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Legal questions regarding the Oliver Slide

June 26, 2010

West Coast Environmental Law is concerned about the province’s response to the landslide that hit Oliver, BC on June 13th.  The slide was caused by a man-made lake created by Elkink Ranch Ltd. under a water licence – issued under the province’s Water Act – allowing the ranch to use and store water in Testalinden Lake for irrigation.  I’m not going to repeat the history and details of the slide, as this has been covered extensively in the media, but I will  comment on the province’s response and the legal obligations and responsibilities it is citing in response to the slide. 

Testalinden.jpgMore recently, the media picked up on a 2001 report by the Outdoor Recreation Council highlighting the fact that large numbers of BC’s dams are aging, and therefore increasingly prone to failure.  Clearly we need to get answers to the questions arising from the Oliver slide. 

The issues arising from the Oliver slide, discussed in more detail below, include: 

  • Testalinden Lake was considered by the government, prior to the slide, to be a “low consequence” dam, meaning low risk to the public or the environment; this casts serious doubt on the province’s ability to correctly appraise and categorize dam safety;
  • The province has claimed or implied that it was required to conduct audits of all dams every 5 to 10 years, depending on the level of risk.  In reality, however, there is no such legal requirement (there may be a policy in existence – West Coast is still trying to find that out) and the “audits” need not involve physically visiting and examining the dam(s). 
  • West Coast is doubtful, given current staffing levels in the Ministry of Environment, that audits of very many dams have occurred. 

Province’s “For the Record”

Following the slide the province posted a “For the Record” page on dam safety in BC.   In addition to announcing action by the Ministries of Public Safety and the Environment, the web page seeks to educate the public on current requirements for “dam safety”.  The first several bullets seem accurate, but the last few give a misleading impression as to how the the government is monitoring and managing the risks of dams:

  • Dams are classified as: very high consequence, high consequence, low consequence and very low consequence.
  • There are about 2,000 dams throughout the province of British Columbia, of which 1,200 are classified as very low consequence.
  • Classification is based on a number of factors, including: size of the dam and reservoir, downstream assets and downstream population.
  • The Ministry of Environment’s role is to audit dam conditions and performance, and the licence-holder’s inspections and compliance with respect to the regulation.
  • Starting in the year 2003, based on the 2000 regulation, audits are to be conducted every five or 10 years, depending on the classification of the dam.
  • Very high and high consequence dams are audited every five years, and low and very low consequence dams are audited every 10 years.

Dam classification

As the For the Record states, dams may be classified as “very high consequence, high consequence, low consequence, or very low consequence.”  The criteria for determining which classification applies is found in Schedule 1 of the Dam Safety Regulation, and essentially involves evaluation of the likelihood of significant threats to property, human life, infrastructure or the environment.  As the Ministry of Environment has put it:

There are currently 257 High Consequence dams and 31 Very High Consequence dams in British Columbia. If the water stored behind any of these dams is released suddenly as the result of a dam failure, there would likely be loss of life, significant social and economic loss or severe environmental damage to the area downstream.

Very high and high consequence classification requires more frequent monitoring and inspections by the dam operator, and, according to the province, more frequent audits by the Ministry of Environment.  Conversely, very low consequence dams (of which there are approximately 1200 in the province) that are less than 7.5 metres in height and not holding massive amounts of water are not even subject to the Dam Safety Regulation

Hindsight is always 20-20, and given the damage caused by the slide, the Testalinden Lake dam should clearly have been listed as a very high or high consequence dam; however, it was not.  The Ministry of Environment website provides a list of the dams in the Kootenay/Okanagan region that had a very high or high consequence classification, and the Testalinden Lake dam does not appear on that list.  At least one media source has mentioned that the dam was classified as low consequence, although there’s been surprisingly little mention of this misclassification in the news stories.  West Coast has asked the Ministry of Environment to confirm what the actual classification of the Testalinden Lake dam was before the slide, but have not yet received a response. 

While dam safety officers, employees of the Ministry of Environment, determine the classification of dams, they apparently do so in large part based on the basis of information and reports provided by the dam owners.  Given that a higher classification means more legal responsibility for the operators, giving owners an incentive to downplay the risks associated with their dam, one hopes that the Ministry is frequently double checking the information provided.  

The apparent misclassification of the Testalinden Lake Dam raises questions about whether there are other dams which have been similarly misidentified and how such classifications are made.  How many of the 1,200 dams that are considered very low consequence, and the more than 500 considered low consequence, actually do post a significant risks to the public or the environment?

The Province’s Auditing

The Province has emphasized that its role in terms of dam safety is to “audit dam conditions and performance, and the licence-holder’s inspections and compliance, with respect to the regulation.”  The province’s For the Record page attempts to give the impression that the government has, for several years, exercised a high level of government oversight over dams:

Starting in the year 2003, based on the 2000 regulation, audits are to be conducted every five or 10 years, depending on the classification of the dam. … Very high and high consequence dams are audited every five years, and low and very low consequence dams are audited every 10 years.

This statement seems to be incorrect or misleading on a couple of grounds:

  • There is no requirement for audits in the 2000 regulation, which sets out legal requirements for inspections by the dam operator, but none for government auditing.  The government may have a policy of conducting such audits, but such a policy would represent a goal, rather than a binding legal requirement.  West Coast has been unable to find such a policy on the Ministry of Environment’s website, and have requested from the province a copy of any such policy (we will post it if received).  Moreover, as the Vancouver Sun reported, the Ministry has been evasive when asked questions about the audits which have been conducted since 2003;
  • While the province’s web page does mention both audits and inspections, it does not explain the difference between the two.  As the province’s audit checklist explains: “This Audit is not an Inspection of the dam. The owner is responsible for dam inspections.”  While a good auditing procedure is important, the audit checklist does not suggest a very in depth auditing procedure.  We have asked the Ministry how frequently audits involve actual visits to the dam site, but have not yet received a reply. 
  • As the 2000 Regulation does not even apply to the vast majority of very low consequence dams, it is difficult to know what an audit of such dams would actually review; and
  • To the extent that such audits involve more than the most superficial review of documents provided by the proponent, West Coast agrees with the experts who are deeply skeptical that the Ministry can meet the target of an audit of each and every dam every 5-10 years given current staffing levels.  While the Ministry has 10 (according to some media reports) or 11 (according to a 2009 list on the Ministry’s website), only 3 staff based in Victoria are responsible for dam safety on a full time basis; the others have other water-related responsibilities.

There are a lot of unanswered questions about the landslide and about the government’s oversight of such dams.  Clearly, however, checking on the safety of dams before accidents occur requires adequate funding for the Ministry of Environment – a ministry which has been cut to the bone over the past decade or more. 

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Andrewblogphoto.jpgBy Andrew Gage