With drought levels on Vancouver Island already hovering at Level 3 in May this year and the provincial government restricting any future water use on some 5,000 water sources, water is fast becoming an important issue in BC. Conflicts between water users and environmental flow needs (the volume and timing of water flow required for the proper functioning of an aquatic ecosystem), as well as access to water, are becoming prevalent legal issues that lawyers are called upon to address. As is well-established in the western US, we will see the emergence of a water law Bar in BC in the next decade.
In response to water use conflicts and the need for water for the environment, the BC government brought the new Water Sustainability Act, SBC 2014 c 15 into force on February 29, 2016 with a leap into groundwater regulation. With the dubious honour of being among the last, if not the last, jurisdiction in North America to regulate the entire hydrological cycle of connected surface and groundwater, the Water Sustainability Regulation, BC Reg 36/2016 requires the existing 20,000 non-domestic groundwater users to apply for an authorization to divert and use groundwater from an aquifer by March 1, 2019 (with those applying before March 1, 2017 exempted from paying the application fee).
Applicants are required to provide evidence of date of first use of groundwater. Licences will impose the priority of the licence based on that date, as well as other conditions of use such as maximum diversion volume per year and seasonal restrictions. This means that groundwater licences will be backdated and fit into the existing first-in-time, first-in-right surface water licence priority system where older licences take precedence over newer licences when water is scarce. Existing groundwater users who apply after March 1, 2019 will lose their seniority and be treated as an applicant applying for a new use of water.
Most groundwater licences are subject to the same fees and rentals as surface water licences, and accrue for existing groundwater users from March 1, 2016. Domestic groundwater users can register their wells to create a record of water use in anticipation of requirements to obtain a licence in the future.
Undoubtedly, implementing groundwater regulation is a mammoth task and well overdue in BC. Many legal questions remain about assigning priority for groundwater licences over a three- year period in light of unknown total aquifer capacity for water extractions when all diversions will not be known until February 28, 2019. This approach also makes it challenging for First Nations to assess impacts on their aboriginal rights.
Most startling is the late 2015 Environmental Appeal Board decision of Chief Sharleen Gale and Fort Nelson First Nation v Assistant Regional Water Manager 2012-WAT-013(c) that criticized the methodology and information used by provincial staff in issuing a water licence on a shallow lake system. The panel members concluded that the licence permitted water diversion that was not “… supported in scientific precedent, appropriate modeling or adequate field data” (at para 337). Although judging a surface water licence, there is similar lack of data for many aquifers in BC, which creates additional uncertainty in the groundwater licencing process.
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For lawyers advising clients about water issues, other regulations in force under the WSA are the Water Sustainability Fees, Rentals and Charges Tariffs Regulation (doubling most annual water rents), the Groundwater Protection Regulation (regulating the drilling, operating and decommissioning of wells), and the Dam Safety Regulation (mandating the classification and monitoring of dams based on the severity of consequence of dam failure).