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Many B.C. non-domestic groundwater users risk losing access as application deadline looms, experts warn


May 27, 2021
By Canadian Centre for Policy Alternatives

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Vancouver – Thousands of non-domestic groundwater users in British Columbia risk losing their historic water rights if they fail to apply for licences before a fast-approaching deadline, warn two former senior provincial government employees.

The warning comes as new research from the Canadian Centre for Policy Alternatives shows that since the Water Sustainability Act (WSA) became law in 2016 just one tenth of an estimated 20,000 non-domestic, historic groundwater users have applied for and received licences, while 16,000 users have yet to apply for licences at all. This means they risk losing access to water they have historically used.

Prior to the WSA, the use of groundwater or well water in B.C. was largely unregulated. But with the WSA, all non-domestic groundwater users—including farmers and ranchers, oil and gas companies, mine and smelter operators, water bottling companies and small businesses—are required to apply for licences to retain their historic water rights.

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Since the Water Sustainability Act became law in 2016, just one tenth of an estimated 20,000 non-domestic, historic groundwater users have applied for and received licences, while 16,000 users have yet to apply for licences at all.

“When the government changed the rules with the WSA, it recognized that it was placing a new regulatory burden on historic groundwater users and gave them time to continue using their water while they applied for the licences. Now, the time to get those applications in is running out. If historic, non-domestic water users don’t get their licence applications in by March 1 2022, they’ll not only lose their authority to use the water, but they could experience a gap of years before a decision is made on their applications,” warns Donna Forsyth, who as legislative advisor for the Ministry of Environment and Climate Change Strategy helped the government draft its new water law.

“In addition, since these late licenses will not recognize previous water use, they will lose their seniority and therefore be the first to be cut off in times of water scarcity,” Forsyth added.

“It is entirely possible that after the deadline ranchers or farmers who had used water from their wells for a century but failed to meet the licence deadline could find themselves competing for the same resource alongside new bottled water companies, says CCPA resource policy analyst Ben Parfitt.

“That’s a minefield the government does not want to step into,” he says.

The CCPA research notes that in 2016, BC’s Ministry of Forests, Lands, Natural Resource Operations and Rural Development received nearly $22 million over three years to help implement the WSA by getting groundwater users to apply for licences. But the applications only trickled in and the deadline was extended another three years.

Mike Wei, a former deputy comptroller of water rights in the Ministry of Environment and Climate Change Strategy, says three things explain the glacially slow uptake.

“First, government has not been clear and convincing about the benefits of applying and consequences of not applying,” Wei said. “Second, the typically long timelines for government to make decisions on applications undermines confidence and may be scaring away historic users who have yet to apply. Third, there’s been a general lack of checking and enforcing the rules governing unauthorized water use, which sends an unfortunate signal that government is not serious.”

To get as many as possible of the 16,000 groundwater users who have not applied for licences to do so before the deadline, the government should do three things, Wei, Forsyth and Parfitt say.

First, it must unambiguously tell water users what the consequences will be of missing the March 1, 2022, deadline including:

  • Losing their historic water volumes, which then go into a communal system for reallocation to new applicants.
  • Moving to the back of the line when they finally file a new application, after which they will not be allowed to use groundwater until a licence is granted.
  • Paying higher costs to file new applications, due to additional requirements, which may include providing impact assessments on environmental flows.

Second, it must devote sufficient resources to get the vast majority of historic groundwater users to submit their applications. If that means temporarily suspending the review and approval of new licence applications in the lead-up to the deadline, so be it.

Third, provincial compliance and enforcement staff must be instructed to shut down any water users who illegally divert water from lakes, rivers and streams or groundwater wells. That includes industrial water users that brazenly break the rules, as detailed in previous CCPA research, which showed how natural gas fracking companies built dozens of unauthorized dams to capture water, yet faced no sanctions from provincial authorities.

“All water users in B.C. need to know that the government takes unauthorized water use seriously. Enforcing the law will send a powerful message to historic groundwater users that if they fail to get in the queue by March of next year, there will be consequences,” Parfitt says.