The National Assembly unanimously adopted on June 11, 2009 the Act to affirm the collective nature of water resources and provide for increased water resources protection (Act). The Act amends the Environment Quality Act (EQA) to add specific provisions pertaining to water resource protection and management. Although adopted the main provisions of the Act, and particularly the amendments to the EQA, will come into effect at a later date.
The Act confirms the legal status of water in Québec and its entity as a common heritage of the Québec nation. The "user-pays" principle is reflected in the Act through the power to subject the withdrawal of water in excess of 75,000 litres per day to the prior authorization of the Minister of Sustainable Development, Environment and Parks. According to the amendments, before authorizing any such withdrawal, the Minister will be required to ensure the protection of water resources. Besides giving priority to satisfying public health, sanitation, civil protection and drinking water supply needs, the Minister, before granting such authorization, will also be required to reconcile the protection needs of aquatic ecosystems and the needs of agriculture, industry, energy protection and other human activities, including recreation and tourism.
The amendments to the EQA further require that when making a decision on the exercise of the powers conferred to the Minister, the Minister shall take into account, in addition to specifically environmental impacts and public observations, the consequences of the withdrawal of water having regard to (1) the water use rights of other persons or municipalities in the short, medium and long terms, (2) the availability and distribution of water resources, with a view to satisfying or reconciling current and future needs of different water uses, (3) the foreseeable development of rural and urban areas, particularly as regards the objectives of the land use planning and development plan of any regional county municipality or metropolitan community affected by the withdrawal, and the balance that must be maintained between different water uses, and (4) the economic development of a region or municipality. If granted, the water withdrawal authorization will be valid for 10 years.
In addition, the Act enables the Attorney General of Québec to institute an action "in the name of the State as custodian of the interest of the nation in water resources" against a person who, through fault or illegal act, caused damage to water resources, including impairment of their physical, chemical or biological properties, ecological functions or quantitative status. The action will allow one or more of the following remedies: restoration of the water resources to their original state or state similar to their original state, reparation through compensatory measures, or reparation by payment of compensation in a lump sum or otherwise.
The Government adopted on August 12, 2009, the Regulation respecting the declaration of water withdrawals (O.C. 875-2009) that will come into force on September 10, 2009. The purpose of the Regulation is to ensure a better knowledge and a better protection of the environment by allowing the Government to assess the impact of the withdrawals on water resources and ecosystems, and to allow the Government to establish measures to prevent conflicting uses of water resources. It is also intended to achieve more responsible water use through withdrawal accountability mechanisms by making the largest water withdrawers in the Province more aware of the intrinsic value of water resources and the responsibility each person has to preserve the quality of water and sufficient quantity of it to meet the needs of the current and future generations.
The Regulation requires any person or municipality "withdrawer" whose water withdrawals total an average daily volume of 75 cubic metres or more per day to submit an annual declaration describing the withdrawal activities by specifying the monthly volumes of water withdrawn. The Regulation will not apply to domestic use withdrawals (use of a personal well or surface water intake for one household only), water withdrawals to supply vehicles either for the needs of persons or animals being transported or for ballast, or other needs incidental to the operation of the vehicles, water withdrawals exclusively for firefighting purposes, water withdrawals from a distribution system, those intended for agricultural or fish-breeding purposes and those intended for hydroelectric power generation. The withdrawers required to submit an annual declaration, are required to keep a register indicating the description of the withdrawal site and, where applicable, the measuring equipment or estimation method used, as well as the results of the measurement of the volumes of water withdrawn, the description and date, where applicable, of malfunctions, breakdowns, abnormalities or other defects having affected the measuring equipment, and repairs or adjustments made. Obligations pertaining to the measuring equipment and the accuracy of measured data are also set forth under the Regulation. A contravention of applicable provisions of the Regulation can render the withdrawer liable, in the case of a company, to a fine of $6,000 to $100,000 for a first offence and to a fine of between $12,000 to $200,000 in case of a second or subsequent offence. See: www.assnat.qc.ca/eng/39legislature1/pv/PA20090611.pdf