"When the well is dry, we know the worth of water."1
A short while ago, a local government inquired about restricting people from drilling groundwater wells on their properties. The challenge for this rural community was that there were increasingly more groundwater wells being drilled for domestic purposes, a practice that was depleting the underlying aquifer.
The short answer was "no" – the local government could not restrict the proliferation of groundwater wells. At that time, the Province of British Columbia (B.C.) did not regulate the withdrawal of groundwater. Anyone could dig a well in their backyard and withdraw groundwater without obtaining a licence.2
On May 29, 2014, B.C.'s legislature enacted the new Water Sustainability Act,3 expected to come into effect by regulation sometime in the spring of 2015. Under the new Act, withdrawal of groundwater will be licensed and monitored.
What will the new regime mean for B.C.'s local governments?
What local governments wanted the province to address
B.C. started the modernization of its century old4 Water Act in 2009. During the course of consultation leading up to the Water Sustainability Act, a number of local governments submitted comments to the province about what they would like to see addressed in the new groundwater regulatory scheme.
The key points were as follows:
Precedence – Public waterworks should take priority over commercial and industrial uses.
Domestic wells – All uses of groundwater, including domestic uses, should be regulated.
Local government involvement – Local governments should have the authority to regulate groundwater wells in their jurisdiction.
Aquifer health – The health of groundwater aquifers should be monitored.
How New Regulatory Regime Addresses Concerns
The new Act has the foundation necessary to address some of the concerns raised by local governments. Unfortunately, many important details of the regulatory scheme remain unknown. These are meant to be developed over the next months and possibly years. Until such time, it is too early to tell if B.C.'s local governments will see a significant change in the use and monitoring of groundwater within their jurisdictions.
In particular:
Precedence – Groundwater withdrawal will be allocated by precedence of time and use. The details of the allocation will be set out in future regulations.
Domestic wells – Some domestic uses will be exempt from licensing. The details of the exemption will be set out in future regulations.
Local government involvement – Local governments will not have the authority to restrict the proliferation of groundwater wells. A local government may develop a water sustainability plan, which the province has to approve and implement. In areas where a water sustainability plan applies, land-use decisions will have to be consistent with such a plan.
Aquifer health – Other than licensing, there are no immediate province-wide mechanisms to monitor groundwater health. The province has regulatory authority to designate areas in need of protection.
We will explore these in more detail.
Precedence
In B.C., water licences are allocated on a First in Time, First in Right (FITFIR) basis. This means that an earlier-dated licence has priority over a later-dated one. Some local governments were concerned that if the province extends FITFIR allocation system to groundwater, community water needs may become secondary to those of industry.
Under the new Act, the FITFIR allocation system will apply to groundwater. Groundwater licences will have a priority date based on when the groundwater was first used. Licences with the same priority date will have precedence by use: domestic, waterworks, and irrigation uses will have priority over mineralized water, mining, oil, and gas.
What does this mean? Will local governments have to compete with private entities for precedence over limited groundwater resources? Will there be a race to the licensing office? This remains to be seen. The Act contemplates that transitional regulations will be put in place to establish an application process and a method for determining precedence dates.
Notably, local governments have the authority to expropriate water licences, if necessary.5 In the event of such an expropriation, the province may issue a new licence to the local government (replacing the one that is expropriated) retaining the precedence, but authorizing the required use.
Domestic wells
Many local governments were concerned about the proliferation of small (predominantly domestic) groundwater wells. If these wells remained unregulated, the cumulative effect of small withdrawals could be significant.
Under the new Act, domestic groundwater wells will have to be registered, but some of these wells will be exempt from licensing. The particulars of this exemption are yet to come. These will be critical: if the threshold is set too high, the cumulative effect of unlicensed domestic withdrawals may undermine the effectiveness of the regulatory scheme.
On the positive side, the province has the authority to designate areas where the exemption will not apply. Also, decision makers will have to consider all withdrawals, including domestic withdrawals, when reviewing an application for a licence.
Local government involvement
Local governments do not currently have the authority to regulate groundwater wells. Some local governments wished to have this authority; others were concerned that such delegation would strain their budgets and staff.
Be that as it may, under the new Act, local governments will not have the authority to regulate groundwater wells. A local government wishing to restrict the proliferation of such wells may consider working with the province to set up a water sustainability plan. If the province approves the plan, it may implement it by a regulation. The local government will then be able to direct their land-use decisions to be consistent with the approved plan.
Water sustainability plans are not a novel concept; but, they have not been widely used since their introduction in 2004. Under the Water Act, these plans were referred to as "water management plans."
To date, we are not aware of any water management plan being approved in B.C. Plans that have been in the works have taken a number of years (and significant expense) to prepare.
To be an effective mechanism, the province will have to show willingness to engage local governments in developing and implementing water sustainability plans. Otherwise, this potentially useful tool will continue to be unused.
Aquifer health
Many communities pointed out that there is a paucity of information about the health of aquifers. Proactive measures were called for to monitor groundwater health.
The new Act provides the province with the authority to implement proactive measures to monitor groundwater use. These measures include developing water sustainability plans, designating areas of restricted withdrawal, setting water-use objectives, and establishing advisory boards to study and report on best practices.
However, all of these measures are future discretionary steps of the province. Whether any of these are implemented will depend on provincial policy, availability of funds and personnel, and pressure from local governments and the general public.
At this time, other than regulating withdrawals, there is no immediate province-wide plan to monitor groundwater health.
Conclusion
Groundwater regulation is a significant and laudable step for B.C. But, it is a cautious step. After many years of deliberations, the new Act lacks substantial details: How will precedence be addressed? What wells will be exempt from licensing? Will there be areas designated for special protection? How will local communities be involved?
One can only hope that the province will populate the Water Sustainability Act with strong regulations and allocate funds to its implementation and enforcement before we, as a community, fully realize the worth of our water.
Footnotes
1 Benjamin Franklin, Poor Richard's Almanac, 1746.
2 Under the British Columbia Water Act, R.S.B.C. 1996, c. 483 (which will remain in place until the new Water Sustainability Act, S.B.C. 2014, c. 15 comes into force) groundwater can be withdrawn without a license. Wells deeper than 15 metres must be constructed by a qualified and registered well driller. The Water Act and the Groundwater Protection Regulation, B.C. Reg. 299/2004 (enacted pursuant to the Water Act) impose certain restrictions and regulations in connection with qualified drillers, well identification, well caps and covers, and the like. Some groundwater extraction projects must be reviewed under B.C.'s Environmental Assessment Act, S.B.C. 2002, c. 43 and the Reviewable Projects Regulation, B.C. Reg. 370/2002 (enacted pursuant to the Environmental Assessment Act).
3 S.B.C. 2014, c. 15.
4 The Water Act was first enacted in 1909.
5 Subsection 31 (2) of the Community Charter and sections 309 (1.1) and 749 of the Local Government Act.
Previously published November 2014 edition of Municipal World
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