Water Rights Regulation

Water Rights Regulation, M.R. 126/87 The Water Rights Act , C.C.S.M. c. W80 Regulation 126/87 Registered April 7, 1987 bilingual version (HTML) Table of Contents Section 1 Definitions 1.1 Wetland classes 2 Form of licences, permits and applications 3 Fees 4 Applying for a licence or permit 4.1 Requirement for licences affecting Class 3 wetlands 5 Term of licence 5.1 When licence or registration not required 6 Term of permit 7 Separate licence for each source diverted 8 Licence holders must keep records of water use 9 Pumping tests required 10 Registrable projects 11 Description of registrable projects 12 General application requirements 13 Additional requirements — Class A projects 14 Additional requirements — Class B projects 15 Additional requirements — Class C projects 16 Additional requirements — Class D projects 17 Additional requirements — Class E projects 18 Additional requirements — Class F projects 19 Additional requirements — Class G projects 20 Duration of registration 21 Construction requirements Schedule A Repealed B Licence fees C Classes of Wetlands D Required Measures for Licences Affecting Class 3 Wetlands INTERPRETATION Definitions 1(1) The following definitions apply in this regulation. "Act" means The Water Rights Act . («  Loi  ») "approved watershed plan" means a watershed management plan that has been approved under The Water Protection Act . (« plan approuvé d'un bassin hydrographique ») "certified engineering technician" and "certified engineering technologist" have the same meaning as in The Certified Applied Science Technologists Act . (« technicien agréé en ingénierie » et « technologue agréé en ingénierie ») "conservation agreement" means an agreement entered into under The Conservation Agreements Act . (« accord de conservation ») "director" means the Director of the Drainage and Water Rights Licensing Branch. (« directeur ») "invert elevation" means the elevation of the lowest point of a culvert or control structure. (« niveau du radier ») "natural prairie level" means the existing level of the ground before any excavation, filling or building work occurs. (« niveau de la prairie naturelle ») "professional engineer" means a person who holds a valid certificate of registration or temporary licence under The Engineering and Geoscientific Professions Act . (« ingénieur ») "registrable project" means a project described in section 11. (« projet admissible ») "soil class" means a class of soil classified using the approach described under the heading "Soil Capability Classification for Agriculture" in The Canada Land Inventory Report No. 2 , published in 1972 by the Government of Canada, Department of the Environment. (« classe de sol ») "urban area" means (a) the City of Winnipeg; (b) a city named in Schedule A of the Municipal Status and Boundaries Regulation , Manitoba Regulation 567/88 R; (c) a town or village named in Schedule B of the Municipal Status and Boundaries Regulation , Manitoba Regulation 567/88 R as that Schedule read on December 31, 2013; (d) a local urban district named in Schedule A or B of the Local Urban Districts Regulation , Manitoba Regulation 174/99; and (e) the Local Government District of Pinawa. (« zone urbaine ») 1(2) The following definitions apply for the purpose of the Act and this regulation. "alter a wetland" means (a) reducing the area of the wetland by changing its natural boundaries; or (b) changing the wetland in a manner that results in a reduction in the wetland's classification. (« modification d'une terre humide ») "enhance a wetland" means (a) increasing the area of the wetland; (b) improving the hydric soil functions, hydrology and vegetation of the wetland or the upland area surrounding the wetland; or (c) providing permanent legal protection to a wetland through a conservation agreement. (« amélioration d'une terre humide ») "restore a wetland" means returning the wetland to a close approximation of its condition before it was drained or otherwise altered. (« restauration d'une terre humide ») M.R. 130/2019 Wetland classes 1.1 For the purposes of this regulation, the classes of wetlands are set out in Schedule C. M.R. 130/2019 LICENCES AND PERMITS 2(1) Every application for a licence or permit under the Act shall be made on a form or in a manner approved by the minister. 2(2) Every licence or permit under the Act shall be issued in a form approved by the minister. M.R. 3/2003 ; 130/2019 3(1) Each fee set out in Schedule B — other than the additional annual fee to divert water — is the application fee payable in respect of the licence described opposite to it. 3(2) Each fee prescribed under subsection (1) in respect of a licence shall be paid by the applicant for the licence upon submitting the licence application, and in the case of a licence to divert water, the additional fee for each year shall be paid by the applicant by January 31 of the next ensuing year. 3(3) No fee is payable under this section in respect of a licence for which application is made by or on behalf of the Government of Manitoba or the Government of Canada. 3(4) No fee paid under this section is refundable unless the refund is authorized by the minister. M.R. 107/90; 167/2013 4(1) An application for a licence or permit under the Act shall include all plans, documents, information and particulars specified in the applicable application form. 4(2) In the case of an application for a licence for water control works, the application must be accompanied by (a) an aerial photograph of the site of the proposed water control works that shows the specific location of each proposed water control work and their drainage area and which also contains a legal description of the parcel of land on which the water control works are to be located; (b) a detailed plan that describes the proposed project and includes design specifications of all water control works associated with the project; (c) if the applicant is not the owner of the land on which the proposed water control works are to be located, written approval from the owner on a form approved by the director; (d) written approval from all landowners whom the applicant has determined may be significantly affected by the proposed water control works; (e) where any other existing or proposed works authorized under the Act are likely to be affected by the proposed water control works, information showing any anticipated effects of the operation of the water control works upon the effectiveness or operation of those other works; (f) information showing any anticipated effects of the operation of the proposed water control works upon irrigation or water supply generally and upon any future development for the purposes of irrigation or water supply generally; (g) certification from the applicant that the proposed water control works (i) are not inconsistent with an approved watershed plan, and (ii) will not violate any restrictions on the use of land that is the subject of a conservation agreement; and (h) such other plans, documents, information and particulars as may be required under subsection (1). 4(3) When an application has been submitted, an officer must inspect or assess the site where the water control works are to be located as well as other lands in the area and review the approvals submitted by the applicant under clause (2)⁠(d). If the officer determines that there are additional landowners whose land may be significantly affected by the proposed water control works who have not submitted an approval, the officer must give the applicant a written notice that identifies those landowners and indicates that the application will not be approved unless those landowners give written approval to the proposed water control works. 4(4) When an applicant receives a notice under subsection (3), the applicant must obtain written approval of the proposed water control works from all landowners specified in the notice and submit those approvals to the officer in order to obtain a licence. R.M. 3/2003 ; 130/2019 Requirement for licences affecting Class 3 wetlands 4.1(1) For the purpose of section 5.1 of the Act, an applicant for a licence that would result in the loss or alteration of a Class 3 wetland must take one of the actions set out in Schedule D. 4.1(2) The action to be taken in Schedule D is in addition to all other applicable requirements of this regulation that must be satisfied in order to obtain a licence. M.R. 130/2019 5(1) Except as provided in subsection (2), a licence shall be for a term determined by the minister, but no term shall exceed 20 years. 5(2) A licence to construct water control works may be issued in perpetuity. 5(3) The holder of a licence may apply for a renewal not more than 365 days and not less than 90 days prior to the expiry of the licence. M.R. 107/90; 3/2003 When licence or registration not required 5.1 A person does not require a licence or registration (a) to construct, establish, operate or maintain water control works that are the subject of a licence issued under The Environment Act ; (b) to construct, establish, operate or maintain water control works in urban areas, as long as those water control works do not drain Class 3, 4 or 5 wetlands or outlet onto areas outside of the urban area; or (c) to replace a culvert with a culvert of the same size, as long as there is no change in invert elevation or the location of the culvert. M.R. 130/2019 6 A permit shall be for a term determined by the minister, but no term shall exceed 12 months. M.R. 107/90 7 A separate licence is required for each stream or other source of water supply from which water is to be diverted. 8 Every holder of a licence under the Act shall keep records of his or her water use on a form approved by the minister. M.R. 3/2003 9 Any applicant for a licence to divert and use ground water shall conduct acquifer pumping tests in accordance with instructions of the department over which the minister presides, as a condition precedent to the issue of the licence. M.R. 3/2003 ; 167/2013 REGISTRABLE PROJECTS Registrable projects 10(1) Subject to subsections (2) and (3), the projects described in section 11 are designated as projects that are eligible for registration under section 4.2 of the Act. 10(2) A proposed project may be registered only if the applicant and the proposed project satisfy all of the applicable requirements set out in sections 12 to 17. 10(3) A proposed project must not be registered if the project (a) would result in the loss or alteration of a Class 3, 4 or 5 wetland; (b) would result in the drainage of Class 6 or 7 soils or unimproved organic soils; (c) would result in the transfer of water between watersheds; (d) would have a negative impact on fish spawning or rearing habitats or would interfere with fish passage; (e) is inconsistent with an approved watershed plan; or (f) would violate any restrictions on the use of land that is the subject of a conservation agreement. M.R. 130/2019 Description of registrable projects 11 The following projects are designated as registrable projects: Class A — minor surface drains construction Construction of surface drains with a depth not exceeding 12 inches below natural prairie level. Class B — agricultural subsurface tile drain construction Construction of subsurface tile drains and all associated water control works that have a drainage coefficient equal to or less than 3/8 inch over a 24-hour period on agricultural lands. Class C — water control works for new crossings Construction of water control works related to new access crossings that do not constrict water flow. Class D — minor culvert changes Replacing an existing culvert with a culvert that does not change the hydraulic capacity of the culvert by more than 15%, as long as there is no change in the invert elevation of the culvert. Class E — water control works involved in wetland restoration or enhancement Construction of water control works that are not higher than natural prairie level and retain less than 25 acre-feet of water that are constructed to restore a wetland or increase the area of an existing wetland. Class F — construction of small dams Construction of dams less than 2.5 m in height that retain less than 25 acre-feet of water. Class G — construction of small dry dams Construction of dams for the purpose of flood control that (a) do not exceed 1 m in height; (b) retain less than 25 acre-feet of water on a temporary basis; and (c) have an outlet that allows for a continuous flow of water. M.R. 130/2019 General application requirements 12(1) An application for registration must (a) be made on a form or in a manner approved by the minister; (b) include all plans, documents, information and particulars specified in the applicable application form; and (c) be accompanied by an application fee of $100, unless the application is made by or on behalf of the Government of Manitoba or the Government of Canada. 12(2) In addition to the applicable requirements set out in sections 13 to 19, every application for registration of a project must include (a) an aerial photograph of the project site that shows the specific location of the project and also contains a legal description of the parcel of land on which the project is located; (b) a detailed plan that describes the proposed project and includes design specifications of all works and water control works associated with the project; (c) if the applicant is not the owner of the land on which the project is located, written approval from the owner on a form approved by the director; (d) if the project will result in the drainage of water onto land owned by another person, (i) written approval from the owner of that land on a form approved by the director, or (ii) written exemption from an officer issued under subsection (3) that confirms that the applicant is not required to obtain the approval required by subclause (i); and (e) certification from the applicant that the proposed project (i) is not inconsistent with an approved watershed plan, (ii) will not result in the loss or alteration of a Class 3, 4 or 5 wetland, and (iii) will not violate any restrictions on the use of land that is the subject of a conservation agreement. 12(3) An officer may exempt an applicant from the requirement to obtain approval from the owner of land under subclause (2)⁠(d)⁠(i) if the officer is satisfied that the proposed project will not have a significant impact on that owner's land or property. M.R. 130/2019 Additional requirements — Class A projects 13 An application for registration of a Class A project must include certification from the applicant that the proposed project will not result in the drainage of Class 6 or 7 soils or unimproved organic soils. M.R. 130/2019 Additional requirements — Class B projects 14 An application for registration of a Class B project must include the following: (a) proof that the proposed project was designed by a person who successfully completed a tile drainage course approved by the minister; (b) a plan of the proposed project, signed by the project designer, that demonstrates the following: (i) the project has a drainage coefficient equal to or less than 3/8 inch over a 24-hour period, (ii) the project is located at least 50 m from the normal edge of a Class 3, 4 or 5 wetland or any other wetland that is the subject of a conservation agreement, (iii) the average depth of all lateral pipe must not exceed 36 inches, (iv) the header pipe is not perforated, (v) all outlets will be equipped with control devices that can control or stop drainage flows out of the tile; and (c) certification from the applicant that the proposed project will not result in the drainage of Class 6 or 7 soils or unimproved organic soils. M.R. 130/2019 Additional requirements — Class C projects 15 The project plan for an application for registration of a Class C project must (a) show the size of the immediate upstream and downstream culverts; and (b) demonstrate that the culvert in the proposed project will (i) be equal in size to the upstream and downstream culverts, or if one of those culverts is a larger size, be equal in size to the larger culvert, and (ii) have its invert elevation at the bottom of the drain. M.R. 130/2019 Additional requirements — Class D projects 16 An application for registration of a Class D project must include a pre-construction topographical survey that shows the location, size and invert elevation of existing culverts. M.R. 130/2019 Additional requirements — Class E projects 17(1) An application for registration of a Class E project must include (a) a pre-construction topographical survey of the site of the proposed water control works that also shows the maximum flooding associated with the water control works; (b) if the water control works will flood land owned by other persons at full supply level, a flood easement or other agreement from those owners consenting to the flooding; (c) written approval from any owner of land immediately downstream of the project whose land would see a reduction in water flow due to the project, unless the applicant has obtained a written exemption from an officer issued under subsection (2). 17(2) An officer may exempt an applicant from the requirement to obtain approval from the owner of land under clause (1)⁠(c) if the officer is satisfied that the proposed project will not have a significant impact on that owner's land or property. M.R. 130/2019 Additional requirements — Class F projects 18(1) An application for registration of a Class F project must include (a) a pre-construction topographical survey of the dam site; (b) a design plan for the dam that is stamped by a professional engineer or signed by a certified engineering technician or certified engineering technologist which (i) confirms that the dam structure and all related water control works are able to safely accommodate a 1:100 year flood event, and (ii) shows the maximum anticipated flooding associated with the dam; (c) if the dam will flood land owned by other persons at full supply level, a flood easement or other agreement from those owners consenting to the flooding; (d) written approval from any owner of land immediately downstream of the dam whose land would see a reduction in water flow due to the operation of the dam, unless the applicant has obtained a written exemption from an officer issued under subsection (2). 18(2) An officer may exempt an applicant from the requirement to obtain approval from the owner of land under clause (1)⁠(d) if the officer is satisfied that the proposed project will not have a significant impact on that owner's land or property. M.R. 130/2019 Additional requirements — Class G projects 19 An application for registration of a Class G project must include (a) a pre-construction topographical survey of the dam site that also shows the maximum flooding associated with the dam; and (b) if the dam will flood land owned by other persons at full supply level, a flood easement or other agreement from those owners consenting to the flooding. M.R. 130/2019 Duration of registration 20 A registration is valid for the period set out in the registration certificate. A registration may be valid in perpetuity. M.R. 130/2019 Construction requirements 21(1) Subject to subsection (2), it is a condition of every registration that the project is constructed in accordance with the plans and design specifications submitted with the application for registration. 21(2) If, during the construction of a subsurface tile drainage project, it becomes apparent that it is not feasible to complete construction of the project in accordance with the design plan submitted with the application, the installer may deviate from the design plan (a) if the project, when completed, will continue to meet the requirements of clause 14(b); and (b) a revised plan of the project as constructed is filed with the registrar. M.R. 130/2019 SCHEDULE A [Repealed] M.R. 107/90; 3/2003 SCHEDULE B LICENCE FEES 1. Licence to construct water control works SCHEDULE C (Section 1.1) CLASSES OF WETLANDS SCHEDULE D (Section 4.1) REQUIRED MEASURES FOR LICENCES AFFECTING CLASS 3 WETLANDS