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Groundwater Victory in Ontario
By: Peggy Hutchison
Grey Association for Better Planning


A wetland downstream of Artemesia Waters’ proposed water-taking facility. Credit Carl Anders

Grey County is located on the southern shore of Georgian Bay extending halfway up the Bruce Peninsula in Ontario, Canada. Rising at the center of the county and flowing to Lake Huron, Georgian Bay, and Lake Erie are many spring-fed, cold-water streams. These spring-fed streams have attracted companies interested in bottling and selling the water.

Under the Ontario Water Resources Act, several companies have obtained Permits To Take Water (PTTW) from Grey County for commercial sale. Water taking appears to be a growth industry with no bounds, which has sounded the alarm among environmentally concerned citizens in Grey County. Issues of concern are water contamination, destruction of Class I wetland habitat, degradation of forests and associated wildlife habitat, and the destruction of prime agricultural land.

The Grey Association for Better Planning (GABP), an association of community-based groups dedicated to promoting good land use planning in Grey County and its municipalities, formed in 1989 in response to these concerns. Our mission is to preserve Grey County’s water supply by encouraging better land-use planning and better adherence to existing land-use plans. Our focus is on educating group members and the public, including municipal, county and provincial decision-makers, on the benefits of a land-use plan that balances the needs of the community with the need to protect the environment.

From the beginning GABP has worked to educate its members as well as the public on the issues of surface water protection and groundwater protection. These efforts in education helped build support for new policies aimed at protecting groundwater and regulating the environmental impacts of commercial water taking: the Provincial Policy Statement was legislated in 1995 and the Grey County Official Plan was adopted in 1999 after being approved by the Ministry of Municipal Affairs and the Ontario Municipal Board (OMB).

In December of 1999 Artemesia Waters Ltd., approached the Township of Artemesia (now the Municipality of Grey Highlands), with a proposal to build a water extraction, loading, and storage facility, and a bottling plant, in an area of the township with agricultural zoning. Artemesia Water’s proposed project ran counter to the Official Plan, which had just been adopted.

The proposed water storage facility would take up to 483,840 liters of water per day, causing concerns that the area’s water supply, a nearby provincially significant wetland, and feeder streams for the Rocky Saugeen River may be put at risk. Local citizens worked to inform the community of the proposal, and approached township Council with a petition, containing 2,500 names, opposing the water-taking proposal. Despite local zoning laws and the protests of residents, the Ministry of the Environment granted a PTTW allowing Artemesia Waters to take up to 176 million liters of groundwater per year directly from the headwaters of the Rocky Saugeen River.

To clear the way for their operations Artemesia Waters requested that the county and township change their zoning by-laws to allow not only the extraction of the ground water but also the loading of the water onto transport trucks. The municipality refused to make this change as it contradicted the recently adopted Official Plan. When the request to change the zoning ordinance from agricultural to rural was refused, Artemesia Waters appealed the decision to the OMB. GABP requested to be a party to the hearing, joining with other local groups in opposition to Artemesia Waters’ proposal.

The OMB looked at two main questions in their decision on the appeal:
1) Is "water taking" a "use of land" within the meaning of the Planning Act and thus capable of being prohibited by the Artemesia Township Zoning By-Law?
2) Does the existence of a PTTW under the Ontario Water Resources Act override the OMB/Municipality obligations under the Planning Act?
Despite the arguments of a raft of legal counsel, the OMB ruled that water taking was not a land use and therefore not within the jurisdiction of the municipality and that the existence of a PTTW does override Municipality obligations under the Planning Act. The OMB requested that the Official Plan of Grey County be amended to allow for the zoning change.

GABP immediately sought legal counsel as we prepared to appeal the OMB’s decision. Our legal counsel estimated it would cost about $90,000 (CND) to prepare and present the appeal, which was a rude awakening. In the past we have collected annual dues from members to cover the costs of newsletters, some correspondence, workshops, and a mailbox, but to this point there had never been any need for fundraising.

Faced with this serious financial and legal undertaking we made an appeal to the community at large and were pleased to receive generous support. GABP members began an organized fundraising campaign and sought grants from supportive organizations.

We received a $3,000 (US) grant from GLAHNF to help with website construction costs and fundraising efforts. The GLAHNF grant helped to boost our confidence as we approached others to secure the necessary funding for the appeal.

In October 2002 the Divisional Court of the Ontario Superior Court of Justice listened to testimony in our appeal. One month later three judges unanimously agreed with GABP that water taking was a land use under the Planning Act and that the OMB had erred in dismissing the issue of water taking. The court found that extracting water from an aquifer impacted not only the land used for the extraction, but other lands as well, and ordered the OMB to carry out a new hearing looking at the taking of groundwater as a land use. This was a great victory for GABP and for the environment, as it affirmed municipal authority over the use of water.

The matter has not ended, however. In December 2002, Artemesia Waters Ltd. again applied to the Court of Appeal to overturn the Divisional Court’s decision. Leave was granted, with no reasons given and the Court of Appeal has set a hearing date of December 10, 2003. We are continuing with our fundraising efforts for this up-coming case. Our hope is that the Court of Appeal will uphold the Divisional Court’s Decision, and that we will not have to take this case to the Supreme Court of Canada.

With 2003 as the International Year of Freshwater, GABP cannot help but feel pride in being part of the global drive to protect the world’s water. From a rocky start with much heated opposition, to working hand in hand with local governments and associations, as well as reaching across the Great Lakes to our neighbors in the U.S., we have stayed the course. GABP has learned a lot, been effective in educating citizens both locally and provincially, and we are continuing to work for a better future for freshwater.

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