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Drinking water wins in Jefferd Creek logging battle

April 8, 2012

In 2004 the residents of the tiny community of Stillwater, near Powell River, learned that BC Timber Sales (BCTS) was planning to auction off the rights to clearcut 12.5 hectares in the Jefferd Creek watershed, which is the source of their drinking water.  Well, it’s been a long fight, but after 8 years and a series of grants to the Committee for the Protection of Jefferd Creek from West Coast’s Environmental Dispute Resolution Fund, BCTS has agreed to scale its proposed 12.5 hectare cut down to 1.5 hectares – located well away from the Creek – because of concerns about the drinking water impacts.  Congratulations to the Committee and to the Stillwater Improvement District for this victory for common sense. 

It’s about public health, not logging

As BCTS developed its logging plans, the residents of Stillwater formed the Committee for the Protection of Jefferd Creek.  They turned to West Coast Environmental Law in 2007 for legal support and for the funding to hire a lawyer as well as their own hydrologist to examine whether the logging would actually impact their water. 

By 2009 the Committee had heard from their lawyer that the Drinking Water Protection Officer appointed under the Drinking Water Protection Act has powers to investigate and act on threats to drinking water.  They had also received a report from their hydrologist confirming that the proposed logging might well negatively impact their water. 

As a result, when, in September, 2009 the Committee received notice from BCTS that road building in preparation for the logging would begin in 2 weeks, within one week they formally requested that their local Drinking Water Protection Officer, Dan Glover, investigate whether the proposed road building and logging amounted to a threat to their drinking water and to issue an order halting the logging in the meantime.  Glover agreed to investigate.

“I am undertaking that investigation,” Glover said [at the time]. “I’ve started to review all of the reports again and I’ll be getting some assistance from professionals in the ministry. That’s where we’ll start. We have to look at every aspect of this and see if their concerns are justified.”

BCTS, to its credit, acted reasonably – agreeing to hold off building roads for the logging without the need for an order from the Drinking Water Protection Officer. 

Glover’s investigation report, completed in April 2010, examined the hydrological evidence from both the Committee’s hydrologist, and the contradictory findings from BCTS’ hydrologist, and concluded that the proposed BCTS logging would in fact amount to a “threat” to Stillwater’s drinking water.

[I]t appears forestry activities would be expected to have an impact [on Jefferd Creek].  A series of mitigative measures have been proposed by BCTS to attempt to address the identified risks.  At issue is whether the resulting impacts would create “acceptable” or “unacceptable” risk to the water system and consequently to the water consumers. …

It has been discussed earlier in this report that Jefferd Creek is unusually sensitive to incremental stresses at this time.  Clearly this water supply is already struggling with providing adequate water supply for the community that relies on it, as demonstrated by the current Boil Advisory (the 3rd in a 7 month period) in place at the time of this report.  There already exists the potential for intermittent degradation of water quality now and in the future.  I do not support compounding this existing risk, and I believe this proposal would place additional stresses on the source water.  I therefore conclude that a threat to the Jefferd Creek water supply exists in relation to this proposal. 

It is important to note that Glover stopped short of finding that the proposed road building and logging would create “a significant risk of an imminent drinking water health hazard” – which would have been a pre-condition for a hazard abatement order.

However, BCTS took his investigation report seriously, and the revamped logging proposal, released last week, reduces the logging in Jefferd Creek Watershed from 12.5 hectares to a mere 1.5 hectares, all located well away from the Creek.  There will be no road building within the watershed, and special environmental measures will be in place.  

The Legal Tools

When people call me about water/logging conflicts, I usually have to inform them that BC’s forestry laws are about regulating how, not whether, logging occurs.  If the issue is about logging (which is the norm in these conflicts), those opposed to the logging will lose.  But if those who are concerned about public health and the right to clean water can make that the issue, then there is a chance.

The Drinking Water Protection Act does not provide all the legal protections for water sources that we would like to see.  But it does create the position of the Drinking Water Protection Officer and give those officers powers to investigate threats to drinking water.  The Committee for the Protection of Jefferd Creek requested that Mr. Glover investigate under section 29 of the Drinking Water Protection Act:

If a person considers that there is a threat to their drinking water, the person may request the drinking water officer to investigate the matter. … On receiving a request [for an investigation], the drinking water officer must review the request and consider whether an investigation is warranted.

Anyone thinking about making such a request should check out the BC Ministry of Health’s Interim Best Practices on Requests for Investigation of a Drinking Water Threat under the Drinking Water Protection Act (2008).  

As noted, the Drinking Water Protection Officer also has the ability to issue a hazard abatement order, but only once the “threat” reaches the level more serious level of a “significant risk of an imminent drinking water health hazard.”  “Drinking Water Health Hazard” and “threat” are both defined in Section 1 of the Act.

The residents of Stillwater were fortunate to have a courageous Drinking Water Protection Officer, who acted on their request.  They also hired a hydrologist and assembled the evidence to show that in their watershed, at least, logging did pose a real threat to water.  Also, BCTS, again to its credit, took the investigation seriously, and did not push ahead with its logging. 

This strategy will not work in all watersheds, or in all parts of the province.  But with logging too often taking priority over drinking water, the Jefferd Creek win should encourage everyone who is concerned that their water is at risk from logging, or, indeed, from industrial development. 

Rita Rasmussen, of the Committee for the Protection of Jefferd Creek, applauds West Coast Environmental Law for our role in their win.  “We couldn’t have done it without you, and without [our EDRF lawyer] Rebeka Breder.”

Rebeka is also positive, although she would like forestry laws that better address the environmental and wildlife impacts of logging (in addition to drinking water):

Overall, I am pleased with the decision. It is clear that the province recognized that logging in the watershed pursuant to their original plans would potentially  cause a health hazard. Although I would have liked to have seen part of this decision being based on the potential impact of logging on the environment and wildlife (as opposed to only on human health), it is certainly a step in the right direction.

Congratulations to Rebeka, Rita and the Committee for the Protection of Jefferd Creek.  Great job!

 

Author: 
Andrew Gage, Staff Lawyer