Water Act
The first version of the Water
Act was established in pre-confederation British Columbia not as an
environmental statute, but as a way to fairly divide water rights between
settlers while collecting water fees. Today,
the province’s Water Act still focuses on allocating water licences
and controlling the use of fresh water.
However, the Act has been expanded to include some explicit
environmental protections for waters flowing in a stream, lake or other body of
surface water. Moreover, the Fish Protection Act makes use of the Water Act
powers to protect fish in some interesting ways. Groundwater is not currently protected by the Act.
The Ministry
of Sustainable Resource Management is in charge of the Water Act.
Provincial Ownership of Water
Under the Water Act the
province owns, and has the right to use and to receive the flow of, all water
flowing in a natural watercourse (ie. rivers, streams, lakes, swamps, etc.)
anywhere in the province.
This is a change from the
judge-made common law, which held that the right to use water was owned by the
people who owned land along the banks of the water body. Instead, the law in B.C. is that no person
in the province can use, store or divert water without a licence from
the government giving them that right.
Two exceptions exist:
·
First Nations may be able to claim an aboriginal right to use of water, although this has
not yet been confirmed by the courts;
·
The Water Act does not prevent a person from using
water for domestic purposes, for prospecting or to put out a fire. However, if the government gives that water
to someone else through a water licence the person using the water will have no
recourse.
This means that property owners
living next to a stream in B.C. have no right to require a continued flow of
water in the stream or to use the water from the stream other than for domestic
purposes.
Water Licences will be required
for just about any use of water, including but not limited to:
·
Storing and diverting water for irrigation purposes;
·
Construction and operation of hydro-electric power
generation projects;
·
Construction and maintenance of dams for any purpose;
·
Collection and sale of water; and
·
Diversion of water for industrial purposes.
Consequently the question of
who gets a licence and how much water is granted under it may be a critical one
to the watershed protection advocate.
For more information on Water Licences and the rights granted with them,
go to the Guide’s Water Act – Water Licences
page.
Changes in and about 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. For information about how
such changes are regulated, read the Guide’s Water Act
– Changes in a Stream page.
Other Powers
In addition to regulating water
use through licences, and changes to streams, the Water Act gives Ministry
staff additional powers to keep streams clean.
Engineers appointed under the
Water Act can (amongst other powers):
·
Order any person to remediate changes made to a stream;
·
Regulate and make orders regarding the use of water;
·
Order a person not to put (or to cease putting) any thing
into water; and
·
Order a person to remove from a stream any thing he or
she has permitted to enter the water.
In addition, Ministry
officials, or Conservation Officers (Ministry of Water, Land and Air Protection
staff authorized by the Environmental Management Act),
can charge people for a range of
offences, including:
·
Making any changes in or about a stream without
appropriate authorization;
·
Creating obstructions in stream channels without
authority;
·
Putting into a stream any substance after having being
ordered not to do so;
·
Diverting water from a stream without authority; and
·
Diverting more water than a licence or permit allows.
Any
government order made under the Water Act can be appealed to the Environmental Appeal
Board by:
·
the person that the government made the order to;
·
a property owner whose land is likely to be affected by
the order;
·
a licensee or applicant for a license who considers
that his or her rights will be affected by the order; or
·
a person who owns land on the water body who considers
that his or her rights will be affected by the order.
An
appeal must be filed with the Environmental Appeal Board, according to its
procedures, within 30 days of the Order being made. The Environmental Appeal Board, after hearing an appeal, can make
any decision that the original decision-maker could have made, or can send it
back to the original decision-maker for a second look (usually with
instructions).
The
limited range of people who can bring an appeal to the Environmental Appeal
Board under this Act makes it difficult to use the appeal mechanism to raise
general watershed protection issues.
However, if someone who holds a licence or land and is affected by the
order is willing to appeal it, it is possible that the Board could be asked to
consider such issues.
Limits of the Water Act
The Water Act was written to allocate
water on a “first-come-first-serve” basis, and not specifically to protect the
environment. Until recently the
government did not consider the rights of fish to water, although current
government policy is a major improvement.
While the Act can be a useful tool, it still does not provide a
comprehensive system of watershed protection or planning.
Related Guide Pages:
·
Water Act – Water Licences
·
Water Act – Changes in a Stream
·
Fish Protection Act
·
Fish and Fish Habitat
For more information about the Water Act:
·
The electronic text of the Water Act.
·
Ministry of Sustainable Resource Management’s Water Resources Information page.
·
Ministry of Water, Land and Air Protection,
A User's Guide to Working In and Around Water. 1999
