Part 4 – Water Management Plans

Order designating area for planning process

62 (1) The minister may, by order, designate an area for the purpose of developing a water management plan if the minister considers that a plan will assist in addressing or preventing

(a) conflicts between water users,

(b) conflicts between water users and instream flow requirements, or

(c) risks to water quality.

(2) Without limiting the reasons for which an order under subsection (1) may be made, the minister may consider concerns related to fish, fish habitat and other environmental matters.

(3) An order under subsection (1) must include the reasons for which it is made.

(4) An area designation under subsection (1) may be by any delineation of the area that adequately describes it including, for example, name, map, plan, legal description, reference to a stream, reference to an aquifer or other geological formation or part of one, depth or other dimension, or by any combination of methods.

Plan development process

63 (1) The minister may, by order, establish the process by which a proposed water management plan for a designated area is to be developed.

(2) Without limiting subsection (1), an order under that subsection may

(a) establish who is to be responsible for preparing the proposed plan,

(b) establish the terms of reference for the plan, or authorize the preparation of some or all of the terms of reference subject to approval by the minister, and

(c) require the establishment of a technical advisory committee in relation to development of the plan.

(3) The terms of reference for a proposed water management plan must include

(a) the purpose of the plan,

(b) the issues to be addressed in the plan,

(c) a process for public and stakeholder consultation, and

(d) a time limit for completing the plan.

(4) Without limiting the terms of reference that may be established for a proposed water management plan, they may include considerations relating to water in a stream, ground water and surface water runoff not in a stream.

(5) In preparing a proposed water management plan, consideration must be given to the results or progress of Provincial government or local government strategic, operational and land use or water use planning processes within the designated area.

(6) A proposed water management plan may be prepared in conjunction with a proposed drinking water protection plan under the Drinking Water Protection Act.

(7) The minister may, by order, extend the time for completing a proposed water management plan whether or not the time previously set has expired.

(8) For the purposes of developing a proposed water management plan, the person responsible for preparing the plan may

(a) order licensees to provide information that the person considers advisable,

(b) undertake investigations, tests and surveys that the person considers advisable, and

(c) authorize other persons to undertake investigations, tests and surveys referred to in paragraph (a).

(9) For the purposes of this section, the minister may direct that section 83 applies to the person responsible for preparing a proposed water management plan and persons working under that person’s direction, subject to any limits or conditions established by the minister.

Approval of water management plan

64 (1) After a proposed water management plan has been prepared, it must be submitted to the minister.

(2) After reviewing the proposed plan, the minister must place the proposed plan and any comments of the minister before the Lieutenant Governor in Council, who may approve all or part of the proposed plan as a water management plan.

(3) If a water management plan is approved by the Lieutenant Governor in Council, the minister must arrange for the plan to be made public.

Implementing a plan: effect on statutory decisions

65 (1) For the purposes of implementing a water management plan, the Lieutenant Governor in Council may, by regulation applicable in relation to all or part of the designated area for the plan, do one or more of the following:

(a) require that persons making decisions or classes of decisions under a specified enactment must consider the plan in making those decisions;

(b) restrict the issuance or amendment of licences, approvals, permits or other authorizations under a specified enactment;

(c) restrict the exercise of a power under a specified enactment.

(2) As a limit on subsection (1) (b) and (c), a regulation under that subsection may not be made in relation to

(a) the Forest Practices Code of British Columbia Act, or

(b) the Forest Act or the Range Act, respecting an authorization or the exercise of a power under those Acts, if the Forest Practices Code of British Columbia Act, or the standards or regulations under that Act, apply in relation to the activity authorized or the power.

(3) Despite an enactment specified under subsection (1), a regulation under subsection (1) (b) may establish requirements that must be imposed in issuing or amending a licence, approval, permit or other authorization under an enactment.

(4) Requirements imposed under subsection (3) are deemed to be imposed under the enactment under which the authorization is issued or amended.

(5) The issuance or amendment of a licence, approval, permit or other authorization contrary to a regulation under subsection (1) (b), or the exercise of a power contrary to a regulation under subsection (1) (c), has no effect.

Implementing a plan: restrictions on well drilling

66 (1) For the purposes of implementing a water management plan, the Lieutenant Governor in Council may, by regulation applicable to all or part of the designated area for the plan, restrict or prohibit one or more of the following:

(a) the drilling of wells;

(b) the alteration of wells;

(c) the installation of well pumps;

(d) the conduct of flow tests.

(2) In relation to a regulation under subsection (1), the Lieutenant Governor in Council may, by regulation, do one or more of the following:

(a) prescribe exemptions from a requirement for a drilling authorization under section 81 [drilling authorizations];

(b) prescribe requirements for the giving of notice respecting an application for a drilling authorization;

(c) prescribe classes of persons who may appeal a decision respecting such an application under section 92 [appeals to Environmental Appeal Board].

Review and amendment of plans

67 The minister may, by order, direct that a current water management plan be reviewed to determine whether amendments should be made, and this Part applies to the review and to any amendment to the plan proposed by the review.

Part 5 – Wells and Ground Water Protection

Definitions

68 In this Part and Part 6:

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

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

(b) if paragraph (a) does not apply and the activity is supervised or performed by a qualified well driller or a qualified well pump installer, that qualified well driller or qualified 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;

"qualified professional" means

(a) a professional engineer, or

(b) a professional geoscientist

who is registered or licensed under the Engineers and Geoscientists Act;

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

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

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

Restrictions on constructing wells, closing wells and related activities

69 (1) This section applies to a person who

(a) constructs a well,

(b) closes a well,

(c) deactivates a well, or

(d) disinfects a well.

(2) Subject to section 70 [restrictions respecting well pumps and flow tests], a person referred to in subsection (1) must

(a) comply with the applicable regulations, and

(b) either

(i) be a qualified well driller, or

(ii) act under the direct supervision of

(A) a qualified well driller, or

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

(3) Subsection (2) (b) 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 closing a geotechnical well that is not a monitoring well, if the activity of constructing the well is not likely to disturb and does not disturb an aquifer;

(d) a prescribed

(i) class of person,

(ii) class of well,

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

(iv) activity including, without limitation, an activity prescribed by regulation as routine maintenance.

(4) A person performing an activity referred to in subsection (3) (c) or prescribed under subsection (3) (d) who disturbs an aquifer must stop performing that activity until he or she 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

70 (1) This section applies to a person who

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

(b) conducts a flow test of a well, or

(c) disinfects a well or a well pump.

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

(a) comply with the applicable regulations, and

(b) either

(i) be a qualified well pump installer or a qualified well driller, or

(ii) act under the direct supervision of

(A) a qualified well pump installer,

(B) a qualified well driller, or

(C) a qualified professional who has competency in the field of hydrogeology or geotechnical engineering.

(3) Subsection (2) (b) does not apply in respect of the following:

(a) a person installing a well pump in a monitoring well or a geotechnical well;

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

(c) a prescribed

(i) class of person,

(ii) class of well or well pump,

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

(iv) activity including, without limitation, an activity prescribed by regulation as routine maintenance.

Qualified well drillers and qualified well pump installers

71 A person who is performing or directly supervising activities that under this Act must be performed or directly supervised by a qualified professional, a qualified well driller or a qualified well pump installer, must provide proof of their qualifications on the request of any of the following persons:

(a) the comptroller;

(b) the regional water manager;

(c) an engineer;

(d) an officer;

(e) a drinking water officer.

Well reports

72 (1) Subject to the regulations, a person responsible for

(a) constructing a well,

(b) installing a well pump,

(c) conducting a flow test of a well, or

(d) closing a well

must maintain a daily log containing the prescribed information and must complete a report in accordance with the regulations.

(2) The person referred to in subsection (1) must retain and produce at the request of an officer, an engineer or a drinking water officer the log and report required under subsection (1).

(3) A person who is required under subsection (1) to complete a report must submit a copy of the report in accordance with the regulations to

(a) the comptroller,

(b) the well owner, and

(c) if requested by the regional water manager, an engineer or a drinking water officer, that official.

(4) Subsection (3) does not apply in respect of a monitoring well, a geotechnical well or a well made for the purpose of ground water remediation.

Water analyses for new or altered wells

73 (1) A person responsible for drilling a well or making prescribed alterations to a well must, in accordance with the regulations,

(a) take or cause to be taken, and

(b) cause to be analyzed

a sample of the ground water in the well.

(2) If the ground water in a well is to be used for "domestic purposes" within the meaning of the Drinking Water Protection Act, the sampling and the analyses of the ground water must also comply with the requirements of that Act and the regulations under that Act.

(3) A person who is required to comply with subsection (1) or (2) must submit a copy of the results of the analyses to

(a) the comptroller,

(b) the well owner, and

(c) if requested by the regional water manager, an engineer or a drinking water officer, that official.

(4) This section does not apply to a person responsible in respect of a monitoring well, a geotechnical well or a well made for the purpose of ground water remediation.

Well identification

74 (1) In this section "owner" and "water supply system" have the same meanings as in 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 making a prescribed alteration to a well;

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

(3) Subsection (2) does not apply in respect of a monitoring well, a geotechnical well or a well made for the purpose of ground water 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) if requested by the regional water manager or an engineer, that official.

(5) A person who closes a well in accordance with section 69 [restrictions on constructing wells, closing wells and related activities] must remove the identification plate referred to in subsection (2) and submit it to the comptroller with the report under section 72.

Closing or deactivating a well

75 (1) For the purposes of this section, a well is considered to be in service if

(a) the well is used regularly or on a periodic basis, or

(b) the well is kept active as a backup water supply.

(2) Despite subsection (1), a well is considered not in service

(a) if it is not used for a prescribed period, which may be different for different circumstances, or

(b) in prescribed circumstances.

(3) Subject to the regulations, if a well is not in service, the well owner must have the well deactivated or closed in accordance with section 69 [restrictions on constructing wells, closing wells and related activities].

(4) If a deactivated well is not in service for a prescribed period or if the owner does not intend to put a well in service or does not put a well in service for that prescribed period, the well owner must have the well closed in accordance with section 69 [restrictions on constructing wells, closing wells and related activities].

(5) If the owner of the land on which the well is located does not know who owns the well, the owner of the land must comply with subsections (3) and (4).

Well caps or well covers

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

(a) the person who drills a well or makes a prescribed alteration to a well;

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

(2) If the 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 the 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 or testing a well pump,

(c) testing the flow of a well,

(d) taking a water sample, or

(e) 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 that cap or cover as soon as practicable after completing the work for which it was removed.

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

Controlling artesian flow

77 (1) If a qualified well driller or a qualified professional encounters artesian conditions while constructing a well or supervising the construction of a well, that person must ensure 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.

(2) Any person 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 engage a qualified well driller or a qualified professional, who must comply with subsection (1).

(3) If a qualified person referred to in subsection (1) or (2) takes steps to stop or control the artesian flow, that person must notify the well owner.

(4) If a person referred to in subsection (1) or (2) fails to comply with those subsections, the well owner must comply.

(5) The owner of a flowing artesian well must engage a qualified professional or a qualified well driller to ensure that the flow of that well is stopped or brought under control.

(6) If the well owner does not comply with subsection (5) and the owner of the land on which a flowing artesian well is located does not know who owns the well, the owner of the land must comply with subsection (5).

(7) A person responsible for stopping or controlling artesian flow under this section must stop or control that artesian flow in accordance with the regulations and any directions of an engineer.

Well operation

78 (1) A person must operate a well in accordance with the regulations and any directions of an engineer in respect of it.

(2) A person must not operate a well in a manner that causes or is likely to cause

(a) the intrusion of salt water or contaminated water into

(i) an aquifer from which that well draws ground water, or

(ii) any well that draws ground water from that aquifer, and

(b) a significant adverse impact on

(i) the quality of the ground water in that aquifer, or

(ii) the existing uses made of the ground water from any well that draws from that aquifer.

(3) Subsection (2) does not apply

(a) to a well made for the purpose of ground water remediation, or

(b) with respect to a prescribed activity in relation to a prescribed class of well.

(4) For the purposes of a prosecution under section 93 (3) (k) [general offences], it is not necessary to prove that the salt water or contaminated water, if diluted subsequent to the intrusion, continued to cause or to be likely to cause a significant adverse impact on the quality of the ground water in the aquifer or the existing uses made of the ground water from any well that draws from that aquifer.

Prohibition on introducing foreign matter into a well

79 (1) A person must not introduce, allow to be introduced or cause to be introduced any of the following into a well:

(a) refuse;

(b) carcasses;

(c) human or animal waste;

(d) pesticides or fertilizers;

(e) material, natural or otherwise, from construction or demolition;

(f) any other prescribed matter or substance;

(g) a contaminant, or a prescribed matter or substance, in such amounts or in such a manner as to cause or to be likely to cause a significant adverse impact on

(i) the quality of ground water in the well, or

(ii) the existing uses made of the ground water from the well.

(2) Subsection (1) does not apply with respect to

(a) a well owner in the proper operation, disinfection, maintenance, repair, deactivating or closing of a well in accordance with the regulations,

(b) a well made for the purpose of ground water remediation,

(c) activities authorized or required by or under an enactment,

(d) a prescribed activity undertaken in accordance with any conditions prescribed by regulation, or

(e) a prescribed contaminant, matter or substance.

(3) For the purposes of prosecuting a contravention of subsection (1) (g), it is not necessary to prove that the contaminant, matter or substance, if diluted subsequent to the introduction into the well, continued to cause or to be likely to cause a significant adverse impact on the quality of the ground water in the well or the uses made of the ground water from the well.

(4) An engineer may order a person

(a) to stop the introduction of,

(b) to remove, or

(c) to undertake measures, as directed by the engineer, to remediate or mitigate the effects of the introduction of

any thing, contaminant, matter or substance introduced into a well contrary to subsection (1).

(5) If the engineer cannot ascertain who contravened subsection (1), the engineer may make an order under subsection (4) against the well owner.

(6) If the engineer cannot ascertain who contravened subsection (1) or who owns the well, the engineer may make an order under subsection (4) against the owner of the land on which the well is located.

(7) If a person who is subject to an order under subsection (4), (5) or (6) fails to comply with that order and the comptroller or regional water manager considers that that failure may result in harm or damage to ground water in the aquifer, the comptroller or regional water manager may authorize the government or another person, at the expense of the person who is subject to the order, to take the actions necessary to comply with that order.

(8) If work is carried out under subsection (7), the costs to the government are a debt due to the government by the person who is subject to the order under subsection (4), (5) or (6).

(9) This section does not limit the authority under section 86 [power of comptroller if disobeyed] or 88 [powers of engineers and officers].

Wells on Crown land

80 (1) Sections 75 [closing or deactivating a well], 76 [well caps or well covers], 77 [controlling artesian flow] and 79 [prohibition on introducing foreign matter into a well] do not apply to the government as the owner of land on which a well is located unless

(a) the well was drilled by or on behalf of the government, or

(b) the well was purchased by the government.

(2) If a person

(a) on or after the date this provision comes into force, has a right to use or occupy Crown land on which a well is constructed or located, and

(b) fails to comply with section 75 [closing or deactivating a well], 76 [well caps or well covers], 77 [controlling artesian flow] or 79 [prohibition on introducing foreign matter into a well],

the government may enforce the applicable provision against that person as if that person were the owner of the land on which the well is located, despite any subsequent termination of the right to use or occupy the land.

Drilling authorizations

81 (1) If a regulation under section 66 of this Act or under section 36 of the Drinking Water Protection Act imposes restrictions for an area in respect of

(a) drilling a well,

(b) altering a well,

(c) installing well pumps, or

(d) conducting flow tests,

a person must not engage in that restricted activity in that area without a drilling authorization issued under this section.

(2) A person who requires a drilling authorization under subsection (1) must apply for the drilling authorization to the comptroller, the regional water manager or an engineer in accordance with the regulations.

(3) With respect to an application for a drilling authorization, the comptroller, the regional water manager or an engineer may do one or more of the following:

(a) refuse the application;

(b) amend the application in any respect;

(c) grant all or part of the application;

(d) require additional plans or other information;

(e) require the applicant to give security for the purposes and in the amount and form the comptroller, the regional water manager or the engineer considers in the public interest;

(f) issue a drilling authorization with the conditions the comptroller, the regional water manager or the engineer considers advisable.

(4) The comptroller, a regional water manager or an engineer, on the conditions that official considers advisable, may

(a) amend a drilling authorization,

(b) suspend a drilling authorization, or

(c) cancel a drilling authorization.

(5) If an amendment to a drilling authorization would substantially change the drilling authorization, the comptroller, a regional water manager or an engineer may issue in substitution for it another drilling authorization on the conditions that official considers advisable.

(6) In considering an application under subsection (2), the comptroller, regional water manager or engineer must consider the water management plan or drinking water protection plan to which the regulation referred to in subsection (1) relates.

(7) The comptroller, the regional water manager or an engineer must not issue a drilling authorization unless

(a) the applicant is the owner of the land on which the well and any works related to the well are or will be located, or

(b) if the applicant is not the owner of the land on which the well or the works related to the well are or will be located, the applicant submits the prescribed evidence of the consent of the owner of the applicable land.

(8) A person to whom a drilling authorization is issued under subsection (3) must comply with the conditions contained in it and any applicable requirements of

(a) this Act and the regulations, or

(b) any other enactment.

(9) A drilling authorization may not be issued under this section for an activity that is prohibited by a regulation referred to in subsection (1).

Ground water advisory board

82 (1) The minister may establish a ground water advisory board to provide technical advice with respect to

(a) qualifications of qualified well drillers and qualified well pump installers,

(b) standards or codes in respect of

(i) constructing a well, siting a well or installing a well pump,

(ii) designing, testing, operating, disinfecting, floodproofing, capping or covering a well,

(iii) closing or deactivating a well,

(iv) removing works from a well,

(v) conducting a flow test of a well,

(vi) the design, construction, installation, testing, operation, alteration, maintenance, repair, disinfection or replacement of works relating to a well or ground water,

(vii) sampling and analyzing ground water for a new or altered well, or

(viii) stopping or controlling the flow of a flowing artesian well, and

(c) any matter related to ground water specified by the minister.

(2) The chair and members of the advisory board are to be appointed by the minister.

(3) A person appointed to the advisory board

(a) must be reimbursed in accordance with the directives of Treasury Board for reasonable travelling and out of pocket expenses necessarily incurred in discharging the person’s duties under this Act, and

(b) may be paid remuneration in accordance with the directives of Treasury Board if the person is not an employee under the Public Service Act.

Part 6 – General

Right of access to land and premises by authorized persons

83 (1) The comptroller, a regional manager, an engineer, officer or water bailiff under this Act or an officer or employee of a municipality, improvement district, development district, water users’ community, or a holder of a licence that authorizes the carriage or supply of water or electricity to the public has at all times a free right of entry and exit on, in and over any land and premises so far as is necessary in the discharge of the person’s duties or in the exercise of the person’s rights.

(2) This section also applies to a person working under the direction of the comptroller, the regional water manager or an engineer.

(3) The authority under subsection (1) must not be used to enter into a private dwelling except with the consent of the occupant or as authorized by a warrant issued under this or another Act.

Entry warrant

84 If satisfied by evidence on oath or affirmation that entry on or into land or premises is necessary for the purposes of this Act, a justice may issue a warrant authorizing any of the following persons to enter on or into that land or those premises:

(a) the comptroller, a regional water manager, an engineer or an officer;

(b) a person authorized by the comptroller or a regional water manager to carry out an order made under this Act;

(c) a person responsible for preparing a proposed water management plan.

Powers of comptroller and regional water manager

85 (1) In addition to the other powers given under this Act and the regulations, the comptroller may at any time do any act or thing that a regional water manager, engineer or officer is empowered to do under this Act or the regulations.

(2) In addition to the other powers given under this Act and the regulations, a regional water manager may at any time do any act or thing that an engineer or officer is empowered to do under this Act or the regulations.

Power of comptroller if disobeyed

86 (1) If a person to whom an order of the comptroller, a regional water manager or an engineer is directed fails to do the things ordered, the comptroller may authorize another person to do those things.

(2) Any expense incurred in the exercise of an authorization provided under subsection (1) may be recovered in any court from the person to whom the order was directed as money paid for, and at the request of, that person.

(3) In an action referred to in subsection (2), the comptroller’s certificate as to the amount of the expense is conclusive evidence of it.

(4) If the comptroller considers that it is in the public interest to remove any works, the comptroller may authorize that they be removed at the expense of the government.

(5) Money required under subsection (4) must be paid out of the consolidated revenue fund.

(6) The government may collect money spent under subsection (4) as if the works had been removed under subsection (1).

(7) A person authorized by the comptroller under this section may enter onto land and premises at any reasonable time and may take with him or her any other persons or equipment as may be necessary for the purpose of doing the things that he or she is authorized to do.

(8) The authority under subsection (7) must not be used to enter into a private dwelling except with the consent of the occupant or as authorized by a warrant issued under this or another Act.

Power to amend or revoke order

87 (1) The comptroller, at any time on notice, may amend or revoke any order of the comptroller, a regional water manager, an engineer, an officer, the Water Board or the Board of Investigation.

(2) A regional water manager, at any time on notice, may amend or revoke any order of a regional water manager, an engineer, an officer, the Water Board or the Board of Investigation.

(3) An engineer, at any time on notice, may amend or revoke any order of an engineer or an officer.

Powers of engineers and officers

88 (1) In addition to all other powers given under this Act and the regulations, an engineer may do one or more of the following:

(a) inspect, regulate, close or lock any works;

(b) inspect and regulate the construction of any works;

(c) determine what constitutes beneficial use of water;

(d) order the alteration, installation, replacement, repair, maintenance, improvement, sealing, closure or removal of, or the addition to, any works;

(e) order the restoration or remediation of any changes in and about a stream;

(f) order the construction, installation and maintenance of any measuring or testing device;

(g) order the operation of, and provision of data from, a measuring or testing device;

(h) regulate, in person or through an officer or a water bailiff, and make orders with respect to the diversion, rate of diversion, time of diversion, storage, time of storage, carriage, distribution and use of water;

(i) determine the allowances of water to offset evaporation, seepage and other losses;

(j) order the release of stored or impounded water that the engineer considers a danger to life and property;

(k) order a person to cease putting or not to put any sawdust, timber, tailings, gravel, refuse, carcass or other thing or substance into a stream;

(l) order a person to remove from a stream any substance or thing that the person has put or permitted to get into the stream;

(m) install measuring or testing devices;

(n) take measurements of or test

(i) water in a stream or ground water,

(ii) the flow of water in a stream or ground water, or

(iii) works;

(o) order a change in the operation of a well that is being operated contrary to section 78 [well operation] and give directions respecting the operation of the well;

(p) if a well has been operated or used contrary to section 78 [well operation] or 79 [prohibition on introducing foreign matter into a well], order a person to remediate or mitigate the impact on an aquifer or ground water and give directions respecting the remediation;

(q) order a person to remediate or mitigate any impact on the aquifer or ground water that results because a well was sited, constructed or floodproofed in contravention of this Act or the regulations.

(2) An order under subsection (1) may be made subject to any conditions the engineer considers advisable.

(3) Subject to the direction of an engineer, an officer may do one or more of the following:

(a) regulate, close or lock any works;

(b) regulate the construction of any works;

(c) regulate, in person or through a water bailiff, the diversion, rate of diversion, time of diversion, storage, time of storage, carriage, distribution and use of water;

(d) install measuring or testing devices;

(e) take measurements of or test

(i) water in a stream or ground water,

(ii) the flow of water in a stream or ground water, or

(iii) works.

(4) An officer may inspect works, the construction of works, an existing or proposed water use, any activity or changes in and about a stream, and any records related to the works, construction, use, activity or changes.

Power to summon witnesses

89 If it appears to the comptroller, a regional water manager or an engineer that the proper determination of a matter within his or her jurisdiction requires a public or other inquiry, he or she may hold that inquiry, and for that purpose has the power, privileges and protection of a commissioner under sections 12, 15 and 16 of the Inquiry Act.

Protection of officials

90 (1) No action for damages lies or may be brought against the comptroller or a regional water manager, engineer, officer, registrar, water recorder, water bailiff, arbitrator or person authorized under section 12.1 (6) for anything done or omitted

(a) in the performance or intended performance of any duty under this Act, or

(b) in the exercise or intended exercise of any power under this Act,

unless the person was acting in bad faith.

(2) Subsection (1) does not absolve the government from vicarious liability for an act or omission for which it would be vicariously liable if this section were not in force.

Restriction on proceedings respecting decisions under the Act

91 Except as otherwise provided in this Act, a hearing, investigation, proceeding or order of the Lieutenant Governor in Council, the comptroller, a regional water manager, a water recorder or an engineer must not be questioned, reviewed or restrained by injunction, a proceeding in the nature of prohibition or other process or proceeding in any court, or be removed by a proceeding in the nature of certiorari or otherwise into any court, except for excess or want of jurisdiction.

Appeals to Environmental Appeal Board

92 (1) Subject to subsections (2) and (3), an order of the comptroller, the regional water manager or an engineer may be appealed to the appeal board by

(a) the person who is subject to the order,

(b) an owner whose land is or is likely to be physically affected by the order, or

(c) a licensee, riparian owner or applicant for a licence who considers that their rights are or will be prejudiced by the order.

(1.1) Despite subsection (1), a licensee may not appeal an order of the comptroller or a regional water manager to cancel in whole or in part a licence and all rights under it under section 23 (2) (c) or (d).

(2) An order of the comptroller, the regional water manager or an engineer under Part 5 or 6 in relation to a well, works related to a well, ground water or an aquifer may be appealed to the appeal board by

(a) the person who is subject to the order,

(b) the well owner, or

(c) the owner of the land on which the well is located.

(3) An order of the comptroller, the regional water manager or an engineer under section 81 [drilling authorizations] may be appealed to the appeal board by

(a) the person who is subject to the order,

(b) the well owner,

(c) the owner of the land on which the well is located, or

(d) a person in a class prescribed in respect of the water management plan or drinking water protection plan for the applicable area.

(4) The time limit for commencing an appeal is 30 days after notice of the order being appealed is given

(a) to the person subject to the order, or

(b) in accordance with the regulations.

(5) For the purposes of an appeal, if a notice under this Act is sent by registered mail to the last known address of a person, the notice is conclusively deemed to be served on the person to whom it is addressed on

(a) the 14th day after the notice was deposited with Canada Post, or

(b) the date on which the notice was actually received by the person, whether by mail or otherwise,

whichever is earlier.

(6) An appeal under this section

(a) must be commenced by notice of appeal in accordance with the practice, procedure and forms prescribed by regulation under the Environment Management Act, and

(b) subject to this Act, must be conducted in accordance with the Environment Management Act and the regulations under that Act.

(7) The appeal board may conduct an appeal by way of a new hearing.

(8) On an appeal, the appeal board may

(a) send the matter back to the comptroller, regional water manager or engineer, with directions,

(b) confirm, reverse or vary the order being appealed, or

(c) make any order that the person whose order is appealed could have made and that the board considers appropriate in the circumstances.

(9) An appeal does not act as a stay or suspend the operation of the order being appealed unless the appeal board orders otherwise.

General offences

93 (1) Sections 4 and 5 of the Offence Act do not apply to this Act or the regulations.

(2) A person who does any of the following commits an offence:

(a) willfully hinders, interrupts or causes or procures to be hindered or interrupted,

(i) a licensee,

(ii) a holder of a drilling authorization, or

(iii) the managers, contractors, servants, agents, or workers of a person referred to in subparagraph (i) or (ii),

in the lawful exercise of a right granted under this Act or the regulations or under a licence, approval or drilling authorization;

(b) without lawful authority, willfully destroys, damages or interferes with the works of

(i) a licensee,

(ii) a person who has obtained an approval,

(iii) the holder of a drilling authorization, or

(iv) a person who has constructed the works in accordance with the regulations;

(c) opens or closes without authority a hydrant used for fire protection, or obstructs free access to or damages a hydrant stop cock or hydrant accessory;

(d) without authority from the comptroller, an engineer or the licensee,

(i) lays or causes to be laid a pipe, or

(ii) constructs or causes to be constructed a ditch or other conduit

to connect with the works of a licensee;

(e) destroys, injures or tampers with

(i) works, or

(ii) a gauge, weir, measuring device, structure, appliance, cable, boat, instrument or tool

belonging to or placed in position by an applicant, licensee or official of Canada or of British Columbia;

(f) engages in the business of operating works to carry water, other than ground water, for others without holding a licence or other authority issued in that regard under this or a former Act;

(g) willfully interferes with a headgate, ditch, controlling works or any other works that an engineer, officer or water bailiff has regulated;

(h) willfully destroys a notice posted by an applicant, engineer, officer or water bailiff;

(i) constructs, maintains, operates or uses works without authority;

(j) puts into a stream any sawdust, timber, tailings, gravel, refuse, carcass or other thing or substance after having been ordered by the engineer or water recorder not to do so;

(k) diverts water from a stream without authority;

(l) diverts more water from a stream than the person is lawfully entitled to divert;

(m) diverts water that the person does not use beneficially;

(n) uses water when the person is not lawfully entitled to do so;

(o) uses water or permits water to be used on the person’s land during a time the person is ordered to cease the diversion of water or after the works of the person have been closed or ordered closed;

(p) fails to do an act or thing required to be done by the person under this Act or under an order of the comptroller, regional water manager, engineer or officer;

(q) makes changes in and about a stream without lawful authority;

(r) breaches the regulations or a term or condition of a licence, an approval, a permit or a drilling authorization, other than in relation to a condition established under section 5 or 6 of the Fish Protection Act;

(s) willfully makes a material misstatement or misrepresentation in a declaration under section 22.01;

(t) carries, supplies, conveys or transports water diverted from a stream without being authorized to divert, extract, use or store water from that stream, unless acting as agent for a person so authorized;

(u) contravenes section 4;

(v) fails to provide proof of qualifications as required under section 71 [qualified well drillers and qualified well pump installers];

(w) destroys, injures or tampers with any works related to ground water or a well or an identification plate for a well;

(x) constructs a well, closes a well or deactivates or disinfects a well without having qualifications as required under this Act;

(y) constructs a well, closes a well or deactivates or disinfects a well in contravention of any requirements of this Act or the regulations;

(z) willfully fails to stop constructing a well when required to do so under section 69 (4) [restrictions on constructing wells, closing wells and related activities].

(3) A person who does any of the following commits an offence:

(a) installs, maintains, repairs or tests a well pump or wellhead, or conducts a flow test of a well, without having qualifications as required under this Act;

(b) installs, maintains, repairs or tests a well pump or wellhead, or conducts a flow test of a well, in contravention of any requirements of this Act or the regulations;

(c) tampers with a ground water sample required under section 73 [water analyses for new or altered wells];

(d) fails to take or cause to be taken or analyzed a ground water sample, or fails to submit the results of the analyses, in accordance with the requirements of the Act or the regulations;

(e) sites or floodproofs a well in contravention of any requirements of this Act or the regulations;

(f) fails to attach a well identification plate or remove and return an identification plate in accordance with the Act or the regulations;

(g) fails to deactivate or close a well when required under section 75 [closing or deactivating a well];

(h) fails to secure a well cap or well cover in accordance with the requirements of the Act or the regulations or fails to replace a well cap or well cover when required to do so under section 76 [well caps and well covers];

(i) fails to stop or bring the flow of a flowing artesian well under control or fails to take steps to stop or control an artesian well that is likely to flow periodically;

(j) operates a well in contravention of any requirements of this Act or the regulations;

(k) operates a well contrary to section 78 [well operation];

(l) willfully

(i) submits a false or misleading log, record, report, form or return, or

(ii) records false or misleading information

required to be submitted or recorded under this Act or the regulations;

(m) fails to submit, produce or retain a log, record, report, form or return required to be submitted, produced or retained under this Act;

(n) fails to obtain a drilling authorization when required to do so under section 81.

(4) A person who commits an offence under this section is liable on conviction to the following:

(a) in the case of an offence that is not a continuing offence, a fine of not more than $200 000 or imprisonment for not longer than 6 months, or both;

(b) in the case of a continuing offence, a fine of not more than $200 000 for each day the offence is continued or imprisonment for not longer than 6 months, or both.

High penalty offences

94 (1) A person who does any of the following commits an offence:

(a) constructs a bank to bank dam on a protected river contrary to section 4 (3) of the Fish Protection Act;

(b) [Not in force.]

(c) breaches a term or condition of a licence, an approval or the regulations in relation to a condition established under section 5 or 6 of the Fish Protection Act;

(d) [Not in force.]

(e) introduces, or causes or allows to be introduced, into a well anything contrary to section 79 [prohibition on introducing foreign matter into a well];

(f) molests, interferes with, delays, obstructs or otherwise impedes the comptroller, the regional water manager or an engineer, water bailiff or other officer in the discharge or performance of a duty or the exercise of an authority under this Act;

(g) places, maintains or makes use of an obstruction in the channel of a stream without authority;

(h) willfully contravenes this Act or an order of the comptroller, a regional water manager, an engineer or an officer;

(i) drills a well, makes a prescribed alteration to a well, installs a well pump or conducts a flow test of a well when prohibited.

(2) A person who commits an offence under this section is liable on conviction to the following:

(a) in the case of an offence that is not a continuing offence, a fine of not more than $1 000 000 or imprisonment for not longer than 1 year, or both;

(b) in the case of a continuing offence, a fine of not more than $1 000 000 for each day the offence is continued or imprisonment for not longer than 1 year, or both.

Creative sentencing

95 (1) If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:

(a) prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

(b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to the environment that resulted or may result from the commission of the offence;

(c) directing the person to pay the government an amount of money as compensation, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the government as a result of the commission of the offence;

(d) directing the person to perform community service;

(e) directing the person to pay the Habitat Conservation Trust Fund an amount of money the court considers appropriate;

(f) directing the person to post a bond or pay into court an amount of money the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement under this section;

(g) directing the person to submit to the minister, on application by the minister within 3 years after the date of the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances;

(h) directing the person to publish, in any manner the court considers appropriate, the facts relating to the commission of the offence;

(i) requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences under this Act.

(2) The person against whom an order under subsection (1) was made, or the Attorney General, may apply to the court that made the original order for a variation.

(3) Before hearing an application under subsection (2), the court may order the applicant to give notice of the application in accordance with the directions of the court.

(4) On an application under subsection (2), if the court considers variation appropriate because of a change in the circumstances, the court may make an order doing one or more of the following:

(a) changing the original order or any conditions specified in it;

(b) relieving the person against whom the order was made absolutely or partially from compliance with all or part of the original order;

(c) reducing the period for which the original order is to remain in effect;

(d) extending the period for which the original order is to remain in effect, subject to the limit that this extension must not be longer than one year.

(5) If an application under subsection (2) has been heard by a court, no other application may be made in respect of the original order, or the order as varied under subsection (2), except with leave of the court.

(6) If a person fails to comply with an order referred to in subsection (1) (h) directing the person to publish the facts relating to the commission of an offence, the minister may publish those facts and recover the costs of publication from the person.

(7) If

(a) an order under this section directs a person to pay an amount of money as compensation or for any other purpose, or

(b) the minister incurs publication costs under subsection (6),

the amount and any interest payable on that amount constitute a debt due to the government and may be recovered as such in any court of competent jurisdiction.

Breach of creative sentencing order

96 (1) A person who contravenes an order under section 95 [creative sentencing] commits an offence.

(2) A person who commits an offence under subsection (1) is liable on conviction to the penalties provided for the offence in relation to which the order under section 95 was made.

Liability of individuals for offences committed by a corporation

97 If a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence commits the offence whether or not the corporation is prosecuted for the offence.

Time limit for prosecutions

98 (1) The time limit for laying an information respecting an offence under this Act or the regulations is 2 years after the facts on which the information is based first came to the knowledge of

(a) the minister, or

(b) a person designated, by name or title, by the minister for that purpose.

(2) A document purporting to have been issued by the minister or a person designated under subsection (1) (b), certifying the day on which he or she became aware of the facts on which an information is based,

(a) is admissible without proof of the signature or official character of the individual appearing to have signed the document, and

(b) in the absence of evidence to the contrary, is proof of the matter certified.

Other liabilities remain

99 A proceeding, conviction or penalty for an offence under this Act or the regulations does not relieve a person from any other liability.

Fees, rentals and charges

100 (1) The Lieutenant Governor in Council may, by regulation, establish a tariff of the fees, rentals and charges payable

(a) in respect of applications, petitions, claims, complaints, proceedings, licences, approvals, permits, drilling authorizations and other things filed, applied for, taken or issued under this or any former Act, and

(b) in respect of water diverted or used from a stream, whether diverted under authority of a licence or under a special or private Act or without authority.

(2) Each of the following is liable to the government for the fees, rentals and charges in respect of the application, petition, claim, complaint, proceeding, licence, approval, permit, drilling authorization, thing or water:

(a) an applicant, petitioner, claimant, complainant and other person who files an application, petition, claim or complaint, or takes a proceeding under this Act;

(b) a person holding a licence, approval, permit or drilling authorization;

(c) a person who diverts or uses water from a stream.

(3) The fees, rentals and charges must be paid to the comptroller and may be recovered by the comptroller by suit in a court of competent jurisdiction.

(4) The tariff may set the times of payment of fees, rentals and charges and make them subject to the imposition of interest at a prescribed rate and specified percentage additions on or from specified dates, and a tariff or part of it may be made retrospective to the extent of making it applicable from the beginning of the year in which it is established.

(4.1) Despite subsection (4), the comptroller may establish the times of payment of fees, rentals and charges and make them subject to the imposition of interest at a prescribed rate and specified percentage additions on or from specified dates.

(4.2) The comptroller may, in writing, authorize any other official or class of officials employed by the government or a government corporation to exercise the functions, duties and powers of the comptroller in respect of

(a) the determination, collection and receipt of fees, rentals and charges, and

(b) the issuance of rental statements.

(5) The payment by a person or the acceptance by the comptroller of any rental in respect of a licence, approval or permit does not prevent or delay the cancellation of the licence, approval or permit on any ground except failure to pay rentals.

Power to make regulations

101 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) dividing British Columbia into water districts;

(b) prescribing the powers, duties and jurisdiction of officials administering this Act;

(c) prescribing the purposes or classes of artificial openings in the ground that are not included in the definition of "well";

(d) specifying how notice of a decision may be given for the purposes of section 92 (4) (b) [appeals to Environmental Appeal Board];

(e) defining words or phrases used but not defined in the Act;

(f) respecting any matter for which regulations are contemplated by the Act.

(3) Without limiting subsection (1) or (2), the Lieutenant Governor in Council may make regulations for the purposes of Part 2 or 3, subject to a regulation under section 1.1, in respect of the following:

(a) the issue of permits authorizing the occupation of Crown land and the terms of those permits;

(b) the procedure to be followed in expropriating land and easements, the method of determining the compensation to be paid for an expropriation and the powers and duties of arbitrators or the Expropriation Compensation Board with respect to expropriations under this Act;

(c) the use of a stream for floating timber and the construction, maintenance, operation, alteration and removal of booms and other installations in the stream, and the duties and obligations of persons who float timber in a stream with respect to the segregation and sorting of the timber;

(d) the use, construction, maintenance, operation, alteration, abandonment and removal of any works;

(e) the commencement, continuation or cessation of any activity that causes or allows to be caused any changes in and about a stream;

(f) the duties and obligations of persons who undertake any works or changes in and about a stream;

(g) the records that must be kept for the purpose of section 22;

(h) designating the uses of water for the purpose of the definition of "industrial purpose" in section 1;

(i) the requirements that must be met in relation to applications under this Act, which may be different for applications that may be accepted for filing under section 12.1 than for applications dealt with in accordance with otherwise applicable procedures under this Act;

(j) [Not in force.]

(k) the commencement, continuation or cessation of the diversion or use of water for livestock watering;

(l) the duties and obligations of persons who divert or use water for livestock watering;

(m) the manner in which water may be diverted or used for livestock watering, which may be different for different streams, different parts of a stream and streams in different areas;

(n) the works that may be used to divert water for livestock watering, which may be different for different streams, different parts of a stream and streams in different areas;

(o) the maximum quantity of water that may be diverted or used for livestock watering, which may be different for different streams, different parts of a stream and streams in different areas;

(p) establishing conditions on the diversion or use of water for livestock watering;

(q) prescribing resource management plans that designate an area of British Columbia and restrict the issuance of water licences within that area.

(4) Without limiting subsection (1) or (2), the Lieutenant Governor in Council may make regulations for the purposes of Part 5 as follows:

(a) establishing the qualifications of qualified well drillers and qualified well pump installers;

(b) exempting from the requirements of section 69 (2) (b)

(i) a class of person,

(ii) a class of well,

(iii) an activity or class of activity in relation to a specified work or class of works, or

(iv) an activity or class of activity;

(c) exempting from the requirements of section 70 (2) (b)

(i) a class of person,

(ii) a class of well or well pump,

(iii) an activity or class of activity in relation to a specified work or class of works, or

(iv) an activity or class of activity;

(d) establishing requirements, procedures, standards or codes in respect of any aspect of the following:

(i) siting wells;

(ii) constructing wells;

(iii) installing well pumps;

(iv) designing, testing, operating, disinfecting, floodproofing, capping or covering wells;

(v) closing or deactivating wells;

(vi) removing works from wells;

(vii) conducting flow tests of wells;

(viii) works, including the design, construction, installation, testing, operation, alteration, maintenance, repair, disinfection or replacement of works relating to the use, testing or monitoring of wells and ground water;

(ix) sampling and analyzing ground water for new or altered wells including, without limitation, specifying

(A) the class of the laboratory that may carry out the analyses,

(B) the nature of the analyses, and

(C) alterations to a well that require sampling and analyzing of ground water;

(x) stopping or controlling the flow of flowing artesian wells;

(xi) any other activities respecting wells for which the Lieutenant Governor in Council considers it necessary or advisable for purposes of the protection of an aquifer or ground water to establish requirements, procedures, standards or codes;

(e) identifying wells, including, without limitation, specifying

(i) the form, content, placement and manner of attachment of identification plates,

(ii) alterations to a well that require that an identification plate be attached, and

(iii) classes of water supply systems that must have an identification plate attached;

(f) respecting well reports and logs, including, without limitation, specifying

(i) the information required,

(ii) the form of logs, records and reports,

(iii) the frequency and timing of reports,

(iv) activities in relation to a well that require that a well report be submitted, and

(v) the manner of delivering well reports to the comptroller;

(g) specifying when and where logs, records and reports must be kept and produced;

(h) respecting drilling authorizations, including, without limitation,

(i) specifying the form, content and manner of application,

(ii) specifying the evidence that may be accepted as proof of consent of a land owner, and

(iii) delegating to the comptroller, the regional water manager or an engineer the authority to set terms and conditions on a drilling authorization;

(i) establishing the periods of time after which a well that is not being used

(i) is considered not to be in service, which may be different in specified circumstances, or

(ii) must be permanently closed;

(j) specifying the circumstances in which a well is considered not to be in service;

(k) establishing a register of qualified well drillers or qualified well pump installers, including, without limitation, specifying

(i) the person responsible for the registers,

(ii) the information that qualified well drillers or qualified well pump installers must provide to that person, and

(iii) that the registers are available to the public;

(l) establishing requirements for the protection of an aquifer from activities that are capable of causing a significant adverse impact on

(i) the quality of ground water in an aquifer, water in a stream that is recharged by the aquifer or ground water in a well that draws from the aquifer, or

(ii) the existing uses made of ground water from any well that draws from that aquifer or water in a stream that is recharged by that acquifer;

(m) exempting specified activities in relation to specified classes of wells from the prohibition under section 78 (2) [well operation];

(n) prescribing matters or substances for the purposes of section 79 (1) (f) or (g) [prohibition on introducing foreign matter into a well];

(o) exempting activities, with or without conditions, contaminants, matters and substances from the prohibition under section 79 (1) [prohibition on introducing foreign matter into a well].

(5) A regulation under this Act may do one or more of the following:

(a) specify who is responsible for meeting the prescribed requirements;

(b) exempt any class of persons, including the Crown, any class of wells, works or activities, or any circumstances, times or periods from any requirements;

(c) provide different requirements for different activities or classes of activities in relation to ground water and for different classes of persons, wells or works;

(d) provide different requirements for different areas of British Columbia, which may be designated by any delineation of the area that adequately describes it including, for example, name, map, plan, legal description, reference to a stream, reference to an aquifer or other geological formation or part of one, depth or other dimension, or by any combination of methods.

(6) A regulation under subsection (4) (d) may provide authority for individual variations on application to a prescribed official.

(7) Regulations made under this section may

(a) adopt, in whole or in part, codes or standards published by a provincial, national or international standards association, including adoption of amendments to the codes or standards published before or after the making of the regulations,

(b) in adopting the codes or standards under paragraph (a), grant powers to and establish functions and duties of officials that the Lieutenant Governor in Council deems necessary for the official to administer the codes or standards adopted, and

(c) exempt persons or classes of persons from all or part of the codes or standards adopted.

(8) In making a regulation under this Act, the Lieutenant Governor in Council may delegate a matter to a person and confer a discretionary power on the comptroller, a regional water manager, an engineer or an officer.