Water Sustainability Act temporary protection orders

During times of water scarcity, the Province can issue temporary protection orders (TPOs) under the Water Sustainability Act (WSA) to protect fish populations and the aquatic ecosystem.

On this page

• Temporary protection orders under the Water Sustainability Act
• Communication with licensees
• How does the province enforce regulatory action?
• Additional information
• Historical temporary protection orders

Temporary protection orders under the Water Sustainability Act

TPOs are regulatory measures that the Province can take to curtail water users during times of water scarcity. These regulatory measures protect the:

• Critical environmental flow needs of aquatic ecosystems
• Survival of fish populations

As drought conditions arise, water licence holders may be asked to reduce their water use. In some situations, voluntary water conservation cannot protect stream flows for fish and wildlife needs. In these situations, the minister can issue a TPO to temporarily suspend the rights of some licensees to protect aquatic ecosystems or fish populations. TPOs are implemented as a last resort, in accordance with the legislation, and with consideration to the needs of water users.

Declaration of Significant Water Shortage (section 86)

Under section 86 of the WSA, if one or more streams in an area have fallen or are at risk of falling below their critical environmental flow thresholds (CEFT), the minister or the Lieutenant Governor in Council may make a temporary order declaring a significant water shortage in the area designated in the order.

The CEFT in relation to the flow of water in a stream is the volume of water flow below which significant or irreversible harm to the aquatic ecosystem of the stream is likely to occur.

Critical Environmental Flow Protection Orders (section 87)

Following a WSA section 86 declaration of significant water shortage, WSA statutory decision makers may issue WSA section 87 critical environmental flow protection orders to protect the CEFT of one or more streams within the area designated by the declaration of significant water shortage. A section 87 order gives the CEFT of the stream precedence over all existing rights on those sources. Water rights are then curtailed following the first in time, first in right (FITFIR) system of rights until flows are restored. People affected by a WSA section 87 order are not prohibited from diverting water from the stream or aquifer for essential household use. 

Fish Population Protection Orders (section 88)

WSA section 88 fish population protection orders are used when flows become so low that the survival of fish is or may become threatened.

Fish population protection orders curtail specific water users on a stream, its tributaries, and any hydraulically connected aquifers. The curtailment of water rights does not follow the system of FITFIR and is based on restoring flows as quickly as possible to protect fish populations.

The minister will consider the needs of agricultural users before issuing a fish population protection order only after giving due consideration to the needs of agricultural users.

Information used to support the decision to issue a TPO

Ministerial orders that curtail water rights during water scarcity are based on supporting science and socio-economic analyses that consider multiple ecosystem values, industries, and sectors.

The information to support a decision includes:

• Fish population information and flow needs for fish population survival
• Current and projected flow in the stream of concern
• Water use in the stream and hydraulically connected aquifers
• Models and analysis of streamflow responses to curtailment of water users (includes analysis of surface water and groundwater use that is having the most significant impact on streamflow)
• Short and long-term needs of agricultural and other industries
• Communications with licensees
• Any supporting information provided by other parties (for example: First Nations, Fisheries and Oceans Canada)

Communication with licensees

Who can be affected?

All water users in the watershed, including licensees, holders of use approvals, and other authorized users, are reviewed when considering a TPO. In most cases where TPOs have been issued, the predominant use was agriculture. For example, 95% of water use in the Salmon River watershed is attributed to agriculture. However, industrial and mining purposes have been included in other TPOs where that type of use of water was present and where it was determined that curtailing that use would have an appreciable impact on streamflow recovery.

Early notice and voluntary reduction requests

Early communications with water users focus on drought preparedness (e.g., steps users can take now to help prevent drought impacts) and awareness of early season conditions.

As drought conditions worsen, the Province will increase monitoring in watersheds with high fisheries values and high-water use. Regional staff work closely with other levels of government and First Nations to understand the demands on the watershed and to try and balance the needs as best as possible through voluntary water conservation efforts.

As drought levels increase, water users can expect to receive requests for voluntary water conservation to help minimize further declines in stream flows and to prevent or defer the need for regulatory actions. Water uses may receive multiple requests with increasing urgency to voluntarily reduce water use as the severity of drought conditions escalates.

If voluntary water conservation does not improve flow conditions, TPOs may be pursued as a last resort.

Notifying water licensees

TPOs are delivered through a variety of methods. Orders can be:

• Hand-delivered by Natural Resource Officers and other government staff to allow for the most impact and benefit to streamflow
• Mailed through Canada Post
• Left at licensees’ residences

Specific requirements for section 117 of the WSA specifies requirements for the delivery and publication of documents and information.

How does the Province enforce regulatory action?

Entering onto Private Property

Section 89 (1) of the WSA establishes that Natural Resource Officers and other provincial staff designated under the Act may enter onto any land or premises for the purpose of exercising powers or performing duties. Under this authority, Natural Resource Officers and Provincial staff must not enter private dwellings except with the consent of the occupant or as authorized by a warrant.

Compliance and Enforcement

Regulatory action will be taken if a TPO under the WSA is not followed, including significant fines. Compliance and enforcement staff actively monitor compliance.

A person who contravenes a WSA section 88 fish population protection order may be charged with a high penalty offence under WSA section 107 or be subject to a financial penalty of up to $500,000 under section 99 of the WSA and the associated Administrative Penalties Regulation. 

Additional information

Historical TPOs