An ongoing disagreement over a water pipe coming out of a small creek near Sayward, it seems, could be headed to court.
It all started about three and a half years ago when a sample from the Blandy Creek Waterline was sent to Island Health.
“We’re not entirely certain how it came across their desk, but that doesn’t really matter,” says Rebecca Sinclair, one resident on the waterline. “My understanding is that a water sample was sent in for testing, and [Island Health], of course, questioned where it came from.”
Sinclair says she and the other residents on the waterline – basically a pipe that comes out of Blandy Creek, down the side of Mount H’kusam and splits into separate pipes to service nine houses – were then informed their water system is in contravention of the BC Drinking Water Protection Act and would need to be replaced.
The act, according to the province, “covers all water systems other than single-family dwellings…and sets out certain requirements for drinking water operators and suppliers to ensure the provision of safe drinking water to their customers.”
And therein lies the residents’ confusion: the waterline is only a “system” because it splits from the main pipe to service more than one house. And it’s not “operated” by a “supplier.”
The waterline has existed for as long as anyone in the area can remember. Nobody even knows who installed it in the first place.
“And if I was to run that exact same pipe that’s in the creek right now, with no amendments or changes to it at all, and it only came to my house, Island Health wouldn’t care and the act wouldn’t apply,” Sinclair says. “You can have as many people getting their water from the same stream as you like, but they each have to have their own pipe or hose.”
But because the pipe splits after it leaves the creek, it’s considered a “system” and must abide by the legislation.
Dr. Charmaine Enns, medical health officer with Island Health, says while she understands and is “sympathetic” to the residents’ concerns, Island Health doesn’t have a choice but to enforce the act once it becomes aware of a system that is in contravention of it.
“Our job, as agents of the Crown, is to enforce the provincial requirements across a number of issues, and in this case it’s about drinking water,” Enns says. “We didn’t go looking for them. It came to our attention through a complaint, and when we become aware of a system through a complaint, we have to do our due diligence and investigate it.”
And when they investigated the complaint, Enns says, they found a water system that meets the definition of the legislation – and they couldn’t legally ignore it.
Subsequent testing also showed that the water was, in fact, contaminated with bacteria that could cause illness.
The long and short of the situation for Island Health, Enns says, became that the water isn’t safe and they couldn’t allow people to keep using it.
“The water has E. coli,” Enns says. “I don’t have the actual numbers in front of me, but there have been many, many tests, and all but one over three years has come back with coliforms (bacteria that can cause illness) and a number of them have actually had E. coli. And you know it’s bad when you get your first E. coli result.”
Sinclair says the residents were informed that they would have to install some kind of system for treating their water, which they were told would involve hiring a water engineer, send that person up the mountain to the stream and look at their current system and do a risk analysis and create a plan to make the system comply with the act.
“Then that plan has to be submitted to Island Health, and if it’s approved, we would receive a licence to construct the system and start the construction on the system, part way up a mountain where there’s no power,” Sinclair says. “And then we would have to register as a community water source and there needs to be one specified individual who is registered as the ‘purveyor’ of the water, and that person is then responsible for the ongoing operation and maintenance of the system and Island Health requires them to be trained as a water technician.”
And the residents will be expected to pay for all of that to happen, Sinclair says.
But Enns says Island Health would have been more than happy to listen to any proposals from the residents that would have brought their water into compliance with the legislation, but no progress was being made on that front.
“Our public health officer has sent out multiple letters looking to engage with people, and not very many have called her back,” Enns says. “We’ve held two public meetings, very close to those residences – not even in Sayward but in a hall right by where they live – and attendance was very poor.”
And so a letter was sent out to the residents on the Blandy Creek waterline last November saying Island Health has engaged legal counsel who will be seeking a court order to force the residents into compliance with the act.
“Our health protection staff, I can assure you, do everything they can through conversation, education, collaboration; they try everything to get people to come into compliance with what’s required of them – and it’s very, very unusual to get to this point of the game where we need to get legal counsel involved,” Enns says.
Sinclair, however, says the residents have been doing their best to work towards a solution. It just needs to be one they can afford.
“We were initially told that we could install point-of-entry systems with UV treatment and filters or whatever at each home,” Sinclair continues, “and we were looking into those – we even had quotes for what kind of price we could get if we got a dozen of them.
“We were going down that road. But then we were told that wasn’t ever going to be sufficient,” Sinclair says. “We felt like they kept changing the requirements and were unwilling to listen to anything other than going down the whole road of setting up a major water treatment system for just a few homes.
“It seemed like that was the only idea they would entertain, and we just can’t do that. Financially, we just can’t. It’s not that we’re unwilling to do what’s necessary, it’s that we’re incapable. And if it’s actually about their fear of litigation, we’ve offered to sign whatever waivers or documents they can draw up to say we accept the risks of being on the system we’re using, or whatever. I mean, I just don’t get why they’re being so hard-nosed about this.”
But Enns says it’s not that Island Health is being overly strict. They simply have a public health responsibility, she says.
“I appreciate, and so do our health protection staff, that for these small systems it can be really burdensome to meet these requirements,” Enns says. “I get it. It does cost money to have safe drinking water. ”
Enns says, however, the dispute is now in the hands of the lawyers and judges, so, unfortunately, any further ideas the residents come up with to bring their water into compliance with the act will have to go to the Island Health’s legal counsel instead of Island Health.
“We’re still very committed to working together and wanting this to be resolved, but the reality is that we need to work under the provincial legislation,” Enns says.
“There’s a level of discretion and there’s progressive enforcement,” Enns says. “I mean, how long do you wait before you move it up to the next level? I think 3.5 years is enough time to wait for action.”
As for Sinclair, she says there has been talk amongst the residents of getting their own lawyer, “but how hopeful is that? Knowing what we’re up against, it could very well just be money down the drain to do that.
“I’m not sure what we’ll do next, but at least if we lose our homes to pay our $100,000 a day fines, we can go to jail and have a place to live, I guess.”