WATER TRANSFERS UNDER THE WATER ACT

1. WATER TRANSFERS UNDER THE WATER ACT Randy Poon – ALBERTA ENVIRONMENT AND SUSTAINABLE RESOURCE DEVELOPMENT January 17, 2013 Edmonton

2. Presentation Basis Southern Region viewpoint – only offices doing transfers

3. 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 undertakings Change 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

4. 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

5. 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

6. 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.

7. 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.)

8. 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

9. 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)

10. 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

11. Transfer Limitations A Not possible B

12. May be acceptable only with restrictions Acceptable Acceptable only with restrictions Transfer Limitations A C D B

13. 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 units 10% holdback: 10 units Licence as a result of transfer: 90 units

14. 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

15. 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)

16. 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.

17. 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)

18. 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.

19. 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

20. 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

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

22. Questions?