With just over two weeks left, don’t miss out on having your say on the proposed Water Sustainability Act!
Over the past week, we’ve put up 3 new videos on Stream Health, Land and Water Connection, and Groundwater Protection. The videos touch on the drivers behind the proposed changes to how water is currently managed, themes we’ve heard during previous engagement, and the proposed changes for each policy direction. If you have any questions after seeing the videos, check out the Overview document, detailed Legislative Proposal, or post a question on the blog.
You can also send us your feedback and questions by email, fax or post.
Comments received by November 15, 2013 will be reviewed and considered as government prepares a final version of the new legislation, which will then be formally introduced in the Legislature in Spring 2014.
Thanks for taking the time to contribute!
Water Sustainability Act 2013 (please add glossary for terms such as Sustainability)
Principles
Water is Life
Water has no owners, just those who we trust to be great stewards of this public resource
The oversight for the protection of our waters for generations to come through effective planning, monitoring, enforcement and decision making, is a joint Federal and Provincial responsibility on behalf of the peoples of Canada. Work together with the appropriate level of inclusion, knowledgeable staff with budgets to effectively do their jobs well.
Environment needs to be taken to their fullest. High waters / low waters. Needs by the second not by the day or season.
If stream and or ground water aquifers are not recharging at the rate of extraction their needs to be an immediate reduction in water use and review / water sustainability plan put in place and implemented.
Oversight of water needs to be done at a big picture level, communities where the water is passing through need to be a part of the planning process but the greater good of all to be included.
Water sustainability to govern all lands. No exceptions to be written into the Act. Covers all lands, Crown, forest, 1st nations, private, public…….. water just passes through these alternate land uses so needs to go into the lands and leave the lands with full protection all along the way.
Water quality / quantity Data collection during development processes is not enough. We need to ensure that the data is being reviewed for quality, accuracy and used in the decision making processes.
Ground water Need to know where it flows and at what rate? Ground water is typically cool waters that are needed for resting spots for our returning salmon as they swim up through our ever warming water.
First in Time, First in Right Process in place makes sense, but doesn’t mean that we should just leave it without review. Check to see that existing water licences are still in line with needs. Not having people use the water just to keep the licence and being very careful not to have a water licence take on monetary value. Can still have priorities when water shortage comes into play, ensuring life comes before $ in reviewing needs assessments.
Do you have an example of a community where a water sustainability plan is on place, how it came to be and how it is working? Authority?
Water Sustainability Plans would help communities and regions plan for
their watersheds and plan for water use around community and regional
needs and priorities, including food security
Near the back (page 100) is important part to ensure can happen not hope for
Additionally, respondents identified the importance of being proactive in preventing harm or damage to watersheds.
Foundation for BC Water act should be able to protect what is important to the people of British Columbia without the opportunity of Federal or other governments changing their policies to be less protective then “we” had intended when the Water Sustainability Act is put in place. If we clearly articulate the desired outcome from the water sustainability act we could review all the associated acts as they are rewritten to ensure they still meet the objectives. If they supporting acts do not continue to support our Provincial Act, we must be ready to step in to ensure the objectives of the Act do not get lost over time.
Example;
Fisheries Act
The federal government has ultimate authority over fish and fish habitat through the
Fisheries Act.
Water quality is protected through provisions providing for the prevention
of the pollution of waters inhabited by fish. (as this changes so does the intent of the BC Act)
Non First Nations in B.C. also have strong cultural, ecological and economic interests in water resources. The growing number of environmental groups focussed on water issues across BC show the commitment and concern of the broad public body.
There is agreement to establish Environmental Flow Needs for use in decision-making to protect fish and habitat and maintain stream functions and other ecosystem services. This will take mapping and monitoring to be done very, very soon.
Sent on behalf of the Pacific Streamkeepers Federation
ZoAnn Morten
http://www.pskf.ca
If this is a Water Sustainability Act then sustainable it should be and allowing these current FITFIR allocations to stand without review is short sighted. All allocations should be reviewed and if necessary, reduced to allow for healthy environmental flows and sustainable groundwater levels.
Licenses should be renewable every 5 years or so to adjust for climate, environmental or other changes that may affect water levels.
Part of the sustainability should be financial with private users of water paying the main portion of fees to support resources for education, mapping of water supplies, measuring and reporting of water usage and the like.
Water decisions should not be from the top down but from the bottom up with the resources provided so that the communities who use the water are able to have the knowledge and power to keep their water clean and safe now and for future generations.
Thanks for giving me this opportunity but I need more time to study your proposal and would like the comment period extended!
One of my main concerns with the WSA proposal concerns the implementation and regulation making processes.
The Proposal states unequivocally on page 68 that implementation and regulation drafting will be piecemeal as follows:
“It is proposed that the WSA would provide for both general and specific regulation making powers. A number of regulations would need to be developed in order to fully implement the WSA. Some key regulations would be brought into force earlier than others. These could include regulations for managing and regulating groundwater use and requirements for measuring and reporting. Other regulations would be delayed in their development and implementation and brought into force at a later date. Overall, it is proposed that implementation of different provisions of the WSA would be phased in over time.”
So groundwater regulations and measuring and monitoring are the only part of the new WSA explicitly scheduled for immediate regulation writing and implementation. This would necessarily mean a review of license fees and rental charges when including groundwater in these schedules. Elsewhere in the Proposal we are assured that these fees will be increased. So the upshot of this is that government increases their coffers immediately.
Then all the really expensive and complicated new governance structures and protection planning processes and water objectives development, which are the only real chance of guaranteeing a higher level of protection for our water then we currently have, are put on the back burner.
This is unacceptable. The government needs to openly commit to providing the resources (money and staff) necessary to establish the new governance regimes and decision makers, the processes required for the Water Sustainability Plans, the monitoring and enforcement staff and the protective regulations as a whole body written into the legislation.
Without governance, water planning and mandatory protections in place, the collection of higher fees/rentals will be viewed as a cynical money grab and will not protect water supplies in any way. Rather it will simply assure access to those with deeper pockets.
It makes no sense to legislate water protection, which the government is then incapable or unwilling to implement. It would be better to just legislate new groundwater regulations under the current Water Act and then take the time necessary to better develop the WSA proposed legislation and regulations in a transparent public process over time.
Excerpted from wcel.org/resources/environmental-law-alert/water-fish-and-water-sustainability-act.
Environmental Flows
Under the current Water Act there is no legal requirement for government decision-makers to consider environmental flows in their decisions about water. That being said, today most decisions do consider environmental flows, as mandated by government policy.
In earlier consultations on environmental flows, the government was told loud and clear that British Columbians want “binding standards” to guarantee water for fish, wildlife and stream health, as opposed to “guidelines”, which were perceived as “too flexible or otherwise not enforceable.” However, the Legislative Proposal says that government decision-makers will be required to “consider” environmental flows. “Consider” is a weak and ambiguous legal test that implies guidelines, rather than binding standards.
Not only that, but the Proposal entrenches the controversial existing “First In Time, First In Right” (FITFIR) system of water licence rights that gives priority to older licences (and expands that rule to groundwater). What that 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.
The Proposal does provide for the possibility (but not requirement) of a review of licences, but not until 30 years after the Act comes into force (or 30 years after a new license is issued). It may be that conditions related to environmental flows will be considered through these reviews (although we are advised that reviews will not allow for water allocations to be taken back from current licensees to address environmental flow needs). So areas where current water use is already impacting the ecosystems have a problem – unless they get degraded enough, and there is political will, to use some of the more exceptional drought/scarcity powers discussed below.
So while the proposed Water Sustainability Act at least acknowledges the idea of environmental flows it’s pretty clear that it does not prioritize such flows in a way that will actually prevent streams from becoming degraded (particularly in areas that are already overcommitted – meaning that more water can be taken from a stream than is available, or sustainable). This is a major shortcoming, because, as set out in the provincial government’s own Living Water Smart policy, healthy watersheds and streams provide many benefits.
Water Objectives
A potentially positive aspect of the Proposal is the concept of “Water Objectives”, which could require a range of key government decision-makers to “consider” objectives related to water in their decision-making. Since a wide range of government decisions – from local government land use planning, to approval of logging plans, to the regulation of mines – can have huge impacts on water availability and integrity water objectives, if sufficiently strong, make sense.
Ideally any government decision that is likely to impact water should be bound by (and not just consider) these water objectives, but the Proposal doesn’t go so far. Instead the key question of which government agencies need to consider water objectives will be worked out later in future regulations. However, alarmingly, the Ministry of Environment reports that they have heard that: “Existing statutes such as the Forest and Range Practices Act and Oil and Gas Activities Act contain appropriate provisions to protect water. Additional action by natural resource tenure licensees should not be required in those cases.”
In our view the oil and gas and forestry industries as currently regulated pose threats to water, and we do not agree that the existing legislation “appropriately” protects water. Excluding these industries from the water objectives would substantially undermine the credibility of the Water Sustainability Act.
Meanwhile, the proposed water objectives remain pretty vague. Lawson Lundell’s Project Law Blog (which advises industry on developments in environmental law) explains it well: “Examples of “water objectives” are provided, but not proposed; are qualitative; and on their face do not provide a means to resolve conflicts between competing objectives. This element of the proposal, while having potentially far-reaching effects, is still rather embryonic.”
Times of scarcity
In problem areas or in times of drought, there will be new or expanded powers to:
* Develop plans to address water allocation, including water for environmental flows;
* Create “area-based” rules that could address (among other things) stream health;
* Change the rules around water allocation, including temporary orders to protect “critical environmental flows”.
Planning and area-based regulations
There are already existing powers for the government to prepare Water Management Plans, but the Proposal would give greater flexibility in this planning through “Water Sustainability Plans”. These plans could allow stakeholders (such as water users, local governments, industry, environmental groups, etc.) to develop locally appropriate ways of addressing water scarcity, environmental flows, free up water for new users, or otherwise address joint concerns of multiple stakeholders.
In addition, the government will have powers to develop area-based regulations, either to implement these plans or to address other needs of a particular watershed or region.
As proposed, area-based regulations can be used to carry out some fairly major re-writes to the rules around who has to get water licenses, who has to monitor water use, etc. These powers could potentially be used to help ensure environmental flows, etc.
We are told that the government will not use area-based plans to alter the FITFIR rules (for example, giving environmental flows or domestic users priority over long-standing licences, etc.), unless stakeholders have agreed to such a change through a Water Sustainability Plan.
But the government seems to contemplate using these water sustainability plans and area-based regulations in problem areas – and they represent the primary tool in the new WSA for protecting environmental flows (and other interests) in areas with chronic drought or water shortages.
Area-based regulations, in particular, could also be used in areas that face potential problems before those problems become serious.
Rules around water allocation
The Legislative Proposal would give Ministry of Environment staff a general power to regulate water use to protect “Critical Environmental Flows” (CEFs). These are not the general environmental flows that government will consider in making new granting decisions, but represent a:
… short-term flow threshold, below which significant or irreversible harm to aquatic ecosystems may occur. This threshold would be used as a short-term regulation threshold during times of scarcity or drought to regulate (i.e. require users to curtail their water use) both surface water and groundwater users.
Apparently orders under these powers will be based on FITFIR – with more recent licensees required to scale back first – except for “essential household needs”, which will be allowed to continue.
In addition to the short-term authority over CEFs, the Minister will have powers (similar to existing powers under s. 9 of the Fish Protection Act) to order the temporary reduction of water use where water levels are so low as to threaten the survival of a population of fish, “regardless of license priority date and after due consideration for the needs of agricultural users…”
Conclusion and recommendations
There are some improvements in the new Proposal over the current Water Act, but environmental flows still have a low priority – at least in relation to existing water users. Here’s what we recommend to improve the proposed new Water Sustainability Act, as it related to environmental flows:
* Mandatory and strong environmental flows requirements and water objectives. “Consider” is not enough, and both flows and objectives must be strong enough to meaningfully protect our streams and lakes;
* License reviews can’t wait until 30 years after the WSA comes into force, they should happen within 10 years, particularly given what we already know about the impact of climate change on hydrologic regimes and water resources in the province, and it should be clear that such reviews will address environmental flows;
* The First In Time, First in Right rule, if it is to be retained, must come after environmental flows, First Nations water uses and drinking water needs. Those flows and uses should not be trumped by earlier licences – no matter how old.
* Water resources need to be managed for the benefit of the public.
By Andrew Gage, Staff Lawyer
Not only have they heard from the public that environmental flow standards were the way to go DFO has been provided science advice that “The probability of degradation to ecosystems sustaining fisheries increases with increasing alteration to the natural flow conditions. Thus, the assessment of alterations to the flow regime should be considered in a cumulative sense, and not only on a project-by-project basis.” and that “A floor value or „cut-off limit. should be part of the overall prescription to conserve and protect fisheries, and should not simply be considered during low flow events.” http://www.dfo-mpo.gc.ca/csas-sccs/Publications/SAR-AS/2013/2013_017-eng.pdf
How can you talk about protecting ‘stream health and aquatic environments’ without any specific mention of resource extraction, in particular LNG fracking, which together pose the single greatest threat to those same streams and aquatic environments? What the people of British Columbia need to know is: Is this just an empty piece of legislated good-intentions, or does this Act intend to meet the real challenge of preserving the health of our fresh waters in the face of expansion in the resources sector? How does this Act confront the possibility of ground water contamination brought on the uninhibited fracturing of underground shale formations? Who will bear the burden of proof when drinking waters are found to be contaminated? Will the government hold corporations accountable for their actions? Will they have the real capacity to enforce the intentions stated within the Act?