Of backhoes and water woes: reviewing the breadth of landscaping regulation under the Water Act.

28 Jan Of backhoes and water woes: reviewing the breadth of landscaping regulation under the Water Act.

Of backhoes and water woes: reviewing the breadth of landscaping regulation under the Water Act

We are not all hydrologists or hydrogeologists and this is likely a good thing (otherwise we might all tell jokes like this: “What’s the difference between a truck driver and a hydrologist? One has mud flaps, the other has flood maps.” (anon.))

Landscaping regulation: When it comes to how we dig in the dirt, Alberta’s laws are often not well understood. For example, did you know that you may need a Water Act approval to start moving earth around your land? This is because the Water Act recognizes that what you do to land impacts water and this will often impact your neighbours. (Other laws, such as municipal landscaping bylaws, may also apply but this post focuses on Alberta’s Water Act.)

An approval may be required for an “activity” which includes “removing or disturbing ground, vegetation or other material…in or on any land, water or water body,” that may alter the flow or level of water or change the location or direction of flow of water. (see section 1(1)(b) of the Act for the full definition.)

Approvals are not required for activities otherwise authorized under the Water Act or by way of an exemption in the Water (Ministerial) Regulation (at Schedules 1 & 2). Of interest on the earthmoving front: you can “landscape” your land without an approval unless your activity “…is in or adjacent to a watercourse frequented by fish or in a lake or a wetland, or… it changes the flow or volume of water on an adjacent parcel of land or adversely affects an aquatic environment” (at Schedule 1, s.2(d)).

On its face, the breadth of the phrase “changes the flow or volume of water on an adjacent parcel of land” is significant. The impact of the change of flow need not be adverse, it is merely a change. A change of flow may occur even with minimal intervention on the land itself. The key questions then become “when will the exemption from approvals apply?” and more fundamentally perhaps, “when and how will the government get involved when there is a change in flow to adjacent lands?”

While there is a lack of certainty in these provisions the approach and intent is logical. We don’t want people augmenting how water flows across the landscape as it is likely to impact surrounding property, surrounding hydrology and surrounding ecology. Our inner hydrologists, however, may ponder when and where government intervention might be justified. Are you flooding adjacent lands or depriving someone of riparian rights? If so, you should definitely apply for an approval. What if your landscaping changes water flow in such a way that a neighbours’ wetlands receive less recharge?

A clear answer can’t be provided and yet the government maintains significant powers to remedy these water related issues (which is certainly better than relying on civil suits in the courts).

The Water Act allows the government to issue orders to reclaim and restore land that has been impacted by an activity (with related impacts on water flows) where no violation of the Act has occurred through water management orders (see s.97) and, through enforcement orders (s.135) , where the Director is of the opinion that the Act has been contravened.

Water management orders (WMO) may be issued against someone where there is no need for an approval and the inspector or Director is of the opinion that there is, has been or may be “an adverse effect on the aquatic environment, human health, and property or public safety” resulting from the activity. They can also be issued to “the person responsible for an activity” that may cause a “significant adverse effect on human health, property or public safety.”

A WMO or an enforcement order can be used by government to order the stoppage of an activity and the undertaking of remedial measures.

(See the Government of Alberta compliance enforcement webpage for examples of Water Act enforcement orders, WMOs and environmental protection orders under the Environmental Protection and Enhancement Act.)

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