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Should industry frack with our water?

13 November, 2013

Several people have asked us what the proposed Water Sustainability Act (on which the BC government is consulting the public until this Friday, November 15th) says about hydraulic fracturing (a.k.a. fracking).  The Water Sustainability Act is about deciding how water should be used and protected in BC.  So hydraulic fracturing – which uses and pollutes a whole lot of water – should certainly be a major discussion point within the public consultations on a new Act. 

Fracking is, of course, an industrial process used in the oil and gas industry where water and various chemicals are shot into the ground under high pressure to fracture the underlying rock, allowing release of the natural gas contained within.  The process uses immense quantities of water, and has been implicated in contamination of groundwater and causing earthquakes, amongst other things.  It has been banned in Quebec and, just last week, in Newfoundland and Labrador, as well as in several other countries.

“Cleanest LNG” and the Water Sustainability Act

BC’s government has committed to the rapid development of Liquefied Natural Gas (LNG), which depends upon fracking to dramatically increase access to natural gas resources, promising that it is the “Cleanest LNG” in the world.  BC’s Environment Minister, Mary Polak, has argued that “Cleanest LNG” is:  “… not just greenhouse-gas emissions. You could [also] think about impact on water…

Against this back-drop, it is worth noting that the Water Sustainability Act proposal has little specific to say about fracking, because it presumes without discussion that the Water Sustainability Act will make water available for this controversial oil and gas industrial process, just as the current Water Act has (although just yesterday (November 13th), our friends at Ecojustice went to court to challenge the legality of some of that water use). 

Earlier in the Water Act Modernization process, the government considered a new “priority-based” approach to water – which would prioritize some uses of water (say drinking water and environmental flows) over others (say industrial).  Had this approach been adopted, it would have required public debate about the relative importance of different uses of water (including the immense quantities required for fracking).  Instead, however, the Water Sustainability Act proposal does not focus on what water is used for, but rather who used it first (oddly enough not counting First Nations or environmental uses, which have a pretty credible claim to first use). 

But given Minister Polak’s claim that Cleanest LNG should be judged against its impact on water, it does seem worth pressing the BC government to deliver. 

The Water Sustainability Act proposal does acknowledge that in many cases fracking can be done with saline water, rather than fresh water, and exempts deep saline water wells from the requirement to hold a licence: 

Groundwater from some deep formations can be very saline (or salty) … Saline groundwater from these deep formations would not be suitable for use as a water supply (e.g., drinking water, irrigation); however, saline groundwater might be a viable source of water for some commercial and industrial development (e.g., oil and gas production, recovery of oil and gas supplies) and thereby take pressure off the debate for the freshwater.

We are told that one reason for not regulating deep saline water wells is that this will give the oil and gas industry an incentive not to rely upon (licensed) freshwater resources.  This seems a pretty weak argument, given that drilling a deep water well would typically cost much more than the proposed rates for freshwater resources. 

But the mention of the fact that potable water is not required for fracking raises a more fundamental question: should we be making fresh water available for fracking at all?  Is it a "beneficial use" that BC's public water should be used to support?  And if so, on what terms?

Indeed, it’s not just deep saline wells that raise this important question.  The fact is that the oil and gas industry is already developing alternatives to hydraulic fracturing that remove the need for water use altogether.  Notably, waterless fracking, a technology developed by Alberta’s GASFRAC that uses liquid petroleum instead of water in Fracking, seems to be gaining acceptance (including some praise from Inside Climate News).

Without endorsing GASFRAC and its claims that its technology has a lower environmental impact than hydraulic fracturing, it seems clear that making large amounts of water available to the oil and gas industry at low rates hardly encourages the uptake of this type of innovation. 

Whatever one thinks of the term “Cleanest LNG”, it seems like a no-brainer that Clean LNG requires an industry that uses as little water as possible, and which avoids the use of fresh water whenever possible. 

On licensing deep saline wells

At West Coast we’re lawyers, not hydrologists, but it’s pretty clear from the Water Sustainability Act proposal that the government is not actually certain that pumping out deep saline water wells will not adversely affect shallower, freshwater wells.  The proposal refers to an “assumed disconnection” that “suggests” that these deep aquifers could be “managed separately” from shallow groundwater resources. 

By contrast, this BC Ministry of Environment Guidance document for environmental assessments of deep saline well drilling does not assume that deep saline water wells will necessarily be disconnected from other water sources, and instead requires the proponent to demonstrate that no impacts will occur:

The proponent should present the interpreted evidence to demonstrate the presence or absence of a hydraulic connection between the deep, saline aquifer/reservoir and the shallow groundwater aquifer(s) and/or surface  water resources. … To facilitate responsible and equitable use of saline groundwater in the Debolt Formation, the proponent should include an assessment of potential impacts within the deep, saline aquifer.  … The effects of mixing on water quality over the life of the project and whether the proposed project disposal activities, if applicable, are likely to cause significant deterioration of the water quality, such that it could adversely impact other users.

This guidance document would seem to undermine the argument that there is no need to regulate deep saline wells.  In our view, exempting such wells from regulation to accommodate the oil and gas industry does not boost the credibility of Cleanest LNG or the Water Sustainability Act

We have also heard a rumour that the oil and gas industry is pressing for a broader definition of saline water, in order to harmonize BC’s rules around saline water with Alberta’s and to exempt a wider range of groundwater from licensing requirements.  We cannot confirm that rumour, except to note that Imperial Oil pressed for something similar in its 2010 submissions on Water Act Modernization.  As discussed, we do not believe that the exemption on licensing for deep water saline wells is justified, and we obviously oppose attempts to expand that exemption to a broader category of saline water. 

Conclusion and Recommendations

We are not fans of fracking, for a variety of reasons.  However, if BC wants to have its promise of “Cleanest LNG” judged in terms of its impacts on water resources, then the proposed Water Sustainability Act does not do enough.  Cleanest LNG means severely limiting the oil and gas industry’s access to fresh water for hydraulic fracturing, and instead providing strong incentives for alternatives to fresh water use. 

By Andrew Gage, Staff Lawyer