The growing pains of updating BC’s water law

Nov 13, 2018

By Gavin MacRae

Watershed Sentinel writer Gavin MacRae examines how well the new Water Sustainability Act is working in the context of a water bottling controversy in Merville

 

BC’s original Water Act was a relic, drafted when Vancouver was still a fledgling city and before Canada’s first airplane took to the skies. It would govern water use in the province for over a century, until in 2016, a long overdue replacement arrived: the Water Sustainability Act (WSA). Conceived after a long period of public consultation, the WSA aims to “address the new challenges of the 21st century, including climate change, population growth and increasing pressure on water resources.”

This may come as surprise to residents of the community of Merville, on Vancouver Island. The hamlet has been roiling since residents learned of a commercial groundwater licence, granted by the Ministry of Forests, Lands, Natural Resource Operations & Rural Development (FLNRORD), to sell water from an aquifer beneath Merville.

The licence was approved without public notification, and against the wishes of K’omoks First Nation and the Comox Valley Regional District (CVRD). Amid public outcry over the ministry decision, the plan was halted when the CVRD denied a rezoning application by the well licence holder that would have allowed the proposed bottling business to process the water at the well site.

Opponents of the proposed business are concerned increased traffic and noise will ruin the bucolic ambiance of the small community, and worry about the effect the business could have on their own wells. Some residents said the business would set a precedent of for-profit extraction of a common resource, squandering precious groundwater when water scarcity from climate change looms.

An unassuming rural lot with a mobile home and a few scattered outbuildings is the epicentre of the controversy

Bruce Gibbons lives down the road from the proposed bottled water business, and is a vocal critic. He said residents were unaware of the licence until the rezoning decision came before the CVRD. After finding out about the well licence “through the neighbourhood grapevine,” Gibbons rallied neighbours to attend the zoning meeting. “We packed the CVRD board room and overflowed into the parking lot, on a Monday morning,” he said.

Since then, Gibbons has launched an unsuccessful appeal against the well licence, formed an advocacy group called the Merville Water Guardians, and had an independent hydro-geology consultant review the technical reports underpinning FLNRORD’s decision to approve the well.

The neighbourhood

An unassuming rural lot with a mobile home and a few scattered outbuildings is the epicentre of the controversy. It is the home of married couple Christopher MacKenzie and Regula Heynck, holders of the well licence.

MacKenzie was visibly frustrated talking about his so-far thwarted plans to operate the water business. He said social-media-fuelled fear from well-meaning but misguided activists factored in to his zoning defeat. He also viewed the denied rezoning as a pre-meditated campaign by officials at the regional district. “[The CVRD] came up with a plan to direct us down the wrong garden path, knowing all along we had the right zoning, that we exhausted all our avenues chasing a rezoning application.”

“We’re not the first people to do this,” said MacKenzie, “we’re just the same as everybody else, a young family with a little bit of luck, who have drilled water and want to offer it locally to poorly water-serviced communities.”

The 10,000 litre-per-day draw of well water (roughly equivalent to 10 homes) was negligible, said MacKenzie. “How are we going to drain the aquifer when we’re only allowed to take 10,000 litres, and there’s 34 trillion litres in there?”

In a media release, the K’omoks First Nation came out in opposition to the well licence, describing it as an “insult to our nation and people.” The Nation stated they were in a treaty process, negotiating for groundwater allocations in their traditional territories, and were opposed to the volume and indefinite term of the well licence.

The Nation was also “extremely disappointed” with the province’s failure to meaningfully consult with them. Chief Nicole Rempel said: “The province needs to smarten up, negotiate in good faith and in accordance with [the United Nations Declaration on the Rights of Indigenous Peoples]”

Edwin Grieve, Director of Area C of the CVRD, said the licence was issued despite the district informing FLNRORD that the licence ran contrary to their official community plan and regional growth strategy.

MacKenzie said he now plans to apply for a different exception to his current zoning that would allow him to bottle the water on his land. “Not only is it a brand new application, we’re going in with the lawyers, and the [provincial] ombudsman, they’re all behind us.”

Dueling experts

In a document provided by MacKenzie, which he intends to submit to the CVRD for the zoning, a passage attributed to a hydrogeologist retained by Mackenzie read: “The proposed groundwater withdrawal is not a significant stress on the aquifer; no neighbouring wells will be significantly impacted by the proposed groundwater use.”

In contrast, the report by a consultant hydrogeologist commissioned by Bruce Gibbons to critique FLNRORD’s study of the well application was critical on several points. Chiefly, the report cast doubt on FLNRORD’s conclusion that the aquifer to be drilled is “not likely hydraulically connected to surface water,” citing the ministry’s lack of accounting for factors associated with connections between ground and surface water. The report also critically highlighted FLNRORD’s reliance on data from a monitoring well 12km away from the water bottling site, and 18-year-old data.

In the Merville case, FLNRORD has acted within their directive in granting the well license, as prescribed by the WSA. A worker following orders, FLNRORD has no mandate to inform the public of groundwater well applications. To qualify for an appeal of a well license, a complainant must be either an existing well holder or riparian owner (someone who owns waterfront property) whose water would be affected, or own land that would be physically disturbed.

Don’t throw the baby out with the groundwater

Stepping back from the play-by-play of raucous town hall meetings, quashed business plans, and dueling technical reports, the debate in Merville begs the question, how well is the WSA working?

Rosie Simms is a researcher at the University of Victoria’s POLIS project. She described some parts of the WSA as analogous to a promising but unfinished construction project. She said the potential for the WSA to provide “robust protections for fresh water” exists, but “until there’s further follow through, and actual work to get the most important parts of the act implemented and working on the ground, it’s still an incomplete process.”

Simms listed water sustainability plans, water objectives, and environmental flows provisions as tools for improving water governance available in the WSA, but currently underused. “Basically, there’s a whole lot of opportunity, it just needs to land,” she said. Despite that opportunity, there are still holes in the act. “There’s some major gaps. It’s silent on Aboriginal rights and title, which is a significant issue,” she said.

Emma Lui, a water campaigner for the Council of Canadians, said a major omission to the WSA is the recognition of water as a human right. Instead, the WSA relies on a gold-rush era rule called “first in time, first in right” for prioritizing water use. In the case of scarcity, first in time, first in right (mirrored by the phrase “first come, first served”) ignores the use of the water and rewards previously established water licences priority over subsequent licences.

First in time, first in right may have been a sensible principle for prospectors to follow a century ago, but Lui said it no longer makes sense. “When you have a system like first in time, first in right, you’re just not going to be able to prioritize water for communities,” she said.

But first in time, first in right, is not absolute. Simms said community water sustainability plans do have the power to change, cancel, or put conditions on water use for existing licences. During drought conditions, the province can also issue temporary orders to licence holders to reduce or stop flow to protect ecosystems and fish.

Lui said it’s pretty simple why such a dated principle made it into the new legislation. “I think the government was really not wanting to change the system in such a way that could threaten existing industries, like bottled water or fracking. But that’s really what needs to be done. We need to think about where water is being used and how that’s going to be impacting people and communities in the future.”

The Merville case demonstrates clearly that British Columbians are taking the governance of their water seriously. And rightly so, considering what’s at stake. For concerned citizens, water advocates, and commercial bottled water interests, the worst-case scenario is ultimately the same: running dry.

Gavin MacRae is the Watershed Sentinel’s new editorial assistant. He may be reached at editor@watershedsentinel.ca For other stories about environmental issues and their broader social implications go to the Watershed Sentinel website

Photo by George Le Masurier

 

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