Update: An amendment of the environmental flows exemption. Jump straight to the update, or read the original post from here.
Almost a month ago we posted the blog "Sustaining the Goal of Water Sustainability" which laid out a number of shortcomings in the process of developing the Water Sustainability Act to date. What prompted that post was this piece:
What they said on Environmental Flow Needs (EFNs): “It is proposed that under the WSA, decision-makers … would be required to consider EFNs when adjudicating most new water licence or short-term use approval applications for both ground and surface water…”
-- A Water Sustainability Act for B.C. Legislative Proposal, page 19
What they did: In regulations released February 29, 2016, exempted the approximately 20,000 existing non-domestic groundwater users from environmental flow considerations on water licences that won’t come up for discretionary review before the year 2046. This effectively locks in avoidable and costly future community and neighbour-to-neighbour water conflicts.
-- Water Sustainability Regulation Section 55 (4)
We were surprised when after all of the years of work and all of the public interest, such as the over-225,000 signature petition last year, the government did not issue a press release when the Water Sustainability Act was finally put into effect February 29. Incredibly the ministry responsible for putting the WSA into effect, Forests, Lands, and Natural Resource Operations, did issue a press release that day for a new snowmobile bridge on a trail in the Cariboo. Perhaps bridges are a greater priority for the BC government than the water that flows under them. In any case, the lack of press release got us started looking for why. Why after everything did they want the WSA to slip in unnoticed? And we thought we may have found why with that environmental flows exemption.
Some good news on that particular concern today, however, as Dan Fumano at the Province newspaper reports that the provincial government "acknowledges that there is currently a lack of clarity" and "are reviewing the Act and regulations to ensure that decision makers have the discretion to consider environmental flow needs when making water authorization decisions."
We can only surmise that the lack of clarity is within the Ministry of Environment itself, as the words of the exemption - "Applications under subsection (1) are exempt from section 15 [environmental flow needs] of the Act." - seem as clear as they could be. So whether the lack of clarity represents a difference of views from the staff level to the political level, or infighting between factions within the ruling party, or something else, who knows.
What we do know is that they appear to be fixing it.
We thank our supporters who took note of this issue when we started raising the alarm March 3 in our social media posts, our blog, and emails to supporters, and who directed calls, letters, and emails to government on the issue, as well as allies who did the same.
To what extent government fix the exemption remains to be seen. Likely we'll see the exemption still apply to WSA section 15(1) but not section 15(4), so decision makers still wouldn't be required to consider environmental flows in the estimated 20,000 existing non-domestic groundwater users' licence applications but will have the discretion to. If that is where it lands, we would argue that it is still too weak. There are too many aquifers where we just don't know enough about refresh rates, interconnections with surface waters, and what to expect from climate change, to be handing out 30-year water licences. Consider the mountain pine beetle outbreaks BC has experienced, or...well, really not "or" but "and" the increasing forest fires, since pine beetle damage can compound forest fire risk and severity. Changes in forest cover on those scales affect the water cycle. Precipitation tends to run off more quickly, so even with the same precipitation overall you can have greater flood risk when it's wet and greater likelihood of dry river beds when it's dry. Increased erosion decreases water quality, for drinking and for aquatic life. Have we factored those sort of things, projected at least the 30 year licence term, into water allocation decisions?
Government should not be only considering environmental flows where they know problems are happening, or are likely to happen. Given the uncertainties, they need to look at environmental flows and what conditions will be like for the full 30-year term of these licences in any case where they cannot say that they know that problems won't occur. To do otherwise just sets the stage for crises later on, and any crisis is far better avoided than reacted to.
So, as you can imagine, we'll be waiting with great interest to see what changes the government make in response to the concerns raised over the past month or so. When we received news that they may be addressing the environmental flows exemption, we were in the beginning stages of looking into a legal challenge on the issue. We will continue that work, continue analysis of the Act and regulations, continue to confer with like-minded organizations and experts throughout the province, and continue to connect you to the process as more regulations are developed for the Water Sustainability Act.
A key improvement we will be pushing for is greater transparency and inclusiveness in the process, so the "lack of clarity" we've seen with this environmental flows exemption can be avoided in future. Thank you for being along with us and supporting these efforts, and a special thanks to those who donate. Grant-making foundations are cautious about anything that might look like lobbying, so it is difficult to obtain funding for work on particular legislation. Care to guess whether we've ever applied for, much less received, government funding? Ha. In fact we have never had specific funding for Water Sustainability Act work. We do this work despite that because it needs to be done. Individual donations are the only funding that can be readily applied to the costs associated, never mind the countless hours that go into it. So thanks to all of you, who write letters and emails, make phone calls, and give to help keep the work going. Together we will see a #strongWSA and strong protections for our shared home waters.
UPDATE: An Order in Council issued April 14 made several updates to the Water Sustainability Regulation. Regarding the environmental flows exemption it merely changed the exemption from the whole of WSA section 15, to just section 15 (1).
What does this mean in the real world? In a nutshell, it means reverting back to the old Water Act. With the updated exemption, provincial water licence decision makers have the discretion to consider environmental flows as they hand out the estimated 20,000 licences to existing large water users. But government policy already gave them that discretion under the old Water Act. If updating BC water law amounted to just bringing groundwater into the existing system, a simple regulation change could have done that. The Water Sustainability Act is much more than just bringing in regulation of groundwater.
The old Water Act was a product of law makers whose world view was rooted in the 19th century. It was born in a time when natural resources seemed limitless and the prevailing attitude favoured unimpeded extraction and development. Circumstances, knowledge, and societal values are very different today, and the climate is changing rapidly, changing water availability with it. One of the ways the Water Sustainability Act responds to those changes is to make consideration of environmental flows, how much water a stream needs, mandatory in all licence decisions for new water users. With 30-year water licences, we simply cannot afford not to apply that same standard to the 20,000 existing large groundwater users. We owe it to our children to do better. Consider -- if your family has a child in kindergarten that child will be 35 years old before any of these licences come up for review!
It may be that the province are afraid because they have set themselves up for failure. They have allowed 3 years to issue these 20,000 licences. That means they have to process a fraction over 25 licences a day, every working day of those three years. That includes consultation with First Nations, notification of potentially impacted landowners and water users, and resolution of any objections that arise. Adding a requirement to consider environmental flows is no small undertaking, particularly in view of the many areas of the province where data to base such a consideration on is lacking. Government may argue that it is too expensive or too time consuming to require consideration of water for nature, water for the future. Doing the right thing should not hinge on whether it is convenient. A government afraid of hard work has no business governing.
Had the government not chosen to waive licence fees on those 20,000 licences they would have millions of dollars more available to apply to the task. Perhaps those fees are water under the bridge now, but the pricing review on water rental rates that they promised for one year after the WSA came into effect could solve funding issues. We must not let the government say they don't have funds to do the job.
Were the government to make those 20,000 licences interim, perhaps for 5 years as was suggested by many during WSA consultations, they would have more time to do the science and proper consideration before handing out longer term licences. We must not let the government say they don't have time to do the job right.
We must not let the question stop at whether to do what is right. The question must be only how to do what is right. This exemption issue is not over.
WaterWealth, with our supporters and allies, will continue to push for a strong WSA to protect the fresh water we all rely on. Currently WaterWealth are working with a lawyer to develop an formal opinion on a particular legal challenge to the exemption. We are also working with allies on other strategies, including other legal options. You can keep up to date on developments by liking our Facebook page, following us on Twitter, or by signing up for email updates. We will keep you apprised of opportunities to support the work arise. to help with the work are always welcome of course!
We can do this! #StrongWSA
Tower image: “A Defective Water Tower.” 1909. Municipal Journal and Engineer. 27:1 (July 7, 1909): 7.
(just dispelling the rumours)
But his fingerprints are all over the story. Deservedly – Ian was beating the drum about flows from day one after the Reg’s came out, and it took awhile for others to come around. (No wonder the gov’t was profoundly quiet about this phase, contrasting to the chest-beating about WSA the previous two years…)