British Columbia's new Water Sustainability Act is now in force, and brings the province into a new era of water regulation for both surface water and groundwater. The Act, along with the five new or revised regulations, brings new requirements to applications for licences and other authorizations, increases regulatory powers to limit or condition authorizations that have already been issued, and raises important questions on implications to Aboriginal relations, use of water sustainability plans and impacts on sensitive streams.
Some key changes in B.C.'s new water law include the following:
- the regulatory scheme for the diversion and use of stream water will now be applied to both stream water (i.e. rivers, lakes) and groundwater (i.e. water source wells, water source dugouts);
- greater - and different - scrutiny of applications;
- a more prescribed system of notifying potentially affected rights holders, and related standing rules;
- substantially more regulatory powers to adjust water withdrawals for environmental protection purposes;
- important nuancing regarding water storage rules;
- more emphasis (at least on paper) for resource planning; and
- changes to, or new requirements for, fees, rentals and charges.
The province has built in a lead time for existing water users to apply for new licences. There are, however, advantages to applying early, including having fees waived and securing priority in rights.
Another important aspect of B.C.'s new water law relates to environmental flow needs, or EFN - which is the "volume & timing of water flow required for the proper functioning of the aquatic ecosystem of the stream". When reviewing applications, the decision maker must now consider the EFN of a stream, as well as the EFN of aquifers "reasonably likely" of being hydraulically connected to a stream. This requires applicants to carry out significant work in selecting and applying appropriate scientific models (for example, the NorthEast Water Tool, or NEWT). In addition, water users may be required to apply specific mitigation measures or provide compensation where impacts cannot be mitigated.
Notice of water use applications must also be provided to a wide range of rights holders, including authorization holders, riparian owners and land owners whose land is likely to be physically affected if the application is granted. These rights holders have a right to object to the application, and if warranted, a hearing may be held in which both the applicant and objectors have an opportunity to be heard.
The WSA contemplates a variety of new decisions, most of which are appealable to the Environmental Appeal Board. We expect an increasing number of appeals, especially as the new provisions begin to be applied.
The new water regime does not end when applications are granted. New post-authorization powers available to regulators include 30-year automatic reviews of authorizations and water sustainability plans that can be the basis for cancelling or suspending authorizations. Finally, only time will tell what implications B.C.'s new water law has to Aboriginal relations - including existing agreements, and impacts on Treaty and Aboriginal rights.
With these changes, and far-reaching implications, B.C.'s new water law has truly brought the province into a new era of water regulation.