174 Water
Power Regulation
HER MAJESTY, by and with
the advice and consent of the Legislative Assembly of Alberta, enacts as
follows:
Interpretation
1(1) In this Act,
(a) “abandon”
means, with respect to a water well, to leave unattended or not to maintain for
future use;
(b) “activity”
means
(i) placing, constructing, operating, maintaining, removing or
disturbing works, maintaining, removing or disturbing ground, vegetation or
other material, or carrying out any undertaking, including but not limited to
groundwater exploration, in or on any land, water or water body, that
(A) alters, may alter or may become capable of
altering the flow or level of water, whether temporarily or permanently,
including but not limited to water in a water body, by any means, including
drainage,
(B) changes, may change or may become capable of
changing the location of water or the direction of flow of water, including water
in a water body, by drainage or otherwise,
(C) causes, may cause or may become capable of
causing the siltation of water or the erosion of any bed or shore of a water
body, or
(D) causes, may cause or may become capable of
causing an effect on the aquatic environment;
(ii) altering the flow, direction of flow or level of water or
changing the location of water for the purposes of removing an ice jam,
drainage, flood control, erosion control or channel realignment or for a
similar purpose;
(iii) drilling or reclaiming a water well or borehole;
(iv) anything defined as an activity in the regulations for the
purposes of this Act
but does not include an
activity described in subclause (i) or (ii) that is conducted by a licensee in
a works that is owned by the licensee, unless specified in the regulations;
(c) “adverse
effect” means impairment of or damage to;
(d) “allocation”
means the volume, rate and timing of a diversion of water;
(e) “amend”
includes to change, add to or delete from;
(f) “approval”
means an approval issued under this Act and a deemed approval under this Act;
(g) “approved
water management plan” means a water management plan that is approved under
Part 2;
(h) “aquatic
environment” means the components of the earth related to, living in or located
in or on water or the beds or shores of a water body, including but not limited
to
(i) all organic and inorganic matter, and
(ii) living organisms and their habitat, including fish habitat,
and their interacting
natural systems;
(i) “aquifer”
means an underground water‑bearing formation that is capable of yielding
water;
(j) “conservation”
includes but is not limited to
(i) improved efficiency, recycling, reuse or reduction of wastage or
losses,
(ii) preservation, and
(iii) protection;
(k) “Director”
means an individual designated as a Director for the purposes of all or part of
this Act by the Minister under Part 13;
(l) “disposition”
means with respect to land or an undertaking, a demise, devise, alienation,
transfer or other disposition of the land or undertaking;
(m) “diversion
of water” means
(i) the impoundment, storage, consumption, taking or removal of water
for any purpose, except the taking or removal for the sole purpose of removing
an ice jam, drainage, flood control, erosion control or channel realignment,
and
(ii) any other thing defined as a diversion in the regulations for the
purposes of this Act;
(n) “document”
includes but is not limited to a book, sound recording, videotape, film,
photograph, chart, graph, map, plan, survey, book of account and any other
information that is recorded or stored by any means;
(o) “drill”
means to drill, bore or otherwise make, construct, extend, alter or
recondition;
(p) “driller”
means a person who is authorized under this Act to drill or reclaim a water
well;
(q) “drilling
machine” means a machine that is designed to be used or is used to drill a
water well;
(r) “environment”
means the components of the earth and includes
(i) air, land and water,
(ii) all layers of the atmosphere, and
(iii) all organic and inorganic matter and living organisms,
and the interacting natural
systems that include components referred to in subclauses (i) to (iii);
(s) “Environmental
Appeals Board” means the Environmental Appeals Board established under Part 4
of the Environmental Protection and Enhancement Act;
(t) “farm
unit” means farm unit as defined in the regulations for the purposes of this
Act;
(u) “give
notice” means to give or serve written notice in accordance with section 166;
(v) “groundwater”
means all water under the surface of the ground whether in liquid or solid
state;
(w) “household”
means a household as defined in the regulations for the purposes of this Act;
(x) “household
purposes” means the use of a maximum of 1250 cubic metres of water per year per
household for the purposes of human consumption, sanitation, fire prevention
and watering animals, gardens, lawns and trees;
(y) “household
user” means a person who is entitled to divert water for household purposes, as
described in section 21;
(z) “inactive
water well” means a water well that is not currently being used but is being
maintained for future use;
(aa) “inspector”
means an individual who has been designated as an inspector under Part 13;
(bb) “investigator”
means an individual who has been designated as an investigator under Part 13;
(cc) “irrigation
district” means an irrigation district as defined in the Irrigation Districts Act;
(dd) “licence”
means a licence issued under this Act and includes a renewed licence and a
deemed licence under this Act;
(ee) “local
authority” means
(i) the corporation of a city, town, village, summer village,
municipal district or specialized municipality,
(ii) in the case of a special area, the Minister responsible for the Special Areas Act or the Special Areas
Board,
(iii) in the case of an improvement district, the Minister responsible
for the Municipal Government Act or
the council of the improvement district,
(iv) a settlement under the Metis
Settlements Act,
(v) a regional services commission established under the Municipal Government Act,
(vi) the board of directors of an irrigation district within the
meaning of the Irrigation Districts Act,
(vii) the board of trustees of a drainage district within the meaning
of the Drainage Districts Act,
(viii) the regional health authority under the Regional Health Authorities Act, and
(ix) any other entity defined as a local authority in the regulations
for the purposes of this Act;
(ff) “major
river basin” means
(i) the Peace/Slave River Basin,
(ii) the Athabasca River Basin,
(iii) the North Saskatchewan River Basin,
(iv) the South Saskatchewan River Basin,
(v) the Milk River Basin,
(vi) the Beaver River Basin, and
(vii) the Hay River Basin,
with boundaries as
specified in the regulations;
(gg) “Minister”
means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for this
Act;
(hh) “operation
of a works” means the operation of a works for the diversion of water;
(ii) “parcel
of land” means
(i) the aggregate of one or more areas of land, as defined in the Land Titles Act, described in a
certificate of title or by reference to a plan filed or registered in a land
titles office,
(ii) in respect of patented land as defined in the Metis Settlements Act, the aggregate of
one or more areas of land described in a register in the Metis Settlements Land
Registry for the Metis title in the land or by reference to a plan filed in the
Metis Settlements Land Registry, and
(iii) an area of unpatented land considered appropriate by the
Director;
(jj) “peace
officer” means a peace officer as defined in the Police Act;
(kk) “person
responsible” means a person responsible within the meaning of the regulations;
(ll) “pesticide”
means
(i) a substance that is intended, sold or represented for use in
preventing, destroying, repelling or mitigating any insect, nematode, rodent,
predatory animal, parasite, bacteria, fungus, weed or other form of plant or
animal life or virus except a virus, parasite, bacteria or fungus in living
people or animals,
(ii) any substance that is a pest control product within the meaning
of the Pest Control Products Act
(Canada) or is intended for use as such a pest control product,
(iii) any substance that is a plant growth regulator, a defoliant or a
plant desiccant,
(iv) a fertilizer within the meaning of the Fertilizers Act (Canada) that contains a substance referred to in
subclause (i), (ii) or (iii), and
(v) any other substance designated as a pesticide in the Environmental Protection and Enhancement Act
or regulations made under that Act,
but does not include a
substance that is intended, sold or represented for use in potable water to
prevent or destroy bacteria, parasites or viruses if the substance is not a
pest control product within the meaning of the Pest Control Products Act (Canada);
(mm) “place”
includes but is not limited to any land, water, water body, building,
structure, machine, aircraft, vehicle or vessel, whether above or below the
ground;
(nn) “predecessor
Act” means the Water Resources Act,
RSA 1980 cW‑5, Irrigation Act (Canada),
RSC 1927 c104, Dominion Lands Act
(Canada), RSC 1927 c113 or Dominion Water
Power Act (Canada), RSC 1927 c210;
(oo) “preliminary
certificate” means a preliminary certificate issued under Part 4 and anything
deemed to be a preliminary certificate under this Act;
(pp) “priority
number” means
(i) with respect to a licence issued under this Act or a registration
effected under this Act, the number that has been assigned to that licence or
registration in accordance with this Act, and
(ii) with respect to an authority or licence under a predecessor Act
that is a deemed licence under this Act, the number described in Part 3;
(qq) “private
dwelling place” means a place or part of a place that is used as a permanent or
temporary dwelling place;
(rr) “problem
water well” means a problem water well as defined in the regulations for the
purposes of this Act;
(ss) “proponent”
means a person, a local authority, the Government, a Government agency, a
government of another jurisdiction or an agency of that government that
undertakes
(i) a proposed activity,
(ii) a proposed diversion of water, or
(iii) a proposed operation of works for the diversion of water;
(tt) “proposed
activity” means
(i) a planned activity that has not been commenced,
(ii) an activity that is being carried on and for which an approval is
required but has not been obtained, or
(iii) a change to an activity if the change
(A) is one to which section 42(1) applies,
(B) is one to which section 42(4) or (5) does
not apply, and
(C) is, in the opinion of the Director, of a
substantial nature;
(uu) “proposed
diversion of water” means
(i) a planned diversion of water that has not been commenced,
(ii) a diversion of water that is being carried on and for which a
licence, other than a renewal, is required but has not been obtained, or
(iii) a change to a diversion of water if the change
(A) is one to which section 54(1) and (2) apply,
(B) is one to which section 54(4) or (5) does
not apply, and
(C) is, in the opinion of the Director, of a
substantial nature;
(vv) “proposed
operation of a works for the diversion of water” means
(i) a planned operation of a works that has not been commenced,
(ii) an operation of a works that is being carried on and for which a
licence, other than a renewal, is required but has not been obtained, or
(iii) a change to an operation of a works if the change
(A) is one to which section 54(1) and (2) apply,
(B) is one to which section 54(4) or (5) does
not apply, and
(C) is, in the opinion of the Director, of a
substantial nature;
(ww) “reclamation”
means reclamation as defined in the regulations for the purposes of this Act;
(xx) “recondition”
means to flush, clean, recase, reline, rescreen or redevelop an existing water
well by a machine to improve the water production or quality of water produced
by the water well;
(yy) “registrant”
means a person who holds a registration;
(zz) “registration”
means a registration effected under this Act;
(aaa) “search
warrant” means a search warrant pursuant to the Provincial Offences Procedure Act;
(bbb) “statement
of concern” means a statement of concern made under Part 8;
(ccc) “traditional
agriculture user” means a person who is entitled to divert water pursuant to
section 24;
(ddd) “undertaking”
means a project that is established, proposed to be established, required to be
established or carried on pursuant to this Act by any person and that is
related to
(i) an activity, diversion of water or operation of a works, and
(ii) anything that is defined as an undertaking in the regulations for
the purposes of this Act;
(eee) “vehicle”
means a device in, on or by which a person or thing may be transported or
drawn;
(fff) “water”
means all water on or under the surface of the ground, whether in liquid or
solid state;
(ggg) “water
body” means any location where water flows or is present, whether or not the
flow or the presence of water is continuous, intermittent or occurs only during
a flood, and includes but is not limited to wetlands and aquifers but does not
include except for clause (nn) and section 99 “water body” that is part of an
irrigation works if the irrigation works is subject to a licence and the
irrigation works is owned by the licensee, unless the regulations specify that
the location is included in the definition of water body;
(hhh) “water
conservation objective” means the amount and quality of water established by
the Director under Part 2, based on information available to the Director, to
be necessary for the
(i) protection of a natural water body or its aquatic environment, or
any part of them,
(ii) protection of tourism, recreational, transportation or waste
assimilation uses of water, or
(iii) management of fish or wildlife,
and may include water
necessary for the rate of flow of water or water level requirements;
(iii) “water
guideline” means a water guideline established by the Minister under Part 2;
(jjj) “water
management plan” means a plan with respect to conservation and management of
water developed under Part 2;
(kkk) “water
well” means an opening in the ground, whether drilled or altered from its
natural state, that is used for
(i) the production of groundwater for any purpose,
(ii) obtaining data on groundwater, or
(iii) recharging an underground formation from which groundwater can be
recovered,
and includes any related
equipment, buildings, structures and appurtenances;
(lll) “water‑power
development” means the works required for the storage or diversion of water for
the production of power;
(mmm) “works”
means any structure, device or contrivance made by persons, or part of it,
including a dam and canal, and
(i) land associated with it, and
(ii) mitigative measures associated with it,
and includes anything that
is defined as a works in the regulations for the purposes of this Act.
(2) In
this Act, a reference to “this Act” includes the regulations made under this
Act.
(3) In this Act, a reference to the owner of land
or to the owner of the fee simple in land means, in the case of land that is
patented land as defined in the Metis
Settlements Act, the owner of the Metis title in the land.
RSA 2000 cW‑3
s1;2003 c42 s6
Purpose of Act
2 The purpose of this Act is to support and
promote the conservation and management of water, including the wise allocation
and use of water, while recognizing
(a) the
need to manage and conserve water resources to sustain our environment and to
ensure a healthy environment and high quality of life in the present and the
future;
(b) the
need for Alberta’s economic growth and prosperity;
(c) the
need for an integrated approach and comprehensive, flexible administration and
management systems based on sound planning, regulatory actions and market
forces;
(d) the
shared responsibility of all residents of Alberta for the conservation and wise
use of water and their role in providing advice with respect to water
management planning and decision‑making;
(e) the
importance of working co‑operatively with the governments of other
jurisdictions with respect to trans‑boundary water management;
(f) the important role of comprehensive and
responsive action in administering this Act.
1996 cW‑3.5 s2
Water vested in Crown
3(1) In this section, “use” includes but is not
limited to use for the purposes of drainage, flood control, erosion control and
channel realignment.
(2) The property in and the right to the diversion
and use of all water in the Province is vested in Her Majesty in right of
Alberta except as provided for in the regulations.
1996 cW‑3.5 s3
Crown is bound
4 The Crown is bound by this
Act.
1996 cW‑3.5 s4
Part 1
Consultation
Referral if EPEA
applicable
5(1) If the Director is of the opinion that an
activity, diversion of water or operation of a works requires an approval under
the Environmental Protection and
Enhancement Act, the Director
(a) must
refer the activity, diversion of water or operation of a works for review, and
(b) may
make any recommendations that the Director considers appropriate,
to a Director under
the Environmental Protection and
Enhancement Act.
(2) A
referral may be made under subsection (1) whether or not
(a) an
approval has been or may be issued,
(b) a
preliminary certificate or licence has been or may be issued, or a registration
has been effected, with respect to the diversion of water or the operation of a
works, or
(c) a term or condition of a preliminary
certificate or licence applies to the diversion of water or the operation of a
works.
1996 cW‑3.5 s5
Agreements
6(1) Subject to the Government Organization Act, the Minister may enter into agreements
containing any terms and conditions, including but not limited to provisions
for sharing of costs, with
(a) a
person,
(b) a
local authority,
(c) a
Government agency, or
(d) the
government or a government agency of another jurisdiction,
with respect to any or
all of the subjects referred to in subsection (2).
(2) An
agreement under subsection (1) may be made with respect to
(a) any
matter pertaining to the conservation and management of water, including but
not limited to the supply and control of water,
(b) water‑power
development,
(c) the
use, operation, maintenance, repair, control, replacement or removal of works,
(d) flood
control and management,
(e) trans‑boundary
water, and
(f) any other matter related to the
administration of this Act.
1996 cW‑3.5 s6
Part 2
Planning and Environmental Assessment
Division 1
Planning
Provincial planning
framework
7(1) The Minister must establish a framework for
water management planning for the Province by December 31, 2001.
(2) The
framework for water management planning must include a strategy for the
protection of the aquatic environment, as described in section 8, and may
include
(a) water
management principles,
(b) the
geographical limits or boundaries within which water management planning is to
be carried out in the Province, including limits or boundaries for the
development of strategic and operational plans,
(c) criteria
for establishing the order in which water management plans are to be developed,
(d) an
outline of the processes for developing, implementing, reviewing and revising
water management plans, including opportunities for local and regional
involvement,
(e) matters
relating to integration of water management planning with land and other
resources, and
(f) matters
relating to the development of water conservation objectives.
(3) The Minister must, in a form and manner that
the Minister considers appropriate, consult with the public during the
development of the framework for water management planning.
1996 cW‑3.5 s7
Aquatic environment
protection strategy
8(1) In this section, “biological diversity” means
the variability among living organisms and the ecological complexes of which
they are a part, and includes diversity within and between species and
ecosystems.
(2) The
Minister must establish a strategy for the protection of the aquatic
environment as part of the framework for water management planning for the
Province.
(3) The
strategy referred to in subsection (2) may include
(a) identification
of criteria to determine the order in which water bodies or classes of water
bodies are to be dealt with,
(b) guidelines
for establishing water conservation objectives,
(c) matters
relating to the protection of biological diversity, and
(d) guidelines
and mechanisms for implementing the strategy.
(4) The Minister must, in a form and manner that
the Minister considers appropriate, consult with the public during the development
of the strategy.
1996 cW‑3.5 s8
Water management plans
9(1) The Minister may require a water management
plan to be developed by the Director or another person.
(2) The
Director or other person developing a water management plan
(a) may
adopt an integrated approach to planning with respect to water, land and other
resources;
(b) may
co‑operate with
(i) any persons,
(ii) local authorities,
(iii) Government agencies and other Government departments, and
(iv) the governments and government agencies of other jurisdictions;
(c) may,
with the consent of the Minister, carry out any studies that the Director or
other person considers appropriate;
(d) may
consider any information, documents or other water and land management plans;
(e) must
follow the framework for water management planning established under this
Division;
(f) must engage in public consultation that the
Minister considers appropriate during the development of the water management
plan.
1996 cW‑3.5 s9
Water management
planning areas
10 The Minister may establish
water management planning areas for the purpose of developing or implementing a
water management plan or approved water management plan.
1996 cW‑3.5 s10
Approved water
management plans
11(1) The Lieutenant Governor in Council may approve
a water management plan or part of a water management plan, subject to any
terms and conditions that the Lieutenant Governor in Council considers
appropriate.
(2) Notwithstanding
subsection (1), the Lieutenant Governor in Council may authorize the Minister
to approve a water management plan or part of a water management plan with
respect to an area of the Province, subject to the conditions that the Minister
considers appropriate.
(3) A
water management plan that has been approved under this section is an approved
water management plan and
(a) must
include
(i) a summary of the issues considered in the water management plan,
(ii) a description of the area of the Province to which all or part of
the water management plan applies,
(iii) a summary of the recommendations of the Minister, and
(iv) the matters or factors that must be considered in deciding
whether
(A) to issue an approval, preliminary
certificate or licence or effect a registration, or
(B) to approve a transfer of an allocation of
water under a licence,
in the area of the Province
to which the approved water management plan applies, and
(b) may
include
(i) the number of households permitted on a parcel of land for the
purposes of section 21,
(ii) authorization of the ability to transfer an allocation of water
under a licence,
(iii) authorization of the ability to withhold water under section 83,
and
(iv) a provision on the maximum amount of water that may be diverted
under a registration.
(4) The Regulations
Act does not apply to an approval of a water management plan under this
section or to an amendment of an approved water management plan or its
cancellation under section 12.
1996 cW‑3.5 s11
Amend, cancel approved
plan
12(1) The Lieutenant Governor in Council may amend an
approved water management plan or cancel the approval of an approved water
management plan.
(2) Notwithstanding
subsection (1), the Lieutenant Governor in Council may authorize the Minister
to amend an approved water management plan or cancel the approval of an
approved water management plan.
(3) Notwithstanding
subsections (1) and (2), the Director may amend an approved water management
plan in order to
(a) correct
a clerical error, or
(b) make
minor amendments that, in the opinion of the Director, do not affect the
substance of the approved water management plan.
(4) If the approval of an approved water management
plan has been cancelled, the Director is not required to consider the cancelled
plan when making decisions under this Act.
1996 cW‑3.5 s12
Notice of approved plan
13 The Director must provide notice, in
accordance with the regulations, of
(a) the
approval of a water management plan,
(b) the
amendment of an approved water management plan by the Minister, and
(c) the cancellation of an approval of an
approved water management plan.
1996 cW‑3.5 s13
Water guidelines
14(1) The Minister may establish water guidelines.
(2) The Regulations
Act does not apply to water guidelines.
1996 cW‑3.5 s14
Water conservation
objectives
15(1) The Director may establish water conservation
objectives.
(2) The
Director must engage in public consultation that the Director considers
appropriate during the establishment of a water conservation objective.
(3) Information on a water conservation objective
established by the Director must be made available to the public in a form and
manner satisfactory to the Director.
1996 cW‑3.5 s15
Division 2
Environmental Assessment Process
Environmental assessment
requirements
16(1) Unless the regulations provide otherwise, the
Director may not issue or amend an approval, preliminary certificate or licence
or approve a transfer of an allocation of water under a licence if the Director
is of the opinion that Part 2, Division 1 of the Environmental Protection and Enhancement Act, if applicable, has
not been complied with.
(2) Notwithstanding subsection (1), the Director
may issue an approval, preliminary certificate or licence to enable a proponent
to comply with Part 2, Division 1 of the Environmental
Protection and Enhancement Act.
1996 cW‑3.5 s16
Ministerial orders
17 If the designated Director under the Environmental Protection and Enhancement Act
submits an environmental impact assessment report to the Minister, the Minister
may advise the proponent,
(a) if
an application has not already been made, that the proponent may apply for an
approval, licence or transfer of an allocation under a licence or an amendment
to an approval or licence, or
(b) if
an application has been made, that the application may proceed under this Act
unless the Minister has made an order under section 34.
1996 cW‑3.5 s17
Part 3
Right to Divert and Priority of Rights
Division 1
Right to Divert Water
Existing diversion
rights
18(1) Every authority or licence other than a
temporary authority, agreement, permit, interim licence, updated and reissued
interim licence and supplementary interim licence, granted under a predecessor
Act that on January 1, 1999 authorizes the diversion of water, is a deemed
licence that has a priority number that corresponds to the priority number of
the original authority or licence.
(2) A
person who holds a deemed licence under this section may continue to exercise
the right to divert water in accordance with
(a) the
priority number of the deemed licence, and
(b) the
terms and conditions of the deemed licence and this Act, and if a term or
condition of the deemed licence is inconsistent with this Act, that term or
condition prevails over this Act.
(3) Every
temporary authority granted under a predecessor Act that on January 1, 1999
authorizes the diversion of water may, by order of the Minister, be a deemed
approval or deemed licence under this Act.
(4) A
temporary permit, permission for temporary diversion and interim licence,
including an updated and reissued interim licence and supplementary interim
licence, granted under a predecessor Act that on January 1, 1999 authorizes the
diversion of water may, by order of the Minister, be
(a) a
deemed approval, deemed preliminary
certificate or deemed licence under this Act, or
(b) a
deemed approval as well as a deemed preliminary certificate or deemed licence
under this Act.
(5) A
temporary permit, permission for temporary diversion or interim licence that is
(a) a
deemed licence under subsection (4) has a priority number that corresponds to
the priority number of the original permit, permission or licence, or
(b) a
deemed preliminary certificate under subsection (4) has a number that
corresponds to the priority number of the original permit, permission or licence.
(6) Subject
to subsection (2)(b), a deemed approval, preliminary certificate and licence
under this section are subject to this Act.
(7) For
the purposes of this Act, an updated and reissued interim licence or
supplementary interim licence
(a) is
deemed to be a valid and subsisting interim licence under the Water Resources Act, RSA 1980 cW‑5,
(b) supersedes
any previous interim licence that it replaced, and
(c) may be treated as an interim licence for the
purposes of this section.
1996 cW‑3.5 s18
Exempted agriculture
user
19(1) A person who
(a) on
January 1, 1999 owns or occupies land that adjoins a river, stream, lake,
natural watercourse or other natural water body or land under which groundwater
exists, and
(b) on
or before January 1, 1999 diverts water from a source referred to in clause (a)
for the purpose of raising animals or applying pesticides to crops, as part of
a farm unit,
may continue to divert
up to 6250 cubic metres per year or the maximum specified in an approved water
management plan, whichever is greater, from the sources described in clause (a)
for the purposes described in clause (b) without an approval, licence or
registration for the diversion of the water as long as the person owns or
occupies the land, but the person has no priority under this Act unless an
approval or licence has been issued or a registration effected with respect to
that diversion.
(2) A
person who diverts water in accordance with subsection (1) may, without an
approval, licence or registration, pump or otherwise convey water to the point
of use for the purposes described in subsection (1) on the land that adjoins
the source of water, or to an adjacent parcel of land owned by that person if
both lands form part of the same farm unit.
(3) A person who is entitled to divert water both
under subsection (1) and under section 21 is entitled to divert the water under
subsection (1) as an additional amount of water.
1996 cW‑3.5 s19
Activities continued
20(1) Every authority or licence, other than a
temporary authority, agreement, permit, interim licence, an updated and
reissued interim licence and a supplementary interim licence, granted under a
predecessor Act that on January 1, 1999 authorizes the drainage, flood control,
erosion control, channel realignment or other similar matters, is a deemed
approval under this Act that does not have a priority number.
(2) Every
permit granted under a predecessor Act that on January 1, 1999 authorizes an
activity
(a) in
the case of a permit, including an exploration permit, that was issued for a
specified period of time, continues as a permit, and the Water Resources Act, RSA 1980 cW‑5, continues to apply to
that permit as if that Act were still in force, and
(b) in
the case of a permit that does not have an expiry date, is deemed to be an
approval under this Act that expires on December 31, 1999.
(3) A deemed approval under this section is subject
to this Act.
1996 cW‑3.5 s20
Household purposes
21(1) Subject to subsection (3) and section 23 and
any exemptions specified in the regulations, a person who owns or occupies land
that adjoins a river, stream, lake, natural watercourse or other natural water
body
(a) has
the right to commence and continue the diversion of the water that adjoins that
land for household purposes, whether or not that water is reserved under
section 35, and
(b) may
not obtain a licence for the diversion of water that adjoins that land for
household purposes.
(2) Subject
to subsection (3) and section 23 and any exemptions specified in the regulations,
a person who owns or occupies land under which groundwater exists
(a) has
the right to commence and continue the diversion of the groundwater for
household purposes, and
(b) may
not obtain a licence for the diversion of the groundwater for household
purposes.
(3) The
number of households on a parcel of land for the purposes of this section is
limited to
(a) the
number permitted under an applicable approved water management plan, or
(b) if
there is no applicable approved water management plan, the number permitted by
an order of the Minister.
(4) A person who diverts water under subsection (1)
or (2) may, without an approval, licence or registration, pump or otherwise
convey water to the point of use for household purposes.
1996 cW‑3.5 s21
Riparian owner or
occupant
22(1) Notwithstanding the common law, a riparian
owner, riparian occupant or person who owns or occupies land under which
groundwater exists has the right to divert water only in accordance with
section 21 and may not divert water for any other purpose unless authorized by
this Act or under an approval, licence or registration.
(2) A
person described in subsection (1) may commence an action with respect to a
diversion of water only in respect of a diversion of water that is not authorized
by this Act or under an approval, licence or registration.
(3) Nothing in this Act is to be construed so as to
repeal, remove or reduce any rights held at common law by a riparian owner or
occupant of land or by a person who owns or occupies land under which
groundwater exists, other than the right to the continued flow or diversion of
water.
1996 cW‑3.5 s22
Household diversions
23(1) If the Director is of the opinion that there is
or may be a significant adverse effect on the aquatic environment or on a
licensee or traditional agriculture user resulting from a diversion of water
pursuant to section 21, the Director may, subject to the regulations,
(a) issue
a water management order under section 97, and
(b) declare
that a person described in section 21 who did not divert water as described in
section 21 prior to the date of the declaration may not, as of the date of the
declaration, divert water as described in section 21 from a source of water
specified in the declaration or from any sources of water within the water
management area specified in the declaration.
(2) The
Director must provide notice of a declaration in a form and manner satisfactory
to the Director.
(3) If,
on or after January 1, 1999, a subdivision of land of a type or class of subdivision
specified in the regulations is approved under the Municipal Government Act, a person residing within that subdivision
on a parcel of land that adjoins or is above a source of water described in
section 21 has the right to commence and continue the diversion of water under
section 21 only if
(a) a
report certified by a professional engineer, professional geologist or
professional geophysicist, as defined in the Engineering, Geological and Geophysical Professions Act, was
submitted to the subdivision authority as part of the application for the
subdivision under the Municipal
Government Act, and the report states that the diversion of 1250 cubic
metres of water per year for household purposes under section 21 for each of
the households within the subdivision will not interfere with any household
users, licensees or traditional agriculture users who exist when the
subdivision is approved, and
(b) the
diversion of water for each of the households within the subdivision under
section 21 is not inconsistent with an applicable approved water management
plan.
(4) Notwithstanding
subsection (3), a person residing within a subdivision as described in
subsection (3) has the right to commence and continue the diversion of water
under section 21 if
(a) the
written consent of the subdivision authority is provided to the Director,
(b) the
Director is of the opinion that there are or were extenuating circumstances
with respect to the submission of the report under subsection (3), and
(c) the Director has approved in writing the
right to divert under section 21.
1996 cW‑3.5 s23
Traditional agriculture
user
24(1) A person who owns or occupies land
(a) to
which a registration is appurtenant, and
(b) that
adjoins a river, stream, lake, natural watercourse or other natural water body,
or under which groundwater exists,
has the right to
commence and continue the diversion of water from the sources authorized in the
registration for the purpose of raising animals or applying pesticides to
crops, as part of a farm unit, as authorized by the registration.
(2) A person who diverts water in accordance with
subsection (1) may, without an approval or licence, pump or otherwise convey
water to the point of use on the land that adjoins the source of water, or to
an adjacent parcel of land owned by that person if both parcels form part of
the same farm unit.
1996 cW‑3.5 s24
Combined diversions
25 A person who is entitled to
divert water both under section 21 and under section 24 is entitled to divert
the water under section 24 as an additional amount of water.
1996 cW‑3.5 s25
Diversion under approval
or licence
26 A person has the right to
commence and continue the diversion of water in accordance with the terms and
conditions of a licence issued under this Act, or an approval, in good standing
held by that person.
1996 cW‑3.5 s26
Division 2
Priority of Rights
Priority of household
user
27 A person who diverts water pursuant to
section 21
(a) does
not have priority with respect to another person who is diverting water
pursuant to section 21, but
(b) has
priority over a person who is entitled to divert water
(i) pursuant to an approval, licence or registration, or
(ii) that is authorized under this Act other than
pursuant to section 21.
1996 cW‑3.5 s27
Registration priority
numbers
28 If in the opinion of the
Director an applicant for a registration complies with this Act, the Director
must assign a priority number to the registration that corresponds to the first
known date of diversion of water but no earlier than July 1, 1894, for the
purpose of raising animals or applying pesticides to crops from the sources of
water on the land specified in the application for registration.
1996 cW‑3.5 s28
Licence priority numbers
29(1) Subject to this section and sections 34, 35 and
82(7)(b), on receiving applications for licences that, in the opinion of the
Director, are complete and comply with this Act, the Director must assign
numbers to the applications in consecutive order that correspond to the date
and time that the Director received the complete applications.
(2) On
receiving an application for a licence under section 51(2) that, in the opinion
of the Director, is complete and complies with this Act,
(a) with
respect to a water conservation objective described in section 1(1)(hhh)(ii),
the Director must, subject to section 35(2)(b), assign a number to the
application that corresponds to the date and time that the Director received
the complete application,
(b) with
respect to a water conservation objective described in section 1(1)(hhh)(i) or
(iii)
(i) within 5 years after the date this Act comes into force, or
(ii) at any time, with respect to water that has been reserved under
section 35, within 5 years after the date this Act comes into force,
the Director must assign a
number to the application that corresponds to the date and time this Act comes
into force, and
(c) with
respect to a water conservation objective described in section 1(1)(hhh)(i) or
(iii), but not within the dates described in clause (b), the Director must
assign a number to the application that corresponds to the date and time that
the Director received the complete application.
(3) The
Director may correct an error with respect to a number assigned to a complete
application for a licence or with respect to a priority number assigned to a
licence.
(4) A number assigned to an application for a
licence described in subsection (1) or (2) must be assigned to the licence that
is issued under section 51 pursuant to that application, and that number is the
priority number of the licence.
1996 cW‑3.5 s29
Priorities
30(1) Licensees and traditional agriculture users
have priority among themselves according to the priority number that has been
assigned to the licence or registration.
(2) A licensee or traditional agriculture user
diverting water pursuant to a licence or registration that has a numerically
lower priority number is entitled to divert the whole allocation of water
specified under the licence or registration before a licensee or traditional
agriculture user has any right to divert water pursuant to a licence or
registration that has a numerically higher priority number.
1996 cW‑3.5 s30
Works limit diversion
right
31(1) When a licensee’s or traditional agriculture
user’s works is not of sufficient capacity to carry the diversion of water to
which the licensee or traditional agriculture user is entitled under the terms
and conditions of the licence or registration, the licensee’s or traditional
agriculture user’s right to divert water under the licence or registration is
limited to the volume and rate of water that the works is capable of carrying.
(2) In the case of a dispute as to the capacity of
a licensee’s or traditional agriculture user’s works, the Director may order an
inspector to inspect and report on the works.
1996 cW‑3.5 s31
Division 3
Administering Priority of Rights
Administering priorities
32(1) If there is a dispute with respect to the order
in which water is to be diverted, the Director may administer priorities within
a water management area or any other geographical area considered appropriate
by the Director.
(2) Subsection
(1) does not apply to a dispute among household users.
(3) An
inspector or the Director may issue a water management order under section
97(1)(a).
(4) If
a water management order under section 97(1)(a) has been issued to a person,
that person shall not divert water except in accordance with the terms and
conditions specified in the water management order until the order expires, is
amended or cancelled, or a further order is made by the Director.
(5) If the Director has received a complaint with
respect to the order in which water is to be diverted and an inspector or
investigator is of the opinion that a diversion of water is affecting the
rights of a household user, licensee or traditional agriculture user, the
inspector or investigator may interrupt the diversion of water and cause the
works of the person responsible for the diversion of water to be closed, or
take any other action that is necessary to ensure that the supply of water to
which a household user, licensee or traditional agriculture user is entitled
can be diverted by the household user, licensee or traditional agriculture user
in accordance with the household user’s, licensee’s or traditional agriculture
user’s priority.
1996 cW‑3.5 s32
Agreements to assign
water
33(1) A licensee or traditional agriculture user may,
subject to the regulations, for a period of time set out in an agreement,
temporarily assign all or part of the water that the licensee or traditional
agriculture user is entitled to divert under the licence or registration to
another licensee or traditional agriculture user if
(a) a
written agreement is made and signed by all the licensees and traditional
agriculture users participating in the temporary assignment of the water,
(b) the
licences and registrations that are the subject of the agreement are in good
standing,
(c) no
rights of a household user, or of a licensee or traditional agriculture user
with a higher priority than the party to the agreement who has the lowest
priority, are adversely affected by the temporary assignment,
(d) the
person receiving the water under the agreement is able to access the assigned
water as a result of the natural flow or natural presence of the water,
(e) there
are no adverse effects on any water body or the aquatic environment, and
(f) a
copy of the written agreement is submitted to the Director on the request of
the Director.
(2) Notwithstanding
subsection (1), an agreement to assign water may not be made with respect to
water that has been previously diverted under a licence.
(3) If
an agreement is made under this section,
(a) the
licensee or traditional agriculture user temporarily assigning the water is not
entitled to divert the allocation of water that has been temporarily assigned,
(b) the
diversion of water by the licensee or traditional agriculture user temporarily
receiving the water must be done in accordance with the licence or registration of the licensee or traditional
agriculture user receiving the water, and
(c) the
licensee or traditional agriculture user temporarily receiving the water must
not divert a total amount of water that is greater than the allocation of water
specified in the licence or registration of the licensee or traditional
agriculture user receiving the water.
(4) An
agreement made under this section is subject to the regulations.
(5) If
the Director is of the opinion that a temporary assignment causes or may cause
(a) the
rights of any household user, or the rights of any licensee or a traditional
agriculture user with a higher priority than the party to the agreement that
has the lowest priority, to be adversely affected, or
(b) an
adverse effect on any water body or the aquatic environment,
the Director may
direct that water must not be diverted under the agreement or a subsequent
agreement, either permanently or for a specified period of time.
(6) If
the Director has directed
(a) that
water must not be diverted under an agreement or a subsequent agreement for a
specified period of time, no water may be assigned under that agreement or a
subsequent agreement during the specified period of time, or
(b) that water must not be diverted under an
agreement or a subsequent agreement permanently, no water may be assigned under
that agreement or a subsequent agreement.
1996 cW‑3.5 s33
Part 4
Approvals, Licences, Preliminary Certificates, Registrations
Approvals, licences,
transfers, registrations not available
34(1) If the Minister is of the opinion that a
proposed
(a) activity,
(b) diversion
of water or operation of a works for the diversion of water, or
(c) transfer
of an allocation of water under a licence,
should not proceed
because it is not in the public interest, the Minister may make any order
referred to in subsection (2).
(2) If
subsection (1) applies, the Minister may order
(a) that
no application for
(i) an approval, licence, registration or transfer of an allocation
of water, or
(ii) an amendment of an approval or licence
is to be accepted in
respect of the proposed activity, diversion, operation of a works for the
diversion of water or transfer, or a class of proposed activities, diversions,
operation of works for the diversion of water or transfers,
(b) that
no approval, preliminary certificate or licence may be issued or that no
registration may be effected in respect of the proposed activity, diversion or
operation of a works for the diversion of water or in respect of a class of
proposed activities, diversions, operation of works for the diversion of water
or transfers,
(c) that
no amendment of an approval, preliminary certificate or licence in respect of
the proposed activity, diversion or operation of a works for the diversion of
water or in respect of a class of proposed activities, diversions or operation
of works for the diversion of water may be made, or
(d) that
no transfer of an allocation of water may be approved in respect of the
proposed transfer.
(3) If
the Minister makes an order under subsection (2)(b), (c) or (d), the Director
must give notice of the order to the applicant for the approval, licence,
registration or transfer of an allocation of water if an application has been
submitted.
(4) If the Minister makes an order under subsection
(2)(a), the Director must provide notice in accordance with the regulations.
1996 cW‑3.5 s34
Crown reservation
35(1) The Minister may by order reserve water that is
not currently allocated under a licence or registration or specified in a
preliminary certificate
(a) in
order to determine how the water should be used, or
(b) for
any other purpose.
(2) When
making an order under subsection (1), the Minister may
(a) include
terms and conditions,
(b) subject
to section 29(2)(b), prescribe the priority number of any allocation of water
to be made from the reserved water, but the priority number may not be based on
a date and time that is earlier than the date and time that the reservation was
made, and
(c) specify
(i) the purposes for which,
(ii) how,
(iii) to whom, and
(iv) the time period within which,
an allocation of the
reserved water may be made by the Director.
(3) The
Director may
(a) retain
the water reserved in the water body in accordance with the terms and
conditions of an order made under subsection (1),
(b) issue
a licence for the temporary diversion of the reserved water, unless prohibited
by an order made under subsection (1),
(c) if
an order under subsection (1) allows, issue a licence for the diversion of the
reserved water and in accordance with an order made under subsection (1), and
(d) refuse
to accept an application for a licence for the reserved water unless the
refusal is contrary to an order made under subsection (1).
(4) If
the Director issues a licence under subsection (3), including a licence for the
temporary diversion of water, the Director must do so in accordance with this
Act.
(5) Subject
to subsection (2)(b), the Minister may amend a term or condition of an order
made under subsection (1), including but not limited to changing the priority
of any allocation to be made from the reserved water, and including or amending
matters described in subsection (2).
(6) If
the Minister
(a) repeals
an order made under subsection (1), or
(b) amends
an order made under subsection (1) so that part of the reserved water is no
longer reserved,
any of the reserved water that has not been allocated under
a licence or does not remain reserved must be dealt with in accordance with
this Act unless otherwise provided for in an order by the Minister.
1996 cW‑3.5 s35
Division 1
Approvals
Approval required
36(1) Subject to subsection (2), no person may
commence or continue an activity except pursuant to an approval unless it is
otherwise authorized under this Act.
(2) No
person shall commence or carry out an activity that is designated in the
regulations as an activity in respect of which notice must be provided to the
Director unless that person provides notice to the Director, in accordance with
the regulations, of the intention to commence the activity or to carry out the
activity.
(3) A
person who commences or continues an activity
(a) that
is designated in the regulations as exempt from the requirement for an approval
or is part of a class of activities that is designated in the regulations as
exempt from the requirement for an approval,
(b) that
is an activity or part of a class of activities within an area of the Province
that is designated in the regulations as an area where an approval is not
required for that activity or class of activities, or
(c) that
is an activity or part of a class of activities that is designated in the
regulations as an activity or class of activities that does not require an
approval but that must be carried out in accordance with the regulations,
is not required to
obtain an approval under this Act.
(4) An activity and class of activities described
in subsection (3)(c) must be carried out in accordance with the regulations.
1996 cW‑3.5 s36
Application
37(1) A person who applies for an approval must
(a) make
an application to the Director in a form and manner satisfactory to the
Director,
(b) submit
the information, including but not limited to plans and specifications,
required by the Director,
(c) pay
the required fees, and
(d) provide
notice of the application in accordance with Part 8.
(2) The
Director may require an applicant to submit any additional information
including but not limited to plans and specifications the Director considers
necessary within any time period required by the Director.
(3) The
Director may deem an application for an approval to be an application for a
licence.
(4) If an applicant for an approval does not own
the land in fee simple or the undertaking to which the approval is to be
appurtenant, if required by the Director, the applicant must submit the written
consent of the owner of the land or of the undertaking as part of the
application for the approval.
1996 cW‑3.5 s37
Refusal
for unpaid debts
37.1 The Director may
refuse to issue an approval where the applicant is indebted to the Government.
2002
c4 s5
Issuance of approvals
38(1) Subject to section 34, the Director may issue
or refuse to issue an approval to an applicant to commence or continue an
activity.
(2) In
making a decision under this section, the Director
(a) must
consider, with respect to the applicable area of the Province, the matters and
factors that must be considered in issuing an approval, as specified in an
applicable approved water management plan,
(b) may
consider any existing, potential or cumulative
(i) effects on the aquatic environment,
(ii) hydraulic, hydrological and hydrogeological effects, and
(iii) effects on household users, licensees and traditional agriculture
users,
that result or may result
from the activity, and
(c) may
consider
(i) effects on public safety, and
(ii) any other matters applicable to the approval that, in the opinion
of the Director, are relevant.
(3) The
Director may issue an approval subject to any terms and conditions that the
Director considers appropriate.
(4) The
Director may issue an approval that authorizes the temporary diversion of water
associated with carrying out an activity.
(5) An
approval authorizing the temporary diversion of water associated with carrying
out an activity does not provide any priority with respect to that water.
(6) When the Director issues an approval it must
include an expiry date.
1996 cW‑3.5 s38
Approval required onsite
39 An approval holder shall
(a) ensure
that a copy of the approval is
(i) kept at the place where the activity occurs,
(ii) posted or otherwise made available, as required by the Director,
and
(iii) produced in accordance with Part 10,
and
(b) in the case of a water well, display tags,
decals, plates, devices, documents and other things as required by the
Director.
1996 cW‑3.5 s39
Certificate of
completion
40(1) Unless the requirement for a certificate of
completion is waived by the Director, on completion of the activity specified
in the approval, the approval holder shall submit in a form and manner
satisfactory to the Director, a certificate of completion
(a) containing
the information required by the Director, and
(b) certifying
that the approval holder has completed the activity in accordance with the
approval.
(2)
On completion of a part of an activity, if required by the Director, the
approval holder shall submit in a form and manner satisfactory to the Director,
a certificate of completion with respect to that part of the activity
(a) containing
the information required by the Director, and
(b) certifying that the approval holder has
completed that part of the activity in accordance with the approval.
1996 cW‑3.5 s40
Extensions
41(1) The Director may, on the Director’s own
initiative or on the request of an approval holder, extend the expiry date of
an approval or a term or condition of an approval as the Director considers
appropriate.
(2) An
approval for the purposes of drainage, flood control, erosion control, channel
realignment or a similar purpose may contain a term or condition that states
that the approval, if in good standing, is extended once automatically for the
same period of time for which it was originally issued.
(3) An extension under this section is deemed not
to be an amendment of the approval for the purposes of this Part and Parts 8
and 9.
1996 cW‑3.5 s41
Approval amendments
42(1) The Director may amend an approval
(a) on
the Director’s own initiative without the consent of the approval holder
(i) to correct a clerical error in the approval,
(ii) to amend a term or condition that relates to a monitoring,
reporting or inspection requirement,
(iii) if the Director has received notice of a disposition of the land
to which an approval is appurtenant, to reflect the disposition,
(iv) to address matters related to a temporary discontinuance of the
activity by the approval holder,
(v) to extend, under section 41, the expiry date of an approval or a
term or condition of an approval,
(vi) to amend a term or condition if, in the opinion of the Director,
a significant adverse effect on the aquatic environment, human health or public
safety that was not reasonably foreseeable at the time the approval was issued
occurred, occurs or may occur,
(vii) to amend a term or condition if, in the opinion of the Director,
an adverse effect on a household user, licensee or traditional agriculture user
occurred, occurs or may occur, or
(viii) if there is a term or condition of the approval allowing the
amendment,
and
(b) with
respect to any matter
(i) on application by the approval holder, or
(ii) with the consent of the approval holder.
(2) An
application under subsection (1)(b)(i) must be made in a form and manner
satisfactory to the Director.
(3) Notice
of an application to amend an approval must be provided in accordance with Part
8.
(4) Notwithstanding
subsection (1), unless otherwise specified in the regulations, an approval
holder does not require an amendment of the approval in order to make an
adjustment, repair or replacement or to have maintenance done during the course
of normal operations of a works.
(5) Notwithstanding this section, the addition of
and modifications to plans or specifications relating to an approval that, in
the opinion of the Director, do not substantially change the terms and
conditions of the approval or the nature of the undertaking to which the
approval is appurtenant are deemed not to be an amendment of an approval for
the purposes of this Part and Parts 8 and 9.
1996 cW‑3.5 s42
Suspension, cancellation
43(1) The Director may suspend or cancel an approval
(a) on
the Director’s own initiative without the consent of the approval holder if
(i) the approval was issued in error,
(ii) in the opinion of the Director, the activity has been abandoned,
(iii) there is an emergency or the Director is of the opinion that the
suspension or cancellation is necessary for public safety,
(iv) the approval holder is indebted to the Government,
(v) there is non‑performance of or in the opinion of the
Director there is a serious breach of any term or condition of the approval,
(vi) in the opinion of the Director, the approval holder made a
material misrepresentation in obtaining the approval,
(vii) the approval holder is convicted of an offence under this Act,
other than an offence under section 142(1)(j), (o) or (p),
(viii) the Director is of the opinion that a significant adverse effect
on the aquatic environment, human health or public safety occurred, occurs or
may occur that was not reasonably foreseeable at the time the approval was
issued,
(ix) the Director is of the opinion that an adverse effect on a
household user, licensee or traditional agriculture user occurred, occurs or
may occur, or
(x) an approval has been automatically extended under section 41(2),
and
(b) on
any grounds
(i) on application by the approval holder, or
(ii) with the consent of the approval holder.
(2) If
an approval has been suspended or cancelled, all rights of the approval holder
cease, and in addition to the Director’s exercising any powers provided under
Parts 7 and 10, the Government may recover any fees owing to the Government by
the approval holder under this Act.
(3) If an approval with respect to drilling water
wells is suspended or cancelled, the approval holder shall, on the request of
the Director, return to the Director as soon as possible the tags, decals,
plates, devices, documents or other things that serve as evidence that a
drilling machine is being operated or was operated under an approval.
RSA 2000 cW‑3
s43;2002 c4 s5
Security
44 If required by the
regulations, an applicant for an approval or an approval holder must provide
financial or other security and carry insurance in respect of matters to which
the approval relates in an amount and of a type required by the Director.
1996 cW‑3.5 s44
Approvals run with land,
undertakings
45(1) When issuing an approval the Director must
specify, in the approval, the land or undertaking to which the approval is
appurtenant.
(2) An
approval and all works constructed under the approval
(a) are
appurtenant to the land or undertaking specified in the approval,
(b) are
inseparable from the land or undertaking specified in the approval, and
(c) run with the land on any disposition of the
land or undertaking, unless the Lieutenant Governor in Council orders otherwise.
1996 cW‑3.5 s45
Division 2
Licences
No licences to transfer
water outside Canada
46(1) In this section, “processed water” and
“municipal water” mean processed water and municipal water as defined in the
regulations for the purposes of this Act.
(2) For
the purpose of promoting the conservation and management of water, including
the wise allocation and use of water, a licence shall not be issued for the
purpose of transferring water from the Province outside Canada by any means,
unless the licence is specifically authorized by a special Act of the
Legislature.
(3) Subsection (2) does not apply to processed
water and municipal water.
1996 cW‑3.5 s46
No transfer between
basins
47 A licence shall not be issued
that authorizes the transfer of water between major river basins in the
Province unless the licence is specifically authorized by a special Act of the
Legislature.
1996 cW‑3.5 s47
Public review
48 Before a Bill to amend section
46 or 47 or to enact a special Act described in those sections is introduced
into the Legislative Assembly, the Minister must consult with the public, in a
form and manner satisfactory to the Minister, with respect to such a Bill.
1996 cW‑3.5 s48
Licence required
49(1) Subject to subsection (2), no person shall
(a) commence
or continue a diversion of water for any purpose, or
(b) operate
a works,
except pursuant to a
licence unless it is otherwise authorized by this Act.
(2) A
person who commences or continues the diversion of water or operates a works
(a) for
household purposes in accordance with section 21,
(b) pursuant
to a registration,
(c) pursuant
to an approval,
(d) that
is designated or is part of a class of diversions or works that is designated
in the regulations as exempt from the requirement for a licence, or
(e) that
is in an area of the Province that is designated in the regulations as an area
where a licence is not required for that diversion or operation of works or
that class of diversions or operation of works,
is not required to hold a licence for that diversion of
water or operation of works.
1996 cW‑3.5 s49
Refusal
for unpaid debts
49.1 The Director may
refuse to issue a licence where the applicant is indebted to the Government.
2002
c4 s5
Application
50(1) A person who applies for a licence must
(a) make
an application in a form and manner satisfactory to the Director,
(b) submit
the information required by the Director,
(c) pay
the required fees, and
(d) provide
notice of the application in accordance with Part 8.
(2) The
Director may require an applicant to submit any additional information the
Director considers necessary within any time period required by the Director.
(3) The
Director may deem that an application for a licence is an application for an
approval.
(4) If an applicant for a licence does not own the
land in fee simple or the undertaking to which the licence is to be
appurtenant, the applicant must submit the written consent of the owner of the
land or of the undertaking as part of the application for the licence.
1996 cW‑3.5 s50
Issuance of licences,
preliminary certificates
51(1) On application for a licence by a person in
accordance with this Act, the Director may, subject to subsection (2) and
sections 34, 46 and 47, issue or refuse to issue
(a) a
preliminary certificate to that person, or
(b) a
licence to that person for
(i) the diversion of water, or
(ii) the operation of a works,
for any purpose
specified in the regulations.
(2) On
application by the Government in accordance with this Act, the Director may issue
a licence to the Government but to no other person, or may refuse to issue a
licence, for
(a) the
diversion of water,
(b) the
operation of a works, or
(c) providing
or maintaining a rate of flow of water or water level requirements
for the purpose of
implementing a water conservation objective.
(3) Subject
to section 68, the Director may issue a licence under this section subject to
any terms and conditions that the Director considers appropriate.
(4) In
making a decision under this section, the Director
(a) must
consider, with respect to the applicable area of the Province, the matters and
factors that must be considered in issuing a licence, as specified in an
applicable approved water management plan,
(b) may
consider any existing, potential or cumulative
(i) effects on the aquatic environment,
(ii) hydraulic, hydrological and hydrogeological effects, and
(iii) effects on household users, other licensees and traditional
agriculture users,
that result or may result
from the diversion of water, operation of a works or provision or maintenance
of a rate of flow of water or water level requirements, and
(c) may
consider
(i) effects on public safety,
(ii) with respect to irrigation, the suitability of the land for
irrigated agriculture, and
(iii) any other matters applicable to the licence that in the opinion
of the Director are relevant, including any applicable water guideline, water
conservation objective and water management plan.
(5) When
the Director issues a licence, the Director must include an expiry date
determined in accordance with the regulations.
(6) A
licensee of water for irrigation purposes or a person who, under a licence, has
acquired water from a licensee of water for irrigation purposes is entitled to
divert, as part of the acquired water,
(a) up
to a maximum of 1250 cubic metres of water per year for household purposes, and
(b) up
to a maximum of 6250 cubic metres of water per year for the purpose of raising
animals or applying pesticides to crops, as part of a farm unit,
whether or not that
licensee or person owns or occupies land that adjoins a river, stream, lake,
natural watercourse or other natural water body or under which groundwater
exists or that person is diverting water under a registration.
(7) If a licensee of water for irrigation purposes
or a person who under a licence acquires water under the licence of such a
licensee is entitled to divert water under section 21, that licensee or person
is entitled to the water under the licence in addition to the entitlement under
section 21.
1996 cW‑3.5 s51
Using works of another
52(1) If a person has applied for a licence to divert
water through the use of another person’s works, the Director may issue a
licence under section 51 for the diversion, whether the applicant’s works are
constructed, under construction or to be constructed, if
(a) the
operation of the works of the other person is licensed or authorized under this
Act,
(b) the
applicant for the licence and the owner of the works have made an agreement
with respect to
(i) the use and maintenance of the works and, if necessary, the
alteration and enlargement of the works,
(ii) the method of compensating the owner for the use and maintenance
of the works, and
(iii) sharing the cost of altering, enlarging or jointly constructing
the works, where applicable,
(c) the
issuance of that licence will not interfere with the licensed diversion of
water by the other person, unless the owner of the works has agreed otherwise
in a term of the agreement referred to in clause (b), and
(d) the
agreement has been submitted to the Director.
(2) In
issuing the licence under subsection (1), the Director may issue an approval to
the applicant for the licence or the owner of the works to alter or enlarge any
of the works described in subsection (1) if the Director is of the opinion that
the alteration or enlargement is necessary in order for the water to be
diverted through the use of the works.
(3) Notwithstanding
subsection (2), if an agreement has not been submitted to the Director, the
Minister may by order issue the licence under subsection (1), prescribe how any
necessary alteration or enlargement of the works is to be done and how the
costs are to be apportioned and require the Director to issue an approval with
respect to the alteration or enlargement, if, in the opinion of the Minister,
(a) there
has been an unreasonable delay in submitting the agreement, and
(b) it
is in the public interest to do so.
(4) Unless otherwise provided for in the agreement,
an applicant who is authorized to alter or enlarge a works previously
constructed is responsible for any loss or damage that is sustained by the
owner of the works as a result of the alteration or enlargement, and the
Minister must determine the amount to be paid for the loss or damage, and that
determination is final.
1996 cW‑3.5 s52
Licence applications not
accepted
53(1) If the Director is of the opinion that no
further allocation of water should be made in a water management area or other
geographical area considered appropriate by the Director or from a water body,
the Director may decide that applications for licences are not to be accepted
by the Director for a specified period of time.
(2) If
the Director conducts a public review in a form and manner satisfactory to the
Director, the Director may extend the period of time referred to in subsection
(1).
(3) In
making a decision under subsection (1) that no applications for licences may be
accepted, the Director
(a) must
consider, with respect to the applicable area of the Province, the matters and
factors that must be considered in issuing a licence, as specified in an
applicable approved water management plan,
(b) may
consider any existing, potential or cumulative
(i) effects on the aquatic environment,
(ii) hydraulic, hydrological and hydrogeological effects, and
(iii) effects on household users, licensees and traditional agriculture
users,
that result or may result
from a potential diversion of water, operation of a works or provision or
maintenance of a rate of flow of water or water level requirements, and
(c) may
consider any other matters that, in the opinion of the Director, are relevant,
including any applicable water guideline, water conservation objective and
water management plan.
(4) If
notice of a decision has been provided under section 110(4) that no further
applications for licences may be accepted, the Director must refuse to accept
an application for a licence.
(5) The
Director must consider and make a decision with respect to an application for a
licence received prior to the date the Director provides notice under section
110(4).
(6) Notwithstanding
subsection (4), the Director may accept an application for a licence for a
temporary diversion of water.
(7) If the Director has made a decision under
subsection (1) that no further applications for licences are to be accepted and
the Director is of the opinion that water may once again be allocated even
though the period of time referred to in subsection (1) has not expired, the
Director must provide notice, in accordance with the regulations, that
applications for licences may be accepted.
1996 cW‑3.5 s53
Amendments
54(1) If an amendment of a licence does not increase
the volume of the diversion of water specified in the licence, the Director
may, subject to the regulations and subsection (3), amend a licence
(a) on
the Director’s own initiative, without the consent of the licensee,
(i) to correct a clerical error in a licence,
(ii) to give effect to a transfer of an allocation under a licence
that has been approved under Part 5,
(iii) to amend a term or condition that relates to a monitoring,
reporting or inspection requirement,
(iv) if the Director has received notice of a disposition of land or
an undertaking to which a licence is appurtenant, to reflect the disposition,
(v) if, in the Director’s opinion, an adverse effect on human health
or public safety occurred, occurs or may occur that was not reasonably
foreseeable at the time the licence was issued,
(vi) to give effect to the amalgamation of licences under section 56,
(vii) to limit the volume of water to that which a works is capable of
carrying,
(viii) to reduce an allocation of water under a licence if part of the
allocation was incorporated into a registration, and
(ix) if there is a term or condition of the licence allowing the
amendment,
and
(b) on
application by the licensee, including but not limited to an amendment
(i) to increase or decrease the rate of diversion of water specified
in the licence,
(ii) to add a rate of diversion of water if none is specified in the
licence,
(iii) to add terms and conditions to the licence,
(iv) to change the timing of the diversion of water specified in the
licence,
(v) to change the point of use or add another point of use of the
diverted water if the use is located on the same land specified in the licence
or plan attached to the licence, and
(vi) to move the point of diversion of water or add another point of
diversion of water if the diversion of water at the new point of diversion of
water is from the same source of water and the new point of diversion of water
is located on the same land that is specified in the licence or plan attached
to the licence,
if the Director is of the
opinion that there is no or will be no adverse effect on the rights of a
household user, other licensee or traditional agriculture user and that the
proposed change will not adversely affect the ability to conserve or manage a
water body.
(2) Subject
to the regulations, if an amendment of a licence issued under this Act does not increase the volume
of the diversion of water specified in the licence, the Director may amend the
licence if, in the Director’s opinion, an adverse effect on the aquatic environment
occurred, occurs or may occur that was not reasonably foreseeable at the time
the licence was issued, and compensation may be payable under section 158.
(3) An
applicant for an amendment to a licence under subsection (1) must
(a) make
an application in a form and manner satisfactory to the Director,
(b) submit
the information required by the Director,
(c) pay
the required fees, and
(d) provide
notice of the application in accordance with Part 8.
(4) A
licensee does not require an amendment to a licence in order to make an adjustment,
repair or replacement or to have maintenance done during the course of normal
operations of a works, unless otherwise specified in the regulations, if the
change does not result in an increase in the rate or volume of or a change in
the timing of the diversion of water.
(5) Notwithstanding this section, the addition of
or modifications to plans and specifications relating to a licence that, in the
opinion of the Director, do not substantially change the terms and conditions
of the licence or the nature of the undertaking to which the licence relates
are deemed not to be an amendment for the purposes of this Part and Parts 8 and
9.
1996 cW‑3.5 s54
Suspension, cancellation
55(1) The Director may suspend or cancel a licence
(a) on
the request of the licensee,
(b) if
a licence has been issued in error,
(c) if
there is an emergency or if in the Director’s opinion it is necessary for
public safety purposes,
(d) if the licensee is
indebted to the Government,
(e) if
there is non‑performance of or in the opinion of the Director there is a
serious breach of any term or condition of the licence,
(f) if,
subject to the regulations, the Director is of the opinion that
(i) there has been no diversion of any of the water allocated in the
licence, or there has been a failure or ceasing to exercise the rights granted
under the licence, over a period of 3 years, and
(ii) there is no reasonable prospect that the licensee will resume
diversion of all or part of the water specified in the licence or resume the
exercise of the rights granted under the licence,
(g) if,
in the opinion of the Director, the licensee made a material misrepresentation
in obtaining the licence,
(h) if
an entire allocation of water under a licence has been incorporated into a
registration,
(i) if
the licensee has been convicted of an offence under this Act, other than an
offence under section 142(1)(j), (o) or (p), or
(j) if,
in the opinion of the Director, a significant adverse effect on human health or
public safety occurred, occurs or may occur that was not reasonably foreseeable
at the time the licence was issued.
(2) Subject
to the regulations, the Director may suspend or cancel a licence issued under
this Act if, in the opinion of the Director, a significant adverse effect on
the aquatic environment occurred, occurs or may occur that was not reasonably
foreseeable at the time the licence was issued, and compensation may be payable
under section 158.
(3) If a licence has been suspended or cancelled,
subject to section 158 all rights of the licensee cease, and in addition to the
Director’s exercising any powers provided under Parts 7 and 10, the Government
may recover any fees owing to the Government by the licensee under this Act.
RSA 2000 cW‑3
s55;2002 c4 s5
Amalgamation of licences
56(1) The Director may, if in the Director’s opinion
it is appropriate to do so, amalgamate 2 or more licences if
(a) the
licensee has requested the amalgamation,
(b) all
of the licences to be amalgamated are held by the same licensee,
(c) the
diversions of water under all the licences are from the same source of water
and are for the same purpose,
(d) in
the opinion of the Director, the amalgamation will improve the administration
of the licences under this Act, and
(e) in
the opinion of the Director, there is no adverse effect on household users,
other licensees or traditional agriculture users.
(2) The Director must assign to the licence resulting from the
amalgamation of the licences the numerically highest priority number of all the
amalgamated licences.
(3) The
licence resulting from the amalgamation may contain any terms and conditions
(a) that
were contained in any of the licences that have been amalgamated, or
(b) that, in the opinion of the Director, are
necessary to give effect to the amalgamation.
1996 cW‑3.5 s56
Security
57 If required by the
regulations, an applicant for a licence or a licensee must provide financial or
other security and carry insurance in respect of the matters to which the
licence relates in an amount and of a type required by the Director.
1996 cW‑3.5 s57
Licences run with land
58(1) When issuing a licence, including licences
issued under Part 5, Division 2, the Director must specify in the licence the
land or undertaking to which the licence is appurtenant.
(2) Subject
to Part 5, Division 2, a licence and all works operated under the licence
(a) are
appurtenant to the land or undertaking specified in the licence,
(b) are
inseparable from the land or undertaking specified in the licence, and
(c) run with the land or undertaking on any
disposition of the land or undertaking unless the Lieutenant Governor in
Council orders otherwise.
1996 cW‑3.5 s58
Licence renewal
application
59(1) A licensee may apply for a renewal of the
licence in a form and manner satisfactory to the Director at any time prior to
the expiry date of the licence.
(2) At
least 30 days prior to the expiry date of a licence the Director must give
notice to the licensee that the licence expires on the licence’s expiry date.
(3) If,
after providing notice under subsection (2),
the Director does not receive an application for renewal on or before
the licence’s expiry date,
(a) the
licence expires on the licence’s expiry date, or
(b) if
the Director is of the opinion that the failure to apply is not the fault of
the licensee, the Director may amend the licence, either before or after the
licence expires, to extend the expiry date for up to 6 months, and the licence
is deemed to have been in effect from the expiry date until the Director
extended the expiry date so that the applicant has the opportunity to apply to
renew the licence.
(4) If
the Director extends the expiry date of a licence under subsection (3)(b), the
licensee may apply to renew the licence prior to the new expiry date and
section 60 applies to the application for the renewal.
(5) If
a licence had expired when the expiry date was extended by an amendment under
subsection (3), the licence is deemed to have been a valid licence from the
time it expired until the date it was amended under subsection (3).
(6) If the Director fails to give notice under
subsection (2), the licence is deemed not to have expired on its expiry date
and the licence is automatically renewed on the same terms and conditions for a
period of one year.
1996 cW‑3.5 s59
Renewal may issue
60(1) If an application for renewal is received by
the Director prior to the licence’s expiry date, the expiry date of the licence
is extended by 6 months or for a longer or shorter time specified by the
Director, and the Director must
(a) renew
the licence, or
(b) refuse
to renew the licence in accordance with subsection (3),
by the new expiry date
of the licence.
(2) The
Director may extend the expiry date of a licence for the purposes of this
section.
(3) The
Director may decide not to renew a licence only if
(a) the
Director is of the opinion that it is not in the public interest to renew the
licence,
(a.1) the licensee is indebted to the Government,
(b) the
renewal of the licence would be inconsistent with an approved water management
plan,
(c) the
water conservation objective of a natural water body from which the diversion
of water will be made is not being met,
(d) the
renewal, in the opinion of the Director, would cause a significant adverse
effect on the aquatic environment,
(e) subject
to the regulations, in the opinion of the Director,
(i) there has been no diversion of any of the water allocated in the
licence or there has been a failure or ceasing to exercise the rights granted
under the licence over a period of 3 years, and
(ii) there is no reasonable prospect that the licensee will resume
diversion of all or part of the water specified in the licence or resume the
exercise of the rights granted under the licence,
or
(f) there
is a term or condition of the licence that the licence is not renewable.
(4) If
the Director makes a decision not to renew a licence, the Director must provide
written reasons for the decision to the applicant for the renewal in a form and
manner satisfactory to the Director.
(5) A renewed licence has the same priority as the
original licence and the Director has the same powers and duties with respect
to a renewal of a licence that the Director has with respect to issuing a
licence under section 51(3).
RSA 2000 cW‑3
s60;2002 c4 s5
Public review of renewal
61(1) The Director may, subject to the regulations,
conduct a public review with respect to the renewal of a licence.
(2) A public review must be carried out in a form
and manner determined by the Director.
1996 cW‑3.5 s61
Temporary Diversion
Licence
Application
62(1) A person who applies for a licence for the
temporary diversion of water must
(a) make
an application in a form and manner satisfactory to the Director,
(b) submit
the information required by the Director,
(c) pay
the required fees, and
(d) provide
notice of the application in accordance with Part 8.
(2) The Director may require an applicant to submit
any additional information the Director considers necessary within any time
period required by the Director.
1996 cW‑3.5 s62
Issuance of temporary
diversion licence
63(1) The Director may issue a licence for the
temporary diversion of water to any person subject to any terms and conditions
the Director considers appropriate.
(2) A
licence for the temporary diversion of water may be issued only for a specified
period of time of one year or less.
(3) The
Director may extend the expiry date of a licence for the temporary diversion of
water, if the total period for which the licence is issued does not exceed one
year.
(4) Notwithstanding
subsections (2) and (3), the Director may, on application, reissue a licence
for a temporary diversion of water.
(5) Sections
18, 29, 30, 33, 50, 51, 52, 54, 55 and 56 and Part 5 are not applicable to a
licence for the temporary diversion of water.
(6) A holder of a licence for the temporary
diversion of water may divert water through the use of another person’s works
if the holder of the licence for the temporary diversion of water provides the
written consent of the owner of the works to the Director.
1996 cW‑3.5 s63
Amendment, suspension,
cancellation
64 The Director may, on the
Director’s own initiative, amend, suspend or cancel a licence for the temporary
diversion of water.
1996 cW‑3.5 s64
Licence to be onsite
65 A licensee for the temporary diversion of
water must ensure that a copy of the licence is
(a) kept
at the point of diversion,
(b) posted
or otherwise made available as required by the Director,
(c) produced
in accordance with Part 10, and
(d) if the water is transported by a vehicle,
kept in the vehicle while the water is transported.
1996 cW‑3.5 s65
Division 3
Preliminary Certificates
Issuance of preliminary
certificates
66(1) If a person has applied for a licence, other
than a licence for the temporary diversion of water, the Director may issue a
preliminary certificate under section 51 to that person for the period of time
stated in the preliminary certificate.
(2) The
Director may issue a preliminary certificate under section 51 subject to any
terms and conditions and for any specified period of time.
(3) In
considering whether to issue a preliminary certificate, the Director
(a) must
consider, with respect to the applicable area of the Province, the matters and
factors that must be considered in issuing a licence, as specified in an
applicable approved water management plan,
(b) may
consider any existing, potential or cumulative
(i) effects on the aquatic environment,
(ii) hydraulic, hydrological and hydrogeological effects, and
(iii) effects on household users, licensees and traditional agriculture
users,
that result or may result
from the potential diversion of water, operation of a works or provision or
maintenance of a rate of flow of water or water level requirements, and
(c) may
consider
(i) effects on public safety,
(ii) with respect to irrigation, the suitability of the land for
irrigated agriculture, and
(iii) any other matters applicable to the preliminary certificate or
licence that, in the opinion of the Director, are relevant, including any water
guideline, water conservation objective and water management plan.
(4) In
a preliminary certificate the Director
(a) must
specify the conditions that must be complied with before a licence will be
issued, including but not limited to a requirement for securing any necessary
rights of way,
(b) must
specify
(i) a volume of water and related terms and conditions that are to be
included in a licence, and
(ii) the priority number to be assigned to the licence,
when the preliminary
certificate holder fulfils all the conditions specified in the preliminary
certificate,
(c) must
specify the date for submission of a certificate of completion by the
preliminary certificate holder,
(d) may
specify any other terms and conditions to be included in the licence that the
Director considers appropriate, including but not limited to the rate and
timing of the diversion of water, when the preliminary certificate holder
fulfils all the conditions specified in the preliminary certificate, and
(e) may specify that any further terms and
conditions may be added to a licence that is issued subsequent to the
preliminary certificate.
1996 cW‑3.5 s66
Refusal
for unpaid debts
66.1 The Director may
refuse to issue a preliminary certificate where the applicant for the
preliminary certificate is indebted to the Government.
2002
c4 s5
Certificate of
completion
67 On completion of the
conditions specified in a preliminary certificate, the preliminary certificate
holder may submit, in a form and manner satisfactory to the Director, a
certificate of completion containing the information required by the Director,
confirming that the conditions referred to in section 66(4)(a) have been
fulfilled.
1996 cW‑3.5 s67
Licence issues
68(1) If the holder of a preliminary certificate
submits a certificate of completion that meets the requirements of section 67,
the Director must
(a) issue
a licence under section 51, or
(b) if,
in the Director’s opinion, the conditions set out in the preliminary
certificate have not been fulfilled, refuse to issue a licence.
(2) If
the Director issues a licence referred to in subsection (1), the Director must
include in the licence
(a) the
volume of water and related terms and conditions specified in the preliminary
certificate, and
(b) the
number specified in the preliminary certificate.
(3) Notwithstanding
subsection (2),
(a) if
a certificate of completion indicates that
(i) a smaller volume of water will be diverted than the volume
specified in the preliminary certificate, or
(ii) there is a change in the rate or timing of the diversion of water
from that specified in the preliminary certificate,
the Director may issue the
licence for the same or a smaller volume of water and with a change in the rate
or timing of the diversion of water that corresponds to the changes specified
in the certificate of completion, and
(b) if,
in the Director’s opinion, the capacity of the works constructed is
insufficient to divert the volume of water specified in the preliminary
certificate and any applicable approval, the Director may issue the licence for
the same or a smaller volume of water and with a change in the rate or timing
of the diversion of water that corresponds to the capacity of the works.
(4) If
a licence has been issued subsequent to a preliminary certificate, the licensee
has only those rights provided in the licence and has no rights with respect to
the preliminary certificate.
(5) If the holder of a preliminary certificate
fails to submit a certificate of completion by the preliminary certificate’s
expiry date, the preliminary certificate and the application for the licence
become void on the date that the preliminary certificate expires.
1996 cW‑3.5 s68
Preliminary certificate
extension
69(1) The Director may extend the expiry date of a
preliminary certificate for one or more periods if the total extended time is
not longer than 2 years.
(2) Notwithstanding subsection (1), the Minister
may extend the expiry date of a preliminary certificate for one or more periods
of any length of time if the Minister considers that it is in the public
interest to do so.
1996 cW‑3.5 s69
Preliminary certificate
amendment
70(1) If an amendment of a preliminary certificate
does not result in an increase in the volume of water specified in the
preliminary certificate, the Director may, subject to the regulations, amend
the preliminary certificate
(a) on
the Director’s own initiative, without the consent of the preliminary
certificate holder,
(i) to correct a clerical error in a preliminary certificate,
(ii) to amend a term or condition that relates to a monitoring,
reporting or inspection requirement,
(iii) if the Director has received notice of a disposition of land or
an undertaking to which a preliminary certificate is appurtenant to reflect the
disposition, or
(iv) if there is a term or condition of the preliminary certificate
allowing the amendment,
and
(b) on
application by the preliminary certificate holder, including but not limited to
an amendment
(i) to increase or decrease the rate of diversion of water specified
in the preliminary certificate,
(ii) to add a rate of diversion of water if none is specified in the
preliminary certificate,
(iii) to add terms and conditions to the preliminary certificate,
(iv) to add or change the timing of diversion of water specified in
the preliminary certificate, and
(v) to change the point of use of the diverted water
if, in the Director’s
opinion, there is not and will not be an adverse effect on the rights of any
household user, licensee or traditional agriculture user and the proposed change will not adversely
affect the ability to conserve or manage a water body.
(2) An
application under subsection (1)(b) must be made in a form and manner
satisfactory to the Director.
(3) Notice
of an application to amend an approval must be provided in accordance with Part
8.
(4) Notwithstanding this section, the addition of
or modifications to plans and specifications relating to a preliminary
certificate that, in the opinion of the Director, do not substantially change
the terms and conditions of the preliminary certificate or the nature of the
undertaking to which the preliminary certificate is appurtenant are deemed not
to be an amendment for the purposes of this Part and Parts 8 and 9.
1996 cW‑3.5 s70
Preliminary certificate
cancellation
71(1) The Director may cancel a preliminary
certificate
(a) on
the request of the preliminary certificate holder,
(b) if
a preliminary certificate has been issued in error,
(c) if the preliminary
certificate holder is indebted to the Government,
(d) if,
in the opinion of the Director, there is a serious breach of any term or
condition of the preliminary certificate,
(e) if
the preliminary certificate holder has ceased to exercise the authority granted
under an approval that is applicable to the preliminary certificate,
(f) if
the preliminary certificate holder made a material misrepresentation in
obtaining the preliminary certificate,
(g) if
the preliminary certificate holder has been convicted of an offence under this
Act, other than an offence under section 142(1)(j), (o) or (p),
(h) if,
in the opinion of the Director, a significant adverse effect on human health or
public safety occurred, occurs or may occur that was not reasonably foreseeable
at the time the preliminary certificate was issued, or
(i) if,
in the Director’s opinion, subject to the regulations, a significant adverse
effect on the aquatic environment occurred, occurs or may occur that was not
reasonably foreseeable at the time the preliminary certificate was issued, and
compensation may be payable under section 158.
(2) If a preliminary certificate has been
cancelled, all rights of the preliminary certificate holder cease, and in
addition to the Director’s exercising any powers provided under Parts 7 and 10,
the Government may recover any fees or other money owing by the holder of the
cancelled preliminary certificate to the Government under this Act.
RSA 2000 cW‑3
s71;2002 c4 s5
Runs with land
72(1) When issuing a preliminary certificate, the
Director must specify in the preliminary certificate the land or the
undertaking to which the preliminary certificate is appurtenant.
(2) A
preliminary certificate
(a) is
appurtenant to the land or undertaking specified in the preliminary
certificate,
(b) is
inseparable from the land or undertaking specified in the preliminary
certificate, and
(c) runs with the land or undertaking on any
disposition of the land or undertaking unless the Lieutenant Governor in
Council orders otherwise.
1996 cW‑3.5 s72
Division 4
Registration
Application
73(1) If, on January 1, 1999,
(a) a
person owns land that adjoins a river, stream, lake, natural watercourse or
other natural water body or owns land under which groundwater exists, and
(b) the
owner or occupant of the land diverts water from the sources described in
clause (a) for the purpose of raising animals or applying pesticides to crops,
as part of a farm unit,
the person who owns
the land may apply to register the amount of water diverted as described in
clause (b).
(2) If,
on January 1, 1999, a person who occupies unpatented Crown land that adjoins a
river, stream, lake, natural watercourse or other natural water body or
occupies land under which groundwater exists diverts water for the purpose of
raising animals or applying pesticides to crops, as part of a farm unit, the
Government may apply, in accordance with this section, to register the
diversion of that amount of water.
(3) Notwithstanding
subsections (1) and (2), a registration of a diversion of water under this
section may not exceed 6250 cubic metres of water per year or the maximum
amount specified in an applicable approved water management plan, whichever is
greater.
(4) An
application for a registration of a diversion of water under this section must
(a) be
made in a form and manner satisfactory to the Director,
(b) in
the case of an application under subsection (1), be made by the person who owns
the land in fee simple to which the registration is to be appurtenant,
(c) in
the case of an application under subsection (2), be made by the Government,
(d) be
made by December 31, 2001 or after there is an approved water management plan
that applies to the area of the Province where the land is located, whichever
is earlier,
(e) be
for the diversion of water for the purpose of raising animals or applying
pesticides to crops, as part of a farm unit,
(f) contain
information and proof respecting
(i) the date of the first diversion of the water for the purpose of
raising animals or applying pesticides
to crops, as part of a farm unit, by any person on the land to which the
registration is to be appurtenant,
(ii) all sources of water used for the purpose of raising animals or
applying pesticides to crops on the specified land, as part of a farm unit,
(iii) a legal description of the land and the boundaries and size of
the parcel of land to which the registration is to be appurtenant,
(iv) estimates of the volumes and rates of water used for the purpose
of raising animals or applying pesticides to crops, as part of a farm unit, on
the specified land from the specified sources and where on the land the water
is used, and
(v) any other information required by the Director,
(g) be
made to the Director, and
(h) meet
the requirements of the regulations.
(5) The
Director may require an applicant for a registration to submit any additional
information the Director considers necessary within any time period required by
the Director.
(6) The applicant for registration is responsible
for providing the information required under this section.
1996 cW‑3.5 s73
Registration effected
74(1) Subject to section 34, on receipt of an
application for a registration that, in the opinion of the Director, is
complete, the Director must register the diversion of water applied for for the
purpose of raising animals or applying pesticides to crops, as part of a farm
unit, unless the Director is of the opinion that the information or proof
provided by the applicant is incorrect, in which case the Director may refuse
to register the diversion of water.
(2) A
registration is effected without an expiry date.
(3) The
Director may effect only one registration for a person unless the Director is
satisfied that
(a) the
person is raising animals or applying pesticides to crops on a parcel of land
that is distinct from any other parcel of land for which the person holds a
registration, and
(b) the
raising of animals or application of pesticides to crops is being done as part
of a different farm unit from any other farm unit to which any other
registration relates.
(4) Subsection (3) does not apply to the Government
with respect to unpatented Crown land.
1996 cW‑3.5 s74
Registration runs with
land
75(1) When effecting a registration, the Director
must specify in the registration the land to which the registration is appurtenant, the sources of
water from which water may be diverted
and the amount of water that may be diverted pursuant to the
registration.
(2) A
registration
(a) is
appurtenant to the land specified in the registration,
(b) is
inseparable from the land specified in the registration, and
(c) runs with the land on any disposition of the
land unless the Lieutenant Governor in Council orders otherwise.
1996 cW‑3.5 s75
Appeal
76(1) If a person has reasonable and probable grounds
to believe that the priority number of a registration is incorrect, the person
may by originating notice appeal the validity of the priority number to the
Court of Queen’s Bench, and the Court may make any order to amend a
registration as it considers appropriate.
(2) An appeal to the Court of Queen’s Bench under
subsection (1) must be made within 5 years after the registration is effected.
1996 cW‑3.5 s76
Amendments
77(1) If an amendment does not result in an increase
in the volume of the diversion of water, the Director may amend a registration
without the consent of the registrant
(a) in
order to correct a clerical error in the registration, or
(b) if
the Director has received notice of a disposition of land to which a
registration is appurtenant, to reflect the disposition.
(2) The Director may amend a registration if, in
the opinion of the Director, all the persons affected by the registration have
agreed to the amendment.
1996 cW‑3.5 s77
Suspension, cancellation
78(1) The Director may suspend or cancel a
registration
(a) on
the request of the registrant;
(b) if
a registration has been issued in error;
(c) if
there is an emergency or if, in the Director’s opinion, it is necessary for
public safety purposes;
(d) if the registrant is
indebted to the Government;
(e) if,
in the opinion of the Director, the registrant made a material
misrepresentation in obtaining the registration;
(f) if
the registrant has been convicted of an offence under this Act, other than an
offence under section 142(1)(j), (o) or (p).
(2) If a registration has been cancelled or
suspended, all rights of the traditional
agriculture user with respect to the land to which the registration is
appurtenant cease, and in addition to the Director’s exercising any powers provided
under Parts 7 and 10, the Government may recover any fees owing by the
traditional agriculture user to the Government under this Act.
RSA 2000 cW‑3
s78;2002 c4 s5
Division 5
Natural Flow Declaration
Natural flow declaration
79(1) The Director may declare that a drainage ditch,
channel realignment or oxbow cutoff that has been created
(a) pursuant
to an approval under this Act, or
(b) without
a permit, interim licence, including an updated and reissued interim licence or
a supplementary interim licence, licence, approval or other authority under an
Act
is a naturally
occurring water body for the purposes of this Act.
(2) If
a declaration is made under subsection (1),
(a) the
approval that authorized the activity or diversion of water that created the
drainage ditch, channel realignment or oxbow cutoff expires on the date the
declaration comes into effect,
(b) the
drainage ditch, channel realignment or oxbow cutoff must be treated as a
naturally occurring water body for the purposes of this Act, and
(c) the approval holder and the owner of the
land to which the approval was appurtenant is relieved of all further
responsibilities with respect to the drainage ditch, channel realignment or
oxbow cutoff.
1996 cW‑3.5 s79
Part 5
Changes in Ownership, Transfers
Division 1
Changes in Ownership
Land, undertaking
dispositions
80(1) Unless exempted in the regulations, if an
approval holder, preliminary certificate holder, licensee or registrant
disposes of land or an undertaking to which an approval, preliminary
certificate, licence or registration is appurtenant, the approval holder,
preliminary certificate holder, licensee or registrant must notify the Director
in writing of that disposition in a form and manner satisfactory to the
Director.
(2) If
the owner of land to which an approval, preliminary certificate or licence is
appurtenant is not the approval holder, preliminary certificate holder or
licensee and the owner of land disposes of the land or the undertaking, the
owner and the approval holder, preliminary certificate holder or licensee must
notify the Director in writing of that disposition in a form and manner
satisfactory to the Director.
(3) If
an owner of land, approval holder,
preliminary certificate holder, licensee or registrant who disposes of land or
an undertaking to which the approval, preliminary certificate, licence or
registration is appurtenant fails to provide notice to the Director in
accordance with this section, the owner of the land, approval holder,
preliminary certificate holder, licensee or registrant and the purchaser of the
land or undertaking to which the approval, preliminary certificate, licence or
registration is appurtenant
(a) are
jointly and severally liable for carrying out the duties and responsibilities
specified in the approval, preliminary certificate, licence or registration,
and
(b) are
subject to the duties and obligations under this Act including those related to
the approval, preliminary certificate, licence or registration.
(4) In
addition to the ability to issue a water management order to a person who has
purchased land or an undertaking to which an approval, preliminary certificate,
licence or registration is appurtenant, if the Director has not received a
notification under this section, the Director may issue a water management
order to the land owner, approval holder, preliminary certificate holder,
licensee or registrant who has disposed of the land or undertaking.
(5) Notwithstanding
subsections (1) to (4), if
(a) the
Director receives notice of a disposition of land or an undertaking in a manner
other than from the land owner, approval holder, preliminary certificate
holder, licensee or registrant, and
(b) the
approval, preliminary certificate, licence or registration has been amended to
reflect the disposition referred to in clause (a),
all previous land owners, approval holders, preliminary
certificate holders, licensees and registrants are relieved of their
obligations under this section.
1996 cW‑3.5 s80
Division 2
Transferring Water Allocations
Transfer application
81(1) An application for a transfer of an allocation
of water under a licence must be made to the Director and
(a) must
be made in a form and manner satisfactory to the Director,
(b) must
contain or be accompanied with any information required by the Director,
(c) must
be accompanied with the required fees, and
(d) may
be made with respect to all or part of an allocation of water under a licence.
(2) The
Director may require an applicant to submit any additional information that the
Director considers necessary within any time period required by the Director.
(3) If
an application under this section is made by a person other than the licensee,
the written consent of the licensee must be provided to the Director with the
application.
(4) If
the applicant for a transfer of an allocation of water under a licence does not
own the land in fee simple or the undertaking to which the new licence is to be
appurtenant, the written consent of the owner of the land or undertaking to which
the new licence is to be appurtenant must be provided to the Director with the
application for the transfer of the allocation.
(5) If
the licensee does not own the land in fee simple or the undertaking to which
the licence is appurtenant, the written consent of the owner of the land or the
undertaking must be provided to the Director with the application for the
transfer of the allocation of water under a licence.
(6) The
Director must conduct a public review of a proposed transfer of an allocation
of water under a licence, in a form and manner that the Director considers
appropriate.
(7) An
application for a transfer of an allocation of water under a licence may be
considered only if
(a) the
ability to transfer an allocation in the area of the Province referred to in
the application has been authorized
(i) in an applicable approved water management plan, or
(ii) if there is no applicable approved water management plan, by an
order of the Lieutenant Governor in Council,
(b) the
proposed transfer of an allocation is not from a licence that was issued as a
result of a previous transfer where the transferred allocation is to revert
back to the original licence, and
(c) the allocation of water to be transferred is
held under a licence in good standing.
1996 cW‑3.5 s81
Transfer approved,
licence issues
82(1) Subject to this section and sections 34, 81 and
83, on application, the Director may
(a) approve
the transfer of an allocation of water under a licence and, subject to
subsections (6) and (7)(b), issue a new licence for the transferred allocation
of water subject to any terms and conditions that the Director considers
appropriate, including specifying in the licence the land or undertaking to
which the licence is appurtenant, or
(b) refuse
to approve the transfer of an allocation.
(2) A
transfer of an allocation of water under a licence may be made
(a) with
respect to all or part of an allocation of water from a licence, and
(b) either
permanently or for a specified period of time.
(3) The
Director may approve a transfer of an allocation of water under a licence only
if
(a) the
volume of water to be transferred does not exceed the volume of water under the
licence from which the transfer of the allocation is to be made,
(b) the
transfer of the allocation, in the opinion of the Director, does not impair the
exercise of rights of any household user, traditional agriculture user or other
licensee other than the household user, traditional agriculture user or other
licensee who has agreed in writing that the transfer of the allocation may take
place, and
(c) the
transfer, in the opinion of the Director, will not cause a significant adverse
effect on the aquatic environment.
(4) An
allocation of water with respect to the following may not be transferred:
(a) a
licence for a temporary diversion of water;
(b) a
licence issued as a result of a previous transfer if the transferred allocation
is to revert back to the original licence after a specified period of time;
(c) a
right to divert water for household purposes;
(d) a
right to divert water pursuant to a registration;
(e) a
right to divert water pursuant to an approval;
(f) an
anticipated right to divert water pursuant to a preliminary certificate.
(5) In
making a decision under subsection (1), the Director
(a) must
consider, with respect to the applicable area of the Province, the matters and
factors that must be considered in approving a transfer of an allocation of
water under a licence, as specified in an applicable approved water management
plan,
(b) may
consider any existing, potential or cumulative
(i) effects on the aquatic environment and any applicable water
conservation objective,
(ii) hydraulic, hydrological and hydrogeological effects, and
(iii) effects on household users, traditional agriculture users and
other licensees,
that result or may result
from the transfer of the allocation, and
(c) may
consider
(i) effects on public safety,
(ii) with respect to irrigation, the suitability of the land to which
the allocation of water is to be transferred for irrigated agriculture,
(iii) the allocation of water that the licensee has historically
diverted under the licence, and
(iv) any other matters applicable to the transfer of the allocation
that the Director considers relevant.
(6) When
the Director issues a new licence with respect to a transfer of an allocation
of water under a licence under subsection (1)(a),
(a) if
only part of an allocation of water under a licence is transferred permanently,
the Director may amend the terms and conditions of the licence from which the
transfer of the allocation of water is made
(i) with respect to the rate of flow and volume of water diverted,
and
(ii) to give effect to the transfer,
and may make amendments, in
addition to those described in subclauses (i) and (ii), if they are within the
Director’s powers to amend under section 54,
(b) if
all of the water allocated under the licence from which the transfer is made is
transferred permanently, the Director must cancel the licence from which the
transfer is made, or
(c) if
all or part of an allocation of water is to revert back to the original
licence, the Director may amend the licence from which the transfer is made in
accordance with clause (a) and issue a new licence to give effect to the
transfer.
(7) If
a transfer of an allocation of water under a licence is approved,
(a) the
licence from which the transfer is made retains the priority number assigned to
it before the transfer if the licence is not cancelled under subsection (6)(b),
and
(b) the
new licence that is issued in respect of the transferred allocation
(i) must be given the same priority number as the licence from which
the allocation was transferred, and
(ii) is appurtenant to the land or the undertaking specified in the
new licence.
(8) On
the expiry of a licence issued to transfer an allocation of water under a
licence that is to revert back to the original licence,
(a) the
new licence that expired is void,
(b) the
allocation of water under the new licence that expired reverts back to the
licence from which the transfer of the allocation was made, and
(c) the Director may, subject to the
regulations, take any necessary steps to reverse the transfer, including but
not limited to amending the licence from which the transfer was made.
1996 cW‑3.5 s82
Water conservation
holdback
83(1) If the Director is of the opinion that
withholding water is in the public interest to protect the aquatic environment
or to implement a water conservation objective, and the ability to withhold
water has been authorized in an applicable approved water management plan or
order of the Lieutenant Governor in Council, the Director may withhold up to
10% of an allocation of water under a licence that is being transferred.
(2) A
withholding of an allocation of water under subsection (1) may be made only at
the time a new licence is issued with respect to a transfer of an allocation of
water.
(3) If
there has been a withholding of an allocation of water under subsection (1),
(a) the
water may remain in the natural water body, for the purposes of providing or
maintaining a rate of flow of water or water level requirements, without
issuing a licence for that water,
(b) the
water may be reserved or added to an existing reservation under section 35, or
(c) the
Director may not issue a licence with respect to the withheld water except to
the Government under section 51(2) for an allocation of that water in
accordance with the priority number and terms and conditions of the licence
from which the water was withheld.
(4) If a withholding of an allocation of water
under subsection (1) has been made with respect to a transfer of an allocation
of water under a licence that is to revert back to the original licence, the
withheld allocation does not revert back to the original licence and remains
with the Government.
1996 cW‑3.5 s83
Part 6
Water Management Works
and Undertakings
Construction and
operation by Minister
84 If the Minister is of the opinion that it
is in the public interest to do so, the Minister may
(a) construct,
operate, maintain, repair, control, replace and remove a works, and
(b) initiate
and carry out an undertaking,
for any purpose that the Minister considers appropriate if
the Minister obtains an approval or licence where required.
1996 cW‑3.5 s84
Undertaking construction
85 The construction, operation, maintenance,
repair, control, replacement or removal of a works or the initiation or
carrying out of an undertaking may be undertaken
(a) by
or under the direction of the Director,
(b) by
or under the direction of an employee who is under the administration of the
Minister and designated by the Director, or
(c) by a person designated by the Director, who
is an agent or employee of or is under contract with the Government, a local
authority or the Government of Canada.
1996 cW‑3.5 s85
Public Works Act
applicable
86 If the Minister enters into a
contract with any person for the construction, operation, maintenance, repair,
control, replacement or removal of a works or the initiation or carrying out of
an undertaking, except where otherwise provided the Public Works Act applies to the tenders and the contracts.
1996 cW‑3.5 s86
Tenders
87(1) In addition to complying with the provisions
regarding tenders provided for in the Public
Works Act, the Minister may, when it appears practical or expedient to do
so, call for tenders by invitation, public advertisement or public notice for
the operation, maintenance, repair, control, replacement and removal of a works
or the initiation or carrying out of an undertaking.
(2) The Minister may provide notice, in accordance
with the regulations, of a call for a tender or any extension of time for
receiving a tender.
1996 cW‑3.5 s87
Withdrawal of tender
88(1) A tender may be withdrawn at any time up to the
time fixed for receiving tenders, but only on a request in writing signed by
the tenderer or an agent of the tenderer.
(2) No
person may withdraw a tender at or after the time fixed for receiving tenders
until the earlier of
(a) the
Government’s entering into a contract with some other person for the
performance of the work, the initiation or carrying out of the undertaking or
the supplying of the materials specified in the notice inviting tenders, and
(b) 60 days after the time fixed for receiving
tenders.
1996 cW‑3.5 s88
Acquisitions and
takeovers by Minister
89(1) The Minister may, if the Minister is of the
opinion that it is in the public interest to do so, acquire
(a) by
purchase, or
(b) through
any gift or bequest to the Government,
a works that is under
construction or completed or an undertaking that has been initiated or carried
out.
(2) The
Minister may, if the Minister is of the opinion that it is in the public
interest to do so, take over and operate a works that is under construction or
completed or carry out an undertaking, if
(a) the
works or undertaking has been abandoned,
(b) it
is necessary for public safety,
(c) in
the opinion of the Director, the works is being or has been operated or the
undertaking is being or has been initiated or carried out contrary to the terms
and conditions of an approval or licence or this Act,
(d) the
licence or preliminary certificate with respect to the works or undertaking has
been suspended or cancelled,
(e) the
person, approval holder, preliminary certificate holder or licensee responsible
for the works or undertaking is bankrupt or insolvent, or
(f) an
emergency has been declared with respect to the works or undertaking under
section 107.
(3) If
a works or undertaking has been acquired or taken over under subsection (1) or
(2), the Minister has, in addition to all the powers provided under this Act,
all the powers, duties and privileges of the approval holder, preliminary
certificate holder, licensee or registrant applicable to the works, for the
purposes of
(a) operating
the works or carrying out the undertaking that has been acquired or taken over,
(b) setting
and collecting fees and charges for the use of the works or undertaking by
others or for the supply of water, and
(c) generally
carrying on business with respect to the works or undertaking.
(4) Subject
to any applicable licence, the Minister may specify which land is to be served
by the works or undertaking acquired or taken over under subsection (1) or (2).
(5) On
acquiring or taking over a works or undertaking under subsection (1) or (2),
the Minister is entitled to recover and receive
(a) from
any person under any contract with the approval holder, preliminary certificate
holder, licensee or registrant for the supply of water, all money then accrued
to the approval holder, preliminary certificate holder, licensee or registrant, and
(b) from
all water users, all money that they would have been under an obligation to pay
in respect of the water supply if the approval holder, preliminary certificate
holder, licensee or registrant had continued the operation of the works or the
initiation or carrying out of the undertaking.
(6) If
the Minister has acquired or taken over a works or undertaking under subsection
(1) or (2) for irrigation purposes, the Minister has all the powers, privileges
and immunities of an irrigation district.
(7) If
the Minister has taken over a works or undertaking under subsection (2)
(a) for
the purposes of an emergency or public safety, the Minister may pay
compensation to the approval holder, preliminary certificate holder, licensee
or registrant for any losses incurred by the approval holder, preliminary
certificate holder, licensee or registrant as a result of the takeover, in the
manner and amount the Minister considers appropriate, but
(b) compensation is not payable to any person
for a takeover for purposes other than an emergency or public safety.
1996 cW‑3.5
s89;1999 cI‑11.7 s214
Disposal of works or
undertaking
90 The Minister may, if the
Minister is of the opinion that it is in the public interest to do so, dispose
of a works or undertaking acquired or taken over under section 89 by sale or
any other means.
1996 cW‑3.5 s90
Repossession and
resumption of operation
91 If the Minister has taken over a works or
undertaking under section 89 and has not disposed of the works or undertaking
under section 90, the approval holder, preliminary certificate holder, licensee
or registrant is entitled to resume the possession and operation of it at any
time that the Minister considers appropriate, on
(a) paying
to the Minister, as specified by the Minister, any costs incurred by the
Minister in the operation of the works or the carrying out of the undertaking,
and
(b) satisfying the Minister that the approval
holder, preliminary certificate holder, licensee or registrant is able to
operate the works or carry out the undertaking.
1996 cW‑3.5 s91
Use of land administered
by Minister
92(1) The Director may, subject to the regulations,
by order with respect to public land that is under the administration of the
Minister that is related to or used in connection with a works or undertaking
in which the Government has a property interest or that is related to an
approval, preliminary certificate or licence issued to the Government,
(a) permit,
restrict, prohibit or impose any conditions on
(i) the use of any land or water for any purpose by a person,
including but not limited to use by a person’s animals,
(ii) the use of any reservoir or part of any reservoir,
(iii) the use, speed, direction of travel, stopping, leaving or parking
of any vehicle or thing on any land or reservoir,
(iv) the erection of signs or devices on land, and
(v) any nuisance or noise on land,
and
(b) seize,
remove or detain, or direct an owner or operator of a vehicle or thing to
remove, any vehicle or thing parked or left in contravention of the
regulations, if the vehicle or thing is located on land or a reservoir under
the administration of the Minister.
(2) A
person, other than the owner or operator, who seizes, removes or detains a
vehicle or thing under subsection (1)(b) must provide a justice with an
affidavit describing the vehicle or thing and the reason for the seizure,
removal or detention, and describing the disposition of the vehicle or thing.
(3) The
Director or the owner of a vehicle or thing seized, removed or detained under
subsection (1)(b) may make an application to a justice for an order respecting
the disposition of it and the justice must
(a) order
that the application be stayed and be dealt with pursuant to section 150, or
(b) if
section 150 is not applicable, make an order that the thing seized, removed or
detained
(i) be confiscated to the Crown in right of Alberta, or
(ii) be returned to the person who is entitled to
it.
1996 cW‑3.5 s92
Part 7
Remedial Measures
Division 1
Resolution of Disputes,
Removal of Works
Dispute resolution
93 If 2 or more persons are
unable to resolve a complaint or dispute with respect to a matter under this
Act, any one of the persons involved in the complaint or dispute may make a
request to the Director that the matter be reviewed.
1996 cW‑3.5 s93
Mediation
94(1) If a review of a complaint or dispute has been
conducted and the complaint or dispute is not resolved, the Director may
appoint a mediator to assist in resolving the complaint or dispute if
(a) the
Director is of the opinion that there has not been a contravention of this Act
with respect to the complaint or dispute, and
(b) the
persons involved in the complaint or dispute are in agreement that the matter
should be referred to a mediator.
(2) The Director may require that all or part of
the costs of a mediator be paid by the persons involved in the complaint or
dispute who participate in the mediation and may direct the amount that each
person must pay.
1996 cW‑3.5 s94
Removal of works and
obstructions
95 The Director or any person authorized in
writing by the Director may, at any reasonable time, enter on any land and
remove or otherwise render ineffective
(a) a
works constructed without an approval,
(b) a
works not constructed in accordance with an approval,
(c) a
works referred to in an approval or licence that has expired or has been
cancelled, or
(d) a
natural or other obstruction, including but not limited to an obstruction
formed by soil, debris, ice or vegetation, or beaver dam, if, in the opinion of
the Director, the obstruction or dam causes the diversion of water or
interferes with the flow of any water,
if, in the opinion of the Director, there is an
interference with the rights of a household user, licensee or traditional
agriculture user, or with private or public property, as a result of the works,
obstruction or dam.
1996 cW‑3.5 s95
Flood risk areas
96(1) If the Minister is of the opinion that there is
or may be a risk to human life or property as a result of flooding, the
Minister may designate, subject to the regulations,
(a) any
area of land in the Province as a flood risk area, either generally or on an
interim basis, and
(b) specify
any acceptable land uses with respect to the flood risk area.
(2) If
the Minister has made a designation under subsection (1)(a), subject to the
regulations,
(a) new
Government works or undertakings must not be located or carried out,
(b) Government
financial assistance must not be given to any person who engages in a use other
than a use specified under subsection (1)(b), and
(c) money
and services and Government disaster assistance programs may be restricted with
respect to flood damage,
in the designated
flood risk area after the designation has been made, except as specified in the
designation or the regulations.
(3) The
Minister must consult with the local authority that is responsible for a
proposed flood risk area before making a designation under subsection (1).
(4) For the purposes of subsection (3), “local
authority” does not include a local authority as defined in section
1(1)(ff)(vi) to (ix).
1996 cW‑3.5 s96
Division 2
Water Management Orders
Order issues
97(1) An inspector or the Director may issue a water
management order
(a) to
any person for the purpose of administering priority under this Act if the
inspector or the Director is of the opinion that
(i) prior to the dispute, the works of the person claiming priority
was adequate to divert the water to which the person has a priority, and
(ii) the issuance of the order will provide a remedy with respect to
priority;
(b) to
an approval holder, preliminary certificate holder, licensee, registrant or
owner of a works
(i) if, in the opinion of the inspector or Director, there has been a
failure to maintain, repair, improve, alter or replace a works referred to in
the approval, preliminary certificate, licence or registration, or
(ii) if all or part of the works referred to in the approval,
preliminary certificate, licence or registration fails or collapses;
(c) to
any person responsible for
(i) a works that does not require an approval,
(ii) a diversion of water that does not require a licence or
registration,
(iii) an activity that does not require an approval, or
(iv) a diversion of water for household purposes,
if, in the opinion of the
inspector or Director, an adverse effect on the aquatic environment, human
health, property or public safety occurred, occurs or may occur;
(d) to
any person holding a licence for the temporary diversion of water, if the
inspector or Director is of the opinion that the diversion of water should be
suspended;
(e) to
any owner or occupier of land if on that land, in the opinion of the inspector
or Director, a flood occurred, occurs or may occur;
(f) to
the person responsible for a water well if, in the opinion of an inspector or
the Director, the water well is a problem water well or any actions related to
the drilling of a water well caused, causes or may cause an adverse effect on
the environment or on human health, property or public safety;
(g) to
the person in charge of drilling, if the inspector or Director is of the
opinion that any drilling of any kind caused, causes or may cause an adverse
effect on groundwater;
(h) to
a person responsible for an activity, diversion of water or operation of a
works, if the inspector or Director is of the opinion that the activity,
diversion of water or operation of a works caused, causes or may cause a
significant adverse effect on human health, property or public safety;
(i) to
a household user, approval holder or licensee whose licence has been issued
under this Act, if an inspector or the Director is of the opinion that a
diversion of water caused, causes or may cause a significant adverse effect on
the aquatic environment, human health, property or public safety, and
compensation may be payable under section 158 with respect to a licence issued
under this Act.
(2) If
the Director is of the opinion that water is not being conserved or that a
person has wasted any water that is diverted pursuant to an approval, licence,
registration or this Act and the wastage is contrary to a water conservation
guideline respecting wastage of water, the Director may issue to any person a
water management order for conservation purposes.
(3) An inspector may issue a water management order
that is in effect for a period of up to 4 days, and the Director may issue a
water management order that is in effect for any period of time stated in the
order.
1996 cW‑3.5 s97
Order by inspector
98 If an inspector issues a water
management order under section 97, the inspector must give a copy of it to the
Director immediately after issuing it.
1996 cW‑3.5 s98
Terms of order
99(1) A water management order issued by the Director
may
(a) order
the person to whom it is directed to take any measures that the Director
considers necessary, including but not limited to any or all of the following:
(i) to make inquiries into the subject‑matter of the order;
(ii) to submit to the Director
(A) any information on the subject‑matter
of the order, or
(B) a proposal or plan including but not limited
to preparing an emergency preparedness plan or conducting an examination or
survey of a water body, for the Director’s approval on any action that is to be
undertaken with respect to the subject‑matter of the order;
(iii) to remove or otherwise to render ineffective
(A) a works placed or constructed without an
approval,
(B) a works that is no longer required or for
which an approval, licence or registration has been cancelled or is no longer
in effect, or
(C) a natural or other obstruction to the
diversion or flow of water caused in any manner;
(iv) to maintain, repair, improve, alter, replace or remove a works;
(v) to operate a works for a specified result or in a specified
manner;
(vi) to cease construction with respect to an activity, diversion of
water or operation of a works for a specified period;
(vii) to stop, shut down or suspend an activity, diversion of water or
operation of a works or thing for a specified period;
(viii) to prevent, minimize or remedy any adverse effects on the aquatic
environment, human health, property or public safety;
(ix) to stop wasting water and comply with the water guideline
regarding wastage of water;
(x) to carry out any emergency measures that the inspector or the
Director considers necessary;
(xi) to restore or reclaim the area affected to a condition
satisfactory to the Director;
(xii) to report on any matter that the order requires to be carried
out;
(xiii) to maintain records on any relevant matter;
(xiv) to report periodically to the Director;
(xv) with respect to a problem water well, to reclaim the water well
or take any remedial action with respect to the water well and to prevent,
minimize or remedy any adverse effects on the environment, human health,
property or public safety;
(xvi) to modify, suspend or stop any of the actions related to the
drilling of a water well and to prevent, minimize or remedy any adverse effects
on the environment, human health, property or public safety;
(xvii) to take any other measure that the Director considers necessary;
(b) contain
provisions specifying
(i) how the order is to be carried out,
(ii) the time within which any measure required by the order is to be
commenced and the time within which the order or any part of the order is to be
complied with, and
(iii) the apportionment of the costs of doing any of the work or
carrying out any of the measures specified in the order among the persons to
whom the order is directed.
(2) A
water management order issued by an inspector under section 97 may contain any
or all measures under subsection (1)(a)(v), (vi), (vii), (x), (xv) and (xvi)
and (b)(i) and (ii).
(3) The
person issuing a water management order must give a copy of it to the person to
whom it is directed.
(4) If a water management order requires an
approval holder, preliminary certificate holder, licensee or traditional
agriculture user to carry out an activity or diversion of water that is not
specified in or is contrary to the approval, preliminary certificate, licence
or registration, the approval holder, preliminary certificate holder, licensee
or traditional agriculture user does not contravene this Act when complying
with the order.
1996 cW‑3.5 s99
Responsibility to carry
out orders
100 If a water management order is directed
to more than one person, all persons named in the order
(a) are
jointly responsible for carrying out the order, and
(b) are jointly and severally liable for payment
of the costs of doing so, including any costs incurred by the Director under
section 103 or 104.
1996 cW‑3.5 s100
Amendment and
cancellation of orders
101(1) The Director may on the Director’s own
initiative
(a) amend
a term or condition of,
(b) cancel,
or
(c) amend
a clerical error in,
a water management
order issued by the Director or by an inspector.
(2) If a water management order is amended under
subsection (1), a copy of the amended order must be given by the Director to
the same person to whom the original order was directed.
1996 cW‑3.5 s101
Court order for
compliance
102(1) If the person to whom a water management order
is directed fails to comply with the water management order, the Minister may
apply to the Court of Queen’s Bench for an order of the Court directing that
person to comply with the water management order.
(2) This section applies whether or not a
conviction has been adjudged against the person to whom the water management
order is directed for an offence under this Act in respect of the subject‑matter
that gave rise to the issuing of the water management order.
1996 cW‑3.5 s102
Director may carry out
order
103(1) If the person to whom a water management order
is directed fails to comply with the order, the Director may take whatever
action the Director considers necessary to carry out the order.
(2) Costs
incurred by the Director under this section are recoverable by the Government
(a) in
an action in debt against the person to whom the water management order is
directed, or
(b) by
order of the Minister directing any person who has acquired or purchased or is
to acquire or purchase land from the person to whom the water management order
is directed to pay to the Government instead of to the vendor an amount not
exceeding the amount owing in respect of the costs.
(3) Even
if the identity of a person to whom the Minister may make an order under
subsection (2)(b) is not known the Minister may issue the order and when the identity
of the person becomes known the Director may take whatever action the Director
considers necessary to ensure compliance with the order.
(4) For
the purposes of this section, the costs referred to in subsection (2) include,
without limitation, any costs incurred in administering, investigating and
responding to
(a) any
matter to which the water management order relates, or
(b) any
failure to comply with the water management order.
(5) A purchaser of land who pays an amount to the
Government under subsection (2)(b) is discharged from any obligation to pay
that amount to the vendor.
1996 cW‑3.5 s103
Order where person
unidentifiable
104(1) If this Act authorizes the issuance of a water
management order but none of the persons to whom the order could be issued are
identifiable, the Director may nevertheless issue the order and take whatever
action the Director considers necessary to carry out the order.
(2) The costs of carrying out a water management
order under this section are recoverable in accordance with section 103 against
any person to whom the water management order referred to in subsection (1)
could have been issued, if the identity of the person becomes known to the
Director after the order is issued.
1996 cW‑3.5 s104
Division 3
Emergencies
Emergency measures
105(1) If an inspector or investigator or the Director
is of the opinion that an activity, diversion of water or operation of a works
(a) occurred,
occurs or may occur, and
(b) caused,
causes or may cause an immediate and significant adverse effect on the aquatic
environment, human health, property or public safety,
the inspector,
investigator or Director may take any emergency measures that the inspector,
investigator or Director considers necessary to prevent immediate and significant
damage to the aquatic environment, human health, property or public safety.
(2) Subsection
(1) applies whether or not the activity, diversion of water or operation is
authorized by an approval, licence or registration and whether or not the
approval holder, licensee or traditional agriculture user is or was in
compliance with the approval, licence, registration or this Act.
(3) If an inspector or investigator or the Director
is of the opinion that an immediate and significant adverse effect on the environment,
human health, property or public safety occurred, occurs or may occur due to a
problem water well or to any actions related to the drilling of a water well,
the inspector, investigator or Director may take any emergency measures that
the inspector, investigator or Director considers necessary to protect the
environment, human health, property or public safety.
1996 cW‑3.5 s105
Recovery of costs
106 The costs of carrying out
emergency measures under section 105 are recoverable by the Government in an
action in debt against the person, government of another jurisdiction or local
authority that is responsible for the need to take the emergency measures.
1996 cW‑3.5 s106
Declaring an emergency
107(1) The Lieutenant Governor in Council may, when satisfied
that an emergency related to water exists or may exist, declare an emergency
relating to all or any part of Alberta.
(2) Notwithstanding
anything in this Act or any approval, preliminary certificate, licence or
registration under this Act, if an emergency has been declared under subsection
(1), the Director may issue a water management order to any person
(a) suspending
the operation of all or part of any approval, preliminary certificate, licence
or registration,
(b) suspending
a diversion of water,
(c) designating
the purposes for which, and the volumes in which, water may be diverted or
used, and
(d) ordering
or containing any of the measures or provisions referred to in section 99,
with respect to the
area of the Province affected by the declaration.
(3) Licensees or registrants affected by a
declaration under subsection (1) may be entitled to compensation for any losses
incurred as a result of the order in the manner and amount that the Lieutenant
Governor in Council considers appropriate.
1996 cW‑3.5 s107
Part 8
Notice
Notice of applications
108(1) An applicant
(a) for
an approval,
(b) for
a licence,
(c) for
a renewal of a licence if the Director has decided to conduct a public review
of the licence renewal,
(d) for
an amendment of
(i) an approval,
(ii) a preliminary certificate, or
(iii) a licence,
or
(e) for
a transfer of an allocation of water under a licence,
shall provide notice
of the application in accordance with the regulations.
(2) If
the Director proposes to amend an approval, preliminary certificate or licence
on the Director’s own initiative, the Director must provide notice of the
proposed amendment in accordance with the regulations.
(3) Notwithstanding
subsection (1), an applicant is not required to provide notice with respect to
(a) an
application for a licence for the temporary diversion of water;
(b) an
amendment
(i) to correct a clerical error,
(ii) to a monitoring, reporting or inspection requirement in an
approval, preliminary certificate or licence, or
(iii) to extend the expiry date of an approval, preliminary certificate
or licence,
unless required by the
regulations;
(c) the
disposition of land or an undertaking to which an approval, preliminary
certificate, licence or registration is appurtenant;
(d) a
matter that is exempted by the regulations from the requirement to give notice.
(4) Notwithstanding
subsection (1), if an applicant applies for and gives notice of an application
for an approval and the applicant subsequently applies for another approval
with respect to an undertaking related to the subject‑matter of the
original application, the Director may waive the requirement to provide notice
of the subsequent application.
(5) Notwithstanding
subsection (1), if notice has been provided under subsection (1)(e), notice
does not have to be provided under subsection (1)(d) in order to give effect to
the transfer of an allocation of water under a licence.
(6) Notwithstanding
subsection (1), if the Director has received an application for an approval, a
licence or an amendment of an approval, preliminary certificate or licence or
the Director proposes to make an amendment on the Director’s own initiative,
the Director may waive the notice requirement under subsection (1) if the
Director is of the opinion that
(a) there
is an emergency,
(b) the
activity or diversion of water specified in the application for the approval or
licence or the proposed amendment will result in a minimal or no adverse effect
on the aquatic environment or on household users, licensees and traditional
agriculture users, or
(c) adequate notice of the subject‑matter
of the application or the proposed amendment has already been provided or given
under this Act or the Water Resources Act,
RSA 1980 cW‑5.
1996 cW‑3.5 s108
Statement of concern
109(1) If notice is provided
(a) under
section 108(1), any person who is directly affected by the application or
proposed amendment, and
(b) under
section 108(2), the approval holder, preliminary certificate holder or
licensee,
may submit to the
Director a written statement of concern setting out that person’s concerns with
respect to the application or proposed amendment.
(2) A
statement of concern must be submitted
(a) in
the case of an approval, within 7 days after the last providing of the notice,
and
(b) in
every other case, within 30 days after the last providing of the notice,
or within any longer period specified by the Director in
the notice.
1996 cW‑3.5 s109
Notice of Director’s decision
110(1) If the Director issues or refuses to issue an
approval or licence, or issues a preliminary certificate, the Director must
give notice to the applicant.
(2) If
the Director amends or refuses to amend an approval, preliminary certificate or
licence, the Director must give notice of the amendment or refusal to amend to
the approval holder, preliminary certificate holder or licensee.
(3) If
the Director suspends or cancels an approval or licence or cancels a
preliminary certificate, the Director must give notice of the suspension or
cancellation to the approval holder, preliminary certificate holder or
licensee.
(4) If
the Director makes a decision under section 53 that no applications for
licences will be accepted, the Director must provide notice in accordance with
the regulations.
(5) If
the Director approves or refuses to approve a transfer of an allocation of
water under a licence under section 82, the Director must give notice of the
approval or refusal to the applicant for the transfer.
(6) If
an inspector or the Director issues a water management order or the Director
issues an enforcement order, the inspector or the Director must give a copy of
the order to the person to whom the order is directed.
(7) If
the Minister takes over a works or undertaking under section 89, the Director
(a) must
give notice to the owner of the works or undertaking, and
(b) if the works or undertaking is referred to
in an approval, preliminary certificate or licence, must give notice to the
approval holder, preliminary certificate holder or licensee.
1996 cW‑3.5 s110
Notice of Director’s decision
111(1) If the Director
(a) issues
an approval,
(b) issues
a preliminary certificate,
(c) issues
a licence when a preliminary certificate has not been issued with respect to
that licence, except for a licence issued to the Government under section 51(2)
that relates to the implementation of a water conservation objective, or
(d) amends
an approval, preliminary certificate or licence,
the Director must
comply with the notice requirements referred to in subsection (2).
(2) If
subsection (1) applies, the Director must
(a) if
notice of the application or proposed changes was waived by the Director under
section 108(6), ensure that notice of the decision is provided, in accordance
with the regulations, to any directly affected person, or
(b) if
notice of the application or proposed changes was provided under section 108,
give notice or require the approval holder, preliminary certificate holder or
licensee to give notice of the decision, in accordance with the regulations, to
every person who submitted a statement of concern under section 109.
(3) If
notice of an application was provided under section 108 and the Director
refuses to
(a) issue
an approval or licence, or
(b) amend
an approval, preliminary certificate or licence,
the Director must give
notice of the refusal to any person who submitted a statement of concern in
accordance with section 109.
(4) If
the Director issues or refuses to issue a licence to the Government under
section 51(2), the Director must provide notice of the issuance or refusal, in
accordance with the regulations.
(5) If
the Director renews a licence and there has been a public review, the Director
must give notice of the renewal to any person who submitted a statement of
concern under section 109.
(6) If
the Director suspends or cancels an approval or licence or cancels a
preliminary certificate, the Director must provide notice of the suspension or
cancellation, in accordance with the regulations.
(7) If
the Director approves or refuses to approve a transfer of an allocation of
water under a licence, the Director must provide notice of the approval or
refusal, in accordance with the regulations, to every person who submitted a
statement of concern under section 109.
(8) In addition to notice specified in this
section, the Director may also give notice to any other person the Director
considers appropriate.
1996 cW‑3.5 s111
Notice of exemptions
112(1) Notwithstanding sections 110 and 111, the
Director is not required to provide or give notice with respect to a decision
relating to a licence for the temporary diversion of water unless required by
the regulations.
(2) Notwithstanding
sections 110 and 111, if the Director issues an approval and gives notice of
the issuance, and then the Director issues a subsequent approval with respect
to an undertaking relating to the subject‑matter of the original
approval, the Director is not required to provide or give notice of the
subsequent approval.
(3) Notwithstanding
sections 110 and 111, the Director is not required to provide or give notice of
a decision
(a) to
correct a clerical error,
(b) to
amend a monitoring, reporting or inspection requirement in an approval,
preliminary certificate or licence,
(c) to
extend the expiry date of an approval, preliminary certificate or licence, or
(d) to
give effect to the disposition of land or an undertaking to which an approval,
preliminary certificate, licence or registration is appurtenant
unless required by the regulations.
1996 cW‑3.5 s112
Notice of Minister’s decision
113 If the Minister under section
52(3) issues an order to grant a licence to use another person’s works, the
Minister must give notice of the order to the owner of the works.
1996 cW‑3.5 s113
Part 9
Appeals
Appeal to Board
114 A notice of appeal submitted
under this Part initiates an appeal of the decision to which an objection has
been made to the Environmental Appeals Board.
RSA 2000 cW‑3
s114;2003 c42 s6
Notice of appeal
115(1) A notice of appeal under this Act may be submitted
to the Environmental Appeals Board by the following persons in the following
circumstances:
(a) if
the Director issues or amends an approval, a notice of appeal may be submitted
(i) by the approval holder or by any person who previously submitted
a statement of concern in accordance with section 109 who is directly affected
by the Director’s decision, if notice of the application or proposed changes
was previously provided under section 108, or
(ii) by the approval holder or by any person who is directly affected
by the Director’s decision, if the Director waived the requirement to provide
notice under section 108(6) and notice of the application was not provided;
(b) if
the Director issues or amends a preliminary certificate, a notice of appeal may
be submitted
(i) by the preliminary certificate holder or by any person who
previously submitted a statement of concern in accordance with section 109 who
is directly affected by the Director’s decision, if notice of the application
or proposed changes was previously provided under section 108, or
(ii) by the preliminary certificate holder or by any person who is
directly affected by the Director’s decision, if the Director waived the
requirement to provide notice under section 108(6) and notice of the
application was not provided;
(c) if
a preliminary certificate has not been issued with respect to a licence and the
Director issues or amends a licence, a notice of appeal may be submitted
(i) by the licensee or by any person who previously submitted a
statement of concern in accordance with section 109 who is directly affected by
the Director’s decision, if notice of the application or proposed changes was
previously provided under section 108, or
(ii) by the licensee or by any person who is directly affected by the
Director’s decision, if the Director waived the requirement to provide notice
under section 108(6) and notice of the application or proposed changes was not
provided;
(d) subject
to clause (e), the applicant for the approval or licence, if the Director
refuses to issue an approval or licence;
(e) if
the Director issues or refuses to issue a licence to the Government under
section 51(2), the applicant for the licence and any directly affected person;
(f) the
applicant, if the Director refuses to amend an approval, preliminary
certificate or licence;
(g) the
approval holder, preliminary certificate holder, licensee or registrant, if the
Director suspends or cancels an approval, licence or registration or cancels a
preliminary certificate;
(h) the
licensee, if the Director refuses to renew a licence;
(i) if
the Director renews a licence where there has been a public review, any person
who previously submitted a statement of concern in accordance with section 109;
(j) if
the Minister takes over any works or undertaking, the approval holder,
preliminary certificate holder or licensee or the owner of the works or
undertaking;
(k) if
the Director provides notice that no further applications for licences are to
be accepted, a person who wishes to apply for a licence for any water that was
the subject of the notice;
(l) the
owner of the works, if the Minister issues an order with respect to the use of
another person’s works under section 52(3);
(m) if
an inspector or the Director issues a water management order or amends a water
management order, except an order with respect to administering priority or an
order that is only for the purpose of carrying out emergency measures, the
person to whom the order is directed;
(n) if
an inspector or the Director issues a water management order or amends a water
management order with respect to administering priority, the person to whom the
order is directed, or any person whose rights to divert water may be affected
by the issuance of the order with respect to who has priority;
(o) a
person who is entitled to divert water pursuant to section 21 and who is
affected by a declaration by the Director that a diversion of water must cease;
(p) the
person to whom an enforcement order is directed, if the Director issues an
enforcement order directing
(i) the suspension or cancellation of an approval or licence or the
cancellation of a preliminary certificate,
(ii) the stopping or shutting down of any activity, diversion of water
or operation of a works if the activity, diversion or operation is the subject‑matter
of an approval or licence,
(iii) the ceasing of construction, operation, maintenance, repair,
control, replacement or removal of any works or the carrying out of an
undertaking, if the works or undertaking is the subject of an approval, or
(iv) the removal or otherwise rendering ineffective of any works or
obstruction;
(q) if
the Director requires a person to pay an administrative penalty, the person to
whom the notice of the administrative penalty is directed;
(r) if
the Director approves or refuses a request for a transfer of an allocation of
water, the applicant and any person who submitted a statement of concern in
accordance with section 109 who is directly affected by the Director’s decision.
(2) Notwithstanding
subsection (1), a notice of appeal may not be submitted
(a) if,
pursuant to an order of the Minister under section 34, the Director
(i) refuses to issue an approval, preliminary certificate or licence,
or
(ii) refuses to approve a transfer of an allocation of water under a
licence;
(b) with
respect to any matter relating to a licence for the temporary diversion of
water;
(c) with
respect to an amendment
(i) to correct a clerical error,
(ii) of a monitoring, reporting or inspection requirement in an
approval, preliminary certificate or licence, or
(iii) to extend the expiry date of an approval, preliminary certificate
or licence;
(d) with respect to an amendment to reflect a
disposition of land or an undertaking to which an approval, preliminary
certificate, licence or registration is appurtenant.
RSA 2000 cW‑3
s115;2003 c42 s6
Submission of notice of
appeal
116(1) A notice of appeal must be submitted to the
Environmental Appeals Board
(a) not
later than 7 days after
(i) receipt of a copy of a water management order or enforcement
order, or
(ii) in the case of an approval, receipt of notice of the decision
that is appealed from or the last provision of notice of the decision that is
appealed from,
or
(b) in
any other case, not later than 30 days after receipt of notice of the decision
that is appealed from or the last provision of notice of the decision that is
appealed from.
(2) The
Environmental Appeals Board may, on application made before or after the expiry
of the period referred to in subsection (1), extend that period, if the Board
is of the opinion that there are sufficient grounds to do so.
(3) A notice of appeal must contain the information
and be made in the manner provided for in the Environmental Protection and Enhancement Act and the regulations
under that Act.
RSA 2000 cW‑3
s116;2003 c42 s6
No damages, no
compensation
117 If an inspector or the
Director issues a water management order with respect to administering priority
and that order or part of the order is successfully appealed by any person, no
action for damages may be commenced and no compensation may be paid with
respect to any impact on or losses incurred with respect to any person’s
priority as a result of the issuance or appeal of the water management order.
1996 cW‑3.5 s117
Part 10
Inquiry and Enforcement Orders
Division 1
Inspection
Inspector identification
118(1) The Director must provide an inspector
with an identification card, and on entering any place pursuant to this Act,
the inspector must, on request,
(a) produce
the identification card, and
(b) identify
and explain the nature of the powers or duties that the inspector wishes to
carry out under this Act.
(2) A
person authorized in writing by the Director, on entering any place pursuant to
the authorization, must, on request,
(a) produce
a copy of the written authorization, and
(b) identify and explain the nature of the
powers and duties that the person wishes to carry out under this Act.
1996 cW‑3.5 s118
Right of entry by
inspector and authorized persons
119(1) An inspector or any person authorized in
writing by the Director may enter any place or gain access to any place, other
than a private dwelling place, for the purpose of administering or ensuring
compliance with this Act or any order made under this Act, and carrying out any
work or doing any other thing that the inspector or authorized person is
authorized under this Act to carry out or do, including but not limited to any
of the following:
(a) enter
and inspect any place, other than a private dwelling place, in which the
inspector or authorized person believes, on reasonable grounds, that
(i) there is a works,
(ii) an undertaking is or was initiated or carried out,
(iii) an activity or diversion of water is or was carried out,
(iv) there is or may be an obstruction that interferes with a
diversion or a flow of water,
(v) it is or is required to be the subject of or referred to in an
approval, preliminary certificate, licence, registration, certificate of
completion, water management order or enforcement order, or
(vi) it is necessary to ensure the safety of a works or the protection
of any person or property that could be affected by the safety of a works;
(b) enter
and inspect any place, other than a private dwelling place, that the inspector
or authorized person believes, on reasonable grounds, is relevant to any
complaint made with respect to this Act;
(c) enter
and inspect any place, other than a private dwelling place, that the inspector
or authorized person believes, on reasonable grounds, is likely to contain
documents related to an activity, operation of a works or diversion of water,
or to contain anything that is or is required to be the subject of an approval,
preliminary certificate, licence, registration, certificate of completion,
water management order or enforcement order.
(2) A
person who has been authorized in writing by the Director may exercise the
powers under subsection (1) with or without being accompanied by the inspector.
(3) If
a water management order or an enforcement order requires the person to whom it
is directed to carry out any work or do anything in respect of a place, that
person and any other person carrying out the work or doing the thing on that
person’s behalf may enter the place, other than a private dwelling place, for
the purpose of carrying out the work or doing the thing required by the order.
(4) A
person entering any place under this section
(a) must
do so at a reasonable time unless otherwise authorized by an order of a justice
to enter and inspect,
(b) must,
if it is practicable in the circumstances to do so, give reasonable prior
notice of intention to enter the place to the occupant of the place or, if
there is no occupant, to the owner, and
(c) may,
notwithstanding subsections (1) to (3), enter a private dwelling place
(i) with the consent of the occupant of the private dwelling place,
or
(ii) under the authority of an order of a justice
to enter and inspect.
1996 cW‑3.5 s119
Inspections
120(1) In the course of exercising powers under
section 119, an inspector or person authorized in writing by the Director may
do any or all of the following:
(a) require
that anything be operated, used or set in motion or require that anything cease
operation under conditions specified by the inspector or person authorized in
writing by the Director;
(b) use
or move any machine, structure, material or equipment in the place the
inspector or person authorized in writing by the Director is inspecting in
order to carry out the inspection;
(c) take
samples of any substance or thing;
(d) conduct
tests or take measurements;
(e) require
the production of any information, data, records, reports and documents that
are required to be kept or submitted under this Act or any other documents that
are related to the purpose for which the inspector or person authorized in
writing by the Director is exercising any power under section 119;
(f) make
copies of or take extracts from any information, data, records, reports and
documents referred to in clause (e);
(g) use
any computer system at any place to examine any data contained in or available
by means of the computer system;
(h) record
or copy, by any method, any information related to the administration of or
ensuring compliance with this Act;
(i) examine,
reproduce and take any record from data related to the administration of or
ensuring compliance with this Act, in the form of a printout or other output;
(j) use
copying equipment to make copies;
(k) make
reasonable inquiries of any person, orally or in writing;
(l) take
any photographs or electronic or audio‑video records of anything related
to the administration of or ensuring compliance with this Act;
(m) take
any other action that is necessary to carry out the inspection.
(2) An inspector and a person authorized in writing
by the Director may remove information, data, records, reports and documents
that they are entitled to examine or copy or otherwise reproduce but must give
a receipt for them to the person from whom they were taken and must return them
within a reasonable period of the removal.
1996 cW‑3.5 s120
Production of documents
121(1) For the purpose of ensuring that this Act and
anything issued under this Act are complied with, the Director or an inspector
may demand the production, within a reasonable time, of any information, data,
record, report or document pertaining in any manner to the administration of or
compliance with this Act or anything issued under this Act and may on giving a
receipt for it remove it for the purpose of making copies of it and return it
within a reasonable period.
(2) If
a person on whom a demand is made under subsection (1) refuses or fails to
comply, the Director or inspector may apply to a judge of the Court of Queen’s
Bench by way of originating notice and the judge may make any order that the
judge considers necessary to enforce compliance with subsection (1).
(3) A copy of the originating notice and a copy of
each affidavit in support must be served not less than 3 days before the day
named in the notice for hearing the application.
1996 cW‑3.5 s121
Seizure without warrant
122(1) An inspector may, without a search warrant,
seize anything that is produced to the inspector or that is in plain view
during an inspection whether or not an order has been granted under section 125
if the inspector has reasonable grounds to believe
(a) that
an offence has been committed under this Act,
(b) that
the thing will provide evidence of the commission of the offence, and
(c) that
the delay in waiting for an investigator to obtain a search warrant could
result in the loss or destruction of evidence.
(2) The
inspector may remove the thing seized or may detain it in the place where it is
seized.
(3) An
inspector may not exercise any powers under this section if, prior to entering
the place, the inspector has reasonable grounds to believe that an offence was
committed under this Act and the purpose of the entry was to secure evidence as
to the commission of the offence.
(4) An
inspector must, on seizing anything under this section,
(a) inform
the person, if any, from whom the thing is seized of the reason for the
seizure, and
(b) give
a receipt for the thing to the person, if any, having physical possession of it
when it is seized.
(5) An inspector who seizes anything pursuant to
this section must deal with it in the same manner as if it were seized pursuant
to a search warrant.
1996 cW‑3.5 s122
Assistance to
inspectors, persons
123 The owner of and every person found in
any place in respect of which an inspector, person authorized in writing by the
Director or person authorized under section 119(3) is exercising powers or
carrying out duties under this Act shall
(a) give
the inspector, person authorized in writing by the Director or person authorized
under section 119(3) all reasonable assistance to enable the inspector or
person to exercise those powers and carry out those duties, and
(b) furnish all information relative to the
exercising of those powers and the carrying out of those duties that the
inspector or person may reasonably require.
1996 cW‑3.5 s123
Interference
124(1) No person shall interfere with
(a) an
inspector or person authorized in writing by the Director who is exercising
powers or carrying out duties, or attempting to do so, under this Act, or
(b) a
person authorized under section 119(3) who is carrying out any work or doing
anything pursuant to a water management order or enforcement order.
(2) If
a person interferes with a person contrary to subsection (1),
(a) the
inspector or Director, in a case described in subsection (1)(a), or
(b) the
Director, in a case described in subsection (1)(b),
may apply to the Court of Queen’s Bench for an order
prohibiting that person from so interfering, and the Court may make any order
it considers appropriate.
1996 cW‑3.5 s124
Order to enter and
inspect
125(1) If a justice is satisfied on evidence under
oath by an inspector, person authorized in writing by the Director or person
authorized under section 119(3)
(a) that
there is reasonable ground for believing that it is appropriate for ensuring
compliance with this Act, a water management order or an enforcement order for
the inspector, person authorized in writing by the Director or person
authorized under section 119(3) to do anything set out in section 119 or 120,
and
(b) that
the inspector, person authorized in writing by the Director or person
authorized under section 119(3) may not be able to carry out duties effectively
under this Act without an order because
(i) no person is present to grant access to a place that is locked or
is otherwise inaccessible,
(ii) a person has denied the inspector, person authorized in writing
by the Director or person authorized under section 119(3) access to a place or
there is reasonable ground for believing that a person may deny the inspector
or authorized person access to a place,
(iii) a person has prevented the inspector, person authorized in
writing by the Director or person authorized under section 119(3) from doing
anything set out in section 119 or 120 or denied the inspector or authorized
person access to anything as a result of which the inspector or authorized
person is unable to do anything set out in section 119 or 120,
(iv) there is reasonable ground for believing that a person may
prevent an inspector, person authorized in writing by the Director or person
authorized under section 119(3) from doing anything set out in section 119 or
120, or may deny the inspector or authorized person access to anything as a
result of which the inspector or authorized person may be unable to do anything
set out in section 119 or 120,
(v) it will be impractical for the inspector, person authorized in
writing by the Director or person authorized under section 119(3) to obtain an
order without delay if access is denied because the place to be inspected is
remote or for any other reason, or
(vi) there is reasonable ground for believing that an attempt by the
inspector or person authorized in writing by the Director or person authorized
under section 119(3) to do anything set out in section 119 or 120 without the
order might defeat the purpose of that section or endanger human life, health
or the aquatic environment,
the justice may issue an
order to enter and inspect, authorizing the inspector, person authorized in writing by the Director
or person authorized under section 119(3) to do anything set out in sections
119 and 120 that is specified in the order for the period of time set out in
the order.
(2) The
period of time referred to in subsection (1) may not extend beyond 30 days
after the date on which the order is made, but the order may be renewed for any
reason set out in subsection (1) for one or more periods each of which is not
more than 30 days.
(3) An
application under subsection (2) may be made before or after the expiry of the
period.
(4) An
order under this section may be issued or renewed on application without
notice.
(5) An inspector, person authorized in writing by
the Director or person authorized under section 119(3) who is exercising powers
under an order issued under this section must do so at a reasonable time unless
otherwise authorized in the order.
1996 cW‑3.5 s125
Assistance by peace
officer
126 An inspector, person
authorized in writing by the Director or person authorized under section 119(3)
may be accompanied by a peace officer while exercising powers or carrying out
duties under this Act.
1996 cW‑3.5 s126
Division 2
Investigations
Investigator
identification
127(1) The Director must provide an investigator with
an identification card and, on entering any place pursuant to this Act, the
investigator must, on request,
(a) produce
the identification card, and
(b) identify
and explain the nature of the powers or duties the investigator wishes to carry
out under this Act.
(2) A person authorized under section 128(2), on
entering any place pursuant to this Part, must, on request, identify and
explain the nature of the powers and duties that the person wishes to carry out
under this Act.
1996 cW‑3.5 s127
Right of entry by investigator
128(1) Subject to subsection (3), an investigator may
enter any place for the purpose of responding to a complaint or conducting an
investigation under this Act.
(2) Any
person who
(a) an
investigator considers necessary to enable the investigator to respond to a
complaint or conduct an investigation under this Act, and
(b) has
been authorized by the investigator or Director to enter a place,
may enter that place
with or without being accompanied by the investigator.
(3) An
investigator or person entering any place pursuant to this section
(a) must
do so at a reasonable time unless otherwise authorized in a search warrant,
(b) if
entering without a search warrant must, if it is practicable in the
circumstances, give reasonable prior notice of intention to enter the place to
the occupant of the place or, if there is no occupant, to the owner, and
(c) may
not enter a private dwelling place except
(i) with the consent of the occupant of the place, or
(ii) under the authority of a search warrant.
1996 cW‑3.5 s128
Investigations
129(1) An investigator has all the powers and is
subject to all of the duties of an inspector under sections 119, 120 and 121 if
the investigator
(a) is
acting with respect to a complaint made under this Act, or
(b) has
reasonable grounds to believe that
(i) an offence has been committed under this Act, and
(ii) there is in a place anything that will afford evidence as to the
commission of an offence.
(2) An investigator who makes any reasonable
inquiries of any person under section 120, orally or in writing, may exclude
the presence of any person during the questioning of the individual except for
counsel for the individual being questioned.
1996 cW‑3.5 s129
Interference
130(1) No person shall interfere with an investigator
or person authorized under section 128(2) who is exercising powers or carrying
out duties, or attempting to do so, under this Act.
(2) If a person interferes with another person
contrary to subsection (1), an investigator or the Director may apply to the
Court of Queen’s Bench for an order prohibiting that person from so
interfering, and the Court may make any order it considers appropriate.
1996 cW‑3.5 s130
Assistance to
investigators
131(1) The owner of and every person found in any
place in respect of which an investigator or person authorized under section
128(2) is exercising powers or carrying out duties under this Act shall
(a) give
the investigator or person authorized under section 128(2) all reasonable
assistance to enable the investigator or authorized person to exercise those
powers and carry out those duties, and
(b) furnish
all information relative to the exercising of those powers and the carrying out
of those duties that the investigator or person authorized under section 128(2)
may reasonably require.
(2) An investigator or person authorized under
section 128(2) may be accompanied by a peace officer while exercising powers or
carrying out duties under this Act.
1996 cW‑3.5 s131
Tele-warrants
132(1) If an investigator has reasonable grounds to
believe that
(a) an
offence has been committed under this Act,
(b) there
is in a place anything that will afford evidence as to the commission of the
offence, and
(c) it
would be impracticable to appear personally before a justice to make an
application for a search warrant,
the investigator may
submit an information on oath to a justice by telephone or other means of
communication.
(2) An
information submitted by telephone or other means of telecommunication must be
on oath and must be recorded verbatim by the justice, who must, as soon as
practicable, cause to be filed with the clerk of The Provincial Court of
Alberta nearest to the area in which the tele‑warrant is intended for
execution, the record or a transcription of the record certified by the justice
as to time, date and contents.
(3) For
the purposes of subsection (2), an oath may be administered by telephone or
other means of telecommunication.
(4) An
information on oath submitted by telephone or other means of telecommunication
must include
(a) a
statement of the circumstances that make it impracticable for the investigator
to appear personally before a justice,
(b) a
statement of the alleged offence, the place to be searched and the things
alleged to be liable to seizure,
(c) a
statement of the investigator’s grounds for believing that things liable to
seizure in respect of the alleged offence will be found in the place to be
searched, and
(d) a
statement as to any prior application for a tele‑warrant under this
section or any other search warrant in respect of the same matter of which the
investigator has knowledge.
(5) A
justice who is satisfied that an information on oath submitted by telephone or
other means of telecommunication
(a) is
in respect of an offence committed under this Act and conforms to the
requirements of subsection (4),
(b) discloses
reasonable ground for dispensing with an information presented personally and
in writing, and
(c) discloses
reasonable ground for the issuance of a search warrant in respect of the
offence,
may issue a tele‑warrant
to an investigator conferring the same authority respecting search and seizure
as may be conferred by a search warrant issued by a justice before whom the
investigator appears personally, and may require that the tele‑warrant be
executed within any time period that the justice may order.
(6) If
a justice issues a tele‑warrant under subsection (5),
(a) the
justice must complete and sign the tele‑warrant in the form prescribed in
the regulations, noting on its face the
date, time and place of issuance,
(b) the
investigator, on the direction of the justice, must complete, in duplicate, a
facsimile of the tele‑warrant in the form prescribed in the regulations,
noting on its face the name of the issuing justice and the date, time and place
of issuance, and
(c) the
justice must, as soon as practicable after the tele‑warrant has been
issued, cause the tele‑warrant to be filed with the clerk of The
Provincial Court of Alberta nearest to the area in which the tele‑warrant is intended for execution.
(7) An
investigator who executes a tele‑warrant issued under subsection (5)
must, before entering the place to be searched, or as soon as is practicable
afterwards, give a facsimile of the tele‑warrant to any person present
and ostensibly in control of the place.
(8) An
investigator who, in any unoccupied place, executes a tele‑warrant issued
under subsection (5), must, on entering the place or as soon as is practicable
afterwards, cause a facsimile of the tele‑warrant to be suitably affixed
in a prominent place within the place.
(9) An
investigator to whom a tele‑warrant is issued under subsection (5) must
file a written report with the clerk of The Provincial Court of Alberta nearest
to the area in which the tele‑warrant was intended for execution as soon
as is practicable but within a period not exceeding 7 days after the tele‑warrant
was executed, which report must include
(a) a
statement of the time and date the tele‑warrant was executed, or if the
tele‑warrant was not executed, a statement of the reasons why it was not
executed,
(b) a
statement of the things, if any, that were seized pursuant to the tele‑warrant
and the location where they are being held, and
(c) a
statement of the information, data, records, reports, documents and things, if
any, that were seized in addition to the things mentioned in the tele‑warrant
and the location where they are being held, together with a statement of the
investigator’s grounds for believing that those additional things had been
obtained by, or used in, the commission of an offence under this Act.
(10) The
clerk of The Provincial Court of Alberta with whom a written report is filed
pursuant to subsection (9) must, as soon as is practicable, cause the report,
together with the information on oath and the tele‑warrant to which it
pertains, to be brought before a justice to be dealt with in respect of
anything that was seized and is referred to in the report, in the same manner
as if the things were seized pursuant to a search warrant issued by a justice
on an information presented personally by an investigator.
(11) In any proceeding in which it is material for a
court to be satisfied that a search or seizure was authorized by a tele‑warrant
under subsection (5), the absence of the information on oath, transcribed and
certified by the justice as to the time, date and contents, or of the original
tele‑warrant, signed by the justice and carrying on its face a notation
of the time, date and place of issuance, is, in the absence of evidence to the
contrary, proof that the search or seizure was not authorized by a tele‑warrant
issued under subsection (5).
1996 cW‑3.5 s132
Seizure without warrant
133(1) An investigator may, without a search warrant,
seize anything that is produced to the investigator or that is in plain view
during an investigation under this Act if the investigator has reasonable
grounds to believe
(a) that
an offence has been committed under this Act,
(b) that
the thing will afford evidence of the commission of the offence, and
(c) that
obtaining a search warrant would cause a delay that could result in the loss or
destruction of evidence.
(2) The
investigator may remove the thing seized or may detain it in the place where it
is seized.
(3) An
investigator must, on seizing anything under subsection (1),
(a) inform
the person, if any, from whom the thing is seized of the reason for the
seizure, and
(b) give
a receipt for the thing to the person, if any, having physical possession of it
when it is seized.
(4) An investigator who seizes anything pursuant to
this section must deal with it in the same manner as if it were seized pursuant
to a search warrant.
1996 cW‑3.5 s133
Duty to stop a vehicle
or vessel
134(1) An investigator may stop any vehicle or vessel
that the investigator reasonably believes is being used in the commission of an
offence under this Act.
(2) The operator of a vehicle or vessel must stop
the vehicle or vessel when required to do so by an investigator who is readily
identifiable as an investigator.
1996 cW‑3.5 s134
Division 3
Enforcement Orders
Issuing an enforcement
order
135(1) The Director may issue an enforcement order to
any person if, in the Director’s opinion, that person has contravened this Act,
whether or not that person has been charged or convicted in respect of the
contravention.
(2) If the Director issues an enforcement order,
the Director must give a copy of it to the person to whom it is directed.
1996 cW‑3.5 s135
Terms of an order
136(1) In an enforcement order, the Director may order
any or all of the following:
(a) the
suspension or cancellation of an approval, licence or registration or the
cancellation of a preliminary certificate where one or more of the grounds set
out in section 43, 55, 71 or 78 have been met;
(b) if
an approval, preliminary certificate or licence has been issued or registration
effected, the stopping or shutting down of any activity, diversion of water or
operation of a works or thing either permanently or for a specified period of
time if one or more of the grounds set out in section 43, 55, 71 or 78 have
been met;
(c) if
no approval, preliminary certificate or licence has been issued and no
registration has been effected, the stopping or shutting down of any activity,
diversion of water, or operation of a works or thing either permanently or for
a specified period of time;
(d) the
ceasing of construction, operation, maintenance, repair, control, replacement
or removal of any works or the carrying out of an undertaking until the
Director is satisfied that the construction, operation, maintenance, repair,
control, replacement or removal or the carrying out of the undertaking will be
done in accordance with this Act;
(e) the
submission to the Director, for the Director’s approval, of a proposal or plan
to be undertaken by the person in order to remedy the contravention;
(f) the
removal or otherwise rendering ineffective of
(i) a works placed or constructed without approval,
(ii) a works that is no longer required or for which an approval or
licence has been cancelled or is no longer in effect, or
(iii) an obstruction to the flow of water caused in any manner;
(g) the
repair of a works in order to protect human health, property or public safety;
(h) the
minimization or remedying of an adverse effect on
(i) the aquatic environment,
(ii) the environment, caused by a problem water well or drilling, or
(iii) human health, property or public safety;
(i) the
operation of a works in a specified manner or in order to achieve a specified
result;
(j) the
restoration or reclamation of the area affected to a condition satisfactory to
the Director;
(k) how
the order is to be carried out;
(l) the
reporting on any matter that the order requires to be carried out;
(m) the
maintenance of records on any relevant matter;
(n) the
reporting periodically to the Director;
(o) the
specification of the time within which any measure required by the order is to
be commenced and the time within which the order or any portion of the order is
to be complied with;
(p) with
respect to a problem water well, the reclamation of the water well or the
taking of any remedial action with respect to the water well;
(q) the
modification, suspension or stopping of any actions related to the drilling of
a water well;
(r) the
taking of any other measure that the Director considers necessary to facilitate compliance with the order or this
Act.
(2) If an enforcement order requires an approval
holder, preliminary certificate holder, licensee or traditional agriculture
user to carry out an activity or diversion of water that is not specified in or
is contrary to the approval, preliminary certificate, licence or registration,
the approval holder, preliminary certificate holder, licensee or traditional
agriculture user does not contravene this Act by reason only of complying with
the order.
1996 cW‑3.5 s136
Amendment, cancellation
of order
137(1) The Director may on the Director’s own
initiative
(a) amend
a term or condition of an enforcement order,
(b) cancel
an enforcement order, or
(c) amend
a clerical error in an enforcement order.
(2) A copy of an amendment made under subsection
(1) must be given to the same person to whom the original order was directed.
1996 cW‑3.5 s137
Court order for
compliance
138(1) If the person to whom an enforcement order is
directed fails to comply with the enforcement order, the Director may apply to
the Court of Queen’s Bench for an order of the Court directing that person to
comply with the enforcement order.
(2) This section applies whether or not a
conviction has been adjudged against the person to whom the enforcement order
is directed for an offence under this Act in respect of the subject‑matter
that gave rise to the issuing of the enforcement order.
1996 cW‑3.5 s138
Director may carry out
order
139(1) If the person to whom an enforcement order is
directed fails to comply with the enforcement order, the Director may take
whatever action the Director considers necessary to carry out the enforcement
order.
(2) This
section applies whether or not a conviction has been adjudged against the
person to whom the enforcement order is directed for an offence under this Act
in respect of the subject‑matter that gave rise to the issuing of the
enforcement order.
(3) Costs
incurred by the Director under this section are recoverable by the Government
(a) in
an action in debt against the person to whom the enforcement order was
directed, or
(b) by
order of the Minister directing any person who has acquired or purchased or is
to acquire or purchase land or a licence from the person to whom the
enforcement order was directed to pay to the Government instead of to the
vendor an amount not exceeding the amount owing in respect of the costs.
(4) Even
if the identity of a person to whom the Minister may make an order under
subsection (3)(b) is not known, the Minister may issue the order and when the
identity of the person becomes known the Director may take whatever action the
Director considers necessary to ensure compliance with the order.
(5) For
the purposes of this section, the costs referred to in subsection (3) include,
without limitation, any costs incurred in investigating and responding to
(a) any
matter to which the enforcement order relates, or
(b) the
failure to comply with the enforcement order.
(6) A purchaser of land who pays an amount to the
Minister under subsection (3)(b) is discharged from any obligation to pay that
amount to the vendor.
1996 cW‑3.5 s139
Responsibility to carry
out orders
140 If an enforcement order is
issued to more than one person, all persons named in the order are jointly
responsible for carrying out the order and are jointly and severally liable for
payment of the costs of doing so, including any costs incurred by the Director
under section 139.
1996 cW‑3.5 s140
Part 11
Offences, Penalties
and Related Matters
Limitation period
141(1) A prosecution for an offence under this Act may
not be commenced more than 2 years after the later of
(a) the
date on which the offence was committed, and
(b) the
date on which evidence of the offence first came to the attention of the
Director.
(2) A
notice of an administrative penalty under this Act may not be issued more than
2 years after the later of
(a) the
date on which the contravention to which the notice relates occurred, and
(b) the date on which evidence of the
contravention first came to the attention of the Director.
1996 cW‑3.5 s141
Offences
142(1) A person who
(a) provides
false or misleading information, data, records, reports or documents pursuant
to a requirement under this Act to provide them;
(b) fails
to provide information, data, records, reports or documents as required under
this Act;
(c) contravenes
a water management order;
(d) contravenes
an enforcement order;
(e) contravenes
a term or condition of the approval, preliminary certificate or licence that
has been issued to that person;
(f) if
required to provide notice under section 111(2)(b), fails to do so;
(g) makes
a false or misleading statement in response to inquiries under section
120(1)(k);
(h) commences
or continues an activity except under an approval or as otherwise authorized by
this Act;
(i) contravenes
section 36(2);
(j) contravenes
section 39;
(k) contravenes
section 40(1);
(l) contravenes
section 40(2);
(m) contravenes
section 43(3);
(n) commences
or continues a diversion of water for any purpose or operates a works except
under a licence or as otherwise authorized by this Act;
(o) contravenes
section 65;
(p) contravenes
an order under section 92(1)(a);
(q) contravenes
section 108(1);
(r) contravenes
section 124(1);
(s) contravenes
section 130(1);
is guilty of an
offence.
(2) A
person who knowingly
(a) provides
false or misleading information, data, records, reports or documents pursuant
to a requirement under this Act to provide them;
(b) fails
to provide information, data, records, reports or documents as required under this Act;
(c) contravenes
a water management order;
(d) contravenes
an enforcement order;
(e) commences
or continues a diversion of water for any purpose, or operates a works for the
diversion of water except under a licence or as otherwise authorized by this
Act;
(f) commences
or continues an activity except under an approval or as otherwise authorized by
this Act;
(g) contravenes
section 40(1);
(h) contravenes
section 40(2);
is guilty of an
offence.
(3) An approval holder, preliminary certificate
holder, licensee or traditional
agriculture user who fails to keep works to which the approval, preliminary
certificate, licence or registration is appurtenant in a proper or safe
condition is guilty of an offence.
1996 cW‑3.5 s142
Penalties
143(1) A person who is guilty of an offence under
section 142(2) is liable
(a) in
the case of an individual, to a fine of not more than $100 000 or to
imprisonment for a period of not more than 2 years, or to both fine and
imprisonment, or
(b) in
the case of a corporation, to a fine of not more than $1 000 000.
(2) A
person who is guilty of an offence under section 142(1)(a), (b), (c), (d), (e),
(g), (h), (i), (k), (l), (n), (q), (r) or (s) or (3) is liable
(a) in
the case of an individual, to a fine of not more than $50 000, or
(b) in
the case of a corporation, to a fine of not more than $500 000.
(3) A
person who is guilty of an offence under section 142(1)(f), (j), (m), (o) or
(p) is liable
(a) in
the case of an individual, to a fine of not more than $250, or
(b) in
the case of a corporation, to a fine of not more than $1000.
(4) A person shall not be convicted of an offence
referred to in subsection (2) if that person establishes on a balance of
probabilities that the person took all reasonable steps to prevent its
commission.
1996 cW‑3.5 s143
Additional fine if
monetary benefits acquired
144 If a person is convicted of an
offence under this Act and the court is satisfied that as a result of the
commission of the offence monetary benefits accrued to the offender, the court
may order the offender to pay, in addition to a fine under section 143, a fine
in an amount equal to the court’s estimation of the amount of those monetary
benefits.
1996 cW‑3.5 s144
Continuing offences
145 Every person who is guilty of
an offence under this Act is liable on conviction for each day or part of a day
on which the offence occurs or continues.
1996 cW‑3.5 s145
Liability of directors,
officers and agents
146 If a corporation commits an
offence under this Act, any officer, director or agent of the corporation who
directed, authorized, assented to, acquiesced in or participated in the
commission of the offence is guilty of the offence and is liable to the
punishment provided for the offence, whether or not the corporation has been
prosecuted for or convicted of the offence.
1996 cW‑3.5 s146
Liability of public
officials
147(1) If a person who is acting under the direction
of
(a) a
Minister of the Government,
(b) an
official of the Government or a Government agency, or
(c) a
member of a council, the chief administrative officer, a designated officer or
a director of a local authority,
commits an offence
under this Act, the Minister, official, member of council, chief administrative
officer, designated officer or director is also guilty of the offence and
liable to the punishment provided for the offence if the Minister, official,
member of council, chief administrative officer, designated officer or director
knew or ought reasonably to have known of the circumstances that constituted
the commission of the offence and had the influence or control to prevent its
commission, whether or not the other person has been prosecuted for or convicted
of the offence.
(2) A person shall not be convicted of an offence
by reason of the operation of subsection (1) if that person establishes on a
balance of probabilities that the person took all reasonable steps to prevent
the commission of the offence by the other person referred to in subsection
(1).
1996 cW‑3.5 s147
Court orders relating to
penalty
148(1) When a person is convicted of an offence under
this Act, in addition to any other penalty that may be imposed under this Act,
the court may, having regard to the nature of the offence and the circumstances
surrounding its commission, make an order doing any or all of the following:
(a) prohibiting
the offender from doing anything that may result in the continuation or
repetition of the offence;
(b) directing
the offender to take any action the court considers appropriate to remedy or
prevent any harm to the aquatic environment that results or may result from the
act or omission that constituted the offence;
(c) directing
the offender to publish, in the prescribed manner and at the offender’s cost,
the facts relating to the conviction;
(d) directing
the offender to notify any person aggrieved or affected by the offender’s
conduct of the facts relating to the conviction, in the prescribed manner and
at the offender’s cost;
(e) directing
the offender to post a bond or pay money into court in an amount that will
ensure compliance with any order made pursuant to this section;
(f) on
application to the court by the Minister made within 3 years after the date of
conviction, directing the offender to submit to the Minister any information
with respect to the conduct of the offender that the court considers
appropriate in the circumstances;
(g) directing
the offender to compensate the Government, in whole or in part, for the cost of
any remedial or preventive action that was carried out by the Government or
caused by the offender to be carried out by the Government and that was made
necessary by the act or omission that constituted the offence;
(h) directing
the offender to perform community service;
(i) requiring
the offender to comply with any other conditions the court considers
appropriate in the circumstances for securing the offender’s good conduct and
for preventing the offender from repeating the same offence or committing other
offences.
(2) If
an offender contravenes an order made under subsection (1)(c), the Minister may
publish the facts in compliance with the order.
(3) If
the court makes an order under subsection (1)(g) or the Minister incurs
publication costs under subsection (2), the costs are a debt due to the
Government by the offender and may be recovered by an action in debt.
(4) An order made under subsection (1) comes into
force on the day on which it is made or on any other day specified in the order
and continues in force for the period specified in the order, not to exceed 3
years.
1996 cW‑3.5 s148
Variation of court
orders
149(1) Subject to subsection (2), if a court has made
an order under section 148, the court may, on application by the offender or
the Minister of Justice and Attorney General, require the offender to appear
before it and, after hearing the offender and the Minister of Justice and
Attorney General, may make any or all of the following orders if it considers that
the circumstances of the offender have changed so as to warrant such an order:
(a) an
order changing the original order or the conditions specified in it;
(b) an
order relieving the offender absolutely or partially from compliance with any
or all of the original order;
(c) an
order reducing the period for which the original order is to remain in effect;
(d) an
order extending the period for which the original order is to remain in effect
for an additional period not to exceed one year.
(2) Before
making an order under subsection (1), the court may direct that notice be given
to any persons the court considers to be interested, and the court may hear any
of those persons.
(3) If an application made under this section in
respect of an offender has been heard by the court, no other application under
this section may be made with respect to the offender except with leave of the
court.
1996 cW‑3.5 s149
Disposal of things
seized
150(1) If a person is convicted of an offence under
this Act and information, data, records, reports, documents or things relating
to the conviction that were seized are detained, the information, data,
records, reports, documents or things must, on the expiration of the time for
taking an appeal from the conviction or on the final conclusion of the
proceedings,
(a) be
forfeited to the Government, if the court so directs, or
(b) be
restored to the person from whom they were seized or to any other person who is
entitled to possession of them, subject to any terms and conditions imposed by
the court.
(2) If
information, data, records, reports, documents or things are forfeited under
subsection (1)(a),
(a) the
Minister may dispose of or destroy them, and
(b) the costs of the forfeiture and disposal or
destruction are a debt due to the Government by the offender and may be
recovered by an action in debt.
1996 cW‑3.5 s150
Recovery of costs by
Government
151 The Government may recover, in an action
in debt against any person who is convicted of an offence under this Act, the
costs incurred by the Government
(a) in
administering, investigating and responding to any matter related to the
offence, or
(b) in carrying out or causing to be carried out
any preventive or remedial action made necessary by the act or omission that
constituted the offence.
1996 cW‑3.5 s151
Administrative penalties
152(1) Where the Director is of the opinion that a person has
contravened a provision of this Act that is specified for the purposes of this
section in the regulations, the Director may, subject to the regulations, by
notice in writing given to that person, require that person to pay to the
Government an administrative penalty in the amount set out in the notice for
each contravention.
(1.1) A notice of administrative penalty may require the person to
whom it is directed to pay either or both of the following:
(a) a daily amount for each day or part of a day
on which the contravention occurs and continues;
(b) a one‑time amount to address economic
benefit where the Director is of the opinion that the person has derived an
economic benefit directly or indirectly as a result of the contravention.
(2) A
person who pays an administrative penalty in respect of a contravention may not
be charged under this Act with an offence in respect of that contravention.
(3) Subject to the right to appeal a notice of
administrative penalty to the Environmental Appeals Board, where a person fails
to pay an administrative penalty in accordance with the notice of
administrative penalty and the regulations, the Minister may file a copy of the
notice of administrative penalty with the clerk of the Court of Queen’s Bench
and, on being filed, the notice has the same force and effect and may be
enforced as if it were a judgment of the Court.
RSA 2000 cW‑3
s152;2002 c4 s5;2003 c42 s6
Publication
of information
152.1 Subject to the
regulations, the Director shall publish particulars of enforcement action taken
under this Act.
2002
c4 s5
Part 12
Civil Matters
Other civil remedies not
affected
153 Subject to sections 22 and
157, no civil remedy for an act or omission is suspended or affected by reason
only that the act or omission is an offence under this Act or gives rise to a
civil remedy under this Act, and nothing in this Act is to be construed so as
to repeal, remove or reduce any remedy available to any person at common law or
under any Act of Parliament or of a provincial legislature.
1996 cW‑3.5 s153
Injunction re commission
of offence
154(1) If on the application of the Director, it
appears to the Court of Queen’s Bench that a person has done, is doing or is
about to do any act or anything constituting or directed toward the commission
of an offence under this Act, the Court may issue an injunction ordering any
person named in the application
(a) to
refrain from doing that act or thing, or
(b) to
do any act or thing that it appears to the Court may prevent the commission of
an offence under this Act.
(2) At least 48 hours’ notice of the application
must be given to the party or parties named in the application unless the Court
is of the opinion that the urgency of the situation is such that giving notice
would not be in the public interest.
1996 cW‑3.5 s154
Injunction re loss or
damage
155 Any person who has suffered, is suffering
or is about to suffer loss or damage as a result of conduct that is contrary to
this Act may apply to the Court of Queen’s Bench for an injunction ordering the
person engaged in the conduct
(a) to
refrain from doing any act that it appears to the Court causes or will cause
the loss or damage, or
(b) to do any act or thing that it appears to
the Court prevents or will prevent the loss or damage.
1996 cW‑3.5 s155
Vicarious responsibility
156 For the purposes of this Act,
an act or thing done or omitted to be done by a director, officer, official,
employee or agent of a corporation in the course of employment for the
corporation or in exercising powers or performing duties on behalf of the
corporation is deemed also to be an act or thing done or omitted to be done by
the corporation.
1996 cW‑3.5 s156
Liability exemption
157 No action for damages may be commenced
against
(a) a
person who is an employee or agent of or is under contract to the Government or
a Government agency,
(b) an
inspector, investigator or Director,
(c) a
person authorized in writing by the Director under section 95 or 119 or a
person authorized by a Director or investigator under section 128,
(d) a
person to whom a delegation of a power, duty or function under this Act has
been made by the Minister under section 9 of the Government Organization Act, or
(e) a
member of the Environmental Appeals Board,
for anything done or not done by that inspector,
investigator, Director, person or member in good faith while carrying out that
inspector’s, investigator’s, Director’s, person’s or member’s duties or
exercising powers under this Act including, without limitation, any failure to
do something when that inspector, investigator, Director, person or member has
discretionary authority to do something but does not do it.
RSA 2000 cW‑3
s157; 2003 c42 s6
Compensation
158(1) If the Director
(a) amends
a licence under section 54(2), suspends or cancels a licence under section
55(2) or cancels a preliminary certificate under section 71(1)(i), or
(b) issues
a water management order under section 97(1)(i) with respect to a licence
issued under this Act,
the Director must,
subject to the regulations, authorize the payment of compensation to the
licensee for any losses incurred as a result of the amendment, suspension or
cancellation or the water management order, in the manner and amount that the
Director considers appropriate.
(2) If
the licensee or preliminary certificate holder does not agree with the amount
of compensation authorized under subsection (1), the licensee or preliminary
certificate holder may in accordance with the regulations, appeal the amount to
the Land Compensation Board.
(3) When
determining the amount of compensation pursuant to an appeal under this
section, the Land Compensation Board
(a) has
all the powers, duties and functions of the Land Compensation Board under
section 28 of the Expropriation Act,
(b) subject
to the regulations under this Act, may follow the procedure and practice
provided under section 28 of the Expropriation
Act and the requirements of section 32 of that Act,
(c) may
consider the term of the licence and the market value of the land that is
appurtenant to the licence, and
(d) may
not take into account that any reduction in the amount of water to be diverted
that results from the amendment, suspension or cancellation or from the order
is compulsory.
(4) The decision of the Land Compensation Board is
final and there is no appeal from the decision except on a question of
jurisdiction or on a question of law.
1996 cW‑3.5 s158
Expropriation of land,
works
159(1) The Minister may purchase or expropriate any
estate or interest in land and may expropriate, in conjunction with the land, a
works or an undertaking related to that land and may purchase any personal
property in conjunction with the land for the purpose of
(a) carrying
out an agreement or contract related to this Act entered into by the Minister,
(b) a
works to be constructed by the Minister,
(c) a
program or project related to the conservation and management of water, or
(d) any
other matter under the administration of the Minister related to this Act.
(2) Land,
a works or an undertaking acquired under this section is under the
administration of the Minister unless the Lieutenant Governor in Council, by
order, directs that it is under the administration of another Minister.
(3) The Minister may not sell any public land
acquired under this section except in accordance with the Public Lands Act.
1996 cW‑3.5 s159
Part 13
Miscellaneous Matters
Documents as evidence
160(1) In any proceeding under this Act, the following
are admissible in evidence as proof, in the absence of evidence to the
contrary, of the contents of the certificate, report or statement, without
proof of the signature or official character of the person signing the
certificate, report or statement:
(a) an
analyst’s certificate or an analyst’s report of the results of an analysis
purporting to be signed by an analyst,
(b) a
certificate purporting to be signed by the Director stating that, on a
specified day or during a specified period, a person named in the certificate
was or was not the holder of an approval, preliminary certificate or licence or
was or was not a registrant,
(c) a
certificate setting out with reasonable particularity the conviction and
sentence of a person for an offence under this Act purporting to be signed by
(i) the person who entered the conviction, or
(ii) the clerk of the court in which the conviction was entered,
and
(d) a
statement purporting to be signed by the Director setting out the day on which
the Director became aware of the subject‑matter of any proceeding.
(2) A notice, approval, preliminary certificate,
licence, registration, water management order, enforcement order, consent or
other order or document purporting to be signed by the person authorized to
issue, make or give it is admissible in evidence without proof of the signature
or official character of the person signing it.
1996 cW‑3.5 s160
Notice of analyst’s certificate
161(1) No certificate or report of an analyst may be
received in evidence in court under this Act unless the party intending to
produce it has given to the party against whom it is intended to be produced
reasonable notice of that intention together with a copy of the certificate or
report.
(2) The party against whom a certificate or report
of an analyst is produced may, with the leave of the court, require the
attendance of the analyst for the purpose of cross‑examination.
1996 cW‑3.5 s161
Inspector’s report
162 The report of an inspector as
to the capacity of a works is, for the purposes of this Act, final and
conclusive.
1996 cW‑3.5 s162
Designation of officials
163(1) The Minister may, by order, designate employees
of the Government under the administration of the Minister as Directors for the
purposes of all or a part of this Act.
(2) The
Minister may, with respect to any Director, and a Director may, with respect to
that Director, designate any employee of the Government under the
administration of the Minister as an acting Director to act in that Director’s
place in the event of the Director’s absence or inability to act, and may
specify any limitations on the scope of the designation.
(3) The
Minister or the Director may, by order, designate as an inspector or
investigator for the purposes of this Act any person who in the opinion of the
Minister or the Director is qualified to be so designated.
(4) The
Minister or the Director may not designate a person under subsection (2) or (3)
without the approval of that person’s principal or employer.
(5) A designation under subsection (3) may direct
that the authority of the inspector or investigator be exercised subject to any
terms and conditions that the Minister or the Director prescribes in the
designation, including limitations on the scope of the designation.
1996 cW‑3.5 s163
Water management areas
164 The Director may establish water
management areas for the purposes of
(a) administering
priority to divert water,
(b) groundwater
management,
(c) temporarily
assigning water under section 33,
(d) directing
that the diversion of water for household purposes cease,
(e) directing
that applications for licences are not to be accepted, and
(f) any other matter specified in the
regulations.
1996 cW‑3.5 s164
Fund
165 All money deposited with the
Government as security in respect of security required to be provided under
section 44 or 57 must be paid into the Environmental Protection Security Fund
under section 32 of the Environmental
Protection and Enhancement Act.
1996 cW‑3.5 s165
Giving notice
166(1) For the purposes of this section, “telecopier”
means a machine or device that electronically transmits a copy of a document,
picture or other printed material by means of a telecommunication system.
(2) If
a notice, request, order, direction or other document is required to be given
under this Act, it is deemed to be sufficiently given if a copy of it is
(a) personally
given to the person to whom it is directed,
(b) sent
by mail addressed to the person to whom it is directed at the last known
address for that person,
(c) sent
by means of a telecopier and received and printed by the receiving telecopier
at the last known address for the person to whom it is directed,
(d) in
the case of an owner of Metis title in patented land as defined in the Metis Settlements Act, sent by mail to
the address of the owner shown in the records of the Metis Settlements Land
Registry, or
(e) in the case of a registered owner of land
that is not patented land as defined in the Metis
Settlements Act, sent by mail to the address for the registered owner shown
on the assessment roll.
1996 cW‑3.5
s166;1998 c22 s45
Providing information
167(1) An approval holder, preliminary certificate
holder, licensee or traditional agriculture user or the holder’s, licensee’s or
user’s administrator, receiver, receiver‑manager or trustee shall, to the
Director on the request of the Director, forthwith submit information, data,
records, reports and documents with respect to the approval, preliminary
certificate, licence or registration or a related matter, as required by the
Director.
(2) Subsection (1) applies whether or not there are
terms and conditions in the approval, preliminary certificate, licence or
registration with respect to submitting information, data, records, reports and
documents.
1996 cW‑3.5 s167
Fees
168(1) The Minister may, by order, charge fees
(a) for
any application made under this Act,
(b) for
issuing or amending any approval, preliminary certificate, licence,
registration or other document under this Act,
(c) with
respect to any hearing or review held under this Act,
(d) for
any service with respect to works or undertakings administered by the Minister, and
(e) for
any service, material, function or thing provided under this Act.
(2) Notwithstanding
the Public Utilities Act, the
Director may, in accordance with a Ministerial order under subsection (1),
impose and collect charges for any service with respect to or for the use of
land, a works or an undertaking under the administration of the Minister.
(3) In addition to the fees and charges provided
for in subsections (1) and (2), the Minister may, by order, charge for water
used for the production of power by a water‑power development, and may
set the fees and charges, including, without limitation, the method for and the
rates to be used in calculating the charge, and establishing penalties for late
payment or non‑payment of the fees or charges.
RSA 2000 cW‑3
s168;2007 cA‑37.2 s82(31)
Regulations
169(1) A regulation under this Act may adopt or incorporate
in whole or in part or with modifications documents that set out standards,
codes, objectives, guidelines or other bodies of rules that relate to any
matter in respect of which a regulation may be made under this Act if the
standards, codes, objectives, guidelines or other bodies of rules have been
published and copies are available.
(2) The
Minister may make regulations
(a) respecting
the information, data, records, reports and documents to be kept and to be
submitted to the Director and notices to be provided by approval holders,
licensees, preliminary certificate holders and traditional agriculture users
and by persons authorized to carry out an activity or divert water for which
notice must be provided under section 36;
(b) defining,
for the purposes of this Act
(i) anything as an activity, diversion, undertaking or works;
(ii) household, farm unit, municipal water and processed water;
(iii) an entity as a local authority;
(iv) problem water wells;
(v) reclamation;
(c) specifying
the boundaries of major river basins;
(d) respecting
persons responsible;
(e) respecting
water‑power development;
(f) specifying
exemptions to section 21;
(g) respecting
public reviews on applications for the renewal of licences;
(h) exempting
activities and classes of activities from the requirement to be carried out
pursuant to an approval;
(i) respecting
the application for, the complete application for, the issuance of, the
amendment of, the suspension and cancellation of approvals and licences, the
renewal and non‑renewal of licences and cancellation of preliminary
certificates, and their terms and conditions and the period of time for which
they are issued;
(j) respecting
the definition of activity and respecting activities related to licensed works;
(k) exempting
diversions and classes of diversions and operation of works from the
requirement to be carried out pursuant to a licence or registration;
(l) respecting
the purposes for which licences and preliminary certificates are issued;
(m) designating
activities and classes of activities for which notice must be provided under
section 36 and respecting who is to provide the notice and how the notice is to
be provided;
(n) designating
and governing temporary diversions of water and operations of works that must
be carried out in accordance with the regulations;
(o) designating
temporary diversions of water and operations of works for which notice must be
provided under this Act, and respecting who is to provide the notice and how
the notice is to be provided;
(p) respecting
applications for registration;
(q) including
activities carried out in a works by licensees as activities for the purposes
of this Act;
(r) respecting
the purposes for establishing water management areas;
(s) respecting
amendments to licences;
(t) respecting
exemption from notice requirements for dispositions;
(u) respecting
providing notice;
(v) respecting
requiring the provision of financial and other security and the carrying of
insurance by applicants for approvals and licences and by approval holders and
licensees;
(w) respecting
adjustments, repairs, replacement and maintenance for the purposes of sections
42 and 54;
(x) respecting
matters referred to in section 92;
(y) designating
and respecting flood risk areas;
(z) specifying
types and classes of subdivision of land for the purposes of section 23;
(aa) respecting
forms;
(aa.1) governing the publication of particulars of
enforcement action for the purposes of section 152.1 including, without
limitation, what information must or may be published and the times at which
and the manner in which it is to be published;
(bb) respecting
compensation and appeals to the Land Compensation Board;
(cc) respecting
dam and canal safety;
(dd) respecting
measurement of water;
(ee) deeming
approvals issued under Part 6 of the Environmental
Protection and Enhancement Act, as it read on December 31, 1998, to be
approvals for the purposes of this Act and respecting any transitional
provisions that the Minister considers necessary for the purposes of
facilitating the transfer of the regulation of water well drilling from the Environmental Protection and Enhancement Act
to this Act;
(ff) respecting
the remedial action and reclamation with respect to water wells and problem
water wells and methods to be used and requirements to be observed in
reclamation operations;
(gg) respecting
the qualifications for drillers;
(hh) providing
for the issuing and display of tags, decals, plates, devices, documents or
other things to an approval holder to serve as evidence that a drilling machine
is being operated under an approval;
(ii) prohibiting
the use of a drilling machine unless a tag, decal, plate, device, document or
other thing referred to in clause (hh) has been issued in respect of that drilling
machine;
(jj) requiring
and governing the taking of samples, tests, analyses, surveys and logs and
other water well data and the submission of them to the Director;
(kk) governing
official water well names and their registration;
(ll) respecting
the control of flowing water wells;
(mm) respecting
determining the sources of groundwater;
(nn) respecting
the precautions, measures, methods to be taken and casing, anchorage,
equipment, materials and installations to be used before a water well is commenced
and during the drilling, development, completion, operation, reconditioning and
production of a water well;
(oo) respecting
the maintenance of inactive water wells and the ongoing maintenance and
operation of active water wells and classes of active water wells;
(pp) respecting
the drilling and reclamation of boreholes and the persons in charge of
drilling;
(qq) exempting
water users or classes of water users from the right to divert water under
section 21;
(rr) respecting
water management orders and declarations under section 23;
(ss) respecting
agreements for the assignment of water;
(tt) providing
for any matters considered necessary to carry out the purposes of transfers of
allocations of water under licences;
(uu) respecting
how a transfer of an allocation of water under a licence reverts back to the
original licence;
(vv) requiring
and respecting notice to be given before commencing the drilling of a water
well or class of water well;
(ww) prohibiting
drilling through water, oil, gas, coal or any other mineral unless adequate
measures are taken to confine the water, oil, gas or other mineral to its
original stratum and to protect that stratum or any coal seam or other mineral
deposit or any workings in it from infiltration, inundation, migration or
injury and respecting those measures;
(xx) respecting
drilling and the persons in charge of drilling;
(yy) prescribing
requirements for the safety of any works including, but not restricted to,
provisions for the orderly abandonment and removal of any works that are no
longer required;
(zz) respecting
access to information by the public;
(aaa) designating
and respecting activities that must be carried out in accordance with the
regulations;
(bbb) respecting
the definition of water body and respecting water bodies related to irrigation
works;
(ccc) governing
property in and rights with respect to diversion and use of water in Alberta;
(ddd) providing
for any other matters necessary for the purposes of this Act.
(3) The
Lieutenant Governor in Council may make regulations
(a) providing
with respect to any provision of the regulations under this Act that its
contravention constitutes an offence;
(b) prescribing
penalties, including imprisonment, in respect of offences created under clause
(a);
(c) prescribing
the form and contents of tele‑warrants and facsimiles for the purposes of
section 132;
(d) prescribing
the manner in which facts relating to convictions are to be published and
notice is to be given for the purposes of section 148(1)(c) and (d);
(e) prescribing
the form and contents of notices of administrative penalties for the purposes
of section 152;
(f) prescribing
contraventions in respect of which an administrative penalty may be imposed and
prescribing the amounts, or the manner of determining the amounts, of the
administrative penalties that may be imposed,
but in the case of an administrative penalty referred to in section
152(1.1)(a), the administrative penalty may not exceed $5000 for each
contravention or for each day or part of a day on which the contravention
occurs and continues, as the case may be;
(g) respecting any other matter necessary for
the administration of the system of administrative penalties.
RSA 2000 cW‑3
s169;2002 c4 s5
Part 14
Transitional
Transitional regulations
170 The Minister may make regulations
(a) respecting
the conversion to this Act of anything from the Water Resources Act, RSA 1980 cW‑5;
(b) to deal with any difficulty or impossibility
resulting from the transition to this Act from the Water Resources Act, RSA 1980 cW‑5.
1996 cW‑3.5 s170
Applications
171(1) Subject to subsection (2), if on January
1, 1999, a complete application under the Water
Resources Act, RSA 1980 cW‑5, has been made for a permit, licence or
other authority but a decision with respect to the application has not been
made, the application continues as an application under the Water Resources Act as if it were still
in force but the permit, licence or other authority on being issued, is, by order of the Minister, a deemed
approval, preliminary certificate or licence under this Act.
(2) Sections
18(2), (5)(a) and (b), (6) and 20(3) of this Act apply to deemed approvals,
preliminary certificates and licences under this section.
(3) If
an application referred to in subsection (1) is incomplete, the application
must be made in accordance with this Act.
(4) The decision as to whether an application
referred to in subsection (1) is complete is in the discretion of the person
who would be authorized under the Water
Resources Act, RSA 1980 cW‑5, to receive the application if the Water Resources Act were in force.
1996 cW‑3.5 s171
Alberta Regulation
307/91 continued
172(1) The South
Saskatchewan Basin Water Allocation Regulation (AR 307/91) is continued as
a Regulation under this Act.
(2) Section
12(1) and (2) of the Water Resources Act,
RSA 1980 cW‑5, continue to be in force for the purposes of administering
the South Saskatchewan Basin Water
Allocation Regulation (AR 307/91).
(3) The
Director under this Act may issue, subject to the South Saskatchewan Basin Water Allocation Regulation (AR 307/91),
except for sections 1(b) and 6 of that Regulation, a licence or preliminary
certificate with respect to any or all of the water reserved under the South Saskatchewan Basin Water Allocation
Regulation (AR 307/91).
(4) An
application for a licence with respect to water reserved under the South Saskatchewan Basin Water Allocation
Regulation (AR 307/91) must be made in accordance with this Act.
(5) Subject
to subsections (4) and (6), if the South
Saskatchewan Basin Water Allocation Regulation (AR 307/91), other than
sections 1(b) and 6 of that Regulation, is inconsistent with this Act, that
Regulation prevails over this Act.
(6) For the purposes of this section, references in
the South Saskatchewan Basin Water
Allocation Regulation (AR 307/91) to “Controller of Water Resources” are
deemed to be references to “Director” as defined in this Act.
1996 cW‑3.5 s172
Reservations continued
173(1) On January 1, 1999, an order with respect
to the reservation of water made under section 12 of the Water Resources Act, RSA 1980 cW‑5, continues as an order
under that Act as if that Act had not been repealed and section 12(1) and (2)
of that Act continue to be in force for the purpose of administering that
order.
(2) The
Director under this Act may issue a licence or preliminary certificate with
respect to any or all of the water reserved under an order referred to in
subsection (1).
(3) An application for a licence with respect to
water reserved under an order referred to in subsection (1) must be made in
accordance with this Act.
1996 cW‑3.5 s173
Water Power Regulation
174(1) In this section,
(a) “licence”
means a licence
(i) that is a deemed licence under section 18(1) of this Act, and
(ii) to which, immediately before January 1, 1999, the Regulation
applies;
(b) “Regulation”
means the Water Power Regulation (AR
72/91).
(2) The
Regulation continues in force under this Act with respect to a licence, but
when that licence is amended under this Act the Regulation ceases to govern
that licence and this Act governs that licence.
(3) For
the purposes of applying the Regulation, “Director” as defined in the
Regulation is deemed to mean “Director” as defined in this Act.
(4) If
a term or condition of the licence or a provision of the Regulation is
inconsistent with this Act, the term, condition or provision prevails over this
Act except for sections 18(2)(a), 54 and 168 of this Act.
(5) This section expires on December 31, 2001.
1996 cW‑3.5 s174