August 31, 2020

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The Evolution of FITFIR in BC

When the BC government was engaging the public about the Water Sustainability Act (WSA - c2008 to 2014), there were generally two main feedbacks about water allocation (water rights): 1) maintain the existing First-in-Time, First-in-Right (FITFIR) system or 2) replace FITFIR altogether with a system of best and highest use, for example. In the end, the WSA kept the FITFIR system but modified it to allow:

·       protection of critical environmental needs; and

·       recognition of essential household use above all other water uses.

In this post, I’d like to share some insights into the evolution of the FITFIR system of water rights in BC and what a modified FITFIR system might be like when applied.

Objection to FITFIR and allure of best and highest use

A main objection to FITFIR is that it is a strict, senority-based system. A system of priority of water rights based on date of precedence is clear but uncompromising (priority based on type of water use only comes into play when the date of precedence between licences are equal). During public engagement, the view of best and highest use of water as a water rights priority system was put forth by many members of the public and environmental groups to replace FITFIR. Water for drinking and water for maintaining the aquatic environment were commonly put forth as the best and highest uses; water for facilitating resource extraction, including water bottling, would have a lower priority. Mixed somewhere in the middle is water used for irrigating forage crops (e.g., hay for cattle) which some viewed as being a lesser priority and water for growing food which many viewed as a higher priority. Best and highest use reflects a priority on human and ecological needs over senority. The majority of existing water users (i.e., licensees and existing groundwater users), however, preferred FITFIR. This may reflect their acceptance of a senority-based system that they are already familiar with and possibly reflects a more economic and production-based perspective.

Additional options like proportional reduction (e.g., every licensee reduces use by, say, 50%) were also considered by government. However, in the end, the following were major factors – potential compensation costs and hydraulic connection between surface water and groundwater – that influenced the BC government to keep FITFIR but modify it to address the main objections related to a FITFIR based water rights system.   

1.      Potential compensation costs

A change from a FITFIR system to a best and highest use system (or any other system) will mean some of the current senior licensees will no longer have highest priority. Their decrease in priority raises the question of compensation because their water right will have been negatively affected by a change in the water rights system. Government did not want to be liable for compensation as a result of a significant change in the water rights system. Another concern was the lobbying that may occur from different sectors to argue to move up in priority in any list of water uses, and that list could change over time, depending on economic and environmental priorities at that moment.

2.      One system for surface water and groundwater

In developing the WSA, government was not interested in revamping the system of water rights for use of water from streams (potential compensation costs) but was open to a novel system of licensing groundwater use. However, given that water in a stream and in an aquifer commonly exist in hydraulic connection, it was important to have the same water rights system to address conflicts. In times of water shortages, how can use of surface water and groundwater where hydraulic connection exists be prioritized if their systems of priority were different? Which system would over-ride the other?

How government addressed long-standing objections with FITFIR

Government did, however, modify FITFIR to reflect water for basic human uses and critical environmental flow needs as priorities within a FITFIR water rights system:

·       The WSA allows the Minister of Forests, Lands and Natural Resource Operations and Rural Development (FLNRORD) or Cabinet to declare a significant water shortage and for the comptroller to issue a critical environmental flow protection order (without right of appeal) to curtail water use during times of water shortages on streams using FITFIR. In this way, it is protection of critical environmental flow that triggers curtailment of water use (Sections 86 and 87 of the WSA).

·       Any order to curtail water use under FITFIR, whether triggered by critical environment flow needs or not, also recognizes essential household use of 250 L/day as the highest priority above all other water uses (Section 22 (10)). This was considered acceptable within the FITFIR system because the amount of water for essential household use is considered insignificant and the policy for prioritizing essential household use above all other water uses was expected to receive popular support and broad acceptance.

The diagram above shows how the critical environmental flow needs (CEFNs) and essential household uses (EHUs) work within BC’s modified FITFIR system of water rights. During times of water abundance (blue dashed line) all water users get their allocation of water. However, during times of water shortages (orange dashed line), curtailment of water use must happen. In the past (pre-WSA), when CEFNs and EHUs were not recognized, curtailment might have happened where the three junior licensees (above the orange dashed line) were curtailed to make up the shortfall, considering only the rights of the senior water users (diagram on the left). Now with the WSA, CEFNs would trigger curtailment of water use (following FITFIR), and CEFNs and EHUs become the highest priorities. This results in taking action on all the junior water users and even some senior water users, so as to protect CEFNs, EHUs, and the most senior water users (diagram on the right). Curtailment of water use can still happen even if CEFN was not the trigger, and EHUs would still be the highest priority above other water uses in BC’s modified FITFIR system.

The BC government accepted the modified FITFIR water rights system because curtailment still follows FITFIR, but recognizes critical environmental flow needs and essential household uses above all other uses.

Minister’s fish protection order which can over-ride FITFIR

The WSA provides yet another way to curtail water use during times of water shortages – a Minister’s fish protection order. When the survival of a fish population is threatened, the Minister can issue a temporary fish protection order to curtail water use that can over-ride FITFIR altogether. This provision for the Minister to temporarily order curtailment of water use already existed in the Fish Protection Act and was ported over to the WSA (into Section 88).

Taking action following modified FITFIR (or not)

Given that there are two ways to curtail water use now (modified FITFIR and a Minister’s fish protection order that can over-ride FITFIR altogether), it will be interesting to see how curtailment of water use proceeds.

Curtailment of water use based on modified FITFIR requires that the date of precedence of water users be known. This implies that the BC government must have an accurate picture of who holds water rights within a watershed or aquifer, and as importantly, who do not. This is especially challenging during the current period when existing groundwater users are being transitioned into the licensing scheme and not all users have applied for a licence.

The Minister’s fish protection order issued in August 2019 for the Koksilah River watershed (on Vancouver Island) targeted industrial use and irrigation for forage crops only. This targeting of specific water use(s) may have obvious advantages. However, by being selective, it may over-look unauthorized users who do not fall within those use(s) targeted for curtailment. A Minister’s fish protection order may be attractive because the Minister can pick and choose what water use(s) to curtail to be most effective and least politically explosive, so long as the test of protecting survival of a fish population is met.

However, the original intent of the Minister’s fish protection order was that it would be used only on rare occasions to protect the survival of a fish population, while (modified) FITFIR remained the bedrock water rights system in BC. A modified FITFIR system allows water users to know their senority based on date of precedence and to plan for mitigation during water shortages (e.g., by investing in storage). A Minister’s fish protection order gives little opportunity for water users to plan for mitigation because the specific water use targeted for curtailment is not systematically known.

Finally, what the WSA explicitly addresses is taking action on water users who are authorized to divert and use water in accordance with the Act. What the WSA does not say, but what fairness demands, is that unauthorized uses are addressed by the BC government on an on-going basis.

Looking ahead

In the past, taking action to curtail water use during a time of water shortage was rare in BC. One reason is that it is politically difficult to do. Another is that voluntary actions during occasional water shortages provided an acceptable alternative. Also, the effectiveness of taking action was significantly limited by the fact that groundwater use was not regulated at all.

The authority to issue critical environmental flow protection orders and to prioritize essential household needs during taking of any action following FITFIR has rounded some of the hard edges off of FITFIR. Licensing of surface water and groundwater and recognition of hydraulic connection will allow taking of action to be more effective. Given the continued demand for water to support land development, a changing climate affecting water supplies, anadromous fish stocks in peril, the limits of voluntary actions where shortages become more chronic, taking of action, whether following modified FITFIR or not, will become increasingly expected over time in BC, particularly along the east coast of Vancouver Island, Lower Mainland and Southern Interior.

I thank D. Forsyth for critical input to this post.