The Agricultural Land Commission (ALC) – the body that administers Agricultural Land Reserve (ALR) lands – will consult again with Gabriola’s Local Trust Committee (LTC) when two permits to pump water from ALR lands in the Horseshoe Way area come up for reconsideration.

In a Tuesday interview, Regional Director Howard Houle said ALC Chair Richard Bullock made an Aug. 27 presentation to the Regional District of Nanaimo (RDN) board regarding upcoming changes in the ALC’s operating procedures (see article this edition). As Bullock was available, Houle said, he took the opportunity to share concerns about an ALC decision to allow the commercial extraction of groundwater from Gabriola ALR lands, and to request that the trustees be re-consulted.

Permission to pump

As previously reported, in Sept. 2011, water purveyors Brian Strachan and Dan Foley were each given a two-year permit to conduct unlimited water extraction for commercial purposes from agricultural lands belonging to Strachan and Farmer Tim Brown. The wells from which each purveyor may extract are within a few hundred feet of each other in the same aquifer in the Horseshoe Way area, below Norwich Hill. During the summertime, neighbours have complained that the extraction has affected their wells.

Also as previously reported, when Foley and Brown applied to the ALC for permission to extract water from ALR for a non-farm use, the application was referred to the LTC for consideration, as is normally the case. Typically such applications are not reviewed by the ALC if local governments do not forward them.

Although the LTC was clear that they did not approve of the proposed use, there was disagreement on how to express that to the ALC. Some believed the LTC should not forward the application as an indication the LTC did not approve of the commercial extraction of water from ALR lands. As Foley was already extracting water from Brown’s well at the time, acting Planner Pamela Shaw said if the application did not go to the ALC, Foley would have to apply to the Trust committee for a Temporary Use Permit (TUP) to continue.

Complications

However Foley, whose business was started before the LTC instituted the TUP process, said that he would not apply for a TUP, as a May 2008 court case judged his business to be “grandfathered” or “legal non-conforming” for the unregulated extraction of groundwater.

On the other hand, Strachan, who applied to the ALC in 2006 to sell water extracted from his lands, was given tentative approval subject to a hydrological study showing that “the proposed extraction will not have any detrimental effect on wells within the zone of influence, the aquifer, and the natural environment”. Strachan was unable to complete the study however, because water levels in his monitoring wells kept dropping too low to proceed.

After Foley’s assertion that he would not apply to the Trust committee for a TUP, the issue was referred back to staff for further investigation and to the Advisory Planning Commission (APC) for comment. Shaw recommended that the LTC forward the referral, and the APC recommended that they don’t.

No power to say no

In a Jan. 2010 split decision, the LTC resolved to forward the application to the ALC, but told the ALC that the Official Community Plan does not support the commercial extraction of water from ALR lands. They explained that they were unable to prevent Foley from this extraction as his business was grandfathered, and urged that if the ALC did grant Foley a permit that it be limited to two years and require him to provide evidence of the impacts of that use.

The ALC approved the Foley/Brown application with no pumping limitations except a requirement that he keep track of the amounts he pumped.  Because Foley was allowed limitless pumping, they withdrew the restrictions they had imposed on Strachan.

This decision was appealed by the Gabriola Groundwater Management Society, and Horseshoe Way neighbours with the support of the LTC, but the ALC refused to rescind the decision, saying they did not believe the regulation of groundwater is in their jurisdiction.

Try again

At the Aug. 27 meeting, Houle said Tuesday, he told Bullock that he was “concerned about unrestricted commercial sales of groundwater from ALR land”. Noting that “one of the sellers of water” (Foley) has “stated publicly that he pumps 500 to 600 thousand gallons per season”, Houle said if both purveyors pumped at the same time the “zone of influence” – or the area which would be affected by a drop in water levels – would be about two kilometres.

Unrestricted pumping,  Houle said, is having a negative effect on residential properties in the area, landowners in the area who want to farm but who are concerned about water supply, and the saltwater/freshwater balance in “a very rare saltwater marsh within the zone of influence (of the pumping)”.

Asked how Bullock responded to his request to consult the LTC about renewing the permits, Houle said Bullock said the ALC would do so.

Overall, Houle added, the RDN board supported the changes the ALC is planning (see article this edition).