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Updating B.C.’s water act

B.C.’s proposed Water Sustainability Act


January 6, 2014
By Karly O’Brien

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British Columbia’s ground water industry will need to learn some new rules as the proposed Water Sustainability Act is set to regulate ground water for the first time.

British Columbia’s ground water industry will need to learn some new rules as the proposed Water Sustainability Act is set to regulate ground water for the first time.

“The strongest reason behind [regulating ground water] is that the people in B.C. were telling us that we can’t let ground water get taken for granted,” says Ted White, manager of water strategies and conservation at the Ministry of the Environment. “We realized that with water being under pressure with increasing demand, population, and a changing climate, it would be challenging to sustain that resource over a long period of time and for the future.”

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One quarter of the province’s populations depends on water wells, and many wells provide water for commercial and industrial uses. There are an estimated 100,000 water wells in British Columbia.

A detailed proposal regarding changes to B.C.’s water act was introduced on Oct. 18, outlining the areas that will be regulated. Public feedback was welcomed until Nov. 15, and legislators are currently implementing the relevant changes for a final draft. The information below is based on the information released on Oct. 18 and does not include any changes.

All in all, there were 2,250 submissions. Eighty-five per cent were from citizens; 13 per cent comprised stakeholders such as water, oil, gas and mining groups; and one per cent of the total feedback came from First Nations.

The act will be submitted to the legislative assembly as a bill for debate and approval in early 2014.

Changes affecting the industry
There are new rules that will affect the ground water industry if the act is passed as it stands in areas such as drilling requirements, area-based regulation and mandatory reports.

Water well, environmental, geotechnical and geothermal drillers would be required to submit reports on new wells that are drilled, as well as on any well maintenance or closures.

Currently, submission of water well reports is voluntary. The requirements for these reports are still being defined.

The voluntary submission of reports resulted in patchy well records across the province, says White. The consistent submission of well records will allow the provincial government to better understand the resource itself as well as where the resource is being accessed and how much water is being used.

The introduction of area-based drilling requirements is another change for the industry. The new act will instruct drillers to apply for drilling authorization before proceeding to develop a well if it is in an area of concern. An area of concern would be defined as a region where there is an indication that the ground water resource may not be sustainable or sustainably accessed.

The authorization could result in three different outcomes, explains White. In some cases, the authorization will be granted with no stipulations. In the majority of cases, there will be requirements for the way the drilling is done. In other cases, the ministry may go as far as closing the area off to new wells. The areas that will be subject to authorization will be defined and mapped out.

“If you look at it, it allows us to add incremental regulations based on the risk to the resource. This way it gives us the flexibility in areas of the province that don’t need extra regulation, but we can focus our time on areas of concern and apply the appropriate tools to protect the long-term outcome of the resource.”

British Columbia’s Gulf Islands is an example provided by White that will most likely be an area of concern because drilling new wells presents the risk of salt-water intrusion.

There will also be new well drilling requirements, but these have yet to be outlined and are in the works. If a company or driller is believed to be operating in bad faith, the new act will have an enforcement mechanism for penalties that are yet to be determined.

Ground Water Canada spoke with Bruce Ingimundson, managing director of the British Columbia Ground Water Association (BCGWA), about the proposed legislation. The association has worked closely with the government to make sure that the act benefits the ground water industry as well as protects ground water resources for the long term. These were some problems that the association found with the proposed act.

It is not yet known if the Ministry of Environment has addressed these challenges by implementing changes, as the final document will be released after the publishing date of this article.

Firstly, the act defines water up to 600 metres deep in the aquifer as being fresh water. After that, the water is assumed to be saline ground water. The association did not suggest a qualifier, but noted that it should be deeper. Ingimundson believes the government adopted this definition from Alberta’s water act.

At a public consultation, Diana Allen, a professor of hydrogeology in the department of earth sciences at Simon Fraser University, also disputed the 600-metre qualifier.

“I don’t know that B.C. knows at what depth saline water takes place. There are no specific studies that indicate when saline water appears.”

Based on this, she says that the province should refrain from putting a limitation on where saline water starts in the legislation. Instead, she suggests there should be no qualifier and the regulation should stipulate that there be an investigation defining the concentration and depth of saline ground water on a case-by-case basis.

 A second concern is that the act has not sufficiently addressed the ground water disposal of waste water and storm water, which is poorly managed and results in the occasional contamination of aquifers, says Ingimundson.

Thirdly, the association would like to see the regulations sufficiently funded. “The government needs to have the staff in order to police the industry and make sure that the regulations are being followed,” says Ingimundson.

The last recommendation was to set aside some funding for well owner education. Ingimundson says that people who own wells, particularly farm and domestic wells, want to know how to better manage them. “Public education, in our opinion, is a high priority.”

Other ground water regulations
The proposed act will also regulate ground water use and extraction. These regulations will not directly impact the well drilling industry, but will affect those who wish to withdraw and use large quantities of British Columbia’s ground water.

Under the new act, ground water would be regulated in the same way as surface water by requiring some users to obtain licences and pay fees.

“I’m glad the province is regulating ground and surface water the same way since it’s one resource, [and] there should be no separation. It makes no sense to regulate one aspect of the resource and not the other,” says Allen. 

Domestic users would be excluded from the permit process, unless the area in question has a scarce water supply and is of concern.

There would be mandatory reporting for those who extract more than 250,000 litres per day. Industries that don’t currently pay fees for withdrawing ground water will be required to pay at least 85 cents for every million litres of water that they take.

“The idea of charging somebody like Nestlé $300 per year is really more embarrassing than charging them nothing,” says David Slade, a senior water well driller at Drillwell in Duncan, B.C. “It’s such a paltry amount based on the amount of water that they are using and of course the revenue that they are generating by selling that liquid.”

The government will be able to limit industrial uses of ground water during times of drought.

The new legislation will also give industries that rely on heavy water usage, such as hydraulic fracturing, a fee exemption if they use non-potable water during production.

In addition, the proposed act would regulate ground water with a “first in time, first in right” (FITFIR) policy that is currently being used for surface water. This doctrine prioritizes users based on when they first tapped into the ground water resource. During periods of scarcity, that rule would be superseded by new policies that give priority to the protection of fish habitats and provision of water for human and livestock consumption.

The process
Updating British Columbia’s century-old Water Act officially began in 2009 when the Ministry of the Environment launched the Living Water Smart blog.

To create a well-researched act, the provincial government examined how countries around the world manage water problems that are similar to the ones occurring in British Columbia.

“We were looking at how water is managed and regulated in other jurisdictions,” says White. “We looked across literature in leading water research and took the input from that to consider how those lessons in other jurisdictions could be applied to the act.” This research is ongoing.

The government planned to implement the proposed legislation in 2012. However, the process took longer than expected. From 2005 to 2009, Ingimundson and Allen were members of the provincial ground water advisory board. This board was disbanded to embark on a full modernization of the act; however, the research and suggested regulations that the board put together are slated for implementation in future regulations.

Some stakeholders were wondering why it was taking a few years to finalize the act, says White. The extra time was needed to get through all of the feedback and to determine how to put the suggestions into legislation or regulation.

The BCGWA has been lobbying for an updated act since 1990. If Ingimundson could put his finger on what motivated the government to pick up the pace, he says, it would be the public finding out that commercial ground water extractors like Nestlé don’t pay fees to use the resource.

“This really hit the people of B.C. [The] government tends to respond to public outcry or public concern. If the public starts grumbling about something then they listen.”

But, Ingimundson says he has to give the government credit because it was working on updating the act before the Nestlé outcry began.

In mid-August, environmental groups discovered that Nestlé wasn’t paying fees to the provincial government in B.C. for extracting ground water after the company was put under the spotlight for fighting drought restrictions in Ontario.

In the Water Sustainability Act’s proposal, British Columbia’s minister of the environment, Mary Polak, describes the 100-year-old act as something that is “no longer adequate to address the growing population, expanding development and changing climate.”

“It’s never too late to update the act,” says Slade. “It reminds me of an old Chinese proverb: the best time to plant a fruit tree was 10 years ago, but the second best time is today.”

The passing of the act will make British Columbia the last province in Canada to regulate ground water. If all goes according to plan, the act will be passed in spring 2014 with regulations to be phased in over a designated period of time beginning in 2015.