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28th November 2023
Comox Valley Regional District headed to court over water bottling decision

Record staff
Nov 17, 2023 5:30 AM

Bruce Gibbons of Merville Water Guardians is taking the Comox Valley Regional District (CVRD) to court in hopes of reversing a decision that will allow a local resident to extract up to 10,000 litres of fresh water per day from the regional aquifer.

In 2017, Comox Valley resident Scott MacKenzie received a conditional licence from the province to extract water for bottling. While this was denied, in March 2023, an amended application from MacKenzie for “waterworks (water sales and water delivery),” came before the Comox Valley Regional District. This time, the CVRD made a decision that water treatment, storage, and transportation could be classified as a home occupation use under CVRD bylaws, which opened the door for MacKenzie’s amended water extraction application to be approved.

In September, Gibbons filed a Petition for Judicial Review in the Supreme Court of British Columbia, seeking a judgment on this amended application and the CVRD’s support of it. The review is set to be heard during the week of Jan. 22, 2024 in Courtenay.

“I think they [the CVRD] blatantly contravened their own bylaws by allowing bulk water storage as a home occupation business,” says Gibbons. However, he adds, “the CVRD was unwilling to reconsider their decision.”

In an emailed statement to the Record, MacKenzie pointed out that the precedent was there already, and it was only after he pointed out the existing permit for a single-use bottling business in Fanny Bay that the CVRD was forced to change its original ruling.

“Before we even applied for a water license from the Ministry, RD planners attended to my request for clarification at the planning desk,” said MacKenzie. “We went over my RU-8 Zoning together and determined that home occupation was indeed a permitted use on my property. With this information, we moved forward with the application for the water extraction permit, provided the clarification to the ministry around home occupations and went directly to (Island Health) to discuss our intentions.”

It was at that time that MacKenzie ran into a roadblock.

“On our very first meeting with the (CVRD) manager of planning and development services, the planner refused a signed and dated application for that home occupation citing it not being permitted as a home occupation and that the province requested our rezoning. This is the basis for our grievance with the RD.

“We notified then-CAO Russel Dyson that there was already a home occupation water bottling operation in the CVRD. Mr Dyson denied this, claimed staff reviewed the files and determined that there were no permits issued for this business and that if it did indeed exist, I should disclose the address and owner.”

MacKenzie provided the information to the CVRD through a bylaw complaint (File: 4020/23-A-088), proving the existence of the Fanny Bay business.

“The only legally non-conforming business exempted in the water bottling prohibition listed in the zoning amendment is a single-use water bottling factory in Fanny Bay - and this ‘mystery’ business was not entered into the zoning bylaw amendment as legally non-conforming.”

That discovery led MacKenzie to his own concerns about the CVRD.

“Has the RD manipulated their records to satisfy the bylaw complaint or did the RD wilfully hinder us as applicants for a home occupation?

“We are still looking for answers and accountability because our right to operate a water business is now going before the Supreme Court.”

As for the court case, after engaging Noah Ross, a lawyer with a particular interest in environmental issues, Gibbons connected with the West Coast Environmental Law Environmental Dispute Resolution Fund (EDRF), which is providing financial support to help defray the costs of his legal challenge.

While Gibbons’ petition revolves around a specific aquifer in the Comox Valley, it could have province-wide implications.

“Municipalities are entrusted with the ability and responsibility to regulate freshwater use,” explained Ross. “Mr. Gibbons’ application can create a precedent which will pressure the CVRD and other municipalities to interpret existing bylaws conservatively when it comes to proposed industrial water uses.”

MacKenzie said he looks forward to the end of debate, so he can start providing the Comox Valley with drinking water alternatives.

“Overall, the experience has been trying at times but we will always stand by our right to supply premium drinking water from the Comox Valley’s highest-producing artesian spring to the local community from our self-serve U-fill station or through bulk deliveries available to people that don’t want to drink city water.”

He maintained that the business will also serve a peripheral benefit to homeowners in the area.

“We also will be making our 20,000 litres storage to the Merville Fire Hall in times of need as we always promised.”

When contacted by the Record, CVRD chief administrative officer James Warren said he was not at liberty to comment on the issue.

“The matter of the Merville water licence is a matter that’s before the courts, so the CVRD doesn’t have any further public statements to make at this time,” said Warren.

-With files from Jen Groundwater