This appendix introduces the main legislation and guidelines that govern flood hazard management in BC.
D1 O
VERVIEWLand use in flood prone areas is regulated under the following acts:
Local Government Act (for development permits and floodplain bylaws, variances and
exemptions),
Land Title Act(for subdivision approval),
Bare Land Strata Regulations of the Strata Property Act (for strata plan approvals), and Community Charter (for building permits).
The construction and maintenance of many of the flood control works in BC are regulated by
the Dike Maintenance Act. There are approximately 100 diking authorities throughout the
province, which are charged with the responsibility to operate and maintain these works. The majority of diking authorities are local governments so designated under the Local
Government Act or the Community Charter. In the past a number of other entities have been
recognized as diking authorities including improvement districts, diking districts (under the
Drainage, Ditch and Dike Act), strata corporations, ratepayers associations, government
agencies, non-government organizations, private corporations, and private individuals. However, approvals for new structures, as defined by the Dike Maintenance Act, will only be authorized where local government has agreed to be the diking authority.
Development and/or flood protection works proposed for construction in riparian areas11 or
within a watercourse may require approvals pursuant to the following environmental legislation:
Riparian Areas Regulation under the BC Fish Protection Act,
BC Water Act,
Federal Fisheries Act,
provincial or federal Environmental Assessment Act, federal Navigable Waters Act.
Any works or activities proposed for construction on or for the use of Crown land, including the removal of gravel from a channel or foreshore requires authorization under the Land Act. Integrated Land Management Branch of the MFLNRO Lands Officers may require flood assessments as a requirement for applications to lease and purchase Crown lands.
Flood management is guided at the local government level through Official Community Plans, bylaws, development permits, building permits, zoning restrictions, and other types of
documents. Local governments may have additional requirements concerning public access to watercourses.
Development of floodplains on First Nations land can be subject to regulation by the local First Nations as well as Aboriginal Affairs and Northern Development Canada. Local governments
11 A riparian area is the interface between land and a watercourse or water body. Specifically, it is the land area directly adjacent to the watercourse or water body, the character of which is directly influenced by the presence of the water course or water body.
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APEGBC June 2012 Assessments in a Changing Climate in BC 77
may be required to consult with local First Nations when developing floodplains adjacent to First Nations land, however, there is no legal framework for such consultations.
D2
E
NVIRONMENTALM
ANAGEMENTA
CT(S
ECTIONS5
AND138)
Sections 5(f) and 138 (3) (e) of the Environmental Management Act provide the Minister of Forests, Lands and Natural Resource Operations with broad flood management powers, including the authority to establish guidelines and regulations. The Minister may also require local governments and diking authorities to prepare plans with respect to flood protection dikes
and the development of land subject to flooding. While no regulations have been established under this statute to date, the Ministry has published the Flood Hazard Area Land Use
Management Guidelines (discussed in Section D8) that must be considered by local
governments when adopting floodplain bylaws under Section 910 of the Local Government Act. These guidelines are periodically updated by MFLNRO.
D3
L
ANDT
ITLEA
CT(S
ECTION86)–S
UBDIVISIONA
PPROVALSSection 86 of the Land Title Act (Section 86) allows the Approving Authority to address natural hazards issues during the subdivision application process. It contains provisions for “refusing to approve” a subdivision plan if the Approving Authority reasonably expects that the land could be subject to “flooding, erosion, land slip [landslide] or [snow] avalanche.”
If the Approving Authority reasonably expects that the land may be subject to flooding, Section 86 allows the Approving Authority to require either or both of the following as condition(s) of approval:
a report certified by a professional engineer or professional geoscientist experienced in geotechnical engineering that the land may be used safely for the use intended; and/or one or more registered covenants under Section 219 of the Land Title Act in respect of any
lots created by the subdivision.
A restrictive covenant is attached to the property title. The covenant will typically specify conditions the development must adhere to reduce floodrisk and to indemnify the Crown and
the Approving Authority against future flood damages.
D4
L
OCALG
OVERNMENTA
CT(S
ECTIONS919.1
AND920)–D
EVELOPMENTP
ERMITSThe Local Government Act (Sections 919.1 and 920) states that a local government Official
Community Plan can establish a Development Permit Area to protect development from
“hazardous conditions”.
According to the Local Government Act, hazardous conditions include “flooding, mud flows, torrents of debris [debris flows], erosion, land slip [landslide], rock falls, subsidence, tsunami, [snow] avalanche or wildfire”.
In a Development Permit Area, an owner must obtain a Development Permit from the local government before subdividing or altering the land, including constructing, adding to, or otherwise altering a building or other structure. A Development Permit may set out
requirements, conditions or standards regarding the development itself or the sequence and timing of construction. In particular, a Development Permit can establish flood-prone areas that must remain free of development.
Before issuing a Development Permit, the local government may require the applicant to provide a report “certified by a Professional Engineer with experience relevant to the
applicable matter, to assist the local government in determining the conditions or requirements”.
A Development Permit precedes a related building permit. Both may be required in
jurisdictions that have an Official Community Plan and where development may be exposed to flooding.
D5
B
AREL
ANDS
TRATAR
EGULATIONS,S
TRATAP
ROPERTYA
CT–S
TRATAP
LANA
PPROVALSA Bare Land Strata Plan must be reviewed and found acceptable by a local government
Approving Authority. The Approving Authority can refuse to approve the strata plan if it is considered that the land could reasonably be subject to “flooding, erosion, land slip [landslide] or [snow] avalanche”. Alternatively, the Approving Authority can approve the plan “if the owner-developer agrees in writing to enter into such covenants registerable under section 182 of the Land Title Act as the Approving Authority considers advisable.”
For Strata Title applications other than bare land strata, floods may be addressed through the
Official Community Plan, re-zoning, and Development Permit process documented elsewhere
in this appendix.
D6 C
OMMUNITYC
HARTER(S
ECTION56)–B
UILDINGP
ERMITSThe Community Charter (Section 56) contains provisions governing the ability of a building inspector to issue a building permit for land that is likely to be subject to “flooding, mud flows, debris flows, debris torrents, erosion, land slip [landslide], subsidence, rock falls, or [snow] avalanche”.
In areas where a bylaw exists regulating the construction of buildings and other structures, the building inspector may require an applicant proposing construction on flood-prone land to “provide the building inspector with a report certified by a QP that the land may be used safely for the use intended.”
If the QP does not conclude the statement ‘that the land may be used safely for the use intended’, the building inspector may not issue the building permit.
Any conditions noted in the QP report necessary to render the land safe for the use intended are incorporated in a covenant registered under Section 219 of the Land Title Act. Usually, the
QP report is registered in the covenant making the document publicly available.
D7
L
OCALG
OVERNMENTA
CT(S
ECTION910)–F
LOODPLAINB
YLAWS,V
ARIANCES ANDE
XEMPTIONSThe Local Government Act (Section 910) addresses construction requirements in relation to
floodplains. Specifically, this section of the Local Government Act empowers local government to enact a bylaw that designates a floodplain area and specifies corresponding flood levels and setbacks. Any new construction or reconstruction within the designated floodplain area must comply with these protection measures. (When dealing with building renovations, often the flood protection measures are not required if the renovation does not exceed 25% of the building footprint.)
In developing its bylaws, the local government must consider provincial guidelines as well as comply with the provincial regulations and any plan or program developed by the local
Professional Practice Guidelines - Legislated Flood
APEGBC June 2012 Assessments in a Changing Climate in BC 79
government under those regulations. To date, there are no provincial regulations and therefore no local government plans or programs developed under regulation. However, the provincial document Flood Hazard Area Land Use Management Guidelines (discussed below) provides guidance for developing bylaws under Section 910 of the Local Government Act. Through Section 910 of the Act, local governments may, by bylaw, designate specific floodplain areas. Section 910 also indicates that a local government can grant a bylaw exemption if:
the exemption is consistent with the provincial guidelines; or
a report exists that the land may be used safely for the use intended, as certified by a
professional engineer or professional geoscientist experienced in geotechnical engineering
and expertise in river engineering and hydrology.
Historically, some jurisdictions have enacted bylaws under Section 903 of the Local
Government Act, which governs zoning bylaws. However, it is preferable that a Section 910
bylaw be used.
D8
F
LOODH
AZARDA
REAL
ANDU
SEM
ANAGEMENTG
UIDELINES The Flood Hazard Area Land Use Management Guidelines(www.env.gov.bc.ca/wsd/public_safety/pdfs_word/guidelines.pdf) are published by the
MFLNRO under the Environmental Management Act to assist local governments in developing and implementing management strategies for flood-prone areas. These guidelines are
considered a key resource for implementing management practices at the local level, are referenced under Section 910 of the Local Government Act and must be considered by local government in developing bylaws under that Section.
The Flood Hazard Land Use Management Guidelines (May 2004) have five general sections,
organized to address administration, floodplain mapping, application by natural hazard type, application by specific land use, and implementation measures.
The QP should also be familiar with the Floodplain Mapping Guidelines and Specifications
(Fraser Basin Council, 2004) and Guidelines for Legislated Landslide Assessments for
Proposed Residential Developments in BC (APEGBC, 2010) (see below).
As an important complement to the Flood Hazard Area Land Use Management Guidelines, the provincial government has developed a set of flood hazard maps and a registry of flood hazard
reports based on information accumulated by the BC Floodplain Development Control program (discontinued in 2003). These maps and reports registry are available from the approval authority. Some approval authorities update the maps. However, for the most part, these maps remain as unsupported legacy documents that represent the state of knowledge and understanding of known hazards at the time the maps were initially produced. In light of ongoing environmental change, a QP who consults such legacy documents must always be aware of their date of production and consider changes to the indicated conditions that may have occurred since.
D9
G
UIDELINES FORL
EGISLATEDL
ANDSLIDEA
SSESSMENTS FORP
ROPOSEDR
ESIDENTIALD
EVELOPMENTS INBC
In 2006, APEGBC produced a comprehensive suite of guidelines aimed at assisting QPs
retained to undertake landslide assessments in areas subject to rock falls, slumps, slides, avalanches, or creep; debris falls, slides, flows, or floods; earth falls, slumps, slides, flows, creep, and flow slides. Where flood hazards overlap with areas subject to one or more of the
above hazards, the Guidelines for Legislated Landslide Assessments for Proposed Residential
Developments in BC must be consulted in conjunction with these guidelines.
D10
D
IKEM
AINTENANCEA
CTThe Dike Maintenance Act gives authority to the provincial Inspector of Dikes. Under the Dike
Maintenance Act, the Inspector of Dikes may:
access and inspect designated flood protection structures;
require that a local authority repair, replace, renew, alter, add to, improve, or remove all or part of a flood protection or appurtenant structure; and
require a diking authority to provide routine or special reports on the construction or maintenance of dikes for which the diking authority is responsible.
The Inspector of Dikes must give authorization in writing before a person or diking authority can:
(a) lower, or cause or allow to be lowered, the elevation of a dike or decrease, or cause or allow to be decreased, the width or cross-section of a dike;
(b) install, or cause or allow to be installed, any culvert, pipe, floodbox or any structure through a dike;
(c) construct, or cause or allow to be constructed, any works on or over a dike or dike right-of- way;
(d) alter, or cause or allow to be altered, the foreshore or stream channel adjacent to a dike; (e) construct a new dike.
Specialized mitigative structures such as debris barriers may or may not be subject to the Dike
Maintenance Act. Flood protection works located on private property that protect only that
property may not be subject to regulation under the Dike Maintenance Act.
Interference with a flood protection structure and failure to co-operate with the Inspector of
Dikes are defined as offences under the Dike Maintenance Act.
Although Inspector of Dikes sets design standards as a regulatory and enforcement authority, responsibility for designing, constructing, monitoring, and maintaining flood protection works remains with the designated local authority.
To obtain an approval under the Dike Maintenance Act, application requirements include:
conformance with the DikeDesign and Construction Guide: Best Management Practices
for British Columbia, July 2003, as amended from time to time and other published
guidelines;
design, construction and as-constructed drawings certified by a suitably QPengineer; works to be planned and scheduled to ensure that the protection is not diminished during potential flood periods;
the raising of dikes or the construction of new dikes or other works (e.g., bridge
constrictions on diked channels) shall not impact the safety of other dikes, or increase the
floodrisk to others; and
depending on the scope of works involved, an Operations and Maintenance (O&M) manual may be required.
New dikes will only be approved where the local government has agreed to act as the diking
authority. Among other things, the diking authority must ensure ongoing, inspections,
operation and maintenance and permanent legal access to the lands on which the new dike is to be constructed.
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APEGBC June 2012 Assessments in a Changing Climate in BC 81
D11 O
THERL
EGISLATIONR
ELATED TOS
TRUCTURALM
ITIGATIVEM
EASURESThe Drainage, Ditch and Dike Act and the Local Government Act, Part 23, have enabled the
creation of autonomous diking and improvement districts for purposes such as drainage, ditching and diking. The improvement districts can design, construct (subject to approval from constituents), operate and maintain flood protection and drainage works, and raise money to support these activities through a tax levy on protected properties.
Improvement districts were historically created in rural areas where there was no alternative form of local government. Where a suitable local government exists, an improvement district is encouraged to transfer drainage and diking assets and responsibilities to that local
government. Over time it is expected that services currently provided by improvement districts will be assumed by local governments.
Where mitigative structures are constructed on or within a watercourse channel, authorization must be obtained under the provincial Water Act as well as the federal Fisheries Act and, if applicable, under the federal Navigable Waters Act. Major projects may be subject to review under the provincial or federal Environmental Assessment Act. Mitigative structures that occupy Crown land require some form of land tenure under the Land Act. The Land Act also provides authority for removing sediment from channels.
D12 K
EYG
UIDELINED
OCUMENTSMFLNRO and its predecessors, through the office of the Inspector of Dikes, has prepared a number of guideline documents to assist experienced professional engineers in the design and implementation of structural mitigative measures. A QP should be thoroughly familiar with the following guidelines.
Guidelines for Management of Flood Protection Works in British Columbia (1999);
Environmental Guidelines for Vegetation Management on Flood Protection Works to
Protect Public Safety and the Environment (1999);
Flood Protection Works Inspection Guide (2000);
Riprap Design and Construction Guide (2000);
Dike Design and Construction Guide – Best Management Practices for British Columbia
(2003);
Guidance Document - Hydrologic and Hydraulic Report (2008);
Guidance Document - Comprehensive Geotechnical Investigation and Design Report
(2011);
Seismic Design Guidelines for Dikes (Golder, 2011);
Application Requirements - New Dikes and Upgrades to Existing Dikes (2011);
Application Requirements - Pipe Crossing - Cut and Cover (2009);
Application Requirements - Erosion Protection (2008); and
Application Requirements - Exploratory Geotechnical Testing (2009).
Other relevant guidelines include the Flood Hazard Area Land Use Management Guidelines
(BC Ministry of Water, Land and Air Protection, now BC Ministry of Environment, 2004), the
Guidelines for Legislated Landslide Assessments for Proposed Residential Developments in BC (APEGBC, 2010), the Floodplain Mapping Guidelines and Specifications (Fraser Basin Council, 2004), Flood Hazard Maps (MOE/Fraser Basin Council, 2004) and the Coastal
Floodplain Mapping - Guidelines and Specifications (KWL, 2011). While not yet adopted as
provincial policy, the province has commissioned and released the report Climate Change
Adaptation Guidelines for Sea Dikes and Coastal Flood Hazard Land Use (Ausenco Sandwell,