Most of the British Columbia’s new Water Sustainability Act (the “Act”) came into force on February 29, 2016, accompanied by the following regulations: the Water Sustainability Regulation, the Groundwater Protection Regulation, the Dam Safety Regulation, the Water Sustainability Fees, Rentals and Charges Tariff Regulation and the Water Districts Regulation. Section 18 of the Act – quick licensing procedure – is not yet in force.
The Act replaces the old Water Act and governs the use of surface water and groundwater in British Columbia. Below are the highlights of the transition to the new regime.
Applying for a groundwater license
Under the Act, persons using groundwater will require a license. This was not a requirement under the former Water Act. Accordingly, a transition process was set in place to enable persons who are already using groundwater to obtain a license.
Pursuant to the Water Sustainability Regulation (“WSR”), persons using groundwater have until March 1, 2019 to apply for a license. If the application is submitted by March 1, 2017, the application fee will be waived. Application fees are set out in Schedule 1 to the Water Sustainability Fees, Rentals and Charges Tariff Regulation.
Establishing precedence for a groundwater license
Under the Act, every license must specify the date of precedence of the subject rights. For persons already using groundwater, the date of precedence means their “date of first use”.
The term “date of first use” refers to the date from which the use of groundwater for a specified water use purpose commenced. To establish the date of first use, applicants must provide to the decision maker the following information:
- name (or location) of the aquifer;
- the location of each well from which the person diverts groundwater;
- the water use purposes for which the person diverts groundwater;
- the land, mine or undertaking to which the water use is appurtenant; and
- history of the groundwater use (including the date from which the use started, the quantity of water used and the like).
Applicants must submit evidence supporting the above information and a signed declaration as to the origins and accuracy of the submitted information. For a full list of requirements, please refer to section 15 of the WSR.
The Groundwater Protection Regulation (the “GPR”) contains detailed provisions about the construction, operation and maintenance of groundwater wells.
The GPR does not require any immediate transition actions. However, it clarifies the relationship between some of the old and new terminology. For example, the term “well construction report” under the GPR includes a well construction report completed before the GPR came into force. The term “well decommission report” includes a well closure report under the former regulation.
The Dam Safety Regulation contains a number of transition provisions, some of which are set for 2016. Transition periods apply to previously unregulated dams (such as groundwater dams), classification and re-classification of dams, operation and maintenance manuals, identifying emergency contacts, signage requirements, monitoring and review of dam safety and general offences.
Owners and operators of dams would be prudent to carefully review their records and the Dam Safety Regulation to determine what, if any, actions need to be taken.
Power purpose licenses
Section 138 of the Act enables persons who hold a license for power purposes to apply for an extension of the license term for up to 10 years on account of any design, engineering and construction of the project. This application must be submitted within one year of the Act coming into force – which means by March 1, 2017.
Water Protection Act
The Act triggers a number of consequential amendments, including amendments to the Water Protection Act (the “WPA”) which restricts the removal of water from British Columbia. Under the previous regime, persons using groundwater were registered as “unlicensed” in the register under the WPA.
With the adoption of the Act (and licensing of groundwater use), “unlicensed” registrants have 180 days from February 29, 2016 to apply for a license under the WPA – which means by August 28, 2016.
Fees and charges
Fees and charges prescribed under the Water Sustainability Fees, Rentals and Charges Tariff Regulation apply as of February 29, 2016. Irrespective of the transition period to obtain a license, persons using groundwater are liable for the rentals and charges for such water effective immediately.
The Regulations and the Province’s overview of the new regime may be found here.
Authored by Olga Rivkin