envirolaw: Will Environmental Tribunal Enforce Public Trust in Water?

Will Environmental Tribunal Enforce Public Trust In Water?
by Dianne Saxe, Saxe Law Office, May 22 2013

via mondaq.com

Ecojustice has intervened in an appeal before Ontario’s Environmental Review Tribunal, hoping that they will enforce a public trust in water resources.

Nestle Canada Inc. (“Nestle”) runs Ontario’s largest water bottling operation. They pump groundwater from two different sets of wells in the Guelph area. Each well requires a Permit to Take Water (“PTTW”) from the Ministry of Environment (“MOE”) in order to operate.

Nestle recently had the PTTW for one of their wells renewed by the Ministry. The renewed permit contains new conditions that require reduced water takings during periods of summer drought1. Nestle appealed these conditions to the Environmental Review Tribunal (“ERT”).

Ecojustice intervened in the appeal on behalf of public interest groups and/or local citizens with a long history of opposing Nestle’s bottled water operations in the area – the Wellington Water Watchers (“WWW”) and the Council of Canadians (“CoC”).

While the Ministry of the Environment is the main party defending the conditions, they have agreed to a settlement of the appeal. Ecojustice is asking the ERT to continue the hearing, in order to prevent any settlement agreement from weakening the anti-drought conditions. Ecojustice argues that the principles of the public trust doctrine (“PTD”) provide an additional basis for upholding the original conditions.

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Personal liability for water treatment plants in effect in Ontario

Via Canadian Consulting Engineer, 2013-01-07

New rules came into effect in Ontario on December 31 that make those with decision-making authority over drinking water systems personally liable for their safe operation.

This “Statutory Standard of Care” came into force as Section 19, part of the Safe Drinking Water Act.

The decision-making authorities — which include municipal councillors as well as their third-party contractors — have to ensure that their plant is operated in accordance with regulations, is appropriately staffed and supervised, and that it meets all the sampling, testing and reporting requirements.

In a guide for municipal councillors: “Taking Care of Your Drinking Water,” the Ontario Ministry of the Environment points out that municipal councillors are still personally liable for their water systems, “even if there is an agreement to delegate the operations of the drinking water system to someone else” (page 7).

The guide points out that those with decision-making authority over municipal drinking water systems have “to exercise the level of care, diligence and skill … that a reasonably prudent person would be expected to exercise in a similar situation and that they exercise this due diligence honestly, competently and with integrity.”

The guide says the legal responsibility applies to not only the municipality who owns the system, but “every person who oversees the accredited operating authority or exercises decision-making authority over the system — potentially including but not limited to members of municipal councils. If the municipal system is owned by a corporation rather than a municipality, every officer and director of the corporation has the legal responsibility to ensure the plant is performing up to par.

The Ministry is advising municipal councillors to “be informed, ask questions, get answers.” Training courses for municipal officers are available at the Walkerton Clean Water Centre.

To see the guide, click here.

TorStar: Ontario only province to get an ‘A’ for drinking water: Ecojustice report

via: Toronto Star Published Nov 15 2011
Colin Perkel for The Canadian Press

TORONTO—More than a decade after the Walkerton disaster, much of Canada’s tap water remains at risk from contamination despite initial progress in front-line monitoring and treatment, a new report concludes.

In its third such report released Tuesday, the environmental group Ecojustice warns that while some jurisdictions have stepped up water protection efforts in the past five years, most have not done enough.

In 2000, seven people died and 2,500 fell ill in Walkerton, Ont., when the town’s poorly monitored drinking water was contaminated with E. coli from farm runoff.

The tragedy prompted most provinces to review and revamp their drinking water laws with mixed results — but that burst of enthusiasm has faded in recent years, according to the report.

“In many places, the health of Canadians is still at risk,” the report concludes.

“The lack of recent progress also seems to indicate that the impetus for improved water protection, spurred by events like Walkerton, is on the wane.”

The report called “Waterproof 3” finds only Ontario among the provinces worthy of an A grade for its water protection efforts, while Alberta lags with a C-.

The federal government gets an F for a record that continues to worsen, the report states.

In particular, the report criticizes Ottawa for a lack of progress on the legislative front, poor water quality for First Nations, and budget cuts it says will hurt Environment Canada’s ability to monitor the situation.

“The federal government is failing in almost every aspect of water protection, even though it should be setting rigorous standards,” the report says.

For the first time, the report has expanded to include source-water protection efforts — the idea that the best way to provide safe tap water is to ensure the water does not get contaminated in the first place.

The findings are not encouraging.

“Full-fledged source-water protection — a critical first step in achieving safe drinking water systems — has been implemented to some degree in only seven of 13 provinces and territories,” the report states.

“(It) is notably lacking in industry-heavy areas where the risk of contamination is high.”







Read more

For more information, please contact:

Kimberly Shearon, communications coordinator | Ecojustice
604.685.5618 x 242 | 778.988.1530

Sutton Eaves, communications director | Ecojustice

G&M: B.C. natives ask court to force Alcan to release water into Nechako River

VANCOUVER— Globe and Mail, Sep. 29, 2011

Two native bands in northern British Columbia are going to court in an effort to force Rio Tinto Alcan Inc. to release more water into the Nechako River, where sturgeon and salmon are suffering because of altered flows.

In a notice of a civil claim filed Thursday in the B.C. Supreme Court, the Saik’uz and Stellate’en bands state that the Kenney Dam has damaged the environment by diverting water into a massive reservoir system that powers Alcan’s aluminum smelter, in Kitimat.

The bands claim the dam, which was built in 1952 about 150 kilometres southwest of Prince George, has caused a decline in salmon, trout and sturgeon stocks, all of which native people have long relied on in traditional fisheries.

It says there has been a loss of spawning habitat, adverse fish impacts from temperature changes to the water, a disruption of natural flows, erosion of riverbanks, sedimentation problems and a loss of beaver, muskrat and other wildlife along the river corridor.

The notice of claim states that white sturgeon in the Nechako are making “gradual progress toward extinction,” because the dam has disrupted their ability to spawn successfully.

David Luggi, chief of the Carrier Sekani Tribal Council and a member of the Stellate’en band, said the Kenney Dam has been an issue for his people for decades, and they have grown tired of waiting for a remedy.

“We’ve worked hard to reach some sort of resolution with Alcan, but it’s just not happening,” Mr. Luggi said shortly after the claim was filed Thursday.

“There have been legal and political skirmishes over the years, all aimed at trying to bring water levels up to help restore sturgeon and to accommodate the migratory fish. But all of that has been to no avail. Nothing has changed. So after 60 years it seems like we are left with only this alternative,” he said.

In 1997, the B.C. government and Alcan agreed to provide $50-million each to build a cold-water release facility at the Kenney Dam that would have partly addressed the complaints about inadequate flows in the Nechako River. In 2005, then-premier Gordon Campbell announced the facility would be built. But nothing ever came of it, and earlier this month an official from the Department of Fisheries testified at the Cohen Commission the proposed facility wasn’t going ahead.

Mr. Luggi said he hopes the court case will force Alcan to work with the bands to come up with a plan to revive the Nechako River, which is a major tributary of the Fraser.

The notice of claim asks the court to issue an injunction restraining Alcan from conducting its operations at the Kenney Dam and ordering the company “to release waters into the Nechako River” in sufficient quantities to abate the damage being done.

After diverting water from the Nechako, drying up the riverbed immediately below Kenney Dam, Rio Tinto Alcan returns some of the flow to the system through the Skins Lake Spillway, 80 kilometres to the west. Most of the water, however, is directed to the Kemano power complex farther to the west, near Kitimat.

Mr. Luggi acknowledged that it would be costly to Alcan if the company was required to release more water into the Nechako, because that water wouldn’t be available to generate power at Kemano.

Bryan Tucker, a spokesman for Rio Tinto Alcan, said in an e-mail the company had not yet been served with the civil claim. “We’ll take the opportunity to examine the claim once we receive it,” he wrote. “But as the matter is before the court we will not comment further.”


TorStar Insight: Lake of shame; Ontario’s Pollution Problem

Published On Fri Jul 8 2011 for Toronto Star

Viagra in the water, fish unfit to eat, environmental standards ignored. Critics say parts of Lake Ontario are ‘as bad as it’s ever been.

Just below the soaring Scarborough Bluffs, 17-month old Piper Clark scoops the fine sand into gloppy pies. Her brother Reed, 4, bravely ventures deeper into the water.

Around them on this hot summer day, bikini-clad girls frolic and tease boys in the waves, while the lifeguard warns them from straying too far out.

Colonies of swallows, warily eyeing the hawks soaring above, cling to the sandy face of the cliff.

Colleen Clark, a nurse, stands watch over her toddlers, her feet in the water, her dress hitched up above her knees.

“Oh sure, I let them go in,” she says, pointing to the green flag indicating the water is safe. “But I wouldn’t let them drink it.”

A few kilometres west of Bluffer’s Park, just below the Gardiner, two adult geese paddle around Keating Channel with their four fluffy goslings

That’s where the Don River spills into Toronto Harbour, spewing sewage as it flows.

It’s also where heavy trucks rumble on their way to the Leslie Spit to dump their loads of asphalt and rusty steel, bricks and rebar — what the city calls “clean fill.”

A boom spreads just beneath the trees where the geese shelter, there to catch the “floatables,” the used condoms, plastic tampon applicators and hypodermic needles that bob among the mini-explosions of methane bubbles.

Unlike Colleen Clark, Mother Goose can’t read the menace in the soupy black water.

Mark Mattson, president of Lake Ontario Waterkeeper, a criminal lawyer turned, appropriately enough, environmental lawyer, surveys the scene and says, “I’ve been investigating the channel for 20 years, and this is as bad as it’s ever been.

“These carp go all over the lake, the birds migrate,” continues Mattson, as one of the geese elegantly dips its beak into the water. “They’re still part of the diet of northern communities. I wouldn’t want to be the hunter who shoots one of these geese and feeds it to his children.”

This, folks, is your water, what comes out of your tap, what you drink, what you bathe in and, if you aren’t lucky enough to have a cottage, what you swim in.

Some 4 1/2 million humans who have made their homes around Lake Ontario depend on this water — as does the wildlife on, in, above and around it.

“It’s our only source of drinking water,” says Mattson. “We’re very fortunate because, unlike so many other cities, Boston, New York, Vancouver, they don’t have their drinking water at the bottom of their street.

“But think about it: if Lake Ontario became undrinkable, if we had a Fukushima disaster at one of Ontario’s 21 reactors, there would be no alternative potable drinking water. We’d have to build a pipeline to Lake Huron or James Bay or something.”

Lake Ontario is the 14th largest lake in the world: 19,529 square kilometres, 1,146 kilometres of shoreline, 244 metres at its deepest.

Read the whole article

Winnipeg Sun to province: Make sewers election issue

Columnists | Opinion | Winnipeg Sun

MONDAY, JUNE 6, 2011

Over two-million litres of untreated sewage was discharged into the Assiniboine River last month over a five-day period.

It was the largest sewage overflow in Winnipeg since the city’s massive sewage spill in 2002.

That’s on top of 17 smaller spills that occurred this year between March and April.

It’s all due to Winnipeg’s outdated combined sewer system, which diverts raw sewage into our rivers every time it rains, during spring runoff and when pipes get clogged, like they did last month.

Despite that, there was nothing in the Selinger government’s master plan released last week to “save Lake Winnipeg” that deals with the city’s combined sewer problem.

In fact, it doesn’t even mention it.

I don’t get that.

On May 20, the city’s 311 service got an e-mail at 2:11 p.m. that reported a raw sewage discharge into Sturgeon Creek near Lonsdale Drive just west of Grace General Hospital.

Unfortunately, the 311 system broke down and raw sewage poured into the creek and river for nearly five days without the city responding to it. You might want to look into this one, Sam.

The wastewater collection branch wasn’t notified until Wednesday May 25 — following a long-weekend — and a crew was eventually dispatched that day.

They found a blockage of grease and rags in the sewer that caused raw sewage to build up and overflow into the creek.

It was a major screw-up — and a lot crap that went into our rivers and lakes.

“Lag time between notification and resolution due to oversight in internal protocol,” the city’s incident report says. “Response process reviewed and will be improved for future similar events.”

Let’s hope so.

But better than that, why doesn’t the provincial government take the lead on this and sit down with the city to hammer out a funding deal that would fix this problem over time?

Read the rest of the article

Dianne Saxe: Fracking, drinking water and regulation

May 2, 2011 via envirolaw

Jessica Ernst has launched a multi million dollar lawsuit against Encana Corporation, the Alberta Energy Resources Conservation Board, and the Alberta government for contamination of her property and drinking water due to Encana’s fracking program.

Encana fractures rock to extract coal bed methane, much as fracking is used to extract natural gas from shale. (In March, after a public hearing, Quebec put a moratorium on shale gas exploration pending a full environmental assessment of the potential damage from fracking.) According to the Statement of Claim, many Albertans depend on drinking water from coal bed aquifers, but Ms. Ernst’s water is now so contaminated that it can be lit on fire.

She is also suing Alberta’s oil and gas regulator, alleging that it not only tolerated illegal behaviour by Encana and failed to protect her, but actively attempted to silence her complaints, and that Alberta Environment showed bad faith in “investigating” those complaints.

The lawsuit, together with the Quebec moratorium, signals the likelihood of stronger environmental regulations of fracking in the pursuit of shale gas or coalbed methane.