April 16, 2021

Comments on the Revised Draft Regulations for the PEI Water Act

From: The Coalition for the Protection of PEI Water

To: The PEI Standing Committee on Natural Resources and Environmental Sustainability

Thank you for inviting us to, once again, comment on the PEI Water Act’s draft water withdrawal regulations. This has been a long process, made more complicated by changes in government and in Ministers responsible for the Act, as well as differing interpretations of the role of your committee.

Our commitment to the process is based on our belief that water is not simply a resource to be extracted, it is not a commodity to be bought or sold or traded. Water is a common good, a shared responsibility and its preservation is essential for the ecosystems that we and all other living beings depend on.

The Coalition for Protection of PEI Water is comprised of both urban and rural individuals including farmers, as well as environmental and community organizations whose “interests” include social justice, democratic process, climate justice, and environmental protection.

In 2019, we spent a significant amount of time reviewing the first draft of the withdrawal regulations, line by line. We met on several occasions with the then Minister, Deputy Minister, and the Department staff who were responsible (and still are responsible) for writing the regulations. We are resubmitting these (attached) comments for your information. In addition, we would like to make the following points, in response to the revised draft regulations and current public discussions.

1. Drought contingency plans:

This is an area that we feel requires more detail, beginning with a definition of what exactly constitutes a plan “acceptable to the Minister” pursuant to section 5(2)(c) and section 8(2)(c). The definition of a drought contingency plan and its anticipated parameters should be within the regulation.

Moreover, the plans, according to sections 5 and 8 of the regulations would be submitted at the discretion of the Minister, and then, only at the time of application for a permit or re-application for a permit. Should a drought contingency plan not be required as a prerequisite to any permit to extract water?  In the alternative should not the Minister be entitled to ask for such a plan at any time over the duration of a permit should circumstances necessitate a reduction in extraction volume? This is particularly relevant in those permits which involve larger volumes of water.

2. Information to be submitted upon application for and reporting on the use of a water withdrawal permit:

We would like to comment on the amount of discretion that rests with the Minister of the Environment regarding the information to be supplied pursuant to section 5 by anyone seeking a water withdrawal permit (or section 8 renewal).  The collection and submission of data, test results and other information are a fundamental prerequisite to good decision making. The unspecified nature, content and purpose of such any discretionary request by the Minister does the opposite of what regulations are aimed to do: provide clear guidelines for the types of information that is required in decision-making as well as providing data as to the ongoing state and health of PEI water.

We suggest this is one of the areas in which “the Minister may” be changed to “the Minister shall”.  And although the particulars of a specific permit (including its location, volume and purpose) may result in differing requirements as to the scope and depth of such submissions, once again, it is the regulations that can articulate the different requirements for different applications.  

Similar discretion applies to reporting once the permit has been issued. If the province is serious about gathering data regarding the state of Prince Edward Island water, ongoing testing, monitoring and reporting should be a condition of every permit applied for and issued as a section 6 term of permit. This will clarify and supplement the ambiguity in section 7 which provides that data regarding flow and water levels “shall” be provided by the permit holder “as required by the Minister”.

3. Holding ponds:

Groups opposing regulation of holding ponds have made continued reference to the “investment” that farmers have made in holding ponds. We think it is important to point out that the Government’s intention to grandfather holding ponds has been quite beneficial to those who made and who continue to make these “investments”.

Since no approval was or is required, none of the considerations (discretionary or otherwise) in issuing a permit for holding ponds were reviewed by the Department. Thus, the consideration of adverse impacts, conditions of operation, testing, reporting, or drought contingency plans do not apply to existing holding ponds and those that will be completed before June 16^th.

Holding ponds are not only allowed to continue in place, but in essence have carte blanche for the next five years. By grandfathering them in we have not only permitted their existence but allowed them to extract water to fill those ponds limited only by sections 5(7) and 5(8) read in conjunction with section 4(2).

As for existing holding ponds, Dr. Michael van den Heuvel is among those speaking in favour of ponds for irrigation. He recently commented in the media on the benefits of filling ponds in the spring as a way to reduce the need for surface water extraction in the summer. 

We wish to point out that no studies have been done, and no data collected on the impacts of holding ponds.  Section 77(7) of the Water Act exempts existing holding ponds as described in section 4(2) of the regulations from permit requirements for five years. As important, subsection 5(8) of the regulations goes on to outline possible water volumes within these holding ponds as “hav[ing] a water withdrawal rate of 345 cubic metres OR MORE per day under subsection 4(2).” Therefore, multiple pumps can be operating 24/7; there is nothing to prevent them from pumping even after they are filled in the spring, especially if there has been little snow or rain to fill those ponds or if we find ourselves in summer drought conditions.

In the absence of a complete moratorium on holding ponds (which was supported by the current and past Ministers in the PEI Legislature just under a year ago), regulations specific to holding ponds should be drafted as quickly as possible to ensure they are operating without adverse effects. Information about how holding ponds are monitored as well as standards and monitoring data should be made publicly available. While some of the proposed regulations do in fact address holding ponds, they are not easy to find or understand. A subheading within the regulations to address “Holding Pond Water Withdrawal Permit”, distinct from the existing “Water Withdrawal Permit” subheading would add clarity to the scope of this water use and effectively address the unique attributes of this alternative irrigation approach.