Tuesday, November 30, 2010

Water stress in +2C vs. +4C climate changed worlds


The Tyndall Centre for Climate Change Research published the Four Degrees and Beyond Special Issue of the Philosophical Transactions of the Royal Society A Journal (link), with an interesting article by Fai Fung, Ana Lopez & Mark New on «Water availability in +2°C and +4°C worlds».

The paper contrasts water availability and water stress in a world where warming is limited to 2◦C as per the Copenhagen undertakings and one where policy fails and warming reaches 4◦C, a likely scenario according to scientific sources quoted.

The paper defines a water stress index (WSI) based on water resources per capita calculated as the ratio of mean annual surface run-off (MAR) to population. This is recognized as simplistic and reference is made to more complex models in the literature on water stress or scarcity, but a simpler index is justified to reduce uncertainty and limit data requirements. Some interesting parts of the paper discussion are as follows:

«changes in mean annual run-off in a +2◦C world are generally amplified in a +4◦C world: drier areas dry further and wetter areas become wetter. Moreover, as these changes in MAR become amplified, both the consensus and spatial coherence of these changes strengthen. By investigating the changes in water stress in 112 of the world’s major river basins, we have also found that the majority of these river basins are projected to suffer greater water stress in a +4◦C world than in a +2◦C world. However, as we move from a +2◦C to a +4◦C world, there are also a small but increasing number of basins that may experience less water stress, as they are located in regions where rainfall is projected to increase. By using population growth scenarios for the 2030s and 2060s, we find that in a +2◦C world, water stress is dominated by the change in population. However, as we move to +4◦C world and the climate change signal becomes stronger, climate change can play a more dominant role in determining water stress in a river basin. (...)

By examining a subset of the world’s major river basins, we have shown that the picture for water stress in each river basin is dependent on the magnitude of the climate change and the nature of the population growth. For some river basins, the effects of climate change become large enough to offset the large increases in demand in a +4◦C world, e.g. in the Ganges; in most basins, however, climate and population growth combine to increase stress or climate change is insufficient to offset increased demand.

We have also found that seasonality in run-off may be more pronounced in a +4◦C world compared with a +2◦C world; thus, even where annual average runoff increases, dry seasons can become more stressed. This could mean that more sophisticated infrastructure projects may be required in a +4◦C world compared with a +2◦C world in order to prevent flooding and droughts.

Given the business as usual approach to adaptation in Québec, this could mean that trends in dam building and supply oriented solutions will continue to amplify. Possible impacts of dams on the environment at the provincial level might depend on changes to reservoir release regimes under which the dams must operate (inversion, homogenisation, natural) in order to adapt to climate change. As most large dams operate for power generation, modifications in energy demand to face climate change could be an important factor influencing flow regimes and alterations patterns to freshwater ecosystems. Reductions in heating during winter, increase in climatisation duing summer and increased seasonal run-off variability might all point to a move away from natural reservoir release patterns and towards homogenisation or inversion regimes. The Ouranos Consortium has published studies regarding some aspects of climate change on Québec water resources.

Friday, November 26, 2010

POLIS policy paper on public trust doctine in British Columbia


Just a quick post to refer to a nice and short policy paper from Elizabeth Hendriks on Implementing the public trust doctrine in British Columbia for POLIS. It provides an overview of the doctrine and the significant legal developments related to it. Good entry point for a more detailed study of the matter. POLIS has already published on this and there are a other articles in Canadian environmental law doctrine on this (ex.: Scott Kidd, «Keeping Public Ressources in Public Hands: Advancing the Public Trust Doctrine in Canada», (2006) 16 J. Envtl. L. & Prac. 187).

Monday, November 22, 2010

Modifications to the Dam Safety Regulation


Projected amendments to the Dam Safety Regulation have been published. The amendments propose to extend the statutory time limits for the performance of safety reviews by the owners of dams. The extended time limits only apply to dams whose failure consequence category is low. The proposed regulatory amendments also correct wordings that posed difficulties with respect to the determination of safety check flood as well as the application of earthquake resistance standards.

Tuesday, November 16, 2010

2 new project regulations on water resources management in Québec


The Ministry of Sustainable Development, Environment and Parks has published 2 new project regulations.

One is to amend the Regulation respecting the application of section 32 of the Environment Quality Act, the Groundwater Catchment Regulation and the Regulation respecting waste water disposal systems for isolated dwellings. According to the introductory text, the main purpose for these amendments is to relax regulatory controls on businesses and natural resources exploitation:

«The proposed amendments would reduce the administrative requirements related to certain waterworks and sewer projects having little environmental impact. (...) Private institutions, businesses and industries, that own such systems, would also benefit from the proposed amendments since they would no longer be required to obtain a prior authorization to carry out certain water or sewer main replacement work. In addition, enterprises that carry out forest management, mining exploration, transportation or dam work and that must set up temporary industrial camps of 80 persons or fewer would no longer be required to submit plans and specifications to the Minister and obtain the Minister’s authorization before installing waterworks and sewer systems.»

The other projected regulation propose a framework for the authorization of certain projects to transfer water out of the St. Lawrence River Basin. After a very quick preliminary review, one question that can be raised on this regulation project pertains to the limits on access to information regarding the transfer projects (see sections 4 and 5 in fine). For example, why should access be denied to a narrative description explaining why no alternative reasonably accessible supply source is capable of meeting drinking water needs? Or why deny access to a narrative description explaining why the water transfer is necessary?

Could the transparency of the process under the Ontario regulation for transfers outside the Great Lakes St. Lawrence River Basin be a source of inspiration? The website set up with respect to one such transfer for the York region provides a whealth of information on all aspects of the projected transfer.

The contacts for comments on the project regulations are provided both on the Ministry's website and in the texts published in the Gazette Officielle.

Wednesday, November 10, 2010

New claim under Chapter 11 of NAFTA further to the cancellation of licences for outfitting operations


Thanks to colleague Ana-Maria Daza for the heads-up on this one: the revoking of licences to exploit salmon rivers that were granted to an American owned outfitting operation by the government of Québec seems to have recently triggered a notice of arbitration under NAFTA's Chapter 11, according to CNW:

«The $8 million-plus claim alleges unfair treatment of U.S. citizen William Greiner concerning his Canadian-formed company, a lodge and outfitting business which offered Atlantic salmon fishing and hunting in Quebec. (...) It is alleged in the Notice of Arbitration that government action was taken discriminatorily, without legal authority or due process and in violation of NAFTA. The arbitration raises issues regarding the unfair treatment of American citizens investing in businesses in Canada. The Notice of Arbitration also states that the actions taken by the Quebec Government were done in order to protect investments the Government had made in competing businesses, and that Mr. Greiner was targeted because of his nationality, as well as the nationalities of his clients.»

I would be grateful for any advice on how to get a copy of the claim.

Here's a very helpful quote from our American friend Mr. Greiner: «The Government of Canada should understand that laws are meant to be followed». Wow. Thanks.

According to Foreign Affairs and International Trade Canada, William Jay Greiner and Malbaie River Outfitters Inc. are already involved in a dispute under NAFTA Ch11. They served Canada with a Notice of Intent on September 16, 2008, claiming $5 million and alleging that the province of Quebec severely damaged the investor’s business by changing the lottery system for obtaining salmon fishing licenses in 2005 and harmfully revoking licences (see notice here). Interestingly, the letter from Québec authorities indicating the reasons for the revocation (in attachement to the notice) points to unethical behaviour from Greiner's business in addition to economic reasons.

The legal framework for the management of outfitting operations is detailed by the Act respecting the conservation and development of wildlife as well as its regulations. Among the provisions that might be somehow relevant in this context are the following:

85. The Minister may delimit areas on land in the domain of the State with a view to increased utilization of wildlife resources and the carrying on of recreational activities incidental thereto.

86. The Minister may lease exclusive hunting, fishing or trapping rights on all or part of the lands in the domain of the State contemplated in section 85. The Minister may also lease exclusive trapping rights in a controlled zone or in a wildlife sanctuary.

86.1. Notwithstanding any general law or special Act and subject to the right of first refusal of the Native people provided for in the Act respecting hunting and fishing rights in the James Bay and New Québec territories (chapter D-13.1), a lease of exclusive hunting or fishing rights shall be granted, after a call for tenders, to the tenderer whose bid is the most advantageous. However, the Minister is not required to lease exclusive rights if the Minister is of the opinion that the most advantageous bid is inadequate. A lease of exclusive rights is not subject to a call for tenders if the lease is
(1) a lease for a renewal;
(2) a lease for a transfer;
(3) a lease for an extension of rights;
(4) a lease for the expansion of territory;
(5) a lease of exclusive fishing rights that does not cover outfitting activities or that covers a body of water less than 20 hectares in area.

86.2. Where a part of the lands in the domain of the State is contemplated in an outfitter's licence although the licence holder does not hold a lease of exclusive hunting or fishing rights and where that part of the lands in the domain of the State is subsequently delimited in accordance with section 85, the Minister shall
(1) revoke the licence if a lease of exclusive rights is granted to a person other than the licence holder;
(2) amend the licence if the designation of the lands in the domain of the State affects only part of the territory contemplated in the licence.
The provisions of this division in respect of the acquisition of buildings and structures situated on the territory identified in the lease apply, adapted as required.

88. The lessee of exclusive hunting, fishing or trapping rights may, in view of the increased utilization of wildlife resources, erect buildings and structures on the land assigned to him without being required to comply with the provisions of the Act respecting the lands in the domain of the State (chapter T-8.1) concerning leases or occupation licences for land in the domain of the State. The lessee has a right of occupation on the land where the buildings and structures are erected, for the term of the lease.

89. Where the Minister repeals, amends or replaces the instrument delimiting areas of land in the domain of the State, the Minister must revoke or amend the lease of exclusive hunting, fishing or trapping rights for the territory contemplated by the repeal, amendment or replacement.

90. The Minister may amend, revoke or refuse to renew a lease of exclusive hunting, fishing or trapping rights if
(1) the lessee has failed to comply with the conditions of his lease;
(2) the lease was obtained pursuant to a fraudulent declaration.

91. Upon the revocation of a lease under section 89 or the non-renewal of a lease by the Minister for reasons other than those provided in section 93, the Minister shall
(1) compensate the lessee, if no other lease has been granted elsewhere to the satisfaction of both parties, in consideration of, in particular, his loss of revenue derived from the exercise of his rights under the lease; and
(2) acquire the buildings and structures situated in the territory identified in the lease by paying to the lessee who owns them an amount equivalent to their real value or compensate the lessee in consideration of the decrease in value of the buildings and structures.
Upon the amendment of a lease under section 89, the Minister shall acquire the buildings and structures situated in the territory identified in the lease and affected by the amendment by paying to the lessee who owns them an amount equivalent to their real value or compensate the lessee in consideration of the decrease in value of the buildings and structures.
However, if the exclusive hunting, fishing or trapping rights under the lease not being renewed by the Minister for reasons other than those provided in section 93 are granted to a new lessee, the new lessee has an obligation to acquire the buildings and structures for an amount equivalent to their real value and in no case may he exercise his rights under the lease until he becomes their owner.

92. Upon the revocation or amendment of a lease under section 89, if the Minister compensates the lessee in consideration of the decrease in value of the buildings and structures, the lessee shall, within one year of the date of compensation, remove the buildings situated in the territory identified in the lease and affected by the revocation or amendment, or obtain from the Minister, the right to continue to occupy the land concerned under the Act respecting the lands in the domain of the State (chapter T-8.1).

93. Upon the revocation or non-renewal of a lease pursuant to section 90, or where the lessee has, before the expiry of his lease, notified the Minister of his intention not to renew it, every new lessee has an obligation to acquire the buildings and structures situated in the territory described in the lease by paying to the owner of the buildings and structures an amount equivalent to their real value. The lessee whose lease is revoked or not renewed retains his right of occupation only until a new lessee is designated or until the instrument delimiting the area of land in the domain of the State is repealed, amended or replaced so as to exclude the land where the buildings owned by him are situated. No new lessee may exercise the rights conferred by his lease until he becomes the owner of the buildings and structures contemplated in the first paragraph.

94. If a difference of opinion arises between the new lessee and the former lessee or between the Minister and the former lessee on the real value of the buildings and structures contemplated in sections 91 and 93, the Minister shall appoint an assessor agreed by the parties; the assessment of the appointed assessor is without appeal. The costs incurred for the assessment are assumed equally by both parties.

96. No person may, except with the lessee's authorization, carry on an activity for which exclusive rights have been granted on any land on which exclusive hunting, fishing or trapping rights have been granted.

A recent report by Scott Sinclair from the Canadian Centre for Policy Alternatives provides food for thought on the regulatory chill effect of Ch11.

Tuesday, November 2, 2010

Public interest in the Québec water allocation regime


Amber Weeks presents an interesting thesis in the article «Defining the Public Interest: Administrative Narrowing and Broadening of the Public Interest in Response to the Statutory Silence of Water Codes», which is published in the Natural Resources Journal.

According to Weeks, U.S. administrative agencies responsible for water management are required to deny applications for new appropriations and transfers that are not in the public interest. Weeks' argument is summarised in the article's abstract:

«the majority of [Western U.S.] states leave the public interest undefined. This article examines contrasting administrative responses to statutory silence in Nevada and Idaho. Ultimately, this article finds that statutory silence has historically led the Nevada State Engineer to narrowly interpret the public interest as water law. In contrast, the Idaho Department of Water Resources has broadly interpreted statutory silence beyond water issues, causing the Nevada Legislature to narrow the public interest definition in 2003. Statutory silence has resulted in both uncertain interpretation of the public interest and a disconnect between the public interest and public values. Consequently, this article calls for legislatures to define the public interest through a combination of statewide public interest criteria and ongoing input from regional planning groups.»

The above is relevant in the context of Québec water law because Act 21 2009 establishing a new water allocation regime relies on the same concept of public interest to apportion resources between users.

Section 31.79 states that the responsible Minister may refuse to issue or renew a water withdrawal authorization or modify the conditions to which the authorisation is subject in order to serve the public interest.

Section 31.81 states that the term for water withdrawal authorizations is 10 years, but that the Minister may issue or renew an authorization for a shorter or longer term to serve the public interest.

Finally, under section 31.106, a prohibition against water transfers out of Québec may be lifted for emergency-response or humanitarian reasons or any other reason considered to be in the public interest.

In other words, this undefined notion of public interest will play a key role under the new Québec water allocation regime once it comes into force. Weeks' findings should be considered by the regulatory authority when developing the regulation for the implementation of the new allocation regime.