Category Archives: Water Law

British Columbia’s Water Sustainability Act – A New Approach to Adaptive Management and No Compensation Regulation

By: Deborah Curran

 PDF Version: British Columbia’s Water Sustainability Act – A New Approach to Adaptive Management and No Compensation Regulation

Bill commented on:Bill 18 – 2014 (British Columbia), The Water Sustainability Act, 2014 Legislative Session: 2nd Session, 40th Parliament

The British Columbia Legislature gave third and final reading to Bill 18 – 2014, B.C.’s new Water Sustainability Act (“the Act”), on April 29, 2014 as the long awaited overhaul of the water management and allocation regime in B.C. As someone who teaches both municipal and water law I am pleased with the legislation. I have been so bold as to say that the Act is the best piece of environmental legislation introduced in B.C. in more than a decade. Of particular interest, in this age of if not climate change then more extreme weather events that typically involve precipitation in its liquid or frozen forms, is the way the Act strives towards an adaptive approach to water management and thus water rights. Under the new law licences issued in perpetuity will be subject to regional water sustainability plans that can reduce water diversions (ss 64-85) and subject to having their terms and conditions reviewed anytime after thirty years from when the Actcomes into force (s 23). This spectre of changing water rights may hasten a new era of water use as decision makers may amend the terms and conditions of a licence for more efficient use of water or water conservation, and may take into account the following factors when reviewing licence terms and conditions:

  • the best available technology in respect of water use efficiency and water conservation;
  • best practices in respect of water use efficiency and water conservation;
  • any increase in knowledge respecting actual stream flow or aquifer conditions;
  • the effects of climate change;
  • the licensee’s beneficial use of the water;
  • the use, operation or maintenance of works; and
  • other prescribed factors.

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The United States Wants a New Columbia River Treaty, What Should Canada Do?

PDF Version: The United States Wants a New Columbia River Treaty, What Should Canada Do?

Documents commented on: (1) The Columbia River Treaty and Protocol, 1964 and (2) Columbia River Treaty Review, Draft Regional Recommendation, September 20, 2013 available here

Interesting times lie ahead for the Columbia River Treaty (CRT) of 1964 between Canada and the United States. The CRT provides for the cooperative development of the upper Columbia River and the Kootenay River for two purposes, flood control and power. Under the terms of the treaty Canada agreed to build and operate three dams: Duncan, Mica and Arrow/Keenleyside. The treaty also authorized the United States to construct Libby dam on the Kootenay River in the United States. Libby dam created Lake Koocanusa (Kootenay/Canada/USA) which backs up into British Columbia (hence the need for treaty authorization). In return for all of this, Canada received a $64 million dollar lump sum payment for the first sixty years of flood control offered by the Canadian dams, and 50% of the incremental power and capacity made available at US mainstem dams as a result of the new storage. The mainstem dams are existing dams on the Columbia, some owned by the US federal government (e.g. Grand Coulee and Chief Joseph), and some owned by public utility districts (e.g. Wells, Rocky Reach, Rock Island, Wanapum and Priest Rapids). The Canadian storage improved the efficiency of these dams by firming up capacity (i.e. providing stored water when installed generation would otherwise be running at less than full capacity) and storing water when the same dams might otherwise be spilling water. These power benefits currently have an average annual value of about $202 million. Canada/British Columbia also receives other benefits from the treaty facilities including local flood control (for communities like Trail and Castlegar) and on site generation at Mica, Revelstoke (not a treaty dam, but a facility which benefits from the regulation provided by Mica) and Keenleyside. For maps of the basin and dam locations and more information about the treaty see the website of the Columbia Basin Trust here.

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Alberta’s New Wetland Policy as a Conservation Offset System

PDF Version: Alberta’s New Wetland Policy as a Conservation Offset System

Policy commented on: Alberta Wetland Policy

The new Alberta Wetland Policy, released on September 10, has already been much commented upon and critiqued.  Understandably, such commentary has generally come from the perspective of trends in Alberta’s protection of wetlands.  For example, in a recent ABlawg posting Arlene Kwasniak has provided a thorough review of the context, history and some specific features of the new policy. My orientation here is somewhat different.  I wish to look at the new approach to wetlands as part of the emerging trend toward market-based conservation, and in particular the use of offset mechanisms to preserve ecosystems and biodiversity.

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The New Alberta Wetland Policy: White Area Wetlands, Just a Pawn in the Game?

PDF Version: The New Alberta Wetland Policy: White Area Wetlands, Just a Pawn in the Game?

Policy commented on:  Alberta Wetland Policy

On September 10, 2013, the Alberta Government released its new Alberta Wetland Policy (“New Wetland Policy”).  The release was long anticipated. It was preceded by 20 years of an “interim policy” applying to only part of the province, and by about 10 years of both lengthy and spurts and starts of consultations and processes aimed toward the province developing a comprehensive wetland policy approach applicable to the entire province. This ABlawg post presents and discusses the New Wetland Policy in a comparative, legal/political, and historical context. It describes the importance of wetlands and outlines wetland protection and conservation approaches in Alberta and elsewhere. It reviews the New Wetland Policy in this context to demonstrate how the New Wetland Policy compromises the protection of slough/marsh wetlands. A forthcoming ABlawg post by University of Calgary LLM student Dave Poulton will focus on the New Wetland Policy’s mitigation hierarchy and the offset provisions.

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No Public Interest Standing at the Alberta Environmental Appeals Board

PDF version: No Public Interest Standing at the Alberta Environmental Appeals Board

Decisions considered: Alberta Wilderness Association v Alberta (Environmental Appeal Board), 2013 ABQB 44; Water Matters Society of Alberta et al v Director, Southern Region, Operations Division, Alberta Environment and Water, re: Western Irrigation District and Bow River Irrigation District (10 April 2012), Appeal Nos. 10-053-055 and 11-009-014-D (AEAB), (the “EAB Standing Decision”).

Over the past decade, Alberta Environment has amended water licenses held by irrigation districts (IDs) to allow these IDs to allocate water for commercial purposes other than irrigation. Some question the authority of Alberta Environment to approve these amendments under the Alberta Water Act, RSA 2000, c W-3. The general argument here is that such change-of-purpose license amendments should be handled as a transfer of license allocation under the Water Act. And this argument is grounded on several points, including that by using the license amendment route rather than a transfer the conservation holdback provision of the Water Act is avoided and the amendment approach involves significantly less opportunity for public oversight over water management. This latter point has borne out further as public interest groups have been consistently denied standing to contest these approvals by Alberta Environment and the Alberta Environmental Appeals Board (EAB). The summary point is that Alberta Environment and the EAB assert public interest groups do not qualify as “directly affected” by a license amendment, and thus have no standing to file a statement of concern with Alberta Environment and/or a notice of appeal with the Board under the Water Act to challenge the legality of these amendments.

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