UBC Theses and Dissertations

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UBC Theses and Dissertations

A critical analysis of the water legislation of the province of British Columbia Shelley, Melvin Jack 1957

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A CRITICAL ANALYSIS OF THE WATER LEGISLATION OF THE PROVINCE OF BRITISH COLUMBIA by MELVIN JACK SHELLEY B . A . S c , U n i v e r s i t y of B r i t i s h C o lumbia, 19$$ A THESIS SUBMITTED IN PARTIAL FULFILMENT.OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF BUSINESS ADMINISTRATION i n the F a c u l t y of .COMMERCE AND BUSINESS ADMINISTRATION We a c c e p t t h i s t h e s i s , as conforming to. the r e q u i r e d s t a n d a r d THE UNIVERSITY OF BRITISH COLUMBIA A p r i l , 19^7 ABSTRACT Water i s a key n a t u r a l resource i n our' way of l i f e . Without water such m i r a c l e s of human achievement as the b u i l d i n g of great c i t i e s and the spanning of the c o n t i n -ent w i t h r a i l r o a d s and automobile highways would not have been p o s s i b l e . Such a key n a t u r a l resource must be protected and c o n t r o l l e d by adequate l e g i s l a t i o n which w i l l prevent i t s waste, undue consumption, misuse or con-tamination. With t h i s view i n mind the w r i t e r has c r i t i -c a l l y analysed the l e g i s l a t i o n governing water d i s t r i b u t i o n and sewage-disposal c o n t r o l i n B r i t i s h Columbia by compar-ing i t w i t h that i n other provinces, the United States of America, and I t a l y . To achieve t h i s c r i t i c a l a n a l y s i s , the w r i t e r has used two e x c e l l e n t references on which to base h i s recom-mendations i n the form of d e s i r a b l e p r i n c i p l e s f o r the e x i s t i n g B r i t i s h Columbia water l e g i s l a t i o n . These two references are e n t i t l e d , " D e s i r a b l e P r i n c i p l e s of State Water L e g i s l a t i o n , " and "Suggested State Water P o l l u t i o n C o n t r o l Act," and are published by the N a t i o n a l Reclamation A s s o c i a t i o n and the United States P u b l i c H e a l t h S e r v i c e , r e s p e c t i v e l y . As a r e s u l t of the: c r i t i c a l a n a l y s i s pf the e x i s t i n g B r i t i s h Columbia water supply and d i s t r i b u t i o n l e g i s l a t i o n , i t i s f e l t t h a t the B r i t i s h Columbia A c t Res p e c t i n g the D i v e r s i o n and Use of Water has bot h sound l e g i s l a t i v e f o u n d a t i o n s and a d m i n i s t r a t i v e procedure, and i s f a r s u p e r i o r to any of the s i m i l a r p i e c e s pf l e g i s l a t i o n of the other p r o v i n c e s i n Canada. The w r i t e r a l s o f e e l s t h a t the Act ranks h i g h i n comparison w i t h the water a c t s of comparable western s t a t e s i n the Uni t e d S t a t e s . However, there are c e r t a i n recommendations f o r improvement t h a t have been made f o r the B r i t i s h Columbia water supply and d i s t r i b u t i o n l e g i s l a t i o n . B r i e f l y , these are. as f o l l o w s : 1. That some p r o v i s i o n be made f o r the a c q u i r i n g , c o n t r o l l i n g , and e x e r c i s i n g of r i g h t s to the use of ground waters, i n c l u d i n g b o t h d e f i n i t e underground streams and p e r c o l a t i n g waters. 2. That some p r o v i s i o n be made f o r an a p p r o p r i a t o r to have the o p p o r t u n i t y of r e c a p t u r i n g and r e - u s i n g r e t u r n water which r e s u l t s from h i s development when he i s d i l i g e n t and uses f o r e s i g h t i n h i s attempt not to i n f r i n g e upon p r e -e x i s t i n g r i g h t s . 3- That some p r o v i s i o n be made f o r the a p p r o p r i a t i o n of salvaged.water and developed water i n p r e p a r a t i o n f o r any f o r e s e e a b l e shortage of our n a t u r a l water r e s o u r c e s . !|_. That some- p r o v i s i o n be made f o r the r o t a t i o n i n use of water i n the event of an unexpected shortage of water f o r domestic or other purposes. 3>. That some p r o v i s i o n be made f o r the exchange o f water- so t h a t a p p r o p r i a t o r s may exchange water w i t h one another so l o n g as t h e . r i g h t s of o t h e r s are not i m p a i r e d w i t h r e s p e c t t o e i t h e r q u a n t i t y or q u a l i t y of the w a t e r , and so b r i n g about a more e f f e c t i v e u t i l i z a t i o n of water by a p p r o p r i a t o r s who are a l r e a d y e n t i t l e d t o d i v e r t under terms of t h e i r s e p a r a t e a p p r o p r i a t i v e r i g h t s . 6. That some p r o v i s i o n be made f o r - the a p p r o p r i a t i o n of i n t e r p r o v i n c i a l w a t e r s w i t h t h e use of a d o c t r i n e of r e c i p r o c i t y . As a r e s u l t o f the c r i t i c a l a n a l y s i s of the e x i s t i n g B r i t i s h Columbia w a t e r - p o l l u t i o n c o n t r o l l e g i s l a t i o n , i t i s f e l t t h a t , i n the p a s t , the a u t h o r i t y has been d i v i d e d among s e v e r a l a g e n c i e s , a s i t u a t i o n w h i c h gave r i s e t o l a x c o n t r o l and a l a c k of c o o r d i n a t i o n . However, the r e c e n t l y -passed A c t (March 195>6) t o C o n t r o l the P o l l u t i o n o f Waters of the P r o v i n c e i s an e x c e l l e n t b e g i n n i n g ' of e f f e c t i v e , c o o r d i n a t e d c o n t r o l . I t i s d i f f i c u l t t o compare t h i s A c t w i t h t h o s e i n o t h e r p r o v i n c e s o r i n the U n i t e d S t a t e s because of i t s r e c e n t enactment. B r i e f l y , the w r i t e r would suggest the- f o l l o w i n g recommendations: 1. That some d e f i n i t e and e x a c t c l a s s i f i c a t i o n be adopted i n s e t t i n g the q u a l i t y s t a n d a r d s of b e n e f i c i a l uses f o r r e c e i v i n g w a t e r s , and t h a t these s t a n d a r d s be i n s e r t e d i n the P o l l u t i o n - c o n t r o l A c t . 2. That the b e n e f i c i a l uses of the r e c e i v i n g water be evaluated, and that discharges i n t o the r e c e i v i n g water be c o n t r o l l e d so as to p r o t e c t as many of the b e n e f i t s as p o s s i b l e . 3. That some p r o v i s i o n be made f o r s e t t i n g up r e g i o n a l boards, i n whose hands w i l l be the primary c o n t r o l . Ij.. That the P r o v i n c i a l P o l l u t i o n - c o n t r o l Board be given power to hold an i n q u i r y , and f o r that purpose i t be given a l l the powers and j u r i s d i c t i o n of a J u s t i c e of the Peace under the "Summary Convict i o n s Act." 5>. That the Board be given the power to r e q u i r e the keeping of records and making of r e p o r t s , and to enter on property at reasonable times f o r purposes of i n s p e c t i o n and i n v e s t i g a t i o n . 6. That one member of the Board be experienced i n the f i e l d of mu n i c i p a l government and one be experienced i n the f i e l d of i n d u s t r i a l a c t i v i t i e s . I n p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t of the r e q u i r e m e n t s f o r an advanced degree a t the U n i v e r s i t y of B r i t i s h C olumbia, I agree t h a t the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and s t u d y . I f u r t h e r agree t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g of t h i s t h e s i s f o r s c h o l a r l y purposes may be g r a n t e d by t h e Head of my Department or by h i s r e p r e s e n t a t i v e . I t i s under-stood t h a t c o p y i n g o r p u b l i c a t i o n of t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l n o t be a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n . F a c u l t y o f Commerce and B u s i n e s s A d m i n i s t r a t i o n The U n i v e r s i t y of B r i t i s h C o lumbia, Vancouver 8, Canada. Date MftRCH 21, 1157 ACKNOWLEDGMENTS The writer would l i k e to- acknowledge-Mr. R. Bowering>. Director, D i v i s i o n of Public Health Engineering, Department of Health and Welfare, Parliament Buildings., V i c t o r i a , B r i t i s h Columbia f o r his assistance i n the preparation' of this t h e s i s , as well as a l l others who have so f r e e l y supplied accessory information. The writer i s also indebted to his wife,,. Mary Ann, f o r her perseverance i n the proof-reading of the thesis and her moral support given throughout the entire time of writing. i v CONTENTS CHAPTER Page •I. INTRODUCTION 1 I I . EXISTING WATER LEGISLATION ACROSS CANADA . . $ I I I . THE NEED FOR ADEQUATE WATER LEGISLATION . . 8 PART I I . WATER-SUPPLY LEGISLATION IV. LOCATION, CONSUMPTION AND FLOOD CONTROL OF BRITISH COLUMBIA'S NATURAL WATER RESOURCES 10 V. HISTORY AND GROWTH OF WATER LEGISLATION IN BRITISH COLUMBIA 12+ E a r l y L e g i s l a t i o n 1$ Water A c t , 1909 16 Water A c t , 1911+ 18 V I . DESIRABLE GENERAL PRINCIPLES OF BRITISH COLUMBIA WATER LEGISLATION 21 Purpose o f L e g i s l a t i o n . 22 Scope of L e g i s l a t i o n 23 Procedure f o r A c q u i s i t i o n of Water R i g h t s 23 Procedure f o r D e t e r m i n a t i o n and A d j u d i c a t i o n of Water R i g h t s 21+ Machinery f o r the A d m i n i s t r a t i o n o f Water R i g h t s 2$ CHAPTER Page Ownership of Water 25> I n I t s N a t u r a l Environment 2^ Reduced t o P r i v a t e C o n t r o l and P o s s e s s i o n 28 The C o m p t r o l l e r 3 2 C l a s s i f i c a t i o n of A v a i l a b l e Water-S u p p l i e s . 3 6 Waters on the S u r f a c e of the E a r t h . . 3 6 Waters Under the S u r f a c e of the E a r t h . 3 7 Water R i g h t D o c t r i n e s 3 8 S u r f a c e Waters i n Water Courses . . . 3 8 D i f f u s e d S u r f a c e Waters 2+.0 S u r f a c e Waters i n Lakes o r Ponds . . . S p r i n g Waters l+l Waste Waters J+2 Ground Waters ij.3 A p p r o p r i a t i o n of Waters . . . . . . . . \\$ U n a p p r o p r i a t e d Waters A p p r o p r i a b l e Ground Water l\$ R e t u r n . Water J4.8 Salvaged Water and Developed Waters . f>l R e s e r v a t i o n of Water . . 5>3 P r i o r i t y of A p p r o p r i a t i v e R i g h t . . . . 5>4-Loss of Water R i g h t 5>6 L i m i t of A p p r o p r i a t i v e R i g h t . . . . . £6 CHAPTER Page Abandonment of Water R i g h t . . . . . . £8 F o r f e i t u r e of Water R i g h t $9 R o t a t i o n i n Use of Water 60 Exchange of Water 62 T r a n s f e r of Water R i g h t s 63 A p p r o p r i a t i o n o f Waters Between P r o v i n c e s . . . 2 . . . , 65> A p p r o p r i a t i o n of I n t e r n a t i o n a l Waters . 70 PART I I I . WATER-POLLUTION CONTROL LEGISLATION V I . WATER POLLUTION DEFINED lk V I I . THE WATER-POLLUTION CONTROL PROBLEM . •-. 76 I X . HISTORY AND GROWTH OF WATER-POLLUTION CONTROL LEGISLATION IN BRITISH COLUMBIA-. 83 G e n e r a l . . 83 E a r l y L e g i s l a t i o n 83 S a n i t a r y R e g u l a t i o n s , 1892 . . . . . . . 8£ H e a l t h A c t , 1893 Q$ S a n i t a r y R e g u l a t i o n s . , 1896 . . . . . . . 86 Sewerage A c t , 1910 . . . . • 89 G r e a t e r Vancouver Sewerage and D r a i n a g e D i s t r i c t A c t , 19^ 6 . 89 S a n i t a r y R e g u l a t i o n s G o v e r n i n g Watersheds, 1936 T: 92 P o l l u t i o n - c o n t r o l A c t , 19^ 6 92 v i i CHAPTER Page X. EXISTING LEGISLATION ON WATER-POLLUTION CONTROL IN BRITISH COLUMBIA TODAY . . . . 9£ X I . DESIRABLE GENERAL PRINCIPLES OP BRITISH COLUMBIA WATER-POLLUTION CONTROL LEGISLATION , 99 W a t e r - p o l l u t i o n C o n t r o l P o l i c y 99 Standards o f Water Q u a l i t y . . . . . . . . 100 P e r m i t System of W a t e r - p o l l u t i o n C o n t r o l . 103 Enforcement o f W a t e r - p o l l u t i o n C o n t r o l L e g i s l a t i o n 103 A d m i n i s t r a t i v e Agency IOI4. P l a n n i n g f o r F u t u r e Developments . . . . 107 PART IV. CONCLUSION AND RECOMMENDATIONS X I I . CONCLUSION 100 X I I I . RECOMMENDATIONS 112, BIBLIOGRAPHY • , 118 APPENDICES I . Q u e s t i o n n a i r e on B a s i c Water Use D o c t r i n e s and P r o v i n c i a l Water C o n t r o l A g e n c i e s i n Canada. Completed Sample Q u e s t i o n n a i r e . 123 I I . Summary of B a s i c Water Use D o c t r i n e s and P r o v i n c i a l Water C o n t r o l A g e n c i e s i n Canada 126 v i i i APPENDICES Page I I I . - Summary of B a s i c Water Use D o c t r i n e s and S t a t e Water C o n t r o l A g e n c i e s i n the. U n i t e d S t a t e s o f America . . . . . . . . . 128 IV. Map I l l u s t r a t i n g B r i t i s h Columbia's S t r e a m f l o w Y i e l d and Regime- .. .. . .. . . 130 V. Map I l l u s t r a t i n g B r i t i s h Columbia's Water Consumption, S t o r a g e F a c i l i t i e s - and-F l o o d C o n t r o l Areas . 132 V I . An A c t R e s p e c t i n g the D i v e r s i o n and Use- of ' Water, R.S.B.C. (192+8), c h a p t e r 361. ,. . 131+ V I I . T a b u l a t i o n of the P r i n c i p a l Waters F l o w i n g A c r o s s the Boundary Between B r i t i s h Columbia and the U n i t e d S t a t e s o f Americ a 13 6 V I I I . An A c t t o C o n t r o l the P o l l u t i o n of Waters of the P r o v i n c e , B.C. S t a t u t e s (191+8)., c h a p t e r 3.6 . . . ' 138. IX.- R e p o r t on Water P o l l u t i o n C o n t r o l i n B r i t i s h Columbia Today by R. Bo w e r i n g , D i r e c t o r , D i v i s i o n of P u b l i c H e a l t h E n g i n e e r i n g ll+O X. Suggested S t a t e Water P o l l u t i o n C o n t r o l A c t by U n i t e d S t a t e s P u b l i c H e a l t h S e r v i c e 15>9 LIST OP TABLES AND ILLUSTRATIONS Page TABLE I. C l a s s i f i c a t i o n of A v a i l a b l e Water S u p p l i e s 35> FIGURE 1. P o l l u t i o n Trends i n U n i t e d S t a t e s M u n i c i p a l Sewage 79 TABLE I I . Governmental P o l l u t i o n C o n t r o l A u t h o r i t i e s i n B r i t i s h Columbia . . 97 APPENDIX I I . Summary of B a s i c Water Use D o c t r i n e s and P r o v i n c i a l Water C o n t r o l Agencies i n Canada 127 APPENDIX I I I . Summary of B a s i c Water Use D o c t r i n e s and State- Water C o n t r o l Agencies i n the Un i t e d S t a t e s of America . . . 129 APPENDIX IV. Map I l l u s t r a t i n g B r i t i s h Columbia's Streamflow Y i e l d and Regime . . . . . . 131 APPENDIX V. Map I l l u s t r a t i n g B r i t i s h Columbia's Water Consumption, Storage F a c i l i t i e s and F l o o d C o n t r o l Areas 133 APPENDIX V I I . T a b u l a t i o n of the P r i n c i p a l Waters Flowing A c r o s s the Boundary Between B r i t i s h Columbia and the U n i t e d S t a t e s of America 137 X Page FIGURE 2 . Map I l l u s t r a t i n g Type and L o c a t i o n of B r i t i s h Columbia Sewage D i s p o s a l Systems . II4.6 PART I, GENERAL CHAPTER I INTRODUCTION Prom the p r o d u c t s of our l a n d , our f o r e s t s , our mines and o i l f i e l d s , we have r a i s e d g r e a t c i t i e s and spanned a c o n t i n e n t w i t h r a i l r o a d s and a u t o m o b i l e highways. But w i t h o u t one key r e s o u r c e , water, none of t h e s e m i r a c l e s of human achievement would have been p o s s i b l e . 1 The above q u o t a t i o n emphasizes t h e importance of water I n our way of l i f e . - Such a key n a t u r a l r e s o u r c e must be p r o t e c t e d and c o n t r o l l e d by adequate l e g i s l a t i o n w hich w i l l p r e v e n t i t s waste, undue consumption, misuse o r c o n t a m i n a t i o n . I t i s w i t h t h i s v i e w i n mind t h a t the w r i t e r w i l l attempt t o a n a l y s e c r i t i c a l l y the l e g i s l a t i o n g o v e r n i n g water d i s t r i b u t i o n and s e w a g e - d i s p o s a l c o n t r o l i n B r i t i s h Columbia by comparing i t w i t h t h a t i n o t h e r p r o v i n c e s , the U n i t e d S t a t e s of A m e r i c a , and I t a l y . The U n i t e d S t a t e s o f Ameri c a was chosen f o r a compar-i s o n because i t has s i m i l a r customs and r e l i g i o n s as w e l l as s i m i l a r g e o l o g i c s t r u c t u r e i n some of the f o r t y - e i g h t s t a t e s , s p e c i f i c a l l y t he P a c i f i c Northwest s t a t e s . I t a l y was chosen -'-President's Water Resources P o l i c y Commission, G e n e r a l R e p o r t , V o l . 1, Ten R i v e r s i n Amer i c a ' s F u t u r e , V o l . 2, Water Resources Law, V o l . 3, recommendations sum-m a r i z e d •Tn~"nXWater P o l i c y f o r the American P e o p l e , " J o u r n a l  American Water Works A s s o c i a t i o n , V o l . 1+3, No. 2 ( F e b r u a r y , 1 9 5 D , p. 91. 1 2 mainly: . . . because of i t s long i r r i g a t i o n history,, i t s background of Roman law and customs which have been instrumental i n shaping the laws of many modern c o u n t r i e s , and because t h i s country pos-sesses a simple and complete system of water laws.^ I t i s hoped that the I t a l i a n l e g i s l a t i o n w i l l provide an i n t e r e s t i n g and in f o r m a t i v e b a s i s f o r comparison. The w r i t e r experienced d i f f i c u l t y i n o b t a i n i n g m a t e r i a l regarding I t a l y ' s w a t e r - p o l l u t i o n c o n t r o l l e g i s l a t i o n , and f o r that reason only I t a l y ' s water supply and d i s t r i b u t i o n l e g i s -l a t i o n w i l l be used i n the comparison w i t h B r i t i s h Columbia's water l e g i s l a t i o n . I t i s thought that by using these c o u n t r i e s as a comparison, and i n some cases as a c o n t r a s t , the importance of a complete system of water laws covered by adequate l e g i s l a t i o n can be s t r e s s e d , f o r the demand on our water resource i s an e v e r - i n c r e a s i n g one. The w r i t e r w i l l evaluate the B r i t i s h Columbia water l e g i s l a t i o n , i n c l u d i n g w a t e r - p o l l u t i o n c o n t r o l w i t h the d e s i r e of b r i n g i n g f o r t h d e s i r a b l e p r i n c i p l e s i n water l e g i s l a t i o n which may or may not already.be i n an e x i s t i n g p r o v i n c i a l a c t . Throughout the e n t i r e t h e s i s , the w r i t e r i n h i s a n a l y s i s has r e f e r r e d to va r i o u s s e c t i o n s of e x i s t i n g Dante A. Caponera, Water Laws i n I t a l y . Food and A g r i c u l t u r e Organization of the United Nations, Development Paper No. 22, Ag r i c u l t u r e (Rome: Food and A g r i c u l t u r e Organization of the United Nations, 19^3), p. i i . 3 l e g i s l a t i o n i n the o t h e r p r o v i n c e s , t h e U n i t e d S t a t e s of Americ a and I t a l y . I n p a r t i c u l a r , the w r i t e r f e e l s t h a t the Suggested S t a t e Water P o l l u t i o n C o n t r o l A c t and t h e D e s i r a b l e P r i n c i p l e s o f S t a t e Water L e g i s l a t i o n are e x c e l l e n t bases on which to,make recommendations i n the f o r m of p r i n c i p l e s f o r the e x i s t i n g B r i t i s h Columbia water l e g i s l a t i o n . 'An attempt w i l l be made t o improve the e x i s t i n g l e g i s l a t i o n i n t h i s manner. B o t h p i e c e s of l e g i s l a t i o n w i l l be r e f e r r e d t o i n d e t a i l l a t e r . Because of the b r e a d t h of t h e t o p i c , t h e w r i t e r w i l l c o n c e r n h i m s e l f i n P a r t I I of t h i s t h e s i s w i t h o n l y a few of the problems c o n c e r n i n g the a c q u i r i n g , c o n t r o l l i n g , - and e x e r c i s i n g of r i g h t s t o t h e use of w a t e r . These r e p r e s e n t a l a r g e , r e l a t e d group of problems around w h i c h most of t h e water law i n B r i t i s h C olumbia has dev e l o p e d . Those p a r t s of the water law d e a l i n g w i t h t h e o r g a n i z a t i o n and i n t e r n a l management of improvement d i s t r i c t s , and wa t e r u s e r s ' com-m u n i t i e s , r e g u l a t i o n of p u b l i c - u t i l i t y water companies, v a l -u a t i o n of water r i g h t s , r i g h t s - o f - w a y f o r d i t c h e s and s t r u c t u r e s , r i v e r c o n t r o l i n a i d of n a v i g a t i o n , and other-s p e c i a l problems w i l l not be c o n s i d e r e d i n t h i s t h e s i s because t h e s e are s p e c i a l i z e d t o p i c s and t h e w r i t e r does not f e e l competent t o handle them. P a r t I I I of t h i s t h e s i s w i l l d e a l w i t h t h e p r o b l e m of p o l l u t i o n c o n t r o l w i t h the same b b - j e c t i y e s i n v i e w as were d i s c u s s e d above. The w r i t e r w i l l d i s c u s s the e x i s t i n g p o l l u t i o n -c o n t r o l l e g i s l a t i o n i n a few of the more i m p o r t a n t a r e a s , and w i l l d e a l w i t h such m a t t e r s as p o l i c y making, s e t t i n g of s t a n d a r d s , use of p e r m i t s , enforcement of l e g i s l a t i o n , a d m i n i s -t r a t i v e a g e n c i e s and p l a n n i n g f o r f u t u r e developments. P a r t IV of the t h e s i s w i l l p r e s e n t the w r i t e r ' s c o n c l u s i o n w i t h r e g a r d t o the e x i s t i n g water l e g i s l a t i o n i n the P r o v i n c e and w i l l a l s o o u t l i n e t h e recommendations f o r improvement t h a t i t i s f e l t s h o u l d be made. Any study of water l e g i s l a t i o n may be out of date v e r y s h o r t l y a f t e r p u b l i c a t i o n due t o the c o n t i n u a l amend-ments t o water codes and the g r e a t i n t e r e s t w h i c h i s b e i n g shown by many government o f f i c i a l s i n t h i s f i e l d . As new i n d u s t r i e s are d e v e l o p e d and new areas o f l a n d b r o u g h t under c u l t i v a t i o n , the government must spend more and more time and s t u d y on the water s u p p l y , i t s use and contamin-a t i o n . Hence, the l e g i s l a t i o n g o v e r n i n g water i n Canada w i l l be e v e r - c h a n g i n g f o r many y e a r s t o come, and t h e r e f o r e , a l t h o u g h t h e w r i t e r has attempted t o use the most r e c e n t s o u r c e s of i n f o r m a t i o n wherever p o s s i b l e , i t i s e v i d e n t t h a t the c o n t e n t o f t h i s t h e s i s w i l l be c u r r e n t l y a p p l i c a b l e f o r o n l y a l i m i t e d t i m e . CHAPTER I I EXISTING WATER LEGISLATION ACROSS CANADA By and l a r g e , w ater i s p l e n t i f u l i n e a s t e r n Canada. However, i n the w e s t e r n p r o v i n c e s , w i t h t h e e x c e p t i o n of B r i t i s h Columbia, water i s s c a r c e , and t h i s p r o v i d e s f o r a l i m i t i n g f a c t o r f o r the p r o d u c t i v i t y of the s o i l . I n p a r t s of B r i t i s h Columbia t h i s same c o n d i t i o n e x i s t s and i s a p p a r e n t l y not i m p r o v i n g o v e r the y e a r s . I t i s t h e r e f o r e understandable, t h a t the wa t e r law of t h e w e s t e r n p r o v i n c e s i s v e r y complex and has been more f u l l y d e v e l o p e d t h a n t h a t of the e a s t e r n p r o v i n c e s . I n the c o u r s e of i n q u i r i e s f r o m o f f i c i a l s w i t h i n v a r i o u s p r o v i n c e s i t was found t h a t the f o l l o w i n g p r o v i n c e s have w a t e r r i g h t s a c t s o f one s o r t o r a n o t h e r : B r i t i s h Columbia, A l b e r t a , Saskatchewan, and Man i t o b a . O n t a r i o passed t h e O n t a r i o B i l l No. 1+98. i n May of 19^6 t o s e t up a Water Resources Commission. No i n f o r m a t i o n was a v a i l a b l e f o r Quebec. New B r u n s w i c k , P r i n c e Edward I s l a n d , and Newfoundland have no wa t e r r i g h t s l e g i s l a t i o n , but Nova S c o t i a does have some minor l e g i s l a t i o n a l o n g t h i s l i n e . I t s h o u l d be n o t e d , however, t h a t some p r o v i n c e s such as O n t a r i o do have water-power r e g u l a t i o n a c t s w h i c h w i l l c o ver one phase of water use and w a t e r - p o l l u t i o n c o n t r o l . I t i s apparent t h a t t h e e a s t e r n p r o v i n c e s have not had t o 6 worry about water s c a r c i t y as y e t , and f o r t h i s r e a s o n t h e i r l e g i s l a t i o n i s e i t h e r v e r y l a x or m i s s i n g a l t o g e t h e r . However, the s i t u a t i o n i s q u i t e d i f f e r e n t w i t h r e g a r d t o p o l l u t i o n - c o n t r o l l e g i s l a t i o n . W h i l e a l l p r o v i n c e s have a department of h e a l t h w h i c h c o v e r s one phase of water-p o l l u t i o n c o n t r o l , v e r y few have any k i n d of s p e c i f i c p o l l u t i o n - c o n t r o l l e g i s l a t i o n . B r i t i s h C o lumbia, New Bru n s -w i c k , and Quebec have a P o l l u t i o n C o n t r o l B oard and M a n i t o b a has a S a n i t a r y C o n t r o l Commission. The New B r u n s w i c k Water R e s o u r c e s and P o l l u t i o n C o n t r o l B.o.ard was s e t up i n 19^6 t o stu d y the s i t u a t i o n and make recommendations. The r e m a i n d e r of t h e p r o v i n c e s have no s p e c i f i c p o l l u t i o n - c o n t r o l l e g i s -l a t i o n . The P r o v i n c e o f P r i n c e Edward I s l a n d , f o r example, i s not f a c e d w i t h a w a t e r - p o l l u t i o n p r o blem because p r a c t i -c a l l y a l l i t s streams a re t i d a l , and t h e r e f o r e sewage I s d i s p o s e d of by d i s c h a r g e d i r e c t l y i n t o t h e h a r b o u r s . I t i s , i n f a c t , i n t e r e s t i n g t o note t h a t t h e r e are- o n l y two m u n i c i -p a l i t i e s , C h a r l o t t e t o w n and Summerside, w h i c h have waterworks systems. These f a c t s p l u s o t h e r s have been t a b u l a t e d i n Appendix I I of t h i s t h e s i s , "Summary o f B a s i c Water Use D o c t r i n e s and P r o v i n c i a l Water C o n t r o l A g e n c i e s i n Canada." The w r i t e r has a l s o i n c l u d e d a copy of t h e q u e s t i o n n a i r e w h i c h was p r e p a r e d t o g a t h e r the i n f o r m a t i o n p e r t i n e n t , t o this;-' t a b u l a t i o n ( r e f e r t o Appendix I ) . W i t h each one o f t h e s e 7 q u e s t i o n n a i r e s was sent a sample completed copy and' a s e l f -a d d ressed e n v e l o p e . A copy of t h e former i s a l s o d i s p l a y e d i n Appendix I . At t h i s p o i n t the w r i t e r would l i k e t o say t h a t i n the case of some p r o v i n c e s he e x p e r i e n c e d d i f f i c u l t y i n o b t a i n i n g the- d e s i r a b l e answers t o the q u e s t i o n n a i r e , and so i n some cases he has had t o i n t e r p r e t t h e r e p l i e s b r o a d l y . I n the case of one p r o v i n c e , the' q u e s t i o n n a i r e was not r e t u r n e d and the w r i t e r has had t o leave- t h e t a b u l a t i o n b l a n k i n some p o r t i o n s , r e l y i n g upon o t h e r c o r r e s p o n d e n c e t o complete the r e m a i n i n g p o r t i o n s . I n o r d e r t o o b t a i n f u r t h e r background on t h e p r o b l e m of water l e g i s l a t i o n , t he w r i t e r has i n c l u d e d i n Appendix I I I a copy of a s i m i l a r t a b u l a t i o n as r e f e r r e d to-above f o r t h e U n i t e d S t a t e s of A m e r i c a . The r e a d e r i s asked' t o r e f e r t o Appendix I I I , "Summary of B a s i c Water Use D o c t r i n e s and S t a t e Water C o n t r o l A g e n c i e s i n the U n i t e d S t a t e s of A m e r i c a . " The w r i t e r has m o d e l l e d Appendix I I i n the. same- f o r m as the above-mentioned t a b u l a t i o n so t h a t the. two c o u n t r i e s , Canada and th e U n i t e d S t a t e s o f A m e r i c a , might be compared i n t h i s r e s p e c t . CHAPTER I I I THE NEED FOR ADEQUATE WATER LEGISLATION I t i s thus apparent t h a t the need f o r adequate water l e g i s l a t i o n I s g r e a t , n o t o n l y i n B r i t i s h C o l u m b i a , but a l s o a c r o s s Canada. Most of the Canadian p r o v i n c e s f e e l t h i s need and are a t t e m p t i n g t o c o r r e c t the s i t u a t i o n . T h i s i s e x e m p l i f i e d by the r e c e n t passage of a c t s I n B r i t i s h C olumbia, O n t a r i o , New B r u n s w i c k , and Quebec d e a l i n g w i t h p o l l u t i o n c o n t r o l and water r i g h t s . One p r o v i n c e , M a n i t o b a , r e c o g n i z e s the need f o r adequate l e g i s -l a t i o n and i s s e r i o u s l y c o n s i d e r i n g a p r o p o s a l t o r e v i s e the e x i s t i n g a c t s so as t o have them c o n t a i n o n l y t h e i m p o r t a n t p r i n c i p l e s and t o t r a n s f e r t o r e g u l a t i o n s most of the p r o c e d u r e s , such as methods of making a p p l i c a t i o n s , p r e s -c r i b i n g forms o f l i c e n s e s , and f i x i n g of f e e s or r e n t a l s . Such a r e v i s i o n w i l l s h o r t e n t h e e n a b l i n g a c t and so p r e s e n t o n l y the p r i n c i p l e s d i r e c t l y i n v o l v e d i n the wat e r l e g i s -l a t i o n . B r i t i s h Columbia i s another p r o v i n c e which has t a k e n r e c e n t s t r i d e s t o improve i t s e x i s t i n g l e g i s l a t i o n so as to o b t a i n b e t t e r c o n t r o l o ver i t s w a t e r r e s o u r c e s . The w r i t e r i s r e f e r r i n g i n t h i s i n s t a n c e t o the r e c e n t passage of "An A c t t o C o n t r o l the P o l l u t i o n of Waters of the P r o v i n c e . " 8 Thus, t h e need i s b e i n g r e c o g n i z e d , b u t the r e s u l t i n g l e g i s l a t i o n w i l l o n l y become e f f e c t i v e i f the p u b l i c i s made c o g n i z a n t of these v e r y n e c e s s a r y r e v i s i o n s and new a c t s , and the r e l e v a n t s e c t i o n s of t h e a c t s are f u l l y implemented. PART I I . WATER-SUPPLY LEGISLATION CHAPTER IV LOCATION, CONSUMPTION AND FLOOD CONTROL OF BRITISH COLUMBIA'S NATURAL WATER RESOURCES B e f o r e the w r i t e r attempts t o o u t l i n e t h e h i s t o r y o f B r i t i s h Columbia's water l e g i s l a t i o n , i t w i l l be n e c e s s a r y t o g i v e the r e a d e r some i d e a o f t h e e x t e n t o f t h i s P r o v i n c e ' s water r e s o u r c e s and t h e i r consumption.. To do t h i s , two maps have been s e l e c t e d f r o m t h e r e c e n t l y p u b l i s h e d , " B r i t i s h C olumbia A t l a s of R e s o u r c e s . " T h i s a t l a s i s an e x c e l l e n t c o m p i l a t i o n of f a c t u a l d a t a on a l l of the P r o v i n c e ' s r e s o u r c e s . I t i s unique i n N o r t h A m e r i c a . I f t he r e a d e r i s i n t e r e s t e d i n a a d i s t r i b u t i o n of the l a n d p r e s e n t l y under i r r i g a t i o n and-the p r e s e n t i r r i g a t i o n w ater s t o r a g e he may r e f e r t o Map Number 22 of the A t l a s . The Atlas a l s o c o n t a i n s many o t h e r maps w h i c h c o n c e r n t h e l o c a t i o n of h y d r o - e l e c t r i c power p l a n t s , d eveloped and p o t e n t i a l h y d r o - e l e c t r i c power, a n n u a l p r e c i p i t a t i o n , l o c a t i o n of h y d r o m e t r i c s t a t i o n s and g l a c i a l g e o l o g y , w h i c h might be c o n s i d e r e d r e l a t e d t o t h i s d i s c u s s i o n . The major source of B r i t i s h Columbia's water i s t h e P a c i f i c Ocean.-If .one l o o k s at t h i s p r o v i n c e ' s h y d r o l o g i c 10 c y c l e , he w i l l see t h a t the 'water-bearing c l o u d form-a t i o n s , w h i c h have r e c e i v e d t h e i r m o i s t u r e f r o m t h e Ocean, move eastward because o f p r e v a i l i n g w i n d s , and d e p o s i t t h e i r m o i s t u r e on t h e h i g h c o a s t a l mountains. Some o f t h i s m o i s t u r e i s pushed upwards t o c o l d e r r e g i o n s by the. Coast Range, and t h e r e s u l t i n g snow o r r a i n i s d e p o s i t e d m a i n l y on t h e west s i d e of the mountains. Some of t h e water I s a b l e t o r e t u r n t o t h e ocean by means o f t h e streams. T h i s s u r f a c e w a t e r , as i t i s c a l l e d , forms the main s u p p l y of water f o r the P r o v i n c e . B r i t i s h Columbia i s p a r t i c u l a r l y f o r t u n a t e i n h a v i n g so much of i t s w a t e r a v a i l a b l e by g r a v i t y f e e d . T h i s P r o v i n c e has been s a i d t o be unique i n t h i s - r e s p e c t Map Number 8, " S t r e a r a f l o w Y i e l d and Regime," ( r e f e r t o Appendix IV) w i l l g i v e the r e a d e r an e s t i m a t e o f the e x t e n t of the s u r f a c e w a t e r , as w e l l as i t s h a r d n e s s , I n the v a r i o u s areas o f the P r o v i n c e . The r e a d e r i s p a r t i -c u l a r l y asked t o note the s m a l l graphs of stream f l o w measurement t a k e n a t the v a r i o u s gauging s t a t i o n s t h r o u g h o u t the P r o v i n c e . The Keremeos Creek S t a t i o n graph (see Appendix IV) shows t h a t t h i s a r e a has l e s s t h a n 0.05> thousand c u b i c f e e t - p e r - s e c o n d stream f l o w f o r over e i g h t 3 The B r i t i s h Columbia N a t u r a l Resources. C o n f e r e n c e , B r i t i s h Columbia A t l a s of Resources ( V i c t o r i a : The B r i t i s h C olumbia N a t u r a l Resources C o n f e r e n c e , 195>6), p. 17'. •^R. B o w e r i n g , " E x i s t i n g and P r o b a b l e F u t u r e D e v e l o p -ments i n - t h e M u n i c i p a l Water S u p p l y F i e l d W i t h i n the Prov-i n c e , " T r a n s a c t i o n s o f the N i n t h B r i t i s h Columbia N a t u r a l  R e sources C o n f e r e n c e , ( V i c t o r i a : The B r i t i s h Columbia N a t u r a l R e s o u r c e s C o n f e r e n c e , 193>6), p. 231. 12 months of t h e average y e a r , w h i l e the F r a s e r R i v e r Hope S t a t i o n g r a p h shows a low o f a p p r o x i m a t e l y 75> thousand c u b i c f e e t - p e r - s e c o n d stream f l o w f o r two months of the average y e a r . T h i s p o i n t s up the l a c k of s u r f a c e w a t e r i n t h e So u t h e r n Okanagan V a l l e y . I t s h o u l d a l s o be kept i n mind t h a t t h i s map does not i l l u s t r a t e the underground sources of water w h i c h p r o v i d e a s m a l l s u p p l y o f water t o t h e P r o v i n c e . I n t h i s sense, the map has l i m i t e d use. Map Number 3 3 , "Water Consumption," (see Appendix V) of the A t l a s g i v e s an e x c e l l e n t p i c t u r e of t h e w a t e r con-sumption of the P r o v i n c e , t h e s t o r a g e f a c i l i t i e s c u r r e n t l y a v a i l a b l e , and t h e f l o o d c o n t r o l measures t h a t have been t a k e n . The per c a p i t a consumption of water f o r the. P r o v i n c e as a whole v a r i e s between . 2 2 and 333 g a l l o n s p e r day, w i t h most of the c i t i e s consuming between 100 and 200 g a l l o n s p e r c a p i t a p e r day. T h i s consumptive r a t e appears t o be f o r m i n g a r i s i n g t r e n d w h i c h as y e t has not posed a s e r i o u s p r o b lem f o r t h e P r o v i n c e ' s g e n e r a l l y q u i t e adequate water r e s o u r c e s . Mr. W..A. K e r , Deputy C o m p t r o l l e r of Water R i g h t s , B.C. Lands S e r v i c e , f e e l s t h a t t h e r e I s no p r e s e n t s h o r t a g e of water and t h a t the main p r o b l e m t h a t must be overcome i s t h e h i g h c o s t of "... g e t t i n g i t on t h e l a n d . " ^ ^ I b i d . , p-. 67. ' ^W.A. K e r , " E x i s t i n g and P r o b a b l e F u t u r e Developments in-Water S u p p l y f o r I r r i g a t i o n W i t h i n t h e P r o v i n c e , " Tran-s a c t i o n s of t h e N i n t h B r i t i s h C olumbia N a t u r a l Resources. Conference ( V i c t o r i a : The B r i t i s h Columbia N a t u r a l R e s o u r c e s C o n f e r e n c e , 19^6) , p. 236. -13 However, i f p r o p e r r e g u l a t i o n i s not encouraged, such developments as h o u s e h o l d a i r c o n d i t i o n i n g u n i t s w i t h o u t r e c i r c u l a t i o n pumps and new h y d r o - e l e c t r i c power p l a n t s w i l l p r o v i d e a s e r i o u s d r a i n on the water r e s o u r c e s , w h i c h are l i m i t e d by c l i m a t e and topography. There w i l l be a s l o w e r i n c r e a s e i n the number of s e r v i c e s t o be i n s t a l l e d 7 and an i n c r e a s e i n t h e u n i t r e s i d e n t i a l use of w a t e r , t o g i v e a g r e a t e r net d r a i n on the s u p p l y . More s t o r a g e f a c i l i t i e s must t h e r e f o r e be b u i l t , and a p r o p e r f l o o d -c o n t r o l system must be d e v e l o p e d . The l e g i s l a t i o n t o provide- f o r the l a t t e r two a s p e c t s of c o n t r o l of t h e P r o v i n c e ' s l i m i t e d n a t u r a l w a t e r r e s o u r c e s w i l l n o t be d i s c u s s e d i n t h i s t h e s i s . B a s i c a l l y , t h e w r i t e r w i l l be concerned w i t h water l e g i s l a t i o n d e a l i n g w i t h the r i g h t t o use w a t e r , whether t h e r e be a h o u s e h o l d e r , a m u n i c i p a l i t y , or a b u s i n e s s c o r p o r a t i o n i n v o l v e d w i t h t h i s r i g h t . Ross Hanson and H e r b e r t E. Hudson, J r . . , "Trends i n R e s i d e n t i a l Water Use," J o u r n a l American Water. Works  A s s o c i a t i o n , V o l . 1+8, No. 11 (November, 1956), p. 1358.-CHAPTER V HISTORY AND GROWTH OP WATER LEGISLATION IN BRITISH COLUMBIA In order that the present act respecting the diversion and use of water i n the province of B r i t i s h Columbia be f u l l y understood, i t i s f i r s t , necessary to look b r i e f l y at the h i s t o r y of the P r o v i n c i a l water l e g i s l a t i o n . The present water system i s based on fundamental p r i n c i p l e s which were established early i n the h i s t o r y of the colony. Fundamentally, the p r i n c i p l e s assert that water i n the streams i s a public asset and that no p r e s c r i p t i v e or r i p a r i a n r i g h t should be permitted to i n t e r f e r e with i t s Q b e n e f i c i a l use, the main objective of the l e g i s l a t i o n being to do " ... the greatest good f o r the greatest number;"^ °J.C. MacDonald, "Water L e g i s l a t i o n i n B r i t i s h Columbia,." Journal American Water Works Association, Vol. 1+0, No. 2 (February, 191+8), p. 159. .A. McLean, " H i s t o r i c Development of Water Legis-lation- i n British-Columbia," Transactions of the Eighth  B r i t i s h Columbia Natural Resources Conference" ( V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1955), P- 21+7-11+ 1$ Early L e g i s l a t i o n In l85>9, a year after the organization of the colony of B r i t i s h Columbia, the "Gold F i e l d s Act" was passed requiring that a l l persons who held any claim, ditch, or water p r i v i l e g e on October 2 7 , 18^9 must, on or before November 1 , l 8 ^ 9 , r e g i s t e r that claim at the o f f i c e of the Gold Commissioner i f they desired an exclusive d i t c h or water p r i v i l e g e . 1 ^ The Gold Commissioner was authorized to grant the r i g h t to divert and use the water from any creek f o r an annual fee; t h i s right had to exceed a term of f i v e years. Thus, early regulations show that water was assumed to be the property of the Crown and that, f o r a fee, the i n d i v i d u a l could acquire a right of use. A land ordinance passed i n l865> permitted every person l i v i n g on and c u l t i v a t i n g lands to divert any unoccupied water from a stream upon obtaining; the written authority of the stipendiary magistrate of the d i s t r i c t . 1 1 These above-mentioned laws dealt with the use of - water f o r mining and I r r i g a t i o n . Community supplies of water were granted by a special act of the l e g i s l a t u r e , as f o r example, 12 the V i c t o r i a water supply. However, the righ t s granted under-these acts, except those given f o r water works, were 1 QGold' F i e l d s Act of l 8 £ 9 , Sec. VI (August. . 3 1 , 1 8 ^ 9 ) . 1 1MacDonald, op_. c i t . , p. 1 6 0 . 1 2 ' ' • I b i d . 16 made contingent on b e n e f i c i a l use within a reasonable time. In order that the use of water fo r purposes not provided f o r i n the Gold F i e l d s and Land Acts be covered, the Water Pri v i l e g e s Act of 1892 was passed. In t h i s act a d e f i n i t e declaration was made that water belonged to the Crown. To combine the various water provisions i n the Gold F i e l d s and Land Acts and the Water P r i v i l e g e s Act, the Water Clauses Consolidation Act of 1&97 was passed. This act covered the procedure necessary to secure water r i g h t s , both to individuals and to municipalities f o r public water supplies. It stated that no record made i n favor of a municipality f o r a water works system should lapse or become void by reason of non-use. Municipalities were given the authority to. expropriate a l l lands and water records neces-sary f o r the operation of a system.13 Water Act, 1909 Because the water r i g h t s were recorded i n the books of o f f i c i a l s scattered throughout the .Province, a great deal of confusion resulted. To attempt to eliminate t h i s con-fusion and lack of coordination, the l e g i s l a t u r e brought down the f i r s t so-called Water Act of the Province. A por-t i o n of i t s preamble reads as follows: And. whereas i n the past records of the rig h t to divert and use water had been honestly but imperfectly made, r e s u l t i n g i n confusion and l i t i g a t i o n , and whereas i t is. desirable that the rights of existing 1 3 I b i d . , p. 16.1. 17 users under former record should be properly-declared, and whereas i t i s desirable and expedient that the law r e l a t i n g to the acqui-s i t i o n and use of water f o r a l l purposes should be amended, and consolidated, and the r i g h t to acquire and use water be brought under one uni-form system, therefore His Majesty by and with the advice and consent of the L e g i s l a t i v e Assembly of the Province of B r i t i s h Columbia enacts as follows: . ...14 The act set up a Water Commissioner to have- control of a l l the waters In the Province and provided f o r the setting up of a t r i b u n a l , c a l l e d the Board of Investigation, which would hear claims of water users, decide.upon p r i o r i t i e s of claims and would issue, i n l i e u of the record, a license which set out a l l p a r t i c u l a r s d e f i n i t e l y and accurately. During the ten years that the Board was engaged i n t h i s work, about 8,000 orders were issued, six of which were appealed to the courts, the Board being sustained'in three of the s e app e a l s . ^ C.S. Kinney of Salt Lake City, who published a voluminous t r e a t i s e i n 1912 on water and I r r i g a t i o n r i g h t s covering nearly the whole c i v i l i z e d world, made t h i s comment on the B r i t i s h Columbia Water Act of 1909: The Water Law i s drastic and covers the subject of the t i t l e to and the use of waters i n i t s most minute d e t a i l s . In f a c t , we consider i t one of the most ef f e c t i v e statutory laws upon the subject i n existence, and undoubtedly i t w i l l stand the. test ^Water Act, 1909, B.C. Stat., c. J4.8. ^MacDohald, cp_. ext., p. 162. 18 of both time and a l l the l i t i g a t i o n , under the Canadian form of government, that may be brought against i t . l " Water Act, 1911+ This act required that r i p a r i a n proprietors f i l e t h e i r claims with the Board of Investigation before a certain date so that the Board might evaluate the claim and issue a license i n i t s place, i f i t saw f i t . After that date the ri p a r i a n owners had no ri g h t s except the common right to use water f o r domestic purposes. This act also l a i d down fourteen purposes f o r which licenses could be Issued and the precedence of uses applying to licenses of equal s e n i o r i t y : domestic, water works, mineral trading, i r r i g a t i o n a l , mining, steam, fluming, hydraulicking, miscellaneous, power, clear-17 ing streams, storage, conveying, and lowering water. At the same time, formation of various types of community organizations, which were similar to public u t i l i t y d i s t r i c t s , was provided f o r . An example of thi s type of organization i s the water-users' community, some of which are s t i l l i n 1 existence. However, the Act of 19li+ was so involved because the duties of the licensees and the functions of the o f f i c i a l s were so p r e c i s e l y set down, that i t was found d i f f i c u l t to administer.-•This r i g i d i t y was somewhat relieved as more and 16 C.S. Kinney, Kinney on I r r i g a t i o n and Water Rights (San Francisco: Bender-Moss, 1912). 17 MacDonald, l o c . c i t . 19 more engineers entered the administration. The organization of improvement d i s t r i c t s was set out i n 1920. In 1939 the Public U t i l i t i e s Commission was set up to perform the regulatory duties of the Board of Investigation. Further sections concerning mainly improvement d i s t r i c t s were added to the Act i n 19M+- and again i n 19f?l and 195>3 i n order that the l e g i s l a t i o n be more complete regarding these types of m u n i c i p a l i t i e s , with powers l i m i t e d to the objects f o r which they were formed. The Act at present (see Appendix VI) has Q£ sections, a great reduc-tion from the well over 2 , 0 0 0 "section Water Act of 1909-The revenue, collected from water re n t a l s , mainly from power companies, pays four times the cost of administration and provides a substantial sum f o r the surveying of water 18 resources. The whole of B r i t i s h Columbia's water acts have carried out the purposes of c o n t r o l l i n g and regulating water so as to give the best use of the water to the largest number of people. After looking at the h i s t o r y of the water l e g i s l a t i o n i n B r i t i s h Columbia and examining the Water Act of B r i t i s h Columbia, one r e a l i z e s that the problem of p o l l u t i o n control has been l e f t almost e n t i r e l y to the l e g i s l a t i o n known as the Health Act. The sole reference to p o l l u t i o n control i n the Water Act i s as follows.: Every person i s g u i l t y of an offence against t h i s Act and l i a b l e , on summary c o n v i c t i o n , to a penalty not exceeding two hundred and f i f t y d o l l a r s and, i n d e f a u l t of payment, to imprison-ment not exceeding twelve months, who does any of the f o l l o w i n g : ...Puts i n t o any stream any sawdust^- timber, t a i l i n g s , g r a v e l , r e f u s e , carcass, or other t h i n g or substance a f t e r having been ordered by the Engineer or Water Recorder not to do so: .... 19 Thus, i n order that one o b t a i n a c l e a r p i c t u r e of the o b j e c t i v e s of the present day l e g i s l a t i o n regarding, p o l l u t i o n c o n t r o l , i t w i l l be necessary to study the h i s t o r y of the p o l l u t i o n - c o n t r o l l e g i s l a t i o n i n B r i t i s h Columbia. The w r i t e r has discussed t h i s h i s t o r y i n Chapter IX of t h i s t h e s i s . Water Act, R.S.B..C. (l9ij-8), c. 361 , sec. 3 7(k). CHAPTER y i DESIRABLE GENERAL PRINCIPLES OF BRITISH COLUMBIA WATER LEGISLATION The writer w i l l now attempt to analyze the exist-ing B r i t i s h Columbia Water Act and to c r i t i c i z e i t i n r e l a t i o n , f i r s t l y , to a set of desirable water p r i n -ciples as set down by a committee appointed by the National Reclamation Association, referred to i n t h i s 2 0 thesis as the Committee; and, secondly, to the active I t a l i a n l e g i s l a t i o n as set out by an I t a l i a n consulting 2 1 engineer. 20A committee was appointed pursuant to Resolution No. 1 3 , e n t i t l e d "Committee to Prepare Uniform Water Code f o r Consideration of the West," adopted at the Eleventh Annual Convention of the National Reclamation Association, held on October ll). to 1 6 , 191+2, at Denver, Colorado. The committee f e l t that i t s purpose could best be achieved by preparing a set of p r i n c i p l e s to serve as the basis f o r desirable state water l e g i s l a t i o n , rather than to prepare an actual proposed l e g i s l a t i v e act. The committee's preliminary report was presented at the 19i+3 convention of the Association and the f i n a l report was presented at the 19J+6 convention. ^The "Water Laws i n I t a l y " i s a paper prepared by Dante A. Caponera, a consultant on water laws f o r the Land and Water Use Branch of the Agriculture D i v i s i o n of the' Food and Ag r i c u l t u r e Organization of the United Nations. This paper was printed i n February 0 f 19$3, and i t s aim was to present i n concise form the e s s e n t i a l fea-tures of It a l y ' s water l e g i s l a t i o n , which i s considered to be simple and yet complete. 2 1 22 Purpose of L e g i s l a t i o n The purpose of the water l e g i s l a t i o n should be to make the best use of the Province's natural water resources In the best interest of the public, and to recognize that 22 the use of water i s a public p r i v i l e g e . These f a c t s , while not expressly stated i n the B r i t i s h Columbia Water Act, are inherent along with the f a c t that one must obtain a r i g h t before d i v e r t i n g or making use of water. It has been said that I t a l y possesses a simple and yet complete system of water laws. Caponera has asserted i n h i s paper on I t a l i a n water laws that: As early as 1$$6 the magistrate of u n c u l t i -vated land of the Republic of Venice enacted laws declaring a l l water, whether for major or minor use, [was] to be public. 2 3 Further, i t i s stated that i t has always been recognized that i t i s necessary to obtain a concession f o r each diver-sion and use of water. Thus, i n comparison, i t i s f e l t that because B r i t i s h Columbia's water l e g i s l a t i o n has embodied the same two basic p r i n c i p l e s , that water i s a public asset and that a concession i s f i r s t necessary before ^ W e l l s Hutchins and others, Desirable P r i n c i p l e s of State Water L e g i s l a t i o n , F i n a l Report of Committee Appointed Pursuant to Resolution No. 1 3 , 11th Annual Con-vention, 191+2 (Washington: National Reclamation Association, 191+6), p. 3 . 23 "' ^Dante A.. Caponera, Water Laws i n I t a l y , Food and Agriculture. Organization of the United Nations, Development Paper No. 22, Agriculture (Rome,: Food and' "^Agriculture Organization of the United Nations, 19^ 3 ) , p. 1 . 23 diverting or making use of water, i t too is. founded on s o l i d , well-proven, basic essentials of water l e g i s l a t i o n . Scope of L e g i s l a t i o n ' As stated by the f i n a l report of the committee appointed to prepare a uniform water code f o r consideration i n the west, the hypothetical "model" state should have a breadth of scope which provides the ... (a) exclusive procedure f o r the ac q u i s i t i o n , after the e f f e c t i v e date of the enactment, of a l l r i g h t s to the use of water; (b) procedure for the determination and adjudication of rights thereafter acquired, and of unadjudicated rights theretofore acquired; and (c) machinery f o r the administration of a l l water r i g h t s , regardless of date of acqui s i t i o n , and f o r the d i s -t r i b u t i o n of water to the holders of water rights.21+ The water code must therefore include both administrative and j u d i c i a l functions. At the same time, as an equitable decision, i t must also be remembered that any e x i s t i n g water rights must be protected by the water code. (a) Procedure f o r Ac q u i s i t i o n of Water Rights. Section six of the B r i t i s h Columbia Water Act, which deals with the procedure to acquire a water license, states that every person applying f o r a license must follow a set procedure and must supply any information that the Comptroller of Water Rights may require. If any other licensee, r i p a r i a n owner or applicant f o r a license considers that h i s rights ^Hut chins, op. c i t . , p. 1+. 2k might be prejudiced by the granting of a license, he may f i l e an objection with the Comptroller. By section seven of the Act, the Deputy Minister of F i s h e r i e s , Deputy Attorney-General, or the Deputy Minister pf Agriculture might also f i l e an objection within a,certain period of time. If the applicant i s successful, he i s granted a conditional l i c e n s e , which may contain such terms as the Comptroller' may consider proper. In general, t h i s license authorizes the construc-t i o n of works or the'diversion and use of water f o r a c e r t a i n purpose, and within a stipulated period of time. When th i s time expires or when the works are completed, the Comptroller may issue a f i n a l license, which w i l l authorize the diver-sion and use of the quantity of water that the Comptroller finds has been used b e n e f i c i a l l y f o r the purpose spe c i f i e d (section nine). (fr) Procedure f o r Determination and Adjudication of  Water Rights. Section ten of the Water Act gives the pro-cedure f o r the determination and adjudication of rights which have been acquired on the same stream. This section states that r i g h t s s h a l l have precedence according to the p r i o r i t i e s of. the dates on which the righ t s were acquired. In the event that rights should have been acquired on the same date, then the Act sets down a schedule of purposes and the' p r i o r i t y of each. Any rights, that were given on the same, day from the same purpose are to have equal 2^ precedence i n the eyes of the law. It has previously been mentioned i n t h i s thesis that the Water Act of 19lij- required that r i p a r i a n proprietors f i l e t h e i r claims with the Board of Investigation before a c e r t a i n date so that the Board could evaluate t h e i r claim and issue a license i n i t s place, i f i t saw f i t . After t h i s date, the r i p a r i a n owners were to have no rights except the common rig h t to use water f o r domestic purposes (see page 18). (c) Machinery f o r the Administration of Water Rights. According to section 2$ of the Water Act, a Comptroller of Water Rights, a Deputy Comptroller of Water Rights, and such engineers, water recorders, o f f i c e r s , clerks, and ser-vants as might be necessary may be appointed. Sections 36 and 36A provide f o r any appeals that may be necessary not only to the SOurt of-Appeal and the Minister of Lands and Forests, but also to the•Lieutenant-Governor i n Council. I t would therefore seem that the present Water Act meets the standards as mentioned on page 23.for' the scope of "model11 l e g i s l a t i o n . It i s further f e l t that the desir-a b i l i t y of such standards i s obvious, and f o r that reason they w i l l not be discussed further at t h i s time. Ownership of Water In Its Natural Environment. In i t s natural environ-ment, whether on or under the surface of the ground, water 26 should-be the property of the public. It should never be i. subject to private ownership-in i t s natural environment; however,'private rights of use, or water rights,- may be gr a n t e d . ^ • It i s to be noted that the basic rule-'which governs waters In I t a l y i s : • ... that all'water, whether surface- or underground, which i s useful to the public i n t e r e s t , such as f o r navigation, diversion f o r drinking, i r r i g a t i o n , reclamation and power production purposes, belongs to the S t a t e . 2 6 The I t a l i a n l e g i s l a t i o n even goes so f a r as to provide that the- State owns the r i v e r banks and embankments and i s responsible f o r th e i r maintenance and f o r flood control operations.. The State or l o c a l authorities construct and maintain the works, and recognize the r i g h t to divert public waters from watercourses only after the issuance of a governmental grant. Such uses of water as f o r the extraction of sand and gravel are also under the same governmental c o n t r o l . 2 7 Section three of the B r i t i s h Columbia Water Act states that: The property i n and the right to the use and flow of a l l the water at any time i n any stream - i n the Province are for a l l purposes vested i n the 2 % b l d . ?6 Caponera, pp. c i t . , p. 3.. 2 7 Ibid. 27 Crown i n the right of the Province, except only i n so f a r as private rights therein have been ••established.' under special ..Acts or under licences issued under t h i s or some former Act. No right to ft divert or use water may be acquired by p r e s c r i p t i o n . The licensee must use the water b e n e f i c i a l l y f o r the purpose and time stated on the l i c e n s e . He must also' construct and maintain the works. This f a c t appears to. be i n direct contrast, with the Italian, l e g i s l a t i o n which requires that a l l works be done by the state. I t would' seem that If the state must construct and maintain the works\ i t would not only give the state greater control- over t h i s public function, but also i t would be possible to have access to more c a p i t a l f o r construction and expansion of projects that would otherwise'not be undertaken by private enter-p r i s e . However, the- state would be assuming a great many more- administrative duties, i n exchange. B a s i c a l l y then, i t appears that the p r i n c i p l e that the state should own the water i n Its natural environment i s not u n r e a l i s t i c . The B r i t i s h Columbia- water l e g i s l a t i o n seems to f i t t h i s requirement but It does diff.er from the I t a l i a n l e g i s l a t i o n i n that the-state does not necessarily construct and maintain the works. The writer f e e l s that because of basic differences between the l e g i s l a t i o n of the two countries, which w i l l be discussed l a t e r on, the present method of private enterprise in constructing and maintaining the works with, the state 2 8Water Act, R.S.B.C. ( I 9 i | 8 ) , c. 3 6 1 , sec. 3 . c o n t r o l l i n g by periodic inspection, has proved to be satis-factory. Reduced to Private Control and Possession. The Committee f e e l s that: ... when water i n a water supply i s lawfully reduced to private control and possession by physical means, in the exercise and under the terms of a v a l i d water r i g h t , public ownership ceases and private ownership Csic] begins. Such water becomes and remains the private property of the holder of the water r i g h t , subject to the lawful exercise of the right.29 However,_ It should be remembered that: ... such water does not lose i t s character as the private property of the water-right holder solely by reason of i t s being stored i n a reservoir located i n a natural channel, or stored i n the ground, or con-veyed i n any natural channel or i n any underground stratum; and the water right i s not subject to abandonment or f o r f e i t u r e solely by reason of any such control i n the proper exercise of a water r i g h t . In many such cases the water necessarily i s com-mingled with other water; private ownership then implies the right to withdraw an equivalent quan-t i t y less such deductions as are necessitated by natural losses.3 0 I t a l i a n water•legislation meets these requirements as i t provides f o r two d i s t i n c t categories of water: private water and public water.^ Water i s private under the l e g i s l a t i o n i f i t springs and flows on land under private ownership. However, when the water acquires a 2 9 H u t chins 'loc. c i t . Ibid. 31 C.aponera, op. c i t , p. J4.. 29 character of common interest i t is- deemed public and may o f f i c i a l l y be so declared. Public water may be "defined as: .... springs, watercourses, and lakes, even i f a r t i -f i c i a l l y constructed or increased, which have or acquire a tendency to be of public use, whether because* of t h e i r length, width, or t h e i r r e l a t i o n -ship to the hydraulic system of' which they may be a p a r t . 3 2 Although, the d i v i s i o n of the l e g i s l a t i o n to handle the two categories must c e r t a i n l y result i n many administrative problems, i t Is certain that i t should re s u l t i n close control of the natural water resources. Note: that Italy's" code i n t h i s respect seems to f i t i d e a l l y into.' the c l a s s i f i c a t i o n s described above. The d i v i s i o n • between private waters and public waters seems a." natural one,' but a'problem would arise i n deciding just when a private water became a public water. The d e f i n i t i o n of public water as given above i s c e r t a i n l y loosely written•. The B r i t i s h Columbia Water Act appears to show no d i s t i n c t i o n between private and public waters, except by special acts. Rather-, the act c l a s s i f i e s waters according to the purposes f o r which they are- used. These purposes are c l a s s i f i e d as follows: conveying, domestic, f 1 tuning.,. .hydraulic-king, i n d u s t r i a l , i r r i g a t i o n , land improvement, mineral-trad ing, mining,- power, r i v e r -3 0 improvement, and storage. . The d e f i n i t i o n of these various classes i s so worded to include a l l the known possible uses of water that have arisen i n t h i s province to date. Even i f atomic power production were to come to- B r i t i s h Columbia> i t would be covered by the d e f i n i t i o n of power purpose: " ... the use of water i n the production of 3 3 e l e c t r i c i t y or other power-." S i m i l a r l y , a l l other 1 c l a s s i f i c a t i o n s have been widely worded. I t would appear that the- B r i t i s h Columbia l e g i s l a t i o n does a much more meticulous job of c l a s s i f y i n g waters,than does the I t a l i a n l e g i s l a t i o n . The question arises as to whether- t h i s f i n i t e c l a s s i f i c a t i o n i s necessary. According to the general laws of the C i v i l Code governing private waters i n I t a l y , the landowner has the ri g h t to use the waters on h i s property without the necessity of a government grant. 3^ This fact would seem to simplify the administration of the water law. In e f f e c t , both countries provide f o r the. control of the same waters. That i s , i n B r i t i s h Columbia, each of the above-mentioned uses could be- broken down to that f o r the.private and that f o r the public, both covered by licenses; whereas, i n I t a l y , the private uses and public uses would both be broken down Into water f o r power, storage, • •. 3 3Water Act, R.S.B.C. (19J+8.), c 3 6 l , , sec. 2 . ^Caponera, ojo. c i t . , p. |+. 31 et cetera, the- public uses, being the only ones-for which i t would be necessary to have'a government grant. A, great percentage of water licenses today i n B r i t i s h Columbia are f o r what would be c l a s s i f i e d as private water under the I t a l i a n l e g i s l a t i o n . I f t h i s system could be used i t would be possible to r i d ourselves of a great deal of administration which has to do with these types of water. However, a certain amount of control would be l o s t at the same time. But we must not lose sight of the fa c t that i t would be impossible to change- the basic .concept of the l e g i s l a t i o n at' t h i s date, which is 1 what would be. necessary. Further, t h i s province appears to-be coming to a point where i t w i l l be- d i f f i c u l t to obtain a pure water supply, and, therefore, i t w i l l probably be- advantageous i n the future to have a great degree of control over the private water users. In summary, i t is. wise p o l i c y to have the ownership of water vested i n the state. This i s i n f u l l agreement with the views expressed by the Committee referred to •earlier. The writer f e e l s that the B r i t i s h Columbia l e g i s -l a t i o n has a long-run advantage over the I t a l i a n l e g i s l a t i o n i n that the Province's governmental authorities have control over private water, while the I t a l i a n authorities do not. It appears that. B r i t i s h -Columbia i s prepared i n t h i s respect fo r any future shortages that may arise-. I t Is f o r the reason that this. Province does not, have separate l e g i s l a t i o n concerning private arid public waters, except under special acts, that the writer has previously stated that i t . would be very d i f f i c u l t to. have the- Province construct and main-t a i n the works on only public waters as is- done i n I t a l y . To. attempt to have t h i s separate l e g i s l a t i o n now would mean basic changes i n the • fundamental concepts, pf the- Act. This i s not recommended, f o r the reasons discussed. The Comptroller-Sections l i l i to 5>8 i n the Committee's report set out the functions and duties; of what i t terms the "State 3f? Engineer". The State Engineer has supervision over the administrative functions of the state that r e l a t e to the control of publicly-owned waters, and to the a c q u i s i t i o n , determination, and exercise of the r i g h t s of use of these waters. In r e l a t i o n to the- I t a l i a n legislation-, It appears that the Minister of Public Works holds, a comparable posi-t i o n with l i k e r e s p o n s i b i l i t i e s . He seeks the' advice- of the Superior Council i n granting applications', and the technical s t a f f of the C i v i l Engineering Office -of the "Province carry out the: administrative d e t a i l s .-^ 3^Hutchins, op.cit., pp. 5 and .6. ^Caponera, op. c i t . , p. 8 . 33 The B r i t i s h C olumbia l e g i s l a t i o n p r o v i d e s t h a t the M i n i s t e r of Lands and F o r e s t s a p p o i n t s a Water' C o m p t r o l l e r whose d u t i e s are s i m i l a r t o t h o s e o f the S t a t e E n g i n e e r , as. d e s c r i b e d above. The C o m p t r o l l e r has wide powers w i t h r e g a r d t o the a p p l i c a t i o n s p r e s e n t e d t o him f o r a water l i c e n s e . He may r e f u s e an a p p l i c a t i o n , amend i t ' i n any respect., g r a n t i t i n whole or i n p a r t , r e q u i r e - a d d i t i o n a l i n f o r m a t i o n , determine the precedence and appurtenancy of the l i c e n s e - , r e q u i r e the a p p l i c a n t to.- g i v e s e c u r i t y i n any amount and f o r any purpose as he sees f i t , and i s s u e c o n d i t i o n a l o r 37 f i n a l l i c e n s e s . o n any terms t h a t he may c o n s i d e r p r o p e r . F u r t h e r , the C o m p t r o l l e r has the a u t h o r i t y t o do any a c t t h a t any -engineer i s . empowered to. do; he has ,the power t o a u t h o r i z e the e x t e n s i o n , s u s p e n s i o n , c a n c e l l a t i o n , and apportionment, of r i g h t s under e x i s t i n g l i c e n s e s , and he may a p p o i n t w a t e r b a i l i f f s whenever he sees f i t . The C o m p t r o l l e r i s a l s o empowered t o make a l l i n v e s t i g a t i o n s , s u r v e y s , and s t u d i e s t h a t are r e q u i r e d , f o r t h e p r o p e r performance of .his f u n c t i o n s , . As does, the S t a t e E n g i n e e r , the C o m p t r o l l e r or any member of h i s s t a f f may e n t e r upon p u b l i c l a n d s of the Crown -or p r i v a t e "lands f o r any purpose i n v o l v e d i n the' a d m i n i s t r a t i o n of t h e Water Act.. D u t i e s t h a t , are s i m i l a r t o t hese are mentioned i n the s e c t i o n of the "model" water code-as was p r e v i o u s l y eite'd. 3 7 W a t e r A c t , R.S.B..C. (19i{.8), c. 361, sec. 8.. 31+ It i s to .be noted, that the Comptroller has wide discretionary powers. It would be d i f f i c u l t to envisage the head of a department i n a l i n e and s t a f f type of organ-iz a t i o n without such authority. By necessity, these powers are constantly i n check. The Act states that there must be an appeal to the Court of Appeal from every order of the Comptroller cancelling a l i c e n s e . It would be d i f f i c u l t to imagine a more just way to v e r i f y or correct a 'decision of an o f f i c i a l of the government. Further, the Act provides f o r appeals to the Comptroller, Minister of Lands and Forests, and the Lieutenant-Governor i n Council against decisions of the engineer and the Comptroller. Such control measures are also mentioned i n the "model" statute referred to above. It i s f e l t that the provisions of the Water Act of B r i t i s h . Columbia regarding the Comptroller of Water-Rights agree very well with that suggested by the Committee.. It can be seen that, although the Comptroller has wide di s -cretionary authority or power, he i s constantly being checked by the c o n t r o l l i n g provisions i n the Act. Thus, the Act i s very good i n t h i s respect. The Comptroller has. a l l the authority or right needed to carry out the duties of his p o s i t i o n , as well as commensurate accountability i f h i s duties are not carried out i n a proper and just fashion. 3^ TABLE I. CLASSIFICATION OF AVAILABLE WATER SUPPLIES'"" (a) Waters on the surface of the earth. (i) Surface waters i n watercourses .(a) (b) ( i i ) Diffused surface . waters. ( i i i ) Surface waters i n lakes or ponds .(where the evidence f a i l s to- indicate connection with a stream system). (Iv) Spring waters. (v) Waste waters. Waters flowing i n well-defined channels. Waters flowing through lakes, ponds, or marshes, which constitute Integral parts of a stream system. (b) Waters under ) the surface ) of the ) e arth. ) (i) Ground waters (a) Waters flowing i n defined subterranean channels. (b) Diffused per-colating waters. "Source: Wells A. Hutchins, Selected Problems in the  Law of Water Rights i n the West, United States Department of Agriculture, Miscellaneous Publication No. J4.I8 (Washington: United States, Government Printing Office, 19^2), p. 1'. 36 C l a s s i f i c a t i o n of A v a i l a b l e Water S u p p l i e s , B e f o r e the s u b j e c t of a p p r o p r i a t i o n of water can be-i n t e l l i g e n t l y d i s c u s s e d , i t w i l l be f i r s t n e c e s s a r y t o p r e s e n t t o t h e r e a d e r the common c l a s s i f i c a t i o n of a v a i l -a b l e water s u p p l i e s , as w e l l as the p r i n c i p l e s o r d o c t r i n e s t h a t may go v e r n the use of w a t e r . Table I i l l u s t r a t e s a simp l e and y e t comprehensive c l a s s i f i c a t i o n of a v a i l a b l e w ater s u p p l i e s , which w i l l be adopted f o r use i n t h i s t h e s i s (see T a b l e I , page 35 ) . The a v a i l a b l e water s u p p l i e s shown are c l a s s i f i e d a c c o r d i n g t o t h e i r o r i g i n as f o l l o w s : (a) Waters on the S u r f a c e o f the E a r t h ( i ) S u r f a c e Waters i n W a t e r c o u r s e s . A w a t e r c o u r s e may be d e f i n e d as " ... a d e f i n i t e s t r e a m i n a d e f i n i t e c h a n n e l w i t h a d e f i n i t e source of s u p p l y , and . ( i t ) i n c l u d e s the u n d e r f l o w . " Waters w h i c h f l o w , t h r o u g h l a k e s , ponds, and marshes which a r e art i n t e g r a l p a r t of a stream system are a l s o i n c l u d e d i n t h i s c l a s s i f i c a t i o n . The f l o w i n a wa t e r c o u r s e i s f e d f r o m t r i b u t a r y c h a n n e l s , d i f f u s e d s u r -f a c e w a t e r s , and underground s o u r c e s . ( I I ) D i f f u s e d S u r f a c e Waters. D i f f u s e d s u r f a c e waters are " ... those w h i c h occur on the s u r f a c e i n p l a c e s - - • 3 8 M i l o B. W i l l i a m s , Water Laws i n the U n i t e d S t a t e s o f A m e r i c a , A g r i c u l t u r a l Development Paper No. 2 "(Washington-: Pood and . ' A g r i c u l t u r e O r g a n i z a t i o n of the U n i t e d - N a t i o n s , 1950), p. 1. ' ' 37 3 9 o t h e r t h a n i n w a t e r c o u r s e s , l a k e s , o r ponds." Such water may a c t u a l l y o r i g i n a t e from any source and may meander a c r o s s b r o a d a r e a s , or o c c a s i o n a l l y appear i n d e p r e s s i o n s o r c h a n n e l s , or'may s t a n d i n bogs or marshes. ( i i i ) S u r f a c e Waters i n l a k e s o r ponds where no c o n n e c t i o n w i t h a s t r e a m system i s e v i d e n t . ( i v ) S p r i n g Waters. These wa t e r s are those w h i c h o r i g i n a t e f r o m underground sources b r e a k i n g out upon the s u r f a c e of the e a r t h through, n a t u r a l openings i n the ground. These are t o be c o n t r a s t e d w i t h w e l l s , w h i c h are a r t i f i c i a l means of g a i n i n g a c c e s s t o ground w a t e r s . ^ (v) Waste Waters. Such waters are m a i n l y waters w h i c h "... a f t e r h a v i n g been d i v e r t e d f r o m s o u r c e s of s u p p l y f o r use, escape f r o m c o n t r o l i n t h e c o u r s e of d i s -t r i b u t i o n o r f r o m i r r i g a t e d l a n d s a f t e r a p p l i c a t i o n to, the s o i i . " ^ 1 (b) Waters Under t h e S u r f a c e of the- E a r t h ( i ) Ground Waters. These waters may be sub-d i v i d e d i n t o (a) waters f l o w i n g i n d e f i n i t e s u b t e r r a n e a n streams and (b) waters f l o w i n g t h r o u g h the l a y e r s of t h e s o i l o t h e r t h a n i n d e f i n i t e s u b t e r r a n e a n channels-, more commonly c a l l e d . p e r c o l a t i n g w a t e r s . 3 9 I b l d -^°Ibid. ^ I b i d , ^ I b i d . 38 Water-Right Doctrines The water-right doctrines vary according to the class of water as follows: (a) Surface Waters i n Watercourses. Two: oppo.site and c o n f l i c t i n g p r i n c i p l e s govern the use of t h i s c l a s s i f i c a t i o n ;of water—the r i p a r i a n doctrine and the doctrine of p r i o r appropriation f o r b e n e f i c i a l use. (I) Riparian Doctrine. According to t h i s doctrine, the owner of land which i s contiguous to a stream has certain r i g h t s i n the flow of the water, s o l e l y by virtue of such land ownership. The owner: ... has the right to take from the stream whatever quantity of water i s required f o r domestic purposes and the watering of domestic animals; and the right to use water therefrom for- i r r i g a t i o n purposes, provided such use i s reasonable in- r e l a t i o n to the needs of a l l other owners of land r i p a r i a n to the same source of supply.4-3 The r i p a r i a n r i g h t , then, i s actually part of the estate and not an easement of the r i p a r i a n land. Thus, the r i g h t i s not created by use or destroyed by non-use, but i t can be l o s t by adverse possession. Riparian rights can only be claimed i f the land l i e s within the- watershed of the stream or body of water to which i t i s contiguous. The r i p a r i a n doctrine i s "part of the common law of England. Consequently, i n the western states and i n Canada, ^ 3 I b i d . , p. 8. 39 which- adopted the common law, t h i s d o c t r i n e - became a p a r t of the l o c a l law. I t i s predominant i n the e a s t e r n s t a t e s , but i t has never been r e c o g n i z e d i n A r i z o n a , C o l o r a d o , Idaho, Montana, Nevada, New Mexi c o , U t a h , and Wyoming and has b.ecome a l e g a l f i c t i o n i n O r e g o n . ^ I n g e n e r a l , g r e a t e r ' c o n t r o l i s b e i n g e x e r c i s e d by tho s e a r e a s which do r e c o g n i z e t h i s d o c t r i n e . T h i s ' i s e v i d e n c e d by the f a c t t h a t most areas w i l l d e d i c a t e t o p u b l i c use w a t e r s t o whi c h p r i v a t e r i g h t s have not been a t t a c h e d . S e c t i o n t h r e e of the B r i t i s h Columbia Water .Act c l e a r l y s t a t e s t h i s f a c t . ( i i ) A p p r o p r i a t i o n D o c t r i n e . T h i s d o c t r i n e i s based on s p e c i f i c s t a t u t e s and i s not a j u d i c i a l r u l e . A c c o r d i n g t o t h i s d o c t r i n e the f i r s t u s e r of water f r o m a s t r e a m a c q u i r e s a p r i o r i t y r i g h t t o c o n t i n u e t h e use over each subsequent u s e r . Each subsequent u s e r ' s r i g h t i s t h e n j u n i o r t o a l l those e s t a b l i s h e d b e f o r e and s e n i o r t o a l l those e s t a b l i s h e d a f t e r . F u r t h e r , the l a n d need not be •contiguous t o the stream, as i s n e c e s s a r y f o r a v a l i d r i p a r i a n r i g h t . Thus, t h e a p p r o p r i a t i v e r i g h t may he a c q u i r e d f o r use on any l a n d w i t h i n the watershed and, under c e r t a i n l i m i t a t i o n s f o r use, on],land i n the watershed of a d i f f e r e n t stream. The r i g h t I s v a l i d o n l y as l o n g as the water I s used b e n e f i c i a l l y ; i t can be l o s t t h r o u g h v o l u n t a r y abandonment, t h r o u g h f o r f e i t u r e f o r non-use o v e r . a p e r i o d of .  ^-febld.,- p. Hj.. time set by- statute, and through adverse use on the part of others This doctrine grew from the miners' customs which were enacted into law. It i s the doctrine that exists exclusively f o r ground and surface waters i n two provinces i n Canada (.Alberta and Manitoba) and nine states i n the United States of America, eight of which are western states (see Appendices I I and I I I ) . As was mentioned previously, B r i t i s h Columbia did at one- time recognize- the r i p a r i a n doctrine; however, today, the Province recognizes Only the appropriation doctrine for' a l l surface waters, no l e g i s l a t i o n being i n existence f o r the control of ground waters. . (b) Diffused. Surf ac e Water s. • It can.be generally said that r i p a r i a n rights are'not-attached to diffus.ed surface waters. It has also'i-been held- that, i n the absence of a special statute, appr.opriative- rights do not attach 1+6 - . . to such waters, i n the United States- of America. However, the writer has been unable to f i n d any reputable source of information now available that presents any p r i n c i p l e governing the rights of owner's of land on.-which such waters occur as. against the claims of appropriators from .streams ^ I b i d . , p. 9. ^ 6 l b i d ,, p. 12. to which the diffused water would flow i f not interfered with. The B r i t i s h Columbia Water' Act recognizes only the appropriation doctrine- for t h i s class of water. (c) Surface Waters i n Lakes or Ponds. Generally, the rights to the use of surface waters i n lakes or ponds., where there appears to be no Connection with a surface-stream system, are-subject to the law of watercourses 7 i . e . , r i p a r i a n or appropriation doctrine:, or both. In the case where a lake- i s an i n t e g r a l part of a stream system, the r i g h t s to the lake should be correlated with those of the entire stream system, while those pertaining to a separate lake should form a separate group of p r i o r i t i e s . B r i t i s h Columbia's l e g i s l a t i o n ' s t a t e s that a stream, as 2+8 defined i n the Water Act, includes lakes, and thus i t appears that provision i s made for t h i s c l a s s i f i c a t i o n of water. (The writer w i l l define a pond as being a small lake.) (d) Spring Waters. In general, springs that form the source- of a watercourse are subject to either the r i p a r i a n or appropriation doctrine, as are: watercourses. It i s reasonable that a landowner should have no exclusive r i g h t s i n springs.which feed a d e f i n i t e stream- just because the ^ I b i d . . , p. lij.. ^ 8Water Act, R.S.B.C. (192+8), c. 3 6 l , sec. 2. spring water comes natu r a l l y to the surface of his land. Springs that do not contribute to- the supply of a watercourse o r d i n a r i l y belong to the owner of the land upon which they r i s e . The B r i t i s h Columbia Water Act makes every spring subject to l i c e n s i n g . This seems l o g i c a l to- the writer f o r the simple reason that a spring' i s simply ground water which has -.come to the surface, and the landowner's right to the use of the spring should be no: greater than h i s right to the use of ground water feeding' the spring. Even though cases have arisen where a neighbour has taken out a license on a spring on his neighbour's property, and has thereby deprived the l a t t e r of the sole use of the spring because he f a i l e d to. have a license on i t , the writer f e e l s that the Water Act i s just and sound i n this respect. As explained previously, adequate provision has been made- for the f i l i n g of objections to the granting of a l i c e n s e . (e) Waste Waters. The- appropriation doctrine usually . . . . . H 0 • applies to this c l a s s i f i c a t i o n . That i s , within l i m i t -ation, waste- water may be appropriated before i t has returned to the stream from which i t was o r i g i n a l l y diverted. However, i t must be kept i n mind that the o r i g i n a l user- Is under no .obligation to continue the waste. ^ W i l l i a m s , loo. c i t . % b i d . The B r i t i s h Columbia Water Act makes no d i r e c t p r o v i s i o n f o r t h i s c l a s s i f i c a t i o n , and t h i s f a c t w i l l be dis c u s s e d l a t e r i n t h i s t h e s i s . I t i s f e l t t h a t the B r i t i s h Columbia water l e g i s l a t i o n i s l a c k i n g i n t h i s r e s p e c t . (f) Ground Waters. The- c o u r t s appear to have d i v i d e d these waters as f o l l o w s : ( i ) D e f i n i t e Underground Streams. Since the underflow of a stream i s a p a r t of the stream, i t i s t h e r e f o r e l o g i c a l t o apply the same r u l e s to bot h the surface and subsurface p o r t i o n s of the stream. Thus, both Si the r i p a r i a n and a p p r o p r i a t i o n d o c t r i n e s are used. ( i i ) P e r c o l a t i n g Waters. There appear to be three p r i n c i p a l d o c t r i n e s a p p l i c a b l e i n t h i s s u b d i v i s i o n . Absolute Ownership. The owner i s the absolute owner of p e r c o l a t i n g ' waters under- h i s l a n d , and he may exhaust the water supply of other lands l y i n g over the same water-bearing s t r a t a without l i a b i l i t y f o r r e s u l t -i n g i n j u r y , r e g a r d l e s s of the l e n g t h Of time that the Other users have been b e n e f i c i a l l y u s i n g the water. T h i s d o c t r i n e leaves a l o t t o be d e s i r e d , i n the e s t i m a t i o n of- the w r i t e r . Ownership Subject to Reasonable Use. T h i s p r i n c i p l e i s a m o d i f i c a t i o n of the one f i r s t s t a t e d . Under ^ 1 I b . i d . , p. 12." ^ 2 I b i d . , pp. 12-' 14,-t h i s doctrine, the owner' must only use: water on his land to the extent that the use i s reasonable i n r e l a t i o n to the needs of other overlying' lands. One cannot export water outside of the basin i n which i t was found as t h i s i s not termed a'beneficial use. This doctrine- i s much better than the f i r s t mentioned as i t gives more protection to the neighbour who has no desire- to use water just, f o r the sake of using i t , but i s w i l l i n g to cooperate and share the water •available. Why should the t h r i f t y neighbour suffer because of the waste of the unreasonable neighbour? Appropriation. A l l percolating waters are subject to appropriation. This doctrine i s growing i n use,, but i t s growth has been slow due to d i f f i c u l t y i n i d e n t i f y -ing percolating waters and establishing t h e i r o r i g i n , boundaries, destination,, quantity, and rate of flow. How-ever, because of the development of techniques to determine these c h a r a c t e r i s t i c s reasonably, this doctrine should continue to grow and should eventually be, i n the writer's opinion, the one that w i l l govern "the regulation of B r i t i s h Columbia*-s percolating waters because of i t s equitable and just basis. B r i t i s h Columbia has at -present no l e g i s l a t i o n govern-ing the use of ground waters (see Appendix I I ) . This f a c t w i l l be discussed i n d e t a i l under "The Appropriation of Waters.." \1> •Appropriation of Waters The w r i t e r w i l l now proceed w i t h 'a d i s c u s s i o n of matters d e a l i n g w i t h the a p p r o p r i a t i o n of c e r t a i n waters. (a) Unappropriated Waters. The Committee s t a t e s i n i t s report that a l l waters to'which water r i g h t s have not been attached are unappropriated waters and' as such are 5 3 subject t o a p p r o p r i a t i o n . This i s d e f i n i t e l y a d e s i r a b l e p r i n c i p l e i n water- l e g i s l a t i o n ' . I t i s b'asic and must appear i n the water l e g i s l a t i o n i n order to a l l o w f o r adequate -control of a l l water-. . Section 3 8 of the B r i t i s h Columbia Water Act i s concerned w i t h the r i g h t to use what i s termed "unrecorded" water. This s e c t i o n gives a person the r i g h t to use. unrecorded water - f o r domestic purposes or for- prospecting f o r m i n e r a l s , but, i n the event of p r o s e c u t i o n , i t i s the r e s p o n s i b i l i t y of the user to'prove that, the water i s unrecorded. (b) Appropriable Ground Water. I t i s understandable that the Committee should make a f i r m stand on t h i s - p o i n t . I t f e e l s that any unappropriated ground water' may be appropriated i f i t i s capable'' of d i v e r s i o n w i t h a reasonable 53 Wells A. Hutchins and others, D e s i r a b l e P r i n c i p l e s of State Water L e g i s l a t i o n , F i n a l Report of Committee Appointed Pursuant to R e s o l u t i o n No. 13, 11th Annual Con-ven t i o n , 192+2 (Washington: N a t i o n a l Reclamation A s s o c i a t i o n , 192+6), p. .8. and economical l i f t , and that any diversion of ground water made otherwise i s not lawful.. It also states that no permit to 'appropriate water from a ground water supply should be- issued unless the subterranean water-bearing formation has the capacity to- y i e l d the water by 5k . means of .such a l i f t . . The B r i t i s h Columbia Water Act c l e a r l y covers only surface water, and seems to ignore the underground source of water. This would appear to be- a very grave shortcoming-dd of the A c t . ^ A person would be able to lower the water table by drawing on a ground water supply and thus deprive a neighbour drawing on the same water-bearing formation of his share of the water. The former could not be prosecuted under th i s Act, but possibly could be prosecuted under Common Law. Nevertheless, a large amount of the water used f o r domestic purposes i n B r i t i s h Columbia i s obtained from these underground sources, and i t i s therefore d i f f i c u l t to-s.ee why these sources have not been adequately regulated i n the past. I t i s re a l i z e d that many countries i n the world today r e l y solely on surface water because of the fa c t that the geologic formations of the country do not lend themselves ^ I b i d . 55A similar view was held by R.C. Farrow acting- as chairman of a committe e on Problems of the Water Resources of B r i t i s h Columbia. R.C. Farrow,. ''The Problems of Adminis-trati v e . Control of.Water," Transactions of the Third B r i t i s h  Columbia Natural Resources Conference ( V i c t o r i a : The B r i t i s h Columbia Natural Resources. Conferenee, 1950) , pp. 38 -39 . to the r e t a i n i n g of water,. Malaya being" an- example, and that these c o u n t r i e s regulate-, s o l e l y surface water; but, the w r i t e r ' f a i l s to: see why a p r o v i n c e which i s dependent upon both surface and ground water has not m o d i f i e d i t s r e g u l a t i o n s to i n c l u d e t h i s l a t t e r c l a s s i f i c a t i o n of water. I t a l i a n l e g i s l a t i o n , as has been p r e v i o u s l y s t a t e d , p r o v i d e s that a l l water, whether surface- or underground, belongs to the- State- and can be r e g u l a t e d by the State i f the water Is used f o r p r i v a t e purposes. Underground waters may b.e p r i v a t e or p u b l i c . S e v e r a l uses of public- waters, such as f o r n a v i g a t i o n and water f o r human and animal con-sumption when there are no f i x e d .diversion p l a n t s , are f r e e to. everyone; however, uses i n v o l v i n g ' r e a l d i v e r s i o n s 5 6 must be reco g n i z e d or granted by the government. The r e g u l a t i o n s found i n the I t a l i a n l e g i s l a t i o n r e l a t i n g to underground waters may be summarized as f o l l o w s : (1) .Any landowner may use underground water f r e e l y on h i s land f o r domestic purposes (watering gardens and s u p p l y i n g water to animals) i f he observes the d i s -tances and p r e c a u t i o n e s t a b l i s h e d by law. ( i i ) Whoever d i s c o v e r s underground water must make i t known to the- C i v i l E n g i n e e r i n g O f f i c e . ( i i i ) I f t h i s d i s c o v e r e d water i s d e c l a r e d p u b l i c , g r a nts are r e q u i r e d f o r c e r t a i n uses, these b e i n g • ^ ^Capohera,- op. c i t . , pv 3 • ' 1+8 t h e same as f o r s u r f a c e w a t e r . I f the w a t e r i s n o t d e c l a r e d p u b l i c , the landowner may use i t f r e e l y a f t e r he has com-pensated the d i s c o v e r e r , t h e compensation b e i n g based on ' ' . ' 57 the i n c u r r e d expenses and t h e - i n c r e a s e i n the l a n d value.. Thus, t h e I t a l i a n l e g i s l a t i o n i s p e c u l i a r l y d i f f e r e n t f r o m B r i t i s h C o l u m b i a ' s , b u t i t i s a t the- same, time: much more comprehensive. (c) R e t u r n Water. I t seems l o g i c a l t h a t water w h i c h has been d i v e r t e d f r o m a w a t e r s u p p l y but w h i c h escapes f r o m the works f o r i t s conveyance o r f r o m the s u r f a c e of the s o i l t o w h i c h i t has been a p p l i e d , i s w a t e r t h a t may be r e - u s e d . I f t h i s water has n o t p a s s e d the b o u n d a r i e s of the p r o j e c t ' i n c o n n e c t i o n w i t h which the o r i g i n a l a p p r o p r i a -t i o n i s made, o r has' not e n t e r e d a water s u p p l y , the o r i g i n a l a p p r o p r i a t i o n s h o u l d i m p l y t h e r i g h t t o i t s r e - u s e , w i t h o u t the n e c e s s i t y o f a s p e c i f i c m e n t i o n i n g o f the f a c t . However, r e t u r n water t h a t has p a s s e d the b o u n d a r i e s of the p r o j e c t or has e n t e r e d a water s u p p l y s h o u l d not. be e n t i t l e d t o 58 r e - u s e w i t h o u t f u r t h e r a p p r o p r i a t i o n . The B r i t i s h Columbia Water Act i s r e a s o n a b l y c l e a r as t o the use of r e t u r n w a t e r , a l t h o u g h i t i s not mentioned as such. The r e - u s e of water t h a t has not gone o u t s i d e the.-5 7 - " I b i d , , pp. 19-20.. ^ ' 8 H u t c h i n s , l o c . c i t . lj-9 b o u n d a r i e s of the t r a c t t h a t has the r i g h t s i s c o n s i d e r e d 59 a c c e p t a b l e w i t h o u t q u e s t i o n . The A c t i m p l i e s t h a t r e t u r n water w h i c h has gone- o u t s i d e - t h e b o u n d a r i e s of the t r a c t concerned becomes u n a p p r o p r i a t e d water and i s t h e r e f o r e s u b j e c t t o a p p r o p r i a t i o n . However, the A c t d e f i n i t e l y does hot a n t i c i p a t e the- appearance of r e t u r n w a t e r . I t i s f e l t t h a t the A c t sho u l d p r o v i d e t h a t the a p p r o p r i a t o r of the-o r i g i n a l f l o w may e x p l i c i t l y i n c l u d e the a p p r o p r i a t i o n of r e t u r n water' when making h i s o r i g i n a l a p p r o p r i a t i o n , w i t h the same date of p r i o r i t y . . The- d i f f i c u l t y comes i n a c t u a l l y m easuring t h e q u a n t i t y of r e t u r n water and i t s t i m e and p l a c e o f appearance. However, the w r i t e r f e e l s t h a t t h e method and p l a c e of r e c a p t u r e c o u l d be s t a t e d i n g e n e r a l terms and so. c i r c u m v e n t t h i s d i f f i c u l t y . As l o n g as i t is-' an o f f e n s e a g a i n s t t h e A c t t o d i v e r t any water t h a t i s . not used 60 b e n e f i c i a l l y , the i n c l u s i o n of a c l a u s e t o s u b j e c t r e t u r n water t o a p p r o p r i a t i o n would n ot be h a z a r d o u s . However, i t must be remembered t h a t such an a p p r o p r i a t i o n , c a r r y i n g the o r i g i n a l p r i o r i t y , s h o u l d be p e r m i s s i b l e o n l y I n case the r e t u r n .water, at the time t h a t t h e amendment was t o be made t o the o r i g i n a l a p p r o p r i a t i o n , had not y e t e n t e r e d a water s u p p l y and had not been a p p r o p r i a t e d by o t h e r s . I n v i e w i n g the proposed amendment t o the Water A c t r e g a r d i n g - r e t u r n w a t e r , the- f o l l o w i n g c i t a t i o n f r o m t h e ^ 9 W a t e r A c t , R.S.B.C. (19i|.8), c. 361, sec. I+, 60 l b i d . , sec. 37 (n) 5 0 Committee's report should be considered: Return water, the appropriation of which i s e x p l i c i t l y included i n the appropriation of the o r i g i n a l flow, may be recaptured e i t h e r before or after i t s entrance into a, water supply; or i t may be allowed to augment a water supply in.exchange with other appropriators f o r equivalent quantities (adjusted f o r stream gains and losses) to be diverted by the o r i g i n a l appropriator upstream. The return water may be allowed to- accumulate i n substantial quantities i n a water supply p r i o r to the construction of works to recover and re-use-i t , provided the appropriator exercises reasonable diligence i n i d e n t i f y i n g the return water and i n p e r f e c t i n g h i s right to i t s recapture and re-use. He should be allowed a reasonable period, say f i v e ( 5 ) years, after the appearance of the return water i n the water supply i n quantities, capable of reasonable i d e n t i f i c a t i o n , within which to begin the further steps necessary to perfect his r i g h t to the return water i n i t i a t e d with h i s appropriation of the o r i g i n a l flow. In a l l .such cases, the burden of proving the existence, location, and-quantity of return water, and the exercise of reasonable d i l i -gence i n i d e n t i f y i n g i t after i t s appearance i n substantial quantities, i s upon the o r i g i n a l appropriator. ; ; 6 l The problems that w i l l be involved are complex.- The State of Colorado i s said to be the only state i n which the ' 62 ownership of return waters has been l i t i g a t e d . The writer has not been able to f i n d any of the provinces i n Canada which has t h i s controversial subject mentioned In i t s water l e g i s l a t i o n . This amendment to the B r i t i s h Columbia Water Act would be desirable i n order- that the. appropriator have the opportunity of recapturing and re-using return water which But chins, op_. c i t . , p. 9. "Williams, op_. .cit.,'p. 25. 51 results from his development when he i s d i l i g e n t and uses foresight i n his attempt not to infringe upon pre-existing r i g h t s . Further, t h i s amendment would protect the appropriator who has put the water to use under his own appropriative rights without notice of a p r i o r v a l i d claim. Thus, the- appropriator of the o r i g i n a l flow would not be able to claim the return water1 as an afterthought. (d) Salvaged Water and Developed Water. The Committee f e e l s that, both salvaged water and developed water should be subject to appropriation, salvaged water being the portion of water i n the water- supply which, under natural conditions, i s usually l o s t , but which, by means of a r t i f i c i a l devices, i s recovered and made available for-b e n e f i c i a l use; and developed water being the water which, by means of a r t i f i c i a l works, i s added to a water supply or i s otherwise made available- for b e n e f i c i a l use, but which 63 i n i t s natural state does not augment a water supply. It f e e l s that the ohe who. i s responsible- f o r the a r t i f i c i a l work that r e s u l t s In the existence of t h i s water should have the exclusive r i g h t to appropriate t h i s water- within a reasonable time after i t s appearance i n reasonably i d e n t i f i e d quantities, two years being the time suggested as reasonable. ^ Hutchins, op. c i t . , p. 1, 6k ^ I b i d . , p. 9. 52 The B r i t i s h Columbia Water Act does not d e a l w i t h s a l v a g e d or developed water,, the thought presumably b e i n g t h a t such c l o s e r e g u l a t i o n of our water r e s o u r c e s i s not n e c e s s a r y at t h i s t i m e . The w r i t e r f e e l s t h a t t h i s i s q u i t e t r u e , b u t t h a t t h i s t y pe of c l a u s e might be i n s e r t e d i n the A c t i r i p p r e p a r a t i o n f o r such time when the w a t e r r e s o u r c e s appear more s c a r c e t h a n t h e y a r e at p r e s e n t . I f and when such a c l a u s e or c l a u s e s were i n s e r t e d i t or t h e y s h o u l d be so s t a t e d as t o c o v e r the f o l l o w i n g p o i n t s : ' ( i ) The a p p r o p r i a t i o n of s a l v a g e d o r d e v e l o p e d water i s s u p e r i o r t o any o t h e r c l a i m of r i g h t t o use such w a t e r , even i f i t e n t e r s a water s u p p l y t o w h i c h r i g h t s have a t t a c h e d ; and i s not t o be s u b j e c t t o r e g u l a t i o n a c c o r d -i n g t o . p r i o r i t y . ( i i ) The s a l v a g e d or developed' water becomes s u b j e c t t o g e n e r a l a p p r o p r i a t i o n i f the one r e s p o n s i b l e f o r I t does not f i l e an a p p l i c a t i o n - f o r a p p r o p r i a t i o n w i t h i n , say, two y e a r s . ( i i i ) S u b j e c t t o the above-mentioned p r e f e r e n t i a l r i g h t of a p p r o p r i a t i o n , , developed w a t e r that, does not e n t e r a water s u p p l y becomes a new and independent, water s u p p l y , and s i m i l a r l y , s a l v a g e d o r developed water t h a t e n t e r s a water s u p p l y becomes an i n s e p a r a b l e p a r t of t h a t s u p p l y . £3 ( i v ) The a p p r o p r i a t o r must p r o v e th e n a t u r e , s o u r c e , and q u a n t i t y o f t h e s a l v a g e d and developed water 65 as w e l l as h i s r e s p o n s i b i l i t y f o r ' i t s e x i s t e n c e . Thus, a s e c t i o n of the A c t t o Cover s a l v a g e d and developed water might w e l l be i n s e r t e d f o r the f u t u r e when the water s u p p l y may become more s c a r c e . R e s e r v a t i o n of Water The Committee suggests t h a t i t s h o u l d be p o s s i b l e t o withdraw c e r t a i n u n a p p r o p r i a t e d waters f r o m f u r t h e r a p p r o p r i a t i o n . I t a l s o f e e l s t h a t these w a t e r s s h o u l d be a b l e t o be r e l e a s e d f r o m w i t h d r a w a l upon a p u b l i s h e d n o t i c e i n the a r e a i n which the water s u p p l y I s l o c a t e d . Once the water i s r e l e a s e d , a p p l i c a t i o n s may be f i l e d w i t h the S t a t e E n g i n e e r f o r t h e a p p r o p r i a t i o n of t h a t water. I t i s suggested t h a t the S t a t e E n g i n e e r h o l d a h e a r i n g t o determine w h i c h of t h e a p p l i c a t i o n s on f i l e w i l l be " ... most c o n d u c i v e t o the p u b l i c good ...," and on t h i s b a s i s 66: p r i o r i t y of C l a i m s h o u l d be assigned.-The B r i t i s h Columbia Water Act g i v e s the L i e u t e n a n t -Governor i n C o u n c i l the power' t o " ... r e s e r v e the whole or any p a r t of t h e u n r e c o r d e d water of the stream f r o m b e i n g t aken or, used or a c q u i r e d ... " f o r any purpose t h a t he may _ _ _ _ _ I b i d . 66 I b i d . , p«. 10. see f i t . Similar provision i s made i n the Act f o r a publication of notice of reservation as well as of release of reservation, f i l i n g of a p p l i c a t i o n f o r appropriation, and the basis of determining the p r i o r i t y of claim. I t i s on this l a t t e r point that the Act d i f f e r s s l i g h t l y from the "Water Code." The Act states that p r i o r i t y i s given f i r s t on the basis of the date of application, whereas the "model statute stresses p r i o r i t y on the basis of the use of the water. In t h i s case, i t seems that the l a t t e r basis f o r determining p r i o r i t y i s a more reasonable and equitable basis. However, the Act, i n section k l ( 6 ) , goes on further to state that water licenses may be issued to divert and use water f o r domestic purposes or land improvement pur-poses from any stream to which a reservation applies. This subsection does tend to ease the problem of determining p r i o r i t y , but i t i s f e l t that the statement made by the "Water Code" i s a much more comprehensive and equitable statement f o r this p a r t i c u l a r case. However, i t must be realized that for the l a t t e r basis a c o n f l i c t i o n w i l l arise where two applications f o r similar uses ari s e . Then i t seems reasonable that time of application should be the deciding factor. P r i o r i t y of Appropriative Right . . Generally, the p r i o r i t y of a right determines whethe 6 7Water Act, R.S..B.C. ( I 9 k 8 ) , c. 361, sec. k l ( l ) 55 or not i t s holder is, e n t i t l e d to- divert water at a time when the water supply i s not s u f f i c i e n t to s a t i s f y a l l the rights that are attached to i t . The Committee i s most def i n i t e i n i t s statement that p r i o r i t y i s to be based solely upon the time of accrual of the right'and i s not to be governed by the character of the use of the water or"by the fact that the right relates to d i r e c t flow or to .68 storage. In the event of C o n f l i c t i n g applications, t h e i r order of superiority should be as follows:' domestic and municipal uses (highest rank); i r r i g a t i o n and stock-watering uses; waterpower use; mining use, and manufacturing and i n d u s t r i a l uses that are not implied i n an appropriation fo r municipal use:; and a l l other us'es, without preference 69 as among themselves. The writer f e e l s that the B r i t i s h Columbia Water Act i s even more r e a l i s t i c i n t h i s question. The Act•states that precedence s h a l l be according to the p r i o r i t y dates, but that i n the event of a c o n f l i c t , the rights s h a l l rank i n law according to t h e i r respective purposes as follows: domestic purposes (highest rank), waterworks purpose, mineral-trading purpose, i r r i g a t i o n purpose, mining purpose, i n d u s t r i a l purpose, power purpose, hydraulic-king purpose, storage purpose, conservation purpose, fluming purpose, 68 Hutchins, op. c i t . , p. 11, 69 ; ' . Ibid., p. 23 . c o n v e y i n g purpose, and l a n d improvement purpose ( l o w e s t r a n k ) . I n the event t h a t two a p p l i c a t i o n s have t h e same date and are f o r t h e same purpose,, t h e n t h e y a re t o have 7 0 e q u a l precedence. I t appears t h a t t h i s b a s i s f o r e s t a b l i s h -i n g p r i o r i t y f o r l i c e n s e s on the same stream i s much more c l e a r - c u t and c o n c i s e t h a n t h e one t h a t has been s e t out by the Committee i n t h e h y p o t h e t i c a l .water code. The w r i t e r d e f i n i t e l y b e l i e v e s t h a t the B r i t i s h ''.Columbia Water A c t i s s u p e r i o r i n t h i s r e s p e c t . The I t a l i a n w a t e r l e g i s l a t i o n p r o v i d e s t h a t "... when t h e r e are many a p p l i c a t i o n s , the a p p l i c a t i o n i s s e l e c t e d w h i c h , by i t s e l f o r i n c o n n e c t i o n w i t h o t h e r a p p l i c a t i o n s , shows t h e b e s t u t i l i z a t i o n f r o m the h y d r a u l i c p o i n t o f v i e w 7 1 and s a t i s f i e s o t h e r p u b l i c i n t e r e s t s , . " . Thus, i t appears .that the I t a l i a n l e g i s l a t i o n a l s o c o n s i d e r s n o t o n l y the date of a p p l i c a t i o n b u t a l s o t h e purposes f o r w h i c h the water i s t o be u t i l i z e d . Loss- o f Water R i g h t (a) L i m i t .of A p p r o p r i a t i v e R i g h t . I t i s q u i t e o b v i o u s t h a t p u b l i c i n t e r e s t r e q u i r e s t h a t t h e r e be c e r t a i n l i m i t -a t i o n s imposed Upon the e x t e n t o f the a p p r o p r i a t i v e r i g h t and i t s - e x e r c i s e . The Committee agrees w i t h t h i s and f e e l s 7°Water A c t , R.S.B.C. ( 1 9 k 8 ) , c. 3 6 1 , s e c . 1 0 . 7 1 Caponera, op. c i t . , p. 8 . 57 that the use of water must be " ... reasonable, b e n e f i c i a l , 7 2 and economical." By use: of water, the Committee refers to diversion, storage, and conveyance as well as u t i l i z a t i o n of the water. It" further states that i r r e s p e c t i v e of the capacity of works or of means of use, no appropriation should be allowed which would exceed the quantity reasonably necessary for such use. Section 37(n) of the B r i t i s h Columbia Water-Act makes i t an offense to divert any water' which i s not used 73 b e n e f i c i a l l y . This section appears to. cover the waste, of water. I t must be remembered that a use of water which substantially exceeds the average water requirement for similar, uses i n the community, i s not necessarily wasteful because of that f a c t alone. The writer f e e l s that water use could be said to be wasteful i f (a) i t i s not reasonably adapted to the s o i l and topography, (b) i t does not further the p r a c t i c a l use of the land, (c) i t i s applied, to land i n such excess that i t results i n injury to the land, and (d) the excess water does not enter a water supply so as not to be available f o r other appropriators. It i s the r e s p o n s i b i l i t y of the Water Rights Branch of the Department. of Lands and Forests of B r i t i s h Columbia to prove that water i s being wasted or not being, used b e n e f i c i a l l y . Although the 7 2Hutchins, op-., .bit.., p. 12. 73 Water Act, R.S.B.C. (191+8), c. 3 6 1 , sec. 37 (n) 58 Water Act does not d e f i n e w a s t e f u l use of water s p e c i f i c a l l y , i t does imply i t s p o l i c y r e g a r d i n g waste i n the phrase " b e n e f i c i a l use." Thus, the l e n g t h of l i f e of the r i g h t w i l l depend upon b e n e f i c i a l use being' made- of the: water. The I t a l i a n l e g i s l a t i o n has a Clause which i s some-what comparable to B r i t i s h Columbia's b e n e f i c i a l use c l a u s e . In I t a l y , the users of p u b l i c water may l o s e the r i g h t to the use and d i v e r s i o n of the water i f i t Is used i n a way d e t r i m e n t a l to p u b l i c welfare. 7^" I t t h e r e f o r e appears t h a t such p r o t e c t i v e c l a u s e s are necessary f o r the e f f e c t i v e c o n t r o l of the water resources' of a country, e s p e c i a l l y i f there i s the p o s s i b i l i t y of an annual shortage of water. (b) Abandonment o f Water R i g h t . A p p r o p r i a t i v e r i g h t s may be l o s t t h r o u g h ' v o l u n t a r y abandonment, which i m p l i e s i n t e n t , -and l o s s may take place- Immediately. Thus,, a water r i g h t can be l o s t i f the h o l d e r b o t h (a) i n t e n t i o n -a l l y abandons the r i g h t and (b) a c t u a l l y r e l i n q u i s h e s the r i g h t . Non-use i s not considered to-be a f a c t o r in :-75 abandonment. The Committee f e e l s that the burden of proof of abandonment l i e s , on' the p a r t y a s s e r t i n g the ab andohment. • . S e c t i o n 19 of the B r i t i s h Columbia Water-Act agrees wi t h t h i s p r i n c i p l e ; however, i n one sense i t i s not as s t r i n g e n t as the h y p o t h e t i c a l code-. Under the A c t , n o t i c e Caponera, op. c i t . , p. l5 75 H u t c h i n s , op_. c i t . , p. 26, of abandonment must be f i l e d with the Comptroller i n order that the rig h t s be e f f e c t i v e l y abandoned. I t i s more str i n g -ent i n the sense that i t states that abandonment does not have the -effect of r e l i e v i n g the past owner of the r i g h t of any l i a b i l i t y f o r any damage: r e s u l t i n g from any defect, V A i n s u f f i c i e n c y , or failure- of the works. Such a clause i s necessary to protect the public from the carelessne ss of owners of r i g h t s . The question as. to who should have the burden of proof of abandonment might be argued. The writer' f e e l s that the rule- could be reversed. In. view of the: ever-increasing public need f o r the proper u t i l i z a t i o n of water, the writer f e e l s that the one who has ceased his use of water should have the burden of proving that he has not abandoned the water r i g h t . This question is\ one which w i l l have to be answered i n the future i f f o r f e i t u r e becomes dependent upon abandonment i n f a c t . (c) F o r f e i t u r e of Water Right. Appropriative water rights may also be l o s t through f o r f e i t u r e for non-use over a period of years, t h i s period being suggested as three years 77 by the- Committee. The intention of the holder of a r i g h t either to r e t a i n or to r e l i n q u i s h his r i g h t i s not a factor 76water Act, R.S.B..C. (191+8), c. 361,. sec. 1 9 ( 2 ) . 7 7Hut chins , op_. c i t , , p . 27 . 6 0 i n i t s . loss through f o r f e i t u r e , 7 ^ The Committee d e f i n i t e l y f e e l s that non-use and time- are the only essential elements. The B r i t i s h Columbia Water Act c l e a r l y agrees with these very precise statements. Section 18., subsection 2(a) of the Act provides that i f the licensee f a i l s to. make b e n e f i c i a l use of the water for three successive years, then the righ t s are cancelled or f o r f e i t e d either i n whole or In part, depending upon the license form. Notice of such action i s sent to a l l parties concerned. This type of clause, i s absolutely necessary I f the available water' supplies are to be used e f f e c t i v e l y . If the party holding the right i s not using the water, why should the party who can make use of the water not be given an opportunity to exercise his rights as an individual? Once again, the. I t a l i a n l e g i s l a t i o n agrees very closely both with the Water A c t and the hypothetical code. As a matter of f a c t , the period of non-use for- a l l three water 79 codes i s exactly the same, three years! Rotation i n Use of Water The Committee recommends' that appropriators be allowed to rotate i n the use of combined quantities of water which they are e n t i t l e d to divert. The. system of r o t a t i o n which ' 7ft Williams, op, .cit.,, p.. .26 . 7 9 c a p o n e r a , op_. c i t . , . p. 1$. 6 1 i s t o be c a r r i e d out s h o u l d not a f f e c t the p r i o r i t i e s of t h e s e v e r a l p a r t i e s . I t i s a l s o suggested t h a t a r o t a t i o n system be imposed on a p p r o p r i a t o r s , w i t h o u t t h e i r c o n s e n t , i f 80 . n e c e s s a r y . The B r i t i s h Columbia Water A c t does not p r o v i d e f o r a r o t a t i o n of water s u p p l i e s ' , The w r i t e r f e e l s t h a t such a r o t a t i o n scheme might be used v e r y e f f e c t i v e l y i n some of the areas i n the i n t e r i o r of B r i t i s h Columbia where at c e r t a i n t i m e s of the y e a r t h e water becomes t o o s c a r c e t o be d i v i d e d i n t o p o r t i o n s , since- t h e y would be top s m a l l f o r e f f i c i e n t c o n t i n u o u s use. T h e . w r i t e r r e a l i z e s t h a t such a p r o p o s a l presupposes t h a t the h o l d e r o f a r i g h t has been g r a n t e d a r i g h t w h i c h was t o o s m a l l f o r h i s a c t u a l needs, as w e l l as the f a c t t h a t the p r i o r a p p r o p r i a t o r s w i l l be w i l l i n g t o g i v e up t h e i r r i g h t to. a c e r t a i n p e r c e n t a g e o f the water -which, i s l e g a l l y t h e i r s i n t h e time of s c a r c i t y . The use- of such a c l a u s e w i l l d e f i n i t e l y be dependent upon the r e l a t i v e n e c e s s i t y t o have a d i s t r i b u t i o n of t h e water r a t h e r t h a n have a s o l e u s e r . F o r example, the i n d i v i d u a l has the r i g h t t o water f o r domestic p u r p o s e s . Under no c i r c u m s t a n c e s s h o u l d he be d e n i e d the use of water f o r t h i s purpose. W i t h the p r i n c i p l e of r o t a t i o n , i t would be p o s s i b l e t o l e t e v e r y -one get some; w a t e r . Thus, t h i s r o t a t i o n c l a u s e c o u l d be b r o u g h t i n t o the A c t w i t h a v i e w t o f u t u r e emergencies. Such Rn o u H u t c h i n s , op_. c i t . , pp. 16 and 1 7 . a clause i s not to be confused with section V~> of the Act which allows the Comptroller to apportion the rights under a license among the owners of the several parcels comprising' the lands to which the license i s appurtenant, providing that no licensee's r i g h t s w i l l be i n j u r i o u s l y affected thereby. Excbange- of Water The Committee also recommends that a program of' exchange be introduced i n water' l e g i s l a t i o n so that appro-priators may exchange water with one another so long as the rights of others are not impaired.with respect to eith e r quantity or qua l i t y of the' water. Under such a scheme an appropriator may deliver either natural or stored water into a ditch or conduit f o r the use of any other' appropriator i n exchange f o r an equivalent quantity of water which the l a t t e r i s e n t i t l e d to divert from the water supply at the time the exchanged water i s taken by the former. I t i s f e l t by the Committee that such a system of exchange, i f properly i n s t i t u t e d , heed not change the- p r i o r i t i e s of the parties 82 to- the plan. The Water Act of B r i t i s h Columbia does not appear to recognize or provide f o r such an exchange program. The Act could authorize' the owners of storage r i g h t s , whose lands are so situated that they cannot be i r r i g a t e d from such 8]_ V-ater- Act, R.S.B.C. (191+8) , c. 361, sec. l£. 82 ' Hut chins, op_. c i t . , pp. 17-18. 63 reservoirs without pumping,•to de l i v e r the stored water to lands of others which can be reached by gra v i t y from the reservoirs, .in exchange f o r water-to- which the l a t t e r lands are e n t i t l e d under direct-flow r i g h t s ; t h i s substitute supply! to be. diverted upstream f o r use on the lands of the reservoir owners. Actually, t h i s system of exchange i s widely practiced 83 i n an important a g r i c u l t u r a l area i n northeastern Colorado. The writer sees no- reason why such a system of exchanges could not be i n s t i t u t e d i n B r i t i s h Columbia.. It would cer-t a i n l y bring about a more- ef f e c t i v e u t i l i z a t i o n of the water which the participants In the- plan- are already e n t i t l e d to divert under the terms of t h e i r separate appropriative r i g h t s . Transfer of Water Bights The Committee suggests that the water right shoul'd be appurtenant to the land upon which i t i s used and that it. should remain so as- long as the right i s -exercised by the holder under the terms of the water r i g h t . Thus, the water right may pass with a .conveyance- of the' land by deed> lease, or mortgage. The Committee further suggests that the water right be a- separable appurtenance; that Is, i t may be separately conveyed, whether or not the land to which i t i s appurtenant, i s conveyed Wells A. Hut chins, i n h i s ^ W i l l i a m s , loc-. c i t . 8k ' Hut chins,, op-, c i t . , p . 18. text on water rig h t s law i n the west of the United States, states that: It. i s well settled that a water-right may pass with land as an appurtenance thereto, or as a parcel thereof, hut not necessarily so; and whether a water-right passes as an appurtenance involves two questions, v i z : (a) Whether the water-right i s an appurtenance, and (b) whether, being such, i t i s intended to pass:. Both of these, are questions of f a c t i n each case.85 The B r i t i s h Columbia Water Act meets the' above- • mentioned s p e c i f i c a t i o n very n i c e l y . Section' ll+ °£ "the- Act-gives- the Comptroller the right to transfer, i n whole or i n part, the rights" under any license on any terms that he may f e e l proper.. It. i s noted that the Comptroller issues a new license, and he may determine i t s appurtenancy. Thus, the new owner of the r i g h t w i l l enter a new rank i n the p r i o r i t y scale for'the reason that rights s h a l l have precedence i n law according to the p r i o r i t y of the .date on the license, as- has been stated above. The new owner may then get a water right which has a lower p r i o r i t y than the o r i g i n a l right, due to.^  the difference i n the lieens.e dates. I t must, be kept i n mind that the right i s not automatically transferred upon the sale of land, but the licensee must apply f o r i t s transfer. Thus, the Water Act makes the water right an appurten-ancy to the land upon which the water i s used. This i s i n agreement with the p b i i c i e s s of most of the western Wells A. Hutchins,. Selected Problems i n the Law of Water Rights i n the. West,, United States Department of Agr i -culture, Miscellaneous Publication No. i | l 8 . (Washington: United States Government Printing O f f i c e , 191+2) , p. 385. 65 86 states. However, i t i s noted i n some states that this appurtenancy applies only to water appropriated f o r i r r i g a t i o n purposes, and i n other states It' applies to water appropriated f o r a l l purposes. The Kev/' Mexico statute i s an example, of the former. In contrast, the Wyoming statute does not make the water r i g h t an 'appurtenance, but provides that the ri g h t to use direct flow is: attached' to- the land and may not be 8 7 detached from i t without loss of p r i o r i t y . The B r i t i s h Columbia statute does not single out any special purpose, but rather makes any right transferable on application. The writer f e e l s that such a clause benefits a l l concerned and not only a p r i v i l e g e d few. It i s to be noted that,, under exceptional circumstances. i n the United States, the t i t l e to water rig h t s has passed 88 by parol. The writer has- been unable to^ obtain information as- to whether there are any Canadian cases on th i s point. Appropriation of Waters Between Provinces The writer believes that the use of i n t e r - p r o v i n c i a l streams w i l l give r i s e to many problems as the provinces continue to develop t h e i r natural water resources. The' 8 6 I b i d . .8.7 ' i b i d . ft ft Watts v. Spencer, 5 l Oreg. 262',. 94 Pac. 39 (1908) problem w i l l 'arise •because of the f a c t that the use of water o f ' i n t e r - p r o v i n c i a l streams i s subject not only to c o n f l i c t i n g interests of i n d i v i d u a l users, but also to co n f l i c t s between the interests of the provinces themselves, which i n some cases involve c o n f l i c t i n g theories of water law. A further complication enters the picture when the lack of adequate l e g i s l a t i o n i s investigated. This same problem has arisen i n the United States of America and mainly as a result of.the above-mentioned d i f f i -c u l t i e s . The problem of the- use of interstate streams has been p a r t i a l l y solved by the making of adjustments on some 8 9 streams through the use of Interstate: compacts. Under the Constitution of the- United States, such -compacts must.be r a t i f i e d by each of the states and consented to- by Congress. It i s noted that, i n the western states, the- water compacts are concerned mainly with the d i v i s i o n of available water f o r i r r i g a t i o n and other water supply purposes; while, in. the eastern states, the compacts have dealt mainly with water, p o l l u t i o n and the establishment of standards and 90 abatement procedures. Another means of deciding contro-versies,, of course, i s through the courts. Many United States Supreme Court cases have given r i s e to s e v e r a l basic 8 9 • • " , .Williams, op_. c i t . , p. 2 5 . ichard Haz'en and others,. "Basic-Water Use Doctrines and State--Water-Control Agencies, Journal American Water  Works A s s o c i a t i o n , Vol. k 2 , . No. 8 (August, 1 9 5 0 ) , p. 7 5 9 -doctrines which w i l l be discussed l a t e r . The writer f e e l s that these doctrines w i l l be .some help i n deciding desirable water l e g i s l a t i o n f o r the Province-, as many of the court cases have, facts which may equally be found i n possible future B r i t i s h Columbia cases. tJpon consulting with the Vancouver o f f i c e of the Federal Water Resources D i v i s i o n of Engineering and Water Resources Branch of the Federal Department of Northern A f f a i r s and National. Resources, the- writer was told, that there is: no f e d e r a l l e g i s l a t i o n to. Cover the use of Inter-p r o v i n c i a l waters. It appears that any disputes i n the past have-he en settled either by mutuality of the provinces. con-cerned or by the courts. Certainly, the B r i t i s h Columbia Water Act w i l l not cover the us.e of i n t e r - p r o v i n c i a l waters because of the f a c t that, according to. the B r i t i s h North America Act of I867, the federal government i s given the power of administration and regulation of i n t e r - p r o v i n c i a l waters. The same holds- true f o r international waters. The problem- of deciding under whose j u r i s d i c t i o n desirable water l e g i s l a t i o n should l i e i s the problem of a trained lawyer. It i s because of.the writer's admitted incapacity In t h i s f i e l d that he w i l l only suggest the principles' that i t i s f e l t w i l l be desirable i n water l e g i s l a t i o n f o r the. Province.-, and w i l l not decide the governing body fo r these p r i n c i p l e s . However, the writer 68 w i l l present at t h i s time the doctrines as- evolved i n the United States Supreme Court as well as the suggestions- of the "model" Water Code Committee. In an examination of the- controversies decided by the United States Supreme Court, i t i s noted that the Court has adopted and Consistently applied the p r i n c i p l e of an equit-able -apportionment to each state of benefits, from the use- of the stream. 9^ The problem Is n o t ' d i f f i c u l t i f both states recognize the appropriation doctrine, as t h i s doctrine w i l l be used f o r determining the controversy. The r i p a r i a n doctrine has been rejected as a basis f o r settlement of a controversy between states i n which the appropriation doctrine i s not 92 i n force-. • However, where one state follows the appropriation doctrine and the other the' riparian,,- the benefits have been apportioned to each state and the.rights have been allocated to each state- i n accordance with its' own system of water law. ^ It i s to be noted that p r i o r i t y of r i g h t governed i n a l l these cases regardless of the l o c a t i o n of the state line-. The writer f e e l s that a problem might,be encountered i n the case: of underground water supplies, e s p e c i a l l y i f a boundary l i n e divides a g r i c u l t u r a l land overlying a .common body of available 91 Hutchins, i b i d . , pp. k 0 7 - k l 0 i l l l a m s , loc. .cit.. 93 I b i d . 69 ground water. The writer also f e e l s that the p r i n c i p l e s evolved by the Supreme- Court of the United States should be seriously considered f o r - B r i t i s h Columbia's water l e g i s l a t i o n . Further, i t i s thought that provision should be made to handle .ground waters and surface waters i n the same manner, regard-l e s s of the p o s i t i o n of the boundary l i n e . 9l+ The Committee suggests a doctrine of r e c i p r o c i t y when water i s appropriated across p r o v i n c i a l l i n e s . That i s , B r i t i s h Columbia would, allow an appropriation of water which was- to be diverted within the Province and- conveyed, in. whole or i n part, across the Pr o v i n c i a l l i n e f o r us.e i n Alberta, provided that Alberta's- laws would allow the rec i p r o c a l right to B r i t i s h Columbia. This p r i n c i p l e of r e c i p r o c i t y could also operate -equally well between nations. Such an authorization could extend to not only i n t e r - p r o v i n c i a l but also intra-pro'vincial water's-. I t is'obvious- that, such-water rights should be subject, to some form of regulation, perhaps by the Pr o v i n c i a l Water Comptroller; and the success of such a proposal would be e n t i r e l y dependent upon the mutual consent and cooperation of the provinces or nations concerned. It i s inter e s t i n g to. note, that several states, notably 9^Wolls A. Hut chins and others, Desirable P r i n c i p l e s  of State Water L e g i s l a t i o n , F i n a l Report of Committee .Appointed Pursuant to Resolution No. 13, 11th Annual Conven-ti o n , 191+2 (Washington: National Reclamation Association, 191+6), p. l£. California-., 'Idaho,- Nevada,' Oregon, Washington, and Arizona w i l l grant permission f o r appropriations across state l i n e s only i f r e c i p r o c i t y exists.. Such a doctrine could well be used i n B r i t i s h Columbia's water l e g i s l a t i o n to act between the. Province and other provinces, t e r r i t o r i e s , and states i n an attempt to solve the problems "encountered when streams cross boundary l i n e s and when portions of i r r i g a b l e v alleys extend beyond B r i t i s h Columbia. The doctrine o f r e c i p r o c i t y i s preferred to the equit-able apportionment of benefits' doctrine, as promulgated by the United States Supreme Court. The preference arises as a. res u l t of a desire f e l t by the writer to encourage voluntary cooperation between provinces rather than court action, which the writer believes would be necessary under the l a t t e r doctrine f o r an apportionment of benefits that would appear equitable to the provinces concerned. Appropriation of International Waters: Although these, waters have ,been p a r t i a l l y discussed "above, they w i l l now be discussed i n greater d e t a i l because of t h e i r increasing' importance. The international provisions f o r j u r i s d i c t i o n and control of such international waters as 95 Wells A. Hut chins, Selected Problems i n the Law, of Water Rights i n ..the West, United States Department of Agri -culture, Miscellaneous Publication No-. kl8- (Washington: United States: Government Printing O f f i c e , 191+2), pp. k03-k0k. 7 1 the Columbia R i v e r are .contained i n the- " T r e a t y between H i s M a j e s t y and the U n i t e d S t a t e s of .America r e l a t i n g t o Boundary W a t e r s , and q u e s t i o n s a r i s i n g a l o n g the boundary between the U n i t e d S t a t e s and Canada," s i g n e d at. Washington, J a n u a r y 1 1 , 1 9 0 9 . A r t i c l e I I of t h e T r e a t y s t a t e s , i n p a r t , t h a t : 'Vr . • ,: . Each ... r e s e r v e s . ... e x c l u s i v e j u r i s d i c t i o n and c o n t r o l over the use and' d i v e r s i o n . . . of. a l l w a t e r s on i t s own s i d e . . . b u t . . . 'any i n t e r f e r e n c e : . w i t h o r d i v e r s i o n f r o m t h e i r n a t u r a l c h a n n e l r e s u l t i n g i n any i n j u r y . . . . s h a l l g i v e r i s e t o the same r i g h t s •and e n t i t l e ... t o 'fee same l e g a l remedies as; i f ; ' s u c h i n j u r y t o o k p l a c e i n , t h e c o u n t r y where such d i v e r -s i o n s o r ' i n t e r f e r e n c e o c c u r s ..... • / n e i t h e r ..•.•surrender any r i g h t , w h i c h i t may have, t o o b j e c t t o any i n t e r - ' f e r e n c e w i t h or d i v e r s i o n s " of ••. . . p r o d u c t i v e of mater-i a l i n j u r y t o t h e n a v i g a t i o n i n t e r e s t s on i t s own s i d e ... 97 , The P a r l i a m e n t of Canada gave, the power of j u r i s d i c t i o n to. the Exchequer Court of Canada. The T r e a t y s e t s up':.an I n t e r n a t i o n a l J o i n t Commission t o .handle t h e a d m i n i s t r a t i v e ^ d e t a i l s . I n 1 9 5 5 the P a r l i a m e n t o f Canada .enacted the. " I n t e r n a t i o n a l R i v e r s Improvements A c t " w h i c h d e f i n e d an i n t e r n a t i o n a l r i v e r and an i n t e r n a t i o n a l r i v e r ' improvement, and made i t n e c e s s a r y t o obtain, a p e r m i t f r o m the f e d e r a l government b e f o r e any i n t e r n a t i o n a l r i v e r improvement Could 98 be-made. 7 By t h i s a c t , P a r l i a m e n t has g i v e n p r e c i s i o n t o - -General A.G.-L..-: McNaughton, "Problems of Development of I n t e r n a t i o n a l R i v e r s oh t h e P a c i f i c Watershed of Canada and the U n i t e d S t a t e s , " The E n g i n e e r i n g J o u r n a l , , V o l . 3 9 (November,, 1 9 5 6 ) , p. ±l\3%7~ • ' • 9 7 l b i d . I b i d . powers over' water which flows from within Canada to without Canada, said powers being o r i g i n a l l y given to the fe d e r a l government .under the terms of the- B r i t i s h North America Act. It w i l l be noted that the basic concept of in t e r -national water law i n rivers flowing across a boundary i s i n sharp contrast to the r i p a r i a n law, under which a person on the banks of a stream has the ri g h t to have i t s water come to him "undiminished and undefiled" and also the obligation to permit i t to pass downstream i n l i k e volume of flow and freedom from p o l l u t i o n . For a tabulation, of the p r i n c i p a l international waters concerning B r i t i s h Columbia, the reader i s referred to Appendix VII where the writer has reproduced a portion of a table presented i n General McNaughton's essay. Any of the recommendations' made- f o r the regulation of in t e r - p r o v i n c i a l waters can be equally well applied to the case- of international waters, as has been previously men-tioned. The writer i s , therefore, of the opinion that the doctrine of r e c i p r o c i t y should also be introduced into the existing water l e g i s l a t i o n i n the case of international waters. This doctrine has been recommended i n an attempt to encourage the- voluntary cooperation 'of the P r o v i n c i a l government i n accepting the- recommendations of the International Joint Commission,, f o r i t i s f e l t that, even though the federal governments of Canada and the United States might concur on such a recommendation, i t would be- d i f f i c u l t to enforce the 73 d e c i s i o n w i t h o u t t h i s v o l u n t a r y c o o p e r a t i o n of the P r o v i n c i a l 99 government i n whose hands i s t h e r i g h t t o use: and c o n t r o l p r o v i n c i a l w a t e r s . The p r o b l e m has been f u r t h e r c o m p l i c a t e d by the f a c t t h a t the d o c t r i n e s o f B r i t i s h Columbia and those -of the- S t a t e s of Washington, Idaho, and Montana d i f f e r i n some c a s e s . Washington, f o r i n s t a n c e , s t i l l has a l a r g e number of r i p a r i a n r i g h t s w hich have- never.been a d j u d i c a t e d . 1 0 0 on; whereas, t h e r i p a r i a n r i g h t i s - no l o n g e r r e c o g n i z e d i n t h i s P r o v i n c e . Thus, i n many c a s e s , a compromise may have, t o be a c c e p t e d . ' The w r i t e r f e e l s , however, t h a t the i n s e r t i o n of the d o c t r i n e of r e c i p r o c i t y i n t o t h e e x i s t i n g l e g i s l a t i o n on i n t e r n a t i o n a l w a t e r s w i l l d e f i n i t e l y improve i t s e f f e c t i v e n e s s . 9 % arrow, op. c i t . , p. 3 5 . 1 0 Q I b l d . , p. 3 6 . . PART I I I . WATER-POLLUTION CONTROL LEGISLATION CHAPTER VII WATER POLLUTION DEFINED Poll u t i o n results from the disposal of waste products by man and from some natural phenomena which are often assisted by man's a c t i v i t i e s . Of the three general media, land, a i r , and water, provided by nature artd used by man to carry away the wastes of his l i f e and works, water, when polluted, has constituted the greatest danger to man-kind . The American Public- Health Association defines the p o l l u t i o n of water as: .... the introduction into i t of substances of such character and i n such quantity as to render the body of water objectionable i n appearance o r to cause i t to give off objectionable odors.101 I t further states that contamination of water i s a result of the introduction into- i t of bacteria or other substances that tend to render i t unsuitable f o r domestic use. Water p o l l u t i o n may come- from three- major sources: municipal sewage, mining-waste, and i n d u s t r i a l waste. It should be noted that, while i n one stream a given amount of waste with-certain attributes w i l l cause severe damage to public 1 0 1 T , A . J . Leach, " P r a c t i c a l Problems of Water Pol-lution., Transactions of the Sixth B r i t i s h . Columbia Natural Resources Conference ( V i c t o r i a : The B r i t i s h Columbia. Natural Resources Conference,- 195>3) , p. 170. 7k 75 health and to w i l d l i f e , the same' amount i n a larger stream may cause no appreciable trouble. CHAPTER VIII THE WATER-POLLUTION CONTROL PROBLEM In order to have e f f e c t i v e use of existing' water supplies, we should .be concerned with matters a f f e c t i n g the q u a l i t y of water. R e a l i s t i c water-quality standards must be set which w i l l control p o l l u t i o n . The following l i s t of b e n e f i c i a l uses has been suggested to define water 1 0 2 quality i n order of decreasing importance: 1 . Public Water Supply 2. P i s h Propagation 3. Recreation and Bathing k. I n d u s t r i a l Water Supply 5>. A g r i c u l t u r a l Hse 6 . Wat er Power 7 . Navigation 8 . Disposal of Sewage and I n d u s t r i a l Wastes It must be remembered that the q u a l i t y standard should be set f o r a l i m i t i n g flow i n a p a r t i c u l a r stream and should riot be phrased i n vague, i n d e f i n i t e terms. The- problem of p o l l u t i o n control i s not. a new one, and,- due to the tremendous rate of population growth i n 1 Q 2 I b i d . , p. 1 7 8 . 7 6 77 certain portions of the world to-day, the need f o r control has become acute. A'report on state water l e g i s l a t i o n f o r 1 9 5 5 f o r the United States of America shows that a number of states In 1 9 5 5 enacted p o l l u t i o n - c o n t r o l l e g i s l a t i o n . Montana created a State Water P o l l u t i o n Council; Maine and Oklahoma enacted laws to permit the c l a s s i f i c a t i o n of waters as to permissible p o l l u t i o n and to provide necessary administrative machinery f o r t h i s program. North Carolina removed obstacles to municipal financing of sewage treatment works, and also authorized special tax r e l i e f f o r i n d u s t r i a l sewage treatment f a c i l i t i e s . New Hampshire likewise extended tax r e l i e f f o r i n d u s t r i a l sewage treatment f a c i l i t i e s . Other states, such as Colorado, Texas, and Washington, have also 1 0 3 taken action to strengthen t h e i r p o l l u t i o n - c o n t r o l laws. The United States Department of Commerce, re-cogniz-ing the growing need fo r l e g i s l a t i v e control i n radioactive waste disposal, has recently released Handbook No. 6 l , of the National Bureau of Standards e n t i t l e d , "Regulation of Radiation Exposure by L e g i s l a t i v e Means-."-'-^ It deals with the- problem of atomic radiat i o n i n r e l a t i o n to i t s 3The Council of State Governments, State Water Le g i s l a t i o n , 1 9 5 5 , A Report Prepared by the Council of State Governments (Chicago: The Council of State Govern-ments, December, 1 9 5 5 ) ? P- 3 . "'"^"Legislative Control In Radioactive Waste Dis-posal," Water and Sewage Works, Vol. 1 0 2 , No. 12 (December, 1 9 5 6 ) , p. 51+1. possible control by state or municipal authorities and contains technical standards, guides, and general inform-ation necessary to achieve suggested requirements-. The handbook i s available from the Superintendent of Documents, Government Printing O f f i c e , Washington 2 5 , D.C. f o r $0 . 2 5 per copy. Very recently, the Federal Government of the "United States of America- has passed a new stream p o l l u t i o n - c o n t r o l law. This permanent water-pollution control statute gives the f e d e r a l government l a s t - r e s o r t powers to take an interstate stream p o l l u t o r into court after a prescribed procedure of investigations and hearings. The law., which establishes a Water P o l l u t i o n Control Advisory Board under the Public Health Service, has "teeth" and yet does not " - 106 s a c r i f i c e state c o n t r o l . Thus, the federal government of the United States of America has- taken action on the p o l l u t i o n control problem, which the Public Health Service f e e l s has 107 a trend to increasing growth (see Figure l ) . - - - 1 0 ? n P o l l u t l o n B i l l Now Law - Aid Included," Engineer-ing News-Record (July 5 , 1 9 5 6 ) , p. 2 8 . 1 0 6 » A Commendable P o l l u t i o n Law," Engineering News-Record C J u i y 1 2 , 1 9 5 6 ) , p. 1 2 8 . ....... ..-.1P..7"PHS.Draws New Picture, of P o l l u t i o n Problems," Engineering News-Record (September' 2 2 , 1 9 5 5 ) , p. 2 9 . 79 P O L L U T I O N T R E N D S - M U N I C I P A L S E W A G E o i — I — I — i • • ' 1 1 i 1920 25 30 35 40 45 50 1955 60 65 70 75 80 1985 PHS Draws New Picture of Pollution Problems FIGURE 1 POLLUTION TRENDS IN UNITED' STATES MUNICIPAL. SEWAGE"" "• P h o t o s t a t i s copy t a k e n f r o m , "PHS Draws New. P i c t u r e of P o l l u t i o n P r oblems, " E n g i n e e r i n g News-Record! (September 22, 19p5), p. 29. 8 0 S i m i l a r l y , the p r o b l e m of p o l l u t i o n c o n t r o l i s grow-i n g more i m p o r t a n t and more Obvious i n Canada. F o r example, i n 1 9 5 5 , A l b e r t a r e s i s t e d attempts by t h e s i s t e r p r o v i n c e s , M a n i t o b a and Saskatchewan, t o get her- t o j o i n i n an i n t e r -p r o v i n c i a l w a t e r - p o l l u t i o n b o a r d w i t h wide powers. Sask-atchewan-had o b j e c t e d i n p a r t i c u l a r ' t o p o l l u t i o n i n the N o r t h Saskatchewan R i v e r . A p p a r e n t l y , water as- f a r as kOO m i l e s downstream f r o m Edmonton had become so u n p a l a t a b l e at t i m e s t h a t i t was hot u s a b l e f o r d r i n k i n g p urposes i n the c i t y of P r i n c e A l b e r t d e s p i t e f i l t r a t i o n p r o c e s s e s . The p o l l u t i o n was b e i n g caused m a i n l y by t h e "booming" p e t r o c h e m i c a l i n d u s t r y w h i c h was d e v e l o p i n g around Edmonton. A t the t i m e , A l b e r t a promised the o t h e r p r o v i n c e s i n c o n f e r e n c e s t h a t she would t a k e a l l n e c e s s a r y measures t o c o n t r o l - p o l l u t i o n i n t h e f u t u r e , b u t t h a t she would not a l l o w any o t h e r government t o I n s t i g a t e - 'action t h r o u g h a p o l l u t i o n - * c o n t r o l b o a r d w h i c h might j e o p a r d i z e - t h e e x p a n s i o n 1 0 8 of h e r i n d u s t r i a l p l a n t s . As f a r as the- w r i t e r - knows at t h i s time,., a p o l l u t i o n c o n t r o l b oard has not y e t been s e t up. However, i t i s noted t h a t t h e t h r e e p r o v i n c e s do have a P r a i r i e P r o v i n c e s Water Board w h i c h r e g u l a t e s i n t e r -p r o v i n c i a l streams i n c o n j u n c t i o n w i t h f e d e r a l a u t h o r i t i e s . 1 0 8 " A l b e r t a R e s i s t s A t t e m p t s to F o r c e P o l l u t i o n C o n t r o l , " E n g i n e e r i n g News-Record (August 1 1 , 1 9 5 5 ) , P - 8 3 . .81 The powers of thi s Board are not known to- the writer. A more l o c a l example of the contentious problem for p o l l u t i o n control of our streams i s the very recent c r i t i c i s m by Richmond of the Greater Vancouver Sewerage-and Drainage D i s t r i c t Act, assented to on .March 2 , 1 9 5 6 , and repealing the Vancouver and D i s t r i c t s Joint Sewerage arid Drainage Act, but giving the same powers to the newly-established board. Richmond i s arguing that the plan of dumping sewage from Vancouver and Burnaby on marshland at the extreme westerly boundary of Richmond i s " ... a 1 0 9 v i o l a t i o n of municipal autonomy . ..." The plan referred to i s known as "Plan A" and was recommended on September 1 6 , 1 9 5 3 , i n a report by a board of engineers set up under a reso l u t i o n of the Vancouver and D i s t r i c t s Joint Sewerage and Drainage Bo'ard on A p r i l 2 0 , 1 9 5 ° • "^ "^  It i s noted that the present Greater Vancouver Sewerage and Drainage; D i s t r i c t Act allows Vancouver and Burnaby to expropriate land out-side t h e i r boundaries f o r construction of sewerage and drainage f a c i l i t i e s . This problem has not yet been solved. Thus, the problem of water-pollution control i s very r e a l i n the Province and i s becoming more- important 1(^News item i n the Vancouver Sun, October 1 0 , 1 9 5 6 , p. 1 8 . 1 1 0 C h a r l e s Gilman.Hyde, John Oliver, A.M. R'awn .(Chairman), Sewerage and Drainage of the Greater Vancouver  Area,. B r i t i s h Columbia, A Report to: the Chairman and Members of the Vancouver and D i s t r i c t s Joint Sewerage and Drainage Board (Vancouver: Vancouver and D i s t r i c t s Joint Sewerage and Drainage Board, 1 9 5 3 ) , pp. l 5 l - l 5 6 , and p. 2k7. 82 every day. Adequate l e g i s l a t i o n must be set out to s a t i s f y the increasing demand f o r greater control of the p o l l u t i o n of our natural water resources. The writer w i l l now di s -cuss the history and growth of the existing l e g i s l a t i o n i n B r i t i s h Columbia before attempting to recommend improvements i n e x i s t i n g l e g i s l a t i o n and proposals f o r future l e g i s l a t i o n . \ CHAPTER IX HISTORY AND. GROWTH OP WATER "POLLUTION CONTROL LEGISLATION IN BRITISH COLUMBIA General It i s on record here i n B r i t i s h Columbia that among the early Haida Indians, the penalty for the pollution of a stream was death. And i n Egypt, the Egyptian believed that one of the worst sins that he would have to answer f o r i n the next l i f e was s p i t t i n g i n the public fountain. Although the penalty f o r stream p o l l u t i o n was death i n the former instance and misery i n the "ever-'after" i n the l a t t e r instance, It does tend to point out the f a c t that there have always been a few who have r e a l i z e d the importance of water to t h e i r way of l i f e and have taken r i g i d steps to enforce protection of the pu r i t y of the i r water supplies. Early L e g i s l a t i o n The f i r s t l e g i s l a t i o n i n the h i s t o r y of B r i t i s h Columbia was actually for the Colony of B r i t i s h Columbia and was e n t i t l e d "An Ordinance- f o r promoting the Public Health i n the Colony of B r i t i s h Columbia (short t i t l e , "Health Ordinance, l 8 6 . 9 " ) . This ordinance was assented to ort February 2 3 , 1 8 6 9 and i t s preamble read as follows: 8 3 8k Whereas i t i s necessary to adopt measures with the object of preventing or guarding against the o r i g i n , r i s e , or progress, of endemic, epidemic, or contagious diseases, and to protect the health of the Inhabitants of t h i s Colony, and f o r t h i s purpose to grant to the Governor i n Council -extraordinary powers to be used when urgent occasion demands; Be i t enacted by the -Governor of B r i t i s h Columbia, with the advice and consent of the L e g i s l a t i v e Council thereof, as follows: .... I l l This ordinance gave the Governor i n Council the r i g h t to mark out certain portions of the Colony as Health D i s t r i c t s and to define the duties and j u r i s d i c t i o n of the Local Boards of Health appointed i n these D i s t r i c t s by him i n a l l matters concerning: . . . d r a i n s , sewers, p r i v i e s , p i g s t i e s , slaughter-houses, unwholesome food, diseased c a t t l e , noxious or offensive trades or business, epidemic, endemic, or contagious diseases or disorders, and f o r the summary abatement of any nuisance, or injury to public health l i k e l y to arise therefrom .... ^ 2 If any Health O f f i c e r or any Member of the Local Board of Health was obstructed or any notice was destroyed, pulled down, injured, or defaced, the offender was punishable by a f i n e not exceeding one hundred d o l l a r s on the f i r s t offense and two hundred d o l l a r s on the second offense (section VII). Chapter 55 of the Consolidated Acts, 1888, changed the- ordinance-.into an act and thus put i t i n a more Health Ordinance-, 1869, B.C. Ordinances 1868-1869. 5 "Ibid., section 1(b). i n t e l l i g i b l e form. T h i s A c t was c i t e d as "An A c t f o r p r o m o t i n g the P u b l i c H e a l t h " or. " H e a l t h A c t " , a c c o r d i n g 113 to t h e s h o r t t i t l e . S a n i t a r y R e g u l a t i o n s , 1892 Due t o t h e t h r e a t e n e d i n v a s i o n o f i n f e c t i o u s and c o n t a g i o u s d i s e a s e and i n o r d e r t o make b e t t e r p r o v i s i o n f o r t he observance of s a n i t a r y l a w s , the " S a n i t a r y R e g u l a t i o n s , 1892", were set up. The r e g u l a t i o n s p r o v i d e d t h a t a l l w e l l s w h i c h were i n u s e , whether t h e y were p r i v a t e or p u b l i c , were t o be c l e a n e d out on or b e f o r e t h e l ^ t h of March and October of each y e a r ( s e c t i o n 3 ( 8 ) ) - F u r t h e r , i t was e s t a b l i s h e d t h a t no p r i v y - v a u l t , c e s s p o o l , or r e s e r v o i r i n t o w hich a p r i v y , w a t e r - c l o s e t , s t a b l e , o r s i n k was d r a i n e d c o u l d be b u i l t u n t i l t h e d e t a i l s of t h e e s t a b l i s h m e n t s had been s u b m i t t e d t o a d u l y q u a l i f i e d d o c t o r f o r a p p r o v a l ( s e c t i o n 3 ( 8 ) . 1 1 ^ - V a r i o u s o t h e r water p o l l u t i o n p r o t e c t i o n measures Were c i t e d , a l l o f w h i c h were e n f o r c e -a b l e by the Board of H e a l t h under the t h r e a t of a p e n a l t y not t o exceed one hundred d o l l a r s f o r an o f f e n s e . H e a l t h A c t , 1893 The H e a l t h A c t of 1893 s e t up "The P r o v i n c i a l Board of H e a l t h " c o n s i s t i n g of not more t h a n f i v e members, one t o 113' -. -• H e a l t h Act., B.C.' C o n s o l i d a t e d A c t s , 188.8, c. 55-1 1 ^ _ S a n i t a r y R e g u l a t i o n s , 1892, S e s s i o n a l Papers of the P r o v i n c e of B r i t i s h C olumbia, 1893, T h i r d S e s s i o n , S i x t h P a r l i a m e n t , p. 267-86 be the Secretary of the Board appointed by the Lieutenant-Governor i n Council. The Board published sanitary l i t e r -ature and had the power to make regulations f o r the 115 prevention and mitigation of disease. According to section 27 of this Act, the Board had to approve any plans r e l a t i n g to proposed public water supplies or systems of sewerage. Section 28 made i t possible f o r the Board to force the municipal councils to appoint a Medical Health Of f i c e r i f i t saw f i t . This Act contained 106 sections and formed the backbone of our present Health Act. Sanitary Regulations, 1896 The "Sanitary Regulations, 1896," recommended by the Pr o v i n c i a l Board of Health, repealed the Sanitary Regu-la t i o n s of 1892. They were- made- by the virtue of the-"Health Act" and the "Health Act, 1893," and they set out administrative d e t a i l s of the' Local Boards of Health, Health O f f i c e r s , and the Sanitary Inspectors so appointed. Sections 18 to 2% inclusive of these regulations were con-cerned with the water supply, either private or pub l i e . "^ "^  Section 21 made i t possible f o r the Board to compel a householder to abandon-his use- of any well, spring, or other source of water and to connect to the public water • ^ H e a l t h Act, 1893, B.C. Stat. (1893), c 1$. 116 . N , Sanitary Regulations, 1896., Sessional Papers of the Province of B r i t i s h Columbia, 1897, Third Session, Seventh Parliament, pp. v i i i - i x . 87 mains. Wells had to be dug a certain distance from any source of contamination, and i t was made unlawful to contaminate or percolate into any source of water'used f o r drinking and drinking purposes. These regulations dealt s p e c i f i c a l l y with the p o l l u t i o n of streams i n section 1|_5 where- i t i s stated that: No s o l i d refuse or waste matter of any kind s h a l l be deposited i n any stream so as to obstruct i t s flow, or put into any stream or lake so as to p o l l u t e i t s waters, and no s o l i d or l i q u i d sewage matter from either public or private- sewers s h a l l be discharged into any stream or lake, but i f i t can be proved that the best means have been adopted to p u r i f y the sewage, etc., before i t enters the stream or lake-, no offence i s committed, that i s unless the Local Board has n o t i f i e d the offending parties that the means adopted are i n s u f f i c i e n t ; nor s h a l l any poisonous, noxious or po l l u t i n g l i q u i d proceeding from any other source be passed into any stream or lake unless the best means have been f i r s t adopted to p u r i f y the same.H? Notice that i f what was considered as the best means of p u r i f i c a t i o n at the time was employed, then i t was possible to discharge the effluent into a stream, creek, or lake. This section of these regulations seems to be the f i r s t l e g i s l a t i o n which s p e c i f i c a l l y deals with the p o l l u t i o n of streams. Chapter 91 of the Revised States of B r i t i s h Columbia, 1897, revised the Health Act, 1893, and repealed Chapter 55 of the Consolidated Act of 1888. This l e f t the Health Act of 1893 as the governing l e g i s l a t i o n . Ibid.-, section 1+5-. 8 8 In 1 9 0 3 , "An Act to Prevent .Water-courses Obstruction" was passed. It contained clauses which were similar to that stated i n section 3 7 , subsection (k) of the present Water Act (see page 2 0 of t h i s t h e s i s ) . In the following year, "An Act respecting Sanitary Drainage Companies" was passed. Section two of t h i s act stated that plans of works that were to be constructed by sanitary drainage companies must be 118 submitted to the P r o v i n c i a l Board of Health f o r approval. Thus, the Board of Health was able to control the construction of sewerage systems as developed by drainage companies. On June 2 2 , 1 9 0 ^ , "Regulations Governing the Con-struction, Equipment and Management of Slaughter-houses" was approved by the Lieutenant-Governor i n Council. As.the t i t l e implies, these regulations were not concerned with the p o l l u t i o n control of waters and consequently there are no sections i n them which concern t h i s matter. The writer does f e e l , however, that possibly t h i s would have been an appropriate place to attempt' to control the wastes from slaughter-houses,;. It w i l l be shown that l a t e r on the regulations were repealed by the "Sanitary Regulations, 119 1 9 1 7 which do attempt to regulate t h i s matter. Unsanitary Drainage Companies Act, 190k« B.C. Stat. (February 1 0 , 190k), c. 16. ^^Regulations Governing the Construction, Equipment and Management of Slaughter-houses, ( 1 9 0 5 ) , B.C. Gazette, July 6 , 1 9 0 5 , pp. I k 7 3 - l k 7 k . 89 Sewerage Act, 1910 The Health Act was amended several times from 1897 up to the time when i t was revised by Chapter 98 of the Revised Statutes of B r i t i s h Columbia, 1911. None of these amendments dealt s p e c i f i c a l l y with water-pollution control so there i s no heed to mention them here. However, some- mention should be made of the "Sewerage Act, 1910"'. Section three of the Act stated that the Lieutenant-Governor could set up a Sewerage D i s t r i c t i f he received a p e t i t i o n from a representative number of owners of property i n the 120 d i s t r i c t . The Commissioners of the d i s t r i c t could I n s i s t upon proper plumbing and sewer connections. This act attempted to control stream p o l l u t i o n i n d i s t r i c t m u n i c i p a l i t i e s . Greater Vancouver Sewerage and Drainage D i s t r i c t Act, 195>6 Later, i n 1911+, the "Vancouver and D i s t r i c t s Joint Sewerage'and Drainage Act" was passed which established a sewerage and drainage board of the same name with powers to construct, maintain, and operate sewers and drains within 121 and without the sewerage d i s t r i c t . This Act repealed the "Burrard-Peninsula Joint Sewerage Act," B.C. Statutes, 120 Sewerage Act, 1910, B.C. Stat. (March 10, 1910), c. k3. 121 . ....... -Vancouver and D i s t r i c t s Joint Sewerage and Drainage Act, lB.,C. Stat. (March k, 191k) , c. 79. 9 0 1913» C hapter 7, b u t i t a c t u a l l y gave t h e same powers t o t h i s newly-named b o a r d . The Vancouver- and D i s t r i c t s J o i n t Sewerage and D r a i n a g e Ac t has been amended s e v e r a l t i m e s s i n c e i t s f i r s t passage b u t the amendments are- o f no con-sequence t o . t h e t e x t of t h i s t h e s i s . The A c t was r e v i s e d i n 19i|-8 and no amendments had been made up t o March 2 , 1 9 5 6 when t h i s A c t was r e p e a l e d by t h e G r e a t e r Vancouver Sewerage and D r a i n a g e D i s t r i c t A c t . T h i s l a t t e r A c t e s t -a b l i s h e s a C o r p o r a t i o n c o n s i s t i n g of the C i t y o f Vancouver, the C o r p o r a t i o n o f the D i s t r i c t of Burnaby and t h e U n i v e r -s i t y Endowment Lands. The- A c t g i v e s the C o r p o r a t i o n t h e b r o a d power t o e x p r o p r i a t e any l a n d w i t h i n i t s a r e a or w i t h o u t i t s a r e a f o r the purpose o f c o n s t r u c t i o n and oper-a t i o n of sewerage and d r a i n a g e f a c i l i t i e s w i t h t h e consent of the L i e u t e n a n t - G o v e r n o r i n C o u n c i l a f t e r n o t i c e has been 1 2 2 g i v e n t o the m u n i c i p a l i t y i n w h i c h the l a n d i s l o c a t e d . B a s i c a l l y , t h e n , t h i s - A c t i s v e r y s i m i l a r t o t h e Vancouver and D i s t r i c t s J o i n t Sewerage and D r a i n a g e A c t w h i c h i t r e p e a l e d . L i k e the l a t t e r A c t , i t attempts t o c o n t r o l p o l l u t i o n o n l y i n d i r e c t l y by g i v i n g the C o r p o r a t i o n the. power t o e x p r o p r i a t e l a n d n e c e s s a r y f o r sewerage works. One of the most i m p o r t a n t amendments t o the H e a l t h A c t , R e v i s e d S t a t u t e s of B r i t i s h C o lumbia, 1 9 1 1 , was p a s s e d on March 6 , 1 9 l 5 - T h i s Amendment A c t s t a t e d t h a t m i n e r a l 1 2 2 .Greater Vancouver Sewerage and D r a i n a g e D i s t r i c t Act,. B..C. S t a t . ( 1 9 5 6 ) , c. 5 9 , s e c . .257" traders must have a license and that a municipality must change or a l t e r i t s water works system i f directed to by the Board of Health. Hence, the Board was able- to get better control over the purity of public water systems. And further, when a municipality was contemplating the construction, a l t e r a t i o n or extension of a public sewerage or sewerage disposal system, i t had to have, the plans and s p e c i f i c a t i o n s approved by the Board, and t h i s approval had to be received before a. by-law vote f o r r a i s i n g money 123 could be held. There were no. further s i g n i f i c a n t amendments up to the time of r e v i s i o n of the "Health Act," by chapter 1 0 2 of the B r i t i s h Columbia Statutes of 1 9 2 k , and f o r that matter up to the 1 9 3 6 Revision of the B r i t i s h Columbia Statutes, chapter I l k . Since that time there have been no amendments to the Act which s p e c i f i c a l l y concern p o l l u t i o n control. The Health Act was revised by chapter l k l of B r i t i s h Columbia Statutes of 1914-8 and since then there have been no amendments. The Sanitary Regulations, 1 8 9 6 , and the' Regulations respecting slaughter-houses approved June 2 2 , 1 9 0 5 , were repealed by the "Sanitary Regulations, 1 9 1 7 ' " These l a t t e r -mentioned regulations contain the same section regarding the p o l l u t i o n of streams which was f i r s t passed i n the 1 2 3 H e a l t h Act Amendment Act, 1 9 l 5 , B.C..Stat. (March 6 , 1 9 1 5 ), c 3 0 . S a n i t a r y R e g u l a t i o n s , 1896."^ "^ No amendments have been made t o t h i s s e c t i o n s i n c e i t s f i r s t passage. Thus, a l t h o u g h t h e r e g u l a t i o n s are i n need of r e v i s i o n , t h e y a r e ' s t i l l i n e f f e c t . S a n i t a r y R e g u l a t i o n s G o v e r n i n g Watersheds, 1936 The " S a n i t a r y R e g u l a t i o n s G o v e r n i n g Watersheds" were o r i g i n a l l y passed i n 1918. and the l a t e s t amendment was i n 1 9 3 6 . These r e g u l a t i o n s a p p l y t o e v e r y p e r s o n e n t e r i n g ' any watershed a r e a above a m u n i c i p a l i n t a k e , r e s e r v o i r , o r dam and c a l l f o r Watershed S a n i t a r y I n s p e c t o r s t o be ap p o i n t e d by the M u n i c i p a l . C o u n c i l , s u b j e c t t o the a p p r o v a l of the P r o v i n c i a l Board of H e a l t h . E s s e n t i a l l y t h e r e g u l a t i o n s attempt to p r e v e n t anyone who i s a c a r r i e r of a communicable d i s e a s e f r o m e n t e r i n g onto the wat e r s h e d a r e a , whether he be the employee of a company a u t h o r i z e d 125 to- work i n the watershed a r e a o r a t r a n s i e n t camper. I t i s u n d e r s t o o d t h a t these r e g u l a t i o n s are a l s o under study f o r amendment a t the p r e s e n t t i m e . P o l l u t i o n - c o n t r o l A c t , 195>6 Thus, i t can be seen t h a t up t o t h i s t i m e , the l e g i s l a t i o n r e g a r d i n g w a t e r - p o l l u t i o n c o n t r o l has been 1 2 ^ S ' a n i t a r y R e g u l a t i o n s , 1917, ( J u l y 31, 1917) sec. 66. I n s a n i t a r y R e g u l a t i o n s g o v e r n i n g Watersheds, 1926, (October 13, 1926') . 93 more of a p r e v e n t i v e n a t u r e r a t h e r t h a n o f a c o n t r o l n a t u r e . The most r e c e n t w a t e r - p o l l u t i o n c o n t r o l l e g i s l a t i o n i s c i t e d as the " P o l l u t i o n - c o n t r o l A c t " (see Appendix V I I I ) and was a s s e n t e d t o on March 2, 19^6. The preamble of t h i s a c t s t a t e s as f o l l o w s : Whereas i t i s deemed i n t h e p u b l i c i n t e r e s t t o m a i n t a i n and ensure the p u r i t y of a l l w a t e r s of the P r o v i n c e c o n s i s t e n t w i t h p u b l i c h e a l t h and t h e p u b l i c enjoyment t h e r e o f , t h e p r o p a g a t i o n and p r o t e c t i o n of w i l d l i f e , b i r d s , game, and o t h e r aquatic- l i f e , and the i n d u s t r i a l development of the P r o v i n c e : And where i t i s deemed e x p e d i e n t t o r e q u i r e the use of a l l known a v a i l a b l e and r e a s o n a b l e methods by i n d u s t r i e s and o t h e r s t o p r e v e n t and c o n t r o l the p o l l u t i o n of the w a t e r s of the P r o v i n c e : Now, t h e r e f o r e , Her M a j e s t y , by and w i t h t h e a d v i c e and consent o f the L e g i s l a t i v e Assembly of the P r o v i n c e o f B r i t i s h C o l u m b i a , e n a c t s as f o l l o w s : -The p r o v i s i o n s of the A c t a p p l y t o any a r e a t h a t i s d e s i g n a t e d by Order o f the L i e u t e n a n t - G o v e r n o r i n C o u n c i l and i t s e t s up a P o l l u t i o n - c o n t r o l Board w i t h the power t o determine the q u a l i t i e s and p r o p e r t i e s of w a t e r w h i c h s h a l l c o n s t i t u t e a p o l l u t e d c o n d i t i o n , t o c o n d u c t t e s t s and s u r v e y s , t o examine- a l l e x i s t i n g and proposed means of s e w a g e . d i s p o s a l , and t o p r e s c r i b e s t a n d a r d s r e g a r d i n g the q u a l i t y and c h a r a c t e r o f t h e e f f l u e n t w h i c h may be d i s - ' charged i n t o any of the w a t e r s w i t h i n i t s j u r i s d i c t i o n . The Act- g i v e s t h e Board the power t o impose a p e n a l t y not P o l l u t i o n - c o n t r o l A c t , B.C. S t a t . (1956) , c. 36 . 91+ exceeding two hundred d o l l a r s i f a person contravenes any order of the Board or neglects to do anything required to be done by the Board. Further, section seven of the Act s p e c i f i c a l l y states: No person s h a l l discharge sewage or other waste materials into the waters of the area or areas under the j u r i s d i c t i o n of the Board without the permission of the Board. Such permission may be i n the form of a permit, which may prescribe- the degree of treatment of the effluent as well as the lo c a t i o n of the point of discharge into the waters of the area and the manner of the discharge as a Condition of the per-mission. 127 Since this i s a new act, provision has been made i n i t . s o that the Lieutenant-Governor i n Council might make any regulations which are not inconsistent with the s p i r i t of the Act and which he may deem are necessary. The Minister of Municipal A f f a i r s i s i n charge of the administration of the Act, the funds f o r which are to come out of the Consolidated Revenue Fund. This i s the f i r s t Act to attempt s p e c i f i c a l l y to control the p o l l u t i o n of the waters of the Province. Undoubtedly, there w i l l be several amendment acts to i t i n the near future; however, i t i s a progressive step i n the r i g h t d i r e c t i o n . The writer w i l l now summarize the e x i s t i n g l e g i s -l a t i o n pertaining to. water-pollution control i n B r i t i s h Columbia-today, including the Po l l u t i o n - c o n t r o l Act, 195>6. 127 ' i b i d . , sec. 7. CHAPTER IX EXISTING LEGISLATION ON WATER"POLLUTION CONTROL IN BRITISH COLUMBIA TODAY The w r i t e r ' w i l l here r e f e r t o an e x c e l l e n t r e p o r t s u b m i t t e d by Mr. R. B.owering, D i r e c t o r , D i v i s i o n o f P u b l i c H e a l t h E n g i n e e r i n g , Department o f H e a l t h and W e l f a r e t o the P o l l u t i o n P a n e l at the s i x t h B r i t i s h C olumbia N a t u r a l R e sources C o n f e r e n c e . A t y p e w r i t t e n copy of t h i s r e p o r t , " P o l l u t i o n C o n t r o l I n B r i t i s h Columbia Today.," i s e n c l o s e d i n t h i s t h e s i s (see Appendix I X ) . The w r i t e r has attempted to b r i n g the m a t e r i a l up to- date so that, i t i s s i g n i f i c a n t t o the c o n t e n t o f t h i s t h e s i s . There are s e v e r a l p i e b e s of b o t h f e d e r a l and p r o v i n -c i a l l e g i s l a t i o n e x i s t i n g i n B r i t i s h Columbia f o r the c o n t r o l of p o l l u t i o n of p r o v i n c i a l w a t e r s . A l t h o u g h a l l t h i s l e g i s l a t i o n was enacted w i t h a d e f i n i t e o b j e c t i v e i n mind, t h e r e was no l e g i s l a t i o n on the- s t a t u t e books wh i c h d e a l s w i t h p o l l u t i o n i n a l l I t s a s p e c t s i n a broad 1 ?f i o r g e n e r a l way, u n t i l t he P r o v i n c i a l L e g i s l a t u r e r e c e n t l y passed t h e " P o l l u t i o n - c o n t r o l A c t " (see Appen-dix., .viii.) 1 __8 R. Bower i n g , " P o l l u t i o n C o n t r o l i n B r i t i s h Colum-b i a - Tod ay," T r a n s a c t i o n s - o f the S i x t h B r i t i s h Columbia  N a t u r a l R esources Conference ( V i c t o r i a : The B r i t i s h Colum-b i a N a t u r a l R e s o u r c e s Conference., 1953) P- l 8 k . 95 The reader, I s asked t o r e f e r t o Table I I f o r a l i s t of t h e government a g e n c i e s w h i c h have l e g i s l a t i o n d e a l i n g w i t h w a t e r - p o l l u t i o n c o n t r o l and t h e l e g i s l a t i o n w h i c h g i v e s them an a u t h o r i t y t o a c t . I t i s apparent t h a t the e x i s t i n g l e g i s l a t i o n has had c o n s i d e r a b l e e f f e c t on the p r e v e n t i o n of c e r t a i n t y p e s of p o l l u t i o n . The w r i t e r f e e l s t h a t the e x i s t i n g l e g i s l a t i o n appears t o have been l a r g e l y p r e v e n t i v e i n n a t u r e , r a t h e r t h a n c o n t r o l l i n g . Because- of t h e f a c t t h a t t h e a c t i o n was c a r r i e d out by s e p a r a t e government a g e n c i e s , " ... e a c h w i t h , i t s own i n t e r e s t s t o c o n s i d e r , sometimes c o o p e r a t i n g 129 w i t h o t h e r a g e n c i e s and sometimes not t h e e x i s t -i n g l e g i s rat i o n has been even less- e f f e c t i v e i n the m a t t e r of c o n t r o l of p o l l u t i o n . As can be seen f r o m the p r e v i o u s s e c t i o n of t h i s t h e s i s d e a l i n g w i t h th e h i s t o r y o f w a t e r -p o l l u t i o n c o n t r o l l e g i s l a t i o n , the i n t e r e s t i n t h e p r o b l e m has come about at d i f f e r e n t s t a g e s i n the g r o w t h of the P r o v i n c e . T h i s has f u r t h e r reduced the e f f e c t i v e n e s s of such proposed c o n t r o l l e g i s l a t i o n . The r e a d e r i s r e f e r r e d t o Appendix I X of t h i s , t h e s i s i f he w ishes t o s c r u t i n i z e the e f f e c t i v e n e s s o f the i n d i v i d -u a l p i e c e s of l e g i s l a t i o n shown i n T able I I d e a l i n g w i t h p o l l u t i o n - c o n t r o l . The w r i t e r has t a k e n the l i b e r t y of-l2Q Bowering, op. c i t . , p. l85>. 97 TABLE II. GOVERNMENTAL POLLUTION "CONTROL. AUTHORITIES IN BRITISH COLUMBIA""-Government Agency MUNICIPAL Local Boards of Health PROVINCIAL Health Branch Department of Health and Welfare Water Rights Branch, Depart-ment of Lands and Forests Park Service, Department of Lands and Forests Fisheries Department Game Commission,. Attorney-General' s Department Department of Municipal A f f a i r s FEDERAL Department of Fi s h e r i e s Department of Resources and Development National Harbours Board Department of Transport Department of Public- Works Local Port Authorities, Department of Transport L e g i s l a t i v e Authority' "Health Act" of B.C. Sanitary Regulations of B.C. "Municipal Act" (Section 58) "Health Act" of B.C. Sanitary Regulations of B.C. Sanitary Regulations Govern-ing Watersheds "Water Act" of B.C. Park Regulations -Use federal l e g i s l a t i o n Use federal l e g i s l a t i o n -(Fisheries Act and Migratory Birds Regu-lation s Act) "Pol l u t i o n - c o n t r o l Act" "Fisheries Act" "Migratory Bird's Regulation Act" National Harbours Board By-laws. "Navigable Waters Protec-t i o n Act" "Canada Shipping Act" "Navigable Waters Prot ec-: t i o n Act" "Navigable Waters Protec-' t i o n Act" "Taken from Table I, "Government Agencies Having' P o l l u t i o n Control Authority," of R. Bowering, " P o l l u t i o n Control i n British.Columbia Today," Transactions of the Sixth B r i t i s h 1 Columbia Natural Resources Conference ( V i c t o r i a : The B r i t i s h Columbia Natural Resources Confer-ence, 1953), p. l 8 k . Table I has been amended and brought up to date. '""The pertinent sections of l e g i s l a t i o n , as l i s t e d i n Table I I , are given i n Appendix IX. amending th i s section of Mr. Bowering 1s report so as to bring the report i n l i n e with the presently existing l e g i s l a t i o n . I t Is f e l t that t h i s report w i l l give the reader a very clear picture of problem of p o l l u t i o n control as i t exists i n B r i t i s h Columbia today and the e f f e c t i v e -ness of the exis t i n g l e g i s l a t i o n concerning t h i s subject, as well as several examples of p o l l u t i o n i n B r i t i s h Columbia today. The report i s recommended as preliminary reading f o r the reader before the writer discusses the problem of attempting to set f o r t h desirable p r i n c i p l e s of water-pollution control l e g i s l a t i o n f o r B r i t i s h Columbia. CHAPTER X I DESIRABLE GENERAL PRINCIPLES' OP BRITISH COLUMBIA WATER-POLLUTION CONTROL LEGISLATION W a t e r - p o l l u t i o n C o n t r o l P o l i c y O b v i o u s l y , the f i r s t s t e p i n b r i n g i n g about the w a t e r - p o l l u t i o n c o n t r o l program i s t h e f o r m u l a t i o n of a p o l l u t i o n - c o n t r o l p o l i c y . Such a p o l i c y statement i s made i n the preamble of the r e c e n t l y p a s s e d P o l l u t i o n -c o n t r o l A c t (see page 93) . A more e l a b o r a t e - and d e t a i l e d statement of p o l i c y might be as f o l l o w s : Whereas the p o l l u t i o n of the wate r s of t h i s S t a t e [[Province] c o n s t i t u t e s a menace t o p u b l i c h e a l t h and w e l f a r e , c r e a t e s p u b l i c n u i s a n c e s , i s h a r m f u l t o w i l d l i f e , f i s h and a q u a t i c l i f e , and I m p a i r s d o m e s t i c , a g r i c u l t u r a l , i n d u s t r i a l , r e c r e a t i o n a l and o t h e r l e g i t i m a t e b e n e f i c i a l uses of w a t e r , and whereas the p r o b l e m of water p o l l u t i o n I n t h i s S t a t e [Pr o v i n c e ] i s c l o s e l y r e l a t e d t o the problem of water p o l l u t i o n i n a d j o i n i n g S t a t e s [ P r o v i n c e s ] and c o u n t r i e s , i t i s hereby d e c l a r e d t o be the p u b l i c p o l i c y of t h i s S t a t e . [ P r o v i n c e ] t o Conserve the w a t e r s o f the S t a t e [ P r o v i n c e ] and t o p r o t e c t , m a i n t a i n and improve- the q u a l i t y t h e r e o f f o r p u b l i c w a t e r s u p p l i e s , f o r t h e p r o p a g a t i o n o f w i l d l i f e , f i s h and a q u a t i c l i f e , and f o r domestic a g r i c u l t u r a l , i n d u s t r i a l , r e c r e a t i o n a l and other- l e g i t i m a t e b e n e f i c i a l u s e s ; to- p r o v i d e t h a t nov:vaste be d i s -charged i n t o any w a t e r s of the S t a t e [ P r o v i n c e ] w i t h o u t f i r s t b e i n g g i v e n t h e degree of t r e a t m e n t n e c e s s a r y t o p r o t e c t t h e l e g i t i m a t e b e n e f i c i a l u ses of such waters;- t o p r o v i d e f o r the p r e v e n t i o n , , abatement and c o n t r o l of new o r e x i s t i n g w ater 9 9 100 p o l l u t i o n ; and to cooperate with other agencies of the State [Province], agencies of other States [Provinces] and the Federal Government i n carrying out these obiectives. 130 The excellent investigation from which t h i s p o l i c y statement has been quoted has been included i n part i n Appendix X of" this t hesis, "Suggested State Water P o l l u t i o n Control Act." The writer f e e l s that, although t h i s piece of l e g i s -l a t i o n has been suggested f o r the state i n the United States, i t can be advantageously applied to the provinces i n Canada where the same problem has not yet become as serious. The Suggested Act deals only with the general problem of water-p o l l u t i o n control,, and therefore i t can equally be applied to the Province of B r i t i s h Columbia after a very few minor-Changes i n i t s terminology. I t i s f o r t h i s reason that the writer w i l l make constant references to this, proposed l e g i s -l a t i o n i n the l a t e r pages of t h i s thesis when attempting to evaluate the recently-passed Pollution-control Act of B r i t i s h Columbia. Standards of Water Quality The next l o g i c a l step after setting up the p o l i c y i s to c l a s s i f y the- waters of the Province. Such standards as were shown on page 76 under, "The Water-Pollution Control 130 .- :-• Public- Health Service, Suggested State Water Po l l u t i o n Control A c t and Explanatory Statement, An Inves-t i g a t i o n Prepared by the Federal Security Agency of the D i v i s i o n of Water P o l l u t i o n Control of the Public Health Service, Publication No. k9 (Washington: Public Health Service, October, 1 9 ^ 0 ) , p. 7. Problem" must of necessity be set up i f proper- enforcement action i s to be taken. It seems reasonable that without a determination of use to which the p a r t i c u l a r body of water i s to be put and the degree of q u a l i t y which that body must have to be suitable f o r that use, enforcement i s going to be very d i f f i c u l t . The B r i t i s h Columbia P o l l u t i o n -control Act makes no mention of the setting of such stan-dards; rather, the P o l l u t i o n - c o n t r o l Board i s given broad powers to determine the q u a l i t y which s h a l l constitute a 1 3 1 polluted condition. The writer f e e l s that the Act could set. such standards arid c l a s s i f i c a t i o n as has been previously suggested and so give' the reader of the Act an idea of just what s h a l l -constitute aa polluted condition without, having to wait on the favour of the Board. It Is i n t e r e s t i n g to note that the C a l i f o r n i a State Water P o l l u t i o n Control Board does set such standards'- f o r discharge of Los Angeles sewage. The Board's concept of p o l l u t i o n control c a l l s f o r e v a l -uation of b e n e f i c i a l uses of receiving waters and control of discharges to protect as many of the- benefits as possible. I t does not permit, the state to t e l l dischargers how to achieve the q u a l i t y desired, but only what requirements the 132 discharge-should meet. This concept has- been c r i t i c i z e d -1 -5-1 - -J Pollution-control Act, B.C. Stat. ( 1 9 5 6 ) , c 3 6 , sec. k(a) . 1 3 2 " P o l l u t i o n Control Stimulated," Engineering News- Record (May 2 k , 1 9 5 6 ) , p. 1 2 k . 1 0 2 by f i s h i n g i n t e r e s t s and c i t i e s a l o n g the beach who f e e l t h a t the w a t e r s s h o u l d be kept a t the h i g h e s t ' b e n e f i c i a l 133 use"' q u a l i t y s t a n d a r d . I t i s noted t h a t t h i s ' c o n c e p t - , Q j has not y e t been pu t t o a t h o r o u g h t e s t . The a d m i n i s -t r a t i o n o f t h e C a l i f o r n i a set-up i n v o l v e s a number of r e g i o n a l b o a r d s and a s t a t e b o a r d . The p r i m a r y c o n t r o l i s i n the- hands of the f o r m e r , the s t a t e b o a r d o n l y s t e p p i n g i n when the r e g i o n a l b o a r d ' s r u l i n g i s a p p e a l e d . The w r i t e r recommends t h a t the B r i t i s h C olumbia l e g i s l a t i o n adopt such a d e f i n i t e .and. p o s i t i v e n a t u r e as has been g i v e n t o the C a l i f o r n i a l e g i s l a t i o n . Such an approach s h o u l d not make the- p r o c e s s admin-i s t r a t i v e l y d i f f i c u l t or time consuming. I t i s t r u e t h a t c l a s s i f i c a t i o n s - once made are h a r d t o change and t e n d t o "135 c r e a t e v e s t e d i n t e r e s t s . However, the w r i t e r f e e l s t h a t such a c l a s s i f i c a t i o n o f w a t e r s as- w e l l as q u a l i t y s t a n d a r d s s h o u l d be i n s e r t e d i n t o t h e A c t . I t i s noted t h a t w h i l e the Suggested A c t a u t h o r i z e s t h e agency t o c l a s s i f y w a t e r s and s e t up s t a n d a r d s f o r q u a l i t y i n t h e s e c l a s s i f i c a t i o n s , i t does n o t make i t mandatory f o r t h e agency t o do s o . ^ 3 ^ 1 3 3"New P o l l u t i o n C o n t r o l F o r m u l a , " E n g i n e e r i n g News-Record (May 1 0 , 1 9 5 6 ) , p. 2 8 . P o l l u t i o n C o n t r o l S t i m u l a t e d , " op. C i t . , p. 1 2 k . 1 3 5 ' ' . P u b l i c H e a l t h S e r v i c e , op_. c i t . , p. 5 -1 3 6 I b i d . , p. 1 6 . 103 Permit System of Water-Pollution Control The B r i t i s h Columbia Pollution-control Act, as has been previously mentioned, requires that any person must obtain a permit from the Board before he may discharge 137 any wastes i n waters under the Board's j u r i s d i c t i o n . The Public Health Service f e e l s that t h i s i s p o t e n t i a l l y one.of the most e f f e c t i v e techniques f o r control of water 138 p o l l u t i o n . The reason f o r the permit system's being so e f f e c t i v e i s that by i t s means the Board i s able to e i t h e r prohibit discharges e n t i r e l y or to force t h e i r treatment to the point where legitimate water' uses are protected.' The Board i s thus able to control not only new discharges but also e x i s t i n g discharges, as was mentioned' previously on page 93 under a discussion of the "Pollution-control Act." The writer f e e l s that the Act should be adequate i n respect to the question of p r o h i b i t i o n , the permit system of control being very e f f e c t i v e . Enforcement of Water-Pollution Control L e g i s l a t i o n The Act provides f o r adequate enforcement, i n the opinion of the writer. It i s made unlawful to cause any p o l l u t i o n of the waters under the j u r i s d i c t i o n of the Board as well as to v i o l a t e any order issued by the Board, 1 3 7 P o 1 l u t i on- c ont r o 1., Act, B.C. Stat. (19^6), c. 36, sec. 7. 138 . . Public Health Service, op_. cit.., p. 5-including discharging effluent which f a i l s to meet the 139 required standards. J 7 It i s presumed that the Board has a system of monitoring the receiving water so as to be sure that the requirements are met. The wri t e r f e e l s that such a system should be provided f o r i n the Act. The Act implies that, i f an appeal to an order i s not made to the Lieutenant-Governor within t h i r t y days from the date of the order, the order i s f i n a l and binding i n a court of l a w . 1 ^ It Is generally understood that the courts w i l l not inter f e r e with decisions of administrative bodies unless i t i s a "question of law." Thus, the enforcement i s clear and decisive. Further, action w i l l take place r e l a t i v e l y quickly as the appeal must be made to the Lieutenant-Governor i n Council who can make a f i n a l and binding decision. The Act further implies that a permit may be revoked, denied, or modified i f the conditions on the permit are not complied with.^""'" Thus, the Pollution-control Act seems to be very powerful In the area of enforcement. Administrative Agency Once the l e g i s l a t i o n has been decided upon, the agency or agencies to administer such a program must be designated. The B r i t i s h Columbia P o l l u t i o n - c o n t r o l Act " ^ P o l l u t i o n - c o n t r o l Act, B.C. Stat. (1956), c. 36/, s e c . 5 • l k Q I b i d . , sec. 6. l k l Ibid., sec. 7. 10$ places the administration under the Minister of Municipal A f f a i r s . 1 ^ - 2 Previously, the administration of p o l l u t i o n -control l e g i s l a t i o n was divided amongst several agencies,-^ 3 due to the f a c t that the problems' of water-pollution control concern other interests than health. .The writer, therefore, f e e l s that any agency which administers such a program should be constituted so as to take into account the interests and views of the affected groups i n addition to health consider-ations . It must have been with t h i s thought i n mind that the lkk Legislature set up a Pollution-control Board. The Lieutenant-Governor has the power to determine the number of members that s h a l l s i t on the Board and t h e i r terms of o f f i c e . The Board s h a l l consist of representatives of various departments of the P r o v i n c i a l Government and per-haps some ci t i z e n s from outside the government so that a l l affected interests are represented. If the Lieutenant-Governor decides that the Board i s to Consist of a single administrator, then t h i s administrator should obviously be provided with an advisory council. Possibly a p r o v i n c i a l board plus several regional boards each consisting of representatives of industry, agriculture, water, and sewerage agencies can be set up i f the load becomes too sec. 3 • Ik2- -Ibid., sec. 11. U+3 R. Bowering, op. c i t . , p. l8k. l k l | P o l l u t i o n - c o n t r o l Act, B.C. Stat. (19^6), c. 36, 106 heavy for a single administrator. It should always be kept i n mind, however, that the agency should not be subjected to the f u l l supervisory control of the Department of Muni-c i p a l A f f a i r s which operates i n a' f i e l d which i s comparatively narrower than the water-pollution control agency. The Suggested State Water P o l l u t i o n Control Act states that where the p o l l u t i o n control agency i s established i n an existing department, as i s the case i n B r i t i s h Columbia, the agency should be placed i n the health department. The reason f o r t h i s statement i s simple. Health i s the major public interest and an i n t e g r a l part of the active water-pollution control program; and presumably the health department has trained personnel and f a c i l i t i e s which may be used f o r water-pollution control work. If the health department i s already carrying on work to do with p o l l u t i o n •control, a duplication of administrative personnel and f a c i l i t i e s can be avoided. I t i s f o r these reasons that, the writer challenges the placing of the. water-pollution control agency under the Department of Municipal A f f a i r s . I t i s also f e l t by the writer that the Board would be more e f f e c t i v e i f i t were given a l l the administrative powers to carry out i t s r e s p o n s i b i l i t i e s . The Board does not-have, the-quasi-judicial powers that, f o r instance, the l J+^Public Health Service, op_. c i t . , p. k. Comptroller has under section 26 of the Water Act. The Comptroller, Deputy Comptroller, Engineer, or Water Recorder have the power to hold an inquiry and f o r such purposes have the powers and j u r i s d i c t i o n of a Justice of the Peace under the "Summary Convictions Act". ~^ I t i s thus f e l t by the writer that the Board should have authority or powers which are commensurate with i t s r e s p o n s i b i l i t i e s . The writer recommends, f o r thi s reason, that the Board be given the power to: ... hold hearings, subpoena witnesses, enforce Its subpoenas, administer oaths, ... require the keep-ing of records and the making of reports, and enter on property at reasonable times f o r purposes of inspection and investigation. It i s noted that the- Board already has the power to examine plans and specifications f o r sewage or other wastes lk8 disposal works. Planning for- Future Developments The e x i s t i n g water-pollution control l e g i s l a t i o n , up to the passage of the Pollution-control Act, had not dealt with the problem as a whole. This recent Act does attempt to. handle the ov e r - a l l s i t u a t i o n without repealing l k 6Water Act, R.S.B.C. (.191+8), c. 361, sec. 26. ^ 7 Public Health Service, op. c i t . , p. 6. l k 8 P o l l u t i o n - c o n t r o l Act, B.C. Stat. (19^6), c. 36, sec. l+(d) . 108 or reducing the effectiveness of the piece-meal pattern that has previously been set.. P o l l u t i o n control should be considered i n the planning and development of a l l our r i v e r basin programs. It has been suggested that a ten-year period should be set within which to accomplish a reasonable program f o r cleaning up lii-9 the United States'- polluted waters. The writer f e e l s that such a period i s not unreasonable when related to B r i t i s h Columbia's polluted waters and for' that reason should be set as the outside l i m i t to gain the cooperative e f f o r t s of private Industries, organizations, m u n i c i p a l i t i e s , provinces, and the Federal Government to that end. "'•^President's Water Resources Policy Commission, op. c i t . , p. 108. PART IV. CONCLUSION AND RECOMMENDATIONS CHAPTER XII CONCLUSION As a r e s u l t of t h i s c r i t i c a l analysis of the exis t i n g B r i t i s h Columbia water supply and d i s t r i b u t i o n l e g i s l a t i o n , the writer f e e l s that the B r i t i s h Columbia Water Act has both sound l e g i s l a t i v e foundations and administrative procedure, and i s f a r superior to- any of the similar pieces of l e g i s l a t i o n of the other provinces i n Canada. The writer also f e e l s that the Act ranks high i n comparison with the water acts of comparable western states of the United States. However, there are some very d e f i n i t e improvements that the writer would l i k e to recommend f o r t h i s Act. These recom-mendations have been tabulated i n the section immediately following this conclusion. The writer f e e l s that the B r i t i s h Columbia p o l l u t i o n -control l e g i s l a t i o n has been very lax and indecisive i n the past. Up u n t i l the Po l l u t i o n - c o n t r o l Act of 19f>6, the authority and r e s p o n s i b i l i t y f o r the water-pollution control l e g i s l a t i o n have been divided amongst various government agencies, a d i v i s i o n which has led to over-lapping i n some instances and a general lack of coordination i n the- over-a l l picture. It i s d i f f i c u l t to analyse c r i t i c a l l y the recently-passed Pollution-control Act (assented to on 109 March 2, 19^6) when the Act has r e a l l y not been proved. Thus, i t i s d i f f i c u l t to give a f a i r comparison with, say, the C a l i f o r n i a Act, which has been i n existence f o r a longer period of time'. However, the writer has attempted to look ahead and foresee problems that might arise under t h i s l e g i s l a t i o n . Further, the writer has attempted to compare t h i s l e g i s l a t i o n with the suggested state p o l l u t i o n -control l e g i s l a t i o n f o r the United States of America. As a r e s u l t , the writer f e e l s that An Act to Control the P o l l u t i o n of Waters of the Province, or the P o l l u t i o n -control Act, as i t i s known under i t s s h o r t - t i t l e , i s a very good basic st a r t on the ever-growing; problem of p o l l u t i o n control of the Province's waters. However, the writer f e e l s that i t should be recognized that t h i s Act i s only the beginning, so to speak, and that there are certain d e f i n i t e recommendations that can be made f o r i t s improvement. These recommendations have been tabulated along with those made for the Water Act. Many of the suggestions for improvement of the P o l l u t i o n - c o n t r o l Act may already be- i n the minds of interested p a r t i e s i n V i c t o r i a , and may already be incorporated i n the proposed amendment acts which w i l l undoubtedly come before a future session of the Legislature. Some of the recommendations presented i n t h i s thesis for both of the above-mentioned aets have, been made- i n an I l l attempt to provide- f o r the future. I n most cases, l e g i s -l a t i o n i s enacted o n l y after conditions are such that l e g i s l a t i o n i s a necessity. I t i s f o r t h i s reason that the writer has attempted to foresee c e r t a i n future problems which conceivably could arise, and thus provide adequate l e g i s l a t i o n i n order to prepare f o r these sit u a t i o n s . Such problems, as, for example, w i l l arise from the increasing development of atomic f i s s i o n and the r e s u l t i n g radioactive wastes, must be solved i n advance because of the severity of t h e i r possible e f f e c t on mankind. The writer has dealt with the existing water l e g i s -l a t i o n i n the P r o v i n c e under two main sections: the water-supply l e g i s l a t i o n and the w a t e r - p o l l u t i o n control l e g i s -l a t i o n . However, the reader i s not. to f e e l that these are two e n t i r e l y separate problems; rather, the reader must think of a cycle i n which the Water A c t controls the-water supply and the P o l l u t i o n - c o n t r o l A c t controls, the p o l l u t i o n of that water supply, both A c t s f o c u s i n g on one prime objective, the highest quality water supply possible under the existing Circumstances. CHAPTER X I I I RECOMMENDATION'S Based on the f i n d i n g s and c o n c l u s i o n s developed i n doing a c r i t i c a l a n a l y s i s of the e x i s t i n g water l e g i s l a t i o n i n the Province of B r i t i s h Columbia, the f o l l o w i n g are recommended: For.the B r i t i s h Columbia Water Act 1. That some p r o v i s i o n be made f o r the a c q u i r i n g , C o n t r o l l i n g , and' e x e r c i s i n g of r i g h t s to the use of ground waters. 'Such l e g i s l a t i o n should encompass b o t h d e f i n i t e underground streams and p e r c o l a t i n g waters. The w r i t e r would recommend that the a p p r o p r i a t i o n d o c t r i n e be adopted i n b o t h of these s u b - c l a s s i f i c a t i o n s because of the f a i r n e s s and e q u i t a b i l i t y of t h i s d o c t r i n e . Such an adoption w i l l mean that a l l surface and ground waters of the Province w i l l be r e g u l a t e d e x c l u s i v e l y by the p r i o r a p p r o p r i a t i o n f o r b e n e f i c i a l use d o c t r i n e . 2. That some p r o v i s i o n be made f o r an a p p r o p r i a t o r to have the o p p o r t u n i t y of r e c a p t u r i n g and r e - u s i n g r e t u r n water which r e s u l t s from h i s development when he Is d i l i -gent and uses f o r e s i g h t i n h i s attempt not to i n f r i n g e 112 113 upon pre-existing r i g h t s . The appropriation of the return water should; be provided f o r i n the appropriation of the o r i g i n a l flow. The appropriator should be allowed f i v e years after the time that the return water appears i n reasonably i d e n t i f i a b l e quantities i n the water supply, in which to exercise h i s r i g h t . The burden of proof of existence, quantity, and l o c a t i o n should l i e on the o r i g i n a l appropriator. The writer recommends that the c i t a t i o n given on page £0 of t h i s thesis be used f o r the form of the proposed amendment. 3. That some provi s i o n be made for the appropriation of salvaged water and developed water i n preparation f o r any foreseeable future shortage of our natural water resources. Such a provision should be stated so as to include the follow-ing points: (i) .Appropriation of salvaged or developed water i s superior to any other claim and i s not to be- subject to regulation according to p r i o r i t y , ( i i ) Salvaged or developed water-becomes subject to general appropriation i f the one- respon-sible f o r i t does not f i l e an a p p l i c a t i o n f o r appropriation within two years, ( i i i ) Subject to the above-mentioned p r e f e r e n t i a l r i g h t of appropriation, developed water that does not enter a water- supply becomes a new and independent water supply,, and s i m i l a r l y , I l k salvaged or developed water that enters a water supply becomes an inseparable part of i t . (iv)The onus of proof of the nature, source, quantity, and r e s p o n s i b i l i t y f o r the exis-tence of salvaged and developed water i s on the o r i g i n a l appropriator'. k. That some provision be made for the r o t a t i o n i n use of water i n the event of an unexpected shortage of water f o r domestic or other purposes. Such a provision w i l l allow everyone- to obtain some water f o r domestic purposes rather than have a sole user i n the event of a future emergency. 5>. That some provision be made f o r the exchange of water so that appropriators may exchange water with one another so long as the rights of others are not impaired with respect to- either quantity or q u a l i t y of the water, and so bring about a more e f f e c t i v e u t i l i z a t i o n of water by appropriators who are already e n t i t l e d to div e r t under terms of t h e i r separate: appropriative r i g h t s . Such a proposal w i l l allow an appropriator to deliver e i t h e r natural or stored water into a ditch or conduit f o r the use of any other appropriator i n exchange f o r an equivalent quantity of water which the l a t t e r i s e n t i t l e d to divert from the water supply at the time the exchanged water i s taken by the former. However, the p r i o r i t i e s of the 115 p a r t i e s t o the p l a n must n o t he changed. i5o F o r P r o v i n c i a l o r F e d e r a l Water L e g i s l a t i o n 1 . That some p r o v i s i o n be made f o r t h e a p p r o p r i a t i o n of w a t e r s between B r i t i s h C olumbia and b o t h A l b e r t a and the Northwest T e r r i t o r i e s . ' I t i s recommended t h a t such l e g i s l a t i o n adopt the d o c t r i n e o f r e c i p r o c i t y whereby B r i t i s h Columbia would a l l o w an a p p r o p r i a t i o n of wa t e r w h i c h i s t o be d i v e r t e d w i t h i n t h e P r o v i n c e and conveyed, i n whole o r i n p a r t , a c r o s s the P r o v i n c i a l l i n e f o r use i n , say A l b e r t a , p r o v i d e d t h a t A l b e r t a ' s laws would a l l o w the r e c i p r o c a l r i g h t - t o B r i t i s h Columbia. Such a p r o v i s i o n would s o l v e problems w h i c h a r i s e f r o m the- use of wa t e r on p o r t i o n s o f i r r i g a b l e v a l l e y s l y i n g o u t s i d e the- b o u n d a r i e s of the P r o v i n c e . 2. That a s i m i l a r p r o v i s i o n be made f o r t h e a p p r o p r i a -t i o n o f i n t e r n a t i o n a l w a t e r s between B r i t i s h Columbia and the S t a t e s of Washington, Idaho, and Montana, as w e l l as between B r i t i s h C olumbia and t h e T e r r i t o r y of A l a s k a . F o r the B r i t i s h Columbia P o l l u t i o n - c o n t r o l A c t 1 . That some d e f i n i t e and p o s i t i v e approach be adopted i n - s e t t i n g the- q u a l i t y s t a n d a r d s f o r r e c e i v i n g waters and i 5 o The l e v e l of the r e g u l a t o r y body t o be d e c i d e d upon by P a r l i a m e n t . 116 that these standards be Inserted i n the P o l l u t i o n - c o n t r o l Act. The following l i s t of b e n e f i c i a l uses i s recommended to define water quality i n order of decreasing importance: 1. Public Water Supply 2. Pish Propagation 3. "Recreation and Bathing k. I n d u s t r i a l Water Supply 5- A g r i c u l t u r a l Use 6. Water Power 7. Navigation 8. Disposal of Sewage and I n d u s t r i a l Wastes. The administrative agency should be given the power to change or modify the above l i s t i n g , subject to the holding of. a public hearing open to. a l l residents of the areas affected. 2. That the b e n e f i c i a l uses of the receiving water as l i s t e d above be evaluated and that discharges into the receiving water be controlled so as to protect as many of the benefits as possible. The end r e s u l t only should be stipulated and not the method of achieving i t . An adequate monitoring system should be inserted into the Act. 3. That some d e f i n i t e and precise system of monitor-ing the receiving water be provided f o r i n the Act so as to be sure that the requirements of the q u a l i t y standards f o r each particular- area are met. 117 k. That some p r o v i s i o n be made f o r the s e t t i n g up o f r e g i o n a l b o a r d s , i n whose hands w i l l be t h e p r i m a r y c o n t r o l . The P r o v i n c i a l P o l l u t i o n - c o n t r o l Board s h o u l d o n l y e n t e r the p i c t u r e once th e r e g i o n a l b o a r d ' s d e c i s i o n has been a p p e a l e d . 5. That th e P r o v i n c i a l P o l l u t i o n - c o n t r o l Board be g i v e n f u l l a d m i n i s t r a t i v e power t o c a r r y out i t s r e s p o n s i -b i l i t i e s . That i s , t h e Board s h o u l d be g i v e n the power t o h o l d an i n q u i r y and f o r t h a t purpose- s h o u l d be g i v e n a l l the powers and j u r i s d i c t i o n o f a J u s t i c e o f the Peace under th e "Summary C o n v i c t i o n s Act-." 6 . That the P r o v i n c i a l P o l l u t i o n - c o n t r o l B oard be g i v e n the power t o r e q u i r e the k e e p i n g o f r e c o r d s and making of r e p o r t s , and be empowered t o e n t e r on p r o p e r t y a t r e a s o n -a b l e t i m e s f o r p u r p o s e s of i n s p e c t i o n and i n v e s t i g a t i o n . 7. That one member of the P r o v i n c i a l P o l l u t i o n -c o n t r o l Board be e x p e r i e n c e d i n the f i e l d of m u n i c i p a l government and one be- e x p e r i e n c e d i n the- f i e l d of i n d u s t r i a l a c t i v i t i e s . E i t h e r or b o t h of t h e s e members may be s e l e c t e d f r om i n t e r e s t e d groups and, t h e r e f o r e , need not be g o v e r n -ment employees. 118 BIBLIOGRAPHY A. BOOKS Kinney, C.S. Kinney on I r r i g a t i o n and Water Rights. San Francisco: Bender-Moss, 1 9 1 2 . B. PUBLICATIONS OF THE GOVERNMENT,. LEARNED SOCIETIES, AND OTHER ORGANIZATIONS Bowering, R.. "Existing and Probable Future Developments In •the Municipal Water Supply-Field-Within the Province," Transactions-- of the - Ninth B r i t i s h Columbia Natural  Resources Conference, pp. 228 - 2 3 1 . V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 6 . Bowering, R. -"Pollution Control i n B r i t i s h Columbia Today," Transactions of the Sixth B r i t i s h Columbia Natural  Resources Conference, pp. 1 8 3 - 1 9 9. V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 3 . B r i t i s h Columbia.Natural Resources Conference, The. B r i t i s h  Columbia Atlas of Resources. V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 6 . Caponera, Dante A. Water Laws i n I t a l y . Food and A g r i -culture Organization of the United Nations, Development Paper No. 2 2 , Agriculture. Rome: Food and Agriculture Organization of the United Nations, 1 9 5 3 . Council.of State Governments, The.. State Water L e g i s l a t i o n , 19$$. A Report Prepared by the Council of State Governments. Chicago: The Council of State Governments, December, 19$$. Farrow, R.C- "The Problems of .Administrative Control of Water," Transactions of the- Third B r i t i s h Columbia  Natural Resources Conference, pp. 3 k - k r . V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 0 . Farrow, R.C. "The Problem of P o l l u t i o n as i t Affects Other Uses... of Water," Transactions of the Third B r i t i s h  Columbia National Resources Conference, pp. 62-65. V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 0 . 119 Gold F i e l d s Act of 1 8 5 9 (August 31, 1 8 5 9 ) . Greater Vancouver Sewerage and Drainage D i s t r i c t Act, B.C. Stat. ( 1 9 5 6 ) , c. 5 9 . Health Act, B.C. Consolidated Acts, 1 8 8 8 , c. 5 5 -Health Act, 1893, B.C. Stat. (1893), c. l 5 . Health Act .Amendment Act, 1 9 l 5 , B.C. Stat. (March 6, , 1 9 1 7 T 7 c 3 0 . Health Ordinance, 1 8 6 9 , B. C. Ordinances- 1 8 . 6 8 - I 8 6 9 . Hutchins, Wells A. Selected Problems i n the Law of Water  Rights i n the West. United States Department of Agriculture, Miscellaneous Publication Wo. kl8.. Washington: United States Government P r i n t i n g Office, 19k2. Hut china, Wells A-., and others. Desirable P r i n c i p l e s of  State Water L e g i s l a t i o n . F i n a l Report of Committee Appointed Pursuant to Resolution No. 1 3 , 1 1 t h Annual Convention, 1 9 k 2 . Washington: National Reclamation Association. Hyde, Charles Gilman, John Oliver and A. M. Rawn (Chairman). Sewerage and Drainage of the Greater Vancouver Area,. B r i t i s h Columbia. A Report to the Chairman and Members of the Vancouver and D i s t r i c t s Joint Sewerage and Drainage Board. Vancouver: Vancouver and D i s t r i c t s Joint Sewerage and Drainage Board, September 16 , . 1 9 5 3 ' . Ker, W.A. "Exi s t i n g and Probable Future Developments i n Water.Supply f o r I r r i g a t i o n Within the Province," Transactions of the Ninth B r i t i s h Columbia Natural  Resources Conference, pp. 232-236. V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 6 . Larkin, - P;. A. "Summary of Po l l u t i o n Panel," Transactions  of- the Sixth B r i t i s h Columbia Natural Resources  Conference,. pp. 199 - 2 0 1 . V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 3 -Leach, T.A.J. " P r a c t i c a l Problems of Water P o l l u t i o n , " Transactions of the Sixth B r i t i s h Columbia Natural  Resources Conference, pp. 169-183• V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 3 . 1 2 0 MacLean, H. Alan. " H i s t o r i c Development of Water L e g i s l a t i o n i n B r i t i s h Columbia. ," - Transactions' of the Eighth B r i t i s h  Columbia Natural Resources Conference, pp. 21+3-21+7. "Victoria: The B r i t i s h Columbia Natural Resources Conference-, 1 9 5 5 . Pollution-control Act, B.C. Stat. ( 1 9 5 6 ) , c. 3 6 . Public Health Service. Suggested State Water P o l l u t i o n Control Act and Explanatory Statement. An Investigation Prepared by the Federal Security Agency of the D i v i s i o n of Water P o l l u t i o n Control of the Public Health Service, Publication No.. 1+9. Washington: Public- Health Service, October, 1 9 5 0 . P u r c e l l , P.R. "How. the Lives of Individuals and of the Public Are Affected by the Degree of Development of the Water Resources of the Province," Transactions of  the Eighth B r i t i s h Columbia Natural Resources Conference', pp. 21+7-255. V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1 9 5 5 . Purcell,-P.R. "Progress and P o l l u t i o n , " Transactions of the Sixth B r i t i s h Columbia Natural Res purees Conference,. pp. 1 6 2 - 1 6 9. V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference.,. 1 9 5 3 . Regulations Governing the Construction, Equipment and Management of Slaughter-houses, C l 9 0 5 ) , B.C. Gazette, J u l y 6 , 1 9 0 5 7 pp. 11+73 and ll)-7l+. Sanitary Drainage Companies Act, 1901+, B.C. Stat. (February 1 0 , 1901+) , c. 1 6 . Sanitary Regulation's, 1 8 9 2 , Se-ssional Papers of the Province of B r i t i s h Columbia, 1 & 9 3 , Third Session, Sixth Par-liament, pp. 265-268. Sanitary Regulations, 1 8 9 6 , Sessional Papers of the Province of B r i t i s h Columbia, 1 8 9 7 , Third Session, Seventh Parliament, pp. v i i i - i x . Sanitary Regulations, 1917, (July 3 1 , 1917). Sanitary Regulations governing Watersheds, 1926,- (October 1 3 , 1 9 2 6 ) # Sewerage Act, 1910, B.C. Stat. (March 10,1910), c. 1+3. Sewerage and Drainage of the Greater Vancouver Area, B r i t i s h Columbia. 1 2 1 Special Advisory Committee on Water Pollution-. National • .-. -Resources Committee, Water P o l l u t i o n i n the United States. Washington: United States Government Prin t i n g O f f i c e , 1939. Vancouver and D i s t r i c t s Joint Sewerage and Drainage Act, B.C.- Stat. (March k, 1 9 1 k ) , c. 7 9 . Water Act, 1 9 0 9 , B.C. Stat., c. k 8 . Water Act, R.S.B.C. ( I 9 k 8 ) , c. 36-1. Watts v. Spencer, 5 l Oreg. 2 6 2 , 9 k Pac. 3 9 ( 1 9 0 8 ) . Williams., Milo B. Water Laws i n the United States of  America. A g r i c u l t u r a l Development Paper No. 2 , . Washington: Food and Agriculture Organization of the-United Nations, 1 9 5 0 . C. PERIODICALS "A Commendable P o l l u t i o n Law," Engineering News-Record (July 1 2 , 1 9 5 6 ) , 1 2 8 . " Aandahl, Fred G. "The- Nation's Water Resources," Journal American Water Works Association, Vol. k 8 , No"! 8" (August, 19 ^ 6 ) , 931-91+X ~ "Alberta Resists Attempts to Force P o l l u t i o n Control," Engineering News-Record (A p r i l 1 1 , 1 9 5 5 ) , 8 3 . Bergen, Stephen W., and others. "State Water Resources L e g i s l a t i o n i n 1 9 5 5 , " Panel Discussion, Journal American Water Works Association, Vol. k-7, No. 9 (September, 1 9 5 5 ) , 8 k 5 - 8 5 7 • Hanson, Ross, and Herbert E. Hudson, J r . "Trends i n Residential Water Use," Journal American Water Works  Association, Vol. k 8 , No. 1 1 (November., 1 9 5 6 ) , 1 3 k 7 - 1 3 5 8 . Hazen, Richard, and others. "Basic Water Use Doctrines and State Water Control Agencies," Journal American Water  Works Association, Vol. k 2 , No. 8 (August,. 1 9 5 0 ) , 7 ^ 7 7 3 . 1 2 2 " L e g i s l a t i v e Control i n Radioactive Waste Disposal," Water and Sewage Works, Vol. 1 0 3 , No. 1 2 (December 1 9 5 6 ) . , " T I + 1 . MacDonald., J.C. . "Water L e g i s l a t i o n i n B r i t i s h Columbia," Journal American Water Works Association, Vol. 1+0, No. 2 (February, 191+8.), 159-16"!+"! Mc Naught on-, General A.G.L. "Problems of Development of International Rivers on the P a c i f i c Watershed of Canada and the United States," The Engineering Journal, Vol. 3 9 (November, 1 9 5 6 ) , 11+93-1^03. "New P o l l u t i o n Control Formula," Engineering News-Record (May 1 0 , 1956),. 28. "Pol l u t i o n Battle," Engineering News-Record (June ll+, 1 9 5 6 ) , 2 8 . " P o l l u t i o n B i l l Now Law - Aid Included," Engineering News-Record (July 5 , 1 9 5 6 ) , 28. " P o l l u t i o n Control Stimulated," Engineering News-Record (May 2 k , 1 9 5 6 ) , 1 2 k . "PHS Draws New Picture of P o l l u t i o n Problems," Engineering  News-Record (September 2 2 , 1 9 5 5 ) , 29 and 3 0 . President's Water Resources Policy Commission. "A Water Polic y f o r the .American People," Journal American  Water Works-Association, Vol. i+3, No. 2 (February, 1 9 5 1 ) , 9 1 - 1 1 2 . "States Should' Control P o l l u t i o n , " Engineering News-Record (June 2 , 1 9 5 5 ) , 1 8 0 . D. NEWSPAPERS The Vancouver Sun, October 5 , 1 9 5 6 . The Vancouver Snn, October 1 0 , 1 9 5 6 . APPENDIX I. (a) Questionnaire on Basic Water Us Doctrines and P r o v i n c i a l Water Control Agencies i n Canada. (b) Completed Sample Questionnaire. A P P E N D I X I (A). Vernon, B. C., August 6, 1956. Dear I would appreciate i t i f you would complete the following form and return i t to me. I plan to use t h i s information i n : connection with my thesis about which I have previously corres-ponded with you. Enclosed i s a sample completed form. Province Basic Law Surface Water_ Ground Water Province Authorities Surface Water Ground Water Dams, Diversion Works, etc._ Quality and Treatment - Public Supplies Quality and Treatment - I n d u s t r i a l Drinking Water Stream P o l l u t i o n Control Sewage Disposal - Technical I n d u s t r i a l Wastes - Technical^ I n t e r p r o v i n c i a l A c t i v i t i e s Notes Thank you very much fo r your cooperation. Yours very t r u l y , Melvin J . Shelley, \ \ A P P E N D I X 1(B). COMPLETED SAMPLE FORM S ta te ; State of Washington! Basic Law Surface Water/ Appropriation Doctrine. Ground Water Reasonable Use Rule State Authorities Surface Water State Supervisor of Hydraulics  Ground "Water State Supervisor of Hydraulics  Dams, Diversion Works, etc. State Supervisor of Hydraulics Quality and Treatment" - Public Supplies Department of Health  Quality and Treatment - I n d u s t r i a l Drinking Water Department of Health (1)  Stream P o l l u t i o n Control P o l l u t i o n Control Commission . Sewage Disposal - Technical P o l l u t i o n Control Commission ; I n d u s t r i a l Wastes - Technical P o l l u t i o n Control Commission' Interstate A c t i v i t i e s None Notes (1) Smaller i n d u s t r i a l supplies are under supervision of l o c a l health departments. 126 APPENDIX I I . Summary of Basic Water Use Doctrines and P r o v i n c i a l Water Control Agencies i n C ariad a. Tabulated from the returns of the questionnaire a copy of which is- i l l u s t r a t e d i n Appendix I. 127 APPENDIX I I I . Summary of Basic: Water Use Doctrines and State-Water Control Agencies In the United States of America.* "Pamphlet e n t i t l e d "Summary of Basic Water Use Doctrines and State Water Control Agencies," of Richard H'azen and others, "Basic Water Use Doctrines-and State Water. Control Agencies," Journal American Water Works  Association. Vol. ii2, no. 8 (August, 1950), pp. 762-773-129 13.0 APPENDIX IV. Map- I l l u s t r a t i n g B r i t i s h Columbia's Streamflow Y i e l d and Regime* *Map No. 8 of-the B r i t i s h Columbia Natural Resources Conference, Bjritish Colombia Atlas of Resources, ( V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 19i?b;, p. 18 . 131 13? APPENDIX V. Map I l l u s t r a t i n g B r i t i s h Columbia's Water Consumption, Storage F a c i l i t i e s and Flood Control Areas.'"" """Map No.. 33 of the.. B r i t i s h . Columbia. Natural Resources Conference, B r i t i s h Columbia Atlas of Resources ( V i c t o r i a : The B r i t i s h Columbia Natural Resources Conference, 1956),. p. 68. 133 APPENDIX VI. An Act respecting the Diversion and Use of Water, R.S.B.C. (l9kQ), chapter 361 135 APPENDIX VII. Tabulation of the P r i n c i p a l Waters Flowing Across the Boundary Between B r i t i s h Columbia and the United States of America.""' "'"Adopted from Table I, " P a c i f i c Watershed of North America. The P r i n c i p a l Waters Flowing Across the Boundary Between Canada and the United States," of General A.G.L. McNaughtort, "Problems of Development of International Rivers' on- the' P a c i f i c Watershed of Canada and the United States," The Engineering Journal', Volume 3 9 (November, 1 9 5 6 ) , l k 9 6 T P a c i f i c Watershed cf North America.. The P r i n c i p a l Waters Plowing Across the Boundary Between Canada and .United States . Section River D i r e c t i o n of Crossing Elev. Plow(Recorded) Mean Period of of • Plow Boundary above Mean Annual of Watershed, Tributary Prom To at/near M.S.L. Min. Max. Annual 1000 Record Feet C.F.S. e.p.s. C.P.S. Acre-feet .Years* 1 1 Flathead B.C. Montana 4 Flathead, B.C. 3970 65 14,600 1,030 846(a) 20 2 Kootenay B.C. Montana 3 Newgate, B.C. 2309 "994 98,200 9,570 6,925 • 18 3 Kootenay - Idaho B. C. 5 Port H i l l , . 1743 1,380 125,000 14,560 10 „54o 30 - 4 Pend Idaho. Southern boundary d' O r e i l i e Wash. B.C. 5 Nelway., B.C. 1720 . 2,500 171,000 25,580 18,520 36 . of B r i t i s h Colunr_ 5 Columbia B.C. Wash T r a i l , B.C. 1292 21,200 548,600 90,.560 65,560 10, b i a with States 6 Ke t t l e of Mont aria.,..Idaho River B.C. Wash. Midway, B.C., lk66 60(b) , 35,000 2,692 1,949 19 and Washington 7 K e t t l e R. Wash. B.C. 6 Grand Porks 8 K e t t l e ,R... B.C. Wash. 7 . £ > . O . Cascade, B.C. 1890 lk • 21,000 1,38k 1,002 .20 9 Okanagan B.C. Wash. Osoyoos, B.C 913 k.6 2,680 470 340 34 (c) .10 SImilkaraeen B.C. Wash. Keremeos,B.C. 1180 120 38,100 2,054 1,487 20 (d) 11 Skagit . B.C. Wash., , . . . 1583 81 ! 10. 200 ( e) 913 661 22 1 Unuk B.C. Alaska R e v i l l a g i g e -Western boundary do I s. 300(1) l,200(j) of B r i t i s h Colum- 2 Stikine B.C. Alaska Wrahgell, b i a with Alaska Alaska 5o (i) 28,000(j) Panhandle 3 Whiting B.C. Alaska Admiralty i5o(i) Is., Alaska , 2,200(j) Streams In order k Taku(f) B. C. Alaska Juneau, Alaska 40 (i) 1020 34,600 11,000(a) 2 (H) south to north 5 Alsec .. . B.C. Alaska Dry Bay 250(1) U,700(;1) "Terminal year i s 1948 unless otherwise noted. (a) Records generally ava i l a b l e during Ice fre e periods only. (b) Minimum recorded at Cascade, B.C. (c) Discharge records from Okanagan Palls,, B.C. (d) Discharge records from Nighthawk, Wash. (e) Maximum recorded i n 1950. (f) Route of d i v e r s i o n of Yukon River through A t l i n Lake --proposed by Frobisher. (g) •»««• (h) Terminal year 1954. (i) Elevations estimated from International Boundary Commission , Reports. . " (j) Annual run-offs estimated on the basis of drainage area and discharge, per square mile. / APPENDIX VIII.. An Act to Control the P o l l u t i o n of Waters of the Province, B.C. Statute (191+8) , chapter 36. A P P E N D I X ~W\ 1956 POLLUTION-CONTROL. CHAP. 36 CHAPTER 36. An Act to control the Pollution.of Waters of the Province. P'tamble. Short title. Interpretation. [Assented to 2nd March, 1956.] WHEREAS it is deemed in the public interest to maintain and ensure the purity of all waters of the Province consistent with public health and the public enjoyment thereof, the propagation and protection of wildlife, birds, game, and other aquatic life, and the industrial development of the Province: And whereas it is deemed expedient to require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the Province: Now, therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— 1. This Act may be cited as the " Pollution-control Act." 2. In this Act, unless the context otherwise requires:— " Board " means the Pollution-control Board established under this Act: " Effluent" means anything flowing in or out of a drain, sewer, sewage-disposal system or works: " Minister " means the Minister of Municipal Affairs: " Municipality " means a village, town, city, or district municipality constituted under any Act, as well as an improvement district, a dyking, sewerage, and drainage district, and any special district constituted under any Act: " Pollution " means anything done, or any result or condition exist-ing, created, or likely to be created, affecting land or water which, in the opinion of the Board, is detrimental to health, sanitation, or the public interest: ' 139 CHAP. 3 6 P O L L U T I O N - C O N T R O L . 4-5 E L I Z . 2 Pollution-control Board. Procedure. " Prescribed " means prescribed by this Act or the regulations: " Waters" includes all streams, lakes, ponds, inland waters, salt waters, watercourses, and all other surface and ground waters within the jurisdiction of the Province: " Works " includes drains, ditches, sewers, intercepting sewers, sew-age treatment and disposal plants and works, pumping-stations, and other works necessary thereto, and outlets for carrying off, treating, and disposing of drainage and sewage, and any other and all works, structures, lands, and conveniences included and necessary to the completion of a sewerage or drainage system. 3. (1) There shall be a board to be known as the " Pollution-control Board," which shall consist of a Chairman and such other members as the Lieutenant-Governor in Council may from time to time determine. (2) The members shall be appointed by the Lieutenant-Governor in Council for such term or terms as the Lieutenant-Governor in Council may determine. (3) The Board may determine its own procedure and may elect an Acting-Chairman in the absence of the Chairman. Powers and duties of Board. 4. The Board shall have the following powers and duties:— (a) To determine what qualities and properties of water shall constitute a polluted condition: (b) To prescribe standards regarding the quality and character of the effluent which may be discharged into any of the waters within the area or areas under the jurisdiction of the Board: (c) To conduct tests and surveys to determine the extent of pollu-tion of any waters within the area or areas under the jurisdic-tion of the Board: (d) To examine into all existing or proposed means for the disposal * of sewage or other waste materials, or both, and to approve the plans and specifications for such works as are deemed necessary to prevent pollution of the waters of the area or areas: (c) To notify all persons who discharge effluent into the said waters when the effluent fails to meet the prescribed standards: (/) To order any person after six months from date of notification, or such longer period as may be determined by the Board, to increase the degree of treatment of the effluent or to alter the manner or point of discharge of the effluent being discharged by such person to bring the effluent up to the prescribed standards: (g) To order any person who fails to comply with an order issued under clause (/) to cease discharging effluent into any waters in the area as and from a day and time specified in the order. 1956 POLLUTION-CONTROL. CHAP. 3 6 Penalty. Appeal to Lieut.-Governor in Council. Prohibition. Engineers, etc., of Department of Health and Welfare. Remuneration of Board. Expenses of • administration. 5. Every person is guilty of an offence against this Act and liable, on summary conviction, to a penalty not exceeding two hundred and fifty dollars and, in default of payment, to imprisonment not exceeding twelve months who wilfully contravenes any provision of this Act or any order of the Board, or neglects to do any act or thing required to be done by the Board under this Act or under any order of the Board. 6. An appeal from any order, determination, or decision of the Board shall lie to the Lieutenant-Governor in Council, whose decision thereon shall be final and binding. Such appeal must be made within thirty days from the date of any order, determination, or decision of the Board. 7. No person shall discharge sewage or other waste materials into the waters of the area or areas under the jurisdiction of the Board without the permission of the Board. Such permission may be in the form of a permit, which may prescribe the degree of treatment of the effluent as well as the location of the point of discharge into the waters Of the area . and the manner of the discharge as a condition of the permission. 8. There may be made available to the Board by the Health Branch of the Department of Health and Welfare such engineers, inspectors, technicians, officers, clerks, and employees as are necessary for the administration of this Act. " 9. The members of the Board shall be paid such remuneration as may be fixed by the Lieutenant-Governor in Council and such actual expenses as may be incurred by them in the discharge of their duties; 10. Any moneys required for the administration of this Act or for the carrying-out of the provisions of this Act shall, in the absence of any vote of the Legislative Assembly available therefor, be paid out of the Consolidated Revenue Fund. '. admin?strahtfoned w " h 1 1 T h e M i n i s t e r s h a 1 1 b e charged with the administration of this Act. Application. ^2. Notwithstanding the provisions of any other Act, the provisions of this Act shall apply to:— (a) All the areas of land, contained within the boundaries of a municipality, draining, by natural or artificial means, into the Fraser River or its tributaries from the Village of Hope to the Strait of Georgia, or into Boundary Bay, or into the ' ' area of the Strait of Georgia contained within a line drawn from the International Boundary-line at longitude 123° 15' to Halfmoon Bay, or into Burrard Inlet: (b) Any area designated by Order of the Lieutenant-Governor in Council. 141 POLLUTION-CONTROL. 4-5 ELIZ. 2 13. The provisions of this Act shall not be deemed contrary to the provisions of the " Health Act," the " Municipal Act," or the " Water Act," but shall be considered an extension of such Acts for the public interest. 14. For the purpose of carrying into effect the provisions of this Act according to their true intent or of supplying any deficiency therein, the Lieutenant-Governor in Council may make such regulations not inconsistent with the spirit of this Act as are deemed necessary or advisable. VICTORIA, B.C. Printed by H O N M C D I A R M I D , Printer to the Queen's Most Excellent Majesty 1956 •-14.0 APPENDIX IX. Report on Water P o l l u t i o n Control i n B r i t i s h Columbia Today by R. Boweririg, Director, D i v i s i o n of Public Health Engineering. Copy of R. Bowering, " P o l l u t i o n Control In B r i t i s h Columbia Today," Transactions of the S i x t h ' B r i t i s h Columbia  Natural Resources Conference ( V i c t o r i a : • The B r i t i s h Columbia Natural Resources Conference, 195>3), pp. 1 8 3 - 1 9 0 . The a r t i c l e has been amended by the writer with the per-mission of the author by adding the recently passed l e g i s -l a t i o n so as to bring the a r t i c l e up to date.' POLLUTION CONTROL IN BRITISH COLUMBIA TODAY R. Bowering Director, D i v i s i o n of Public Health Engineering, Dept. of Health and Welfare EXISTING LEGISLATION There i s considerable l e g i s l a t i o n on the- statute books of both the Federal Government and the P r o v i n c i a l Government f o r the Control of p o l l u t i o n i n B r i t i s h Columbia. In the case of the "Health Act" of B r i t i s h Columbia, there has been l e g i s l a t i o n f o r the control of pollution- since the l870's and the "Federal F i s h e r i e s Act" has equally long termed standing. A l l l e g i s l a t i o n , including that r e f e r r i n g to pol-l u t i o n , i s enacted with some d e f i n i t e object i n view. The l e g i s l a t i o n now exis t i n g has been enacted giving various government agencies authority to enforce p o l l u t i o n control requirements i n order to achieve d e f i n i t e objectives. In the case of the "Health Act" the objective i s the preven-ti o n of nuisances and the protection of the public health. In the Case of the "Fisheries Act," the objective i s the prevention of p o l l u t i o n that would harm commercial and sport f i s h e r i e s resources. There- i s no l e g i s l a t i o n on the statute books which deals with p o l l u t i o n i n a l l i t s aspects i n a broad or-general way. The following i s a l i s t of government agencies which have l e g i s l a t i o n dealing with p o l l u t i o n control and the l e g i s l a t i o n which gives an authority to act: TABLE I Government-Agencies Having P o l l u t i o n Control Authority Government Agency L e g i s l a t i v e Authority MUNICIPAL "Health Act" of B.C. Local Boards of Health Sanitary Regulations of B.C. (Cont'd, on page lk2) Ik2 TABLE I (Continued) Government Agency PROVINCIAL Health Branch Department of Health and Welfare Water Rights Branch, Depart-ment of Lands and For-ests . Park Service, Department of Land and Forests. F i s h e r i e s Department. Game- Commission, Attorney-General's Department. FEDERAL Department of Fisheries'. Department of Resources and Development National Harbours Board. Department of Transport. Department of Public Works. Local Port Authorities, •• -. .Department, .of- Transport-. . Le g i s l a t i v e Authority "Municipal Act" (Section -58). "Health Act" of B.C. Sanitary Regulations-. Watershed Regulations "Water Act." Park Regulations. Use Federal l e g i s l a t i o n . Use Federal l e g i s l a t i o n -(Fisheries Act). (Migratory Birds' Regulations Act). "Fisheries Act." "Migratory Birds Regulations Act." National Harbours Board By-laws. "Navigable Waters Protection Act." "Canada Shipping Act." "Navigable Waters Protection Act," The pertinent sections of l e g i s l a t i o n , as l i s t e d i n Table I, are given i n Appendix'A, page 153. EFFECTIVENESS OF PRESENT LEGISLATION Considering the objectives f o r which they have been enacted, the various items of l e g i s l a t i o n have- had consider-able e f f e c t on the prevention and control of certai n types of p o l l u t i o n . However, since the control has been -carried out by separate government agencies, each with i t s own interes t to consider, sometimes co-operating with other agencies and sometimes not, the existing l e g i s l a t i o n prob-ably has not been as e f f e c t i v e i n c o n t r o l l i n g ' p o l l u t i o n i n a l l i t s aspects as i t might have been. 11+3 Moreover, the interest of the various agencies i n p o l l u t i o n has become apparent at d i f f e r e n t stages of the growth of the province. The f i r s t department to take an interest in. p o l l u t i o n , and the one that probably has done most work on p o l l u t i o n i s the P r o v i n c i a l Health Department. Le g i s l a t i o n dealing with p o l l u t i o n has been i n ef f e c t since the l870's. The reason for t h i s i s quite clear, since even from the province's e a r l i e s t days, an occurrence of an outbreak of disease traceable to polluted drinking water would be cause f o r general alarm. Also the nuisance caused by the disposal of f i s h o f f a l into some of the ri v e r s and bays from early-day f i s h canneries caused a clamour f o r action on the part of the Health Department before the turn of the century. This nuisance has now been abated by the industry as f i s h o f f a l i s now u t i l i z e d i n the manufacture of valuable by-products. In the case of some of the agencies whose entry into the p o l l u t i o n control picture i s more recent, the Immediate effects of p o l l u t i o n were not so apparent. For example, the loss of a spawning stream f o r sports f i s h i n the early days of the province would not cause any general alarm i n a province so b o u n t i f u l l y provided with sport f i s h i n g streams. However, as the p o l l u t i o n load builds up, owing to the greater habitation and greater i n d u s t r i a l i z a t i o n of the province, and as the population increases, increasing the demand f o r sport f i s h , the accumulative small losses due to p o l l u t i o n become greater and assume more importance. It i s probable that the interests of the agencies which have come into the p o l l u t i o n control picture at a l a t e r date w i l l become greater and greater as time goes by. Also, I t Is probable that persons and corporations not now interested In p o l l u t i o n control w i l l f i n d that they have a latent i n t -erest which w i l l develop at seme time i n the future. EFFECTIVENESS OF LEGISLATION UNDER THE "HEALTH ACT','. The "Health Act" was enacted with the sole object-i n view of protecting the public health, with p a r t i c u l a r reference to the control of the communicable diseases. Since there have been no major and very few, minor out-breaks of disease i n the province caused by p o l l u t i o n i n recent years, i t may be said that the present l e g i s l a t i o n has been e f f e c t i v e i n accomplishing i t s main object. Among the hazards to public health that may be caused by p o l l u t i o n are the following: 1. P o l l u t i o n of domestic water supplies with sewage. 2. P o l l u t i o n of domestic water supplies by i n d u s t r i a l waste having toxic material present. 3. Contamination of s h e l l f i s h growing areas, ki Contamination of bathing places. 5 . Contamination of c e r t a i n a g r i c u l t u r a l products such as leafy vegetables by the use of contaminated = water f o r sprinkler I r r i g a t i o n . 6. Impairment of aesthetic values. Of the above the f i r s t i s the most important. P o l -l u t i o n of a public water supply may be- caused by a very minimal p o l l u t i o n such as the deposit of excreta from one person on a watershed or i t may be p o l l u t i o n of a large stream from a sewerage system. As a means of control of t h i s type of p o l l u t i o n f o r the protection of domestic water supplies, several methods of control are used, including the following: 1. Approval of plans of public water systems and• inspection of public water supply systems f o r sanitary hazards.. 2. Approval of plans f o r sewerage systems. 3. Approval of plans of private'sewage disposal systems usually on l o c a l Health Department l e v e l . k. Setting up of watershed areas i n s p e c i f i c cases, where f e a s i b l e , which permits l o c a l water author-i t y or l o c a l health authority to demand extra-ordinary standards of sanitation, including medical testing of a l l persons entering watersheds. 5>. Constant sampling and te s t i n g of l o c a l water supplies, 6. Authority f o r prevention of p o l l u t i o n by any waste, provided that such p o l l u t i o n would be a health hazard. The "Health Act" makes i t mandatory that a l l plans and sp e c i f i c a t i o n s of public sewerage systems be submitted and approved by the Minister of Health before construction may commence. Where money i s to be borrowed by bylaw, the bylaw cannot be submitted to the electors u n t i l such approval has been obtained. The Minister of.Healthfcas the r i g h t to demand alterations i n plans if', i t i s deemed necessary. Also the Minister has the right to demand improved sewage di s -posal f a c i l i t i e s i f i t i s deemed necessary. This l e g i s -l a t i o n has had the effect of providing better sewerage systems i n the province than would have been the case other-wise. About $3% of the people of B r i t i s h Columbia are served by public sewerage systems. Most of the sewage i s discharged i n the raw state. The decision by the Department of Health as to the degree of treatment required has been mad.e i n the l i g h t of each s p e c i a l circumstance. Sewage-treatment has not "been required i n most cases, p a r t i c u l a r l y where .the sewage was to be discharged into sea water or into t i d a l estuaries. Also, sewage treatment has not been required on some of the larger- r i v e r s such as the Columbia. Table II gives a l i s t of the sewered communities i n the province and the type of treatment, i f any. Also the accomp-anying map""" shows diagrammatic a l l y the quantity and qu a l i t y of sewage discharged throughout the province. A study of the above-mentioned table and map will, show that most of the sewage i n B r i t i s h Columbia.is not treated. Some of the approvals f o r discharge of raw sew-age were.given i n the e a r l i e r days of the province before the effects of sewage upon shellfish-growing areas and bathing places were as apparent as they are today. In no case does the present method of sewage disposal i n j u r i o u s l y a f f e c t a public water supply system. Some sewage has been permitted to discharge raw into r i v e r s suitable f o r water supply where d i l u t i o n and natural f a c i l i t i e s f o r recovery are good. Although none of these are known to. have led to a disease outbreak, because of the growth of towns with increasing loads of sewage and because of large demands of water f o r i r r i g a t i o n , domestic use. and other uses, some of these places w i l l have to b u i l d sewage treatment plants In the near future. In addition, some of the places now having primary treatment only w i l l have- to provide secondary treatment as well. In some cases the present means of sewage disposal has led to the abandonment of bathing places and s h e l l f i s h -producing areas i n order to protect the pu b l i c health. In these: l a t t e r instances, of course, another resource has been l o s t because of p o l l u t i o n . About 1+7% of the population of B.C. are not served by sewers. This means that the control of private sewage disposal systems such as septic tanks and p r i v i e s is. extremely important. P o l l u t i o n from private sewage disposal systems i s not usually large In quantity and usu-a l l y does not a f f e c t the q u a l i t y of water from the point of view of water uses other than f o r domestic water supplies.. The P r o v i n c i a l Health Department provides, plans of septic tank sewage disposal systems to l o c a l health au t h o r i t i e s . Control of these Is i n the l o c a l Boards of Health. '""The wr i t e r has also enclosed i n t h i s Appendix f o r the b e n e f i t of the reader a photostatic, copy of the o r i g -i n a l map which was included with t h i s a r t i c l e . Ik6 147 In many cases hazards are present from the use of septic tanks i n urbanized areas where, because of s o i l conditions, septic tank effluent, cannot r e a d i l y be absorbed into the s o i l and nuisances i n roadside ditches e x i s t . These nuisances do. not play an important part i n the spread of disease, but they do affe c t aesthetic values. There i s no l e g i s l a t i o n now i n force- that makes i t mandatory f o r such urbanized areas to provide adequate sewage systems f o r thems elve. s. In short, the Health Department l e g i s l a t i o n has been ef f e c t i v e i n the -control of communicable diseases that could be caused by p o l l u t i o n . I t has had considerable effect i n preserving aesthetic values but i t has not been possible to preserve- a l l aesthetic values. In some cases the public health has had to be protected by cancelling the use of waters f o r other purposes. EFFECTIVENESS OF LEGISLATION UNDER THE "FISHERIES ACT." The "Fisheries Act" i s a Federal statute enacted f o r the purpose of protecting both the commercial and sport f i s h resources of Canada. In B r i t i s h Columbia the. Federal Department of Fi s h e r i e s i s responsible f o r the protection and regulation of marine and anadromous f i s h e s . The B.C. Game Commission i s responsible f o r perpetuation of non-t i d a l sport f i s h e r i e s and the P r o v i n c i a l F i s h e r i e s Depart-ment regulates non-tidal commercial f i s h e r i e s and marine s h e l l f i s h f i s h e r i e s . The general p r o v i s i o n of the "Fish-eries Act" with respect to p o l l u t i o n states that i t i s unlawful to pollu t e water with substances which are: dele-terious to f i s h . The types of p o l l u t i o n which have given cause f o r most concern to f i s h e r i e s agencies active i n B.C. are as follows: 1. Excessive quantities of organic ef f l u e n t s , which i n t h e i r decom p o s i t i o n remove so much oxygen from the water that f i s h and other- ••.aquatic l i f e can no longer survive. 2. I n d u s t r i a l wastes containing substances which either k i l l f i s h or the food upon which they feed. 3. Certain effluents such as mine t a i l i n g s , sawdust, cannery discharges or o i l wastes which may k i l l f i s h d i r e c t l y by i n t e r f e r r i n g with t h e i r r e s p i r a t i o n , or i n d i r e c t l y by s i l t i n g up the stream bottom and thus preventing the growth of food organisms and the successful spawning of f i s h . Ik8 The- Federal Department of F i s h e r i e s and the B.C. Game Commission have had considerable success i n preventing the p o l l u t i o n of lakes and streams,especially where the p o l l u t i n g agency was approached early i n the development stages of a proposed project. But i n many instances p o l l u t i o n has occurred because of ignorance of water users or because the economy of a project would have been pre-carious i f adequate p o l l u t i o n control measures were incor-porated i n the o r i g i n a l plans. Correction of these long-standing- abuses i s d i f f i c u l t and i n many cases involves unreasonable demands on the p o l l u t e r and i n consequence of these d i f f i c u l t i e s attempts to cure these situations have met with limited success. For p o l l u t i o n problems an ounce of prevention i n the early stages Is as e f f e c t i v e and f a r cheaper than a pound of correction l a t e r on. Recent amendments to the "Water Act" which have enabled Fisheries- agencies to keep abreast of a l l proposed water uses, i n t h e i r i n i t i a l stages have- provided an, extremely valuable t o o l f o r p o l l u t i o n c o n t r o l . EFFECTIVENESS OF LEGISLATION UNDER THE "MIGRATORY BIRDS REGULATION ACT" The "Migratory Birds Regulation Act" provides f o r the protection p a r t i c u l a r l y of"migratory water-fowl. However, the habits of migratory b i r d s i n general i s such that enforcement of the Act has many d i f f i c u l t i e s . In con-sequence there are few prosecutions under the regulations and they have-.doubtful value, as f a r as r e a l i z i n g t h e i r objective i s concerned. Fortunately, migratory water-fowl commonly inhabit the same waters as valuable sport or commercial f i s h e s , and t h e i r protection i s at l e a s t par-t i a l l y achieved by enforcement by f i s h e r i e s agencies of the provisions of the "Fisheries Act/" EFFECTIVENESS OF PARK REGULATIONS Certain P r o v i n c i a l Parks Regulations pertain to prevention of public health hazards and eyesores i n park areas-. . These regulations have been enforced with success and are probably adequate to prevent abuse of park p r i v i -leges. These regulations do not provide for-protection of f i s h , fowl or game animals i n parks.-EFFECTIVENESS OF LEGISLATION UNDER THE "WATER.ACT" Under the "Water Act," the Comptroller of Water Rights may issue a stop order to a water licensee where the licensee i s responsible for a p o l l u t i o n which i s detrimental to the use of the water by other licensees, or where i t i s detrimental to the p u b l i c i n t e r e s t . This, control lij-9 has not been used extensively i n B r i t i s h Columbia with the-exception of the control of discharge of sawdust into streams. I t could be used with good effect i n situations where p o l l u t i o n problems had reached an impasse. Some persons believe that the "Water Act" should be-amended to permit the Comptroller of Water Rights to licence persons to discharge certain types of pollutants into water. Other people f e e l that this granting of persons a right to pollute water by licence would he worse than the present method of allowing some types of pollutants to discharge into streams by sufferance and therefore possibly i n t e r f e r i n g with the government's ri g h t to request abatement -of the p o l l u t i o n at some l a t e r date; EFFECTIVENESS OF LEGISLATION UNDER THE "POLLUTION-CONTROL ACT"* Since this l e g i s l a t i o n was only assented to on March 2 , 1956, i t i s impossible to state i t s effectiveness-; rather the writer w i l l discuss i t s possible effectiveness. The main purpose of thi s Act, as stated i n i t s pre-amble, i s t-O: maintain and ensure the p u r i t y of a l l waters of the Province by fo r c i n g industries and others to use a l l known available and reasonable methods f o r the prevention and control o f p o l l u t i o n of these waters. The Act sets up a Pollution-control Board consisting of a chairman and any number o f members,, a l l . to be appointed by the Lieutenant-Governor i n Council. The Board i s to be given broad powers. These' powers include the determination of the q u a l i t i e s and properties of water that constitute a polluted condition; the setting of q u a l i t y standards f o r effluent to be d i s -charged,, and the serving of n o t i f i c a t i o n to v i o l a t o r s of such v i o l a t i o n ; the. conduct of tests and surveys to deter-mine the extent of p o l l u t i o n ; the: examination of existing works; and the approval of plans and spe c i f i c a t i o n s f o r p o l l u t i o n control works.. The Board may order any v i o l a t o r to increase.the degree of treatment a f t e r f i r s t serving n o t i f i c a t i o n of v i o l a t i o n , and i f no-action i s taken, the Board may order the v i o l a t o r to cease discharging the. effluent into any waters i n the area. As usual, i n order to enforce t h e i r regulations, the Act imposes a penalty not exceeding two: hundred d o l l a r s f o r anyone contravening any provision of the Act. This- insert has been made by the writer into t h i s report so as to bring i t up to date with the recent passage of the "Pollution-control Act, 1956-..11 This Act provides for. appeals to: any of the Board's decisions to he made d i r e c t l y to the Lieutenant-Governor i n Council whose decision is. to be binding. The Act. further provides that a person must receive a permit to discharge sewage or other waste materials into- any of the waters under the j u r i s d i c t i o n of the Board. F i n a l l y , the : provisions of this Act are to apply to any area designated by Order of the Lieutenant-Governor i n Council. It appears that this: Act should be very e f f e c t i v e i n c o n t r o l l i n g p o l l u t i o n of .British Columbia waters. I t i s noted that the Act does not contradict provisions of the "Health Act," "Municipal Act" or the "Water: Act," but rather i s to be considered an extension of these Acts f o r the public i n t e r e s t . This Act then adds to the e x i s t i n g l e g i s l a t i o n and i n e f f e c t makes i t much more, e f f e c t i v e . The Lieutenant-Governor In Council may bring about any regulations that he may deem necessary f o r carrying out the provisions or f o r supplying any deficiency i n the Act. Thus, the "Pollution-control Act" seems to be very progres-sive and i t appears to have s u f f i c i e n t "teeth," to make I t very e f f e c t i v e i n c o n t r o l l i n g the ever-increasing.pollution of the waters of the Province. POLLUTION FROM INDUSTRIAL WASTE This, paper w i l l not deal i n any d e t a i l with p o l l u t i o n caused by i n d u s t r i a l wastes. However, there are a number of Instances where- p o l l u t i o n from i n d u s t r i a l wastes, a f f e c t -ing the public health, f i s h e r i e s and other in t e r e s t s have been Corrected. EXAMPLES OF POLLUTION IN BRITISH COLUMBIA There are a number of examples, of p o l l u t i o n i n B.C. Some of these are- of public health significance and some of them are of significance to other water uses. The following are- some examples: 1. Of public health s i g n i f i c a n c e : In any Inhabited area, some minimal p o l l u t i o n of streams w i l l occur i n spite of a l l methods of p o l l u t i o n control. The st o o l of one typhoid c a r r i e r depos-ited inuor near- a stream can contaminate the stream with typhoid bacteria that may cause an outbreak of typhoid i n persons using the water at a point downstream, even though to a l l appearances the water i s good. There are several instances on record where th i s has occurred. The reserving of watersheds f o r sanitary purposes such as has been done i n the Case of the Greater Vancouver Water D i s t r i c t 15J1 Watershed, i s .done to prevent t h i s type of contamination. This: obviously cannot be done fo r a l l watersheds and as a r e s u l t i t i s impos-sible- to control t h i s type of contamination. As an alt e r n a t i v e , public water supplies taken from surface sources should be given some b a c t e r i c i d a l treatment. An example: where- water-shed sanitation control i s not p r a c t i c a l i s f o r the supply of the water at Kamloops. Here the water i s taken from the- South Thompson River, where prevention of a l l contamination i s impossible. Here the public water supply i s chlorinated as a b a c t e r i c i d a l treatment. 2. Another example of p o l l u t i o n of public health importance which i s also of f i s h e r i e s importance i s the discharge of sewage into oyster-producing areas. It i s i l l e g a l to take s h e l l f i s h from Vancouver harbour, frmm V i c t o r i a harbour, and from NanaimO. harbour, and from portions of Ladysmith harbour because, of sewage contamina-tio n . This, of course, has lessened a f i s h e r i e s resource f o r the protection of the public health. 3. Another example of p o l l u t i o n which i s of public health significance- and also of significance with regard to recreational f a c i l i t i e s , i s the p o l l u t i o n of bathing areas by sewage. Portions of Nanaimo harbour, V i c t o r i a harbour, and several others which were once: used f o r bathing cannot now be used.- The contamination of the beaches i n the Greater Vancouver area i s becoming more '•and more a problem. In these instances, the public health has been protected by the abandon-ment of a recreational f a c i l i t y . k. Another example of p o l l u t i o n i s one that a f f e c t s f i s h e r i e s . In the lower Fraser Valley there are a number of food processing plants which discharge f a i r l y large volumes of i n d u s t r i a l wastes into small streams. In several instances t h i s waste has caused a serious deterioration i n the value of these streams, f o r spawning of sport and commercial f i s h . In these p a r t i c u l a r cases there i s no hazard to the public health except f o r some deterioration i n the aesthetic value of the stream. 5>. In at le a s t one case i n the Kootenay d i s t r i c t , the discharge of mine t a i l i n g s into a stream causes some injury to a hydro-electric plant. In t h i s instance the p o l l u t i o n i s of no public 1*2 health. significance: but i t i s of significance to. a user of water f o r power purposes. 6. In another case i n the Kootenay d i s t r i c t the occasional discharge of mine t a i l i n g s into a stream i s a hazard to a public- water; supply. While these t a i l i n g s dp not cause any communicable disease-, they do injure the: p o t a b i l i t y of the water. CONCLUSION The p o l l u t i o n control l e g i s l a t i o n i n force i n B r i t i s h Columbia today has had some effect i n c o n t r o l l i n g p o l l u t i o n , p a r t i c u l a r l y when the objectives of such l e g i s l a t i o n are Considered. However, i t has. not dealt with the p o l l u t i o n problem as a whole. It i s f e l t that the control of p o l l u t i o n ' i s s t i l l i n a preventive stage i n B r i t i s h Colum-bi a today,, and that there i s s t i l l time f o r -effective measures to be taken to avoid having p o l l u t i o n become a major problem In B r i t i s h Columbia as i t has become inr'some of the- States.and Provinces i n North America. 153 APPENDIX "A" STREAM POLLUTION.IN BRITISH COLUMBIA The following i s the known l e g i s l a t i o n regarding p o l l u t i o n which i s now i n e f f e c t . PROVINCIAL LEGISLATION The Water A c t — S e c t i o n 3 7 . Every person i s g u i l t y of an offence against this Act and. i s l i a b l e , on summary conviction,, to a penalty not exceeding $ 2 5 0 . 0 0 and, i n default of payment, to imprisonment not exceeding .12 months, who does any of the following: (k) Puts into any stream any sawdust, timber, t a i l -ings, gravel, refuse, carcass, or other thing or substance after having ^been ordered, by the eng-ineer or water recorder not to do so. Health A c t — S e c t i o n s 2 k -27, i n c l u s i v e , deal with plans of sewage disposal works> c e r t i f i c a t e s of approval and necessary a l t e r a t i o n s to sewerage systems. The portion which deals mainly with stream p o l l u t i o n i s contained i n Section 2 5 and reads as follows: No common sewer or system of sewerage s h a l l be established or continued unless there i s maintained i n Connection therewith a system of sewage p u r i f i -c ation and disposal which removes and avoids the menace to the public health, and the Minister may c a l l f o r , and any Municipal Council, person, or corporation s h a l l , when requested, f u r n i s h as soon as may be-, such information and data i n r e l a t i o n to such matters under t h e i r c o n t r o l as the. Minister may deem necessary. The penalty f o r the v i o l a t i o n of t h i s Section i s con-tained i n Section I l k . Any person who v i o l a t e s any other provision of t h i s Act s h a l l , unless It i s otherwise espec-i a l l y provided, be l i a b l e for every such offence to a penalty not exceeding $ 1 0 0 . 0 0 or to. imprisonment, with or without hard labour f o r a term not exceeding six months, or to. both f i n e and imprisonment, i n the. d i s c r e t i o n of the convicting Justice. The Sanitary Regulations were: issued under authority of the "Health Act." Section 66 of these regulations reads as follows-: No s o l i d refuse- or waste matter of any kind s h a l l be deposited i n any stream so as to obstruct the flow or put into any stream or lake so as to pollute i t s waters, and no s o l i d or l i q u i d sewage matter from a public or private- sewer s h a l l be d i s -charged into any stream or lake, but If i t can be proved that the best means have been adopted to p u r i f y the sewage, etc.,. before i t enters the stream or lake, noooffence- i s committed, but i s unles;s the l o c a l Board has n o t i f i e d the offending parties that the means adopted are I n s u f f i c i e n t ; nor s h a l l any poisonous, noxious, or p o l l u t i n g l i q u i d proceeding from any other source be passed into any stream or lake unless the best means have been f i r s t adopted to p u r i f y the same. The penalty f o r the- v i o l a t i o n of these regulations i s the same as f o r the v i o l a t i o n of the "Health Act." The "Health Act" also s p e c i f i e s that s p e c i a l regul-ations f o r the prevention of p o l l u t i o n may be devised. Power for the exercise of t h i s authority i s noted i n Section 6 of the "Health Act-." It reads as follows: The Lieutenant-Governor-in-Council may make and issue such general rules,, orders and regulations as he deems necessary for the prevention, treatment, mitigation and suppression of disease, and may from time to time a l t e r o r repeal any such rules, orders and regulations and substitute, new rules, - orders, and regulations; and the Lieutenant-Governor-in-Council may by'the rules, orders and regulations provide f o r and regulate (l8) the prevention of the p o l l u t i o n , defilement, discolouration or f o u l i n g of a l l lakes, streams, pools, springs and waters-. FEDERAL LEGISLATION Fishe r i e s .Act—Section 3 3 ( l ) : No one' s h a l l throw overboard s o l i d s , coal ashes, stones, or other p r e j u d i c i a l or deleterious- substances i n any r i v e r , harbour or road-stead, or i n any water where f i s h i n g is. carried on or leave or deposit or cause to be thrown, l e f t or deposited, on the shore, beach or bank of any water or Upon the beach between high or low water mark, remains or o f f a l of f i s h , or of marine animals, or leave decayed or decaying f i s h i n any net or other f i s h i n g apparatus. Such remains; or o f f a l may be- buried ashore above high water mark. 1 5 5 (2) No person s h a l l cause or knowingly permit to pass Into, or put or knowingly permit to .be put, lime, Chemical substances or drugs, poisonous matter, dead or decaying f i s h , or remnants thereof, m i l l rubbish or sawdust or other deleterious, substance- or thing, whether the same i s of a l i k e character to the substances named i n th i s sec-ti o n or not,, i n any water frequented by f i s h , or that flows into such water, nor on ice over either such waters. (3) Nor person engaging i n logging, lumbering, land clearing or other operations, s h a l l put or knowingly permit to be put, any slash, stumps or other debris into any water frequented by f i s h or that flows Into such water, or on the ice over either such water, or at a place from which i t i s l i k e l y to be carried into either such water. The penalty f o r the v i o l a t i o n of t h i s Act i s con-tained i n Section 66. Except as herein otherwise provided, everyone who v i o l a t e s , or prepares to v i o l a t e any provision of t h i s Act or any Regulations made, hereunder, s h a l l be l i a b l e to a penalty of not more than $1,000 In costs, and, i n default of payment, to imprisonment f o r a term not exceeding 12 months or both. Migratory Birds Regulations—Section k9. No person s h a l l knowingly place, cause to be placed or i n any manner permit the flow or entrance of o i l , , o i l wastes or substances harmful to migratory water-fowl into or upon waters frequented by migratory water-fowl or waters flowing into such waters or the- Ice covering either of such waters. The penalty f o r the v i o l a t i o n of t h i s regulation i s contained i n Section 12 of the Act. It reads as follows: Every person who v i o l a t e s any provision of the Act or any regulation s h a l l , f o r each offence, be l i a b l e upon summary Conviction of not more than $300,00' and not l e s s than $10.00 or to Imprisonment f o r a term not exceeding six months or to- both fi n e and imprisonment. National Harbours Board Bylaw. The- Regulations governing the harbours of Halifax, St. John, Chiehputiml, Que., Three Rivers, Montreal, C h u r c h i l l and Vancouver, were made under Bylaw by the Board. 156 Section 3(2) of Bylaw A-1 reads as follows: Nothing s h a l l he thrown, drained or discharged ' into the water, allowed to come i n contact with the- water, or deposited i n the water within the l i m i t s of the harbour which may i n any manner (a) damage- vessels or property; (b) cause any nuisance, or danger to health or endanger l i f e or health; Provided, however., that b a l l a s t or rubbish may be placed, l e f t or disposed of at such places i n the harbour as may be assigned by the Board. The penalty f o r the v i o l a t i o n of t h i s bylaw i s con-tained i n Section 107• Penalty—'Every person g u i l t y of an offence against t h i s bylaw s h a l l be l i a b l e , upon summary conviction, to the penalty not. exceeding $500.00 or imprison-ment f o r a period not exceeding sixty days or, i n default of payment of a pecuniary penalty and of the costs of "conviction to imprisonment f o r a period not exceeding t h i r t y days. Navigable Waters Protection Act. Section 19--No-Owner or tenant of any sawmill or any workmen therein or other person s h a l l throw or cause to be thrown or suffer or permit to be thrown any sawdust, edgings, slabs, bark or rubbish of any description, whatsoever into any r i v e r , stream or other waters, any part of which i s navigable or which flows into any navigable waters. Section 20—No person s h a l l throw or deposit or cause or permit to be thrown or deposited any stone,, gravel, earth, cinders,, ashes or other material or rubbish l i a b l e to sink to the bottom i n any navigable t i d a l waters i n Canada where there are not at least twelve fathoms of water at extreme low t i d e . Section 21--No persons s h a l l throw or deposit, or cause or permit to be thrown or deposited any stone, gravel, earth,, ashes or other material or rubbish l i a b l e to sink to the bottom i n any navigable- non-tidal waters i n Canada .where there are not at a l l times at least three fathoms of water. Section 22--The several f i s h e r y o f f i c e r s s h a l l , from time to time examine and report on the -condition of such rivers., streams .and waters and prosecute a l l persons-v i o l a t i n g the provisions- of the three la.st preceding sections; and f o r enforcing the said provisions, such o f f i c e r s s h a l l have and exercise a l l the power conferred upon them f o r l i k e purposes by the F i s h e r i e s Act. 157 Section 23--The Governor i n Council, when i t i s shown to his s a t i s f a c t i o n that the public interest would not be i n j u r i o u s l y affected thereby, may,, from time to time, by proclamation published i n the Canada Gazette, declare any of such r i v e r s , streams or waters or part or parts thereof, •exempted i n whole or i n part from the operation from the said three sections, and may, from time to time, revoke such pro-clamations. The penalty f o r the v i o l a t i o n of Section 19 provides on summary conviction, f o r a f i r s t offence, to a penalty of not less than $ 2 0 . 0 0 and for- each subsequent offence, to a penalty of not less than $ 5 0 . 0 0 . For v i o l a t i o n of Sections 20 and 2 1 the penalty, on summary conviction, i s a f i n e not exceeding $300 . 0 0 , and not less than $ 2 0 . 0 0 • Canada Shipping Act. Sections of the regulations f o r the government of public harbours i n Canada under authority of t h i s Act re f e r to p o l l u t i o n . These are as follows: Section 51^-No timber, saw logs, log ends, p i l e s , -edgings, slabs, rine.s, barks, chips, sawdust, m i l l refuse, f i s h refuse or refuse or rubbish of any description, kind or nature, not governed by Section k8 above, s h a l l be unladen, discharged, deposited, l a i d , cast or emptied out or thrown or l a i d to go a d r i f t from any vessels or i n any manner, or by any person from any wharf or from any part of the beach or shore, into any part of the harbour, or upon the beach or shore thereof below high watermark, under the penalty f o r v i o l a t i o n hereinafter provided, to be made by the person having the charge of a vessel or the works from which any such matter as aforesaid s h a l l have been so discharged, unladen, deposited, l a i d , cast, or emptied out, thrown or allowed to go a d r i f t , or by any other- person or persons v i o l a t i n g t h i s regulation. Section 5 2—No o i l , o i l or acid polluted water, o i l sludge, or any other form of o i l alone or i n combination with any other substance; or any inflammable or dangerous substances s h a l l be allowed to drain or be pumped, thrown or discharged i n any manner from any vessel, o i l tank, o i l refinery, or other receptacle, into the waters of any port or harbour- i n Canada, and any person i n charge of or owning any vessel, manufactury, works, tanks, or other premises v i o l a t i n g the provisions of this, regulation s h a l l be l i a b l e to a penalty f o r v i o l a t i o n hereinafter provided. 158 Section 5k----None of the materials or matters mentioned i n Sections k8> 5 l and $2. above s h a l l be deposited on the ice within the l i m i t s Of any harbour. The penalty f o r the v i o l a t i o n of any of these sections i s the imposition of a f i n e not exceeding $ 1 , 0 0 0 . 0 0 . If any such v i o l a t i o n continues f o r more than 2 k hours, every addi-t i o n a l 2 k hours during which i t may continue, s h a l l be .deemed to be an additional offence and subject to an additional penalty. APPENDIX X Suggested State Water P o l l u t i o n Control Act by^United States Public Health. Service""" Relevant portions of Suggested State Water Po l l u t i o n Control Act and Explanatory Statement. An Investigation Prepared by the Federal Security Agency of the D i v i s i o n of Water P o l l u t i o n Control of the Public Health Service, October, 19*0), pp. 7-23. 160 CONTENTS Suggested State Water P o l l u t i o n Control Act 1 6 1 Statement of Policy l 6 l D e f i n i t i o n s • •• - — l 6 l Creation and Organization of Board; Meetings; Employees 1 6 2 (Alternate Section) Creation and Organization of Agency and Advisory Board; Meetings, Employees 1 6 5 Powers and Duties 167 Prohibitions 169 C l a s s i f i c a t i o n of Waters; Standards of Water Quality 1 6 9 Proceedings before: Board - 1 7 0 Hearings --1 -- • 172 Inspections and Investigations: Maintenance of Re-cords --- .- — 1 7 2 Penalties; Injunctions : — 1 7 2 Review 17k C o n f l i c t i n g Laws • 176 E x i s t i n g Rights and Remedies Preserved ' 176 S e v e r a b i l i t y 176 Short T i t l e -- 1 7 6 The "Suggested State Water Po l l u t i o n Control Act" has been endorsed by the Council of State Governments and recommended to the States i n the Council's "Suggested State L e g i s l a t i o n ; Program f o r 1 9 5 l n issued i n November, 19-50.. . . . . 161 SUGGESTED STATE WATER POLLUTION CONTROL ACT ( T i t l e . It should conform to State requirements. The following i s a sug-gestion; a more complete t i t l e should be used where necessary.) "AN ACT to e s t a b l i s h a State water p o l l u t i o n control agency, and to control, prevent and abate p o l l u t i o n of the surface and underground waters of the State." (Be i t enacted, etc.) V Section 1. Statement of Policy. Whereas the p o l l u t i o n of the waters of t h i s State constitutes a menace to public health and welfare, creates public nuisances, i s harm-f u l to w i l d l i f e , f i s h and aquatic l i f e , and impairs domestic, a g r i c u l t u r a l , industrial>2/ r e c r e a t i o n a l and other legitimate b e n e f i c i a l uses of water, and whereas the problem of water p o l l u t i o n i n t h i s State i s closely related to the problem of water p o l l u t i o n i n adjoining States, i t i s hereby declared to be the public p o l i c y of t h i s State to conserve the waters of the State- and to protect, maintain and improve the q u a l i t y thereof f o r public water supplies, f o r the propagation of w i l d l i f e , f i s h and aquatic l i f e , and f o r domestic, a g r i c u l t u r a l , i n d u s t r i a l , recreational and other legitimate b e n e f i c i a l uses; to provide that no waste be discharged into any waters of the State without f i r s t being given the degree o.f treatment neces-sary to protect the legitimate b e n e f i c i a l uses of such waters; to provide f o r the prevention, abatement and control of new or existing water p o l l u t i o n ; and to cooperate with other agencies of the State, agencies of other States and the Fed-eral Government i n carrying out these objectives. Section. 2. D e f i n i t i o n s . For the purposes of t h i s Act, the following words and phrases s h a l l have the meanings ascribed to them i n t h i s section. l / Where a State has committed i t s e l f to a general water resources program, a declaration to the e f f e c t that water p o l l u t i o n control i s an i n t e g r a l part of such program should be added. States i n the West and Southwest may want to add a state-ment to the e f f e c t that water p o l l u t i o n control i s b a s i c a l l y a water, conservation program i n t h e i r States. 2/ S p e c i f i c wastes which are of p a r t i c u l a r i n t e r e s t to an i n d i v i d u a l State may be included, such as mine wastes, etc. 162 (a) " P o l l u t i o n " means such contamination,.' or other ' a l t e r a t i o n of the physical, chemical or b i o l o g i c a l properties, of any waters of the State, or such discharge of any l i q u i d , gaseous or solid' substance into any waters of the.State as w i l l or i s l i k e l y to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, i n d u s t r i a l , a g r i c u l -t u r a l , r e c r e a t i o n a l , or other legitimate b e n e f i c i a l uses, or to livestock, wild animals, b i r d s , f i s h or other aquatic l i f e . (b) "Wastes" means sewage, i n d u s t r i a l waste and a l l other l i q u i d , gaseous or s o l i d substances which may pollute or tend to pollute any waters of the State. (c) "Sewerage system" means pipe l i n e s or conduits, pumping stations, and force mains, and a l l other con-structions, devices, appurtenances and f a c i l i t i e s used f o r c o l l e c t i n g or conducting wastes to a point of ultimate d i s -posal. (d) "Treatment works" means any plant, disposal f i e l d , lagoon, dam, pumping station, incinerator, or other works used f o r the purpose of t r e a t i n g , s t a b i l i z i n g or holding wastes. (e) "Disposal system" means a system f o r disposing of wastes, and includes sewerage systems and treatment works. (f) "Waters of the State" means a l l streams; 1/ lakes, ponds, marshes, watercourses, waterways, wells, springs, I r r i -gation systems, drainage systems, and a l l other bodies or accumulations of water, surface and underground, natural or a r t i f i c i a l , public or p r i v a t e , which are contained within, flow through, or border upon this State or any portion thereof. (g) ".Person" means the State, any municipality, p o l i t i c a l subdivision, i n s t i t u t i o n , public or private corpor-ation, i n d i v i d u a l , partnership, or other e n t i t y . Section 3« Creation and Organization of Board; Meetings; Employees. There i s hereby created and 2 / Seaboard States should Include within t h i s d e f i n i t i o n such coastal waters as are within the j u r i s d i c t i o n of the State. 163 established -US a State water p o l l u t i o n control board herein-after-referred to as the "Board" which s h a l l be composed of members as follows: The Director of the Department of Health; the Director of the Department of Agriculture-; the Director of the Department of Conservation-, F i s h and Game; and two members appointed f o r terms of years by the Governor. .One of the members appointed by the Governor s h a l l be experienced i n the f i e l d of municipal government and one sh a l l be experienced i n the f i e l d of i n d u s t r i a l a c t i v i t i e s . ^ / The Board i s directed to carry out the functions and duties conferred on i t by th i s Act. Each e x - o f f i c i o member of the Board may, by o f f i c i a l order f i l e d i n his respective department, designate a deputy i n his-department to perform the duties of the- member making hj The State water p o l l u t i o n control authority may be set up as an Independent board o r may be established within an existing. State department. Regardless of where the Board i s placed, i t i s important that the statutory authority flow d i r e c t l y to i t and that i t have independent powers of operation. In cases where the Board i s placed i n an e x i s t i n g State department, i t is. suggested that i t be placed within the State health department because of the close connection between the work of the State health department because of the close connection between the work of the State health department and water p o l l u t i o n control a c t i v i t i e s . Further, State health departments, i n most cases are already active i n the- f i e l d of water p o l l u t i o n control and have trained technical s t a f f s working on p o l l u t i o n control problems-The "Suggested State- Water P o l l u t i o n Control Act" may be adapted to the placing of water p o l l u t i o n control authority within the State health department by Inserting' the words " i n the State health department"'after the word "Established"; v i r t u a l l y no other change w i l l be neces-sary . • J?/ This l i s t of members of the Board i s suggestive only and Is not meant to be i n c l u s i v e . The membership of the Board w i l l necessarily vary from State to State. In addition to those mentioned above, some States may desire to place members on the Board f o r specified terms who are representatives of such f i e l d s as public a f f a i r s , recreat-i o n a l and resort i n t e r e s t s , and broad water resources a c t i v i t i e s . ' 1 6 k the designation. Such persons, i f any, designated pursuant to t h i s section, s h a l l have the- powers and he able to the • duties and r e s p o n s i b i l i t i e s of the o f f i c e r appointing him.6/ No additional compensation s h a l l be allowed any member of the Board7_/ f o r services rendered i n that capacity. Actual and necessary t r a v e l and other expenses incurred by members i n the discharge of t h e i r o f f i c i a l duties as members of the Board s h a l l be paid out of any funds which are or may become available f o r the purposes of thi s Act. The Board s h a l l organize and annually select one of i t s members to serve as chairman and one of i t s members to serve as vice-chairman, s h a l l hold at least four regular meet-ings each calendar year and s h a l l keep a record of i t s pro-ceedings which s h a l l be open to the public f o r inspection. Special meetings may be called by the chairman, and must be cal l e d by him '..upon receipt of a written request therefor signed by two or more members- of the Board. Written notice,, of the time and place of -each meeting s h a l l be delivered to the o f f i c e of each member of the Board and the executive secretary. A majority of the members of the Board s h a l l constitute a quorum. The Board s h a l l appoint an executive secretary8/ who s h a l l d i r e c t and carry out a l l water p o l l u t i o n control a c t i v i t i e s vested i n the Board. Such executive secretary " s h a l l be a person f u l l y trained and experienced i n the f i e l d of water p o l l u t i o n control and i f the Board so desires, may be 6/ It may be necessary i n some States also to provide that: "Such designation s h a l l be deemed temporary only and s h a l l not a f f e c t the c i v i l service or retirement rights of any person so designated." 77_/ In States where i t i s customary to provide an honorarium f o r members of State Boards and Commissions, similar allowances should be made f o r those members of the State water p o l l u t i o n control board who are not serving i n an e x - o f f i c i o capacity. 8/ It may be necessary to Include- a statutory provision for the salary of the executive secretary, i f the State statutes do not provide an o v e r a l l compensation system fo r State o f f i c i a l s . 165 a present employee of the State government. The executive secretary i n the interim between meetings of the Board s h a l l have- authority to perform In the name of the Board a l l functions and duties of the Board except the authority to adopt and promulgate standards, rules and regulations; c l a s s i f y streams; revoke permits; and issue or modify orders. The Board may employ, compensate, and prescribe the powers and duties of such o f f i c e r s , employees, and consultants, i n accordance with the laws of t h i s State, as may be neces-sary to carry out the provisions of th i s Act. However, technical, l e g a l or other services s h a l l be performed, Insofar as practicable, by personnel of the department of health and by other State departments, agencies, and o f f i c e s . The Board may delegate to the executive secretary, o f f i c e r s , employees, and consultants of the Board such functions and duties.as are vested i n the Board by t h i s Act, except the authority to adopt and promulgate stand-ards, rules and regulations; c l a s s i f y waters; revoke permits;' and issue or modify orders. ((Alternate Section 3)) Section 3- Creation and Organization of Agency and  Advisory Board; Meetings-, Employees, (a) There i s hereby created and established 9 / a State water p o l l u t i o n control 9 / The State water p o l l u t i o n control authority may be set up as an independent Agency or may be established within an existing State department. Regardless of where the Agency i s placed, It i s important that the statutory authority flow d i r e c t l y to i t and that i t have independ-ent powers of operation. In cases where the Agency i s placed within an e x i s t i n g State department, i t i s suggested' that i t be placed within the State health department because of the close connection between the work of the State health depart-ment and water p o l l u t i o n control a c t i v i t i e s . Further, State health departments, i n most Cases, are already active i n the f i e l d of water p o l l u t i o n control and have trained technical s t a f f s working on the problem. The "Suggested State Water P o l l u t i o n Control Act" may be adapted to the placing of water p o l l u t i o n control authority within the State health department by ins e r t i n g the words " i n the State health department" after the word "established"; v i r t u a l l y no other change w i l l be necessary. agency ^ £_/ hereinafter referred to as the "Agency." (b) The Governor s h a l l appoint an administrator who s h a l l be the head of the Agency, s h a l l perform a l l functions and duties given to the Agency under this Act, and s h a l l d i r e c t and carry out a l l water p o l l u t i o n control a c t i v i t i e s vested i n the Agency, l l / Such administrator s h a l l be a person f u l l y trained and experienced i n the f i e l d of water p o l l u t i o n control and i f the Agency so desires may be a present employee of the State government. (c) The Agency may employ, compensate, and prescribe the powers and duties of such o f f i c e r s , employees, and con-sultants i n accordance with the laws of the State as may be necessary to carry out the. provisions of t h i s Act. However, technical, l e g a l or other services s h a l l be performed, insofar as practicable,by/personnel of the department of health and by other State departments, agencies, and o f f i c e s (d) The Administrator may delegate to the executive secretary, o f f i c e r s , employees, and consultants of the Agency such functions and duties as are vested i n the Agency by t h i s Act, except the authority to adopt and promulgate standards, rules and regulations; c l a s s i f y waters; revoke permits; and issue or modify orders. (e) There i s hereby established within the Agency a State Water Pol l u t i o n Control Advisory Board consisting of members. Such members are to be appointed by the Governor f o r terms of - years or u n t i l successors s h a l l be appointed or q u a l i f i e d , 12/ and' s h a l l consist of the Administrator of the State water p o l l u t i o n control agency who s h a l l be chairman, and persons experienced i n the f i e l d s 10/ It may be desirable to modify this type of Agency by making provision for a Review Board to review the f i n a l orders of the single administrator. 11/ It may be necessary to include a statutory provision for the salary of the administrator, i f the state statute do not provide an o v e r a l l compensation system f o r State o f f i c i a l s . 12/ Provision should be made f o r overlapping terms of o f f i c e for the members of the Advisory Board. 167 of public health; agriculture; conservation, f i s h and. wild-l i f e ; p o l i t i c a l subdivisions; and i n d u s t r i a l activities.'' 13/ The Water Po l l u t i o n Control Advisory Board s h a l l hold at lea s t two regular meetings each calendar year. It s h a l l be the duty of the Board to review the p o l i c i e s and program of the State water p o l l u t i o n control agency as developed under authority of t h i s Act and to make recommendations thereon to the Administrator of the Agency. • •No compensation s h a l l be allowed any members of the Board l k / f o r services rendered i n that capacity; however, actual and necessary t r a v e l and other expenses incurred by members i n the dischargesof t h e i r o f f i c i a l duties as members of the Agency s h a l l be paid out of any funds which are or may become available f o r the purposes of t h i s Act. Section k.. Powers and Duties. The Board : lj?/ s h a l l have and may exercise the following powers and duties': (a) To develop comprehensive programs f o r the prevention, control and abatement of new or existing p o l l u t i o n of the waters of the State; (b) To advise, consult, and cooperate with other agencies of the State, the Federal Government, other States and interstate agencies, and with affected groups, p o l i t i c a l subdivisions, and industries i n furtherance of the purposes of this Act; (c) To accept and administer loans and grants from the Federal Government and from other sources, public or pr i v a t e , f o r carrying out any of i t s functions; (d) To encourage, p a r t i c i p a t e i n , or conduct studies, investigations, research and demonstrations re-la t i n g to water p o l l u t i o n and causes, prevention, 13/ This l i s t of members of the Advisory Board i s suggestive only and i s not to be deemed to be i n c l u s i v e . The member-ship of the Board w i l l necessarily vary from State to State and may include ex o f f i c i o members. : l k / In states where i t is, customary to provide an honorarium fo r members of State Board and Commissions, similar allowances should be made for those members of the State Water P o l l u t i o n Control Advisory Board who are not serving i n an e x - o f f i c i o capacity. • 1$/ The word "Board" i s used throughout subsequent sections 168 control, and abatement thereof as I t may deem advisable and necessary f o r the discharge of i t s duties under this Act; (e) To c o l l e c t and disseminate information r e l a t i n g to water p o l l u t i o n and the prevention,, control and abatement thereof; (f) To adopt, modify or repeal and promulgate stand-sards of qual i t y of the waters of the State and c l a s s i f y such waters according to t h e i r best uses i n the interest of the public under such conditions as the Board may prescribe f o r the prevention, control and abatement of p o l l u t i o n ; (g) To adopt, modify, repeal, promulgate and enforce rules and regulations- implementing or effectuating the powers and duties of the Board under t h i s Act; (h) To issue, modify or revoke orders (l) p r o h i b i t i n g or abating--discharges of wastes into the waters of the State; (2) requiring the -construction of new • disposal systems or any parts thereof or the mod-i f i c a t i o n , extension or a l t e r a t i o n of existing disposal systems or any parts thereof, or the adoption of other remedial measures to prevent, control or abate p o l l u t i o n ; and (3) setting stand-ards of water qualit y , c l a s s i f y i n g waters or evidencing any other determination by the- Board under this Act; (i) To review plans, s p e c i f i c a t i o n s or other data r e l a t i v e to disposal systems or any part thereof i n connection with the issuance of such permits as are required by t h i s Act; (j) To issue, Continue i n e f f e c t , revoke, modify or deny, under such conditions as i t may prescribe, to prevent, control or abate pollution,- permits f o r the discharge of wastes into- the waters of the State, and f o r the i n s t a l l a t i o n , modification or operation of disposal systems or any parts thereof; (k) To exercise a l l i n c i d e n t a l powers necessary to carry out the purposes of t h i s Act. 1$/ (Cont'd.) of the Act. Where alternate section. 3 i s selected, the word "Board" should be changed to "Agency." 1 6 9 Section £. Prohibitions.' (a) It s h a l l be unlawful fo r any person to cause p o l l u t i o n a s defined In section 2 (a) of thi s Act of any waters of the State or to place or cause to be placed any wastes i n a lo c a t i o n where they are l i k e l y to cause p o l l u t i o n of any waters of the State.. Any such action i s hereby declared to be a public nuisance. (b) It s h a l l be unlawful f o r any person to carry on any of the following a c t i v i t i e s without f i r s t securing such permit 1 6 / from the Board, as i s required by i t , f o r the disposal of a l l wastes which are or may be discharged thereby into the waters of the State: (l) the construction, i n s t a l l a t i o n , modification or operation of any disposal system pr part thereof or any extension or ad d i t i o n thereto; ( 2 ) the increase i n volume, or strength of any wastes i n excess of the permissive discharges specified under any exis t i n g permit;- ( 3 ) the construction, i n s t a l l a t i o n , o r operation of any i n d u s t r i a l or commercial establishment 1 7 / or any extension or modification thereof or addition thereto, the operation of which would cause an increase i n the discharge of wastes into the waters of the State or would otherwise a l t e r the physical, chemical or b i o l o g i c a l proper-' t i e s of any waters of the State i n any manner not already lawfully authorized; (1+) the construction or use- of any new outlet f o r the discharge of any wastes into the waters of the State. The Board under such conditions as i t may prescribe, may require the submission of such plans,, s p e c i f i c a t i o n s and other information as i t deems relevant i n connection with the issuance of such permits. : Section 6 . C l a s s i f i c a t i o n of Waters; Standards of  Water Quality, (a) In order to effectuate a comprehensive program f o r the prevention, control and abatement of po l l u t i o n of the waters of the State,, the Board i s author-ized to group such waters into classes according to t h e i r present and future best uses f o r the purpose of progressively improving the quality of such waters and upgrading them from time to time by r e c l a s s i f y i n g them, to the maximum extent that i s p r a c t i c a l and i n the public i n t e r e s t . Stand-ards- of qu a l i t y f o r each such c l a s s i f i c a t i o n consistent with 1 6 / Some States may wish to validate by statute permits or approval of plans and sp e c i f i c a t i o n s presently i n effect which have been issued by competent State author-i t i e s such as the department of health. 17 /Western and Southwestern States should include the con-struction, i n s t a l l a t i o n , modification or operation of i r r i g a t i o n projects. 170 best present and future use of such waters may be adopted• by the Board and. from time to time modified or changed.' 18/ (b) Prior to c l a s s i f y i n g waters or setting standards or modifying or repealing such c l a s s i f i c a t i o n s or standards the Board s h a l l conduct public hearings inccbnnection therewith.. Notice of public hearing f o r the consideration, adoption or amendment of the C l a s s i f i c a t i o n of waters and standards of p u r i t y and qua l i t y thereof s h a l l specify the waters concerning which a c l a s s i f i c a t i o n i s sought to be made or for which standards are sought to be adopted and the time, date, and place of such hearing. Such notice s h a l l be published at least twice i n a newspaper of general c i r -culation i n the area affected and s h a l l be mailed at least twenty days before such public hearing to the chief executive of each p o l i t i c a l subdivision of the area affected and may be mailed to such other persons as the Board has reason to believe may be affected by such c l a s s i f i c a t i o n and the setting of such standards. (c) The adoption of standards of q u a l i t y of the waters of the State and c l a s s i f i c a t i o n of such waters or; any modi-f i c a t i o n or change thereof s h a l l be effectuated by an order of the Board which s h a l l be published i n a newspaper of general c i r c u l a t i o n i n the area affected. In c l a s s i f y i n g waters and setting standards of water q u a l i t y or making any modification or change thereof, the Board s h a l l announce a reasonable time f o r persons discharging wastes into the waters of the State to comply with such c l a s s i f i c a t i o n or standards, unless such discharges create an actual or poten-t i a l hazard to public haalth. Any discharge i n accord with such c l a s s i f i c a t i o n or standards s h a l l not be deemed to be p o l l u t i o n f o r the pur-poses of t h i s Act. Section 7- Pro.ceedings bef.ore Boar.d. (a) Whenever the Board determines there are reasonable grounds to believe that there has been a v i o l a t i o n of any of the provisions of thi s Act or of any order of the Board, i t may give written notice to the alleged v i o l a t o r or v i o l a t o r s specifying the causes of complaint. Such notice s h a l l require that the matters complained of be corrected or that the alleged v i o l a t o r appear before the Board at a time and place 18/ States which adhere, to the "prior a c q u i s i t i o n doctrine" should take cognizance of the effect that c l a s s i f i c a t i o n w i l l have on water r i g h t s established under other laws. 171 s p e c i f i e d , i n the n o t i c e and answer the, charges complained o f . The n o t i c e s h a l l be d e l i v e r e d t o the a l l e g e d v i o l a t o r or V i o l a t o r s i n accordance w i t h the p r o v i s i o n s o f s u b s e c t i o n (e) of t h i s s e c t i o n n o t l e s s t h a n days b e f o r e the time se t f o r the h e a r i n g . (b) The Board s h a l l a f f o r d an o p p o r t u n i t y f o r a f a i r h e a r i n g i n accordance w i t h the p r o v i s i o n s of s e c t i o n 8 t o the a l l e g e d v i o l a t o r , or v i o l a t o r s a t the time and p l a c e s p e c i f i e d , i n the n o t i c e or any m o d i f i c a t i o n t h e r e o f . On the b a s i s of t h e evidence- produced a t the h e a r i n g the Board s h a l l make f i n d i n g s of f a c t and c o n c l u s i o n s - of law and e n t e r such o r d e r as i n i t s o p i n i o n w i l l b e s t f u r t h e r t h e pur p o s e s of t h i s A c t and s h a l l g i v e w r i t t e n n o t i c e of such o r d e r t o the a l l e g e d v i o l a t o r and t o such o t h e r p e r s o n s as s h a l l have appeared a t the h e a r i n g and made w r i t t e n r e q u e s t f o r n o t i c e of the o r d e r . I f the h e a r i n g i s h e l d b e f o r e any p e r s o n o t h e r than the Board i t s e l f , s u ch p e r s o n s h a l l t r a n s -m i t t he r e c o r d of the h e a r i n g t o g e t h e r w i t h recommendations f o r f i n d i n g s o f f a c t and c o n c l u s i o n s o f law to the Board which s h a l l t h e r e u p o n e n t e r I t s o r d e r on the b a s i s of such r e c o r d and recommendations. The o r d e r o f the Board s h a l l become f i n a l and b i n d i n g on a l l p a r t i e s u n l e s s a p p e a l e d t o th e c o u r t s as p r o v i d e d i n s e c t i o n 11 w i t h i n days a f t e r n o t i c e has been sent t o the p a r t i e s . . . (c) Any p e r s o n who i s d e n i e d a p e r m i t by the Board Or who has such p e r m i t revoked or m o d i f i e d s h a l l be a f f o r d e d an o p p o r t u n i t y f o r a h e a r i n g i n c o n n e c t i o n t h e r e w i t h upon w r i t t e n a p p l i c a t i o n w i t h i n days a f t e r r e c e i p t of n o t i c e f r o m the Board of such d e n i a l , r e v o c a t i o n or m o d i f i c a t i o n . (d) Whenever t h e Board f i n d s t h a t an emergency e x i s t s r e q u i r i n g immediate a c t i o n t o p r o t e c t t h e p u b l i c h e a l t h or w e l f a r e , i t may w i t h o u t n o t i c e o r h e a r i n g i s s u e an o r d e r r e c i t i n g t h e e x i s t e n c e of such an emergency and r e q u i r i n g t h a t such a c t i o n be t a k e n as i t deems n e c e s s a r y t o meet the emergency. N o t w i t h s t a n d i n g the p r o v i s i o n s o f s u b s e c t i o n (b) of t h i s s e c t i o n such o r d e r s h a l l be e f f e c t i v e i m m e d i a t e l y . Any p e r s o n t o whom such o r d e r i s d i r e c t e d s h a l l comply t h e r e -w i t h i m m e d i a t e l y b u t on a p p l i c a t i o n t o the Board s h a l l be a f f o r d e d a h e a r i n g as soon as p o s s i b l e . On the b a s i s , of such h e a r i n g the Board s h a l l c o n t i n u e such o r d e r i n e f f e c t , r evoke i t o r m o d i f y i t . (e) E x c e p t as o t h e r w i s e e x p r e s s l y p r o v i d e d , any n o t i c e , o r d e r , o r o t h e r i n s t r u m e n t i s s u e d by o r under a u t h o r i t y of the Board may be s e r v e d on any p e r s o n a f f e c t e d t h e r e b y p e r s o n a l l y or by p u b l i c a t i o n , and p r o o f of such s e r v i c e may be made i n l i k e manner as i n case of s e r v i c e of a summons i n a c i v i l 172 action, such proof to be f i l e d i n the o f f i c e of the Board; or such service may be made by mailing a .copy of the notice, order, or other instrument by registered mail, directed to the person affected at his l a s t known post o f f i c e address as shown by the f i l e s or records of the Board, and proof thereof may be made by the a f f i d a v i t of the person who did the mailing, f i l e d i n the o f f i c e of the Board. Every c e r t i f i c a t e br a f f i d a v i t of service made and f i l e d as herein provided s h a l l be prima fa c i e evidence of the f a c t s therein stated, and a c e r t i f i e d -copy thereof, s h a l l have l i k e force and e f f e c t . 19_/ Section 8. Hearings. The hearings herein provided may be conducted by the Board i t s e l f at a regular or sp e c i a l meeting of the Board, or the Board may designate hearing o f f i c e r s who s h a l l have the power and authority to- conduct such hearings i n the name of the Board at any time and place. A re-cord or summary of the proceedings" of such hearings s h a l l be taken and f i l e d with the Board, together with f i n d -ings of f a c t and conclusions of law made by the Board. In any such hearing a member of the Board or a hearing o f f i c e r designated by i t s h a l l have the power to administer oaths, examine witnesses and issue i n the name of the Board notice of the hearings or subpoenas requiring the testimony of witnesses and the production of evidence relevant to. any matter Involved i n such hearing. Witnesses who are sub-poenaed s h a l l receive the- same fees and mileage as i n c i v i l actions. In- case of contumacy or r e f u s a l to obey a notice of hearing or subpoena issued under this section, the . court s h a l l have j u r i s d i c t i o n upon ap p l i c a t i o n of the Board or i t s representative, to issue an order requiring such person to appear and t e s t i f y or produce evidence as the case may require and any f a i l u r e to obey such order of the court may be punished by such court as contempt thereof. Section 9. Inspections and. Investigations-; Maintenance  of Records. The Board or i t s duly authorized representative 1 9 / Where not. otherwise covered by general provisions of State statutes applicable to a l l administrative agencies, consideration should be given to covering the following points i n the "Suggested act": (1) P i l i n g or recording the regulations and orders of the State agency with a designated o f f i c i a l ; (2) Making such f i l i n g and recording prima f a c i e evidence that a l l requirements of law have been complied with; (3) Requiring a l l courts to take j u d i c i a l notice of regu-latio n s and orders when f i l e d or recorded as prescribe (k) C e r t i f y i n g copies. 173 s h a l l have the power to enter at reasonable times upon any private or public property f o r the purpose of Inspecting and investigating conditions r e l a t i n g to p o l l u t i o n or the possible p o l l u t i o n of any waters of the State.= Any authorized representative of the Board may examine any records or memoranda pertaining to the operation of disposal systems. The Board may require the maintenance of records r e l a t i n g to the operation of disposal systems. Copies of such records must be submitted to the Board on request. Section 10. Penalties;20/ Injunctions. (a) Any person 21/ who s h a l l violate any of the provisions of, or who f a i l s to perform any duty imposed by, t h i s Act or who v i o l a t e s any 20/ A number of States provide by statute f o r p e n a l t i e s , additional to those outlined i n section 10-, for persons k i l l i n g f i s h by p o l l u t i n g the waters of the State. Such a provision appears l o g i c a l and desirable, since the p o l l u t i o n has, i n e f f e c t , destroyed property of the State and the person responsible should be l i a b l e to pay damages therefor. Such p r o v i s i o n has not been included i n t h i s "Suggested Act," however, since i t i s considered more appropriate f o r i n c l u s i o n i n the con- ' servation laws of the State. If the State wishes to include i t i n this" Act, the following language may be employed: ".(c) Any person who v i o l a t e s any of the provisions' of, or f a i l s to perform any duty imposed by, t h i s Act, or -who v i o l a t e s an order or other determination of the Board promulgated pursuant to t h i s Act, and causes the death of f i s h or other w i l d l i f e s h a l l , i n addition to the penalties provided i n subsections (a) and (b) be l i a b l e to pay to the State an additional amount equal to the sum of money reasonably necessary to restock such waters or replenish such w i l d l i f e as determined by the Board a f t e r consultation with the f i s h and game commission. Such amount may be: recovered by the Board on behalf of the State In a c i v i l action brought i n the ______ court." 21/ Where the order i s directed against a municipality,. the responsible municipal o f f i c i a l s would have, respon-s i b i l i t y for- taking steps to comply with i t . To enable them to take the necessary action, there must be 1 7 k order or determination of- the Board promulgated pursuant to this Act s h a l l be g u i l t y of a misdemeanor 2 2 / and i n addition thereto may be. enjoined from continuing such v i o l a t i o n . Each day upon which such v i o l a t i o n occurs s h a l l constitute a separate v i o l a t i o n . (b) It s h a l l be the duty of the Attorney General on the request of the Board to- bring an action f o r an injunction against' any person v i o l a t i n g the provisions of t h i s Act, or v i o l a t i n g any order or determination of the Board. In any action f o r an injunction brought pursuant to t h i s section, any finding of the Board aft e r hearing or due notice s h a l l be. prima f a c i e evidence of the f a c t or f a c t s found therein. Section 1.1. Review. 2 3 / (a) An appeal may be taken from any f i n a l order or other f i n a l determination of the Board, by any person who i s or may be adversely affected 2 1 / (Cont'd.) adequate statutory provision f o r financing such action by the municipality. Issuance of revenue bonds i s a method of financing which has received increasingly broad acceptance i n recent years. In those States where such issuance i s contingent on a vote o f the: electors of the municipality, enforcement of the Act would be f a c i l i t a t e d by a provision waiving the necessity of such a vote i n the case pf revenue bonds issued to finance the Cost of complying with a f i n a l order abating p o l l u t i o n . I t i s believed that the requirement of such a vote i s not appropriate where the' l e g a l obligation of the municipality to construct a treatment works or take other remedial action has been established under a statute. 2 2 / If the penalty provided f o r misdemeanors by general statutes i s considered i n s u f f i c i e n t , the State may wish to s t r i k e out the balance of the sentence a f t e r "mis-demeanor" and substitute the following: "and upon conviction thereof s h a l l be punished by a fine of not more than '$> or by imprisonment for 1 a term of not more than one year pr by both such f i n e and imprisonment. In addition thereto such person may be enjoined from continuing such v i o l a t i o n . " 2 3 / The above appeal procedure i s suggestive only. In any p a r t i c u l a r State such procedures w i l l necessarily be adapted to the e x i s t i n g j u d i c i a l structure and p r a c t i c e . 175 thereby, or by the Attorney General on behalf of the State to the .. - : -.. court of the State of the area affected or to the court of (seat of Government)-. Within 3 0 days a f t e r receipt of a copy of the order, or other f i n a l deter-mination, or- aft e r service of notice thereof by registered mail, the appellant or h i s attorney s h a l l serve a notice of appeal on the Agency through i t s ((executive secretary)) or ((Administrator)) provided that during such 30-day period the court may f o r good cause shown extend such time for not exceeding an add i t i o n a l 6 0 days. The notice of appeal s h a l l refer to the action of the Board appealed from, s h a l l specify the .grounds of appeal-, including both points of law and fact which are asserted or questioned by the appellant. A copy of the o r i g i n a l notice of appeal with proof of service s h a l l be f i l e d by the appellant or h i s attorney with the c l e r k of the court within ten days of the service of the notice and thereupon the court s h a l l have j u r i s d i c t i o n of the appeal. (b) The appellant and the Board s h a l l i n a l l cases be . deemed the o r i g i n a l parties to an appe-al. The State through the Attorney General or- any other person affected may become a party bylintervention as i n a c i v i l action uponsshowing •cause - therefor. The Attorney General s h a l l represent the Board, i f requested-, upon a l l such appeals unless he appeals or Intervenes i n behalf of the State. If the. Attorney General or a member of h i s s t a f f i s not available to represent the Board i n any p a r t i c u l a r proceeding, the Board i s empowered to appoint sp e c i a l counsel f o r such proceeding. No bond or deposit for costs s h a l l be required of the State or Board upon any such appeal or' upon any subsequent appeal to the Supreme Court or other court proceedings pertaining.to the matter. (c) The appeal s h a l l be heard and determined by the court upon the Issues raised by the notice pf appeal and the answer thereto according to the rules related to a t r i a l i n the nature of an appeal In equity of an administrative deter-mination. A l l findings of f a c t by the Board are to be deemed f i n a l , unless i t i s shown that such, findings were not sup-ported by substantial evidence produced before the Board at the hearing. In any appeal or other proceeding Involving any order, or other determination of the Board, the action of the- Board s h a l l be prima f a c i e reasonable and v a l i d and i t s h a l l be presumed that a l l requirements of the- law per-taining to- the taking thereof have been complied with. A copy of the proceeding's before the Board s h a l l be c e r t i f i e d to the Cpurt i n connection with each appeal. 176 (d) A further appeal may be taken to the Supreme Court of the State i n the same manner as appeals i n equity are taken. Section 12. C o n f l i c t i n g Laws. This Act s h a l l not be construed as repealing any laws of the State r e l a t i n g to the p o l l u t i o n of waters thereof or any conservation laws, but s h a l l be held and construed as a u x i l i a r y and supplementary thereto, except to the extent that the same are i n d i r e c t • c o n f l i c t herewith. Section 13. E x i s t i n g Rights.: and Remedies Preserved. It Is the purpose of this'Act to. provide a d d i t i o n a l and cumulative remedies to prevent, abate and control the p o l l u t i o n of the waters of the State. Nothing herein con-tained s h a l l be construed to abridge or a l t e r r i g h t s of action or remedies i n equity or under the common law or •statutory law,, criminal or c i v i l > nor s h a l l any provision of this Act, or any act done- by virtue thereof, be construed ' as estopping the- State, or any municipality or person, as r i p a r i a n owners or otherwise, i n the exercise of t h e i r rights i n equity or under the common law or statutory law to suppress nuisances or to abate p o l l u t i o n . Section lk.. Severability. I f any section, subsection, sentence, clause, phrase or words of t h i s Act i s for any reason held to be unconstitutional, such decree, s h a l l not affect-the v a l i d i t y of any remaining portion of thi s Act. Section 1$. S h o r t . t i t l e . This Act may be cited as the (State) Water P o l l u t i o n Control Act. NOTE: Where State law or practice requires that an appropria-t i o n authorization or an actual appropriation be made with basic l e g i s l a t i o n , such provisions should be incorporated into^ the Suggested Act." REPRINTED FKOM ' ~ ~ ' JOURNAL AMERICAN WATER WORKS ASSOCIATION Vol. 42, No. 8, August 1950 Basic Water Use Doctrines and State Water Control Agencies Committee Report A committee report presented on May 24, 1950, at the Annual Con-ference, Philadelphia, by Richard Hasen, Chairman. The other members of the (temporary) committee were: O. J. Muegge; D. A. Okun, L. W. Trager, D. S. Wallace and W. W. Wheeler. AN Y O N E familiar with water con-trol law in the United States will recognize that a compilation of such legislation would require a great many volumes if it were to be complete and correct. Such a work might be useful to lawyers, but, since it would almost certainly be out of Mate in some re-spects as soon as it was completed, it is doubtful if the benefits would be worth the time and energy required to put it together. Consequently, in,this report, the committee has confined it-self to presenting a ^ summary of the basic use doctrines and to noting for each state what agencies perform the several functions pertaining to water resources control. The latter infor-mation may be found in the tabulated material at the end of the report (pp. 762-73)-. • The Icommittee has tried to answer in general such questions as: what is the basic underlying water law for both surface and ground water devel-opments? what state agencies must approve water uses? are stream pol-lution laws in effect ? what' agency ad-ministers them? In many of the states, the functions °of the several agencies are not clearly defined} and there is some overlapping. In others, it is difficult to determine from the law exactly what policies are followed. The tabulation probably includes some er-rors, and the committee requests that these be brought to its attention. The work of the committee has been aided considerably by the fact that three of its members have been en-gaged for several months on, a nation-wide water resources investigation which has made it necessary to obtain similar data for more than half of the 48 states. The committee would like to acknowledge the prompt assistance that has been rendered by "the many state sanitary, engineers, representa-tives of state geological surveys and federal agencies,- and others interested in water resources matters. Basic Water Laws It is not necessary to discuss in aiiy^ great detail the various water doc-trines. Like most laws, the develop-ments down through the years have been molded by economic necessity. Early laws, have had to be changed to meet present-day requirements, and the actual meaning of many laws is defined only by decisions in the courts. For example, Superior Judge E . V . Kuykendall of the State of Washington 755 756 COMMITTEE REPORT J our. AW W A pointed out in 1928 that: "The doc-trine that a riparian owner was en-titled to have the stream flow by his door unvexed and undiminished even though he made no use of the water except to observe its beauty and listen to its babble has been badly shattered by the materialistic courts of the far west. Even our own Supreme Court, sordid and unpoetical as such a doc-trine may seem, has adopted the view in late decisions that water is better employed growing onions and alfalfa than by reflecting the beauty of the moon while singing its way unvexed to the sea" (1)'. At the risk of considerable over-simplification, the basic water laws ap-plicable to surface water use may be summarized substantially as follows: Surface Water i 1. The riparian doctrine (which de-rives from the common law) accords to each owner of land contiguous to a stream the right to make whatever use of the water he requires for domestic purposes and the watering of livestock, and to make such use of the water for irrigation or other purposes (such as manufacturing) as is reasonable with regard to like reasonable uses by all other owners of land riparian to the same streams. 2. The appropriation doctrine (gen-erally provided for by statute) gives to the first user of water from a stream the right to continue his use so long as it is beneficial, and to use the en-i tire supply if it is all necessary to sat-isfy the right which he has established by beneficial use; whatever surplus may exist at any time being available for later appropriators, in the order of their priorities according to the time of making their appropriations. In some of the western states, the two doctrines exist concurrently. Ground Water For ground waters, there are three primary doctrines of ownership and use: 1. The English or common law rule of absolute ownership, which recog-nizes ownership of subsurface waters by the owner of overlying land and places no restriction upon the land-owner's right of use of the water on his overlying land or elsewhere. 2. The American rule of reasonable use, which also recognizes ownership of subsurface water by the owner of overlying land but limits his right of use of the water to such use, on or in connection with his overlying land, as is reasonable with regard to the similar rights of all other owners of lands which overlie the same source of water supply. 3. The doctrine of appropriation, which adapts to subsurface waters the appropriative principles developed in connection with surface watercourses. This doctrine recognizes ownership of the underground waters by the public, subject to appropriation for beneficial use, and the place of use need not be on lands which overlie the source of ground water supply. In most of the western states, a dis-tinction is made between percolating waters and ground waters which flow in well defined subterranean water-courses. Waters which flow in defi-nite underground streams are gener-ally subject to the same rules of law as waters in surface watercourses. Separate ground water doctrines then apply only to percolating waters. The riparian and common law doc-trines are generally followed in the August 1950 eastern part of the United States, while the appropriation doctrine is used almost exclusively in the western states. For that reason, in arranging the tabular material, the 31 states east of the ninety-seventh meridian have been placed in one alphabetical group and the 17 western states, in another. It should be noted that, in England, where the common law originated, the rule of reasonable use has been sub-stituted to some extent by statute. State Authorities The functions of the various state water control agencies and authorities have been divided into eight categories: 1. Surface, water. This category pertains to the development and use of rivers, lakes, ponds and the like for purposes such as public water sup-plies, irrigation, hydroelectric plants or industrial uses, but does not include individual domestic supplies. In most states, developments in existence when the authority was established have the right-to continue their water use with-out recourse to the authority. Hence, the authority applies generally to new or additional water uses. The juris-diction of public utility or public serv-ice commissions over water rates, wa-ter service and other related matters is not included. . 2. Ground water. This category pertains to the development and use of ground water for purposes such as public water supplies, irrigation or in-dustrial uses, but does not include in-dividual domestic supplies. In most states, developments in existence when the authority was established have the right to continue their water use'with-out recourse to the authority. Hence, the authority applies generally to nezv or additional water uses. These agen-757 cies are generally concerned with the "taking of ground water" rather than with the details of well construction and sanitary precautions, which are referred to the health departments; in some states, the latter aspects are also covered by the water authority. As for surface waters, the jurisdiction of public utility commissions over water rates and the like is not included. 3. Dams, diversion works, etc. This category pertains to the effects of res-ervoir construction on activities such as: [ 1 ] protection of life and property from unsafe structures or inadequate spillways, and from interference with .normal drainage; [2] provision for fish and game, particularly the inclu-sion of fishways or fish ladders on streams used for spawning; and [3] prevention of flood-induced health haz-ards and nuisances, such as the crea-tion of w a i t e r surfaces which might t encourage mosquito breeding. Not in-cluded is the jurisdiction frequently exercised by health departments over the general adequacy of dams and res-ervoirs as integral parts of public wa-ter supply systems, as distinguished from structural soundness. 4. Water quality and treatment— public supplies. This category per-tains to the jurisdiction normally exer-cised by state health departments over the design, construction and operation of public water supply systems and over the quality of the water supply, in order to safeguard the health of the people. 5. Water quality and treatment— industrial drinking water. This cate-gory pertains to the jurisdiction over private water supplies which are pro-vided for drinking and sanitary pur-poses in industrial plants. Water used for processing only is not included. WATER USE DOCTRINES AND AGENCIES 758 6. Stream pollution control. ' This category pertains to policy and con-trol matters, such as the establishment of stream standards and the minimum degree of treatment, as distinguished from routine approval of design, con-struction and''operation of sewage and waste disposal' systems. The latter is frequently under the jurisdiction of the health ' department, acting either separately or as the technical arm of the stream pollution control agency. In many states, the delineation of func-tions 'and-Authority is not rigid and there!'is;•some overlapping. • 7. Sewage disposal—technical. This category pertains to the agency charged with the review or approval of plans, construction and operation of sewer-age systems and treatment works. 8. Industrial waste disposal—-techni-cal. This category pertains to the agency charged with the review or ap-proval of plans, construction and op-eration of industrial waste disposal sys-tems and treatment works. In most states, public water sup-plies are under the jurisdiction of the health department, which has, directly or indirectly, considerable authority over the whole range of water sup-ply development. For example, it' is frequently necessary to obtain ap-proval from the health department for the construction of reservoirs, pumping stations and other water supply facili-ties which are perhaps not directly re-lated to health aspects. The committee has not attempted to indicate this over-all jurisdiction"except where the health department is the only or principal agency having control. The committee has distinguished be-tween stream pollution control in gen-eral and the technical control of sewage disposal and of industrial waste dis-Jour. AWWA posal. Often this distinction is not real, and full authority is vested in the health department or one other agency. There is a growing tendency through-out the country, however, and par-ticularly in the eastern states, toward the creation of water pollution control agencies. These agencies or boards usually include representatives not only of the health department but also of the conservation, recreation and in-dustrial interests. This is an impor-tant development, because it reflects the recognition that stream pollution abatement is an economic problem fully as much as it is a health problem. Therefore, the committee has thought it worth while to include in a separate classification the water pollution con-trol boards, where they exist. In some states, the jurisdiction that applies to a public water supply does not apply to private developments such as might be required for an industrial plant. In the tabulation, the committee has noted this distinction wherever it exists. The development of water sup-plies for major industrial plants is of increasing importance, and, all too of-ten, the legal complications have been overlooked until other commitments have been made. Health department control in industrial plants usually per-tains only to drinking water and waste discharge, and does not concern itself with process water needs. The tabulation lists the state agen-cies and authorities under the eight regulatory functions previously men-tioned. The titles of the agencies are sometimes misleading, and, as has been noted, their functions occasionally over-lap. In general, only those agencies with legal authority are included. Where research and fact-finding agen-cies have become important in water COMMITTEE REPORT August 1950 WATER USE DOCTRINES AND AGENCIES 759 supply development, they have also been included, as have agencies with advisory functions where no authority exists. Advisory or research agencies, without authority to compel compli-ance, are so noted in the listing. The report does not include all the public' or semipublic organizations which fur-nish valuable information on water re-sources, water quality, existing devel-opments and so forth. Nearly always, the actions, decisions and orders of the several authorities are subject to appeal in the state courts, and enforcement of the statutes and regulations is obtained through the courts. Statistical Information . The tabulation of the state agencies has produced some statistics which may be of interest. Of the 48 states, 29 have agencies that exercise some control over the use of surface water. A l l of the 17 western states have such control authorities, usually acting through the state engineer. There are 13 states with no control agency, while the remaining 6 have agencies with advisory powers. One state has con-trols that apply to industrial water use only; another, to municipal water use only. State regulation of ground water use is not so highly developed: 26 states have some agency with authority over ground water.use; 18 have no such, authority; and 4 have advisory agen-cies. In one state, control applies to industrial use only; and, in New York. State, the control extends to Long Island only. Al l of the states have statutes for-bidding nuisances or actions affecting the public health. Of the 48 states, 43 have definite laws sfor controlling stream pollution. In about half of the states, this control is exercised by the state health'department, with the con-servation department having control over fish and game. Twenty-three states have distinct overall water pol-lution control bodies to determine poli-cies and set standards. Of these 23 states, 20 are east of the ninety-seventh meridian. Interstate Activities One of the interesting developments in recent, years has been the rapid growth of interstate compacts and agreements for the control and devel-opment of water resources. Under the U.S. Constitution, compacts between states must be ratified by each of the states and consented to by Congress. In addition, there have been several interstate agreements which pertain primarily to water pollution control but do not have the same legal force as a compact. (A list of these com-pacts arid agreements, showing the member states, appears on p. 761.) In the western states, the water com-pacts are concerned with the division of available water for irrigation and other water supply purposes. In the eastern states,, the compacts have dealt principally with ' water pollution and the establishment of standards and abatement procedures. The present Incodel (Interstate Commission on the Delaware River Basin) water supply investigation is an exception. The earliest of -the water compacts is the Colorado River Compact of 1921, which was approved by Congress in 1928 and ratified by the last member state in 1944. The earliest pollution control compact was the Tri-State Pol-lution Compact between Connecticut, New.Jersey and New York, which was 760 COMMITTEE REPORT Jour. A WW A approved by Congress in 1935 and ratified finally by Connecticut in 1941. Frequently the interstate arrangements have become so important that what can be done within a certain state de-pends principally upon its interstate commitments. The various interstate water resources commissions, compacts and agreements to which each state is a party are indicated in the state-by-state tabulation. Thirty-three states are parties to one or more compacts or agreements. Col-orado has signed eight compacts and one agreement. Among the eastern states, New York leads the way with membership in four compacts, and it has also signed one agreement. New York has even made the grade as one of the New England states through membership in the New England In-terstate Water Pollution Control Com-mission. In addition, mention should be made of the Federal Water Pollution Con-trol Act of 4948 for the control of pol-lution of interstate waters. A special Water Policy Resources Commission has been established recently by the President to make recommendations on federal participation in water re-sources matters. Conclusion The committee wishes to make it clear that this report is in no way con-clusive. There are in the committee's files more detailed data concerning the statutes and regulations in the various states. The committee has simply tried to put together in a comparatively short time information that should be helpful to people who are interested in the legal aspects of water resources control. Water law has been a popu-lar subject at recent A.W.W.A. meet-ings. The committee is not certain exactly how far or in what direction the Water Resources Division of A.W.W.A. might want to go in con-nection with water law problems, but the committee is convinced that it is a fertile field worth investigating. The allocation of water has been a critical problem in the western states for a great many years, and the water works men in that part of the country are well versed in the legal aspects of the problem. In the eastern states, up until now, water has been so plentiful that comparatively little attention has been paid to water law except in a few important interstate cases,' and with regard to stream pollution. There is still a lot of water in the eastern states, but, unfortunately, much of it is too far away from the centers of popu-lation and industry to be of great use. The growing public appreciation of the water supply problem in many parts of the country is obvious. It seems certain that the A.W.W.A. will want to take the lead in fostering the development of1 policies and procedures to assure an equitable and economical development of the nation's water resources. Reference 1. WASHINGTON DEPT. OF CONSERVATION &-DEVELOPMENT. 14th Biennial Rept., Oct. 1, 1946-Sept. 30, 1948. Olympia, • Wash., p. 170. \ August 1950 WATER USE DOCTRINES AND AGENCIES 761 Interstate Commissions, Compacts and Agreements Congress-approved Commissions and Compacts Name 1. Tri-State Pollution Com-pact (Interstate Sani-tation Com.) 2. Interstate Com. on the Delaware R.^ Basin 3. New England Interstate Water Poln. Control Com. 4. Interstate"Com. on the Potomac R.; Basin 5. Ohio R. Valley Water Sanitation Com. i 6. Red R. Flood Control Compact (Tri-State Water Com.) 7. Belle Fourche R. Com-pact 8. Arkansas R. Compact 9. South Platte R. Com-pact 10. Republican R. Compact 11. Pecos R. Compact 12. Rio Grande Compact 13. Costilla Creek Compact & La Plata R. Com-pact 14. Upper Colorado R. Basin Compact 15. Colorado R. Compact Participating States Conn., N.Y. N.J., Del., N.J., N.Y., Pa. Conn., Mass., N.Y., R.I. Dist. of Colum-bia, Md., Pa., Va., W.Va. 111., Ind., Ky., N.Y.,Ohib,Pa.1 Va., W.Va.* Minn., N.D., S.D. S.D., Wyo. Colo., Kan. Colo., Neb. Colo., Kan., Neb. N.M., Tex. Colo., N.M., Tex. Colo., N.M; Ariz., Colo., N.M., Utah, Wyo. Ariz., Calif., Colo., Nev., N.M., Utah, Wyo. * West Virginia's participation in this commission ruled unconstitutional by state supreme court, April 4, 1950. Informal Agreements and Agencies Name 16. Great Lakes Drainage Basin Sanitation Agreement 17. Upper Mississippi R' Drainage Basin Sani-tation Agreement 18. Missouri R. Basin Health Council 19. Red R. Basin Sanitation Agreement (Interstate Sanitation Commit-tee) Participating States III., Ind.; Mich., Minn., N.Y., Ohio, Pa., Wis. 111., Ind., Iowa, Minn., Mo., Wis. Colo., Iowa, Kan., Minn., Mo., Mont., Neb., S.D., Wyo. v Minn., N.D., S.D. \ 762 COMMITTEE REPORT Jour. AW WA Summary of Basic Water Use Doctrines Basic L a w State Authorities State ; Surface Water Ground Water Surface Water Ground Water Dams, Diversion Works, etc. Qual i ty & Treatment— Public Supplies * 1. A l a b a m a r i p a r i a n d o c t r i n e c o m m o n l a w none none S e c y . o f S t a t e ; P u b l i c Serv ice C o m . 1 D e p t . of -P u b l i c H e a l t h 2 . A r k a n s a s r i p a r i a n d o c t r i n e c o m m o n l a w Resources & D e v e l o p m e n t C o m . (ad-v i s o r y ) 1 Resources & D e v e l o p m e n t C o m . (ad-v i s o r y ) G a m e & F i s h C o m . (fish-ways ) B o a r d of H e a l t h 3. C o n n e c t i c u t r i p a r i a n d o c t r i n e c o m m o n l a w D e p t . of H e a l t h ' none B o a r d of S u -p e r v i s i o n of D a m s D e p t . of H e a l t h 4. D e l a w a r e r i p a r i a n d o c t r i n e c o m m o n l a w none none none B o a r d of H e a l t h 5. F l o r i d a r i p a r i a n d o c t r i n e c o m m o n l a w Trus tees of I n t e r n a l I m -p r o v e m e n t F u n d 1 ; B o a r d of C o n s e r v a -t i o n B o a r d of C o n s e r v a t i o n 1 B o a r d of C o n s e r v a t i o n 1 B o a r d of H e a l t h 6. G e o r g i a r i p a r i a n d o c t r i n e c o m m o n l a w none none 1 G a m e & F i s h C o m . (fish-ways ) D e p t . of P u b l i c H e a l t h 7. I l l i n o i s / r i p a r i a n doc t r ine c o m m o n l a w none 1 D e p t . of M i n e s & M i n -erals ( submis -s ion of w e l l logs ) 2 D e p t . of P u b l i c W o r k s & B u i l d i n g s D e p t . of P u b l i c H e a l t h 8. I n d i a n a r i p a r i a n d o c t r i n e c o m m o n l a w 1 none D e p t . of C o n -s e r v a t i o n F l o o d C o n t r o l & , W a t e r R e -sources C o m . B o a r d of H e a l t h o 9. I o w a r i p a r i a n doc t r ine c o m m o n l a w N a t u r a l Resources C o u n c i l N a t u r a l Resources C o u n c i l . N a t u r a l Resources C o u n c i l D e p t . of H e a l t h 10. K e n t u c k y r i p a r i a n d o c t r i n e c o m m o n l a w D e p t . of C o n ^ s e r v a t i o n ( adv i so ry ) D e p t . of C o n -s e r v a t i o n ( adv i so ry ) none D e p t . of H e a l t h August 1950 WATER USE DOCTRINES AND AGENCIES 763 and Slate Water Control Agencies State Authorities (contd.) State Quality & Treatment— Industrial Drinking , Water Stream Poln. Control Sewage Disposal— Technical Industrial Wastes— Technical Interstate Activities* Notes 1 0 Dept. of Public Health Water Im-provement Advisory Com. ' Water Im-provement Advisory Com.; Dept. of Public Health Water Im-provement Advisory Com.; Dept. of Public Health none 1 power and industrial use only l V 2 Board of Health Water Poln. Control Com. in Board of Health Water Poln. Control Com. in Board of Health Water Poln. Control Com. in Board of Health2 none 1 Game & Fish Com. pre-vents lowering of stage of river which might affect fish life 2 Oil & Gas Com. regulates disposal of wastes in sub-surface formations 3 Dept. oft, Health ' Water Com. Dept. of • Health Dept. of Health 1, 3 1 advises General Assem-bly in granting charters 4 Board of Health Water Poln. Com.' Water Poln. Com. 1 Water Poln. Coin.1 2 . 1 Board of Health is ad-ministrative agent 5 Board of Health Board of Health Board of Health Board of Health none 1 Div. of Water Survey & Research is advisory agency 6 Dept. of Public Health ' -none2 Dept. of Public Health Dept. of Public Health none 1 local control in some areas 2 riparian doctrine only 7 Dept. of Public Health (only when part of public supply) Sanitary Water Board Sanitary Water Board Sanitary Water Board 5, 16, 17 1 Water Resources & Flood Control Board is coordi-nating agency 2 Water Survey Div. pro-> vides research and tech-nical services i 8 Board of Health Stream Poln. Control Board2 Board of Health Board of Health I 5, 16, 17 1 with some restrictions on use 2 technical assistance by Board of Health 9 Bureau of Labor1 Dept. of Health; Con-servation Com. Dept. of Health Dept. of Health 17, 18 1 Dept. lof Health advises_ on industrial hygiene 10 Dept. of Health Water Poln. Control Com. 1 Water Poln. Control Com. 1 • Water Poln. Control Com. 1 5 •effective June 17, 19S0; technical assistance fur-nished by Dept. of Health and other state agencies * The numerals in this column indicate membership in the correspondingly numbered interstate compacts, agreements and agencies listed on p. 761. 7 6 4 "~" C O M M I T T E E REPORT Jour.AWWA Summary of Basic Water Use Doctrines Basic Law State Authorities State Surface Water Ground Water Surface Water Ground Water Dams, Diversion Works, etc. Quality & Treatment— Public Supplies 11. Louisiana riparian doctrine 1 common law 1 none none Dept. of Pub-lic Works; Dept. of Wi ld Life & Fish-eries Dept. of Health 12. Maine riparian doctrine common law Water Re-sources D i v . of Public Utilities Com. none Public U t i l i -ties Com. Dept. of Health & Welfare 13. Maryland riparian doctrine 1 common law 1 Dept. of Geol-ogy. Mines & Water Re-sources (ex-cept munic. supplies) Dept. of Geol-ogy, Mines & Water Re-sources (ex-cept munic. supplies) Dept. of Geol-ogy. Mines & Water Re-sources (ex- ( cept munic. ' supplies) Board of Health 14. Massachusetts riparian doctrine 1 common law / county com-missioners none county com-missioners i Dept. of Public Health IS. Michigan riparian doctrine ' f common law Water Re-sources Com. / r Water Re-sources Com.; Dept. of Con-servation (advisory) county boards of supervisors Dept. of Health 16. Minnesota appropria-tion doc-trine 1 appropria-tion doc-trine 1 Dept. of Conservation Dept. of Conservation Dept. of Conservation Dept. of Health 17. Mississippi riparian doctrine \ common law none none none Board of Health 18. Missouri riparian doctrine common law D i v . of Geo-logical Survey & Water Re-sources (ad-visory) 1 D i v . of Geo-logical Survey & Water Re-sources (ad-visory) 1 Conservation Com. (fish-ways) D i v . of Health of Dept. of Public Health & Welfare August 1950 WATER USE DOCTRINES AND AGENCIES 765 and State Water Control Agencies—(contd.) State Authorities (contd.) State Quality & Treatment— Industrial Drinking Water Stream Poln. Control Sewage Disposal— Technical Industrial Wastes— Technical . Interstate Activities* Notes 11 Dept. of Health Stream Con-trol Com. 2 Dept. of Health Stream Con-trol Com. ; Dept. of Health none 1 these concepts provided for in civi l code 2 administrative agency is Dept. of W i l d Life &' Fisheries \ 12 Dept. of 1 Health & Welfare I Sanitary Water Board 1 Dept. of Health & . Welfare 1 Sanitary Water Board none 1 Dept. of Health & Wel-fare and Public Utilities Com. have concurrent jurisdiction over" certain phases 13 Board o f 0 Health Water Poln. Control Com. Water Polri. Control Com.; Board of Health Water Poln. Control Com.; Board of Health 4 1 diversion of waters for purposes other than munic , domestic or farm use controlled by Dept. of Geology, Mines & Water Resources 14 Dept. of Public Health Dept. of Public Health; Dept. of Conserva-tion (protec-tion of aquatic life) Dept. of Public Health Dept. of Public Heal th 2 . i • 3 1 legislature has enacted laws controlling specific supplies ' D e p t . of Public Safety has power over discharge of oil into waterways IS Dept. of Health 1 Water Re-sources Com. Dept. of Health 1 Dept. of Heal th 1 16 / 1 notice of any new dis-posal of waste must be given to Water Resources Com., which sets mini-m u m r e s t r i c t i o n s o n treatment 16 Dept. of Health Water Poln. Control Com. 2 Water Poln. Control C o m . 2 Water Poln. Control Com. ' 6, 16-19 1 does not apply to. bene-ficial uses and rights in existence on July 1. 1937, nor to use for any pur-pose originating within a municipality or for less than 25 persons ' D e p t . of Health is ad-'ministrative and tech-nical agency 17 Board of Health Fish & Game Com. Board of Health Fish & Game Com. none 18 D i v . of Health of Dept. of Public Health & Welfare D i v . of Health (health as-pects); Con-servation Com. (fish life) D i v . of Health D i v . of Health 17. 18 1 D i v . of Research and Development also advi-sory . * The numerals In this column indicate membership in the correspondingly numbered interstate compacts, agreements and agencies listed on p. 761. > 766 ( COMMITTEE REPORT J OUT. AW W A Summary of Basic Water Use Doctrines Basic Law State Authorities State Surface Water Ground Water Surface Water Ground Water Dams, Diversion Works, etc. Quality & Treatment— Public Supplies 19. New Hamp-shire riparian doctrine common law Water Re-sources Board; legi