There is new and exciting discussion in Alberta about whether the fundamental concepts of a 'land trust'can be extended to protect water resources — a 'water trust.' A water trust ‘purchases' the right to keep water in the river so as to meet aquatic ecosystem needs. Because much of southern Alberta's surface water has been allocated to water licences, a water trust could be a useful (if not an essential) complement to Alberta's tradable water rights system as a way to ensure water flows for environmental and public water needs (e.g. drinking water) remain in the system.

What is a water trust?

A water trust is an organization that acquires water rights to keep the water in the river (or lake or wetland). A water trust acts to protect the flow of a river by purchasing the right to use a certain amount of water but leaving it instream.

A water trust effectively acts as an advocate for the river. It recognizes that rivers and the aquatic ecosystems they support have intrinsic rights and needs. It also recognizes that maintaining healthy functioning aquatic ecosystems is essential for ensuring water for current and future generations.

Rivers require magnitudes of water that vary by season and even by year-these are called instream flow needs. For example, flooding is a very important process for the species living in or near rivers because it stimulates certain life processes of those species, such as the cottonwood tree in southern Alberta. The water trust can contribute to the instream flow needs of a river by holding, but not using, a water right thereby ensuring a certain amount of water remains in the river.

A water trust works with government and water rights holders to create a trust of water for the river. A water trust acquires water by donations of water rights, leasing water rights, or purchasing water rights. This requires working within a water allocation system that allows water rights transactions to occur. And the water allocation system must also allow water rights for instream uses so that the water remains in the river.

Why is a water trust needed?

Keeping water in the river is critical for areas of a river that have been degraded by excessive water withdrawal, as in areas where much of the water in the river has been given to licence holders. A good example of this situation is Alberta's South Saskatchewan River Basin, where water has been allocated for a variety of uses (primarily irrigation and municipal uses) for over a century putting aquatic ecosystems at risk. Now, areas of the river are struggling from insufficient water during late summer and winter and particularly during dry years such as 2001 when more water was allocated to licence holders than was in the river.

Where are water trusts functioning successfully?

In Oregon, Washington, Idaho, and Montana, the Columbia Basin Water Transaction Program works with local water trusts, government, and landowners to keep water in the Columbia River and its tributaries. National Fish and Wildlife Foundation (NFWF) works in partnership with the Bonneville Power Administration (BPA) to manage this program.

Through partnerships among NFWF, BPA, and water licence holders in the basin, the program was instituted and since 2002 acts to put water back into the river.

Some of the tools the water trust uses to maintain sufficient water in the river include (from Typical Tools (NFWF 2004)):

1. Water Acquisitions

• Short- and long-term leases
• Permanent purchase
• Split season — A portion of a water right is used for irrigation in the spring and the remainder is left instream in late summer/fall
• Dry year option — An opportunity to lease a water right during a particularly dry year
• Forbearance agreement
• Diversion reduction agreement

2. Boosting Efficiency

• Switching from a flood to sprinkler irrigation system
• Modernizing headgates
• Improving ditch efficiency

3. Conserving Habitat

• Protecting/restoring stream habitat and changing a portion of the associated water right

4. Rethinking the Source

• Changing the point of diversion from a tributary to a main stream in order to improve stream flows
• Switching from surface to ground water source

5. Pools

• Rotational pool — A group of irrigators take turns leaving a portion of their water in stream

6. Banks

• Water banking — Producers in an irrigation district "bank" water they may not need so it can be available for other uses

Other water trusts

Colorado Water Trust, formed 2002

Montana Water Trust, formed 2001

Oregon Water Trust, formed 1993

San Saba River Trust, Texas

Texas Water Trust, created in 1997 as a program within the Texas Water Bank under the state's Water Code. Unlike the other water trusts mentioned, it is not a non-profit organization but is run by the state government.

Trans-Pecos Water Trust

Washington Water Trust, formed 1998

How might a water trust work in Alberta?

Alberta is an excellent context within which a water trust could function. Similar to the states with existing water trusts (above), Alberta has a water allocation system based on transferable water rights expressed in water licences.

For a water trust to be feasible, some conditions are necessary. Water law of the state or province must allow (see Kwasniak 2006):

• The ability to keep water in the river through instream licences or other mechanisms
• Licence holders to transfer all or a portion of their water right to another
• A change in purpose of water use from (e.g.) irrigation to instream use that would enhance the instream flow
• Implementation of instream flow enhancements

In Alberta, water rights are premised on a system called prior allocation because the government, based on water legislation, allocates water use rights to users, who then use the water based on the seniority of their licence.

Alberta's water law (Water Act, enacted January 1, 1999) allows licence holders to transfer a portion or all of their water licence. Therefore, a water trust could purchase, lease, or receive donations of all or part of existing water rights. The more senior the better because, in times of water shortage when a junior licensee cannot have access to water due to more senior rights on the river, the instream licence will have a better chance of having its allocation of water.

A key barrier for Alberta to enable a water trust lies in the ability to have private instream licences. The Water Act does not explicitly allow for this type of licence; but interpretation of the Act could lead to an understanding that private instream licences can be allowed (see Kwasniak 2006 for a much richer discussion of this issue, water trusts in general, and how a water trust might work in Alberta). Government does allow for private water licences that divert water for wetland enhancement and approvals for aquatic ecosystem enhancement (Kwasniak 2006). For example, Ducks Unlimited holds the most water licences in Alberta, primarily for habitat management, although many of Ducks' licences were obtained under the predecessor water legislation, the Water Resources Act, which allowed water use for conservation, recreation, or fish or wildlife propagation. A simple solution, as proposed by Kwasniak (2006), would be for the Minister of Environment to amend the existing regulations to state that "diversion" can include leaving water instream. Many also argue legislation needs to be modified to make this right clear.

It has been argued that private instream licences would better guarantee rights for the river than other mechanisms such as water conservation objectives or Crown Reservations. To enable a water trust and thereby contribute to meeting instream flow needs of a river, government would need to allow for the designation of private instream flow licences.

Sources

National Fish and Wildlife Foundation. 2004. Columbia Basin Water Transactions Program.

Kwasniak, Arlene. 2006. Quenching instream thirst: a role for water trusts in the Prairie Provinces. Journal of Environmental Law. Pp 211-231.