A Superior Court judge rejected a bid by York Region lawyers to quash a private prosecution on Friday.

The court action alleges construction of the Big Pipe sewer link is killing fish habitat and draining aquifers.

In his private prosecution, environmentalist Jim Robb is alleging that construction of the Big Pipe is critically damaging an important fish-spawning creek that flows into Rouge Park.

When finished, the Big Pipe will move up to 740 million litres of raw sewage daily from communities across York and Durham to treatment facilities on Lake Ontario in Pickering.

"I do not find the summons was issued without jurisdiction and contrary to the law," Mr. Justice David Logan said in his written judgment.

York Region lawyer Doug Hamilton told Logan during the one-day hearing last week that a Newmarket justice of the peace wrongly excluded the region from a pre-inquiry hearing where a decision was made on whether to proceed to trial.

But lawyer Peng Fu, with the law firm Gilbert's LLP and acting for Robb, argued that as a potential accused, the region had no right to participate in a hearing at such an early stage.

In fact, to allow an accused such access before charges are laid is something "very rarely granted" by the courts, Fu said.

David Donnelly, a lawyer with Environmental Defence Canada, which is bankrolling the case, said Logan recognized that an important legal principle was at stake in excluding an accused from hearings before charges are laid.

York spokesperson Patrick Casey said the region's lawyers will defend the charges in court.

Donnelly said construction of the sewer link has caused Robinson Creek to virtually dry up, killing fish habitat.

This places the region, which is building the Big Pipe, in direct contravention of the federal Fisheries Act, claims the private prosecution, which goes to court Feb. 11.

Under the conditions of a provincially issued water-taking permit, the region has been permitted to pump 27 billion litres of water from a giant underground aquifer.