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Water in BC: Three Ways to Fix Outdated Law

Province's water is owned by the public, yet that public has no real voice in water governance.

Randy Christensen 13 Nov

Randy Christensen is a staff lawyer and water policy specialist at Ecojustice, Canada's leading environmental law charity. Randy is also the author of Waterproof, a series of national report cards on Canada's drinking water standards.

Water is unique. It has public, private, personal, health, environmental, spiritual, recreational and commercial dimensions. We need strong governance to balance all of these needs and ensure that water sources are clean and plentiful -- today and for future generations.

This, however, doesn't happen under B.C.'s century-old Water Act. And the proposed water sustainability act doesn't go far enough to ensure competing needs will be adequately managed.

B.C.'s current water licensing regime has created a two-tiered system where those with "rights" (approval to take water from a water body) have priority access to water sources. More often than not, these "rights"-holders are industrial and agricultural users, which results in forestry and gas companies having their needs met before other users and interests (read: people and nature) are considered.

How could this happen? The Water Act was developed at a time when the population was low and water was plentiful. Its primary objective was to provide water for industry and agriculture. But times -- and our values -- have changed. Climate change may well usher in changes in precipitation and temperature such that the future scarcely resembles the past.

We desperately need a new water law, one that protects the environment, prevents conflict over water, prioritizes the most socially-important uses of water, gives the public a say in decision making and ensures that water pricing for commercial use reflects the inherent value of fresh water to British Columbians.

Recommendation #1: Protect the public trust

For more than a century, B.C.'s water has been "vested" in the Crown and water users. But while the public owns B.C.'s water, it's not managed in the public interest under the current law. More disappointingly, that won't change dramatically under the proposed water sustainability act.

What's missing is something that other jurisdictions around the world are embracing: Recognition of the public trust doctrine, which explicitly declares that water is owned by the public and must be managed on the public's behalf. This means that private rights to use water are ultimately subordinate to the overall public interest.

Three years ago, Quebec declared that water is part of the "common heritage" of the province and created a duty on every person to protect it. The Northwest Territories recognized the "public trust" and the need to protect the environment (including water) for present and future generations.

California recognizes that the people have "a paramount interest" in water and that the state shall determine what water can be converted to other uses or controlled for public protection. Washington State recognizes that water belongs to the public and proposed water uses must be measured against the public interest.

In South Africa, the government is the "public trustee" of the nation's water resources and "must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner." And the examples go on and on.

This overwhelming trend makes B.C.'s refusal to recognize the public trust or require that water be managed in the public's interest all the more glaring The B.C. government hasn't explained for whom it believes it is managing the province's waters, but clearly, it's not the public.

Recommendation #2: Give the public a voice

Under the proposed water sustainability act, water is going to be managed, for the most part, without the public input.

On the positive side, the proposal seems to open the door to watershed management at the local level by creating the power to delegate decisions. But we still need a commitment that local residents will be able to participate in the process when decisions are delegated.

There are also no commitments to include the public in a number of key processes, such as reviewing existing licences, setting "water objectives" (which will guide a range of land-use decisions), establishing environmental flows, creating area-based regulations (which may tighten standards at a local level or address regional water scarcity), and designing water efficiency standards -- just to name a few.

And for the most important decisions, the public will be shut out completely. When someone applies for a licence to take water, there will be no requirement of public notice and no opportunity for the public to participate in the decision.

The regressive nature of the government's position on this issue cannot be overstated. Public participation in this type of decision-making has been a given for decades in environmental law.

Recommendation #3: Establish fair return on water

There was considerable hue and cry this summer when the public learned that Nestlé pays nothing for taking millions of litres of groundwater in B.C. The reason? The Water Act only regulates surface water.

Although one of the bright spots in the proposed water sustainability act is that groundwater users will finally be brought into the system, if water rates remain at their current level, Nestlé would still only pay around $265 for the 319.5 million litres it bottles at its Hope, B.C. plant each year. Meanwhile, a Lower Mainland family of three in would pay, on average, about $650 per year for the tiniest fraction of what Nestlé uses.

Running the administrative system for water use in B.C. is expensive, but user fees fail to even cover the cost of running the system, which means that the public is subsidizing the water use of major commercial interests. Water users also pay nothing for the environmental damage they cause.

Clearly, this is an opportunity to increase industrial water-use fees, which can be used to support water governance and environmental remediation instead of being absorbed into the province's general revenue.

There's still time for B.C. residents to weigh in on the proposed water sustainability act. The province has invited the public to comment and is accepting submissions until Nov. 15. Learn more about the issues here.

This is the second of four pieces in this series prepared by Ecojustice. Tomorrow: Water and the environment. Friday: What happens if B.C. is tapped dry?  [Tyee]

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