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Water for fish and the Water Sustainability Act

November 3, 2013

Imagine a lake, stream or river that you love.  Or perhaps rely upon for your drinking water or livelihood.  That’s what the current government consultations on a new Water Sustainability Act are about – that, and is the government doing enough to protect our lakes, streams and wetlands.  It may seem like BC  has an abundance of fresh water, but the BC government reports that there are 5,000 water sources in the province that - due to overuse or industrial operations or for other reasons - have issues with quality or quantity.  With climate change and industrial pressure, that’s only going to increase.

British Columbians have until November 15th to let government know what they think about a new Water Sustainability Act (WSA), based on a “Legislative Proposal” released by the Ministry of Environment.  This is the first in a series of posts I’m writing leading up to the deadline outlining what the WSA Legislative Proposal says and what it means for British Columbians and our environment.

Protecting the health of our streams

This first post in the series concerns the health of British Columbia’s streams, including the concept that water should be kept in streams and lakes to provide for “environmental flows” – water for fish and wildlife and for the basic functioning of the watercourses.  The current Water Act does not do a good job on this front. 

The Legislative Proposal does contain new and expanded tools for government to deal with droughts and chronic problem areas.  We’ll return to those in a moment.  Let’s start with a more general look at the two main tools the Proposal would use to protect water in areas which are not already problem areas , to prevent them from becoming problem areas. 

  • “Environmental flows” will be “considered” in all new licence and water allocation decisions; and
  • “Water objectives” will be “considered” in a range of government decisions which could impact water.

Environmental Flows

Under the current Water Act there is no legal requirement for government decision-makers to consider environmental flows in their decisions about water.  That being said, today most decisions do consider environmental flows, as mandated by government policy.   

In earlier consultations on environmental flows, the government was told loud and clear that British Columbians want “binding standards” to guarantee water for fish, wildlife and stream health, as opposed to “guidelines”, which were perceived as “too flexible or otherwise not enforceable.”  However, the Legislative Proposal says that government decision-makers will be required to “consider” environmental flows.  “Consider” is a weak and ambiguous legal test that implies guidelines, rather than binding standards. 

Not only that, but the Proposal entrenches the controversial existing “First In Time, First In Right” (FITFIR) system of water licence rights that gives priority to older licences (and expands that rule to groundwater).  What that means is that older licences – which were issued perhaps 100 years ago (to early ranchers or industrial operations) when environmental flows were not considered – as well as licences that will be issued for existing groundwater uses (for example to Nestle for water bottling) – will continue to trump environmental flows (as well as First Nations uses and more recent licences for drinking water, agricultural use, etc.).  It’s only for new licenses, or amendments to licences, that environmental flows will be considered.

The Proposal does provide for the possibility (but not requirement) of a review of licences, but not until 30 years after the Act comes into force (or 30 years after a new license is issued).  It may be that conditions related to environmental flows will be considered through these reviews (although we are advised that reviews will not allow for water allocations to be taken back from current licensees to address environmental flow needs).  So areas where current water use is already impacting the ecosystems have a problem – unless they get degraded enough, and there is political will, to use some of the more exceptional drought/scarcity powers discussed below. 

So while the proposed Water Sustainability Act at least acknowledges the idea of environmental flows it’s pretty clear that it does not prioritize such flows in a way that will actually prevent streams from becoming degraded (particularly in areas that are already overcommitted – meaning that more water can be taken from a stream than is available, or sustainable).  This is a major shortcoming, because, as set out in the provincial government’s own Living Water Smart policy, healthy watersheds and streams provide many benefits.

Water Objectives

A potentially positive aspect of the Proposal is the concept of “Water Objectives”, which could require a range of key government decision-makers to “consider” objectives related to water in their decision-making.  Since a wide range of government decisions - from local government land use planning, to approval of logging plans, to the regulation of mines - can have huge impacts on water availability and integrity water objectives, if sufficiently strong, make sense. 

Ideally any government decision that is likely to impact water should be bound by (and not just consider) these water objectives, but the Proposal doesn’t go so far.  Instead the key question of which government agencies need to consider water objectives will be worked out later in future regulations.  However, alarmingly, the Ministry of Environment reports that they have heard that:

Existing statutes such as the Forest and Range Practices Act and Oil and Gas Activities Act contain appropriate provisions to protect water.  Additional action by natural resource tenure licensees should not be required in those cases.

In our view the oil and gas and forestry industries as currently regulated pose threats to water, and we do not agree that the existing legislation “appropriately” protects water.  Excluding these industries from the water objectives would substantially undermine the credibility of the Water Sustainability Act. 

Meanwhile, the proposed water objectives remain pretty vague. Lawson Lundell’s Project Law Blog (which advises industry on developments in environmental law) explains it well:

Examples of “water objectives” are provided, but not proposed; are qualitative;  and on their face do not provide a means to resolve conflicts between competing objectives.   This element of the proposal, while having potentially far-reaching effects, is still rather embryonic.

Times of scarcity

In problem areas or in times of drought, there will be new or expanded powers to:

  • Develop plans to address water allocation, including water for environmental flows;
  • Create “area-based” rules that could address (among other things) stream health;
  • Change the rules around water allocation, including temporary orders to protect “critical environmental flows”.

Planning and area-based regulations

There are already existing powers for the government to prepare Water Management Plans, but the Proposal would give greater flexibility in this planning through “Water Sustainability Plans”.  These plans could allow stakeholders (such as water users, local governments, industry, environmental groups, etc.) to develop locally appropriate ways of addressing water scarcity, environmental flows, free up water for new users, or otherwise address joint concerns of multiple stakeholders. 

In addition, the government will have powers to develop area-based regulations, either to implement these plans or to address other needs of a particular watershed or region. 

As proposed, area-based regulations can be used to carry out some fairly major re-writes to the rules around who has to get water licenses, who has to monitor water use, etc.   These powers could potentially be used to help ensure environmental flows, etc. 

We are told that the government will not use area-based plans to alter the FITFIR rules (for example, giving environmental flows or domestic users priority over long-standing licences, etc.), unless stakeholders have agreed to such a change through a Water Sustainability Plan.    
But the government seems to contemplate using these water sustainability plans and area-based regulations in problem areas – and they represent the primary tool in the new WSA for protecting environmental flows (and other interests) in areas with chronic drought or water shortages. 

Area-based regulations, in particular, could also be used in areas that face potential problems before those problems become serious. 

Rules around water allocation

The Legislative Proposal would give Ministry of Environment staff a general power to regulate water use to protect “Critical Environmental Flows” (CEFs).  These are not the general environmental flows that government will consider in making new granting decisions, but represent a:
… short-term flow threshold, below which significant or irreversible harm to aquatic ecosystems may occur.  This threshold would be used as a short-term regulation threshold during times of scarcity or drought to regulate (i.e. require users to curtail their water use) both surface water and groundwater users. 

Apparently orders under these powers will be based on FITFIR – with more recent licensees required to scale back first – except for “essential household needs”, which will be allowed to continue. 

In addition to the short-term authority over CEFs, the Minister will have powers (similar to existing powers under s. 9 of the Fish Protection Act) to order the temporary reduction of water use where water levels are so low as to threaten the survival of a population of fish, “regardless of license priority date and after due consideration for the needs of agricultural users…”

Conclusion and recommendations

There are some improvements in the new Proposal over the current Water Act, but environmental flows still have a low priority – at least in relation to existing water users.  Here’s what we recommend to improve the proposed new Water Sustainability Act, as it related to environmental flows:

  • Mandatory and strong environmental flows requirements and water objectives.  “Consider” is not enough, and both flows and objectives must be strong enough to meaningfully protect our streams and lakes;
  • License reviews can’t wait until 30 years after the WSA comes into force, they should happen within 10 years, particularly given what we already know about the impact of climate change on hydrologic regimes and water resources in the province, and it should be clear that such reviews will address environmental flows;
  • The First In Time, First in Right rule, if it is to be retained, must come after environmental flows, First Nations water uses and drinking water needs.  Those flows and uses should not be trumped by earlier licences – no matter how old. 
  • Water resources need to be managed for the benefit of the public. 

Interested in letting the government know your views?  Tell them on their Water Sustainability Act blog.  We’ll be cross-posting this blog there (as a comments) as part of our own input into the process. 

By Andrew Gage, Staff Lawyer

Photo courtesy of the Halalt First Nation. 

Update: Here's the Ministry of Environment's video explaining how the Water Sustainability Act addresses stream-health.  Unfortunately, the video neglects to mention that the new requirement to consider environmental flows doesn't apply to existing water use.