Watershed Watch Submission on BC’s Water Sustainability Act
The provincial government released a legislative proposal paper on October 18th as part of the Water Sustainability Act engagement process. The document is open for feedback until November 15th. We encourage you to think about the most important aspects of water protection you want to see in the Act and tell the Ministry of Environment. They are open to listening and now is our opportunity!
At Watershed Watch we look out for BC salmon, and water is critical habitat. You might be a recreational or commercial fisherman, a streamkeeper, or a parent wanting the safest water for your family. Whoever you are, you have an interest in safe, accessible water for all your needs. For this reason, you need to speak up! Tell the government what your concerns are in regards to our protected water. There are 7 key areas under review. Those are:
- Protecting stream health and aquatic environments
- Considering water in land use decisions
- Regulating and protecting groundwater
- Regulating water use during times of scarcity
- Improving security, water use efficiency and conservation
- Measuring and reporting large-scale water use
- Providing for a range of governance approaches
Watershed Watch has prepared our own submission (below or as a PDF) on BC’s Water Sustainability Act. Please feel free to use the information in our submission in writing your own response. For more information, also see and overview of the legislative proposal and the complete legislative proposal available here.
Submit your comments to firstname.lastname@example.org before November 15th, 2013 and remember, all our straws are in the same pond!
Watershed Watch Submission on BC’s Water Sustainability Act
Recent polls suggest many British Columbians consider water to be our Province’s most precious resource. Yet water is rarely treated as such. For the past century BC has sadly limped along under antiquated legislation that offers insufficient protection of water for both nature and humans. Indeed, British Columbia’s water laws have earned the dubious distinction of being among the least progressive in North America.
In October 2013, the provincial government released “A Water Sustainability Act for BC: A Legislative Proposal.” The Water Sustainability Act (WSA) proposal outlines broad directions that may appear in legislation expected to be introduced in the Spring 2014 session of the BC Legislature. While the WSA proposal touts a number of laudable goals—such as providing environmental flows, increasing public participation, addressing water scarcity, and protecting the public interest—it does not yet contain sufficient tools and requirements necessary to achieve those goals. In order to protect the public interest the WSA must, at a minimum, ensure that legislation, regulations and policy meet
the following benchmarks.
Substantial research, and applied learning—as gained in the robust BC Hydro-led water use planning process—clearly indicates that proper environmental flows are critical to healthy functioning watersheds. Based on this science and home-grown learning, proper environmental flows must be clearly prioritized over other non-essential human uses. The WSA must explicitly set aside an ecologically-based reserve of water that is not available for any use other than the conservation and maintenance of fish habitat and preservation of healthy ecosystems (e.g. wetlands).
Watershed Watch thus calls on the Provincial government:
- To make environmental flows a clear obligation for all licensees and a central part of all water allocation decisions, including licence reviews.
- To ensure the WSA defines the term “environmental flow”. 
- To commit to public consultation on the development of regulations and policy to create the framework for minimum flows.
- To establish province-wide standards in the Act, or regionally specific standards that apply to each division of rivers in a particular class.
- To abide by a scientifically defensible method (e.g. Canadian Science Advisory Secretariat 2013) for determining environmental flows.
- To grant decision makers the power to suspend a water licence for aquatic ecosystem purposes.
- To explicitly state that decision makers may refuse to issue a licence if it would negatively affect an aquatic ecosystem.
Groundwater is another precious, though largely unprotected, resource that must receive greater consideration. Groundwater is connected to rivers and provides critical augmentation of fisheries flows (especially in drought-prone and climate-challenged locales), and also helps maintain temperatures within biologically acceptable boundaries for fish and other animals.
Since groundwater is so intimately linked to surface water, the two cannot be separated or treated separately under management and licencing regimes. More should be done to assess the amount, location, and health of current groundwater reserves in BC.
Furthermore, current well users should not receive final licences, or those licences should be fully reviewable, until:
- At least 5 years of water monitoring data for the aquifer obtained under the new monitoring requirements is available;
- The licences can be assessed to ensure that the use of the aquifer does not exceed recharge rates and does not negatively impact the health of the aquifer or the health of nearby streams;
- Any Constitutional obligations to consult First Nations regarding specific licences can be addressed.
If current levels are not sustainable, licences must be adjusted to ensure that use rates are sustainable and do not negatively impact the health of nearby streams.
Finally the rights of domestic well owners to the continued flow of water in their wells, as against licensed well owners, should be clarified.
The Government is touting one of the benefits of the WSA as “wider participation in decisions and water governance approaches.” However, the proposal does not contain the commitments necessary to make this happen.
We are calling for government to ensure:
- That any delegation of decision-making authority to persons outside of the provincial government be limited to local government officials, First Nations representatives or properly established local watershed councils, and that any decisions may only be exercised after appropriate public notice and comment.
- That any advisory committees created under the WSA have public representation and that proceedings and recommendations of these committees be made public.
- That licence reviews, setting of water objectives, setting of environmental flows, creation of area based regulation, and water efficiency standards include public consultation.
- That applications for new licences be made public and that members of the public are allowed to object to water licences or appeal licences to the Environmental Appeal Board (with leave).
PUBLIC TRUST DOCTRINE
Water is British Columbia’s most important natural resource. Given the pressures of a growing population, a changing climate, and expanding development, steps must be taken to ensure that BC’s supply of fresh, clean water is sustainable—not just to meet our needs today, but for generations to come. Under the current Water Act, ownership of water is vested in the Crown, but there are scant provisions to protect public interest. A new WSA must ensure that private rights to use water do not impact public resources. This could be accomplished by amending section 2 of the Water Act to state that:
The property in and the right to the use and flow of all the water at any time in a stream in British Columbia are for all purposes vested in the government, and any private rights established under licences issued or approvals given under this or a former Act are subject to be managed in the interest of present and future generations.
“Beneficial use” as it has been interpreted by courts is not narrowly defined and focused on private use, but instead describes the public’s interest in the proper management of water resources. Private use under a water licence, under the current Act, is subject to this public use, as defined by the government of the day.
The Water Sustainability Act must, at a minimum, define environmental flows and essential household needs as being a pre-requisite to beneficial use. This clarifies the obligations of licensees in respect of these basic public values. In addition, these values must then be applied in allocation decisions, licence reviews and other key government decisions.
Water is currently undervalued and underpriced. We are calling on government to establish proper pricing on the industrial use and extraction of water consistent with the value that British Columbians place on this resource.
Moreover, proper pricing should reflect recent science on measurable ecological, health and well-being benefits of intact ecosystem services.
 Environmental Flows for British Columbia’s Proposed Water Sustainability Act Workshop Report. 2011. World Wildlife Fund.
 Framework for Assessing the Ecological Flow Requirements to Support Fisheries in Canada. 2013. Canadian Science Advisory Secretariat Science Advisory report 2013/017.
 Environmental flows describe the quantity, timing, and quality of water flows required to sustain our flowing water ecosystem and the human livelihoods and well-being that depend on these ecosystems. Characteristics of a flow regime needed to secure integrity of aquatic ecosystems include magnitude, timing, frequency, duration, variability and rate of change.
 Natural Capital in BC’s Lower Mainland: Valuing the Benefits from Nature. 2010. David Suzuki Foundation.
 Nature Therapy and Preventive Medicine. 2012. J. Lee et al. www.intechopen.com
 Sustaining livelihoods and human well-being during social-ecological change. 2009. G.P. Kofinas and F.S. Chapin. Chapter 3 in Principles of Ecosystem Stewardship. Springer Science.