The new Water Sustainability Act: changing water use rules in BC

The provincial government started to implement the new Water Sustainability Act early this year. Find out what the changes will mean for existing water users and those applying for new uses.

Brandywine Creek. Robyn Goldsmith Photo.

On February 29, 2016, British Columbia began to implement the new Water Sustainability Act. The provincial government cites as among its central goals for the new legislation the preservation of ecosystems, modernizing an antiquated water rights system, and ensuring that our water stays healthy and secure. Regulations and sections of the Act will be phased in throughout 2016 and beyond.

Despite its lofty goals, however, the Act itself has been controversial. Many environmentalists have applauded it; Deborah Curran of the University of Victoria Environmental Law Centre described it as “one of the best pieces of environmental legislation in the past 15 years.” Of course, environmentalists have their criticisms, as do riparian users and other interest groups.

The Act preserves the “First-in-Time, First-in-Right” system of allocating water rights. Older licenses that were issued when water flow was not a consideration will continue. Additionally, pre-existing groundwater users will be given licenses under the new Act which will preserve the water rights they had prior to the new Act. Environmental flows will only be considered with respect to new licenses or amendments to old licenses, not for those with pre-existing licenses or pre-existing groundwater rights. This is controversial with both environmentalists, who consider that the Act does not go far enough to change existing water uses, and with other user groups, particularly First Nations, who were users prior to any licensing under the old Water Act. The government defends the system, saying that any alternate system would be too difficult to regulate.

Some environmentalists who are critical of the Act have also cited the reduction of public process as being particularly problematic. Only those who the government has pre-determined as being impacted by a licensing decision can file an objection. Under the old Water Act, anyone who considered that his or her rights would be compromised by a decision could file an objection.

Other criticisms from an environmental perspective include the potential easing of requirements for water use for fracking, and the “offset” approach to mitigating harm to streams. The offset approach is that damage to a stream can be offset by remediation in other areas.

Under the new Act, groundwater use will be regulated. For some, this is a welcome change. For others, who are accustomed to using wells and groundwater without accountability, the regulatory burden is high and difficult to navigate. Non-domestic groundwater users will have to now be licensed to use wells, and their licenses will be backdated to when they first used the water source. If you are a water user by way of a well, you will want to have a look at the new Act.

The Act imposes fees for water use, which will apply to both surface and ground water. Some critics say this risks commercialization of our water, rather than treating it as a public asset and a fundamental human right.

For ranchers, miners, and other non-domestic water users, the regulatory burden will increase. The new Act is a step towards recognizing that water is not limitless, and is pollutable. However, the regulatory system and licensing requirements will be tricky to navigate, and will no doubt infuriate users trying to license their water rights.