Don’t fear Alberta’s Water Act, says water expert

Alberta river and reservoir levels remain lower than normal and water availability continues to worry irrigators.

Will there be enough water to go around? What happens if there isn’t?

Answers can be found in the province’s current Water Act, passed in 1999, which contains the same “first in time, first in right” (FITFIR) system that was in place even before Alberta became a province.

It means a licence with an earlier priority number is considered more senior than one with a later-assigned number, which is called a junior licence. It allows a senior licensee to stall a junior licence holder’s allotment until they take their own.

But Alberta’s licence holders, including senior licensees like irrigation districts, don’t need to worry about that, said an academic water expert.

Co-operation needed

FITFIR has rarely been used in Alberta and that is unlikely to change, said David Percy, professor of energy law and policy with the University of Alberta. In fact, he said it has created a culture of negotiation.

A recent example is the agreement among 38 of the largest and oldest water licensees in southern Alberta, including irrigation districts, to reduce water use if severe drought conditions develop this spring or summer.

That’s where FITFIR and reality diverge. Junior licensees have power, said Percy, and it’s often within senior licensees’ best interests to agree on solutions that are as fair as possible to everyone involved.

“If junior licensees are all opposed to a particular provision of the plan, it might not get through, so they have to support them from time to time in order to get their support when it comes to other decision making on the water system.”

Municipalities and irrigation districts hold the majority of senior licenses in the province, although human consumption remains paramount.

Examples of junior licensees include golf courses, municipalities that have taken out multiple water licenses, and the food processing plants near Taber that were issued junior licenses in the 1990s or since 2000.

The situation involving irrigation districts with senior licenses and food processing plants with junior licences offers incentive for both parties to cooperate. Percy said.

FITFIR is partially the result of U.S. settler influence in the late 1800s, he said. The southern Prairies were in an extreme drought. European settlers were spreading into the region and some feared they would starve under the circumstances.

Adding to the problem was a common law inherited from England that forbade settlers from drawing water from watercourses unless they were owners of riparian land. According to albertaenvirolaws.ca, these riparian rights allowed anyone who owned land on the bank of any waterway to access that water for reasonable use.

“You couldn’t draw water which would lead to a perceptible diminution in the flow of the river,” said Percy.

Around this time, William Pearce with the department of the interior of the Northwest Territories (later to become Alberta, Saskatchewan and much of Manitoba) was introduced to irrigation by a Mormon settler from Utah named Charles Card.

Over the next several years Pearce and other officials investigated the value of irrigation and the American FITFIR system of water law. In 1894 the Dominion of Canada’s federal government passed the Northwest Territories Irrigation Act that applied to today’s three Prairie provinces and included FITFIR.

The act confirmed that the Crown owned all water and a specified diversion could only be attained with a licence.

“And in the event that there was insufficient water to satisfy all licensees, any dispute would be settled according to the date on which the licence was issued,” said Percy.

The southern Prairies continued to grow. The First World War created demand in Europe for Canadian grain, in the process causing cities like Lethbridge and Medicine Hat to grow rapidly. This led to concerns of whether the current system would meet these jurisdictions’ growing water needs.

The year 1930 saw big changes in the prairie water landscape. The Northwest Territories Irrigation Act was scuttled and the Natural Resources Transfer Agreements transferred ownership of all ungranted federal land and water to the individual provinces.

This enabled the three provinces to each pass their own water act. In Alberta’s case, it was the Provincial Water Resources Act, the ancestor of today’s Water Act. However, it reenacted the 1894 legislation almost word for word, said Percy, and also placed irrigation and agriculture high on the list of water priorities.

An amendment to the Water Resources Act in 1962 essentially gave Alberta near-total control of all water in the province.

Making a market

The passage of Alberta’s Water Act in 1999 retained the FITFIR principle. However, it also allowed users to gain water rights by transfer, subject to provincial government approval, in the process establishing a monetary value for Alberta’s water, said Percy.

“The important thing that I think the Water Act did in its 1999 passage was to recognize the economic value of water,” said Percy. “If you have excess water that you are using but you don’t really need, then you can always look at selling that water to somebody else who values it more highly.”

An example was the transfer of water rights from the Western Irrigation District to the developers of the CrossIron Mills mall in Rocky View County, just north of Calgary. The developers paid $15 million to the irrigation district to build a pipeline that replaced leaky, inefficient and old irrigation ditches.

The transaction made the WID more economically efficient, and in exchange, the WID transferred the amount of water saved to the developers.

“So the WID was just as happy they got an enclosed pipeline instead of a leaky ditch and the developer was delighted because they got the water they wanted,” said Percy.

The 1999 act didn’t create a free-for-all water trading marketplace. The provincial government reserved the right to declare a water emergency, which essentially allows it to decide the priority of water use.

“So rather than leaving that to government, there’s obviously a strong incentive for water licensees to get together and say, with the government’s approval, ‘let’s come up with a good system for sharing our available water this year.’ And that’s what’s happening at the moment.”

Changing times

Can Alberta’s Water Act deal with ongoing challenges presented by climate change? Percy believes it will suffice.

“It is certainly equipped to deal with the challenges of the type of drought we have faced so far. No senior licensee would be so foolish as to tempt the province to exercise its emergency powers under section 107 of the act.”

However, if extreme drought continues, there may be reason to consider other options, such as a system of allocation similar to one used in Australia.

“In the Murray-Darling river basin, no one obtains a right to a certain quantity of water. Instead, the governing body dictates a minimum flow that must be maintained to allow the river to function environmentally,” said Percy.

“Water users then get a right to a certain percentage of the flow that is available for public use. Thus, a major user might get the right to use one per cent of the available flow, not a specified quantity of water.”

Although the system has been controversial, Percy said it has worked reasonably well over the three decades it’s been in effect, “particularly in those parts of Australia where people bid for the available flow.”