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.
BACKGROUND
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 Act.
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 users.
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 such orders.
IMPLICATIONS
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 use.
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