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Clarington Report
Planning Services
Meeting: General Purpose and Administration Committee
Date: September 22, 2014 Resolution: ° }. By-law:
Report: PSD-056-14 File: PLN 17.5.1
Subject: Proposed Groundwater Protection By-law
Recommendations:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
a) That Report PSD-056-14 be received; and
b) That any interested partied to Report PSD-056-14 be informed of Council's decision.
Submitted by: Reviewed by:
David Crome, RPP, MCIP Franklin Wu,
Director of Planning Services Chief Administrative Officer
Municipality of Clarington
Report PSD-056-14 Page 2
Report Overview
A Groundwater Protection By-law is proposed by Councillor Neal at the request of the
Enniskillen Environmental Association to prevent or reduce adverse effects to its residents'
quality and quantity of water due to major developments on the Oak Ridges Moraine. This
report is intended to provide Council with information regarding such a proposed by-law.
Background
1. On September 8, 2014, Councillor Neal presented to GPA a draft groundwater protection
by-law for the portion of the municipality within the Oak Ridges Moraine (Attachment 1).
Committee referred this matter to staff for a report at the September 22nd meeting.
2. In June 2014 Council received advice in-camera from the Municipal Solicitor on this topic.
Groundwater Protection in Ontario
3. There are at least eight Acts and numerous regulations enacted by the Province which
deal in one way or another with groundwater as it relates to land uses. They are:
• Planning Act and Provincial Policy Statement
• Greenbelt Plan and Act
• Oak Ridges Moraine Conservation Plan (ORMCP) and Act
• Clean Water Act
• Ontario Water Resources Act
• Environmental Assessment Act
• Environmental Protection Act
• Nutrient Management Act
4. The oversight of groundwater matters is a shared jurisdiction between the Province of
Ontario, single or upper tier municipalities and conservation authorities. Durham Region
is the upper tier municipality with the Regional Health Department being responsible for
well water testing and septic bed installation. The conservation authority's interest in
groundwater is with respect to the protection of the natural heritage system.
5. Within the Province of Ontario, ground water is addressed by several different ministries
including:
• The Ministry of Environment and Climate Change (MOECC)
• The Ministry of Natural Resources
• The Ministry of Agriculture, Food and Rural Affairs
• The Ministry of Municipal Affairs and Housing
Municipality of Clarington
Report PSD-056-14 Page 3
6. The Enniskillen Environmental Association (EEA) has promoted the concept of a
groundwater protection by-law as a means to better protect residents from the impacts of
development activity and, in particular the Hydro One Transformer Station Project. In
discussion with one of their members, we requested examples of similar by-laws in
Ontario. We were referred to three municipalities in British Columbia: North Okanagan,
Central Okanagan and Abbottsford.
7. It is worthwhile noting that the legislation regarding planning and groundwater in Ontario
is completely different. For example, there are no conservation authorities to plan and
regulate on a watershed basis. Municipal planning powers are different and there is no
equivalent to the Ontario Municipal Board.
8. The Groundwater By-laws Toolkit (2009) prepared by the Okanagan Basin Water Board
notes that "British Columbia is the only province in Canada and one of the few
jurisdictions in North America that does not regulate the use of groundwater". The
Province recently enacted the Water Sustainability Act in May of 2014 to modernize the
100 year old Water Act.
9. The British Columbia municipal regulations appear to address groundwater issues in the
context of a municipal development approvals and they do not apply to provincially-
approved infrastructure projects.
Purpose of the By-law
10. The stated purpose of the proposed by-law is to take measures to protect the quantity
and quality of the drinking water of Clarington residents by regulating development
projects in the Oak Ridges Moraine. This will be done by:
• The owner/operator of an "undertaking" informing the Municipality in writing of
potential adverse effects;
• When a major undertaking (as defined in the by-law) is proposed and may have
potential adverse impacts, the proponent will submit a hydrological assessment to the
Municipality, as soon as possible and prior to construction;
• The assessment is to be peer reviewed within 120 days;
• The Municipality either approves the application or if it determines that it is likely to
cause a significant impact on the hydrological functions of the aquifers, the
Municipality shall refuse the application;
• A fee of$25,000 is to be paid to the Municipality for administration and the peer
review; and
• Any owner or operator of a major undertaking is guilty of an offence if that person
fails to submit an application for approval for the major undertaking.
Municipality of Clarington
Report PSD-056-14 Page 4
Policy Issues
The by-law introduces a new type of approval required for development projects
11. For the purposes of this discussion, this new type of approval will be referred to as an
Aquifer Development Permit. The proposed By-law indicates that when a major
undertaking or major development is proposed, the proponent shall make an application
as soon as possible but prior to construction, and submit an assessment to be approved
to the Municipality. The Aquifer Development Permit would be an additional approval
from any other provincial, Durham Region or Clarington approvals.
12. The proposed By-law approvals duplicate existing processes
13. Major infrastructure projects are required to submit documentation of potential
environmental impacts under the Environmental Assessment Act to be approved by the
MOECC. The level of documentation is dependent on the type of undertaking, the
potential impacts, the alternative technologies or alternative locations to be studied, etc.
Since it is a planning process, often to answer the question of which site is the best
location for a particular undertaking, it undertakes the level of analysis required to make
that decision. The proposed Groundwater Protection By-law is very specific regarding
the level of analysis required.
14. It should be noted that infrastructure as defined by the Provincial Policy Statement
includes electric power generation and transmission, transportation corridors, pipelines,
water and sewage treatment systems. They are "permitted subject to approval under the
Canadian Environmental Assessment Act, the Environmental Assessment Act, the
Planning Act or receives a similar environmental approval".
15. Development applications under municipal jurisdiction are processed through the
Planning Act. Provincial Policy Statements, Provincial Plan such as the Oak Ridges
Moraine Plan, the Regional Official Plan and the Clarington Official Plan currently require
hydrogeological assessments for specific circumstances. These assessments are
generally required for three purposes:
• Maintaining the health of the ecosystem (natural heritage features and functions)
• Ensuring that there is sufficient quality and quantity of water supply for new
residences
• Demonstrating that there would be no adverse impact from proposed development on
existing wells
These studies are reviewed by the applicable Regional and Conservation Authority staff.
The hydrogeologic assessment is an input into the planning decision. The proposed
Groundwater Protection By-law would require a further approval and duplicate the
planning approval.
Municipality of Clarington
Report PSD-056-14 Page 5
Policy versus Regulatory By-laws
16. An official plan is a policy document that sets out objectives including to protect ground
water resources and their hydrologic functions. It establishes the requirements for
reviewing applications made under other sections of The Planning Act.
17. On the other hand, a regulatory by-law is restrictive, prescriptive and enforceable with
fines for non-compliance. The proposed Groundwater Protection By-law attempts to
merge the two. It establishes the requirement for a new type of municipal approval not
identified in The Planning Act. It outlines a highly prescriptive process and proposes to
create an offence of not making an application.
The By-law casts a wide net and captures a large array of potential development uses
18. "Major Development" or "Undertaking" includes buildings, structures, equipment and
other stationary items on a site greater than 3,000 square feet, which is 0.07 of an acre.
Equipment and stationary items could include many things.
19. The By-law as written would capture many infrastructure projects including Highway 407,
TransCanada Pipelines East Mainline, and Enbridge Line 9 reversal and renewable
energy projects. It would also be applicable to Regional or municipal road projects,
Regional water and sewer projects and municipal stormwater management projects.
20. The proposed by-law would apply to every commercial, business or institutional use.
Virtually every lot in the Oak Ridges Moraine is greater than a '/ acre. Many of the
recent improvements at Canadian Tire Motorsport Park and the commercial enterprises
along 35/115 (north of Kirby) would potentially be captured by the by-law.
The Proposed By-law exempts some of the higher risk uses that could contaminate or deplete
groundwater
21. The proposed by-law would exempt plans of subdivision up to 24 units. We are not aware
of the basis for this exemption. The Clarington Official Plan currently requires all
subdivisions to submit hydrogeological assessments. The details of the assessment is
based on the circumstances (whether there is a hydrological feature, adjacent
residences, etc.) regardless of the physical size and unit number of the development.
22. The proposed exemptions exclude some of the larger risk uses that could affect
groundwater supplies as noted below:
a. Recreational uses such as golf courses and ski hills are one of the largest users of
ground water. Two environmental organizations studied this matter and determined
that 9 golf courses pumped 3 billion litres of water a year. Moreover, golf courses
use herbicides, pesticides, and large quantities of fertilizer. Brimacombe pumps
water to operate snow making equipment and pumps a significant amount of water
from the Moraine.
Municipality of Clarington
Report PSD-056-14 Page 6
b. Agriculture uses include intensive agricultural uses like feedlots, storage of manure,
storage of chemicals, greenhouses, etc. which can pose risks of contamination
and/or require water for irrigation.
c. Industrial uses, while not listed as an exemption, are not mentioned with commercial
and institutional.
The proposed bylaw definition of"assessment" is highly prescriptive.
23. The assessment is required to be conducted with a well to a depth of 250 feet (76
metres) and include multi-level monitoring and include such other monitoring as
recommended by a qualified peer reviewer. The depth to bedrock will vary across the
Moraine and may be higher or lower than the prescribed 250 feet.
24. The requirement to drill wells to bedrock unnecessarily creates potential contamination
pathways to all levels but in particular for the lower aquifer, which would not otherwise
exist if the definition of"assessment" was not so prescriptive. As highlighted in the
Carruthers subdivision in Enniskillen, the primary concern was the intermediate aquifer at
the 45 m level or above, where most of the homes obtained their drinking water, and not
the lower aquifer. The assessment was tailored by the professional judgment of the
hydrogeologist and to the circumstances of the project.
Why would the Groundwater Protection By-law only apply on the Oak Ridges Moraine
25. The proposed by-law is only to apply to the Oak Ridges Moraine as defined by the
Province. It is important to remember that the Oak Ridges Moraine is a planning area for
lands above the 245 metre contour. It is not a science-based definition of moraine
deposits and does not equate to aquifer vulnerability.
26. The High Aquifer Vulnerability Areas defined in the Durham Regional Official Plan
(Attachment 2) includes more land off of the Moraine than those on the Moraine.
Moreover, the site of the Clarington Transformer Station is not identified as a High Aquifer
Vulnerability Area.
27. While the deeper aquifers in Clarington are largely fed by the Oak Ridges Moraine,
aquifers receive water from lands throughout Clarington. There are many potential
contamination pathways to aquifers, the greatest portion of them off of the Moraine.
28. In Clarington, we estimate that approximately 640 households out of 5,500 rural
households using wells as a drinking water source are located within the Oak Ridges
Moraine. The By-law appears to only protect the groundwater source for about 12% of
households with wells.
Practical Matters
Cost to Proponents
29. The prescriptive nature of the testing requires a proponent to spend additional funds than
may be truly necessary for the type of development proposed. As Dr. Cherry noted, the
Municipality of Clarington
Report PSD-056-14 Page 7
costs of drilling alone at the Clarington Transformer Site to the 250 foot depth have risen
to $75,000 for the main test well. There would be additional costs for other wells and
monitoring equipment. When you add in the hydrogeologists consulting costs, the peer
review costs, it could be a minimum of$125,000 cost for an applicant. This would be
cost-prohibitive for many development projects.
Notice of Intent to Pass a Groundwater Protection By-law
30. This is a new type of application permit that would affect many residents. Council may
want to consider giving some form of public notice prior to enacting such a by-law.
Administration of the By-law
31. Administration and enforcement of the by-law the Municipality will require the services of
a hydrogeologist (either staff or an on-retainer consultant). If a consultant, there would be
an administrative cost to supervise the contract and maintain a connection between the
various planners handling applications and the consultant. Some of consultant's work
would be outside the scope of the actual peer review and would have to be covered by
the Municipality. For example, someone has to review the proposed application and
make the judgment that the undertaking may affect the drinking water of residents and
therefore necessitates this additional application. Given the pre-consultation process,
this would have to occur prior to receiving a complete Planning application.
32. The peer reviewer is to direct the type of monitoring that will be undertaken. Even if the
proponent has completed groundwater monitoring for the purposes of the Environmental
Assessment Act approval, the proponent would have to make an application to the
Municipality for an Aquifer Development Permit with its prescriptive definition of an
"assessment". The peer reviewer would then have to negotiate on behalf of the
Municipality to require the proponent to undertake additional and costly testing. The peer
reviewer would have to report to Council on whether to approve or refuse the Aquifer
Development Permit and address any concerns raised by Council.
33. The peer reviewer would have to identify applications where incomplete information was
received or the applicant refuses to undertake such a study. In the event of an offence,
the hydrogeologist would be needed to testify why the proposed or then completed
project may have an effect on drinking water. Only the costs of the actual peer review
could be recovered.
Cost of defending the by-law if challenged
34. The likelihood that this by-law would be tested can be assumed given the types of
proposals that it addresses. The Municipality would need to be prepared to commit
resources to defend this By-law. In defending the By-law, there would need to be
evidence from a hydrogeologist of the need for such a By-law and the contents therein.
Legal Issues
35. The Municipal Solicitor has indicated that many of the legal issues that are present with
the proposed by-law have been litigated in two recent Ontario court cases (Suncor
Municipality of Clarington
Report PSD-056-14 Page 8
Energy Products Inc. v. Plympton-Wyoming (Town), [2014] O.J. No. 2492 (S.C.) and
Wainfleet Wind Energy Inc. v. Wainfleet (Township), [2013] O.J. No. 1744 (S.C.)). Both
cases dealt with municipal by-laws that purported to regulate the construction of wind
turbines.
36. The main legal issues in relation to the proposed by-law are as follows:
(a) Is the proposed by-law without effect because it conflicts with other legislation
contrary to section 14 of the Municipal Act, 2001 which reads as follows:
14. 1 A by-law is without effect to the extent of any conflict with,
a) provincial or federal Act or a regulation made under such an Act; or
b) an instrument of a legislative nature, including an order, license or
approval, made or issued under a provincial or federal Act or regulation.
(2) Without restricting the generality of subsection (1), there is a conflict between a
by-law of a municipality and an Act, regulation or instrument described in that
subsection if the by-law frustrates the purpose of the Act, regulation or instrument.
(b) Does the proposed by-law interfere with the issuance of a building permit?
37. The opinion of the Municipal Solicitor respecting these issues and related issues is
attached to this report as Confidential Attachment 3.
Concurrence
38. This report has been reviewed by the Municipal Solicitor.
Conclusion
39. This report identifies a number of significant issues with enacting the proposed
Groundwater Protection By-law.
Strategic Plan Application
40. Not applicable.
Staff Contact: David Crome, Director of Planning 905-623-3379, ext. 2402 or
dcrome _clarington.net
Attachments:
Attachment 1 — Proposed Groundwater Protection By-law
Attachment 2 -Areas of High Aquifer Vulnerability in Clarington
Attachment 3 — Municipal Solicitor's Legal Opinion (Confidential)
The following is a list of the interested parties to be notified of Council's decision:
Enniskillen Environmental Association c/o Clint Cole
Attachment 1 to
Municipality of Clarington Report PSD-056-14
THE MUNICIPALITY OF CLARINGTON
BY-LAW NUMBER 2014-
WHEREAS s. 11(2) of the Municipal Act, 2001, as amended ("the Act"), permits
municipalities to pass by-laws respecting the health, safety and well-being of
persons;
: WHEREAS s. 128 of the Act permits municipalities to prohibit and regulate with
respect to.public nuisances, including matters that, in the opinion of council, are
or could become or cause public nuisances;
WHEREAS under s. 4 of the Oak Ridges Moraine Conservation Act, 2001 the
objectives of the Oak Ridges Moraine Conservation Plan Include,
(a) protecting the ecological and hydrological integrity of the Oak Ridges
Moraine Area;
(b) ensuring that only land and resource uses that maintain, improve or
restore the ecological and hydrological functions of the Oak Ridges
Moraine Area are permitted; and
(c) maintaining, improving or restoring all the elements that contribute to
the ecological and hydrological functions of the Oak Ridges Moraine
Area, including the quality and quantity of its-water and its other
resources;
WHEREAS the Municipality of Clarington considers it appropriate and in the
public interest to prevent or reduce adverse effects to its residents and public
health due to major-developments on the Oak Ridges Moraine in the Municipality
of Clarington which could affect the quality and quantity of the water of its
residents;
COUNCIL ENACTS AS FOLLOWS:
DEFINITIONS
1. In this by-law, the following definitions apply:
"assessment" means an assessment of the hydrological effect of a major
development on the Oak Ridges Moraine by a qualified hydro geologist, which
shall at a minimum include multi-level monitoring wells to a depth of 250 feet, as
well as such other monitoring recommended by a qualified peer reviewer;
2
"major development" means a building, structure, equipment and other stationary
items on a site or at a location that is under common operation, management,
and/or.control which exceeds 3,000 square feet, but does not include:
(1) a site that contains less than 25 dwelling units;
(ii) a commercial, business or Institutional site or location that is less than
0.1 ha in size; or
(iii) an agricultural or recreation based use.
"Municipality" means The Corporation of the Municipality of Clarington.
PART I--• PURPOSES
2. The purposes of this by-law are to take measures to protect the quantity and
quality of the drinking water of its residents;
PART II APPLICATION OF THE BY-LAW
3. This bylaw applies to any person who owns or operates a major undertaking
located on the Oak Ridges Moraine in the Municipality that may affect the
drinking water of its residents.
PART III - REPORTING
4. Where a proposed major undertaking may interfere with the hydrological
function of the underlying aquifers, Its owner or operator shall advise the
Municipality in writing forthwith of the potential adverse effects.
PART IV—REQUIREMENTS FOR MUNICIPALITY APPROVAL_
5. (1) Where a person proposes to build a major undertaking that may cause
adverse-hydrological effects, that person shall, as early as practicable during the
planning for such undertaking and, in any event, prior to any construction of such
undertaking, obtain an approval from the Municipality of its assessment..
(2) The application shall include payment of the prescribed fee and submission of
the following Information:
-(a) undertaking description: a description of the undertaking, including all
factors which would affect the hydrological function of the underlying
aquifers;
(b) assessment: an assessment as defined herein.
3
PART V-- MUNICIPALITY DECISION-MAKING PROCESS
Peer Review of the Application
6: Upon receipt of an a Ipop ic�ation for approval and the prescribed fees, the
Municipality shall identify a person with appropriate expertise to peer review the
submitted application, and, subject to s. 7(2), shall carry out a two-phase peer
review process within 120 days.
Peer Review Phase (9): Determination Whether the Application is Complete
7. Phase l shall involve the following process:
(1) Upon receipt of the documents submitted by the applicant, the peer reviewer
shall determine whether the application is complete. Where the peer reviewer
determines that the application is complete, the peer reviewer shall proceed
forthwith to Phase (2) of the process.
(2) Where the peer reviewer determines that the application Is not complete, the
Municipality shall advise the applicant of this determination forthwith. Upon such
determination, the application is suspended and the calculation of Municipality
time is suspended. The suspension shall last until the applicant submits
additional information to the Municipality, which then restarts the calculation of
Municipality time and requires the peer reviewer to assess again whether the
application is complete.
(3) If the applicant fails to obtain a determination that the application is complete
within six months of submitting the application, the Municipality shall close the
application and return all original documents to the applicant.
Pear Review Phase (2): Review of the Complete Application
B. Phase (2) shall involve the following process:
(1) Following a determination that an application is complete, the peer reviewer
shall proceed to review the application and, in particular, its undertaking
description and assessment.
(2) The peer reviewer shall, within 30 days of determining an application is
complete, produce a peer review report not to exceed 10 pages, excluding
appendices, which sets out, in concise, nontechnical language the results of the
review on items 3(a) to (e), of section 5•or 6 of this bylaw.
.(3) Following receipt of the peer review report, the Municipality staff shall
forthwith examine the review and, where satisfied that the review is complete,
forward the review to the applicant for comment.
(4) Upon receipt of the peer review report, the applicant shall have 30 days to
provide written comment on the review to the Municipality . If the applicant does
not return written comment within 30 days, the application shall be considered
4
incomplete and the Municipality shall close the application and return all original
documents to the applicant.
(5) Upon-the conclusion of the 30-day applicant comment period, the Municipality
staff shall forward any comment to the peer reviewer for any addendum review
prepared forthwith, not to exceed 3 pages in length, excluding appendices, which
shall be prepared by the peer reviewer within 30 days of receiving the applicant's
comments. This step concludes this Phase of the process.
(6)Any failure by the Municipality to comply with any specified time frames in this
by-law shall not-eliminate the need for approval or invalidate any approval given
under this by-law.
(7) Where, following consideration of the application, the Municipality concludes
that the major undertaking is likely to cause a significant impact on the
hydrological function of the underlying aquifers, the Municipality shall refuse to
approve the application.
(8) Where, following consideration of the application, the Municipality concludes
that the major undertaking is not likely to cause a significant impact on the
hydrological function of the underlying aquifers, the Municipality shall approve the
application.
PART VI — FEES
9. (1) The fee prescribed for applicants for approval under this bylaw is $25,000,
payable to the Municipality of Clarington.
(2) The fee prescribed in subsection (1) includes $5,000 for administration and
$20,000 to carry out the peer review of the application
(3) Where an applicant pays the prescribed fee, but the actual cost incurred by
the Municipality is less than this fee, the Municipality may return such portion of
the prescribed fee as it determines appropriate.
PART Vill — OFFENCES
10. (1) Any person, being the owner or operator of a major undertaking that is
subject to this by-law, is guilty of an offence, if that person fails to submit an
application for approval for the major undertaking required under this by-law;
(2) Any person guilty of an offence is liable upon conviction to a fine of up to
$25,000.
PART 1X--SEVERAEILITY
11. If any section of this bylaw, or parts thereof, are found by any court of law to
be illegal or beyond the-power of Council to enact, such section, sections, part or
5
parts shall be deemed to be severable, and all other sections or parts shall be
deemed to be separate and independent therefrom and to be enacted as such.
Attachment 2 to
Municipality of Clarington Report PSD-056-14
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