Canada: Water, Water Everywhere - But Did You Get Permission To Take It?

Last Updated: December 15 2009
Article by Jan-Martin LeBlanc and Pierre Langlois

Québec had a wet summer this past year. While washing out many picnics, the steady rains also replenished our ground and surface water reserves. Although Québec is blessed with abundant water resources, there is wide consensus on the necessity to protect such a critical resource. The Québec legislature has adopted over the past few months new water legislation which will potentially have an impact on businesses. The following summarizes the new regulatory scheme introduced by the Water Act and the Regulation respecting the declaration of water withdrawals.

A New Water Regulatory Regime

The unanimously adopted Act to affirm the collective nature of water resources and provide for increased water resources protection, or Water Act, introduces several mechanisms for protecting and managing water resources. The Québec National Assembly adopted the law June 11, 2009, but had not yet announced the law's effective date at the time of writing. The Act's highlights include

  • civil recourse for the Attorney General to order reparation of any damages to water resources,
  • a new regime for authorizing water withdrawals,
  • acknowledgment that water is a collective resource and part of Québec's common heritage,
  • water governance rules based on integrated and concerted management of designated hydrographical units,
  • a new water knowledge office, and
  • prohibitions against transferring water outside of Québec that only the government may waive and only for public interest after public consultation.

The Act's broad civil recourse provisions will have a substantial impact on potential civil liability of companies whose activities are likely to alter the quality of surface or ground water. Basically, in addition to any penal environmental recourse, the Attorney General may commence proceedings for repairs to any water damage caused by or through a person's fault or illegal act. Under the new law, a company that causes damage to water is liable regardless of intention, carelessness or negligence. Rather, the simple fact that the company caused the damage is enough to establish liability. The Act's no-fault regime departs from the general civil liability scheme that requires proof of fault. Moreover, unlike cases of environmental regulatory violations, offenders will not be able to raise a due diligence defense to escape liability.

All kinds of water damage are subject to civil recourse under the Act's broad language. Damage covered includes any degradation of water resources' physical, chemical, or biological features or ecological functions as well as change in quantity. Offenders may be ordered to restore the resources to their original state, repair through compensatory measures, or pay a lump sum as compensation.

In contrast to other recourse under the civil code that requires complaints be lodged within three years, the new water law only requires the Minister to take action within ten years of the date when the Minister first knew of the damages.

So, to avoid liability under these new provisions, companies will need to pay close attention to the consequences their water activities cause, avoid altering the quantity, and keep from damaging the quality of surface and ground water.

Do you withdraw two pools of water per day?

Government approval will be required before withdrawing an average of over 75,000 litres per day, the equivalent of two pools, directly from surface water or ground water. In most cases, authorization will remain valid for ten years. Lawful withdrawals made before the Act is in force will be permitted to continue under the same conditions for ten years without obtaining authorization; however, after that ten-year period, authorization under the Act will be needed going forward.

Priorities guiding ministerial decisions

The law also establishes priorities for sharing water resources and granting authorizations. Under the Act, the Minister must give the population's need for water resources for health care, hygiene, public security, and nourishment top priority. The Minister's decisions also must balance a competing interest in protecting aquatic ecosystems with agricultural, aqua-cultural, industrial, energy production, and other human needs.

Like other governmental authorizations regarding the environment, water withdrawal authorizations may include any conditions, restrictions, and prohibitions the Minister deems appropriate. Conditions may concern the origin and amount of water that may be withdrawn, amount and quality of water to be returned to the environment, installation and work associated with the withdrawal, and verification of and follow-up regarding environmental impact. The Minister has broad power to set conditions that positively affect conserving, protecting, and efficiently using water and reducing water consumption.

Finally, the government and Minister, pursuant to exceptional discretionary powers, will have the authority to restrict and even terminate – without awarding an indemnity – any water withdrawal operations posing a serious risk for public health or aquatic ecosystems.

Regulating Water Withdrawal

The new Regulation respecting the declaration of water withdrawals, or RDWW, came into force October 2009 and requires companies and others regularly withdrawing large volumes of water to declare the amount they withdraw. The regulation targets withdrawals directly from surface and ground water in the environment, typically by municipalities, industries, businesses and other institutions that municipal aqueduct networks do not supply.

The regulation is designed to ensure that water volumes taken from the environment can be evaluated to assess their impact on water resources and ecosystems. The government intends on using the information gathered to better manage conflicts over water usage in accordance with the Water Act. According to the government, the regulation will pave the way for creating a water fee system, which will be subject to public consultation. The new Water Act also hints at such a water tax as it establishes the user-pays principle.

The new regulation applies only to withdrawals of surface or ground water averaging 75,000 litres or more per day (calculated monthly). The regulation expressly does not apply to withdrawals intended for a single household's domestic use (from an individual well or surface water intake), for supplying ships, aircraft and other vehicles, for use in firefighting, for agricultural activities or fish-breeding, and for producing hydroelectric power. Withdrawals from water distribution and supply systems also are not covered.

Companies and institutions must send the Ministère du Développement durable, de l'Environnement et des Parcs (the Ministry) information on the number and localization of their withdrawal sites, amount and type of water (surface or ground) withdrawn, dates water is withdrawn, and class of industrial or commercial activities the withdrawals are made for.

Although the new regulation specifies what equipment must be installed to measure the amount of water withdrawn, facilities without measuring equipment may estimate the amount through indirect or spot measurements. But, all new water withdrawal sites established after September 10, 2009, must be outfitted with adequate measuring equipment.

Each year, water withdrawal activities must be declared by March 31 of the very next calendar year, with the first declarations under the new regulation due on or before March 31, 2010, to cover October through December 2009. A Ministry-published utilization guide will be available February 2010 to help entities declare. The Ministry will also create a website to give those who must declare on-line access to both the forms and their file. Covered entities will also need to retain documents supporting their declarations for five years and maintain a register describing their withdrawal sites, measuring equipment, equipment maintenance and repair schedule, and dates of other events that may have affected their measurements' accuracy.

Conclusion

The new water withdrawal authorization and declaration scheme will have an impact on entities withdrawing significant quantities of water directly in the environment. However, any company, regardless of the amount of water they withdraw, will have to exercise increased care with respect to the effects their activities have on the quality and the quantity of water resources Companies are wise to watch for developments and learn more about the new legal regime on water protection.

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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