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What’s hot and what’s not in BC’s Water Sustainability Act

December 19, 2010

Hot off the press – the Province has unveiled a new “policy proposal” for a Water Sustainability Act

water2.jpgThis is the start of the next phase of public consultations on how to update BC’s century-old Water Act.  One of our very first blog posts, almost a year ago, urged readers to participate in the first phase of these consultations.  West Coast made our own submissions to the province calling for an Act which protects BC’s water and environment.  Those public consultations resulted in a very high level of public involvement, resulting in clear public feedback that protecting water and the environment is important to British Columbians.  West Coast, with our allies, launched OurWaterBC to press for a strong Water Act that protects our environment.  (If you haven’t signed the petition, please do). 

So are the public calls for a strong Water Act getting through to the government?  What’s in this “policy proposal” for a so-called Water Sustainability Act?  West Coast will develop a detailed submission to the province on this proposal in the New Year, but we can give some initial impressions now. 

What we like:

  • Priority for environmental flows – The Policy Proposal recognizes the importance of protecting environmental flows and would apparently make protecting the flows a term of every new water licence in the Province.  (There are 44,000 existing licences.)
  • Regulation of Groundwater – We are glad that the province is finally going to regulate at least large groundwater extractions, although (see what we don’t like, below) there are many unanswered questions about how regulating only some water users will work. 
  • Objectives for Water will apply to government decision-makers making decisions on industrial operations that could affect water-sources. 

[Provincial Water Objectives] will … align how statutory decision makers under a variety of statutes (e.g., Forest and Range Practices Act, Oil and Gas Activities Act) consider water when making decisions regarding land use as well as water allocation. 

Exactly how this will work, and how effective these objectives will be, will depend upon the specific wording of the legislation and of the objectives.  It is not the approach we preferred of watershed plans that would be binding on industry.  However, this is an important recognition that you can’t protect water without restricting oil and gas, forestry, mining and other operations in and around water bodies and wetlands.  If done correctly, it could be a major step forward for water source protection in the province. 

  • A new requirement that licensees use water in an efficient manner.  This will be accomplished by defining “beneficial use” – a key requirement of the current Water Act – to clarify that using water wastefully is not beneficial.  We’re extra-pleased by this development because we specifically suggested it in our submissions:

[I]t is difficult to see how inefficient water use could be termed “beneficial”. … We suggest that the new Act define “beneficial” in a manner that makes it clear that the concept requires efficiency, and that use that undermines environmental flows cannot be considered beneficial.

  • The suggestion that the price of large-scale use of water should increase, to encourage water efficiency.
  • Increased legal requirements in areas which are suffering, or may suffer, water problems, including the development of “water sustainability plans where degraded watersheds require recovery action and will affect both land and water development and use.”  While details are missing, this sounds like the type of “aquifer and watershed planning” that we called for in our submissions.  That being said, we are not convinced this type of planning should be limited to degraded watersheds; planning to prevent degradation seems equally important.  

What we don’t like:

  • The failure to require existing licences (as noted above, there are 44,000 of them) to protect environmental flows.  Given that many watersheds are already over-allocated, this is a fundamental problem that needs to be addressed. 
  • The continued failure to address how the rights of unlicensed small-scale water users will be protected against water use of large-scale licensed users.  Since the province is proposing to only licence large-scale groundwater users, (except if an area is classified as a chronic problem area”)  this is a crucial question for domestic well owners. 
  • The possibility (not yet finalized) that water permits could be traded in a “water market.”  It is not immediately obvious to us how allowing permit trading will achieve the benefits suggested in the policy proposal, but it likely result in a huge financial windfall for current licence holders while failing to recognize issues raised by public and First Nations rights over the resource. 
  • Retention of the First In Time, First In Right (FITFIR) system of allocating water.  The FITFIR system, which holds that those who use water first have a right to continue using it, even if other uses are more pressing, is, in our view, problematic.  Moreover, in the public consultations well over half of the people that expressed a position on this issue supported a “priority of use” approach – where drinking water and agriculture would receive priority over, say, oil and gas development.  (That being said, some aspects of the policy proposal – such as the ability to depart from FITFIR under certain circumstances and the obligation of all licences (even old ones) to maintain environmental flows – do address some of the more serious problems with FITFIR.)

More consultations

As I said above, we’ll be making more detailed comments on all of this in the coming year.  The Policy Proposal explains the next steps for consultations:

Beginning in January 2011, Ministry of Environment staff will explain key features of the proposed WSA in greater detail on the Living Water Smart Blog and how you can continue to be involved. We welcome your questions and comments on the proposed policy. While the easiest way to have your say is to comment via the Living Water Smart Blog, you can also comment by email, phone, fax.

The provincial government is apparently aiming to have the new Water Sustainability Act before the Legislature in 2012.  This may be your chance to influence the content of one of BC’s most important environmental statutes. 

Andrewblogphoto.jpgBy Andrew Gage, Staff Counsel