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The Big Water Deadline that Thousands Will Miss

What’s the plan for 15,000 businesses who will soon be violating BC’s groundwater laws?

Donna Forsyth, Ben Parfitt and Mike Wei 21 Feb 2022TheTyee.ca

Donna Forsyth is a former legislative adviser in B.C.’s Ministry of Environment and Climate Change Strategy and helped draft the Water Sustainability Act. Ben Parfitt is a researcher with the Canadian Centre for Policy Alternatives. Mike Wei is a professional engineer who oversaw B.C.’s groundwater program in the Environment Ministry from 2004 to 2018.

In just days from now, March 1 to be exact, the B.C. government is going to find itself in difficult straits.

That’s the day that all businesses in the province who rely on well water or groundwater to run their operations must, by law, have applied for a licence to continue to use that water. The trouble is, it looks likely that three quarters of all such businesses, nearly 15,000 in total, will not have applied for those licences, and therefore will be using water illegally at the end of this month.

Water is a vital natural resource, key to our very survival. It’s also essential to the operation of all manner of businesses, including everything from giant mining operations to mom-and-pop restaurants and local farms.

What will the government do, come March 1? Enforce a law that it passed with broad support from both the governing party and opposition, and effectively shut businesses down by turning off their taps? Or will it turn a blind eye and allow thousands of business owners to use their water illegally, while their counterparts who did the right thing and applied for their licences follow the law?

Either outcome guarantees trouble ahead and must be avoided. But before saying what needs to be done, we need to understand why we are in this mess.

Prior to the new Water Sustainability Act becoming law in 2016, two very different sets of realities prevailed. Users of surface water drawn from rivers, lakes and streams, were required to obtain licences to use that water, while users of “groundwater,” or water drawn from wells, were not.

From a water management perspective, this made no sense. Water drawn from a well is just as important as water drawn from a stream. Moreover, both water sources are often connected. Water that is below ground originates at the surface, and may emerge from the earth at some point as a spring that then forms a rivulet that becomes a creek that later feeds a river. The new law recognized that managing one but not the other was irresponsible and, because of climate change, increasingly dangerous.

After widespread public consultation, the government decided that a cornerstone of the Water Sustainability Act would be requiring groundwater users to apply for licences and pay nominal fees for the use of that water, just as their surface water counterparts had done for decades. (Unlike businesses that use groundwater, household groundwater users are exempt from the licensing requirement.)

Recognizing that this new licensing rule marked a major change for long-established businesses and that the government’s decades-long delay of groundwater licensing had prevented these businesses from obtaining water rights in the past, the province initially set a deadline of three years for applications to be filed. It allowed for uninterrupted use of the water during the transition period. But in the ensuing three years, the province did little to ensure that groundwater users knew about the new rules, let alone what the consequences could be if they failed to apply for licences and comply with the law.

There is no surer sign of how ineffective the government’s communication has been that after six years only roughly 5,000 of an estimated 20,000 businesses in the province have filed their groundwater applications.

This issue has largely gone under the radar of the wider public or media, however. Which means the thorny compliance and enforcement dilemma that the government will soon face has been ignored.

At the end of the day, responsibility for this problem rests with relevant deputy and assistant deputy ministers, who ultimately report to their ministers, who ultimately report to the premier, who gives the marching orders to the ministers.

But a look at the ministerial mandate letters, going back to 2016, tells a depressing tale. No person serving either as the minister of environment and climate change strategy or the minister of forests, lands, natural resource operations and rural development has been instructed to ensure that the primary objective of the act was achieved and that all businesses using groundwater applied for licences.

While the Environment Ministry is still in charge of water policy, responsibility for implementing the act rests with the Forests Ministry. That includes the critically important functions of informing groundwater users of the licensing requirements, receiving and evaluating licence applications and awarding actual licences. The ministry also collects water rental fees and does compliance and enforcement work.

With such a staggering number of businesses having not applied and the deadline now so close, it’s time to acknowledge the elephant in the room:

The government, and especially the forestry minister, have a big problem on their hands that they bear direct responsibility for. Many water users either didn’t know that the deadline loomed, or found the application process too cumbersome and time-consuming to complete, or determined that they wouldn’t comply with the law, either because they saw the law as unjust or because they believed there would be little if any consequences for failing to comply with it.

Making the government’s challenges even greater, since the act became law many new wells have been drilled. Drillers must register those wells. But non-domestic users must also apply for a licence to use the water. Because many such users have also not applied for licences, there is a strong possibility that the roster of illegal new groundwater users is rising.

All of this underscores the need for the provincial government to get serious about solving this problem once and for all. That means sending clear, unambiguous messages to all groundwater users and ensuring that those messages are widely and effectively disseminated. Messages like:

“You must obtain a licence to use the water for your business. If you don’t, and you continue using water, you will be breaking the law. We may be forced to shut down your use of that water, which means your business will be at risk, your property value will decline and you may forfeit your insurance. If you have trouble applying, we will be there to help you. If you lose your right of access to water that you had used historically, and belatedly apply after the deadline, you will not be allowed to use the water until your application is decided. That process may take years. And it may ultimately be because someone else applied before you, or because of new stream flow protections in the act, or because climate change has reduced the available water and increased the frequency of droughts.”

So here we are, faced with the need to extend the deadline or deal with what could be a very ugly fallout.

We don’t advocate for another time extension lightly. But clearly more time is needed. And even more clearly, decisive and meaningful action is needed. Without significant government commitment, extending the deadline will just delay the inevitable. What is needed is an effective, properly funded and transparent plan to get licence applications in as quickly as possible.

Hand-in-hand with that, a $30-millon or more increase in the budget over several years is needed to ensure that the backlog of licence applications is cleared. Years are lapsing between the time applications are filed and licences are granted. This must end. The increased funding is also critical to ensure that compliance and enforcement efforts are stepped up to ensure compliance with water laws, and to collect critically needed data to better understand the sustainable limits of the groundwater resource.

In the meantime, the government is in the process of delivering on a promised new watershed security strategy. It is asking British Columbians to propose actions to improve water management and promote “healthy watersheds” across the province.

“We need to ensure healthy watersheds for strong communities and ecological health,” George Heyman, minister of environment and climate change strategy, said upon releasing a new discussion paper on the proposed strategy.

As the horrific extreme weather events of the past year make clear, our watersheds are increasingly vulnerable to the impacts of climate change — whether those impacts are in the form of ferocious wildfires, crop destroying heat domes and related droughts, landslides or swollen rivers and floods.

We all have a stake in ensuring that our shared watersheds are better protected, and the government should be commended for recognizing this.

But no amount of localized planning for healthy, more resilient watersheds will be credible if we don’t have a firm handle on who is using our shared water resources and how much they are using. And that assessment absolutely has to include licensed groundwater users who are in compliance with provincial water laws.  [Tyee]

Read more: BC Politics, Environment

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