(Update: Most of the concerns raised in this post remain unchanged, but there is an update on the issue of exemptions from environmental flow considerations for the estimated 20,000 existing non-domestic groundwater users. See our blog post "Bridges and Troubled Waters")
We seem to see a pattern in the government’s approach to updating BC water law.
A pattern of encouraging talk followed by disappointing action.
What They Said / What They Did
What they said: “Under the proposed Water Sustainability Act, all non-domestic users of groundwater, would be required to pay an application fee and an annual rental”
-- BC gov’t WSA Blog post #2
What they did: Exempted all current non-domestic users of groundwater from application fees. A multi-million dollar giveaway of licences that won’t come up for discretionary review for 30 years, just at the time when revenue is needed to implement the WSA.
-- Water Sustainability Regulation Section 55 (3)
What they said: “We heard strong support for increasing water fees to fully realize the objectives of the new Water Sustainability Act.”
-- BC Gov’t Discussion Paper, “Pricing B.C.’s Water”
What they did: Introduced water rates that top out at a meagre $2.25 per million litres. Compare to rates in other provinces of up to $140 per million litres.
-- Water Sustainability Fees, Rentals and Charges Tariff Regulation
After massive public outcry, what they said: “I’ve asked my staff to take a look at the concerns that we’ve been hearing and see if there’s any way we can address that in the rate structure.”
-- Environment Minister Mary Polak, July 2015, The Province, (story November 16, 2015)
What they did: So far nothing. The WSA was put into effect February 29, 2016 with no change to water pricing. When asked, government staff have said that they will review the rates after one year of operation of the WSA, so 2017.
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)
Meanwhile on Vancouver Island the provincial government has continued to allow contaminated soil dumping near Shawnigan Lake that has already caused one drinking water warning by the Vancouver Island Health Authority. That dumping continues despite community opposition that has led to arrests as people try to protect their drinking water. (Image rabble.ca)
In the Okanagan the government has continued to provide permits for manure spreading over an aquifer that provides water to the community of Spallumcheen despite years of water quality advisories by the Interior Health Authority. Mary Polak’s Ministry of Environment has also refused the local water district access to documents containing soil test results over the aquifer.
In the Northeast, the Environmental Appeal Board (EAB) revoked a water licence issued by the province to Nexen, the Canadian subsidiary of China’s national oil company. In their decision the EAB cited both bad faith by the province in consulting the Fort Nelson First Nation, and fundamentally flawed science in the licence decision.
The experience of the Fort Nelson First Nation regarding the Nexen water licence does not seem to be the exception under this government. Throughout the process of developing the WSA and such regulations as have been completed to date, the province has repeatedly failed to adequately recognize Indigenous rights and title. Even if the province does not feel the moral weight of the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission of Canada, or BC’s own New Relationship Accord, it is hard to understand the apparent failure to recognize the legal weight of recent court decisions like Tsilhqot’in Nation v. British Columbia, or Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc.
In response to a letter regarding the failure to adequately carry out the constitutional duty of the Crown to consult with First Nations and accommodate First Nations’ concerns, Environment Minister Polak noted that “provincial staff attended multiple government-to-government meetings to discuss the WSA and regulations”. Polak’s response also claimed that “First Nations’ contributions have helped to inform the development of the WSA and its regulations” citing as an example “The requirement for a decision maker to consider the environmental water flows needed to support the health of ecosystems, which in turn protects the rights to hunt and fish in these areas”.
That the Minister would try to pass off staff level meetings as “government-to-government” is disappointing. One such meeting observed by WaterWealth staff was nothing more than an information session with provincial staff bringing presentations of the WSA already passed and the first regulations already effectively decided, nothing that was not already publicly available. It was clearly not consultation and the provincial staff were politely dismissed by the First Nations leadership present. As for the “environmental water flows” the Minister’s response spoke of, those considerations were negated by the regulations that came into effect February 29, 2016, with the exemption handed to all of the approximately 20,000 existing non-domestic groundwater users. (We will provide a more thorough discussion of the letter to the province and the Minister’s response at a later date.)
What do we do now?
With the government failing to consult in good faith with either the public or First Nations, are we doomed to a Water Sustainability Act that fails to do anything more than generate a flurry of paperwork as 20,000 groundwater licences are handed out? If we're going to save the remaining potential of the WSA, what do we do now?
You hold the key. The regulations put into effect with the WSA on February 29 are only the beginning. Many vital regulations remain to be developed. The government know that the public care about water, and that we understand the importance of planning and management beyond the next election cycle to ensure that the water we rely on remains available in the future. When British Columbians spoke up about the lack of regulation of groundwater, the government responded. When we spoke up about the failure to price water rentals sufficiently to properly implement the WSA, the government responded.
Now we need British Columbians to show government that we are still watching, and will be watching how they proceed with this process going forward--particularly the promised pricing review in the 2017 election year.
How You Can Help
You can help by sending an email or letter now to the province. Below are some suggested issues, questions to pose, and solutions to offer to government. Feel free to copy and paste or to write entirely your own message. The key is to let government know that British Columbians are paying attention to this issue and will not sit out this once-in-a-century opportunity to secure our shared water wealth. Government email addresses follow the issues, questions, and solutions section below.
Issue: Protection of ecological function
Questions for Government:
1) Given that environmental flow protections are one of the improvements at the heart of the Water Sustainability Act (not just minimum and temporary critical flow orders), how can government avoid over-allocations and locking in of unsustainable use during the three year transition period while the exception for environmental flow consideration for groundwater authorizations are in effect?
2) How will government conduct cumulative effects assessments and identify sustainable groundwater withdrawal rates throughout the province if groundwater licence decisions are exempt from environmental flow considerations?
3) If the exception is not removed, how can Government assure communities and citizens that these new groundwater licences in hydrologically connected surface-groundwater systems will have appropriate environmental flow protection clauses included?
1) Remove the environmental flows exemption on groundwater licence decisions and require that decision-makers consider environmental flow needs during the 3-year transition period and after.
2) Make initial groundwater licences conditional and subject to review, with fixed 5-10 year end-dates to provide time for the necessary studies to be done to determine that current extractions are sustainable and that the cumulative impact of water extractions do not pose a threat to environmental flow needs.
3) Ensure all new groundwater licences include environmental flow thresholds and conditions explicitly in the licence conditions.
Issue: Transparency and Engagement
Government has prided itself on effective and transparent engagement earlier in the Water Act modernization process, yet the Water Sustainability Regulation includes significant details and content that was not previously indicated in the Government intentions papers. This recent lack of transparency and ‘surprises’ in the regulations has shaken public trust.
Questions for Government:
1) Why didn’t government provide opportunities for public review of the of the new regulations?
2) Why did government change its priority from effective and transparent engagement to a closed and secretive approach? Will there be more opportunities for public review and input going forward?
1) The Province began with a commitment to robust public engagement throughout the Water Act modernization process. It must continue to do so and provide specific opportunities for review of the full details on all aspects of the regulations going forward.
Issue: Habitat Protection
The Water Sustainability Regulation adopts a “no net loss” approach to habitat protection. No net loss does not provide adequate consideration of ecosystem health and function, as one area of a stream, wetland or lake is not simply replaceable with another.
Question for Government:
1) Can Government ensure that only ecologically appropriate mitigation measures – and even ecological improvements (through a “net gain” policy) will be required during works that affect sensitive stream habitat?
1) Require authorizations that ensure mitigation actually improves overall watershed health and function, including a “net gain” policy where habitat in one area is replaced by additional habitat in that reach or in other areas.
Issue: Works In and About A Stream
The Water Sustainability Regulation allows many types of works in and about a stream without authorization from the province, yet many of those activities (e.g. installation or removal of a culvert, constructions of bridges and other in-water infrastructure) have the potential to significantly impact the health of streams, rivers and fish habitat.
Questions for Government:
1) How does the Province intend to monitor activities that do not require authorization and enforce non-compliance with conditions?
2) When no authorization is required, how will the Ministry ensure that environmental flows are protected?
1) Even when no authorization is required, those carrying out works in and about a stream should still be required to provide the Ministry with documentation on environmental flows to ensure flows are maintained.
Please send your comments and concerns today to the Living Water Smart Team, Environment Minister Mary Polak, and Forests, Lands, Natural Resource Operations Minister Steve Thomson, and to your MLA:
Living Watersmart Team: email@example.com
Environment Minister Mary Polak: firstname.lastname@example.org
Forests, Lands, and Natural Resource Operations Minister Steve Thomson: FLNR.Minister@gov.bc.ca
Contact information for your MLA can be found here.
Please also share this blog post with family and friends who may also be concerned about the long-term protection of fresh water. Together we can achieve a #strongWSA!