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Bottled water proposal raises both common sense and legal questions

February 21, 2011

Well, we’ve waded into another controversy over water. You may have read me quoted in the Globe and Mail or the Times Colonist expressing concern about bottled water operations proposed for the Bute, Jervis and Toba Inlets on BC’s mid-Coast. 

The operation is unusual – unique is probably a better word – in that it involves water licences, and Crown land leases, for at least 34 different streams in 4 different largely pristine inlets. Each licence is for the purpose of bottled water and almost all of them are for the extraction of 112.5 m3/day of water per day. The bottled water project is a proposal by the Kwiakah First Nation, working with a numbered company, 0879144 BC Ltd. There are also a series of water licences applied for by the Da’naxda’xw First Nation in respect of Knight Inlet, which appear to be related to the overall project. The Nations say that they need this project to help them achieve economic self-sufficiency, and, despite a general distrust of bottled water held by most environmentalists, West Coast has no desire to throw up unnecessary obstacles to their meeting that goal. But there are unanswered environmental questions about this project – both from a legal and a common sense point of view.  

The importance of the big picture

BottledWater.jpgThe project first came to light after Arthur Caldicott, a researcher investigating the bottled water industry in BC for the Watershed Sentinel, came across a December 8th, 2010 advertisement in the Campbell River Mirror inviting the public to comment on 7 licence applications (and associated leases of Crown land) proposed for water bottling for the Bute Inlet. After a little digging he later found that another advertisement had been published the same day in the Powell River Peak in respect of 9 other licences and Crown land leases, also for bottled water, on the Toba Inlet. Apparently there was another ad published around the same time in respect of 8 applications in Jervis Inlet. We have since learned that a similar ad ran about still more water applications by the Kwiakah Nation in Bute Inlet early last year.
Arthur Caldicott has mapped all current and proposed bottled licences in the province (based on available data), and it’s hard not to be alarmed by the sheer number of licences being applied for on these four inlets by the Kwiakah, Da’naxda’xw, or 0879144 BC Ltd. If all of the water applications that are currently proposed by these proponents were granted and used to their full extent, the total amount of water which could be taken is a little more than 3,800 m3/day or 3,800,000 litres/day, or 1.3 billion litres/year! Despite his best efforts to find out more from the project proponents, there was no information forthcoming on whether the licences were going to be used to their full capacity or if some lower amount of water was going to be taken.  


View Water - Bottle Sales in a larger map

I learned about the project on January 27th – the day before the deadline for the public to comment on 24 of the applications were set to end. At Arthur’s request, I immediately wrote a letter to the Ministry of Natural Resource Operations (MNRO) asking for an extension of this deadline, and that the public be given information about the overall scope of the project, rather than information on individual water licences.
[I]t seems clear that the public has been consulted about the wrong project – or at least an incomplete project. The environmental, social and cultural impacts cannot be commented on meaningfully at the licence-specific level, or even at the inlet level. The impacts of any individual licence may well be nominal, but the project as a whole may nonetheless have a significant regional impact. …
The Proponent maintains that this project is being designed in a way that minimizes its environmental impacts. Despite the inherent environmental problems associated with the bottled water industry, this may well be the case. However, the optics of breaking up the project in this way, and inviting public comment on only individual pieces of the project in isolation, does not encourage public confidence.
I have not yet received a reply to that letter. Subsequent to my letter to MNRO, the Friends of Bute Inlet, Sierra Club Quadra Island, Sierra Club Malaspina, the Sunshine Coast Conservation Association and the Campbell River chapter of the Council of Canadians called on Murray Coell, BC’s Environment Minister, to call an environmental assessment of the project. Contrary to some reports West Coast was not among the groups calling for an environmental assessment, but I or my letter (which was referenced in the press release from those groups) was quoted in a surprising number of the resulting media stories. 
Since then, Frank Voelker, Band Manager for the Kwiakah First Nation has spoken publicly about the project in an effort to lay the public concerns to rest. 
Voelker said one skiff will work in an area where there are several licences and will take water from each stream and transport it to a barge. … Multiple licences are needed because the skiff needs the flexibility to move around different streams or waterfalls based on conditions, Voelker said.
Water will probably be taken from only a handful of streams each day, he said. Most applications are for 112,500 litres per day from each stream.
This underscores the need for more disclosure, and public consultation, about the scope of the project as a whole. While as a practical matter it’s reassuring to know that there are no plans to take the full 3,800 m3/day that would be allowed under the licences (if all are granted), a number of important questions remain unanswered:
  • How much water will be taken in each inlet? How many skiffs and barges will operate per inlet and how many streams can they visit onto the barge in a day? How many collectively for the whole project?
  • How will the project identify which streams/waterfalls will be visited on a daily basis? What “conditions” are relevant to this decision and how will they be evaluated? 

Can you do that under the Water Act?

But Mr. Voelker’s comments also raise an important legal question. Under the Water Act the province can issue licences for water that is “beneficially used,” giving the licensee the right to use that water before any other future water user. Essentially the concept is that water is available on a first-come-first-serve basis, but licensees can’t just sit on rights to use water without actually using it for some economically, socially or environmentally useful purposes. 
While taking water for bottling is considered a beneficial use, the fact is that according to Mr. Voelker the bottled water operation being considered is actually going to take much less than the about 3,800 m3/day contemplated collectively by the proposed 34 licences. In one interview he mentions 3-6 streams per day as a possibility. 6 streams would amount to about 675m3/day. This means that the project as a whole will use less than 20% of the flow that they could legally use – with over 3,000 m3/day of water which could be to be removed under the proposed licenses not being used. 
That 3,000 m3/day is not available to other future water users under different licenses. The government is currently proposing that new rules to recognize and protect environmental flows in streams will not apply to water already covered by existing licences. And should the government in future adopt water markets (a controversial proposal) the proponents with the rights to use that 3,000 m3/day would be free to trade this surplus water at a profit. 
In short, that 3,000 m3/day will potentially not be beneficially used. While licences rarely involve proponents taking their full allocation all the time, the Water Act does not contemplate licences under which 80% of the flow in a licence is generally unused simply in the name of flexibility. In our view it would not be appropriate under the Water Act for the province to grant a licence in respect of such a large volume of unused water. 
Mr. Voelker says that the proposal needs “flexibility” to determine where it will gather water on a given day. It’s really not clear exactly why he thinks that the bottled water operations need this flexibility; again details at the project specific level are required. But assuming that there’s a genuine reason why access to multiple streams is desirable, this flexibility cannot involve applying for massive amounts of water that they don’t actually intend to use. Two possibilities occur to me: 
  • First, the licences could express the expected use of water in terms of amounts per month, or even per year, recognizing that there is no intention to use the water in any given stream all the time, but only on an occasional basis. It should be possible to estimate, based on the overall project plan, what portion of water is likely to come from which stream, and include a reasonable estimate of the water required. This type of licence should also include a maximum daily rate to prevent excessive short-term exploitation of a single stream.
  • Second, a single licence might cover water use from several different streams. For example, one licence might cover all the streams identified for extraction on the Bute inlet and specify (if that is consistent with the project’s plan) that 2 skiffs might take up to 450 m3/day from the 15 streams (not to exceed 112.5 m3/day from any one stream). The licence could then give direction as to how the streams were to be selected or related to the operation of the skiffs, etc. This solution has a potential legal problem of its own – Water licences need to be associated with land in the immediate geographic vicinity of the water body. It is not immediately clear whether a geographically wide licence of this type might be attached to a single piece of land in the area, or to multiple Crown grants. 
Either of these approaches requires the proponent to define key aspects of their overall project plan and to make it available to the government and the public. Consultation could then occur at the appropriate level. 
We don’t know if an environmental assessment of this project is required or not. But clearly full disclosure and public consultation of the details of the full project is required. And to date that has not happened. 
Andrewblogphoto.jpgBy Andrew Gage, Staff Lawyer
Bottled Water photo from saw2th on Flicker