The recent public meetings on proposed regulations for the Water Act asked as many questions as they answered.
Rather than presentations followed by audience comments, there were a series of stations with information posters, and proposed policies. People were given a sheet of blue dots and asked to paste them on agree, disagree, or neutral.
If popularity determines policies then expect the moratorium on new high-capacity wells in agriculture to continue, but there’s a more difficult decision facing Dennis King’s Conservatives - how to regulate the 20 or so irrigation ponds, most constructed over the last couple of years. This will present difficult legal and political choices for government.
I’ve seen irrigation ponds and dugouts on farms from western Canada to the Caribbean, and I’ve always thought they were a useful way to irrigate crops, filling them up during a rainy season, or when the water table is high in the spring, and then drawing them down as needed during the growing season. They’ve clearly garnered a more sinister reputation here over the last two years, that they’re just a way for large well capitalized farming operations to get around the 18 year moratorium on new irrigation wells.
In May of 2017 the former Liberal government tried to prevent this by publishing recommended practices for irrigation ponds: one new low capacity (domestic) well per pond, one well per property, and properties could not be subdivided. These were not enforceable regulations at the time or now, and there are pond owners who ignored them.
Two questions in the public survey on the regulations show the dilemma for the current government (interestingly, these two questions are separated in the survey despite being directly related).
The first asks if multiple low capacity wells operating together should be treated as high capacity wells (currently illegal). Given that the bottom line is how much water is being pumped from a local aquifer, not how many wells are in use, the obvious answer is yes.
The following question is more challenging: “Do you think the existing legally constructed multiple low capacity wells that supply holding ponds should be grandfathered in? They’re legally constructed because a permit hasn’t been needed to drill a low capacity well. It’s only when they’re linked together that this question needs to be asked.
Farmers can spend $200,000 or more to construct a pond. It’s only a useful asset if it has water in it, and some obviously feel a single low capacity well is inadequate. I know some pond owners have purchased adjacent properties in order to drill additional wells (this would meet the recommended practice outlined earlier), and pond owners are allowed to use existing high capacity wells to fill ponds.
I think government should refuse to grandfather in these multiple wells. If the previous Liberal government had said nothing about how these ponds could be filled that would be one thing. However, the “recommended practices” were very clear, and followed up by previous Environment Minister Robert Mitchell in the legislature:
“Any wells that are being drilled in the future will need a permit, but those that are in existence will also need a permit,” Mitchell said. “So as far as skirting any of the laws or policies that will be coming forward, that would not be possible.”
This was a response to questions from the very people who are cabinet ministers now.
I’ve no doubt if the existing 'legal' wells are not grandfathered in, there will be lawsuits or judicial reviews to try to defend them. The fact the government is even asking the question knowing how so many will respond says it’s trying to warn citizens what to expect.
The other quandary is if the answer to the first question is yes, multiple low capacity wells will each be considered high-capacity wells, then what happens to the moratorium if they’re grandfathered in? Does it end?
As I’ve written before I find it hard to justify only preventing farmers from drilling high capacity wells, when everyone else is free to apply, but end the moratorium for the right reasons, not this way. You don’t want to start a new regime of regulations by making an exception on the one issue everyone is paying attention to.
And maybe government should have added one more question to the survey: Should the moratorium only apply to potato growers producing for the french fry market? That wouldn’t be fair or enforceable but gets closer to what so many in the general public really want.
The Water Act and the developing regulations are something we should feel proud of. So many people and organizations worked hard to clearly call for not just rules and regulations, but values that all Islanders can support.
Slowly people are coming to believe we’re blessed with lots of water but that shouldn’t keep us from conserving, and protecting those parts of the province vulnerable to rising oceans, saltwater intrusion, and heavy draws already from existing demand.
We’re moving from decades of saying yes to virtually everything, to requiring permits for all but new household wells, and tangible proof new demand won’t harm existing users. It may not be the strict precautionary principle at work, but it’s closer than we’ve ever been.