The Water Sustainability Act (WSA) proposes to retain the First in Time, First in Right (FITFIR) system of rights allocation--which has been used since 1909 to dole out surface water licences--and to extend it to groundwater. FITFIR is problematic in a variety of ways. Extending it to groundwater adds its own bucket of problems. All indications are that getting rid of FITFIR is a non-starter for government, however we can address some of the problems that might arise from extending FITFIR to groundwater.
FITFIR operates on “priority dates”, the date a licence is issued. Older licences have priority over newer ones, however "First in Time" in practice is selective about what is taken into consideration. The WSA proposal is to have groundwater licences issued with priority dates based on when a well was drilled. Licences would not come up for review for 30 years.
What does this mean?
- Despite the name "First in Time, First in Right" there is no recognition of the rights of First Nations who have been using water for millennia.
- Groundwater users with old wells would have guaranteed use of the volumes of water they have historically drawn
- These new licences may retroactively gain priority over surface water users
- This is likely to happen in some areas where use already exceeds supply
- These new licences would be locked in for 30 years.
30 year licences for groundwater are unacceptably inflexible.
We don't have complete data on groundwater in BC and water conditions are in flux with climate change. The right to govern groundwater is contentious -- First Nations have not ceded title to water, though the province claims it in the name of the Crown. To lock in industrial water licences for 30 years would leave us vulnerable both to surprises in water availability and litigation over title to water. We need the flexibility to deal with these and other concerns up front, not after consequences are felt.
The WSA proposes flexibility for the benefit of private power producers, with new water licences that include a project development period of up to five years and option to extend a further five years. It also proposes extensions to existing hydro project water licences to allow them to operate for the full term of their electricity purchase agreements without those extensions being considered licence renewals subject to regulatory review. If we can have such flexibility for the convenience of power producers, why not similar flexibility for the protection of groundwater resources?
Groundwater licences should have an initial period of 5 years.
During this initial licence period thorough groundwater inventories should be done. At the end of the 5 years those groundwater licences should be reviewed. Renewal and any conditions of renewal should be based on complete knowledge of the local hydrology and taking into consideration local traditional knowledge and reasonable projections of climate change impacts. This would give us the flexibility to deal with the unexpected as we learn just what water there is in BC.
During this period nation to nation consultations should be carried out honourably by the province with First Nations so that certainty can be achieved and we can all avoid the expense of solving these things in the courts.
Following the initial 5 year licence period, licences should be reviewed every 10 years to give us flexibility to deal with changing water supply patterns.
This is a critical time for British Columbia. We can expect this Water Sustainability Act to fundamentally shape how our home waters are governed for many decades to come. Read more about the implications of this proposal on our other info pages, and please provide your thoughts to the government by the November 15 deadline.
Comments to government can be made on the Water Sustainability Act blog
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or by mail to Water Sustainability Act, Ministry of Environment, Water Protection and Sustainability Branch, PO Box 9362 Stn Prov Gov, Victoria BC, V8W 9M2.
Let's make sure BC gets this right!