Review of Policy proposal for BC Water Sustainability Act

(BY HUGO)

British Columbia is currently reforming its legal framework for water management. In December 2010, a policy was proposed for the province's new Water Sustainability Act (WSA).

An interesting comparison between:
a) the 2008 Living Water Smart provincial initiative which launched the reform process;
b) the recommendations for reform made in 2009 by NGOs;
c) the 2010 policy proposal,
has been prepared by Randy Christensen, a lawyer with Ecojustice Canada, and Linda Nowlan, Director of Pacific Conservation with WWF-Canada. This comparison provides a great perspective to assess the reform process and evaluate whether the initial objectives are met.

The WWF has submitted comments on the WSA policy proposal that focus on environmental flow protection. The WWF argues the WSA should put environmental flows at the centre of the reformed framework through strong legal protection based on a five step process:

1 - Set a single province wide standard to protect environmental flows;

2 - Require regionally specific broad environmental flows standards to be determined, based on a classification scheme to group rivers and streams of the same type;

3 - Require time-bound plans for the most water-stressed areas that set environmental flow conditions and then require all licences to be subject to maintain those flow conditions;

4 - Require environmental flows to be considered in all new licences;

5 - Require review of licences at periodic intervals to enable response to changing flow conditions.

As the proposal now stands, WWF submits that only the third and fourth actions listed above will occur, leaving most of the province unprotected when it comes to environmental flows.

Environmental flows in Australia: Victorian perspective on farmer anger

(BY HUGO)

As widely reported in the media, proposed water withdrawal reductions to protect the environment in the new draft plan for the Murray-Darling River Basin in Australia have angered Australian farmers (article here from Circle of Blue).

In this context, a new report from the Auditor-General of the State of Victoria titled «Restricting Environmental Flows during Water Shortages» evidences inadequate environmental flow protection (a portion of the Murray-Darling Basin lies within Victoria).

Under the Water Act 1989 (Victoria), when there is less water available, the Minister for Water can declare a water shortage and temporarily ‘qualify’ rights to water, including the environment’s rights. This means the minister can alter access to water by either restricting—reducing or suspending—or increasing them to meet a critical need. The Water Act 1989 also allows the minister to alter water rights under a ministerial direction. This restricts or increases rights in a similar way to a temporary qualification. Essentially, the law allows for the allocation of reserved environmental flows to human needs during dry periods.

The objective of the audit was to assess how effectively the Department of Sustainability and Environment (DSE), water corporations and catchment management authorities (CMA) managed temporary restrictions on surface water rights to meet critical needs, including steps to minimise river health damage. The report concludes that:

«DSE and two of the three water corporations examined did not effectively manage restrictions to environmental water rights. DSE’s justification requirements for water corporations wanting to temporarily restrict water rights are sound. However, the water corporations did not consistently follow these guidelines.

Slow action to address environmental risks by South Gippsland Water and a lack of action and limited accountability by Grampians Wimmera Mallee Water (GWMW) around environmental risks meant that it was not possible to demonstrate that the environment had not been unnecessarily put at risk for the Tarwin and Wimmera rivers.

Limited DSE oversight of how the environment’s water rights were restricted meant it could not judge whether the restrictions were effective. This meant it could not effectively identify improvements. DSE did not enforce its own requirements, effectively de-valuing the need to justify environmental water right restrictions.»

Environmental flow protection in Québec

(BY HUGO)

A series of very interesting articles (here, here and here - in French) from Louis-Gilles Francoeur in Le Devoir discuss the environmental impacts of current record low flows in Québec rivers, and in particular, outline the importance of environmental flow protection in dam operations.

A doctrinal article on «The Emergence of Environmental Flow Protection in Québec Law» to be published in Les Cahiers de Droit's upcoming special issue on water law details the legal aspects of environmental flow protection in Québec.

In line with Francoeur's reasoning, this article also concludes that Québec water law must address the impacts of dam operations on environmental flows and provide adequate normative guidelines to protect freshwater ecosystems from degradations resulting from unsustainable alterations to surface hydrologic regimes. In particular, the article establishes that the Politique des débits écologiques réservés that aims at protecting aspects of environmental flows in Québec rivers downstream of dams could be improved:

1 - The Politique does not apply to water uses anterior to 1999 and cannot serve to restore aquatic ecosystem quality compromised by an anterior use other than on a voluntary basis;

2 - The Politique's implementation is discretionary, and alterations considered unacceptable under the Politique such as complete river-flow cut-offs are authorised in practice. The economic and technical feasibility exclusion ensures that any type of environmental flow alteration can be authorised, thus significantly reducing the Politique’s effectiveness as a normative instrument;

3 - The Politique focuses exclusively on the provision of water for fish and neglects the effects of flow alteration on other components of the biotic assemblages integral to aquatic ecosystem quality;

4 - Reliance on the principle of compensation for lost habitats in the Politique can lead to the acceptance of important shifts in ecosystem species composition. For example, loss of habitats suitable to species adapted to high flow velocity can be considered acceptable under the Politique because balanced by gains in habitats for species adapted to standing water. However, repetition of such a compensation project after project may homogenise fish biodiversity;

5 - The discrete implementation of the Politique through ad hoc authorisations under various regimes may hinder the capacity to address cumulative impacts on environmental flows and ecosystems. This risk is particularly significant when rivers earmarked for out-of-site habitat compensation are not identified during the authorisation process for specific projects.

As a result, the Government's undertaking in the Québec Water Policy (undertaking 22) to improve environmental flow protection remains essential and must be carried out.

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)

Environmental flows in Alberta (Canada) and tar sands exploitation

(BY HUGO)

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.