01505
  1          MANITOBA CLEAN ENVIRONMENT COMMISSION
  2   
  3   
  4   
  5   
  6   
  7   RED RIVER FLOODWAY EXPANSION PROJECT
  8   
  9   
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 11   
 12   =======================================
 13            WEDNESDAY, February 23, 2005
 14            Oakbank United Church
 15             Oakbank, Manitoba
 16   ========================================
 17   
 18                Volume  7
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01506
  1   APPEARANCES:
  2   Clean Environment Commission:
  3   Mr. Terry Sargeant - Chairman
      Mr. Barrie Webster - Member
  4   Mr. Wayne Motheral - Member
      Mr. Doug Abra      - Counsel
  5   Mr. Dave Farlinger - Technical consultant
      Ms. Cathy Johnson  - Secretary to Commission
  6   Ms. Joyce Mueller  - Secretary
  7   Manitoba Conservation:
  8   Mr. Trent Hreno    - Chair, Project Admin Team
      Mr. Bruce Webb     - Chair, Tech Advisory
  9                        Committee
      Mr. Stewart Pierce - Counsel
 10   
 11   Manitoba Floodway Authority:
 12   Mr. Rick Handlon   - Counsel
      Mr. Jim Thomson
 13   Mr. Doug McNeil
      Mr. Doug Peterson
 14   Mr. Cam Osler      - Intergroup Consulting
      Mr. John Osler     - Intergroup Consulting
 15   Mr. David Morgan   - TetrES Consulting
      Mr. George Rempel  - TetrES Consulting
 16   Mr. Robert Sinclair -  KGS
      Ms. Marci Friedman-Hamm - KGS
 17   
 18   Participants:
 19   Mr. Bob Starr      - Ritchot Concerned Citizens
      Mr. Bob Bodnaruk   - RM of Springfield
 20   Mr. Steve Strang   - RM of St. Clements
      Mr. Orvel Currie   - Counsel to Municipalities
 21   Mr. Doug Chorney   - Coalition for Flood
                           Protection North
 22   Mr. Kerry McLuhan  - Coalition for Flood
                           Protection North
 23   Mr. Rob Loudfoot   - 768 Association
      Mr. Y. Shumuk      - 768 Association
 24   Paul Clifton       - Paul Clifton
      Mr. Jeff Frank     - Rivers West
 25   Gaile Whelan Enns  - Manitoba Wildlands
      Earl Stevenson     - Peguis Indian Band
01507
  1   Participants:  (continued)
  2   
  3   Mr. Jake Buhler    - Cooks Creek Conservation
      Mr. Lloyd Crooks   - Cooks Creek Conservation
  4   Mr. Jon Stefanson  - Cooks Creek Conservation
      Mr. Daryl Chicoine - Counsel
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  6   
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01508
  1               INDEX OF PROCEEDINGS
  2   Presentation by Municipalities
      (Wayne Clifton)                     1514
  3   
      Cross-examination of Municipalities
  4   (Wayne Clifton)
      Cross-examination by MFA            1562
  5   Questions by Panel                  1649
  6   Evening Presentations:
  7   Mr. Bob Galoway                     1673
      Mr. Karl Pohl                       1675
  8   Mr. Myron Gavaga                    1687
      Mr. David Grant                     1694
  9   Mr. Hugh Arklie                     1704
      Mr. Bob Bodnaruk                    1710
 10   Mr. Randy Znamirowski               1728
      Mr. Norman Traverse                 1737
 11   Mr. Bruce Allen                     1740
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01509
  1                  INDEX OF EXHIBITS
  2   60     Presentation of Mr. Wayne Clifton   1562
  3   61     Karl Pohl's presentation to the     1686
             Clean Environment Commission
  4   
  5   62     Letter from Mr. Galoway             1727
  6   
      63     Mr. Grant's presentation            1728
  7   
  8   64     Mr. Bodnaruk's presentation         1728
  9   
      65     Mr. Arklie's presentation           1749
 10   
 11   66     Mr. Znamirowski's presentation      1749
 12   67     Mr. Traverse's presentation         1749
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01510
  1                INDEX OF UNDERTAKINGS
  2   UNDERTAKING NO.                            PAGE
  3   
  4   
  5   2      Provided by Wayne Clifton - Provide 1624
             working papers re hydraulic
  6          conductivity, boundary conditions,
             calibration points, calibration,
  7          sensitivity, and floodway staging)
  8   
  9   
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01511
  1   WEDNESDAY, FEBRUARY 23, 2005
  2   UPON COMMENCING AT 1:00 P.M.
  3   
  4               THE CHAIRMAN:  Could we come to order,
  5   please.  Order please.  Welcome back.  We are
  6   ready to proceed with today's proceedings.
  7               First on the agenda today is a
  8   response to an undertaking by Mr. John Osler on
  9   behalf of the Floodway Authority.  Mr. Osler?
 10               MR. J. OSLER:  Good afternoon.  I had
 11   an undertaking coming from page 1153, lines two to
 12   six of the transcript, in which Mr. Stinson
 13   requests.
 14               "Could the breaches in the aquifer be
 15               sealed prior to continuing on with the
 16               expansion of the floodway?"
 17   Acknowledge those are the general terms and they
 18   are not verbatim.  And the discussion was could we
 19   find the exact quote.
 20               We went back and took a look at the
 21   meetings notes that came out of rounds one, two
 22   and three, could not find a direct reference to
 23   that particular quote, although I direct the
 24   Commission and others to the round three issues
 25   identification summary that's found on page 3D,
01512
  1   that's appendix 3D, 156 and 157 of the EIS filing,
  2   where there were three particular references.  And
  3   that's issue number 9.16.200, and they materialize
  4   in the round three identification summary as
  5   issues 300, 301 and 324, which were all issues
  6   raised about groundwater quality and groundwater
  7   intrusion.
  8               Mr. Stinson also provided the EA study
  9   team with two sets of questions on March 5, 2004,
 10   and also on March 22, 2004, in which he talks
 11   about the potential for breaching in the floodway
 12   channel.
 13               The important point here is that
 14   Mr. Stinson's involvement in the process, and
 15   others like him, helped to identify the issues
 16   early in the process, and subsequently they were
 17   able to be integrated in the project design phase.
 18   And as we talked about at some time over the last
 19   couple of weeks, the key issue here is that the
 20   design of the channel itself was altered to
 21   accommodate this and other concerns related to
 22   groundwater.
 23               I believe that completes that part of
 24   the undertaking.  If there is any further
 25   questions from the Commission or Mr. Stinson, I
01513
  1   would be welcome to entertain them.
  2               THE CHAIRMAN:  Thank you, Mr. Osler.
  3               We will now turn to the main item of
  4   business for this afternoon, and that is further
  5   presentation on behalf of the Coalition for Flood
  6   Protection North of the Floodway, and I would turn
  7   it over to Mr. Currie, ask him to introduce his
  8   colleague, and then we will have Mr. Clifton sworn
  9   in.
 10               MR. CURRIE:  Thank you, Mr. Chairman.
 11   I guess I would just like to make it clear on the
 12   record that this is really the portion of the
 13   three RMs presentation.  The last was in fact ours
 14   as well, but I'm not sure whether the Coalition
 15   will adopt everything we say.  We hope they would.
 16               THE CHAIRMAN:  I stand corrected yet
 17   again.
 18               MR. CURRIE:  I don't mean it that way,
 19   but just for the record.
 20               THE CHAIRMAN:  I can't keep it
 21   straight between the Coalition and -- maybe I
 22   should just give credit to everybody.
 23               MR. CURRIE:  The group, okay.
 24               THE CHAIRMAN:  The northern group.
 25               MR. CURRIE:  With that, what I would
01514
  1   do then, Mr. Chairman, is ask that Mr. Clifton
  2   briefly introduce himself to the Commission and
  3   the members of the audience and the MFA.
  4               MR. CLIFTON:  Good afternoon,
  5   Mr. Chair, members of the Commission, and good
  6   afternoon, ladies and gentlemen.
  7               My name is Wayne Clifton,
  8   C-L-I-F-T-O-N.  I'm a civil engineer with a fairly
  9   diverse past and training.  My undergraduate
 10   degree is in civil engineering.  My initial work
 11   experience was in the transportation area.  My
 12   post graduate training was in, initially in
 13   highway transportation and materials, and
 14   subsequent post graduate work was in engineering
 15   geology, geotechnical engineering.
 16               My work history, my career, initially
 17   was in the civil engineering construction,
 18   principally related to highways and bridges.  But
 19   with the onset of the second generation of uranium
 20   industry and the new mining regulations, and new
 21   environmental regulations in Saskatchewan in the
 22   late 1960s, I became one of the early
 23   practitioners addressing the issues related to
 24   environmental management of the uranium industry,
 25   dealing with some of the most toxic substances
01515
  1   that we know in our industrial society, in an area
  2   of principally fractured rock and pristine
  3   groundwater conditions.
  4               In the early 1970s we had very few
  5   tools to deal with these issues, and I started
  6   what turned out to be a 30-year collaboration with
  7   my colleagues at the University of Saskatchewan in
  8   working on developing tools to address the
  9   analysis of environmental impacts, principally on
 10   the groundwater system, and have worked in that
 11   area for 30 odd years.
 12               During that career I have worked both
 13   as a principal investigator, as a manager of
 14   impact assessment, as a technical advisor to
 15   federal panels, a technical advisor to governments
 16   on evaluation of issues related to protection of
 17   groundwater and surface water systems, many of
 18   them in very sensitive socio-economic conditions
 19   where they are areas of great public concern.
 20               So that's a very brief background of
 21   my own history.
 22               THE CHAIRMAN:  Thank you, Mr. Clifton.
 23   I will ask the Commission secretary to swear you
 24   in please.
 25               (WAYNE CLIFTON:  SWORN)
01516
  1               THE CHAIRMAN:  You may proceed, sir.
  2               MR. CLIFTON:  Thank you.  My
  3   presentation relates to the groundwater concerns
  4   of the rural municipalities of St. Clements, East
  5   St. Paul and Springfield.  I was contacted by the
  6   RM of Springfield on behalf of the three
  7   municipalities in the late fall of 2004, and had
  8   early discussions with them regarding the
  9   environmental impact assessment of the floodway
 10   expansion.
 11               My mandate, put in simple terms, was
 12   really to review the documents and to assess
 13   whether the interests of the three municipalities
 14   were adequately reflected in the considerations
 15   published within the documents.
 16               My presentation this afternoon
 17   records, or outlines my conclusions which were
 18   previously communicated in a brief written report
 19   that was submitted to Mr. Currie.  So with that, I
 20   will commence with my presentation.
 21               The opinions that are expressed in
 22   this presentation are mine.  They are based on
 23   documentation provided to the intervenors up until
 24   mid January, thereabouts, in 2005.  But the
 25   presentation that I'm going to give you does not
01517
  1   incorporate all of the changes necessarily that
  2   have been verbally indicated during the hearings.
  3   I have only attended the hearings over the last
  4   several days, so I'm perhaps not fully conversant
  5   with the changes that have taken place.  But with
  6   that caveat, the deficiencies are mine, and I'm
  7   not in any way saying to the proponent that I
  8   disagree with them.  As a matter of fact, far from
  9   that, I congratulate the proponent on getting a
 10   very complex and difficult project to this point
 11   in very, very short -- in a very, very short time
 12   frame.  I have some knowledge of the degree of
 13   difficulty involved and I salute them for their
 14   achievements.  It has been a lot of work in a very
 15   short time.
 16               Now, what I will point out is perhaps
 17   some areas where we have some differences of
 18   opinion in some of the conclusions reached, and of
 19   course, that's what we are here to discuss today.
 20               The summary of concerns are centred
 21   around the overview of the groundwater resource
 22   and they focus on specific issues related to
 23   conservation, management, monitoring, many of them
 24   centred around the interpretation of the CEAA
 25   requirements, particularly with respect to
01518
  1   application of the cumulative effects assessment.
  2               We will end, or I will end with some
  3   recommended conditions of approval.  And in
  4   summary, just to summarize, that the
  5   municipalities are recommending approval of the
  6   project.  But they are recommending approval of
  7   the project and seeking the intervention of the
  8   Commissioners with some specific conditions of
  9   approval that will leave the municipalities whole
 10   with respect to their interests and the interests
 11   of their residents in the groundwater resource.
 12               So in summary, we have concerns, we
 13   recommend approval, but we are seeking specific
 14   conditions to address those concerns.
 15               Some of the concerns relate to who is
 16   the proponent, and the fact that the proponent,
 17   there may be multiple proponents here.  We will
 18   talk about the assessment methodology and about
 19   the ongoing uncontrolled discharge of very
 20   valuable, very high quality water which is
 21   impacting the region's future; the fact that the
 22   authority and its successors must become a
 23   responsible manager of the groundwater resource,
 24   that the impact, while it is portrayed as site
 25   based or at best local in our estimation is much
01519
  1   more extensive than that.  While, again, while it
  2   is portrayed as being construction related only,
  3   we believe again that it has much longer term
  4   effects than that.  And that centres particularly
  5   around the cumulative effects assessment which we
  6   believe is not accurately interpreted.  The
  7   ongoing, the ongoing contamination of the aquifer
  8   that is there is not being addressed to our way of
  9   thinking.  Commitment to transparent community
 10   based monitoring program, arms length dispute
 11   resolution, and as I said before, conditions of
 12   approval.
 13               So that, Mr. Chairman, is a fairly
 14   broad menu, but I will try to briefly describe
 15   those.  I think the concerns are elaborated to a
 16   greater extent in the written submission that was
 17   provided earlier.
 18               Who is the proponent?  Well, in the
 19   documents provided, the Expansion Authority is the
 20   proponent for licensing, design and construction,
 21   and the Stewardship department for operations.  I
 22   simply draw that to the attention of the
 23   Commission, that it is important that the
 24   conditions of approval also apply to the operator.
 25   Conditions of approval for design and construction
01520
  1   should endure and survive through to the
  2   operations of the facility.  And I won't say
  3   anything further about that, but I will address
  4   the issue of impact assessment, of the
  5   methodology.  And this has been in front of the
  6   Commission several times, including while I have
  7   been in the audience, and I will be brief.
  8               The impacts assessed according to
  9   duration, less than five years is short term,
 10   greater than five years is long term.  That's
 11   important because five years is essentially the
 12   construction period for the facility.  They are
 13   assessed according to magnitude, and the magnitude
 14   definition is clear.  Small, there is no
 15   measurable effect.  Moderate, impact is an effect
 16   that could be detected with a well designed
 17   monitoring system.  And I would underline that for
 18   the Commissioners.  That's an important
 19   consequence, because it can only -- the moderate
 20   effects can only be detected if there is a
 21   comprehensive, well designed, representative
 22   monitoring system that gathers information from
 23   before construction, through into the long term
 24   during operations.  Very important aspect.  Large
 25   impacts are those that are readily detectible
01521
  1   without monitoring.  If my well goes dry, to me,
  2   that's an obvious large impact.  And those scalers
  3   are very clear in the EIS.
  4               There is impacts assessed according to
  5   geographic extent, and they are site local and
  6   regional.  The site impact is within the
  7   right-of-way.  If it extends beyond the
  8   right-of-way to an area -- the extent of the area
  9   impacted by changes in water levels or water
 10   flows, that's a local impact.  Again, important to
 11   note.  Regional is beyond the local area.  So, the
 12   definition is self-limiting.  By definition all
 13   groundwater impacts are either local or site.
 14   There are no regional impacts according to the
 15   EIS.  Even though this is a very, very large
 16   regional resource, but it is not a regional
 17   resource from an assessment perspective.  And I
 18   point that out simply because, not by any way
 19   suggesting that the authority is attempting to
 20   mislead anybody, but it is important from impact
 21   assessment to understand that that's a scaler
 22   that's used in the assessment.
 23               And it also defines the mitigation
 24   requirements, it defines requirements that the
 25   proponent commits to.  And I would say I didn't
01522
  1   cotton to that until rereading chapter 2 of the
  2   EIS in the last ten days, that it became -- that I
  3   became aware, and that's my fault, not anybody
  4   else's, on the definition of a local impact.
  5               In my comments and in my discussion,
  6   my definition of region is different.  I define
  7   region as extending beyond one jurisdiction.  So
  8   if it extends beyond one municipality or the
  9   boundaries, multiple jurisdictions, to me, that's
 10   a regional impact.  But that's not the scaler that
 11   the assessors were using in defining this.
 12               So I mention this impact assessment
 13   methodology, because by this definition, and
 14   essentially within the documents limiting the
 15   impact assessment to the construction phase, it is
 16   short term only.  So the majority of assessment is
 17   short term and local.  The consideration of long
 18   term effects is absent in large part from the
 19   documents, but in our view, it needs to be there
 20   for completeness, because long term impacts are
 21   extremely important to the groundwater users that
 22   use the water from this aquifer system.
 23               Now I draw your attention to this
 24   figure, and I'm sorry, I should have put the
 25   figure number, but it reinforces what I was saying
01523
  1   about the scaler.  And this is the scaler for
  2   potentially significant biophysical impacts on the
  3   environment.  And for short term impacts, if the
  4   scalers, if the effects are only moderate and
  5   local, mitigation is not required.  So that says
  6   that virtually all construction impacts do not
  7   require mitigation.
  8               If, on the other hand, the long term
  9   impacts, which are not largely considered within
 10   the documents, if they are local and moderate,
 11   they would require mitigation.
 12               And so this is an area of significant
 13   concern to the municipalities.  And I have heard
 14   in the last two days a discussion that the
 15   Authority had said that they are committed to
 16   mitigating those impacts, but that is not what
 17   I -- my response is a formal response to the
 18   documents, and that is not what the documents have
 19   said.
 20               I will run quickly through the
 21   reinforcement of the aquifer.  It is a very large
 22   aquifer system, as has been explained many times,
 23   flows from east to west.  Birds Hill sand and
 24   gravel deposits cover about 150 square kilometres
 25   of unconfined aquifer, very high quality water
01524
  1   recharge to the bedrock aquifer.  It is a source
  2   of very high quality traditionally to the three
  3   municipalities, and that has been a competitive
  4   and lifestyle advantage for both the
  5   municipalities and the residents; hence the level
  6   of concern for this particular issue within the
  7   municipalities.
  8               These aquifers support well in excess
  9   of 30,000 persons in the three municipalities, and
 10   demand is growing quite rapidly.  The
 11   municipalities expect ever increasing exploitation
 12   of the groundwater and are concerned that it be
 13   protected for the future.
 14               Some water planning has been done
 15   within the region.  I reference the Selkirk and
 16   District Planning Area Board that has been
 17   mentioned previously as being prepared by Wardrop
 18   in 1999.  And it is a useful document in that it
 19   assesses the groundwater availability within that
 20   planning district.  And their conclusion is that
 21   the groundwater within that planning district will
 22   be fully allocated by 2030 even if there is
 23   significant conservation measures taken, put in
 24   place.  If the conservation measures are not in
 25   place or fully implemented, the allocation will be
01525
  1   fully subscribed about 15 years earlier than that,
  2   so prior to 2020.
  3               The hazard of river infiltration is
  4   recognized.  East St. Paul municipality has had an
  5   experience in the 1980s and 1990s, wherein
  6   residents with groundwater wells within the
  7   carbonate aquifer experienced contamination.  And
  8   as a result, East St. Paul went to a piped water
  9   system.  That contamination was from the Red
 10   River, but it demonstrates that the mechanism of
 11   contaminated water entering the carbonate aquifer
 12   can readily be transmitted to wells.  And I think
 13   that mechanism is now well accepted.  I have heard
 14   it discussed several times in the last two days.
 15   But it is not a hypothetical case, it has been
 16   experienced by the residents of East St. Paul.
 17               East St. Paul is currently short of
 18   water.  For the last number of years they have
 19   been constructing well fields that are attempting
 20   to harvest the springs that are a relic from, that
 21   remain from the 1968 construction, springs that
 22   have been discharging into the channel, into the
 23   floodway channel.  They have been attempting to
 24   pick up that water by a well field at what is
 25   known as the Oasis well field.  And it is high
01526
  1   quality water, but they need more water now.  They
  2   are currently short of water and will be looking
  3   to exploit more.
  4               There is a growing regional demand
  5   that will have an impact on the groundwater regime
  6   that is not accounted for in the EIS.  And the
  7   rationale, we heard that clearly expressed by the
  8   authority, that that demand would go on regardless
  9   if the floodway was expanded or not.  And so
 10   therefore that demand need not be considered in
 11   the EIS.
 12               That's an important consideration.
 13   Because if that demand does go on, and I think it
 14   is only a matter of time before gradient reversals
 15   will take place and contamination that is in the
 16   floodway channel now, as we heard about
 17   previously, will be free to migrate out of the
 18   channel towards wells.  Hence the level of concern
 19   on behalf of the municipalities that this is not a
 20   short term construction of the expansion issue, it
 21   is a long term conservation of water quality and
 22   water quantity issue.
 23               The other really significant concern
 24   is that the best quality water, we have heard this
 25   before, but the best quality water is currently
01527
  1   being allowed to flow freely down the channel,
  2   with no attempts at conservation.
  3               The aquifer was very heavily impacted
  4   by the 1968 construction, that's again well
  5   documented in the EIS.  And the proponents have
  6   done a very good job in bringing -- in attempting
  7   to assess that impact, even though presumably it
  8   is not part of the expansion area, but it was an
  9   attempt to show how the baseline has evolved.  And
 10   there has been more than six metres of drawdown in
 11   this area with a very, very large cone.  Much of
 12   the flows appears to be attributable to blowouts
 13   and uncontrolled flow into the channel.  Because
 14   of this past experience, because of this past
 15   experience with the impacts of construction, the
 16   institutions, i.e., the municipalities and the
 17   residents of this area are strongly sensitized to
 18   this issue.
 19               And I can tell you, Mr. Chair, the
 20   process that I engaged in was an evaluation, and
 21   then multiple meetings with the municipalities as
 22   I reported back my conclusions and sought more
 23   information from them.  And feelings among my
 24   client group were very strong.  It is both an
 25   economic issue and an emotional issue with many
01528
  1   people in this area.  They are highly sensitized
  2   to this issue, and I simply reinforce that with
  3   the Commission.
  4               This is the post floodway drawdown
  5   that has been simulated by the proponent's
  6   analysts, and it demonstrates the very, very
  7   considerable extent of the drawdown centered right
  8   on this area, very close to the area that we are
  9   in right now.  The RM of Springfield was certainly
 10   in the centre of the impacted area
 11               Now what is a blowout?  I want to
 12   discuss this just for a minute because there have
 13   been a lot of discussions about that, and I will
 14   try to explain it in very simple language.  The
 15   aquifer in the channel prior to 1968 was sealed by
 16   very thick layers of clay and fine grain soils
 17   that sealed the water in the bedrock, in the
 18   limestone and dolomite.  And there was high
 19   pressure, high water heads sealed in the bedrock.
 20   And as the clay and till were removed, at some
 21   points the water pressure from underneath was
 22   greater than the weight of the soil holding the
 23   water in.  When that happened, the soil was
 24   lifted, and when it lifted it cracked and
 25   fissured.  It is by no means a blowout, it is not
01529
  1   a bomb blast or anything of that nature.  It's a
  2   slow lifting of the soil, and the soil is cracked,
  3   and the water can escape through those cracks, and
  4   with time the cracks are expanded by the springs,
  5   and the water flowing away carries a bit of soil
  6   and they become, slowly become more developed with
  7   time, and water can escape with less and less
  8   resistance.  That's typical development of what is
  9   called a blowout in civil engineering terms.  The
 10   clay seal lifts and fractures, allowing springs to
 11   flow freely, and the aquifer is largely
 12   unprotected at those areas.
 13               I know of no springs, in my
 14   experience, that once they start flowing ever
 15   reseal until the water pressure drops to the level
 16   below the ground level at the spring.  As a matter
 17   of fact, they tend to become more prominent with
 18   time.
 19               So a typical blowout has been
 20   explained here as being -- it reflects around the
 21   bottom of the low flow channel, where this area in
 22   here the soil slowly lifts, opens up so cracks can
 23   form, and water from the green underlying bedrock
 24   aquifer percolates up into the channel and flows
 25   into the Red River.  That is what blowouts do.
01530
  1   Blowouts crack the soil, make it more permeable,
  2   remove the natural protection that exists.
  3               A huge amount of water has been lost
  4   from the aquifer, initially estimated at 3,000
  5   gallons per minute, the flow now is 1,000 gallons
  6   a minute at Dunning crossing, about
  7   4 million cubic metres or 4 billion litres a year,
  8   enough water into the channel for 31,000 residents
  9   within the three municipalities, about the same
 10   amount as the current population of the
 11   municipalities; so hence the nature of the
 12   concern.
 13               Virtually all of the flow appears to
 14   be from the springs in the channel, but -- and
 15   this information on the characterization of the
 16   springs was the subject of some discussion in the
 17   last two days, also was the subject of the
 18   interrogatory which I have noticed here, RM 3 IR
 19   3A, but there is no information on the springs,
 20   but the springs are key.  They are a key
 21   engineering issue because they define areas of
 22   sensitivity within the aquifer.  Hence,
 23   characterization of those springs, the lack of
 24   characterization of those springs, in my view, is
 25   a serious omission within the EIS.
01531
  1               The basic assumption, also within the
  2   engineering concept, is that these springs will be
  3   allowed to flow in perpetuity, because there are
  4   no alternatives discussed to bring them under
  5   control.  And the municipalities, as I stated
  6   before, clearly do not agree with this approach.
  7   It is not in keeping with the modern approaches to
  8   conservation and resource management, and not an
  9   acceptable approach in terms of project
 10   development.
 11               So the characterization of groundwater
 12   conditions in the channel, because of the lack of
 13   information on the springs and the flows, is
 14   incomplete and inadequate.  It is inadequate -- it
 15   is inadequate information upon which to form a
 16   decision on impacts, on the impact of this
 17   project.
 18               Now, it isn't, I must point out in
 19   fairness, it isn't deficient if the Commission
 20   accepts the proponent's definition of expansion.
 21   Because the proponent's definition of expansion is
 22   that those springs are there, they will continue
 23   to be there, that there is no plan to change them,
 24   and they would be there for the next centuries
 25   regardless if the project is expanded or not.  And
01532
  1   I agree with that.  That's correct.  But I
  2   disagree with that definition of the project, as
  3   we will talk about later.  That is really central
  4   to the cumulative effects discussion.
  5               Can you adequately, as Commissioners,
  6   render a decision on the impact, the acceptability
  7   of impacts of the expansion without considering
  8   ongoing environmental effects?  The municipalities
  9   would strongly submit you to consider the project
 10   as a whole.  I will talk about that more.  But the
 11   groundwater conditions in the channel are a
 12   fundamental input to numerical modeling, to design
 13   decisions, to impact assessment, to mitigation
 14   design, to monitoring, and to risk assessment.
 15   They are a key piece of information that is not
 16   being provided in the documents.
 17               Let's talk then further about
 18   cumulative effects.  Cumulative effects, the
 19   approach that's put forward within the EIA, is an
 20   internal authority interpretation on how to apply
 21   the impact assessment.  The combination of the
 22   impact assessment methodology and interpretation
 23   of cumulative effects, if the Commission accepts
 24   that argument, means that groundwater issues are
 25   off the table.  We do not support that, of course,
01533
  1   nor is it in keeping with normal practice of
  2   impact assessment.  But if cumulative effects
  3   assessment, and the assessment of duration and
  4   severity of effects are accepted, as put forward
  5   in the EIA, groundwater impacts will not be a
  6   consideration for this panel.  That is -- I point
  7   that out because that is the net result of the
  8   structure of the EIA.  And I'm sure Mr. Currie
  9   will have more to say on that at a later date.  I
 10   simply point out to the Commissioners that that is
 11   how the EIA is structured.
 12               That is important because the existing
 13   project is unlicensed and it is non-compliant.
 14   This was an interrogatory to the proponent in RM 3
 15   IR 4A and 4B.  It was unlicensed for good reasons,
 16   there was no one in 1968 to licence it.  The
 17   proponent rightly points out that water was
 18   property of the Crown, and the Crown in 1968 was
 19   probably free to do whatever they wished with
 20   groundwater.  But it is non-compliant, certainly
 21   with current Manitoba Government policy as
 22   expressed in sustainability policy and as
 23   expressed in current background to Bill 22, which
 24   is groundwater management policy.  And I will -- I
 25   can speak further to that, if you wish, but it
01534
  1   is -- when I say it is non-compliant, it is
  2   non-compliant certainly from a policy perspective,
  3   and it is -- I am going to ask Mr. Currie to file
  4   with the Commissioners a document regarding bill
  5   22, which is the Water Protection Act that is
  6   currently under study, and it was a presentation
  7   to Manitoba Planning Conference which laid out the
  8   direction.  And it is very much a direction that
  9   the Commissioners, that the municipalities are
 10   espousing.
 11               And the theory, the hypothesis of that
 12   bill, the background principle of it is that water
 13   can no longer -- the quantity and quality of water
 14   can no longer be taken for granted.  And there is
 15   specific issues they are asking for; source
 16   protection, transparency and inclusiveness, water
 17   shed planning, state of water shed reporting,
 18   stakeholder committees and stakeholder
 19   consultations, and the need to integrate land use
 20   planning and water use planning.
 21               You will see that the recommendations
 22   that the municipalities put forward are very
 23   consistent with the intent of that legislation.
 24   And so nothing that the municipalities are
 25   proposing is different from Manitoba policy, by
01535
  1   any means, it is supportive of Provincial policy
  2   in that area.
  3               The suggested application of
  4   cumulative effects as put forth by the proponent
  5   is not rational.  The CEC is invited to consider
  6   assessment only for widening, but as we heard on
  7   Monday -- you are also invited to consider only
  8   widening and the impacts of widening, but you are
  9   invited to recommend approval of the whole
 10   project.  That simply, Commissioners, is an
 11   attempt to use a back door approach to licence the
 12   entire facility, and it is not in keeping with
 13   generally accepted practice with respect to these
 14   facilities.  The entire project must be considered
 15   to assess the net effects of the project.
 16               So in summary, the existing project
 17   remains non-compliant, certainly, at least from a
 18   policy perspective.  Groundwater wastage continues
 19   unabated within the existing channel, the aquifer
 20   remains unprotected, health risk assessment and
 21   potential risks to the residents and to the
 22   municipalities are not considered, time effects
 23   looking forward into the future were not
 24   considered.
 25               All of those issues within the
01536
  1   documents are deferred to detailed design, and
  2   that's highly irregular where there is an issue
  3   that affects public welfare.  Public welfare
  4   issues -- one of the purposes of environmental
  5   hearings are so that public welfare issues may
  6   obtain a full airing, and the public can make a
  7   decision as to whether or not these issues are
  8   treated to their satisfaction, or can enjoin or
  9   can prevail upon the Commission to make
 10   recommendations on their behalf.  But the public
 11   here cannot make those representations because the
 12   details are not presented.  They are deferred to
 13   the detailed design stage.  And that's not in
 14   keeping, as I note, it is not in keeping in
 15   generally accepted practice for environmental
 16   impact assessment.  It is not in keeping with
 17   general accept practice for environmental impact
 18   assessment.  Issues that are of strong public
 19   concern are usually addressed in detail in the
 20   impact assessment documents.
 21               Now, the 1968 construction created a
 22   series of direct hydraulic connections between the
 23   floodway and the bedrock aquifers.  These are
 24   simulated by models, and there is quite an
 25   extensive modeling exercise within the documents,
01537
  1   and verified by direct observations on the wells.
  2               Now, the impacts will persist for
  3   centuries unless they are mitigated in some
  4   fashion or the other.  And I reproduce here the
  5   profiles of the low flow channel inward; in other
  6   words, the bottom of the low flow channel.  And it
  7   is of interest because the green line here was the
  8   channel bottom when the survey was conducted, in
  9   other words, say 2003 or 2004.  The original
 10   design is the red line.
 11               The issue over deepening and not
 12   deepening is an important one, but you can see
 13   that mother nature has taken matters into her own
 14   hands in some important areas where the deepening
 15   appears to be as much as a metre to a metre and a
 16   half in certain areas.  So there has been very
 17   significant deepening of the channel just through
 18   natural river erosion effects and river formation,
 19   river channel formation.
 20               It will be a challenge for the
 21   engineering team to design an erosion protection
 22   system that maintains the channel back at that red
 23   line, which was the original design.  That will be
 24   an important benefit if the channel can be
 25   maintained there because more water -- the channel
01538
  1   is deeper than designed.  As the channel deepens,
  2   more water is being bled off by the channel.  So
  3   backfill of the channel will be an important
  4   benefit in conservation.
  5               The impact of flood simulation
  6   mounding received ample discussion yesterday, I
  7   won't go into it further, I think it was
  8   adequately explored yesterday.  I can add nothing
  9   to that discussion.  I will discuss, though, the
 10   role of models and what is the importance of
 11   models in this discussion.
 12               Models are mathematical simulations of
 13   water flow, the combination of physics and
 14   mathematics to give an understanding of how the
 15   groundwater flows and how the system works.  They
 16   are extremely valuable as a visualization tool,
 17   but at this level they can not be relied upon for
 18   definitive design quality data.  There is a great
 19   tendency to accept the results of models as being
 20   definitive.  They are not.  Models of this scale
 21   have to be based on assumptions and they are only
 22   a guide to the designers, they are not definitive,
 23   deterministic.  In other words, they don't present
 24   the answer, they present one of a series of
 25   possible answers.  And models are only effective
01539
  1   when they are followed up with considerable what
  2   is called performance matching, continue
  3   calibrating with a very, very well designed and
  4   maintained monitoring network.
  5               The regional models are based on
  6   assumed parameters and generalized geometry, out
  7   of necessity, there is not enough information
  8   within this hundreds of square kilometres to give
  9   the generalized geology, or to have the geology in
 10   detail.  But again, a good tool because it shows
 11   the direction of groundwater flow, where the
 12   pressure points are.  They do not, though,
 13   consider the nature of springs.  So the closer to
 14   the channel that you get, the less reliable the
 15   regional model will be because, again, the nature
 16   of the springs as points where water is being bled
 17   off, they are essentially wells in the bottom of
 18   the channel, they are not fully considered.
 19   Nonetheless, the regional model is quite well done
 20   and it gives an important understanding of the
 21   factors governing the groundwater flow.
 22               The detailed models are used for the
 23   near channel environment.  They are again based on
 24   mod flow, and they are largely saturated flow
 25   models, but because of that the modeling exercise
01540
  1   is not complete.  It would have been much more
  2   appropriate to use -- let me go back a bit.
  3   Saturated flow models are models that simulate
  4   movement of water below the water table.  Above
  5   the water table is the unsaturated zone, or what
  6   is called in hydrogeology the vados zone.
  7               Simulation of impacts in the channel
  8   require a different model, one that can consider
  9   the movement of water in the unsaturated zone, in
 10   the vados zone.  And while the models are
 11   presented as being calibrated and robust, when you
 12   look at them in detail, it is my opinion that they
 13   are not sufficiently calibrated to pass a peer
 14   review.  And I will go into that in more detail.
 15   The reason for that is because they rely, by and
 16   large, calibrated to one observation well,
 17   sometimes two.  And that observation well is
 18   sometimes some distance from the channel, when
 19   really what we are looking at is analyzing impacts
 20   immediately in the vicinity of the channel.  For
 21   those reasons, the results are order of magnitude
 22   estimates only and may vary from reality, from the
 23   facts that are experienced in the field from
 24   construction by a significant amount.  I say by a
 25   factor of two to 50 or more.  That sounds like a
01541
  1   large number, but a factor of 10 in hydrogeology
  2   studies is not unusual, it is not unusual.  Two
  3   orders of magnitude is 100, so one and a half
  4   orders of magnitude -- these are not uncommon
  5   numbers, two to 50 with the level of detail would
  6   be the range that I would put on these.
  7               As a result, I do not believe that the
  8   models can be relied upon for definitive hard
  9   judgments at this level of detail.  They are a
 10   very good approximation, they give indications
 11   into the mechanisms.  That is very important, it
 12   is guidance to the designers, but it is not a
 13   definitive, this is the answer, this is what is
 14   going to happen, not at this level of detail, not
 15   with this level of input information.
 16               Contaminant transport models would
 17   normally be the follow-up to the type of modeling
 18   that's presented.  Contaminate transport model,
 19   contaminate transport is exactly that.  If a
 20   contaminant enters the aquifer, where will it go
 21   and how fast does it get there?  They normally
 22   depend, and they are built on top of a valid
 23   calibrated seepage model.
 24               Now, they result in -- in the EIS,
 25   basically the definitions are -- the modeling in
01542
  1   the EIS presents mechanisms of the flow, and
  2   that's again very valuable.  But there is no
  3   transport modeling.  Mod flow, used in the way
  4   that it is, is not an appropriate tool to model
  5   contaminant transport in the aquifer.  There is a
  6   parallel set of software that goes with mod flow
  7   that is an appropriate tool, but in my estimation,
  8   mod flow is not the tool.  And this is technical
  9   argument and I will not get into it further, but I
 10   would be prepared to answer questions on it.
 11               So as a result, the time estimates
 12   that are presented are order of magnitude
 13   estimates only.
 14               The conclusion that contamination of
 15   the aquifer is inconsequential is just not
 16   justified on the basis of the models.  And then
 17   the literature is replete with areas where the
 18   models -- ground truthing and performance differ
 19   significantly from modeling.  That's to be
 20   expected.  That is the norm rather than the
 21   exception.
 22               The physical models show surface water
 23   is not readily ejected from the aquifer.  And we
 24   heard information on that yesterday, and I agree
 25   with that.  But there is probable long term plume
01543
  1   development both up gradient and down gradient in
  2   the vicinity of the blowouts and springs.
  3               What do I mean by plume development?
  4   The plume is the residual of the surface water.
  5   That surface water will reside in the aquifer both
  6   east and west of the channel.  It is more severe
  7   to the west as reported in the EIS, because that's
  8   the direction of natural flow, but it can also
  9   move upstream and up gradient, and progressive
 10   degradation of the aquifer is probable unless it
 11   is mitigated.
 12               And I will show you a mechanism by
 13   which that is likely occurring -- to follow up on
 14   the work that was reported yesterday afternoon,
 15   for that reason, there is a potential human health
 16   risk that needs to be evaluated for completeness
 17   of the impact assessment.  I will show you just a
 18   very simple simulation that I carried out to
 19   satisfy myself as to the mechanisms that may
 20   exist.  And this is following on the geometry that
 21   is reported in the Keewatin Bridge site analysis
 22   where there is a blowout of the silt till
 23   aquitard.  The analysis it carries out applies
 24   seven weeks of flood levels and then allows,
 25   simulates the channel being dry for ten years to
01544
  1   see if the water that intrudes into the aquifer
  2   will come out of it.  The intent of this is not by
  3   any means to be definitive, but it is to
  4   illustrate the pathway and the mechanisms of the
  5   plume development that completeness in the EIS
  6   requires.
  7               So the basic model is to look at an
  8   area equivalent to the base of the low flow
  9   channel that has been disrupted by flow, so that
 10   it has the permeability of a sand or a dirty
 11   gravel or a fractured till, a fractured dense
 12   till.  And it is subjected to the flood for a
 13   period of seven weeks.  This is, I can't tell you
 14   exactly where this is taken from, but it
 15   approximates the hydrograph under flood
 16   conditions.
 17               And the results are this:  If you look
 18   at the concentration of surface water within the
 19   aquifer, near the top of the carbonate bedrock,
 20   immediately below the channel invert, now zero
 21   percent on this concentration curve would mean no
 22   surface water, 1.0 or 100 percent means that it is
 23   all surface water.  Using this simulation, it
 24   shows that surface water rapidly enters the
 25   aquifer, and after a few days the top part of the
01545
  1   aquifer is predominantly surface water.  The
  2   pathway is there to deliver surface water.
  3               And if you look at concentration below
  4   the aquifer, this again is percentage surface
  5   water -- a plug of surface water flows down
  6   through the aquifer and through this blowout and
  7   resides within the aquifer after a very few days
  8   or few weeks.  And when you look at the
  9   concentration of surface water in the bedrock
 10   after seven weeks of intrusion, about 80 percent
 11   immediately under the aquifer, but the plume
 12   spreads out so that the 10 percent line is about
 13   100 metres upstream -- sorry, 100 metres west, 50
 14   to 75 metres east.  So it can move both up
 15   gradient and down gradient by the natural mixing
 16   mechanisms which occur.
 17               So this is the shape of the plume.
 18   And I won't spend more time other than to
 19   demonstrate how the surface water can spread in
 20   the subsurface.  It is there after two years.
 21   Now, what we did in the simulation is we
 22   allowed -- this is with water flowing back, this
 23   is a dry channel and water is flowing back, but
 24   even with it flowing back for two years, there is
 25   still zones of about 20 percent surface water
01546
  1   remaining within the carbonate aquifer.  And even
  2   after six years there are zones within the
  3   carbonate aquifer that are more than 10 percent
  4   surface water.  And the analysis shows that the
  5   impact could well go to 200 metres to the west and
  6   150 metres, plus or minus, to the east.
  7               Now, if after 10 years there were a
  8   second flood, what would happen?  Well, the second
  9   flood causes the plume to spread.  And I will just
 10   go back.  This is where the plume is after two
 11   years.  If there is a second flood in 10 years,
 12   the plume is pushed out.  If there is a second
 13   flood after 20 years, the plume is pushed out
 14   farther, and by 20 years it is pushed out to more
 15   than 500 metres to the west, more than 400 metres
 16   to the east.  This is a simulation only.  And it
 17   is based on assumed information.
 18               The point of the simulation is to
 19   demonstrate that the mechanism can exist, or does
 20   exist.  The physics are there that will allow
 21   mixing of the surface water into the groundwater
 22   in the carbonate aquifer, and that the migration
 23   is more rapid to the east, but there is also
 24   reason for concern for migration to the west.
 25               It is a model to evaluate the mobility
01547
  1   of the plume.  And the plume is likely to be
  2   mobile.  A significant amount of surface water is
  3   likely to remain in the aquifer.  And contaminant
  4   mobility, mobility of contaminated surface water
  5   is a potential concern that needs further
  6   investigation.
  7               Second issue is areas of exposed
  8   bedrock -- residents have reported to me and I
  9   believe you will hear from at least one of them,
 10   that bedrock exposures exist within the channel
 11   particularly within the vicinity of Spring Hill.
 12   I haven't investigated those areas further, but if
 13   they are there, there is an area of even greater
 14   susceptibility to contamination than what I have
 15   modeled, and it is an area that deserves further
 16   evaluation.
 17               I want to speak about the issue of
 18   dealing with uncertainty.  Uncertainty is inherent
 19   in the modeling of the subsurface.  Again, we deal
 20   with the information in hand, sometimes we are
 21   attempting to model hundreds of square kilometres
 22   with very little information.  The EIS uses
 23   sensitivity analysis as a tool to evaluate what
 24   are called worst case scenarios.  That's a
 25   valuable tool, but you don't know whether those
01548
  1   worst case scenarios are, in fact, worst case
  2   scenarios, because the analysis is based largely
  3   on assumed data, but we do know that the results
  4   are not deterministic.  In analysis such as this,
  5   a method of probability is very valuable.  And
  6   that is a mechanism that I would be looking for.
  7   A probabilistic risk based approach is preferred,
  8   particularly where human health concerns may
  9   exists.
 10               What is a probabilistic approach?
 11   Well, in the evaluations that are presented, the
 12   permeability of the soil, for instance, or the
 13   porosity of the soil is represented by a number,
 14   but we know that's not the case.  In fact, there
 15   is some sort of a normal distribution, or perhaps
 16   not normal, but some sort of a distribution of
 17   values over a whole population of permeability
 18   values that might exist.  If that soil was all of
 19   one permeability and could be represented in the
 20   fashion that's here, then the numbers that are put
 21   forward would be valid.  But we know that, we know
 22   when you dig in the subsurface sometimes we will
 23   go through tens of feet of clay and it will be
 24   uniform, maybe move over 50 metres and go through
 25   clay and then silt and maybe sand pockets,
01549
  1   whatever.  It is not a uniform subsurface.  The
  2   results cannot be represented by a single number.
  3   There is not one answer, there is a range of
  4   probable answers, of possible answers.
  5               And when I look at the documents, best
  6   practices in evaluating groundwater impacts
  7   require a look at probability.  What is the
  8   probability that an event will occur and that
  9   contaminated water may reach the receptor?
 10               Time effects -- the EIS considers only
 11   construction and the longer term impacts are
 12   ignored.  And again there is a reason for that,
 13   because from the view of the proponents, those
 14   long term impacts would occur regardless, the vast
 15   majority of those impacts would occur whether or
 16   not the expansion goes forward.  So the impacts of
 17   things like uncontrolled flow are not discussed.
 18   But allowing groundwater to escape into the
 19   channel in an uncontrolled fashion is not best
 20   practice from an engineering perspective,
 21   particularly in a bedrock that is subject to
 22   piping and karsting, which is formation of
 23   channels in the subsurface.  If that happens and
 24   the springs continue to develop and the channel
 25   erodes, there is progressively greater drainage of
01550
  1   groundwater from the region.  And hence the long
  2   term impacts of that uncontrolled flow, to me,
  3   require evaluation.
  4               The issue of progressive contamination
  5   of the aquifer is mentioned in the EIS but it is
  6   discounted without analysis, by application of the
  7   Ontario guidelines.  That even if there is
  8   migration into the aquifer, we need not be
  9   concerned about it because beyond 400 metres the
 10   bacteria will become inactive.  And we heard the
 11   CRA experts talk about that yesterday.  Their
 12   response was that microbes into the carbonate
 13   aquifer can remain viable for kilometres, not a
 14   few hundred metres.
 15               So as a result, the consideration of
 16   time effects, of long term effects in the EIS, in
 17   our view, is a major deficiency.  A deficiency
 18   that can be corrected, but there is not sufficient
 19   information at the moment to make a judgment as to
 20   the magnitude of impacts, particularly with
 21   respect to health concerns in the long term.
 22               So, what are the hazards that we are
 23   talking about?  Well, the 1968 construction
 24   removed the protective clay cover, the springs are
 25   there, the bedrock may be locally exposed in the
01551
  1   channel -- and I'm advised that it is by residents
  2   knowledgeable in the area -- the flood water is
  3   known to be polluted, there is no provision within
  4   the design of this facility at the moment for
  5   protection of the aquifer, because that is an
  6   ongoing effect, part of the evolving baseline that
  7   will continue to evolve for centuries in the
  8   future, and hence not required to be addressed
  9   under the terms of reference under which the
 10   proponent has submitted this EIS.  And that will
 11   be an area of significant debate.  Long term
 12   depletion of groundwater, long term degradation of
 13   groundwater are the hazards.
 14               Potential impacts not addressed --
 15   economic impact as a result of loss of benefit
 16   from the groundwater resource, health and safety
 17   impacts, the risk of progressive degradation, or
 18   the risk of pathogenic contamination of
 19   groundwater, biophysical impacts on progressive
 20   degradation of water quality and reduction in safe
 21   yield of the aquifer.
 22               The impacts, as I said, are focused,
 23   they are framed in the local context, but it is
 24   clear that because of the importance of this
 25   aquifer within multiple jurisdictions, they are
01552
  1   regional extent with a time line well beyond the
  2   limit of construction.
  3               I want to focus a bit on potential
  4   human health effects.  I don't want to be alarmist
  5   in any way.  I simply mention this because, for
  6   the sake of completeness, given that the
  7   mechanisms exist, human health effects deserve
  8   some discussion, and they are not discussed in the
  9   EIS.
 10               The U.S. EPA risk assessment model is
 11   applicable here, and it provides a very good
 12   framework for definition of risk, a risk based
 13   approach, particularly with respect to
 14   groundwater.  We know that there is a source --
 15   the U.S. EPA model is based on a source pathway
 16   receptor framework.  We know that there is a
 17   source, there is ample supply of contaminated
 18   surface water that periodically floods the
 19   floodway.  We know that there is a pathway.  I
 20   think it is agreed that the springs that emit
 21   water into the floodway channel are tied into the
 22   bedrock, and the monitoring system shows that the
 23   bedrock aquifer is responsive to floodway, I don't
 24   think there is much debate that the pathway
 25   exists.  There are many receptors.  There are
01553
  1   30,000 people, somewhat fewer than 10,000 families
  2   using groundwater within the three municipalities.
  3   A human health risk of potential human health
  4   impacts is warranted in this condition.
  5               Who is potentially at risk and what
  6   are they at risk for?  Well, if you look at
  7   potential stakeholders, being families, the
  8   municipalities or institutions of Government here,
  9   and the public at large, who is at risk and what
 10   are the risks?  The risks are economic impact,
 11   health and safety impact, and change in the
 12   physical environment.  All of these parties are at
 13   risk to a greater or lesser degree -- let me back
 14   up.  All of these parties must be considered to be
 15   at risk to a greater or lesser degree until
 16   rigorous risk evaluation demonstrates otherwise.
 17   That's one of the purposes of the EIS.
 18               I want to discuss briefly the role of
 19   the authority as groundwater user.  One of the
 20   interrogatories to the authority that the
 21   municipalities put forward was to ask the MFA for
 22   its policies with respect to groundwater
 23   management.  And the interrogatory is there for
 24   the Commission to read.  It basically -- I read
 25   the interrogatory and I read the EIS, and although
01554
  1   the MFA is a very significant water user, there
  2   was no stated policy from within the corporation
  3   on how groundwater would be managed or how they
  4   would approach groundwater management.  It is
  5   clear that MFA needs to work -- we are looking for
  6   recommendations from the Commission in that
  7   regard, that they move in compliance with the law,
  8   and we heard yesterday on some of that, but
  9   certainly with respect to public policy in the
 10   Province of Manitoba with respect to groundwater
 11   use.  Part of that is development of a groundwater
 12   management plan that would focus on conserving and
 13   protecting groundwater, and that would provide
 14   aquifer protection for all authority lands, and
 15   would implement a community based monitoring plan.
 16               The authority -- in the EIS there is,
 17   the issue of monitoring plan is discussed from
 18   time to time, and it is passed off to other arms
 19   of government.  And hence my discussion,
 20   Mr. Chair, with respect, that the conditions of
 21   approval must apply to successors to the
 22   authority.  The conditions of approval must apply
 23   to the operator as well as to the landlord, that
 24   is very important.  And because there is no long
 25   term monitoring plan, there is no -- and I don't
01555
  1   want this to sound, it perhaps sounds more harsh
  2   than I intended.  A proponent of this nature,
  3   impacting groundwater resource to the extent that
  4   this project has impacted it, would normally be
  5   submitting a substantial monitoring plan as part
  6   of the EIS, and would be required to
  7   comprehensively monitor the state of the resource
  8   on an ongoing basis.  And the proponent has
  9   monitoring responsibility.  We are asking that it
 10   be -- that it involve the community, that it be
 11   comprehensive and that it include a comprehensive
 12   baseline, the baseline should be underway now.
 13   All of the monitors should be reviewed to assess
 14   the conditions of the wells.  If the well is more
 15   than 15 years old, it probably was developed to a
 16   standard that applied to a different time and
 17   area, different time and different standards.  All
 18   monitoring needs to be reviewed and monitoring
 19   should be in place, the baseline completed, well
 20   before the first shovel goes into the ground.  A
 21   comprehensive baseline in advance of construction
 22   is mandatory in our view.
 23               Dispute resolution and mitigation has
 24   been discussed.  We are seeking commitment to a
 25   process and an institution where decisions are
01556
  1   science based, that they be adjudicated at arm's
  2   length from the operator and the authority by a
  3   fully funded independent agency with well defined
  4   appeal mechanisms.  So that, as was noted
  5   yesterday, that claims with respect to impacts do
  6   not become embroiled in long term, expensive and
  7   technical and legal arguments, that they can be
  8   adjudicated by an arm's length group that does not
  9   have a stake in the outcome.
 10               In summary, the groundwater is a
 11   critical resource to the region that includes the
 12   three municipal municipalities.  The experience in
 13   East St. Paul has demonstrated that microbial
 14   contamination of the bedrock has been an ongoing
 15   hazard.  There have been real events.  It isn't a
 16   hypothetical event.  The EIS conclusion of
 17   maintaining status quo with respect to continued
 18   wastage of groundwater is not acceptable, nor
 19   probably legal when you consider the
 20   Sustainability Act.
 21               The EIS is severely flawed in that it
 22   does not consider ongoing impacts on quality,
 23   quantity and safety of the water that sustains
 24   30,000 residents within the municipalities.  The
 25   impacts that result both from the cumulative
01557
  1   effects -- sorry, the impacts result both from
  2   cumulative effects of the facility and ongoing
  3   operations.  And we are seeking that MFA come into
  4   compliance with Manitoba policy and statutes.
  5               The modelling results are an
  6   approximation only, and cannot be used for
  7   definitive basis for critical decisions regarding
  8   design of the facility.  The EIS does not address
  9   adequately the issues of conservation, aquifer
 10   protection and sustainability.
 11               A health risk assessment to the same
 12   level of rigor as which the flooding risk
 13   assessment is carried out is an essential
 14   component of project decision making, considering
 15   the identified potential for an ongoing long term
 16   intrusion of surface water into an aquifer that's
 17   currently used as a potable supply.
 18               Despite these concerns, and after a
 19   very significant discussion with the
 20   municipalities, with the elected representatives
 21   of the municipalities, the municipalities are
 22   recommending approval of the project, but ask the
 23   Commission to issue conditions of approval that
 24   will require solutions be brought forward on the
 25   issues that have been identified.
01558
  1               These conditions include the
  2   following:  That the authority and the floodway
  3   operators comply with all regulations governing
  4   groundwater management in Manitoba.  That ongoing
  5   exposure of the aquifer to contaminated surface
  6   water poses a potential health risk that must be
  7   assessed and remediated, if necessary.  And it is
  8   of interest to note that that mechanism of
  9   contamination -- bad choice of words.  I want to
 10   make it clear that it is the issue of potential
 11   contamination, is not as a result of this
 12   proposal.  If that mechanism is, as we've assessed
 13   it to be, it has been going on since the original
 14   floodway was constructed.  So, it has no way,
 15   anything to do with the proposal that's in front
 16   of us.  It has to do with the facility that sits
 17   there today in the geologic conditions that exist
 18   there today.  But the risk to the aquifer and the
 19   associated risk to human health must be assessed.
 20               The ALARA principle, which is as low
 21   as reasonably achievable, is a very well accepted
 22   principle in environmental management.  It means
 23   that you invest to the level where you can achieve
 24   results.  And the municipalities are asking that
 25   the ALARA principle apply to the conservation, to
01559
  1   the groundwater protection and conservation
  2   aspects of the entire floodway project.  In other
  3   words, apply ALARA to groundwater conservation and
  4   protection.  A baseline be established prior to
  5   commencement of construction.
  6               That an arm's length, independent
  7   institution be established to adjudicate claims
  8   and mitigation in accordance with the
  9   recommendations made within this submission.
 10               That there be a comprehensive
 11   characterization of the channel, including all
 12   existing springs, and that this be conducted as
 13   part of the pre-construction baseline.  That a
 14   human health risk assessment be conducted on the
 15   groundwater systems in the vicinity of the
 16   floodway, of the existing floodway, to assess the
 17   impacts and risk on existing and potential future
 18   intrusion of surface water.
 19               We are asking the Commission that you
 20   reject the proposed Authority methodology for
 21   cumulative effects, and that the project be
 22   assessed in its entirety, in other words, at the
 23   1968 phase, plus the proposed expansion be
 24   considered together, because it is not at all
 25   clear to us how you can licence an entire project
01560
  1   if you do not consider an entire project.  So that
  2   the project must be considered in its entirety.
  3   Alternatively, in our view, the only other option
  4   open to the Commission is to reject the approval.
  5   So, to be considered in its entirety so that the
  6   entire facility be appropriately subjected to
  7   impact assessment and be licenced with the
  8   appropriate conditions.
  9               And that, Mr. Chairman, and ladies and
 10   gentlemen, concludes my remarks.  I would be
 11   pleased to answer any questions.
 12               THE CHAIRMAN:  Thank you very much,
 13   Mr. Clifton.  Mr. Handlon, are you prepared to go
 14   now or would you rather have a few minutes?
 15               MR. HANDLON:  I would need a few
 16   minutes.  And the one point that I would like to
 17   raise, we did receive a report from Mr. Clifton, I
 18   think his characterization of it was a brief
 19   report.  It is 16 or 18 pages.  And his
 20   presentation this afternoon was much more than
 21   simply a restatement or restructuring of the
 22   information in his report.  There was some
 23   restructuring of his report, but there was
 24   considerable new information analysis, information
 25   statements that were not contained in the original
01561
  1   report.  I note your requirement that people file
  2   their submissions within a reasonable period of
  3   time, within two weeks of the hearing itself, and
  4   I note that although this presentation was very
  5   well done on the computer screen, that we do not
  6   have an actual physical copy of his presentation.
  7   That hasn't been provided.  There have been many
  8   slides that have come up, a lot of information
  9   that has come up and gone by very quickly.
 10               I think at minimum, and I will have to
 11   discuss this with my client at the break here, but
 12   at a minimum we should be provided with physical
 13   copies of the slides so we have something to work
 14   on as we move forward.
 15               MR. CURRIE:  Mr. Chairman, I gave Mr.
 16   Schwartz a copy of the presentation assuming that
 17   you were a team of lawyers.  And he has had it
 18   since I walked in this afternoon.
 19               MR. HANDLON:  If you have provided it,
 20   then my apologies.  Sorry, about that.  We would
 21   require, though, some time to consider the
 22   substantially new matters that were raised, and
 23   I'm not too sure what the result of that is.  If
 24   we have a physical hard copy, thank you, thank you
 25   for that.  We would need to assess that.  So, if
01562
  1   we could take a short break and we will consider
  2   our position.
  3               THE CHAIRMAN:  Okay.  Ten minutes?  Is
  4   that sufficient time, Mr. Handlon?
  5               MR. HANDLON:  Yes.
  6   
  7         (Proceedings recessed at 2:20 p.m. and
  8         reconvened at 2:35 p.m.)
  9   
 10               THE CHAIRMAN:  Okay.  We're ready to
 11   get back at it.
 12               MS. JOHNSON:  Mr. Chairman, as we are
 13   starting, can I enter Mr. Clifton's presentation
 14   in as exhibit number 60.
 15   
 16               (EXHIBIT 60:  Presentation of Mr.
 17               Wayne Clifton)
 18               THE CHAIRMAN:  Thank you.
 19   Mr. Handlon.
 20               MR. HANDLON:  Yes, thank you.  I'm
 21   sorry we took as long as we did at the break, we
 22   had to have some discussion because, as I said
 23   before the break, there is new information
 24   contained in Mr. Clifton's report.  Although his
 25   original report indicated that he done some, I
01563
  1   believe the statement was simulations, we
  2   certainly did not receive the details of any
  3   simulations.  I'm not even sure in his original
  4   report if he stated the conclusions of the
  5   simulations, but certainly there is considerable
  6   more work that has been done, and some detail has
  7   been provided.  Although we do not have the model
  8   or the database that Mr. Clifton used in his
  9   presentation.  So in that respect, I think in the
 10   fairness of this hearing that we should be allowed
 11   an opportunity to obtain that information from
 12   Mr. Clifton.
 13               I will proceed ahead with
 14   cross-examination, but reserving the right to have
 15   Mr. Clifton, certainly with the requirement, as
 16   we'll get into the details of it during
 17   questioning as to the model that was used and the
 18   database, with the right to call him back, you
 19   know, if after reflection on this matter that we
 20   need to ask further questions of him.  It may well
 21   be that in going through the material and the
 22   further information that he provides that we may
 23   well have enough information to be able to deal
 24   with it on redirect or re-examination later in
 25   this proceeding.
01564
  1               So with that, I'll proceed, if that's
  2   satisfactory.
  3               THE CHAIRMAN:  Satisfactory.
  4               MR. HANDLON:  Thank you.
  5               Mr. Clifton, so I now have a physical
  6   copy of the report from Mr. Schwartz.  So you just
  7   had -- when did you -- I take it your presentation
  8   today has been put together through the evolution
  9   of time even up until probably yesterday?
 10               MR. CLIFTON:  That's correct.  I
 11   submitted the written report approximately the 2nd
 12   of February, and then was out of the country for
 13   two weeks, and upon my return put together the
 14   PowerPoint presentation.
 15               MR. HANDLON:  So the PowerPoint
 16   presentation, it's been ready for a few days, has
 17   it?
 18               MR. CLIFTON:  Since last night.
 19               MR. HANDLON:  Since last night, okay.
 20   And late last night, was it?
 21               MR. CLIFTON:  Well, it wasn't too bad.
 22   But the majority of it was put together on
 23   Saturday night, Sunday night, and incorporated
 24   some minor changes last night from information
 25   that was communicated in the first two days of the
01565
  1   hearings that I attended this week.
  2               MR. HANDLON:  And the slides that you
  3   had on the modeling, they were done as of February
  4   2nd, were they?
  5               MR. CLIFTON:  No, they weren't.  The
  6   conclusions were done, but I made up the slides
  7   again on the weekend.
  8               MR. HANDLON:  But the modeling was
  9   done?
 10               MR. CLIFTON:  The modeling was done in
 11   rudimentary form by the 2nd of February, yes.
 12               MR. HANDLON:  Okay.  So you came to
 13   the conclusions before, while the modeling was
 14   still rudimentary?
 15               MR. CLIFTON:  Taking it off the
 16   computer screen.
 17               MR. HANDLON:  You could have provided
 18   that to us earlier, though, couldn't you?
 19               MR. CLIFTON:  The final production of
 20   those slides was completed on Saturday morning.
 21               MR. HANDLON:  Okay.  And when was the
 22   modeling actually done?
 23               MR. CLIFTON:  Thursday and Friday, it
 24   was completed, the first part of it was completed
 25   prior to the 2nd of February, and it got my review
01566
  1   and finalized on Thursday and Friday.
  2               MR. HANDLON:  Okay.  Your review --
  3   was the modeling done by someone else?
  4               MR. CLIFTON:  The modeling was done by
  5   somebody else, yes.
  6               MR. HANDLON:  Can you tell us who did
  7   the modeling?
  8               MR. CLIFTON:  Dr. Hunvu in our office
  9   in Regina.
 10               MR. HANDLON:  We'll get into some
 11   details on it.  One of the last slides that you
 12   had up on the screen this afternoon -- now I've
 13   got the physical copy, I can refer to it.  I
 14   believe it's the slide that you had, long-term
 15   monitoring, and that -- is this one of the
 16   recommendations that you're making or one of the
 17   slides of you pointing out deficiencies?
 18               MR. CLIFTON:  This slide identifies
 19   the issue, that with respect to long-term plan, or
 20   long-term monitoring, there is no firm commitment
 21   within the EIS or in the response to the
 22   interrogatories that were submitted.  We're simply
 23   stating a principle on behalf of the
 24   municipalities that as a proponent, that the
 25   proponent of a project that already has caused
01567
  1   long-term impacts, that there is a responsibility
  2   to design and implement a comprehensive monitoring
  3   program.
  4               MR. HANDLON:  I'm just going to put up
  5   on the screen one of the information requests, and
  6   you were aware of that process and I think you had
  7   some involvement with it?
  8               MR. CLIFTON:  Yes, I drafted some
  9   questions on behalf of the municipalities.
 10               MR. HANDLON:  And you read those
 11   information requests, the responses?
 12               MR. CURRIE:  Mr. Chairman, at the
 13   break in proceedings, you need one of our
 14   technicians -- I simply am not technical.
 15               MR. HANDLON:  Perhaps what we'll do
 16   is, since the technology is being worked on -- do
 17   you have copies of the information requests?
 18               MR. CLIFTON:  They are in my briefcase
 19   at the back of the room.
 20               MR. HANDLON:  We can find an extra
 21   copy of that.  It's an information request, and
 22   it's RM 3 IR 4C.
 23               MR. CURRIE:  I have it.
 24               MR. HANDLON:  Do you have that,
 25   Mr. Clifton?
01568
  1               MR. CLIFTON:  Yes, I have it.
  2               MR. HANDLON:  And this is in response,
  3   this is from the municipality 4 C, and the
  4   question posed simply was the current MFEA
  5   management policies, protocols and processes which
  6   govern groundwater management and extraction;
  7   correct?
  8               MR. CLIFTON:  That's correct.
  9               MR. HANDLON:  And the response from
 10   the Manitoba Floodway Authority's policy is to
 11   minimize effects to groundwater created by the
 12   project.  And the next statement is,
 13               "The overall mitigation strategy for
 14               potential groundwater impacts includes
 15               four main components."
 16   And I won't read through all the details of those
 17   components, but let me just highlight those
 18   components.  The first is prevention through
 19   physical design, correct?
 20               MR. CLIFTON:  That's right.
 21               MR. HANDLON:  And we know, just on
 22   that point alone, we know that through the course
 23   of the engineering designs and over the course
 24   that you have been involved with this project in
 25   doing a review of the technical -- of the EIS,
01569
  1   that you are aware of a physical change in the
  2   project from the planned deepening to widening of
  3   the channel?
  4               MR. CLIFTON:  Yes.
  5               MR. HANDLON:  And that would be part
  6   of that principle of prevention through physical
  7   design, and that would be a component of that and
  8   you wouldn't criticize that in any way, would you?
  9               MR. CLIFTON:  No, that's a positive.
 10               MR. HANDLON:  Number 2, environmental
 11   protection during construction, and it talks about
 12   environmental plans during the course of
 13   construction.  You are familiar with those types
 14   of environmental protection plans?
 15               MR. CLIFTON:  Yes.
 16               MR. HANDLON:  And number 3, post
 17   construction monitoring and follow-up, and that's
 18   into the future, and that clearly is past the
 19   construction stage, correct?
 20               MR. CLIFTON:  That's correct.  But we
 21   also had asked for a definition of the adaptive
 22   management strategy, because I personally still do
 23   not know what that is, I could not advise my
 24   client as to what it was.
 25               MR. HANDLON:  Let's just read it here.
01570
  1   This was a question posed, and a fair enough
  2   question that was posed.
  3               "MFA has committed to an adaptive
  4               management approach to environmental
  5               issues.  A monitoring follow-up
  6               program will be prepared by MFA and
  7               its consultants to verify the
  8               environmental assessment predictions
  9               and the success of the physical works
 10               put in place to address the
 11               groundwater issues.  The post
 12               construction monitoring and follow-up
 13               plan will also be submitted to
 14               Manitoba Conservation."
 15   And I'm going to get into some more detail that's
 16   been discussed during the course of this hearing,
 17   but when you say in your slide there is a
 18   deficiency that there's no commitment to long-term
 19   monitoring, I submit that there is a commitment as
 20   stated.  And this is a restatement of various
 21   provisions in the EIS itself, but certainly this
 22   does indicate that there is a commitment to
 23   continuing monitoring, testing and follow-up;
 24   correct?
 25               MR. CLIFTON:  The operative words I
01571
  1   believe here are "post construction."  There is no
  2   commitment within the EIS that I was able to
  3   identify to establishing that comprehensive plan
  4   in advance of construction.
  5               So my question, my advice to my
  6   clients was if you cannot -- if there is not an
  7   adequate baseline to which you can track the
  8   impacts of construction, how can you make an
  9   assessment as to what the impacts are?  If you
 10   don't have the baseline, the post construction
 11   follow-up is not very meaningful.
 12               MR. HANDLON:  Well, I understood your
 13   criticism was that there was not long-term
 14   monitoring plan.  Is your criticism that there
 15   wasn't a long term monitoring plan committed to
 16   prior to construction?
 17               MR. CLIFTON:  An essential component
 18   of the long-term monitoring plan is the baseline
 19   prior to construction, and for a significant
 20   period prior to construction, so the long-term
 21   impacts can be adjudicated.  Because one of the
 22   scalers in impact assessment in mitigation is
 23   mitigation will take place if impacts are detected
 24   through a well designed comprehensive monitoring
 25   plan.  But in the absence of a baseline, how do
01572
  1   you make judgments as to impacts?
  2               MR. HANDLON:  So your point is that
  3   there needs to be an appropriate baseline
  4   established first, future monitoring plans are
  5   important, but there needs to be a baseline.  Is
  6   that what you're saying?  Is that the deficiency?
  7               MR. CLIFTON:  The point I make is that
  8   I would expect to find in the EIS the statement of
  9   principles and outline for a comprehensive
 10   monitoring program, which includes sufficient
 11   monitoring and sufficient density and regularity
 12   of monitoring to be able to track, to be able to
 13   establish the baseline beforehand and to track the
 14   impacts to construction and into the long-term, so
 15   that the proposed mitigation strategy can be
 16   implemented.  I do not see -- I don't know how you
 17   would implement the mitigation strategy with the
 18   monitoring strategy that's proposed.
 19               MR. HANDLON:  Are you saying you don't
 20   see it because you don't see details of a baseline
 21   study?
 22               MR. CLIFTON:  That's one component.  I
 23   don't see the monitoring network.
 24               MR. HANDLON:  Well, you've been
 25   here --
01573
  1               MR. CLIFTON:  Several times -- I'm
  2   sorry.
  3               MR. HANDLON:  Okay.  So when you say
  4   there is no long-term monitoring plan, that was a
  5   deficiency, you certainly knew from the responses
  6   to the information requests that certainly was
  7   planned by the Floodway Authority.  It's right in
  8   the statement that I read, correct?
  9               MR. CLIFTON:  In several, in several
 10   places in the EIS reference is made that the
 11   long-term monitoring plan will be implemented by a
 12   third party, not by the authority, that it will be
 13   the responsibility of the province by some
 14   mechanism to conduct that monitoring.
 15               I would look for a succinct,
 16   well-defined monitoring program that lays out the
 17   principles, the plan, procedures for
 18   communication, and action, how the information is
 19   actioned.  I simply didn't see that.
 20               MR. HANDLON:  Okay.  I'm just going to
 21   read to you the EIS, and its page 5-23, and it has
 22   under the section monitoring, and I'll just read
 23   it to you.
 24               "Groundwater elevation and water
 25               quality monitoring will occur during
01574
  1               construction to establish response of
  2               the bedrock at the Birds Hill aquifer
  3               and to identify any interconnections
  4               to the carbonate aquifer.  Baseline
  5               groundwater elevation and quality data
  6               has been collected.  Groundwater
  7               monitoring programs will be required
  8               along the floodway, including the
  9               bridge and aqueduct dewatering sites.
 10               A monitoring plan will be developed
 11               during detailed design prior to
 12               construction."
 13   So you would have read that, would you not?
 14               MR. CLIFTON:  Yes.
 15               MR. HANDLON:  Yes.
 16               MR. CLIFTON:  But now can you read to
 17   me how that integrates with the long-term
 18   monitoring for the project?
 19               MR. HANDLON:  I'll read you what the
 20   commitments are that had been made during the
 21   course of this hearing, that in addition to the
 22   monitoring stated in the EIS that I just read to
 23   you, in addition to the response to the
 24   information request that there would be post
 25   construction monitoring follow-up, we have also
01575
  1   heard evidence here that there would be regular
  2   consultations with the municipalities, for
  3   example, monthly or bimonthly meetings with the
  4   Floodway Authority to provide updates on the
  5   project and progress.  That's regular
  6   consultation leading up to and through
  7   construction, that's been stated.  Further, the
  8   Floodway Authority plans to form a community with
  9   Water Stewardship, a community liaison committee
 10   for each dewatering site, so for each dewatering
 11   site, for the bridges, for the aqueducts, to
 12   involve municipal officials and nearby residents
 13   to ensure their involvement in the development of
 14   groundwater monitoring and mitigation related to
 15   the project components.
 16               Were you aware of that from the
 17   evidence?
 18               MR. CLIFTON:  Yes.
 19               MR. HANDLON:  If you could -- I asked
 20   you if you were aware of that, and let me finish.
 21               In addition --
 22               MR. CURRIE:  Mr. Chairman.
 23               THE CHAIRMAN:  Mr. Currie, I get the
 24   impression Mr. Clifton is quite able to take care
 25   of himself, and I think you are engaging in a
01576
  1   fairly decent dialogue here.  So I don't think
  2   either is cutting off either, so.
  3               MR. CURRIE:  Okay.
  4               MR. HANDLON:  And further commitment
  5   that was made during the course, if not in the EIS
  6   certainly in the course of this hearing, or in the
  7   information request responses, in addition MFA
  8   plans to form a community liaison committee for
  9   the overall groundwater monitoring and mitigation
 10   program during construction and post construction.
 11               So I have put to you a summary, I
 12   believe, of the commitments that have been made by
 13   the Floodway Authority as to monitoring.  And I
 14   suggest to you that your statement that there was
 15   no commitment to long-term monitoring is simply
 16   not correct in face of that evidence.
 17               Would you agree with me that perhaps
 18   there is an overstatement in your slide here?
 19               MR. CLIFTON:  Not at all, Mr. Handlon,
 20   not at all.  The --
 21               MR. HANDLON:  I thought so.
 22               MR. CLIFTON:  The first part of your
 23   statement where you read in the construction
 24   component is essentially the issue that I was
 25   addressing, and that is the piecemeal nature of
01577
  1   the monitoring proposal during construction, that
  2   it's a site-by-site, resident-by-resident basis,
  3   as opposed to a comprehensive global management of
  4   the aquifer system.
  5               The documentation in the EIS is very
  6   much directed at the engineering requirements for
  7   construction, and how you manage through those
  8   construction issues.  What I was looking for from
  9   a resource management perspective is how the
 10   resource overall, how the aquifer overall is
 11   managed.  And if additional monitoring is required
 12   on a construction site-by-site basis, so be it.  I
 13   think those recommendations with respect to
 14   individual sites are excellent.  They need to be
 15   framed within a comprehensive monitoring framework
 16   for the aquifer, including a comprehensive
 17   baseline prior to any construction taking place.
 18               MR. HANDLON:  I'm just reading, it's
 19   preliminary engineering report appendix P, and
 20   that deals with surface water intrusion modeling.
 21   And recommendation number 6, under recommendation
 22   number 6, number 1, I'll just read it to you.
 23               "Groundwater monitoring should be
 24               continued during floodway construction
 25               and for several years thereafter to
01578
  1               establish any response to the bedrock
  2               and Birds Hill aquifers and to
  3               identify any possible unforeseen
  4               interconnections to the upper
  5               carbonate aquifer.  Existing
  6               monitoring wells installed during
  7               PDEA-1 investigations can be used for
  8               this purpose."
  9   First of all, question, did you read this report?
 10               MR. CLIFTON:  I did.  And let me say
 11   that I think again, that -- two things.  Number 1,
 12   I didn't see the recommendations of appendix P
 13   reflected in the main engineering report, and I
 14   did not see it reflected in the EIS.  There is a
 15   requirement, or an undertaking in the EIS to
 16   monitoring and recognizing the need for
 17   monitoring.  But the technical requirements out of
 18   the technical appendices did not penetrate
 19   through, did not flow through the engineering
 20   report into the EIS.  Hence my statement of
 21   commitment.
 22               And the second component of that is
 23   that statement is predicated on the fact, on the
 24   assumption that the current monitoring network is
 25   adequate.  As I said during my presentation, it
01579
  1   most likely, if it's more than 15 years old, it
  2   most likely is inadequate, both in quality and in
  3   quantity of monitoring.
  4               MR. HANDLON:  It's just been
  5   installed.
  6               MR. CLIFTON:  Sorry?
  7               MR. HANDLON:  It's been installed
  8   recently, it's not 15 years old.  The PDA-1 is --
  9               MR. CLIFTON:  Mr. Chair, I can't react
 10   to that.
 11               THE CHAIRMAN:  Then you don't need to.
 12               MR. CLIFTON:  But I think, in
 13   fairness, I mean, this is part of the transparency
 14   and communication issues.  It's absolutely
 15   indicative.  We are being asked to respond in very
 16   short notice to information, and we're not being
 17   given the information.  And I object to being
 18   played for a patsy.
 19               MR. HANDLON:  You're not given the
 20   information?  I understand that you did meet with
 21   Mr. Bert Smith last fall in Winnipeg?
 22               MR. CLIFTON:  Yes.
 23               MR. HANDLON:  And that was pursuant to
 24   an invitation that had been extended to one of the
 25   municipalities by the Manitoba Floodway Authority,
01580
  1   correct?
  2               MR. CLIFTON:  I don't know that.  I
  3   was in the city for a meeting, I was asked to
  4   attend a meeting that had been prior arranged with
  5   the RM.
  6               MR. HANDLON:  So any information that
  7   you sought from the engineers or from the Floodway
  8   Authority, those requests haven't been turned
  9   down?
 10               MR. CLIFTON:  Well, I think it's
 11   worthwhile examining that a bit, Mr. Handlon,
 12   because the EIS that I was given to review by my
 13   client, by the municipalities, was two documents.
 14   With the noted appendices.  I reviewed those
 15   documents, reported back to my client that there
 16   was insufficient information upon which to base a
 17   conclusion on the adequacy of the impact
 18   assessment.
 19               We had that meeting in the morning.
 20   In the afternoon we met with Mr. Smith and
 21   Mr. McNeil, and were advised that there was an
 22   engineering report that had not been distributed,
 23   but was provided to me at that meeting.  That was
 24   the first I was aware of that engineering report
 25   and that was in to December.
01581
  1               And to assimilate that -- I may be --
  2   I can confirm the date, but anyways the subject of
  3   that meeting was the first time that I had the
  4   full technical substance of the documents, which
  5   were absolutely essential to evaluating the
  6   technical adequacy of the EIS.
  7               MR. HANDLON:  My information is that
  8   you attended at the offices of MFA or KGS on
  9   October 6th, that was your first meeting with
 10   Mr. Smith and Mr. McNeil?
 11               MR. CLIFTON:  It was at that meeting,
 12   if that's a good date -- we'll confirm the date,
 13   but if that's the date, that's the date I was
 14   given the documents.
 15               MR. HANDLON:  You were given a CD of
 16   all the engineering reports and the appendices.
 17               MR. CLIFTON:  Yes.
 18               MR. HANDLON:  And all of those
 19   engineering reports are referred to in the body of
 20   the EIS, correct?
 21               MR. CLIFTON:  Well, I have read a lot
 22   of EISs, and I can tell you that it was not clear
 23   to me that they were documents that were available
 24   to the public.
 25               MR. HANDLON:  Well, whether -- they
01582
  1   were available to the public and they were
  2   identified in the EIS.  And once you -- I
  3   understand that you were asked whether you had
  4   read them, and you requested copies of those
  5   engineering reports and were provided them,
  6   correct?
  7               MR. CLIFTON:  They were provided to me
  8   that day.
  9               MR. HANDLON:  Yes, and that was in
 10   October.
 11               MR. CLIFTON:  Whatever the date was,
 12   the date was.  But the point was they were not
 13   distributed prior to request, I mean, highly
 14   unusual circumstance.  Anyways --
 15               MR. HANDLON:  So they are referred to
 16   in the EIS, and do you want me to identify where
 17   in the EIS they are referred to?
 18               MR. CLIFTON:  Yes.
 19               MR. HANDLON:  Okay.
 20               MR. CLIFTON:  I would appreciate that.
 21               MR. HANDLON:  Mr. Clifton, one of the
 22   locations that the engineering reports are
 23   referred to is at pages 410 to 411.  The
 24   introduction is at page 410, and it talked about
 25   the preliminary design of the floodway expansion.
01583
  1   It was separated into two project definition
  2   stages.  The first phase consisted of primarily
  3   site investigations and baseline data acquisition
  4   to determine the existing conditions.  This phase
  5   is known as project definition environmental
  6   assessment part 1, PDA-1.
  7               A second phase, PDA-2, consisted of
  8   predesign of the various components of the
  9   Floodway Expansion Project.  Many of these
 10   components interrelated to each other in the
 11   predesign process.  PDA-1 was separated by MFEA
 12   into two work packages, and then it goes on.  And
 13   then at table 4.2-1, they were appendices of
 14   preliminary engineering reports, and there are
 15   appendices A through S.  And also at page 2-17,
 16   under section 2.4.1, there is a reference,
 17   technical studies specific to project, and studies
 18   completed by various qualified engineering firms
 19   during the project predesign process, including
 20   detailed project description information, forms of
 21   primary technical reference documents for this
 22   EIS.
 23               "Separate reports completed and
 24               available publicly on the completed
 25               predesign work for the project are
01584
  1               referenced below and detailed in
  2               chapter 11."
  3   And then it goes through description, a more
  4   generalized description of the engineering
  5   reports.
  6               So I suggest to you if you read the
  7   EIS, it was apparent, it would have been apparent
  8   to you that there are technical engineering
  9   studies that form the primary technical reference
 10   documents for the EIS, correct?
 11               MR. CLIFTON:  I would refer you to the
 12   index --
 13               MR. HANDLON:  Could you answer --
 14               THE CHAIRMAN:  Let him answer.
 15               MR. CLIFTON:  I'd refer you to the
 16   index, which is normally where I assess structure
 17   and the documents available.  Remember, I am
 18   looking at the EIS purely from the perspective of
 19   groundwater.  And when I look at the structure of
 20   the documents that are included in the EIS, it
 21   notes the appendices and the technical appendices
 22   and figures and so on.  Nowhere in that table of
 23   contents is the presence of the engineering
 24   reports and its technical appendices mentioned as
 25   part of the document.  It would normally be
01585
  1   referenced there.
  2               MR. HANDLON:  Well, with respect --
  3               MR. CLIFTON:  And I accept what you're
  4   reading to me.  If I read -- when I read through
  5   that, it obviously did not dawn on me that there
  6   was a separate document, outside of the
  7   submissions that were here, that were available
  8   for technical review.
  9               I accept your submission that that was
 10   provided to me in October, and I made my way
 11   through the documents as required to form my
 12   conclusion.  So we overcame that temporary
 13   deficiency.
 14               MR. HANDLON:  And when were you
 15   retained?
 16               MR. CLIFTON:  Probably a month prior
 17   to that.
 18               MR. HANDLON:  In September of 2004?
 19               MR. CLIFTON:  Approximately, yes.
 20               MR. HANDLON:  One of the slides you
 21   showed near the end of your presentation, and I'm
 22   having difficulty locating it right now, maybe you
 23   could help me, if you recall -- and it dealt with
 24   potential contamination of the groundwater
 25   aquifer.  And I believe you added the word
01586
  1   "potential" when you were giving your evidence,
  2   even though it wasn't reflected on the slide
  3   itself.
  4               MR. CLIFTON:  I'm sorry, Mr. Handlon,
  5   there was a slide that referred to potential
  6   for --
  7               MR. HANDLON:  Well, the slide
  8   referenced contamination of groundwater aquifer,
  9   and while you were reading from it you added the
 10   word "potential."
 11               MR. CLIFTON:  On page 26 is --
 12               MR. HANDLON:  And perhaps it's the
 13   one, time effects.
 14               MR. CLIFTON:  On page 25 of the
 15   handout, yes, that's where I see the time effects
 16   line.
 17               MR. HANDLON:  Is that -- and before
 18   you put it on the screen, is that where you added
 19   the word "potential"?
 20               MR. CLIFTON:  Perhaps.  It certainly
 21   would be suitable in there.
 22               MR. HANDLON:  Pardon me?
 23               MR. CLIFTON:  Yes.  I would have to
 24   check the transcript, but I would agree potential
 25   progressive contamination of the aquifer is --
01587
  1               MR. HANDLON:  Right, okay.  So when
  2   you had the slide, progressive under time effects,
  3   you had the bullet point, progressive
  4   contamination of aquifer, you qualified that in
  5   your evidence to say potential progressive
  6   contamination of aquifer?
  7               MR. CLIFTON:  Yes.
  8               MR. HANDLON:  And that accurately
  9   reflects what you had in your report as well?
 10               MR. CLIFTON:  Yes.
 11               MR. HANDLON:  If we could go back to
 12   your report itself, and I have some questions
 13   arising out of the report that I had, and that's
 14   the only opportunity I had to review your
 15   evidence.  If there are any areas, as we go
 16   through your report, where you know that there has
 17   been a change in your evidence to what you
 18   presented this afternoon in your slides, or if you
 19   added something, then you will let me know.  Is
 20   that all right, Mr. Clifton?
 21               MR. CLIFTON:  I will try to do so,
 22   yes.
 23               MR. HANDLON:  Okay.  Now, in the
 24   report itself you outlined what you reviewed in
 25   the course of doing your assessment.  And you
01588
  1   referred to the EIS and you didn't refer
  2   specifically to the engineering reports.  Was that
  3   just an oversight, or had you, by the time you
  4   prepared your report, read over all of the
  5   engineering reports?
  6               MR. CLIFTON:  I had read the
  7   engineering report pertaining to groundwater.  And
  8   the term EIS that I used there is the collective
  9   term, that is the statement itself plus the
 10   technical appendices that I had reviewed.
 11               MR. HANDLON:  Yes.  And the EIS, you
 12   know after being pointed out, it was based on the
 13   technical appendices?
 14               MR. CLIFTON:  Yes.
 15               MR. HANDLON:  Now, you indicated
 16   another individual at your firm -- and how many
 17   individuals are there in your firm, approximately?
 18               MR. CLIFTON:  About 85.
 19               MR. HANDLON:  Okay.  And who else did
 20   you have involved with you in doing the review, or
 21   was it yourself primarily?
 22               MR. CLIFTON:  It was myself assisted
 23   by Dr. Hunvu as an analyst.
 24               MR. HANDLON:  Now, you indicated as to
 25   your background and your experience, and you
01589
  1   indicated that you have been involved in many
  2   areas of civil engineering, and latterly for
  3   approximately 30 years involved in specifically
  4   the mining industry, and have done a lot of work
  5   in the mining industry as it relates to
  6   groundwater effects?
  7               MR. CLIFTON:  Yes, among other
  8   industries, but certainly significant activity in
  9   the mining industry.
 10               MR. HANDLON:  You're a geotechnical
 11   engineer.  Is that a specific designation that was
 12   available at the time you were obtaining your
 13   certifications?
 14               MR. CLIFTON:  Yes.
 15               MR. HANDLON:  And now certification
 16   process in Saskatchewan, does it have a specific
 17   designation for hydrogeologist?
 18               MR. CLIFTON:  Geo-scientists were
 19   added a number of years ago, and many subdivisions
 20   within that.  I was eligible to change my
 21   registration.  I elected not to.  I stayed with
 22   the traditional designation granted at the time of
 23   my degree.
 24               MR. HANDLON:  Your experience with
 25   groundwater in the mining industry, and I take it
01590
  1   this would be primarily being involved in the
  2   environmental impacts of the mining industry as it
  3   relates to various environmental issues, but
  4   particularly, or in part water?
  5               MR. CLIFTON:  In part, yes.
  6               MR. HANDLON:  And so other than
  7   studying the effects in the mining industry on
  8   water, have you done other work in respect to
  9   hydrology and water effects?
 10               MR. CLIFTON:  It's an ongoing part of
 11   virtually all projects I work on.  There's been --
 12   it's a common constituent or common component of
 13   project delivery.  When you said I did additional
 14   work on it, I'm not sure what you mean.
 15               MR. HANDLON:  Well, the work that
 16   you've done in the area of hydrogeology has been
 17   in relation to the mining industry particularly?
 18               MR. CLIFTON:  That's one of the
 19   industries.  I work in many different industries,
 20   from transportation resources -- wherever our
 21   clients wish to invest their money.  And the
 22   projects have many different configurations, but
 23   very often incorporate a component of water
 24   management, management of groundwater, protection
 25   of groundwater, or assessing environmental
01591
  1   impacts.
  2               MR. HANDLON:  In your report on page 3
  3   you talk about the impact of the 1968
  4   construction.  I think there may have been a slide
  5   this afternoon where you had a slide that related
  6   to the 1968 construction.  And one of the issues I
  7   wanted to deal with was specifically on page 3,
  8   and this is a factual issue as to location of
  9   bedrock in the floodway channel, and your
 10   suggestion that there was exposed bedrock
 11   approximately 1.5 kilometres south of Spring Hill.
 12   That is not in accordance with our information,
 13   and I just want to identify you didn't -- the
 14   source of your information is Bev Fisher who is an
 15   engineer?
 16               MR. CLIFTON:  Yes, and other local
 17   residents.
 18               MR. HANDLON:  Okay.  You didn't go
 19   back to any of the engineers or designers of the
 20   original floodway or the contractors?
 21               MR. CLIFTON:  No.
 22               MR. HANDLON:  You didn't look at any
 23   of the plans, or designs for the original
 24   floodway, or records relating to whether there was
 25   bedrock in that area?
01592
  1               MR. CLIFTON:  Only as presented in the
  2   EIS.  There is within the documents, and I can't
  3   give you the reference, but within the documents
  4   there is a statement that the bedrock surface
  5   varies from two metres above the grade line to
  6   below it.  And I've been -- when I look at the
  7   drawings, the location of the site, the location
  8   of the area where the bedrock may be above the
  9   grade of the low flow channel is not apparent.
 10               MR. HANDLON:  So, anyway, the source
 11   of that information is from Mr. Fisher and some
 12   other individuals, but you didn't go back to the
 13   actual contractors who were involved in the
 14   floodway?
 15               MR. CLIFTON:  It's third party, it's
 16   information given to me by persons who observed
 17   themselves.
 18               MR. HANDLON:  And one of the other
 19   points you make in the second paragraph on page 3
 20   is the location.  I think that was again in your
 21   evidence today that location of hydrostatic
 22   pressure in the aquifer, you talk about the
 23   overburden and the springs that had developed.
 24   You state that the number and location of the
 25   springs could not be determined from the EIS or
01593
  1   from the interrogatories.
  2               Were you present, I believe it was
  3   yesterday or the day before, where Mr. Smith had
  4   gone through a drawing from appendix M, which
  5   showed the locations, or general locations of
  6   areas of discharge?
  7               MR. CLIFTON:  Yes, I saw that.  I
  8   appreciated seeing it in blown-up form on the
  9   screen, because for the first time I identified
 10   blue arrows and was aware of where they were.  But
 11   the comment remains valid, that the location and
 12   description characterization of them simply is not
 13   presented.
 14               MR. HANDLON:  Sorry, is not which?
 15               MR. CLIFTON:  Is not adequately
 16   presented.
 17               MR. HANDLON:  Okay.  But you know that
 18   there was -- certainly that you hadn't seen that
 19   drawing before or you hadn't appreciated the
 20   significance of it?
 21               MR. CLIFTON:  I had seen the drawing
 22   but could not decipher it.  It was unreadable in
 23   the documents.
 24               MR. HANDLON:  So certainly at the
 25   present time the general location of the springs
01594
  1   is in the material?
  2               MR. CLIFTON:  Yes.
  3               MR. HANDLON:  And the next paragraph
  4   of your report -- just on that point, go back to
  5   it.  There was an IR request from the
  6   municipalities, and it's IR 3A, and it was
  7   specifically in relation to this particular point.
  8   And if you have it there -- do you have that?
  9               MR. CLIFTON:  Yes.
 10               MR. HANDLON:  And the response in the
 11   second sentence,
 12               "Detailed field data on floodway base
 13               flow investigations during PDA-1
 14               project time frame is contained in
 15               appendix M, annex 5.  These include
 16               identification of observed seepage
 17               areas with floodway station and GPS
 18               location field water quantity quality
 19               measurements and observations
 20               periodically from May 2003 to
 21               March 2004."
 22   I'm curious why, if you had read this answer, why
 23   you would say in your report that the information
 24   wasn't contained?
 25               MR. CLIFTON:  Well, certainly, the
01595
  1   information provided certainly does not constitute
  2   a characterization.  And I believe if you read
  3   appendix M, annex F, it's an account by a field
  4   technologist on the difficulties he was having in
  5   making one measurement of stream flow in the
  6   channel.  So it was far from a comprehensive
  7   evaluation of stream flow conditions and the
  8   characterization of the springs.  And I fully, I
  9   accept fully the position reported by Mr. Smith,
 10   that it's not simple to do.  It's very difficult
 11   to do, but it's also very essential.
 12               MR. HANDLON:  And in appendix M there
 13   is text dealing with this particular matter, the
 14   groundwater as a section, 8.1.2, groundwater
 15   discharge areas.  I'll show it to you.
 16               MR. CLIFTON:  That's correct, it is
 17   there.  But, again, it recognizes that these
 18   conditions exist, but interrogatory IR 3A
 19   discusses characterization, and characterization
 20   is not a listing of where they are, it is, as it
 21   said, geo reference so they can be located on a
 22   map, the stratigraphy, the area of extent and the
 23   history, the hydraulic characteristics including
 24   the water table at the source, formation,
 25   permeability and flow and the water quality.  That
01596
  1   to me would constitute a characterization.
  2               MR. HANDLON:  Just looking in IR 3A
  3   again, it does specifically identify the drawing
  4   in appendix M, showing the approximate location of
  5   areas where groundwater discharge of a hundred GPM
  6   or greater was noted during original construction
  7   as published by Render 1970.
  8               So I'm curious that this specific
  9   answer did direct you to the areas of discharge,
 10   and if you were directed to the areas of discharge
 11   to the specific drawing, why you would say in your
 12   report that the number and location of the springs
 13   cannot be determined from the EIS or the
 14   interrogatories?
 15               MR. CLIFTON:  I think, Mr. Handlon, it
 16   would be useful for you to view the appendix M,
 17   annex F, because that was the form of the document
 18   that I had, the PDF document, which was in black
 19   and white, where the font size in its reduced form
 20   is so small that you can't even recognize the
 21   letter of the alphabet, leave alone read the word.
 22               MR. HANDLON:  Did you ask Mr. Smith,
 23   phone him up and ask him to blow it up or to
 24   provide you with a better copy or a more detailed
 25   copy?
01597
  1               MR. CLIFTON:  No, I did not.  I was --
  2               MR. HANDLON:  Thank you.
  3               MR. CLIFTON:  I was very proud of
  4   myself that I got through all the existing
  5   documents in time.
  6               MR. HANDLON:  So you took the time to
  7   say in your report then, instead of asking him for
  8   clarification on that, you rather took your time
  9   to state, and I quote,
 10               "The number and location of the
 11               springs could not be determined from
 12               the EIS or the interrogatories."
 13   But that's incorrect now, you acknowledge that?
 14               MR. CLIFTON:  Not at all.  I could not
 15   determine them, until I saw them blown up,
 16   magnified 10 or 15 times on the screen, I simply
 17   could not identify them.  And that is simply again
 18   one element of the characterization information we
 19   are looking for.
 20               MR. HANDLON:  And you acknowledge this
 21   afternoon, that after seeing it on the screen and
 22   having it blown up and in colour, that this
 23   statement was incorrect, that it was contained in
 24   the material?
 25               MR. CLIFTON:  That the location is
01598
  1   identified, location greater than a hundred
  2   gallons per minute.
  3               MR. HANDLON:  Right.  And when I
  4   pointed that out to you, you said that that
  5   statement that you made in your report was not
  6   correct?
  7               MR. CLIFTON:  The statement I made in
  8   my report?
  9               MR. HANDLON:  Yes.
 10               MR. CLIFTON:  With respect to?
 11               MR. HANDLON:  The number and location
 12   of the springs could not be determined from the
 13   EIS or the interrogatories.
 14               MR. CLIFTON:  And I would amend that.
 15   Number and location of the springs greater than a
 16   hundred gallons per minute is known to the
 17   proponent, yes.
 18               MR. HANDLON:  Yes.  And in the
 19   interrogatory process, you were directed to a
 20   drawing that identified the number and location of
 21   the springs, correct?
 22               MR. CLIFTON:  Yes.
 23               MR. HANDLON:  Thank you.
 24               Now, you say in the next paragraph on
 25   page 3, under impact of 1968 construction, about
01599
  1   the discharge of water into the floodway, and you
  2   have pointed out that East St. Paul and
  3   potentially other locations where the floodway did
  4   cut through the sand and gravel aquifer could be,
  5   water can be obtained through wells on east side
  6   of that aquifer, correct, as done by East St.
  7   Paul?
  8               MR. CLIFTON:  East St. Paul advised me
  9   that they have made requests repeatedly for
 10   groundwater exploration, that they have not been
 11   able to get the permission to do.  I believe that
 12   recently that has been reversed, that they have
 13   been given a permit to look at the bedrock, but
 14   it's a question best asked East St. Paul.
 15               MR. HANDLON:  But certainly from a
 16   physical ability, if water is being lost into the
 17   floodway, other than the issue of getting
 18   approvals, that certainly there is the ability to
 19   capture that water before it does go into the
 20   floodway channel?
 21               MR. CLIFTON:  On the east side of East
 22   St. Paul, or east side of the channel?
 23               MR. HANDLON:  Of the channel, yes.
 24               MR. CLIFTON:  Yes, given the authority
 25   to construct wells in that area, yes.
01600
  1               MR. HANDLON:  And we know from the
  2   evidence that's been already given that the flow
  3   of water in the carbonate aquifer does extend east
  4   and there are discharge areas in the Red River
  5   itself?
  6               MR. CLIFTON:  That there are?
  7               MR. HANDLON:  Discharge areas in the
  8   Red River, of that aquifer?
  9               MR. CLIFTON:  Yes.
 10               MR. HANDLON:  Yes.  In your report,
 11   section 5, expansion alternatives, and you talk
 12   about expansion alternatives.  And certainly we
 13   know now, and you weren't aware at the time, that
 14   in order to gain capacity that the floodway is
 15   being widened instead of deepened, so that would
 16   be appropriate for the Floodway Authority to have
 17   considered that alternative and to move in the
 18   direction that they have?
 19               MR. CLIFTON:  Yes.
 20               MR. HANDLON:  Thank you.  In your
 21   report at page number 5, it deals with cumulative
 22   effects assessment.  And you've gone through some
 23   of that.  I don't intend to engage in a debate
 24   with you on that subject, you have set out your
 25   argument.  If I could, though, other than the
01601
  1   argument portion in this section, deal with a
  2   comment that's in the second paragraph.  You
  3   state, and it's about in the middle of the
  4   paragraph,
  5               "The Commission will be asked to find
  6               that this interpretation is not
  7               reasonable.  The proponent has in
  8               essence a non-compliant facility."
  9   And then you go on with argument -- seeking
 10   approval to expand the facility without mitigating
 11   undesirable impacts.
 12               Now, you have stated in your evidence
 13   today and have on slides non-compliant facility.
 14   But in your report itself you say "has in essence"
 15   and you've added the words "in essence."  I take
 16   it that was intentional, those were qualifying
 17   words that you had added?
 18               MR. CLIFTON:  Yes, it is a
 19   non-compliant facility.
 20               MR. HANDLON:  But you added the words
 21   "in essence," and what I'm suggesting to you is
 22   you added the words "in essence" because you
 23   acknowledge that there has not been any actual
 24   decision or determination made by any body or any
 25   person in authority who has jurisdiction that the
01602
  1   facility or the operation is in non-compliance
  2   with any laws or regulations?
  3               MR. CLIFTON:  That is my opinion based
  4   on my knowledge of the policies and regulations of
  5   Manitoba.
  6               MR. HANDLON:  But I'm suggesting to
  7   you that you added the words "in essence" because
  8   you acknowledge there has not been any decision or
  9   determination as to non-compliance by any body or
 10   person in authority.  You acknowledge that?
 11               MR. CLIFTON:  Not that I'm aware of.
 12               MR. HANDLON:  Yes.  You have given
 13   your opinion.
 14               MR. CLIFTON:  Yes.
 15               MR. HANDLON:  And in the report itself
 16   you say "non-compliant facility," yet I don't see
 17   you identifying whether it's non-compliant with a
 18   policy or a law or a regulation.  You don't
 19   provide any specifics in your report, do you?
 20               MR. CLIFTON:  I believe Mr. Currie
 21   will speak to that in some detail.
 22               MR. HANDLON:  Well, I'm not -- you can
 23   speak to what's in your report and what's not in
 24   your report, and that's what I'm asking you now.
 25   I'm not asking for a legal interpretation or a
01603
  1   legal opinion.
  2               MR. CLIFTON:  Well, let me give you
  3   the basis of my statement.
  4               MR. HANDLON:  Well, no.  What I'm
  5   saying -- I don't mean to talk over you -- is that
  6   in your report you talk about a non-compliant
  7   facility.  But what I'm asking you, you don't
  8   specify in what way it's non-compliant, whether
  9   it's non-compliant with a policy or a law or a
 10   regulation, you don't identify it?
 11               MR. CLIFTON:  That's true.  I'd be
 12   glad to elaborate on that, if you wish.
 13               MR. HANDLON:  No, I just asked you
 14   that you don't identify it?
 15               MR. CLIFTON:  No, I don't.
 16               MR. HANDLON:  No.
 17               THE CHAIRMAN:  Would you care to
 18   elaborate on that?
 19               MR. CLIFTON:  Certainly, Mr. Chair.
 20   In my view, the existing facility is not compliant
 21   with the water management policy in the Province
 22   of Manitoba, it's not compliant with the
 23   Sustainability Act, and that is the basis.
 24               I also was personally under the
 25   opinion that it was not compliant with water
01604
  1   resource licensing, but I accept the information
  2   brought here Monday that the opinion of the
  3   province is that the facility does not need a
  4   licence.  That's a legal question, not one for me
  5   to answer.  But in my view the facility, as it
  6   exists today, does not comply with conservation
  7   water management policy and sustainability policy
  8   of the Province of Manitoba.
  9               MR. HANDLON:  And I appreciate that's
 10   the evidence that you gave earlier on today, but
 11   before you gave that evidence today you hadn't
 12   specified what it was that you were saying it was
 13   non-compliant with, correct?
 14               MR. CLIFTON:  That's true.
 15               MR. HANDLON:  And I believe you
 16   indicated in your evidence today, it may be on the
 17   slide, you again also referred to non-compliance.
 18   You're referring to non-compliance with what you
 19   assessed were certain policies, and I believe that
 20   you referenced specifically the Water Protection
 21   Act?
 22               MR. CLIFTON:  I read specifically the
 23   proposed provisions of the Water Protection Act,
 24   but certainly in putting that statement about
 25   non-compliance was focusing primarily on the
01605
  1   issues regarding water conservation and water
  2   management and sustainability.
  3               MR. HANDLON:  And in order to respond
  4   to that, you haven't provided any details of that,
  5   correct?  How can we respond to that if you don't
  6   provide details?
  7               MR. CLIFTON:  Well, those regulations
  8   and statutes are published.  The Sustainability
  9   Act, I mean, I was reading the same statutes that
 10   are available to you.
 11               MR. HANDLON:  We can read them and
 12   make our own observations as well.
 13               MR. CLIFTON:  Absolutely.
 14               MR. HANDLON:  In your report at
 15   section 7, you deal with groundwater management
 16   expertise.  Again, you refer to your source,
 17   Mr. Fisher, personal communication, and you have
 18   stated that there was, I believe your evidence
 19   today was there was some indication that there was
 20   groundwater contamination from the Red River at
 21   some point in time, and you have identified
 22   Mr. Fisher as being the source?
 23               MR. CLIFTON:  Yes.  Mr. Fisher was the
 24   consultant to the municipality of East St. Paul
 25   for a considerable period of time, several decades
01606
  1   I understand.  And he was the consultant during
  2   the period when contamination, as he reported to
  3   me in a personal interview, he was the consultant
  4   for East St. Paul at a time when contamination of
  5   bedrock wells was experienced and that was the
  6   impetus for the community to move to a piped water
  7   system.
  8               MR. HANDLON:  In the course of the,
  9   prior to this hearing there was -- you were aware
 10   of meetings that the municipality representatives
 11   had met with the Minister of Water Stewardship,
 12   and there was a letter from the Minister of Water
 13   Stewardship of February 11, 2005?
 14               MR. CLIFTON:  I am not aware of that.
 15               MR. HANDLON:  You are not aware of
 16   that?
 17               MR. CLIFTON:  No.
 18               MR. HANDLON:  And this isn't related
 19   to the Red River contamination, but in that letter
 20   of February 11, 2005, the Minister of Water
 21   Stewardship states, on the second page in the
 22   third paragraph, and I'll read it to you.  If you
 23   want to see it, that's fine -- sorry on page 1 in
 24   the third paragraph, and it's dealing with the
 25   issue of aquifer contamination from floodway
01607
  1   waters, and he states,
  2               "It should be noted that in the years
  3               since the existing floodway was
  4               constructed, there has not been a
  5               single incident of resulting well
  6               contamination."
  7   Were you aware of that fact?
  8               MR. CLIFTON:  I was not aware of that,
  9   but I would be -- I would wonder at the evidence
 10   on which that statement was based.
 11               MR. HANDLON:  This was the Minister of
 12   Water Stewardship.
 13               MR. CLIFTON:  I can't comment on that.
 14               MR. HANDLON:  No.  And in his letter
 15   he goes on, and I'll just ask you if you were
 16   aware of this,
 17               "Manitoba Water Stewardship intends to
 18               initiate a comprehensive study of the
 19               two related aquifers in the region.
 20               This work will include development of
 21               a groundwater three dimensional model
 22               that will determine potential effects
 23               of additional water withdrawals
 24               arising from new developments on
 25               existing users and the sustainability
01608
  1               of the aquifer system.  The model will
  2               also be capable of incorporating
  3               regional scale water quality issues."
  4   Were you aware of that commitment from the
  5   Minister?
  6               MR. CLIFTON:  What is the date of
  7   that?
  8               MR. HANDLON:  February 11.
  9               MR. CLIFTON:  No, I am not aware of
 10   it.  It wasn't an input into my deliberations over
 11   this.
 12               MR. HANDLON:  I take it, given your
 13   evidence, that you would welcome such a regional
 14   study that is described as to the groundwater in
 15   these two aquifers?
 16               MR. CLIFTON:  Clearly -- I mean, that
 17   is certainly a technical piece of work that is
 18   needed.  It doesn't modify the discussion and the
 19   conclusions I have reached, but it would provide a
 20   framework, I presume, into which the floodway
 21   project would fit.
 22               MR. HANDLON:  Yes, and it would
 23   identify other sources of contamination, of water
 24   quality considerations other than potentially the
 25   floodway itself?
01609
  1               MR. CLIFTON:  If it is carried far
  2   enough, yes.
  3               MR. HANDLON:  A three dimensional
  4   model as described, one would anticipate that that
  5   would, correct?
  6               MR. CLIFTON:  You have much greater in
  7   three dimensional models than I.
  8               MR. HANDLON:  Yes, perhaps I do and
  9   perhaps the Ministry of Environment in Ontario
 10   does too.
 11               MR. CLIFTON:  I say that, I don't wish
 12   to be facetious, Mr. Handlon, I say that simply
 13   because they are one more tool in the tool kit, an
 14   important tool, but they are not the solution.
 15   They are an important tool in working towards a
 16   solution.
 17               MR. HANDLON:  I appreciate that.
 18               And on the same page of your report
 19   near the end of the first paragraph of section 70
 20   you talk about the Municipality of East St. Paul
 21   developing wells into the bedrock aquifer.  And
 22   you say that although the water is somewhat lower
 23   quality, and what you're referring to there is the
 24   quality level of the water from the sand and
 25   gravel as opposed to the carbonate aquifer,
01610
  1   correct?
  2               MR. CLIFTON:  Yes.
  3               MR. HANDLON:  And you state,
  4               "...and perhaps more susceptible to
  5               contamination from the floodway."
  6   And that's your point, that is an issue of
  7   potentially more susceptible to contamination, as
  8   you clarified today?
  9               MR. CLIFTON:  That's correct, although
 10   I think based on the evidence I've heard the last
 11   day or two, the system there may be strongly
 12   interconnected.  So sensitivity may be -- there
 13   may be sensitivity on both aquifers.
 14               MR. HANDLON:  Well, we're dealing with
 15   your review of, I appreciate, the EIS, and you
 16   have also heard some further evidence in the
 17   course of this hearing itself.  You're referring
 18   to Mr. Hayes yesterday?
 19               MR. CLIFTON:  Yes.
 20               MR. HANDLON:  Now you deal with, in
 21   the course of your presentation today and in your
 22   report, your discussion of modeling, the numerical
 23   mathematical type of modeling.  And you indicate
 24   that models are,
 25               "A numerical model is a mathematical
01611
  1               simulation of the geosphere and the
  2               behaviour of the groundwater within
  3               it.  Models are commonly used to
  4               understand how a natural groundwater
  5               system works, that is to say
  6