9.4 Water Legislation in BC

Content

• 9.4.1 Federal
• 9.4.2 Provincial

While the Ministry of Environment is the lead provincial agency for water management, there is no single agency that is responsible for all aspects of water in BC. The myriad of statutes and regulations that govern water resources (Figure 9) are jointly administered by various agencies and departments across federal, provincial, and local levels. The existing governance framework in BC has been described as “a true patchwork of authorities and responsibilities inherited from days when water was taken for granted, and other resources, such as timber, minerals, and fish, were the main concern”.² The division of powers across all levels of government has been cited as a source of uncertainty and jurisdictional problems in water management (e.g., water pollution). Collective concern over a fragmented governance model for water management in BC has been one of the key influencing factors in prompting a review and modernization of BC’s Water Act, which is currently underway.

9.4.1 Federal

Canada Water Act
The Act provides a framework for the cooperative management of water resources in Canada. It outlines the requirements for research, planning and implementation programs related to the conservation, development and use of water resources. Under the Act, the Minister of Environment may establish intergovernmental committees for consultation, advice and program facilitation. If an agreement on water conflict cannot be reached with the province, the Act provides for unilateral action by the federal government. The provisions for unilateral action are limited to federal waters and inter-jurisdictional waters of “significant national interest” or where water quality has become a matter of “urgent national concern”. ³

Fisheries Act
The Fisheries Act is Canada’s oldest, most powerful piece of legislation to enforce ecological standards related to watersheds and fish habitat. Through the Act, the federal government has ultimate authority over fish and fish habitat. Water quality is protected through provisions for the prevention of the pollution of waters inhabited by fish.³ Key provisions in the Act include section 35, which prohibits harmful alteration, disturbance or destruction of habitat (HADD), and section 36, which prohibits the deposition of deleterious substances into fish bearing waters.⁴ As federal legislation, the Fisheries Act supersedes provincial legislation when the two conflict.

Navigable Waters Protection Act
This Act protects the public right to marine navigation and protects the safety of mariners and the marine environment (includes freshwater). ³

Canadian Environmental Protection Act
The Canadian Environmental Protection Act, introduced in 1999, is aimed at protecting the environment and human health by managing toxic substances, marine pollution, disposal at sea and other sources of pollution. There are also provisions in the Act regarding international water pollution and the ability of the federal government to take action if the Province is not addressing the issue. In the case of environmental emergencies, the provisions in the Act govern if no other federal or provincial regulations exist. ³

Canadian Environmental Assessment Act
The purpose of the Canadian Environmental Assessment Act is to ensure that proposed projects on federal lands (e.g., Indian Reserves) are considered in a careful and precautionary manner before federal authorities take action in connection with them, in order to ensure that such projects do not cause significant environmental effects. Projects considered under the Act are screened for their impacts on source water. The Act encourages responsible authorities to take actions that promote sustainable development in an efficient manner, promote cooperative action between the federal and provincial government with respect to the environmental assessment processes for projects, and promote communications and cooperation between responsible authorities and Aboriginal peoples.

International Boundary Waters Treaty Act
The Act provides for the protection of international waterways by requiring a licence to obstruct or divert boundary waters. ³

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9.4.2 Provincial

Water Act
The Water Act, originally enacted in 1909, is the primary law for managing water resources. It regulates changes within or around streams and defines water rights. The Act confirms that all water in streams, lakes and other water bodies belongs to the Province of British Columbia. Under the Act, the government is charged with the responsibility of making decisions pertaining to water allocation, works in and around a stream, and any changes or transfer to water licences. The Act also addresses water management planning, water allocation planning and drought management.

The primary function of the Water Act is to allocate and regulate the diversion, storage and use of water. ⁴ The Act establishes “prior allocation” water licensing scheme based on “First-in Time, First-in-Right”. According to section 9, the second role of the Act is to regulate changes in and around a stream, for the protection of stream health. Although the Act has conventionally focused only on surface water resources, the Ground Water Protection Regulation (Part 5) has extended more protection to groundwater. In November 2004, water management plan provisions under Part 4 of the Water Act also came into effect. Approved Water Management Plans have broad powers to assist communities in resolving conflicts between users, risks to water quality and conflicts between water users and in-stream requirements. The plans are also legally enforceable.⁵ Further details on Water Management Plans are provided in Chapter 3 of this guide. Water allocation planning and drought management are also included in the Water Act.⁶

In November 2004, the Groundwater Protection Regulation came into force under the Water Act; it affects all private well owners in BC. The Regulation is intended to improve the safety and quality of provincial groundwater resources by establishing standards for the construction and maintenance of water wells, and their deactivation and closure.

The Regulation also requires certain types of work related to groundwater and wells to be performed by qualified driller and pump installers to protect water resources and prevent instances where groundwater may be adversely affected.⁵ In addition to adopting the Ground Water Protection Regulation, the Province has established a Groundwater Advisory Board; however, there is limited available information about the membership of the Board.⁷

Water Act Modernization (WAM) (see also section 4.1 of this guide)
As part of its commitment to Living Water Smart, and in response to new water management challenges, including population growth and climate change, the BC government is looking at ways to modernize the Water Act. This significant undertaking was initiated in December 2009 and will consider new arrangements to address water management challenges in BC, including governance and decision-making models, planning frameworks, water allocation systems, and regulations for groundwater extraction and use. The public engagement process has included the use of a moderated blog, a website, and regional workshops. The initiative has also included distribution of a Discussion Paper, Technical Paper, and a Report on Engagement. In December 2010, a Policy Proposal on BC’s New Water Sustainability Act was released. For more information, see Chapter 4 in this guide and http://livingwatersmart.ca/water-act/.⁶

Fish Protection Act
This Act was passed in 1997 to provide better protection for fish and fish habitat in freshwater systems in BC. Under the Sensitive Streams Regulation of the Act, 15 river systems have been designated as “protected” due to low flows for fish or degradation of habitat. This designation prohibits the construction of “bank to bank” dams on these systems, and requires water managers to ensure, prior to issuing a new water licence on a sensitive stream, that adverse impacts on flows for fish will be minimal. New licences on these streams can be refused if reasonable alternative sources of water exist. Under the Act, Recovery Plans to protect fish in sensitive streams may be required by the Minister of Environment.⁸ Not all provisions of the Act have been brought into force yet, including section 5, which would provide explicit authority for considering fish and fish habitat in water allocation decisions. These sorts of provisions are indicative of the changing value British Columbians are placing on fish and stream health.⁴

In 2001, the Riparian Areas Regulation was added to the Fish Protection Act. Local governments cannot approve development in riparian buffer zones unless a qualified environmental professional assesses the potential impacts to fish habitat as not being harmful, or they are approved by Fisheries and Oceans Canada or a regulation.

Other provisions for protecting instream flows under the Fish Protection Act have not yet been proclaimed. There is potential for further protection of habitat resources through several unproclaimed sections which would authorize:

• explicit consideration of instream flow in licensing decisions;
• conditions in licences to protect instream flow, including monitoring requirements;
• instream flow licences to community organizations;
• orders to reduce withdrawals under licences during drought; and
• consideration of instream flow in Water Management Plans.⁸

Drinking Water Protection Act
The Drinking Water Protection Act is the primary Act designed to protect BC’s drinking water. The objective of the Act is to protect provincial drinking water from “source-to-tap” through a comprehensive and coordinated framework. It was enacted in 2001, brought into force in 2003, and is administered by the Ministry of Healthy Living and Sport.

The five regional Health Authorities established under the Health Authorities Act are responsible for implementing most aspects of the Drinking Water Protection Act, including the employment of Drinking Water Officers who are responsible for most of the powers and functions under the Act. The Act requires that water supply systems must provide potable water and have construction and operating permits. It also establishes qualification standards for operators, requirements for emergency response, water monitoring, water source and system assessments, a process for preparing a drinking water protection plan, and other protective measures. 4 The Act regulates water supply systems, but it does not cover private wells servicing a single residence, nor does it provide strong measures for protecting groundwater supply.viii

The Act outlines the general requirements for:

• source and systems assessment;
• source protection and planning;
• water system operator certification;
• water monitoring requirements;
• drinking water standards;
• drinking water protection; and
• reporting and notification requirements.

 There are two main types of planning to protect drinking water: Drinking Water Protection Plans and Assessment Response Plans. These are discussed in further detail in Chapter 6.

Water Utility Act
The Act provides for regulating privately operated water systems that service five or more persons or a corporation. Operators are subject to the same duties, responsibilities and restraints that are imposed on a public utility under the Utilities Commission Act.

Public Health Act
The Act is designed to protect and enhance the health of British Columbia’s citizens. It regulates on-site sewage systems that can negatively affect stream health by introducing excessive nutrients.¹⁰ The Act requires that septic systems and other potential sources of contamination be located at least 30 metres away from a drinking water well or watercourse, and that landowners believed to have caused a health hazard cease activities that caused the hazard.⁹

The Act outlines the:

• roles and responsibilities of provincial and medical health officers related to source water protection;
• responsibility of the local health authority to identify drinking water source health hazards;
• power to expropriate land for health reasons, including threats to water supplies;
• inspection procedures for waterworks;
• documentation and reporting processes for health hazard spills; and
• power to make water regulations related to health.

Water Protection Act
This Act fosters the sustainable use of BC’s water supply through the control of water rights. It was enacted in 1994 in response to concerns over bulk water export from BC. Under the Act, the Crown is identified as the primary holder of property rights (unless private rights have been established under the Water Act). The Act prohibits the export of bulk water except in small bottles or containers from licenced operations, and prohibits the transfer or diversion of water between major provincial watersheds.⁸

Environmental Assessment Act
The Environmental Assessment Act establishes a process for assessing environmental, economic, social, heritage and health impacts of major projects in BC that exceed specified thresholds.⁸ An environmental assessment is required for the construction of a well or a well field that extracts 75L/second or more of groundwater. Project approvals have the potential to impact stream health.¹⁰

Environmental Management Act
The Environmental Management Act, which was brought into force in July 2004, establishes a framework for regulating industrial and municipal waste discharge, pollution and contaminated sites. Under the Act, the Ministry of Environment is responsible for the management, protection and enhancement of the environment, including water. The Act replaced the old Waste Management Act and the Environment Management Act and brings provisions from both of those acts into one statute. Under this statute, the Province can require environmental assessments of contaminated sites to be conducted.⁴ The Act protects stream health by regulating direct discharges to streams, and sets codes of practice that reduce impacts of various land uses; however, it does not deal explicitly with the quantity of instream flows.¹⁰ In addition to the requirements of the Local Government Act, local governments are given legal powers to do waste management planning under the Environmental Management Act. Waste management planning deals with local government responsibilities to ensure adequate treatment of waste.

Forest and Range Practices Act
The Act addresses forestry activities and stream health, including timber harvesting, road building, silviculture and range practices on Crown land.¹⁰ The Act authorizes regulations that set objectives for water protection and which must be adhered to by forest and range agreement holders. It also enables the designation and protection of Community Watersheds, which are watersheds that are sources of drinking water. Forest operators are required to meet drinking water quality objectives set by government for Community Watersheds.⁴ The Forest Planning and Practices Regulation outlines the relationship between water quality and timber values. The primary tool identified for implementing regulations on the landscape is the Forest Stewardship Plan, which requires water quality values be considered, along with other resource values, including cultural heritage, biodiversity, fish and wildlife, forage/plant communities, soils, timber, visual quality and recreation.

Local Government Act
The Act provides the legal framework for the establishment and continuation of local governments to represent the interests of communities and to respond to their needs. It provides local governments (municipalities, regional districts and improvement districts) with the powers, duties and functions to fulfill this purpose.

From the perspective of water management, the Act delegates authority and responsibility related to land use, growth, infrastructure (e.g., storm water management), works and similar matters. The Act assigns substantial powers to local governments to influence stream health through their role in land use planning, zoning, approval of developments and establishing bylaws.¹⁰ Moreover, their responsibilities for fire protection, water and sewers, waste disposal and recycling services, and constructing and maintaining sewers, storm drains and drainage have great influence over water quality on public and private lands.

Part 25 of the Act deals with Regional Growth Strategies, and states that such a strategy should work towards a number of objectives, including:

• protecting environmentally sensitive areas;
• reducing and preventing air, land and water pollution; and
• protecting the quality and quantity of groundwater and surface water.

Community Charter
The Charter provides a legal framework for municipality core authorities, such as taxation, corporate services, financial management, and regulatory and bylaw enforcement.⁴ Of particular significance to water management is the authority to establish bylaws in “spheres of concurrent authority”, such as the protection of the natural environment and protection of public health.

Dike Maintenance Act
The Act establishes the Inspector of Dikes as the authority to oversee all things “constructed, assembled, or installed to prevent flooding of land”. This includes everything from pumps and embankments to ditches and drains. Owners of dikes require the permission of the Dikes Inspector to raise or lower a dike, conduct any sort of construction on a dike, and alter the foreshore area adjacent to a dike.¹¹

Drainage, Ditch and Dikes Act
This Act establishes a comprehensive scheme for the regulation and authorization of ditches, watercourses, dikes and drainages throughout the province, but it is rarely used because the Ministry of Environment relies on its powers under the Dike Maintenance Act. The Drainage, Ditch and Dikes Act allows the provincial Cabinet to create Drainage, Diking, or Development Districts and appoint Commissioners to be responsible for those districts. The Commissioners are responsible for constructing and maintaining a system of dikes, drains, and dams that are necessary for the supply of water (and possibly electricity) and/or the prevention of flooding. There are only five drainage districts remaining in BC (Fortune Creek, Surrey, Colebrook, Barnston Island and Coquitlam), and there are no plans to create any more.¹¹

Park Act
This Act is the main piece of legislation governing protected areas in BC. It provides for the establishment, classification and management of provincial parks, recreation areas and nature conservancy areas. The Act is administered by the Ministry of Environment, and in some circumstances, can apply to other provincial land use designations, such as ecological reserves, greenbelt land and private land. The Act provides strong protection for natural resources by restricting the sale, leasing, or granting of land, and the removal of natural resources from the park land without a park use permit.¹¹

Oil and Gas Activities Act (OGAA)
This Act, which came into force in October, 2010, provides for the administration of oil and gas development in the province by the Oil and Gas Commission. Under the Water Act, the Commission has the authority to issue water approvals associated with oil and gas activity, including substantial amounts of water associated with hydro fracturing and shale gas development. 11 The OGAA represents a significant change to the legal regime for oil and gas activities in British Columbia, and will have immediate consequences for conventional oil and gas producers, shale gas producers, and other operators of oil and gas facilities in the province. The new legal regime consists of OGAA itself, and eleven new regulations passed to date under OGAA. The B.C. Oil and Gas Commission will have greatly expanded powers under OGAA, particularly with respect to compliance and enforcement and the setting of technical safety and operational standards for oil and gas activities. The Commission continues to have the power to grant approvals under designated provincial statutes, including the Environmental Management Act, the Forest Act, the Heritage Conservation Act, the Land Act and the Water Act, as well as imposing administrative penalties for specified violations under OGAA.¹²