Definitions

1  In this regulation:

"Act" means the Water Sustainability Act;

"deep groundwater" has the same meaning as in section 51 [definitions] of the Water Sustainability Regulation;

"licensed quantity", in relation to an authorization, means the quantity of water authorized to be diverted for water use purposes under the authorization;

"local provider" means any of the following:

(a) the Greater Vancouver Water District under the Greater Vancouver Water District Act;

(b) a municipality;

(c) a regional district;

(d) an improvement district;

(e) a water utility under the Water Utility Act;

(f) a development district;

"new licence" means a licence issued in the current calendar year;

"rental" means the amount, under this or another enactment, payable in accordance with this regulation, for the diversion or use of water or in relation to a permit.

Application fees

2  (1) The following fees are prescribed for the purposes of section 12 (1) (b) (ii) [application and decision maker initiative procedures] of the Act:

(a) for a licence or use approval for one or more water use purposes, or classes of water use purpose, other than a power purpose, the sum of the application fees set out in column 2 of Table 1 of Schedule 1 opposite each water use purpose or class of water use purpose, set out in column 1, to which the application relates;

(b) for a change approval, the amount set out in column 2 of Table 4 of Schedule 1 for a change approval;

(c) for a class of permit set out in column 1 of Table 3 of Schedule 1, the amount set out opposite in column 2 for a permit in the class;

(d) for the issuance of a final licence, the amount payable under paragraph (f) (i) or (ii), as applicable, as if the application were for an amendment under section 26 [amendment or substitution of authorization, change approval or permit] of the Act;

(e) for an amendment under section 26 of the Act, a transfer of appurtenancy under section 27 [transfer of appurtenancy] of the Act, an apportionment under section 28 [apportionment of rights under licences] of the Act or an amendment to a drilling authorization under section 62 [drilling authorizations] of the Act,

(i) in the case of a licence or use approval that authorizes only one water use purpose, the amount set out in column 3 of Table 1 of Schedule 1 opposite that purpose in column 1 or, if the water use purpose is power purpose, the amount set out in column 3 of Table 2 of Schedule 1 opposite the applicable power use category and class of that category in column 1,

(ii) in the case of a licence or a use approval that authorizes the use of water for more than one purpose, the highest of the amounts set out, as applicable, in column 3 of Table 1 of Schedule 1 opposite those water use purposes in column 1 or in column 3 of Table 2 of Schedule 1 opposite the applicable power use category and class of that category in column 1,

(iii) in the case of a change approval, the amount set out for a change approval in column 3 of Table 4 of Schedule 1,

(iv) for a class of permit set out in column 1 of Table 3 of Schedule 1, the amount set out opposite in column 3 for a permit in the class, and

(v) for a drilling authorization, the amount set out for a drilling authorization in column 3 of Table 4 of Schedule 1;

(f) for a drilling authorization, the amount set out in column 2 of Table 4 of Schedule 1 for a drilling authorization;

(2) A separate fee under subsection (1) is payable in relation to each licence, use approval, change approval, permit and drilling authorization that is to be issued or amended under the application.

(3) Despite subsection (1) but subject to subsection (2), only the applicable fee under subsection (1) (e) (i) or (ii) is payable if an application relates to more than one of

(a) an amendment under section 26 of the Act,

(b) a transfer of appurtenancy under section 27 of the Act, and

(c) an apportionment under section 28 of the Act.

Charges for decision maker initiatives

3  (1) If a decision maker referred to in section 26 [amendment or substitution of authorization, etc.] or 62 [drilling authorizations] of the Act initiates an amendment referred to in section 26 (1) or 62 (7) of the Act because of a failure of the holder of an authorization, change approval, permit or drilling authorization to apply for the amendment in a timely manner, the holder must pay to the decision maker a charge equivalent to the application fee that would have applied under section 2 (1) (e) of this regulation had the holder applied for the amendment.

(2) If a decision maker referred to in section 28 [apportionment of rights under licences] of the Act initiates an apportionment of rights under that section because the appurtenancy of the licence has been subdivided and no licensee has applied for the apportionment in a timely manner, each person to whom a new licence is to be issued following the apportionment must pay to the decision maker a charge equivalent to the application fee that would have applied under section 2 (1) (e) of this regulation had a holder applied for the apportionment.

Rentals — licences

4  (1) The rental period for a licence is the calendar year, or, in the case of a new licence, the balance of the calendar year in which the licence is issued, including the date on which the licence is issued.

(2) Except in relation to irrigation and waterworks purposes, under licences held by a local provider, and a pulp mill industrial purpose, the annual rental for a licence in relation to each water use purpose, or class of water use purpose, set out in column 1 of Table 1 of Schedule 2 is the greater of the following:

(a) the minimum annual rental set out in column 2 of Table 1 of Schedule 2 opposite the water use purpose or class of water use purpose set out in column 1;

(b) as applicable,

(i) the amount set out as a flat rate in column 3 of Table 1 of Schedule 2 opposite the water use purpose or class of water use purpose set out in column 1, or

(ii) the amount determined by multiplying the licensed quantity for the water use purpose or class of water use purpose by the rate set out in column 3 of Table 1 of Schedule 2 opposite the water use purpose or class of water use purpose set out in column 1.

(3) For certainty, the annual rental in relation to a licence to which subsection (2) applies, other than a new licence, is the sum of the amounts set out or determined, as applicable, under subsection (2) for all water use purposes or categories of water use purpose authorized by the licence.

(4) For a new licence, the annual rental under subsections (2) and (3) must be prorated for the number of days remaining in the calendar year in which the licence is issued, including the date on which the licence is issued.

(5) Annual rentals under subsections (2) and (3) for a rental period are payable whether or not the rights granted under the licence are exercised.

(6) Except in relation to a new licence, rentals for a calendar year that are payable in relation to a licence are due for the calendar year on the date specified in the rental statement issued by the comptroller in that calendar year.

(7) In the case of a new licence, the decision maker must set the date on which the first rental payable in relation to the licence is due.

(8) If the rentals determined in accordance with this section for all licences held by a licensee are or would be not more than $60 for a calendar year, the comptroller may invoice the holder for the current and up to the next 2 calendar years in the current calendar year and the rentals are due on the date specified in the rental statement issued by the comptroller in that calendar year.

(9) Rentals are to be calculated, and are payable when due, in accordance with the tariff in effect on January 1 of the calendar year to which the rentals relate, or, in the case of a licence to which subsection (8) applies, on January 1 of the first calendar year to which the rentals relate.

(10) If an amendment under section 26 [amendment or substitution of authorization, change approval or permit] of the Act, a transfer of appurtenancy under section 27 [transfer of appurtenancy] of the Act or an apportionment under section 28 [apportionment of rights under licences] of the Act affects the rental payable in relation to a licence, effective on the date the licence is amended or another licence is issued in substitution for the licence, the comptroller must adjust the rental to the amount applicable under this section.

(11) If an adjustment under subsection (10) results in a higher rental than the licensee has paid in relation to the licence for the rental period, the comptroller must issue a rental statement for the additional rental, prorated for the balance of the appropriate rental period.

(12) If an adjustment under subsection (10) results in a lower rental than the licensee was or would have been liable for in relation to the licence for the rental period, the rental payable for the next instalment of rentals for the rental period, for the next rental period or for the next rental statement under subsection (8), as applicable, must be reduced by the reduction that resulted from the adjustment under subsection (10).

(13) For certainty, subsections (2) to (5) do not apply in relation to

(a) licences held by a local provider for irrigation and waterworks purposes, or

(b) licences held for a pulp mill industrial purpose.

Rentals — local providers

5  (1) Subject to subsection (4), the rental payable for a rental period in relation to irrigation purposes and waterworks purposes, under licences held by a local provider, is the sum of the following:

(a) for the use of water for irrigation purposes, the greater of the following:

(i) the minimum annual rental set out in column 2 of Table 1 of Schedule 2 for an irrigation purpose;

(ii) the amount determined by multiplying the quantity of water reported under subsection (2), as used under the licence for irrigation purposes in the previous rental period, by the rate set out in column 3 of Table 1 of Schedule 2 for an irrigation purpose;

(b) for the use of water for waterworks purposes, the greater of the following:

(i) the minimum annual rental set out in column 2 of Table 1 of Schedule 2 for a waterworks purpose;

(ii) the amount determined by multiplying the quantity of water reported under subsection (2), as used under the licence for waterworks purposes in the previous rental period, by the rate set out in column 3 of Table 1 of Schedule 2 for a waterworks purpose.

(2) For the purpose of determining the rental payable under subsection (1) (a) and (b), a local provider must complete and submit to the comptroller, in accordance with the comptroller's directions, a report setting out the quantity of water, either as metered or determined in accordance with subsection (3), used in the previous rental period for irrigation purposes and waterworks purposes.

(3) If a report required under subsection (2) has not been received by the comptroller by the date directed by the comptroller for a rental period, or the comptroller considers that a report under that subsection is not accurate, the comptroller may determine, for the purposes of subsection (1) (a) and (b), the quantity of water used for irrigation purposes or waterworks purposes in the previous rental period based on,

(a) for irrigation purposes, the quantity of water, applied per hectare for irrigation purposes, the comptroller considers reflects the average amount for the climatic area, and

(b) for waterworks purposes, rates of consumption per person served or per connection the comptroller considers reflects the average consumption for the climatic area.

(4) The rental payable for the calendar year in which a new licence is issued to a local provider is the sum of the following:

(a) for the use of water for an irrigation purpose, the greater of the following:

(i) the minimum annual rental set out in column 2 of Table 1 of Schedule 2 for an irrigation purpose prorated for the number of days remaining in the calendar year, including the date on which the licence is issued;

(ii) the amount determined by multiplying the quantity of water the comptroller estimates in accordance with subsection (3) (a) will be used under the licence for irrigation purposes for the balance of the rental period, including the date on which the licence is issued, by the rate set out in column 3 of Table 1 of Schedule 2 for an irrigation purpose;

(b) for the use of water for a waterworks purpose, the greater of the following:

(i) the minimum annual rental set out in column 2 of Table 1 of Schedule 2 for waterworks purposes prorated for the number of days remaining in the calendar year, including the date on which the licence is issued;

(ii) the amount determined by multiplying the quantity of water the comptroller estimates in accordance with subsection (3) (b) will be used under the licence for waterworks purposes for the balance of the rental period, including the date on which the licence is issued, by the rate set out in column 3 of Table 1 of Schedule 2 for waterworks purpose.

Rentals — pulp mills

6  (1) In this section and in column 3 of Table 1 of Schedule 2, "quantity actually used", in relation to the use of water under a licence, is the quantity of water reported under subsection (3) as actually used under the licence in the previous calendar year for a pulp mill industrial purpose.

(2) Subject to subsection (6), the rental payable for a rental period for the use of water for a pulp mill industrial purpose under a licence is the greater of the following:

(a) the minimum annual rental set out in column 2 of Table 1 of Schedule 2 for a pulp mill industrial purpose;

(b) the sum of the following:

(i) the amount determined by multiplying the quantity actually used by the rate set out for the quantity actually used in column 3 of Table 1 of Schedule 2 for a pulp mill industrial purpose;

(ii) either,

(A) if the quantity actually used is greater than or equal to the licensed quantity for a pulp mill industrial purpose, zero, or

(B) if the quantity actually used is less than the licensed quantity for a pulp mill industrial purpose, the difference between the licensed quantity and the quantity actually used, multiplied by the rate set out in column 3 of Table 1 of Schedule 2 for that difference.

(3) For the purpose of determining the rental payable under this section, a licensee of a licence for a pulp mill industrial purpose must complete, and submit to the comptroller in accordance with the comptroller's directions, a report setting out the quantity actually used in the previous rental period for a pulp mill industrial purpose.

(4) If a report required under subsection (3) has not been received by the comptroller by the date directed by the comptroller for a rental period, the rental payable under the licence for the rental period is determined by multiplying the licensed quantity for pulp mill industrial purposes under the authorization by the rate set out for the quantity actually used in column 3 of Table 1 of Schedule 2 for a pulp mill industrial purpose.

(5) If the comptroller considers that a report provided under subsection (3) is not accurate, the comptroller may determine the rental in accordance with subsection (4).

(6) The rental payable for the quantity of water used for pulp mill industrial purposes in the calendar year in which a new licence authorizing the use of water for a pulp mill industrial purpose is issued is, as set out in a rental statement issued in that calendar year, the amount that would be payable under section 4 (2) and (4) for that water use purpose at the rate set out in column 3 of Table 1 of Schedule 2 for the difference between the quantity actually used and the licensed quantity.

Rentals due 1/2 yearly if rentals exceed $100 000

7  If the rentals payable for a calendar year by a licensee on all licences held by the licensee exceed $100 000, the licensee must pay the rentals in 2, approximately equal, instalments on March 31 and September 30 of the year.

Rentals — use approvals

8  (1) Subject to this section, section 4 [rentals — licences] applies in relation to a use approval as if the use approval were a licence.

(2) The rental period for a use approval is

(a) if the term of the use approval is less than or equal to 12 months, 12 months, and

(b) if the term of the use approval is greater than 12 months, 24 months.

(3) Rental for a use approval is payable in relation to the licensed quantity requested for the use approval on the date of application for the applicable rental period under subsection (2).

(4) For the purposes of the application of subsection (3) to a use approval for a pulp mill industrial purpose, rental is payable at the rate for quantity actually used set out in column 3 of Table 1 of Schedule 2 opposite pulp mills in column 1.

Rentals — permits

9  (1) Subject to this section, section 4 (1), (4) to (7) and (9) to (12) [rentals — licences] applies in relation to a permit as if the permit were a licence.

(2) The annual rental for a permit is the greater of the following:

(a) the amount set out in column 2 of Table 3 of Schedule 2 opposite the use of Crown land set out opposite in column 1;

(b) the amount determined by multiplying the number of hectares occupied under the permit by the rate per hectare set out in column 3 of Table 3 of Schedule 2 opposite the use of Crown land set out in column 1.

Penalty on overdue accounts

10  (1) If all or a portion of fees or rentals payable in respect of a licence, use approval or permit remains unpaid on the date the fee or rentals are due, on the day following that date, the comptroller must add to the unpaid amount a penalty equal to the percentage of that amount that is 1% above the prime lending rate, on that date, of the principal banker to the Province.

(2) A penalty added under subsection (1) is due and payable as part of the fee or rental to which the penalty is added.

Exemptions from fees and rentals

11  (1) In this section:

"Indian" has the same meaning as in the Indian Act (Canada);

"reserve" means a reserve as defined in paragraph (a) of the definition of "reserve" in the Indian Act (Canada).

(2) The following are exempt from section 118 (1) [fees, rentals and charges] of the Act:

(a) in relation to application fees and rentals relating to a use of water, or a licence, use approval, change approval, permit or drilling authorization,

(i) a person who under section 6 (2) or (3) [use of water] of the Act is not prohibited from diverting, storing or beneficially using water,

(ii) a person who under section 6 (4) of the Act is authorized to divert or store and use groundwater, unless section 6 (4) (a) or (b) of the Act applies, and

(iii) the government of Canada or of British Columbia;

(b) in relation to application fees and rentals relating to a use approval, change approval or permit issued to a person under section 8 of the Oil and Gas Activities Act, the applicant.

(3) A person is exempt from section 118 (1) of the Act in relation to fees and rentals relating to any of the following:

(a) a licence or use approval for the diversion and use of water on a reserve;

(b) a permit for the use of Crown land for works, or the flooding of Crown land, related to the use of water on a reserve;

(c) a drilling authorization or change approval related to the use of water on a reserve.

(4) Subsection (3) does not apply in respect of a licence, use approval, permit, drilling authorization or change approval related to the use of water on a reserve if the land to which the licence, use approval, permit, drilling authorization or change approval relates is wholly or partly leased by a person who is not an Indian.

(5) If subsection (4) applies, the amount of the rentals payable in relation to the licence or use approval is to be calculated based on the proportion of the water that is used by persons who are not Indians.

(6) A person or entity that is exempt under a final agreement from fees, rentals and charges under section 118 (1) of the Act in relation to authorizations issued for stream water reserved for a treaty first nation under section 40 [treaty first nation water reservations] of the Act is exempt from

(a) rentals otherwise payable under section 4 of this regulation in relation to an authorization issued, on application under section 55 (1) [transitional groundwater licensing] of the Water Sustainability Regulation, for the diversion and use of groundwater within the treaty lands of the treaty first nation, unless the water use purpose of the authorization is

(i) a power purpose, or

(ii) a storage purpose and the storage is recognized in the authorization as supporting storage for a power development,

(b) application fees otherwise payable under section 2 (1) (e) of this regulation in relation to an authorization referred to in paragraph (a) of this subsection, and

(c) fees otherwise payable under section 12 of this regulation in relation to an authorization referred to in paragraph (a) of this subsection.

(7) A person or entity that is exempt under the Nisga'a Final Agreement from fees, rentals and charges under section 118 (1) of the Act in relation to licences issued for stream water reserved for the Nisga'a Nation under section 41 [Nisga'a water reservation] of the Act is exempt from

(a) rentals otherwise payable under section 4 of this regulation in relation to an authorization issued, on application under section 55 (1) of the Water Sustainability Regulation, for the diversion and use of groundwater within Nisga'a Lands, unless the water use purpose of the authorization is

(i) a power purpose, or

(ii) a storage purpose and the storage is recognized in the authorization as supporting storage for a power development,

(b) application fees otherwise payable under section 2 (1) (e) of this regulation in relation to an authorization referred to in paragraph (a) of this subsection, and

(c) fees otherwise payable under section 12 of this regulation in relation to an authorization referred to in paragraph (a) of this subsection.

[am. B.C. Reg. 43/2016, s. 1.]

Miscellaneous fees

12  (1) A person who requests a service set out in column 1 of Schedule 3 must pay for the service in the amount determined in accordance with column 2 of that Schedule.

(2) Subsection (1) does not apply to the government.

Rentals for unauthorized diversion and use of water

13  A person who does anything for which the person is required to hold an authorization, change approval, permit or drilling authorization and who

(a) does not hold the applicable authorization, change approval, permit or drilling authorization in relation to that activity, or

(b) holds an authorization, change approval, permit or drilling authorization that does not authorize the activity or only partially authorizes the activity,

is liable for the fees and rentals that would have been payable in respect of the activity had the person applied for and held an authorization, change approval, permit or drilling authorization that authorized the activity.

Definitions

14  In this Part:

"construction capacity" means

(a) in relation to a hydroelectric power development, the comptroller's estimate, using the following formula, of the capacity of the hydroelectric power development to generate output:

(b) in relation to a power development other than a hydroelectric power development, the comptroller's estimate, based on information provided by the applicant or otherwise known to or obtained by the comptroller, of the capacity of the power development to generate output;

"conversion factor" means a factor applied in the calculation of construction capacity so that the result is expressed in kilowatts;

"efficiency factor" means a factor applied in the calculation of construction capacity to account for loss of capacity in the production process;

"operating capacity", in relation to a power development, means comptroller's estimate under section 18 (4) [determination of fees rentals and charges] of the capacity of the power development to generate output;

"output" means the hydroelectric or hydromechanical energy produced by a power development expressed in MWh;

"power development"

(a) means, as the context requires, either the works authorized by a single licence issued for a power purpose or the works authorized in common by several such licences, and

(b) in sections 27 [remission of annual rentals payable for orders under section 93 of Act] and 28 [remission of annual rentals payable for water use plans] includes storage recognized in a licence for storage purpose as supporting storage for a power development;

"Table 2 of Schedule 2" means, as applicable,

(a) for the 2015 and 2016 calendar years, the Table 2 in Schedule 2 titled "Table 2 — Power Purpose Rentals — 2015/16",

(b) for the 2017 calendar year, the Table 2 in Schedule 2 titled "Table 2 — Power Purpose Rentals — 2017", and

(c) for the 2018 calendar and later years, the Table 2 in Schedule 2 titled "Table 2 — Power Purpose Rentals — 2018 and Later Years".

Application

15  (1) This Part applies to authorizations and applications for authorizations for power purposes in the commercial and general categories as those terms are defined in section 16.

(2) Except in the case of a conflict or inconsistency between a provision in this Part and a provision in Part 2 [Fees, Rentals and Charges — General], the provision of Part 2 applies in relation to power developments.

(3) Part 2 applies to the determination of rentals in relation to residential power use category, as defined in section 16, and, for that purpose,

(a) section 4 (2) (a) [rentals — licences] is to be read as follows:

(a) the minimum annual rental set out in column 3 of Table 2 of Schedule 2, as defined in section 14, opposite the residential power use category in column 1;

, and

(b) section 4 (2) (b) (ii) is to be read as follows:

(ii) the amount determined by multiplying the licensed quantity under the licence by the rate set out in column 3 of Table 2 of Schedule 2, as defined in section 14, for the licensed quantity in column 2 opposite the residential power use category in column 1.

Power use categories

16  (1) The power use categories are commercial, general and residential.

(2) For the purposes of subsection (1):

"commercial" means the use, other than residential, of the capacity and energy generated from one or more power developments owned by the licensee, or of the entitlement to capacity and energy derived from water licences held by the licensee,

(a) by the licensee, or if sold by the licensee to immediate family members, employees or tenants of the licensee, by those persons, if the sum of the construction capacity and operating capacity of the licensee's power development, or if the licensee has more than one power development, the sum of the construction capacity and operating capacity of the licensee's power developments, does not exceed 499 kW,

(b) for the extraction or processing of natural resources, or the manufacturing of products, in a primary industrial facility in which the licensee has an interest of more than 50%, or

(c) in a facility that is adjacent to and integrated with a primary industrial facility in which the licensee has an interest of more than 50%, but only to the extent that the capacity and energy used in the adjacent and integrated facility is for the production of output consumed in or for the use of the industrial processes of the licensee;

"general" means

(a) the use of the capacity and energy generated from one or more power developments owned by a public utility regulated by the British Columbia Utilities Commission under Part 3 of the Utilities Commission Act,

(b) the use of the capacity and energy generated from one or more power developments of an amount of capacity and energy in excess of the amount necessary to supply the licensee's commercial category requirements, or

(c) the use of the capacity and energy generated from a power development, which use is not residential or commercial;

"residential" means the use of the capacity and energy generated from a power development if

(a) the sum of the construction capacity and operating capacity of the power development does not exceed 50 kW, and

(b) that capacity is used to supply the household requirements of the licensee, including the requirements of any outbuildings, and may also be used in part to participate in the BC Hydro Net Metering Program.

(3) Paragraph (c) of the definition of "commercial" category applies only in relation to a licensee who is exempt under section 22 or 88 of the Utilities Commission Act for the disposition of capacity and energy to the adjacent and integrated facility referred to in that paragraph.

Application fee — power purpose

17  (1) For the purposes of section 12 (1) (b) (ii) [application and decision maker initiative procedures] of the Act, the application fee for a licence or use approval for a power use category or a class of power use category is the amount set out in, or calculated in accordance with, column 2 of Table 2 of Schedule 1 opposite the power use category or class of power use category, as applicable, set out in column 1.

(2) If an application fee under subsection (1) would be less than $250, the application fee is $250.

(3) If an application fee under subsection (1) would be greater than $10 000, the application fee is $10 000.

Determination of fees, rentals and charges

18  (1) The sum of the following must be determined separately for each power development:

(a) the amount determined by multiplying the construction capacity for the power development by the applicable rate set out in column 3 of Table 2 of Schedule 2 for construction capacity opposite the power use category set out in column 1;

(b) the amount determined by multiplying the operating capacity for the power development by the applicable rate set out in column 3 of Table 2 of Schedule 2 for operating capacity opposite the power use category set out in column 1 and the applicable class of output set out in column 2;

(c) the amount determined by multiplying the output for the power development by the applicable rate set out in column 3 of Table 2 of Schedule 2 for output opposite the power use category set out in column 1 and the applicable class of output set out in column 2.

(2) The annual rental for a licensee who holds one or more licences for a power purpose in relation to a single power development is the applicable of the following:

(a) if the amount calculated under subsection (1) for the power development is less than or equal to the amount set out in column 3 opposite the minimum annual rental set out in column 2 of Table 2 of Schedule 2 for the power use category set out opposite in column 1, that minimum annual rental;

(b) unless paragraph (a) applies, the amount calculated under subsection (1) for the power development.

(3) The annual rental for a licensee who holds one or more licences for a power purpose in relation to more than one power development is the sum of the following:

(a) if the amount calculated under subsection (1) for one or more of the power developments is less than or equal to the amount set out in column 3 opposite the minimum annual rental set out in column 2 of Table 2 of Schedule 2 for the power use category set out opposite in column 1, the sum of the minimum annual rentals for those power developments;

(b) if the amount calculated under subsection (1) for one or more of the power developments is greater than the amount set out in column 2 opposite the minimum annual rental set out in column 2 of Table 2 of Schedule 2 for the power use category set out opposite in column 1, the sum of the following for those power developments:

(i) the amount determined by multiplying the sum of the construction capacities for those power developments by the applicable rate set out in column 3 of Table 2 of Schedule 2 for construction capacity opposite the power use category set out in column 1;

(ii) the amount determined by multiplying the sum of the operating capacities for those power developments by the applicable rate set out in column 3 of Table 2 of Schedule 2 for operating capacity opposite the power use category set out in column 1;

(iii) the amount determined by multiplying the sum of the outputs for those power developments by the applicable rate set out in column 3 of Table 2 of Schedule 2 for output opposite the power use category set out in column 1 and the applicable class of output set out in column 2.

(4) For the purposes of determining rental amounts for the current calendar year in relation to a licensee, the comptroller must use the operating capacity and construction capacity for the current calendar year and output of the power development for the previous calendar year, and the comptroller may estimate that operating capacity and construction capacity and determine that output using

(a) reports submitted by the licensee on request of the comptroller, a water manager or an engineer, including, without limitation, beneficial use declarations,

(b) power sales records of a licensee and power consumption and output records of adjacent and integrated facilities submitted on request of the comptroller, a water manager or an engineer,

(c) records produced under section 116 (2) [records and reporting] of the Act, and

(d) other relevant evidence.

(5) If output transfers in accordance with section 22 [additional fees in respect of certain downstream benefits] or 26 [consignment agreements] have taken place in the calendar year immediately preceding the calendar year of a determination under subsection (1) of this section, the total of the output referred to in subsection (1) (c) or (3) (b) (iii), as applicable, must be adjusted as required under those sections.

(6) If the authorized capacity, as defined in section 1 (1) of the Water Regulation, B.C. Reg. 204/88, as it read immediately before its repeal, is expressed in horsepower, the electrical equivalents for operating capacity and output may be determined, for rental purposes, by assuming that one kilowatt is equal to 1.341286 horsepower.

First rental — when due

19  The rental for the balance of the calendar year following the date of issue of a new licence for a power purpose is payable on issue of the licence or when construction of the works authorized under the licence begins, whichever occurs first.

Rate adjustments in certain circumstances

20  (1) If a licensee in respect of a power development intends to cease operations for the purpose of removing a unit of the power plant from service for replacement of the unit, or a substantial portion of the unit, in order to improve the power plant's efficiency,

(a) the licensee must notify the comptroller of the intention,

(b) while the unit is out of service, rentals payable in respect of the power development are to be charged at the rate for construction capacity, and

(c) if the replacement unit has a greater capacity than the previous unit, but uses no more water, the operating capacity on which rentals are to be charged changes on the date that the unit comes back into service.

(2) Subsection (1) does not apply if the comptroller is satisfied that the removal or replacement is for purposes of maintenance, whether routine or otherwise.

Rentals for use approval for power purpose

21  (1) Subject to section 8 (2) [rentals — use approvals], section 18 [determination of fees, rentals and charges] applies to the determination of the rental payable in relation to a use approval for a power purpose as if the use approval were a licence for that purpose.

(2) Rentals in relation to a use approval for a power purpose are payable under section 8 in relation to the construction capacity, operating capacity and output of the power development or proposed power development, as those capacities and output are estimated by the comptroller in accordance with this Part.

Additional fees in respect of certain downstream benefits

22  (1) In this section:

"downstream hydroelectric plant" means a hydroelectric plant located outside British Columbia and downstream from a storage facility operated in British Columbia by a licensee under the authority of a licence for storage purposes;

"downstream owner" means an owner, part owner or operator of a downstream hydroelectric plant.

(2) Subject to subsection (8), the holder of an authorization for storage purposes who

(a) operates a storage facility for the purpose of enabling a downstream hydroelectric plant to generate greater amounts of electricity than the amount the hydroelectric plant could generate if the storage facility were not available, and

(b) receives a benefit for doing so from a downstream owner

must pay the fees determined under this section in addition to any fees, rentals or charges payable by the authorization holder for storage purpose under any other provision of this regulation.

(3) The additional fee referred to in subsection (2) is to be determined at the applicable rate under Table 2 of Schedule 2 for annual rentals for output.

(4) For the purposes of subsection (3), the rate for output is the higher of the following:

(a) the rate applicable to the authorization holder in determining the other annual rentals upon output payable by that holder under this regulation for the calendar year in which the fee is payable;

(b) the rate that would be applicable to the downstream owner in determining annual rentals if the downstream plant were in the Province and the downstream owner were a licensee.

(5) If the holder of an authorization for storage purposes is also the downstream owner, the additional fee referred to in subsection (2) is to be based on the amount by which the hydroelectric energy available at the downstream hydroelectric plant increases due to the operation of the upstream storage facility.

(6) If, in return for operating an upstream storage facility, an authorization holder who is not a downstream owner receives hydroelectric energy from the downstream owner, the additional fee referred to in subsection (2) is to be based on the amount of hydroelectric energy so received.

(7) If, in return for operating an upstream storage facility, an authorization holder who is not a downstream owner receives benefits other than hydroelectric energy from the downstream owner, the additional fee referred to in subsection (2) is the fee that the holder would be required to pay under this section if that holder were a holder described in subsection (5) and receiving 1/2 of the amount by which the hydroelectric energy generated by the downstream plant is increased due to the operation of the upstream storage facility.

(8) Fees determined under this section are payable in the calendar year following the calendar year in which the licensee incurs the fee, but, for the purpose of the fee calculation under this section, the rate for output is the rate for output for the calendar year in which the fee is payable, despite the fee having been incurred in the preceding calendar year.

(9) This section does not apply to the power benefits described in the Columbia River Treaty as the Canadian entitlement.

Calculating 1/2 yearly instalment rentals

23  For the purposes of section 7 [rentals due 1/2 yearly if rentals exceed $100 000], the following apply in respect of rentals under this Part:

(a) the amount of the instalment due March 31 in relation to rentals upon output is 1/2 of the amount of rentals upon output that would be payable for the latest calendar year for which data is available if rental upon output were calculated on that basis;

(b) the amount of the instalment due March 31 in relation to rentals other than rentals upon output is 1/2 the amount of rentals payable by the licensee for the current calendar year for construction capacity and operating capacity;

(c) the amount of the instalment due September 30 is the balance of the annual rentals due for the current calendar year after the amounts paid under paragraphs (a) and (b) are deducted.

Annual adjustment for commercial and general power purpose rental rates after 2015

24  (1) In this section:

"annual percentage change" means the annual percentage change in the British Columbia consumer price index;

"British Columbia consumer price index" means the annual average All-items Consumer Price Index for British Columbia, as published by Statistics Canada under the authority of the Statistics Act (Canada).

(2) For the purposes of determining a rental rate indicated in a Table 2 of Schedule 2 as being "Adjusted" for a calendar year, the rental rate for the calendar year is the rental rate for the previous calendar year adjusted by the annual percentage change for the previous calendar year.

(3) The result of a calculation under subsection (2) must be rounded off to the nearest 1/10 of a cent.

(4) The comptroller must publish annually in the Gazette and on a publicly available website

(a) the annual percentage change for the previous calendar year, and

(b) the resulting rental rates for the current calendar year.

Exception to annual rental requirement

25  A licensee is not required to pay annual rentals in respect of hydroelectric energy that the licensee is obliged at law to deliver, free of charge, to an owner or operator of a downstream hydroelectric plant located outside the Province, as compensation for losses of hydroelectric capacity or energy, or both, at that plant suffered as a result of

(a) the licensee's operation of the upstream storage or power facilities that are the subject of the licensee's licence, or

(b) filling the licensee's reservoir for the first time.

Consignment agreements

26  (1) In this section "consignment agreement" means an agreement between 2 licensees of power developments under which the consignor delivers output to the consignee for the consignee's immediate use and the consignee establishes an energy account in favour of the consignor, in accordance with standard utility practice.

(2) If a licensee of a power development has reason to believe that

(a) the quantity of water available for generating output is likely to exceed the amount required to meet the demand for output from the power development, and

(b) due to insufficient storage capacity, unavoidable spilling of water from the development's reservoir could occur,

the licensee may, with the object of making more effective use of the available water, enter into a consignment agreement with a consignee.

(3) A licensee who is a consignor under a consignment agreement must notify the comptroller within 90 days after entering into the consignment agreement.

(4) Disposition of all or part of an energy account established under a consignment agreement may be accomplished or is occasioned by the occurrence of one or more of the following:

(a) delivery of output to the consignor by the consignee;

(b) sale of the energy account itself to the consignee by the consignor;

(c) unavoidable spilling of water from the consignee's reservoir.

(5) If a consignment agreement has been established, water rentals must be paid on the following basis:

(a) on delivery of output to the consignee, the consignee is liable for the rentals on the output at the rate the consignee would have paid if that output were produced by the consignee;

(b) on disposition of all or part of an energy account in the manner described in subsection (4) (a) or (b), the consignor is liable for rentals on the equivalent amount of output at the same rate the consignor pays for output that is produced by the consignor and not delivered to a consignee under a consignment agreement.

Remission of annual rentals payable for orders under section 93 of Act

27  (1) Authorization is given for remission of part of the annual rentals payable in respect of a power development if all of the following apply in relation to the licensee of the power development:

(a) on request of that licensee, the comptroller is conducting a review of the licensee's licences in respect of the power development and of the operation of the power development;

(b) in the preceding calendar year the diversion, rate of diversion, storage, carriage, distribution or use of water by the licensee was governed by an order under section 93 [powers of engineers and officers] of the Act;

(c) the effect of the order was to reduce the power benefits to the licensee in favour of other benefits that did not accrue to the licensee and that may include benefits for fish, fish habitat, flood protection, recreation or otherwise;

(d) the comptroller is satisfied that the licensee operated the power development in accordance with that order during the term of that order;

(e) the licensee has begun to prepare a water use plan for the power development in accordance with the Water Use Plan Guidelines published by the government and dated December 1998;

(f) the licensee provided, for the preceding calendar year, as directed by the comptroller, information on

(i) the operation of the power development, or

(ii) any other aspect of the power development.

(2) The authorization for remission under subsection (1) ceases to have effect when the amount that is to be remitted under this section for the calendar year in which the order referred to in subsection (1) (b) is rescinded is remitted to the licensee.

(3) The amount to be remitted under subsection (1) in a calendar year must be

(a) subject to subsection (4), based on an estimate of the long-term cost to replace the foregone power benefits as agreed by the licensee and the comptroller or, failing agreement, as may be established by the comptroller, and

(b) deducted from the total annual rentals payable by the licensee.

(4) The total amount of remissions authorized under this section in each calendar year must not exceed $3.6 million.

(5) If section 7 [rentals due 1/2 yearly if rentals exceed $100 000] applies in relation to annual rentals referred to in subsection (1), an estimate of 1/2 of that calendar year's remission must be deducted from the first instalment and the balance of that calendar year's remission must be deducted from the second instalment.

Remission of annual rentals payable for water use plans

28  (1) In this section, "increased costs" includes increased costs to a licensee resulting from a condition of an order, new licence or amended licence, referred to in subsection (2) (c), that requires the licensee to collect, analyze or report specified information to the comptroller.

(2) Authorization is given for remission of part of the annual rentals payable in respect of a power development if all of the following apply in relation to the licensee of the power development:

(a) on request of that licensee the comptroller has completed a review of the licences in respect of the power development and made any changes to the licence that are necessary to provide

(i) a clear description of the rights granted and obligations imposed in respect of the power development, and

(ii) a basis for monitoring compliance with and enforcement of the licences and the terms and conditions of the licences;

(b) the licensee has

(i) completed a water use plan in respect of the power development in accordance with the Water Use Plan Guidelines published by the government and dated December 1998, and

(ii) submitted the water use plan to the comptroller for review;

(c) the comptroller has ordered or authorized the licensee to operate the power development as contemplated by the water use plan, either as submitted or as modified by the comptroller, including by or as a condition of

(i) an order made under section 93 of the Act,

(ii) a new licence issued under section 14 [powers respecting applications and decision maker initiatives] of the Act, or

(iii) a licence amended under section 26 [amendment or substitution of authorization, change approval or permit] of the Act;

(d) the order, new licence or amended licence was in effect in the preceding calendar year;

(e) compliance with the order, new licence or amended licence has had the effect of

(i) a net loss of revenue to the holder from power production, or

(ii) increased costs to the holder

at the power development that is the subject of the order, new licence or amended licence, in favour of benefits other than power benefits, that did not accrue to the licensee and that may include benefits for fish, fish habitat, flood protection, recreation or otherwise;

(f) the licensee provided, for the preceding calendar year, as directed by the comptroller, information on

(i) the operation of the power development, or

(ii) any other aspect of the power development;

(g) the comptroller is satisfied that the licensee substantially complied with the order, new licence or amended licence during the preceding calendar year.

(3) The authorization for remission under subsection (2) is subject to the condition that the total amount of the remission, as determined under subsection (4),

(a) in respect of the Peace River Water Use Plan, is set out in a remission schedule that has been

(i) approved by the Lieutenant Governor in Council, or

(ii) varied by, and approved as varied, by the Lieutenant Governor in Council, or

(b) in respect of all other water use plans, is set out in a remission schedule approved by the chair of Treasury Board.

(4) Subject to subsections (3) (a) and (5), the amount to be remitted under subsection (2) in a calendar year is to be

(a) equal to the amount calculated using the following formula:

                net loss of revenue + (increased costs - net gain in revenue),

(b) determined by applying a methodology as agreed by the licensee and the comptroller or, failing agreement, as may be otherwise established by the comptroller, for

(i) calculating the net loss of and net gain in revenue to the licensee from power production, and the increased costs to that licensee, at the power development that have resulted from compliance with an order, new licence or amended licence referred to in subsection (2) (c) in respect of the power development, and

(ii) a schedule, covering a period not longer than 20 years, for remission to the licensee of annual rentals payable by that licensee in respect of the power development as calculated in accordance with paragraph (a) and subparagraph (i) of this paragraph, beginning in the calendar year following the calendar year in which the order, new licence or amended licence referred to in subsection (2) (c) is made or issued, and

(c) deducted from the total annual rentals payable by the licensee in respect of the power development.

(5) The total amount of remissions authorized under this section in each calendar year must not exceed $50 million.

(6) If section 7 [rentals due 1/2 yearly if rentals exceed $100 000] applies in relation to annual rentals referred to in subsection (2), an estimate of 1/2 of that calendar year's remission must be deducted from the first instalment and the balance of that calendar year's remission must be deducted from the second instalment.

Transition — liability for rentals

29  (1) In this section, "application" means an application required under section 140 (2) (c) [transition — groundwater licensing] of the Act.

(2) On and after February 29, 2016, Part 2 [Licensing, Diversion and Use of Water] of the Act applies to a person described in section 140 (1) of the Act.

(3) A person described in section 140 (1) of the Act is liable under section 140 (4) of the Act for rentals in accordance with this regulation for the person's use of water for the portion of 2016 occurring on and after February 29 and for each calendar year after 2016 and, on receipt of an application, the comptroller may issue to the person a rental statement

(a) for 2016 and each rental period after 2016 up to and including the calendar year in which the application is made, and

(b) subject to section 4 (8) [rentals — licences], annually thereafter.

(4) Subsection (3) does not apply to

(a) a person or entity described in section 11 (6) [exemptions from fees and rentals], or

(b) a person or entity described in section 11 (7).

(5) For the purpose of the application of section 55 (3) [transition — groundwater licensing] of the Water Sustainability Regulation to a person or entity referred to in subsection (4) (a) or (b) of this section, the exemption from the requirement to pay an application fee applies in relation to applications under section 55 (1) of that regulation that are received from the person or entity on or before March 1, 2019.

[am. B.C. Reg. 43/2016, s. 2.]

Transition — pulp mills

30  Despite section 6 [rentals — pulp mills], for the 2016 rental period, section 4 (2) [rentals — licences] applies in relation to a licence for a pulp mill industrial purpose and the rate to be applied for the purpose of section 4 (2) (b) is $0.85/1 000 m³.

Transition — fees and rentals for 2016

31  Despite section 4 (9), fees and rentals for the portion of the 2016 calendar year occurring on and after February 29, 2016 are to be calculated and are payable in accordance with this regulation.