Alberta’s ‘back door’ plan to free up billions of litres of water for coal mines raises alarm

Amid concerns about droughts, selenium pollution, at-risk species and Indigenous consultation, the Alberta government is poised to allow coal companies to undercut a functioning water market

Rachel Herbert is the fourth generation of her family to ranch in the Porcupine Hills. Her kids will be the fifth. The eastern slopes of the Rocky Mountains are visible from the family’s land: rolling prairie carpeted with native grasses where her cattle graze under big Alberta skies. 

The Alberta government’s rescindment of a longstanding coal policy, leaving previously protected lands available to open-pit coal mining, has her concerned about her family’s livelihood. Mines could be tucked just behind Plateau Mountain, not far from the Herbert family ranch.

Among her concerns is the impact coal mines will have on the water supply, both the quality and quantity — for her ranch and for her many neighbours reliant on local rivers and streams for irrigation. It’s especially concerning given the government’s proposal to give coal companies access to some “free” water.

“This is really thirsty country,” Herbert told The Narwhal.

“Most of these areas are already at the extreme limits of the pressures they can take,” she said. “Moving forward with open-pit mining is an unprecedented pressure.”

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Due to droughts and water shortages, the region already faces strict limits on the amount of water users can withdraw. “With climate change there’s no doubt we’re going to get more and more into this situation,” Cheryl Bradley, a retired biologist who has spent much of her career advocating for healthy rivers, told The Narwhal. 

The Alberta government’s decision, in June, to rescind the 1976 coal policy has opened up 420,000 hectares of land classified as Category 2, a designation that had prohibited open-pit coal mining. Much of the area is already covered by coal leases, meaning companies can begin coal exploration and apply to build new open-pit mines.

In January, the Alberta government signalled it had heard the increasingly loud chorus of opposition and cancelled 11 coal leases it had approved in December. But those leases represented a small fraction of the total in the eastern slopes.

Meanwhile, open-pit mining proposals are moving ahead. At least six coal projects are already proposed in the Oldman watershed. 

Rachel Herbert, husband and two kids pose in a field

Rachel Herbert and her family have been ranching in the Porcupine Hills for four generations. Now, she’s concerned how proposed coal mines will impact the local water supply which she and her neighbours all rely on. Photo: Canadian Angus Association

Experts are concerned about impacts on the mountains themselves, Indigenous ways of life, wildlife, at-risk species and — like Herbert — water. 

The issue, according to Lorne Fitch, a retired fish and wildlife biologist with the Alberta government, is “whether or not there is actually enough water in those headwater tributaries to satisfy both coal mines, keep the aquatic environment healthy and also satisfy all downstream water [users].”

But in addition to opening up protected areas to mining, the Alberta government is also proposing a plan that would allow it to give away some water allocations, including in the headwater tributaries of the Oldman River, to coal companies. Under the proposed changes, billions of litres of water could be made available to coal companies — for free. 

And that, experts say, would come at the expense of local communities and wildlife.

Alberta proposes allowing coal companies ‘back door’ access to water 

In Alberta, water users are granted the right to withdraw water from rivers and streams through a licensing system. In some watersheds, including the Oldman, that system is closed. There’s a finite amount of water available, and all of the licences are spoken for.

The issue is not new. A water policy directive created by the Alberta government in 2006 found “limits for water allocations had been reached or exceeded on the Bow, Oldman and South Saskatchewan River sub-basins, putting at risk Alberta’s obligation to provide water to neighbouring provinces and conserve the aquatic ecosystem.”

“What we’ve done is hit the wall in terms of allocating anymore from our rivers,” Bradley told The Narwhal of watersheds in the southwestern corner of the province. 

This has created a water market. As holders of water licences no longer need them, or find ways to reduce their water consumption, those licences can be sold or transferred.

Under this system, coal companies that want to build open-pit mines need to buy water licences. 

But there’s a catch. It’s what Nigel Bankes, a law professor at the University of Calgary, has called the “back door.” And if the Alberta government has its way, coal companies could soon be able to use this back door to access some water rights without going through the water market. 

And it all rests on a legal order created in the wake of the construction of the Oldman dam.

Alberta plans to give coal companies water for ‘free’

The Oldman dam is located just north of the town of Pincher Creek, in the flat, semi-arid prairie east of the Rockies. The water in the Oldman River originates from a series of tributaries in its mountain headwaters — where it serves as important habitat for threatened fish species — and eventually winds its way through agricultural land to the dam and beyond.

When the Oldman dam was built in southwestern Alberta in 1991, a modest reserve of water was allocated to upstream communities through what’s known as the Oldman River Basin Water Allocation Order. The Oldman order set aside 11,000 acre feet annually — 13.6 billion litres, or enough drinking water for 18.5 million people for a year — to be allocated at the discretion of the Minister of Environment and Parks. 

aerial view of oldman dam

The Oldman dam is located just north of the town of Pincher Creek, Alta. Under the current Oldman order, just 1.4 per cent of water is allocated to industry, including for coal operations. Proposed changes would make 80 per cent of allocations potentially available to industry, some of which is currently allocated to other uses. Photo: Russ Heinl / Shutterstock

The idea, explained Cam Gardner, a fourth-generation rancher who has been a councillor for the Municipal District of Ranchlands 20 years, was “to do something for upstream users who would be affected” by the controversial dam. 

Through extensive consultations with upstream communities, he said, it was originally decided all of the water under the Oldman order would be available for irrigation. It was later amended to make about 14 per cent available for other uses, like for towns and recreation, and just over one per cent for industry — namely, coal. 

One coal company, Benga, has already applied for that full amount for one project — to make up a fraction of its total water needs for its proposed mine. 

Then in November, the Alberta government signalled its intention to change the breakdown of which users would be able to access water under the Oldman order.

Under its proposed changes, 80 per cent of the water would now be categorized as available for any use, including industry, at the discretion of the minister. Sixteen per cent of that water had previously been applied for, leaving 64 per cent potentially available to industry.

Under the current Oldman order, almost all water is reserved for irrigation or other uses such as municipal or recreation activities. Source: Alberta Environment and Parks. Chart: Carol Linnitt / The Narwhal

The new proposal from the Alberta government could see the majority of the water under the Oldman order potentially available for industry use. Source: Alberta Environment and Parks. Chart: Carol Linnitt / The Narwhal

The goal, according to a government presentation, is “reducing one of the most significant challenges to economic development — securing water.” 

The government has said its plan “frees up previously reserved water by removing sector-specific limits, allowing expanded economic opportunities.” In other words, according to experts, allowing coal companies to access new sources of water. 

According to the Alberta government, two proposed coal projects have already spoken for 2.5 billion litres of water under the revised Oldman order.

“Virtually every other water user in the basin, if they want additional water, they’ve got to pay for it by buying someone else’s water allocation,” Fitch said. Under the new arrangement, he said, coal companies could receive a water allocation “for free.”

This would undercut the water market, according to University of Calgary law professor Nigel Bankes.

Bankes said coal companies could be granted water licences much like anyone else and be able to sell them once they’re done with them, having only paid processing fees.

In a blog for the University of Calgary’s Faculty of Law, Bankes noted this back door opens up a new avenue for industry to pressure government for water rights in an otherwise-closed system, as the water under the Oldman order can be allocated at the minister’s discretion.

“We’re amending the order really to make it easier for coal companies to acquire water licences,” he told The Narwhal.

It’s what Bankes dubbed a “two-track system for acquiring water rights.”

Oldman River headwater tributaries can’t sustain more withdrawals: experts 

Scientists say there has not been any evaluation of the amount of water that needs to remain in the Oldman River for aquatic health (known as in-stream flow assessments) or of the ability of the headwaters to sustain any more withdrawals.

“Without doing in-stream flow needs assessments on headwater systems, there’s no way that they can predict at this point in time that there’s any surplus of water that could be allocated to coal mining,” Fitch said. 

“This is a wish and a hope and a prayer.”

Experts say the scientific groundwork in the upper tributaries of the Oldman River has not been done, so they are concerned the total amount set aside in the Oldman order is also baseless.

“I think it can almost be thought of as a guesstimate,” Bankes said.

There are substantial concerns about where the water will be withdrawn, too. Smaller mountain tributaries are much more vulnerable to water withdrawals than the prairie setting of the main stem of the Oldman River, where water would have been withdrawn for irrigation, according to experts.

“I think the original understanding … was that water [under the Oldman Order] would be taken out around the [Oldman dam]. And then you would have some water for communities upstream for ranching and agriculture and recreation,” Bradley told The Narwhal.

“There was never any thought that we’d be providing this water [in the headwaters] for a major industry, which not only demands water, but also threatens the quality of our water,” she said.

Proposed coal projects in southern Alberta lie within the Oldman watershed and would draw water from the headwater tributaries to the Oldman River — tributaries that have been previously largely untouched by industry. Map: Carol Linnitt / The Narwhal

Fitch said the water needs of proposed coal projects in the Oldman watershed could amount to three billion litres each year, based on his calculations. That’s a substantial amount to be withdrawing from the headwaters, experts say.

While the Oldman order water is not a huge amount in the grand scheme of things, considering the large volumes used for irrigation in the region, it is a substantial volume if it’s withdrawn from the small fish-bearing tributaries that form the headwaters of the Oldman River, according to Bradley. 

“We were pretty much ignoring the tributaries because we thought they’d always be there,” she said. After all, the land was long protected from open-pit coal mining under the now-rescinded coal policy. 

The Alberta government has signified it intends to reserve some water to protect the ecosystem. Under the proposed changes, 20 per cent of the water under the Oldman order would be “held for fish and the aquatic environment.” 

Fitch, who has been in contact with his former government colleagues, is concerned about how the government came up with that proportion. “That was done without any consultation with the departmental experts … who could have told them whether or not that was a realistic number to allocate for the aquatic environment,” he told The Narwhal. 

The government has not published in-stream flow assessments in the headwater tributaries or any scientific justification for the 20-per-cent figure.

“They just pulled this number out of god-knows-where,” David Mayhood, an independent aquatic ecologist, told The Narwhal. 

“The scientific justification is not there.”

Water flow down nearly 60 per cent in the Oldman River since last century

The Oldman River has already seen decreases in flow over the past century. From 1912 to 2003, researchers found the summer flow had decreased by nearly 60 per cent. Many water licences span back to the last century, when flows were substantially higher.

And the Oldman River isn’t alone. It’s a tributary to the South Saskatchewan River, a major waterway that flows to Saskatchewan and whose waters ultimately end up in the Hudson Bay. Researchers have determined summer flows have reduced by 84 per cent in the South Saskatchewan between 1912 and 2003.

westslope cutthroat trout lying among rocks

The Oldman River is a critical habitat for fish species including the westslope cutthroat trout. Lorne Fitch, a retired fish and wildlife biologist with the Alberta government, says the health of this species is a good indicator of the health of the watershed as a whole. Photo: Vlad Karpinsky / Flickr

Bradley said research done in 2003 in the lower portions of the South Saskatchewan River basin found users should be withdrawing no more than 40 per cent of the natural flow in the Oldman River. That was already being exceeded, Bradley said, so a “compromise” was reached in which 55 per cent of average annual flow could be allocated for use and 45 per cent would be kept in the river.

Bankes called this “a very low minimum flow requirement.” 

And despite that, experts say no equivalent work has been done on the tributaries to the Oldman River — where it all begins and where new coal projects are proposed.

Trout populations a ‘litmus test’ for watershed health

The upper Oldman River is not just used for agriculture, towns, industry and other human uses. It’s also an important habitat for threatened populations of westslope cutthroat trout and bull trout — something biologists like Fitch say is of critical importance.

“Pardon my bias because I’m an old fisheries biologist, but … everything that we do in a watershed runs through and by a fish,” Fitch told The Narwhal. “If fish populations are crashing, I think it’s a litmus test of what we’ve done to the watersheds.” 

Bradley pointed out that much of the habitat for these trout species downstream has already been compromised, leaving the smaller tributaries in the mountain headwaters as an especially important area. 

For Fitch, trout species are something of a canary in a coal mine when it comes to water issues created by … coal mining.

“The health of native trout populations is the gold seal of water quality,” he told The Narwhal. “And when trout populations fail … it should be a strong signal to us that our land management is failing.”

‘Not a compromise situation’ when it comes to threatened species

Mayhood, the aquatic ecologist, is extremely concerned about the effects of coal mining on critical habitat for the at-risk trout species.

“I can say with considerable confidence that there is no way to withdraw water from those headwaters without negatively affecting bull trout and cutthroat trout critical habitat, which would be illegal and subject to very severe penalties under the federal Species at Risk Act,” Mayhood told The Narwhal.

“It’s not a compromise situation. It’s one or the other.”

And, he points out, “on paper, according to the Species at Risk Act, you can’t withdraw water that is a part of the critical habitat for both species,” he said.

Too often, Mayhood said, projects end up making “minor rearrangements” and moving ahead, with serious implications for at-risk species.

Legally binding restrictions on development to protect aquatic ecosystems also exist in the water management plan for the South Saskatchewan River Basin, which could place limits on the way water is allocated under the Oldman order. But that won’t necessarily stop plans from pushing ahead.

“They’re attempting to bulldoze their way ahead,” Mayhood said of the government’s plan.

“And then when you get into court, it’s already a done deal.”

Government failed to consult First Nations on coal policy

According to Bankes, the law professor, the government could face challenges to its proposed changes to the Oldman order, particularly when it comes to First Nations. The Kainai (Blood Tribe), Siksika Nation, Ermineskin Cree Nation and Whitefish (Goodfish) Lake First Nations have already filed court cases about the lack of consultation when the government rescinded the 1976 coal policy.

“There is generally either a duty to consult [First Nations] when making any change in law that may affect rights and interests of Indigenous communities,” he said. That would include the proposed changes to the Oldman order. 

Latasha Calf Robe, a Blood Tribe member and program manager at Mount Royal University, started the Niitsitapi Water Protectors Facebook page when she heard about proposed coal mines upstream of the Blood Reserve. (The Oldman River runs along the northern edge of the reserve.)

She’s concerned community members haven’t been consulted about many of the new developments with coal projects in the region.

“The UCP doesn’t have a very good track record here. They didn’t consult with First Nations before rescinding the 1976 coal policy. And that duty to consult is lawfully owed to First Nations,” she told The Narwhal.

“Large quantities of water are required for these coal development projects, which does kind of trickle downstream, right? The amount of water that will be available is cause for concern,” Calf Robe said. “We don’t know exactly how much will be required for these other coal projects. And that just raises a lot of issues.”

aerial view of open-pit coal mine in B.C.

Critics say the Alberta government failed to consult First Nations when they proposed allowing for the development of open-pit coal mines in the Rocky Mountains’ eastern slopes. These types of mines, also found in B.C.’s Elk Valley, could result in a negative environmental impact that could also directly impact the First Nations in the region. Photo: Callum Gunn

Harley Bastien, a member of the Piikani First Nation who has decades of experience in the environmental field, told The Narwhal coal mines upstream of Oldman River would be “devastating.” (Bastien notes the Old Man River was named after Napi, the Old Man, or Creator, in Blackfoot.)

Upstream coal mines create a “landslide,” he said, sending “everything from selenium to turbidity to silt” into the river.

Bastien is also concerned that when consultation does happen, the process is flawed. In the past, community members haven’t been engaged and decisions by the Chief and council have been “in-house” decisions — much like, he said, the Alberta’s government’s rescinding of the coal policy. 

For Calf Robe, her concerns go beyond what she calls the “behind-closed-door changes” to the Oldman order.

“It’s more than just the impact on water quantity and quality. These [coal projects] raise major concerns about how this will impact the spiritual well-being and cultural well-being of the Blackfoot Confederacy.”

A spokesperson from the Blood Tribe was not available for comment and the Piikani Nation did not respond to The Narwhal’s request for comment by press time.

Water contamination could mean a ‘perfect storm’

Bobbi Lambright, a director with the Livingston Landowners Group and a former senior executive in the energy industry, also lives in the area and has been following the water issue since the coal policy was reversed.

“We’re not one of these universal ‘we hate development’ groups,” she said. But the group has serious concerns about the impact of open-pit coal mining in the headwaters of the Oldman watershed.

Lampright is concerned about the toxic elements released as part of the coal mining process.  “Most people, including ourselves, are very focused on selenium,” she said, noting there are concerns with numerous toxins, including arsenic, copper and lead.

“What we all look to, as kind of the example of what can and will happen is what has happened across the border in British Columbia with the Teck mines,” she said.

For locals like Bobbi Lambright, a director with the Livingston Landowners Group, Teck’s open-pit mines in B.C.’s Elk Valley are a warning of what could be in store for Alberta if the Alberta government allows the same mining techniques to be used in the headwaters of the Oldman watershed. The eastern slopes of the Rocky Mountains were previously off limits to open-pit coal mining. Photo: Callum Gunn

Lampright noted Teck has spent hundreds of millions of dollars trying to sort out its selenium issues to no avail. As The Narwhal has previously reported, the Elk Valley has faced selenium levels at 50 or 100 parts per billion, 10 to 20 times the safe limit for aquatic life set by  the U.S. Environmental Protection Agency.

“That’s what we fear,” Lampright said of the Elk Valley situation.

According to previously unreleased government data obtained by the Canadian Press, selenium levels are already high in Alberta waterways downstream of existing coal mines.

Water contamination has numerous ramifications, not least of which is impacts on irrigation, according to Gardner, the Municipal District of Ranchlands councillor.

Seventy per cent of Canada’s irrigation land is in Southern Alberta,” he said, adding 40 per cent of irrigated land in Alberta is located in the Oldman watershed, “right in the bullseye of this proposed source of heavy metals.”

“It’s a perfect storm,” he said, noting irrigation also has impacts on water quality and there are huge implications for farmers when water quality deteriorates. The region produces everything from canola to sugar beets to wheat to potatoes. 

“I don’t think McCain Foods wants to put ‘french fries with added selenium’ as a selling feature on their packaging,” he said.

Coal mines make stewardship difficult: rancher

Back on her ranch, Herbert tells The Narwhal how she sees ranching as a long-term project. Her family aims to continue stewarding the land for generations to come and for her, coal mining is a major threat to their way of life.

She said her family takes great efforts to protect water resources on their land — from fencing riparian areas to using solar-powered water pumps — and it’s a slap in the face to have open-pit coal mines proposed upstream. 

“To have something like this come through makes all these things look so insignificant,” she said.

“All of us ranchers, we’ve really made a generational commitment to steward the land, and that includes the water that runs through our places,” she said. 

“This kind of massive policy change and a shift in land use is just such a huge blow.”

Updated March 17, 2021, at 9 a.m. MT: This article was updated to reflect the fact that a 2003 report about the South Saskatchewan River basin found users should be withdrawing no more than 40 per cent of the natural flow, not the average annual flow, in the Oldman River. 

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