Two B.C. environmental groups are taking the B.C. Oil and Gas Commission to court next week over practices they argue unlawfully permit oil and gas companies to use water.

Sierra Club B.C. and Western Canada Wilderness Committee — in documents filed with the Supreme Court of B.C.— argue the Oil and Gas Commission has been engaged in a “systemic” practice of issuing back-to-back “short-term” water approvals and call for permits issued to Encana to be quashed.

The case will be heard in the Supreme Court of B.C. in Vancouver on March 17 and 18.

“Under the Water Act, if you want long-term access to water, you need a water licence,” says Caitlyn Vernon, campaigns director with Sierra Club B.C.“What the Oil and Gas Commission is doing is granting consecutive short-term approvals to oil and gas companies.”

The case centres around water approvals under Section 8 of B.C.’s Water Act, which governs short-term use and diversion of water for up to 24 months.

By requesting and analyzing Section 8 water approvals going back seven years, Sierra Club B.C. and the Wilderness Committee — represented by lawyers from Ecojustice — determined the approvals were being given to the same companies for consecutive terms.

“Multiple approvals are routinely granted over multiple years to the same company, for the same purposes, at the same locations and thereby violate s. 8 of the Water Act,” reads the groups’ petition to the court.

The groups argue this is illegal — that if a company requires water for more than one term or more than 24 months, they should have to obtain a water licence, not a short-term approval.

This is an important distinction, says Karen Campbell, the Ecojustice lawyer arguing the case. When a company applies for a water licence, its application has to be posted publicly and there’s opportunity for a public hearing. With a Section 8 approval, the public is not notified and there’s no chance for public input, she says.

83% of “short-term” approvals granted for more than one term

Sierra Club paid more than $1,000 to obtain copies of 1,352 Section 8 approvals — 83 per cent of which grant the right to use or divert water for more than one term to the same company, for the same purposes, from the same location.

Encana, along with other companies working in B.C.’s northeast gas fields, requires vast amounts of water to conduct hydraulic fracturing, or fracking — a process that involves injecting a mixture of water, sand and chemicals underground at pressure to fracture the rock and release the natural gas trapped inside. Afterward, some of the water is re-used, but much of it is contaminated and stored in tailings ponds or injected into deep wells underground, where it is removed from the hydrological cycle.

The Encana water approvals that could be revoked are in the Montney shale basin in the South Peace, near Dawson Creek.

“People in the north are already seeing their water depleted and contaminated by fracking and drilling,” Vernon says. “The case is about fixing the way water permits are handed out, so any long-term water withdrawals go through a review process with oversight.”

One lake, five “short-term” approvals

In an affidavit filed with the court, Eoin Madden of Western Canada Wilderness Committee notes Encana has five approvals at Wasp Lake, which allow Encana to use water for the same purpose for five years. Encana also has a water licence for the same lake.

The short-term approvals allow eight times more water to be drawn annually than the water licence does — up to 69,000 cubic metres per year, or enough water to fill 27 Olympic-sized swimming pools. The approvals also allow water to be drawn year-round, while the licence prohibits withdrawals between May and October.

If Encana withdrew the daily limit set out in the approval, it would take less than three days to withdraw the annual limit of their Wasp Lake water licence, says Morgan Blakley, a staff lawyer with Ecojustice.

“They’re violating the spirit of the legislation,” Blakley says.

The LNG connection

With all the talk of building liquefied natural gas (LNG) export facilities on B.C.’s coast, Vernon says it’s important for people to make the connection between fracking and LNG.

“Building any LNG terminals will require an increase in fracking, with associated impacts on water,” she says. “In a climate-changing world, freshwater is an increasingly scarce resource and we need to be managing it responsibly for communities, for agriculture, for our children’s future.”

In a recent blog in the Vancouver Sun, Ben Parfitt, a resource policy analyst with the Canadian Centre for Policy Alternatives, and David Hughes, a geoscientist, wrote that if even 70 per cent of the current LNG proposals go ahead, about 39,000 new wells would be required by 2040. If nine of ten of those wells were fracked, at least 582 billion litres of water would be polluted and removed from the hydrological cycle.

Encana, Oil and Gas Commission Respond

In an affidavit filed with the court, Cameron Buss of Encana Corporation says the company tends to rely on Section 8 water approvals during the exploratory phase.

“Encana’s use of water under Section 8 approvals is for discrete operations, which are short term in nature, but continue throughout the life of a play,” his statement reads.

Encana argues that if the Oil and Gas Commission’s practice of granting back-to-back short-term water approvals is declared unlawful, there will be significant harm to Encana and others.

“There are not readily available alternative water sources for Encana's ongoing operations in the Montney area,” Buss states.  “Many of these operations would cease if the order sought … is granted.”

The Oil and Gas Commission’s response to the petition says: “The Water Act contains no express prohibition on repeats of approvals under Section 8” and argues it interpreted the Water Act “reasonably.”

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Photo: 2011 Tailing ponds used to store fracking wastewater. Will Koop.