With large parts of British Columbia in drought this summer, the province is beginning to cut groundwater access to unlicensed water users.
But critics like BC Green Party Leader Sonia Furstenau say users losing access to water — including farmers — are victims of a botched government attempt to transition to a new licensing system.
The action against farmers and other commercial users can have a devastating impact, and observers say some were likely unaware of the need to apply for a licence under the recently implemented system.
The government says users had the chance to apply for water licences and cutting off access if they didn't is fair.
“What is happening now in some regions — for example Vancouver Island where it’s at a level five drought, the highest level — those people who have not registered and who are using water illegally for commercial purposes from a domestic source are in danger certainly of losing the right to do that,” Forests Minister Bruce Ralston said during a Wednesday update on wildfire and drought conditions.
“What they are doing is contrary to the Water Sustainability Act,” he said. “Difficult decisions are made during drought and those people who… have not registered at this point will be subject to enforcement orders.”
A small number of the orders have been given so far, but there are likely thousands of farms and other businesses using water without a licence that may be at risk of having that access stopped.
Former government employees and others with knowledge of the situation have long warned that the government’s attempt to manage water use was flawed.
They said few people were aware of the need to register to secure their water supply or of the severe consequences if they didn’t.
With this summer’s drought, that crunch appears to have arrived, at least in some regions.
Mike Wei was involved in the act’s development as the program lead for groundwater and deputy comptroller of water rights. He retired from the government in 2018 and still works as a consultant.
“When [former legislative adviser in B.C.’s Ministry of Environment] Donna Forsyth and I were writing articles the last couple of years to raise awareness for existing users to apply before the transition deadline, I did not expect this summer's drought to so quickly shine the spotlight on the water rights issues, as well as the need for compliance checking,” he said.
The drought shows the act was needed. If it had happened before the act’s implementation in 2016, he said, “the government would not have authority to regulate use at all.”
The Water Sustainability Act was intended to update the province’s strategy for protecting, managing and using water. It allows the government to allocate water use so that streams and aquifers can be managed to keep them sustainable, not just for people and businesses who use the water, but for fish and other wildlife that depend on having enough.
Groundwater is a shared resource that many different users draw on — including major users like agriculture, the oil and gas industry and bottled water companies. Their collective use can put pressure on the resource, depleting aquifers. Licensing users is a step towards measuring how much water they are using.
Under the new rules, anyone drawing on groundwater — generally from wells or dugouts — for purposes other than household use had to get a licence and begin paying fees. The law applies to farms both big and small, and to any businesses that draw water from a well.
Existing users, some of whom had been drawing groundwater for generations, had a three-year transition period to apply for a licence that was later extended for three more years. The idea was to recognize their historic use and bring them under the regulations, but with fewer requirements than new users would face.
The province estimated there were about 20,000 such users when the law came into force. Others believed there could be twice that many.
But when the final deadline to apply for licences passed in March 2022, just 8,000 existing water users had received or applied for a licence. That was about 40 per cent of the number the province believed would need licenses and meant that at least 12,000 businesses’ water use became illegal overnight.
After the deadline, anyone without a licence was required to turn off their water, apply for a licence and wait until it was granted, a process that could take years and require expensive studies to show there is enough water available. They would lose their seniority and go to the back of the line behind other applicants, with no guarantee a licence would be granted.
One farm that has been subject to enforcement this summer is Alderlea Farm in Glenora in the Cowichan Valley. Katy Ehrlich who owns and runs the organic family farm with her husband, John, said she agrees with the government’s goal to better manage water.
As organic farmers who produce vegetables on the site and run a popular café, she said, “we’re doing this because it’s good for the environment and good for the community.”
But it’s maddening how the government has gone about implementing the licensing system, Ehrlich said. Ahead of the 2022 deadline there was no communication from the government about the need to apply for a licence to use groundwater, she said. “Why didn’t they contact people? That would have been way better for implementing the act.”
The Ehrlichs did apply for a licence after hearing about the need for one from a visitor to the farm. The government does not, however, have any record of their application, Ehrlich said, and she’s not sure if the error was at her end or theirs.
Instead of any further communication from the government about the need for a licence, earlier this summer a conservation officer delivered an order to stop using groundwater, she said, adding there seemed to be further confusion about which watershed — the low-water Koksilah or the more robust Cowichan — the farm draws water from.
Ehrlich said they want to be in compliance and do what is required, but there was no communication ahead of the enforcement order. “It’s the unwillingness to have a period of grace, because there’s something that needs to be worked out,” she said. “This kind of thing makes people feel really angry. They feel attacked.”
The Ehrlichs scrambled to get a cistern and were able to get water trucked in, water that also came from the Cowichan watershed. Their crops went a week without water, but survived.
“One thing I wanted to emphasize is that our businesses are thriving and at no point have we shut down during this challenging issue with the groundwater,” Ehrlich said. “We are open for business as usual and all is going really well. The café is doing really well, too. We jumped into action and are totally in compliance.”
The government should be avoiding what she calls fear-based tactics and be doing a better job supporting agriculture and communicating with farmers, Ehrlich said. “There’s a lot of small farmers who didn’t apply for a licence,” she said, adding that even many of those who did apply haven’t had their applications processed. “Where were people notified to do it?”
Cowichan Valley MLA Furstenau said what’s happening is exactly the kind of chaos she and others warned the government’s mismanagement would lead to.
“I’m hearing from farmers in my riding who have been issued cease-and-desist orders and who are obviously deeply concerned about how this is unfolding,” Furstenau said.
“I’ve been raising this issue with the NDP government since 2019 and proposing solutions at every turn how to avoid this outcome and I’m furious the ministry and minister of forests have allowed this to unfold the way it has.”
The relatively low number of people who applied for licences shows the government’s failure to inform, educate and support water users, she said, adding that it strains the already low trust many have in the government. “I’m so angry at how this has turned out.”
Ralston said water users were given plenty of warning and had time to register.
“After the act was passed by the government, the BC Liberal government, in 2016, there was six years of notices, public press releases, discussions with professional organizations, in some cases even personal contact with water users to encourage them to register,” Ralston said, adding that there won’t be enforcement at this point against anyone who has registered but not yet received a licence.
The ministry says outreach included calls to businesses and landowners with wells, 180,000 flyers, 50,000 letters and 67,000 brochures, as well as advertising in 118 publications, social media, blog posts, media bulletins, articles in industry and stakeholder publications and government-led workshops and events.
As of the first week in August, the province has issued 2,411 groundwater licenses under the Water Sustainability Act, a Forests Ministry spokesperson said. By the March 2022 deadline the ministry had received 7,711 applications, some of which were for domestic use, and the review process is ongoing. There are also 44,510 users licensed to use surface water.
“It’s extremely important and I remember that the previous minister and previous government encouraging people to register and we will do it again,” Ralston said, “but there are real consequences in a drought if you’ve not entered into the scheme under the Water Sustainability Act.”
When water is scarce it will go to those who have registered, he said.
David Slade is a retired well driller, businessowner and former president of the BC Groundwater Association who remains a member of the association.
“I believe that the groundwater licensing remains something of a train wreck, with way more than half of those who should have a licence having never bothered to apply,” he said in an email.
In most areas of the province enforcement tends to be driven by complaints and has so far been minimal, Slade said. “If no one complains, or does not know how or when or why to complain, no conservation officers or groundwater protection staff are likely to venture out of their offices.”
An exception is the Koksilah watershed, which twice in the last three years has been low enough that the province ordered a curtailment that barred farmers from using groundwater or surface water to irrigate feed crops like corn for cows, grass or hay.
“This of course has the potential to cause serious harm to farmers,” Slade said. “Based on current trends, we are likely only one week to 10 days away from another order to stop irrigating, which would make it the earliest order to date.”
In the meantime, he said, he understands conservation officers have been visiting farms in the watershed and telling unlicensed users of groundwater to cease and desist all pumping from unlicensed wells.
“I am sure that this is causing hardship as well, but I would call it self-inflicted and those suffering are victims of their own foolishness.”
There may be a couple of watersheds in other parts of the province that are also low on water, he said. “It may well be that the hammer is coming down on some other farmers who thought that the rules around groundwater licensing did not apply to them.”
As of Wednesday much of the province lacked water with drought conditions more severe than normal for the time of year. “July was the hottest month ever recorded on Earth,” said Emergency Management and Climate Readiness Minister Bowinn Ma. “We are experiencing the impacts of climate change right now.”
Out of 34 water basins in the province, 23 were at either drought level four or five, the highest levels, she said. “This continues to be a severe situation.”
On the same call, an executive director with the Agriculture and Food Ministry, Mark Raymond, said the government is providing access to water to some unlicensed water users who have animals to care for.
“There are a number of unauthorized users that we’re aware of that have livestock,” he said. “We have followed up with those unauthorized users directly and have provided them sources, registered sources of water, where they can provide livestock drinking water to ensure that there are no animal welfare issues for those unauthorized users.”
Connie Chapman, the director of the water management branch in the Ministry of Forests, responded to a question about unlicensed water users who may be buying water from other sources.
“Individuals can look to potentially other licensees that may hold a licence for water transport or for other mechanisms under the Water Sustainability Act that would allow water to then be used at that point and location,” she said. “The critical thing is looking at what is within the legislation and ensuring that if the use, and how it is being used for, still aligns with the legislation.”
She said it was a “challenging situation” and that it’s important that any licence holder stay in compliance with the law.
A few weeks earlier, in a July 13 call with reporters, Chapman had said the response to drought conditions included stopping unauthorized water use. “Currently staff are working to identify those users and issue orders under the Water Sustainability Act to require them to cease use,” she said.
A spokesperson for the Forests Ministry said “identifying unauthorized water users is a time-consuming process and diverts government resources.” Since 2016 the priority has been to encourage and support people to apply for groundwater licenses and remind all water users “to help protect aquifers and streams for those who depend on reliable access to water for their livelihoods.”
Officers have issued some orders to unauthorized users, he said, with ministry staff giving priority to watersheds experiencing the most serious impacts. Those include the Koksilah and Tsolum watersheds on Vancouver Island, the Nechako watershed, Kootenay River watershed and three watersheds in the Thompson-Okanagan region.
In most cases, when the government believes someone is an unauthorized water user, they first send a notice and give them a chance to respond. “In more egregious cases, ministry staff may issue orders... to cease diversion without first sending a notification. These orders are delivered by Provincial Compliance and Enforcement staff.”
As of late July, the government had issued seven orders for infractions of the Water Sustainability Act during this year’s drought, all of them on Vancouver Island.
Infractions are included in the province’s Natural Resources Compliance & Enforcement Database which has a few listings of alleged non-compliance that it describes as “Divert water from a stream or aquifer without lawful authority.”
Those cited since the start of the year include the Mark Anthony Group Inc. wine company, Baljit Sandhu in the Kootenay-Boundary region, Henry Reed Organic Produce in Gibsons, the Splash and Shine Car Wash on the South Coast, the Outback Nursery in Courtenay on Vancouver Island, Liefs Farm and Forest Corp., the Ponderosa Sod Farm in Courtenay, and Garden Works.
The Forests Ministry spokesperson said there is a lag between enforcement actions and their appearance in the database, so it doesn’t reflect the most recent actions.
The ministry knows that farmers and ranchers are among those facing immediate challenges during drought, he said. It continues to encourage anyone who is an unauthorized water user to submit a water licence application as soon as possible, he added, since unauthorized users risk being issued an order to stop using water.
In those cases, he said, “in the interim, there are steps people can pursue for securing water sources, such as trucking in water or working with their local government or a water purveyor to have water serviced to their land.”
While the Forests Ministry is enforcing the act and Ralston is defending cracking down on unlicensed groundwater users, Minister for Agriculture and Food Pam Alexis said during a recent news conference that it’s important representatives of agriculture are involved in the discussions about water.
“We need to be there to assure the agriculture community that they have the same access as they’ve had before,” she said on July 25. “It is complicated though, I can tell you it involves water licences and everything else.”
The issue involves other levels of government and there were many meetings happening on it, she said. “It is in process and in progress, the entire conversation about where we go from here.”
Jeremy Dunn, general manager at the BC Dairy industry group, said “licensing issues have been challenging. Members are working with government representatives on a regular basis to have those permits in place.”
Clear timelines were communicated and the watershed strategy is important work, he said, but it’s important to recognize that weather patterns have changed over the past decade. “We’ve got lots of water, but we’re not getting it at the right times and right places.”
The general manager of the BC Cattlemen's Association, Kevin Boon, said that the licensing issue is about how to allocate the water the province has right now, a regime that requires keeping enough to protect fish, not the looming problem of how to ensure more is available.
It’s a complex question, he said, but in the future the ability to store more water for use during dry periods will be key.