SWN Resources Canada, a subsidiary of Southwestern Energy, and/or agents on their behalf, has been approaching residents along Route 126 in Kent County in preparation for the resumption of their seismic program this coming spring and summer. This has lead to many concerns and questions to social media sites and to our office. People are asking:
“Does allowing water testing pre-seismic work give permission for anyone else to come back to drill?”
“Should we deny the request if we are not in favour of shale gas exploration? And if we allow water testing now, can it be interpreted as if we are allowing or condoning the process of exploring or developing shale gas?”
“Should we let them test our water, or can we refuse?”
“Do I, as the landowner, own the water test results?”
Questions like these are very important, and the fact that people have these questions while the industry is bearing down and forcing landowners to make quick decisions means that there is still a communication gap between government and concerned citizens of the area.
They are difficult questions and we cannot offer a straightforward answer; ultimately, it will be an individual landowner’s decision how to protect themselves. While it is always best to get legal advice if you are unsure, CCNB can offer some guidance.
What is Seismic Testing
Seismic testing is commonly used for many resource extraction processes, including mining and oil and gas. Seismic testing is used specifically to map the underlying geology in order to determine if the proper formations exist for further exploration. Two methods are used — explosives or vibriose trucks (often known as thumper trucks). Both have been used in New Brunswick to explore for oil and gas. The explosives or vibriose trucks send seismic waves through the ground which then bounce off of the geologic formations and return to the surface where they are received by geophones. The rate at which the waves come back to the surface can be interpreted into the type and density of rocks below. This information allows an exploration company to hone in on where it would be most productive to drill wells.
While less impacting than drilling, there have been reported cases of well water issues arising afterwards (one example). Use of explosive devises, which create shot-holes in the ground, can create access to surface contaminants into groundwater if not properly filled in, and it is possible seismic waves sent out by thumper trucks can mobilize sedimentation into a well or cause well integrity problems. Even here in New Brunswick we are aware of complaints of changes to water quality, sometimes only temporarily, from the Minto area, and Petitcodiac and Penobsquis residents note that a seismic program had recently been completed just prior to loss of water in 60 homes.
Whether or not a landowner disagrees or not with allowing shale gas exploration and development, or allows access to their property for seismic testing, we feel that it is extremely important for landowners near seismic programs to have their water quality and quantity tested and documented before and after this activity. There are two options: the process put forward by government in the “new rules for industry” or have it tested yourself.
In the “new rules for industry”, companies are required to test well water of homes that are within 200m of a seismic source, at a cost to the company. The samples must be collected by a qualified third party engineering or geoscience firm licensed to practice in New Brunswick (hired by the operator) and must be analyzed by the Department of Environment and Local Government’s laboratory.
What are landowners’ rights?
While baseline water monitoring is essential, the current distrust between landowners and government and industry is leaving people with questions of their rights in this situation. It is our position that allowing this testing does not give the company permission to pursue any further activity on your land.
A landowner does have the right to refuse to accept this pre-seismic water testing. The government has indicated that in doing so, however, you are opting out of any grievance process that they have indicated will be set up to hear complaints. This means your route of grievance if an issue should arise will be the court system rather than the government’s out-of-court process. If you are to be successful in court, you will need to bring evidence to show that the seismic testing has changed the quality or quantity of your water. A good source of such evidence would be water testing done by a 3rd party accredited laboratory at our own cost with proper chain of custody.
If you chose to allow water testing by the company, it is critical that you get an official copy of the results with an official identification and signature of the lab and technician. Pre and post seismic water analysis should be sent to you as a package after each round of testing. File the water testing results for safe keeping; you may or may not be able to get copy if lost (due to ownership of data). Please note that water tests results are legally required to be submitted to the Department of Environment for inclusion in its provincial water quality database and these results are then required to be available to the Department of Health.
If landowners are still uneasy about the future implications of allowing their water to be tested, they may wish to have their water testing permission agreement (which is required to be signed by the company and the landowner) include additional clauses. They can be handwritten onto the permit and should be initialed by both parties (you and SWN or the contractor working for SWN or any other oil/gas rights holder). Examples of these additional clauses include:
- Signing this water testing permission agreement does not give the company permission to enter my property for reasons other than to collect a water sample.
- The results of any water testing done by the company that arise from the signing of this water testing permission agreement shall not be used by the company as evidence in any court or other proceeding without my written approval.
- Signing of this water testing permission agreement to allow water testing in no way relieves the company of any liability for damages caused to my property or well water caused by the actions or activities of the company or its contractors.
Monitor changes and keep good records
Current government protocols do not include well depth or pressure testing. It is possible that seismic testing could impact well water levels and if that is not being tested, there is no baseline for comparison. In the case of Penobsquis residents appearing before the Mining Commissioner over complaints about lost water, residents were asked to prove that they had water flowing to their taps in the first place. Landowners should make sure to monitor any changes to water pressure.
Take meticulous notes that record any changes to water quality and/or quantity over time, including dates and times of events and changes. Photos and videos are also important pieces of evidence. If issues arise, landowners should immediately file an official report with the Department of Environment.
For direct questions to the Department of Environment and Local Government, please contact your Regional Office:
Region 1-Bathurst (506) 547-2092
Region 2- Miramichi (506) 778-6032
Region 3- Moncton (506) 856-2374
Region 4- Saint John (506) 658-2558
Region 5- Fredericton (506) 444-5149
Region 6- Grand Falls (506) 473-7744
Stephanie Merrill, Director, Freshwater Protection Program, CCNB Action