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(BY HUGO)

On 28 May 2010, the Québec Ministry for Sustainable Development, Environment and Parks published an implementation report (in French) for the Groundwater Catchment Regulation (GCR) covering 6 years from June 2002, the date of entry into force, to June 2008.

The Report provides limited factual data on the implementation of the GCR. It is released almost 2 years after it was due to be made public further to section 64 GCR. The Report bears no date and some of the acronyms listed at the beginning are not used in text of the version released. Nevertheless, some points are worth analysing.

Data on groundwater uses

The Report first provides a portrait of groundwater uses in Québec:

- 20% of the Québec population is dependent on groundwater sources, that number being equally divided between individual wells and municipal systems;

- 54% of the groundwater withdrawn in Québec serves for domestic purposes. Other uses are divided as follows: 39% for agriculture (i.e. 23% of aquaculture and 16% for livestock and irrigation); 7% for industrial usages; 0,08% for drinking water bottling.

These numbers are only indicative as they originate from estimations dating back to 1987. Data on groundwater resources and usages in Québec is insufficient and hampers improved water resources management.

The Ministry attempted to remedy this situation through section 59 GCR, subjecting the owners of catchment sites that yield at least 75 m3 of groundwater per day to an obligation to notify with respect to the location of catchment works, the type of water use, the volume of water drawn daily and the number of days per year when water is drawn. However, according to the Report (p.33), only 251 well owners declared their withdrawals.

Other sources of information stemming from obligations under sections 20 and 21 GCR have not yet resulted in the development of a complete database for groundwater usages in Québec (p.36-37), although the Ministry has received 27726 drilling reports in conformity to section 20 form 2003 to 2008 (p.14).

Further progress on this issue is likely to result from the implementation of the 2009 Regulation respecting the declaration of water withdrawals, that specifically aims at ensuring better knowledge and better protection of the environment by allowing the Government to assess, through the declaration of water withdrawals, the impact of the withdrawals on water resources and ecosystems.

Quantitative management

Under section 31 GCR, the following withdrawals are subject to a ministerial authorisation:

1- groundwater catchment projects having a capacity less than 75 m3 per day intended to supply more than 20 persons;

2- groundwater catchment projects intended to supply water to be distributed or sold as spring water or mineral water or to be an ingredient used in manufacturing, conservation or processing and stated as spring water or mineral water on a product; and

3- groundwater catchment projects having a capacity of 75 m3 or more per day or that will bring the capacity to more than 75 m3 per day.

The Report indicates that 277 authorisations (among which 3 for water bottling) have been delivered between 2003 and 2008 (p.28). The Report fails to detail the number of applications received by the Ministry and does not provide information pertaining to the withdrawal volumes authorised. Significantly, the number of authorisations granted for withdrawal projects with a daily capacity above 300 m3 per day, which is the highest volume bracket under the GCR, accounts for half the authorisations granted.

With respect to the scope of the ministerial authorisation regime, the Report notes two problems: 1) the exclusion of mine dewatering from the regime. This is significant because such withdrawals are reported to be the most important in quantity in Québec. This exclusion is deplored by the Ministry although it results solely from an administrative interpretation of the relevant legal provisions that could have been construed otherwise in order to extend the regime to mine dewatering. 2) The exclusion from the ministerial authorisation regime of withdrawals anterior to the implementation of the GCR. This exclusion was possibly responding to a fear at the time of the Regulation's inception (1996 onward) that the imposition of an authorisation regime would in fact be perceived as an expropriation of private property rights in groundwater.

Both these problems related to the scope of the regime will be resolved when the new authorisation regime provided by the Act to affirm the collective nature of water resources and provide for increased water resource protection enters into force (see section 19 (31.74 and 31.75) of the Act).

With respect to the municipal authorisation regime applicable to groundwater withdrawals subject to the GCR but not covered by article 31, the Report does not identify significant implementation problems and recommends the continuance of this regime (p.8).

Qualitative management

The Report makes a series of recommendations for improving the technical standards applicable to wells that are not subject to section 31 GCR in order to improve groundwater quality protection (better well waterproofing to prevent surface to groundwater seepage, minimal distances between wells and wastewater systems or agricultural activities to prevent contamination, ...).

The most significant provisions with respect to groundwater quality pertain to protection areas around wells subjected to the ministerial authorisation regime that restrict agricultural activities to limit possible contamination (sections 24-30 GCR). Among 476 municipalities operating wells and contacted by Ministry in April 2008, 65% had established protection areas, 20% were in the process of doing so, and 14% had not initiated the process. As each municipality may possess many wells, this translated in approximately 130 catchment systems around which no protection area were established.

In some case, the Report recommends additional measures to prevent groundwater contamination. The Report identifies nitrate contamination resulting from agricultural activities as a significant threat to public health and recommends the development of provisions to protect groundwater sources given the high treatment costs once groundwater is contaminated. The report also recommends the extension of restrictions placed on nitrogen fertiliser spreading in the context of agricultural activities to golf course operations.

However, in many cases, the Report recommends relaxing applicable provisions to reduce constraints on agricultural operations (see p. 21-24). In this context, the municipal powers to regulate such activities might come to play an increasing role. The result of the appeal of a 2009 Superior Court decision, Ferme l'Évasion vs Elgin (in French), will be crucial to determine the extent of the municipal powers in this respect (see notably section 27 GCR and section 124 para.4 of the Environment Quality Act).

Compliance

260 notices of offense have been delivered by the Ministry, among which 85% for agricultural activities conducted too near a well, 8% for having sunk a well and started a withdrawal without a ministerial authorisation, 4% for installing or maintaining inadequate fenced perimeters around wells, and 3% for not filing the adequate drilling reports with the Ministry.

Significantly, compliance with section 21 GCR by small well-owners is extremely low: a maximum of 6% among them (possibly 6% of 27726? - the latter number being the number of wells drilled by operators that complied with section 20 GCR) have fulfilled their obligation to have the water from their well analysed and have actually sent the results to the Ministry (p.15). However, no notice of offence has been delivered by the Ministry for such violations.

On this issue, the Report appears to conclude that the obligation to analyse the water quality of new wells not subject to the ministerial authorisation regime should be abrogated. Strangely, the reason invoked for abrogating this obligation is the false sense of security that water quality analyses might generate. Another more credible explanation might be the cost of the analyses, which could make the administration unpopular with well owners if the penal provisions were enforced. Hence, the Report recommends ministerial disengagement and reliance on existing awareness-raising initiatives.