Appeal of Water Taking Permit at Leitrim Settled
On March 23, 2010, the Environmental Review Tribunal accepted a settlement that had been reached between the developers of Findlay Creek Village and the Appellants (the Greenspace Alliance and Sierra Club Canada) acting on behalf of the Friends of Leitrim Wetland. In July 2009, the Tribunal had granted leave to appeal a 10-year Permit To Take Water on three narrow grounds. Ever since, Ecojustice at uOttawa, led by its Director, Linda McCaffrey, and a dedicated core of the Friends and their advisers have been hard at work to make the most of what could be accomplished under the circumstances.

A Settlement-in-principle outlining the key elements of the agreement was put before a joint meeting of the Friends and the Boards of the Greenspace Alliance (as well as the Executive Director of the Sierra Club) on December 1. Following the signing of that agreement, Drs. Fred Michel and Clarke Topp were given access to borehole and other data in order to resolve three outstanding questions. Their report was delivered in February.

The final settlement modifies parts of the original Permit To Take Water as well as the accompanying Monitoring Program in the following ways:

• There is now a specific definition of ‘potential adverse impact’ that comes in play during periods when no water pumping is taking place. The definition refers to ‘trigger’ water elevation levels in 14 boreholes, and changes in oxygen levels, temperatures and suspended solids in Findlay Creek.
• The Appellants will attempt to procure the opinion of a wetland biologist on the feasibility of informing the determination of ‘seasonally safe water levels’ for the 14 boreholes. (The Michel/Topp report made a preliminary determination.) If the concept is validated, then the Appellants will ask the Ontario Ministry of the Environment to substitute ‘seasonally safe water levels’ for ‘trigger levels’ in the definition of ‘potential adverse impact’.
• When an adverse impact is observed and is determined to stem from the development, the developer must submit proposed mitigation measures to the Ministry. The Appellants will have the right to comment on these proposals.
• During periods of pumping, when weekly monitoring of the borehole water levels is in effect, if the rate of decline is such that the ‘trigger’ level could be reached within the week, then the frequency of data collection and analysis will increase.
• Five peat measurements posts will be installed in the wetland, at locations specified by Albert Dugal, to measure peat wastage that would result from lower water levels in the wetland.
• Two areas where Albert had observed rare and unusual plants will be added to the program for vegetation monitoring.
• There will be a site visit involving Albert, to inspect the state of the plugs of the 1989 ditch through the wetland.
• Additional boreholes will be installed at the edge of the wetland, opposite the Southeast sector; their water levels will be monitored for a year to establish trigger levels and before pumping for the laying of pipes and other infrastructure in that sector can begin.
• The Ministry has undertaken to ensure that the Annual Reports required under the Permit and Monitoring Program are made public.

One of the last strenuous skirmishes involved the sharing of data. Drs. Michel and Topp had indicated in their report that they could do a better job of analyzing the borehole data if they were given more detailed information about the location and rate of pumping, as well as where the discharges took place. The developer refused to share these data. The Ministry has now agreed to provide us with the data in so far as they are available on a data base they have – likely from 2006 onward; its position is that these data are in the public domain.

Here are the documents related to the settlement of the Appeal:

• Cover letter outlining the permitted grounds for appeal and key elements of the settlement (6 pages)
• Permit To Take Water (with tracked changes) (15 pages)
• Monitoring Program (with tracked changes) (10 pages)
• Figure MP-1 – Revised [455 KB], Groundwater and Surface Water Monitoring Components
• Figure MP-2 – Revised [313 KB], PSW Vegetation Monitoring Components
• Letter from the Appellants withdrawing the Appeal (2 pages)
• Report by Drs. Fred Michel and G. Clarke Topp, responding to three outstanding questions, February 2010 (6 pages)
• ERT Decision & Order issued 22 April 2010 (3.43 MB)
• ERT Decision, first 9 pages only (58 KB) – pp. 10-35 are included among the documents above
• The EBR posting (#010-4670) about the settlement followed more than a year later, on June 23, 2011.

Final Comments

While this settlement is a victory of sorts, the fact remains that because of losses on technicalities at the Ontario Municipal Board and at a Judicial Review, we were never able to present our substantive case to these decision-making bodies. Furthermore, the denial of our core grounds for an appeal to the Environmental Review Tribunal did not allow us to effectively challenge the 10-year water taking permit for the developer.

With this end to the litigation, a new era has hopefully arrived, which should see attempts to work constructively with the developer, South Nation Conservation and the Ministries for the preservation of this most precious of Ottawa area wetlands. As agreed on December 1, Joseph Potvin and Sol Shuster will visit the principals at Tartan in an effort to start this new era on the right foot.

The Future

Development of the Southeast sector, where Findlay Creek exits the wetland to the stormwater pond, needs to be closely monitored, as does any move to revive development of the so-called Remer lands at the South end of the wetland.

Rehabilitation of the wetland should now feature high on the Friends’ agenda. A pot of $200 per house sold is accumulating in South Nation’s accounts that should eventually amount to about $400,000. It should be put to good use and we could have much influence in seeing that happen.

We are most grateful to Linda McCaffrey and the legal team at EcoJustice, and to Fred Michel, Clarke Topp and Albert Dugal, for their hard work; and to John Bennett, Executive Director of Sierra Club Canada, Ken McRae and all the Friends of Leitrim Wetland and members of the Boards of the Greenspace Alliance for their ongoing support.

Erwin Dreessen & Sol Shuster
26 March 2010