By: Arlene Kwasniak

Matter Commented On: Alberta Government Enhancing Water Availability Engagement and Proposed Amendments to the Water Act, RSA 2000, c W-3

PDF Version: Water Availability Engagement Survey – Available to Whom for What?

This Government Initiative is Phase 2 of Environment and Protected Areas (EPA) Water Availability Engagement (WAE) initiative. The EPA website states that Phase 1, which concluded early this year, “Sought feedback … to understand challenges within the current water management system and potential solutions for increasing water availability” and that Phase 2 focusses on “Collecting feedback on proposed changes to the Water Act” to “enhance the water management system and increase water availability.” The website provides three resources relevant to Phase 2:

The Discussion Document instructs that “written feedback must be submitted using the online survey – the WAES (Discussion Document at 2). The WAES must be submitted by June 30, 2025.

The WAE resources state the objectives of the Engagement and proposed amendments to be to:

  • Support continued water conservation, efficiency, and productivity;
  • Free up and optimize use of available water;
  • Improve access to existing water sources, including timely decision-making (WAES at 1; PP at 5).

This post sets out and reviews the proposed amendments and asks what they have to do with increasing water availability. The idea of amendments increasing water availability logically and reasonably suggests that implementing the amendments will result with more water available than is currently available. The availability angle of the WAES is intriguing, especially for southern Alberta, as there is full and over-allocation in most of the sub-basins of the South Saskatchewan River Basin (SSRB), and accordingly, no unaccounted-for water available. Indeed, most of the SSRB has been subject to a surface water licence moratorium for almost 20 years, under the Approved Water Management Plan for the South Saskatchewan River Basin (AWMP for the SSRB at 6).

This post explores how the WAE proposes to make more water available and ponders the fate of any such new available water. Does it stay in watercourses and waterbodies, especially the ones in the SSRB that have been closed because of full or overallocation? Or is full or overallocation further exacerbated by making new available water usable by current or possibly new water users for consumptive uses?

A Comment on “Engagement” vs. “Consultation”

Two comments before diving into the main focus of this post. The first observes that the Alberta government calls this initiative an “engagement” rather than a “consultation”.Why? The relevant definitions in the Merriam Webster online dictionary defines “consult” as “to have regard to, consider” or “to ask the opinion or advice”. In contrast, “engage” is defined as “to provide occupation for” in the sense of  “involve”. So, consulting the public would entail seeking the public’s advice and opinions, whereas engaging the public merely means involving them. Is this change in parlance insignificant, or does government mean that the WAE is less than a public consultation?

I ask because a shift in terminology can obfuscate and muddle inherent meaning and allows for the roles that citizens play in democratic processes to become both less clear and more open to interpretation by those in power. And, regarding this question, concern over the lack of proper consultation with respect to this important initiative has been expressed. For example, the Association of Rural Municipalities, which represents 69 counties and municipal districts of Alberta, in its resolution 8-25S Opposition to Water Act Amendments and Lack of Consultation states “… significantly more consultation and due diligence is needed. Municipalities, Indigenous communities, and other key stakeholders must be meaningfully involved in these discussions.” As well, the Alberta Wilderness Association has submitted a Freedom of Information and Access Request to compel the government to disclose how submissions in Phase 1 of  WAE have been used to inform government decision as government claims, which would be expected in a proper consultation. The AWA states that though requested, “outcomes of the public’s input have not been made available to the public.”

These comments sadly invite the worry that the WAE is all but a pro forma (i.e., for show) exercise. Nevertheless, the initiative does exist and in the past government has paused, modified, or reversed planned policy changes because of strong and persistent non-governmental expressed views.

A Comment on Instream Flow Needs, Water Conservation Objectives, and Instream Objectives and Water Availability

The second comment concerns that fact that aquatic ecosystems such as in natural water bodies and water courses need a scientifically-derived quantity and quality of water throughout the year to be healthy and sustainable. This measure of water quantity and quality, which may vary over time and seasons, is known as instream flow needs (IFNs) or environmental flows. As EPA states, “Monitoring and planning for environmental flows conserve freshwater ecosystems, and protect the life that depends on them.” (see EPA, Environmental Flows Program, “About Environmental Flows”)

By contrast, Water Conservation Objectives (WCOs), (Water Act s 1(1)(hhh) and s 15(1)), which could be the same as IFNs, are in practice a politically determined compromise between no aquatic protection and IFNs that can serve as a minimum flow condition at the discretion of the Director issuing a water licence under the Water Act. As the Alberta Water Council put it, “The development of Water Conservation Objectives is intended to reflect a balance between economic growth and the need to ensure the continuing health of the river and its ecosystem.” (see Alberta Water Council, Intra-Basin Water Movement Major Principles and Recommendations (2008) at 10) WCOs have been established for the SSRB and are set out in the 2006AWMP for the SSRB (at 8 and 9). The idea is that a licencee with a WCO condition in the licence can be prohibited from withdrawing water if the WCO is not met. The WCO for the Bow, Oldman, and South Saskatchewan rivers is 45% of the natural flow rate or the Instream Objective plus 20%, whichever is greater (AWMP for the SSRB at 8). “Natural flow rate” is the flow that “would have occurred in the absence of any man-made effects on” flow (AWMP for the SSRB at 24). “Instream Objectives” (IOs) are minimum flow conditions for the SSRB set out in some licences issued before the Water Act came into effect in 1999. As the AWMP for the SSRB states, “some offer only limited protection of the aquatic environment” (at 23).

As Paul Thibault, retired research scientist, author, and conservationist points out in his report  “Alberta Irrigation Expansion: The Four Pillars of Water Availability” (2025) at 31 posted by Nature Alberta, referring to a scathing 2024 Auditor Generals Report titled: “Surface Water Management, Environment and Protected Areas” Report of the Auditor General, (2024) :

GoA has not always been diligent in enforcing the WCO requirement when applicable …. In particular, the AG found ‘The department: • has no water conservation objectives in most basins • does not know if existing water conservation objectives are working • lacks robust processes to monitor water pressures, assess risks, and decide when water conservation objectives are needed • has ineffective processes to approve licences and monitor compliance, such as not enforcing licensee compliance with conditions. (at 1)

Thibault points out:

Historical data shows that Southern Alberta has struggled to regularly meet the 45% WCO objective. This was particularly the case in the drier summers of 1984-89, 1998-2005, and more recently, 2015 to the present (Fig. 27). This has caused irrigators in some cases to only meet the IO part of the WCO requirement. (at 31)

Given that WCO and IO do not measure up to IFNs, and WCOs are not regularly met, one would hope that a government initiative to make more water available would aim to make it available to better meet the needs of the aquatic ecosystem environment. This post reviews the WAE proposed amendments to see to what extent, if any, the amendments are so aimed.

The WAES, Water Availability, and Water Act Amendments

Below I review the proposed changes to water legislation or management set out in the WAES. Each review is followed by comments including on how a proposal is relevant or not to water availability and if relevant, available to whom for what purpose. The Summary ad Conclusions point out that the WAES really does not have much to do with water availability and makes no gestures toward restoring IFNs or even meeting WCOs or IOs.

Permitting Changes to Appurtenance: Changing Point of Use and Diversion –  1.1 and 1.2

Section 1 of the WAES is titled: streamlining decision making for water licensing and transfers. The section contains 7 topics. The first solicits views on amending the Water Act so that a licencee can amend a licence to change the area where licensed water allocation will be used, even if outside of the original area of use specified in a licence. The second solicits views on amending the Act to permit amendments to similarly change the point of diversion, even if outside of the original boundaries of the licenced area. Currently a new licence or a transfer of a licence would be required to change point of use or diversion outside of area to which a water licence applies.

The current requirements are understandable as, although the WAES does not explicitly say this, the amendments would in effect permit a change in the appurtenance of a licence to specific land set out in a licence. Appurtenance has been a core feature of water licences since the North-West Irrigation Act of 1894 (SC 1894, c 30) (NWIA). The NWIA was replaced by the Water Resources Act, SA 1931, c 71, which was replaced by the Water Act in 1999, and the latter two Acts have carried forth appurtenance requirements. Amendments currently are strictly limited by section 54 of the Water Act and do not include substantive matters such as changing appurtenance. As well, an amendment to a licence can be a fairly simple process compared to the processes for new licences or transfers. Finally, a new licence would have the most junior priority, and new licences are not even permitted in the closed sub-basins in the SSRB. Under the proposed amendments, priority would be retained and the changes could happen even in a closed basin. Further, the Notice provisions in Part 8 of the current Water Act exempt several kinds of amendments to licences but not applications for licences or transfers. So, depending on how the Water Act amendments are drafted, there might not even be opportunities for public comment when such important changes to licences are processed.

Availability: How would such amendments relate to water availability? If at all, they would just make water more accessible and available to licencees, and usable on land not specified in the original licence. The amendments could lead to greater consumption of licenced amounts and reduced return flow to the water source. These could further negatively impact instream flow and corresponding IFNs and WCOs, where they exist.

Permitting Increase in Allocation by Eliminating or Reducing Certain IOs: Director-Initiated Amendments that Correct Certain Errors to Benefit of Licencee 1.3

The text to this survey question reads:

Along the South Saskatchewan River, many licences contain instream objectives that were based on apportionment assumptions that no longer apply due to changes in water management (specifically the addition of the Oldman and Dickson dams). Correction of the outdated apportionment assumptions would enable licensees to gain access to water during lower flow conditions. (WAES at 11)

The survey question is broadly worded as “Indicate your level of support for the Director being able to initiate corrections or amendments to licences where the amendment results in an ability to access water in lower flow conditions”.

Comment: This proposed amendment strikes me as absurd and could result in major upset of the current water management system including the first in time first in right (FITFIR) principle that, in times of shortage, earlier dated licences have priority to all water allocated in a licence before any later dated licences. The amendment proposal is saying that where, because of infrastructure changes – e.g. construction of dams or other changes –  there is more water available than there was when a person got a licence decades ago (IO’s went out over 25 years ago), a licencee should be able to get their licence amended so that the licencee is allocated water that would not have been available for allocation at the time the licence was issued.

This could upend our water rights and water management systems by revising licences issued in the past, thereby diminishing junior rights in time of shortage. Indeed, the survey question is so broadly worded it could be applied to remove WCO conditions and other conditions where such removal would enable the licencee to access water in lower flow conditions.

The WAES text fails to mention that the Oldman river is fully, or overallocated, and climate change and related future droughts will further negatively impact water levels (see “Climate Change in the Oldman River Basin – Canada WaterPortal”). Yet the amendment, notwithstanding this fact, would enable licencees to pull more water from the Oldman basin and other water sources.

Availability: The amendment would make more water available to the licencees who get IO conditions removed or reduced. As mentioned, given FITFIR it could make less water available for junior licencees. And obviously, it would make less water available for instream use or needs in times of low flow.

Notice, Time Limits, and Limits on Supplemental Information Requests – 1.4-1.6

Next come amendments to better ensure that notices go not only to an applicant, but also the authorization holder. This amendment seems reasonable but has nothing to do with water availability. This is followed by amendments to set time limits and restrict information requests. The Water Act (Ministerial) Regulation prohibits the Director from reviewing an application unless it is complete (s 4.2(1)). The time limits amendment proposes “introducing designated time periods in the Water Act or its Water (Ministerial) regulation for specific stages of an application or decision for reviewing and issuing new or amended authorizations” (Discussion Document at 7). The limits on supplemental information requests by the Director reviewing an application for a licence or approval proposes “limiting the number or scope of requests for information to complete the application by amending sections 37 and 50. For example, one supplemental information request, with any follow-up limited to clarifying the content of the supplemental information provided” (WAES 1.6).

Comment: Before issuing an approval or licence, the Director must have the information needed to fully assess the potential of the authorization’s impact on environment, land and aquatic ecosystems, communities, and water users. The Director could be held legally accountable if they approve an authorization with incomplete information. Complexities of applications vary, and so must timelines. Unless government is abusing its right to take the time it needs to deem and application complete and open to review, time should not be limited. Regarding limiting supplemental requests for information, if a Director reasonably requires additional information to deem an application complete so it may be fully considered, the Act must permit the Director to ask for it. The proposed amendment would only be acceptable if the Director, after receiving information from a supplemental request, still does not have the information needed to fully consider the application, the Director may deem the application incomplete.

Availability: These amendments appear to have no relationship to water availability.

Increasing Non-Licensed Uses:  New and Expanded Exemptions 1.7

Since the NWIA, certain water uses have been exempt from licensing requirements. The NWIA and Water Resources Act exempted domestic (household) uses for riparian owner or occupiers, and more extensive uses by riparian owners or occupiers subject to certain limitations. The Water Act quantified the domestic use exemption at 1250 cubic metres of water a year and added a traditional agricultural user exemption for riparians for stock watering, pesticide application, and dugouts and capped this use at 6250 cubic metres of water a year (Water Act ss 1(1)(w), (x), and (y), and ss 21 and 24). The Water Act (Ministerial) Regulation lists a number of other exempted uses (Schedule 2). The WAES proposes amendments to increase the quantity of some exemptions, and to add more.

Comment and Availability: Increasing and expanding exemptions obviously will decrease instream water availability, where the exemptions are utilized. As well, depending on the priority of an exemption (e.g., household users have top priority (Water Act, s 27), and registered traditional agricultural users (which is proposed to be increased by 1000 cubic metres a year (PP at 15) have priority back to first such use (Water Act, s 28)). Given priorities, water availability for other water users can be negatively impacted, thus again disturbing current water management principles including FITFIR. In my view, no such amendments should be made until there has been public and Indigenous consultation, and thorough assessment of water availability and assurance that the requirements for IFNs, WCO, and other water users are met and will remain met. Accordingly, in fully or overallocated basins where any of these are not met, an increase in exemption number or quantity does not make sense.

Measurement and Reporting – 2, 2.1, 2.1.1., 2.1.2, 2.1.3

As noted above, legislated water management in the province goes back to the 1894 NWIA and it is not surprising that different methods of measurement have been used, e.g., acre feet, gallons, cubic metres, and so on. As well, measurement and reporting conditions on licences understandably have varied through successive government regimes. These amendments propose to standardize measurement and reporting requirements, and to impose measurement and reporting requirements, including on pre-Water Act licences.

Comment: On their face these amendments appear reasonable, provided that the standardization and reporting requirements are upward to embrace harmonized higher standards and reporting requirements, and not downward to the least common denominator. Accordingly, the amendments must be carefully worded and not permit the removal of measuring and reporting requirements.

It is refreshing that the amendments will apply to pre-Water Act licences as currently section 18 of the Water Act exempts them from any changes to their terms and conditions.

Availability: The proposed amendments relate to water availability only in the limited sense that standardized measurement and reporting should lead to better calculation of available water.

Amalgamation of Licences and Priorities – 2.1.4

Under the Water Act, an amalgamated licence takes the priority of the highest priority of the amalgamated licences (s 56(2)). The WAES proposes an amendment so that the amalgamated licence retains the individual component licences’ priorities within the amalgamated licence.

Comment and Availability: Other than to note potential administrative complexities, I have no comment on this proposal. I assume this amendment would not be retroactive, and so it only will apply to amalgamations after it is in place. Regarding availability, in theory, in times of shortage, the amendment could make more water available to junior licencees with a lower priority than higher priorities in the amalgamated licence, but senior to more junior priorities in the amalgamated one.

Defining “good standing” – 2.2

Under the Water Act, to exercise rights under a licence (s 26), or assign (s 33(1)(b)) or transfer a licence (s 81(7)(c)), the licence to be in “good standing”, a term that is not defined in the Act. The WAES proposes an amendment to define “good standing” and to include “support” for compliance with measuring and reporting requirements.

Comment and Availability: In my view, this amendment should be supported. However, it does not seem to be relevant to availability.

Water Transfer Related Proposed Amendments – 2.3, 2.31, 2.3.2.

The Water Act Administrative Guideline for Transfer of Water Allocations (and Agreements to Assign Water, and Licence Amendments, (2014) sets out the water transfer review process, statutory requirements, and factors to be considered. The price paid for a water transfer is not listed. Section 2.3 of the WAES calls for “more transparency” regarding water licence transfers including publicly available information on “the price paid for transferred water.” Although the language is not crystal clear, section 2.3.1 seems to propose that the Water Act provide that the Director may require information on the price paid for a transfer and suggests that the price may figure into the factors the Director considers when making a decision. The section states that currently price paid is not shared by the parties so presumably does not feature as a decision factor.

Comment and Availability: Although it cannot be pursued here, it is a legitimate question as to whether the price paid for a transfer is relevant to the decision as to whether a transfer should be permitted. Is price paid a private economic matter, or does it have regulatory significance? It could be argued that since water is a public resource and water rights are transferred for private profit, the public and the Crown have a right to know price details. In any case, the water transfer transparency proposed amendments do not seem to have relevance to water availability.

Removing the Prohibition on Inter-basin Transfers for “low-risk” ones – 3, 3.1, 3.2

Section 47 of the Water Act prohibits the issuance of a licence that “authorizes the transfer of water between major river basins in the province unless the licence is specifically authorized by a special Act of the legislature.” However, in 2024, section 105 of the Act was amended to permit inter-basin transfers in emergencies declared by Cabinet, if authorized by Cabinet (s 107(2.1)(b)). (See ABlawg post “The Alberta Emergency Statutes Amendment Act, 2024 Surges Executive Powers under the Water Act”, by Brenda Heelan Powell, Arlene Kwasniak, Braum Barber and Ruiping Luo, for a critique of the amendment).

Sections 3, 3.1, and 3.2 of the WAES continue the trend to relax inter-basin transfer rules by proposing to permit “low risk” inter-basin transfer applications to be determined by Water Act licencing provisions, though special rules may apply (e.g. who makes the decision to permit one). Section 3 discusses amendments to the Water Act or regulations to enable “low-risk inter-basin transfers” without a special Act of legislature. Section 3.1 proposes developing criteria for identifying low risk inter-basin transfers, and 3.2 proposes amendments to permit certain low risk inter-basin transfer without a special Act of legislature.

Comment: The ABlawg post on emergencies referred to above sets out the numerous concerns with inter-basin transfers and why prohibition should be the default and inter-basin transfers permitted only with a new Act of legislature, and comprehensive review and consultation. Some potential impacts of inter-basin transfers, as referenced in that post:

  • Inter-basin water transfers can cause salinization and aridification in the donor basin;
  • Groundwater levels and wetlands can be vastly altered by inter-basin transfers;
  • Inter-basin transfers can introduce waters to the recipient basin with higher concentrations of dissolved solids, pollutants, or nutrient loadings, as well different biota and these can have adverse impacts on aquatic ecosystem integrity, as well as human populations and industries that rely on sources of clean water;
  • Even modest changes caused by inter-basin water transfers may have incremental and other cumulative impacts on water quality, habitat, and aquatic health on both a localized and system-wide basis and waterlogging of soils;
  • Inter-basin transfers require infrastructure such as pipelines, dams and reservoirs, aqueducts, and, depending on the location and elevation between point of abstraction and discharge, pumping station and such infrastructure could have adverse environmental, economic, and social impacts.

Availability:  Inter-basin transfers reduce availability in the donor basin while increasing it in the recipient basin. At best, this seems availability neutral.

Descriptively Manipulating Geomorphic Reality: Adjusting Definitions of Major River Basins – 3.3

As set out in the Alberta Government’s Facts About Water (2010), a water basin is “an area of land that catches precipitation and drains to a water body such as a marsh, lake, stream, or river” (at 9). The Water Act lists seven major river basins in Alberta (s 1(1)(ff)). The Act prohibits allocation transfers that cross a major river basin boundary unless authorized by a special Act of the legislature (s 47). The WAES states “Some of the major river basins converge within Alberta, whereas others do not. Further, individual catchments within some major river basins converge outside of Alberta. The survey question reads “Indicate your level of support for consolidating the list of major river basins, including combining the Peace/Slave and Athabasca River basins (that converge within Alberta) to form the Peace-Athabasca-Slave River Basin.”

Comment: It is not at all apparent why a basin converging within or outside of the province is relevant for the purposes of identifying it as a major river basin, or why the province should treat basins that converge within the province differently for regulatory purposes with respect to transfers, than those that converge outside of the province. The Peace/Slave basin converges/drains in Slave Lake, and the Athabasca basin into the Athabasca River and so are geomorphically separate basins. No doubt joining the basins together would benefit oilsands operations by enabling water transfers, including wastewater for use in operations, without a special Act of legislature. But given the potential risks and impacts of inter-basin transfers discussed above, benefit to an industry is not a valid reason to permit them. Giving carte blanche to what are in reality inter-basin transfers, which would be open to any applicant, not just oil and gas, is unacceptable. Finally, the Peace/Slave basin combining with the Athabasca basin was just given as an example, opening the door to further verbal manipulations of geomorphic reality of separate basins.

Availability: Joining of basins will make water licences more easily transferable, and so more available to transferees, but then less available to transferors, so availability neutral.

Waste Not Want Not: Enabling the Reuse of Wastewater – 4.1

My 2007 publication “Waste Not Want Not: A Comparative Analysis and Critique of Legal Rights to Use and Re-Use Produced Water – Lessons for Alberta” (10 U. Denver. Water L. Rev. 357 (2007)) raises numerous issues regarding reusing wastewater from allocations, as well as reuse of saline water, which is exempt from the Alberta Water Act licencing provisions, for example.  e.g., does the licencee confer the right to re-use wastewater, or do return flow conditions, or the simple lack of reuse permission, prevent that? Can the licencee apply for a change of use amendment to permit others to use wastewater in operations? The issues are complex and there are no simple answers. The WAES question is therefore deceptively simplistic: “Indicate your level of support for creating a mechanism to authorize reuse of wastewater by an entity other than the producer.” (WAES at 14).

Comment: Insofar as wastewater reuse reduces reliance on new freshwater allocations, it can be a positive addition to our water management systems. Obviously, reuse of wastewater requires strict environmental regulation. As well, the matter of private profit for use of public resources (where a licencee sells wastewater) should be incorporated into regulatory considerations. However, carefully crafted amendments that enable this should be supported. Care should be taken with respect to retroactivity. Licences that have been issued that would not permit reuse should not be changed by a Water Act amendment. The standard process of licence amendment, transfer, or new allocation should be respected.

Availability: Permitting flexible wastewater reuse could free up available water insofar as rules barring it have led to further freshwater (whether groundwater or surface water water) licence allocations. As well, the government should consider whether there should be a hold back-type mechanism where an operator transfers wastewater to other users. A holdback could provide water available for WCO and IFN. However, this must be balanced with the fact that reuse of wastewater can reduce return flows and accordingly can impact WCO, IFN, downstream users, and meeting obligations under water sharing agreements (see discussion below under return flow).

Rainwater Capture and Use – 4.2

As discussed in my article with Daniel Hursh “Right to Rainwater, a Cloudy Issue” (2009) 26 Windsor Rev Legal & Soc Issues 105, since in Alberta the Crown only specifically claims ownership of water as defined in the Water Act as “all water on or under the surface of the ground” (ss 3(2) and 1(1)(ff)), there is a question of who owns rainwater, or otherwise has a right to capture it, on the way to the ground. May a private landowner legally capture rainwater without government permission it before it hits the ground? The article discusses various ways a private right to rainwater might be based. The WAES proposes to deal the rainwater in a way not complicated by such legal considerations. The Survey question is “Indicate your level of support for amending the definition of water to clarify that it includes rainwater captured before it hits the ground” (WAES at 15).

Comment: The issue of ownership of, and right to use, rainwater before it hits the ground surface is more complex than just an amendment to a definition. Moreover, it seems at least disingenuous for government to put forth the issue as just a matter of legislative amendment. A comprehensive analysis of the question should be conducted including considering the ecological and economic consequences of Crown ownership over private ownership. Also, an analysis should be conducted regarding government’s right to regulate rainwater capture without getting into the thorny issue of ownership. Copious private collection of rainwater could have serious ecological consequences, and government may have the right to regulate it (e.g., under land use legislation) whether or not it is Crown owned.

Availability: It does not appear that the addition of rainwater to the definition of “water” in the Water Act, would in itself affect availability of water. However subsequent regulation of rainwater collection and use could affect water availability both to rainwater collectors, and those, including the environment, impacted by private collection.

Stormwater Capture and Use – 4.3

Stormwater runoff capture raises different issues from rainwater, since runoff typically is on the surface of the ground and therefore better fits within the definition of “water” in the Water Act. Thus, capture of stormwater runoff would require a licence unless exempt from licencing provisions. The background information to the WAES question states  “An exemption from a water licence for up to 6,250 cubic metres per year applies to storm drainage storage facilities under the Water (Ministerial) Regulation” (WAES at 15). That being so, collection of any additional volumes would require a licence and so cannot be done in closed basins, like most of the sub-basins in the SSRB. The WAES suggests that additional volumes might be available by transfer, but that would be limited since an exemption from a water licence is not transferable. The WAES question is “Indicate your level of support for enabling stormwater diversion without requiring a water licence, at volumes up to the net difference in runoff between pre- and post-development in southern Alberta” (WAES at 15).

Comment: Stormwater plays a critical role in the natural water cycle, It replenishes groundwater, wetlands, and riparian areas and contributes to instream flow. Although it needs to be managed to prevent flooding and the distribution of excess pollutants, stormwater is a major source of water and must be taken very seriously in water resource management.

Reducing stormwater through private capture and diversion can disrupt and diminish the important stormwater functions. The WAES “net difference” is unclear in meaning and will result in administrative monitoring and enforcement obscurities. The current exemption of 6250 cubic metres per year on its face is reasonable enough and private desire for additional amounts should remain subject to licencing or transfer provisions, where there can be environmental review and public and Indigenous consultation.

Availability: The amendment would decrease water availability for downstream use, WCO and instream flow, in addition to groundwater replenishment and wetlands, and increase availability for private use.

Clarifying Return Flow and a Momentous Question – 4.4

Return flow is the water that returns to the water source after a diversion to re-enter the hydrological cycle. Return flows make water available for IFN and WCO and to downstream users, and contribute to Alberta meeting its obligations under transboundary water sharing agreements such as the Master Agreement on Apportionment, between the prairie provinces and Canada.  Through the ages, water licence allocation quantity has been determined on the basis of expected return flow. There are numerous studies and reports with significant discussions on  return flow given its critical importance in water management and availability (e.g. see here, here, and here). Section 4.4 notes that “Return flow obligations may be specified in licences, including to municipalities”.

The WAES asks two questions. The first is “Indicate your level of support for amending the Water Act to clarify that return flows are returns to a surface water body and are subject to licensing requirements” (WAES at 16).

Comment and Availability: The first part of the proposed clarification certainly is at least partially correct but are return flows not applicable to groundwater? If not, why not? The second part of the clarification is not clear in meaning. Does it mean return flows can be subject? Some licences are fully consumptive and not subject to actual return flow obligations, and some licences are based on return flow expectations, though returning flow is not an enforceable licence term, or at least not clearly so. Clarification on what is asked is needed. Regarding availability, as discussed in the second question in this section, return flow manipulation can seriously impact availability.

Section 4.4 then contains another question, quite a huge one. It is:

Please comment on the proposed amendment to the Water Act to clarify whether gross diversion remains the basis for all licences issued, and what portion should be eligible for licence transfers (e.g., consumptive versus non-consumptive considerations). Share anything that should be considered for defining limited circumstances when the concept of return flow credit or net diversion could be used to support water availability. Net diversion could be used to allow licensees to increase the volumes or rates of their operational diversions, provided a commitment is made to return a defined volume and rate of flow to the surface water body and they do not exceed their total annual licensed allocation. This may include considerations of acceptable quality of return flows”  (WAES at 17).

Comment: I agree that more clarity is needed, but to state or imply that “gross diversion remains the basis for all licences issued” is speculative if not downright false. (emphasis added) The suggestion is that licencees have a right to divert the entire gross allocation, and if water is returned via return flows a credit should be given to increase already diverted amounts until the entire gross diversion allocation has been consumed. Thus, the suggestion is that all water licences, subject to some exceptions, are 100% consumptive licences, even where their initial issuance was dependant on, or even conditioned on, an expected return flow. To me, the suggestion accordingly upends the entire FIFTIR prior allocation system that water rights are based on.

Availability: If an amendment were passed that made all licences net diversion licences – i.e. licences that are fully consumptive and any return flow is credited to diversion potential up to the gross diversion quantity, water availability, though increasing availability to benefitting licencees, would be decreasing availability for IFNs and WCOs, as well as junior licencees, downstream availability, and availability to contribute to water sharing agreements. This proposed amendment, in my view, should be firmly opposed.

Summary and Conclusions

This post reviewed the amendments to the Water Act proposed through the WAE initiative. It shows that the initiative is only minorly about water availability, and when it is, it is primarily to increase allocated amounts to licencees and exempted users. The post pointed out how this could upend the prior allocation water management system that Alberta has used for over 125 years. As well, taking more water from watercourses and water bodies will further reduce amounts available instream. Where water truly is needed to be made available – to restore IFNs or at least meet WCOs and IOs – the WAE initiative offers virtually nothing. If the reader wishes to see how amendments could be proposed that would help restore IFNs, or at least WCOs and IOs, see the Submission of the Southern Alberta Group for the Environment and others, to the first phase of the WAE initiative, “Suggestions to Maintain and Enhance Water Availability for Healthy Aquatic Ecosystems” (2025).

This post may be cited as: Arlene Kwasniak, “Water Availability Engagement Survey – Available to Whom for What?” (25 June 2025), online: ABlawg, http://ablawg.ca/wp-content/uploads/2025/06/Blog_AK_WAES.pdf

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