On July 15, the British Columbia government announced a Level 4
drought rating for the South Coast and Lower Fraser areas of the
province, which could lead to orders to temporarily reduce or cease
water use and put rights held under existing Water Act
licences at risk.
B.C.'s Drought Response Plan, the policy under which the
government coordinates the responses by the province and local
governments to drought conditions, is organized around four
successive levels of drought. Level 4 is imposed when conditions
are extremely dry, there is insufficient supply to meet community
or ecosystem needs, and progressively more severe and widespread
socio-economic impacts are expected. Level 4 designations now apply
to all of greater Vancouver and the Fraser Valley, the Sunshine
Coast and Vancouver Island.
CONSEQUENCES OF LEVEL 4 DROUGHT DESIGNATION
According to the government, under a Level 4 drought rating,
voluntary measures to reduce water consumption and water
restrictions already in place continue, but these measures may be
augmented by regulatory responses from the provincial and local
governments. This could include water use allocation, orders to
restrict or cease usage of water under licences altogether, and
intensified monitoring and enforcement to ensure compliance with
such restrictions. Additionally, while not under the direct control
of the province, it is anticipated that actions may also be taken
by the federal government under the authority of the Fisheries
Under the current Water Act, the B.C. government has
broad powers to make orders impacting activities under water
licences. These orders could be used to implement allocation and
conservation measures, but any such orders are subject to the
"First in Time, First in Right" (FITFIR) rules that are
embedded in the Water Act's precedence provisions.
Thus, holders of older licences have priority over newer licences
in the same watershed. Having said this, the FITFIR rules
themselves are also subject to a higher priority given to domestic
and waterworks uses. It is noted that the Water Sustainability
Act, which was passed by the legislature in 2014 but is not
yet in force, broadens the government's powers to by-pass the
FITFIR rules and curtail water use under licences.
There is also a regulatory power vested in the minister of
Forest, Lands and Natural Resource Operations, which can be used to
curtail water usage. Under the Fish Protection Act, the
minister may make a temporary order to regulate the diversion,
storage, and use of water by holders of licences or approvals,
regardless of the licence's precedence under the Water
Act. Thus, the FITFIR rules are rendered inapplicable and
companies can be ordered to cease using water altogether until the
drought eases. Such orders can only be made if the minister
considers that, because of a drought, the flow of water in a stream
is or is likely to become so low that the survival of a population
of fish in the stream may be or may become threatened.
As managers of water supplies in the regional districts and
municipalities, local governments also have the discretion to
determine how the water is allocated between authorised uses, and
are likely to use this power to implement ever stricter
restrictions on water use by domestic, commercial and industrial
The federal government also has powers to regulate works that
may impact fish or fish habitat under the Fisheries Act.
Any rights under water licences are not applicable to the federal
legislation and therefore the FITFIR rules will also not govern any
As the dry weather continues, industrial and commercial entities
in B.C. can expect an increase in the regulation of activities
impacting water supplies, as well as monitoring and enforcement of
water restrictions. This may result in the curtailment of works
with heavy water use, including industrial and commercial
facilities, and energy projects. Water licence holders who use
water from water bodies supporting fish populations are
particularly vulnerable to requirements to curtail or cease water
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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