Arbitration between Montréal and Génieau for cancelled water management contract

(BY HUGO)

Linda Gyulai reports in the Montreal Gazette here that the City of Montreal and Génieau have begun arbitration to settle the company’s $34-million claim for compensation on its cancelled $355.8-million water-management contract. Background for this dispute is described in Gyulai's article as follows:

«Mayor Gérald Tremblay announced the city was cancelling the 25-year contract in September 2009, less than two years into the deal, after a report by the city’s auditor-general found irregularities in the way it was awarded.

Auditor-general Jacques Bergeron found overspending, administrative laxity and poor communication in the awarding of the contract, which the city council approved unanimously and without debate in November 2007. His findings included that competition was narrowed during the bidding process in 2006 and 2007.

The contract provided for the city and the company to call in an arbitrator in case of dispute instead of going to court, Sabourin said.»

Québec water case law 21: The Court of Appeal upholds the validity of municipal by-laws for riparian zone protection

(BY HUGO)

In Wallot v. Ville de Québec (in French), the Court of Appeal of Québec sits on appeal of a Superior Court judgement discussed in a previous post where the facts were thus summarised:

- Lake St. Charles is the source of 50% of the drinking water provided by the defendant municipality Québec City, serving close to 300 000 persons;

- During the summers of 2006 and 2007, toxic cyanobacteria proliferate in the Lake due to phosphate inputs from fertiliser run-offs, septic tank leakage, etc;

- Municipal by-laws are adopted by Québec City in June 2008 to counter this phenomenon by imposing the naturalisation and reforestation of heavily modified riparian areas on a 10 to 15 meters strip of land around the Lake;

- The plaintiffs and appellants are owners of riparian properties around Lake St. Charles. They contest the validity of the by-laws to avoid being forced to return part of their properties to a more natural state.

The Superior Court rejects the plaintiffs’ arguments and concludes that the municipality made reasonable use of its regulatory powers.

The appeal raises the following questions:

1 - Did the Superior Court err in concluding that the defendant municipality could adopt, based on section 19 of the Municipal Powers Act (MPA), the by-laws attacked?

2 - If the defendant municipality had the regulatory power to adopt the by-laws, did the Superior Court err in concluding that the defendant municipality did not exceed the power conferred by the MPA in doing so?

To answer the first question, the Court of Appeal establishes the breadth of the municipal regulatory power under sections 4.4 and 19 MPA by reference to the right to a healthy environment at section 19.2 of the Environment Quality Act, to the Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains, to the Sustainable Development Act, and to the Act to affirm the Collective Nature of Water Resources and Provide for Increased Water Resource Protection. In this legislative context and given section 2 MPA, the Court concludes that the attacked municipal by-laws correspond to the regulatory powers conferred by the MPA.

With respect to the second question, the Court of Appeal examines whether the municipal by-laws impose constraints on the plaintiffs’ enjoyment of their properties that are prohibitive enough to constitute disguised expropriation. This is mostly a factual question and the Superior Court’s decision can only be quashed if it contains a manifest and dominant mistake, which is not the case. The by-laws are not equivalent to an absolute negation of the plaintiffs’ property rights or a positive confiscation of the properties. The plaintiffs’ rights over their properties remain exclusive. The plaintiffs can continue enjoying their property for residential purposes. Hence, the Court rejects the appeal.

Water case law in Québec 20: Municipal liability further to floods

(BY HUGO)

Since the beginning of May, the flow of an emissary of Lake Champlain, the Richelieu River, is near or at record level, and a large area South of Montréal is flooded (see articles here and here from Le Devoir - in French - and some pics here).

In this context, the recent judgement from the Superior Court in Équipements ÉMU ltée v. Québec (Ville de) (in French), is interesting. In this case, the plaintiff owner of two buildings located on the territory of the defendant municipality seeks compensation for damages resulting from floods that occurred in 2003, 2004 and 2005. The buildings damaged by the floods were built in 1987 and 1996.

The plaintiff argues that the defendant’s rainwater drainage system is inadequate and outmoded. The plaintiff also alleges that the defendant failed to take into account a series of professional recommendations made in 1973 by consultant engineers, in 1990 by the Ministry of the Environment, and in 1993 by other consultant engineers. These recommendations were to the effect that urban development should be curtailed or prohibited in the flood plain where the buildings are located, that the drainage system should be adapted to deal with the runoff modifications resulting from increased urbanisation, and that the river running through the flooded area should be maintained according to certain standards.

The defendant essentially counters that the damages result from a series of forces majeures – see section 1470 of the Civil Code of Québec (CCQ).

The plaintiff’s recourse is based on extra-contractual liability and relies on the presumption established by 1465 CCQ. According to this presumption, the defendant’s fault does not have to be proven by the plaintiff. Under section 1465 CCQ, a person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.

The Court finds that the damages were caused by floods resulting from backflow in the municipal drainage system, which includes the sewers and the river itself. The Court also finds that the municipality is custodian of the drainage system. Hence the presumption of section 1465 CCQ applies. Given that the municipality does not establish its absence of fault, and that the exemption of force majeure is refused by the Court, the municipality is held liable. Damages are not dealt with in this judgement.

The text of the judgement is long and the evidence is not summarised. A number of points are worth highlighting:

- This is a test case for the floods that occurred in the relevant area in 2003, 2004 and 2005;

- The floods that occurred in 2003 and 2004 were caused by accumulations of debris and sedimentation. The municipality failed to clear the river adequately;

- The floods that occurred in 2005 were the result of 100 year recurrence rain events. The rules of the art establish that the river, as part of the municipal drainage system, should be maintained in a condition where it is able to discharge 100 year recurrence rain events;

- The capacity of the sewers is not significantly discussed, but they appear to have been designed in accordance with the applicable rules of the art. Their discharge capacity is at or under 15 year recurrence rain events (see §§ 181 and 344);

- The judgement provides a very interesting review of recent case law illustrating the principles applicable to municipal liability for flooding. In particular, a case is referred to where the Court acknowledges the increase in extreme climatic events, the end of climatic stationarity and the irrelevance of statistical occurrence tables;

- Given the ratio of the Court’s conclusions, the initial emphasis on the municipality’s decision not to follow the various recommendations to curtail or prohibit development in the floodplain appears somewhat immaterial. Nevertheless, this type of municipal decisions on land planning and use might possibly have an impact on municipal liability when the consequences of the decisions are entirely foreeable: see part 5 of François Fontaine, «L'arrêt Ciment St Laurent: les principes sont-ils coulés dans le béton?» (here- in French).

Of note is the fact that authorisation for appeal was refused by the Court of Appeal.

Hydraulic fracturing from shale gas exploitation pollutes drinking water

(BY HUGO)

Propublica reports on a peer-reviewed article by Stephen Osborn et al., «Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing», which was recently published in the Proceedings of the National Academy of Sciences. Excerpts from the abstract read as follows:

«In aquifers overlying the Marcellus and Utica shale formations of northeastern Pennsylvania and upstate New York, we document systematic evidence for methane contamination of drinking water associated with shale gas extraction. (...) We conclude that greater stewardship, data, and— possibly—regulation are needed to ensure the sustainable future of shale-gas extraction and to improve public confidence in its use.»

The article mentions hypotheses about the mechanisms causing drinking water contamination from fracking: 1) gas migration; 2) leaky gas-well casings; and, 3) increased connectivity of the rock formation due to extensive fracturing. Only options 2) and 3) appear probable to the authors, with leaky gas-well a likely possibility.

Hopefully, this type of evidence will be considered in the strategic environmental study to be conducted on shale gas exploitation in Québec.

U.S. congressional committee report on chemichals used in fracking fluids

(BY HUGO)

The U.S.A. House of Representatives Committee on Energy and Commerce, Minority Staff, released yesterday a report on the «Chemicals Used in Hydraulic Fracturing». A part of its executive summary reads as follows:

«The most widely used chemical in hydraulic fracturing during this time period, as measured by the number of compounds containing the chemical, was methanol. Methanol, which was used in 342 hydraulic fracturing products, is a hazardous air pollutant and is on the candidate list for potential regulation under the Safe Drinking Water Act.

Some of the other most widely used chemicals were isopropyl alcohol (used in 274 products), 2-butoxyethanol (used in 126 products), and ethylene glycol (used in 119 products). Between 2005 and 2009, the oil and gas service companies used hydraulic fracturing products containing 29 chemicals that are (1) known or possible human carcinogens, (2) regulated under the Safe Drinking Water Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act. These 29 chemicals were components of more than 650 different products used in hydraulic fracturing.»

The U.S. congressional committee notes that common chemical compounds in fracking fluids are known human carcinogens and can damage the central nervous system, liver and kidneys. For example, 2-butoxyethanol, which was used in 126 fracking fluid products from 2005 to 2009 in the U.S.A., is easily absorbed and distributed in the human. It can cause the destruction of red blood cells, as well as damages to the spleen, liver and bone marrow (see p.7 of the U.S. congressional committee report).


This is a very interesting read considering the paucity of information regarding fracking fluids in the recent BAPE report on shale gas exploitation in Québec (see p.57-58 of the BAPE report for public concern on human and environmental contamination as well as p.123-125 for the recommendations).

Shale gas exploitation and public interest in Texas

(BY HUGO)

Disputes related to shale gas exploitation have arrived before the courts in the U.S.A. In RailRoad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water, the issue relates to the re-injection of drilling fluids underground after their use for hydraulic fracturing. The Court thus describes the factual background:

«Fracing a well entails pumping large volumes of water and sand into reservoir rock, which then mixes with saline formation water and must be flowed back out of the well before production can begin. A company fracing a well must dispose of the resulting waste. Most companies do so by injecting the waste into subsurface zones which are naturally saline environments, usually in old wells converted to injection wells. A company seeking to convert a well to an injection well for oil and gas waste must apply to the Commission for a permit.»

The Commission can grant an injection permit when, inter alia, the use or installation of the injection well «is in the public interest». In this instance, the Commission granted a permit to a fracking company notably because the «production of hydrocarbons for use by the people of Texas and industry serves the public interest».

This determination is contested before the Court, and the crux of the matter turns on the degree of discretion that the Commission has in interpreting the notion of public interest.

The Court finds that «the phrase “public interest” is anything but clear and unambiguous». As a result, the Court must defer to the Commission's interpretation of the notion of public interest, and the Commission's decision to grant an injection permit stands. A more substantial study of the courts decision by Stephen Dillard, Barclay Nicholson and Kadian Blanson from Fulbright & Jaworski LLP can be found here.

This case is not relevant in the context of both the regulatory regime for natural resources management and the administrative law applicable in Québec. Nevertheless, this case illustrates the risk related to the interpretation of legal notions like public interest when they are tied to authorisation regimes relying on administrative discretion. As argued in a previous post, the notion of public interest found in the new Québec water withdrawal authorisation regime should be further defined to avoid an excessive degree of discretion.

Meanwhile, an article by Robert Howarth et al., «Methane and greenhouse-gas footprint of natural gas from shale formations», has just been published in Climatic Change Letters. Excerpts from the article's summary read as follows:

«[A n]ew study demonstrates that shale gas is not the planet-friendly gas it is thought to be. Natural gas extracted from shale formations has a greater greenhouse gas footprint - in the form of methane emissions - than conventional gas, oil and coal over a 20 year period. This calls into question the logic of its use as a climate-friendly alternative to fossil fuels[...]

[O]verall, during the life cycle of an average shale-gas well, between four to eight percent of the total production of the well is emitted to the atmosphere as methane, via routine venting and equipment leaks, as well as with flow-back return fluids during drill out following the fracturing of the shale formations. Routine production and downstream methane emissions are also large, but comparable to those of conventional gas.»

In light of the Texan case above, one may wonder whether climate change and its potentially catastrophic consequences that are brought about by fossil fuels such as shale gas are in the public interest.

Finally, another excellent article by Louis-Gilles Francoeur in Le Devoir (here - in French) provides a great perspective on the management of energy resources in Québec.

Québec water case law 19: interpreting section 56 of the Municipal Powers Act

(BY HUGO)

In Tousignant v. Lac-Beauport (Municipalité de) (in French), the appellant, owner of a defective sceptic installation receiving waste water from his residence, was found by the Municipal Court in first instance to contravene to the Regulation respecting waste water disposal systems for isolated dwellings and was ordered to reconstruct the installation in conformity with the regulatory requirements.

Before the Superior Court, the appellant contests the validity of the injunctive orders from the Municipal Court based on lack of competence. In principle, the Superior Court has inherent and exclusive competence in injunctive matters as a court of first instance. Thus, the question is whether the Municipal Court exceeded its jurisdiction when it ordered the appellant to reconstruct the installation.

This debate has been studied recently by doctrine: see Daniel Bouchard & Hélène Gauvin, «L’article 56 de la Loi sur les compétences municipales: une jeune disposition, un vieux débat... latent» in Barreau du Québec, Développements récents en droit municipal 2008 (in French). The relevant provisions are section 29 of the Act respecting municipal courts as well as sections 25.1 and 56 to 61 of the Municipal Powers Act (MPA). In particular, the solution to the issue at hand turns on the interpretation of section 56 MPA: must it be interpreted as giving injunctive powers over immovables to the Municipal Court?

The Superior Court concludes that a restrictive interpretation should be favoured based on 2 principles of interpretation: 1) the expectation of coherence between laws; 2) the presumption of utility or validity of a legal disposition. As a result, section 56 MPA does not grant power to a Municipal Court to order the reconstruction of a sceptic installation, which is a permanent work and an immovable.

Of note is the fact that debate on the constitutionality of section 56 MPA was not addressed directly due to procedural questions.

Québec water case law 18: Authorisation denied for a class action further to rains and sewer backflow

(BY HUGO)

In Côté v. Montréal (Ville de) (in French), the Superior Court must decide whether to authorise a class action on behalf of all the persons having sustained damages further to the heavy rains of 2 August 2008 on the territory serviced by the water works and sewers of Montréal.

The motion to obtain authorisation alleges that the City's sewer system is outdated and inadequate, and that the City failed to take appropriate measures to ensure that flooding and sewer backflow would be avoided.

The Court first provides a brief overview of the principles applicable at the prior authorisation stage (see sections 1002 and ff. Code of Civil Procedure (CCP)).

Then, the Court proceeds to establish that the cumulative conditions required by section 1003 CCP have not been met: although the facts alleged seem to justify the conclusions sought, the recourses of the members of the group do not raise identical, similar or related questions of law or fact, notably because the sewer system is a fragmented patchwork under the responsibility of 19 different sub-municipal authorities and the amount of rain on 2 August 2008 varied significantly over the municipal territory.

Because of this, the Court does not decide whether the representative seeking to obtain the authorisation is in a position to represent the members of the class action adequately. The authorisation is denied.

Québec water case law 17: «Lower land is subject to receiving water flowing onto it naturally from higher land»

(BY HUGO)

In Petrecca v. Théodore (in French), the owner of a residence sues in civil liability his neighbour, the contractor who completed earthworks on the neighbour’s property, the seller/developer of his and his neighbour’s property, as well as the city where the two properties are situated. The damages claimed result from the swamping of the Plaintiff’s property further to the earthworks raised on the neighbour’s property.

The Superior Court decides that the neighbour is responsible on the basis of section 976 of the Civil Code of Québec (CCQ). Section 976 CCQ provides that neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom. In other words, the earthworks created an abnormal neighbouring annoyance. The tribunal reminds that liability for neighbouring annoyances is a no fault regime according to the Supreme Court’s teachings in Ciment Saint-Laurent v. Barrette.

The property seller/developer is responsible only as a seller - and not as a developer - on the basis of contractual liability for false representations.

The contractor is not responsible under the general extra-contractual liability regime. The city acted correctly in all respect and also cannot be held liable.

Significantly, section 979 CCQ is only invoked when the tribunal proceeds to determine whether the damages claimed for stress, troubles and inconvenience are justified and establish their exact quantum (see §216).

Québec water case law 16: Causality and trout mortality

(BY HUGO)

In Michaud v. Équipements ESF inc (in French), the Court of Appeal is on appeal of a judgement rejecting an action in civil liability for damages sustained by the owner of an aquaculture business comprised of a few artificial lakes seeded with trout as a result of heavy fish mortality allegedly caused by hydrocarbon contamination leaking through soil from a neighbouring industrial shop.

In first instance, the damages are established, as is environmental contamination from hydrocarbon leakage. The debate focuses on the causality link between the damages and the leak as well as on the evaluation and award of expert costs. Both these issues are on appeal.

With respect to causality, the Court states the principles relevant to the application of a presumption of causality and refers sections 2804, 2811 and 2849 of the Civil Code of Québec as well as to Morin v. Blais (SCC), Sarrazin v. Québec (Procureur général) (QCA - in French) and Longpré v. Thériault [1979] C.A. 258 (QCA) to find that circumstances are not serious, precise and concordant enough to give rise to a presumption establishing causality. The Court then proceeds to examine whether the appellant has met the burden of proof on causality to establish a link between hydrocarbon leakage and fish mortality under the light of the principles established in Lacasse v. Labrecque [1995] R.R.A. 596 (QCA). The Court concludes that evidence has not established on the balance of probability that fish mortality was caused by the leaks, and that the Superior Court has not made a manifest and dominant mistake on this point.

One last point worth mentioning is from the discussion about expert costs. At §94, the Court states that compliance with precedents stems from a public order imperative that allows justiciables to act and settle their disputes in a predictable framework («Le respect de l’autorité du précédent ne relève pas du caprice, mais elle reflète un impératif d’ordre public qui est de permettre aux justiciables de régler leurs affaires dans un cadre prévisible et d’agir dans ce cadre.»)

Special issue on water law

(BY HUGO)

Les Cahiers de droit just published their issue 3 & 4, Vol. 51, a special issue on water law with many articles exploring interesting subjects in Québec law. Content includes:

- Jane Matthews Glenn, «Crown Ownership of Water in situ in Common Law Canada: Public Trusts, Classical Trusts and Fiduciary Duties»

- Sylvie Paquerot, «Au-dela d'une ressource naturelle: quels criteres faut-il privilegier pour doter l'eau douce et le cycle hydrologique d'un statut specifique?»

- Madeleine Cantin Cumyn, «L'eau, une ressource collective: portee de cette designation dans la Loi affirmant le caractere collectif des ressources en eau et visant a renforcer leur protection»

- Suzanne Comtois and Bianca Turgeon, «L'eau, chose commune a l'usage de tous: l'Etat quebecois a-t-il les moyens de donner effet a ce statut?»

- Jamie Benidickson, «Cleaning Up after the Log Drivers' Waltz: Finding the Ottawa River Watershed»

- Patrick Forest, «Inter-local Water Agreements: Law, Geography, and NAFTA»

- Yenny Vega Cardenas and Nayive Biofanny Vega, «L'eau douce, son exportation et Ie droit constitutionnel canadien»

- Hugo Tremblay, «The Emergence of Environmental Flow Protection in Quebec Law»

- Catherine Choquette, Edith Guilhermont and Marie-Pier Goyette Noel, «La gestion du niveau d'eau des barrages-reservoirs au Quebec: aspects juridiques et environnementaux»

- Daniel Bouchard and Helene Gauvin, «Plus l'eau a de gardiens, plus elle est en peril»

- David Gilles, «Amenager, canaliser, encadrer juridiquement les rivieres du Quebec: le poids de I'histoire?»

Hydraulic fracturing and shale gas leaks in Québec: New science shed light on the «cow farts» leaks

(BY HUGO)

Just a quick post to follow up on reports relating to shale gas leaks from wells in Québec.

The Québec Ministry for Natural Resources and Wildlife, Nathalie Normandeau, has recently described gas leaks from fracking exploration wells as negligible by likening them to cow farts. Thankfully, less clownish politicians have taken a more cautious approach on the issue since then (article here by Robert Dutrisac and Louis-Gilles Francoeur, Le Devoir, 22 January 2011 - in French).

Now, Andrew Revkin from Dot Earth in the New York Times points to interesting scientific developments (blog post here):

- Abrahm Lustgarten, «Climate Benefits of Natural Gas May Be Overstated», 25 January 2011, Propublica;

- Robert Howarth, «Preliminary Assessment of the Greenhouse Gas Emissions from Natural Gas Obtanied by Hydraulic Fracturing», Departement of Ecology and Evolutionary Biology, Cornell University.

All well worth a read, and it supports the work done by Nature Québec (as reported here by Louis-Gilles Francoeur, Le Devoir, 19 January 2011 - both in French). Hopefully, these inputs will be considered by the BAPE.

Follow-up on the sleeping giant in Québec water case law 12

(BY HUGO)

In a previous blog post, a recourse by aboriginal communities on the North Shore of the St. Lawrence River against Hydro-Québec as well as the federal and provincial governments was mentioned as potentially very interesting - and one to follow-up on...

Apparently, it might just end there. CBC reports (in French) that Hydro-Québec could pay CDN$ 125 M to the First Nations in pre-trial settlement of the claim.

COGESAF Forum on stormwater management in urban area

(BY HUGO)

On 23-25 October 2011, the Saint-Francois Watershed Steering Committee (COGESAF), in partnership with Sherbrooke University and Sherbrooke City, will organize the second edition of International Forum on Integrated Water management on "Stormwater management in urban area".

The Forum «aims to increase the global knowledge on stormwater management in urban areas to all the actors in Quebec, Canada and around the world. Furthermore, an added value will come from the presence of internationally renowned experts wishing to share their advanced research and positive experiences about the development and implementation tools for a better control of stormwater.»

Theme 1 «Governance, strategy development and territorial planning» notably focuses on legal instrument and governance tools for sustainable stormwater management.

CWRJ Issue on the Hydrogeology of the Châteauguay River Watershed

(BY HUGO)

The Canadian Water Resources Journal has published a special issue on the Hydrogeology of the transboundary Châteauguay River Watershed (2543 km2, 57% in Québec and 43% in New York - 100 000 (or 250 000 depending on the text in the issue) inhabitants on the Canadian side with 20 000 domestic wells, overall dependant on groundwater for 67% of total water use). This is a mostly unconfined or semi-confined aquifer system with northwards groundwater flows that discharge in the St-Lawrence River (see Lavigne, Natsev and Lefebvre, Numerical Simulation of Groundwater Flow in the Châteauguay River Aquifers, p.469 & ff.), making the U.S.A. portion of the aquifer system part of an international watercourse as defined by article 2 of the 1997 UN Convention on non-navigational water uses.

The CWRJ special issue presents the principal results of a large scale project conducted from 2003 to 2007 by a variety of participants on both sides of the border. This is only the 3rd aquifer system mapped in details in Québec. However, it is reported that the success of this project has led to the launch of the current provincial groundwater mapping programme under which five major studies (in la Mauricie, Centre-du-Québec, Saguenay-Lac-Saint-Jean, Abitibi-Témiscamingue and Montérégie-Est) are expected to be completed in 2013.

In addition to the wealth of hard scientific information on the Châteauguay watershed, the special issue includes an article exploring groundwater allocation on the Québec side of the watershed from a social science perspective: Marie-Pierre Dagenais, Analyse Sociologique de l'Allocation de l'Eau Souterraine: L'Exemple de Franklin, Québec, p.543 & ff (in French). The events studied by Dagenais' article relate to commercial bottling projects on a municipal territory in an agricultural zone.

The article shows that municipal residents mobilised together with farmers against the bottling projects due to the possibility of water shortage resulting from increased withdrawal. Lack of reliable information and institutional capacity played a significant part in the escalation of the social conflict from the civil society's perspective. At the same time appeared an asymmetrical relationship where administrative authorities at provincial level favoured direct, bilateral and private information sharing with the bottling project promoters to the exclusion of other stakeholders. It seems that the opacity of the institutions for groundwater allocation, as well as the fragmented skein of applicable laws and regulations played a part in the development of the conflict resulting from the bottling projects (the tail end of the ensuing judicial saga was discussed in an older post).

Regulation on charges payable for the use of water in force

(BY HUGO)

As announced by the Québec Ministry for Sustainable Development, Environment and Parks, the Regulation respecting the charges payable for the use of water published in the Gazette Officielle on 15 December 2010 has come into force 15 days after its publication.

Some of the significant features of Regulation were mentioned in a previous post. Some amendments to previous draft versions of the Regulation are as follows:

- Contrary to earlier versions, the manufacturing of canned, dried or marinated fruits and vegetables will finally not be subjected to the higher tariff (see section 5);

- Contrary to earlier versions, the higher tariff will only be applied to activities that incorporate water in the final product (section 5). This measure can be linked to the virtual water and water trade discussion. In a fall 2010 report on Freshwater Supply and Demand in Canada, Statistics Canada concluded that:

«More water is embedded in forest products than food. When precipitation was included, the production of exported lumber, wood pulp, paper, and other forest products required seven times more water than the production of exported agricultural commodities.» (p.6)

Wood and paper products are subjected to the Regulation (see section 3 and Schedule) but not to the higher tariff.

- The fines for contraventions to the Regulation are increased.

The first charges are due on 31 March 2012.

Report of the Commission on Cyanobacteria in Québec

(BY HUGO)

The report (in French) on lakes and cyanobacteria in Québec by the National Assembly Commission on Transports and the Environment has been released at the beginning of December (previous blog post).

As with the consultation process, the report feels slightly underwhelming. It constitutes more a synthesis of what is known and acknowledged as necessary for better water management with respect to cyanobacteria than a significant innovative proposition for the future. This does not detract from the value of the recommendations presented in the report, among which are the following:

1 - Confirm and assign with more precision the respective responsibilities among stakeholders involved in water management. On this subject, one of the more focussed comments of the Commission is worth quoting because it highlights the tension between, on one hand, homogenisation through integration, and on the other hand, subsidiarity through delegation as well as variability due to adaptation to local conditions - «Cependant, la réglementation sur la gestion de l’eau et de ses bandes riveraines est très variable d’une municipalité à l’autre, voire au sein d’une même MRC. De plus, certains propriétaires riverains estiment avoir des droits acquis qui échappent aux compétences municipales. La Commission souhaite que le gouvernement adopte des mesures concrètes qui visent à harmoniser les règlements municipaux au sein d’un même bassin versant. Il devrait, dans cet exercice, tenir compte des disparités économiques et territoriales et prévoir un soutien technique propre à l’application des règlements. Enfin, on devrait poursuivre par ces réglementations les objectifs énoncés dans les plans directeurs de l’eau.» (p.4)

3 - Grant governmental funding necessary for the realisation of water master plans. The source of funding should come from the fees paid for withdrawing water.

4 - Integrate the water master plans with the RCM Land Use Planning and Development Plan (see the Act respecting Land use planning and development).

8 - The Québec government should provide support to the municipalities and regional county municipality for the implementation of laws and regulations on water management.

9 & 16 - The government should review the criteria for the width of the riparian protection areas to limit phosphorous inputs.

12 - A financial support programme to help poorer segments of the population respect regulatory standards on sceptic tanks should be put in place by the government.

13 & 14 - The revision of the Regulation respecting waste water disposal systems for isolated dwellings should be prioritised with a view to increasing the phosphorous retention capacity of regulated sceptic tanks.

15 - The government should promote a sustainable model for agriculture that takes into account the water support capacity for phosphorous inputs. This recommendation is concomitant with decrees amending the farming insurance programme that push agriculture towards ever higher productivity.

Confirmation of agreement on the management of Lake Champlain

(BY HUGO)

A cooperation agreement on environmental matters regarding the management of Lake Champlain between New York, Vermont and Québec (the Agreement - French version here), signed in March 2010, was confirmed by governmental decree 918-2010 on 3 November 2010.

The Agreement is the latest in a series of agreements between the parties that date back to 1988. In 1990, the American Congress passed the Lake Champlain Special Designation Act (Public Law 101-596) leading to the creation of the Lake Champlain Basin Program, which is now implemented through the Opportunities for Action: An Evolving Plan for the Future of the Lake Champlain Basin (the French version of the Plan, dated 2003, provides details about related institutional and legal frameworks).

The Agreement confirms the role of the Lake Champlain Steering Committee in the cooperative management of the basin. The Steering Committee is notably mandated to implement the Plan and foster interactions between regulation and management programmes related to the monitoring of Lake Champlain (see section 2.6). The Agreement and the Plan recognise the ecosystem approach to basin management.

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

(BY HUGO)

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.

Modifications to the Dam Safety Regulation

(BY HUGO)

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.