'Bizarre' clause in new B.C. water legislation raises concerns
Published on: April 5, 2016 Last Updated: April 5, 2016 7:04 PM PDT
As Ian Stephen waded through hundreds of pages of regulations and legislation attached to B.C.’s updated Water Sustainability Act, a single line struck him.
Stephen and other critics say the new regulations include a “bizarre” grandfather exemption to thousands of existing industrial and commercial operators, locking in their licences to draw groundwater without consideration for impacts on connected rivers and lakes.
Stephen said it looked to him like a critical weakness in the Water Sustainability Act (WSA), which came into effect five weeks ago, updating B.C.’s century-old water legislation and, for the first time regulating groundwater and bringing 20,000 groundwater users into a licensing system.
“It was shocking to me to see that,” said Stephen, a former electrician who now serves as campaign director of the WaterWealth Project. “It just seems so incredible they’d do that, but I doubted my interpretation of it, not being a lawyer.”
He soon learned he wasn’t alone in his shock. In recent weeks, a groundswell of concern has grown among legal experts and First Nations leaders, with one lawyer calling the exemptions a “recipe for disaster.”
Now the provincial government has denied this was its intent, acknowledged a “lack of clarity” in the regulations, and promised to “act quickly to make any necessary improvements.”
Section 55 of the Water Sustainability Regulation, Stephen said, appears to exempt 20,000 existing non-domestic groundwater users from environmental flow considerations of the new law. Environmental flow considerations, touted as a major feature of the new WSA, are meant to ensure healthy water levels in rivers and streams.
As the section stands, experts say, those “grandfathered” licensees could lock in unsustainable over-use of water of in the future, which could seriously impact river health, fish populations, and any British Columbians who rely on surface water.
The WSA was introduced in 2014 to great fanfare. The regulations, which came into force on Feb. 29 of this year, received little attention.
But in the weeks since the regulations arrived, questions about the Section 55 exemptions have circulated within B.C.’s water law community, said Andrew Gage, a staff lawyer for West Coast Environmental Law.
“Even before the regulations were unveiled, certainly, one of the major areas of concern that was discussed was how are they going to manage transitioning all of these groundwater users to water licences? And are they going to consider environmental flows when they do that?” said Gage.
But Section 55’s current wording, Gage said, could be “a recipe for disaster.”
“I don’t know if that was intentional or a drafting error or what,” he said. “In areas where we know there’s chronic environmental flow problems and over-use of water, that you would say we’re not even going to be able to consider that? It’s just quite bizarre and really disturbing.”
B.C. First Nations groups also flagged Section 55 as “an immediate concern,” and began considering legal action, said Howie Wright, fisheries manager for the Okanagan Nation Alliance.
On Monday, The Province sent the Ministry of Environment a list of questions about the regulation and the Section 55 exemption. A ministry spokesman replied Tuesday by email, denying the regulations create a risk of locking in unsustainable over-use of water.
But, the spokesman said, the government “acknowledges that there is currently a lack of clarity and staff are reviewing the Act and regulations to ensure that decision makers have the discretion to consider environmental flow needs when making water authorization decisions. This may include amending the Water Sustainability Regulation that was released on February 29, 2015.”