August 16, 2022

Water Law and Policy: Gaps, Opportunities and Legal Reforms (Report and Webinar)

Water Law and Policy: Gaps, Opportunities and Legal Reforms (Report and Webinar)

Water Law and Policy: Gaps, Opportunities and Legal Reforms (Report and Webinar)

Aquatic ecosystems – opportunity gaps and legal reforms

A primer on the surface water quality management framework

The water law was declared effective on October 7Thursday1998 and represented a significant development in how the province could plan and manage water for environmental purposes.[1] However, in the 23 and a half years since its promulgation, the law’s potential has only just become apparent.

ELC Water Law and Policy: Gaps, Opportunities and Law Reforms canvas this unrealized potential water law and recommends how we can become more proactive in planning and managing water with environmental outcomes in mind.

From a provincial perspective, the identified core pillars of ensuring environmental flows and ecosystem health include:

  1. Legal protection of environmental flows;
  2. Integration of land and water management;
  3. Consideration and protection of the aquatic environment; and
  4. Adaptive water management that responds to water supply challenges and evolving climate pressures.

The report highlights the challenges and opportunities in each area and how, in many cases, existing legislation enables action.

Specifically, planning for water management should be priority #1. This planning should include a more detailed and substantive set of issues and factors that need to be taken into account in government decision-making, both for water licenses and water approvals. This step needs to be further expanded in areas of the province that are over-allocated (ie, the South Saskatchewan River watershed) by clarifying regulatory and policy approaches to restoring ecological flows.

While water management planning in the province is permitted under water law it was used sparingly, and when it was used, the “matters and factors” that governed the decision under the Act were vague and highly discretionary.

Similarly, provincial Strategy for the aquatic environment – which forms a part Framework for water management planning -could define a clear, comprehensive and robust strategy, objectives and actions to be taken towards proactive planning and action for environmental flows and water quality. However, in its current form, it is not successful.

A summary of the ELC recommendations is provided in Table 1 below.

Table 1: ELC recommendations for policy and law reform steps to better serve the aquatic environment

Pillars for environmental flows

Policy and regulatory actions

Legal reforms

Legal protection of environmental flows – Objectives of water protection

· Prioritize ranges and pools for Crown and WCO reserves.

· Ensure that WCOs are set at an environmentally appropriate level (ie, in place at an appropriate range level).

· Ensure that WCO meetings are monitored and publicly reported.

· Initiate a strategy and action plan for the provision of priority protected water in catchments where in-stream streams are at risk (ie a triage approach to prioritize reaches).

Legal protection of flows in the environment – water management plans

· Engage in water management planning in the basins with the intention of having an approved POH in each basin.

· Ensure that the ‘issues and factors’ for decision-making under water management plans are sufficiently prescriptive to ensure accountability for water ecosystem planning outcomes.

Environmental flows – Licenses considered · Review, evaluate and publish the discretionary exercise policy for environmental flows under the terms of Section 18 ‘deemed licences’ water law.
Integration of land and water

· Continue water management planning with a focus on detailed land use issues and the factors that need to be taken into account when making decisions about them water law approval.

· Issues and factors in water management plans should be integrated with the assessment of pollutant loads from land use changes and the development and implementation of surface water load budgets at appropriate scales (under the Alberta Land Stewardship Act).

· Scale up surface water quality management frameworks using triage for known impairments and establish a monitoring and evaluation system to apply the frameworks at relevant tributary and/or sub-basin scales.

· Using regional planning to direct relevant ministries and municipalities to integrate surface water quality assessments, land use change and peak daily load budgets as a guide for future development and as a guide for restoring ecosystem services.

· Enable and delegate powers to an independent authority to manage water outcomes planning. This direction would then lead to decision-making at the provincial and municipal level
Protection of the aquatic environment · Review the Aquatic Environment Protection Strategy and detail the outcomes, objectives, measures, tactics and roles and responsibilities for aquatic environment protection.

· A biodiversity management framework should be established with the input of relevant experts to ensure the sustainability and resilience of aquatic habitats.

· The Government of Alberta will introduce legislation to protect habitats for aquatic and terrestrial species and ecosystems. This law should include provisions to ensure the protection and restoration of the biophysical aspects of water systems
Adaptation of water management to climatic pressures · Continue water planning to include detailed approaches to the issues and factors around climate variability and future supply that must be considered in the Director’s decision-making. · A provincial dialogue on water management and allocation in the context of climate change should be initiated, directly addressing the issues of licensed and deemed rights to divert licenses, adaptive capacity and responsibility for ecosystem needs.

Aquatic ecosystems – opportunity gaps and legal reforms

A primer on the surface water quality management framework

[1] Alberta Gazette, Part 1, October 31, 1998, Vol. 94, No. 20 at p 2004, Alberta Queen’s Printer Online


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The Environmental Law Center (ELC) has sought strong and effective environmental law since its founding in 1982. ELC is dedicated to providing credible, comprehensive and objective legal information relating to natural resources, energy and environmental law, policy and regulation in Alberta. The ELC’s mission is to advocate for laws that sustain ecosystems and ensure a healthy environment, and to engage citizens in lawmaking and enforcement. Our vision is a society where our laws ensure an environment that sustains current and future generations and promotes healthy ecosystems.

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