Water Act – Changes in a Stream

The Water Act, in addition to regulating water use, places restrictions on any actions that alter the water body in some significant way, even if the water is not actually “used”.  Examples might include culverts, bridges, shoring up of stream banks, removing vegetation inside the stream or stream channel, etc. 

Specifically, no person, provincial government ministry or municipal government can make “changes in or about a stream” unless:

·          The person holds a water licence that authorizes the change;

·          The government has granted approval for the change or made an order requiring it; or

·          Regulations passed under the Water Act authorize the change.

A “stream” is defined broadly, and includes lakes, river, swamps and other surface water flowing in natural boundaries.  “Changes” is also broad, including:

·          any activity within the banks of the stream (including side channels) that has or might have an impact on the stream; and

·          any activity (presumably whether within the banks of the stream or not) that modifies “the nature of a stream including the land, vegetation, natural environment or flow of water within the stream.” 

Consequently, the Ministry of Sustainable Resource Management plays a key role in overseeing any actions that might affect a natural body of fresh water. 

Finally, the Water Act also provides that any person making a change in a stream must take reasonable care not to damage land, works, trees, or other property, and must pay compensation to the owners of land on which any damage occurs. 

Water Licences

Water licences authorize the use of water from a particular stream by the licensee.  The licence will also generally authorize the person to build and maintain works associated with that use.  For example, a licence authorizing the use of water for agricultural irrigation may authorize the construction of a dam to store the water for year round usage and pipes and other materials to take the water to where it will be used.  No further authorization is required from government where a licence provides for the construction of such “works.” 

For more information about Water Licences, and how and when they will be issued, visit the Guide’s Water Act – Water Licences page.

Government Approval

If a person making a change in a stream requires approval from the Ministry, he or she must apply to Land and Water BC of the Ministry of Sustainable Resource Management.  Depending on the project, the Ministry may require planning to ensure that the change will not affect fish or riparian habitat, is appropriately designed and located, and is necessary.  The Ministry follows a check list of the types of information required. 

The Ministry, in approving a change, can attach whatever conditions it feels are appropriate to reduce or eliminate the negative impacts of the change. 

The Water Regulation

Changes in or about a stream can be authorized under the Water Regulation, passed by the provincial cabinet under the Act.  The Water Regulation (at section 44) sets out certain types of changes that will not require either government approval or a licence.  This list is too long to reproduce in its entirely here, but includes:

·          the installation of a culvert under a road or trail that meets various conditions set out in the Regulation;

·          the construction of a clear span bridge, provided conditions are met;

·          the construction of a wharf or pier that does not obstruct the flow and ebb of the water;

·          various stream channel maintenance work by the governments of British Columbia or Canada;

·          work authorized under the Forest Practices Code; and

·          work carried out by a person holding a permit under the Mines Act.  (note: these last two authorizations are not at all clear from the literal wording of sub-sections 44(2) and (3) of the Regulation, but seems the most likely interpretation.)

However, if a “change” falls within the authorizations under section 44 of the Water Regulation, the person making the change is required to meet several other requirements, including (but not limited to):

·          design, construct and maintain the change in a way that does not pose a “significant danger” to life, property or the environment;

·          notify a habitat officer with the Ministry of Water, Land and Air Protection of the proposed change 45 days prior to making it and follow any terms and conditions he or she may make as to how the change should be done (with a few exceptions);

·          ensure that persons using water under the Water Act will not be adversely affected and must notify those persons 3 days in advance of making the change;

·          ensure that no substance, debris, or material that could negatively impact on the stream is placed in the stream channel or allowed to enter the stream from construction materials;

·          report any non-compliance with the Regulation to the Ministry within 72 hours; and

·          report any damage to wildlife or fish habitat to a habitat officer with the Ministry of Water, Land and Air Protection.

However, in practice a lack of Ministry staff means that these requirements are difficult to monitor and enforce. 

Related Guide Pages:

·          Water Act.

·          Water Act – Water Licences.

For more information about Changes in and About Streams:

·          Electronic copies of the Water Act and the Water Regulation.

·          Ministry of Sustainable Resource Management’s check-list of factors to consider in granting approvals for changes.

·          Ministry of Environment, Land and Parks’ User’s Guide to Working Around Water.