INNOVATION September-October 2015

f ea t ures

The critical environmental flow threshold required to prevent significant or irreversible harm to the aquatic ecosystem takes precedence over licensed water uses of the stream and any hydraulically connected aquifer. Water in excess of this minimum flow can be used by licensed water users according to their precedence in the FITFIR system. 3. Under a Fish Population Protection Order, the BC Minister of Environment may order any licensee, regardless of priority date, to temporarily reduce or stop water use in order to protect a population of fish. During the transitioning of existing groundwater users under the new legislation, applicants must provide evidence to establish their date of first use. This is particularly important in areas where an aquifer is known to be stressed and in instances where groundwater withdrawals are considered hydraulically connected to surface water sources that have existing water licences. Hydraulic Connectivity The WSA recognizes the hydraulic connection between groundwater and surface water, particularly in shallow sand and gravel aquifers where groundwater withdrawals directly affect availability of stream water for other users and for aquatic ecosystems. The WSA requires that statutory decision makers consider the environmental flow needs of a stream when reviewing an application for the use of water from an aquifer that is considered likely to be hydraulically connected to the stream. It also stipulates that decision makers establish precedence of water use between all hydraulically connected surface water and groundwater users. In contrast, under the existing Water Act , licensees holding a water right to a particular surface water source might face restrictions during times of water shortage according to their date of precedence, while more junior, unregulated users of hydraulically connected groundwater currently remain able to continue pumping without consequence, regardless of when they first installed their wells. In addition, in the past, when surface water licences have been denied to protect a stream considered to be fully allocated, instances have occurred where wells have then been installed adjacent to the stream as an alternate water source.

To encourage users to apply early, the BC government proposes to waive application fees during the first year of the transition period. However, all transitioning non- domestic groundwater users will remain subject to annual water rentals that are calculated from the date the WSA is brought into force. Under the WSA, each new groundwater user will have to demonstrate that sufficient water is available before being granted a licence. Generally, the statutory decision maker can require an applicant for a new groundwater licence—especially for larger proposed withdrawals; for example, greater than 10 m 3 /day—to submit a technical assessment report signed off by a registered professional (P.Eng.; P.Geo.) or limited licensee with competency in the field of hydrogeology to support their application. For an application to be successful, the technical assess- ment would need to demonstrate that sufficient water is available to meet the needs of the intended use, and that the requested water withdrawal will not cause undue harm to other water users or the environmental flow needs of hydraulically connected streams. First-in-Time, First-in-Right The WSA will maintain a central principle of the existing Water Act. The first-in-time; first-in-right (FITFIR) system dictates that water rights be administered according to the date of precedence of the licence. Under FITFIR, senior licensees—those with the earliest priority dates—enjoy precedence over junior licensees, regardless of the purpose for which the water is used. During times of water scarcity, senior licensees are entitled to use their full allocation of water, even if this means junior licensees cannot use any of their licensed allocation. However, the Water Sustainability Act recognizes three modifications to FITFIR: 1. During times of water scarcity, those who use stream water and groundwater for domestic purposes are allowed to divert water for “essential household uses” —established as 250 litres per day for each private dwelling. 2. If one or more streams in an area have fallen—or are at risk of falling—below their critical environmental flow thresholds, the BC Minister of Environment may make a temporary order declaring a significant water shortage.

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