Resident seeks B.C. Supreme Court review of zoning for planned water extraction

A Vancouver Island resident is asking the B.C. Supreme Court to weigh in on a zoning decision made by the Comox Valley Regional District (CVRD), in an effort to prevent water from a communal aquifer being extracted and sold. 

The water is used for homes and farms in Merville, an unincorporated coastal community with a population of about 2,300 people that lies between Courtenay and Campbell River, and about 200 kilometres northwest of Victoria.

Bruce Gibbons is the founder of the Merville Water Guardians, a group made up of community members who are dedicated to protecting the aquifer. 

Gibbons has now asked the B.C. Supreme Court for a judicial review of a decision made by the CVRD in March that allows Christopher MacKenzie, also of Merville, to move forward with his application for a water extraction licence.

The district voted 2-1 that the treatment, storage and distribution and sale of water fell under the zoning of a home occupation business. The CVRD then recommended the province approve a licence for MacKenzie.

Gibbons argues the decision contravenes the CVRD's own bylaws, and that MacKenzie's operation should not be classified as a home occupation business, but instead as an industrial business. 

Gibbons says if the court sides in his favour, he hopes it will force the province to cancel the licence application. 

"We're hopeful that the courts will see that there is considerable opposition to this business in the Comox Valley," said Gibbons. 

Drought concerns

An aquifer is an underground layer of water-bearing permeable rock or rock fractures. Water from aquifers can be extracted using a well, which MacKenzie has on his property. 

The Merville Water Guardians are concerned MacKenzie's business could deplete the aquifer, particularly in light of worsening drought conditions in recent years.

MacKenzie's extraction licence would allow him to withdraw nearly 2,000 litres of water from the aquifer per day to sell in bulk 100- to 500-litre vessels. His application for the licence is currently with the province, which has responsibility over water extraction.

"Our board has absolutely no authority or jurisdiction over the actual taking of the water," said CVRD general manager Alana Mullaly, who added that the district shared concerns about the region's water supplies. 

"It's not lost on our board, the fragility of our water sources in in the valley," she said.

Mullaly said the March decision was based on zoning alone and not on environmental concerns, and she acknowledged that the public interest in the case was significant.

She also said a home occupation business is very broadly defined by the CVRD's bylaws and that MacKenzie's case was a simple matter of confirming interpretation of zoning in the region. 

MacKenzie said in an email that a home occupation water-extraction business already exists within the CVRD.

Conditional licence secured in 2017

Gibbons' fight began in 2017 when MacKenzie originally secured a conditional water licence from the province to withdraw and bottle up to 10,000 litres per day from the aquifer. 

The province approved the licence, but when MacKenzie went to the CVRD to obtain zoning approval, he was met with community backlash — with around 200 people showing up to a district meeting to protest the plans — and the zoning was denied. 

In 2021, MacKenzie went back to the province to amend the licence for "waterworks (water sales and water delivery)." 

The province referred that amendment to the CVRD for comment, which led to the zoning decision in March.

Mullaly says even if the decision on zoning stands and the province approves the licence, there are other requirements MacKenzie will need to meet with the CVRD in order to run his business.

They include having a building in which to conduct his business. Mullaly says MacKenzie has not yet come forward with a permit to construct such a building, and she is not sure if he has the intention to proceed with that application or not. 

In an email to CBC News, MacKenzie said the experience of trying to get his plans up and running "has been trying at times."

"But we will always stand by our right to supply premium drinking water from the Comox Valley's highest producing artesian spring to the local community ... to people that don't want to drink city water," he added.

The judicial review in B.C. Supreme Court has been set for Jan. 22, 2024, in Courtenay.