Blog of law articles

(BY HUGO)

A series of very interesting articles (here, here and here - in French) from Louis-Gilles Francoeur in Le Devoir discuss the environmental impacts of current record low flows in Québec rivers, and in particular, outline the importance of environmental flow protection in dam operations.

A doctrinal article on «The Emergence of Environmental Flow Protection in Québec Law» to be published in Les Cahiers de Droit's upcoming special issue on water law details the legal aspects of environmental flow protection in Québec.

In line with Francoeur's reasoning, this article also concludes that Québec water law must address the impacts of dam operations on environmental flows and provide adequate normative guidelines to protect freshwater ecosystems from degradations resulting from unsustainable alterations to surface hydrologic regimes. In particular, the article establishes that the Politique des débits écologiques réservés that aims at protecting aspects of environmental flows in Québec rivers downstream of dams could be improved:

1 - The Politique does not apply to water uses anterior to 1999 and cannot serve to restore aquatic ecosystem quality compromised by an anterior use other than on a voluntary basis;

2 - The Politique's implementation is discretionary, and alterations considered unacceptable under the Politique such as complete river-flow cut-offs are authorised in practice. The economic and technical feasibility exclusion ensures that any type of environmental flow alteration can be authorised, thus significantly reducing the Politique’s effectiveness as a normative instrument;

3 - The Politique focuses exclusively on the provision of water for fish and neglects the effects of flow alteration on other components of the biotic assemblages integral to aquatic ecosystem quality;

4 - Reliance on the principle of compensation for lost habitats in the Politique can lead to the acceptance of important shifts in ecosystem species composition. For example, loss of habitats suitable to species adapted to high flow velocity can be considered acceptable under the Politique because balanced by gains in habitats for species adapted to standing water. However, repetition of such a compensation project after project may homogenise fish biodiversity;

5 - The discrete implementation of the Politique through ad hoc authorisations under various regimes may hinder the capacity to address cumulative impacts on environmental flows and ecosystems. This risk is particularly significant when rivers earmarked for out-of-site habitat compensation are not identified during the authorisation process for specific projects.

As a result, the Government's undertaking in the Québec Water Policy (undertaking 22) to improve environmental flow protection remains essential and must be carried out.