What's a Water Right?
October 2, 2019
In this post, let’s look into what a water right means to the land owner. Recall in my last post that in BC, the province affirms “ownership” or “guardianship” of water in the Water Sustainability Act (WSA). However, a BC land owner or business owner can acquire a right from the government to divert and use groundwater for their benefit. That right is either granted in the WSA for domestic (household) groundwater use (Section 6 of the WSA) or, for all other uses, via a licence (or use approval if the use does not exceed 2 years). In exercising this right, the land owner must make beneficial use of the water – that’s a fundamental requirement.
A water right does not mean that government guarantees you the quantity and quality of water, but rather, authorizes you to access that quantity if it is there.
A question many may have is: “What’s non-domestic use and do I need a licence to use that water?”. Non-domestic use is pretty much everything that falls outside of normal household (or domestic) use.
The following are just some examples of water uses and users that are non-domestic and require a water licence:
- Gas station
- Work camp
- Golf course
- Live stock
- Greenhouse or nursery
- Commercial business
- Water hauling
- Fish farm
- Ski hill
I have purposely focused this list on smaller enterprises because this is the audience I want to reach.
What many may not appreciate about a water right is that, whether granted in the WSA (domestic groundwater use) or in a licence (non-domestic water use), it will have priority relative to someone else’s water right based on date of precedence (DOP). That is to say, the date of precedence of one’s groundwater use competes directly with the dates of precedence of other water users diverting water from the same source (or a connected source).
The water rights system in BC is seniority-based, not unlike in a unionized work environment. When there is lots of water to go around, seniority is not an issue. But when there is not enough water for everyone, seniority can be critical as to whether a water user can get access to and use their water (exercise their right) or not!
This system of water rights is based on the principle of prior appropriation and is referred to as a First-in-Time, First-in-Right (or FITFIR) system. Other jurisdictions like Alberta and Washington have a similar scheme. The FITFIR scheme applies to use of groundwater and water in a stream (vested water – see my last post for an explanation of this). The WSA was set up to have one system of prioritizing water rights because in BC stream and groundwater sources are commonly connected due to the geology. For example, diverting groundwater from an aquifer adjacent to a stream may deplete stream flow and, in turn, negatively impact both the aquatic ecosystem and users diverting water from the stream.
The WSA does, however, recognize basic human consumption and adequate streamflow for fish and the aquatic ecosystem ahead of FITFIR. These exceptions were recognized in the WSA because of concerns voiced by the public and stakeholders during consultation that basic human and aquatic ecosystem needs are fundamental needs that should be above all others. The figure to the left shows the order of priority of water uses in BC, based on the precedence of water rights described in Section 22 of the WSA.
In future posts, I will look at what’s in a water licence, water rental fees, impact of licensing on existing and new groundwater users, and more.
Finally, I need your help particularly to reach small business and land owners who may not be aware of the Water Sustainability Act and the recent requirements for groundwater use. Please let those users know of the blog posts. Thanks!
Thanks to C. Pinches of Western Water Associates Ltd. for her input on the draft of this post.