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2014 Legislative Session: 2nd Session, 40th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE MARY POLAK

MINISTER OF ENVIRONMENT

BILL 18 – 2014

WATER SUSTAINABILITY ACT

Contents

Part 1 –

Interpretation and Application

Definitions

Water use purposes

Water Protection Act

Geothermal resources

Part 2 – Licensing, Diversion and Use of Water

Vesting water in government

Use of water

Rights acquired under authorizations

Rights and permissions subject to Act

Licences

Use approvals

Changes in and about a stream

Application and decision maker initiative procedures

Objections to applications and decision maker initiatives

Powers respecting applications and decision maker initiatives

Environmental flow needs

Mitigation measures

Sensitive streams mitigation

Quick licensing procedures

Licences for power purposes

Purpose, precedence and appurtenancy

When final licence may be issued

Precedence of rights

Permits over Crown land

Transfer of authorization, change approval or permit

Amendment or substitution of authorization, change approval or permit

Transfer of appurtenancy

Apportionment of rights under licences

Rights and responsibilities of applicants and holders

Beneficial use

Abandonment of rights under an authorization

Licensee's right to expropriate land

Licensee's rights when owner refuses compensation

Owner to give notice before interfering with works

Entry on land in case of urgency

Joint construction or use of works may be ordered

Power to authorize extension of rights under licence

Appointment of water bailiffs

Water reservations

Treaty first nation water reservations

Nis g a'a water reservation

Issue of new licence

Part 3 – Protecting Water Resources

Division 1 – Water Objectives

Water objectives

Division 2 – Stream Protection

Definitions

No new dams on protected rivers

Prohibition on introducing foreign matter into stream

Remediation orders in relation to foreign matter in stream

Division 3 – Wells and Groundwater Protection

Definitions

Restrictions on constructing or decommissioning wells and related activities

Restrictions respecting well pumps and flow tests

Proof of qualifications and insurance

Controlling artesian flow during construction

Controlling flowing artesian well

Well caps or well covers

Well identification

Decommissioning or deactivating well

Well reports

Well operation

Prohibition on introducing foreign matter into well

Remediation orders in relation to foreign matter in well

Wells on Crown land

Drilling authorizations

Water analyses for new or altered wells

Division 4 – Water Sustainability Plans

Definitions

Order designating area for planning process

Order establishing plan development process

Order limiting planning process or recommendations

Content of plan terms of reference

Other planning processes

Information to be considered

Notice to affected persons

Powers for development of plan

Plan content

Submission of proposed plan to minister

Acceptance of plan

Plan regulations – effect on statutory decisions

Plan regulations – effect on approval by approving officer

Plan regulations – restriction or prohibition on use of land or resources

Plan regulations – reduction of water rights

Plan regulations – directions regarding works or operations

Plan regulations – relationship with other planning processes

Plan regulations – dedicated agricultural water

Plan regulations – restrictions on groundwater activities

General provisions in relation to plan regulations

Review and amendment of plans

Division 5 – Temporary Protection Orders

Declarations of significant water shortage

Critical environmental flow protection orders

Fish population protection orders

Part 4 – Enforcement

Division 1 – Powers

Right of access to land and premises by authorized persons

Entry warrant

Power of comptroller to authorize actions

Power to amend or revoke order

Powers of engineers and officers

Suspension and cancellation of rights and permissions

Inquiry powers

Maintenance of order at hearings

Contempt proceeding for uncooperative person

Recovery of amounts owing for work performed

Division 2 – Administrative Penalties

Administrative monetary penalties

Notice of intent to impose administrative monetary penalty

Recovery of penalties

Compliance agreements

Effect of imposing administrative monetary penalty

Effect of charging offence

Division 3 – Appeals

Appeals to appeal board

Division 4 – Offences

General offences

High penalty offences

Penalty for monetary benefit

Creative sentencing

Breach of creative sentencing order

Liability of individuals for offences committed by a corporation

Time limit for prosecuting offence

Other liabilities remain

Part 5 – General

Administration

Advisory boards

Records and reporting

Delivery and publication of documents and information

Fees, rentals and charges

Protection of officials

Restriction on proceedings respecting decisions under Act

No compensation

Liability of owner for damage remains

Authorization or permit as evidence

Part 6 – Regulations

General regulation-making powers

Division 2 – Lieutenant Governor in Council Regulations

Fees, rentals and charges

Regulations respecting administration and governance

Regulations respecting licensing, diversion and use of water and related matters

Regulations respecting sensitive streams

Regulations respecting streams and stream protection

Regulations respecting groundwater and groundwater works

Regulations respecting measuring, testing and reporting

Regulations respecting water sustainability plans

Regulations respecting administrative penalties

Regulations respecting compensation

Regulations closing or restricting access to water source

Regulations requiring authorizations for domestic use of groundwater

Division 3 – Minister's Regulations

Minister's regulations restricting groundwater activities

Transition – power purposes

Transition – water use purposes

Transition – groundwater licensing

Transition –

section 39 water reservations

Transition – water sustainability plans

Part 8 – Consequential and Related Amendments

143 – 218

Consequential and related amendments

Commencement

Schedule

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

This Bill repeals most of the Water Act and enacts the Water Sustainability Act in substitution. The Water Sustainability Act modernizes the language of the Water Act and does the following:

re-enacts the regulatory scheme for the diversion and use of stream water and applies that scheme to both stream water and groundwater;

authorizes the establishment of water objectives and requirements that water objectives be considered in decision making under this and other enactments;

mandates the consideration of the environmental flow needs of a stream in licensing decisions;

moves to this Act provisions from the Fish Protection Act respecting sensitive streams, bank-to-bank dams and fish population protection orders as well as provisions respecting the protection of streams;

provides new powers to be applied when streams are at risk of falling or have fallen below their critical environmental flow thresholds to modify the existing precedence of water use for the purpose of protecting the aquatic ecosystem of streams and aquifers and essential domestic uses;

renames water management plans as water sustainability plans and provides new regulatory powers that can be exercised on the recommendation of a water sustainability plan, including regulations restricting the authority of approving officers, restricting the use of land or resources, reducing water rights, imposing requirements in respect of works and providing for dedicated agricultural water that can only be used for prescribed land and purposes;

authorizes an administrative monetary penalty scheme;

authorizes regulations providing powers and duties of officials under this Act to officials under other enactments;

repeals most of the Water Act , leaving only provisions related to water users' communities, and renames that Act as the Water Users' Communities Act ;

makes consequential amendments to other Acts.

Part 1 –

Interpretation and Application

Definitions

(1) In this Act:

"agricultural land reserve" has the same meaning as in

section 1 (1) [definitions] of the Agricultural Land Commission Act ;

"alter" , in relation to a well, means

(

a) undertake a structural change to a well related to the well's depth, diameter or screen assembly,

(

b) install a surface seal in a well that does not have one, or

(

c) hydrofracture a well to enhance groundwater supply from the well;

"appeal board" means the Environmental Appeal Board continued under

section 93 of the Environmental Management Act ;

"applicant" means a person applying for

(

a) an authorization, an amendment to an authorization, a transfer of the appurtenancy of an authorization or an apportionment of the rights under a licence,

(

b) a change approval, an amendment to a change approval or the transfer of the appurtenancy of a change approval,

(

c) a drilling authorization, an amendment to a drilling authorization or the transfer of the appurtenancy of a drilling authorization,

(

d) the transfer of an application for an authorization, or

(

e) the abandonment of all or some of the person's rights under an authorization;

"aquatic ecosystem" , in relation to a stream, means the natural environment of the stream, including

(

a) the stream channel, the vegetation in the stream and the water in the stream, and

(

b) fish, wildlife and other living organisms insofar as their life processes

(

i) are carried out in the stream, and

(ii) depend on the natural environment of the stream;

"aquifer" means

(

a) a geological formation,

(

b) a group of geological formations, or

(

c) a part of one or more geological formations

that is groundwater bearing and capable of storing, transmitting and yielding groundwater;

"authorization" , except in references to drilling authorization, means a licence or use approval;

"beneficial use" ,

(

a) in relation to a use of water under an authorization, means using the water

(

i) as efficiently as practicable,

(ii) in accordance with any applicable regulations, and

(iii) for the water use purposes, in the manner and in the period or at the times, authorized by the authorization, and

(

b) in relation to a use of water other than under an authorization, means using the water for a water use purpose

(

i) as efficiently as practicable,

(ii) in accordance with any applicable regulations, and

(iii) in accordance with the provisions of this Act or the regulations that apply in relation to the use of water without an authorization;

"beneficial use declaration" means a declaration described in

section 30 (2) [beneficial use] ;

"change approval" means an approval, to make changes in and about a stream, issued under

section 11 (1) [changes in and about a stream] or a similar approval issued under a former Act;

"changes in and about a stream" means

(

a) any modification to the nature of a stream, including any modification to the land, vegetation and natural environment of a stream or the flow of water in a stream, or

(

b) any activity or construction within a stream channel that has or may have an impact on a stream or a stream channel;

"compliance agreement" means an agreement described in

section 102 (1), (2) and (3) [compliance agreements] ;

"comptroller" means the person designated as the Comptroller of Water Rights under

section 114 (1) [administration] ;

"conditional licence" means a licence, issued under this or a former Act, that authorizes the licensee to construct works, or divert and use water, before the issue of a final licence;

"construct" , in relation to a well, means

(

a) drill the well,

(

b) alter the well,

(

c) develop the well,

(

d) repair or maintain the well,

(

e) inject water or any other substance into the well, or

(

f) construct, install, replace, repair, alter or remove works that relate to groundwater or the well;

"critical environmental flow threshold" , in relation to the flow of water in a stream, means the volume of water flow below which significant or irreversible harm to the aquatic ecosystem of the stream is likely to occur;

"Crown land" means land, whether or not it is covered by water, that is vested in the government;

"date of first use" , in relation to a use of groundwater from an aquifer for a water use purpose, means the date from which the comptroller, a water manager or an engineer is satisfied in accordance with the regulations that groundwater from the aquifer has been used

(

a) regularly and beneficially on an ongoing basis,

(

b) for the water use purpose, and

(

c) on land, or for a mine or undertaking, to which, if the water use purpose were licensed, the licence would be appurtenant;

"deactivate" , in relation to works, means take the works out of service temporarily;

"debris" means

(

a) clay, silt, rock or similar material, or

(

b) any material, natural or otherwise, from construction or demolition;

"decision maker" , in relation to a decision under this Act, means

(

a) the person authorized to make the decision, and

(

b) if more than one person is authorized to make that decision, the person who is making or has made that decision,

whether on application or on the person's own initiative;

"decommission" , in relation to works, means take the works out of service permanently;

"dedicated agricultural water" means water that is dedicated under

section 82 (1) [plan regulations – dedicated agricultural water] for qualifying agricultural use on qualifying agricultural land;

"development district" has the same meaning as "district" in

section 58 [definitions] of the Drainage, Ditch and Dike Act ;

"divert" means,

(

a) in relation to water in a stream, cause the water to leave the stream channel, whether to cause the water to flow into another stream channel or a reservoir or otherwise, and

(

b) in relation to water in an aquifer, cause the water to leave the aquifer,

and includes extract or impound water from a stream or an aquifer;

"drill" , in relation to a well, means make the well by drilling, boring, driving, jetting or excavating;

"drilling authorization" means an authorization issued under

section 62 [drilling authorizations] ;

"drinking water officer" has the same meaning as in

section 1 [definitions] of the Drinking Water Protection Act ;

"engineer" , except in the definition of "professional" in

section 48 [definitions for Division 3 of

Part 3] , means a person designated as an engineer under

section 114 (5) [administration] ;

"environmental flow needs" , in relation to a stream, means the volume and timing of water flow required for the proper functioning of the aquatic ecosystem of the stream;

"farm use" , subject to the regulations, has the same meaning as in

section 1 (1) [definitions] of the Agricultural Land Commission Act ;

"final licence" means a licence, issued under this or a former Act, that authorizes the diversion and use of water but does not authorize the construction of works;

"former Act" means any Act containing provisions respecting the diversion and use of water that came into force before the date this definition comes into force;

"geotechnical well" means a well, other than a monitoring well or a well that is used to divert groundwater, that is drilled for the purpose of obtaining geotechnical, hydrological, hydrochemical or stratigraphical information;

"government corporation" has the same meaning as in

section 1 [definitions] of the Financial Administration Act ;

"government water record" means information, respecting the quality or quantity of water in a stream or aquifer, a person's use of water from a stream or aquifer, or works, that is in the records of

(

a) the minister,

(

b) the provincial health officer appointed under the Public Health Act ,

(

c) a regional health board designated under the Health Authorities Act ,

(

d) a prescribed minister, or

(

e) a prescribed government corporation;

"groundwater" means water naturally occurring below the surface of the ground;

"improvement district" means, as the context requires,

(

a) the corporation into which the residents of an area are incorporated as an improvement district under the Local Government Act or a former Act, or

(

b) the geographic area of the improvement district corporation;

"licence" means a conditional licence or a final licence;

"local trust committee" has the same meaning as in

section 1 [definitions] of the Islands Trust Act ;

"mine" includes a placer or mineral claim or land held or occupied for the purpose of winning a mineral from the claim or land, whether held in fee simple or by virtue of a record, registration, lease or licence;

"mineral" means

(

a) an ore of metal or a natural substance capable of being mined

(

i) that is in the place or position in which the ore or substance was originally formed or deposited or is in talus rock, and includes

(

A) rock and other materials from mine tailings, dumps and previously mined deposits of minerals, and

(

B) dimension stone, or

(ii) that is either loose, or found in fragmentary or broken rock that is not talus rock and occurs in loose earth, gravel and sand, and includes rock or other materials from placer mine tailings, dumps and previously mined deposits of placer minerals, or

(

b) coal,

but does not include petroleum or natural gas;

"monitoring well" means a well that

(

a) is used or intended to be used for the purpose of monitoring, observing, testing, measuring or assessing

(

i) the level, quantity or quality of groundwater, or

(ii) subsurface conditions, including geophysical conditions, and

(

b) is not used or intended to be used for the purpose of

(

i) exploring for or diverting groundwater for a water use purpose, or

(ii) injecting water or any other substance into groundwater on an ongoing basis;

"natural boundary" has the same meaning as in

section 1 [definitions] of the Land Act ;

"Nis g a'a Final Agreement" has the same meaning as in

section 1 [definition] of the Nis g a'a Final Agreement Act ;

"officer" means

(

a) a person designated as an officer under

section 114 (6) [administration] of this Act, or

(

b) a conservation officer as defined in

section 1 (1) [definitions] of the Environmental Management Act ;

"order" includes a decision or direction, whether or not the decision or direction is given in writing, but does not include a request;

"owner" , in relation to land, a mine or an undertaking in British Columbia, means a person who

(

a) is entitled to possession of the land, mine or undertaking, or

(

b) has a substantial interest in the land, mine or undertaking;

"permit" means a permit issued under

section 24 [permits over Crown land] or an authority, issued under a former Act, to flood, or to construct, maintain or operate works on, Crown land;

"personal information" has the same meaning as in

Schedule 1 of the Freedom of Information and Protection of Privacy Act ;

"plan area" means the area designated under

section 65 [order designating area for planning process] for the development of a water sustainability plan;

"precedence" , in relation to rights to divert and use water, means the precedence of those rights in accordance with

section 22 [precedence of rights] ;

"private dwelling" means a structure, or a part of a structure, that is occupied as a private residence;

"production casing" , in relation to a well, means the innermost pipe, tubing or other material installed in the well to support the sides of the well, but does not include a well liner or surface casing;

"prospecting for a mineral" means searching for a mineral

(

a) using hand-held tools in a manner that does not involve mechanical disturbance of the surface, or

(

b) in a prescribed manner;

"protected fish population" , in relation to a sensitive stream, means the population of fish in relation to which the stream has been designated as a sensitive stream;

"public officer" includes a member of the executive council, a public service employee and any other person, other than a judicial officer, who, under an enactment, has authority to make a decision affecting the rights of another person;

"public personal information" means any of the following:

(

a) the name, address, telephone number and other personal information of a subscriber that appears in a telephone directory, in either printed or electronic form, or is available through a directory assistance service, if

(

i) the directory or the directory assistance service is available to the public, and

(ii) the subscriber is permitted to refuse to have his or her personal information included in the directory or made available by the directory assistance service;

(

b) personal information that appears in a professional or business directory, listing or notice that is available to the public, if the individual is permitted to refuse to have his or her personal information included in the directory, listing or notice;

(

d) personal information that appears in a printed or electronic publication that is available to the public, including a magazine, book or newspaper in printed or electronic form, unless

(

i) a court has prohibited the publication or continued publication of the personal information by the source, or

(ii) the Information and Privacy Commissioner has made an order stating that the information was published contrary to the Personal Information Protection Act ;

"public service employee" has the same meaning as "employee" in

section 1 [definitions] of the Public Service Act ;

"qualifying agricultural land" means all or the part of a plan area, to which a regulation under

section 82 (1) [plan regulations – dedicated agricultural water] applies, that is

(

a) in an agricultural land reserve, or

(

b) zoned to permit the use of the land for farm use under

(

i) a municipal or regional district bylaw under Division 7 [Zoning and Other Development Regulation] of

Part 26 [Planning and Land Use Management] of the Local Government Act or

Part XXVII [Planning and Development] of the Vancouver Charter , or

(ii) a bylaw made by a local trust committee under

section 29 [land use and subdivision regulation] of the Islands Trust Act ;

"qualifying agricultural use" means the use of water for

(

a) an irrigation purpose,

(

b) a prescribed industrial purpose, or

(

c) a storage purpose associated with a purpose described in paragraph (

a) or (b);

"recorded water" means water the right to the diversion or use of which is held under an authorization or another enactment;

"registrar" , in relation to land, means the registrar appointed under the Land Title Act for the land title district in which the land is located;

"sensitive stream" means a stream designated by regulation as a sensitive stream;

"stream" means

(

a) a natural watercourse, including a natural glacier course, or a natural body of water, whether or not the stream channel of the stream has been modified, or

(

b) a natural source of water supply,

including, without limitation, a lake, pond, river, creek, spring, ravine, gulch, wetland or glacier, whether or not usually containing water, including ice, but does not include an aquifer;

"stream channel" , in relation to a stream, means the bed of the stream and the banks of the stream, both above and below the natural boundary and whether or not the channel has been modified, and includes side channels of the stream;

"take action" ,

(

a) in relation to water, includes allow, start, stop, restrict or prohibit the diversion, use, including storage, carriage or distribution of the water, and

(

b) in relation to works, includes allow, start, stop, restrict, shut or prohibit their construction or operation;

"undertaking" means a project, including all land and other property acquired or to be acquired in connection with the project, and the general scheme for the acquisition, maintenance and operation of the works for the project, for

(

a) the diversion, carriage, use and sale of water, or

(

b) the sale of power produced from water,

the water use purpose of which water is referred to in an application or authorization;

"unrecorded water" means water in a stream or an aquifer that is not recorded water;

"use approval" means an approval issued under

section 10 [use approvals] or written approval, other than a licence, to divert and use water, given under a former Act;

"water district" means a water district prescribed by regulation;

"water manager" means a person designated under

section 114 (3) [administration] as a water manager;

"water objective" means an objective established by regulation under

section 43 [water objectives] ;

"water source well" has the same meaning as in

section 1 [definitions] of the Petroleum and Natural Gas Act ;

"water sustainability plan" means a water sustainability plan accepted under

section 75 (1) or (3) [acceptance of plan] ;

"water use purpose" means a purpose defined in

section 2 [water use purposes] or a subset of a purpose defined in

section 2;

"water users' community" has the same meaning as in

section 1 (1) [definitions] of the Water Users' Communities Act ;

"well" means an artificial opening in the ground made for the purpose of

(

a) exploring for or diverting groundwater,

(

b) testing or measuring groundwater,

(

c) recharging or dewatering an aquifer,

(

d) groundwater remediation,

(

e) use as a monitoring well,

(

f) use as a closed-loop geoexchange well, or

(

g) use as a geotechnical well,

but does not include

(

h) an artificial opening, other than a water source well, to which the Geothermal Resources Act or the Oil and Gas Activities Act applies, or

(

i) an artificial opening of a prescribed class, made for a prescribed purpose or in prescribed circumstances;

"well cap" means a secure cap or lid that prevents vermin, contaminants, debris or other foreign objects or substances from entering the interior of the production casing, and includes a sanitary well seal;

"well cover" means a secure cover, lid or structure that prevents vermin, contaminants, debris or other foreign objects or substances from entering the well;

"well pump" means a pump that

(

a) is at or in a well, and

(

b) is used or intended to be used for the purposes of

(

i) diverting groundwater from a well,

(ii) adding water to a well to recharge the well or an aquifer, or

(iii) dewatering an aquifer;

"wellhead" means

(

a) the physical structure, facility, well cover, adapter or device

(

i) that is at the top of, or at the side and near the top of, a well, and

(ii) from or through which groundwater flows or is pumped from the well, and

(

b) any casing, well cap, valve, grout, liner, seal, vent or drain relating to the well,

but does not include a well pump or a pump house;

"wetland" means a swamp, marsh, fen or prescribed feature;

"wildlife" means wildlife as defined in paragraph (

a) of the definition of "wildlife" in

section 1 (1) [definitions and

interpretation] of the Wildlife Act ;

"works" means

(

a) anything that can be or is used for

(

i) diverting, storing, measuring, conserving, conveying, retarding the flow of, confining or using water,

(ii) producing, measuring, transmitting or using electricity,

(iii) collecting, conveying or disposing of sewage or garbage, or

(iv) preventing or extinguishing fires,

(

b) booms and piles placed in a stream,

(

c) obstructions placed in or removed from streams or the banks or beds of streams,

(

d) changes in and about a stream,

(

e) access roads to any of the works referred to in paragraphs (

a) to (

d) or (f) (i), and

(

f) wells and works related to wells, including

(

i) wellheads,

(ii) anything that can be or is used for injecting or otherwise adding water or any other substance to a well,

(iii) anything that can be or is used for constructing, deactivating or decommissioning a well,

(iv) anything that can be or is used for exploring for, testing, diverting or monitoring groundwater,

(

v) anything that can be or is used for disinfecting a well,

(vi) an injection system attached to a work that is used for conveying, from a well, groundwater that will be used for applying fertilizers or pesticides, and

(vii) anything that can be or is used in relation to a monitoring well or a well made for the purpose of groundwater remediation.

(2) A reference in this Act to regulations or to anything as prescribed is a reference to regulations of the Lieutenant Governor in Council unless specifically provided otherwise in the applicable provision.

(3) An authorization, change approval, permit or drilling authorization issued in substitution for

(

a) an original authorization, change approval, permit or drilling authorization, or

(

b) an original authorization, change approval, permit or drilling authorization as modified,

is conclusively deemed to be the original authorization, change approval, permit or drilling authorization as modified.

(4) A reference in this Act

(

a) to an aquifer includes part of an aquifer, and

(

b) to a stream includes part of a stream.

Water use purposes

2 The following defined purposes are the purposes in respect of which water may be diverted from a stream or an aquifer:

"conservation purpose" means the diversion, retention or use of water for the purpose of conserving fish or wildlife and includes the construction of works for that purpose;

"domestic purpose" means the use of water for household purposes by the occupants of, subject to the regulations, one or more private dwellings, other than multi-family apartment buildings, including, without limitation, hotels and strata titled or cooperative buildings, located on a single parcel, including, without limitation, the following uses:

(

a) drinking water, food preparation and sanitation;

(

b) fire prevention;

(

c) providing water to animals or poultry kept

(

i) for household use, or

(ii) as pets;

(

d) irrigation of a garden not exceeding 1 000 m 2 that is adjoining and occupied with a dwelling;

"industrial purpose" means a use of water designated by regulation as a use for an industrial purpose, but does not include the use of water for any other water use purpose;

"irrigation purpose" means the use of water on cultivated land or hay meadows to nourish crops or on pasture to nourish forage;

"land improvement purpose" means the diversion or impounding of water to

(

a) protect land,

(

b) facilitate the development of a recreational facility or of a park or other protected area,

(

c) facilitate the reclamation, drainage or other improvement of land, or

(

d) carry out a project of a nature similar to a project described in paragraph (

b) or (c);

"mineralized water purpose" means

(

a) the bottling and commercial distribution of water so impregnated with mineral salts, elements or gases as to potentially give the water therapeutic properties, or

(

b) the use in commercial bathing pools of water that is

(

i) impregnated with mineral salts, elements or gases, or

(ii) naturally at a temperature suitable for that use;

"mining purpose" means

(

a) the use of water, including the use of water under pressure, for recovering minerals from the ground or from ore, or

(

b) the use of water under pressure to move earth, sand, gravel or rock;

"oil and gas purpose" means the use of water in the development of petroleum or natural gas wells or the production of petroleum or natural gas resources;

"power purpose" means the use of water in the production of electricity or other power;

"storage purpose" means the impounding and retention of water for subsequent use for a water use purpose;

"waterworks purpose" means the carriage or supply of water by one person or entity for the use in British Columbia of another person or entity.

Water Protection Act

3 Nothing in this Act authorizes a person to do anything prohibited by the Water Protection Act .

Geothermal resources

4 This Act does not apply to geothermal resources as defined in

section 1 (1) [definitions] of the Geothermal Resources Act .

Part 2 – Licensing, Diversion and Use of Water

Vesting water in government

(1) The property in and the right to the use and flow of all the water at any time in a stream in British Columbia are for all purposes vested in the government, except insofar as private rights have been established under authorizations.

(2) The property in and the right to the use, percolation and flow of groundwater, wherever groundwater is found in British Columbia, are for all purposes vested in the government and are conclusively deemed to have always been vested in the government except insofar as private rights have been

(

a) established under authorizations, or

(

b) deemed under

section 22 (8) [precedence of rights] .

(3) No right to divert or use water may be acquired by prescription.

Use of water

(1) Subject to this section, a person must not divert water from a stream or an aquifer, or use water diverted from a stream or an aquifer by the person, unless

(

a) the person holds an authorization authorizing the diversion or use, or

(

b) the diversion or use is authorized under the regulations.

(2) A person is not prohibited from

(

a) diverting or storing and beneficially using water from a stream or an aquifer for extinguishing a fire, but if flow is diverted from a stream channel for that use, the flow must promptly be restored to that stream channel when the fire is extinguished, or

(

b) diverting water to test the quality or quantity of water or to conduct a flow test.

(3) Unless regulations under

section 135 (5) [regulations closing or restricting access to water source] provide otherwise , a person is not prohibited from diverting, in accordance with any applicable regulations, and beneficially using unrecorded water

(

a) from a stream for domestic purpose or for prospecting for a mineral, or

(

b) from an aquifer for prospecting for a mineral.

(4) A person may, in accordance with the regulations, divert, and beneficially use, including store, groundwater from an aquifer for domestic purpose unless

(

a) provided otherwise by regulations under

section 135 (6) , or

(

b) this subsection does not apply to the applicable aquifer by regulations under

section 136 [regulations requiring authorizations for domestic use of groundwater] .

Rights acquired under authorizations

(1) A licence entitles its holder to do the following in a manner provided in the licence:

(

a) divert and beneficially use the quantity of water specified in the licence;

(

b) construct, maintain and operate the works authorized by the licence and related works necessarily required for the proper diversion or use of the water or the power produced from the water;

(

c) make changes in and about a stream necessary for the construction, maintenance or operation of the works referred to in paragraph (

b) or to otherwise facilitate the authorized diversion;

(

d) construct fences, screens and fish or game guards across streams for the purpose of conserving fish or wildlife.

(2) A use approval entitles its holder to do anything described in subsection (1) for the period or at the times and in the manner specified in the use approval.

Rights and permissions subject to Act

Licences

9 On application in accordance with

section 12 [application and decision maker initiative procedures] , the comptroller or a water manager may issue a licence, authorizing the diversion or use of water for one or more water use purposes, to any of the following:

(

a) an owner of land or a mine;

(

b) a holder of a certificate of public convenience and necessity issued under the Public Utilities Act , R.S.B.C. 1960, c. 323, the Utilities Commission Act or the Water Utility Act ;

(

c) a municipality, regional district, improvement district, development district or water users' community;

(

d) the government of British Columbia or Canada;

(

e) a commission, board or person having charge of the administration of Crown land or a mine or an undertaking on Crown land, administered by British Columbia or Canada or controlled by a ministry, department, branch or other subdivision of the government of British Columbia or Canada;

(

f) the Greater Vancouver Water District or any other water district incorporated by

an Act;

(

g) the British Columbia Hydro and Power Authority.

Use approvals

(1) On application in accordance with

section 12 [application and decision maker initiative procedures] , the comptroller or a water manager may issue an approval for one or more water use purposes authorizing any of the following to divert or use water from a stream or an aquifer for a term not exceeding 24 months:

(

a) the government of British Columbia or Canada;

(

b) another person.

(2) A use approval under this

section must not authorize

(

a) the diversion or use of more than the prescribed quantity of water,

(

b) the diversion or use of water for a prescribed water use purpose, or

(

c) the construction, maintenance or use of prescribed works.

(3) For certainty, a use approval may be issued authorizing a person to divert water from a source of water supply for a water use purpose in relation to an appurtenancy, if any, specified in the use approval, whether or not a use approval was previously issued authorizing the person to divert water from the same water source supply for the same water use purpose in relation to the same appurtenancy.

Changes in and about a stream

(1) On application in accordance with

section 12 , the comptroller, a water manager or an engineer may issue an approval authorizing any of the following persons to make changes in and about a stream:

(

a) the government of British Columbia or Canada;

(

b) another person.

(2) Changes in and about a stream may only be made in accordance with

(

b) the regulations,

(

d) an order.

Application and decision maker initiative procedures

(1) An applicant may apply to a decision maker by

(

a) complying with any requirements prescribed in respect of the application, and

(

b) within the period, if any, prescribed by regulation,

(

i) complying with the decision maker's directions under

section 13 (1) or (9), if any,

(ii) paying the prescribed fees,

(iii) providing in the form and manner specified by the decision maker any plans, specifications, reports of assessments and other information the decision maker requests, which information may include, but is not limited to, public personal information that is relevant to the application, respecting

(

A) the applicant,

(

B) existing water users, riparian owners, other applicants and other authorization holders, whose rights are likely to be detrimentally affected if the application is granted, and

(

C) land owners whose land is likely to be physically affected if the application is granted, and

(iv) providing in the form and manner specified by the decision maker the consents that are necessary for the decision maker to verify personal information relating to the applicant that is provided under subparagraph (iii).

(2) For the purposes of subsection (1) (b) (iii), the decision maker may require that a specified assessment be performed, and a report of the assessment be prepared, by a person with the qualifications specified by the decision maker.

(3) For the purpose of making a decision on an application, the decision maker may

(

a) collect contact information from the applicant, and collect public personal information and government water records, related to a person referred to in subsection (1) (b) (iii), and

(

b) verify information collected under this subsection or provided under subsection (1) or (2), including, in relation to

(

i) personal information of the applicant, by consent or by reference to public personal information or government water records, and

(ii) personal information of a person referred to in subsection (1) (b) (iii) (

B) or (C), by direct contact with the person or by reference to public personal information or government water records.

(4) If works are required to be constructed in order for the applicant to obtain information required for the purposes of subsection (1) (b) (iii), the applicant may construct, in accordance with any applicable regulations, the works for that purpose, subject to any applicable requirement for a drilling authorization in relation to the works.

(5) The decision maker may

(

a) shorten or extend the period prescribed for the purposes of subsection (1) (b), or

(

b) if no period has been prescribed, set a period for compliance with a direction or request, if any, referred to in subsection (1) (b).

(6) A decision maker may exercise the powers under this

section in relation to an initiative of the decision maker under

section 21 [when final licence may be issued] , 26 [amendment or substitution of authorization, change approval or permit] , 28 [apportionment of rights under licences] or 62 [drilling authorizations] .

Objections to applications and decision maker initiatives

(1) A decision maker must direct that an applicant for a licence, use approval or change approval, or for an amendment to any of them involving a change of works, give notice of the application in accordance with

section 117 [delivery and publication of documents and information] or the regulations to

(

a) any of the following whose rights the decision maker considers are likely to be detrimentally affected if the application is granted:

(

i) an authorization holder;

(ii) a change approval holder;

(iii) an applicant for an authorization or change approval;

(iv) a riparian owner, and

(

b) a land owner whose land is likely to be physically affected if the application is granted.

(2) A notice under subsection (1) must include the name of the decision maker and the address to which objections to the application may be delivered.

(3) A person who is given notice under subsection (1) may deliver to the decision maker identified in the notice within the prescribed period any objection the person has to the granting of the application.

(4) If an objection is delivered in accordance with subsection (3), the decision maker must decide whether or not the objection warrants a hearing.

(5) If the decision maker decides to hold a hearing, the decision maker must

(

a) give notice to the applicant and to any person who delivered an objection under subsection (3) of

(

i) the date, time and location of the hearing, or

(ii) the date by which written submissions must be received by the decision maker, and

(

b) give the applicant and the objectors the opportunity to be heard in the hearing.

(6) The decision maker may hold a hearing in writing, electronically or in person or by any combination of written, electronic or in-person hearings and, if the hearing is held orally, either in person or electronically, sections 95 [inquiry powers] , 96 [maintenance of order at hearings] and 97 [contempt proceeding for uncooperative person] apply.

(7) The decision maker must give notice of the decision maker's decision on an application to any person who delivered under subsection (3) an objection in relation to the application.

(8) For certainty, a decision maker need not give directions under subsection (1) if the decision maker is satisfied that, as a result of the decision maker's decision on an application referred to in that subsection,

(

a) no authorization holder's rights, no change approval holder's rights and no riparian owner's rights will be detrimentally affected,

(

b) no person's land will be physically affected, and

(

c) no person's application for an authorization or a change approval will be detrimentally affected.

(9) A decision maker may direct that any applicant, and in the case of a transfer under

section 27 [transfer of appurtenancy] , the transferee, give notice in accordance with

section 117 or the regulations,

(

a) in the case of an apportionment under

section 28 [apportionment of rights under licences] , to the owner of each parcel affected by the apportionment,

(

b) in the case of an abandonment of rights under

section 31 [abandonment of rights under an authorization] , to anyone who is jointly using works with the applicant and any person whose land is physically affected by the existing works, and

(

c) in any case, to any person whose input into the decision the decision maker considers advisable.

(10) Subsections (2) to (7) apply if notice is given under subsection (9) (

a) or (b).

(11) Despite subsection (10), if a decision maker gives, or requires to be given, notice under subsection (9), the decision maker may specify how, and the date by which, a person given notice may object to the application.

(12) A person given notice under subsection (9) (

c) is not entitled to be heard in a hearing under this section.

(13) If a decision maker initiates the issuance of a final licence under

section 21 [when final licence may be issued] , a 30-year review under

section 23, an amendment under

section 26 [amendment or substitution of authorization, change approval or permit] or an apportionment under

section 28, subsections (9) to (12) of this

section apply unless the amendment requires a change of works, in which case subsections (1) to (8) and (14) of this

section apply.

(14) Instead of requiring the applicant or a transferee to give a notice required under subsection (1) or (9), the decision maker may give the notice.

Powers respecting applications and decision maker initiatives

(1) Whether or not notice is given, or objections are delivered, under

section 13 in relation to an application, the decision maker may, in accordance with this Act and the regulations,

(

a) refuse the application,

(

b) amend the application in any respect,

(

c) grant all or part of the application,

(

d) order the applicant to provide in the form and manner specified by the decision maker plans, specifications, reports of assessments or other information, which information may include, but is not limited to, public personal information that is relevant to the application, respecting

(

i) the applicant,

(ii) existing water users, riparian owners, other applicants and other authorization holders, whose rights are likely to be detrimentally affected if the application is granted, and

(iii) land owners whose land is likely to be physically affected if the application is granted,

(

e) order the applicant to provide security to the decision maker in the amount the decision maker considers sufficient to ensure the performance of the applicant's obligations under this Act and the authorization, change approval or drilling authorization, as applicable, that is issued to the applicant, or

(

i) one or more conditional licences or final licences, or

(ii) a use approval, a change approval or a drilling authorization, as applicable.

(2) An applicant must comply with an order made under subsection (1) (

d) or (

e) within the period specified by the decision maker.

(3) For the purposes of subsection (1) (d), the decision maker may require that a specified assessment be performed, and a report of the assessment be prepared, by a person with the qualifications specified by the decision maker.

(4) If an application is for the purpose of diverting water from an aquifer, the decision maker must take into account the quantity of water persons to whom

section 6 (4) [use of water – excluded groundwater users] applies are authorized to divert from the aquifer.

(5) In considering an application for a new licence that relates to the region as defined by the Columbia Basin Trust Act , the decision maker must consider the current long term Columbia Basin Management Plan under

section 15 [Columbia Basin Management Plan] of that Act.

(6) Without limiting subsection (1), the decision maker may refuse an application, or reject an application without considering it, if

(

a) the applicant fails to comply with

(i)

section 12 (1) [application and decision maker initiative procedures] ,

(ii) a direction under

section 13 (1) or (9),

(iii) an order under subsection (1) (

d) or (

e) of this section, or

(iv) an order or a direction referred to in this paragraph within the required period,

(

b) in the case of an application for a use approval or change approval, the decision maker considers the proposed use of water or the proposed works would be more properly authorized by licence, or

(

c) the application is incomplete.

(7) A decision maker must refuse to accept an application or a part of an application that would result in the issuance of an authorization to a person to whom

section 6 (4) [use of water – excluded groundwater users] applies.

(8) A decision maker may not issue a licence authorizing the diversion or use of dedicated agricultural water unless the licence is for a qualifying agricultural use on qualifying agricultural land.

(9) Despite subsection (8), a licence may be issued authorizing the diversion or use of unrecorded dedicated agricultural water for domestic purpose or a land improvement purpose.

(10) A decision maker may exercise the powers under this

section in relation to an initiative of the decision maker under

section 21 [when final licence may be issued] , 26 [amendment or substitution of authorization, change approval or permit] , 28 [apportionment of rights under licences] or 62 [drilling authorizations] .

(11) For certainty, a use approval may be issued authorizing the diversion or use of unrecorded dedicated agricultural water for any water use purpose on any land.

Environmental flow needs

(1) Except in relation to an application exempted under the regulations, the decision maker must consider the environmental flow needs of a stream in deciding an application in relation to the stream or an aquifer the decision maker considers is reasonably likely to be hydraulically connected to that stream.

(2) For an application in respect of which the decision maker must consider, or decides under subsection (4) to consider, the environmental flow needs of a stream,

(

a) the applicant must provide to the decision maker the information and reports of assessments the decision maker directs for the purposes of paragraph (

b) of this subsection, and

(

b) the decision maker must determine, in accordance with any applicable regulations, the environmental flow needs of the applicable stream.

(3) For the purposes of subsection (2) (a), the decision maker may require that a specified assessment be performed, and a report of the assessment be prepared, by a person with the qualifications specified by the decision maker.

(4) Despite subsection (1), a decision maker may take into account the environmental flow needs of any stream the decision maker considers may be affected by granting the application.

Mitigation measures

(1) If the decision maker considers that the diversion and use of water, or changes in and about a stream, proposed by an application for an authorization, or the changes in and about a stream proposed to be made under a change approval, are likely to have a significant adverse impact on the water quality, water quantity or aquatic ecosystem of a stream or aquifer, a stream channel or other uses of water from the stream or aquifer to which the application relates, the decision maker may

(

a) require that the applicant submit a proposal for mitigation measures to address those effects, which mitigation measures must meet prescribed criteria, if any, and

Sensitive streams mitigation

(1) If an application for an authorization or a change approval, or an amendment to an authorization or change approval, is in relation to a sensitive stream, the decision maker

(

a) may require that the applicant provide the prescribed plans, specifications, reports of assessments or other information, in addition to the other information required under this Act in relation to the application, and

(

b) must apply prescribed criteria, if any, in addition to the other criteria to be applied under this Act, in deciding whether to grant the application.

(2) An application described in subsection (1) must include mitigation measures that meet the prescribed criteria, if any, and that the applicant proposes to take to mitigate any adverse impact on a protected fish population resulting from granting the application in relation to the sensitive stream.

(3) The decision maker may grant an application described in subsection (1) only

(

a) if satisfied that

(

i) any adverse impact, resulting from granting the application, on the sustainability of any protected fish population of the sensitive stream is likely to be insignificant,

(ii) the mitigation measures proposed by the applicant, if carried out, would ensure that granting the application is not likely to cause a significant adverse impact on any protected fish population or the aquatic ecosystem of the sensitive stream, or

(iii) compensatory mitigation measures that meet any prescribed criteria, whether or not proposed by the applicant, if carried out, in place of or supplemental to the proposed mitigation measures, will enhance or enable the enhancement of an aquatic ecosystem elsewhere that will fully compensate for the significant adverse impact on that protected fish population or aquatic ecosystem resulting from granting the application, and

(4) If the decision maker considers that there is a reasonable alternative source of water reasonably available to an applicant making an application referred to in subsection (1), the decision maker may refuse to grant the application.

Quick licensing procedures

(1) In this section:

"eligible application" means an application for a licence, or a permit related to a licence, that

(

a) complies with the requirements, if any, established by regulation,

(

b) is not in relation to an excluded water source,

(

c) is for

(

i) domestic purpose,

(ii) an irrigation purpose, or

(iii) a water use purpose designated by regulation under subsection (9) (a), and

(

d) the proposed diversion or use of water to be authorized by the licence does not exceed the maximum eligible quantity;

"excluded water source" means

(

a) a sensitive stream, or

(

b) a stream or aquifer that is designated as an excluded water source by regulation under subsection (9) (b);

"maximum eligible quantity" means,

(

a) in relation to domestic purpose,

(

i) if no other quantity is established by regulation under subsection (9) (c), 2 000 litres per day, and

(ii) if another quantity is established by regulation under that subsection, that other quantity,

(

b) in relation to an irrigation purpose,

(

i) if no other quantity is established by regulation under subsection (9) (c),

(A) 10 000 litres per day in the case of a licence for which the quantity authorized for the purpose is stated in terms of litres per day, or

(B) 1 250 cubic metres per year in the case of a licence for which the quantity authorized for the purpose is stated in terms of cubic metres per year, and

(ii) if another quantity is established by regulation under that subsection, that other quantity, and

(

c) in relation to a use or purpose established by regulation under subsection (9) (a), the quantity established by regulation under subsection (9) (c).

(2) Subject to subsections (5) and (6), an eligible application may be made under this section.

(3) If an eligible application is made,

(

a) the application may be dealt with by a person authorized under subsection (7),

(

b) the powers and duties referred to in subsection (7) may be exercised and performed in relation to the application, and

(

c) the otherwise applicable authority in relation to directions for notice and consideration of objections under

section 13 [objections to applications and decision maker initiatives] does not apply.

(4) For certainty, subsection (3) does not restrict the authority of the decision maker under any other provision of this Act to give directions with respect to an eligible application.

(5) An applicant may request that an eligible application be treated as if it were an application made under

section 12 [application and decision maker initiative procedures] .

(6) The decision maker may refuse to accept an eligible application under this

section if

(

a) the applicant fails to provide the information required under the regulations in respect of the application, or

(

b) in the opinion of the decision maker, circumstances respecting the stream, the aquifer or the application are such that directions should be given under

section 13 (1) or (9) .

(7) The comptroller or a water manager may authorize in writing another public service employee or class of public service employee, or an employee of a government corporation or class of employee of a government corporation, to exercise the powers and perform the duties of the comptroller or a water manager under the provisions of this Part as the decision maker in relation to an eligible application.

(9) The minister may, by regulation, do one or more of the following:

(

a) designate water use purposes for the purposes of paragraph (c) (iii) of the definition of "eligible application";

(

b) designate streams or aquifers as excluded water sources, by designating them in one or more of the following ways:

(

i) specifically;

(ii) by area description;

(iii) in the case of a stream, by tributary relationship with another stream;

(iv) by any other means that describes the excluded streams or aquifers in a manner that allows them to be identified,

and, in relation to this, may specify whether the tributaries of a designated stream are to be considered excluded streams for the purposes of this section;

(

c) establish the maximum eligible quantity for the purposes of paragraphs (

a) to (

c) of the definition of "maximum eligible quantity".

(10) The following decisions are final and may not be appealed to the appeal board:

(

a) a decision of the decision maker as to whether to accept an application as an eligible application;

(

b) a decision respecting an application that has been accepted as an eligible application under this section.

Licences for power purposes

(1) In this section:

"operational term" means the period beginning when

(

a) the activities described in the definition of "project development term" are completed, or

(

b) the period authorized for completion of those activities has ended,

whichever occurs earlier, during which power is, or is authorized to be, produced under a licence issued for a power purpose and during which a storage purpose authorized by a licence in relation to the power purpose may be exercised;

"project development term" means the period, following the issue of a licence for a power purpose but before the beginning of the operational term, during which activities required to prepare for power production under the licence are performed, including, without limitation, project design and engineering, securing construction and other contracts and constructing works.

(2) This

section applies to

(

a) a licence issued for a power purpose on or after October 23, 2003, unless the licence is being issued in substitution for a licence that did not specify the term of the licence and was issued for a power purpose before that date,

(

b) a licence that is being amended, whether or not the licence is replaced, if

(

i) the licence was issued for a power purpose before October 23, 2003 and specified the term of licence, and

(ii) the amendment is for the purpose of extending the term of the licence, or

(

c) a licence that is being amended, whether or not the licence is replaced, if

(

i) the licence was issued for a purpose other than a power purpose, and

(ii) the amendment is for the purpose of authorizing the use of water for a power purpose.

(3) The decision maker must not issue a licence to which this

section applies that has an operational term longer than 40 years.

(4) The decision maker may provide in a licence described in subsection (2) (

a) or (

c) for a project development term of up to 10 years.

(5) The holder of a licence issued to authorize the use of water for a power purpose may apply to renew the licence before the expiry of the operational term of that licence.

(6) Despite

section 26 [amendment or substitution of authorization, change approval or permit] , this Act and the regulations apply to the following applications as if the application were for a new licence:

(

a) an application for an amendment referred to in subsection (2) (b) (ii);

(

b) an application for an amendment referred to in subsection (2) (c) (ii);

(

c) an application to extend the term of a licence to which this

section applies.

(7) The rights exercisable under a licence to which this

section applies that is issued in substitution for or as a renewal of another licence have precedence from the same date as the rights under the licence that is replaced.

(8) Despite subsection (3), if an application is made under subsection (5), the licence does not expire until the later of

(

a) the date the decision maker decides on the application, and

(

b) the expiry date of the operational term of the licence.

(9) If a licensee fails to apply to renew a licence to which this

section applies before the expiry of the operational term of the licence and the failure, in the opinion of the decision maker, is not the fault of the licensee, the decision maker may extend the expiry date for not more than 6 months from the original expiry date and, if the expiry date is extended, the licence is deemed to be and to have been continuously in force from the date of issue until the new expiry date.

(10) Subsection (9) does not apply to a licence for which the expiry date has been extended under that subsection.

(11) A decision under subsection (9) of this

section to refuse to extend an expiry date is final and may not be appealed to the appeal board.

Purpose, precedence and appurtenancy

(1) A decision maker must ensure that a licence that the decision maker issues specifies as the appurtenancy of the licence an appurtenancy

(

a) that, except in relation to a licence that is required to be registered under the Water Protection Act , is located entirely in British Columbia,

(

b) that consists of land, a mine or an undertaking, or any combination of those things, and

(

c) that is adequately described in the licence.

(2) A decision maker who issues a use approval, change approval, permit or drilling authorization may specify an appurtenancy that meets the requirements of subsection (1) as the appurtenancy of the use approval, change approval, permit or drilling authorization, as applicable.

(3) The decision maker must ensure that every authorization that he or she issues

(

a) specifies the date of precedence of the rights under the authorization,

(

b) specifies the maximum quantity of water that may be diverted and used for each water use purpose authorized by the authorization, and

(

c) is for the diversion of water for one or more water use purposes and those water use purposes are specified in the authorization.

When final licence may be issued

(1) On application under

section 12 [application and decision maker initiative procedures] , or on his or her own initiative, the comptroller or a water manager may issue to the holder of a conditional licence a final licence authorizing the diversion or use of the quantity of water that the decision maker determines to have been beneficially used for the water uses purposes authorized under, and during the term of, the conditional licence, when

(

a) the licensee completes the works, or

(

b) the period for completing the works expires and, if any works have not been completed, the decision maker determines that the works that have not been completed are not required.

(2) On the issue of a final licence, the conditional licence it replaces has no further effect.

Precedence of rights

(1) The rights exercisable under an authorization that authorizes the diversion of water from a stream have precedence in relation to the rights of other authorization holders who divert water from

(

a) the stream,

(

b) a tributary of the stream, or

(

c) an aquifer the decision maker considers is reasonably likely to be hydraulically connected to that stream

according to the dates set out in the authorizations as the dates from which the rights take precedence.

(2) The rights exercisable under authorizations described in subsection (1) that have precedence from the same date have precedence in accordance with the ranking under subsection (7) of the water use purposes in respect of which the authorizations are issued.

(3) The rights exercisable under authorizations described in subsection (1) have equal precedence if the rights have precedence from the same date and are for the same water use purpose.

(4) The rights exercisable under an authorization that authorizes the diversion of water from an aquifer have precedence in relation to the rights of other authorization holders who divert water from the aquifer, or another aquifer the decision maker considers is reasonably likely to be hydraulically connected to that aquifer, according to the date set out in the authorization as the date from which the rights take precedence.

(5) The rights exercisable under authorizations described in subsection (4) that have precedence from the same date have precedence in accordance with the ranking under subsection (7) of the water use purposes in respect of which the authorizations are issued.

(6) The rights exercisable under authorizations described in subsection (4) have equal precedence if the rights have precedence from the same date and are for the same water use purpose.

(7) For the purposes of subsections (2) and (5), water use purposes are ranked, from highest to lowest as follows:

(

a) domestic;

(

b) waterworks;

(

c) irrigation;

(

d) mineralized water;

(

e) mining;

(

f) industrial;

(

g) oil and gas;

(

h) power;

(

i) storage;

(

j) conservation;

(

k) land improvement.

(8) Despite subsections (1) to (6), a person to whom

section 6 (4) [use of water – excluded groundwater users] applies is deemed to have rights that have precedence under those subsections, as if the deemed rights were granted under an authorization that

(

a) sets out as the date of precedence the date of first use of the water, and

(

b) authorizes the use of the greater of

(i) 2 000 litres of water per day for each private dwelling on a parcel, or

(ii) the amount of water the engineer is satisfied the person has been using for domestic purposes.

(9) Despite subsections (1) to (8), if an order under

section 86 (1) or (3) [declarations of significant water shortage] applies to a stream and the comptroller has determined the critical environmental flow threshold for the stream under

section 87 (1) [critical environmental flow protections orders] , the amount of that critical environmental flow threshold for the stream has precedence over the rights

(

a) under any authorization issued in relation to the stream or a hydraulically connected aquifer referred to in subsection (1) of this section, or

(

b) of a person described in subsection (8) of this section.

(10) Despite subsections (1) to (9), if an engineer is taking action to enforce the precedence of rights to divert or use water from a stream or aquifer, a person must not be prohibited from diverting water from the stream or aquifer for essential household use.

(11) For the purposes of this section, "essential household use" means the use by the occupants of one private dwelling of not more than 250 litres of water per day for

(

a) drinking water, food preparation and sanitation, and

(

b) providing water to animals or poultry that are kept

(

i) for household use, or

(ii) as pets.

(1) This

section applies to a licence that

(

a) was issued on or before the date this

section comes into force for an unlimited period or that has, at that date, at least 30 years remaining in its term, or

(

b) is issued after the date this

section comes into force for an unlimited period or a term exceeding 30 years,

but does not apply to licences

(

c) issued for a power purpose, or a storage purpose related to a power purpose, on or after October 23, 2003,

(

d) issued under the Industrial Development Act , or

(

e) issued following a review, or reviewed, under the Water Use Plan directives published by the government and dated December 1998.

(

a) for a licence issued on or before the date this

section comes into force, any time that is at least 30 years after that date, and any time that is at least 30 years after the immediately preceding review under this section, and

(

b) for a licence issued after the date this

section comes into force, any time after the licence has been in effect for 30 years after its issue and any time that is at least 30 years after the immediately preceding review under this section.

(3) A licensee who is given a direction under subsection (2) must, within the period specified in the direction, provide to the decision maker who gave the direction,

(

a) the information, plans, specifications and reports of assessments, including a water conservation audit carried out in accordance with and meeting the requirements of the regulations, specified by the decision maker, and

(

b) in the form and manner specified by the decision maker, the consents that are necessary for the decision maker to verify information provided under paragraph (a).

(4) The decision maker may require that a specified assessment be performed, and a report of the assessment be prepared, by a person with the qualifications specified by the decision maker.

(5) Section 12 (1) (b) (iii), (2) and (3) applies for the purpose of a review under this section.

(

a) the best available technology in respect of water use efficiency and water conservation,

(

b) best practices in respect of water use efficiency and water conservation,

(

c) any increase in knowledge respecting actual stream flow or aquifer conditions,

(

d) the effects of climate change,

(

e) the licensee's beneficial use of the water,

(

f) the use, operation or maintenance of works, and

(

g) prescribed factors.

(

a) reduce the maximum rate of diversion of water under the licence,

(

b) alter the time of diversion or use, including storage, of water under the licence,

(

c) construct, alter, install, replace, repair, maintain, improve, seal, deactivate, decommission or remove any works, or

(

d) adopt a more efficient practice.

(9) A direction given under subsection (2) is final and may not be appealed to the appeal board.

Permits over Crown land

(1) The comptroller or a water manager in the case of an authorization, or the comptroller, a water manager or an engineer in the case of a change approval or drilling authorization, may, on compliance by the holder of the authorization, change approval or drilling authorization with the regulations, issue to that holder one or more permits authorizing the flooding of Crown land or the construction, maintenance or operation on Crown land of works authorized under the authorization, change approval or drilling authorization.

(2) A person must not, for the purposes of exercising rights or performing duties under an authorization, change approval or drilling authorization, construct, maintain or operate works on, or flood, Crown land unless the person

(

a) holds a permit under this section, or

(

b) has authority to do so under another enactment.

Transfer of authorization, change approval or permit

(1) An authorization, change approval or permit that is made appurtenant to any land, mine or undertaking, and the rights granted and duties imposed under the authorization, change approval or permit, pass with a conveyance or other disposition of the land, mine or undertaking.

(2) An owner conveying or otherwise disposing of land, a mine or an undertaking, to which an authorization, change approval or permit is appurtenant, must give written notice of the conveyance or other disposition to the comptroller or a water manager before completing the disposition.

(3) In the case of a transmission or other disposition of land, a mine or an undertaking to which an authorization, change approval or permit is appurtenant to the personal representative or other person representing the owner of the land, mine or undertaking, the personal representative or other person must give to the comptroller or a water manager written notice

(

a) as soon as practicable after the transmission or disposition to the personal representative or other person, and

(

b) before completing a disposition by the personal representative or other person of the land, mine or undertaking to another person.

Amendment or substitution of authorization,

change approval or permit

(1) On application by the holder in accordance with

section 12 [application and decision maker initiative procedures] , or on his or her own initiative, the comptroller or a water manager may amend an authorization and a permit issued in relation to the authorization, and the comptroller, a water manager or an engineer may amend a change approval and a permit issued in relation to the change approval, to do any of the following:

(

a) extend the time set for beginning construction of works;

(

b) extend the time set for completion of works;

(

c) extend the time set for making beneficial use of water;

(

d) authorize additional or other works than those previously authorized;

(

e) correct an error in the authorization, change approval or related permit;

(

f) remove a provision of the authorization, change approval or related permit that is inconsistent with this Act;

(

g) authorize the use of water for a water use purpose other than a water use purpose specified in the authorization;

(

h) extend the term of the authorization, change approval or related permit;

(

i) increase or reduce the quantity of water authorized to be diverted if it appears to have been erroneously estimated.

(3) On application, the comptroller or a water manager may amend an authorization and a permit issued in relation to the authorization, and the comptroller, a water manager or an engineer may amend a change approval and a permit issued in relation to the change approval, to make an amendment not referred to in subsection (1), other than an amendment that would increase the quantity of water authorized to be diverted.

(5) Despite subsection (1) (g), a decision maker may not

(

a) authorize a change in water use purpose for dedicated agricultural water except to another qualifying agricultural use, or

(

b) issue a licence to a person to whom

section 6 (4) [use of water – excluded groundwater users] applies.

(6) If an application is made under subsection (1) (

h) to extend the term of an authorization, change approval or permit before the date the authorization, change approval or permit expires, the authorization or change approval, as applicable, and any permit issued in relation to either, does not expire until the later of

(

a) the date the decision maker decides on the application, and

(

b) the expiry date of the authorization, change approval or permit, as applicable.

(7) Despite subsection (1) (h), a decision maker may not amend a use approval to extend the term beyond 24 months from the date the use approval was issued.

Transfer of appurtenancy

(

a) to a person who is the owner of land, a mine or an undertaking and to whom the holder is transferring some or all of the rights granted and duties imposed under the authorization or change approval and related permit, determining as the appurtenancy for the rights and duties transferred the land, mine or undertaking of the transferee, or

(

b) to the holder, determining as the appurtenancy for some or all of the rights granted and duties imposed under the authorization or change approval and related permit land, a mine or an undertaking of that holder.

(2) An authorization, change approval or permit issued under subsection (1) (

a) or (

b) has the same precedence as the original authorization, change approval or permit, or the original authorization, change approval or permit, as modified, as applicable.

(3) Except in relation to a licence required to be registered under the Water Protection Act , a decision maker must not exercise his or her discretion under subsection (1) of this

section to determine an appurtenancy that is not in British Columbia.

(4) If the land, mine or undertaking to which an authorization, change approval or permit is appurtenant is mortgaged, and a copy of the mortgage, or particulars of the mortgage, is filed with the comptroller or a water manager, a transfer of the appurtenancy of the authorization, change approval or permit, as applicable, is not effective without the written consent of the mortgagee.

(5) Despite subsection (1), the appurtenancy determined under subsection (1) for a licence issued in relation to dedicated agricultural water must be qualifying agricultural land.

Apportionment of rights under licences

(1) If the land to which a licence, or a permit issued in relation to the licence, is appurtenant consists of more than one parcel owned by different persons, on application by an owner of a parcel of that land in accordance with

section 12 [application and decision maker initiative procedures] , or on his or her own initiative, the comptroller or a water manager may apportion among the owners of the parcels the rights granted and duties imposed under the licence or permit.

(3) A licence or a permit issued under subsection (2) has the same precedence as the original licence or permit or the original licence or permit, as modified, as applicable.

Rights and responsibilities of applicants and holders

(1) The following persons must exercise reasonable care to avoid damaging land, works, trees or other property of another person:

(

a) an applicant for an authorization, change approval, drilling authorization or permit;

(

b) the holder of an authorization, change approval, drilling authorization or permit;

(

c) a person who, in accordance with the regulations or an order of the comptroller, a water manager or an engineer, makes changes in and about a stream or diverts or uses, including stores, water.

(2) A person referred to in subsection (1) (a), (

b) or (

c) must properly inspect, maintain and repair works constructed, operated or used by the person,

(

a) in accordance with any prescribed requirements,

(

b) in accordance with an order, and

(

c) in a manner that ensures that the works do not cause a significant risk of harm to public safety, the environment, land or other property.

(3) When an authorization, change approval or permit that authorizes the construction or use of works is abandoned, cancelled or expires, the holder or former holder, as applicable, of the authorization, change approval or permit must ensure that the works are deactivated or decommissioned in accordance with the regulations and orders.

(4) A person referred to in subsection (1) (a), (

b) or (

c) is liable to owners of land or premises for damage or loss resulting from the construction, maintenance, use, operation or failure of the person's works.

(5) Subject to subsections (1) to (4), a holder of a licence for a power purpose, a storage purpose, a waterworks purpose or an irrigation purpose may fell and remove any tree, and remove any rock or other thing, that endangers the holder's works.

Beneficial use

(1) A person who diverts water must make beneficial use of the water diverted.

(2) A licensee must submit to the comptroller, a water manager or an engineer, as applicable, a signed declaration that complies with subsection (3) at the time directed to do this by the comptroller, water manager or engineer.

(3) A declaration required under subsection (2) must

(

a) state whether the licensee has, during the 3 years preceding the date of the declaration,

(

i) made beneficial use of the quantity of water authorized to be diverted under the licence, and

(

b) include any other information, or consents required to verify the other information, required by the decision maker, and

(

c) be in the form required by the decision maker.

(4) A direction under subsection (2) may require the licensee to provide with the beneficial use declaration the results of a water conservation audit carried out in accordance with and meeting the requirements of the regulations.

(5) On receipt of a beneficial use declaration and, if required by the decision maker, the results of a water conservation audit, the decision maker may order the licensee to take measures to meet the level of efficiency of water use and conservation of water specified in the order.

(6) On the direction of the comptroller, a water manager or an engineer, each of the following persons must provide information, or consents required to verify the information, in the time specified, respecting the quantity of water the person has beneficially used in the period specified by the comptroller, water manager or engineer, as applicable:

(

a) the holder of a use approval;

(

b) a person who diverts, stores or uses water under the regulations;

(

c) a person who diverts, stores or uses water as described in

section 6 (2) (b) [use of water – flow tests] or (3) [use of water – at sufferance] or as authorized by

section 6 (4) [use of water – excluded groundwater users] .

(7) For the purpose of inquiring into or confirming beneficial use of water, the decision maker may

(

a) collect relevant public personal information or government water records related to a person referred to in subsection (2) or (6) or to the person's use of water, and

(

b) verify information collected under this subsection or provided under subsection (3) or (6), including, in relation to personal information, by consent or by reference to public personal information or government water records.

(8) Subject to

section 117 (4) [delivery and publication of documents and information] , the comptroller may publish a beneficial use declaration or information provided under subsection (6).

(9) A direction given under subsection (2) or (6) is final and may not be appealed to the appeal board.

Abandonment of rights under an authorization

(

a) requiring the repair, maintenance or removal of works or arrangements respecting responsibility for the repair, maintenance or removal of works with

(

i) other authorization holders who jointly use or used the works,

(ii) previous authorization holders who jointly used the works, or

(iii) the owner of land on which the works are located, or

(

b) requiring deactivation or decommissioning of the works or arrangements respecting responsibility for deactivation or decommissioning of the works with one or more persons referred to in paragraph (a).

(2) If there is more than one registered owner of the land, or more than one owner of a mine or undertaking, to which an authorization is appurtenant, an application under subsection (1) must have attached to it the written consent of all registered owners of the land or all owners of the mine or undertaking, as applicable, to the abandonment of rights.

(3) If the land, mine or undertaking to which an authorization is appurtenant is mortgaged, and a copy of the mortgage, or particulars of the mortgage, is filed with the comptroller or a water manager, an application under subsection (1) must have attached to it the written consent of the mortgagee to the abandonment of rights.

Licensee's right to expropriate land

(1) A licensee has the right to expropriate any land reasonably required for the construction, maintenance, improvement or operation of works authorized or necessarily required under the licence.

(2) In addition to the right under subsection (1), the holder of a licence that authorizes the diversion of water for domestic purpose or a waterworks purpose has the right to expropriate any land the control of which by the licensee would help prevent pollution of the water authorized to be diverted.

(3) In addition to the rights under subsections (1) and (2), with the consent of the Lieutenant Governor in Council, the holder of a licence that authorizes the construction or use of a dam has the right to expropriate any land that has been flooded by construction of the dam or that would be flooded if the dam were constructed and utilized to the maximum height authorized.

(4) An expropriation under this

section must be made in accordance with the regulations and the licensee who expropriates the land must provide compensation to the owner of the land expropriated in the amount determined in accordance with the regulations.

(5) If expropriation proceedings have been commenced by a licensee in relation to land on or in which works authorized under the licence are located, a person, including an owner of the land, must not interfere with the works or prevent the licensee from maintaining, operating, using or improving those works so long as the licensee diligently prosecutes the expropriation proceedings.

Licensee's rights when owner refuses compensation

(1) If

(

a) an award of compensation is made in relation to land expropriated under

section 32,

(

b) the amount of the award is tendered to the owner of the expropriated land, and

(

c) that owner fails to execute and deliver to the licensee the required conveyance or other instrument,

the licensee is conclusively deemed to be the attorney of that owner for the purpose of executing the conveyance or instrument on that owner's behalf.

(2) The registrar must register the licensee as owner of the land affected, or as holder of a charge on that land, as indicated in the award, if the licensee

(

a) pays the amount of compensation to the comptroller, or the part of that amount that is payable at the time, that has not been accepted by the owner,

(

b) files with the registrar

(

i) the executed conveyance or instrument,

(ii) a copy of the award, and

(iii) an affidavit proving the payment of the compensation to the comptroller and the failure of the owner to execute the conveyance or instrument, and

(

c) pays to the registrar the applicable fees under the Land Title Act .

Owner to give notice before interfering with works

34 Despite a right or title acquired or held under a statute or an indefeasible or absolute title held in relation to land, the owner of land or another person who proposes to alter, move, fill in, remove or otherwise interfere with works constructed or used under an authorization must, before doing so, give the holder of the authorization 180 days' written notice of the act or thing proposed to be done.

Entry on land in case of urgency

(1) If the comptroller or a water manager considers that a delay in beginning the construction of authorized works, or works necessarily required for the proper diversion or use of water under a licence,

(

a) would not be in the public interest, or

(

b) would cause a hardship on the licensee,

the decision maker may authorize the licensee to enter on, occupy and use any land for constructing the works.

(2) The decision maker under subsection (1) may require, as a condition of the authority given, that the licensee provide security to the decision maker in the amount the decision maker considers sufficient to indemnify the owner of the land for any damage that owner might sustain by reason of the construction.

(3) On exercising an authority under subsection (1), the licensee must promptly take steps under

section 32 [licensee's right to expropriate land] to expropriate the land required.

(4) A person, including the owner of the land, must not interfere with the construction of the works so long as the licensee diligently prosecutes the expropriation proceedings.

Joint construction or use of works may be ordered

Power to authorize extension of rights under licence

(

a) respecting the use of the water or works necessarily required to be used for that use,

(

b) providing for compensation as between the licensee and a person who is receiving the benefit of the extension, or

(

c) limiting the term of the extension.

Appointment of water bailiffs

(

a) operate and inspect the operation of specified works, and

(

b) perform routine repairs on and maintain specified works.

(3) A water bailiff, under the direction of an engineer, which direction must be consistent with the directions given under subsection (1) or (2) and may be given by the engineer in person or through an officer, may

(

a) take action or measurements in respect of the diversion or use of water from the streams and aquifers specified in the water bailiff's appointment,

(

b) take action in respect of works related to the diversion or use of the water, and

(

c) inspect, operate, perform routine repairs on and maintain those works.

(4) A water bailiff who takes action or measurements under subsection (2) or (3) must keep records of anything the water bailiff does under this section, including, without limitation, actions and measurements taken, work performed, hours of work and expenses incurred, and provide the records to the engineer.

(5) Persons, whether or not those persons hold an authorization, who divert or use water from the streams or aquifers in respect of which a water bailiff exercises powers or performs duties under this

section are liable to

(

a) compensate the water bailiff in the amounts and at the times the engineer who directs the water bailiff orders, and

(

b) reimburse the water bailiff as directed by the engineer for the amounts that the engineer considers were reasonably incurred by the water bailiff in maintaining, operating or repairing the works.

(6) A water bailiff may stop the diversion or use of water, and the operation of works, by or on behalf of a person who fails to pay amounts owing to the water bailiff under subsection (5).

(7) If a water bailiff assigns to the government all the water bailiff's right, title and interest in and to the indebtedness for amounts payable to the water bailiff under subsection (5), those amounts may be recovered under

section 98 [recovery of amounts owing for work performed] as a debt of the persons liable under subsection (5) of this

section that is due to the government.

Water reservations

(1) If the Lieutenant Governor in Council considers it advisable

(

a) to enable a specified person to investigate the suitability of a stream or an aquifer for a specified water use purpose,

(

b) to make provision for a water supply from a stream or an aquifer for a proposed waterworks, irrigation or power system or project of a specified person,

(

c) to ensure water from a stream or an aquifer is available for the benefit of the Crown, or

(

d) to retain the reserved water in a stream or an aquifer,

the Lieutenant Governor in Council may reserve all or part of the water that is in the stream or the aquifer, and that is unrecorded and unreserved and is not dedicated agricultural water, from being diverted or used under this Act except as provided by

section 6 (2), (3) or (4) [use of water] .

(2) The minister must publish a notice in the Gazette giving particulars of a reservation established or amended under subsection (1).

(3) A reservation under subsection (1) established

(

a) in relation to all the unrecorded water in a stream or an aquifer applies to water, other than dedicated agricultural water, that by reason of the expiry, abandonment or cancellation of all or part of the rights under an authorization becomes unrecorded water in the stream or aquifer during the existence of the reservation, and

(

b) in relation to a specified quantity of water in a stream or an aquifer applies to water that by reason of the expiry, abandonment or cancellation of all or part of the rights under an authorization issued under subsection (4) (

c) for water that is subject to the reservation becomes unrecorded water during the existence of the reservation.

(4) The Lieutenant Governor in Council, in an order under subsection (1) or in a subsequent order, may provide that water reserved under subsection (1), despite the reservation, may be acquired under a licence,

(

a) for a reservation under subsection (1) (

a) or (b), by the specified person, or a person authorized by the specified person, for the water use purpose, or for the waterworks, irrigation or power system or project, as applicable, for which the water is reserved,

(

b) for a reservation under subsection (1) (c), by the Crown or a person authorized by the Crown,

(

c) for a reservation under subsection (1) (a), (

b) or (c), by any person for another water use purpose, but the rights under a licence issued under this paragraph must be given a later date of precedence than rights under any licence referred to in paragraph (

a) or (

b) of this subsection in respect of the water reserved, whether the licence for the other water use purpose is issued before or after the licence referred to in paragraph (

a) or (b), and

(

d) for a reservation under subsection (1) (d), by a specified person for a water use purpose the Lieutenant Governor in Council considers is consistent with the purposes of the reservation.

(5) The Lieutenant Governor in Council may cancel a reservation established under subsection (1) effective on a specified date, which date must not be earlier than 30 days after the date of publication of the notice under subsection (6) (a).

(6) The minister must publish notice of a cancellation under subsection (5), specifying the date on which the cancellation is effective,

(

a) in the Gazette, and

(

b) within 30 days after the publication under paragraph (a), in a newspaper published in the water district in which the stream or the aquifer is located, and if there is no newspaper so published then in a newspaper that circulates in that water district.

(7) Applications for the water reserved under a reservation cancelled under subsection (5) may be accepted during the period between the date the notice of cancellation is published in the Gazette and the effective date of the cancellation, but an authorization issued in respect of the application must not be given a date of precedence that is earlier than the effective date of the cancellation.

(8) Despite subsection (1), a licence may be issued authorizing for domestic purpose or a land improvement purpose the diversion or use of water to which a reservation established under subsection (1) applies.

(9) Despite subsection (1), a use approval may be issued authorizing, for any water use purpose, the diversion and use of water to which a reservation established under subsection (1) applies.

Treaty first nation water reservations

(1) If the final agreement of a treaty first nation describes a water reservation for water use purposes specified in the agreement, other than a power purpose, that British Columbia is required by the final agreement to establish in favour of the treaty first nation, the Lieutenant Governor in Council may establish that water reservation for those purposes.

(2) A water reservation established in favour of a treaty first nation under subsection (1) is deemed to be a water reservation under

section 39 subject to the following:

(

a) the water reserved by the water reservation may only be acquired for the purposes, and in the manner, contemplated by the treaty first nation's final agreement;

(b)

section 39 (5) to (7) does not apply to that water reservation;

(c)

section 39 (8) and (9) does not apply to the water reserved by that water reservation.

(3) Despite anything to the contrary in this Act, a water reservation established under subsection (1) for purposes authorized by the final agreement

(

a) is deemed to have been established on the date specified in the final agreement as the reference date for the priority of the water reservation, and

(

b) has priority for those purposes over water licences issued after that date in relation to the same stream, except water licences given priority by that final agreement.

Nis g a'a water reservation

(1) The Lieutenant Governor in Council may, by order, establish the water reservation, described in paragraph 122 of the Lands

Chapter of the Nis g a'a Final Agreement, in favour of the Nis g a'a Nation.

(2) The water reservation established under subsection (1) is deemed

(

a) to be a water reservation under

section 39 [water reservations] subject to the following:

(

i) the water reserved by that water reservation may only be acquired for the purposes and in the manner contemplated by paragraphs 122 to 126 of the Lands

Chapter of the Nis g a'a Final Agreement;

(ii)

section 39 (5) to (7) does not apply to that water reservation;

(iii)

section 39 (8) and (9) does not apply to the water reserved by that water reservation, and

(

b) to have been made on March 22, 1996 for the purposes of paragraph 123 of the Lands

Chapter of the Nis g a'a Final Agreement.

Issue of new licence

42 If a licence is acquired by

(

a) a regional district under

section 309 (1.1) [expropriation of water licences and related works] of the Local Government Act ,

(

b) an improvement district under

section 749 [power to expropriate water diversion licences and related works] of that Act, or

(

c) a municipality under

section 31 (2) [expropriation of water licences and related works] of the Community Charter ,

the comptroller may issue in place of the acquired licence a new licence having the same precedence but authorizing the diversion or use of water for any water use purpose required by the regional district, improvement district or municipality, as applicable.

Part 3 – Protecting Water Resources

Division 1 – Water Objectives

Water objectives

(1) For the purposes of sustaining water quantity, water quality and aquatic ecosystems in and for British Columbia, the Lieutenant Governor in Council may make regulations

(

a) establishing water objectives for a watershed, stream, aquifer or other specified area or environmental feature or matter in order to sustain

(

i) water quality required for specified uses of water,

(ii) water quantity required for specified uses of water, and

(iii) water quality and water quantity required to sustain aquatic ecosystems

in relation to the watershed, stream, aquifer or other area, feature or matter,

(

b) specifying factors and criteria to apply for evaluating the impacts of a land use or resource use proposal on objectives established under paragraph (a), and

(

c) respecting measures to address impacts of such proposals on the objectives.

(2) A regulation under this

section may

(

a) require that a water objective be considered by a public officer making a specified decision under a specified enactment, if the decision is in relation to the watershed, stream, aquifer or other area or environmental feature or matter for which the water objective was prescribed, and

(4) Despite any other enactment, a regulation under subsection (2) may provide that a specified water objective applies despite or subject to objectives, standards, requirements or plans established in relation to environmental matters under the specified enactment or another specified enactment.

(5) A regulation under this

section may require that

(

a) a regional district consider specified water objectives when developing, amending or adopting a regional growth strategy under

Part 25 [Regional Growth Strategies] of the Local Government Act ,

(

b) a municipality consider specified water objectives when developing, amending or adopting an official community plan under

Part 26 [Planning and Land Use Management] of the Local Government Act or

Part XXVII [Planning and Development] of the Vancouver Charter ,

(

c) a local trust committee consider specified water objectives when developing, amending or adopting an official community plan under

section 29 [land use and subdivision regulation] of the Islands Trust Act , and

(

d) a prescribed person or entity consider specified water objectives when developing, amending or enacting plans or undertaking planning processes under prescribed enactments.

Division 2 – Stream Protection

Definitions

44 For the purposes of this Division:

"bank-to-bank dam" means

(

a) a structure that is capable of impounding or storing water and that spans a stream from bank to bank, or

(

b) structures that together are capable of impounding or storing water and that span a stream

(

i) from one bank to a natural or other feature or structure in the stream, and

(ii) from the feature or structure to the other bank of the stream or, if applicable, between features or structures and to the other bank of the stream;

"construction of a bank-to-bank dam" includes the alteration of an existing structure so that it becomes a bank-to-bank dam but does not include the alteration of an existing bank-to-bank dam;

"protected river" means a river set out in the Schedule.

No new dams on protected rivers

(1) A person must not construct a bank-to-bank dam anywhere on a protected river.

(2) The comptroller or a water manager must not issue or amend an authorization, change approval or permit to authorize the construction of a bank-to-bank dam anywhere on a protected river.

(3) An authorization, change approval or permit issued or an amendment made contrary to subsection (2) has no effect.

(4) This

section applies despite any other enactment.

(5) This

section does not apply to a dam authorized by a licence, permit or approval issued under the Water Act before March 15, 1997.

Prohibition on introducing foreign matter into stream

(1) Unless authorized under this or another enactment or excepted under subsection (2), a person must not

(

a) introduce debris, refuse, carcasses, human or animal waste, pesticides, fertilizers, contaminants or another matter or substance into a stream, a stream channel or an area adjacent to a stream, or

(

b) cause or allow debris, refuse, carcasses, human or animal waste, pesticides, fertilizers, contaminants or another matter or substance to be introduced into a stream, a stream channel or an area adjacent to a stream

in such a quantity or in such a manner as to cause a significant adverse impact to

(

c) the stream or stream channel,

(

d) the existing uses of the water from the stream,

(

e) the property of riparian owners on the stream,

(

f) an aquifer that is hydraulically connected to the stream or the existing uses of the water from that aquifer, or

(

g) the aquatic ecosystem of the stream.

(2) Subsection (1) does not apply in relation to

(

a) a forest practice to which

section 46 [protection of the environment] of the Forest and Range Practices Act applies, or

(

b) a prescribed activity, practice or substance.

(3) In a prosecution under

section 106 (4) (n) [general offences] , it is not necessary to prove that the human or animal waste, pesticide, fertilizer, contaminant or other matter or substance, if diluted or its concentration reduced subsequent to the introduction into the stream, continued to cause or to be likely to cause a significant adverse impact on the quality of water in the stream or in an aquifer that is hydraulically connected to the stream or the uses made of the water from the stream or aquifer that is hydraulically connected to the stream.

Remediation orders in relation to foreign matter in stream

(1) An engineer may order a person who contravenes

section 46 (1) [prohibition on introducing foreign matter into stream] to

(

a) stop the introduction of debris, refuse, carcasses, human or animal waste, pesticides, fertilizers, contaminants or other matter or substance into the stream, the stream channel or an area adjacent to the stream,

(

b) remove the debris, refuse, carcasses, human or animal waste, pesticides, fertilizers, contaminants or other matter or substance from the stream, the stream channel, the area adjacent to the stream or an aquifer that is hydraulically connected to the stream and to which the matter or substance has migrated, and

(

c) take measures, in accordance with the direction of the engineer, to remediate or mitigate the effects of the introduction.

(2) If the engineer considers that the effects of an introduction described in subsection (1) (

a) cannot be remediated, or cannot be fully remediated, at the location of the introduction, that engineer may order the person referred to in subsection (1) to take compensatory mitigation measures, in place of or supplemental to other remediation measures, on a different part of the stream into which the introduction was made.

(3) The comptroller or a water manager may authorize the government or another person to take the actions necessary to comply with an order under subsection (1), and the person who contravened

section 46 (1) is liable to the government or that other person, as applicable, for the costs of complying with the order if any of the following apply:

(

a) the person who is subject to an order under subsection (1) fails to comply with the order within the time specified in the order;

(

b) the person who contravened

section 46 (1) cannot be identified or located after reasonable effort;

(

c) the comptroller or the water manager considers that failure to remediate or mitigate the introduction immediately may result in harm or damage to anything referred to in

section 46 (1) (

c) to (g).

(4) Any expense reasonably incurred by a person in the exercise of authority provided under subsection (3), unless the person is acting on behalf of the government, may be recovered from the person to whom the order was directed as money paid for, and at the request of, that person.

(5) If work is carried out under subsection (3) by or on behalf of the government, the costs to the government are a debt due to the government by the person to whom the order was directed and may be recovered in accordance with

section 98 [recovery of amounts owing for work performed] .

(6) This

section does not limit the authority under

section 91 [power of comptroller to authorize actions] or 93 [powers of engineers and officers] .

Division 3 – Wells and Groundwater Protection

Definitions

(1) For the purposes of this Division:

"person responsible" , with respect to constructing a well, installing a well pump, conducting a flow test or decommissioning a well, means,

(

a) if the activity is supervised by a professional, that professional,

(

b) if paragraph (

a) does not apply and the activity is supervised or performed by a well driller or well pump installer who is qualified to supervise or perform that activity, that well driller or well pump installer,

(

c) if neither paragraph (

a) nor (

b) applies, a person who performs the activity in the ordinary course of that person's business, and

(

d) if none of paragraphs (a), (

b) or (

c) applies, the person on whose behalf the activity is performed;

"professional" means

(

a) a professional engineer, or a professional geoscientist, who is registered or licensed under the Engineers and Geoscientists Act , or

(

b) a holder of a limited licence under the Engineers and Geoscientists Act acting within the scope of the limited licence;

"qualified" , in respect of an activity in relation to a well or well pump,

(

a) for a well driller, means a well driller who has the qualifications prescribed as required to perform or supervise the activity in relation to the well or well pump, and

(

b) for a well pump installer, means a well pump installer who has the qualifications prescribed as required to perform or supervise the activity in relation to the well or well pump;

"well" includes any casing, screen, drive shoe, packer, riser pipe, cap, valve, grout, liner and seal relating to a well;

"well driller" means a person who has the prescribed qualifications;

"well pump installer" means a person who has the prescribed qualifications.

(2) For the purposes of this Division, a person's actions are directly supervised by another person if that other person is responsible for the control and conduct of the person's actions.

Restrictions on constructing or decommissioning wells

and related activities

(1) Subject to

section 50, this

section applies to a person who

(

a) constructs a well,

(

b) decommissions a well,

(

c) deactivates a well, or

(

d) disinfects a well.

(2) A person referred to in subsection (1) must

(

a) comply with the applicable regulations,

(

b) in the case of an activity referred to in subsection (1) (a), (

b) or (c), either

(

i) be a well driller who is qualified in respect of the activity in relation to the well, or

(ii) act under the direct supervision of

(

A) a person described in subparagraph (i), or

(

B) a professional who has competency in the field of hydrogeology or geotechnical engineering, and

(

c) in the case of an activity referred to in subsection (1) (d), be a person described in paragraph (

b) or a well pump installer described in

section 50 (2) (b) (i), or act under the direct supervision of a person described in

section 50 (2) (b) (ii).

(3) Unless provided otherwise by a regulation under

section 83 [plan regulations – restrictions on groundwater activities] or 137 [minister's regulations restricting groundwater activities] , subsection (2) (

b) or (

c) of this

section does not apply in respect of the following:

(

a) a person

(

i) excavating a well to a depth of not more than 15 m, or

(ii) performing an activity referred to in subsection (1) with respect to an excavated well that has a depth of not more than 15 m;

(

b) a person deactivating or disinfecting a well owned by the person;

(

c) a person constructing or decommissioning a geotechnical well, if the activity of constructing or decommissioning the well is not likely to penetrate an aquifer;

(

d) a person installing, replacing or repairing, on a well owned by the person,

(

i) a flow meter, or

(ii) a well cap, well cover, valve or vent that is part of the wellhead and accessible at the surface of the ground;

(

e) a prescribed

(

i) person,

(ii) well,

(iii) activity in relation to a prescribed work, or

(iv) activity.

(4) A person who, in performing an activity referred to in subsection (3) (

c) or prescribed under subsection (3) (e), penetrates an aquifer must stop performing that activity until the person has complied with subsection (2) (

b) and must take the steps recommended by the person described in that subsection.

Restrictions respecting well pumps and flow tests

(1) This

section applies to a person who

(

a) installs, maintains, repairs, removes or tests a well pump or a wellhead,

(

b) conducts a flow test of a well, or

(

c) disinfects a well pump.

(2) A person referred to in subsection (1) must

(

a) comply with the applicable regulations, and

(

b) either

(

i) be a well pump installer or well driller who is qualified in respect of the activity in relation to the well, or

(ii) act under the direct supervision of

(

A) a person described in subparagraph (i), or

(

B) a professional who has competency in the field of hydrogeology or geotechnical engineering.

(3) Despite subsection (2) (b) (

i) and (ii) (A), if the regulations require that an activity described in subsection (1) be performed or directly supervised only by a professional who has competency in the field of hydrogeology or geotechnical engineering, that activity must be performed or directly supervised by a professional who is so qualified.

(4) Unless provided otherwise by a regulation under

section 83 [plan regulations – restrictions on groundwater activities] or 137 [minister's regulations restricting groundwater activities] , subsections (2) (

b) and (3) do not apply in respect of the following:

(

a) a person installing a well pump in a monitoring well, a geotechnical well or a closed-loop geoexchange well;

(

b) a person disinfecting a well pump owned by the person;

(

c) a prescribed

(

i) person,

(ii) well or well pump,

(iii) activity in relation to a prescribed work, or

(iv) activity.

Proof of qualifications and insurance

(1) On the direction of

(

a) the comptroller,

(

b) a water manager,

(

c) an engineer,

(

d) an officer, or

(

e) a drinking water officer,

a person who is performing or directly supervising an activity that under this Act must be performed or directly supervised by a professional with specified competencies, or by a well driller or well pump installer who is qualified in respect of the activity in relation to the well, must immediately provide proof that the person is qualified to perform or supervise the activity and, if the person is required under subsection (2) to carry insurance, proof of that insurance.

(2) If the regulations require that a professional or a well driller carry not less than the prescribed amount of liability insurance in the event of liability arising from the performance or supervision of activities under this Act, the professional or well driller, as applicable, must carry that amount.

(3) When asked to do so, a professional, a well driller or a well pump installer must provide to any person who engages the professional, well driller or well pump installer to perform or supervise activities under this Act

(

a) proof of insurance, if insurance is required under the regulations, and

(

b) proof of qualifications.

Controlling artesian flow during construction

(1) For the purposes of this

section and

section 53, artesian flow of a well is under control when

(

a) the artesian flow

(

i) is clear of sediment,

(ii) is entirely conveyed through the well's production casing to the wellhead, if the well has a production casing,

(iii) may be mechanically stopped for an indefinite period in a manner that prevents leakage onto the surface of the ground or into another aquifer penetrated by the well, and

(iv) does not pose a threat to property, public safety or the environment, or

(

b) if the artesian flow cannot be controlled in accordance with paragraph (a), the well is decommissioned

(

i) in accordance with the regulations,

(ii) by a person authorized under

section 49 [restrictions on constructing or decommissioning wells] , and

(iii) in a manner that allows no artesian flow at the surface of the ground or leakage into another aquifer penetrated by the well.

(2) If a well driller or a professional encounters artesian conditions while constructing a well or supervising the construction of a well, the well driller or professional must ensure, as soon as practicable, that

(

a) any artesian flow is stopped or brought under control, or

(

b) if the artesian well is likely to flow periodically, steps are taken to ensure that that artesian flow will be stopped or controlled during those periods.

(3) A person, other than a well driller or a professional, who, while constructing a well, encounters

(

a) flowing artesian conditions, or

(

b) artesian conditions that indicate the artesian well is likely to flow periodically,

must notify the well owner of the encounter and the person and the well owner must ensure that a well driller who is qualified in respect of the activity or a professional is engaged, and that well driller or professional must comply with subsection (2) in relation to the artesian flow.

(4) A well driller or professional who encounters or takes steps to stop or control artesian flow must notify the well owner and the land owner of the encounter and the steps taken.

(5) If the well driller or professional described in subsection (2) or engaged under subsection (3) fails to comply with subsection (2), the well owner must ensure that a well driller who is qualified in respect of the activity or a professional complies with subsection (2).

(6) If the comptroller or a water manager is satisfied, based on the report of a professional, that because of exceptional circumstances it is not practicable to bring artesian flow under control in accordance with subsection (1) (

a) or (

b) but the artesian flow can be managed in another manner without posing a threat to property, public safety or the environment, the artesian flow may be brought under control in accordance with the directions of the decision maker.

(7) A person responsible for stopping or controlling artesian flow under this

section must comply with any applicable regulations and any directions of an engineer in relation to stopping or controlling the flow.

Controlling flowing artesian well

(1) The owner of a flowing artesian well must engage a well driller who is qualified in respect of the activity or a professional and ensure that the well driller or professional, as applicable, stops the flow of that well or brings the flow of that well under control.

(2) If the owner of a flowing artesian well fails to comply with subsection (1) and the owner of the land on which the well is located does not know who owns the well, the owner of that land must comply with subsection (1).

(3) Section 52 (6) and (7) apply for the purposes of this section.

Well caps or well covers

(1) The following persons must secure a well cap or well cover on a well in accordance with the regulations:

(

a) a person who drills a well or alters a well;

(

b) a person who owns a well that does not have a well cap or well cover secured on the well.

(2) If a well owner does not comply with subsection (1) (

b) and the owner of the land on which the well is located does not know who owns the well, the owner of that land must comply with subsection (1) (b).

(3) A person must not remove the well cap or well cover from a well except for the purpose of

(

a) inspecting, developing, disinfecting, maintaining, repairing or altering the well or inspecting, maintaining, repairing, replacing or altering works associated with the well,

(

b) installing, re-installing, removing or testing a well pump,

(

c) testing the flow of the well,

(

d) measuring the water level in the well,

(

e) taking a water sample from the well, or

(

f) undertaking similar activities that require temporary removal of the well cap or well cover.

(4) A person who temporarily removes a well cap or well cover as authorized under subsection (3) must replace the cap or cover in accordance with the regulations as soon as practicable after completing the work for which that cap or cover was removed.

(5) A person must not destroy, injure or tamper with a well cap or well cover.

Well identification

(1) In this section, "owner" and "water supply system" have the same meaning as in

section 1 [definitions] of the Drinking Water Protection Act .

(2) The following persons must attach an identification plate to a well or wellhead in accordance with the regulations:

(

a) a person responsible for drilling a well or altering a well that does not have an identification plate attached;

(

b) unless a plate is attached under paragraph (a), the owner of a water supply system.

(3) Subsection (2) does not apply in respect of a monitoring well, a geotechnical well, a closed-loop geoexchange well or a well made for the purpose of groundwater remediation.

(4) A person who is required to attach an identification plate under this

section must submit a report in accordance with the regulations to

(

a) the comptroller, and

(

b) a water manager, an engineer or an officer, if directed to do so by that official.

(5) A person who decommissions a well must remove and destroy the identification plate referred to in subsection (2).

Decommissioning or deactivating well

(1) For the purposes of