Should waves of concern wash over British Columbia after the Canadian Centre for Policy Alternatives sent a letter to the B.C. Environmental Assessment Office claiming nearly 60 unlicensed dams were built in northeast B.C. to store fresh water for natural gas fracking operations? The letter claims many of these dams lack proper regulatory authorization, show signs of failing and were built without meaningful consultation with First Nations, boosting interest in, and media attention to, regulation of water storage facilities in B.C.
This bulletin provides an overview of the regulatory framework for dams in B.C., which was recently updated by the B.C. Water Sustainability Act (WSA) and its associated regulations. The WSA replaced the former B.C. Water Act regime and came into force in February 2016. For more information, see our March 2016 Blakes Bulletin: B.C. Enters New Era of Water Regulation as Water Sustainability Act Is Brought into Force.
Under the updated WSA, dams need to have a water licence and, if they are over a certain size, must also meet the requirements in the Dam Safety Regulation (DSR). Further, larger dams are subject to an environmental assessment and approval under the Environmental Assessment Act (EAA).
WATER SUSTAINABILITY ACT
An application for a water licence under the WSA is the first step towards obtaining proper authorization to construct a dam. The WSA governs the use of water in B.C. and applies to dams, which are considered “works” (anything used for diverting, storing, confining, or using water) under the WSA. There is no minimum threshold under the WSA — any structure that allows water to be diverted, stored or used is required to have a water licence.
A dam owner or operator who constructs or operates an unauthorized dam is subject to an offence, the minimum penalty for which is a fine of up to C$200,000 for each day the offence continues, or up to six months of imprisonment.
Once issued a water licence, dam owners and operators are responsible for complying with its terms and conditions. They are also potentially liable for any loss or damage resulting from the construction, operation or failure of their dam.
DAM SAFETY REGULATION
The DSR prescribes safety and reporting requirements for dams that are 7.5 metres high or greater and capable of storing 10,000 cubic metres of water — about the size of four Olympic swimming pools. The DSR applies to owners of dams who store or divert water from a stream, aquifer or both.
A dam owner includes both the water licence holder of the dam and a person who should — under the WSA — hold a water licence, even if they do not. Within 60 days after the construction of a dam, a dam owner must consider the height, storage capacity and dam failure consequence classification of their dam to determine which parts of the DSR apply, if any.
The dam failure consequence classification is essentially a marker of the risk the dam poses to the surrounding environment, population and infrastructure if it were to fail. The dam classification must be reviewed annually, especially for changes, and reported to the B.C. dam safety officer.
Dam owners must properly maintain their dam to keep it in good operating condition to prevent significant harm to public safety or the environment. Of the dams regulated by the DSR, those that exceed certain height and capacity criteria, or that pose a significant level of risk based on their classification, must comply with numerous additional safety and reporting requirements.
The DSR contains an extensive list of offences if an owner fails to comply with the various requirements in the regulation, as well as high penalty offences for safety related provisions. Commission of an offence can result in a fine of up to C$200,000 (or C$1-million for high penalty offences) for each day the offence is continued, in addition to possible imprisonment for up to six months.
ENVIRONMENTAL ASSESSMENT ACT
The B.C. EAA provides a process for reviewing major projects to assess their potential impacts and to ensure the issues and concerns of stakeholders and Indigenous Peoples are addressed. Under the EAA, construction or operation of what is called a “reviewable project” is prohibited without first obtaining an environmental assessment certificate for the proposed project.
New, modified or abandoned dams are designated as “reviewable projects” if they surpass the height and capacity criteria set out in the Reviewable Projects Regulation.
While media stories reporting on letters from NGOs to government regulators may necessarily support a wave of concern on their own, the regulation of the construction and operation of dams has come under increased scrutiny in light of dam failures in Canada in recent years. Businesses who own or operate water storage facilities should review their operations to ensure that all necessary approvals and authorizations are in place.