THE PEI WATER ACT - A MIXED BAG
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By Michelle Moore
For the last three years, the development of the Prince Edward Island Water Act has been the source of much debate. The provincial government has put out a white paper, first draft of the legislation and held two rounds of public consultations with another round to come for 2018. Environmental groups, agricultural groups, and opposition leaders have criticized the act for what they say are gaps in the legislation.
Prince Edward Island is the only province that gets all their drinking water from groundwater, yet it lacks a unified, comprehensive legislation on how to manage and protect its water. It also does not have a transparent process for it, which means changes can be made to water management regulations without the public's knowledge.
In 2014, the P.E.I. government considered lifting a 2002 moratorium on high-capacity wells for irrigation purposes which sparked public outcry and a series of public meetings which led to the development of the P.E.I. Water Act. The Act will combine the many existing pieces of legislation as well as new pieces pertaining to groundwater allocation, the discharge of pollutants, and water quality targets.
The public consultations began in July 2015 and were led by the Environmental Advisory Council; 434 recommendations were received by the public throughout the process. The consultations saw oral presentations from individuals and organizations, written submissions, one-on-one consultations and submissions received by phone, mail and online. Some of the main concerns were how uneven rainfall affected crops, climate change impacts, diversion activities like the use of high-capacity wells, and how water quality is affected by land development and farming practices.
Originally set for completion in spring of this year the draft was tabled by Communities, Land and Environment Minister Robert Mitchell on November 20 2017 until next year citing the need to give time for the results of studies concerning the impact of high-capacity wells to come back. The government has commissioned studies on watershed budgets throughout the more than 250 watersheds in the province which would inform the government's decision on high-capacity wells in the future.
In a written statement, Minister Robert Mitchell's office said "we have had many discussions with Islanders relating to water withdrawals and capacity wells. Research is being carried out to determine how much water can be withdrawn from a watershed to not impact aquatic habitat. This research will be used to develop regulations for the Water Act, which will be put forward for public consultations in future."
The current draft does not address the issue at all, and initially it was hinted that regulations for high capacity wells for irrigation would be included in a separate piece of legislation at a later date rather than being integrated into the Water Act. The moratorium has been the source of much debate, other industries like livestock farmers have no such ban and the P.E.I. Potato Board has called for the government to lift the restriction.
Wells are considered high-capacity when the water extracted is 4L or more per second. The Government of P.E.I. currently allows the use of high-capacity wells for aquaculture, food processing, municipal water supplies, golf courses and other various uses. There are roughly 288 high-capacity wells throughout the island, all requiring a Groundwater Exploration Permit. Since the moratorium, the government has continued to issue such permits for purposes other than irrigation.
The province currently has 36 high-capacity wells for agricultural irrigation and will not be approving any new requests for that purpose until the results of studies come in. In 2013, P.E.I. made a change in policy for approving high-capacity wells overall making a switch from calculating the amount of rain absorbed into the groundwater on a yearly basis to limiting the allowable reduction of the base flow in streams to 35%. This change is policy has led to an increase in confusion and a new debate between those who focus on recharge rates versus base flow.
The Water Act includes a ban on hydraulic fracturing citing no person shall engage in hydraulic fracturing within the jurisdiction of the province for the purpose of exploring for or obtaining any oil or natural gas, and no authorization to do so shall be given or valid under any enactment. While some are hailing this as a victory, environmental groups and opposition leaders have pointed out a clause that follows that in fact allows the cabinet to allow it, where the Lieutenant Governor in Council is of the opinion that a proposed activity that would include hydraulic fracturing may be in the public interest.
Speaking in the legislature, the leader of P.E.I.'s Opposition, James Aylward called for an all-party committee that would oversee the process, citing gaps in the current draft that would give the cabinet the decision to allow fracking. Environment Minister Robert Mitchell refused, reiterating that there would be another series of public consultations that members of the legislative assembly could participate in. Opposition leaders also criticize the act for not including a declaration of their citizen's fundamental right to access clean drinking water.
When asked what Minister Robert Mitchell's response was to such criticism his office responded that "under the new Act hydraulic fracturing is prohibited, however, if in the future there are advances in science or technology that would not cause an adverse effect on either water quality and or quantity of our water resources, it may be considered, if it is in the public interest to do so."
Catherine O'Brien, Chair of the Coalition for the Protection of PEI Water said they were surprised and disappointed considering the exemplary consultation process overall. She said "what's so disappointing is that everything else has been above board; the bottling ban, the consultations for regulations, there are things they did listen to us about. According to their chart on the website that shows what people asked for, fracking was one of the biggest concerns that people brought up."
She explained that they asked an environmental lawyer to clarify some of the language of the proposed legislation at which point it became clear that the ban on fracking was not absolute. She says that so many people asked for the ban that to give it to them and have a clause that allows it would be an insult to Islanders, adding "I'm hoping that theres enough pressure to overturn the clauses in the ban on fracking."
She said they expect the P.E.I. Legislature to get to the section on fracking early next week which would give an opportunity to the opposition and third party to propose amendments. She said "the Coalition for the Protection of PEI Water has requested that part be removed. We sent an email to all MLA's before getting into the second reading, asking them to remove the clauses and we have some traction with the opposition and third party."
The Water Act will impose harsher fines for polluters raising the minimum fine for an individual to $1000 and $10 000 for a corporation. Additionally, the court can choose to further penalize offenders through such means as ordering the offender to perform community service, make a donation to an environmental organization or give a scholarship to a student taking studies related to water or the environment. The Act also includes a provision that requires public input to make any new regulations or amendments that are considered substantial.
The proposed legislation addresses the increasing levels of nitrate found in drinking water, lakes and rivers due to agricultural chemicals and manure. The Report of the Commission in Nitrates in Groundwater found that 6% of private wells exceeded the 10mg/L guideline in 2007. The Act will encompass the recommendations found in the Report of the Commission in Nitrates in Groundwater, establish limits for nutrient loading, and identify and put in action remedial efforts for watersheds with high levels of nitrate.
Another source of criticism comes from the fact that the Water Act will ban the export of P.E.I water with the only exceptions being for humanitarian purposes or for use during transport of humans or animals. In the meantime, the government has halted all water exportation projects including a local entrepreneur's plans to launch a new bottled water company, Pure Island Waters, out of Brookvale.
In 2018, more public consultations will be held and the studies on the impacts of high-capacity wells released before the Water Act can pass into law.
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