In January 2009, low flows in the Athabasca River triggered the implementation of a recent agreement between Alberta Environment and oil sands operators to limit water diversions. Despite a recent direction from government for oil sands operations to reduce water withdrawals, mechanisms to enforce the agreement are still lacking. The overall impact of the oil sands mining industry's large and constant water diversions on the aquatic ecosystem has been researched for close to a decade. This research found that the instream flow needs (the quantity, quality, and timing of water flow required to sustain a healthy aquatic ecosystem) of the Lower Athabasca River are considered to be particularly at risk during the winter low flow period. During this time, oil sands water withdrawals have a greater potential to impact certain aquatic species relying on the little bit of water left in the river.

While oil sands water allocations are small when expressed as a percentage of annual flow (2.2%), that percentage is misleading and irrelevant when considering the impacts of withdrawals on the aquatic ecosystem during the winter period. This is because flows in the Lower Athabasca are highly variable. For example, during the open water season (April-November) flows average 859 m³/sec; whereas when the river is covered with ice (December-March) flows average 177 m³/sec. Therefore the maximum cumulative allocation for oil sands operators, currently over 14 m³/sec, makes up a significantly greater proportion of the Athabasca River's flow during winter months when natural low flow conditions already limit the amount of habitat.

Only four of seven approved oil sands mines are currently operational. Once all seven are operating, and potentially more are approved, the impact could be far more significant.

Regulatory Backstop

Touted as "Alberta's Regulatory Backstop to Protect the Athabasca River", Phase 1 of the Lower Athabasca River Water Management Framework was released in March 2007 by Alberta Environment and the Department of Fisheries and Oceans Canada. The framework consists of three river flow conditions (green, yellow, and red) for each week of the year that have differing environmental implications and corresponding management actions.

As part of the framework, oil sands operators were directed to submit an implementation plan with regards to water sharing and meeting the water withdrawal restrictions imposed when the Athabasca River enters yellow and red zone conditions. The implementation plan has led to the development of an Oil Sands Mining Water Management Agreement for the Winter Period that is revisited each year. Thus far an agreement has been developed for both the 2007-2008 and 2008-2009 winter periods. At its core, the agreement identifies the following principles:

a. All licence holders will steward net instantaneous withdrawals during yellow and red periods to meet the IFN [instream flow needs] Framework;

b. Suncor and Syncrude will steward net instantaneous withdrawals, as necessary, during yellow and red periods to a maximum of rates equal to their average annual allocation rate;

c. All other companies will use available water storage, as necessary, to supplement withdrawals for the Athabasca River during red periods to ensure that the Framework targets are met; and,

d. Industry will continue to work together on joint programs and initiatives to improve the management and efficiency of water use.

The Question of Enforcement

While the framework is considered progressive in that it attempts to limit cumulative diversions from the Athabasca River, there are outstanding issues with respect to the apparent lack of enforcement measures. In other watersheds in Alberta, Alberta Environment relies on the development of a Water Management Plan, a tool created by the 1996 Water Act, to establish a regulatory framework for allocations and diversions in that watershed. To date, Alberta Environment has not chosen to utilize a Water Management Plan as a method to formalize the arrangements made with the oil sands companies. Rather, the Framework and its accompanying implementation plan with industry do not have any authority in law or policy and are not, as far as is evident, enforceable by Alberta Environment. Under the agreement, monitoring requirements, largely the responsibility of the oil sands companies, can be initiated at the direction of the government during yellow and red zone conditions.

The Oil Sands Mining Water Management Agreement for the 2008-2009 Winter Period specifies a weekly maximum instantaneous withdrawal rate for each oil sands operator to meet the maximum cumulative diversion rate for low flow periods. However, the agreement does not specify how withdrawals will be monitored or reported other than the indication that companies must report any withdrawal exceedances to Alberta Environment. Legally, oil sands operators who are signatories to the agreement are currently only required to report their actual water withdrawals on an annual basis (on or before January 31^st in each year for Suncor and Syncrude; March 31^st for Shell Albian and Canadian Natural Resources Limited).

On December 2, 2008 a number of Alberta-based environmental groups sent a letter to Alberta Environment requesting clarification regarding the Government of Alberta's ability to monitor and enforce the Agreement. A follow-up letter was sent on January 13, 2009, as Alberta Environment had failed to respond.

An excerpt of the letter sent on December 2, 2008 is provided below:

Although the Agreement specifies a weekly maximum instantaneous withdrawal rate for each oil sands operator that is required to meet the maximum cumulative diversion rate, it does not specify how withdrawals will be monitored or reported ... Without weekly monitoring and reporting in place, neither the public nor Alberta Environment can be assured that signatories are adhering to the intent of a weekly maximum cumulative diversion rate ...We are therefore requesting a clarification from Alberta Environment when the oil sands mining water management agreement for the 2008-2009 winter period is issued and determined, on how maximum instantaneous withdrawal rates will be monitored and reported to ensure that the cumulative diversion rate specified by the Framework is observed. Furthermore, as the Agreement does not refer to any existing regulatory process, we are also requesting a clarification from Alberta Environment as to the legal basis for the implementation of the Agreement.

On January 20, Alberta Environment issued a press release reporting it "directed industry to reduce water withdrawals from the Athabasca River as a result of a naturally occurring low water flow in the region" (Government of Alberta 2009). While the press release suggests the presence of legal restrictions, there remains no evidence to suggest this framework is based in law or regulation.

On January 27, 2009, several environmental organizations issued a press release indicating their primary concern that Alberta Environment lacked the regulatory ability to monitor and enforce water withdrawal restrictions during low flow conditions and ensure that oil sands operators are adhering to the intent of a weekly maximum cumulative withdrawal rate.

A letter from Alberta Environment (received on January 27, 2009) to Barry Robinson with Ecojustice Canada, who is representing the groups in this matter, stated that Alberta Environment will put together a public website by mid-2009 that will "provide weekly flows, determine the Phase One Framework conditions/total withdrawal permitting and then re-publish the industry Agreement numbers." The letter suggests that oil sands operators would be required to provide a weekly report of their past week's withdrawals as well as forecasted withdrawals from the coming week:

Alberta Environment fully expects oil sands operators to honour the restrictions in water use contemplated by their Agreement. Should circumstances arise where the Framework and Agreement are not being followed, a variety of tools are available under the Water Act as potential responses including: development of a water management plan with Lieutenant Governance in Council approval; Director restriction of water withdrawals pursuant to terms and conditions in licences; Director initiated amendments of licences; issuance of water management orders; and suspension of licenses.

While the letter confirms the government understands the importance of regulatory enforcement measures such as a Water Management Plan, it stops short of committing to adopt such measures.

Alberta Environment and the Department of Fisheries and Oceans Canada contemplated formalizing the management framework for the Lower Athabasca River as a Water Management Plan under the provisions of the Water Act in the Phase 1 Framework: "Critical to the successful adaptation to a Phase 2 Framework and its potential evolution into an approved Water Management Plan is the consultation and review process" (AENV/DFO 2007). Currently, Phase 2 of the Framework is being developed through a multi-stakeholder process with representation by industry, government, environmental organizations, and First Nations and Métis groups. That Framework should be established as a Water Management Plan because it would clarify how the Lower Athabasca River can be protected, including provisions for enforcement should that become necessary.

Sources

AENV/DFO (Alberta Environment/Department of Fisheries and Oceans Canada). 2007. Water Management Framework: Instream Flow Needs and Water Management System for the Lower Athabasca River. Alberta Environment and the Department of Fisheries and Oceans Canada.

Government of Alberta. January 20, 2009. Province takes water management action in Athabasca River: industry directed to reduce water withdrawal.

Oil Sands Developers Group. 2008. Oil Sands Mining Cooperation to Meet the Athabasca River Water Management Framework. Presentation at CAPP Environmental Forum by Stuart Lunn, January 21, 2008.

Oil Sands Developers Group. 2008. Oil Sands Mining Cooperation to Meet the Athabasca River Water Management Framework. Presentation at CAPP Environmental Forum by Stuart Lunn, January 21, 2008. Available from:

Schindler, D.W., Donahue, W.F., and J.P. Thompson. 2007. Future Water Flows and Human Withdrawals in the Athabasca River. In Running out of Steam? Oil Sands Development and Water Use in the Athabasca River-Watershed: Science and Market based Solutions. Edmonton: University of Alberta Environmental Research and Studies Centre.