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Fogler, Rubinoff LLP
Suite 4400, P.O. Box 95, Royal Trust Tower
Toronto-Dominion Centre
Toronto, Ontario, Canada M5K 1G8
Telephone: 416 864 9700 Fax: 416 941 8552
www.foglerubinoff.com
Reply to: Leah Price
Direct Line: 416 365 3710
E-mail: lprice@foglerubinoff.com
February 14,2003 ` File Number 02 3085
BY FACSIMILE AND BY MAIL
Troy H. Lehman Your Client: OMYA(Canada) Inc.
McCarthy Tetrault LLP
Barristers and Solicitors
One London Place
Suite 2200, 225 Queens Avenue
London, ON, N6A 5R8
Paul Muldoon Your Clients: Carol and Melvin Dillon et al
Executive Director
Canadian Environmental Law Association
130 Spadina Avenue, Suite 301
Toronto, ON, M5V 2L4
Steven Shrybman Your Client: Council of Canadians
Sack Goldbau Mitchell
Barristers and Solicitors
312 Cooper Street
Ottawa, ON K2P 0G7
Doug Watters Your Client: Ministry of the Environment
Consel
Ministry of the Attorney General
Legal Services Branch
Environment and Energy
135 St. Clair Ave. W., 10th Floor
Toronto ON, M4V 1P5
Secretary, Environmental Review Tribunal
12th Floor, Suite 1201
2300 Youge Street
P.O. Box 2382
Toronto, ON M4P 1E4
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Dear Sir:
Re: OMYA (Canada) v. The Director, Ministry of the Environment et al
The Minister has released his decision in this matter.
Enclosed is a copy of the Minister's Decision Letter dated February 14, 2003, along with the amended Permit (Appendix "A").
Yours truly,
FOGLER, RUBINOFF LLP
(Signed): Leah Price
LP/ms
Encl.
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Ministry
of the
Environment (Seal of
Ontario )
Office of the Minister
135 St. Clair Ave. West
12th Floor
Toronto, ON M4V 1P8
Tel: (416) 314 6790
Fax: (416) 314 6749
Feb 14, 2003
Troy H. Lehman
McCarthy Tetrault LLP
Barristers and Solicitors
One London Place
Suite 2200, 225 Queens Avenue
London, ON, N6A 5R8
Paul Muldoon
Executive Director
Canadian Environmental Law Association
130 Spadina Avenue, Suite 301
Toronto, ON, M5V 2L4
Steven Shrybman
Sack Goldbau Mitchell
Barristers and Solicitors
312 Cooper Street
Ottawa, ON K2P 0G7
Doug Watters
Counsel
Ministry of the Attorney General
Legal Services Branch
Environment and Energy
135 St. Clair Ave. W., 10th Floor
Toronto ON, M4V 1P5
Secretary, Environmental Review Tribunal
12th Floor, Suite 1201
2300 Youge Street
P.O. Box 2382
Toronto, ON M4P 1E4
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Dear Sirs:
Re: OMYA (Canada) v. The Director, Ministryof the Environment at al
A. NATURE OF APPEAL
OMYA (Canada) Inc. ("OMYA") appeals the decision of the Environmental Review Tribunal ("ERT") released February 19, 2002. The ERT allowed, in part, an appeal by several of the respondents from the decision of the Director made August 24, 2000, granting OMYA a Permit to Take Water, pursuant to section 34 of the Ontario WaterResources Act, subject to a number of conditions.
The Permit issued by the Director was a "phased" Permit. OMYA was permitted to take up to 1,483 cubic metres of water per day from the Tay River until Januaty 1, 2004. Prior to January 1, 2004, OMYA was required by the Director's Permit to take certain steps, including retaining a consultant to conduct a:field investigation program and prepare a scientific report, which report was to be provided to the director and to specified government agencies. The Director's Permit provided that on and after January 1, 2004, OMYA could increase the amount of water taken under the Permit from 1,483 cubic metres per day to up to 4,500 cubic metres per day, if the report referred to above has been received and reviewed by the Director, and OMYA has received official written notification from the Director authorizing the increase. The Director's Permit explained that the reason for the imposition of the conditions related to scientific investigation was to
"ensure the Director receives and assesses proper scientific information on the ecology of the Tay River, the water level of the Tay River and to determine the flow requirements needed to maintain the natural habitat and function of the Tay River."
The Director's Permit also provided that OMYA shall immediately stop taking water under the Permit if water flow falls to 1 cubic metre per second or less.
The Director's Permit was valid until January 1, 2010 (ten years).
The ERT substituted for the Director's Permit, a Permit providing for a maximum taking of 1,483 cubic metres per day, for a period of about six years from the date of the ERT decision (to January 1, 2008), with revised and additional conditions.
The appeal to me is pursuant to subsection 144(3) of the Environmental Protection Act, which provides for an appeal to the Minister in writing "on any matter other than a question of law."
This subsection further provides that the Minister:
"shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest."
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B PRELIMINARY ISSUE - LEAVE TO ADDUCE NEW EVIDENCE
(i) The Application and the Position of the Parties
OMYA seeks leave to adduce new evidence in the appeal before me. Specifically, OMYA asks that I have regard to the following six documents.,
(1) Environmental Assessment Screening Report of the Tay River Intake Project ("DFO October, 2001 Screening Report");
(2) Environmental Assessment Report for the Tay River Intake Project ("DFO March, 2002 Screening Report");
(3) E-mail correspondence from Counsel for OMYA to the Environmental Review Tribunal Secretary, dated November 9, 2001 requesting that the DFO October, 2001 Screening Report be made an exhibit;
(4) E-mail of Ms. Sulyn Cedar dated November 10, 2001;
(5) DFO Authorization, dated April 5, 2002; and
(6) Data Collection Protocol by Dr. Watt, dated June 25. 2002.
Of the six documents sought to be admitted as evidence before me, three (number 1, 2 and 5) relate to the review carried out by the federal Department of Fisheries and Oceans ("DFO") under the Canadian Environmental Assessment Act ("CEAA") and the subsequent Authorization under the Fisheries Act to allow OMYA to take up to 4,500 cubic metres of water, subject to the conditions set out in the Authorization. Documents 3 and 4 relate to OMYA's request to the ERT to admit Document 1 into evidence (after the evidentiary portion of the hearing was completed), and the response by one of the respondents. (I am advised that the ERT refused to admit Document 1 into evidence, but gave no reasons.) Document number 6 is a report prepared by one of OMYA!s consultants in compliance with one of the conditions in the DFO Authorization.
The position of the respondents is as follows:
(a) The Director supports the receipt by the Minister of the DFO October Screening Report and the DFO March 2002 Screening Report (Documents 1 and 2) and does not object to the admission of the request made by OMYA to the ERT to admit the Screening Reports (Document 3). The Director takes no position on the admission of the e-mail from Ms. Ccdar (Document 4), which he says can be of little or no weight. The Director does not address the admission of the two documents (Documents 5 and 6).
(b) The Citizen Respondents oppose OMYN's request for leave to adduce new evidence, in its entirity.
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(c) The Council of Canadians does not address this issue.
(ii) Decision
Upon considering the test for the admission before me of new evidence, I am satisfied that the two DFO Screening Reports and the DFO Authorization (Documents 1, 2 and 5) meet the test. They all postdate the ERT hearing, contain credible information, and are relevant to one or more of the grounds of the appeal before me. In my opinion, had these documents been available to the ERT at the hearing, they may have affected the outcome. I will therefore consider these documents as part of the evidence before me on the issues in this appeal.
With respect to the remaining documents (Documents 3, 4 and 6), while they postdate the hearing and are credible, they are of little weight. I am not satisfied that, had these documents been available to the ERT, they could have affected the outcome. Accordingly, I do not intend to have regard to these documents in considing the issues before me.
C. THE MAIN APPEAL
(i) The Issue and the Decision of the ERT
The main issue on this appeal has to do with the quantity of water OMYA will be permitted to take from the Tay River. The ERT limited the taking to 1,483 cubic mrtres per day. Its main reasons for doing so are expressed in the following passages from its reasons:
"Although OMYA submitted that the physical, chemical, and biological studies concerning the Tay River should be acceptable and that the 1 m3/sec cut off in the conditions of the OMYA PTTW would preclude an adverse cumulative effect on the environment, I am not satisfied that tbere has been sufficient evaluation completed to be assured that the ecosystem, the Tay River watershed, would not be harmed with the taking of 4500 m3/day of water taken from tbe Tay River. More detailed and comprehensive work needs to be done in order to assess the impacts of the much larger taking of water. I agree with tbe Director in this respect that additional work is required. Given the amount of additional information that will be required (as well as the proposed size of the Phase 2 taking and to respect the public process contemplated by the OWRA for PTTWs) it is my view that OMYA should be required to submit a new application under the OWRA for a Phase 2 PTTW." (pages 22-23)
"I was somewhat surprised to learn at the hearing, that a federal CEAA review was in the process of being conducted. I
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contemplated, at that time, of adjourning the hearing until all the information, including the CEAA review material was available. It would be beneficial if the work by the levels of government could be harmonized with more co-operation in dealing with issues of mutual ooncern, such as this proposed application. It would have been helpful to have all the information including the complete investigations and findings of the federal government concerning this issue prior to making a determination at this level. OMYA is not able to take water from the Tay River regardless of this decision until there is approval from the federal government concerning the water intake structure. Notwithstanding those circumstances of not having the benefit of the CEAA final conclusions, I decided to continue with the evidence and make findings on the material available." (page 41)
"It is not possible for me to determine from the evidence that there will be harm or significant harm to the environment without further evaluation of the ecosystem and the cumulative effects. Mr. Kaye was only able to give assurances of no risk to the environment with the granting of Phase 1 portion of the permit. I have taken the advice of tbe MOE and therefore agree with his position." (page 42)
"The PTTW was issued by the MOE indicating two phases with a number of Conditions and Special Conditions. There were a number of very important Special Conditions that the Director included in the Permit for assurances of the protection of the Tay River. I agree with the Director that additional assessment needs to be completed before the full amount of water can be taken. However it is my opinion that any taking in excess of that permitted by this decision must be the Subject of a new PTTW application." (page 50)
(ii) Positions of the Parties
OMYA raises nine grounds of appeal in its submissions. Of these, the most important are grounds numbered one, two, and four. These grounds all challenge the ERT's basic conclusion that there was not enough information or data to satisfy it that a talking of 4500 cubic metres per day would not not (sic) cause harm to the Tay River ecosystem. OMYA argues that the ERT erred, based on the evidence that was heard at the hearing. OMYA argues, further, that the DFO Reports, and the studies and evaluations referred to in the reports, demonstrate that the taking of 4,500 cubic metres per day will not cause harm to the ecosystem, and that no further assessment or biological monitoring is required before OMYA begins taking 4,500 cubic metres per day.
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The position of the Respondents is as follows:
(a) The Director and the agencies consulted by the Director have concluded, principally as a result of the completion of the CEAA process, that no further assessment of the possible effects of the proposed taking of up to 4,500 cubic metres per day is needed. However, the taking should not exceed what is required and can actually be used. OMYA did not provide satisfactory evidence of its requirements over the full term of the Director's Permit.
(b) The Citizen Respondents oppose OMYA's position. They argue that there has been insufficient consideration of other permits in the Tay River watershed, and that additional detailed and comprehensive work had to be undertaken before an
accurate assessment could be made of the taking of 4,500 cubic metres of water per day. The Citizen Respondents pointed out that the Part Two Report of the Walkerton Inquiry (the "Walkerton Report") endorsed the prcrautionary principle, as a guide in environmental decision-making. Further, the Walkerton Report stressed the importance of an ecosystem approach, and recommended that the granting of permits to take water should be subject to watershed-based source protection plans. The Citizen Respondents argue that the ERT's decision is consistent with the recommendations made by the Commissioner of the Walkerton Inquiry that the cumulative ecological impacts for all actions in the watershed be considered by the provincial government before a permit is granted. The ERT decision, in the Citizen Respondents' submission was in accordance with the public interest.
(c) The Council of Canadians submits, that OMYA is portraying a fundamental misapprehension about the capacity of aquatic ecosystems to support a consumptive use of the magnitude proposed by OMYA. The Council submits that there is no evidence to support the contention that the Tay River ecosystem can sustain this degree of permanent water removal . The Council of Canadians also relies upon the Wakerton Report, arguing that it endorses the need for watshed-based source protection plans which would at a minimum include a water budget of the kind the ERT concluded should be prepared for the Tay River before any further water taking could be considered. In the submission of the Council of Canadians, it would be a "grave error" to interfere with the decision of the ERT.
(iii) Decision
I have considered the submissions of the parties, and the evidence, including the new evidence contained in the DFO Reports and the DFO Authorization.
I am satisfied that the taking by OMYA of up to 4,500 cubic metres per day of water from Tay River, subject to the conditions set out below, will not cause harm to the Tay River
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watershed. The appeal as to the ERT's finding that there is insufficient information or data to support a taking of this magnitude is therefore allowed.
However, I am not persuaded that OMYA can be permitted to take 4,500 cubic rnetres per day immediately. OMYA did not appeal the Director's "phased" permit. The effect of allowing this part of the appeal from the ERT's dccision is to restore the Director's decision as to the maximum quantum of water permitted to be taken. The result is that OMYA is permitted to take up to 1,483 cubic metres per day of water from the Tay River until January 1, 2004. On and after January 1, 2004, OMYA may increase the amount of water taken to a maximum of 4,500 cubic metres per day, if and only if OMYA has received official written notification from the Director authorizing the increase. The request by OMYA for authorization for the increase must be accompanied by evidence satisfactory to the Director that the increased taking is required and can actually be used.
(iv) Reasons for Decision
The Walkerton Inquiry
In response to the Walkerton Report the Province is developing a framework for watershed-based source protection planning in Ontario. Details regarding implementation of source protection planning and the interrelationships between permits to take water and source protection plans remain to be worked out. Moreover, the ERT, while it recognizes the general utility of a water budget for the Tay River watershed, placed no specific requirement on OMYA to prepare a water budget.
As the framework is developed and consulted upon, the Permit to Take Water Program and individual application processes will be amended as required in accordance with the framework.
The Concerns of the ERT and the DFO Reports
The DFO assessed enviromnental impacts both around the water intake site and within the Tay River watershed. The DFO Reports focussed on, amongst other things, the following components of the environment: surface water (quantity decreases from water taking, potamtial quantity decrease from existing groundwater taking, quality); fish and fish habitat (including water quality and reparian vegitation); navigability; wildlife and wildlife habitat (vegetation); migratory birds; and human safety. In addition, the DFO analysed cumulative effects, and consulted with federal authorities, First Nations, and the public.
The DFO reports: adopted an ecosystem approach; considered all the existing water taking permits in an analysis of cumulative effects; considered ground water as well as surface water takings; and encompassed the additional assessments outlined by the Director in the special conditions attached to the Director's Permit. With regard to in-stream flows, and critical flows, these must be revisited annually as a condition of the DFO Authorization, and flow monitoring by OMYA is required as a condition of the DFO Authorization.
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T'he DFO used the best available technology and science through the CEAA screening process to assess the potential environmental effects of the project. The DFO did not consider that a water budget was necessary.
The March 2002 DFO Report concludes that "taking into account the implementation of
mitigation measures as described in this Screening Report, the proposed project (Tay River
Water Intake) is not likely to cause, significant adverse environmental effects". (Page 57)
I am satisfied that the DFO Reports and the DFO Authorization, including the conditions in the DFO Authorization, address the issues of concern related to environental impact referred to by the ERT in its decision. I am satisfied that a taking of up to 4,500 cubic metres of watcr will not
cause environmental harm. No further studies are needed.
Accordingly, a water taking of up to 4.500 cubic rnetres per day could be permitted, provided there is a demonstrated need.
The Issue of Need
The purpose of Ontario Regulation 285/99, Water Taking and Tranfer, is to provide for the conservation, protection and wise use and management of Ontario's waters, because Ontario's water resources are essential to the long-term environmental, social and economic well-being of Ontario.
The Ministry's Guide for Applyng for Approval of Permit to Take Water (June 2000) states, on page 3, that: "In indicating the amount of water to be taken by the proposed project, the applicant must state the current volume of water needed. If the proposed project will require additional volumes of water at a later date, then this should be stated in a letter included with the Permit application form. An applicant cannot reserve additional water for future use, but must request an amendment to the Permit as the additional water needs arise. If a Permit Holder is taking less water than the volume that has been authorized by the Permit then the Permit Holder must notify the Director of the decrease in water needs. If a Permit Holder is found to be taking significantly less volumes than authorized by the Permit, the Director may issue a Notice reducing the amount of water authorized by the Permit".
In light of the above statement of Ministry practice, I am satisfied that OMYA should demonstrate that it will need the full amount of water taking requested by it before it can be permitted to take such amount.
OMYA argues in its Reply, that it did not call any evidence on its production needs because the ERT made a ruling that the issue of OMYA's production needs was not relevant to its decision. My decision to restore the Director's "phased" Permit, allows OMYA an opportunity to provide evidence of need satisfactory to the Director, at the time OMYA seeks authorization for the second "phase" of the Permit.
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Powers on Appeal
The relevant provision of the Environmental Protection Act provides that the Minister shall "confirm, alter, or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest". (Emphasis added).
In my opinion, one of the "matters in appeal" is the question of whether or not the Director was correct in granting a Permit that contemplated a taking of up to 4,500 cubic metres per day on and after January 1, 2004, subject to prior written authorization. Based on my review of the submissions, the evidence referred to above, and the policy and practices of the Ministry, I am satisfied that the Director's Permit was proper, and that it is in the public interest to reinstate a "phased" permit, subject only to the conditions discussed in this decision.
D. THE DURATION OF THE PERMIT
(i) The Decision of the ERT and the Position of the Parties
The ERT reduced the duration of the Director's Permit from ten years to six years (from the date of the ERT decision). The ERT Permit will expire January 1, 2008.
OMYA requests that the duration of the Permit be increased, so as to be effective for ten years from the date of my decision. If granted, the effect of this request would be to extend the Permit to the year 2013, three years longer than the period contemplated under the Director's Permit.
The Director does not oppose a permit with a ten year duration, as originally proposed. The Citizen Respondents oppose this request, arguing that, given the drought conditions and degree of public concern regarding the environmental impacts from the proposed taking, it was appropriate for the ERT to impose a more limited duration, and pointing out that OMYA can apply to the Director for a renewal of the Permit in the event it is unable to gather sufficient data within the six year period contemplated by the ERT.
The Council of Canadians does not specifically address this issue.
(ii) Decision
The effect of my decision on the quantum of water permitted to be taken by OMYA,is to restore the "phased" Director's Permit. I am mindful of the fact that the application and appeal process in this case has been unusually slow. OMYA should be entitled to know with some certainty for a reasonable period of time, what amounts can be taken, in order to permit proper forward planning. A large amount of evidence has been amassed to show that a taking of up to 4,500 cubic metres per day will not cause harm to the environment. Moreover, the conditions attached to the permit will protect against excessive taking during low flow or drought periods, and will ensure a measure of public accountability.
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In all the circumstances, I am satisfied that the ERT erred in shortening the duration of the Director's Permit. The appeal is allowed in this respect, and the permit duration will be restored to that set out in the Director's Permit, that is, to January 1, 2010.
E. THE CONDITIONS IMPOSED BY THE ERT
(i) The Decision of the ERT and the Position of the Parties
The ERT substituted for the Director's Permit, a Permit containing revised and additional conditions.
OMYA objects to six of the new Special Conditions of the ERT Permit. OMYA does not object to the remaining Special Conditions.
The Special Conditions objected to and the positions of the parties are as follows:
(a) Special Conditions 21 and 22
Those conditions relate to the period of time during which OMYA can continue to take water during a breakdown of the continuous recording equipment within the hydrometric station, without authorization to do so from the Director. OMYA asks that Special Condition 21, which allows such operation for 14 continuous days (subject to Special Condition 19), be extended to allow such operation for 21 days. Special Condition 22 prohibits such operation (without the Director's approval) if there has been more than 30 days of such operation in any 365 day period. OMYA asks that Special Condition 22 be revoked.
OMYA argues that it will use the best available technology, but that it may not be possible to repair malfunctioning equipment within 14 days. OMYA says that the staff gauge referred to in Special Condition 19 is reliable. OMYA further says that Condition 22 is unnecessary, since Special Condition 21 ensures timely repairs will be effected.
The Director opposes OMYA's request. He says that these conditions are important to ensure that the continuous real-time stream flow data is available without prolonged interruption. The Director considers that these conditions do not unfairly restrict OMYA's water taking, since water taking can continue despite the condition of the monitoring equipment with the written pre-authorization of the Director.
The Citizen Respondents also oppose this request. They argue that the revisions OMYA is requesting would allow OMYA to operate indefinitely without obtaining the benefit of accurate electronic data on streamflows in the Tay River. The Citizen Respondents believe that this proposal is not in the public interest.
The Council of Canadians do not specifically request this issue.
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(b) Special Condition 27(c)
This condition requires OMYA to notify the District Manager of any cessation or commencement in the operation of the continuous recording equipment within the hydrometric station.
OMYA says this condition is overly broad. It requests that Special Condition 27(c) be altered to require modification only when the cessation of the equipment lasts for a "reasonable" period of time.
None of the respondents specifically addressed this request.
(c) Special Condition 30
This condition requires OMYA to engage the services of an independent and appropriately qualified environmental auditor, satisfactory to the Director. The auditor is to provide an annual report on water taking to the Director and to the persons listed in Schedule A to the ERT decision. OMYA is required to take other specified steps to ensure public availability of the report.
OMYA argues that it is the duty and responsibility of the Ministry of the Environment to ensure compliance. It says that the effect of this condition (and of Special Conditions 31 and 32) is to delegate the Ministry's regulatory responsibilities to a "community watchdog". It says this condition is contrary to the public interest and is an improper delegation of the Ministry's responsibilities. Moreover, this condition (and Special Condition 31) infringes on OMYA's proprietary technology, as OMYA's water reclamation facilities are an integral part of its processing technology used to produce its product. OMYA urges that this condition merely adds another layer of reporting, and that it is unnecessary, costly, and unfair and discriminatory, since all the data will be available to the community as a result of other conditions in the ERT Permit and the DFO Authorization.
The Director considers that Special Condition 30 imposes a singular and inappropriate burden on OMYA. As a result, the Director supports the removal of Special Condition 30.
The Citizen Respondents oppose the removal of Special Condition 30. They say that the report will not deal with how water is being used in OMYA's processing technology or its product, and will not result in release of proprietary information. The Citizen Respondents say that the Director stated in evidence that the Ministry does not undertake an actual monitoring of the water takings granted under permits. It was entirely appropriate for the ERT to impose this requirement, given the acute public concern over the magnitude of the water taking and concerns over possible shortages. The use of an environmental auditor will be of benefit to
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the Ministry, in that it will ensure that its limited resources will not have to be devoted to verifying compliance or non-compliance.
The Council of Canadians did not specifically address this issue.
(d) Special Conditions 31 and 32
These conditions provide for annual meetings to take place as specified. Condition 31 provides for two annual meetings with specified persons, one of which will deal with the report of the environmental auditor. Condition 32 provides for an annual public meeting for the purpose of submissions, questions, and consultation.
OMYA opposes these conditions. It proposes that they be revoked and that the following be substituted:
"The Permit Holder shall provide to the Rideau Valley Conservation Authority, without cost, a copy of the monthly summaries required under the DFO Authorization."
OMYA argues that there is no legislative authority for the imposition of these conditions and that it is questionable whether the mandated involvement of some parties will lead to effective collaboration or whether the meetings will merely be used as a forum to prolong the debate on collaterial issues. In any event, the focus of such meetings should be on all water uses in the Tay River watershed. OMYA is prepared to attend and participate in a public form on water takings and other issues relating to the Tay River watershed.
The Director does not object to Special Conditions 31 and 32 which seek to ensure public involvement. He questions, however, whether the mandated involvement of some of the parties will lead to effective collaboration. The municipalities listed in Schedule "A" to the ERT decision were not asked about attending meetings. In fact, none of the parties were canvassed about this. The Director considers these conditions should be re-worked to provide more flexibility.
The Citizen Respondents argue that these conditions ensure public involvement and public participation. They submit that there was evidence before the ERT of reluctance by OMYA to disclose information to the public about its plans. In the view of the Citizen Respondents, public participation fosters greater understanding and can be of benefit in reducing conflicts between stakeholders. These conditions contribute to the ecosystem approach and are not novel or unique. They should be upheld.
The Council of Canadians did not specifically address this issue.
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(ii) Decision
(a) Special Conditions 21 and 22
In my view, these conditions do not impose an unduly onerous requirement an OMYA. Other permits to take water include conditions related to monitoring and contingencies in the event of failure of monitoring equipment. These conditions ensure that OMYA takes all necessary steps to maintain its equipment and maintain continuous real time data concerning water flows.
The appeal is dismissed on this issue.
(b) Special Condition 27(c)
For greater certainty, this condition shall be amended to read: "... (c) any cessation for a continuous period to be specified by the Director, ... "
(c) Special Condition 30
The requirement to engage a qualified person to prepare an annual report on the water taking is not unusual. An annual report allows the Ministry to evaluate compliance, and provides information to confirm predictions regarding environmental impacts, the availability of' water, and sustainability of other existing or proposed uses. However. as drafted, this Special Condition is unclear, and may appear unduly onerous. Accordingly, the condition will be amended to read as follows:
"30. The Permit Holder shall engage the services of an appropriately qualified consultant to prepare an annual report on water taking. This report shall, at a minimum, include an analysis of all data collected in the monitoring program as described by this Perrnit to evaluate compliance or non-compliance with the terms and conditions of the Permit. The report can further provide recommendations for conservation, protection, and wise use and management of the water for this water taking. The report shall be submitted to the Director by January 31 of each year and shall include the monitoring data for the 12-month period ending December 31 of the previous year."
(d) Special Conditions 31 and 32
The requirement of Special Conditions 31 and 32, to make an annual report
publicly available, and to convene meetings with stakeholders and the public, are
uncommon in current Ministry practice in the Permit to Take Water program.
However, a recent evalution of international best practices for stakeholder
consultation undertaken by a consultant for the Ministry has recommended that, for contentious water takings, Permit Holders under take stakeholder consultation throughout the planning, start-up, and ongoing operation of a water taking. The
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review of best practices also recommended that the Ministry require Permit Holders to publish report cards and maintain ongoing comrnunication with interested stakeholders. The Ministry is presently considering these and other recommendations from the evaluation of best practices in its ongoing review and improvement of the Permit to Take Water program.
In view of the amendment of Special Condition 30, and concerns about whether the mandated participants in Schedule "A" are prepared to attend meetings, as well as the number of meetings mandated, Special Condition 31 is problematic, as currently drafted. Special Condition 31 shall therefore be revoked. Special Condition 32 shall be amended to provide as follows:
" The Permit Holder shall convene at least one public meeting in a calendar year in Perth, Ontario, at a convenient time that the Director can attend the meeting. The Permit Holder shall invite representatives of those listed on "Schedule "A" to attend the meeting. The meeting will provide an opportunity for the Permit Holder to inform representatives listed on "Schedule A" and the public of the Permit and the annual report. to receive submissions from the representatives and the public, and to answer questions concerning the water taking. The Permit Holder shall place an advertisement for the meeting in a newspaper circulating in Perth and Lanark County, at least one week prior to the meeting, indicating the date, location and time of the public meeting, and indicating the availability of the annual report and the means by which a copy can be obtained. The annual report sball be made available by the Permit Holder to the representatives listed on "Schedule A" and the public on request. The Permit Holder shall provide to the Rideau Valley Conservation Authority, a copy of the monthly summaries required under the DFO Authorization."
F. SUMMARY OF DECISION
For the reasons set out above, the appeal will be allowed, in part. The decision of the ERT shall be altered as follows:
(i) Special Condition 13 will be amended to provide as follows:
(a) The maximum amount of water to be taken under authority of this Permit shall not exceed 1, 483 cubic metres per day prior to January 1, 2004 and a maximum of 4,500 cubic metres per day on or after January 1, 2004.
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(b) On or after January 1. 2004, the Permit Holder shall not increase tbe amount of water taken under the authority of the Permit from 1,483 cubic metres per day to a maximum of 4,500 cubic metres per day until the Permit Holder has received official written notification from the Director authorizing the increase. The request by the Permit Holder for authorization for the increase must be accompanied by evidence satisfactory to the Director that the increased taking is required and can actually be used.
(ii) Special Condition 27(c), will be amended by adding the words "for a continuous period to be specified by the Director", after the word "cessation."
(iii) Special Condition 30 shall bc amended as set out above.
(iv) Special Condition 31 shall be revoked.
(iv)(sic) Special Condition 32 shall be amended as set out above.
(v) Special Condition 34 shall be amended to provide:
"No water shall be taken under authority of this permit after
January 1, 2010."
The ERT dccision and Permit are otherwise confirmed.
Attached as Appendix "A" is the Permit to Take Water, revised in accordance with this decision.
Yours truly,
(Signed)
Chris Stockwell
Minister of Environment and Energy
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Appendix "A"
Terms & Conditions
PERMIT TO TAKE WATER
Number 00-P-4096
Notice of Terms and Conditions
Section 100, Ontario Water Resources Act, R.S.O., 1990, Chapter 0.40
Pursuant to Section 34 of the Oniario Water Resources Act, R.S.O., 1990, Chapter 0.40 permission is hereby granted
TO: OMYA (Canada) Inc.
P.O. Box 345
Highway 7 West
Perth, ON K7A 489 (sic)
for the taking of water from the Tay River located on Lot 17, Concession 2, Former Township of Bathurst, now part of the Township of Bathurst, Burgess and Sherbrooke, County of Lanark for water, for industrial processes and products at a rate of taking not to exceed 1,483 cubic metres per day prior to January 1, 2004 and a maximum of 4,500 cubic metres per day on or after January 1,
2004, subject to the conditions of the Permit.
Except where modified by this Permit the water taking shall be in accordance with the application
dated February 29, 2000, and signed by Ray McCarthy.
You are hereby notified that this Permit is issued to you subject to the following Definitions, General Conditions and Special Conditions.
DEFINITIONS
1.
(a) "Director" means a Director, Section 34, Ontario Water Resources Act, R.S.O., 1990, Chapter 0.40.
(b) "District Office" means Ottawa District Office, Eastern Region, Ontario Ministry of the Environment.
(c) "District Manager" means District Manager, Ottawa District Office, Eastern Region, Ontario Ministry of the Environment.
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(d) "Environment Canada's Standard Operating Manuals" means Environment Canada's Hydrometric Field Manuals and hydrometric Data Computation Procedures Manuals, for Hydrometric Stations, as amended from time to time.
(e) "Ministry" means Ontario Ministry of the Environment.
(f) "Permit" means this entire Permit to Take Water including its schedules, if any, issued in accordance with Section 34 Ontario Water Resources Act, R.S.O., 1990, Chapter 0. 40.
(g) "Permit Holder means OMYA (Canada) Inc.
GENERAL CONDITIONS
2. This Permit shall be kept available at the offices of OMYA (Canada) Inc., Highway 7 West, Perth, ON, for inspection by staff of the Ministry of the Environment at all times.
3. The Director may, from time to time, where a situation of interference or anticipated interference with water supply exists, or in a situation requiring information on water takings for purposes of water resource inventory and planning, give written notice to the Permit Holder to undertake any of the following actions. The Permit Holder shall comply with any such notice:
(a) to establish and maintain a system for the measurement of the quantity of water taken;
(b) to operate such a system and to record measurements of the quantities of water taken on forms provided by the Director, with such frequency or such time period as the Director may specify;
(c) to return to the Director records made pursuant to clause 3 (b) at such times or with such frequency as the Director may specify; and
(d) to keep records made pursuant to clause 3 (b) available for inspection until such time as they are returned to the Director pursuant to clause 3 (c).
4. The Permit Holder shall immediately notify the District Manager of any complaint arising from the taking of water authorized under this Permit and shall report any action which has been taken or is proposed with regard to such complaint.
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5 For surface water takings, the taking of water (including the taking of water into storage and the subsequent or simultaneous withdrawal from storage) shall be carried out in such a manner that streamflow is not stopped and is not reduced to a rate that will cause interference with downstream usage of water or with the natural functions of the stream.
6. For groundwater (or ground water) takings, if the taking of water is forecast to cause any negative impact, or is observed to cause any negative impact to other water supplies obtained from any adequate sources that were in use prior to initial issuance of a Permit for this water taking, the Permit Holder shall take such action necessary to make available to those affected a supply of water equivalent in quantity and quality to their normal takings, or shall compensate such persons for their reasonable costs of so doing, or shall reduce the rate and amount of taking to prevent the forecast negative impact or alleviate the observed negative impact. Pending permanent restoration of the affected supplies, the Permit Holder shall provide, to those affected, temporary water supplies adequate to meet their normal requirements, or shall compensate such persons for their reasonable costs of so doing.
7. The Permit Holder shall report to the Director any changes of address or telephone number, or change of ownership of the property for which this Permit is issued and shall report to the Director any changes in the general conditions of water taking from those described in the Permit application within thirty days of any such change. The Permit Holder shall not assign his rights under this Permit to another person without the written consent of the Director.
8. No water may be taken under authority of this permit after the expiry date of this Permit, unless the Permit is renewed, or after the expiry date shown on any subsequent renewal of this permit, unless it is likewise renewed.
9. This Permit does not release the Permit Holder from any legal liability or obligation and remains in force subject to all limitations, requirements, and liabilities imposed by law and this Permit shall not be construed as precluding or limiting any legal claims or rights of action that any person including the Crown in right of Ontario or any agency thereof, has or may have against the Permit Holder, its officers, employees, agents, and contractors.
10. The Permit Holder must forthwith, upon presentation of credentials, permit Ministry personnel, or a Ministry authorized representative(s) to carry out any and all inspections authorized by Sections 15, 16, or 17 or (sic) the Ontario Water Resources Act, R.S.O., 1990, Chapter 0.40, sections 156, 157 or 158 of the Environmental Protection Act, R.S.O., 1990, Chapter E.19 and Sections 19 or 20 of the Pesticides Act, R.S.O., 1990, Chapter 11.
11. The Director may, at times of drought or water shortage in the locality of the taking, give notice to the Permit Holder to suspend or reduce the taking to an amount or threshold specified by the Director. The suspension or reduction in the taking shall be effective
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immediately and may be revoked at any time upon notification by the Director. This condition shall not be read to affect the right to appeal the notice to the Environmental Review Tribunal under Subsection 100 (4) of the Ontario Water Resources Act, R.S.O., 1990, Chapter 0.40.
12. This permit does not abrogate the Permit Holder's responsibility to comply with all applicable legislation and regulations, including Water Taking and Transfer Ontario Regulation 285/99 made under the Ontario Water Resources Act, R.S.O., 1990, Chapter 0.40 which provides, among other things, that no person shall use water by transferring it out of a water basin as defined in Regulation 285/99 in a container having a volume greater than 20 litres. The Water Taking and Transfer Ontario Regulation 285/99 made under the Ontario Water Resources Act, R.S.O., 1990, Chapter 0.40 divides Ontario into the Great Lakes, St. Lawrence, the Nelson, and Hudson Bay Water Basins.
SPECIAL CONDITIONS
13.
(a) The maximum amount of water to be taken under authority of this Permit shall not exceed 1,483 cubic metres per day prior to January 1, 2004 and a maximum of 4,500 cubic metres per day on or after January 1, 2004.
(b) On or after January 1, 2004, the Permit Holder shall not increase the amount of water taken under the authority of this Permit from l,483 cubic metres per day to a maximum of 4,500 cubic metres per day until the Permit Holder has received official written notification from the Director authorizing the increase. The request by the Permit Holder for authorization for the increase must be accompanied by evidence satisfactory to the Director that the increased taking is required and can actually be used.
14. Prior to the taking of water under authority of this Permit, the Permit Holder shall shall install and calibrate a flow meter and totalizer to the manufacturer's recommendations on the pumping system that takes water from the Tay River. The amount of water taken shall be measured and recorded from the flow meter and totalizer daily by a properly trained director, employee or agent of the Permit Holder.
15. Prior to commencing the taking of water under this Permit, the Permit Holder shall:
(a) Install a hydrometric station, which includes a staff gauge, at a technically suitable location within the portion of the Tay River between the Bowes Road Bridge and the intake facility in accordance with Environment Canada's Standard Operating Manual and to the satisfaction of the Director: and
(b) Develop a stage-discharge curve for discharges in the range of 0.8 to 2.0 cubic
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metres per second for the purposes of obtaining reliable dischange data.
16. The hydrometric station, flow meter and totalizer shall be capable of generating real-time digital data.
17. The Permit Holder shall operate, monitor and maintain the hydrometric station at all times during the term of this Permit in accordance with Environment Canada's Standard Operating Manual and to the satisfaction of the Director.
18. In the event the continuous recording equipment within the hydrometric station ceases to operate for any reason, the Permit Holder shall cease the taking of water.
19. Despite Special Condition l8, the Permit Holder may continue to take water if the discharge at the location of the hydrometric station is otherwise obtained from water levels read from the staff gauge operated and maintained in accordance with Environment Canada's Standard Operating Manual and to the satisfaction of the Director.
20. Where water is taken in accordance with Special Condition 19, the Permit Holder shall cause the staff gauge to be read and the discharge to be calculated at least:
a) once every 24 hours when the discharge is greater than 2.0 cubic metres per second;
and
b) once every 12 bours when the discharge is less than or equal to 2.0 cubic metres per second.
21. The Permit Holder shall not take water in accordance with Special Condition 19 for a period exceeding 14 continuous days, without pre-authorized written notice from the Director.
22. The Permit Holder shall not take water in accordance with Special Condition 19 if the Permit Holder has taken water in accordance with that condition on more than 30 days in any 365 day period, without pre-authorized written notice from the Director.
23. The Permit Holder shall keep all records of water takings and all discharge and stage data at the Permit Holder's office located at OMYA (Canada) Inc., Highway 7 West, Perth, Ontario, and the records shall be made available to representatives of the Ministry of the Environment, the Rideau Valley Conservation Authority and other agencies authorized by the Ministry of the Environment upon request.
24. The Permit Holder shall provide the Rideau Valley Conservation Authority, without cost, remote access to the digital data produced by the hydrometric station, flow meter and
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totalizer.
25. The Permit Holder shall immediately cease the taking of water authorized by this Permit if the discharge measured by the hydrometric station, including the staff gauge, is equal to or less than 1 cubic metre per second.
26. The Permit Holder may resume the taking of water authorized by this Permit if the discharge measured by the hydrometric station, including the staff gauge, is greater than 1 cubic metre per second.
27. The Permit Holder shall notify the District Manager when any one or more of the following events occurs:
(a) The Permit Holder ceases the taking of water in accordance with Special Conditions 18, 21, 22 or 25;
(b) The Permit Holder commences or resumes the taking of water in accordance with Special Conditions 19 or 26; and
(c) Any cessation for a continuous period to be specified by the Director, or commencement in the operation of the continuous recording equipment within the hydrometric station.
29. The notice required by Special Condition 27 shall be provided by way of facsimilie transmission to the District Manager at (613) 521-5473, or in such other manner and to such MOE officials as directed in writing by the District Manager.
29. Any notice required by Special Condition 27 shall be provided no later than 1:00 p.m. on the next business day from the event requiring notice and shall reference the subsection in 27 requiring the notice.
30. The Permit Holder shall engage the services of an appropriately qualified consultant to prepare an annual report on water taking. This report shall, at a minimum, include an analysis of all data collected in the monitoring program as described by this Permit to evaluate compliance or non-compliance with the terms and conditions of the Permit. The report can further provide recommendations for conservation, protection and wise use and management of the water for this water taking. The report shall be submitted to the Director by January 31 of each year and shall include the monitoring data for the 12-month period ending December 31 of the previous year.
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(note from transcription: part of paragraph 31 appears to be missing)
Ontario at a convenient time that the Director can attend the meeting. The Permit Holder shall invite representatives of those listed on "Schedule A" to attend the meeting. The meeting will provide an opportunity for the Permit Holder to inform representatives listed on "Schedule A" and the public of the Permit and the annual report, to receive submissions from the representatives and the public, and to answer questions concerning the water taking. The Permit Holder shall place an advertisement for the meeting in a newspaper circulating in Perth and Lanark County, at least one week prior to the meeting, indicating the date, location and time of the public meeting, and indicating the availability of the annual report and the means by which a copy can be obtained. The annual report shall be made available by the Permit Holder to the represenatives listed on "Schedule A" and the public on request.
32. All data collected in accordancae with Paragraphs 17, 19, and 20 shall be collected and refined in a manner acceptable for inclusion in Environment Canada's Water Survey (HYDAT) database and shall be submitted, annually, for inclusion in that database.
33. No water shall be taken under authority of this permit after January 1, 2010.
34. Nothing in the Permit shall be read to limit the discretion, authority or statutory powers of the Ministry or Director in any way.
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SCHEDULE A
DOCUMENT CIRCULATION LIST
PERMIT TO TAKE WATER
1. Department of Fisheries and Oceans Canada
2. Friends of the Tay Watershed Association
3. Ontario Ministry of Natural Resources
4. Parks Canada
5. Rideau Valley Conservation Authority
6. Corporation of the Town of Perth
7. Corporation of the Township of Bathurst Burgess Sherbrook
8 Corporation of the Township of Central Frontenac
9. Corporation of the Township of Drummond-North Elmsley
10. Corporation of the Township of South Frontenac
11. Corporation of tho Township of Rideau Lakes
12. The Greater Bobs and Crow Lake Association
13. The Perth Community Association
14. The Lanark County Citizen's Action Group