Reclamation Standards for Water Courses and Water Quality

Overview BC Law

Legal protection of water in BC is provided under the Water Act, the Water Protection Act and the associated regulations. The Water Act Regulations requires that streams be returned to their “natural state”¹⁸² and prohibits the alteration of watercourses without a permit. The Water Act Regulations also state that “no substance, sediment, debris or material that could adversely impact the stream is (i) allowed or permitted to enter or leach or seep into the stream from an activity, construction, worksite, machinery or from components used in the construction of any works, or (ii) placed, used or stored within the stream channel”.¹⁸³ However, as far as water quality is concerned, nothing is provided in either of these Acts or associated regulations to set water quality standards for water used for industrial purposes. Notably, section 2(e) of the Environmental Management Act, which previously governed non-potable water quality standards for industrial water use has been repealed. In addition, under the Water Act, water used for everything from hydraulic mining to processing ore and washing coal is explicitly excluded from being considered as ‘industrial use’ for rentals, usage fees, and tariffs.¹⁸⁴ Only water used for equipment maintenance (cleaning & cooling), testing, and flushing ore is considered ‘industrial.’  Thus, there are no water quality standards that consistently apply to all mine sites across the process. This is of particular concern to First Nations and remote communities across the province that rely on water not considered, or explicitly excluded, from the provincial mining laws.

The HSR Code only briefly addresses three water related issues: water quality, drainage and production capacity. It requires that watercourses be left in a manner that ensures long-term stability.¹⁸⁵ In addition, watercourses must be reclaimed to a condition that ensures that:¹⁸⁶

• Drainage is restored to either original watercourses or to new watercourses that will sustain themselves without maintenance; and
• Level of productive capacity is not less than pre-mining productive capacity (unless the miner can provide evidence that demonstrates, to the satisfaction of the Chief Inspector, the impracticality of doing so).

If water quality from any component of the mine exceeds the applicable provincial water quality standards in the receiving environment, BC law mandates that remediation strategies be implemented “for as long as is necessary to mitigate the problem … when so required by the Chief Inspector.”¹⁸⁷ This is problematic for two reasons; first, the discretion granted to the Chief Inspector provides for potential exemptions from this important legal requirement; and second, to ensure these requirements are met, a long-term water treatment facility may be required.

Provincial policy lays out suggested requirements for the long-term protection of watercourses, including:

• Soil handling plans, and erosion control and sediment retention plans to include in reclamation programs;¹⁸⁸
• Plans for the protection of watercourses and water quality during construction, throughout the mine life, and following closure. Such plans should include:¹⁸⁹
  • prediction of effluent quality for all disturbances;
  • erosion control, sediment retention, and prevention of watercourse disturbance during the construction phase; and
  • geotechnical & hydraulic stability assessments for all water diversion, interceptor, and sediment retention structures.

In summary BC law broadly mandates long-term protection of watercourses, while policy provides more detailed guidance. In contrast, other jurisdictions have granted greater legal weight to the long-term protection of watercourses. For example, Manitoba requires “the restoration of all watercourses to their original courses or directed to new courses that will sustain themselves in the future without maintenance and that are consistent with the intended future use of the land”. ¹⁹⁰ Other innovative Recommended Solutions are described below.

Issue

BCs laws contain few requirements regarding watercourse rehabilitation, water quality standards and long-term water treatment. Concurrently, the Chief Inspector retains significant discretion regarding the application and enforcement of these minimal requirements.

Recommended Solutions

Prohibit mining operations from requiring long-term water treatment

[Tags: Water; Decommissioning]

The requirement to maintain long-term water treatment facilities poses an ongoing potential risk to local communities who remain in the area long after the mine is closed. It has therefore been recommended that regulatory authorities deny any mine proposal requiring long-term water treatment for which an end-date cannot be predicted with a reasonable degree of certainty.¹⁹¹ This is recognized in mine reclamation guidelines adopted in the Northwest Territories, which state that effluent treatment facilities may be used as a progressive reclamation tool, but are not appropriate for final reclamation.¹⁹² In Ontario, legal provisions require all tailings, rock piles, overburden piles and stockpiles to be rehabilitated or treated to ensure permanent effluent quality.¹⁹³ Although the authors were unable to find specific laws prohibiting mines from meeting water quality objectives by using long term water treatment facilities, such a law would help preserve long term water quality and protect the public purse of future generations.

Require hydro-geological analysis of reclamation plans in sensitive areas

[Tags: Reclamation Plans; Water; Ecology]

BC law requires a mine plan to be submitted as part of the initial mine permit application. This plan must include the “source, use and water balance for any water required in the operation” and “overall site water balance”.¹⁹⁴ There are, however, no legal requirements to apply this information to reclamation planning.

In contrast, other jurisdictions mandate that hydro-geological studies be completed with a focus on the reclamation plan. These types of studies assess subsurface hydrologic and geologic conditions in a specific area. Data on the type and thickness of geologic materials and groundwater presence, flow patterns and quality is collected and analyzed to gain an understanding of the groundwater source.

For example, in Washington a thoroughly documented hydro-geologic analysis of the reclamation plan may be legally required whenever mining is contemplated in any of the following areas:¹⁹⁵

• Critical aquifer recharge areas;
• Special protection areas;
• Public water supply watersheds;
• Sole source aquifers;
• Wellhead protection areas; and
• Designated aquifer protection areas.

Implicit in this legal requirement is knowledge on the surrounding area and watershed. Thus, watershed and groundwater aquifer mapping will be required to meet this legal requirement.

Mandate restoration of meandering watercourses and rehabilitation of stream-banks

[Tags: Restoration; Water; Rehabilitation; Erosion; Sedimentation]

Reclamation experience has shown that watercourse restoration must include the re-establishment of meandering flow patterns to be effective. Although rebuilding meandering flows is implicit under BC law, it is a clearer legal requirement in other jurisdictions. For example:

• Washington law requires that disturbed drainages be “graded and contain adequate energy dissipation devices so that essentially natural conditions of water velocity, volume, and turbidity are re-established”.¹⁹⁶ This work must be completed within 6 months of reclamation of each segment of the mine.¹⁹⁷
• California law requires that the reclamation plan include a description on the manner in which the affected streambed and stream banks be rehabilitated to a condition that minimizes erosion and sedimentation.¹⁹⁸ This ensures adequate attention at the planning stage is placed on the rehabilitation of these important buffer zones to minimize erosion and sedimentation.

Specific legal provisions such as these ensure that critically important stream reclamation activities are adequately considered.

Mandate erosion control measures

[Tags: Erosion; Water; Drainage]

Many jurisdictions have strong legislated erosion control requirements. For example, in California, legal provisions clearly mandate that erosion and sedimentation “be controlled during all phases of construction, operation, reclamation, and closure of a surface mining operation to minimize siltation of lakes and watercourses”.¹⁹⁹ In addition, legal provisions mandate that surface runoff and drainage from mining activities be controlled by specific erosion control measures (i.e., berms, silt fences, sediment ponds, re-vegetation, hay bales) to protect surrounding land and water resources from erosion, gullying, sedimentation and contamination.²⁰⁰

Promote joint reclamation planning where two or more mines share a common boundary

[Tags: Reclamation Plans; Watershed]

Washington State has developed an innovative approach to reclamation plans: where two or more mines share a common boundary, the regulatory authority may require submission of a joint reclamation plan “to provide for optimum reclamation or to avoid waste of mineral resources”. ²⁰¹ This approach is particularly appropriate to BC where mineral claims are generally rectangular in shape and therefore do not correspond to natural watershed boundaries. Where two or more mines can combine reclamation efforts, there is greater opportunity for a watershed management approach that recognizes natural hydrological flows and that more adequately takes into account cumulative effects.