What other's are saying

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>.

Violation of First Nation's Treaty Rights with Alberta's new water law

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=4430

Resolution 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.

Pricing Water to Death - by Jeremy Schmidt

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   [ updated Jan 27, 2010 12:51 PM by sheila muxlow ]


posted Oct 12, 2009 5:34 PM by Sample User   [ updated Jan 27, 2010 12:48 PM by sheila muxlow ]


Some News

posted Oct 12, 2009 4:33 PM by Sample User   [ updated Jan 26, 2010 3:38 PM by sheila muxlow ]


1-5 of 5

Provoke your thoughts...

The Government of Alberta wants to see water allocated to ‘higher value uses’, however the definition they use equates ‘higher value use’ to a more ‘economically beneficial use’.
Translation:
A Higher Value Use is one that will increase the Gross Domestic Product (GDP).

Question? Which one of the following translates into a higher increase in GDP?

a)    Canoeing with your friends on the North Saskatchewan River

b)    Having a family picnic on the banks of a healthy stream or swimming in a clean lake

c)     Traditionally harvesting fish from a lake that has served your family for generations

d)    Having a drink of water from the tap

e)     Irrigation for small-scale family farm

f)     Development of a new mine in the tar sands or construction of a hydroelectric dam

 Answer: f. And this is exactly where water markets will allocate water at the expense of a, b, c, d & e.

Water markets are not something we can afford! We need a water policy that protects and preserves water for our families, our ecosystems and our future generations - make your voice heard today!

624days since
Gov't of Alberta sits for Fall 2010 - New water law is on the table. Will you be left high and dry?

Google More and See for yourself!

Instead of going to the public of input, the GOA commission three committees to provide them with recommendations. Not only is this a problematic form of top-down democracy, but it is concerning to see that none of the recommendations call for prioritized and preserved water rights for our families, our ecosystems and our future generations - worse all three committees call for water markets as a way to manage water allocation in the future.  

Minister's Advisory Group 'Recommendations for Improving Alberta's Water Management and Allocation'

Alberta Water Council WATSUP Report
'Recommendations for Improving Alberta's Water Allocation System'

Alberta Water Research Institute 'Towards Sustainability: Phase I – Ideas and Opportunities for Improving Water Allocation and Management in Alberta'