Coalition Suggests Improvements to Water Act

Opinion Piece published in the Charlottetown Guardian, December 7, 2017

By Catherine O’Brien and Marie Ann Bowden

The Coalition for the Protection of PEI Water recently met to discuss the newest draft of the Water Act.  After an inclusive and thorough participatory process, we are disappointed that no public consultation was allowed for this final draft.

Though we do see some very positive additions, we feel it is important to point out some significant gaps within the draft Water Act that are of great concern. We hope that some changes and amendments can be made before this Bill becomes law.

1. The “Purpose and goals” section of the draft Water Act is important but does not create rights.  A separate provision is needed in the Act to acknowledge and enshrine the right of Islanders to a clean and adequate supply of water.  We suggest, “The peoples of PEI have the right to affordable water, sufficient in quality and quantity for human and ecosystem sustainability. This includes the inherent water rights of the indigenous people of PEI.”

2. The section dealing with the ban on fracking appears to be good news, but the clauses which follow can circumvent the ban if the Minister along with the Cabinet believe it is in “the public interest”, to do so with no requirement for public consultation. Therefore, the offending s. 19 (2) and (3) should be deleted from the draft.

3. We strongly suggest an amendment to section 2(c) to highlight and ensure the success of the partnership between all stakeholders. We suggest it read:
(c) Water is a finite resource, the management of which requires transparency of all information related to water and meaningful public participation to ensure its long-term sustainability and availability.

4. The “polluter pays” principle, “precautionary principle” and “intergenerational equity” are vaguely alluded to in the Bill but it is important to actually use the words if the province is indeed committed to these principles as goals. Such incorporation allows the province to incorporate best practices related to these evolving concepts and avail itself of the jurisprudence that helps interpret (and we hope further) these laudable goals.

5. In section 18(2)(a), the content of the registry of information available to the public is vague, and should include “applications and approvals, orders and directives and other information regarding an application.” In addition, the registry should be accessible to all Islanders and be presented in a timely manner.

6. Sustainability and conservation are not seen in the Act as primary goals.  For instance, municipalities can exceed the withdrawal limits indefinitely (s.36(b)) without penalty. There is nothing in the Act that requires the municipalities to incorporate conservation measures, nor are they given a timeline to comply with limits. This should change. It is unacceptable to propose legislation that essentially allows municipalities to operate outside the law.

7. The moratorium on high capacity wells should be specifically included in the legislation.  It was a key component of many presenters’ requests, as was concern about nitrates, and was the impetus for the development of the Water Act.  After the public review a chart, provided by Government, listed the concerns of Islanders based on the strength of public input. It clearly showed overwhelming support for the moratorium.  Again, we should require sustainable practices that do no harm to the environment when there is any water extraction.  It’s not about “if” the ban can be lifted but “why” does it need to be? Who benefits? Would lifting the moratorium reflect the priority that Islanders place on the protection of our underground water resources? Until these and other relevant questions are definitively answered the moratorium should remain and be specifically articulated in the Act.

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A Troubling Issue of High Capacity Wells

Opinion Piece by Gary Schneider and Don Mazer

November 30, 2017

The unveiling of the Water Act did little to resolve the central issue which sparked the creation of the Act – the moratorium on high capacity wells. Over 90% of those who participated in the extensive Water Act consultations were in favour of maintaining the moratorium. Unfortunately, the Act does not reflect this strong consensus.

To be clear, the draft Water Act does NOT include a moratorium on high capacity wells. Surprisingly, “high capacity wells” is only mentioned in a slide presentation on the Act, not in the Act itself. Under the heading “High capacity wells for Ag irrigation”, it says that “Water extractions will be addressed in regulations once the research on stream flow has been completed.”

The problem is that a very complex issue appears to have been simplified to a question of volume. In the face of climate change and competing needs, will we ever have enough scientific certainty to accurately predict how much water might be available for different uses? Even if we do develop trustworthy models, there is so much more to the question of how to safeguard PEI’s precious water resources for future generations than mere volume.

The Coalition for the Protection of PEI Water has been a part of this process since the initial push for a new Act. We believe that the Act must clearly state that the moratorium on high capacity wells will remain in place until we have much more scientific certainty and that any decision to change the status quo will first require an inclusive public process that addresses a wide variety of relevant issues.

Just looking at one narrow aspect of whether water is available to be given away to support industrial potato production, more golf courses, or urban areas that exceed their sustainable water limits ignores many other concerns that also need to be addressed. These include the following:

Do Islanders really want an even more industrialized system of potato production, with fewer and fewer farmers and larger and larger farms? We’ve been heading in this direction for decades and it has resulted in a great deal of damage to the environment. Should we not instead be looking at ways to increase organic matter in the soil that will both store carbon and allow the land to hold more water, thereby reducing soil erosion and pesticide run-off?

It would be wiser to look at how to improve our soils, rebuild our hedgerows and windbreaks, and extend the rotation of row crops, instead of increasing pressure on our already overworked Island soil and water. Our rivers and estuaries are already overburdened – we need to address these issues, not take steps that might lead to more harm.

We also need to know much more about the ecology of our waterways and the wildlife that are dependent on these important areas. The fish kills do not only harm fish – they kill shellfish, insects, birds and essential micro-organisms as well. Will greatly increased water extraction result in more risk to Island wildlife and ecosystems?

These answers will not be easy to come by. We have done little monitoring of the impacts of existing high capacity wells, and so have missed a golden opportunity to learn from our actions. Impacts might not show up right away, especially since we still have so much to learn.

As well as lack of contextual and comparative analysis, there is concern that long term considerations and analysis are also missing. Climate change may well bring about changes in hydrological cycles. There is also concern over the sustainability of exporting of large amounts of water embedded in potatoes. These are long-term considerations where the precautionary principle needs to be recognized, as we are making decisions for the next seven generations as our Mi’kmaq and other Indigenous leaders would advise us all.

We must make thoughtful, long-term decisions about water. That is what Islanders overwhelmingly asked for when making submissions to the extensive consultations around the Water Act.

A true moratorium on high capacity wells should be included in the Water Act for two reasons: first, to ensure that the clearly expressed wish of the majority of Islanders is respected and second, to mandate that any change to the status quo will only be undertaken after open and transparent debate among our lawmakers with meaningful participation by interested Islanders. And in the question of the protection of our water and its use, this means everyone.

 

 

Water Act Debated in Legislature

The Water Act was tabled for second reading in the P.E.I. Legislature on November 29. As debate continues, and in the absence of further public consultation, it is important for MLAs to hear from us. The Coalition has identified several ways in which the act could be improved:

  1. Enshrine that water is a right.
  2. Make the fracking ban a real ban
  3. Use the right names for the terms: precautionary principle, intergenerational equity
  4. Do not allow municipalities to to exceed limits on water withdrawals
  5. Put the moratorium on high capacity wells in the Act
  6. Recognize Indigenous title and jurisdiction to watersheds in the Water Act. 

What can you do? 

  • COMMENT AND SHARE: watch at home and comment on social media (Legislative Assembly website, Legislative Assembly Facebook), commenting on Citizens’ Alliance social media and sharing with your contacts
  • CONTACT YOUR MLA and ask him or her to strengthen the bill with the five improvements, (above)    MLA contact information  They are the only ones who can improve this now.

The actual bill (looking at the last pages goes over the reasons for each section, if you want to start there): Water Act government website

The Environment Minister and staff have worked really well consulting with Islanders, and Official and Third Party Opposition Members very engaged — that’s noted and appreciated! — it’s these last slight modifications which will really make this bill shine and make P.E.I. lead in water protection.  And with P.E.I. so dependent on its groundwater, this is something to push for.

2017_11_30 Water Act_MLA

Coalition for the Protection of PEI Water Calls for Improved Environmental Assessment Process

Charlottetown – The decision of the Minister of Communities, Land and Environment to allow genetically modified salmon to be grown in Prince Edward Island was the result of a faulty environmental assessment process, says a local environmental group.

On Tuesday, July 11, representatives of the Coalition for the Protection of PEI Water met with Minister Mitchell to discuss the Coalition’s concerns about the approval of the proposal by AquaBounty Canada, Inc. to expand their plant in Rollo Bay West. The original approval, which was for an egg production facility, was expanded to a facility at which genetically modified salmon would be grown to market size, and then killed before being exported. 

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The group is unhappy about the approval for a variety of reasons, including the public consultation process, which they say was inadequate and poorly advertised. “Even after Environment officials decided to extend the deadline for submissions, there wasn’t really enough time for people to become informed enough or to prepare to respond to the application for such a big project,” says Catherine O’Brien, Chairperson of the Coalition. 

The fact that the new application by Aqua Bounty was judged not to warrant a new environmental assessment is of particular concern. Gary Schneider sits on the Multi-Interest Advisory Committee reviewing federal environmental assessment processes. He says there should have been a new and complete Environmental Impact Assessment, given that the new AquaBounty proposal was so substantially different from their original application, approved a year ago, when the stated intention was to only grow GMO eggs to be shipped elsewhere to be raised. “This is a classic example of “project splitting”, where the company was able to get approval for a smaller piece of the project (raising eggs) and then returned a short time later with what would seem to be their actual plan, thereby avoiding an independent evaluation of a very different project. The environmental impact assessment for this project was woefully inadequate.”

The coalition is also very concerned about environmental impacts of the new facility, and the potential for contamination of the wild salmon population should a GMO organism escape. They echo the concerns voiced by the Council of Canadians – published on July 17 in the Guardian – about AquaBounty’s environmental record, wastewater treatment and water use.

PEI will now become the first place in the world where GMO animals are grown for human consumption, and this has happened without any kind of public discussion, says Don Mazer, who also attended the meeting with the Minister. “There has been a complete absence of public debate about the merits of this idea, its social and ethical implications, and whether Islanders, and Canadians actually support this practice – it is quite astonishing.”

In responding to the Coalition’s concerns, the Minister indicated that responsibility for such projects is shared between different levels and departments of government.  He construed his own responsibilities quite specifically, and was pleased that the current project would use less water than the initial project (approved a year ago), due to a plan to recirculate the water. He was satisfied that the application met all of the specific requirements of established protocols for environmental assessment. The Minister felt that any broad ethical discussion about the merits of GMOs would be a federal responsibility, far beyond his jurisdiction, and he did not indicate any interest in taking a leadership role to create opportunities for such discussions.

And, as with the previous AquaBounty application, the Minister felt that it was not reasonable to ask applicants to wait for the new policies in the upcoming Water Act before having their proposals acted upon. In summary, he seemed quite satisfied with the process of approval for the expanded AquaBounty facilities. However, speaking for the coalition, Ann Wheatley noted that, “From our perspective, this approval is a clear reflection of how inadequate the current Environmental Impact Assessment processes are.” The Minister did encourage the Coalition to share their ideas for more thorough EIA processes. The Coalition has committed to do so, over the next few months.

Coalition members took the opportunity to ask for an update on the Water Act. The Minister indicated that the final draft would be posted online when it goes to the Legislature in the fall. No details were offered about what changes had been made to the first draft of the act as a result of the last round of consultations. When the issue was raised about the provision for municipalities to exceed limits the Act would set for water extraction, Minister and staff indicated that they hoped that this would be a temporary situation, but that they were not inclined to include time limits on that clause. “We suggested that it seemed like bad policy to enshrine an ongoing right for municipalities to break the law,” says Don Mazer. “They indicated that that they will take that idea under advisement.”

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For more information about this media release please contact Catherine O’Brien – cathjobrien@gmail.com, or Ann Wheatley – ann@cooperinstitute.ca

Coalition Presents its Concerns about the Draft Water Act

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The Coalition is made up of over 20 member groups and hundreds of individual members. Members include ECO PEI, The Cooper Institute, NFU Region 1 District 1, Sierra Club of PEI, Citizens’ Alliance, The Council of Canadians, Don’t Frack PEI, Save our Seas and Shores, and several watershed groups. You’ve heard from some of our member organizations in the last couple meetings. We concur with those presentations you heard, and would like to add a few more points.

The initial consultation process was inclusive and transparent. More time was added for feedback when asked, and many of our recommendations were put forward to you from the EAC. We see some of those recommendations in the draft act.

We would like to ask you once again to continue this positive process and include more meaningful public participation in the creation and completion of the water act.

Concerned Islanders must have a real opportunity to be heard and to feel that they have had a chance to influence the ultimate decisions. I’d like to refer to this chart that demonstrates the best practices for meaningful public participation.

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Continue reading “Coalition Presents its Concerns about the Draft Water Act”

Coalition Presents to Standing Committee

imagesOn October 26th, the Coalition for Protection of PEI Water made a presentation to the Standing Committee on Communities, Land and Environment, following a presentation by the proponents of a proposal for a bottled water plant near Brookvale, PEI.  The Coalition for the Protection of PEI Water was represented by Don Mazer, Andrew Lush, Leo Broderick and Chris Ortenburger. As you can imagine, the Coalition has a host of reasons why P.E.I. should not be exporting groundwater. Read the whole presentation here.

Coalition Asks for Moratorium on Bottled Water Exports

shutterstock_103020260Following a meeting with Environment Minister Robert Mitchell, members of the Coalition for the Protection of PEI Water ask, in anticipation of the next phase of development of a Water Act,  for interim measures to protect water including a moratorium on bottling water for export:

Dear Minister Mitchell

Thank you for meeting with us last week. We were able to cover some of our concerns and we look forward to further discussions with you as we move towards a comprehensive water act. We wanted to follow up on the meeting with some key concerns and questions that we have.

We must impress upon you that we do believe that it would be a prudent and responsible decision to put a hold on future water extraction permits for anything other than the most essential purposes while we await the Water Act. We realize that this is a difficult challenge. While businesses have a certain expectation of expediency, we believe it is your role to impress upon them that any decisions around water use must primarily be grounded in having a system in place that first of all respects our environment and protects our water for future generations. The very process of developing a Water Act reflects the collective awareness that our current policies and regulations been inadequate in accomplishing these key goals. We believe that it is not acceptable to continue to make decisions about water use based upon problematic policies.

One of the important recognitions for us from that meeting is that it seems like no one (including the Coalition) has thought about how decisions about water use and permits will be made in the interim period while the Water Act is being developed. So it is not surprising that current policies, however inadequate, become the ‘fall back’ position.

While we do support a ‘moratorium’ on new permits and uses, we think that it is essential that there be an interim set of priorities for water use developed while we await the Water Act. If decisions must be made in the interim, they need to be grounded in these principles and provide the opportunity to meet ‘essential’ needs. From the consultations, there seems to be widespread agreement that our priorities must always be given first to maintaining healthy ecosystems, providing for basic human needs, and for fire and emergency services. All other permits and new uses can be seen as lower priority and should await the Water Act, and the opportunity to have the discussions and consultations we need about how we believe our water should be used.

Such guidelines would have supported postponing the decision on the AquaBounty applications for permits as a nonessential use, and for the proposed bottled water plant in Brookvale that plans to use PEI water for export.

There are other reasons why a moratorium would be advisable. While we appreciate that you have advised businesses that permits granted now might not be applicable under a new Act, the unsettled issues about grandfather clauses raises serious concerns about whether the province would be liable or responsible for costs should a permit need to be rescinded. We include some other relevant questions and comments about the permitting process.

 Is a PEI permit transferable to another property or business owner?  Can it be included in a personal estate as property to be inherited? Is it collateral for a bank loan? Can excess capacity be sold or traded (or combined into a new enterprise?)  Can neighbors who lose a well or can property owners in a watershed that is drained stop the permitted owner from impacting them? Can PEI rights be sold or transferred to a private interest in another province or to an international interest?

Not only should we be looking at responsible management of water within the province, but also at considering the sovereignty and future food and water security of the Island. We have mutual reasons to prevent PEI water from being a privately owned global commodity.

John Quimby, who lived in California, mentioned the effect of grandfathered water rights there given in 1914 that affected private property owners, the public and government during an historic drought emergency in 2014.

Closer to home, we have seen the public response to the Nestle model of extraction for profit during a drought emergency in Ontario.

Finally, the discussion of the proposed water bottling plant in Brookvale reflected major gaps in policy that needs to be immediately addressed. It was surprising to learn that your department had no jurisdiction to decide about this proposal if the applicants stayed within the existing water extraction guidelines. As we all agree, the way we use our water is an important moral and ethical issue and one that is hotly contested. It is much more than a business decision that can be made by individuals. It was clear that the existing policies would make it possible for any other entrepreneurs to pursue a similar plan. We would be taking a major step toward the commodification of water, without even discussing it.

We urge you to address this policy gap by declaring a moratorium on going forward on any developments of bottled water for export, and will then hope it will be addressed in the Act.

Catherine O’Brien, Don Mazer, Chris Ortenburger, Leo Broderick, John Quimby, For the Coalition for the Protection of PEI Water

Water Act Consultation Report is Released

“From the public consultations, it was clear that any legislative, regulatory or policy framework should be drafted in such a way as to support efforts to:
• conserve, protect, and restore the health of aquatic and riparian ecosystems;
• safeguard and enhance drinking water;
• regulate water use in a manner that respects ecosystem as well as human needs;
• ensure water security through use efficiency and conservation practices;
• encourage and enforce land use management practices that protect water quality, the
integrity and health of watersheds, associated watercourses, and the groundwater
resource;
• allow for the continuous adaptation of water management rules, as science advances,
or natural conditions change; and
• standardize, streamline and make transparent government decision making.
The new Act need not be prescriptive on every management issue. It should, however, have the flexibility to provide municipalities, communities, advisory groups, and government with
the tools to address water management issues according to the conditions at specific localities, now and in the future. We all depend on the ability to access basic water services and water
resources. The proposed Water Act must be able to deliver on that.”

Read the whole report here:

http://www.gov.pe.ca/photos/original/CLE_EAC_WARep.pdf

Water Act White Paper

Environment Minister Robert Mitchell tabled the much awaited white paper on the proposed water act.
It is time to get informed and get involved.  A group from the Coaltion for the Protection of PEI Water is working on a letter for the papers to assist Islanders in learning about the process and encourage government to work with Islanders to develop a comprehensive, sustainable act.

Here is a brief description of the timeline:
  • Fall 2015: public consultations on the white paper and what should be in the Water Act carried out in several communities.  A panel made up of some members of the Environmental Advisory Council will be at every meeting, and the meetings will be moderated by the highly respected Jean-Paul Arsenault, who used to work for government and helped with a lot of those previous Reports and Roundtables (which are linked in the white paper).
  • Winter/Spring:  Department of Communities, Land and Environment works on draft Legislation
  • Spring 2016: second series of public consultations on draft water act
  • Fall 2016 (November): Water Act legislation tabled in the P.E.I. Legislature.

This is a very short timeline, and may be too ambitious. BC spent 6 years on their act and are still working on the legislation.
Public engagement and input need to be truly incorporated into the document.

The Department of Communities, Land and Environment website on a water act:
http://www.gov.pe.ca/wateract/

The link to the actual white paper:
http://www.gov.pe.ca/photos/original/wateract.pdf