Water availability in Alberta: legal and practical challenges in finding water for people and the planet.

24 Jan Water availability in Alberta: legal and practical challenges in finding water for people and the planet.

The Alberta government is looking for water.  The challenge is that there are limits to how much water can be made available under current supply, current law and current obligations to other prairie provinces and to the United States.

Further, finding more water to divert inherently means more risks for the aquatic environment.

The ELC has provided its perspective on seeing water governance in the province evolve (letter submission attached).   The focus of our submissions are on the legal and policy issues that are raised as part of the government’s engagement on water availability and development of recommendations that focus on a statutory approach that is more responsive to water supplies, water conservation and environmental protection.

Our water law has vestiges of water management from 120 years ago and Albertans should be assured that water and the aquatic environment are sustainably managed for 120 in the future.

The focus of the government engagement

The Government of Alberta’s water availability engagement is centred around a variety of water policy issues, including some potential options for amending the Water Act.

The consultation was open until January 24.  For the relevant documents and surveys, see  https://www.alberta.ca/water-availability-engagement .

The ELC has reviewed the suite of the “issue sheets” published by the GOA with an eye towards the potential implications, both positive and negative, for water use, water conservation and for the aquatic ecosystems.

Some salient facts to guide this discussion are:

• The majority of sub-basins of the South Saskatchewan River Basin (SSRB) are closed for the purposes of receiving applications for new licences for surface water diversions (and connected groundwater diversions).
• The SSRB is overallocated, in terms of water licence volumes, and if all the licenced volumes were used the province would likely be failing to meet its agreement with Saskatchewan and Manitoba about passing on water under the Master Agreement on Apportionment at certain times of very low flows.

Making more water available in a water supply-constrained system 

The overarching challenge is that Alberta’s driest regions, the southernmost areas of the province, are already over-allocated, i.e. supply constrained. This fact resulted in the closure of the majority of the South Saskatchewan River Basin (SSRB) to surface water licences in 2006 and the enabling of water licence allocation transfers.

This system of transfers was needed due to the limited ability under the Act to share or move water between users.  The Act adopts a system where licences are tied to the land for which the diversion was issued and licence holders are granted the ability to divert their entire allocation ahead of those who were issued licences later.  This “first in time, first in right” or “Fitfir” system was adopted from the earliest water legislation governing water diversion in Alberta (starting before Alberta was a province).

The recent risks associated with a drought in Alberta have exposed how starkly inadequate the legal regime is at providing equitable and efficient access to water.   Indeed, with a significant risk of drought, the regulatory system was essentially set aside in pursuit of “voluntary” measures. This approach was undoubtedly taken as a mechanism to leave FITFIR alone while responding to the practical challenge that, in drought, sharing water is ultimately the only answer.  The voluntary measures took the form of an agreement among licence holder groups as to how water would be shared.

Uncertainty reigns for aquatic systems

Underlying the issue of drought, water supply and water availability is the inherent risks to the aquatic environment.  A healthy aquatic ecosystem is only viable where water quantity and water quality are maintained within certain ranges.   That amount, often referred to as an instream flow need or IFN, will vary by the hydrological function and can be irreparably impacted by excessive water diversions and other water impacting infrastructure.

Attaining legal clarity and accountability for either an IFN or an ecosystem-based flow has been elusive under the Water Act (in terms of the law itself and in terms of how opportunities under the Act have been, or not been, pursued).  As will be discussed, Water Act tools such as water management plans and water conservation objectives have, in this author’s opinion, failed to meet their potential. (See Future flows : climate resilience, environmental flows and Alberta’s water law).

Drought and flow impacts on aquatic systems, require robust systems of monitoring, planning and management.  Central to this concept is the ability to move past the a certain level of rigidity of water management that has governed in Alberta in the past century.

The key recommendations are as follows:

1. Conduct evaluations and further consultations in relation to volumetric water pricing for water licences. It is recommended that these volumetric pricing opportunities be considered in direct connection with related expenditures of monitoring, planning and management around water (including diversions, watersheds related impacts, and impairments and restoration of the aquatic environment). (See examples of BC and New South Whales Australia)
2. Amend the Water Act such that all licences are subject to review and renewal. The Water Act’s approach to historic licences perpetuates barriers to water sharing and increasing water conservation.
3. Consider statutory amendments to the Water Act and the Irrigation District Act that will provide additional autonomy to individual water users to provide for increased ease in transfers and conservation initiatives (whether it is for other uses or for environmental flows).
4. Codify water-sharing approaches and governance systems for times of low flow or drought (with a central connection to a delegated officer of environmental flows and conservation (as set out in 5)
5. Amend the Water Act to establish a delegated officer that has a sole focus on environmental flows and conservation. This officer would have a direct role in water transfers, holdbacks, monitoring and reporting around WCOs and on scientifically derived instream flow needs.
6. Any consideration of augmenting return flows requires the creation of regulatory and policy direction that assesses, plans, and administers a system of assuring that augmentation of return flows are not adversely affecting other water users and the environment. This needs to occur at various watershed scales.
7. Interbasin transfers should only be considered through the former process of a Special Act of the Legislature. The discretion for the Cabinet to approve interbasin transfers in emergency situations should be repealed.

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