal hearing ... the Board was to hold. The
entire operation constituted a single use of land and
the question before the Board was whether the entire
operation, including the taking of water, should be a
permitted use. In deciding that the taking of water was
not a use of land and in confining the subsequent
hearing to issues relating to the storage and loading
of water ... it denied those opposed to the appeal the
right to adduce evidence and argument relevant to the
question of whether the proposed operation should be
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a permitted use under the official plan and zoning by-
law."
The ruling of the Divisional Court was appealed by the applicant,
but the appeal was abandoned in October 2003. This means that
the ruling of the Divisional Court now stands.
Currently, Permits to Take Water (PTT
Ministry of Environment (MOE) pursu t to
Resources Act (OWRA). The applic Ion is s
Environmental Registry, in most
Consequently, the ECO stated that the PTTW process could not be
relied upon to provide for informed public comments on
applications, develop historical water taking trends, determine exact
amounts of water taken and water still available in any given area
and corroborate that the PTTW program was at all following an
ecosystem approach to implementation.
It is on this basis that we have recommended to Oro-Medonte that
water taking be controlled through zoning. The policy basis for this
approach is contained within OPA 17, which is currently at the
County of Simcoe for approval. The OPA is structured so that a
comprehensive Zoning By-law Amendment is required to add water
taking as a land use. Certain water takings would require a
rezoning, with such a re-zoning granted only if certain criteria are
met.
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A monitoring agreement may also be required as a condition of a
Hold removal, much like municipalities now typically require site
plan agreements, subdivision agreements, encroachment
agreements or cost sharing agreements as a condition of Hold
removal. However, given that the OWRA allows the MOE to issue a
PTTW subject to conditions, any agreement between a PTTW
proponent and the municipality must be structured so that it
complements the conditions set out by the . The nature of the
agreement itself and its relationship with eO RA will have to be
carefully considered to ensure that it is nforcea e.
OPA 17 states that, in considerin
permit a water taking use, Counci
a)
b) the quantity w~va'lab
as base fl fo iv s an
not be ecte ,
It is not suggs e~ W rocess pursuant to the OWRA
be abandoned, st d, it I suggested that a parallel process
pursuant to the Plan 'ng ct e established to work in concert with
the OWRA process, S cifi lIy, the use of land for a water taking
would not be permitted un ss the lands were properly zoned. This
is the same process that is currently in effect for aggregate
extraction operations, where the MNR has the authority to issue a
license to extract pursuant to the Aggregate Resources Act,
provided the lands are appropriately zoned pursuant to the
Planning Act.
In February 2004, the MOE released the White Paper on
Watershed-based Source Protection Planninq, This document
discussed the implementation of Source Protection Plans for each
watershed in Ontario. These Plans would identify water supplies
and create management actions for protecting those sources from
potential risks, The document also discusses PTTW system reform
that includes early and regular notification to interested parties and
increased applicant responsibility to address public concerns.
Many prominent stakeholders in water takings have called for
measures similar to those proposed in the White Paper. However,
the Environmental Commissioner of Ontario (ECO), the Association
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of Municipalities of Ontario, Canadian Environmental Law
Association and Conservation Ontario have lobbied for greater
municipal control over water taking, something which is not
proposed in the White Paper.
Land use regulation pursuant to the Planning Act has been an
integral part in mitigating the impacts of daily life and environmental
protection has become an important compo e of municipal policy,
The Planning Act provides municipalitie ith e power to restrict
the size and location of all land uses 0 the Ian Given the recent
decision of the Divisional Court, Oro e e ow as the ability to
control water takings as well.
The Township has conducte
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1.0 INTRODUCTION
This report, Water Takinq as a Land Use: Options for Municipalities, has been prepared to assist
the Council of the Corporation of the Township of Oro-Medonte in addressing long-standing
concerns over water takings in the Township. With recent developments in the courts and many
years of policy and regulatory development at both the vincial and Township levels, water
taking has now become an important land use issue.
This report is intended to provide residents, busine
Oro-Medonte with some background on e I
presentation/Open House session to be held' earl
recommendations will be prepared and a form ub' ee' g und
Act held to discuss options on how to pro with ulati
'al Plan, through the adoption of
[ aking as a use of land that is to
"It has long involved in the process of approving
the extraction of more than 50,000 litres
ate pe da on average. It is also Council's goal to
ensure that a proc s i tabli hed whereby landowners in the vicinity of a
proposed water taking re infor. ed of a proposed water taking and given an
opportunity to comment on e roposal.
It is recognized that, at the time of the adoption of this Plan, the approval of all
applications for water taking rests with the Ministry of Environment, in
accordance with the Ontario Water Resources Act, as amended. However,
appeals through the court system at the time this Plan was adopted may lead to
the establishment of water taking as a land use in accordance with the Planning
Act. If this decision is made, and is not appealed, it is a policy of this Plan that
the taking of more than 50,000 litres of ground or surface water per day is
deemed to be a land use in accordance with the Planning Act.
The implementation of this policy can only occur if it is implemented in the
Township's Zoning By-law, On this basis, a comprehensive amendment to the
zoning by-law to include water taking as a land use will be required, but only after
it has been determined that water taking is a land use in accordance with the
Planning Act.
In considering such an Amendment, Council shall determine which type of water
taking will require a rezoning and under what conditions such a zoning change
could be granted. If a water taking does require a rezoning, Council shall be
satisfied that at a minimum:
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a) the quality of groundwater and surface water in the area will be
maintained and, where possible, improved or restored; and,
b) the quantity of water available for other uses in the area and as base
flow for rivers and streams in the sub-watershed will not be affected,
As a condition of approval, Council may also requi{j he proponent to enter into a
monitoring agreement to ensure that Council as e ability to ensure that
neighbouring drinking water supplies are no affecte by the extraction. If it is
deemed that the extraction is having a n tive 'mp t on the quality and/or
overall quantity of water available in e a ,C ci ill have the ability,
pursuant to the monitoring agreement, re t e wate xtr ion to cease."
2.0
2.1 Waterlss so~
Ontario and Oro-Medo e a b iev ave high quality groundwater supplies. With
environmental awareness vin i rea over the last twenty years, water protection has
become a forefront issue in 0 rio, As onitoring technology has evolved, the impacts of land
use on water have become more n erstood. While contamination discoveries in the 1970s
altered scientific thoughts on contaminant transport, the 1980s unearthed the many potential
causes of groundwater contamination: waste disposal sites, underground storage tanks,
pipelines, septic systems and sewage sludge disposal, road de-icing, dry cleaning operations,
mining and aggregate tailings, urban runoff and excessive nutrient or chemical application on
lands.
Water pollution is difficult to track and halt. While easier to address in surface water processes,
the groundwater regime is much slower and a pollutant can linger for many years without being
detected. Ultimately, the water source can be compromised and become unusable.
Groundwater remediation is more expensive than for surface sources and may not necessarily
solve the problem, especially in fractured bedrock systems. Supplies in Smithville, on the
Niagara Peninsula, and Elmira, north of Kitchener-Waterloo, were all destroyed due to waste
disposal or chemical handling practices. The contamination of the Wood Street well in Barrie is
due to similar practices.
According to a Canadian Environmental Law Association (CELA) fact sheet, the maximum
pumping volumes for Permits to Take Water (PTTWs) in 1999 allowed 1800 billion litres of water
to be pumped from water bodies or aquifers for a variety of uses. The Ministry of the
Environment (MOE) based PTTW volume on the maximum instantaneous volume over the
permitted hours of use for one year. Actual pumping has tended to be between 1.0% and fifteen
percent of the PTTW volume. These figures do not include takings less than the 50,000 litres per
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day threshold and those for emergencies, domestic use or livestock watering. Uses requiring
less than the 50,000 litres per day threshold, equivalent to a kitchen tap running 24 hours a day,
typically amount to three to five percent of all takings and are not required to obtain a PTTW.
While most water is used and returned to the environment (some of it in a degraded condition),
one percent of all takings is not returned and used for food and drink manufacturing. There is no
comprehensive inventory of all takings in the Province and no definite amount on how much
water is actually taken for all uses annually.
property, undiminished in quality
Land use regulatio p In mitigating the impacts of daily life and
environmental protec n h nt component of municipal policy. The Planning
Act provides municipali s er restrict the size and location of all land uses.
However, municipalities hav ist lIy I cked the ability to adequately protect its water sources
from being exhausted or stres d by ermit to Take Water (PTTW) holders. As this report
indicates, water taking has now be nfirmed as a 'use of land' by the courts and on this basis,
municipalities now have the option of regulating the use,
A use of land affects groundwater quality and quantity, just as the use of groundwater and
changes in the quality of groundwater affect the use of land. It is our opinion that there needs to
be much more of an effective relationship between land use controls and groundwater protection
to ensure that effective and informed land use decisions can be made.
2.2 Emergence as a Major Issue: Walkerton
In May 2000, an E.coli outbreak in the Walkerton municipal supply killed seven people. The
bacteria entered a municipal well through a wetland that was contaminated by farm runoff. The
well had malfunctioning treatment and monitoring equipment and was operated by officials who
were clearly negligent in their duties.
In January 2001, the Environmental Commissioner of Ontario (ECO) prepared a brief to the
Walkerton Inquiry. The ECO presented comments on the history and present strains on the
PTTW system. These comments stemmed from their 1999 review of the PTTW system. For the
Inquiry, the ECO reviewed 183 PTTW Applications for the accuracy, quality and quantity of
information in the Environmental Registry notices, trends in PTTW length and the provision of
links to relevant information. As a follow-up assessment in 2000, the ECO reviewed 255 new
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PTTW Applications to see if identified problems were continuing. Three major concerns with the
program were raised as a result:
. Public accountability is threatened because of inaccuracies, omissions or
misrepresentations of crucial information in Registry notices;
. Ecosystem protection is compromised as new issued without access to
complete information on existing water takings; a
. Increased conflicts and leave to appeal Review
Tribunal (ERT) over PTTWs may be prom e
ient Management Act
the size and operations
er standards for operation and
for users. PTTW Notices are
2.3 Recent 0
2,3,1
after
At the hearing, the OMB ruled that water taking was not a land use under the Planning Act and,
therefore, not a consideration at the hearing (Order #0454, March 27, 2001). On this basis, the
OMB allowed the appeal and amended the Official Plan and Zoning By-law to permit a "water
loading facility" (Order #1177, July 24,2001). The Grey Association for Better Planning, a
ratepayers association, appealed this decision to Divisional Court.
The Superior Court of Justice, Divisional Court ruled that the OMB erred by interpreting "use of
land" as an issue of fact to be decided on the basis of the evidence of a planner. Determining
"use of land", according to the Court, is a question of law under the Planning Act, meaning the
OMB refused an essential aspect of the appeal by not considering the PTTW. Consequently,
those opposed to the application lost the right to argue whether the proposed operation should be
permitted and a new OMB Hearing ordered (Court File 504/02, November 21, 2002). Artemesia
Waters appealed the decision, but dropped the appeal in October 2003,
On whether the taking of water is considered to be a land use, the Divisional Court ruled that:
" ,., the taking of water as proposed by the present respondents was a use of
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land within the meaning of the Planning Act and properly the subject matter of
the appeal hearing ,.. the Board was to hold. The entire operation constituted a
single use of land and the question before the Board was whether the entire
operation, including the taking of water, should be a permitted use, In deciding
that the taking of water was not a use of land and in confining the subsequent
hearing to issues relating to the storage and loading of water... it denied those
opposed to the appeal the right to adduce evidenc nd argument relevant to the
question of whether the proposed operation sho d be permitted use under the
official plan and zoning by-law. "
The ruling further discussed the "use of land":
or s ght to build a bottling plant on the subject lands.
equiring the quantity of water in the groundwater
Ian Agreement and/or Development Agreement, the
t of a long-term monitoring program to assess those
In this hearing, the OMB affirmed the need to consider the impacts of water taking in making land
use decisions:
"When considering applications under the Planning Act ... this Board has a
positive obligation to examine the environmental and ecological impact of the
proposed land use and its associated water taking. Section 2 of the Planning Act
states ".. .the Municipal Board, in carrying out [its] responsibilities under this Act,
shall have regard to, among other matters, matters of Provincial interest such as,
(a) the protection of ecological systems, including natural areas, features and
functions; (b) the protection of the agricultural resources of the Province; (e) ...
the supply, efficient use and conservation of ... water." The Provincial Policy
Statement [PPS] provides a fwther elaboration of the Provincial interest and, at
section 2.4.1, states: 'The quality and quantity of ground water and surface water
and the function of sensitive ground water recharge/discharge areas, aquifers
and headwaters will be protected or enhanced. "
2.3.3 Connor v, Ministry of Municipal Affairs and Housing (Trent Hills)
As a result of municipal amalgamation, the Municipality of Trent Hills conducted Official Plan
Reviews for the Plans of the Former Township of Seymour, Town of Campbellford, Township of
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Percy and Village of Hastings. The Ministry of Municipal Affairs and Housing Amended the
Campbellford-Seymour Plan, which has subsequently appealed to the OMB by J,R. Connor
Properties Limited,
Many issues were raised in the hearing, one of which was a request by Mr. Connor for municipal
permits to be issued for water taking. In its Order, the Board commented and ruled on this
request:
"Mr.
2.3,4
OMY A followed that ruling with a threat to warn international investors against conducting
business in Ontario unless the full permit was granted, and both Ministerial and judicial reviews of
the ERT decision were undertaken. In February 2003, then-Environment Minister Chris Stockwell
overruled the ERT, stating the increase in water taking "will not cause harm to the Tay River
watershed." The Minister then allowed the PTTW to extract water at its requested volume under
the conditions that all water taken had to be used for permitted uses under the Permit, none could
be wasted and that annual public meetings be held in the community about the PTTW. The
OMY A Permit would have taken effect January 1, 2004.
The current one-year moratorium on new and expanded permits (Section 2.4 below) put that
decision on hold. One month later, a local MOE Director cancelled the PTTW issued by Minister
Stockwell and replaced it with a new PTTW allowing the 1,5 million litres per day over six years.
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2.4 Moratorium on New and Expanded Permits
In December 2003, the Provincial Government established a one-year moratorium on new and
expanded water taking permits for bottling and certain other commercial takings. The moratorium
is in effect until December 31, 2004 and ensures that no PTTW is issued until new PTTW and
source protection rules are developed. The new rules would be in effect before the moratorium is
lifted in order to ensure the new playing field is used. The ratorium prohibits new or expanded
Water Takings for the following purposes:
. Beverage manufacturing, including bottled
. Fruit or vegetable canning or pickling;
. Ready-mix concrete manufacturi
. Aggregate processing where the incorporated into a slurry; and,
. ore than 50,000 litres of water is
taken daily to be inc
The moratorium doe
dewatering, tree or
that expanded estab ed
with permits that freeze t
3.0 THE PERMITTI
3.1 How the Process Works
Section 34 of the Ontario Water Resources Act (OWRA) requires that a Permit to Take Water be
issued for any water taking in excess of 50,000 litres per day. A property can have only one
PTTW and it must reflect the total use from all combined sources in use. The PTTW is required
whether the source is ground water or surface water.
In considering an application, the MOE Director in charge of the application is bound to consider
the protection of natural ecosystem function and any groundwater or surface water sources that
may be affected by another taking as per Regulation 285/99, the Water Taking and Transfer
Regulation. Applications must include accurate information on the location and the proposed
quantity of the taking and if applicable, any information about the water storage, use of ponds,
pumping tests or existing problems.
Applications are submitted to an MOE Regional Office, with the exception being the Barrie District
Office. Here, applications are directly reviewed without posting to the Environmental Registry in a
grandfathered approach from when the Barrie Office had an in-house hydrogeologist. The four
main Regional Offices review the application for completeness and then posts the application on
the Environmental Registry under the Province's Environmental Bill of Rights (EBR). Anyone with
Internet access has access to the Environmental Registry. No other notice is provided unless
any party makes a request to be notified. It should be noted that some municipal water takings,
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takings for the irrigation of crops and takings of less than one year in length are not posted on the
Environmental Registry.
All PTTW proposals are posted on the Environmental Registry for public comments for at least 30
days. After the 30-day period has passed, the MOE posts a Decision Notice on the
Environmental Registry. The Decision Notice indicates whether or not a permit has been issued
and why. When a decision is made, any resident of 0 rio may seek leave to appeal the
decision, by serving written notice within 15 days of e de . ion date. The appeal must be
served upon the Environmental Commissioner, the E and he proponent, and is heard by the
Environmental Review Tribunal (ERT). The leave fa pe us emonstrate that:
a)
b) in
ee appealed and dealt with by the ERT.
e Environment, as was the case with the
. Some registry notices includ d inadequate or inaccurate descriptions of PTTW proposals
and permits, included ambiguously or incorrectly reported sources of water and
inaccurately or inconsistently reported water quantities;
. MOE staff does not use metric and imperial measurements consistently in proposal and
decision notices. This makes tracking, assessing and managing water resources more
difficult, although Applications are now beginning to use both measurement systems to
report volumes;
. There is evidence of regional differences in PTTW evaluation by MOE staff, resulting in
regional variations in PTTW administration;
. Takings were permitted which did not appear to take into account the quantity of water
available in particular watersheds;
. There is no clear evidence that MOE consistently applies an ecosystem approach to
assessing PTTW applications and issuing permits.
According to the Standard Development Branch of the MOE:
"an ecosystem approach to land use planning would provide early and
systematic guidance on the inter-relationships between existing and potential
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land uses and the health of ecosystem over time. This approach is based on the
recognition that ecosystems have limits, especially in terms of the stresses that
they can absorb. There is growing evidence that too much stress can irreversibly
degrade or destroy ecosystems. "
The ECO concluded that information generated by the PTTW process could not be relied upon to:
. Enable the public to make informed comments 0
. embers of the public and other
so ater taking trends;
. actually being taken
.
cation is a posting on the Environmental
OE Director chooses decides to, at their
3.3
With increasing pressure on Gove me to ensure safety and restore trust in the drinking supply,
several initiatives have been undertaK n in recent years and months:
3,3,1 Groundwater Studies and the Provincial Water Protection Fund
In August 1997, MOE created the Provincial Water Protection Fund. Originally set up to assist
municipalities with capital projects to improve water- and sewage-related infrastructure costs, the
fund was later opened up to include groundwater studies for municipalities in order to deal
proactively with increasing environmental, health and cost concerns. Provincial assistance was
gauged through a three-step process:
. The first step was to identify what issues and conditions a municipality faced with its
groundwater supply. If a municipality was concerned about potential contamination,
expansion or remediation costs, quantity, quantity and competing demands and reliance
upon groundwater sources, it was hoped that they would consider undertaking a
groundwater study.
. The second step was to decide which study would be ideal for the situation. Depending
upon what level of knowledge a municipality possessed about their groundwater supply,
they could select from five eligible study types: groundwater resource assessment,
contamination assessment, current groundwater use analysis, cost efficiency evaluation
of protection alternatives and a final groundwater management and protection plan.
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. The third and final step was the determination of funding based upon a sliding scale. All
municipalities were required to finance some portion of any study.
The objective of the fund was to promote innovation and action on groundwater protection. By
encouraging and assisting municipalities through studies and implementation, it was expected
that an information base would be created to comprehend groundwater systems. From that,
action plans and best management practices would emerge er time.
The fund was originally intended to be a three-year but has been extended twice for
2002 and 2003 projects.
3.3.2 Bill 79
3.3.3 Impact Asse me~
Historically, PTTWs have een nte on a first-come, first-serve basis considering the
sustainability of the source an ' s poten' I non-interference with other water users. There is the
uncertainty as to the number of ta . under the 50,000 litres per day threshold, and no central
database compiling all permits and volumes approved exists. The 2001 ECO investigation of the
PTTW system at Walkerton found inconsistency between approvals at the four regional MOE
offices. This inconsistency may be reduced through centralizing some steps in the approval
process, although nothing is currently happening between MOE regions.
All of the above factors, coupled with an increased number of applications has created situations
where approved demand theoretically exceeds supply, In 1999, the Credit Valley Conservation
Authority calculated that they could not meet the demand of all permitted takings if all of the
permitted takings were added together and simultaneously accessed.
MOE began reviewing best practices for permit assessment in late 2001. The review included
both scientific assessment methods and public consultation in an attempt to find an
interdisciplinary, ecosystem-based process. The MOE may yet decide to set stricter terms and
conditions in permits, and increase enforcement to ensure compliance amongst permit holders.
The report, titled Good and Acceptable Practices for Assessinq Water Takinq Proposals and
written by Gartner Lee, was submitted to the Ministry in July 2002.
MOE has since acted by initiating two pilot projects that test some of the practices discussed in
the Gartner Lee Report. The first is a monitoring and reporting project currently underway under
the auspices of the Quinte and Long Point Conservation Authorities. There, PTTW Holders are
monitoring and reporting their water taking data to their respective Conservation Authority (CA).
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The CAs involved will then be reporting back to MOE with recommendations on assistance and
program measures that will be required to bring monitoring and reporting to full capability
Province-wide, The data collection phase is being completed in Spring 2004.
The second pilot project is evaluating testing measures for minimum in-stream flow thresholds.
Measures involved in this pilot are in use in other jurisdictions as a means to determine protective
water levels for aquatic ecosystems. Final recommendatio re expected in Autumn 2004,
3.4 White Paper on Watershed-based Sou
The White Paper was released February 12, 2 4.
thoughts regarding Source Protection Planning nd t
3,4,1 Source Protection Planning
t the Walkerton Inquiry, Source
The Government inten to r uir otection Plans for each watershed region in the
Province. To create these ns, ourc Protection Planning Board, comprised of the Board of
Directors of the lead Conserv 'on Auth rity (CA), would appoint a Source Protection Planning
Committee (SPPC) and coordin e II development, work and expertise available in the
watershed region for a Plan to be created. The SPPC is intended to consist of representation
from municipalities, the Province, CAs and other potential stakeholders. This Committee will
establish working groups in the watershed region to undertake Plan development. Such
committees would also include municipalities that do not participate in Conservation Authority
activities today.
With the organizational structure established, the Plan would enter its creation mode. Technical
assessments and interim management strategies would be needed in order to take stock of
existing and potential water supplies, as well as immediate threats and appropriate interim
responses. Based on the hazards identified, management actions can be evaluated and
eventually selected as source protection methods, The drafted Plan would require municipal
resolutions in support of the plan from all municipalities in the watershed region while the Minister
considers it for approval as well. The Plan would also be subject to EBR requirements, including
public review on the Environmental Registry. Monitoring and updating of Source Protection Plans
would be expected, as is the trend with similar plans in existence. Public consultation would be
required at all stages.
3.4.2 Permit to Take Water Program Management
Instead of Director discretion or local agency request triggering notification, the MOE is proposing
to ensure that early and regular Ministry notification is provided to interested parties and to
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.
increase the responsibility of applicants to address public concerns where there is satisfactory
interest in the application.
MOE also hopes to commission more research on water taking impacts, Water budgets will be a
prime focus of such research, with an expectation that rules would be established to determine
how a water budget handles the features of the watershed, the scope of its reach and the amount
and type of water taking. Further research is also being e to evaluate relationships between
stream flow and aquatic ecosystems,
Monitoring and reporting the volumes of water ta
'd line and Procedures Manuaf' to
w system. An improved process is
3,4.3
In conjunction with the e-y rat riu on new and expanded PTTWs, the Government
declared their interest in ap ing a alty harges to commercial takings that result in the export
of water from a watershed. It ould b implemented along with any potential changes to the
PTTW program. Such royalty cha , which would be the first such duties ever applied to water
in Ontario, have been recognized by the MOE as a potential trade issue and hindrance upon the
competitiveness of the Ontario economy. This will be implemented in the short term for water
bottlers and possibly expanded in the future for golf courses and other users.
4.0 CURRENT THOUGHTS ON WATER TAKING
MOE began the long process of updating the PTTW system in Ontario in April 2003 by consulting
with many groups representing Provincial interests, Below are the opinions of some of the
groups active in lobbying for improved water taking legislation and regulation.
4.1 Environmental Commissioner of Ontario (ECO)
The ECO is the office devoted to enforcing the provisions of the EBR. It strives to involve the
people of Ontario in Government decisions and bring environmental accountability to Government
decisions.
In its 2002-2003 Annual Report, the ECO touches upon many of its previous recommendations,
including those arising from their submission to the Walkerton Inquiry. For example, the Ministry
of Health and Long Term Care responded to the need for updated Drinking Water Advisory
Protocols and was noted by the ECO for reflecting legislation enacted in the wake of the tragedy.
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Progress on PTTW program administration merited one page of discussion in the 2002-2003
Annual Report. The ECO is awaiting recommendations on alternatives developed out of the
Gartner Lee Good and Acceptable Practices report, which are anticipated to be ready in Autumn
2004. One needed improvement is improved notice of applications on the EBR. The ECO has
noted a history of poor and inappropriate descriptions of the application with an observation that
they might have been the original writings submitted by the onent.
The ECO also calls for "report cards" on takings perf manc These would be submitted by the
Permit holder and would indicate how they have fol ed t co itions of their PTTW, as well as
the volume of water taken. The annual "report rds' uld ve . nificant merit as to whether
or not permission to use the water would c tinu S hare ort rd would be considered
similar to the annual compliance reports requir for re te extr tio operations pursuant to
the Aggregate Resources Act.
us 'nventory and ecological impact
would track volumes of water
nicipal concerns over the PTTW process in December
AMO is concerned that there is no rigourous guide to local impact assessment in the Province of
Ontario. The general practice is running a single 72-hour pump test to determine if the well is a
sustainable source and to measure any potential lowering of groundwater or surface water levels.
Local assessment does not necessarily require consideration of Official Plan or Watershed Plan
provisions, although this trend is reversing. AMO encourages new criteria and standards for local
impact assessment, a definition of interference warranting permit reductions, randomly auditing
applicant impact testing, utilizing local information sources such as Official Plans and amending
Regulation 285/99 to include existing and planned uses of water as a consideration in reviewing a
PTTW Application.
Progressive environmental policy has resulted in a broad range of data on water quality and
quantity, with groundwater studies adding more knowledge to that base. However, there is
neither a standard methodology nor any agreements on data sharing, collection and maintenance
for Cumulative Impact Assessment. AMO recommends that information gathering and sharing
between all agencies become a higher priority with an agreement on cost-sharing between those
parties, that responsibility for cumulative impact assessment rest ultimately with the Province and
municipalities and conservation authorities assisting, that there be a standard cumulative impact
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assessment methodology and that a Provincial policy be drafted to designate sensitive water
bodies as requiring stringent protection, much like the policy that exists for wetlands,
Similarly to other stakeholders, AMO recommends that municipal notification be mandatory, and
also that public notice be served through local newspapers and, if necessary, a public meeting.
regulation. Section 2 of the Planning Act mandates th
water supply and use and ecological systems in all cision ,
(1997) strives to enhance or protect quality and q ity wa
the significance of Gold Mountain Springs In . v,
Planning Act superior to Ontario Water Reso rces
that the MOE amend their practices to conside un
and including an amendment to the OW
For example, water taking for
4.3 Canadian Environmen
CELA is a non-profit, public interest organization established in 1970 to use existing laws to
protect the environment and advocate for environmental law reforms. It is also a free legal
advisory clinic for the public, and will act at hearings and in courts on behalf of citizens or citizens'
groups who are otherwise unable to afford legal assistance,
CELA has issued several documents on water and the law, Their most recent document on
source protection is "Protecting Ontario's Drinking Water Watershed-Based Source Protection
Planning: Q's and A's and an Implementation Check List", a thirteen point checklist being
weighed against Government commitments to implement Justice O'Connor's recommendations.
CELA is lobbying for this process to be undertaken:
. Agree upon a threat assessment process, including definitions of "vulnerable area" and
"sensitive water resource" (a working group was created in November 2003);
. Make drinking water source protection binding law through new and amended legislation,
including the Municipal Act and the Planning Act;
. Provide for interim source protection measures to protect water from high risk activities
and uses, including a model Source Protection Plan;
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. Provide for municipal regulatory powers and stable, sustainable funding for source water
protection;
. Establish a working relationship with First Nations on source protection;
. Delineate watershed boundaries, designate lead authorities and name
committee chairs for Source Protection Planning co
. Peer review Provincial Water Quality Objec ' nsure the best source protection
standards are applicable;
. Make information available to the publi
. Work with stakeholders to identif ource Protection Plans;
and,
.
A CELA representative ha Source Protection
Implementation Committee 0
4.4
Conservation Ontario i he ntra 0 0 n io's 36 Conservation Authorities (CAs). Created
in 1946 by an Act of the cia Le isla ure, CAs are mandated to promote conservation,
restoration and responsible na men of Ontario's water, land and natural habitats through
programs that balance human, en 'ron ntal and economic needs.
In their 2003 report, Conservation Ontario Discussion Paper: Recommendations for Monitorinq
Ontario's Water Qualitv, Conservation Ontario made a series of recommendations as to testing
methods and criteria for both surface and groundwater. Similar to the other groups, Conservation
Ontario recommends a consistent approach across watershed and information sharing and
reporting, but further add that individual CAs need the ability to address specific and unique water
quality concerns within their watershed. Testing criteria would measure water chemistry, benthic
invertebrates and toxic contaminants in all water sources, as well as bacterial content (especially
E.coli) in surface water bodies. All of these results would be published often and critically
analyzed in "State of the Watershed" reports published every five years.
Conservation Ontario has also been a long-time proponent of Watershed Plans, an idea the
Provincial Government has suggested in their White Paper. Their recommendation is to
implement Watershed Plans through a variety of mechanisms administered by agencies at the
Provincial and local level, including land use planning. Water budget modeling, aquifer
vulnerability studies and assimilation studies are believed to be the chief tools for directing such
policies. In any case, Conservation Ontario feels Conservation Authority-driven Watershed
Planning needs to be consistently integrated with drinking water supply planning typically led by
municipalities,
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5.0 SHOULD WATER TAKING BE CONSIDERED A LAND USE?
5.1 Yes, it Should
No reliable public process exists for PTTW Applications, nor is an all-inclusive process assured in
the White Paper. The Planning Act already provides for a mandated public process that is
designed to ensure that a Municipal Council makes an ' ormed decision on the application
before it. A public meeting is held to hear comments n the pplication for Council to decide
upon. Notice of Passing is issued to interested parti with tails of the land use and when the
By-law, or in this case, when the water taking, com . to ect. he Right to Appeal is available
(as it is with an EBR posting) to those who feel co lied. The anning process has worked
for several years and will continue to do so. I s mo ready ha Ie a new land use in the
system.
Thorough and consis t c su tion 's es ential component of the Planning Act, providing
citizens with opportunitie to c m ap ications. Today, the EBR does not provide every
person interested in speaki on TT Application the opportunity to do so. Notice is only
served to those who are mobih d and nderstand how the system works well enough to seek
out applications. When an applica IS made under the Planning Act, consultation between the
applicant and the public is required at nearly every step through public meetings, deputations to
Council and the appeal process.
5.2 How to Establish Local Control
5,2.1 Official Plan Policies
Increasingly, municipalities are including Water Taking Policies into their Official Plans. The
Township of Oro-Medonte added Section D4 Water Taking to its Official Plan by OPA 17, which
has not yet been approved by the County of Simcoe. OP A 17 is structured so that a
comprehensive Zoning By-law Amendment is required to add water taking as a land use. Certain
water takings, therefore, would require a rezoning that would need to satisfy quality and quantity
issues. A monitoring agreement would also be required. All of these measures would ensure
that no significant negative impacts are felt and, if a problem arises, provide Council with the
power to cease extraction until the problem is solved.
Several other municipalities are considering adding Water Taking Policies in their Official Plan
Reviews. Halton Region is looking at including policies that would require monitoring the amount
of extraction granted through PTTWs in conjunction with the Province and Conservation
Authorities, The intent is to promote a sustainable limit on water taking in the Region. The
Region is also proposing to require an Amendment to the Official Plan to permit any PTTW
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issued after the date that Policy is approved. Durham Region has proposed similar provisions.
As well as requiring an Official Plan Amendment for any application under the Planning Act that
involves a PTTW or potential impacts on water quality, an application in Durham shall need to
reflect the water budget for the appropriate subwatershed or ensure ecological integrity is not
compromised, Watershed Plans, which would be developed for each subwatershed, shall also
be prepared, and developments must account for several water-based criteria in the Plan,
including groundwater studies and environmental monitorin ans.
5,2.2 Zoning By-law Provisions
Once policies on water taking are incorpor ed
empowered to, under the Planning Act, enact onin
5.2.3
Enacting a Water M ito~ n s a municipality to place conditions on the use
and monitoring of water ing.
In Neil Anderson v. County 0 ant, Mr Anderson appealed several provisions of Official Plan
Amendment #12 to the Official PI the former Township of Oakland, which permitted a golf
course across the road from his dairy operation. One of Mr. Anderson's many concerns with the
proposal was the potential for the proposed well to negatively impact his established well. The
applicant's hydrogeologist noted that there were some impacts upon drilled bedrock wells, but not
dug wells. It was recommended that the applicant enter into a Well Monitoring Agreement to
enable remedial measures to protect the groundwater supply if need be. Mr. Anderson was
willing to have his well monitored for this purpose.
Similar concerns were put forward in Andrew J. Smith, et al. and South River Developments. In
this matter, the redevelopment of an old mill in the City of Cambridge worried neighbours that
their wells would be impacted by a new well drilled on the property. Again, all parties agreed
upon a Well Monitoring Agreement that mandated a secondary pump test for the new well:
".. ..if this secondary testing indicates that there will be any significant adverse
impact on the quantity of the Homeowner's Water Supply, development of the Inn
shall not proceed."
It is our opinion that such an agreement could be routinely required as a condition of are-zoning
process (through the lifting of a Holding Provision) and incorporated within a Site Plan
Agreement. However, the intent of the monitoring would be to supplement the conditions set out
by the MOE as part of the PTTW process, It is anticipated that the primary enforcement agency
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would continue to the MOE. However, the municipality, through the zoning process could deem a
water taking to not be in compliance if the use is not operating in accordance with the by-law.
6.0 THE ORO-MEDONTE CONTEXT
It has long been the goal of the Council of the Township of Oro-Medonte to be more involved in
the process of approving and considering applications t involve a PTTW. Official Plan
Amendment #17 added policies to guide Council on the' pie ntation of water taking as a land
use, but it has yet to be approved by the County of Si oe.
6.1 Types of Water Takings in Oro-M
r granules from saleable product
There is no central dat ter ki in the Township. However, a search of PTTW
Decision and Proposal No 'ces icat s how many PTTWs have been applied for in the
Township since May 15,1994.
There are at least thirty-one large-scale water takings in the Township of Oro-Medonte. Of these
thirty-one, the bulk of PTTWs are for golf courses, aggregate washing and artificial wetlands.
Three known PTTWs are for communal or municipal supplies, and one is for the Coldwater Fish
Hatchery. Horseshoe Resort holds one PTTW for the ski hill and golf course and a second
PTTW for the golf course, resort, timeshares and nearby subdivisions. There is also one PTTW
for a geothermal energy system on a residential property.
Most of the permits apply for only part of the year. These permits are applicable largely to the
golf courses, which use the water for irrigation during the summer season. Mount St. Louis
Moonstone holds a PTTW for winter snowmaking. Aggregate permits appear to be divided fairly
evenly between year-long and seasonal PTTWs. Most residential and commercial PTTWs apply
24 hours a day, with varying hours for the remaining PTTWs.
In accordance with MOE practice, surface water takings are five years in length while
groundwater takings are ten years, There are exceptions based on potential risk or where there
is less available data to evaluate, however inconsistencies do occur in the Township. The Hillway
operation PTTW (Pit #5), for example, has no expiry date.
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6.2 Pros of Regulation
As a result of the many studies undertaken by the Township of Oro-Medonte, it is our opinion that
water taking should be dealt with as a land use pursuant to the Official Plan. It is also our opinion
that the Township has a stake in improving the quality of life in the Township for its residents and
businesses by regulating water taking as a land use, since:
. The Township would be able to set the minimu infor ation requirements to support an
application, in conjunction with a Conservation uthori
. Neighbours in the
application; and,
.
However if a water taking has
cesses, the Township could be
. mak plementation of Watershed and Source
ch s are completed within a few years, Oro-
yed ' or being vulnerable to water taking already
a requiring special studies to permit development.
This would be a significant ne e Township and would attach significant responsibilities
to it.
6.3 Cons of Regulation
With additional regulation, there are some drawbacks that the Township must be prepared to
handle:
. There will be additional work required by Township staff and consultants in order to
process applications involving water taking;
. Initial confusion over the new land use may lead to strained emotions between residents,
businesses and the Township. Applicants or individuals who wish to test the viability of
the Township's water taking zoning may appeal early decisions on the issue to the OMB;
and,
. Proof of impact would be required and it cannot be based on simple complaints. There
would have to be a scientific evaluation to substantiate any impacts.
While additional work is part and parcel with emerging issues, we are confident that the Township
would stand to gain a net benefit for all.
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6.4 Which Water Takings Could the Township Consider as Land Uses?
Many factors affect the perception of water takings. The issue of bottling, for example, has been
subject of much media attention in recent years. However, CELA reports that water taking for
bottling and export out of a watershed comprises less than one percent of all water use in
Ontario. The volume and magnitude of other PTTW uses, such as those for golf courses or
aggregates, are an issue due to the nature of their operatio
We recommend that the following PTTW uses be c for implementation into municipal
regulation:
. All commercial and recreational uses Ie, golf course irrigation
and snowmaking;
.
. All uses that export wat
Conservation Authority'
.
. Private cond
kin s I) regulated through Zoning, OPA 17 states that a
uire to permit water taking as a land use.
7.0 CONCLUSION
The course of events over the last five years has seen Ontario municipalities gain incredible
knowledge about their water resources and the impacts of water taking on land use. Through
existing powers and resources made available on the issue, municipalities and similar bodies
have taken steps towards regulating water-related issues:
. The Walkerton Inquiry called for reforms in both source protection and water taking
management. More municipal involvement was a key recommendation in both fields;
. The Divisional Court ruled, "the taking of water is a use of land within the meaning of the
Planning Act" in Grey Association for Better Planning v. Artemesia Waters Ltd.;
. The Planning Act overrides the Ontario Water Resources Act, as ruled in Gold Mountain
Springs Inc. v. Township of Oro-Medonte. The importance of land use was reaffirmed in
the context of water resource management;
. The inability to become fully informed about PTTW Applications does not provide an
avenue to reconcile community concerns. The experience of the OMY A Application
show that there are issues with the current system;
. The Province has spent considerable time, money and attention on enabling
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municipalities to understand both their water resources and their responsibilities
surrounding them;
. Stakeholder groups have been advocating similar goals for several years now on water
protection. ECO, AMO, CELA and Conservation Ontario have all stated that land use
planning is an integral part of water protection.
likely that change shall soon come to the legislative
taking in Ontario. The Planning Act should be
opportunity for municipalities to regulate water ta ng
and established land use planning process, eT
for such a change.
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