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Changing Waters: Overhaul Of The BC Water Act

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Late last week, the Government of British Columbia released its long-awaited legislative proposal for the new Water Sustainability Act. It invited stakeholders to review the proposal and submit comments before the new legislation is introduced in the spring 2014 legislative session.

The current Water Act has been in force since 1909, and has long been criticized as an impediment to adequate water protection and management in British Columbia. The proposed legislative changes will impact most industries operating in British Columbia and are worth monitoring closely.

The legislative proposal, and its comment period, comprises the third and final stage of public consultation on the new Act. The Ministry of Environment began consulting with stakeholders in 2009. It then released a discussion paper in February 2010, followed by a policy proposal in December 2010. The proposed changes resulted in a flurry of submissions from numerous stakeholders. It was widely expected that the new Act would be introduced in the legislature in 2012. However, the government failed to table the legislation at that time, and the matter has remained in abeyance.

The stated objective of the proposed Water Sustainability Act is to focus the legislative framework on risk, the competing demands for and scarcity of water, and to implement an area-based approach to water management. The following seven policy goals of the 2010 policy proposal have been retained:

  • protect stream health and aquatic environments;
  • consider water in land use decisions;
  • regulate and protect groundwater;
  • regulate water use during times of scarcity;
  • improve security, water use efficiency, and conservation;
  • measure and report large-scale water use; and
  • provide for a range of governance approaches.

Of particular note, the proposed Act would remove the distinction between surface water use, which is currently regulated under the Water Act, and groundwater use, which is currently unregulated (except in certain instances under the Oil and Gas Activities Act). B.C. remains the last province in Canada, and one of the last jurisdictions in the world, to not regulate groundwater use.

As proposed, the WaterSustainability Act will also differentiate between small and large scale users of groundwater. The latter will now require a licence or approval, whereas in most circumstances, the former will not. While the proposal does not define what constitutes a "large volume user", it is expected it will be in the range of 250 to 500 cubic metres per day for wells in unconsolidated aquifers, and 100 cubic metres per day for wells in bedrock aquifers. Maximum extraction quantities will be set out in groundwater licenses, along with terms and conditions of pumping and use.

The proposal also includes an area-based approach  to the management of water use, regulating use more strictly in certain areas or during times of scarcity. The government may require proportional reductions in water use depending on water supply forecasts. The proposal suggests legislation that provides for a staged approach. License holders would first be encouraged to implement efficiency and conservation measures, followed by the imposition of a proportional reduction on all users based on water supply forecasts. If those measures are insufficient, they would then require shut-in based on priority date and, in exceptional circumstances, by importance of use.

The proposed Act will establish flow requirements and guidelines, which will be incorporated as enforceable terms and conditions to water licences. The protection of instream flows and the reduction of use during times of scarcity could result in increased enforcement. Senior licensees, who have historically been unregulated, could have their licences periodically reduced or suspended.

All of the above changes were included in the 2010 policy proposal. What is new, and likely resulted from submissions by industry in the last round of comments, is the proposal to manage the use of saline groundwater differently than freshwater, due to its industrial applications and lack of suitability for use as domestic water supply. While the proposal provides few details in this regard it suggests that saline groundwater could be defined as water found more than 600m beneath the surface that contains either 10,000 mg/L of dissolved solids or 4,000 mg/L dissolved solids and hydrocarbons or hydrogen sulfide.

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