Report on the implementation of the Québec Groundwater Catchment Regulation

(BY HUGO)

On 28 May 2010, the Québec Ministry for Sustainable Development, Environment and Parks published an implementation report (in French) for the Groundwater Catchment Regulation (GCR) covering 6 years from June 2002, the date of entry into force, to June 2008.

The Report provides limited factual data on the implementation of the GCR. It is released almost 2 years after it was due to be made public further to section 64 GCR. The Report bears no date and some of the acronyms listed at the beginning are not used in text of the version released. Nevertheless, some points are worth analysing.

Data on groundwater uses

The Report first provides a portrait of groundwater uses in Québec:

- 20% of the Québec population is dependent on groundwater sources, that number being equally divided between individual wells and municipal systems;

- 54% of the groundwater withdrawn in Québec serves for domestic purposes. Other uses are divided as follows: 39% for agriculture (i.e. 23% of aquaculture and 16% for livestock and irrigation); 7% for industrial usages; 0,08% for drinking water bottling.

These numbers are only indicative as they originate from estimations dating back to 1987. Data on groundwater resources and usages in Québec is insufficient and hampers improved water resources management.

The Ministry attempted to remedy this situation through section 59 GCR, subjecting the owners of catchment sites that yield at least 75 m3 of groundwater per day to an obligation to notify with respect to the location of catchment works, the type of water use, the volume of water drawn daily and the number of days per year when water is drawn. However, according to the Report (p.33), only 251 well owners declared their withdrawals.

Other sources of information stemming from obligations under sections 20 and 21 GCR have not yet resulted in the development of a complete database for groundwater usages in Québec (p.36-37), although the Ministry has received 27726 drilling reports in conformity to section 20 form 2003 to 2008 (p.14).

Further progress on this issue is likely to result from the implementation of the 2009 Regulation respecting the declaration of water withdrawals, that specifically aims at ensuring better knowledge and better protection of the environment by allowing the Government to assess, through the declaration of water withdrawals, the impact of the withdrawals on water resources and ecosystems.

Quantitative management

Under section 31 GCR, the following withdrawals are subject to a ministerial authorisation:

1- groundwater catchment projects having a capacity less than 75 m3 per day intended to supply more than 20 persons;

2- groundwater catchment projects intended to supply water to be distributed or sold as spring water or mineral water or to be an ingredient used in manufacturing, conservation or processing and stated as spring water or mineral water on a product; and

3- groundwater catchment projects having a capacity of 75 m3 or more per day or that will bring the capacity to more than 75 m3 per day.

The Report indicates that 277 authorisations (among which 3 for water bottling) have been delivered between 2003 and 2008 (p.28). The Report fails to detail the number of applications received by the Ministry and does not provide information pertaining to the withdrawal volumes authorised. Significantly, the number of authorisations granted for withdrawal projects with a daily capacity above 300 m3 per day, which is the highest volume bracket under the GCR, accounts for half the authorisations granted.

With respect to the scope of the ministerial authorisation regime, the Report notes two problems: 1) the exclusion of mine dewatering from the regime. This is significant because such withdrawals are reported to be the most important in quantity in Québec. This exclusion is deplored by the Ministry although it results solely from an administrative interpretation of the relevant legal provisions that could have been construed otherwise in order to extend the regime to mine dewatering. 2) The exclusion from the ministerial authorisation regime of withdrawals anterior to the implementation of the GCR. This exclusion was possibly responding to a fear at the time of the Regulation's inception (1996 onward) that the imposition of an authorisation regime would in fact be perceived as an expropriation of private property rights in groundwater.

Both these problems related to the scope of the regime will be resolved when the new authorisation regime provided by the Act to affirm the collective nature of water resources and provide for increased water resource protection enters into force (see section 19 (31.74 and 31.75) of the Act).

With respect to the municipal authorisation regime applicable to groundwater withdrawals subject to the GCR but not covered by article 31, the Report does not identify significant implementation problems and recommends the continuance of this regime (p.8).

Qualitative management

The Report makes a series of recommendations for improving the technical standards applicable to wells that are not subject to section 31 GCR in order to improve groundwater quality protection (better well waterproofing to prevent surface to groundwater seepage, minimal distances between wells and wastewater systems or agricultural activities to prevent contamination, ...).

The most significant provisions with respect to groundwater quality pertain to protection areas around wells subjected to the ministerial authorisation regime that restrict agricultural activities to limit possible contamination (sections 24-30 GCR). Among 476 municipalities operating wells and contacted by Ministry in April 2008, 65% had established protection areas, 20% were in the process of doing so, and 14% had not initiated the process. As each municipality may possess many wells, this translated in approximately 130 catchment systems around which no protection area were established.

In some case, the Report recommends additional measures to prevent groundwater contamination. The Report identifies nitrate contamination resulting from agricultural activities as a significant threat to public health and recommends the development of provisions to protect groundwater sources given the high treatment costs once groundwater is contaminated. The report also recommends the extension of restrictions placed on nitrogen fertiliser spreading in the context of agricultural activities to golf course operations.

However, in many cases, the Report recommends relaxing applicable provisions to reduce constraints on agricultural operations (see p. 21-24). In this context, the municipal powers to regulate such activities might come to play an increasing role. The result of the appeal of a 2009 Superior Court decision, Ferme l'Évasion vs Elgin (in French), will be crucial to determine the extent of the municipal powers in this respect (see notably section 27 GCR and section 124 para.4 of the Environment Quality Act).

Compliance

260 notices of offense have been delivered by the Ministry, among which 85% for agricultural activities conducted too near a well, 8% for having sunk a well and started a withdrawal without a ministerial authorisation, 4% for installing or maintaining inadequate fenced perimeters around wells, and 3% for not filing the adequate drilling reports with the Ministry.

Significantly, compliance with section 21 GCR by small well-owners is extremely low: a maximum of 6% among them (possibly 6% of 27726? - the latter number being the number of wells drilled by operators that complied with section 20 GCR) have fulfilled their obligation to have the water from their well analysed and have actually sent the results to the Ministry (p.15). However, no notice of offence has been delivered by the Ministry for such violations.

On this issue, the Report appears to conclude that the obligation to analyse the water quality of new wells not subject to the ministerial authorisation regime should be abrogated. Strangely, the reason invoked for abrogating this obligation is the false sense of security that water quality analyses might generate. Another more credible explanation might be the cost of the analyses, which could make the administration unpopular with well owners if the penal provisions were enforced. Hence, the Report recommends ministerial disengagement and reliance on existing awareness-raising initiatives.

Federal Bill C-26: new restrictions on transboundary water tranfers?

(BY HUGO)

A new bill, Bill C-26, was introduced by the federal minister for Foreign Affairs to the Canadian House of Commons on 13 May 2010 in order to prohibit bulk removal of transboundary waters.

According to Reuters, the Bill fulfills a 2008 promise by the Conservative government and complements existing provincial legislation that covers several bodies of water, including the Great Lakes. Through the Bill, the minister for Foreign Affairs declared that Canada is strengthening its resolve to make sure that there are no exports of bulk water that take place.

The Bill would principally amend the International Boundary Waters Treaty Act (IBWTA), which confirmed and sanctioned the 1909 Boundary Waters Treaty (Treaty) between Canada and the U.S.A.

Apart from adding inspection powers and increasing penalities under the IBWTA, the Bill alters the prohibition on water removals contained in section 13 IBWTA. Section 13 currently reads as follows:

«...no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located...»

Boudary waters are defined as follows (preliminaty article of the Treaty):

«...the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.»

The prohibition contained in section 13 IBWTA is charaterised by the International Boundary Waters Regulations (IBWR). Sections 5, 6 and 2 IBWR are particularly relevant:

5. Subsection 13(1) of the IBWTA applies only in respect of the Canadian portion of the following water basins: (a) Great Lakes; (b) Hudson Bay Basin; and (c) Saint John — St. Croix Basin.

6. Subsection 13(1) of the Act does not apply to the removal of boundary waters other than the removal of boundary waters in bulk.

2. (1) "removal of boundary waters in bulk" means the removal of water from boundary waters and taking the water, whether it has been treated or not, outside the water basin in which the boundary waters are located

(a) by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

(b) by any other means by which more than 50,000 L of boundary waters are taken outside the water basin per day.

(2) The removal of boundary waters in bulk does not include taking a manufactured product that contains water, including water and other beverages in bottles or packages, outside a water basin.

The new section 13 contained in the Bill would read as follows:

«(1) ... the bulk removal of boundary waters is prohibited.

(2) ... the bulk removal of transboundary waters is prohibited.»

Whereas the definitions of boundary waters and bulk transfers remain essentially the same, the definition of transboundary waters expands the prohibition of section 13 to waters that flow accross the international boundary in the water basins of the Atlantic Ocean, Arctic Ocean, Gulf of Mexico, Hudson Bay and Pacific Ocean (see section 3(2) and Schedule 2 of the Bill).

As a result, the Bill slightly expands the protection against transboundary bulk water transfers.

A guest post by Professor Marcia Valiante on the Great Lakes Law Blog, concludes that the Bill fills a gap in the legislation but is not ambitious either constitutionally or environmentally, and is perhaps an easy way for the government to improve its rather dismal environmental image.

The Council of Canadians is of the opinion that the Bill is not a ban on water exports and actually weakens the current regime due to the fact that the Bill narrows the definition of bulk removals to exclude water in manufactured products such as beverages. This opinion appears unfounded given that the current wording of section 2(2) IBWR is virtually identical to the wording of the exclusion from the definition of «bulk removal» under the Bill.

Update on the Nile Basin Cooperative Framework

(BY HUGO)

Thanks to collegue BO for the heads up on the news that Kenya joined Ethiopia, Rwanda, Uganda and Tanzania, and signed the recent Nile Basin Cooperative Framework Agreement: the news can be found here and here.

As a result, only one more signature is required from the 9 basin countries for the agreement to come into force.

Strengthening Legal Protection for Canada's Drinking Water

(BY HUGO)

On 17 May 2010, FLOW - Forum for Leadership on Water released a report on strenghtening the legal protection for Canada's drinking water.

Some of the challenges highlighted by the report to justify improved protection for drinking water in Canada are:

- In April 2008, the Canadian Medical Association reported that there were 1,776 drinking water advisories in effect across Canada;

- On 30 April 2010, there were 116 First Nations communities across Canada under a Drinking Water Advisory;

- An estimated 20–40% of all rural wells in Canada have nitrate concentrations or coliform bacteria counts in excess of drinking water guidelines;

- Half of the Canadian jurisdictions lack mandatory testing for chemical contamination of drinking water and over half do not require advanced water treatment for surface water;

- Many of the parameters in the voluntary pan-Canadian drinking water guidelines are up to 1000 times weaker than at least one of the other corresponding European standards or Australian guidelines.

To address these fundamental problems, the Report makes the following recommendations:

1 - The federal government could replace the Canadian Guidelines for
Drinking Water Quality with a Safe Drinking Water Act that has health-based long term objectives and legally binding minimum national standards and regulations;

2 - The federal government should ensure the drinking water standards are at least equal to the highest standards in other industrialized nations;

3 - The federal government should take steps to provide resources and support for safe drinking water on federal lands and all First Nations reserves;

4 - Establish consistent standards and reporting mechanisms to increase transparency about drinking water and wastewater systems, notably through a publicly available annual report to Parliament.

The Living Water Policy Project

(BY HUGO)

An exciting discovery: The Living Water Policy Project.

The Project is an evolving library of Canadian water policy information. The site allows you to review summaries of up to date water policy documents for each province, compare water policies in different provinces with a unique comparison tool.

The Project can help to counter the managerial fragmentation of Canada's waterscape.

Water Energy Nexus: Water and Mining Conference

(BY HUGO)

On 9-11 June 2010, the second International Congress on Water Management in the Mining Industry will take place in Santiago, Chile. The focus will be on water supply, efficient water use and effluent management in the mining industry:

«In the last few years due to increasing scarcity, on one hand, and the ever growing demand, on the other, important efforts have been undertaken by the mining industry to improve the efficient use of this valuable resource.

Between 2000 and 2008 the average water consumption in the Chilean copper industry decreased from 1.1 m3 to 0.79 m3 of fresh water for each ton of ore processed by flotation, and from 0.3 m3/t to around 0.13 m3/t of ore used in hydrometallurgical processes.»

The programme is available here.

A first step for the Nile Basin Co-operative Framework?

(BY HUGO)

As reported by AlJazeera and BBC, four of nine Nile Basin countries - Ethiopia, Rwanda, Uganda and Tanzania - have signed on 14 May 2010 a new treaty on the equitable sharing of the Nile waters despite strong political opposition from Egypt and Sudan.

The new agreement, the Nile Basin Co-operative Framework, is to replace a 1959 accord between Egypt and Sudan that gave them de facto control of more than 90 per cent of the water flow. The agreement requires signature of at least six countries and remains open for one year.

Collegue Musa Abseno has been heavily involved in the long negociation process for the Nile Basin Co-operative Framework.

Follow-up on geo-engineering and precaution

(BY HUGO)

The draft recommendations of the Fourteenth meeting of the Subsidiary Body on Scientific Technical and Technological Advice to the Convention on Biological Diversity reads as follows with respect to geo-engineering:

«(t) [Ensure, in line and consistent with decision IX/16 C, on ocean fertilization and biodiversity and climate change, and in accordance with the precautionary approach, that no climaterelated geo-engineering activities take place until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts];»

As always, Canada can be relied on in diplomatic fora to present positions as antagonistic as possible to any form of environmental protection. According to IISD reporting services, Canada opposes restrictions on geo-engineering activities:

«CANADA suggested “examining” related geoengineering activities to determine if there is an adequate scientific basis to justify them, rather than preventing such activities until an adequate scientific basis to justify them exists.»

The precautionary principle? Less material than a cloud

(BY HUGO)

Thanks to collegue BO, who pointed to this article from Karl Burkart from the Mother Nature Network, about manufacturing clouds to increase the albedo of the Earth's athmosphere and presumably reduce greenhouse effect by reflecting the Sun's energy back into space:

«Basically a fleet of ships equipped with screens & vacuums pump up millions of gallons of ocean water and using high-powered water canons introduce the water some 3000 feet in the air, where clouds are formed. The added moisture content would increase the thickness of the water vapor, making the clouds whiter and thus more reflective.»

The proposals for such experiments have been around for years and are part of a wider debate about geoengineering to fend off the anticipated damages resulting from global temperature increases. As reported by Ben Webster for the Times:

«The British and American scientists involved do not intend to wait for international rules on technology that deliberately alters the climate. They believe that the weak outcome of December’s climate summit in Copenhagen means that emissions will continue to rise unchecked and that the world urgently needs an alternative strategy to protect itself from global warming.»

Of course, the resulting alteration of precipitation patterns is completely unpredictable, adding to the increasing variability of water flows in the hydrologic cycle due to climate change.

Why invest massively into such magic-wand solutions rather than into concrete projects to counter green gas emissions? No clue. It just makes no sense, however you want to look at it. The point is, nobody knows the effect of such extreme measure; it's conjectures piled on conjectures,buttressed by conjectures.

Fortunatly, common sense has not entirely left the building. In the current discussions of the scientific advisory body to the Convention on Biodiversity, SWEDEN and ARGENTINA called for applying the precautionary principle to geoengineering. IISD provides some highlights to follow the action here.

It feels like humanity realised it will inevitably crash against a wall, but instead of breaking just decided to accelerate to reduce the damages. Depressingly, great environmentalists like the people at Legal Planet start considering geoengineering solutions as a reasonable possibility.

Water case law in Québec 6: Municipal responsibility for watercourse maintenance

(BY HUGO)

A recent judgement by the Court of Appeal, Charlevoix-Est (Municipalité régionale de comté de) vs. Tremblay (in French), examines extracontractual liability stemming from the municipal duty to maintain watercourses in good condition.

The Plaintiffs operate a lodge on the banks of a tributary to the St Lawrence River. On 31 August 2005, the remnants of Hurricane Katrina cause precipitations abundant enough to breach 3 beaver dams upstream of the Plaintiffs' lodge, resulting in a flash flood and damages to the Plaintiffs' property. As a result, the Plaintiffs file an action in civil liability against a Regional County Municipality and claim close to half a million Canadian dollars.

First, the Court rejects the Municipality's defence based on force majeure. Second, the Court establishes that the Municipality has an obligation of means under the Municipal Code (see section 782 among others - these sections are now replaced by the Municipal Powers Act, under which the scope of the municipal obligation might be different) to maintain rivers in good condition and free of obstructions that might hinder the flow of water. Finally, the Court concludes that the Municipality has not done anything to fulfill its obligation in conformity to the standard of the reasonable and prudent person, and confirms the Municipality's responsibility for the damages claimed.

The cost of life is paid in water

(HUGO)

Just a new way of seeing things found by chance in a scientific paper by Arthur Wood and Jennifer Smith, «Universal model for water costs of gas exchange by animals and plants» (2010) Vol.107 No.18 PNAS 8469:

«For terrestrial animals and plants, a fundamental cost of living is water vapor lost to the atmosphere»

Water is the fundamental currency with which one pays to live...

Environmental flows in the UK: ecosystems vs. humans

(BY HUGO)

An article from Louise Gray in the Telegraph warns that one in three rivers in England and Wales is in danger of dying out due to demand for drinking water. According to the article:

«The Environment Agency estimate that river flows in some areas could be reduced by 80 per cent by 2050 and ecosystems in a third of river catchments are already in danger of drying out in a hot summer.»

This is interesting from a legal perspective because of a heavy trend noticeable in water allocation frameworks where water uses must be authorised by an administrative agency. Under such regimes, it is common to find that the criteria guiding the administrative discretionary power to authorise a water use must prioritise public health and access to drinking water. For example, the recent Act 21, 2009 (Québec) provides that:

19 (...) 31.76. The Minister’s power of authorization under this subdivision must be exercised so as to ensure the protection of water resources, particularly by fostering sustainable, equitable and efficient management of the resources in light of the precautionary principle and the effects of climate change.

In addition, every decision in the exercise of the Minister’s power of authorization must give priority to satisfying public health, sanitation, civil protection and drinking water supply needs. Every such decision must also aim to reconcile

(1) the protection needs of aquatic ecosystems; and

(2) the needs of agriculture, aquaculture, industry, energy production and other human activities, including recreation and tourism. (Emphasis added)

This section is not in force yet, and it is not possible to determine the result of its implementation as well as the tribunals' interpretation of it.

However, a preliminary reading of §2 of article 31.76 appears to establish a priority in favour of human uses for drinking water. This is entirely consistent with the political push for the materialisation of a human right to water throughout the world.

However, as seen from the UK situation, human water uses for drinking purposes might destroy ecosystems. This raises many questions:

1 - Must human water uses for drinking purposes be prioritised in all situations? Even accepting that they must always be prioritised, are such human uses sustainable without a functioning ecosystem?

2 - How is it possible to reconcile the human right to water for domestic usages and the emerging human right to a clean, or healthy (etc) environment? In developing countries where a majority of poor people is disenfranchised and living directly off ecosystem services, is it not appropriate to prioritise the right to a healthy environment to ensure access to water in order to preserve the natural purification of water function performed by the environment?

It seems appropriate to finish this post with a quote from Professor John Merrills, «Environmental Rights» in Daniel Bodansky, Jutta Brunnée & Ellen Hey, eds., International Environmental Law (Oxford: Oxford University Press, 2007) 663 at 666-668:

«Rights and preferences tend to be confused - sometimes it must be said deliberately - because when there are conflicting demands, whether in relation to jam tarts or the environment, having the desired objective recognized as a right is a crucial means of establishing priorities. When preference confronts preference the result in moral terms is a stand-off. When right confronts preference, on the other hand, the holder of the right has a trump card with which to pre-empt preferences and other non-moral considerations. What is true here of moral rights is true a fortiori when such rights are translated into law.

[...] If rights are a good way of ensuring that something is taken seriously, designating an entitlement a human right is even better, on account of the status of this class of rights in legal and moral discourse. [...I]f a preference can be turned into a right, the position of the new rights-holder is much strengthened, especially in comparison with rivals whose preferences have not been so transformed.

There may also be other effects, however. Suppose that instead of being confronted with a mere preference, our rights-holder is confronted with another rights-holder. We are now back to the same position of preference being confronted with preference, with the important difference that, as Lomasky has explained, since both parties are armed with rights, accommodation through compromise may now be much less appealing. The tendency for disputes to become more acrimonious when rights are at stake can also be seen elsewhere. A rights-holder confronted by a rival with a mere preference will expect to get his way, and, although the purpose of rights is to ordain such priorities, the natural tendency to 'stand on our rights' cannot be said to do much to promote social harmony or, in some cases, social welfare. When there are only competing preferences, we can try to maximize social welfare by utilizing a cost-benefit analysis. However, once a preference is converted into a right, trade-offs can no longer be considered in the same way. Moreover, a proliferation of rights and rights holders not only multiplies the opportunities for rights-holders to come into conflict with each other, but also generates a tension between rights as a basis for actions and other moral considerations.» (Reference omitted)

Conference on Challenges of Sustainable Development and Sovereignty in the Arctic

(BY HUGO)

On 17-18 May, the Université Laval hosts a Conference on Sustainable Development and Sovereignty in the Artic.

Programme for the Conference can be found here.

Water resources pricing in Québec

(BY HUGO)

On 27 April, the Québec Ministry for Sustainable development, Environment and Parks presented a regulation project on pricing of water resources use.

The projected regulation aims at imposing a fee on water usage to preserve water resources.

Two different pricing brackets are used. The first imposes a fee of 0,07 CAN$/m³ for the following users:

- Bottled water production;
- Drinks fabrication;
- Canned food production;
- Non-metallic mineral production;
- Pesticide and chemical fertilizer production;
- Inorganic chemical production;
- Oil and gaz extraction.

The second fee bracket is set at 0,0025 CAN$/m³ for the rest of subjected water users. Official justification for the differentiated tariff is based on the fact that the sectors subjected to the higher fee do not return used water to its watershed of origine. However, the agricultural sector is notably excluded from the application of the projected regulation. This is apparently justified by the fact that 95% of farmers use water quantities bellow 75 m³/day, a volume generally deemed insignificant from a resource conservation perspective.

An article from Jean-François Cliche in Le Soleil indicates that the Ministry does not consider the fee as a financial incentive impacting water users behaviour but as an environmental measure.

Comments on the projected regulation can be presented to the Ministry for a consultation period of 60 days.

Water Scholarship: IWC Australia

(BY HUGO)

The International Water Centre in Australia offers Scholarships to international applicants for the Master of Integrated Water Management programme.

Announced deadline for application: 1 August 2010.

Conference on water in international law

(BY HUGO)

Programme for the Conference on water in international law at Université d'Orléans on 3, 4, 5 June can be found here.