Date of Report and Recommendations - March 6, 1996
Date of Pre-Hearing Meeting - February 21, 1996
IN THE MATTER OF Sections 84, 86, 87, 91, 92 and 93 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);
IN THE MATTER OF an appeal filed by Mrs. Gwen A. McKendrick, with respect to Approval #95-MUN-229 issued by the Director of Air and Water Approvals, Alberta Environmental Protection to Foothills Water Utility Corporation, on September 5, 1995.
Cite as: McKendrick v. Director of Air and Water Approvals Division, Alberta Environmental Protection
PRE-HEARING MEETING BEFORE:
Dr. William A. Tilleman, Chair
Appellant: Mrs. Gwen A. McKendrick
Also in attendance with the Appellant: Mrs. Anne McNabb;
Mr. Gordon Lackey, Foothills Water Utility Corp., Patricia Quinton-Campbell (counsel), Dieter Foessel (Stanley Associates Engineering Ltd.);
Mr. Stan Schwartzenberger, representing the Town of Cochrane;
Mr. Vern Hart (Municipal Planner), Mr. Kelvin Dykema (Supervisor of Development Services), Rob Strom (Utilities Coordinator) representing the M.D. of Rocky View No. 44; and
Mr. William McDonald, Environmental Law Section, Alberta Justice, representing the Director, Air and Water Approvals Division, Alberta Environmental Protection, Alan Pentney (Regional Engineer), and articling student, Antonella Soria.
On September 26, 1995, Mr. Grant McNabb, agent for Mrs. Gwen A. McKendrick (the Appellant) filed a notice of objection with the Environmental Appeal Board regarding Approval No. 95-MUN-229 issued to Foothills Water Utility Corporation (Foothills) for a waterworks system. The Approval was issued on September 5, 1995, by Mr. David Spink, Director, Air and Water Approvals Division, Alberta Envirionmental Protection, granting the construction and operation of a waterworks system for Foothills with specified terms, conditions, and requirements for the activity.
On October 18, 1995, another Notice of Appeal was filed with the Board by Mr. Jack H. and Mrs. Betty Bancroft, landowners in Cochrane. They were concerned that approval had been given to Foothills to service Phase 1 land, of which they owned a significant portion.
On October 19, 1995, a Notice of Appeal was received from Mr. Marvin Laye, another resident of Cochrane. Mr. Laye was objecting to the route of the pipeline, concerned for example, that there were no alternative routes considered.
The Board wrote a letter to the Director of Air and Water Approvals, Alberta Environmental Protection, on October 23, 1995, in order to determine whether the latter two appeals had been validly filed. On October 23, 1995, the Board notified Mr. Gordon Lackey (Foothills) that additional appeals had been filed.
The Board received written notification from Mr. and Mrs. J.H. Bancroft dated October 25, 1995, indicating that they wished to withdraw their objection to Approval No. 95-MUN-229 and that they generally supported the approval. On November 9, 1995, the Board received correspondence from Mr. Marvin Laye also withdrawing his objection. The Board responded on November 16, 1995 to both Appellants, under separate letterheads, that it would be discontinuing its proceedings and closing its file with respect to the Bancroft and Laye notices of appeal.
In the Notice of Hearing which the Board published on January 16, 1996, an opportunity was provided for persons wishing to make a representation before the Board, to do so through written request by February 5, 1996. Following the publication, the Board received and approved party status requests from the Town of Cochrane, the Municipal District of Rocky View No. 44 and Foothills.
The Board wrote to all parties on February 9, 1996, advising that it would be conducting a pre-hearing meeting on February 21, 1996. The Board also advised that if the meeting did not result in the resolution of the issues in McKendrick's appeal, the Board would be requiring written submissions in preparation for a full hearing.(1)
THE PRE-HEARING MEETING
The pre-hearing meeting was held on February 21, 1996, in Cochrane. According to the Board's standard practice, the Board called the pre-hearing in an attempt to mediate or to facilitate the resolution of this appeal or, failing that, to make arrangements for the oral hearing. The Board invited several representatives from each party to participate in this pre-hearing meeting and the attendance at this meeting was as follows:
- Mrs. Gwen A. McKendrick; also in attendance with the Appellant: Mrs. Anne McNabb;
- Mr. Gordon Lackey, Foothills Water Utility Corporation; Patricia Quinton-Campbell (counsel), Dieter Foessel (Stanley Associates Engineering Ltd.);
- Mr. Stan Schwartzenberger, representing the Town of Cochrane;
- Mr. Vern Hart (Municipal Planner), Mr. Kelvin Dykema (Supervisor of Development Services), Rob Strom (Utilities Coordinator) representing the M.D. of Rocky View No. 44, ; and
- Mr. William McDonald, Environmental Law Section, Alberta Justice, representing the Director, Air and Water Approvals Division, Alberta Environmental Protection, Alan Pentney (Regional Engineer), and Ms. Antonella Soria (articling student).
In conducting the pre-hearing, Dr. Tilleman provided a review of the appeal and mediation process and explained the purpose of the pre-hearing meeting. He then circulated copies of "Participants' Agreement to Mediate". In reviewing the document, representatives from the M.D. of Rocky View and that of the Town of Cochrane, reiterated that in light of potential future planning obligations, they could not enter into any agreements.(2) However, all parties presented a willingness to enter into mediation and the pre-hearing continued, with the cooperation of the M.D. of Rocky View and the Town of Cochrane.
The Appellant expressed her concerns that her family did not want to stop any area from receiving water but that they wished to have an alternative route used. The approved routing created a new utility corridor, which to the appellant would create expectations that access to future developments would follow the same route. The Appellant expressed her environmental concern over the impact that a new corridor would have on the existing property, and made it clear that participation in a mediation agreement was "without prejudice" to eventually make her views known to the M.D. of Rocky View and the Town of Cochrane.
Representatives from Foothills expressed a willingness to work with the Appellant in order to address any concerns. They explained the history of the pipeline, specifically outlining the pipeline routing and the fact that the main storage and chlorination centre for these facilities would be placed on land owned by Mr. Lackey. According to Foothills, the pipeline is intended to provide clean water to future residents. Foothills' present application is that they provide a water supply line that would cross Horse Creek in the road allowance.
Representatives from the M.D. of Rocky View and the Town of Cochrane explained the local government planning and approval process and the extent to which both jurisdictions can interact for approvals such as this one.
Following the discussion of several terms and conditions of mediation, the parties agreed to the following resolution of this appeal (see page 7 of this report).(3)
RESOLUTION OF APPEAL No. 95-019 REGARDING APPROVAL No. 95-MUN-229.
All parties to the appeal have agreed to the following terms and conditions:
1. That the approval in no way prejudices the McKendrick family from presenting their views and seeking an analysis of alternative sites/routes or anything else, including environmental concerns within the jurisdiction of the Municipal District of Rocky View No. 44, as submissions to the Municipal District of Rocky View or any other applicable jurisdiction for approval.
2. That Foothills Water Utility Corp. shall install a leak detection system together with plastic isolation valves and/or cathodic protection for metal valves.
3. That any two members of the McKendrick family who are not less than 18 years of age and who are of the opinion that an offence has been committed may apply to the Director to have an investigation of the alleged offence conducted.
4. That the geotechnical information to be submitted to the Director of Air and Water Approvals pursuant to section 2.1.1. (c) must also be submitted concurrently to G.A. McKendrick Ranches Ltd./Mrs. Gwen A. McKendrick.
5. THAT the Appellant, Mrs. Gwen A. McKendrick, agrees to withdraw the Notice of Objection.
RESOLUTION AGREED TO BY:
"Gwen A. McKendrick" Date: Feb. 21/96
Mrs. Gwen A. McKendrick
"Alan Petney" Date: Feb. 21/96
For the Director of Environmental Protection
"Gordon Lackey" Date: Feb. 21/96
Foothills Water Utility Corp.
represented Mr. Gordon Lackey, President
The Board recommends that the Minister of Environmental Protection confirm the decision of the Director of Air and Water Approvals in Approval No. 95-MUN-229, subject to the Resolution contained herein.
Further, with respect to section 92(2) and 93 of the Environmental Protection and Enhancement Act, the Board recommends that copies of this Report and Recommendations(4) and of any decision by the Minister be sent to the following parties:
- Mrs. Gwen A. McKendrick;
- Mr. Gordon Lackey, Foothills Water Utility Corporation;
- Mr. Stan Schwartzenberger, representing the Town of Cochrane;
- Mr. Vern Hart, representing the M.D. of Rocky View No. 44; and
- Mr. William McDonald, Environmental Law Section, Alberta Justice, representing the Director, Air and Water Approvals Division, Alberta Environmental Protection.
Signed and Dated March 6, 1996, at Edmonton, Alberta.
Dr. William A. Tilleman, Chair
1. This requirement is found in section 10 of the Environmental Appeal Board Regulation (Alta. Reg. 114/93).
2. The Town of Cochrane and the Municipal District of Rocky View No. 44 had earlier advised the Board by letters dated February 16, 1996, and February 15, 1996, respectively, that they would attend the mediation but would not participate fully if the intent would be to bind their respective councils. The Town of Cochrane noted in their correspondence that "Representatives from the Town of Cochrane will be attending the pre-hearing, however, staff's presence will be for information purposes only, and not with authorization to negotiate or bind the Town of Cochrane. Correspondence from the MD of Rocky View No. 44 was much the same, stating "Representatives of the M.D. of Rocky View will be attending the pre-hearing, however, in accordance with Council's motion, Staff's presence will be for information purposes only and not with authorization to negotiate or bind the M.D. of Rocky View."
3. The M.D. of Rocky View and Town of Cochrane representatives stayed and participated until resolution was reached. At that point in the pre-hearing they left, in light of their respective Council's potential future obligations in the planning process concerning Foothills.
4. As this appeal concluded by resolution of the parties, a copy of this report is being sent to each party pursuant to section 12 of Alta. Reg. 114/93.
I, Ty Lund, Minister of Environmental Protection, agree with the Recommendations of the Environmental Appeal Board and order that they be implemented.
Dated at Edmonton this 11th day of March, 1996.
Signed, Honourable Ty Lund
Minister of Environmental Protection