Bill 18 – 2014: Water Sustainability Act (British Columbia)

On Tuesday, March 11, 2014 the B.C. Government introduced its new Water Sustainability Act (the “Act”). In planning the overhaul of the 105-year-old Water Act, the B.C. Government recognized that:

“Water is our most important natural resource:  without it, there would be no life on Earth. We all need it – for drinking, washing, cooking, growing food, and supporting every aspect of a healthy environment, a growing economy and our prosperous communities.

 

British Columbia has more than 290 watersheds, including fish-bearing rivers and streams, lakes and wetlands and the Government recognized that with the a growing population, a changing climate and expanding development, the pressures on those waters were growing and steps needed to be taken to ensure that water was able to meet today’s needs, and the needs of generations to come.

The Act will repeal most of the Water Act by modernizing its language and will do the following:

– re-enact the regulatory scheme for the diversion and use of stream water and apply that scheme to both stream water and groundwater;

– authorize the establishment of water objectives and requirements that water objectives be considered in decision making under the Act;

– mandate the consideration of the environmental flow needs of a stream in licensing decisions;

– move various provisions from the Fish Protection Act respecting sensitive streams, bank-to-bank dams and fish population protection orders to the Act as well as provisions respecting the protection of streams;

– provide new powers to be applied when streams are at risk of falling or have fallen below their critical environmental flow thresholds to modify the existing precedence of water use for the purpose of protecting the aquatic ecosystem of streams and aquifers and essential domestic uses;

– rename water management plans as water sustainability plans and provide new regulatory powers that can be exercised on the recommendation of a water sustainability plan, including regulations restricting the authority of approving officers, restricting the use of land or resources, reducing water rights, imposing requirements in respect of works and providing for dedicated agricultural water that can only be used for prescribed land and purposes;

– authorize an administrative monetary penalty scheme;

– authorize regulations providing powers and duties of officials under the Act to officials under other enactments;

– repeal most of the Water Act, leaving only provisions related to water users’ communities, and renames the Water Act as the Water Users’ Communities Act;

– make consequential amendments to other Acts.

The Act is certainly a positive step from the archaic Water Act, though there are already suggestions that the Act is vague, watered-down and leaves too much of the decision making to the discretion of regulators. Staffing levels are also being cited as a cause for concern, with a particular fear that low staffing levels will result in lower monitoring standards and enforcement.

Other criticisms of the Act include the fact that it is merely a “framework” which leaves much of the details to future regulations and that it fails to recognize water as a human right or public trust.

The B.C. Government maintains, however, that the Act makes B.C. an environmental stewardship leader. Time will tell.

Over the next thirty days, the B.C. public will be consulted on the issue of fees for major industrial water users before Minister Polak makes a recommendation to the Treasury Board on that issue. The Act is expected to be in force in Spring, 2015.

By James Early.