Water Management References

Key Findings re Water Management

by Ted Manning, Patterson Lake Association

April, 2008

1. Multiple Laws and Jurisdictions

There are many agencies involved, Federal, Provincial regional and local. The Provincial Agency – the Ministry of Natural Resources has the lead in most areas relating to the management of lake and river water. (See list of key references below)

2. Permission to make changes

Nearly all actions which can affect water quality and quantity require a permit. That includes everything from major shoreline alterations, anything which could pollute water, building altering or removing any dams, weirs or channel modifications. In particular, those which cause any damage to property up or downstream, damage fish habitat, or significantly alter shoreline are subject to significant fines or damage settlements.

3. Penalties and Regulations.

The history of lawsuits pertaining to damage to property due to unauthorized actions is mixed – in Ontario and elsewhere. There are a number of legal precedents which provide some information on what can occur. In some cases, full restoration to the original state is required; in others there have been a range of fines, warnings or decisions that the changes have not violated specific regulations. What is clear from the history in Ontario and elsewhere is that riparian rights are complicated. The first reference below with regard to Beaver Dam removal provides a taste of how it is supposed to work in the case of beaver dams and how complex it can be. The range of Acts which come into play is typical of any change, and the values they are supposed to protect are also shown. In particular, the prevention of damage to fish habitat and the prevention of damage to property or use

4. Riparian rights

There is an immense literature on riparian rights for different jurisdictions. Basically, water is a shared resource, and all those who own property adjacent to water share in its use. The rights include “reasonable use” (defined differently in different jurisdictions and subject to case law interpretations) which in layman’s terms generally means that you can use it without causing harm to other users – whether upstream or downstream.

Riparian water rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. It has its origins in English common law. It is used in the United Kingdom and states in the eastern United States and underlies Canadian law regarding water. Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land, and water cannot be transferred out of the watershed. All those with riparian rights have the right to reasonable use – but not to removing the water used by others or contaminating it. Among the rights which are protected are access to water, the right to uncontaminated water, and the right to enjoyment of property (which is now enshrined in the Canadian Bill of Rights.)

Essentially, no-one has the right to take away what you have. (Such as removing a stream, draining a lake, altering water levels, polluting a lake or stream). Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon "reasonable use" as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.

The references which follow are few of the key laws, regulations and reference sources which pertain to lake management in Ontario – and which will be relevant to any alterations to the lake and its shoreline. Because these are so complex, often each jurisdiction has difficulty interpreting which regulations are in force, whose take precedence, and how they interact with each other; the long list of legal cases in Ontario relating to lake and river water shows the complexity and the ongoing development of case law in this area.

A }Beaver Dam Removal Regulations

http://www.dfo-mpo.gc.ca/regions/central/habitat/os-eo/prov-terr/on/os-eo03_e.htm

removal of the dam will not adversely affect a fishery, or recreational property uses that depend on the dam’s existence, both upstream and downstream,
the removal activities are limited to removing or breaching the beaver dam itself and do not involve channel or shoreline modification downstream (e.g., widening, straightening, ditching, etc.),
individual detonations of more than one kilogram of explosives will not be used to remove the dam (diesel fuel and fertilizer is not to be used as a type of explosive),
the removal does not involve a beaver dam that is directly connected with a culvert or bridge (removal in these situations is addressed in Operational Statements for Culvert Maintenance and Bridge Maintenance), and
you incorporate the Measures to Protect Fish and Fish Habitat when Removing Beaver Dams listed below in this Operational Statement.

We ask that you notify DFO, preferably 10 working days before starting your work by filling out and sending the Ontario Operational Statement notification form (http://www.dfo-mpo.ca/regions/central/habitat/os-eo/prov-terr/on/os-eo20_e.htm) to the DFO office in your area. This information is requested in order to evaluate the effectiveness of the work carried out in relation to this Operational Statement.

In addition, the Ontario Ministry of Environment should be notified if the dam removal is likely to result in discoloration of downstream water, so that they may respond to public inquiries.

Measures to Protect Fish and Fish Habitat when Removing Beaver Dams

1.	Use existing trails, roads or cut lines wherever possible to avoid disturbance to the riparian vegetation.

2.	While this Operational Statement does not cover the clearing of riparian vegetation, the removal of select plants may be necessary to access and remove the beaver dam. This removal should be kept to a minimum.

3.	Whenever possible, remove beaver dams by hand.

4.	Beaver dam removal is preferably not done in the winter when the pond is frozen. This may result in losses of habitat for overwintering fish in the upstream pond and the discharge of water devoid of oxygen downstream.

For non-emergency beaver dam removal, time the removal to prevent disruption to sensitive fish life stages by adhering to appropriate fisheries timing windows (see the Ontario In-Water Construction Timing Windows). Any proposal to conduct non-emergency work under ice-covered conditions requires prior review by your local Conservation Authority, DFO, or Parks Canada office, as appropriate. It is preferable that removal is done during low flow conditions.

Emergency beaver dam removal can be carried out at any time during the year. Emergencies include situations where carrying out the project immediately is in the interest of preventing damage to property or the environment or is in the interest of public health or safety. Your local Conservation Authority, DFO, or Parks Canada office, as appropriate, is to be notified immediately. You should follow all other measures to the greatest extent possible.

Install effective sediment and erosion control measures before starting work to prevent the entry of sediment into the watercourse due to machinery operation or other activities that disturb the bank during the removal project. Inspect them regularly during the course of construction and make all necessary repairs if any damage occurs.

Operate machinery on land (from outside of the water) and in a manner that minimizes disturbance to the banks of the watercourse

8.1.Machinery is to arrive on site in a clean condition and is to be maintained free of fluid leaks.

8.2. Wash, refuel and service machinery and store fuel and other materials for the machinery away from the water to prevent any deleterious substance from entering the water.

8.3. Keep an emergency spill kit on site in case of fluid leaks or spills from machinery.

8.4. Restore banks to original condition if any disturbance occurs..

Remove the dam gradually to allow the water to release slowly and prevent sediment at the bottom of the pond from being released downstream. As the water levels drop in the upstream pond, increase the size of the opening to drain the pond to the desired level. The width of the breach opening of the beaver dam should not exceed the width of the original stream channel to prevent bank erosion and flooding of adjacent properties. When a series of dams is to be removed, this should be done from downstream to upstream in order to avoid severe flooding and damage to fish habitat.

10.

If blasting is required, individual detonations should be minimized (no more than one kilogram and preferably smaller). If larger charges are required, contact DFO prior to commencing the work.

11.

Relocate any fish that become trapped in isolated pools or stranded in newly flooded areas to the main channel of the watercourse.

12.

Stabilize any waste materials removed from the work site to prevent them from entering the watercourse (e.g., placing them above the ordinary high water mark (see definition below)). This could include covering spoil piles with biodegradable mats or tarps or planting them with grass or shrubs.

13.

Vegetate any disturbed areas by planting and seeding preferably with native trees, shrubs or grasses and cover such areas with mulch to prevent erosion and to help seeds germinate. If there is insufficient time remaining in the growing season, the site should be stabilized (e.g., cover exposed areas with erosion control blankets to keep the soil in place and prevent erosion) and vegetated the following spring. 13.1. Maintain effective sediment and erosion control measures until re-vegetation of disturbed areas is achieved.

Definitions:

Ordinary high water mark – The usual or average level to which a body of water rises at its highest point and remains for sufficient time so as to change the characteristics of the land. In flowing waters (rivers, streams) this refers to the “active channel/bank-full level” which is often the 1:2 year flood flow return level. In inland lakes, wetlands or marine environments it refers to those parts of the water body bed and banks that are frequently flooded by water so as to leave a mark on the land and where the natural vegetation changes from predominately aquatic vegetation to terrestrial vegetation (excepting water tolerant species). For reservoirs this refers to normal high operating levels (Full Supply Level).

For the Great Lakes this refers to the 80th percentile elevation above chart datum as described in DFO’s Fish Habitat and Determining the High Water Mark on Lakes.

B)Selected Water Management References

Beaver Control (Means and limits) References to Fisheries Habitat Control; application of Canadian Fisheries Act., Lakes and Rivers Improvement Act and Public Lands Act and Game and Fish Act. Requirement to obtain permissions to destroy dams and to safeguard any fish which may be impacted.

http://www.lrconline.com/Extension_Notes_English/pdf/bvr.pdf#search=%22beaver%20dams%20Ontario%22

Conservation Authorities Act (Ontario) which establishes Conservation Authorities and allocates mandate (under most other Laws) to manage river basins including:

(a) to study and investigate the watershed and to determine a program whereby the natural resources of the watershed may be conserved, restored, developed and managed;

(b) for any purpose necessary to any project under consideration or undertaken by the authority, to enter into and upon any land and survey and take levels of it and make such borings or sink such trial pits as the authority considers necessary;

(c) to acquire by purchase, lease or otherwise and to expropriate any land that it may require, and, subject to subsection (2), to sell, lease or otherwise dispose of land so acquired;

(d) despite subsection (2), to lease for a term of five years or less land acquired by the authority;

(e) to purchase or acquire any personal property that it may require and sell or otherwise deal therewith;

(f) to enter into agreements for the purchase of materials, employment of labour and other purposes as may be necessary for the due carrying out of any project;

(g) to enter into agreements with owners of private lands to facilitate the due carrying out of any project;

(h) to determine the proportion of the total benefit afforded to all the participating municipalities that is afforded to each of them;

(i) to erect works and structures and create reservoirs by the construction of dams or otherwise;

(j) to control the flow of surface waters in order to prevent floods or pollution or to reduce the adverse effects thereof;

(k) to alter the course of any river, canal, brook, stream or watercourse, and divert or alter, as well temporarily as permanently, the course of any river, stream, road, street or way, or raise or sink its level in order to carry it over or under, on the level of or by the side of any work built or to be built by the authority, and to divert or alter the position of any water-pipe, gas-pipe, sewer, drain or any telegraph, telephone or electric wire or pole;

(l) to use lands that are owned or controlled by the authority for purposes, not inconsistent with its objects, as it considers proper;

(m) to use lands owned or controlled by the authority for park or other recreational purposes, and to erect, or permit to be erected, buildings, booths and facilities for such purposes and to make charges for admission thereto and the use thereof;

(m.1) to charge fees for services approved by the Minister;

(n) to collaborate and enter into agreements with ministries and agencies of government, municipal councils and local boards and other organizations;

(o) to plant and produce trees on Crown lands with the consent of the Minister, and on other lands with the consent of the owner, for any purpose;

(p) to cause research to be done;

(q) generally to do all such acts as are necessary for the due carrying out of any project. R.S.O. 1990, c. C.27, s. 21; 1996, c. 1, Sched. M, s. 44 (1, 2); 1998, c. 18, Sched. I, s. 11.

For the purposes of accomplishing its objects, an authority has power,