WATER TRANSFERS UNDER THE WATER ACT

Randy Poon – ALBERTA ENVIRONMENT AND SUSTAINABLE RESOURCE DEVELOPMENT

January 17, 2013Edmonton

Presentation BasisSouthern Region viewpoint – only offices doing transfers

WATER TRANSFERS All water vested to the crown First in time, first in right (FITFIR) Require a licence to divert water (use) Ability to detach a water licence from land or undertaking

and move it to other lands or undertakingsChange in appurtenancy (licence tied to). Change in point of diversion is a transfer. Change in point of use if proposed point(s) of use are not shown on licensed plans.

Priority of existing allocation transferred

WATER TRANSFERS All or part of an existing allocation Permanently or for a fixed period (temporary – revert

back minus 10% holdback, if applicable)

Myth: Agreement to Assign Water (Sharing)

- not possible if require more volume or change in conditions.

- Applicable during water shortage times as it is the priority that is moving

Reasons For Transfers may be only way of obtaining a right to divert water (closure of the

water basin, South Saskatchewan River Basin – surface water and groundwater hydraulically connected to surface water)

Existing users to acquire a higher priority allocation

Note: Crown reservation: In 2006 the Bow, Oldman, and South

Saskatchewan River Basin Water Allocation Order was issued Remaining water reserved: use for First Nations, Water

Conservation Objectives (WCO), storage for protection of the aquatic environment and for improving the availability of water to existing licence holder and registrants

Licence Transfer Criteria Licence must be held in “good standing” Does not impair the exercise of rights of household user,

traditional agriculture user or licensee Does not cause a significant adverse effect on the

aquatic environment Subject to the Approved Water Management Plan for the

South Saskatchewan River Basin May result in a 10% holdback for the aquatic

environment Transfer provision allowed under water management

plan or order of Lieutenant Governor in Council.

Criteria – In Good Standing The licence to be transferred must be in good standing. Some of considerations are:- is the licence active and not subject to cancellation or

suspension;- Any enforcement or compliance issues with the

department- Is the licensed project in compliance with terms and

conditions (water use, project operational, etc.)

Application Process Complete Application for Transfer of Allocation Determination whether licence is in good standing. Public Review: notice and possibly open house. First

Nations consultation possible. Referral and Evaluation of Transfer. Consider matters

and factors in the Approved Water Management Plan for the South Saskatchewan River Basin (SSRB WMP)

If applicable, review Statements of Concern Decision on Application (Issuance of new licence or

refusal) and 10% holdback Appeal Process

Matters and Factors Director under the Water Act must consider the matters

and factors outlined in the Approved Water Management Plan for the SSRB

In the Plan the matters and factors are in Table 2. Some of the factors are aquatic environment, effect on IO (Instream Objective) and/or WCO, hydrological and hydrogeological effects, effect on other users, historical volume, water quality, and First Nations.

Other considerations include Water Management Plans ie: Highwood Management Plan (HMP)

Application Considerations Source: is the source the same? Source: downstream or upstream?

upstream transfer volume may be limited. Existing and Proposed Purpose: timing of diversion

same or different (seasonal or all year diversion) Conditions: Is there a minimum flow condition? Is there

a time restriction. Likely maintain or increase restriction. Be able to mitigate other factors such as different source.

Terms of Licence: consumptive use vs return flow Location of existing licence and proposed? Hydraulic

connection Effect on other users such as between the two locations

on same source or difference source. Each licence transfer is evaluated on its own merits

Transfer Limitations

BNot possible

A

Transfer Limitations

A

BC

Acceptableonly with

restrictions

May be acceptableonly with

restrictions

DAcceptable

10% holdback and Water Conservation Objective (WCO)

Licence With any transfer (temporary or permanent) there is the

ability for the Director to take 10% of the volume and 10% of the rate of diversion being transferred.

E.g. Licence amount: 200 units, application for transfer: 100 units10% holdback: 10 units

Licence as a result of transfer: 90 units

10% holdback and WCO Licence Public interest to protect aquatic environment or to

implement a WCO On the most part 10% taken. Reason is WCO is not

being met. Not taken as it may be a small amount, short term transfer (e.g. 1 to 3 years), cancellation if partial transfer.

Since June, 2011 have not taken 10% when a licensee is transferring existing licence to facilitate the creation of a regional treated water system (different point of diversion but same point of use)

10% can be held in natural water body or issuance of a WCO licence

Number of Transfers 72 in Oldman River Basin and South Saskatchewan

Sub-Basin (Lethbridge) and 30 in Bow River Basin (Calgary) as of November, 2012

Of the 102 transfers: 97 permanent and 5 temporary 70 holdback taken and 32 not taken (could be

cancellation of portion of licence, temporary short term/small amount transfer, etc.)

Of the transfers completed since the beginning of 2009, a holdback has not been taken in 9 cases (mostly due to own licensee becoming part of a regional treated water system)

Number of Applications 48 pending in the Lethbridge office Approximately 6 pending in the Calgary office First Order in Council to allow transfers to be considered

in the Milk River Basin passed in May 2012.

Existing Licences For a gravel company that has multiple licences for

multiple projects that range from start up to fully operational to decommissioning. Is the water use reducing because of reduced gravel extraction and washing? If so what should I do with this volume?

What to do with current licences? Possibly transfer. Full volume or portion? Permanent or

temporary?

Note: Cancellation of licences (3 years of non-use and no reasonable prospect that licensee will resume diversion of all or part of the water in the licence)

Specific Considerations for Sand & Gravel

Planning of projects coming online vs. projects that are nearing completion. Look at the possibility of submitting an Application for Transfer of Allocation prior to project being shutdown.

Maintain licences to be in good standing. Will not be able to transfer if not in good standing.

Can apply to transfer conserved water Generally a 3 to 6 month process after receiving a

complete Application for Transfer of Allocation.

Other Allocation Questions If an application for a well the applicant must

demonstrate the source is not hydraulically connected to a surface supply to qualify for licensing as a groundwater source.

Any applicant for a groundwater application needs to follow the guidelines established for groundwater applications (available at http://environment.alberta.ca/03587.html)

Temporary diversion licences issued for <1year; no benefit of priority; first shut off in shortage situations; generally need to meet WCOs before diversion; generally not issued for purposes requiring a licence

Other Allocation Questions

Licence volumes based on a volume for a calendar year. This is the period that has been used and is consistent for all purposes.

Each licensee responsible for meeting the conditions of all of their licences (including reporting) irrespective of how many licences they may hold at a single point of diversion

Transfer 2013 A new guideline for transfers of allocation Water conversation – public forum. Transfers likely a

topic.

Questions?