WATER LICENSING PROGRAM REPORT
Water Licensing Program Interests in
Stephenfield Lake Watershed:
Water Allocation…The Water Licensing Section's
responsibilities relative to the Stephenfield Lake Watershed
Management Plan relate to water allocation. Water allocation
involves the fair and orderly assignment of rights to use and divert
water. The legal instrument to regulate water use in Manitoba is The
Water Rights Act (the Act). The Water Licensing Program is
administered by the Water Licensing Section of the Water Branch,
Manitoba Conservation.
Water allocation more particularly comprises two
interrelated processes. One is establishing and managing water
budgets. The second is assigning portions of the water from
water budgets to individual projects, through water rights licenses.
Water budgets…A water budget is an accounting of
water available in each particular surface water or groundwater
source, for subsequent allocation by water rights licenses for
individual projects. Water budgets describe, for each source,
(a) the total available water flow and annual volume in the water
source during a representative drought year, (b) minimum portions of
the total available water flow and annual volume that are to be
protected for domestic uses (unlicensed) and for minimum stream flows
required to sustain a healthy aquatic stream environment, (c) the
portions of the total available water flow and volume that are already
encumbered for existing licensed use, and (d) the portions of the
total available flow and volume that remain for allocation to water
rights license applicants.
Water rights licenses…A water rights license is a
formal conditional right to divert and use water. The Water
Rights Act provides that the ownership of water and all rights to
divert and use water are vested in the Crown in the Right of Manitoba.
The Act prohibits the construction of works or the use or diversion of
water without a license. The use of water for domestic purposes
is exempt from licensing, as is the construction of a well for water
for domestic purposes. Domestic use is defined as the use of
water at a rate of less than 25,000 liters per day for household and
sanitary purposes, for watering lawns and gardens, and for the
watering of livestock and poultry.
Licensable uses of water, in order of priority as stated in the Act,
are municipal, agricultural, industrial, irrigation, and other uses.
A license does not guarantee that water would always be available in
the amounts and at the times required by the licensee. The Act’s
provisions apply to both surface water and groundwater.
Specific Water Allocation Interests in the
Stephenfield Lake Watershed:
Groundwater Development
As noted previously, the Boyne River’s supply
capacity requires reassessment, and the estimate of remaining capacity
of 140 acre-feet per year therefore needs to be confirmed. Currently
any water that becomes available from attrition of irrigation licenses
is being held by the Province in a reservation for future municipal
uses. Both the Town of Carman's and the Pembina Valley Water
Co-op's municipal water supply projects are fully committed.
Surplus Spring Run-off Water Supply Capacity…Additional
water supply capacity on the Boyne River downstream of Stephenfield
Reservoir can be developed by diverting water from spring flows into
off-channel reservoirs. Some tentative interest has been shown
for developing this type of supply for irrigation projects. The
Water Branch has been allocating water for irrigation from other
intermittent streams in the Red River Valley based on criteria that up
to one-half of the annual volume that is available in eight of ten
years can be allocated. The remaining one-half is protected to
assure sufficient water to provide for minimum instream flow needs.
Based on preliminary estimates, the supply capacity that is available
for allocation from the spring flow budget downstream of Stephenfield
Lake is about 2600 acre-feet per year. Currently, three
irrigation water use applications are on hand for consideration by the
Water Branch. The three projects would extract a total of
approximately 350 acre-feet per year. Assessments are pending
for both the annual spring runoff volumes and minimum instream flow
needs on the Boyne River.
Surface Water Supply/Demand Summary…The
Boyne River’s firm annual supply capacity is currently fully
developed. Reassessments or refinements of available capacity of
the current system are not expected to identify any significant
additional water supply opportunity. Anticipated demand for
irrigation and municipal water supplies for future expansion clearly
exceeds current supply capacity, as no significant further allocations
from the current firm water supply budgets can be accommodated.
Some further limited water development capacity is available by
storing spring runoff in off-channel reservoirs. Nevertheless,
further community water development expansion cannot proceed without
further water source development.
February 24, 2003
R.D. Bodnaruk
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A Brief History of Water Rights
Administration
Followed by Comments about Licensing on the Boyne River
In 1867, Canada
was officially formed as the Dominion of Canada. By 1869, the
Dominion of Canada acquired, from the Hudson Bay Company, the rights,
or jurisdiction, (ownership) of all the lands where the water flowed
into the Hudson's Bay. The lands, essentially what is now the
western provinces, was known as the Northwest Territories.
In 1867, when
Canada was founded, and beyond, any water disputes were usually
settled through the court system under traditional English law, or
"common law". This system of law was introduced to the
Northwest Territories by the
Hudson Bay Company and carried forward by the new Canadian founders.
When it comes to
water law, under precedence through common law, certain privilege is
afforded to riparians (those who live along watercourses).
Riparians have the right to receive water for domestic purposes
"undiminished in quality or quantity", and the right to protect their
property from flooding and the right to drain off standing water from
their property. As Canada in the Northwest Territories began to
develop, re-occurring concerns about riparian rights became an
important issue to the new Canadian government.
The arid climate
of what is now southern Alberta hindered farming progress within this
region. Irrigation, (dams and canals), would have to be
introduced to encourage land settlement. The Canadian government
realized that under common law, riparian rights could hinder
irrigation activity. By about 1895 the Canadian government
claimed ownership of the water within the Northwest Territories,
(under common law there is no ownership). By 1898 Canada
introduced legislation under the "Northwest Irrigation Act", that
essentially indicated that all water in the Northwest Territories is
under the jurisdiction of Canada and any person who intends to divert
and use the water must obtain authority under the Act. This
legislation was intended to allow irrigation water projects in the
arid regions of what is now southern Alberta to proceed without
hindrance under riparian rights, yet in a controlled manner. It
is important to note that when there is a water dispute rules governed
by an Act of legislation is paramount to precedence established under
common law. Thus, The Canadian Northwest Irrigation Act formed
the foundation for administering water activity in an orderly and
regulated manner, and was used by Manitoba to establish Manitoba water
law.
In 1870, when
Manitoba became a Province, the new Provincial governors wanted Canada
to turn over the rights to all the lands within the provincial
boundaries. It took until 1929 for this to occur. In 1929,
Canada turned over to Manitoba, the rights, (ownership), of all
unpatented lands as well as all undeclared mines and minerals, and all
water within the provincial boundaries.
Once Manitoba had
jurisdiction over the water, by 1930, Manitoba took the Canada
Northwest Irrigation Act, and formed it into the Manitoba Water Rights
Act, which established the Province's claim to the ownership of all
water within Manitoba. Since 1930, this Water Rights Act has
been the "law" governing the diversion and use of water in Manitoba.
The administration of The Water Rights Act remained inactive through
the 1930's, 1940's, and 1950's. This inactivity changed about
1958.
Following the 1950
flood, a Royal Commission was established to make recommendations on
flood control. By 1958, the Commission had presented
recommendations, like the construction of the Red River Floodway,
Portage Diversion Channel and the Shellmouth dam. At that time
the Water Branch, then known as the Water Control and Conservation
Branch, was mandated to oversee the flood control activity, as well as
design and construct major drainage works throughout the Red River valley. Along with these flood control water projects, the Branch
was also given the task of design and construction of water treatment
plants for rural communities, (this activity preceded the formation of
the Manitoba Water Services Board). By 1959, with the
undertaking of this water activity, the Water Branch began to actively
administer The Water Rights Act. In 1959, the Act was amended to
provide more up to date water diversion and use development. For
example, the diversion and use of groundwater, (not included in the
1930 Act), was added to the Act.
Through the
1960's, the administration of the Act was performed by one staff
member. This was a time during the 1960's, when the "trial and
error" period of dealing with procedures, rules for granting
authority, license forms, interpretation of the Act, and the like,
were being formulated. During the 1960's licenses to divert and
use water were mostly granted to municipal water projects and some
small irrigation projects along the Assiniboine, Boyne and Red Rivers. By 1972,
applications for license gradually began to increase and a second
staff member was added to administer the Act.
During the 1970's,
licenses consisted mostly of small on farm dam projects constructed
for stock water purposes and for Ducks Unlimited dam projects.
There were some licenses issued for small irrigation projects,
(strawberries, vegetables) and groundwater licenses to use water for
industrial purposes in the City of
Winnipeg. Administration
of the Act during the 1970's, was really marked with a large number of
investigations of flooding and drainage complaints that were viewed as
violations of the Act. The entrance of the 1980's changed the
administration of water rights.
Following dry to
drought years, particularly in 1980, there was a dramatic increase in
the number of applications. By 1981, more staff was added to
attend to the growing number of applications. In the early
1980's, large scale irrigation projects began to develop, particularly
in the Carberry area. The need to develop water rights strategy
to accommodate heavy water users and commitments by the Branch to
"drought proof", (pumping water from the Assiniboine River into the
Elm, and La Salle Rivers and Mill Creek), as well as drainage activity
considered by some to be "out of control" led to the writing of an
entirely new Water Rights Act, which was introduced about 1996 and
proclaimed in 1998.
The new Act was
intended to resolve many issues, such as, clearing up ambiguity viewed
in the "old Act", introduce a vehicle to collect water user fees,
introduce drainage licensing procedures, simplify, or streamline, the
language in the Act, and increase the penalties for violations under
the Act. The introduction of the new Act, followed the dry to
drought years of 1988 and 1989 created considerable strain on water
rights administration.
During the late 1980's and into the early 1990's, potato producers
were advised that irrigation was required in order to obtain, and
retain contracts from processors. This started large scale
irrigation projects at water sources where potato farming is conducive
to the lands (along the Assiniboine, Boyne, La Salle and Elm Rivers,
the Delta-Assiniboine aquifer, and the Red River valley region).
Along with this large scale water use activity, concerns about water
licensing budgets from water sources were being questioned. In
fact, during 1994, 1995, there was a licensing moratorium placed on
issuing licenses along the Assiniboine River, including the
tributaries and the La Salle and Elm Rivers. This moratorium, as
well as other licensing activity "holdups" was required while water
sources were being adjudicated. By the late 1990's, large scale
irrigation projects, usually for potato production, were being
licensed. And, within the early part of 2000, it is evident that
most major water sources are at, or near full allocation, by water
rights license. The Boyne River is one such water source.
Licensing along
the Boyne River
Because the Boyne River was one of the first
watercourses to be attended to in the early 1960's, in the early part
of water rights administration, there is a lengthy history to water
rights activity along the river. From the initial licensing
process, the concern has always been to provide a secure municipal
water source for the Town of Carman. This required that all
licenses, or authorizations, granted to divert and use Boyne River
water for irrigation purposes, contain a clause that essentially
states that the licensee, or grantee, must cease to pump, or divert
water when the flow in the river is at, or below, a specified
elevation tied into the Stephenfield reservoir, or a flow rate along
the river. Since the early part of the 1990's, this situation
has become more acute because there it has become necessary to protect
the additional municipal water user the Pembina Valley Water
Co-operative.
To accomplish the
task of trying to provide a secure municipal water supply, the Water
Branch has for some time, issued one-year authorizations for
irrigation water users with strict conditions, while adjusting
riparian flow to meet water supply demand.
Moreover, the
Branch established a Boyne River advisory board to "oversee" water use
activity along the Boyne River. This board
originally consisted of municipal and Town of Carman representatives,
an irrigator, members at large, and Water Branch representatives.
As time has passed it is my understanding that the board is
non-existing and licensing activity has now evolved to the Boyne River being fully allocated by
long-term water rights licenses.
For
licensing purposes the river is broken up into three reaches, namely,
the Stephenfield dam reservoir, the Boyne River between the dam and
the Town of Carman, (the town's dam at the east end of the Town of
Carman), and between Carman (the town's dam) and the confluence of the
Boyne River with the Norquay floodway channel. Based on these
reaches, the allocation by water rights licenses of Boyne River water
consists of the following:
