Blog Post #4 – Small groundwater users



Over the last 3 weeks since we released the Legislative Proposal and launched this site, we’ve received a number of blog comments and email submissions covering a range of topics and concerns.

While the pricing of BC’s water has attracted lots of attention, another topic that has come up is the small groundwater user. While some people support the proposal, others have concerns about how the small user is protected. This post clarifies what’s being proposed and why.  More information is available in Section 2.3.4 of the Legislative Proposal.

What is being proposed?

  • Individual domestic users would generally be exempted from the requirement to obtain a licence and pay fees and rentals to use groundwater.
  • Exemptions may be removed where an area-based regulation is put in place or Water Sustainability Plan has been developed, for example in areas of chronic water scarcity.
  • Individual domestic groundwater users would be required to make beneficial use of the water and could also be regulated during times of scarcity.

Why take this approach?

  • Of the estimated 98,000 groundwater wells in B.C., about 80,000 wells are for domestic use.
  • Under the proposed new Act, about 18,000 wells would be subject to licence requirements.
  • On a volume basis, municipal waterworks currently use the largest volume of groundwater in B.C. (2.5 million m3/day), followed by commercial/industrial (2.2 million m3/day), irrigation (1.1 million m3/day) and domestic uses (0.5 million m3/day).
  • Households with a domestic well would be exempt from the requirement to obtain a licence and pay water fees and rentals. Individual domestic wells typically have a small environmental impact. Exempting the requirement will help ensure resources can be directed towards regulation of higher priority large- and medium-sized wells. Where the cumulative impact of individual domestic users is a concern, an area-based regulation can be developed.

GW Use image

 How will my domestic groundwater supply be protected from larger users?

  • If domestic users have registered their well in the provincial WELLS database, applicants for new water licences for groundwater extraction would be required to assess the impact of their proposed withdrawal and use on known exempted users.
  • Currently, submission of well records is voluntary.  Under the proposed Water Sustainability Act, submission of well records would be mandatory for all new wells (including exempted wells).
  • Existing wells owners would be encouraged to self-identify so their use could be established and considered in future decision-making.
  • Existing and new groundwater users, licensed or not, could be regulated during times of scarcity.
  • The process for transitioning large users into the licensing system is still being developed. Existing users may have terms and conditions associated with their licence where there are known conflicts with exempted (individual domestic) users.

Share your thoughts on the proposed Water Sustainability Act by leaving a comment below on the blog.

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15 responses to “Blog Post #4 – Small groundwater users

    User avatar
    [-] Doug

    Thank you for allowing me the opportunity to comment on the WSA legislative proposal. The following are a few comments I would like to submit for government consideration.

    1. Think through all the linkages between Policy, Legislation, Regulations, Guidance, and Area-Based Plans up-front. Implementation of the new Act will require this.
    2. The legislative proposal is a high-level document and lacks specifics. It is imperative that drafts of the actual legislation, and the regulations and guidelines that result from the legislation are thoroughly vetted through a stakeholder and public comment process. In addition, once the Act is implemented, new regulatory approvals such as new licences, modifications to licences, and other regulatory approvals should also be subject to public notice and public comment periods.
    3. Do not rely on the area-based plans to establish the majority of the detailed regulations; there should be regulations in place that apply across the entire province; and then the area-based plans (water sustainability plans) can add to these regulations to fit the particular situation at the watershed and community scale.
    4. The legislation and ensuing regulations should provide incentives for senior water licence holders to “give back” some of their allocation for environmental or conservation purposes.
    5. Consider using the State of Washington as one possible model for water sustainability plans. This BC neighbour passed a watershed planning act that enabled the development of watershed-based planning groups for each “Water Resource Inventory Area” (WRIA); funded and technically supported these groups, who then completed phased watershed assessments.
    6. “Exempt” wells have been used by developers in other jurisdictions as a “work around” the water licensing / water rights permitting and regulatory process. Also, there is been minimal enforcement with regard to private wells, except on a complaint driven basis. So consideration needs to be given on how such wells fit into the new legislation, which may tend to focus on the larger groundwater users. With regard to Exempt wells, the legislation must anticipate this and be specific on such issues as:
    a. Only single, private domestic wells producing less than a certain volume of water are exempt from permitting; but they are not exempt from the Act and provisions in the Act including but not limited to the FITFR principle;
    b. An unregistered private domestic well, after a phasing-in/grandparenting period, should not have standing in the Act, i.e. it becomes out-of-compliance and thus does not receive protection; only registered wells can be exempted and protected under the Act.
    c. Exempt wells must also be certified to be in compliance with the groundwater protection regulation and any updates to that regulation contained within the WSA to receive protection under the new Act;
    d. Subdivisions and other developments proposing to utilise multiple private domestic wells should be required to obtain a licence and be subject to those provisions in the Act that regulate groundwater use, monitoring, and reporting. There should be a defining regulation for this; which could be made more stringent in an area-based plan.
    7. The capacity to implement and enforce the new WSA must be supported by an adequate fee structure and a substantial increase in “human capital” to implement and administer the new Act. The province must be able to add expertise to its staff to enable the new regulations that will be developed after the legislation is enacted. These staff must be knowledgeable and have specific experience in hydrology, hydrogeology, water law, enforcement, and planning.
    8. With regard to guidance, the section in the legislative proposal on surface water and groundwater interaction is vague. It is recommended that the legislation explicitly consider how this issue will be addressed as it has confounded other regulatory agencies attempting to manage surface water and groundwater as “one resource.” A detailed technical guidance document should be anticipated to be necessary to deal with this issue; and it is a critical issue in the licensing of groundwater wells. In some cases a groundwater extraction becomes a surface water diversion when a shallow well with a strong hydraulic connection to surface water is developed.
    9. The legislation must establish statutory timelines for government to receive, review, process and rule on water licence applications and other regulatory approval processes; similar to the environmental assessment act.
    10. Consider replacing elements of the environmental assessment act having to do with water use with the WSA. Similarly, consider replacing the water use related portions of the B.C. Utilities Act with the WSA (e.g. eliminate the “Certificate of Public Convenience and Necessity” and replace with a licensing procedure under the new, unifying Act.).
    11. The legislation should develop a process to allow certain developments to proceed quickly if they are “water budget neutral” for example, if an applicant wishes to develop groundwater wells and that applicant holds surface water licenses that would be placed as trust water rights (i.e. instream flows, fish flows, environmental flows, etc) within the same watershed.
    12. With respect to groundwater, the existing Phase 1 groundwater protection regulation relied on voluntary compliance and enforcement largely on a complaint-driven basis. Enforcement of new and stronger groundwater regulations will require proactive enforcement, which in turn, will require the addition of considerable human capital as outlined in #6 above.

    Regards,

    Douglas Geller, M.Sc., P.Geo., P.Geol.
    Senior Hydrogeologist / President
    Western Water Associates Ltd.
    #106-5145 26th Street, Vernon, British Columbia, Canada, V1T 8G4
    E: doug@westernwater.ca, W: westernwater.ca P: 250.541.1030 M: 250.306.2843

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    [-] Andrew

    Excerpt from http://wcel.org/resources/environmental-law-alert/water-sustainability-act-and-groundwater:
    Well owners currently have a right to pump water from the ground; however if other well users pump from the same fresh water source and cause the well to dry up or become saline, an owner has no recourse. The rights of groundwater users have been described by the BC Court of Appeal as similar to other “fragile” rights that can be extinguished by other users. Indeed, it is this unregulated access to water that has led to over use of aquifers in some areas of British Columbia.

    As proposed, new groundwater licences will give well owners “priority” over anyone who starts pumping from the same water source at a later date. Licences will have a “priority date” based on when the well was first drilled and used. Legally a water licensee can insist that other users who have a more recent “priority date” stop taking water in times of scarcity. This is an attempt to bring unregulated groundwater use with the controversial “First In Time, First In Right” (FITFIR) system of water allocation.

    Because of the “fragile” nature of groundwater rights, the proposed WSA had an opportunity to move away from the FITFIR model, and instead clarify that environmental flows, drinking water, agriculture or other publicly supported water uses had priority. However, the government has decided not to move in this direction.

    So the proposed WSA would not simply “grandfather” existing wells by giving them licences, it would enhance and expand the rights of the well users – giving them the new right to claim priority over other, subsequent users.

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    [-] Andrew

    Excerpt from http://wcel.org/resources/environmental-law-alert/water-sustainability-act-and-groundwater

    Groundwater use and aquifer health

    Obviously allowing unregulated access to groundwater can compromise aquifer health, as well as impact on the health of streams on the surface. So regulating groundwater is a positive, if long overdue, development.

    But current use of BC’s wells is not always sustainable or environmentally appropriate. By accepting existing wells as a guaranteed basis for a water licence, the proposed Water Sustainability Act will be locking in unsustainable use of groundwater. It is essential, particularly for oversubscribed areas, to re-examine those licences to ensure that the water use is sustainable and maintains the health of the aquifer. In addition to overuse, climate change is likely to have an impact on groundwater supplies, particularly in the interior of BC.

    Recommendations

    Government should have the powers and responsibility to manage aquifers to maintain the health of the aquifer and associated surface water flows. This must include the ability, through licence reviews, to adjust water licences, including reducing the water allocation, as required based on new data, changes in the climate or other changing circumstances.
    Current-well users should not receive final licences, or those licences should be fully reviewable, until:

    * At least 5 years of water monitoring data for the aquifer obtained under the new monitoring requirements is available;
    * The licenses can be assessed to ensure that the use of the aquifer does not exceed recharge rates and does not negatively impact the health of the aquifer or the health of nearby streams;
    * Any constitutional obligations to consult First Nations regarding specific licences can be addressed.

    If, at that time, current levels are not sustainable, licences must be adjusted (possibly through Water Sustainability Plans) to ensure that use rates are sustainable and do not negatively impact the health of nearby streams.

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    [-] Andrew

    Excerpted from http://wcel.org/resources/environmental-law-alert/water-sustainability-act-and-groundwater:

    The rights of different water users

    If I held a surface water licence since (say) 1980 to use water for domestic purposes from a stream, and I’d been paying year after year to use that water, I’d feel a bit annoyed that a well owner who’s been taking free well water since 1970 from the aquifer that feeds my stream will now (under the Water Sustainability Act) get legal priority over my “junior” licence, and can stop me using surface water in times of scarcity.

    But there’s even less clarity, and more potential for conflict, between domestic (unlicensed) well users and licensed well users. Because of how groundwater flows, the impact of one well on the water in nearby wells can be considerable, even if the well use is not affecting aquifer levels.

    The WSA Proposal says that the interests of registered domestic well owners will be considered in applications for new water licences.

    The WSA Proposal does not say that registered domestic wells will be considered when transitioning existing (non-domestic) wells to their groundwater licences. However, we are informed by Ministry of Environment staff that where the Ministry is aware of an existing localized conflict between well users, they will consider it in granting the transition licences, and that the date that the domestic well was first used (as recorded in the Wells Database) will be taken into account. In areas of wide-spread conflict, the impacts on domestic users will not be addressed in these transitional licences, and will instead need to wait for a Water Sustainability Plan.

    After all the initial groundwater licences have been handed out, and (hopefully) most domestic wells are registered, there will still be conflicts – whether due to over-allocation, new licences that have unexpected impacts, climatic changes that decrease aquifer depth, etc. A well user with a water licence has an entitlement to the continued flow of water before other licensees with a lower priority date. Legally that right could be enforced either by the Ministry of Environment or in court.
    But domestic well owners won’t have a licence – just a record in a database. So what, we asked, is a domestic well owner – who has registered – to do if his or her well runs dry? Does he or she need to take on the (expensive) job of drilling a deeper well? Or can he or she insist that other more recent well users stop using groundwater to restore the original aquifer levels?

    Ministry of Environment staff emphasized that it was the responsibility of the well owner to make certain that their well had been drilled deep enough to deal with expected fluctuations in the aquifer level. In other words, if you’ve only drilled to a depth of 50 feet, but water levels in the aquifer regularly fluctuates from 40 feet to 60 feet, then you can’t complain if your well goes dry.

    “Okay,” we said. “Let’s say the well owner did drill a deep enough well, and it still goes dry.”

    Well then, we were told, “It depends.” Let’s just say that answer makes us worry about how much protection domestic well owners will actually have.

    First Nations and groundwater licences

    It is well established in Canadian law that a First Nation has a right to be consulted on government decisions that may affect rights that they have established or which they are credibly asserting. It is also indisputable that in some, perhaps many, cases groundwater use can affect the legal rights of First Nations. In Halalt Nation v. BC the trial judge said (in reasons that were overturned on other grounds):

    “The evidence establishes that there is not an impermeable barrier between the Chemainus River and the Aquifer as the River flows through I.R.#2 adjacent to the site of the Project. The two are intricately connected. The groundwater feeds the Chemainus River and influences its flow levels. The River is, and has been traditionally, integral to the lives of Halalt because of its fish and fish habitat, plants and bathing holes. It sustains the animals the Halalt people hunt and the plants they gather. The Aquifer’s groundwater is a significant source of the water levels for the entire length of the Westholme side channel. The Aquifer is of central importance to the sustenance of fish and fish habitat. The groundwater warms the side channel in the winter and cools it in the summer. … I go no further than to say that Halalt has an arguable case for a proprietary interest in the groundwater of the Chemainus Aquifer, most of which underlies I.R.#2.”

    In my view the province faces a formidable problem in that the proposed legislation seems to purport to limit the government to considering only a narrow concept of “beneficial use” before convert existing wells into water licences. To the extent that the Crown, with this language, is attempting to to legislative itself out of its constitutional obligations, then this is highly inappropriate. Since the licences entrench the water uses, and represent government endorsement of those uses, the government cannot credibly claim that the change does not at least potentially affect First Nations’ rights.

    This problem is exacerbated by (so far as we understand) a failure to consult First Nations in developing the legislation and the extension of the First In Time, First In Right system, which many First Nations organizations strongly opposed in the consultations that did occur, to groundwater.

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    [-] Parker

    We in the Cowichan Valley are very encouraged by the provision for local control by a community over activities in our watershed. The Cowichan Stewardship Roundtable meets monthly and includes representation from Provincial and Federal government agencies, Cowichan Tribes, The Cowichan Watershed Board, Local Government, local industries and several stewardship and conservation groups. The CSR has been meeting and sharing information for ten years and has tremendous expertise on our watershed. Recent studies have been completed on the anticipated effects of climate change on our valley and the impact of water use on agricultural activities here. We are very well positioned for some form of local decision making about our water resources. We also have the will in our community, as demonstrated by petitions circulated by the citizens group One Cowichan and resolutions of support for local watershed management from the Cowichan Tribes Band Council, CVRD Regional Services Committee, City of Duncan Council and Town of Lake Cowichan Council. We look forward to finding a way to secure some decision making capability in our community.

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    [-] Elaine

    Hope we see complusory reporting for all water users.

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    [-] Leslie

    The act must be updated to reflect the impact of the increasing number of people moving to the Fraser Valley and pressures on our rivers, streams and aquifers from development and agriculture. The Hopington Aquifer, which provides water to 60% of the people living in Langley, has dropped 30 feet in 30 years!

    However, I am very concerned that the provincial government will try to shirk its responsibility for upholding and policing regulations. Past experience has shown that, under the guise of “local control,” all the responsibility is shifted to the local level. Protecting our rivers, streams and aquifers are not priorities for our local council and small bands of committed volunteers will not be able to hold back the developers when the financial incentives are so high.

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    [-] Bob

    Engineering departments of municipalities should schedule regular testing stations to monitor environmental affects on groundwater conditions.

    Developers and industry should be responsible for maintenance of groundwater conditions.

    The general public should be informed and educated about best practices on clean groundwater preservation.

    All of these could be undertaken as part of implementation of local tools such as Area-based Regulations or Water Sustainability Plans. Funding for this work should come from a fund built from commercial/industrial water rental fees. Such fees should be set to a level to sustain healthy water management.

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    [-] Dana

    I believe groundwater use reporting should be mandatory. If, as described in WSA documents, groundwater and surface water are “one water”, there should be similarly strict reporting requirements. With so little known about groundwater, this is an opportunity to more completely understand the available and unavailable resources and our impacts on them.

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    [-] Judi

    Thank you for providing a chance to comment. My biggest concerns are sustainable water quantity and secure water quality. The commercialization of water as a commodity is a bad idea, given that the world’s supply of potable water is dwindling, and there will be increased pressure to lock us into an ongoing supply of our water outside our borders. We need to ensure that we always have an adequate supply of potable water for all of our domestic uses, including agriculture. We will need to increase our domestic agricultural production in the next two decades, which will require an increased volume of water. Urban and rural development should be planned with calculations in advance of a region’s capacity to absorb more growth, and match this growth with adequate clean water supply. Development should also be encouraged which can reuse grey water or build in systems so that water use occurs with water returned to the environment in as clean a state as possible.

    Secure water quality can only be assured if we have strict legislation that protects water from potential contaminants, which, ironically, includes commercial agriculture with its high use of chemicals and high output of waste that can contaminate groundwater, and includes development of urban areas. It also includes any industrial activity that can lead to sustained air or water pollution, both of which will contaminate water. Secure water needs to be available for human consumption, agricultural use, sustainable industrial use, and of course environmental sustainability. Water quality must be protected to safeguard our wild habitat and its inhabitants.

    If the Water Act had a preamble stating the basic principles guiding all legislation and regulations in BC, principles protecting water quantity and quality for BC’s inhabitants and wilderness, this would likely be helpful at engaging the public.

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    [-] Kevin

    This is a very important piece of legislation. Especially now with the proposed introduction of LNG processing plants and fracking wells that will directly impact the amount of water available for historical usages. Long term estimates of water available for historical usages must be of the first priority and subsequent water usage by industrial development must be taken into account in environmental studies. At the present time there are companies such as Nestle that use available water to produce products for sale at a profit for no costs. As the years go by and populations increase the requirement for drinkable or potable water will become essential. Corporate entities which are now using water for free should immediately be required to pay the regular corporate fee for that water and be the first to be refused usage should water shortages take place. Our water will be the most valuable resource we have within the next 100 years. We must protect individual, municipal, first nations and agricultural needs as a first priority. This has to include protection of our streams and rivers to be adequate in providing protection of fisheries and all animal habitat.

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    [-] CaroleAnn

    Protecting our groundwater for drinking, farming and other uses, protecting streams & rivers & aquifers are essential for life now and for future generations. Regulation of potential polluters and monitoring of operations that could contaminate groundwater should be mandatory and much more comprehensive than seems to be offered in this act. Denying and revoking operating licenses to corporations who are contaminating groundwater should be standard procedure and be monitored by someone and followed up on. This is not happening in many, many jurisdictions. There are a lot of big gaps and black holes in the regulating systems of our government. I fear this act won’t go far enough.

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    [-] Janet

    Thank you for the opportunity to respond to the proposed Water Sustainability Act. I do not believe that there has been adequate time for the public to gain an awareness of all that is being proposed in order to have any meaningful input. This tight time frame could lead to cynicism about whether the provincial government has any real interest in what the people of BC want. Since the current legislation has been in effect for over 100 years, it would seem reasonable to allow a few more months for the public to provide input.
    The proposed Water Sustainability Act focuses on ensuring that private benefits from using water continue – potentially at the expense of stream health, drinking water, First Nations rights and other public benefits. Who will decide which water use is sustainable or best serves the public interest?  There is no definition of what is “beneficial” or to whom the use might be beneficial.
    I believe that the public values drinking water, habitat for salmon and other fish species and agricultural uses of water more than allowing industrial uses such as bottled water and oil and gas exploitation.

    Access to water for sustainable farming must be protected. Food security in a changing climate is a critical issue and should be given one of the highest priorities for water use.

    I am very concerned about the high use of water required for hydraulic fracturing (fracking). The Water Sustainability Act will make water freely available for this controversial oil and gas industrial process. The proposed Water Sustainability Act does not do enough to meet the promise of producing the “cleanest LNG” in the world.  Cleanest LNG would mean severely limiting the oil and gas industry’s access to fresh water for hydraulic fracturing, and instead providing strong incentives for alternatives to fresh water use such as new waterless processes being developed.

    I urge you to extend the period for public consultation.

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    [-] Rene

    Thanks for the opportunity to comment on the proposed WSA.
    This will have impact on personally committed & involved land stewards, the agriculture community. The recognition of greatly increased water usage needs and opportunities for agriculture production within the next decade is correctly perceived. If managed correctly it will will improve British Columbia’s ability to become a healthy world class food producer. If the taxation and administration become burden ridden or not fairly represented, then the great strides that the British Columbia Agriculture Council made in promoting private investment in developing alternate water sources and practices through its Environmental Farm plan, it will become an activity of discontinuation or reluctance. A producer who would finance the development of a runoff collecting reservoir, the infrastructure and the operating costs , and then be honered with a blanket water tax to use it.
    With small steps B.C. has a great future!

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    [-] Brian

    Thank you for the opportunity to submit my comments concerning this very important and timely piece of legislation. I am one of five trustees overseeing a public water system that was incorporated in 1923 under the water act and services 52 small to medium sized farms in the Northern Okanagan. I list my concerns.
    1. Consultation with First Nations representatives should be given a high priority with regard to decisions pertaining to water quality and quantity protection on their traditional lands.
    2. Water Quantity must be firmly protected considering our changing climate, industrial uses and expanding population. It is important that surface and groundwater use is first measured, reported and monitored over time so that quantities recorded can be used to help determine usage fees and to detect potential overuse or waste. Once reasonable usage levels have been determined over a set period, fees can be more realistically set and a system of penalties established for overuse. In overuse or waste situations, penalties must be relative, consistent and high enough to act as a deterrent. Non-domestic water fees should be set aside specifically to finance the costs of monitoring, recording and administering this consumption. Even though domestic wells will not be subject to fees, maximum expected use can be set and flows recorded so that overuse and leaks can be detected, especially in times of drought.
    3. Water Quality protection will require additional effort. Key proposals within the Act are to ‘protect stream health’ and ‘regulate and protect ground water’. Looking over the proposed new WSA I see little mention of how this protection will occur. Will this Act work together with the Forest and Range Practices Act, the Environmental Management Act (Industry and Municipal risks), the Drinking Water Protection Act and the Fish Protection Act ? At the present time there is a significant weak spot in B.C. regarding the risk of contamination of streams and aquifers from some agricultural practices. I have worked on farms and with farmers my entire working life and know that most are very careful to protect the environment. But with the large amounts of livestock comes a huge amount of animal waste and thus a large responsibility in how it is ‘handled’ to avoid water pollution. Education in water protection is key. A high risk is from inorganic fertilizer applications and pesticides. A very high risk is from microorganism and nitrate contamination due to inappropriate rate and timing of agricultural waste applications relative to climate, topography, soil type and proximity to sensitive aquifers and streams. If the Ministry is serious about protection of our precious water, the high risk from this type of pollution especially in the Fraser Valley and the Okanagan must be addressed. We have experienced it first hand in our area and as a result feel a responsibility to alert others before valuable aquifers are potentially ruined for human consumption. The new Agricultural Waste Control Regulation (AWCR), which is a very important and timely regulation, is being drawn up by the Ministry of the Environment at this time. It must be ‘firmly’ implemented and the Environmental Farm Plans (many already are in place) must be monitored more closely and enforced. Also it is imperative that the new Water Sustainability Act be coordinated with the AWCR. This is especially important because the most populated valleys in B.C. are also the areas that are subject to the most intensive agriculture and also carry our most sensitive aquifers and water bodies. We all depend on and respect agricultural endeavours but careful handling and monitoring of agricultural wastes is an essential part of protecting our ‘most valuable natural resource’.

    Respectfully submitted,

    Brian Upper
    Chairman of Steele Springs Waterworks District

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