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Does B.C.'s new Water Sustainability Act sink or swim?

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Photo: BC Gov Photos/flickr

The B.C. provincial government has introduced Bill 18, the new Water Sustainability Act, to replace the current 105-year-old Water Act. According to the B.C. government, the new act promises to regulate groundwater, to manage water use during droughts, and to measure large-scale water use. 

The new act is being heralded as a long overdue step in the right direction, though many are also calling it the "Watered-Down Act." While the new proposed legislation is definitely an improvement over the current 100-year-old Water Act, it unfortunately falls short of what communities across this province need when it comes to strong water legislation that puts public interest ahead of corporate profits. In many ways, the new Water Sustainability Act is still business as usual when it comes to industrial use and is a drop in the bucket when it comes to the real changes needed to give the power to our communities and First Nations to protect and steward our precious water here in B.C. 

During the public comment period that the B.C. government held in 2013,  the Council of Canadians made seven critical demands of the new Water Sustainability Act. How does the new Water Sustainability Act live up to these demands? Let's take a closer look!  

Demands 1 and 2: Recognize water as a human right and reaffirm water as a public trust that belongs to people and cannot be privately owned or controlled.

The legislation does not recognize water as a human right or public trust. Furthermore, it still includes a First In Time First In Right section so that those with the older/oldest permit have rights over new permits. As a result, an older permit held by a gas or mining company can take priority over a new permit for domestic use, (which includes water for drinking, sanitation, preventing fires, etc), or conservation. 

Though the new act also allocates 250 litres per household for "essential household use," according to the World Health Organization (WHO), 50 to100 litres of water should be allocated per person per day to meet the most basic needs and a few health concerns. The allocation of water in the legislation should be per person. A household of 5 people (especially if someone is ill) would be wholly inadequate to meet basic needs. 

Demand 3: Recognize Indigenous title and jurisdiction to watersheds as well as secure free, prior and informed consent protocols within the Water Act alongside policies to monitor and sustain groundwater.

The new Water Sustainability Act fails to adequately recognize First Nations rights and title. Many water-hungry and/or water polluting industries (such as fracking, pipelines, mining, and fish farms) are being proposed or currently operating on the territories of First Nations across the province. Despite these projects causing significant damage or posing threats to the streams, lakes, rivers, drinking water, and hunting and fishing activities on these territories, the vast majority of them still receive government approval, support, and water licenses. Moving forward, it is clear that any efforts to govern water must involve leadership from First Nations who have been stewards of fresh water in this province for thousands of years.

Demand 4: Create an approval process for groundwater withdrawals that includes public consultation, incorporates community input into the final decision, and respects a community's right to say "no" to projects that abuse or pollute water.

The new Water Sustainability Act will introduce a new pricing regime on groundwater users. The old water act left B.C. as the only province in Canada that didn't regulate groundwater use. This allowed corporations and industries in B.C. to withdraw fresh water without paying the government for it, or measuring or reporting how much they take.  

When it comes to incorporating community input, while the new act does require that the applicant give notice to those that will be affected by the licence/amendment (this includes an authorization holder, a change approval holder, an applicant for an authorization or change approval, a riparian owner, and a land owner), it does not require that notification be given to other people in the watershed. Wider notice should be given as certain projects could impact other people's drinking water, for example. 

The legislation definitely does not meet the requirement for respecting a community's right to say "no" to projects that abuse or pollute water. In fact, it outlines the water licencees right to expropriate land which is "reasonably required for the construction, maintenance, improvement or operation of works authorized or necessarily required under the licence." Furthermore, the act says that the 'decision maker' will decide when an hearing is warranted, which is insufficient as there should be situations that automatically trigger a public comment period/hearing process. In Ontario, any permit to take water is posted publically and open for comment for 60 days -- ideally B.C. would have similar process. The act also fails to include a stipulation on incorporating community input as to whether a mitigation plan is adequate or not. 

Demand 5: Include strict pollution controls, strong conservation regulations and stringent monitoring.

According to Sheila Muxlow, Director of The Water Wealth Project, "We are pleased to see that B.C. will finally regulate the use of groundwater and recognize that sufficient environmental flows are essential to the well-being of communities throughout the province. However, this Act is still only a broad framework and the government has decided to defer many of the details to future regulations. It is critical that B.C. residents stay engaged in the process to ensure that the legislation has some teeth and isn't another false dawn."

Though in some ways the new act is moving in the right direction, there is significant concern that the government lacks the resources and internal capacity to implement and enforce its regulations and monitoring. For example, the new act mentions that the government could rely on industry information to "determine the environmental flow needs of the stream." Seems like the fox watching the hen house! The government really should be doing their own assessments in the first place and not asking industry for this info as they have a vested interest in having the licence issued. 

There are also some industries whose use of water are not compatible with the well-being of local communities and the health of the watersheds. In 2013, more than seven billion litres of water were used for fracking in B.C. If the government's liquefied natural gas sector takes off, the water needed to get shale gas out of the ground in the northeast corner of the province will likely increase by 500 per cent, or more. When it comes to industries like fracking and LNG, one can't help but be skeptical that this new water act will fail to result in any meaningful changes on the ground! Water used for fracking is currently sourced from both surface and groundwater. While the government is committing to regulating groundwater use and the act would require that environmental flows be considered by decision-makers before authorizing water use, is the government willing to put the breaks on runaway fracking development, undertake cumulative impact assessments, and limit water use to this industry in order to protect the environment, ensure clean drinking water for communities and respect First Nations rights and title? Will the government require fracking companies to disclose all the chemicals they are going to use for a fracking project in order to be issued a water license? (hint, the answer is likely no...)

Demand 6: Charge industry proper fees for their use of raw and municipal water takings.

Many critics are concerned that the new legislation won't charge enough to large-scale water users (like Nestlé or the fracking companies). There is concern that the government, in wanting to please big industrial users, will not charge the appropriate fees so that it can actually afford to enforce the law and protect our waters. It is absolutely essential that the government reform the pricing of industrial water use in B.C. to ensure that large corporations like Nestlé, Encana, and Apache are no longer taking us for a ride and that water is being used sustainably. 

In the Pricing BC's Water document the government outlines certain principles such as simplicity, fairness and equity, etc. These are good but pricing alone should not be how water is allocated or managed. Water allocation must be based on the principles that water is a commons, public trust and human right.

Demand 7: Ensure a process to revoke permits where industries are polluting or abusing water.

The new act will allow the province to limit water use if a significant water shortage is declared. That means all users could face potential curtailment during periods of scarcity. Under the proposed law, critical environmental flows will have priority over licensed rights on streams and connected groundwater users, meaning that companies such as Nestlé (Nestlé Waters Canada will draw an estimated 300 million litres of groundwater for its bottling plant in Hope this year) could see the taps turned off in some circumstances.

However, the province has not clearly spelled out who and what gets precedence in a drought situation (or other situations of scarcity). And unfortunately that leaves too much up to the discretion of government regulators, who have shown on many an occasion that when it comes to competing water needs, Industry wins at the expense of the environment and local communities! Whether it is fracking companies who are able to withdraw large volumes of water from the Peace River while farmers fields go dry, or it is the provincial governments steadfast support for destructive projects such as the Site C Dam and Tsaseko's New Prosperity Mine proposal (which would have destroyed Fish Lake as well as impacted the health of several major rivers), the B.C. government has prioritized corporate profit over the wellbeing of our watersheds time and time again. Furthermore, Nestlé Canada, in its submission last November, argued that its bottled-water production "should be considered an essential human-need function during times of drought." 

Instead of engaging a more precautionary approach to protecting our water that would have regulators looking at some of the root causes of water scarcity, pollution and abuse, the new act simply creates a more reactive approach where we have to be pushed into a time a crisis before we can trigger these laws to protect our water! 

What now? Take action! 

Next week is Canada Water Week -- which runs from March 17-23, with Bottled Water Free Day on March 19th and World Water Day on March 22! The theme for World Water Day this year is Energy and Water. Great timing for taking action and holding the government accountable for creating a robust, effective, and forward thinking water act that truly values water as a human right and public trust, and respects First Nations rights and title!   

B.C. Minister of Environment Mary Pollack has launched another round of public consultations before coming out with the proposed pricing for water use by major industrial producers, including natural gas companies that withdraw huge amounts of water for fracking. 

Citizens have until April 8 to comment on the new water pricing guildlines in the legislation -- and we need the government to hear your voices loud and clear! Whether you are already organizing an event for World Water Day or simply getting fired up about standing up for water justice, let folks in your community know about the new Water Sustainability Act and encourage them to act now! Phone and email your local MLA -- share your concerns about the new Water Sustainability Act and let them know how important it is to you that this new act put the health and needs of watersheds and people over that of industrial development like fracking, mining, pipelines, dams, and bottled water plants! To find your local MLA, go to this website: http://www.leg.bc.ca/mla/3-1-1.htm.

For more information:

The New Water Sustainability Act (Bill 18) 

Photo: BC Gov Photos/flickr

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