Who’s it “FIT FIR”?: Provincial allocation review looms large for water users and the environment http://www.elc.ab.ca/pages/Publications/NewsBrief.aspx?id=943
By Jason Unger Staff Counsel Environmental Law Centre
The “first in time, first in right” (FIT FIR) system of water
allocation is a system whereby the first at the table gets first access
to the water.1
While such a system deals directly with issues of water scarcity, i.e.,
the earliest arrivals get it all; it does not do well at providing
equitable access to water nor to managing degradation to the
environment. The FIT FIR system, in isolation, is a system that
produces winners and losers.
Allocation of water under FIT FIR – also referred to as prior
allocation – poses significant challenges in over-allocated major
basins, such as the South Saskatchewan River Basin (SSRB), for both
economic development and environmental protection. In response to these
pressures, the Alberta Government announced a review of the water
allocation system in 2009. This review is ongoing and public
consultation is expected in Spring of 2010.
As part of the review, the province received advice from three bodies:
the Alberta Water Council, regarding the water transfer system
specifically (an overhaul of the FIT FIR system was not considered, as
this group had already begun meeting prior to the announced review)2; a Minister’s Advisory Group (MAG)3; and the Alberta Water Research Institute (AWRI)4.
The three reports make similar recommendations regarding how water allocation could be changed to deal with various issues.5 Common themes include:
· Establishing protected water and/or the setting of water conservation objectives,
· Facilitating water transfers of licenced allocations, and
· Not touching FIT FIR.
Interestingly, the two reports (MAG and AWRI) that could have analyzed
FIT FIR in greater detail did not walk down that road to any
significant degree. The MAG report simply concluded in its it
forwarding letter that “overall, the advisory group believes that the
current system as outlined in the Water Act,
including the system of prior allocation (commonly called
first-in-time, first-in-right or FIT FIR), continues to be a reasonable
basis for allocating and reallocating water in Alberta at this time”. 6
The AWRI report, on the other hand, observes that “there is still much
debate about whether [the FIT FIR] approach is still relevant and
appropriate for addressing the full range of water management issues
facing Alberta”. 7
Tackling FIT FIR, (the use of an aggressive sports metaphor is
intended), is certainly no easy task. Altering the fundamentals of
Alberta’s water allocation system will not be without strong opponents.
Perhaps the authors of the reports realized that the vast majority of
Albertans, who have limited knowledge of FIT FIR, may be ill prepared
to force change, even if they felt it was worthwhile.
And yet, we would argue, if the government aims to “address the full
range of water management issues”, it is imperative that FIT FIR become
part of public discourse around water. The public needs to ask “who’s
it FIT FIR?”.
Among the issues that justify a serious debate about FIT FIR are Crown
ownership and equity and environmental risks during drought.
As a precursor to the equity issue it must be remembered that the water
itself is owned by the Crown. The equity issue is a result of the how
the FIT FIR system operates where a cap is placed on the issuance of
further water licences and transfers are enabled, i.e., a water market
is allowed to develop. Now that the SSRB is closed, new industries and
developments are struggling to find water. With tradable licences, the
FIT FIR system ensures that newcomers will pay a handsome price: a
price not paid by original licencees. In the case of original licences,
the primary expense to a licence holder was infrastructure to move the
water. The water itself was basically given away. In some instances,
the infrastructure may have garnered further public investment. One
could say that the Crown (public) was subsidizing licence holders’
ventures by not charging for the water itself. This was viewed as
reasonable, as it was a means of encouraging settlement and development
in the West.
Licence holders used the water for private gain and some return for use
of the public resource resulted by way of taxes. The more recent
capping of licences, however, has enriched these licence holders
immensely – some more than others – as they can now seek to transfer a
licence for Crown owned water for significant amounts of money.
Further, the cost of environmental harms in an over-allocated system is
also borne by the public. The FIT FIR system (and licence transfers),
like markets generally, treats the environment as an externality. This
inequity is the result of having a regulatory system evolve into a
market system (and is not unique to Alberta). 8
Whether this approach is acceptable to the broader Alberta public, as
ultimate owners of this resource, needs to be addressed.
A second issue of significant relevance to a review of water allocation
is the risks to the environment in an over-allocated basin,
particularly in drought years. 9
The FIT FIR system is largely based on volumes and blind to seasonal
supply. While some conditions on licences exist for maintaining
environmental flows, only a few appear to be regularly used (primarily
dams). For this reason, the primary holder of risk is the environment
in an over-allocated basin. During extremely low flow periods, the FIT
FIR system (barring a senior licence held for instream flows being in
place) is not overly efficient or flexible in how it maintains
environmental flows.
Allowing for a licence transfer system may foster conservation, but not
for conservation purposes. Rather, it fosters the sale of water to
other users. Environmental gains, if they are obtained through the
transfer, are largely collateral to the transfer’s main purpose.
Currently, the ability to hold private instream licences (as reflected
in a water conservation objective) is limited. 10
All three reports recommend allowing issuance of private licences for
environmental goals but some argue that this power should have limits. 11 In this regard, flow conservation largely relies on the Crown taking 10% holdbacks under the Water Act during a transfer, something which is not likely to bring significant environmental gains.
In short, FIT FIR is a blunt but relatively easily administered water
allocation tool. It provides a level of certainty to licenced water
users. In over-allocated basins, it provides a high level of
uncertainty to the environment and new users. Further, it appears to be
perpetuated in a social and political vacuum. In times of short supply,
is it truly expected that senior licence holders will be able to cut
off diversions for human health and environmental disasters? Certainly
the Water Act foresees such situations where the priority system will need to be overridden. 12 Where environmental harms are likely, a level of compensation is required. 13 But these “backstop” provisions of the Water Act
merely perpetuate the idea that private entities own the water itself.
This is a dangerous view, and one that minimizes the likelihood of
fostering a water management system that provides for environmental
flows.
If one speaks of balancing environmental, social and economic outcomes,
FIT FIR has already tipped the scales. Who’s it FIT FIR? It’s a valid
question, and many who want effective environmental protection see it
as a barrier rather than a solution. 14
1 The “first in time, first in right” system is codified in the Water Act, R.S.A. 2000, c. W-3, at Part 3.
2 Alberta Water Council, Recommendations for Improving Alberta’s Water Allocation Transfer System
(Edmonton: Alberta Water Council, August 2009), online: Alberta Water
Council
<http://www.albertawatercouncil.ca/Portals/0/pdfs/WATSUP_web_FINAL.pdf>.
3 Minister’s Advisory Group, Recommendation for Improving Alberta’s Water Management and Allocation (August 2009), online: Alberta Environment <http://environment.gov.ab.ca/info/library/8239.pdf>.
4 Alberta Water Research Institute, Towards Sustainability: Phase I, Ideas and Opportunities for Improving Water Allocation and Management in Alberta (Edmonton: Alberta Water Research Institute, 2009), online: Alberta Water Research Institute <http://www.waterinstitute.ca/pdf/summary_report_future.pdf>.
5 The Water Council report regarding licence transfers, the only report
that was the result of a multistakeholder decision-making process,
included several non-consensus items of environmental significance, supra note 2.
6 Ibid. at iii.
7 Supra note 4.
8 See, for example, the approaches taken in Western United States and Spain.
9 The questions about the levels of precipitation and impacts of
seasonal flows from diminished glacial contributions in meltwater are
of central relevance. See, for example, E.A. Bash, S.J. Marshall, and
E.C. White, “Glacial meltwater contributions to the Bow River, Alberta, Canada”, (Paper presented to the 2009 American Geophysical Union Fall Meeting, San Francisco, December 14-18, 2009), abstract online: Bibliography of Canadian Geomorphology <http://cgrg.geog.uvic.ca/abstracts/BashGlacialAssessment.html>.
10 Water Act, supra note 1 at s. 51(2).
11 See Alberta Water Council supra note 2 at 16.
12 Water Act, supra note 1 at ss. 54-55.
13 Ibid. at s.55 (2).
14 See Water Matters Society of Alberta and EcoJustice, Share the Water: Building a Secure Water Future for Alberta (Vancouver: EcoJustice, 2009), online: Water Matters Society of Alberta <http://www.water-matters.org/docs/share-the-water.pdf>. |
posted Jan 27, 2010 12:49 PM by sheila muxlow
In December 2008, the Assembly of First Nations passed a resolution
opposing the Alberta governments process and direction for new water
law in the province. http://www.afn.ca/article.asp?id=4430Resolution no. 52 Special Chiefs Assembly December 9-11, 2008 Ottawa, ON Resolution no. 52/2008 Subject: Government Of Alberta’s Management And Allocation Of Water Moved By: Larron Northwest, Proxy, Samson Cree First Nation, AB Seconded By: Chief Cameron Alexis, Alexis Nakota Sioux Nation, AB Decision: Carried by consensus WHEREAS:
A. The Supreme Court of Canada has confirmed that both the Federal and
Provincial Crown have a constitutional duty to consult with and
accommodate First Nations when the Crown’s actions potentially impact
confirmed and claimed Treaty and Aboriginal rights; B. The
Alberta Court of Queen’s Bench has stated that claimed Treaty water
rights are not “dubious or peripheral”, these claimed rights can give
rise to the Crown’s duty to consult and accommodate, particularly with
respect to the allocation of water; C. The First Nations in
Treaties 6, 7 & 8 possess Treaty and Aboriginal water rights and
are seriously pursuing these rights before the courts; D. The
management and allocation of water resources off-reserve by the
Government of Alberta has the potential to profoundly impact First
Nations’ on-reserve water resources, the right to use and benefit from
reserve lands, Treaty water rights and other Treaty and Aboriginal
rights; E. The Government of Alberta is not taking sufficient
steps to meaningfully consult with and accommodate First Nations
regarding the ongoing development of watershed and water management
plans in the Elbow River, Bow River, Red Deer River, Athabasca River,
Clearwater River, North Saskatchewan River and Battle River Basins, and
other watersheds; F. The Minister of Environment recently
announced that the Government of Alberta intends to review water
rights, and consider the eventual implementation of a water market
throughout Alberta, but failed to state any intention to consult with
First Nations; G. The Government of Alberta has failed to
inform or consult with First Nations regarding its collaboration with
the Government of Canada to impose the licensing and priority
provisions of Alberta’s Water Act on First Nations through the
incorporation by reference of these provisions in Canada’s proposed new
Drinking Water Legislation for First Nations; H. The Government
of Alberta has consistently failed to satisfy the constitutional duty
to consult with and accommodate the First Nations of Treaties 6, 7
& 8 regarding important water management and allocation decisions;
and I. First Nation peoples are recognized stewards of their
traditional territories; a responsibility and a blessing from the
Creator. This responsibility is a continuing priority, particularly
with respect to all essential elements including air and water. THEREFORE BE IT RESOLVED that:
1. Chiefs-in-Assembly support the position taken by the Assembly of
Treaty Chiefs of Alberta that Alberta has a duty to consult with First
Nations and accommodate Treaty water rights in relation to all
decisions regarding water allocation, including but not limited to,
applications for new water licenses that may increase the use of water
resources, particularly in those regions of the province with present
or looming water shortages. 2. Chiefs-in-Assembly support the
call of the Assembly of Treaty Chiefs of Alberta on the Government of
Alberta to take immediate steps to ensure that First Nations are
meaningfully consulted and accommodated regarding the management and
allocation of water in Alberta, particularly with respect to the
potential impact of such decisions on First Nations’ right to use and
benefit from our reserve lands, including water resources that form
part of our reserve lands, and the sustainability of our Treaty
hunting, fishing, gathering, trapping and other Treaty and Aboriginal
Rights. 3. Chiefs-in-Assembly join with the Assembly of Treaty
Chiefs of Alberta in inviting the Government of Alberta, and in
particular the Minister of Environment, to enter into good faith
negotiations with the goal of resolving the issues identified in this
resolution. 4. In the event that the Government of Alberta
fails to uphold the honor of the Crown by disregarding its
constitutional duty to consult and accommodate, the Assembly of Treaty
Chiefs of Alberta will consider all such further actions considered
necessary to maintain and protect reserve lands, Treaty water rights,
and other Treaty and Aboriginal Rights. |
posted Jan 27, 2010 12:47 PM by sheila muxlow
In Alberta, Canada’s freewheeling, economic success story, a
market-based economy rules. So it’s not surprising that in 2002, the
Alberta government chose to counter growing water problems in Southern
Alberta with the province’s first water market. In anticipation,
Theodore Horbyluk, an economist at the University of Calgary, said he
believed the new system would effectively “transform historical
licences into marketable commodities.” And in Southern Alberta, where
some 20,000 licences make claims on water, there is considerable
history to market. The tradable permit system may be an improvement over the
province's decades-old water policy that resulted in the overallocation
of water in much of Southern Alberta, and it may result in short-term
economic prosperity. But it is part of a policy overhaul premised on
questionable forecasting that fails to set the economic and ecological
management principles necessary for securing the future of Alberta's
communities and ecosystems.
Southern Alberta's semi-arid climate placed water at the fore of early
policy decisions. Not long after the railroad crossed the province, an
unusually dry summer left little forage for livestock. When this
drought was followed by a winter so cold that thousands of cattle died
by literally freezing in the snow, ranchers turned to irrigation so
they could grow enough forage to meet wintertime demands. As settlers
poured onto the Prairies, they put more pressure on limited water
supplies. Canadian water policies soon followed. In 1894, Canada's Northwest Irrigation Act created a
"first-in-time, first-in-right" system of water allotment, whereby
senior licence holders received their full entitlement before junior
licencees receive their share. The act also made all water the property
of the Crown, which allowed the government to approve water licences
for uses it considered legitimate. Hoping to attract settlers, the
government tied water licences directly to land claims and put few, if
any, expiry terms on these agreements. As settlement continued, water
grew increasingly scarce, so dams and reservoirs were built to meet
demand. The greater supply encouraged further expansion of agriculture
and industry, which in turn increased water needs. This cycle continued
until 1986 when construction began on the controversial Oldman River
Dam.
Environmentalists,
residents and First Nations people, including Milton Born With A Tooth,
who spearheaded efforts to bulldoze a new channel diverting water
around the proposed dam site, opposed its construction. But by
massaging a federal court ruling and barefaced political gymnastics,
the Alberta government completed the barrier. Although this finagling,
according to Jack Glenn, author of Once Upon an Oldman, yielded
"precious little" in terms of positive lessons learned, there is one
thing it did do; it ended the practice of meeting water demands by
increasing supply.
In 1996,
Alberta revamped its water policies by passing the Water Act. Shortly
thereafter, water policy reforms began to take shape in the form of
management plans for the South Saskatchewan River Basin (SSRB), an area
that includes virtually all of Alberta from the City of Red Deer to
Montana. But effective planning has been complicated by unprecedented
population growth; a highly variable, semi-arid climate; and the
effects of early policies that resulted in a province with only two per
cent of Canada's freshwater supporting 60 per cent of the country's
irrigation.
The problems are
severe. As James Byrne points out in his essay in The Return of the
Trojan Horse, manure and pesticide runoff from industrial farms affect
drinking water and increase the presence of E. coli during summer, a
time when recreational water use is highest. Furthermore, a severe
drought in 2001 catalyzed large water shortages when, for the first
time ever, total water licences exceeded available supply. Prompted by the drought, Alberta Environment studied the situation
across the province, only to report that they found no trend towards
decreased streamflow in the SSRB between 1912 and 2001. But these
findings contrast with the research carried out by University of
Lethbridge's Stewart Rood, that was reported in the Journal of
Hydrology in 2005. Rood found there were sharp declines in streamflow
in Alberta's southern rivers over the same period. Furthermore, Rood
predicted the declines would continue.
Roslyn Case reported in the Journal of the American Water Resources
Association in 2003 that tree ring records indicate that, contrary to
popular belief, the 20th century in Southern Alberta was abnormally
damp. In fact, 20th century stream-flow models in the SSRB were higher
during this period than during any of the last five centuries.
Similarly, Kathleen Laird at Queen's University found that lake
sediments reveal that the western Prairies experienced prolonged
periods of intense drought over the past several centuries.
Unfortunately, the fact that 20th century streamflows provide something
of a best-case scenario went unnoticed when Alberta Environment
approved the new SSRB management plan. Casting more doubt on Alberta Environment's modelling are the
results of studies carried out by Dave Sauchyn, a research co-ordinator
for the Prairie Adaptation Research Collaborative. He reports that
models that use relatively short-term records, like those of the 20th
century, inadequately reflect long-term trends such as the decades-long
droughts that occurred on the Prairies prior to Western settlement and
that are likely to return.
Moreover, even though most climate models predict temperature increases
in Alberta, the SSRB management plan doesn't consider climate warming
because government studies failed to find "'high confidence' research
conclusions on future water supply and demand that may result from
climate change." This caveat is not innocuous. Suzan Lapp's work at the
University of Lethbridge suggests increased temperatures could
considerably reduce stream-flow in the Oldman River, a major waterway
in the SSRB. And Zhangxin (John) Chen at the Geological Survey of
Canada predicts that a 50-per-cent reduction in per capita water use
over the next 60 years will be required as temperatures increase and
Calgary's burgeoning population demands more water.
Despite the management plan's shortcomings, the province recognizes it
needs to conserve. To improve water efficiency and to allow water
licences to be obtained at a level of risk acceptable to users, Alberta
created a market in tradable permits. Water licences can now be leased
or sold separately from the land to which they are historically tied.
The market also includes a "conservation holdback," whereby, upon a
sale or lease, up to 10 per cent of the water licence is returned to
provincial control. As a result, the more trading there is, the greater
the quantity of water that is conserved. But two obstacles hinder the market's ability to achieve its goal
of promoting a balance between human consumption and environmental
conservation. The first is that 13 co-operatively owned irrigation
districts hold licences to 75 per cent of Southern Alberta's water.
They seem unwilling to part with their allotment given the risks
associated with not having enough water for irrigation. Therefore, it
is unlikely that trade volume will amount to much.
Secondly, water is currently so overallocated that even if every
licence changed hands twice--allowing for conservation holdbacks of up
to 20 per cent of allocated water--there would be only a moderate
increase in flows left for the environment since, under the provisions
of the system, recovered water would first go to junior licence-holders
who do not receive their full allocations when there isn't enough water
to go around.
One of the
reasons the situation in Southern Alberta is so acute is that the
effects of early allocation limits, called instream objectives, are not
well-known on portions of the SSRB. Experts, according to Alberta
Environment, estimate that 31 of 33 river reaches in the SSRB are in
declining ecological health, and a study found that 85 per cent of the
natural flow in Southern Alberta rivers is needed to simply maintain
aquatic ecosystems. Despite these findings, the new SSRB management
plan sets new water conservation objectives at only 45 per cent, or the
old instream objective plus 10 per cent, whichever is greater. The rationale for such modest conservation objectives is that given
current levels of overallocation, it will take some time to reach these
targets. But allocation limits--even for the Red Deer River, the only
river with relatively few licences--significantly surpass the amount
experts say is required for environmental health. Yet the government
approved the water conservation objectives for the Red Deer River even
though it did not receive majority support during the public
consultation phase. And despite the moratorium it places on new water
licences elsewhere in Southern Alberta, the plan ultimately gives away
what skeptics believe to be the real driver behind allocation limits.
The plan suggests that new allocations on the Red Deer will support
economic growth for the next 40 years.
The Alberta government has undertaken an active conservation effort.
Its provincial Water for Life strategy lays out a plan that attempts to
marry a safe and secure supply of drinking water, and a healthy aquatic
ecosystem with a sustainable economy. TV spots promote a partnership
between citizens, communities, industries and government that is built
on trust. But as a group of researchers from the University of Waterloo
point out in Karen Bakker's new book Eau Canada, Alberta has yet to
consecrate its vows. Despite its lofty goals, they contend that the
Water for Life strategy falls short since it doesn't prioritize
management principles in decisions between human use and ecological
integrity.
In February 2007,
the Rosenberg International Forum on Water Policy, arguably one of the
world's premier water policy institutes, recommended that Alberta
Environment refurbish the Water for Life strategy with clear,
measurable environmental objectives and more transparent decision
making. They suggested that "all efforts" be put into protecting
Alberta's water from unabated population growth and demands from its
energy sector. The recommendations also call for a less ambiguous
treatment of issues relating to equity, fairness and environmental
value. These recommendations highlight what is left out of Alberta's
economic equations. They provide a path towards softer water management
approaches which, if ignored, will leave Alberta's water reforms adrift
in the interstices between ambition and application.
Jeremy Schmidt is a PhD student at the University of Western Ontario, researching fairness in water allocation. Article pulled from - http://findarticles.com/p/articles/mi_hb6685/is_4_33/ai_n29370859/ |
posted Oct 12, 2009 5:35 PM by Sample User
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updated Jan 27, 2010 12:51 PM by sheila muxlow
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posted Oct 12, 2009 5:34 PM by Sample User
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updated Jan 27, 2010 12:48 PM by sheila muxlow
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posted Oct 12, 2009 4:33 PM by Sample User
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updated Jan 26, 2010 3:38 PM by sheila muxlow
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