Drought Watch 2024: Recent Drought Management Responses in Alberta include the introduction of Bill 21: Emergency Statutes Amendment Act

05 Jun Drought Watch 2024: Recent Drought Management Responses in Alberta include the introduction of Bill 21: Emergency Statutes Amendment Act

Recent proactive steps have been taken to respond to the critical drought in Alberta.  In mid-April, the provincial government announced the completion of water-sharing agreements in which municipalities, industry and irrigation districts agree to reduce water use.  In early May, the provincial government announced its drought response plan in a show of preparedness.  About a week ago, Bill 21 was tabled to amend various emergency statutes to enhance provincial authority in emergencies such as wildfires, floods and droughts.

Alberta’s Drought Conditions and Responses

Since our last blog post in March, Alberta’s drought conditions have improved slightly. The number of water shortage advisories has decreased from 51 to 19, and there have been improvements in the outlook for volumes and reservoir levels in recent weeks. However, the water supply outlooks—the long-term river volume forecasts for May through September—remain largely unchanged.

Significant changes have occurred on the law and policy fronts. Four water-sharing agreements have been made, and the provincial government has released a Drought Response Plan outlining the triggers for declaring a water emergency.  In addition, on May 9^th, the government tabled Bill 21 to amend the Emergency Management Act, the Forest and Prairie Protection Act, and the Water Act to grant the provincial government greater scope of authority to respond to emergencies including wildfire, flood and drought.

Water Sharing Agreements

In mid-April, the provincial government announced the water-sharing agreements—for the Red Deer, Bow and Oldman River basins and the Southern Tributaries. These agreements are not legally binding documents but non-binding Memoranda of Understanding (MOUs).

Each of the MOUs clearly states that a “party’s participation in this MOU is voluntary and this MOU is not legally binding.  The MOU is not a regulatory instrument of the Water Act and does not amend the terms of any underlying Water Act licenses”.  Each MOU also indicates that any action or omission under the MOU is voluntary and that the MOU has no impact on entitlements under a water license.  Furthermore, any party to the MOU may withdraw from the agreement immediately upon written notice with no penalty or further obligation.  In other words, the MOUs express an intent to act in a particular manner but are not legally enforceable.

The parties to the MOUs (which do not include the provincial government) have agreed, in a voluntary and non-binding fashion, that:

• participating municipalities will reduce water consumption between 5% and 10%;
• participating industries will only use the minimum volume of water practical to maintain safe, reliable operations; and
• participating irrigation districts will use less water and allow other water users to get their water first, then use the remaining available water for licensed use.

(together, the 2024 Water Sharing MOU Principles).

Essentially, the MOUs are shifting the water allocation priorities in the Water Act.  Under the Water Act, priority to use water is allocated according to a “first in time, first in right” scheme. That is, the holder of a senior license (i.e. older license) has priority over those with junior licenses and may use their entire allocation even if this means there is nothing left for the junior license holders.  Some of the province’s most senior (and largest) license holders are irrigation districts.

Each water-sharing MOU states its purpose.  These purposes include collaborating to manage prolonged drought; enacting water restriction commitments as outlined in the MOU; establishing cooperative and voluntary water-sharing so more users have some water by many users taking less water; encouraging flexibility between license holders to balance competing interests and priorities; and allowing large license holders to coordinate their approach to water sharing as outlined in the MOU.

It is noteworthy that the MOUs must be activated by the collaborative decision of the parties (which, again, does not include the provincial government). Criteria to be considered in activating (or deactivating) the water-sharing MOU include:

• current reservoir storage and minimum winter storage;
• observed and forecasted river flows, with consideration for instream objectives;
• expected river flow timing, both managed and unmanaged; and
• water supply and demand (which may include irrigation district demands, First Nation licenses, municipal demands, industrial demands and environmental flows depending upon the specific MOU).

If an MOU is activated, the parties to the MOU have made specific commitments (again, these are not legally binding). These commitments include license holders not calling priority, implementation of drought response measures (to reduce water usage), and irrigation districts managing available water among themselves (after other system demands have been accounted for).  It should be noted that the Oldman South Saskatchewan River Basin NOU and the Southern Tributaries MOU have been activated as of May 10^th (the Red Deer River Basin MOU and Bow River Basin MOU have not).

Notably, each MOU references the Government of Alberta’s Water Sharing MOU Operational Support document dated March 28, 2024, as a companion to the MOU. However, this document does not appear to be publicly available.  Another document is referenced in the Bow River Basin – the Alberta Environment and Parks and Trans-Alta Water Management Services Agreement – concerning the Trans-Alta controlled storage in the Bow River.

For a detailed discussion of these MOUs, see Nigel Bankes, “Alberta’s Water Sharing ‘Agreements’” (May 1, 2024) Ablawg.ca.  Some concerns raised by Nigel Bankes include certain municipalities, certain industries, environmental and civil society groups, the provincial government and First Nations not being party to the MOUs; some essential missing purposes (such as human right to water, need for ecological flows); and questions about water will be allocated if the MOUs are triggered.

South Saskatchewan River from Wanuskewin by Adam Lederer from flicker.com

Drought Response Plan

On May 2^nd, the provincial government released its Drought Response Plan, which outlines preparation, planning and response activities that Alberta Environment and Protected Areas (EPA) will undertake to address drought conditions.  The Plan outlines the five management stages of drought response.  The fifth stage is the emergency stage, where “existing management cannot ensure drinking water for humans, protect public safety, critical infrastructure, livestock welfare or critical environmental needs.”  Alberta is currently at stage 4, with legitimate concerns that we are on the cusp of stage 5.

A local, regional or province-wide emergency may be declared under section 107 of the Water Act.  Use of this emergency provision may be considered if the following triggers are reached:

• drought management actions cannot ensure the protection of human health and public safety, critical infrastructure, livestock welfare or critical environmental needs;
• there is increasing distress among local authorities in a basin; and/or
• Alberta’s water management system can no longer support the number of requests for water.

Whether a trigger has been reached is based on several indicators, including:

• risk of water levels or flows being below municipal water intake infrastructure;
• river flow thresholds too low to maintain aquatic life;
• other jurisdictions (e.g. Saskatchewan or Canada) raise concerns around transboundary water impacts;
• power plant capacity or operations affected by inadequate water access;
• livestock operations affected by inadequate water access;
• an area’s population at risk of losing water for essential uses; and
• many others.

Additional considerations in whether a declaration of emergency should be triggered include duration, overlapping priorities or emergencies and feasibility.

Where a water emergency has been declared, this may lead to the issuance of water management orders suspending statutory authorizations under the Water Act, suspending water diversion, and directing the purposes and volumes of water use and diversion.  Among other things, water management orders may also direct actions to prevent, minimize or remedy adverse effects on the aquatic environment or human health (under sections 99 and 107 of the Water Act).

The Plan outlines various other regulatory and non-regulatory tools that may address drought situations (at any of the five management stages).  Non-regulatory tools include voluntary water restrictions and water-sharing agreements.  Regulatory tools include approved water shortage response plans, temporary diversion licences, temporary water licence transfers, agreements to assign water, and amendments to licences and approvals under the Water Act.  In addition, water management orders may be issued under the Water Act and environmental and emergency environmental protection orders may be issued under the Environmental Protection and Enhancement Act.

Bill 21: Emergency Statutes Amendment Act, 2024

The recently tabled Bill 21 is meant to improve the provincial response to emergency situations including wildfires, floods and droughts.  It does this in two ways.  Firstly, the Alberta Senate Election Act, the Election Act, and the Election Finances and Contributions Disclosure Act are amended to shift general election dates from May to October to decrease the chances that an election will occur simultaneously as a natural disaster.

Secondly, there are proposed amendments to the Emergency Management Act (EMA), the Forest and Prairie Protection Act (FPPA), and the Water Act.  These amendments broaden the authority to respond to emergency situations including assuming control of municipal powers in the event of a local emergency.  The proposed amendments to the Water Act are most relevant to drought emergencies, whereas those to the FPPA are most relevant to wildfire emergencies.  The EMA has broad application to all public emergencies including wildfires, floods and droughts.

 The EMA provides the framework for local and provincial management of emergencies, outlining the roles of provincial and local authorities and providing for grants of additional authority during a state of emergency.  The amendments proposed by Bill 21 impose reporting obligations on municipalities regarding a state of local emergency and emergency planning and modify the information that must be included in a declaration of local emergency.  These proposed modifications include identifying which emergency powers the local authority intends to exercise.  The proposed amendments to the EMA would also give the Minister authority to amend or cancel a local emergency declaration (currently, the Minister may only revoke such a declaration).  Most significantly, the amendments would allow the Minister to assume control of all or any powers of a municipality regarding a local emergency under section 24 of the EMA.  These powers include putting an emergency plan or program into operation, prohibiting travel into an area, requiring evacuation, and removing trees, structures and crops (it should be noted that the Minister currently has these same powers under section 19(1) of the EMA if the Minister has made a declaration of emergency).

As mentioned, the amendments to the Water Act proposed by Bill 21 are most relevant to emergency drought response.  Not surprisingly, the proposed amendments would modify section 107 (which is the provision that enables the declaration of an emergency) to expand the types of water management orders that the Director may make in the event of an emergency.  Currently, the Director may order a person to suspend operation under a Water Act statutory authorization or to suspend a diversion of water; may designate the purposes and volumes of water diversion; and may order a variety of other actions allowed under section 99 of the Water Act (such as removal of works). The proposed amendments would expand the Director’s authority such that they could make orders to require a person to:

• install water measurement equipment,
• measure the flow rate of water,
• measure the water level of a water body,
• stop diverting water, and
• conduct monitoring and reporting activities.

The proposed amendments would also allow the Director to specify:

• a flow rate,
• a level of water,
• a decrease in the diversion volume, or
• a rate and timing for diversion of water.

The proposed amendments to section 107 would also allow the provincial Cabinet to designate the priority of diversions or uses of water and authorize water transfer for a specified period between significant river basins in the province for human health, raising animals or public safety needs.  It is also proposed that certain decisions made according to section 107 of the Water Act would not be appealable to the Environmental Appeals Board under section 115 of the Act.

Cover Photo by Shravan K Acharya on Unsplash

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