The strengths and weaknesses of the new Water Sustainability Act
The BC Government introduced its long-promised Water Sustainability Act in the BC Legislature on Tuesday. As we said when the government started its last round of public consultation on the proposed Act:
Water, and how we treat our water, is one of those fundamental issues that touches on so much of who we are, what we do, and how we build our economy. A weak Water Sustainability Act could fail to deal with current unsustainable and inefficient water use, and could lock in these problems for years to come. A strong Act could address past over-use, and wasteful use, of water and protect drinking water and fish from over-use, poor oil and gas, logging or mining practices, and other threats.
So how does the new Water Sustainability Act (WSA) do? Reviews among the environmental community are mixed. Our friend, Gwen Barlee, at the Wilderness Committee described the WSA as:
… a piece of legislation that has good intentions, but doesn’t have the necessary enforceable language and mandatory standards to actually protect freshwater in B.C.
While our friend and former co-worker, Deborah Curran, now of the UVic Environmental Law Centre, tweeted:
#WaterSustainabilityAct Overall, one of the best pieces of environmental legislation in the past 15 years
— Deborah Curran (@DeborahLCurran) March 11, 2014
After reviewing the Act, we’re actually fairly impressed. There is a lot to like about this Act – even though many of the critical details will need to be worked out in the regulations. That being said, there are also concerns and disappointments: especially related to addressing the environmental impacts of current water users and a relaxing of rules regarding making water available for hydraulic fracturing.
Apologies for the length of this Alert, but Bill 18 – the WSA – is 140 pages long, so there’s a lot to cover.
What’s to like
Groundwater will be regulated
Although the current Water Act allows government to regulate groundwater, that was never implemented. Readers of Environmental Law Alert will know that we have serious concerns about how licences will be given out to ground-water users, but many of those issues are not decided in the Water Sustainability Act itself, although the WSA does extend the controversial First In Time, First In Rights system of water allocation to groundwater (more on that in the what’s not to like section, below). The WSA leaves the precise mechanisms for granting licences to groundwater users to be developed through regulations (s. 140). This could give the government more time to consult First Nations, as well as talk with water users and communities in water scarce regions, prior to locking in unsustainable water uses. It could also give government flexibility to consider environmental values before locking in licences to use groundwater.
Water flows for fish will be better protected
The WSA requires the government to “consider” environmental flows when making decisions about water allocation (s. 15). Maintaining environmental flows essentially means keeping some water in streams and lakes for the health of aquatic ecosystems. As we’ve noted, “consider” is not a strong test. However, the final version of the WSA strengthens this otherwise weak test in a couple of ways.
- First, the decision maker has to actually determine what the environmental flows should be (it’s not enough to just think about environmental flows in some abstract way).
- Second, the provincial cabinet can designate some streams as “sensitive streams” and introduce additional, and more stringent, rules related to environmental flows (s. 17).
Cabinet can exempt (through regulation) certain types of applications for permission to use water from the requirement to consider environmental flows, although in such circumstances the decision-maker could still choose to consider environmental flows. This could be a concern because the important issue of whether and how to consider environmental flows in making decisions about water use should not be left entirely to the discretion of decision-makers. However, it is difficult to know how problematic this exemption provision will be unless and until exemptions are made by regulation.
As discussed below, however, these requirements only apply in relation to future decisions about licences – a problem in areas of the province where existing water use already negatively impacts environmental flows.
The WSA (s. 43) also includes powers to create “water objectives”, which government decision-makers would need to consider. However, the details of what these objectives would be and who would need to consider them are not yet developed. Again, a potentially powerful tool, but one for which we’ll need to see the details.
Finally, the WSA does include powers to make orders to protect “critical environmental flows” in times of scarcity (s. 86-87) – meaning water flows necessary to prevent “significant or irreversible harm to the aquatic ecosystem” – and also flows necessary for the protection of fish populations (s. 88). In earlier consultations, we were given to understand that Critical Environmental Flow orders would be only used for short-term problems, and the WSA does allow the Minister to make such an order for 90 days only. However, presumably in response to public input, the WSA also allows Cabinet to make a similar order for any period of time.
Water Sustainability Planning
The WSA contains extensive powers related to developing “Water Sustainability Plans” and equally extensive powers related to implementing them (ss. 64-84). While Water Use Plans have been a feature of BC water law for some time, the WSA allows the development of these plans to be delegated to other groups (if the BC government wishes), and provides a fairly detailed legal structure for them.
In addition, it allows the government to make regulations requiring just about any government decision-maker, under any government statute (with a few exceptions), to implement the plans. The WSA purports to give the government extraordinary powers to over-ride provisions in other statutes for the purpose of implementing a WSA (s. 76), and it will be very interesting to see how these powers are used and interpreted by the courts.
The WSPs are extraordinarily powerful and broad, and could be a very useful tool for a community seeking to improve water management. That being said, the broad discretion granted through these provisions does raise concerns about whether the powers could be used in less sustainable or appropriate ways. Our hope is that in such a case a court would find that the purpose of the Water Sustainability Act constrains government.
Beneficial use is flexible and efficient
Under both the Water Act and the WSA, water is supposed to only be used “beneficially” – a key term that theoretically limits all water use in BC, but is not defined in the current Water Act. In the last round of public consultations the Ministry of Environment proposed a narrow definition of what was meant by the term– essentially as referring only to private benefit from the water – but proposed defining it as including a requirement to use water efficiently. We took the position that “beneficial use” must include public benefit, and urged the government to define it in ways that protected stream health and other values:
Because beneficial use is an inherent limit on the FITFIR system, it would clarify that a water licence brings with it certain basic responsibilities to steward water resources. Such a definition would allow the government to protect stream health in respect of existing and new licences. … Similar approaches might also be used to require that other values be protected – such as access to drinking water or food security or to address the Crown’s constitutional obligations to protect First Nations rights in relation to water. Certainly the new definition of “beneficial use” must not be narrowly focused on private interests and must allow British Columbia’s proposed Water Sustainability Act to be flexible in addressing changing social and environmental needs.
The new WSA does not explicitly adopt a public benefit interpretation of “beneficial use”, but it does define beneficial use as (among other things) being “in accordance with any applicable regulations,” and gives Cabinet powers to enact regulations related to what is required by beneficial use (s. 127). Those regulations have not been developed, but this definition does explicitly recognize a flexibility in the term – and gives the government the power to define the term in ways that protect public values.
In addition, the WSA does define “beneficial use” as requiring efficient use, and creates new and important powers for government staff to require water conservation.
What’s not to like?
Despite that impressive list of improvements, there are some serious areas for concern in the Water Sustainability Act.
“First” come, first serve (s. 22)
First and foremost among these is the retention, with only modern modifications, of the First-in-Time, First-in-Right (FITFIR) system of water allocation.
What [FITFIR] means is that older licences – which were issued perhaps 100 years ago (to early ranchers or industrial operations) when environmental flows were not considered – as well as licences that will be issued for existing groundwater uses (for example to Nestle for water bottling) – will continue to trump environmental flows (as well as First Nations uses and more recent licences for drinking water, agricultural use, etc.). It’s only for new licenses, or amendments to licences, that environmental flows will be considered.
Protecting environmental flows require that we recognize that ecosystems depend on water and have a claim to that water that pre-dates the earliest water licence issued by the BC government. The same goes for First Nations uses of water, which, somewhat ironically, are not recognized as “first-in-time.”
The Act also extends that approach to groundwater use, retroactively giving licenses to use water to well owners based on the date that they first used their well (s. 140).
In the case of environmental flows, the WSA does not generally require consideration of environmental flows for existing licences (it is still unclear the extent to which they will be considered in licence reviews which the Act provides for 30 or more years after the WSA comes into effect). Whether environmental flows will be considered in relation to existing groundwater users (as they are granted licences) will depend on the regulations, but in earlier consultations we were told that they would not be.
The Water Sustainability Plans and Critical Environmental Flow orders are the main ways that environmental flows will be addressed for current licences – and both tools are most likely to be used once problems are already arising in a watershed. That being said, if the regulations related to beneficial use were to create legal requirements for water users in relation to stream health, this might go a long way towards addressing the concerns with FITFIR.
More short-term water for fracking (s. 10)
One very disturbing change in the WSA, about which there was no consultation at earlier stages, is a new power of government to issue repeat short-term authorizations to use water to the same person, for the same purpose and in respect of the same place. We believe that this is being done to facilitate hydraulic fracturing (fracking).
For some time the Oil and Gas commission has granted short-term approvals for water use for fracking, which currently can be for up to 24 months (the Water Act used to limit short-term approvals to 12 months, but was extended a year or two back). However, if the oil and gas companies take longer than 24 months to frack, the Commission has been issuing repeat authorizations to the same companies – a practice that Ecojustice has recently challenged in court.
However, the WSA “clarifies” that a short-term water use purpose authorization can be issued to the same person in respect to the same water and for the same purpose.
10 (3) For certainty, a use approval may be issued authorizing a person to divert water from a source of water supply for a water use purpose … whether or not a use approval was previously issued authorizing the person to divert water from the same water source supply for the same water use purpose in relation to the same [land].
The result is less transparency, since information about short-term water use approvals has generally not been available (unlike information on licenses) and there is far less information required for a short-term approval.
Environment Minister Polak has suggested that BC’s Cleanest LNG pledge should be judged against the strength of BC’s Water legislation, so it seems particularly ironic that one of the areas in which the WSA is weaker than its predecessor is in relation to making water available for fracking.
That being said, the government’s earlier proposal to exempt deep saline wells from licensing – to accommodate oil and gas companies– does not appear in the WSA, although it might still be implemented in future regulations.
Reduced Public Process
In general we had hoped to see an expansion of public process, and a recognition that the general public might have an interest in water decisions. The WSA does not include such an expansion.
But there are also some examples of the WSA narrowing the opportunities for public process. For example, the Water Act provides a process for any riparian owner, licensee or applicant for a licence, “who considers that his or her rights would be prejudiced” by the granting of a licence, to file an objection and potentially get a hearing. The WSA provides for a similar process (s. 13, applying to a wider range of decisions, which is positive), but objections can only be filed by someone who the government decision-maker has pre-determined may be impacted by the decision. Similarly, some key decisions – such as a decision to grant a licence under “quick licensing” rules – cannot be appealed to the Environmental Appeal Board (s. 18(10)).
Mitigating harm to streams (s. 16)
In addition, we are also concerned by sections of the WSA adopting a “mitigation and offset” approach to environmental protection. The idea is basically that harm to a stream caused in one place can be offset by environmental remediation or other environmental benefits. To be fair, the WSA only allows offsets to be used on the same “stream” (or lake, river, aquifer, etc.), rather than on entirely different water bodies, which is an important limit, but it is important to note that environmental offsets are a controversial idea, that should be used, if at all, in the context of a strong conservation framework. At present there is nothing to indicate that such a framework is contemplated, and the WSA appears to give broad discretion to the decision-maker.
Taken as a whole, the WSA is a pretty good new Water Act – or rather it could be, depending on what the regulations say when they are developed. Clearly we still have some areas of concern, but many of the concerns that we had during the last round of public consultations have been addressed at least in part.
The relaxation of the rules around water for fracking, and the continued concerns about whether FITFIR (both in respect of surface water licences and under as yet undefined rules for groundwater licences) could undermine environmental flows, and both remain particularly serious problems with the Bill. We strongly encourage the government to fix these issues so that they do not weaken the WSA’s effectiveness as a tool for ensuring the sustainability of the water on which we all depend.
By Andrew Gage, Staff Lawyer
Note: The above analysis is focused on the ability of the Water Sustainability Act to address concerns about ecosystem function. It does not evaluate the WSA through other social justice or broader lenses. In particular, we note that many aspects of the Bill will likely be challenging for First Nations due to its failure to recognize their ongoing use and Rights in respect of water.
Photo courtesy of Halalt First Nation.