Saturday, February 27, 2010

Hydraulic fracturing in Québec uses only water and sand


An article (in French) by Louis-Gilles Francoeur in Le Devoir informs that hydraulic fracturing operations in Québec are conducted without the toxic dissolvents that are used in the United-States and contaminate groundwater.

The unanswered question is: if the contaminants are actually not used and, as it appears, not required in Québec, why are they needed and used in the U.S.A.?

Water rights as constraint on nuclear plant project in Utah


An article by Rachel Waldholz from High Coutry News, «Water fallout: Utah's first nuclear plant won't float without water rights», illustrates the growing competition for scarce water resources resulting from growing energy demand.

Contrary to the water quality challenges raised by hydraulic fracturing on the East Coast, the issue in this instance is quantitative apportionment between users.

The developers of a projected nuclear power plant need to secure the water rights for the use of 50,000 acre-feet/year - enough water to supply up to 100,000 homes - to cool the reactors of the proposed 3,000 megawatt plant, which would produce enough electricity to power nearly 3 million households.

As Rachel Waldholz writes, securing these water rights in a prior appropriation jurisdiction for nuclear energy production would result in the following situation:

«If more water is taken from the river, the agencies may not be able to keep stream flow high enough to protect several species of rare and endangered fish, says Wayne Pullan of BuRec's Provo office.

And if the Green River drops, Blue Castle [the project developer] would have early rights to what remains: While San Juan's rights are junior (2001), Kane County has 1964 rights to 29,600 acre-feet. That places it ahead of many rights holders, including the BuRec's Central Utah Project, which supplies water to much of the Wasatch Front. Pullan says that in a drought, calls from such senior rights could short the project's users -- including Salt Lake City.

This is part of a much larger tangle. If Utah develops just 360,000 more acre-feet of Colorado Basin water, it will hit its limit (1.4 million acre-feet) under the Colorado River Compact. But it has handed out paper rights to an additional 1.1 million acre-feet. All those rights holders, like Kane County, still have the right to develop. But Utah will have no excess water to supply them, and so water will be rationed by priority date across the state. In that context, Blue Castle's request is nothing to sniff at -- it's a seventh of the water Utah has left.

At times, the Blue Castle proposal looks like a water right in search of a project. Kane County has five more years to prove it is putting its water rights to "beneficial use," or risk forfeiting them, according to Mike Noel, executive director of the Kane County Water Conservancy District.»

This situation provides an illustration for many prominent legal issues in current water management:

- How to make more flexible legal frameworks for apportionment between users that require stable and secure access to water in the context of growing hydrological variability and uncertainty due to drought or climate change? In this context, the inter-state allocation of fixed quantities of water through Compacts or Supreme Court adjudications appears very rigid and difficult to adapt to a constantly changing environment. Another related question is the chronological hierarchy of water rights under prior appropriation: is it really appropriate to favour energy production over drinking water provision in case of drought simply because the water right used for energy production was created before? Regulated riparianism offers an alternative whereby water rights can be prioritised in statutory provisions according to the type of use regardless of the moment the rights were created;

- How to protect environmental flows and the components of aquatic ecosystems in hydrological systems characterised by scarcity and «full or close to full» water allocation? In this respect, prior appropriation has been abundantly described in legal doctrine as a disincentive to environmental protection due to the beneficial use requirement which can be seen at work here.

Saturday, February 20, 2010

International trade law or international water law for transboundary water transfers?


A new book anounced for publication on 01 July 2010 could look at the flash point between international water law (which is fundamentally based on the principle of equitable and reasonable use) and international trade law.

International Trade in Water Rights: The Next Step by Aline Baillat Ballabriga apparently argues that the recognition of water as an economic good in domestic water reform will increasingly impact the management of international watercourses.

This is an area already covered to some extent. However, Ballabriga's new book might be exciting, as the table of contents could be interpreted so as to foster controversy.

For example, a mention of the «Property Regime of International Watercourses» might be percieved as a new approach on the traditional view of natural resources - such as land and water - being objects of state dominium in international law (dominium is not property).

Also, the choice of case-studies appears somewhat ambiguous, as the Murray-Darling is surely not an international basin. To what extent lessons can be drawn from it to enlighten the main argument?

This might be material for a nice book review...

Post Doctoral Researcher in International Water Law wanted


The IHP-HELP Centre for Water Law, Policy and Science, at University of Dundee under the auspices of UNESCO is looking for Post Doctoral Researcher in International Water Law (Public International Law).

McGill University Conference on a New Canadian Water Policy


The focus of this year's annual MISC Conference at McGill University is «Canadian Water: Towards a New Strategy».

The Conference will be held on March 25-26, 2010, and will feature key participants from the international development sector such as Margaret Catley-Carlson, and some prominent Canadian academics in water management such as Rob de Loë, Karen Bakker, Madeleine Cantin Cumyn and Linda Nowlan.

The participation of the Honourable Jim Prentice, Canadian Minister of the Environment, and Scott Vaughan, Commissioner of the Environment and Sustainable Development from the Office of the Auditor General of Canada, marks this conference as a high level event for water management in Canada.

(Of note, the Commissioner recently released reports critical of the implementation of two federal legal regimes important for the management of water-related resources - the Fisheries Act and the Canadian Environmental Assessment Act)

Could this conference serve as the spring board for a new federal water management framework? The previous one dates back to 1987 and arguably needs to be revamped.

Wednesday, February 17, 2010

Just a nice water-related quote


Very manichean, but true nonetheless:

«Water management is, by definition, conflic management.»

From Aaron Wolf, «Possible Futures for Transboundary Water Resources», (2010) World Politics Review 5, 20 January 2010.

Environmental flows in Alberta (Canada) and tar sands exploitation


In the last 10 years, Alberta has experienced an economic boom based on tar sand exploitation. The main tar sand deposits currently exploited are situated in Northern Alberta, in the Athabaska river basin, which is tributary to the Mackenzie river, one of the last great North American rivers left in a relatively pristine state (here is a map of the North American watersheds).

Tar sand exploitation consumes large volumes of water. To extract 1 oil barrel from the sands, a water input of 2 to 4.5 barrels is required depending on the method. The used water is loaded with toxic contaminants and almost all of it ends up in tailing ponds.

Alberta has defined a framework that indicates how much water tar sand companies can remove from the Athabasca River in order to foster economic development while ensuring healthy aquatic ecosystems in conformity with the provincial water strategy (see p.10-11).

Recently, the Cumulative Environmental Management Association (CEMA) has released a report developing recommendations for a Phase 2 Water Management Framework that will prescribe when and how much water can be withdrawn from the lower Athabasca river for cumulative tar sand exploitation. According to the report summary:

«Key lessons and principles that emerged from this exploration, and are strongly recommended to form the basis of the final water management framework, include:

• Water withdrawal rules should generally be more restrictive as flows decrease.

• Although there is a need to provide instream flow protection throughout the entire year, there should be a hierarchy of protection across seasonal time periods: 1)midwinter, 2) late winter/early spring, 3) fall/early winter, and 4) summer.

• A specified EBF threshold is a means of providing increased protection during low flow events and refinements to its application on the Lower Athabasca River should continue to be explored.

• Mitigation using off-stream storage (or other equivalent approach to mitigation) is a necessary means of facilitating an effective water management framework.»

This report has been received with some reservations. The Prairie Chapter of the Sierra Club of Canada has set up the Got Thirst? Campaign that warns of the perils of water resources over-exploitation.

Sunday, February 14, 2010

The Asian carp dispute: background info


The Circle of blue focuses on the Asian Carp dispute with a series of articles providing backgroud information and a follow-up on the political developments in Washington.

Saturday, February 13, 2010

Conference on water in international law


The 2010 Annual Symposium of the French Society for International Law focuses on water in international law. The Symposium will take place on 3-5 June 2010 in Orléan, France.

The 4 workshops of the Symposium are:

- Regional cooperation for water resources

- Corruption and monopoly in the water sector

- Water conflicts and perspectives in development

- Water resources and protection of the environment in international law

The Symposium appears to encourage participation from young researchers. Call for contribution is open until 15 March.

Saturday, February 6, 2010

Renewed motion to the US Supreme Court to stop the Asian carp


Following denial of an earlier motion in January, The Great Lakes Law Blog reports that Michigan has just filed a renewed motion with the US Supreme Court for a preliminary injuction to close the Chicago Ship and Sanitary Canal to prevent a detrimental invasion of the the Great Lakes by the Asian Carp.

The renewed motion from Michigan focuses mostly on the fact that the balance of equity is in favour of Michigan. The economic analysis of the respective harm suffered by Illinois and Michigan stresses that possible damages to the local economy have been greatly exaggerated. Temporary closure of the Canal locks is even more urgent since Asian Carp DNA has now been found in Lake Michigan.

These are important arguments. However, the Supreme Court did not give any clue on the motives for rejecting the initial preliminary injunction in January, and these arguments could be aimed at the wrong target.

One major argument from Illinois to ask for denial of the initial preliminary injunction was based on lack of jurisdiction. Essentially, reopening the Wisconsin vs Illinois Supreme Court Decree governing the Chicago Canal diversion is not appropriate because the issue is unrelated to the substance of the decree, i.e. the amount of water diverted. Moreover, Illinois argues that it is not the owner and operator of the Canal (the US Army Corp of Engineers appears to be that).

Michigan initially addressed the jurisdiction issue in its Motion to reopen and for a supplemental decree. The renewed motion from Michigan addresses additional issues related to the jurisdiction argument from p.35 to 37.

According to Michigan, there are two avenues for its action to succeed: 1) under the Wisconsin vs Illinois Decree; 2) under the original and exclusive jurisdiction of the Supreme Court on all controversies between two or more state. Michigan argues that Illinois' involvement as a party in this action is essential because only Illinois may provide some aspects of the relief sought by Michigan: according to Illinois state law, only Illinois has the power to block the passage, capture and eradicate Asian Carps.

Despite this, Michigan writes:

«Michigan does not make this request lightly or without recognition of the extraordinary nature of the relief sought in the context of the Court's limited exercise of original jurisdiction. Michigan does so in these unique circumstances, out of its responsibility to protect one of its greatest resources from an imminent threat of extraordinary harm.» (p.9)

The jurisdiction question will possibly be a decisive issue.

Beside the legal battle, significant political developments in Washington DC this week (see Circle of Blue) might provide an alternative solution to the Asian Carp invasion.

Monday, February 1, 2010

1 gallon of rain runs off, you pay US$13


As mentioned in previous posts, rainwater management is an emerging trend.

Rainwater can be abstractly conceived as the ultimate upstream point in the hydrologic cycle which regenerates and replenishes freshwater resources for anthropogenic uses.

Pollution and reduction in quantities of unallocated water result in increasing water stress. To avoid shortages, users are moving from dowstream closer to upstream in the hydrologic cycle: historically, people have moved from «excess» surface water flowing in rivers to the sea, to groundwater sources directly dependent on rainwater infiltration, and now onward to rainwater directly harvested when and where it falls...

Other abstract upstream sources in the hydrological cycle such as desalination or cloud seeding are either more costly or technologically immature. As a result, rainwater harvesting will probably become an important aspect of water resources management in the near future.

The multiplication of news related to rainwater harvesting already suggests that this is already the case. The fact that water stressed regions currently develop projects for harvesting rainwater confirms that including rainwater within management regimes is essential.

The Los Angeles Times reports that a proposed law applicable to new home buildings and development projects would oblige rain capture and reuse to avoid runoff and waste. The generation of runoff would be sanctioned by a mitigation fee of $13 / gallon.

Coca-Cola and its partners in India have completed 16 rainwater harvesting projects in Madhya Pradesh for a total harvesting capacity of 3,600 cubic meters / year.

And in Queensland, Australia, rainwater harvesting from roofs combined with wastewater reuse and recycling at an onsite treatment plan will reduce the cost of a new development by AU$6 millions.