Water regulations can be tricky

Alberta farmers do not own the water that sits on their land, whether it is in a puddle, a pothole or a wetland.

That fact surprises many, said wetland specialist and biologist Jay White.

As the principal researcher at Aquality Environmental Consulting, part of his job is to assess the permanence of water and help farmers and others navigate the sometimes choppy seas of regulation.

The Alberta Water Act dictates that the crown owns all water, even if it’s a temporary puddle or pothole that holds water for hours or days or weeks, said White.

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“(Farmers) don’t own the water that’s on their land and they don’t own the land that’s under that water.”

If a farmer chooses to drain a wetland and complaints result, an investigation is required. Depending on the situation, the farmer may be asked to restore the wetland to its former state, pay compensation or create equivalent habitat elsewhere, said White.

Should the farmer refuse those options, it becomes a matter of enforcement, where there are fewer options.

Alberta released its wetlands policy in September 2013 but the directives involving the settled or so-called white zone of the province were released in June 2015. Directives for the unsettled zone, the green zone, are slated to be released in June 2016.

“All the tools should be released by this June for everything, so all the directives, all of the tools that we’re going to be measuring wetland performance on, and values,” said White.

However, the principle of no net loss of wetland area is not part of Alberta’s plan, he added.

In a commentary on wetland policy that was published last year in the National Wetlands Newsletter, White put it this way:

“With losses of up to 70 percent of our white zone (prairie pothole) wetlands in the south, over 300,000 hectares of wetlands in the oil sands and over 90 percent of our wetlands in major urban centres, it is hard to argue with trying to continue to giving lip service to no net loss principles.”

As it affects farmers, there are various complicating factors involving wetlands, among them the fact that different pieces of legislation affect water differently.

For example, those who alter a body of water can be in contravention of both the water act and the public lands act, depending on the type of water body, or body of water, that is involved.

There is a difference between a body of water and a water body, said White.

“That’s my favourite topic,” he said.

A permanent lake or a steadily flowing river is a body of water. A water body could be a puddle, a stream or sometimes, but not always, a wetland.

“Some wetlands are water bodies and some of them, a very small amount, are bodies of water. They’re permanent. So most of our wetlands … are ephemeral. They dry up by August. So they’re not bodies of water, they’re just water bodies.”

Thus consultants like White must apply a test of permanence when dealing with complaints about water. A document released by the government in January gave guidance on that.

Essentially, a water body that is wet in August, in an average year, in seven out of 10 years, can be considered permanent.

If complaints relating to water bodies involve compensation, there is yet another wrinkle.

The area covered by the water is usually bigger than the land under it, said White. That means, for example, that a farmer who has removed a wetland might have to pay compensation for four acres of water loss and two acres of land underneath it that was disturbed.

The goal of Alberta wetlands policy is much less complicated than the rules surrounding it. That goal is to conserve, restore, protect and manage Alberta’s wetlands to sustain the benefits they provide to the environment, society and the economy.

It is also clear that no two situations involving wetlands in Alberta will be alike, said White.

About 70 percent of the wetlands in Alberta’s southern region have been lost.

More information on the provincial wetland policy can be found at www.wetlandpolicy.ca.

Contact barb.glen@producer.com

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