Water Act Modernization
Considering the cultural value and ecological importance of water to British Columbia, the lack of comprehensive legislation to protect it is shocking. The current Water Act contains no protection for groundwater, continues to use the flawed “First in time, First in right” system for surface water licenses and contains no protection of instream flows for fish.
This is all about to change, with the highly anticipated, and much delayed “Water Act Modernization” (WAM) process. First announced in 2008 as an integral part of the BC governments “Living Water Smart” program it has gone through two phases of public consultation and various recommendations to produce a policy paper on the proposed “Water Sustainability Act”, and a target date for finalized legislation in late 2011.
This important piece of environmental legislation has a long and complicated history. First enacted in 1909 to deal with disputes between settlers over water allocations it consisted of a single set of water allocation rules and remained relatively unchanged until 1939 when the “First in time, First in right” allocation scheme was implemented and BC’s first Water Comptroller was appointed. These changes enabled the continued use of many licenses from the early 1900’s and entrenched the current priority system of surface water allocation.
Another major change to the Water Act was attempted in 1960: Legislation to apply to act to groundwater was developed, but unfortunately it has never been enacted. 1960 also saw the first mention of clauses for environmental protection. Changes to the Water Act since then focused on decentralization (the 1979 creation of Regional Water Managers), increasing environmental protection and sustainable use (Environmental Appeal Board, 1979, the Water Protection Act, 1995 and the Fish Protection Act 1997), though many significant changes like considering the habitat needs of fish during the evaluation of water licenses remained beyond the scope of the Act. Changes to protect drinking water were enacted in 2000 after the tragedy in Walkerton, Ontario where thousands became ill and several died due to contaminated well water.
To kick off the WAM process in the summer of 2009 the government finally brought “Section 9” of the Act into force (a relic of previous upgrades to the Act, but never enforced), which enabled the Minister of Environment to temporarily reduce water use during a drought.
The major work of WAM started with an initial research and scoping phase that lasted most of 2009. Watershed Watch anticipated the public consultation portion of this process with the release of the Statement of Expectations on the Reform of the BC Water Act in December 2009. The statement contains 4 main conditions vital to a modern Water Act for BC:
- Protect stream health and aquatic environments.
- Improve water governance arrangements
- Improve the water allocation system
- Regulate groundwater use
The Statement was endorsed by 29 environmental non-governmental organizations (ENGOs) and formed the basis of our first submission (the Brief on BC Water Act Reform) to the Living Water Smart Blog (LWS Blog), which launched in 2009 and is the main way organizations and the public can participate in the WAM process. These conditions have also been referenced in Ministry of Environment communications around WAM.
After the first public consultation phase the Ministry of Environment released the “WAM Report on Engagement” in September 2010 that sets out eight main principles that will underpin the new Water Act:
- BC’s water resources are used within sustainable limits.
- First Nations social and cultural practices associated with water are respected and accommodated.
- Science informs water resource management and decision-making.
- Water resource legislation, policy and decision-making processes as well as management tools are integrated across all levels of government.
- Rules and standards for water management are clearly defined, providing a predictable investment climate across the province.
- Flexibility is provided to adapt to extreme conditions or unexpected events on a provincial, regional or issue-specific level.
- Incentives are created for water conservation that consider the needs of users and investors.
- Rights to use water come with responsibilities to be efficient and help protect stream health.
In theory these principles reflect the concerns of Watershed Watch and other ENGOs by referencing the importance of science in decision-making, the need to protect stream health and be adaptive to changing environmental conditions. These principles however still don’t provide any direct mention of groundwater or propose any concrete idea of what a new priority based allocation system could look like.
The Ministry of Environment completed additional background research and cost benefit analysis work before the release of the first policy proposal in December 2010. Entitled the Policy Proposal on British Columbia’s new Water Sustainability Act the policy directions have actually moved closer to the four main principles developed by Watershed Watch and have morphed into a list of seven clear policy directions:
- Protect stream health
- Consider water in land-use decisions
- Regulate ground-water use
- Regulate during scarcity
- Improve security, water use efficiency and conservation
- Measure and report
- Enable a range of governance approaches
Watershed Watch was hoping for clarity and a strong stance on our four main principles, however the language in the policy proposal remains vague.
The proposal advocates taking an area based approach with three levels of action for water management: Province wide, known problem areas and chronic problem areas with various systems of proactive management, collaboration, resource assessments, strategic water allocations plans and increased monitoring systems developed for each one to address the seven directions listed above.
An issue throughout the entire policy proposal is a lack of concrete language and measures for each of the policy directions. The proposal mentions that instream flow guidelines will be used as part of direction one, but makes no reference to how these guidelines will be created, how they will be monitored or any time-line for their creation. The language used around regulatory action to protect instream flows is also vague. Similarly the policy proposal recommends creating Provincial Water Objectives (PWOs) to guide decision makers on land use issues, that again lacks sufficient details around creation and implementation to enable us to accurately determine whether they will provide the kind of regulatory oversight we believe is necessary in the new Sustainability Act.
Another area of concern is related to the kind of groundwater regulation that is proposed, which is only prepared to consider regulating groundwater withdrawals in problem areas and for larger extraction licenses. Watershed Watch firmly believes that all groundwater extraction in BC needs to be regulated, and monitored especially considering the vital role it plays in regulating stream temperatures, something that will become increasingly important as climate change impacts increase.
The new Water Act, represents an incredibly important opportunity to protect BC’s water resources and begin the move towards sustainable use practices. The continued acknowledgment of the importance of protecting fish and aquatic ecosystems during this process has been encouraging, but Watershed Watch will continue to push the provincial government to ensure these are enshrined in a strong, modern Water Act.
You can learn more about salmon and water issues using Watershed Watch’s Fraser Basin LiveMap: An Interactive Salmon and Water Atlas. This web-based tool allows users to explore Fraser waterways and salmon populations, the threats they face, and their current status and future prospects. The LiveMap includes official government data sets on historic water flows, salmon returns, water temperature, and other important factors that affect the aquatic ecosystems that make up the Fraser River watershed.