Laws, Policies, and New Water Management Approaches

1. Laws, Policies, and New Water Management Approaches Arlene Kwasniak Faculty of Law University of Calgary Oldman River, Alberta

2. Governments must review and revise current water rights and water management frameworks in order to better efficiently and effectively manage water to make the most of supplies and protect aquatic systems

3. Water shortages and increasing needs • Technological, scientific, and economic advances to address needs • Roadblocks from existing water rights and management systems • Need for law and policy reform

4. Water shortages and increasing needs • Technological, scientific, and economic advances to address needs • Roadblocks from existing water rights and management systems • Need for law and policy reform

5. Rio Grande River, Mexico Colorado River, USA

6. Water scarcity in the Canada

7. Alberta particularly vulnerable

8. South Saskatchewan River Basin (SSRB)

9. Calgary – growing by 350 people a week

10. “Managing the SSRB at this time to meet instream flow needs to sustain riverine processes and associated ecosystems over the long term is judged not possible because of existing allocations” SSRB Plan Background documents

11. Water shortages and increasing needs • Technological, scientific, and economic advances to address needs • Roadblocks from existing water rights and management systems • Need for law and policy reform

12. Need for new approaches • Moving from water supply mgt to demand mgt • Conservation and intelligent use of conserved water • Watershed management approaches • Measuring and restoring instream flow • Ground/surface water conjunctive management • Intelligent use of storage • Facilitating best use of scarce supplies • Use of produced water, re-use of waste water • Desalinization • Rainwater harvesting

13. Water shortages and increasing needs • Technological, scientific, and economic advances to address needs • Roadblocks from existing water rights and management systems • Need for law and policy reform

14. Need for new approaches • Moving from water supply mgt to demand mgt • Conservation and intelligent use of conserved water • Watershed management approaches • Restoring instream flow • Ground/surface water conjunctive management • Intelligent use of storage • Facilitating best use of scarce supplies • Use of produced water, re-use of waste water • Desalinization • Rainwater harvesting

15. Need for new approaches • Moving from water supply mgt to demand mgt • Conservation and intelligent use of conserved water • Watershed management approaches • Restoring instream flow • Ground/surface water conjunctive management • Intelligent use of storage • Facilitating best use of scarce supplies • Use of produced water, re-use of waste water • Desalinization • Rainwater harvesting

16. Water supply management Where water needs increase, measures are taken to increase supply – Leads to greater scarcity, inequities

17. Water demand managment Tools and approaches to reduce and control demand Users use less water thereby address scarcity

18. Water demand managment • Pricing and tariffs • Recycling and reusing wastewater • Using alternatives to water • Using produced water in operations • Using methods that require less water

19. Water shortages and increasing needs • Technological, scientific, and economic advances to address needs • Roadblocks from existing water rights and management systems • Need for law and policy reform

20. Prior Appropriation Western States • Appropriation rights developed at common law – mining history, court recognition • Species of property right that vests by the appropriator applying water from a watercourse to a beneficial use, without waste, and with due diligence. • Appropriation rights enforced against other appropriators on basis of first in time first in right (FTFR) Key to the concept of appropriation rights is USE IT OR LOSE IT

21. Canadian Prairie Provinces • Prior to 1894 riparian rights only • 1894 Northwest Irrigation Act established prior allocation rights based on FTFR & recognized existing and new riparian rights (models: Australia and western U.S.) • Provincial legislation carried forth water rights systems Key to the concept of prior allocation rights is USE IT OR LOSE IT

22. Water demand mgt not consistent with use it or lose it

23. Water shortages and increasing needs • Technological, scientific, and economic advances to address needs • Roadblocks from existing water rights and management systems • Need for law and policy reform

24. Create incentives within the law to conserve so that water rights are not lost by virtue of conservation, or are lost, but there is a guarantee buy out from government • Facilitate transfer rights from conserved water (or limit transfer rights to conserved water) • Others …

25. Need for new approaches • Moving from water supply mgt to demand mgt • Conservation and intelligent use of conserved water • Watershed management approaches • Restoring instream flow • Ground/surface water conjunctive management • Intelligent use of storage • Facilitating best use of scarce supplies • Use of produced water, re-use of waste water • Desalinization • Rainwater harvesting

26. PRODUCED WATER Water that results from the process of bringing oil or gas from its source to the surface.

27. Coal Bed Methane PRODUCED WATER

28. CBM is a natural gas trapped in coal seams, a byproduct of the decomposition of organic matter. • The CBM is adsorbed in the coal. Coal can be dry or wet. Where wet the water needs to be withdrawn to de-pressurize the reservoir to start production • CBM produced water is groundwater

29. Well known that western U.S. states have considerable produced water from CBM operations

30. Not as well known is amount of CBM produced water in Alberta

31. Alberta Energy estimates that Alberta’s coalbed resource could contain 500 trillion cubic feet (Tcf) of natural gas. • Alberta uses about 1.36 Tcf per year– so amounts potentially recoverable are immense

32. About 90% of the CBM wells drilled in Alberta in 2004 were dry coal seams. • The remaining wells in the province at December, 2004 mainly targeted seams that contained water (saline – potable).

33. Legal questions • Who owns produced water? • Does the operator have a right to upgrade it and use it in future operations? • Does the operator have the right “sell” the water for other applications (agricultural, industrial purposes, restoration of instream flow, etc.)?

34. Do legal regimes facilitate putting produced water be put to useful purpose?

35. Two possible approaches for U.S. appropriation (groundwater) states are: • produced water is not appropriated for a beneficial use • produced water is appropriated for a beneficial use

36. Colorado and other states take the ‘not a beneficial use’ [is waste] approach-- so no water right acquired from producing water (has been challenged in court) • Wyoming takes the ‘is a beneficial use’ approach so a water right is acquired simply by producing water

37. Both approaches are problematic • classifying PW as waste encourages wasting it – (avoids the need to put it to a beneficial use) and excludes the state engineer from original appropriation • classifying PW as a beneficial use stretches the concept, discourages further beneficial use

38. Alberta’s situation is worse • water rights are legislated rights to divert water • exemption in regulations such that no licence is required to divert saline water (> 4,000 ppm TDS) • no legislative process to transform an exempt diversion into a licensed one

39. Legislative vacuum

40. Water shortages and increasing needs • Technological, scientific, and economic advances to address needs • Roadblocks from existing water rights and management systems • Need for law and policy reform

41. “Waste Not Want Not: A Comparative Analysis and Critique of Legal Rights to Use and Re-Use Produced Water—Lessons for Alberta” Denver Water Law Review, Spring 2007

42. Need for new approaches • Moving from water supply mgt to demand mgt • Conservation and intelligent use of conserved water • Watershed management approaches • Restoring instream flow • Ground/surface water conjunctive management • Intelligent use of storage • Facilitating best use of scarce supplies • Use of produced water, re-use of waste water • Desalinization • Rainwater harvesting

46. Energy Industry should take a lead in law reform not only to better ensure future supplies but also to demonstrate corporate leadership in advancing public values such as potable water for humans and restoration and maintenance of instream flow

47. Thank you Arlene J. Kwasniak, Associate Professor Faculty of Law University of Calgary, November, 2008