This article was originally published by the Canadian Centre for Policy Alternatives.

The provincial government has ordered Progress Energy to drain virtually all of the water trapped behind two massive dams the company built in violation of key provincial regulations.

The company was told on October 31 to drain all but 10 per cent of the water stored behind its Town and Lily dams near the Alaska Highway north of Fort St. John by Chris Parks, assistant director of compliance and enforcement with B.C.’s Environmental Assessment Office (EAO).

The order comes after Progress Energy filed an extraordinary application this summer with the EAO asking the provincial environmental regulator to retroactively “exempt” the two dams from required environmental assessments. Both dams are higher than five-storey buildings.

By law, Progress should have filed its exemption applications well before the projects were built, not after. Progress built its Town dam in 2012 and its Lily dam in 2014.

Both are part of a vast network of unlicensed dams that the Canadian Centre for Policy Alternatives (CCPA) first reported in early May have been built across northeast B.C. by fossil fuel companies to trap massive amounts of freshwater used in gas drilling and fracking operations.

ICYMI: A Dam Big Problem: Fracking Companies Build Dozens of Unauthorized Dams in B.C.'s Northeast

Numerous organizations, including the Blueberry River First Nation (BRFN), on whose traditional territory the dams were built, have written to the EAO objecting to Progress’ exemption request.

“BRFN has been repeatedly sounding alarm bells to the Crown (including through affidavits filed in court) about the diminished water quantity in our territory,” wrote Blueberry River First Nations lands manager Norma Pyle. “We have been watching lake levels drop, muskeg disappear, mineral licks dry up and streams reduce to small versions of their former selves.”

"Blueberry’s concern goes beyond these two dams to the failure of regulatory oversight in their territory — it’s not just these two dams, but dozens of them,” Blueberry River legal counsel Maegan Giltrow added in a separate e-mail statement.

“This is in the face of Blueberry’s repeated concerns to the Crown about the diminishing water quality and quantity they are seeing. This September the Blueberry River itself ran dry — Blueberry members haven’t seen that before. Meanwhile, hundreds of thousands of cubic meters of freshwater in their territory is being illegally impounded for oil and gas operations.”

“And Blueberry had to learn about the problem from media reports — where was the regulator? The Nation still doesn’t have answers to the questions it has put to the Oil and Gas Commission about all the illegal dams and water use."

#Fracking Company Ordered to Drain Two Unauthorized #Dams in B.C.’s Northeast https://t.co/uc9uj2v8y0 #bcpoli #progressenergy #petronas @BCOGC

— DeSmog Canada (@DeSmogCanada) November 10, 2017

Public Inquiry into Fracking Needed

The presence of the dams — and a host of additional issues relating to how Progress Energy and other fossil fuel companies use the water stored in them for their fracking operations — are among the concerns that triggered a call this week by 17 organizations (including the CCPA) for a full public inquiry into natural gas industry fracking operations in B.C.

In addition to the proliferation of unlicensed dams, the call for an inquiry was prompted by troubling events in the northeast of the province, including evidence of powerful earthquakes triggered by fracking, escalating water usage at B.C. fracking operations, rapidly increasing methane releases at gas well sites, local health impacts and ongoing impacts to First Nation lands.

ICYMI: Coalition Calls for Public Inquiry Into B.C. Fracking

The groups encouraged the government to examine the impacts of fracking and related operations on First Nation lands and resources in particular.

“We are deeply troubled that this dam-building free-for-all occurred on First Nation lands, that First Nations were not fully consulted about the true size and extent of these dams, and that our Indigenous Title, Rights and Treaty rights are still completely ignored or denied. There are still no substantive or meaningful opportunities to fully participate in decisions around how water resources are managed in our respective territories,” said Grand Chief Stewart Phillip, President of the Union of B.C. Indian Chiefs.

“We need a credible, strong, independent inquiry to get to the bottom of this.”

The Environmental Assessment Office has yet to say how it will respond to the Blueberry River First Nation’s letter and those of many other organizations urging the government to reject Progress’ application for exemptions. David Karn, a senior public affairs officer with the Ministry of Environment and Climate Change Strategy, said in an e-mail that he expects the EAO to make a decision about Progress’ exemption request “in early 2018.”

Both dams are considered “major projects” under B.C.’s Environmental Assessment Act because both exceed a critical height threshold of 15 metres. The Lily dam dramatically exceeds that threshold. It is 23 metres high or as tall as a seven-storey apartment building.

B.C.'s Environmental Assessment Office has ordered Progress Energy to drain almost all of the water from this unauthorized dam. Photo: Ben Parfitt

Build it First, Ask for Permission Later

Both dams are among more than 50 large earthen structures built by energy companies on Crown or public lands in northeast B.C. that are also subject to Treaty 8, the 1899 agreement reached between the Crown and the region’s First Nations.

Most or all of the dams were built without the companies first obtaining key provincial authorizations such as water licences. In addition, engineering specifications appear to never have been submitted to and approved by provincial authorities before the dams were constructed.

Dam safety and water licensing officials with the provincial Ministry of Forests, Lands and Natural Resource Operations are also investigating additional fracking dams that have been built on private lands, including farmlands within the provincial Agricultural Land Reserve. B.C.’s ALR was created in 1973 to preserve farmland.

It now falls to B.C.’s Oil and Gas Commission (OGC), which allowed the dams to be built without the proper permits first being obtained, to retroactively review dozens of pending water licence applications, and to assess the health, safety and environmental risks posed by dams that may not have been built to proper engineering standards.

The first batch of retroactive water licence applications came in late December last year when Progress Energy applied for 13 such licences on a single day.

Each application was for water rights at dams that had already been built and that were already impounding water. The applications did not include the water licence requests at the two dams currently under review by the EAO.

Recently, investigative journalist and author Andrew Nikiforuk reported how the OGC sent staff on a flyover of 51 unlicensed dams following publication of the CCPA’s initial research in May.

The inspections revealed serious problems at seven dams, or 14 per cent of those visited.

ICYMI: B.C. Regulator Finds Numerous Frack Water Dams Unsafe, At Risk of Failure

Progress Energy built five of the seven problematic dams (these five do not include the two before the EAO) and ConocoPhillips built the other two.

Noted problems included erosion, slumping and water overflowing the top of some dams.

According to documents obtained through numerous Freedom of Information requests filed by the CCPA, all of the unauthorized dams were purpose-built to trap freshwater used in fracking operations, where huge quantities of water are pumped under intense pressure to fracture or crack open deep rock formations so that trapped methane gas is released.

During a Progress Energy fracking operation north of Fort St. John in 2015, 160,000 cubic metres of water — the equivalent of 64 Olympic swimming pools — was pressure pumped underground at a fracking operation, triggering a 4.6 magnitude earthquake.

Dam Safety at Issue

The EAO’s order to Progress requiring it to drain its Town and Lily dams does not speak directly to the issue of how safe or unsafe those structures may be. Nor does it speak to the broader question of how the dams came to be built under the OGC’s watch, or whether or not the dams may be at risk because of ground motions triggered by nearby fracking operations.

The order notes, however, that “an environmental assessment certificate has not been issued for the dams” and because a certificate has not been issued, the Environment Minister “may order that the construction, operation, modification, dismantling, or abandonment of the project cease, either altogether or to the extent specified by the Minister, until the proponent obtains an environmental assessment certificate.”

Progress is then ordered to:

1. Maintain water volumes stored by the dams at no more than 10 per cent of live storage capacity unless otherwise directed by the EAO’s compliance and enforcement division/branch.  
2. Monitor and record water volumes on a weekly basis during frozen conditions and on a daily basis during conditions where flowing surface water is present, and provide that information to EAO compliance and enforcement upon request.

Following this order, Progress Energy’s president and CEO Mark Fitzgerald issued a statement to the Globe and Mail claiming “that it was his own company that identified problems with some of its dams — including the failure to obtain proper authorizations — and brought the findings to the attention of the provincial government.”

The article continued: “He said an engineering review of the company’s water-holding facilities found no structural issues, but noted that some were larger than permits allowed.”

"We own those mistakes, and are working with the [Oil and Gas Commission] to correct them," Fitzgerald said to the Globe and Mail.

“What's important to me is that we will not make these mistakes again. We're committed to working closely with the regulators and to managing our operations in an environmentally responsible manner."

An unauthorized Progress Energy dam where millions of gallons of freshwater was found impounded in early April. It is among “dozens” of unpermitted dams spread across northern B.C. Photo © Garth Lenz, all rights reserved.

Self-reporting Doubts

But records obtained from the Oil and Gas Commission through the CCPA’s various Freedom of Information requests paint a different picture.

Progress Energy did not suddenly arrive at the conclusion that some of its dams were built without the required authorizations.

Rather, the company — along with all its competitors operating in northeast B.C. — was told by the OGC in May 2016 to submit lists of all dams that it had built. Why the OGC apparently didn’t know the answer to the question is not clear.

Two months later, after the companies had reported back to the Commission, then OGC chief hydrologist, Allan Chapman, wrote an e-mail to the Commission’s vice-president of applications, James O’Hanley, and its vice-president of operations, Lance Ollenberger, stating:

“Hi James and Lance. Progress Energy has confirmed that they built two Freshwater Storage Sites that exceed the EA Reviewable Projects Regulation of 15 metres. In their submission from Wednesday, they indicate that one is 23 metres, which is quite breathtaking. I have advised them they need to contact the EAO.”

So clearly, the company did not voluntarily approach the Environmental Assessment Office. It was compelled to do so by the regulator, which should have prevented the dam from being built in the first place.

Several problems with the Lily dam were also subsequently noted by Progress Energy in its own commissioned engineering report submitted to the EAO. The Lily Dam Project Description document noted signs of seepage, or water leaking from behind the dam’s walls, and improperly graded water outlets for the dam. According to the engineering report, both issues had the potential to cause severe damage to — or failure of — the dam, if left unaddressed.

Whether those troubling words of warning influenced the Environmental Assessment Office’s decision to order Progress to drain most of the water from its two largest dams is unknown.

If the company's application for exemption is ultimately denied and the two dams are finally subjected to a full provincial environmental assessment, the answer to that question and more may finally see the light of day.

Even so, this case drives home why B.C. needs a full public inquiry into fracking activities.

Image: The Lily Dam wa built by Progress Energy without a provincial environmental permit. Photo: Progress Energy

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

BC Hydro violated its environmental assessment certificate for the Site C dam project, according to a B.C. government report released Thursday.

The inspection report, from the B.C. Environmental Assessment Office, detailed how BC Hydro failed to develop acceptable mitigation measures for an aboriginal sweat lodge and suspected burial site, and cannot legally proceed with a bridge related to Site C highway relocation until it does so.

This means BC Hydro’s controversial highway re-location will need to be assessed again by the Environmental Assessment Office and an alternate route long supported by the First Nations may be considered after all.

“BC Hydro has not developed mitigation for known cultural values in the Bear Flats area, including the sweat lodge (and nearby camp) and the potential burial site…” noted the report, which points out that BC Hydro is well aware of the cultural importance of the area for local First Nations.

BC Hydro has been warned of non-compliance with regards to the 455-metre bridge BC Hydro planned as part of the highway relocation in an area of the valley called Cache Creek-Bear Flats, according to the 54-page report issued following a five-month investigation.

ICYMI: First Nations Chiefs Say Site C Highway Route Will Desecrate Graves, BC Hydro Disagrees

“As BC Hydro has been advised that the [Cultural Resources Management Plan] is not ‘to the satisfaction of’ the EAO and that it must be updated prior to conducting construction activities that may impact known cultural resources, it may be a non-compliance if BC Hydro were to proceed to conduct construction activities that may impact known cultural resources,” the report reads.

West Moberly First Nations Chief Roland Willson welcomed the findings, saying that BC Hydro has been “out of line” with his nation and the Prophet River First Nation. They jointly filed a complaint with the EAO in early April.

“A Crown Corporation should be setting the bar on how other [resource project] proponents have to deal with First Nations,” Willson said.

“They’re supposed to be setting the benchmark on this thing. What they’re doing is lowering the benchmark.”

West Moberly Chief Roland Willson. Photo: Jayce Hawkins | DeSmog Canada

Willson said the two First Nations repeatedly asked BC Hydro and the former B.C. government to use a short-listed alternate route for the Site C highway relocation and Cache Creek bridge to avoid “desecrating” aboriginal grave sites and to protect the sweat lodge and traditional gathering place at the confluence of Cache Creek and the Peace River.

ICYMI: ‘Stop the Losses’: Former BC Hydro CEO Calls for Cancellation of Site C Dam

But BC Hydro contractors clear-cut much of the Cache Creek area in February and March, after expropriating property from third generation Peace Valley farmers Ken and Arlene Boon, leaving the land looking like a “moonscape,” according to Willson.

Willson said he was at a meeting in Vancouver in March with BC Hydro representatives to discuss the issue of the Site C highway relocation when the forest near the sweat lodge and grave site was mulched.

“They were cutting the right of way as we were down there trying to solve the issue,” Willson said. “Sneaking small pox into blankets and handing them to us, it’s the same damn thing as how they’ve been treating us.”

“They just ignore us, belittle us, disregard anything we have to say.”

A lawyer for the First Nations said about 200 letters have been sent to the Environmental Assessment Office and BC Hydro by the First Nations on this issue alone.

At the time of publication BC Hydro media relations spokesperson Mora Scott had not replied to a request for comment.

Last year, BC Hydro apologized for the devastating impacts that the W.A.C. Bennett dam had on First Nations, who lost villages, food sources, burial grounds, spiritual areas, gathering places and transportation routes when the dam’s reservoir flooded their traditional territory.

According to BC Hydro documents, the $8.8 billion Site C dam would destroy 42 sites of cultural and spiritual significance for First Nations, including burial grounds, medicine collection areas, offering places for ceremonies and prayers, and locations associated with oral histories and place names.

Willson said one aboriginal burial site beside the chosen highway route was already known by First Nations and recorded by the B.C. government’s archeology branch, but another site along the new highway’s centre line was only discovered last year.

Logging and construction along the Peace River in September 2016. Photo: Garth Lenz | DeSmog Canada

First Nations brought in an archeologist who confirmed the site had all the hallmarks of a Dunne-Za grave — a depression in the ground, high on a hill, at the confluence of two rivers “where bodies are usually laid to rest, so that they have a view.”

Dunne-Za custom does not permit the disturbance of graves, and the First Nations have said the only acceptable mitigation is to move the highway to the short-listed route.

The EAO report casts new doubt on former premier Christy Clark’s claim in June that even a slight delay in re-routing the provincial highway out of the Site C flood zone and building a new highway bridge over Cache Creek — a delay requested by John Horgan shortly before he became premier — would tack on an extra $600 million to Site C’s $8.8 billion price tag.

In fact, BC Hydro is in danger of non-compliance until it makes changes to its Heritage Management Resource Plan and Cultural Management Resource Plan to ensure mitigation measures for the sweatlodge and gravesite are developed prior to construction. The plans are are “not to the satisfaction of the EAO,” said the report.

.@BCHydro Violated Rules for Protecting #Indigenous Sites, Must Re-Evaluate #SiteC Bridge Construction https://t.co/XDg7lwPWWq #bcpoli

— DeSmog Canada (@DeSmogCanada) August 31, 2017

The report said BC Hydro must either adopt First Nations’ recommendations for avoiding harm to the sweat lodge and suspected gravesite — moving the highway to the short-listed route to avoid the area entirely — or develop new mitigation measures that meet the requirements of the EA certificate.

Any new mitigation measures must include “a detailed explanation with supporting analysis regarding why the mitigation proposed by the complainants is not necessary, is impractical, or is otherwise unreasonable,” said the EAO.

BC Hydro’s choice of highway route, according to the First Nations, would create disturbances that include “noise from truck traffic, safety (having a highway within the area where ceremony participants, including children, walk between rounds, etc.) as well as the destruction of the camp site itself, which with [the] feast house is tied to the enjoyment of the sweat and related cultural practices.”

The report determined that the general highway realignment route is consistent with the Site C environmental assessment certificate. But the bridge over Cache Creek is not, and BC Hydro must apply for an amendment to its environmental assessment certificate because it has changed the location and length of the bridge from the design originally approved, according to the EAO report.

BC Hydro has said its preferred highway route at Cache Creek was cheaper than the short-listed alternative, would affect less agricultural land and would allow for more passing opportunities for drivers.

Yet the Crown Corporation refused to release detailed information — called a Multiple Accounts Evaluation — about the relative costs and merits of the two routes, despite repeated requests from the First Nations and the Peace Valley Landowners Association, representing 70 landowners affected by Site C.

“They have a very viable option that is a win-win-win for everybody that they just refuse to acknowledge,” said Willson.

Cache Creek is one of six bridges in the Peace River Valley that will have to be rebuilt as part of a six-section, 30-kilometre highway relocation for Site C that BC Hydro documents said would cost approximately $530 million.

The area around Bear Flats-Cache Creek has “profound significance as Treaty 8 people have gathered, camped, hunted and practiced ceremony here since time immemorial,” according to a 2013 BC Hydro report that quotes NENAN, the Nenan Dane-zaa Deh Zana Child and Family Services Society, which holds annual youth and elders gatherings at Bear Flats.

Former BC Hydro CEO Jessica McDonald, who was fired last month by the new B.C. government, said in April that BC Hydro was  “absolutely committed to meeting the terms and conditions of it environmental assessment certificate.”

“A successful project from my perspective…is environmentally sound and meets the standards that we are held to,” McDonald said in an interview with Stuart McNish for the broadcast Conversations That Matter, a partner program with the Centre for Dialogue at Simon Fraser University.

EAO Administrative Inspection Report Regarding Site C Hwy 29 Alignment_30Aug2017 by DeSmog Canada on Scribd

— With files from Sarah Cox

Photo: Bear Flats by Garth Lenz

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.