Adaptive Management in Water Law: Evaluating Australian (New South Wales) and Canadian (British Columbia) Law Reform Initiatives

Abstract

Sub-national jurisdictions are undertaking law reform that attempts to remedy the historic inflexibility in water law and to provide security in water use entitlements. These reforms respond to increasing hydrological variability in many watersheds where the volume of water available for consumption at the times of highest demand is decreasing and minimum environmental flows are a precursor to healthy ecological systems. Adaptive management is a foundational ecological and ecosystem-based management principle. Scholars and professionals from a myriad of disciplines are calling for legal and policy structures that allow adaptive environmental management regimes based on evolving watershed conditions. Adaptive management in a water context requires integrated decision- making that incorporates land use decisions with decisions about surface and groundwater, provision for minimum environmental flows, and the ability to alter water users’ entitlements when a water resource is either over-allocated or changing flow regimes results in insufficient water. The purpose of this paper is to compare the water law reforms of the state of New South Wales in Australia and the province of British Columbia in Canada as they attempt to incorporate legal and management tools for adaptive management and to address fixed entitlements for water use in favour of more responsive and watershed-specific management approaches. In New South Wales, adaptation in water law is based on a watershed plan and allocation of a fluctuating consumptive pool of water, which is the amount of water available for extraction under licence after environmental needs are taken into account. In British Columbia, the provincial government may adapt water licences over time through water sustainability planning and water licence review, as well as issue short-term orders restricting water diversions without needing to compensate licence holders for any damages owing from these orders. These reforms are leading the restructuring of water law to address conflicts between water users as well as between water users and the environment. These reforms are also at the forefront internationally as models for adaptive management. They provide some flexibility in accommodating environmental flows but decrease certainty for water users as hydrological systems change. Their relative successes in accounting for adaptation and healthy hydrological systems will be instructive to other jurisdictions as they move to align their water laws with principles of adaptive management.