Environmental groups lose court challenge over fracking water use

The British Columbia Supreme Court has dismissed a legal challenge to decisions of the B.C. Oil and Gas Commission (OGC) to grant successive, short-term approvals to EnCana Corporation to withdraw fresh water from B.C.'s lakes, rivers and streams for use in hydraulic fracturing operations. Under B.C.'s Water Act, all surface water is owned by the government and diversions are only allowed pursuant to a two year approval or a long-term license. A two year approval application is subject to less regulatory scrutiny than a long-term license application, and does not require the same public notice requirements.

The OGC granted various two year approvals to EnCana. The Western Canada Wilderness Committee and the Sierra Club filed a petition in the Supreme Court seeking to vacate the OGC's decisions to issue successive, two year approvals for water withdrawals from the same source. The petitioners claimed that although no one approval was for more than two years, multiple approvals were granted back to back over multiple years to EnCana for the same purpose and for diversions at the same locations, thereby effectively violating the two year term limit. The petitioners said that the OGC should have required EnCana to apply for long-term licenses instead of successive two year approvals.
The Court found that the Water Act did not prohibit the OGC's practice and deference should be given to the OGC in how it manages the issuance of approvals and licenses. The Court dismissed the claim.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Alan Harvie (alan.harvie@nortonrosefulbright.com or +1 403.267.9411)from Norton Rose Fulbright's Energy Practice Group.