Introduction
On February 1, 2024, the Government of Alberta ("Government") announced that it would be entering into negotiations with major water license holders in three key provincial river basins (Red Deer River, Bow River, and Old Man River Basins). The goal of these negotiations is to reach voluntary water-sharing agreements in response to growing concerns over potential water shortages.
This is the first time since 2001 that the Government has moved to initiate such discussions.
Background
Alberta typically relies on melting snow and precipitation for most of its water supply. On the heels of a hot dry summer and a winter with very little snowfall; snowpack is below average; many rivers are at record low levels and multiple reservoirs remain well below capacity. Notably, 51 communities in the province are already operating under some form of water shortage advisory. In summary, Alberta is currently facing the threat of a severe drought that would have serious implications for all Albertans.
The use of all water in Alberta is managed pursuant to the Water Act. The Water Act contemplates a licensing system for both long-term water uses and shorter-term uses, for example a temporary diversion license.
A water license grants the holder the right to use a certain allocation of water, but the province retains ownership of all water. The terms and conditions of a water license are intended to protect the source of the water supply, the rights of the license holder, and the rights of other water users.
Since the mid-2000s, a moratorium on new licenses has been in place for the South Saskatchewan River, Bow River, and Old Man River Basins. Typically, new water licenses in these select basins may only be issued to First Nations or to advance water storage or water conservation projects.
In a letter that accompanied the February 1, announcement, the Hon. Rebecca Schulz, Minister of Environment and Protected Areas, outlined a strategic plan to mitigate the impact of looming water shortages, including the assembly of a Drought Command Team ("DCT"). The DCT is actively engaged in drought modeling to predict and optimize the province's water supply and will be finalizing a comprehensive 2024 Drought Emergency Plan. The DCT will also be responsible for engaging with major water license holders and negotiating water sharing agreements. These negotiations will only be held with holders of long-term water licenses.
Analysis
There are approximately 25,000 licensed water users in the province. The most recent data on total water allocation under these licenses' dates to 20101. As of 2010, the province had allocated 9.89 billion cubic metres of water. Of the 9.89 billion cubic metres of allocated water, approximately 42.5% was allocated to Alberta's twelve irrigation districts ("IDs"), which hold some of the oldest licenses in Alberta. Licenses for commercial activities accounted for approximately 29% of water allocation, with licenses for municipalities accounting for 11.3%, and oil and gas uses accounting for approximately 8.5% of the total water allocated.
Water licenses have historically been governed by the "first in time, first in right principle". This means that in times of water shortages, a person holding a more senior license has priority to obtain the entire quantity of water allocated under their license before the holders who obtained their license at a later date.
This means the IDs will be key players in the upcoming water sharing negotiations, because they hold the largest allocation of water and frequently hold the most senior licenses. Additionally, the IDs have previously committed to water sharing in times of drought as confirmed by the IDs 2018 publication " Human Use of Water and Livestock Sustenance Declaration". It is expected that ensuring water is available for basic everyday activities will be a key priority during these negotiations.
Municipalities (who are responsible for providing water services to their residents pursuant to the Municipal Government Act), are also expected to be key players in the water sharing negotiations. The City of Calgary has indicated it will voluntarily participate in such negotiations and committed to implementing water use restrictions as necessary. According to statistics compiled by the City of Calgary, residents use an average of roughly seven cubic metres, or 7,000 litres of water per month. It is expected that the City of Calgary, as well as other municipalities, will begin to circulate additional messaging regarding water conservation.
The Alberta Energy Regulator ("AER") is also working to address water use in the oil and gas industry, in preparation for potential water shortages. In December 2023, the AER released Bulletin 2023-43, requesting the industry be proactive and plan for water shortages during 2024, including immediately implementing water conservation measures in their operations.
Next Steps
As set out in the letter from the Minister, license holders were asked to take the following steps to prepare for the negotiations:
- Review and understand the conditions of your license(s).
- Review and understand how much water your business or organization uses and identify ways to reduce your use of water.
- Take immediate action by investing in water conservation technologies that will help your business or organization reduce water use.
- Develop drought plans now in case they are needed in the spring or summer.
- Enter your license onto Alberta's Digital Regulatory Assurance System ("DRAS"). DRAS is a secure online platform which will help license holders compile and view all parts of their license(s) for greater transparency, completeness, accuracy, and timeliness when managing their water licenses and water use.
- Monitoring water availability in your area using rivers.alberta.ca and take action to reduce your water use if your area is under a water shortage advisory.
Absent the declaration of an emergency under the Water Act, there is no mechanism for the Government to compel water license holders to share their water allocations. As such, the government is relying on the good faith of major water license holders to voluntarily participate in negotiations and agree to forego their full allocation of water in the interest of the province as a whole.
If circumstances worsen, and the water-sharing negotiations are ultimately unsuccessful, the Government could declare an emergency under the Water Act. The declaration of an emergency under the Water Act would provide the Government with the power to force water license holders to share water involuntarily. This power may be invoked in situations where there is a "significant risk to human health and safety due to insufficient water supply and water quality degradation".
The Government has indicated it remains hopeful that through the negotiated water sharing agreements it can avoid having to take further action. The expectation is that the water sharing negotiations will conclude by March 31, 2024. Subsequently, the specifics of any negotiated agreements will be disclosed in April 2024, followed by the implementation of these agreements throughout Spring 2024.
Footnote
1. Government of Alberta, "Facts About Water in Alberta" (2010) (pdf, online) at 34-35 [https://open.alberta.ca/dataset/1832cd36-bbeb-4997-ae81-67d3eedfcfe5/resource/18a9d64b-bad8-413a-8c63-77a548ec9d88/download/4888138-2010-facts-about-water-in-alberta-2010-12.pdf].
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