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Threats to Water Availability in Canada

1. Water Allocations, Diversion and Export

Frank Quinn,1 J.C.(Chad) Day,2 Michael Healey,3 Richard Kellow,4 David Rosenberg5 and J. Owen Saunders6

1 Environment Canada, Water Policy and Coordination Directorate, Ottawa, ON
2 Simon Fraser University, School of Resource and Environmental Management, Vancouver, BC
3 University of British Columbia, Institute for Resources, Environment and Sustainability, Vancouver, BC
4 Environment Canada, Transboundary Waters Division, Regina, SK
5 Fisheries and Oceans Canada, Freshwater Institute, Winnipeg, MB
6 University of Calgary, Canadian Institute of Resources Law, Calgary, AB


Current Status and Trends

The limited availability of freshwater in Canada at different times and places has led to conflicts among users of this resource, some of which are explored in this chapter. Governments allocate water in ways that influence where, when and how much may be used. Scarcities may be overcome to some extent by reforming the allocation system. Alternatively, water availability may be stretched by means of structures: dams, which hold back flows for release when they are more in demand (or less destructive), and interbasin diversions, which redirect flows towhere they are more in demand. Occasionally, those demands come from outside this country.

Allocation

From the time of first settlement in most of the eastern provinces, the use or allocation of water was governed by the law of riparian rights, borrowed from English common law. Only those who owned property adjoining lakes or streams were allowed to use their waters, which they could take for ordinary domestic purposes and other uses, as long as they did not interfere with the rights of other riparians. In the western provinces, however, water laws and institutions evolved differently, primarily because of water scarcity and a concomitant need, from the beginning of agricultural settlement, to convey water beyond riparian land-holdings. Two innovations were introduced, based on experience in Australia and the United States: prior appropriation, which refers to licensing of water uses by the Crown on a first-in-time, first-in-right basis to applicants within each western jurisdiction; and apportionment, which refers to the negotiated division of transboundary river flows between or among those jurisdictions.

The doctrine of prior appropriation was introduced in British Columbia in 1859 to resolve conflicts over hydraulic mining, and in 1894 in the Prairie region, where federal officials introduced theNorth-west Irrigation Act to provide secure rights to water for irrigation. Each of the Prairie Provinces carried the essential provisions of this Act into its own legislation after being given control of natural resources by the federal government in 1930 (Percy, 1988).

The basic western model entrenches the position of senior water rights at the expense of newer, even if more beneficial, uses of water. Governments have the discretion to reserve unappropriated water in the public interest, but this power has been exercised mostly to make water rights available for large irrigation and hydroelectric projects.

The inherent defects of appropriation law have become clear with the passage of time. It favours early uses, like agriculture, which consume large volumes of water, leaving little or nothing for later, especially urban and instream, uses. Compounding this threat, it hinders the transfer of water licences to other uses or to users who might want to exercise the right at another location. Existing licensees have no incentive to conserve water that could benefit other uses. Some streams have even been licensed beyond what is available in flow. Inevitably, this system has led to regional water shortages, and to engineering investigations to import from more distant unappropriated water sources (Saskatchewan-Nelson Basin Board, 1972). These issues have become especially controversial in southern Alberta where water shortages are common and competition is increasing. Fortunately, reforms are beginning. Amendments to Alberta's Water Act, which came into effect in 1999, include provisions for voluntary marketing of water licences within watersheds, subject to a hold-back of up to 10% of the transfer for instream needs (Alberta Environment, 2003).

Like the appropriation doctrine, the quantitative division or apportionment of streamflows among jurisdictions that share a drainage basin is a phenomenon of the dry western environment. Unlike appropriation, it does not appear to constitute a threat to water availability. On the contrary, apportionment agreements bring security to each of the participating governments in terms of a share in the water supply upon which to base their long-term development plans.

The Prairie Provinces participate in formal apportionments of both international and interprovincial rivers (Table 1). For the most part, agreements prescribe an equal, or almost equal, division of water between upstream and downstream jurisdictions. This process began early in the 20th century with the division of St. Mary and Milk flows across the international boundary, and gathered strength after prolonged negotiations over eastward-flowing interprovincial waters, beginning after mid-century. There is some interest in extending formal apportionment arrangements to other Prairie streams that cross the 49th parallel, such as the Poplar, and possibly the Red or its Pembina tributary.

Table 1: TRANSBOUNDARY STREAMFLOW APPORTIONMENTS*
a) Canada - United States
BasinRiparian GovernmentsAuthorizationFormula
St. Mary and Milk rivers, including eastern tributaries of MilkAlberta, Saskatchewan and MontanaBoundary Waters Treaty, 1909, and IJC Order, 192150-50 division of natural flows, with Canada having prior rights on St. Mary, U.S. on Milk
Souris RiverSaskatchewan, Manitoba and North DokatoaWater Supply & Flood Control Agreement, 198960-40 Sask. -N. Dakota, 50-50 in dry years, with seasonal minimum flow to Manitoba
Poplar RiverSaskatchewan and MontanaIJC recommendations 1977, not adopted50-50 division recommended and followed informally
b) Federal - Provincial - Territorial
Eastward-flowing Prairie riversAlberta, Saskatchewan and ManitobaMaster Agreement on Apportionment, 1969Alta.-Sask. and Sask.-Man. divide natural flows 50-50, with minimum flow requirement for S. Saskatchewan River at Alberta - Saskatchewan border
Mackenzie RiverB.C., Alta., Sask., N.W.T. and YukonMackenzie R.B. Transboundary Waters Master Agreement, 1997Bilateral agreements to be negotiated at 7 boundary crossings. Apportionment?

* Apportionments limited to use of flow for hydropower generation are not included (e.g., Niagara River Diversion Treaty).

Considering that future changes, among them climate warming and population growth, are bound to press harder on available resources, the interprovincial and international apportionments listed have the advantage of flexibility over most U.S. experience in water sharing, insofar as they are based primarily on percentages of available flow rather than absolute flow entitlements. In all cases, the parties have managed to avoid the protracted disputes that have plagued a number of interstate compacts in the American west (Hundley, 1966).

It remains to be seen whether the process of apportioning western streamflows will spread into other basins or regions, where water shortages are not as severe or widespread. The final hurdle for apportionment is likely to be in the northwest, where the federal, provincial and territorial governments have agreed to principles for managing the waters of the Mackenzie River basin, but bilateral negotiations for most of the seven transboundary crossings are barely underway. They may or may not result in quantitative requirements for flow, its seasonal distribution or its quality.

Two uncertainties remain with respect to provincial appropriation laws and interprovincial apportionment agreements. One is the question of Aboriginal title to water, for which there was provision neither in the North-west Irrigation Act in 1894 nor in successor provincial legislation. Some bands are contesting the Crown's establishment of appropriation rights that ignored their non-consumptive riparian uses. Another concern is the legal enforceability of the interprovincial agreement for eastward-flowing Prairie rivers, despite a clause that purports to bind the parties to maintain legislation giving jurisdiction to the Federal Court (Saunders, 1988). If the parties cannot agree on how to interpret any part of the agreement, or if one party simply withdraws its consent to the Federal Court's jurisdiction, there may be consequences of a legal, as well as political, nature.

Interbasin Diversion and Removal

Dams and diversions normally go together: water is stored behind a dam, then withdrawn from its natural course for transfer elsewhere in the same or to another drainage basin. This chapter focusses on interbasin diversions, however, and leaves it to the following chapter to discuss impacts of dams and their reservoirs.

For many years, engineering projects to redistribute river flows in favour of regions experiencing greater demand for water and electricity took the form of diversions of flow through channel modifications, canals, pipelines or similar means. More recently, entrepreneurs have also proposed to move water in bulk by ship and truck tankers, but little activity by this means has been recorded to date. We consider here what is known of impacts of various projects for transporting water. Additional implications raised by the prospect of foreign markets are discussed in the next section.

Nature has provided an environment amenable to surface water manipulation in Canada. More impressive even than the general abundance of fresh surface water is the density of interconnected and almost-connected lakes and rivers that make up our drainage network. These are the legacy of the several advances and retreats of Pleistocene ice fronts, before which meltwaters sought to escape by whatever routes possible, creating and abandoning drainage channels or simply spilling haphazardly from one depression to another. Where nature has shown the way, engineering has not been hesitant to follow, reopening old spillways like that of the Great Lakes from Chicago to the Mississippi River system and of the South Saskatchewan River through the Qu'Appelle Valley. Thus, Canadian diversions have experienced lower costs than those in many other parts of the world through short excavations between proximate water bodies and gravity flows using largely natural channels.

There is no formal inventory of existing interbasin diversions or transfers in Canada. Two criteria have been adopted to qualify diversions:

  1. diverted flow does not return to the stream of origin, or to the parent system, within 25 km of the point of withdrawal; and
  2. mean annual diversion is not less than a rate of 0.5 cubic metres per second (or a volume of 10,000 cubic decametres).

These have the effect of eliminating localized and smaller withdrawals operated by numerous municipalities, power plants, individual irrigators and trucking firms.

Interbasin diversion projects are found in almost all provinces, and the total flow of water diverted currently between drainage basins is enormous-approximately 4500 cubic metres per second. No other country diverts nearly as much water, or concentrates so much flow for a single function-hydroelectric power generation (Table 2). Of approximately 55 projects identified, the more recent are also the largest-the La Grande (James Bay) program in Quebec, the Churchill-Nelson diversion in Manitoba, and the Churchill Falls project in Labrador, all publicly administered hydroelectric power programs (Day and Quinn, 1992). The national pattern of interbasin diversions has hardly changed in the past decade.

Table 2: CANADA AS HYDRO COUNTRY
RegionDamsDiversions
 Storage Capacity
109 m3
% of Capacity for HydroAverage Annual Flow, m3/s% of Flow for Hydro
Atlantic799974099
Quebec423991854100
Ontario557357689
Prairies1139094092
British Columbia1769534099

Canada84696445097

Sources: Canadian Dam Association (2003), and Day and Quinn (1992) (updated to 2003).

The benefits of such projects are real and substantial. Just as real, if not as easily quantified, are wide-ranging and long-term biophysical and socio-economic costs. The Nechako-Kemano diversion serves as an example.

map of The Nechako - Kemano Diversion

Fig. 1. The Nechako - Kemano Diversion.

Nechako - Kemano Diversion - A Case Study

The Aluminum Company of Canada (Alcan) entered into an agreement with the British Columbia Government in 1950 to develop a hydroelectric project that would support an aluminum smelting industry and a new population centre in the west-central portion of the province. The project (Phase I) redirects flows of 115 cubic metres per second on average from the Nechako River (Fraser basin) to spill westward by tunnel through the Coast Mountains, a vertical drop 16 times higher than Niagara Falls, into the Kemano River basin. In return for the Company's investment, the province signed over in perpetuity and at a nominal charge a huge area and much of its resource wealth-agricultural and park lands, water, forests and fish. All waters covered by the licence were to be diverted before the year 2000.

There were many trade-offs. In addition to major power generation for Kitimat, the diversion may have reduced the flood threat slightly in the lower Fraser basin, but at the expense of inundating a circular chain of lakes popular with canoeists in Tweedsmuir Park. The upper Nechako River suffered almost 100% loss of flow during the construction of Kenney Dam and filling of its reservoir. After 3 years, 60 to 70% of flow was restored via a spillway that discharged, not from Kenney Dam but down the Cheslatta, a tributary of the Nechako. The comparatively large discharge down this small tributary scoured a deep channel in the unconsolidated sediments and deposited huge volumes of sediment in the upper Nechako (Kellerhals et al., 1979). Due to a smaller dam constructed near the mouth of the Cheslatta, homes and a graveyard of the local Indian community were flooded. The community was forced to relocate on short notice to a new area and unfamiliar way of life (Gomez-Amaral and Day, 1987), which led eventually to demands for redress of their losses.

Beginning in the mid-1970s, Nechako flows were gradually reduced as Alcan increased power generation at its Kemano plant. In 1980, the federal Minister of Fisheries took legal action to force Alcan to release more flows to protect salmon from bed dewatering, siltation and higher temperatures, the Nechako channel being far too wide for the remaining flow. Since then, 30% of prediversion flows have been returned to the Nechako River. Meanwhile, Alcan proposed to take full advantage of its 1950 licence, which gave it rights to divert all the flow from the upper Nechako plus flows from the Nanika tributary of the Skeena River system, thereby increasing the diversion to the Kemano powerhouse from 115 to 202 m3/s (Rosenberg et al., 1987). This Kemano Completion (Phase II), after considerable controversy, was rejected by stages, beginning with a 1987 settlement agreement. Alcan, however, remains interested in cost-sharing with the provincial and federal governments and local interests to add a cold-water release from the Kenney Dam, which would improve flows and temperature conditions for Nechako River fish populations, but at the same time allow for increased diversion from the Nechako Reservoir to the Kemano River.

Flows added to the Kemano River across the drainage divide may have contributed positively to fish resources in that river, if only temporarily and for some species (Fisheries and Oceans Canada, 1984), to hydroelectric production, and more generally to the growth of the regional economy based at Kitimat. At the same time, smelter fluoride emissions in the first two decades of operation were blamed for forest decimation, aquatic habitat damage and workers' health problems locally.

The absence of reliable long-term data on streamflows and ecosystems in both the Fraser and Kemano river basins has made diversion impacts difficult to quantify. Beginning in the late 1980s, a number of committees composed of governments, civil society and Alcan have considered these issues. The Nechako Fish Conservation Program, after 15 years of study, has yet to result in a report on effects of the diversion on salmon populations. A Nechako Sturgeon Recovery Program has not reported on causes for the local decline of this species. The Nechako Watershed Council was formed as part of the Nechako Environmental Enhancement Fund (NEEF), which grew out of the 1997 B.C.-Alcan Agreement to settle legal disputes between the two parties. The Fraser Basin Council (2002) is facilitating work of the Nechako Watershed Council on flow regimes that would be possible with the proposed cold-water release facility at Kenney Dam to meet the interests of a range of stakeholders.

Half a century has passed since this major interbasin diversion project began operation. The absence of benchmark data on all of the affected rivers, however, has frustrated efforts to understand and remediate induced changes. This clearly illustrates the need for careful surveys of both hydrology and other biophysical ecosystem components before significant disturbance is permitted, and for continued monitoring after a project becomes operational.

Beyond the Nechako-Kemano example, other issues related to diversions and other removals of water have been experienced. Unlike dams, which in most cases block fish passage, interbasin diversions risk transferring undesirable fish and associated parasites, bacteria and viruses in the water from one drainage basin or distant source into another basin incapable of resisting them. Concern for protecting the commercial fishery in Lake Winnipeg from alien invasive species like the gizzard shad and rainbow smelt is the main reason Canada and Manitoba insist that the Garrison Diversion in North Dakota, and more recent variations of that project, not divert water from the Missouri into the north-flowing Red River (Kellow and Williamson, 2001). This issue is most threatening in cases of overcoming natural barriers that have existed for thousands of years, such as continental drainage divides (as in the Garrison example) or oceans separating continents. Eurasian sources now account for almost three-quarters of the 160 alien species that have found their way into the Great Lakes, mainly via ship ballast water, and the cost to water intake structures and native species is already in the billions of dollars (Schindler, 2001).

As a country fronting on three oceans, Canada cannot afford to overlook the contribution of freshwater outflows to the marine environment. The flush of spring meltwaters from inland induces upwelling of deep, nutrient-rich salt water into the surface layer, at a time when this is most useful to marine life. Dam and diversion projects are already reducing the natural spring freshet from many rivers, with some evidence of adverse effects in terms of sediment and nutrient losses and reduced fish populations important to coastal ecosystems (Neu, 1982). Aside from its seasonal distribution, how much freshwater might be removed "safely" from a river before it enters the marine environment is a question for which there is no simple answer (Healey, 1992).

Some proposals to divert rivers or remove water by ship or truck transport have been argued on the basis of the small volumes involved as a proportion of the available resources. The other side of the argument, however, is the precedent which even a small removal, such as the proposal by Nova Group in 1998 to remove by ship 60,000 litres per year from Lake Superior, would create for other proponents whose cumulative withdrawals could be much more problematic (Windsor, 1992).

Furthermore, the "surplus" some entrepreneurs see in North America's large lakes is illusory. A prime example is the Great Lakes (International Joint Commission, 2000), where slightly less than 1% of the volume is annually renewable on average, the rest being a legacy of the melting of the Pleistocene ice sheets thousands of years ago.

Water Export

Interbasin diversions of water are widespread in Canada, but none leads south of the border. Likewise, the first ship carrying Canadian water in bulk for sale to any foreign market has yet to leave port. This is not for lack of trying on the part of entrepreneurs who continue to lobby federal and provincial governments for approval of their plans. As for bottled water, its export pales in comparison with the volumes proposed for interbasin diversion or bulk transport of water and has risen only to the level of the export and import of other bottled beverages (Hidell-Eyster International, 1999).

Economic reviews of international water export proposals (Government of Newfoundland and Labrador, 2001; Gouvernment du Québec, 2000; Quinn and Edstrom, 2000) indicate they are not viable at present, in comparison with alternatives such as conservation, improvements in use efficiency, reallocation among users and desalination in regions facing water shortages. In the near- to mid-term, therefore, it is unlikely that Canada will experience any real pressure to export freshwater. In the longer term, however, a potential market such as the American southwest may exhaust some of the more easily applied local alternatives and begin to look more seriously to Canada for relief (United States-Mexico Foundation for Science, 1998). Climate warming, of course, could hasten that eventuality.

Canadian public opinion has been consistently hostile to water export since this issue arose four decades ago. The longstanding concern shared by experts and public alike was that, if the tap were ever turned on to the powerful U.S. market, it might not be possible, as a practical matter, to turn it off. This concern has more recently expanded as a result of international trade negotiations, and the emergence of the North American Free Trade Agreement (NAFTA) in particular, which arguably imposes constraints on a nation's ability to limit water export.

In response to this turn of events and continuing proposals to export water, the Government of Canada (1999) announced a strategy based on environmental rather than trade grounds. In essence, watersheds (drainage basins) would become the geographical basis for preventing bulk water "removals." Mindful of provincial responsibilities over natural resources, the federal government proposed that all senior governments in Canada legislate the prohibition of bulk water removals from watersheds within their jurisdictions. Protecting water, its ecological integrity and its use at the source, within natural rather than political boundaries, was initiated as a defense against bulk removals whether for use elsewhere in Canada or in other countries, thus avoiding the discrimination that could bring international trade challenges.

Despite reservations by some environmental and other interests about this strategy (Gleick et al., 2002), the federal and provincial governments now have laws, regulations or policy in place to prohibit bulk removal of freshwater, and they typically apply to watershed areas within their jurisdictions. Existing interbasin diversions, however, are considered to be "grandfathered" and not subject to reversal.

Some have argued that Canada has a moral obligation to share its water abundance with populations in developing countries and regions who are increasingly unable to provide for their needs. It is the position of the Canadian government that more sustainable alternatives than long-distance importation by ship are available to serve those populations and are preferred by the international aid community, including conservation, recycling, reuse and reallocation of local resources and improved water treatment and distribution systems. Amendments to the federal International Boundary Waters Treaty Act, which came into effect in December 2002 primarily to protect Canada's boundary waters from out-of-basin removal, also provide an exception for short-term humanitarian needs.

Knowledge and Program Needs

The state of Canada's freshwater resources under a regime of allocation to users and removal from basins of origin is a legitimate subject for research, even, as limited here, primarily to water quantity concerns. Below we raise some critical research questions.

  • On the question of appropriation of water rights by individual and collective users (e.g., irrigation districts), a beginning has been made in Alberta to reform inflexible rules to allow for licences to be marketed from one user to another, whether or not the kind or location of use in the watershed changes. This follows similar reforms of this nature in many states of the American west and in the Murray-Darling basin of Australia. Is this innovation likely to resolve developing conflicts among users in the dry Prairie region of Canada as more water sources become fully appropriated? What kinds of protection should be accorded to instream needs and to other water users and communities which might be affected?
  • On the question of apportionment, does the possibility of a province backing out of an existing interprovincial agreement weaken the prospects for similar agreements among governments in the Mackenzie basin or elsewhere? Difficult legal questions remain with respect to the enforceability of these agreements and the substantive legal principles that would apply in the event of an interjurisdictional dispute over water use.
  • Apportionment is based on a calculation of natural flow, i.e., the flows that would have occurred in the absence of storage and use. As water consumption approaches the entitlement of an upstream jurisdiction, for example during times of drought, the uncertainties inherent in this calculation become more significant. What new monitoring, data and models will be required to reduce the potential for water conflicts?
  • At present, there is no national inventory of existing interbasin diversions. A factual report describing these projects, their history and operation would be a useful starting point toward understanding Canadian experience and concerns about this issue, and is long overdue.
  • Improved prediction of morphological change, in both donor and receiving channels, will require continued efforts to monitor and document different kinds of diversions, combined with improved knowledge of river processes and more practical computer models. A comprehensive summary of morphological change via case studies would be a valuable addition to what is known about Canadian diversion projects.
  • The question of how much water can be removed from a watershed without compromising its ecological integrity cannot be answered definitively or generally. But research into ecological resilience, risk and uncertainty could prove informative for later, specific, environmental assessments of interbasin diversion or removal proposals.
  • River flows have profound effects on physical, chemical and biological processes in coastal waters, effects which may extend for long distances through estuaries and out to sea. Any large-scale project, or series of small projects, to remove regional freshwater resources above the marine zone threatens the stability and productivity of lower trophic levels, fish and mammals downstream. Basic research is required to determine the causes of statistical relationships established in regions like the St. Lawrence River, Estuary, and adjacent coastal waters.
  • Guidelines and regulations for ships to exchange ballast water at sea have merely slowed the introduction of species from abroad, a situation that has deteriorated further because of numerous interbasin connections leading foreign invaders into the heart of the continent. The experimental electrical barrier at Chicago is only a first step in trying to prevent species like the Eurasian ruffe from moving beyond the Great Lakes to enter the Mississippi River system and the Asian carp from going in the reverse direction. It is time to revisit the technology and regulation of ballast water exchanges by designing filtration/exclusion systems suitable for ships. In comparison with the costs of control after the fact, it might be feasible for governments to subsidize the industry to put needed innovations into effect.

The abandoned Ogoki Rapids looking northeast toward Jaames Bay from the Waboose Dam. All of the former river flow is diverted south into Lakes Nipigon and Superior most of the time | Photo: Keith Bridger

Acknowledgements

The authors are indebted to Michael Church, Professor of Geography at the University of British Columbia, Vancouver, and Bob Halliday, R. Halliday & Associates, Ltd., Saskatoon, who served as external reviewers and suggested a number of improvements to various parts of the text.

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