Canada: Proposed Policies For Implementing B.C.'s New Water Sustainability Act Available For Comment

On July 30, 2015, the British Columbia government released four discussion papers for public comment outlining proposed new policies for regulations under the Water Sustainability Act. These papers are important as much of the detail on how the new water regime will work will be contained in the regulations. Moreover, these papers signal the government's current direction on groundwater licensing, dam safety, groundwater protection, and compliance and enforcement. Comments on all four papers will be accepted until September 8, 2015.

BACKGROUND

B.C.'s Water Sustainability Act (Act) was passed in May 2014 and is anticipated to come into force in 2016. The Act will replace the existing Water Act, implement a new groundwater licensing scheme and update the water regulatory regime generally. The delay in implementation is due to the need to revise and align the existing regulations with the new Act, as well as to establish processes for the new requirements. Currently, the government estimates the regulations will be completed in early 2016. The four papers released on July 30 discuss key policies the government is considering for incorporation into the existing or new regulations.

Groundwater Licensing

The Act will, for the first time in British Columbia, require licences for groundwater use for non-domestic purposes. The government estimates that there are approximately 20,000 existing wells in the province for non-domestic use. The Water Sustainability Regulation (WSR), which will replace the current Water Regulation, will maintain most of the existing requirements for surface water licences and will add groundwater licensing requirements. In particular, the following transitional provisions for existing groundwater users are proposed:

  1. There will be a three-year transition period after the Act comes into force (Transition Period) during which existing groundwater users may apply for groundwater licences.
  2. Application fees for applications submitted within the first 12 months of the Transition Period will be waived (these costs are estimated to range from C$250 to C$10,000).
  3. The priority date to apply the "First-in-Time, First-in-Right" (FITFIR) rules for existing well owners who submit applications during the Transition Period, will be the date of the first use of the groundwater. The priority date for owners of new wells, and for existing well owners who submit licence applications after the Transition Period, will be the date of the licence application.
  4. Fees for water use for existing users who apply for licences in the Transition Period will be backdated to the date the Act comes into force.

The policy sets out examples of the information that will be required to be submitted for licence applications by existing groundwater users, though it does not shed light on how the government intends to process the significant number of anticipated licence applications. Other than clarifying that decisions on issuing groundwater licences will be based upon licence priority dates of other users of the groundwater and users of any surface water that is hydraulically connected to the groundwater, the policy does not discuss what criteria the decision-makers will use to determine whether to issue the groundwater licences to existing groundwater users and on what conditions.

Dam Safety

The Dam Safety Regulation, which applies to water storage dams, will be amended to regulate dams that capture and store water from an aquifer. It will also include expanded requirements designed to "reduce risk to the public, infrastructure, property and the environment." This includes changes to emergency plans, signage, review of downstream conditions, record keeping and operational requirements.

Groundwater Protection

The current Ground Water Protection Regulation only establishes standards for well construction, maintenance and decommissioning. The government proposes to replace it with a new Groundwater Protection Regulation, which will add requirements regarding:

  • The professional qualifications needed to drill groundwater wells
  • The siting of water supply and dewatering wells (including setbacks for new wells from existing wells)
  • Storm water recharge (from urban runoff) and injection wells
  • Controlling artesian flow (including well design and reporting)
  • Restricting well pits

Ticketing

The Violation Ticket Administration and Fines Regulation, which lists the provisions of provincial legislation for which non-compliance can be addressed with tickets, will be amended to align the wording of current offences with that of the Act, add new offences, and change the fines for certain offences.

PUBLIC COMMENT

Public comments on these four papers will be accepted until September 8, 2015. Comments can be provided directly online at http://engage.gov.bc.ca/watersustainabilityact/ or by sending an email to livingwatersmart@gov.bc.ca.

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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