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Why is the Harper government letting gas companies frack with our water?

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Hydraulic fracturing, commonly known as "fracking," is an issue that is increasingly being seen in the media. Fracking is a process used to extract shale gas using vertical and horizontal drilling. Sand, water and chemicals are release at high pressure to fracture shale where natural gas is trapped.

Communities all over Canada, the U.S. and other countries are fighting against fracking because of the negative impact it has on water, climate change and people's health. Fracking poses a significant threat to Canada's water sources. The fracking process uses vast and unsustainable amounts of water. The toxic chemicals used in the fracking process further pollute local water sources. The "wastewater flowback," a mixture of toxic chemicals, is either buried in the ground threatening local aquifers or put through municipal wastewater treatment systems which are ill-equipped to handle the chemicals used in fracking projects.

Where is it happening?

Fracking is being fought all over the world. Exploratory wells are being drilled in countries such as Scotland, Poland, Sweden, South Africa and Britain. Fracking is most advanced in the United States. According to Ben Parfitt's Fractured Lines, Apache Corporation has dubbed the project at Two Island Lake, British Columbia, the "world's largest" frack. Fracking projects are at various stages in British Columbia and exploration is occurring in provinces all across Canada.

Moratoriums and bans

Despite growing opposition to fracking across the country, provincial governments have been slow to respond to communities' concerns. Quebec is the only province that has implemented a moratorium. The moratorium will remain in place until a strategic environmental evaluation is completed. Nova Scotia is in the process of doing a review on the impacts of fracking, primarily on water. Independent MLAs Bob Simpson and Vicki Huntington (Delta South) are calling on B.C. Premier Christy Clark to appoint a special legislative committee to thoroughly investigate fracking in British Columbia.

New Jersey recently voted to ban fracking. Internationally, France became the first country to ban fracking. The government of New South Wales in Australia imposed a moratorium on fracking last month. Communities all over the world are continuing to demand bans on fracking.

Water use

Throughout Canada, ground water aquifers are generally found within 100 metres of the surface. Fracking puts groundwater sources (and consequently drinking water) at risk of contamination.

Fracking uses massive amounts of water. Approximately 2 to 9 million gallons of water are required for a single "fracking" job. This is equivalent to the water used by approximately 22,296 to 103,343 people per day (based on use of 329 litres per day, the estimated average use per person per day in Canada). In the report Fractured Lines, Ben Parfitt notes that in fracking 10 shale gas wells in British Columbia's Horn River Basin required 909,090,000 litres of water.

Toxic chemicals

A four billion gallon fracking project requires 80 tonnes (200,000 gallons) of chemicals. Industry is not required to release what chemicals they use in fracking projects. U.S. advocacy organizations are demanding that the U.S. Environmental Protection Agency should require oil and gas companies to disclose the chemicals they use.

The investigative report Fracking Hell: The Untold Story by Earth Focus and U.K.'s Ecologist Film Unit noted some chemicals found in fracking fluids in the U.S. include ethylhexanol, formaldehyde, glutaraldehyde, boric acid, ethylene glycol, methanol, monoethanolamine, dazomet, acetic anhydride, isopropanol, propargyl alcohol and diesel. The New York State Department of Environmental Conservation's Division of Mineral Resources released a massive report which listed 257 additives that may be mixed with the water.

The fracking process also brings up radioactive elements from underground. There has been anecdotal evidence that fracking fluids have leeched uranium. There is also radon and radium-226 in shale deposits.

Water contamination

As noted in Fractured Lines, "[a] series of award winning reports by the journalism group, ProPublica, has raised serious questions about the content of hydraulic fracturing fluids and the contamination of nearly 1,000 rural water wells by the shale gas industry."

Methane contamination has been linked to people being able to light their tap water on fire as seen with Jessica Erst in Burning Water and in the Oscar-nominated documentary Gasland. Duke University released a report in May of this year on methane contamination of drinking water within one kilometre of hydraulic fracturing sites. The report found that "Methane concentrations were 17-times higher on average (19.2 mg CH4 L-1) in shallow wells from active drilling and extraction areas than in wells from nonactive areas."

Sand and chemicals from one site have been found to contaminate other sites, what industry euphemistically calls "communication" between sites. Fractured Lines notes that "sand being pumped underground during fracking at one well showed up at the other in Montney Basin in British Columbia. The British Columbia Oil and Gas Commission reported that it was aware of at least 18 contamination incidents ranging from 50 to 715 metres apart which raises serious alarm bells when it comes to our drinking water sources. If contamination of sand and chemicals can occur horizontally from site to site, it stands to reason that contamination can [happen] vertically from the fractured shale to ground water aquifers."

Further, while immediate effects may not always be detected, Engineering Professor Tony Ingraffea from Cornell University notes that the effects of fracking are cumulative. Professor Ingraffea has noted that there is one serious environmental concern for every 150 wells drilled today in the U.S. which means if there are hundreds of thousands of wells, there are hundreds or thousands of serious impacts. He highlights the cumulative impacts of fracking so although communities may not be seeing some of the consequences today, communities will see the effects of fracking in 10 or more years.

Health problems related to fracking chemicals

Fracking chemicals have been linked to significant health problems and have been associated with bone, liver and breast cancers as well as developmental, gastrointestinal, circulatory, respiratory, brain and nervous systems disorders.

Wastewater flowback

The wastewater from the fracking process or what is termed "wastewater flowback" is either injected underground which risks leeching into the ground or nearby water sources or treated at municipal wastewater facilities which are not equipped to decontaminate chemicals found in fracking wastewater. If discharged into waterways, the wastewater flowback puts our drinking water supplies at risk.

Water allocation

For fracking projects to move ahead, companies must apply for water permits from provincial authorities. Provincial water legislation and regulations on water permits vary widely across the country.

In British Columbia, for short-term (under one year) oil and gas projects, the B.C. Oil and Gas Commission issue permits for surface water. As noted in Fractured Lines, the energy sector is the only industry to have its own designated regulator for water approvals. There is no cost for water use under these circumstances.

A water market system exists in the South Saskatchewan River Basin where water users need to purchase licenses from pre-existing owners. The Alberata government is considering extending the water market system to the rest of the province. In an open letter to Minister of Environment Rob Renner, organizations and individuals stated that "[a] market system that distributes water based on the ability to pay is not appropriate for a resource as critical as water. Moving to a market system is a fundamental abdication of the province and federal government's fiduciary obligations. It will leave decisions about future development in the province up to a small number of players with senior licenses who will be able to act as water brokers, profiting by selling access to an essential resource that they received from the government for free." With scarce water sources in some regions, communities may have to compete with wealthy gas companies for water licenses.

In Ontario, anyone who takes more than 50,000 litres of water a day from a lake, river, stream or groundwater source, must obtain a Permit to Take Water from the Ministry of the Environment (with a few exceptions). The Charges for Industrial and Commercial Water Users Regulation (O. Reg. 450/07) establishes a charge of $3.71 for every million litres of water taken by highly consumptive industrial and commercial users, like bottled water, beverage, fruit and veggie canning, ready-mix concrete, non-metallic mineral product, pesticide, fertilizer and inorganic chemical manufacturing.

In Nova Scotia, under the Activities Designation Regulations (Division I) of the Environment Act, any individual or entity withdrawing surface or ground water exceeding 23,000 litres per day must obtain a water withdrawal approval from Nova Scotia Environment. For ground water this requirement only applies to water withdrawal exceeding two weeks. The Guide to Surface Water Withdrawal Approvals and Guide to Ground Water Withdrawal Approvals stipulates that "water allocations are based on a "first-come, first-served" basis. Priority is given to existing withdrawal approvals over new applications."

Under the Environment Act and Regulations Fees Regulations, annual user fees for water withdrawals are determined only by the quantity of water used. Regardless of whether the water is being used for municipal, recreational, industrial or domestic purposes, users pay the same amount. For example at users are required to pay $133.95 per year for water use of 1,000,000 litres per day, up to 2,000,000 litres.

Shale gas companies requiring water for fracking projects which results in wastewater flowback would pay the same amount for water municipalities use to supply drinking water.

As can be seen, the requirements for water permits for fracking projects vary greatly across the country. Considering water is a national issue, provinces need a consistent and concerted approach to water allocation for fracking projects.

Water as a human right and public trust

Canada's provinces need to implement a water allocation system based on water as a human right and a public trust. Water as a human right would ensure that water for domestic needs, the environment and community uses are a priority. Water as a public trust would ensure that governments manage water and an allocation system "in trust" for the people or in the public interest.

Last year the UN passed two resolutions recognizing the human right to safe and clean drinking water and sanitation. The second resolution passed by the UN Human Rights Council recognized the human right to water and sanitation as already entrenched in international law. Therefore Canada has a legal obligation to uphold the human right to water and sanitation. In Maude Barlow's report Our Right to Water: A People's Guide to Implementing the United Nations Recognition of the Right to Water and Sanitation, the Canadian Appendix states that under the obligation to protect, the federal and provincial government has the responsibility to ensure that the watersheds and water sources its citizens depend on are protected from contamination.

Under a human right and public trust doctrine system, governments would need to be very careful who they give water licenses to and be able to revoke them if abused. Under the public trust doctrine, no one would or should have the right to "buy" water to pollute or to bottle it.

The need for federal legislation on fracking

Despite the dangers associated with fracking, the federal government has passed off responsibility to the provinces. In October 2010, the Canadian Press reported that, "(Environment minister) Jim Prentice says environmental regulations are still a work in progress for Canada's booming shale gas industry, even though drills have already pierced the ground. ...Mr. Prentice says environmental policies are still being drawn up, even though shale gas production is already underway in Western Canada." In June 2011, Environment Minister Peter Kent responded to NDP environment critic Megan Leslie's questions by saying, "The federal government has an interest and can involve itself when a threat is perceived and reported. Environment Canada is responsible for regulating toxic substances under the Canadian Environmental Protection Act, and where required, we will intervene."

However there are several other ways in which the federal government has a legal responsibility to intervene. Drawn mainly from the report Duty Calls: Federal responsibility in Canada's oil sands, the following legislation can also be applied to fracking and oil and gas mining broadly:

-- "Fisheries Act: The federal Fisheries Act deals with the management of Canada's fisheries resources and the conservation and protection of fish and fish habitat. It applies to all Canadian fisheries waters, including private property and provincial Crown lands. It gives the federal government the power and authority to protect the unobstructed passage of fish, provide sufficient water flow for fish, prevent fish mortality and prohibit harmful alteration, disruption or destruction of fish habitat."

-- "Canadian Environmental Protection Act (CEPA): CEPA aims to prevent pollution and protect the environment and human health. It gives the federal government the authority to prevent and manage the risks posed by harmful substances, and to assess the environmental and human health impacts of new and existing substances." Given the toxicity of fracking chemicals, the government has the responsibility to demand that the list of chemicals used be released, to assess their toxicity and to ensure that human health and the environment are protected.

-- "Species at Risk Act (SARA): The purpose of SARA is to prevent Canadian species from becoming extirpated or extinct, to provide for the recovery of endangered or threatened species and prevent other species from becoming at risk. It provides the federal government with the authority to identify species at risk and their critical habitat, and creates a 'safety net' provision for the federal government to step in to protect a species if a province is failing to do so."

-- Canadian Environmental Assessment Act (CEAA): The federal government has jurisdiction over inland fisheries. An environmental assessment is required for fracking projects based on their effects on fish and fish habitat.

-- "Migratory Birds Convention Act (MBCA): The MBCA prohibits the release of substances that can harm migratory birds in waters used by them, and gives the federal government the authority to develop regulations to protect migratory birds."

-- In addition, Canada's National Pollutant Release Inventory, which tracks the use and disposal of toxic chemicals, does not require reporting for oil and gas drilling. However, given the chemicals used in fracking and the impacts they have on water, public health and other parts of the environment, the federal government needs to revise the reporting requirements to include the oil and gas drilling sector.

Based on these legislations, the federal government has a clear and pressing responsibility to intervene in fracking projects across the country. The impacts of fracking are already being seen and (as Professor Ingraffea has noted) will continue to be seen for many years to come. The federal government needs to take up its leadership role and ensure that our water sources, public health and the environment are protected.

Sources:

Bracken, Lisa. Fracking Primer: http://www.bctwa.org/Frk-FrackingPrimer.pdf

BC Tap Water Alliance: http://www.bctwa.org/FrackingBC.html

Conservation Council of New Brunswick, Fracking Primer: http://conservationcouncil.ca/files/Publications/FrackingPrimer_Final.pdf

DeSmogBlog Project Fracking the Future How Unconventional Gas Threatens our Water, Health and Climate: http://www.desmogblog.com/fracking-the-future/desmog-fracking-the-future...

Deveau, Jean-Louis. No Fracking Way: Ban Hydraulic Fracturing in Canada: http://www.rabble.ca/news/2010/07/no-fracking-way-ban-hydraulic-fracturi...

Earth Focus and UK's Ecologist Film Unit. Fracking Hell: The Untold Story: http://www.youtube.com/watch?v=dEB_Wwe-uBM

Environmental Defence, Equiterre, Pembina Institute. Duty Calls: Federal Responsibility in Canada's Oil Sands: http://environmentaldefence.ca/reports/duty-calls-federal-responsibility...

Nelson, Joyce. Watershed Sentinel: "Fracking-Natural Gas Affects Water Quality": http://www.watershedsentinel.ca/content/fracking-natural-gas-affects-wat...

Osborn, Stephen G. et al. Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing: http://www.biology.duke.edu/jackson/pnas2011.pdf

Parfitt, Ben. "Fracture Lines: Will Canada's Water be Protected in the Rush to Develop Shale Gas?":
http://www.powi.ca/pdfs/groundwater/Fracture%20Lines_English_Oct14Releas...

Sumi, Lisa, 2010. Environmental Concerns and Regulatory Initiatives Related to Hydraulic Fracturing in Shale Gas Formations: Potential Implications for North American Gas Supply: http://www.canadians.org/energy/documents/fracking/report-fracturing-101...

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