Legal Authority to Implement Rainwater Management Solutions in British Columbia
Stormwater Planning: A Guidebook for British Columbia included a synopsis of drainage law and the authority of local government to implement rainwater management solutions. Local governments have extensive and very specific tools available to them. They also have the discretion to use them or not.
Decisions about a local government’s appropriate level of involvement in rainwater and stream corridor management must therefore be guided by a set of clear, broadly agreed-upon objectives, as well as an understanding of the need for balance with other competing objectives and interests.
British Columbia Case Law
The courts see the impact of drainage on property as a ‘nuisance’, where a landowner’s use and enjoyment of his or her lands are interfered with as a result of actions or conduct on neighbouring lands. The courts have established precedents concerning the following:
- Right to drain land (allowing surface water to escape in a way provided by nature)
- Right to block drainage (surface water draining from higher land, as opposed to water in a natural stream)
- Measures of damages (damages will be awarded where liability is established)
In British Columbia, the Local Government Act has vested the responsibility for drainage with municipalities. This Act also enables local governments to address rainwater management much more comprehensively than in the past. The challenge is to use this legislation to achieve comprehensive goals and objectives in appropriate and effective ways.
Liability for Downstream Impacts Due to Changes in the Water Balance:
With the statutory authority for drainage, local governments can be held liable for the nuisance caused by drainage to downstream property owners. To assist in understanding the scope of local government liability, three relatively recent cases were presented in the Guidebook.
- Case 1 – Indexed as: Kerlenmar Holdings v. Matsqui (District) and District of Abbotsford Judgement – June 1991 (From British Columbia Law Reports 56 B.C.L. R. (2d) p. 377 – 387.)
- Case 2 – Indexed as: Medomist Farms Ltd. v. Surrey (District)
Judgement – December 1991 (From British Columbia Law Reports 62 B.C.L. R. (2d) p. 168-177.)
- Case 3 – Indexed as: Peace Portal Properties Ltd. v. Corporation of the District of Surrey
Judgement – May 1990 (From Dominion Law Reports 70 D.L. R. (4th) p. 525-535.)
In all three cases, the Court of Appeal in the Province of BC has upheld the decisions. These cases underscore the responsibility of local government for rainwater volume management.
Authority to Implement Rainwater Management Solutions
Some key Local Government Act planning, regulation, development approval and servicing provisions applicable to rainwater management are summarized below:
Regional Growth Strategy & Official Community Plan Goals
Section 849 (2) provides goal statements for:
- Protecting environmentally sensitive areas
- Reducing and preventing air, land and water pollution
- Protecting the quality and quantity of groundwater and surface water
Prohibition of Pollution
Section 725.1 enables local governments to enact bylaws prohibiting water pollution and to impose penalties for contravening these.
Soil Deposit and Removal (Erosion Control)
Section 723 enables local governments to include erosion control and sediment retention requirements associated with soil deposition and removal.
Section 903 enables the prohibition or siting of regulated land uses that, for instance, generate non-point source pollution.
Section 879 enables Official Community Plans (OCPs) to include “policies of the local government relating to the preservation, protection and enhancement of the natural environment, its ecosystems and biological diversity”.
Development approval information areas or circumstances (Section 879.1) enable the designation of areas or circumstances, or areas for which in specified circumstances, development approval information may be required.
Section 907 enables local governments to set maximum percentages of areas that can be covered by impermeable material and to set requirements for ongoing drainage management.
Section 909 enables local governments to set standards for and regulate the provision of landscaping for the purposes of preserving, protecting, or restoring and enhancing the natural environment (e.g. requiring streamside vegetation).
Development Permit Areas
Development permit areas designated in an Official Community Plan (see Section 919.1) cannot be altered, subdivided, or built on without a development permit. The permit can contain conditions for the protection of the environment.
Subdivision Servicing Requirements
Section 938 enables a local government to “require that, within a subdivision”… “a drainage collection or a drainage management system be provided, located and constructed in accordance with the standards established in the bylaw”.
In addition to the above, other rainwater management powers can be found in provisions dealing with building regulations, contaminated sites, development cost charges, ditches and drainage, dikes, development works agreements, flood protection, farming, highways, improvement districts and specified areas, park land, regional district services, sewage systems, subdivision, temporary commercial and industrial use, tree cutting, utilities, water and waste management.
Stormwater Planning: A Guidebook for British Columbia
The Guidebook’s premise that land development and watershed protection can be compatible represented a radical shift in thinking in 2002. The Guidebook recognized that water volume is something over which local government has control through its infrastructure policies, practices and standards. For more information, please click here.