Increasing demand on British Columbia’s water systems has highlighted the need for a flexible yet robust legislative framework that balances ecosystem health, water supply, and competition for resources. The BC government has taken a major step toward adaptive water governance with the introduction of Bill 18, the Water Sustainability Act (WSA).1 Although WSA is only a broad framework and the government deferred many important details to future regulations, water users should be aware of the key changes it makes to the existing Water Act2 and prepare for compliance with WSA when it comes into force during spring 2015.
New Measures to Protect Streams and Aquifers
WSA introduces a set of new measures for managing licenced water uses during times of drought and scarcity.
Requirement to Maintain Flow for Environmental Needs
Before decision makers can issue new licences, WSA will require them to determine the volume of water and timing of flow needed to protect the ecological integrity of streams and connected groundwater aquifers. It is not yet clear how this discretionary determination will be made, and it is possible that the government will exempt certain licence applications from this requirement through the regulations.
Water Sustainability Plans
WSA provides for the design and implementation of a Water Sustainability Plan (WSP) to facilitate regionally focused water governance and planning. This planning exercise will be triggered by WSA decision makers, but, once triggered, will involve a process of extensive stakeholder consultation and the implementation of area- or watershed-based priorities. During periods of water shortage, rights held under licences or authorizations could be curtailed pursuant to a WSP.
Critical Environmental Flow Orders
WSA includes powers to restrict licenced water use when streams are at risk of falling or have fallen below the level of water necessary to prevent “significant or irreversible harm to an aquatic ecosystem,” or the flows necessary for the protection of fish populations.
WSA decision makers will be able to establish “water objectives” for the purpose of sustaining water quantity, water quality, and aquatic ecosystems. While it is anticipated that these objectives will guide the water allocation process and the development of water licence conditions, the details of what these objectives would be and who would need to consider them have not yet been made public.
Regulation of Groundwater Extraction, Use, and Pricing
Groundwater is an important resource in itself, and also plays a fundamental role in the hydrologic cycle, affecting both surface and ocean water.3 Accordingly, and consistent with the provincial government’s 2013 Legislative Proposal,4 WSA incorporates groundwater into the existing regulatory regime for surface water under the Water Act.
The “first in time, first in right” principle of rights allocation will govern the priority of groundwater licensees. Existing well owners will be granted licences effective from the date they first used their well. A new groundwater licence will not be issued if the licence compromises the environmental flow needs of a stream the aquifer is hydraulically connected to. The rules for constructing, operating, and decommissioning wells have also been revised. The new rules will not apply to oil wells or geothermal production wells, although water use by those industries is regulated.
With respect to pricing, the structure of the WSA groundwater regime is consistent with the surface water regime, which requires payment of an application fee and annual rental. Specific details on fee structure and rates will be developed through regulations. Based on the province’s legislative proposal, it is considering two options: one is to maintain the current structure but raise the fees; the second is to change both pricing structure and rates. Both options will likely result in increased costs for non-domestic groundwater users.
Mandatory 30-Year Licence Reviews
WSA establishes discretionary reviews of the conditions attached to new and existing water licences every 30 years. Such a review could significantly affect existing licences, as decision makers will be required to consider a series of new factors including:
Water efficiency and conservation practices.
Improved knowledge of the water resource (including seasonal stream flows, aquifer conditions, and climate change).
Beneficial use of the licenced water.
Other factors prescribed by regulation.
The risk of changing the allocation or terms of existing licences based on changing hydrological conditions creates uncertainty of rights, which could ultimately destabilize business investment when flows wane.
Certain power purpose licences will be exempt from the 30-year review process. The 30-year review will not apply to licences issued on or after October 23, 2003, for power and power storage purposes, power purpose licences that have been subject to Water Use Planning, or power purpose licences that are granted under the Industrial Development Act. All other power purpose licences will be subject to the 30-year licence review cycle. For existing licences, the 30-year review period would run from the date on which WSA is brought into force.
Repeat Short-Term Water Use Approvals
WSA permits the issuance of repeat short-term (up to 24-month) water use approvals to the same person, allowing the diversion of water from the same water source for the same water use purpose. This aspect of WSA codifies a longstanding practice of BC regulators under the existing Water Act, which is currently the subject of a petition before the BC Supreme Court.5 It is not yet clear how this legislative change will impact that legal challenge.
Enhanced Monitoring and Reporting Requirements
WSA preserves and expands the province’s broad discretion to impose detailed monitoring and reporting requirements on water users. Under the new regime, proponents may be required to undertake studies and prepare reports for WSA decision makers to use in assessing the environmental flow needs of a stream prior to receiving authorizations or approvals. Water users whose operations interface groundwater or streams designated as “sensitive” may also be required to record, measure, and report water conditions as a requirement of their licence. While these new requirements aim to improve decision making through better baseline information, achieving this objective will ultimately depend on government’s internal capacity to compile, manage, and analyze an influx of new data during a time of fiscal austerity.
New Enforcement Mechanisms
WSA introduces administrative monetary penalties and compliance agreements as alternatives to ticketing or criminal prosecution for non-compliance. Fines for contravening WSA may be assessed against a corporation, as well as an employee, director, officer, or agent of that corporation. Compliance agreements may require parties to take actions to bring their operations into order with WSA, remediate any adverse effects that resulted from their non-compliance, undertake mitigation measures on a different part of the stream or aquifer that they damaged, or remediate a different stream entirely. Parties subject to these enforcement mechanisms will be entitled to notice, hearings, and (limited) appeals.
For circumstances in which administrative monetary penalties are not pursued, a person that commits an offence under WSA may be liable on conviction to a fine of up to $1,000,000 per day (for continuing offences) and/or imprisonment for up to one year. WSA also provides for “creative sentencing” options for persons that are convicted of an offence under WSA.
Striking the right balance between ecological protection and economic priorities will be essential for achieving water sustainability in BC. Accomplishing this goal poses a unique difficulty because sustainability is about more than law—it is about moving society toward patterns of production and consumption that are able to withstand the test of time. The law is an integral part of this shift, and WSA attempts to reflect that.
However, there are still many uncertainties regarding WSA, as many of the critical details about thresholds and triggers need to be worked out in the regulation development phase. It will be essential for government to continue to engage with key stakeholders in a transparent manner as crucial details are worked out in the regulations.
STP has recently published an update to its publication Canadian Environmental Law Guide and also publishes the following related guides:
1Bill 18, Water Sustainability Act, 2nd Sess, 40th Parl, 2014 (Royal Assent on May 20, 2014).
2R.S.B.C. 1996, c. 483.
3Stephen McCaffrey, The Law of International Watercourses: Non-navigational Uses, New York: Oxford University Press, 2001 at 27. According to McCaffrey, approximately 97% of all freshwater on the earth (not including glaciers and icecaps) is groundwater.
4Accessible at http://engage.gov.bc.ca/watersustainabilityact/files/2013/10/WSA_overview_web.pdf.
5Background on the legal challenge is available at www.ecojustice.ca/media-centre/press-releases/water-usage-by-fracking-operations-challenged-in-b.c.-supreme-court.
About the Author
Zach Romano is currently in his third year of law school at the University of British Columbia. He was a summer articled student at Fasken Martineau’s Vancouver office in 2014, and will return to the firm in 2015 to complete his articles.