Ending the moratorium: Credible science and comprehensive data or empty rhetoric and baseless reassurances?

Don Mazer and Boyd Allen

Part l.

The Water Act Process: From exemplary public consultation to industry led policy

It took 7 years, but now Prince Edward Island finally proclaimed a Water Act. There are certainly reasons to celebrate this. The Act contains guiding values that recognize water as a common good and a public trust. There is acknowledgment of the precautionary principle and the need to preserve water for future generations.   Yet, how much the Act will help to remedy the poor track record of the Government and its departments in protecting PEI’s waters remains to be seen.

The impetus for the development of the Water Act began at Legislative Standing Committee meetings in 2014. The potato processing industry was pressuring government to lift the moratorium on high capacity wells for agriculture, and many citizens and groups opposed this.

It is important to appreciate that the development of the Water Act reflected an exemplary process of public consultation, because it stands in such sharp contrast to the current approach of Minister Myers and the King government. This Water Act consultation period was a time when there was meaningful collaboration between government and citizens, when all Islanders had a chance to express their ideas, and when there were many opportunities for public input. Government was receptive to requests for transparent processes, and was flexible in meeting the needs of the public.  Citizens and groups responded with enthusiasm and interest and a strong commitment to this process. The result was a series of excellent, thoughtful and well researched presentations by groups and individuals at public meetings across PEI. Government seemed to actually welcome and value public input into the development of policy.  The Environmental Advisory Council report was an accurate reflection of these presentations, and included the strong opposition from a large majority of presenters to ending the moratorium on High Capacity wells for agriculture.

After being reviewed and debated clause by clause, The Water Act was passed by the provincial legislature in December, 2017.  It was the ground breaking product of participatory democracy and a step toward consensus based governance.

But since that time, we have had a change in government and four Environment Ministers, each reflecting the biases current in their Caucus and the Premier’s Office. The Water Act process has been transformed through each of these changes and has fallen on and off the priority list. The robust process of public consultation on the Act was replaced by a consultant driven “dot democracy” method for the regulations, with limited opportunities for people to directly express their ideas. The current minister is unresponsive to requests for meetings.

Trust has eroded in Government’s ability to protect our water, to listen to and collaborate with citizens and to resist corporate influence.  Anoxic conditions, high nitrate levels and fishkills continue to seriously impact P.E.I.’s waterways. Kilometres of Winter River stream beds continue to go dry each summer. The Government even violated its own regulations to permit a group of potato producers to extract water from the Dunk River in 2020 though the flow levels were below legal limits. In lieu of transparency, Government made this possible through closed door meetings and subsequent ministerial orders.

We have moved from a textbook template of public engagement and consensus based governance to a government led by industry, doing whatever if feels appropriate to achieve its short term goals. Virtually all lines of communication have been ignored. Portals for public engagement have been effectively blocked. The multiparty Standing Committee that Dennis King celebrated as a model of collaboration and transparency, is now presented by his Minister as a target of derision, their recommendations easily disregarded. Minister Myers’ unfettered boosterism of the potato processing industry appears to be government policy and has not been discouraged by his leader or his party. 
 

Part II.  A Water Conservation Strategy or an Irrigation Strategy?

As recognized by all parties in the Water Act process, Minister Steven Myers, and the King government have repeatedly emphasized that decisions about water use will always be based on careful scientific considerations, sound data and sustaining the water source for future generations. However, the decision to end the moratorium on high capacity wells for agriculture at this point reflects none of these values.  Communications from government about this decision offer us empty rhetoric and baseless reassurances, telling us how nonexistent policies and plans will protect our water.

We now hear little about the comprehensive four year study proposed by UPEI’s Dr. Michael van den Heuvel intended to provide specific data about the impact of high capacity  wells on watersheds. While there were concerns raised by environmental groups on the lack of details of this study, it was heavily promoted by industry groups and government as a prerequisite to lifting the moratorium. In Minister Myers’ latest announcement, there is no mention made of this study or anything to replace it for that matter.  Minister Myers assures us that we have had all the information that we needed for 19 years to end this “silly moratorium”. The implication is that no new data is needed to fundamentally change these water extraction regulations. Perhaps the four year delay and the inability to control the resulting conclusions limited their enthusiasm.

Communications from government about this decision offer us reassurances that the protection of our water is the root of these changes. Unfortunately this is based on an undeveloped irrigation strategy and an undetermined drought contingency plans.  These two ideas are vital to preventing unsustainable water extraction. Shouldn’t they be in place before all the applications for new HC wells start flowing in?  Shouldn’t there be public consultation about their development?

Government chose to lift the moratorium in response to the claim that it discriminated against agriculture.  But why continue to single out agriculture? Government should use this opportunity to develop a broader water conservation strategy, that places irrigation for farming in the context of all the needs for water that other industries and interests, citizens and ecosystems have.

It is encouraging to hear support at a recent Standing Committee meeting for developing systems of water governance that include a diverse range of interests and stakeholders. The Coalition for the Protection of PEI Water proposed such models of Community Based Water Governance in two submissions to the Environmental Advisory Committee during the Water Act process, and look forward to contributing to this discussion.

Government asks us to trust their good intentions, to trust their ability to monitor the well being of all waterways, to trust the expertise in their department. They ask Islanders to accept their reassurance without providing supporting data or any practical template of what is required to administer these changes in regulations or monitor their impact. They expect us to accept their continuous message that there is plentiful and abundant groundwater. They ask for all this public trust in the context of the many instances where water and wildlife health have been jeopardized under their watch.

Despite this, Minister Myers continues to reassure us that there will be meaningful public consultation. There is just no indication of what form this will take. Given his contemptuous response to any earlier recommendations from the Standing Committee which he disagreed with, how impactful this consultation will be is certainly in doubt.

The decision to end the moratorium seems to have been the government’s preferred outcome all along. 

Don Mazer and Boyd Allen are on the board of the Citizens’ Alliance of PEI, a member organization of the Coalition for the Protection of PEI Water

PEI’s Water Act, What’s Missing?

The fact that the Water Act will finally come into effect this week should be a source of celebration in Prince Edward Island. The Act contains many positive features, and in many ways reflects the values expressed by the Islanders who have over the past seven years, taken time to participate in public consultations and comment on the Act and its accompanying regulations.

But Minister Myer’s announcement on June 10 has dampened enthusiasm for the long-awaited legislation. Once again, the Minister has indicated just how easily this government responds to the powerful voices of industry and how little they hear or care about the voices of concerned Islanders who have consistently said “no” to lifting the moratorium on high-capacity wells for agricultural irrigation. Public support for maintaining the moratorium is based on the need to protect this Island’s groundwater, for our health and the health of future generations. And because Prince Edward Island’s ecosystems, already under threat in so many ways, depend on preservation of groundwater.

As the Coalition wrote in an April opinion piece in the Guardian, “trust in government’s ability to protect our water, to resist corporate influence and to listen to citizens has eroded particularly in the 3 ½ years since the Water Act was passed. Fishkills, anoxic conditions, and high nitrate levels continue in our waters.  Last summer, the government violated its own regulations by permitting five farmers to extract water from the Dunk River, when water levels were dangerously low.”

We are particularly disappointed that the moratorium is going to be lifted on the basis that licensing of high-capacity wells will be done according to rules that are as yet, non-existent. 

The idea that high-capacity wells will be permitted, provided they are constructed in accordance with an irrigation strategy may sound good, until one realizes that actually, there is no irrigation strategy.

Will all water users be at the table to determine an acceptable strategy? After all, we all have a stake in determining how water is allocated in this province for both consumptive and non-consumptive uses. And even if that strategy is to emerge and is compatible with the new Act and its regulations, the wells will not be subject to metering nor the strict limitations on water usage recommended by the PEI Legislature’s Standing Committee on Natural Resources and Environmental Sustainability, leaving us all to wonder about the pledge by this Government to the protection of Prince Edward Island waters and the gathering of scientific data to assess the effects of high-capacity wells.

The Act will also require farmers seeking well permits to submit a drought contingency plan, or a plan to reduce water use during extreme drought conditions, to the province. But there’s been no discussion of what should be included in such a plan.

This is a classic example of putting the cart before the horse and in this case the cart itself seems to be missing a competent driver.

Ann Wheatley and Marie-Ann Bowden for the Coalition for the Protection of PEI Water

Published in the Charlottetown Guardian, June 17, 2021

Water Law: A Look at PEI’s Water Act

Tuesday, October 2, 2018 6:00 to 8:00 pm at the PEI Farm Centre, University Ave, Charlottetown

Join East Coast Environmental Law and the Coalition for Protection of PEI Water for a discussion of the Water Act, looking forward to the release of regulations and another round of consultations. PEI Water Law Workshop-2

Lisa Mitchell from ECE Law will provide an overview of the Act.

Tuesday, October 2 at 6 pm at the PEI Farm Centre

Everyone welcome!

Don Mazer Comments on the Draft Water Act

“The clearest evidence of the failure of this Act to protect Untitledin Winter River is in the creation of Municipal Water Supply Area. And most troubling of all is Section 35(b), that gives the minister the authority to permit municipalities to exceed the limits on water extraction permitted by the Act, with neither reasons, nor time limits –perhaps this will be in the regulations. In my earlier brief I talked about the impacts of big interests, like municipalities and corporations which the government would be reluctant to regulate. This is clear example of this influence.
This is a disturbing and perplexing provision. It seems to reflect how government will try to balance the human demand for water with the need for water for healthy ecosystems and fish life. It indicates a willingness to not protect some waterways if the City requires the water. Perhaps, ‘you just can’t protect them all.’ Continue reading “Don Mazer Comments on the Draft Water Act”

Standing Committee’s Report

The Standing Committee on Agriculture, Environment, Energy and Forestry’s report to the P.E.I.Legislature from November 2014 is here:
http://www.assembly.pe.ca/sittings/2014fall/reports/11_2014-19-11-report.pdf


Here, by the way, is what is said about the Water Act in the Speech from the Throne, which was read on November 12th, 2014.  I know the Premier retreated the next day, and most elected officials in government are shrugging and saying, “The new Premier will have to decide” about pretty much everything, but folks behind the microphones are obviously still going to their offices and working on projects and policies.

from The Speech from the Throne, text here:
http://www.gov.pe.ca/photos/original/SFT_E_11_14.pdf

page 14:
Safeguarding Our Environment

Our environment has an impact on the quality of life and health of
every Islander. More than in any other province, our economic success is
founded on healthy soils, clear air and clean water, healthy and diverse ecosystems,
and the beauty of of our landscape.

<<snip>>

 page 16:

Water matters to every Islander and our agricultural industry needs
clarity regarding its access to our water resource. To ensure both water
quality and water quantity for the long term, My Government will
undertake a thorough and careful process to develop a
Water Act for our province beginning with a public consultation process in the
coming months, and cross jurisdictional analysis.
The proposed Water Act will consolidate water-related legislation,
regulate the use of surface and groundwater, allocate water in times of
scarcity, protect streams, rivers and related aquatic environments, and
ensure water quality and quantity. Our goal is to regulate water use in a manner
respects human needs while safeguarding the environment.

Letter re: Water Act for PEI

Legislation needs to ensure, protect water quality; improve health of watersheds

It has been a full six months since Environment Minister Janice Sherry announced that the P.E.I. government would commence the process of developing a water act. “P.E.I. needs a single piece of legislation that covers all its water management policies,” said Minister Sherry in June.

“The implementation of a water act will demonstrate government’s commitment to managing water resources in a sustainable manner for present and future generations.”

The announcement followed a recommendation made by the Standing Committee on Agriculture, Environment, Energy and Forestry in April, and then reiterated in November just before MLAs retired for the year. The committee, chaired by MLA Paula Biggar, had listened to presentations by over two dozen groups and individuals who were responding to requests by potato industry representatives to lift a 12-year moratorium on high-capacity wells.

The recommendations contained in their report to the legislature — to develop a water act and to keep the moratorium in place at least until government has a better understanding of the impact of lifting the moratorium — was very much in keeping with the views of a vast majority of presenters. Since Minister Sherry’s initial announcement, there has been no further word on the subject from her office — nothing to indicate what kind of process will be undertaken, who will be involved and when it will start.

Since the June announcement, there have been the usual seasonal anoxic events in Island estuaries, and a major fish kill in the Ellen’s Creek watershed (the final report of the investigation into which has yet to be released). As late as last week we were reminded of the vulnerability of our watersheds, as heavy rainfalls caused flooding, wide-scale destruction of infrastructure across the province, significant run-off from fields and roads and siltation in most of our waterways.

All Islanders have an interest in a policy designed to protect water; it is a resource that we hold in common, and we have a collective responsibility to ensure that clean water is available, in adequate supply, for ourselves and for future generations.

If our goal is a water policy that respects the needs and the wishes of Islanders, then the process as well as the Act itself will need to be designed to reflect some basic values, including: equal opportunities for meaningful participation, respect for the knowledge of the community, inclusion of diverse perspectives, clear communication and transparency, and empowerment of individuals and communities.

And what about that process? How might it be designed to reflect those values?

In the first place, the committee that steers the process would be “arm’s length” from government and representative of as many interested parties as possible. Besides people with technical expertise or knowledge, members of various communities would be included — farmers, fishers, First Nations, municipalities, community members, environmental & watershed groups — to ensure credibility of the process and promote inclusion, full participation, transparency and accountability.

Everyone who participates in the process should have an honest opportunity to influence the decision-making. It would help to have a clear idea, from the beginning, of how the information and views that everyone contributes to the process will be used.

A background document or discussion paper, provided in advance of public consultations, would help people to prepare to participate in the process, especially if it is accompanied by some key questions to frame the discussion. The document would include pertinent information and data, including the total amount of water that is now being pumped from existing high capacity wells, and the amount of water that is used annually by Islanders.

Consultations would take place in a broad range of Island communities and be as accessible as possible in order to facilitate full participation. There would be flexibility in the process, allowing for additional consultations when or where necessary.

When groups or individuals take the time to participate, they must be able to see how their participation has or has not influenced the outcome. It will be important that all submissions are made public.

In fact, it is important that all documents and information regarding the process and consultations are made widely available.

The provincial library system, Access P.E.I. and social media could be used to communicate information, including: a summary of the process; the initial discussion paper and questions; written submissions; technical documents; reports from the community consultations; an overall summary report of the consultations.

At every stage of the development of the Act, consideration should be given to how it will be implemented, enforced and monitored, what kinds of regulations will be necessary, and how it will be communicated to the public. Because, in the end, we really do want a piece of legislation that is effective; an Act that protects and improves water quality, provides adequate supplies of clean water into the future, and protects and improves the health of our watersheds.

By Ann Wheatley (guest opinion)

Ann Wheatley is a member of The Coalition for the Protection of P.E.I. Water