B.C. Enters New Era of Water Regulation as Water Sustainability Act Is Brought into Force
Nearly two years after passing the Water Sustainability Act (WSA), the province of British Columbia has quietly brought it into force through the registration of five new regulations. Together, these implement a new regime that expands the authority of the province to take action on water use, management and conservation. For more information on what has effectively been a six-year project for the modernization of BC’s water regulations, see our August 2015 Blakes Bulletin: Proposed Policies for Implementing B.C.’s New Water Sustainability Act Available for Comment.
While the WSA is intended to increase government oversight over water use in the province, it will also increase the regulatory burden and costs for water users and those conducting work in or near streams. It requires licensing and water rental fees where none were previously required, and broadens the scope of application reviews. Furthermore, rights under existing licences or approvals may be subject to restrictions not previously within the authority of the regulators.
The only provision of the WSA not yet in force is the quick licensing procedures.
The hallmark of the WSA is the establishment of a new groundwater licensing scheme for the province. However, there are many other provisions that are either new or significantly revised. For example, the WSA now specifies certain plans and assessments the decision-maker may request in applications for surface and groundwater licences and changes in and about a stream (now referred to as change approvals), while maintaining a discretion to require additional information. Subject to the regulations, the WSA also requires the review of applications to include consideration of environmental flow requirements and mitigation measures. It establishes new water sustainability planning which, in the long term, has the potential to impact water use under existing licences. It also broadens the authority of the government to take action in time of drought, including declarations of significant water shortages, critical environmental flow protection orders and fish population protection orders.
The WSA also establishes a new prohibition on the introduction of foreign matter to streams, stream channels or areas adjacent to a stream, in a quantity or in a manner that would cause a significant adverse impact to the stream, existing uses of the stream, the property of riparian owners, hydraulically connected aquifers and aquatic ecosystems.
The WSA incorporates protections for sensitive streams previously found in the Fish Protection Act, which has also been revised and renamed the Riparian Areas Protection Act. The Water Act itself has been renamed the Water Users’ Community Act, retaining only one part of the former act around the establishment of water users communities.
NEW WSA REGULATIONS
Water Sustainability Regulation (WSR): Repeals and replaces the former Water Regulation and the Sensitive Streams Designation and Licensing Regulation. It contains the rules for applications for licensing of surface and groundwater diversions and use, requirements for change approvals, amendments to licences and approvals, land expropriation and sensitive stream regulation.
The following provisions of the WSR are of particular interest:
- Prescribes the information that must be included in an application for a groundwater licence, including the official names of any steams or aquifers that are reasonably likely to be hydraulically connected to the source of the aquifer under application.
- Establishes a three-year period in which entities currently using groundwater can retroactively establish priority use for the First in Time, First in Right (FITFIR) rule in their new groundwater licences. It also prescribes the evidence that must be produced in order to establish the priority, including the date of the proponents’ first use of the water, the amount of water historically used in each year since the first use and an explanation for any significant increases or decreases in the quantities historically used.
- Exempts users of deep groundwater who are conducting oil and gas activities in prescribed areas of the province regulated by the Oil and Gas Commission from the requirement to have groundwater licences.
- Prescribes the information to be provided in an application for a change approval. It also exempts change approval applications from providing information regarding environmental flow needs.
- Prescribes additional information for applications for licence or use approvals that apply to designated sensitive streams.
Groundwater Protection Regulation: Replaces a regulation of the same name, and like its predecessor, contains provisions for the construction, identification, maintenance, deactivation and decommissioning of groundwater wells. As with groundwater licences, deep groundwater wells are exempted from this regulation.
Water Sustainability Fees, Rentals and Charges Tariff Regulation: Sets out the application fees, rental periods and rates, and penalty amounts for overdue accounts. Application fees range from C$250 to C$10,000 and annual rental fees range from C$0.11 to C$2.25/1,000m3 depending upon the activity using the water. Rental fees for groundwater use are effective as of February 29, 2016, regardless of when an application for a groundwater licence is submitted. The WSR exempts entities who apply for groundwater licences before March 1, 2017 from paying the application fees.
Dam Safety Regulation: Replaces a former regulation of the same name and establishes requirements for determination of dam failure consequences classification, safety, emergency response plans, inspections and installation of monitoring equipment. One provision of particular interest is the authority granted to the regulator to order a dam owner to provide a written report from an independent expert in relation to issues respecting a dam identified by the regulator. It also adds a lengthy list of new offences related to failing to comply with the various requirements in the regulation, including high penalty offences arising from safety related provisions.
Water Districts Regulation: This establishes 26 water districts across the province to which the regulators may issue licences to divert and use water.
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