Submission to the…

Submission to the Environmental Registry of Ontario, May 15, 2020

The proposed changes to the Aggregate Resources Act are heavily biased to favour the aggregate industry. For the industry, the changes promise increased efficiencies, while for the rest of Ontarians, they may pose unacceptable risks to groundwater resources, impacting communities that depend on groundwater for their drinking water. One of these is the Regional Municipality of Waterloo, with a 75% dependency on groundwater. Many smaller communities are 100% groundwater-dependent. The proposed changes, if implemented, could bring about major future costs for clean-ups and/or finding alternative water sources.

The following is a non-exclusive selection of material that should be re-examined before changes are finalized.

Proposed changes to how the water table is established

The proposal is to establish the maximum predicted elevation of the water table by monitoring the groundwater for a minimum of one year to account for seasonal variations. The maximum water table elevation is relevant for both above-the-water-table and below-the-water-table extraction.

A one-year monitoring period is far too short to capture actual water level highs. Water levels not only vary seasonally, but also from year to year, as climate extremes become more frequent due to global climate change. Recent history shows that what has traditionally been considered a 100-year flood can now occur every few years, and these extremes will be reflected in year-to-year variations in the elevation of the water table. The risk of a pit designed for above-the-watertable extraction being flooded is that contamination can be carried into the aquifer and contaminate the groundwater, taking years to clean up.

In order to get a better chance to capture at least some of the long-term variations in the water table, a minimum of five years of monitoring is recommended. Also, the resulting records should be matched to similar records at other monitoring wells in the general area, if available. This would help to identify peaks outside the monitoring period.

Proposed changes to the content of the water report - Wellhead Protection Areas

This applies to extraction below the water table. A below-the-water-table pit will contain potential contamination sources such as machinery, and as such it can directly connect to an aquifer serving as a drinking water source. Precautionary measures can fail. This poses a risk to drinking water sources.

The proposed regulatory changes recognize the role of the wellhead protection areas (WHPAs A and B for water quality and WHPA-Q for water quantity) in keeping the water safe. A water report is required which summarizes how local source water protection plans and policies are impacted by the proposed extraction. If a potential for adverse effects is identified, an impact assessment is required to determine the significance and the feasibility of rehabilitation.

However, the risks are real and they must be taken seriously. The fatal flaw of this regulation is that it places the assessment of risks entirely into the hands of the proponent and the proponent’s consultant, whose primary interest, while understandable, will be in the economics of the operation. Literally, it means putting the fox in charge of the hen house. In the case of Waterloo Region, it also takes local water management out of the hands of those who are most familiar with the local resource and its complexities, namely the regional hydrogeologists and water managers. It is these experienced professionals who pioneered groundwater protection in Ontario, even before the 2000 Walkerton tragedy.

As a result of the previous round of regulatory changes, we are now in the deplorable situation where municipalities no longer have the ability to control whether aggregate extraction takes place below the water table. This opens the door to future problems of groundwater contamination.

The only way to remedy this unacceptable state is to prohibit extraction activities in the areas most sensitive to contamination, such as category A and B WHPAs, as well as WHPA-Qs.
We cannot afford to lose control over groundwater protection by placing it all into the hands of commercial interests. Yes, we need aggregate. But more than that, we need clean water.

Proposed changes to the content of the water report - Vulnerability

Aquifer vulnerability expresses the degree of susceptibility of an aquifer to contamination. Vulnerability is normally expressed in terms of a numerical score from low to high. Under the proposed regulatory changes, the water report is required to state whether a proposed aggregate extraction has the potential for changes to the ‘vulnerability’ within a Wellhead Protection Area (A or B).

The key to clean groundwater is effective protection of the resource from contamination. Any kind of extraction of material overlying a confined aquifer diminishes the protective layer, thus weakening the protection of the aquifer. If the extraction were to take place within a WHPA, the vulnerability score would perforce increase. Thus a truthful answer to the above requirement will always be ‘Yes’.

Because an intentional increase in the vulnerability of a groundwater resource is never acceptable, it is imperative to prohibit extraction -- including above-the-water-table -- in the areas most sensitive to contamination, which includes category A and B WHPAs, as stated above. This would clarify and simplify the regulatory process, which is one of the objectives.

Right to appeal

Also under the previous round of changes to the Aggregate Resources Act, if concerns cannot be resolved locally, the Ministry has the right to refer an application to the Local Planning Appeal Tribunal (LPAT). Apparently, the municipality has no such right. This one-sided approach can only be seen as favouritism towards the industry, at the expense of the people.

In the interest of a fair balance, municipalities should have the right to appeal ministry decisions to the LPAT. If needed, funding should be provided for municipalities to mount an appeal.