Intervenor: Vol 24. No 4 October - December 1999

Case Work: Water Fight an Uphill Battle - A Client's Perspective

A recent decision to deny an appeal of a Permit to Take Water has left the community of Flesherton, Ontario stunned and angry, and wondering just what it takes to get a fair hearing.

On October 5th, 1999 Artemesia Waters Ltd. (AWL) was issued a permit to take 176 million litres of spring water per year from a shallow surface aquifer at the headwaters of the Rocky Saugeen River. AWL is a subsidiary of Echo Springs Water Co., the third largest spring water bottler in Ontario. The permit was issued despite substantial opposition from local residents and farmers led by the Water Protection Coalition of South Grey (WPCSG), and despite assurances that a moratorium on the issuance of new water taking permits was in place.

The WPCSG was formed in December 1998 upon hearing of AWL's intentions. A 2,425-signature petition was raised in just three weeks, indicating the strength of local opposition to the water taking. The group quickly raised funds and hired an independent hydrogeologist, Mr. Wilf Ruland, to review the report submitted by the company to the Ministry of the Environment (MoE) with their January 1998 permit application. Mr. Ruland concluded the company's report was "severely flawed" and that the water taking would have a significant impact on an adjacent, privately owned wetland. The County of Grey also commissioned an independent hydrogeological review that came to very similar conclusions.

An extension to the Environmental Bill of Rights (EBR) comment period was obtained, and in addition to the peer reviews and the petition, 60 separate comments were received by the MoE. These included letters from Paul Bonwick, the federal MP for the region, the Grey County Federation of Agriculture, and local hunters and anglers. The concerns covered a broad spectrum of issues from the threat to the wetland and its fish habitat, to potential adverse impacts on residential and farm water supplies already suffering from the effects of the worst drought in 60 years.

In May, during the run-up to the provincial election, the former environment minister, Norman Sterling, announced a moratorium on the issuance of new permits to take water. That moratorium was lifted for Bruce and Grey Counties in June--just days after the Tories were re-elected. Industry groups were notified, but no public announcement was made on such an important change in Provincial policy.

During the summer, the WPCSG approached CELA for legal assistance. When the permit was unexpectedly granted, CELA's support was crucial in preparing a substantive and powerful appeal application in the 15 days permitted under the EBR. The basis of the application was wide ranging. Issues included:

  • the failure of the Director to consider an ecosystem approach in his decision to issue the water-taking permit;
  • violation of a neighbour's riparian rights by the virtual elimination of the flow of a stream into her wetland;
  • conflicting expert opinions regarding potential impacts on the wetland;
  • concerns over the development of severe drought conditions subsequent to the completion of the proponent's hydrogeological study; and
  • our contention that the permit conditions do not adequately deal with our concerns, and provide for remedial action if environmental damage can be shown to have occurred, rather than preventing such damage as demanded by environmental protection guidelines.

In what to us was a very surprising decision, the Environmental Appeal Board ("the Board") found the Director's decision to issue the permit reasonable, having regard for the relevant law and government policies. The Board, however, failed to acknowledge that the Director is mandated by law to take into account the ecosystem approach when issuing permits to take water. Instead the Board simply suggested that the ecosystem approach "is an area that the Ministry of Environment may wish to give greater emphasis in the future". The Board failed to even discuss the issue of riparian rights in its decision, despite acknowledging it was one of the bases of our application. In essence it appears that the Board simply concluded that the Director accepted the views of the proponent's expert over those of the independent experts, and found that reasonable.

Who suffers from the Appeal Board's decision are the people who live in the area where water is taken (for free, I might add-the industry pays no fees to anyone) and the future generations who might want to live here. We at the Water Protection Coalition thought the EBR was there to prevent just this sort of wholesale degradation of the environment.

Mr. Anders is an engineer, and president of the Water Protection Coalition of South Grey,who moved to Grey County four years ago with his wife, Lucy, to live in a rural/agricultural community and to enjoy the natural unspoiled beauty of the area. They are currently blessed with daily visits to their property by a group of 18 wild turkeys.