New Groundwater Legislation Ensures BC’s Water Remains Healthy and Secure

In 2009, the Government of British Columbia embarked upon a process to modernize its water legislation. After more than four years of public engagement and policy development, Bill 18, the WaterSustainabilityAct(WSA), received Royal Assent on May 29, 2014.

The WSA replaces the 106-year-old WaterAct. However, the existing WaterActremains in effect until the regulations supporting the new legislation are complete and brought into force, which is expected to occur in 2016.

The new legislation introduces significant changes to how BC’s water is managed. In particular, the new Act recognizes that groundwater and surface water are interconnected and that both of these sources must be managed under the same regulatory regime. Under the WSA, groundwater use will be integrated into the water-licensing system, similarly to how surface water is managed now.

Regulating groundwater use will increase the certainty of the groundwater supply for existing users and the environment, especially in areas of intensive water use. It will also provide clarity around legal access to groundwater for the people and businesses that rely on it.

The regulations under the new Act will also address other aspects of water management such as environmental flow needs (EFN), water fees and rentals, and dam safety. These topics, however, fall outside the scope of this article.

Groundwater Licensing

For the first time in BC’s history, all non-domestic groundwater users will require water licences and will obtain water rights. Non-domestic groundwater users, including those that use groundwater for commercial, industrial and irrigation purposes as well as municipal water works, will be included in the licensing system.

A three-year transition period is being proposed, to allow existing groundwater users to secure priority dates based on their historic dates of first use. After the transition period, all applicants will be treated as new users and will receive a new priority date, usually based on their date of application.

To encourage users to apply early, the BC government proposes to waive application fees during the first year of the transition period. However, all transitioning non- domestic groundwater users will remain subject to annual water rentals that are calculated from the date the WSA is brought into force.

Under the WSA, each new groundwater user will have to demonstrate that sufficient water is available before being granted a licence. Generally, the statutory decision maker can require an applicant for a new groundwater licence—especially for larger proposed withdrawals; for example, greater than 10 m3/day—to submit a technical assessment report signed off by a registered professional (P.Eng.; P.Geo.) or limited licensee with competency in the field of hydrogeology to support their application.

For an application to be successful, the technical assess- ment would need to demonstrate that sufficient water is available to meet the needs of the intended use, and that the requested water withdrawal will not cause undue harm to other water users or the environmental flow needs of hydraulically connected streams.

First-in-Time, First-in-Right

The WSA will maintain a central principle of the existing WaterAct. The first-in-time; first-in-right (FITFIR) system dictates that water rights be administered according to the date of precedence of the licence. Under FITFIR, senior licensees—those with the earliest priority dates—enjoy precedence over junior licensees, regardless of the purpose for which the water is used. During times of water scarcity, senior licensees are entitled to use their full allocation of water, even if this means junior licensees cannot use any of their licensed allocation.

However, the WaterSustainability Act recognizes three modifications to FITFIR:

1. During times of water scarcity, those who use stream water and groundwater for domestic purposes are allowed to divert water for “essential household uses”—established as 250 litres per day for each private dwelling.
2. If one or more streams in an area have fallen—or are at risk of falling—below their critical environmental flow thresholds, the BC Minister of Environment may make a temporary order declaring a significant water shortage.
3. The critical environmental flow threshold required to prevent significant or irreversible harm to the aquatic ecosystem takes precedence over licensed water uses of the stream and any hydraulically connected aquifer. Water in excess of this minimum flow can be used by licensed water users according to their precedence in the FITFIR system.
4. Under a Fish Population Protection Order, the BC Minister of Environment may order any licensee, regardless of priority date, to temporarily reduce or stop water use in order to protect a population of fish.

During the transitioning of existing groundwater users under the new legislation, applicants must provide evidence to establish their date of first use. This is particularly important in areas where an aquifer is known to be stressed and in instances where groundwater withdrawals are considered hydraulically connected to surface water sources that have existing water licences.

Hydraulic Connectivity

The WSA recognizes the hydraulic connection between groundwater and surface water, particularly in shallow sand and gravel aquifers where groundwater withdrawals directly affect availability of stream water for other users and for aquatic ecosystems.

The WSA requires that statutory decision makers consider the environmental flow needs of a stream when reviewing an application for the use of water from an aquifer that is considered likely to be hydraulically connected to the stream. It also stipulates that decision makers establish precedence of water use between all hydraulically connected surface water and groundwater users.

In contrast, under the existing Water Act, licensees holding a water right to a particular surface water source might face restrictions during times of water shortage according to their date of precedence, while more junior, unregulated users of hydraulically connected groundwater currently remain able to continue pumping without consequence, regardless of when they first installed their wells. In addition, in the past, when surface water licences have been denied to protect a stream considered to be fully allocated, instances have occurred where wells have then been installed adjacent to the stream as an alternate water source.

The WSA establishes equity between hydraulically connected stream water and groundwater users and both types of water users will be subject to restrictions in times of scarcity.

Changes to the Ground Water Protection Regulation (GWPR)

The GroundWaterProtectionRegulation, which sets out standards to safeguard groundwater and ensures activities related to wells and groundwater are undertaken in an environmentally safe manner, is also being updated under the WSA. The revised regulation will incorporate most existing groundwater-protection policies, as well as introduce new policies. The new policies are designed:

• To improve well-construction and maintenance standards;
• To recognize the types of professionals certified to drill wells and install well pumps in BC;
• To bring flowing artesian wells under regulatory control, and;
• To require the submission of well records for some types of wells.

The updated legislation will also regulate recharge wells, which have become increasingly popular in many munici- palities as a means of dealing with urban run-off, but pose a risk of contaminating underlying aquifers.

Next Steps

Development of regulations and policy is underway to enable the WSA to be brought into force next year. However, additional regulation and policy development will be required to fully implement all provisions enabled under the new legislation. Future work includes regulations that address, for example, licensing domestic wells in specific geographic areas, and policies that enable overdrawn aquifers to be closed. Developing these policies will take time.

For now, however, transitioning the approximately 20,000 existing, non-domestic groundwater users into the licensing system remains the priority. The BC Ministry of Environment is currently hiring and training new staff to deal with the expected workload. The existing e-licensing system is undergoing enhancements to incorporate groundwater licensing. In addition, the provincial water well data base (WELLS) and the provincial aquifer spatial layers are being enhanced to make them more relevant for water management decision making.

The government also recognizes that better understanding of the province’s aquifers is required to manage available water resources effectively and sustainably. It has initiated investigations to map and study aquifers across the province, particularly in areas of heavy water use and known water shortages. The investigations currently underway include estimating aquifer water budgets, and determining groundwater–surface water interactions, hydraulic connectivity, and the effects of groundwater withdrawals on environmental flow needs.

Conclusion

Water is our most precious resource. The WSA will strengthen provincial water management in the face of growing demands for water in a changing climate. The new legislation will help to ensure sustainable management of fresh, clean surface and groundwater in BC—to meet our needs today and through generations to come.

More information on the Water Sustainability Act and its implementation is available at: engage.gov.bc.ca/ watersustainabilityact/.

The BCGWA would like to acknowledge and thank the Association of Professional Engineers and Geoscientists of BC for granting permission for us to reprint this article in our newsletter.