While Alberta has experienced high stream flow advisories and flood warnings over the past few months, a bitter legal dispute continues to brew as a result of drought conditions in the US state of Idaho. This ongoing dispute is between senior surface water rights holders and junior groundwater rights holders. It highlights the challenges of allocating scarce water resources based on the traditional "first in time, first in right" (FITFIR) legal system of allocating water. Alberta may face similar challenges as it begins to look for groundwater sources to supplement surface water shortfalls in southern Alberta.

First-in-time first-in right: surface and groundwater

Jurisdictions which apply the FITFIR doctrine (such as Alberta) manage water according to historical priority. Under this system in times of a water shortage, the older water rights have first right of access to the water available. Water rights issued more recently have a "junior" priority and may be cut off if not enough water is available. In Alberta, this right comes in the form of a water allocation licence, which sets out conditions of use including the volume and rate of water withdrawal. The major players involved in the priority systems of the Canadian and American west are municipalities, irrigation districts, agricultural users, and industrial users. Household use of water is excluded from this system.

When the FITFIR water allocation system came into being in the late 1800s, surface water was the primary water source allocated. Cutting off a junior water rights holder ensured that a senior water right holder in another location would receive that water within some predictable time frame.

But the centre of the Idaho dispute deals with how the FITFIR doctrine applies in cases where water is derived from both surface water and groundwater sources in the same geographic area. In contrast to the relative ease by which surface water is allocated, the flow dynamics of groundwater and groundwater's relationship to surface water are complex and often not well understood. The nature of the relationship between surface and groundwater depends much on the underground geological formations and the rate of water moving underground is not always predictable. In contrast to situations involving surface water only, a curtailment of groundwater pumping at one location may not result in water availability in a timely manner at another location.

FITFIR and groundwater in Idaho

Idaho began issuing groundwater rights separately from surface water rights in the 1950s. In the 1990s, in response to increasing knowledge of groundwater dynamics, Idaho water managers began to administer groundwater and surface water together. This management method, referred to as conjunctive management (CM), provides water managers with the necessary tools for managing connected surface and groundwater sources within the framework of the underlying doctrine of FITFIR. Conjunctive Management takes into account the complexities involved in allocating connected surface and ground water sources and gave water managers flexibility in applying FITFR.

But controversy arose when senior water rights holders made a formal request to cut off junior water rights holders. Instead of ordering complete curtailment, Idaho's Department of Water Resources (IDWR) ordered juniors to provide seniors with replacement water. Senior licensees, taking the view that ordering replacement water violated the FITFIR doctrine, challenged not only the decision of the IDWR but the legality of the CM Rules. The court ruled that the CM Rules did not violate FITFIR, stating that "[s]omewhere between the absolute right to use a decreed water right and the obligation to protect the public's interest in this valuable commodity lies an area for the exercise of discretion."

This ruling is viewed as a victory for junior groundwater rights holders (as it prevented the wholesale curtailment of their water supply) and a defeat for senior surface water rights holders (as it allowed juniors to continue to receive some water).

But perhaps more importantly, this ruling was significant in that it opens the door for water managers in a FITFIR jurisdiction to consider managing a water scarcity situation from a more flexible standpoint—a standpoint which offers more solutions than are available when a narrow, strict interpretation of the FITFR system is applied.

Significantly, the ruling also stated that while there may be a "...presumption under Idaho law...that the senior is entitled to his decreed water right...there certainly may be some [additional] factors which are relevant to the determination of how much water is actually needed." The recognition of other factors sends a clear message that strict adherence to FITFR can be trumped in other circumstances.

In accordance with the CM Rules, junior groundwater users in Idaho continue to provide replacement water to senior water rights holders and groundwater use has not yet been curtailed. However, the shortage has become so acute that juniors are unable to provide sufficient replacement water under the terms of the plan, which was developed under the Rules. The Director was finally forced to issue an Order for curtailment of groundwater pumping.

In practical terms, the curtailment of juniors would affect 33 000 acres of farmland—equivalent to 25 000 football fields. It would be the largest water-right curtailment order in that state's history. Predicted economic loss amounts to $204.3 million if rights junior to 1949 are curtailed. Curtailing rights junior to 1961 could cost $130 million, with potato and sugarbeet farmers bearing the brunt of the loss.

The July 6^th deadline to turn the groundwater pumps off in Idaho has passed, however, and the IDWR has made the decision not to curtail groundwater pumping this year. The lower District Court in Idaho recognized the irreversible effects of groundwater curtailment by granting this temporary injunction, preventing curtailment until the parties have the opportunity to present their cases, which is to occur on October 10. By granting the injunction the court, in effect, has recognized the shortcoming to a strict application of FITFR. The case is expected to go to the Supreme Court of Idaho where it is likely the FITFIR doctrine will be tested up to the US Supreme Court.

The situation in Idaho may be instructive for the development of drought management plans in Alberta. Despite what appears to be a wet spring, southern Alberta is certainly no stranger to drought. There is now an emerging consensus that groundwater and surface water resources need to be managed together. The Idaho Supreme Court decision recognizes that, given the complexity of surface and groundwater integrations, there are limits to strict application of FITFR and room should be made for alternative methods of management, at least where groundwater is concerned.

Groundwater management and use in Alberta: A review of the FITFR doctrine?

In the midst of the Idaho controversy, Alberta is starting to take a hard look at its groundwater resources. In particular, groundwater is viewed as potentially solving the dual problem of an over-allocation of surface water resources and burgeoning population in southern Alberta. The development of oil sands in northern Alberta and coalbed methane extraction in southern and central Alberta place additional pressures on the province's groundwater resources, both in terms of quantity but also in terms of quality with the potential for contamination from industries including oil and gas, livestock, and agriculture.

Consequently, there is a greater focus on how best to allocate groundwater in Alberta.

Last year, Alberta's Minister of the Environment invited the prestigious Rosenberg International Forum on Water Policy to address the issue of conflict in the management of water resources. The report, released in February 2007, includes a review of groundwater issues in Alberta. Specifically, the Forum was asked "to review the existing arrangements for governing and managing groundwater in the Province and make recommendations about how those arrangements could be further strengthened and improved."

Not surprisingly, one recommendation of the Rosenberg Forum (and no doubt the most controversial one) is a recommendation to employ an alternative method for allocating groundwater than the current FITFIR method.

Specifically, the report stated "evidence suggests that when rights are vested according to this principle [i.e. FITFIR] a system emerges that is hard to manage, encourages waste, is inflexible, and robs future generations of users of their options." The Forum found it "essential that groundwater be treated not as a mere extension of surface water" and further, that if "groundwater is to be effectively governed and managed, institutions will need to be developed that account adequately for the interactions between groundwater and surface water." These comments suggest that some form of conjunctive management of groundwater and surface water be developed in Alberta such as has been done in Idaho. But the report suggests that even FITFR may be too constraining for groundwater allocations.

This recommendation poses not only a strong challenge to the FITFR doctrine but also to what is currently a lack of integrated management between groundwater and surface water. An examination of conjunctive management methods such as those employed in other jurisdictions may be necessary.

Additional specific recommendations of the Rosenberg Forum include better monitoring of groundwater sources and greater use of modeling to predict surface and groundwater interactions; identifying basins subject to more intense use and therefore requiring more immediate management; imposing a term on all groundwater licenses with renewal being subject to a favourable review; redefining what constitutes a groundwater resource; and giving groundwater a higher public profile.

There are no indications as of yet that Alberta Environment has taken formal steps to adopt the recommendations of the report. Some indicators suggest that steps in the right direction are being taken—for example, Alberta Environment initiated the Groundwater Risk Assessment project in September 2006 (GOA 2006).

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Sources and Additional Reading:

Alberta Environment (AENV). 2005. Focus on Groundwater. (Provides a good summary of groundwater and groundwater issues in Alberta).

American Falls Reservoir District No. 2 et al v. Idaho Department of Water Resources et al (2007) Opinion No. 40 filed March 5, 2007 (Supreme Court of the State of Idaho)

Barker, Rocky. July 6, 2007. State cancels water shut off. IdahoStatesman.com.

Christensen, Matt. 2007. "The Consequences of Curtailment: Farms, Factories Brace For Major Hit". Story published at www.magicvalley.com on Sunday, May 06, 2007.

Government of Alberta (GOA). 2005. Water in Alberta.

Government of Alberta (GOA). 2006. Getting Involved: Initiatives.

Government of Alberta (GOA). 2007a. Agriculture and Food:Groundwater Management in Alberta.

Government of Alberta (GOA). 2007b. Advisories and Warnings.

Grant, Douglas L. 1987. The Complexities of Managing Connected Surface and Ground Water Under the Appropriation Doctrine, 22 Land & Water Law Review, 63, 73.

Idaho Department of Water Resources (IDWR). May 23, 2007a. Amended Order Respecting Surface Water Coalition.

Idaho Department of Water Resources (IDWR). 2007b. Surface Coalition Priority Call. (A "document history" that provides the public with all legal documents pertaining to the dispute)

Idaho Department of Water Resources (IDWR). 2007c. Rules for Conjunctive Management of Surface and Ground Water Resources IDAPA 37.03.11

Lemmen, D.S., R.E. Vance, S. A. Wolfe and W.M. Last. 1997. Impacts of future climate change on the Southern Canadian Prairies: A paleoenvironmental perspective. Geoscience Canada. September 1997 Volume 24 Number 3 P. 121-133.

National Ground Water Association (NGWA). An Annotated Bibliography of Selected Ground Water Management Articles and Publications.

POLIS Project on Ecological Governance.

Rosenberg International Forum on Water Policy. 2007 Report of the Rosenberg International Forum to the Ministry of Environment, Province of Alberta. University of California: Berkeley.

The Groundwater Centre. 2007. Groundwater Data Services. (22 years of groundwater data in Alberta, searchable a variety of ways)