Source: Red River Basin Disaster Information Network (www.rrbdin.org)
Inventory Team Report
December 2000
TABLE OF CONTENTS
I. INTRODUCTION...................................................................................................................... 1
History of Water Law ..................................................................................................... 1
Manitoba ..................................................................................................................... 1
Minnesota.................................................................................................................... 1
North Dakota............................................................................................................... 2
South Dakota............................................................................................................... 3
II. ISSUES MATRIX..................................................................................................................... 5
Issues Summary............................................................................................................ 11
III. COMPARISON MATRIX..................................................................................................... 13
Comparison Summary.................................................................................................. 25
IV. Canada Federal - Provincial Jurisdiction............................................................................... 25
Canada Federal Legislation........................................................................................... 25
Navigable Waters Protection Act.............................................................................. 25
International River Improvements Act ..................................................................... 25
International Boundary Commission Act ................................................................. 26
Prairie Farm Rehabilitation Act ................................................................................ 26
International Boundary Waters Treaty Act............................................................... 26
Fisheries Act ............................................................................................................. 26
Canada Wildlife Act.................................................................................................. 26
Canadian Environmental Assessment Act ................................................................ 27
Migratory Birds Convention Act .............................................................................. 27
Canada Water Act ..................................................................................................... 27
Canada Shipping Act ................................................................................................ 27
Dominion Water Power Act...................................................................................... 27
Indian Act.................................................................................................................. 27
Canada Federal / Provincial Agreement ....................................................................... 28
Canada-Manitoba Agreement for Environmental Assessment Harmonization........ 28
Manitoba Provincial Legislation................................................................................... 29
The Water Resources Administration Act................................................................ 29
The Water Rights Act ............................................................................................... 29
The Water Power Act................................................................................................ 29
The Ground Water and Water Well Act ................................................................... 29
The Diking Authority Act......................................................................................... 29
The Water Commission Act...................................................................................... 30
The Water Supply Commission Act ......................................................................... 30
The Endangered Species Act .................................................................................... 30
The Wildlife Act ....................................................................................................... 30
The Manitoba Habitat Heritage Act.......................................................................... 30
The Crown Lands Act............................................................................................... 30
The Provincial Parks Act .......................................................................................... 31
The Sustainable Development Act............................................................................ 31
The Environment Act................................................................................................ 31
The Dangerous Goods Handling and Transportation Act......................................... 31
The Manitoba Water Services Board Act................................................................. 31
i
The Conservation Districts Act................................................................................. 31
The Municipal Act.................................................................................................... 32
The Planning Act ...................................................................................................... 32
The City of Winnipeg Act......................................................................................... 32
The Department of Agriculture Act.......................................................................... 32
The Highways and Transportation Department Act................................................. 32
The Public Health Act............................................................................................... 32
The Heritage Resources Act ..................................................................................... 32
V. UNITED STATES .................................................................................................................. 33
United States Federal Legislation................................................................................. 33
Clean Water Act........................................................................................................ 33
Endangered Species Act............................................................................................ 33
Federal Water Project Recreation Act ...................................................................... 33
National Environmental Policy Act .......................................................................... 33
Safe Drinking Water Act........................................................................................... 34
Fish and Wildlife Co-ordination Act ........................................................................ 34
National Wild and Scenic Rivers Act....................................................................... 34
Rivers and Harbours Act........................................................................................... 34
Minnesota Legislation................................................................................................... 35
Minnesota Statutes .................................................................................................... 35
Chapter 103A – Water Policy and Information.................................................... 35
Chapter 103B – Water Planning and Project Implementation.............................. 35
Chapter 103C – Soil and Water Conservation Districts ....................................... 36
Chapter 103D – Watershed Districts .................................................................... 36
Chapter 103E – Drainage ...................................................................................... 36
Chapter 103F – Protection of Water Resources.................................................... 36
Chapter 103G – Waters of the State...................................................................... 37
Chapter 103H – Groundwater Protection............................................................. 37
Chapter 103I – Wells, Borings and Underground Uses........................................ 38
Chapter 110A – Rural Water User Districts ......................................................... 38
Chapter 115 – Water Pollution Control and Sanitary Districts............................. 38
North Dakota Legislation.............................................................................................. 39
Century Code: Title 61- Waters................................................................................ 39
Chapter 61-01 – General Provisions ..................................................................... 39
Chapter 61-02 – Water Commission..................................................................... 39
Chapter 61-04 – Appropriation of Water.............................................................. 40
Chapters 61-05 to 61-14 – Irrigation Districts...................................................... 40
Chapter 61-15 – Water Conservation.................................................................... 40
Chapter 61-16 and 61-16.1 – Water Resource Districts ....................................... 40
Chapter 61-16.2 – Floodplain Management ......................................................... 40
Chapter 61-20 – Artesian Wells............................................................................ 41
Chapter 61-21 – Drainage Projects ....................................................................... 41
Chapter 61-28 – Control, Prevention & Abatement of Pollution of Surface Waters
.............................................................................................................................. 41
Chapter 61-30 – Lake Protection and Rehabilitation............................................ 41
Chapter 61-31 – Waterbank Program................................................................... 41
Chapter 61-32 – Wetlands..................................................................................... 41
ii
Chapter 61-33 – Sovereign Land Management .................................................... 41
Chapter 61-35 – Water Districts ........................................................................... 41
Century Code – Title 4 - Agriculture........................................................................ 42
Chapter 4-35.1 – Chemigation Regulation........................................................... 42
Century Code – Title 23 - Health and Safety........................................................... 42
Chapter 23-33 – Ground Water Protection........................................................... 42
Century Code – Title 43 – Occupations and Professions ......................................... 42
Chapter 43-35 – State Board of Water Well Contractors ..................................... 42
Administrative Code ................................................................................................. 42
Chapter 89-02-01 – Drainage of Ponds, Sloughs, or Lakes, or Any Series Thereof,
and of Meandered Lakes....................................................................................... 42
Chapter 89-02-04 – Drainage Complaint Appeals................................................ 42
Chapter 89-03-01 – Water Permits ....................................................................... 42
Chapter 89-03-02 – Modification of a Water Permit............................................ 42
Chapter 89-03-03 – Definitions (Water Appropriation) ....................................... 42
Chapter 89-08-01 – Definitions (Statues) ............................................................. 42
Chapter 89-08-02 – Construction Permits ............................................................ 42
Chapter 89-08-03 - Inspections............................................................................. 42
Chapter 89-08-04 – Operating Plan...................................................................... 42
South Dakota Legislation...................................................................................... 43
Codified Law - Title 34A - Environmental Protection............................................. 43
Chapter 34 A-2 – Water Pollution Control........................................................... 43
Chapter 34A-3A – Safe Drinking Water............................................................... 43
Codified Law - Title 46 – Water Rights ................................................................... 43
Chapter 46-1 – Definitions and General Provisions ............................................. 43
Chapter 46-2A – Administrative Procedure for Appropriation of Water ............. 43
Chapter 46-4 – Dry-Draw and Non-navigable Stream Dams............................... 44
Chapter 46-5 – Appropriation of Water................................................................ 44
Chapter 46-6 – Groundwater and Wells ............................................................... 44
Chapter 46-7 – Storage, Diversion and Irrigation Works ..................................... 44
Chapter 46-8 – Eminent Domain .......................................................................... 44
Chapter 46-10A – Water Use Control Area.......................................................... 44
Codified Law - Title 46A – Water Management ...................................................... 44
Chapter 46A-1 – State Water Resources Management......................................... 44
Chapter 46A-2 – South Dakota Conservancy District.......................................... 45
Chapter 46A-5 – Irrigation District Projects and Operations ............................... 45
Chapter 46A-10A – County Drainage .................................................................. 45
Chapter 46A-10B – Drainage Basin Utility Districts ........................................... 45
Chapter 46A-13 – Interstate Drainage Districts.................................................... 45
Chapter 46A-14 – Watershed Districts ................................................................. 45
Chapter 46A-16 – Minnesota Boundary Waters................................................... 46
Administrative Rules................................................................................................. 46
74:02:01 – General Rules...................................................................................... 46
74:02:02 – Flowing Artesian Wells ...................................................................... 46
74:02:03 – Public Lake Elevations ....................................................................... 46
74:02:04 – Well Construction Standards .............................................................. 46
74:02:05 – Regulation of Groundwater Use ......................................................... 46
iii
74:02:08 – Safety of Dams ................................................................................... 46
VI. INTERNATIONAL AGREEMENTS / TREATIES ............................................................. 47
United Nations Convention on Environmental Impact Assessment in a Trans-boundary
Context (1991) .............................................................................................................. 47
Boundary Waters Treaty............................................................................................... 47
VII. OVERALL SUMMARY..................................................................................................... 48
Summary of Issues - Points........................................................................................... 49
Summary of Comparisons - Points ............................................................................... 50
VIII. REFERENCE SOURCES ................................................................................................... 51
iv
I. INTRODUCTION
The Water Law Committee, part of the Inventory Task Force, has compiled water-related
legislation for each jurisdiction in the Red River Basin, which will affect water use and
management. This information will be used by the Red River Basin Board (RRBB), to develop a
Co-ordinated Water Management Planning Process.
History of Water Law
Manitoba
In the 1800's Manitoba's water was governed by Federal Legislation. The Drainage Act passed
in 1880 provided an organized approached to drainage. In 1894, the Northwest Irrigation Act
established the Crown’s right to allocate water through a licensing process and was subsequently
amended and retitled The Land Drainage Act in 1895.
Water resources control was transferred to Manitoba in 1930, at which time the province
enacted The Water Rights Act, giving the province the authority to license irrigation and other water
uses. The drought in the early 1930's brought about the Prairie Farm Rehabilitation Act, providing
funding to farmers and later served to provide water management assistance under Federal
jurisdiction. During this time, the province proclaimed the Land Drainage Arrangement Act (1935)
to provide for drainage districts and later drainage management districts. Costs of drain
maintenance fell to the Municipalities.
The next major change in water management occurred in 1959. The Water Rights Act was
amended, making groundwater as well as surface water subject to the Act. The Watershed
Conservation District Act was also enacted that year, allowing municipalities to request the
establishment of conservation districts wherein they could assume control of various aspects of
water management.
In the 1960's, The Water Resources Administration Act abolished drainage districts, created
provincial waterways, and provided a clearer distinction between municipal and provincial
responsibilities. The Province assumed responsibility for part of the drainage systems and
undertook reconstruction of existing works to ensure better crop protection.
The most current water related legislation was drafted in 1987. At that time, The Water Rights
Act was amended to provide provisions for licensing requirements and enforcement.
Minnesota
On May 11, 1858, Minnesota became a state and water rights were established. Water law
initially followed riparian doctrine (giving the right to use water for domestic, agricultural, and
other purposes) and tried to preserve the status quo of nature, but was gradually changed allowing
decisions to be based on reasonable and beneficial use.
There have been three distinct periods of water law in Minnesota. The years between 1858 and
1920 were a time of extensive drainage activity and the State enacted “An Act to Encourage the
1
Drainage of Lands,” which was the first drainage law in Minnesota. Also during this period,
legislation was designed to eliminate or resolve potential conflicts that arose during the initiation or
construction of drainage projects and to deregulate the government authority to control drainage
activity. In 1919, a Supreme Court decided that benefits of land reclamation had to be weighed
against the costs of destruction.
From 1920 to 1960, Minnesotans' attitudes toward water changed. The Great Depression and
the "Dustbowl" drought of the 1930’s brought protection for both public and non-public waters. In
1937, Minnesota passed a statute making it illegal to use waters of the State without first obtaining
written permission from the Commissioner of Conservation.
The third period, 1960 to present day, reflects the general public's concern for the environment.
There are currently a set of rules for rivers and streams, ditches, and surface run-off. Riparian
owners have the right to use surface and ground water for domestic, agriculture and manufacturing
purposes, however, a permit is required for any consumptive use of more than 10,000 gallons per
day or 1,000,000 gallons per year from public waters. Groundwater permits are required for
withdrawal of more than 10,000 gallons per day or 1,000,000 gallons per year.
North Dakota
In 1883, seven years before statehood, North Dakota's first water law (Revised Codes of the
Territory of Dakota) was enacted enabling the settlers to drain and reclaim land. In 1889, a
provision was adopted in the State Constitution stating “all flowing streams and natural water
courses shall forever remain the property of the State for mining, irrigating and manufacturing
purposes”. A comprehensive prior appropriation law was adopted in 1905; however, riparian
doctrine was still recognized in certain situations. It was not until 1963 that prior appropriation
became the only doctrine used for granting water permits. In 1967, water quality standards for
surface waters were adopted by the North Dakota State Water Commission.
In 1905, the North Dakota State Legislature created the Office of the State Engineer, creating a
governance mechanism for the appropriation of surface and ground water. In 1937, the state
legislature created the North Dakota State Water Commission to promote and develop the water
resources of the state. That law also mandated that a state water plan be developed to guide the
State Water Commission. Eight years later, in 1945, the state legislature combined the Office of the
State Engineer with the State Water Commission. The State Engineer became the Chief Engineer
and Secretary to the State Water Commission. This position is appointed by the State Water
Commission.
Although the State Engineer serves a role with the State Water Commission, the law provides
for a clear separation of authority and power. The State Engineer is responsible for regulating water
management, drainage, construction of dams and dikes, floodplain management and sovereign
lands. The State Water Commission is responsible for promoting and developing water resources
and has progressed to owning, operating, and maintaining projects for water development/supply
projects.
2
South Dakota
In 1866, riparian law was codified in a statute of the territorial legislature. In 1907 legislature
enacted a comprehensive water law declaring all waters to be the property of the public, subject to
appropriation by individuals. This was the first time application was made to a government entity
for a permit to appropriate water. The 1955 Water Law was a comprehensive revision of water law.
Permitting and administration of water rights is the responsibility of a Water Management
Board, which operates within the Department of Environment and Natural Resources. A chief
engineer, appointed and supervised by the Water Management Board, supervises water rights. This
engineer has the statutory authority to order any person to shut off or limit use of surface or
groundwater, to plug, or to otherwise control a well.
The federal EPA has delegated to the Department of Environment and Natural Resources the
administration of the National Pollution Discharge Elimination System (NPDES). Thus the Water
Management Board considers water quality as well as water rights.
3
II. ISSUES MATRIX
Issue
General
•
•
Manitoba Law
Minnesota Law
Water is allocated on •
a “first-in-time, firstin-rights” system
All property in and all
rights to the use or
diversion of, all water •
in the province, are
vested in the Crown
in right of Manitoba
Lakes and streams are •
governed by
riparianism limited by
the doctrine of
reasonable use
Riparianism is the
right to use water for •
domestic, agricultural
and manufacturing
purposes
Surface water (runoff) is allocated
•
South Dakota Law
Right to the use of
water in any natural
stream or watercourse
is acquired by
appropriation through
the issuance of a permit
Groundwater use is
acquired by
appropriation through
the issuance of a permit
North Dakota Law
•
•
•
•
•
•
5
Right to use water is
governed by the prior
appropriation
doctrine.
Riparian rights
acquired prior to the
repeal of the doctrine
in 1963 are
recognized
Waters on the surface
of the earth excluding
diffused surface
waters, waters under
the surface of the
earth, residual waters
resulting from
beneficial use and all
waters in noncontributing drainage
areas are considered
subject to
appropriation for
beneficial use and the
right to the use of the
waters must be
acquired
Holders of water
permits must file
annual water use
reports
Water right is a
perpetual property
right providing
beneficial uses are
met
There are no water
rights to maintain instream flows
Cdn Federal Law
•
•
•
Canadian
Environmental
Assessment Act
Navigable Waters
Protection Act
International
Rivers
Improvement Act
U.S. Federal Law
•
National
Environmental
Rivers &
Harbours Act
Issue
Ownership
•
•
•
•
Manitoba Law
Minnesota Law
All water within the
•
Province comes under
Provincial jurisdiction
Jurisdiction over
waterways is shared
with municipalities,
City of Winnipeg and •
the Federal
Government
Federal lands include
the beds of nonnavigable waterways
and up to the ordinary
high water mark of
navigable waterways
City of Winnipeg has
authority concerning
protection against
floods, construction
and maintenance of
drains and
watercourses and
pollution thereof
Riparian owners own
small lake and stream
beds while the state
owns large
(navigable) lake and
stream beds
Riparian owners on
non-navigable or
private lakes own to
the middle of lake
while owners on
navigable or public
lakes own to the low
water mark
South Dakota Law
•
•
•
•
•
•
All water is owned by
the people of the state
The ownership of land
below ordinary highwater mark, and of land
below the water of a
navigable lake or
stream, is regulated by
the laws of the United
States or by such laws
of the state as the
Legislature may enact
Unless the grant under
which the land is held
indicates a different
intent, the owner of the
upland, if it borders
upon a navigable lake
or stream, take to the
edge of the lake or
stream at low water
mark
All navigable rivers and
lakes are public
highways
within 50 feet landlord
from the water’s nearest
edge, provided that the
outer boundary of such
public highway may not
expand beyond the
ordinary high water
mark and may not
contract within the
ordinary low water
mark
Island and
accumulations of lands
formed in the beds of
streams which are
navigable and in
6
North Dakota Law
•
•
•
•
The State owns the
bed of all navigable
waters
The State is vested
with control of
navigable lakes,
which have been
meandered and their
metes and bounds
established, within the
ordinary high water
mark for the purpose
of constructing,
maintaining and
operating dams, dikes,
ditches, fills,
spillways or other
structures to promote
conservation,
development, storage,
distribution and
utilisation of such
water and the
propagation and
preservation of
wildlife
All navigable rivers
are deemed public
highways
Except when the grant
under which the land
is held indicates a
different intent, the
owner of the upland,
when it borders on a
navigable lake or
stream, takes to the
edge of the lake or
stream at low
watermark
Cdn Federal Law
U.S. Federal Law
Issue
Manitoba Law
Minnesota Law
South Dakota Law
North Dakota Law
Cdn Federal Law
U.S. Federal Law
meandered lakes
belongs to the state, if
there is no title or
prescription to the
contrary
Allocation/
Permit/
License
•
Permits/licenses are
required for:
• Use of more than
5500 gallons per
day
•
Permits/licenses are
•
required for:
• any consumptive
use of more than
10,000 gallons
•
per day or
1,000,000 gallons
per year from
public waters
(surface and
ground water)
Appropriations in
•
excess of 10,000 acre
feet annually require
legislature approval
Permits/licenses are
required for:
• Water distribution
system that
conveys more than
18 gallons per
minute
• Domestic use of
water that exceeds
25,920 gallons per
day and peak
diversion exceeds
25 gallons per min.
Permits/licenses are
• Canadian
required for:
Environmental
Assessment Act
• domestic,
livestock, fish,
wildlife and
recreational uses
of more than 12.5
acre-feet per year
(approx.
4,073,138 gallons
per year)
Dams
•
Construction or
•
maintenance of all
dams requires a Water
Rights License
Dams over 6 feet high •
or holding back more
than 50 acre feet
require a permit
Dams across a dry-draw •
which impound less
than 25 acre-feet of
water, which is used
for agricultural
purposes does not
require a permit
A dam across any nonnavigable stream that
does not change the
course of water, does
not interfere with
vested rights and does
not flood lands not
owned by the owner of
the dam does not
require a permit
Dams impounding
•
over 12.5 acre feet
require a construction
permit in addition to a •
water permit
•
7
•
International
•
River
Improvements Act
Navigable Waters
Protection Act
National
Environmental
Policy Act
National
Environmental
Policy Act
Issue
Pollution
Control
•
•
•
Manitoba Law
Minnesota Law
Specifications,
•
standards and safety
procedures for wells
and well drilling are
prescribed in
regulations
Licensing processes,
under various
legislation, address
the presence of
contaminant in the
environment
Reporting of a spill of
dangerous materials is
regulated by law
A Minnesota
Pollution Control
Agency exists
South Dakota Law
•
Various pollution
control standards exist
North Dakota Law
•
•
U.S. Federal Law
The State Department •
of Health oversees
•
issues regarding water
pollution. They
operate under the
Federal Water
Pollution Control Act.
Rules exist regulating
chemigation through
irrigation systems.
Canada Water Act •
Canada Shipping
Act
Clean Water Act
Drinking water
standards exist
•
Canada Water Act •
•
Clean Water Act
Safe Drinking
Water Act
Drinking
Water
Standards
•
Drinking water
standards exist
•
Drinking water
standards exist
•
Drinking water
standards exist
Water Quality
Standards
•
Water quality
standards exist
•
Standards of quality
and purity have been
established for each
classification
•
Water quality standards •
are established and used
to classify water
according to beneficial
uses
•
The State Department
of Health is
responsible for water
quality standards.
A degradation
prevention program
protects ground water
resources by
establishing standards
for compounds in
ground water.
Monitoring and
restoration is carried
out
•
Canada Water Act •
Clean Water Act
Effluent
Standards
•
Effluent standards
exist
•
Minnesota Pollution
Control Agency has
authority to perform
any and all acts
necessary and
•
Effluent standards have •
been established
Pre-treatment standards
have been established
The State Department
of Health is
responsible for
effluent standards
•
Canada Water Act •
Clean Water Act
•
8
•
Cdn Federal Law
Issue
Manitoba Law
Minnesota Law
•
Flood Control
/ Flood
Management
•
•
•
•
The minister may
•
construct or operate,
or construct and
operate, in any part of
the province, such
water control works
as she/he may deem
necessary or
•
expedient in the
public interest
Permit is required to
build, construct, erect
or bring any building
structure or erection
other than a fence on
or within a designated
flood area
The minister may
order evacuation of a
diked area
•
The minister may
South Dakota Law
North Dakota Law
consistent with the
provisions of the
Federal Water
Pollution Control Act
applicable to the
participation of the
state in the National
Pollution Discharge
Elimination System
Sanitary districts are
established to provide
an adequate and
efficient system and
means of collecting,
conveying, pumping,
treating and disposing
of domestic sewage
and garbage and
industrial wastes
Local government
•
units must adopt
floodplain
management
ordinances and these
must be approved by
the commissioner
Ordinances must
include: delineation of
floodplains and
floodways,
preservation of the
capacity of the
floodplain to carry
and discharge
regional floods,
minimization of flood
hazards and
regulation of the use
of the land.
•
Minnesota
Every municipality and •
county has the power to
implement flood
control programs: to
prevent or control
•
flooding within its
boundaries which
endanger property, to
enter into agreements to
co-operate in
preventing or
controlling such
flooding, to acquire and
hold in its name
property and easements
and rights of way for all •
purposes to prevent and
control such flooding,
and to appropriate
moneys therefore.
No person may
construct facilities on
9
The State Water
Commission has
authority to construct
flood control projects.
Water Resource
Districts are
responsible for
management,
conservation,
protection,
development and
control of water
resources and for the
prevention of flood
damages
Dikes, dams or other
devices for flood
control regulation
which are capable of
retaining, obstructing
or diverting more than
Cdn Federal Law
U.S. Federal Law
Issue
•
•
•
Manitoba Law
Minnesota Law
order such work as is
required to complete a
designated diking
system protecting the
diked area or to
increase the level of
the diking system
Municipalities have
full authority and
control over dykes in
the municipality
subject to direction
and supervision of the
commissioner
•
Any building built in
a floodwall fringe
area must meet floodproofing criteria
City of Winnipeg is
vested with full
authority in respect of
protection against
floods within the city •
Department of
Natural Resources
(DNR) commissioner
shall establish rules
for determining
floodplain uses,
variance procedures,
and establish criteria
for alternative or
supplemental
•
floodplain
management
measures
If emergency flood
protection measures
are undertaken, a plan
outlining their use,
must be sent to the
DNR commissioner
as part of a future
comprehensive flood
emergency program
The DNR
commissioner is
responsible for
adopting model
standards and criteria
for the subdivision,
use and development
of shoreland
Municipalities having
shoreland must
submit ordinances or
rules affecting the use
and development of
its shoreland to the
DNR commissioner
for review
•
South Dakota Law
North Dakota Law
any watercourse to
control floods for the
purpose of preventing
or alleviating damage
•
without a permit
(applies only to
watercourses whose
flow exceeds that of a
dry-draw)
The chief engineer may
authorize temporary
emergency facilities
constructed for the
immediate protection of
life or property
•
•
•
10
12.5 acre-feet of
water requires a
permit
Water Resource
Districts guide
development of the
floodplains to reduce
flood damages
through management,
stressing nonstructural measures
such as zoning and
floodproofing,
acquisition and
relocation and flood
warning practices.
Each community shall
adopt floodplain
management
ordinances
Permissible uses in
floodways and
floodplains are
defined
Communities subject
to excessive flooding
participate in the
national flood
insurance program
Cdn Federal Law
U.S. Federal Law
Issues Summary
Review of water legislation impacting the Red River Basin indicates that Canadian and
American laws, both at the federal and provincial/state level, do not significantly differ in the
manner in which they protect and allocate water.
Control of navigable waters is maintained by federal governments, while various levels of
government, in all jurisdictions, control non-navigable waters. Water quantity is protected through
allocation. Water quality is protected through water quality standards, drinking water standards,
effluent standards, and pollution control measures. Flooding is addressed in legislation and area
plans.
11
III. COMPARISON MATRIX
Issue
General
Manitoba
•
•
Minnesota
Water is allocated on a “first- •
in-time, first-in-rights” system
All property in and all rights
to the use or diversion of, all
water in the province, are
•
vested in the Crown in right
of Manitoba
•
South Dakota
Lakes and streams are
•
governed by riparianism
limited by the doctrine of
reasonable use
Riparianism is the right to use
water for domestic,
•
agricultural and
manufacturing purposes
Surface water (run-off) is
allocated
Right to the use of water in
any natural stream or
watercourse is acquired by
appropriation through the
issuance of a permit
Groundwater use is acquired
by appropriation through the
issuance of a permit
North Dakota
•
•
•
•
•
•
•
Ownership
•
•
•
All water within the Province •
comes under Provincial
jurisdiction
Jurisdiction over waterways is
shared with municipalities,
City of Winnipeg and the
•
Federal Government
Federal lands include the beds
of non-navigable waterways
and up to the ordinary high
Riparian owners own small
lake and stream beds while
the state owns large
(navigable) lake and stream
beds
Riparian owners on nonnavigable or private lakes
own to the middle of lake
while owners on navigable or
public lakes own to the low
13
•
•
All water is owned by the
•
people of the state
The ownership of land below
ordinary high-water mark,
and of land below the water
of a navigable lake or stream, •
is regulated by the laws of the
United States or by such laws
of the state as the Legislature
may enact
Rights to use water is
governed by the prior
appropriation doctrine.
Riparian rights acquired prior
to the repeal of the 1963
doctrine are recognized.
Allocation of water resources
subject to the public trusts
doctrine.
Waters on the surface of the
earth excluding diffused
surface waters, waters under
the surface of the earth,
residual waters resulting from
beneficial use and all waters
in non-contributing drainage
areas are considered subject
to appropriation for beneficial
use and the right to the use of
the waters must be acquired.
State owns the bed of all
navigable waters.
All water users must file
annual reports.
Water right is a perpetual
property right.
There are no water rights to
maintain in-stream flow.
All flowing streams and
natural water courses are
property of the state for
mining, irrigating and
manufacturing
The state is vested with
control of navigable lakes,
which have been meandered
and their metes and bounds
established, within the
Issue
Manitoba
•
water mark of navigable
waterways
City of Winnipeg has
authority concerning
protection against floods,
construction and maintenance
of drains and watercourses
and pollution thereof
Minnesota
South Dakota
•
water mark
•
•
Planning
•
•
•
•
•
A Water Commission studies •
projects and problems
referred by the Minister
Water districts provide plans
for supplying an area with an
adequate and reliable supply
of water
Provincial parks are governed
by regulations which protect
the use and diversion of water
Conservation districts are
responsible for conservation,
control and prudent use of
resources
Provincial land use policies
guide the development of
The Board of Water and Soil
Resources co-ordinates
planning activities of
counties, conservation
districts, watershed
management organizations,
rural water user districts and
any other local unit of
government
•
North Dakota
Unless the grant under which
the land is held indicates a
different intent, the owner of
the upland, if it borders upon
a navigable lake or stream,
take to the edge of the lake or
stream at low water mark
All navigable rivers and lakes
are public highways within 50
feet landward from the
water’s nearest edge,
•
provided that the outer
boundary of such public
highway may not expand
•
beyond the ordinary high
water mark and may not
contract within the ordinary
low water mark
Island and accumulations of
lands formed in the beds of
streams which are navigable
and in meandered lakes
belongs to the state, if there is
no title or prescription to the
contrary
The Water Management
Board, which operates within
the Department of
Environment and Natural
Resources, co-ordinates
planning activities
•
•
•
14
ordinary high water mark for
the purpose of constructing,
maintaining and operating
dams, dikes, ditches, fills,
spillways or other structures
to promote conservation,
development, storage,
distribution and utilization of
such water and the
propagation and preservation
of wildlife
All navigable rivers are
deemed public highways
Except when the grant under
which the land is held
indicates a different intent, the
owner of the upland, when it
borders on a navigable lake or
stream, takes to the edge of
the lake or stream at low
watermark
State Department of Health
administers federal and state
surface water pollution
control programs
State Water Commission is
responsible for designing and
implementing a
comprehensive state-wide
water development plan and
for approving all water
projects
Planning is carries out by:
Irrigation Districts, Water
Resource Districts,
Conservation Districts and
Water Districts
Issue
Manitoba
Minnesota
South Dakota
North Dakota
development plans, basic
planning statements and
zoning by-laws
Allocation/Permit/
License
•
Permits/licenses are required •
for:
• Use of more than 5500
•
gallons per day
• Well drillers
• Use or diversion of water
• Construction,
establishment, or
maintenance of works
• Diversion, use or storage •
of water for power
purposes
• Activities within a water
power reserve require a
license
Permits must be consistent
with state and local plans
Groundwater permits for
irrigation are classified as
either Class A (wells located
in areas of adequate
groundwater availability) or
Class B (well located in other
areas)
Permits/licenses are required
for:
• Any consumptive use of
more than 10,000 gallons
per day or 1,000,000
gallons per year from
public waters (surface
and ground water)
• Use by more than 25
persons for domestic
purposes
• Dams more than six feet
in height or that impound
more than 50 acre-feet of
water
• All barriers
• Drainage activities
• Unused wells
• Construction, repair and
sealing of wells
• Well contractors
• Design, installation,
maintenance, pump or
inspection an individual
sewage treatment system
• Construction, installation
or operation of a disposal
system
• Disposal systems
15
•
•
•
•
Appropriations in excess of
10,000 acre feet annually
require legislature approval
Licensed are issued to permit
holders after inspection and
payment of fees.
Permit generally not required
for uses that do not exceed 18
gallons per min. (10,000
gallons per day)
Permits/licenses are required
for:
• Discharging wastes into
water – construction
permit - 5 years max.
• Well drillers
• Flood control
• Water for future use –
temporary permit
• Irrigation purposes amount allowed may not
exceed the rate of 1 cubic
foot per second for each
70 acres and volume of
water diverted may not
exceed 2 acre-feet per
acre - a soil/water
compatibility test is a
pre-requisite for a permit.
• Drip irrigation if the use
is for commercial
purposes and exceeds 18
gallons per min.
• Domestic use if a dam is
constructed on dry-draw
for domestic use purposes
• Water distribution system
that conveys more than
•
•
•
•
•
Conditional water permits
required before commencing
construction for purposes of
appropriating waters or before
taking water from constructed
works (time limit on permits)
Emergency or temporary
permits allow use of water for
periods not to exceed 12
months provided use will not
be a detriment to existing
rights
State Water Commission may
acquire rights over
unappropriated water
Prior to issuance of the
perfected water permit, works
must be inspected
Permits/licenses are required
for all uses except:
• Domestic, livestock, fish,
wildlife and recreational
uses of more than 12.5
acre-feet per year
(approx. 4,073,138
gallons per year) (water
permit)
• Irrigation - permit shall
not exceed 2 acre-feet of
water per year except
during periods of
sufficient water supply
when the amount may be
increased to 3 acre-feet
(water permit)
• Drainage of water from a
pond, slough, lake or
sheetwater or any series
Issue
Manitoba
Minnesota
•
•
South Dakota
operated on streams with
extreme seasonal flow
receive seasonal limits
Limited well/boring
contractors licenses are issued
Monitoring well contractors
are registered
North Dakota
18 gallons per minute
Construction, testing or
drilling purposes –
temporary permits
• Domestic use of water
that exceeds 25,920
gallons per day and peak
diversion exceeds 25
gallons per minute
After approval of a water
right permit, the permit owner
has 5 years to complete any
construction. The owner then
has an additional 4 years to
put the water to beneficial
use.
•
•
•
•
•
•
Permit/
License Fee
•
Fees exist for diversion
licenses, use licenses and
amount of water used for
industrial purposes
•
•
Processing fees are based on
quantity of water used
Fees for licenses are based on
the type of license issued
•
•
•
Permit Transfer
•
Licenses are appurtenant to
•
the land and upon sale of the
land the license expires unless
transfer is approved by the
•
Minister
Appropriation or use permit
may be transferred with the
land
Transfer of permit for
reservoir, dam or waterway
16
•
•
Fees are not collected from
state agencies or institutions
Fees are based on amount of
water used
Fees exist for inspection of
constructed water use works
•
•
Any sale or transfer of a
•
permit or license must be filed
with the chief engineer
Irrigation water is appurtenant
to the land except for
thereof that has a
watershed area of 80
acres or more (drain
permit)
Construction of an
impoundment capable of
retaining more than 12.5
acre-feet of water
(construction permit)
Construction of a well
using more than 12.5
acre-feet of water per
year (construction
permit)
Construction of a dam,
dyke, or other device,
which is capable of
retaining, obstructing or
diverting more than 12.5
acre-feet of water
(construction permit)
Discharge sewage,
industrial wastes or other
wastes into state waters
(pollution discharge
permit)
Application fees are based on
the volume requested on the
permit.
Fees exist for issuance and
renewals of permits, licenses
and approvals to discharge
sewage, industrial wastes or
other wastes into state waters
Any conditional or perfected
water permit may be
transferred to any parcel of
land owned or leased by the
holder of the permit if
Issue
Manitoba
Minnesota
South Dakota
obstruction on any public
water must be approved by
the commissioner
domestic or municipal
purposes
North Dakota
•
•
Priorities
•
Priorities of purpose are:
•
1. Domestic purpose – use
of water obtained from a
source other than a
•
municipal or community
water distribution system,
at a rate of not more than
25,000 litres per day, for
household and sanitary
purposes, for the
watering of lawns and
gardens and the watering
of livestock and poultry.
2. Municipal purpose – use
of water by a
municipality or
community for the
purpose of supplying a
municipal or community
water distribution system
for household and
sanitary purposed, for
industrial use or uses
related to industry, for
the watering of streets,
walks, paths, boulevards,
lawns and gardens, for
the protection of
property, for the flushing
of sewers, and for the
other purposes usually
served by a municipality
or community water
distribution system.
No priorities exist for riparian •
use except consumptive use
of public water
Allocation priorities are:
•
1. Domestic – excluding
industrial and
commercial use of
municipal water supply,
and power production
that meets contingency
planning provisions
2. Use of water that
involves consumption of
less than 10,000 gallons
of water per day
3. Agricultural irrigation,
and processing of
agricultural products
involving consumption of
less than 10,000 gallons
per day
4. Power production in
excess of the use
provided for in a
contingency plan
5. Uses, other than
agricultural irrigation,
processing of agricultural
products, and power
production involving
consumption in excess of
10,000 gallons per day
6. Non-essential uses
17
First in time(senior priority) is •
first in right, except for
individual domestic use
Domestic use of water takes
precedence over appropriative
rights
approved
Transfer of title to land shall
carry with it all the right to
the use of water for irrigation
of such land
A permit holder may change
the point of diversion or
purpose of use if approved
If there are competing
applications for use of the
same water and the source is
insufficient to meet all of
them, allocation priorities are:
1. Domestic use – use by an
individual, or by a family
unit, or household, for
personal needs and for
household purposes,
irrigation of land not
exceeding 1 acre in area
and for household pets
and domestic animals
kept for household
sustenance
2. Municipal use – use by
the state through its
political subdivisions,
institutions, facilities and
properties and the
inhabitants thereof or by
unincorporated
communities, subdivision
developments, rural water
systems, and other
entities, whether supplies
by the government or by
private owned public
utility or other agency or
entity, for primarily
domestic purposes
3. Livestock use – use for
drinking purposes by
Issue
Manitoba
3.
4.
5.
6.
•
South Dakota
Agricultural purpose –
use of water at a rate of
more than 25,000 litres
per day for the
production of primary
agricultural products, but
does not include the use
of water for irrigation
purposes.
Industrial purpose – use
of water obtained from a
source other than a
municipal or community
water distribution system,
for the operation of an
industrial plant producing
goods or services other
than primary agricultural
products, but does not
include the sale or barter
of water for those
purposes or the use of
water for recreational
purposes.
Irrigation purpose – use
of water at a rate of more
than 25,000 litres per day
for the artificial
application to soil to
supply moisture essential
to plant growth.
Other purposes
Drought
Drainage
Minnesota
All drainage requires a Water
Rights License
North Dakota
•
•
In times of drought all waters
of the state except surface
run-off are controlled by the
Department of Natural
Resources
•
Drainage authority carries out
works
Drainage of public waters
subject to replacing waters
•
18
•
Rehabilitation or construction •
of a drain within an area
where a drainage plan exists
requires approval by the
herds, flocks or bands of
animals kept for
commercial purposes
4. Irrigation use – use for
application to more than
one acre of land to
stimulate the growth of
agricultural crops
5. Industrial use – use for
the furtherance of a
commercial enterprise
6. Fish, wildlife, and other
outdoor recreational uses
– use for propagating and
sustaining fish and
wildlife resources and for
development and
maintenance of water
areas necessary for
outdoor recreation
activities
Priority in time shall give the
superior water right and is the
date of filing of an application
Drainage of ponds, sloughs,
lakes or sheetwater within a
watershed greater than 80acres requires a permit.
Issue
Manitoba
Minnesota
South Dakota
and water bank program
•
•
•
•
•
Wetlands
•
•
Dams
•
Wetland habitat, that is home
to an endangered species, is
protected
Activities on Crown land are
subject to licensing
•
Wetlands are protected
through a variety ways;
preserves, reservations, water
bank program, establishment
and restoration programs
Construction or maintenance
of dams requires a Water
Rights License
•
Private dams on non•
navigable waters requires the
owner pay compensation for
any damage that results
Dams may be constructed and
•
19
North Dakota
board or commission
•
Land owners may petition a
board for a drainage project
Permits are not required if
drainage is wholly on the
owners land and the water
enters a natural watercourse
One or more counties or
•
municipalities may join
together to form a drainage
basin utility district to
alleviate conditions that may,
because of flooding or other
surface drainage, result in
negative impacts
Drainage follows the “civil
rule” – owner of dominant
agricultural land with legal
easement may cast water over
servient estate through natural
watercourses
Interstate drainage districts
may be formed and are
considered a public
corporation under the law
Dams across a dry-draw
which impound less than 25
acre-feet of water, which is
used for agricultural purposes
does not require a permit –
Establishment, construction,
maintenance, repair,
improvement and cleaning out
of watercourses, ditches, and
drains for the drainage of
sloughs and other lowlands
maybe addressed through a
petition made to the board
All drains, except township
drains are under the charge of
the Water Resources District
Board
•
Under a Waterbank Program,
an agreement with
landowners for conservation
of wetlands may be entered
into by the commissioner of
agriculture. These
agreements exist for a period
of 5 to 10 years with
provisions for renewal for an
additional 5 to 10 years
•
Dams impounding over 12.5
acre feet require a permit
Issue
Manitoba
Minnesota
•
South Dakota
maintained by the state
Dams over 6 feet high or
holding back more than 50
acre feet require a permit
•
•
Groundwater
•
Flow from wells, except for
domestic use, requires a
Water Rights License
•
Commissioner of the
Department of Health issues
permits for groundwater use
and licenses well contractors
•
•
•
•
Pollution Control
•
•
•
•
Specifications, standards and
safety procedures for wells
and well drilling are
prescribed in regulations
Licensing processes, under
various legislation, address
the presence of contaminant
in the environment
Water quality standards have
been established
Reporting of a spill of
•
•
Minnesota Pollution Control
Agency has authority to
perform any and all acts
necessary and consistent with
the provisions of the Federal
Water Pollution Control Act
applicable to the participation
of the state in the National
Pollution Discharge
Elimination System
Designated waters of the state
20
•
•
•
•
North Dakota
provisions exist for filing of
location certificates
A dam across any nonnavigable stream that does not
change the course of water,
does not interfere with vested
rights and does not flood
lands not owned by the owner
of the dam does not require a
permit
Should excess capacity exist
it may have to be made
available to any person
entitled to use water for
beneficial purposes
Construction of wells is
•
specified by the board
Records of water use are
required
•
Uncontrolled artesian wells
are to be reported to the water
management board
•
Abandoned wells must be
sealed, plugged or capped
Water quality standards are
established and used to
classify water according to
beneficial uses
Effluent standards have been
established
Pre-treatment standards have
been established
Rules exist to address storage
tanks
•
•
•
Degradation protection
programs protect groundwater
resources
Artesian or flowing wells
require a valve or valves to
control discharge
Water well contractors and
installers of water well pumps
and pit-less units must be
bonded and certified through
the North Dakota Board of
Water Well Contractors.
Standards for construction
and installation exist.
State Department of Health
oversees issues regarding
water pollution. It operates
under the Federal Water
Pollution Control Act.
State Department of Health
responsible for the
classification of water, water
quality standards and effluent
standards
Rules exist regulating
Issue
Manitoba
dangerous materials is
regulated by law
Minnesota
•
•
•
•
Drinking Water
Standards
•
Drinking water standards
exist
•
Water Quality
Standards
•
Water quality standards exist
•
Effluent Standards
•
Effluent standards exist
•
South Dakota
are grouped into classes
Standards of quality and
purity have been established
for each classification
Standards for effluent of
disposal systems have been
established for classified
waters
Sanitary districts are
established to provide an
adequate and efficient system
and means of collecting,
conveying, pumping, treating
and disposing of domestic
sewage and garbage and
industrial wastes
Discharge of any material or
substance, which may cause
pollution of waters must be
reported
Drinking water standards
exist
Standards of quality and
purity have been established
for each classification
Minnesota Pollution Control
Agency has authority to
perform any and all acts
necessary and consistent with
the provisions of the Federal
Water Pollution Control Act
applicable to the participation
of the state in the National
21
North Dakota
•
•
chemigation through
irrigation systems
A degradation prevention
program protects ground
water resources by
establishing standards for
compounds in ground water.
Monitoring and restoration is
carried out.
North Dakota has established
water standards
•
Drinking water standards
exist
•
Drinking water standards
exist
•
Water quality standard are
established and used to
classify water according to
beneficial uses
•
State Department of Health is
responsible for water quality
standards
A degradation prevention
program protects ground
water resources by
establishing standards for
compounds in ground water.
Monitoring and restoration is
carried out.
Effluent standards have been
established
Pre-treatment standards have
been established
•
•
•
•
State Department of Health is
responsible for effluent
standards
Issue
Manitoba
Minnesota
•
Flood Control
•
•
•
•
•
•
•
The minister may construct or
operate, or construct and
operate, in any part of the
province, such water control
works as she/he may deem
necessary or expedient in the
public interest
Permit is required to build,
construct, erect or bring any
building structure or erection
other than a fence on or
within a designated flood area
The minister may order
evacuation of a diked area
The minister may order such
work as is required to
complete a designated diking
system protecting the diked
area or to increase the level of
the diking system
Municipalities have full
authority and control over
dykes in the municipality
subject to direction and
supervision of the
commissioner
Any building built in a
floodway fringe area must
meet floodproofing criteria
City of Winnipeg is vested
with full authority in respect
•
•
•
•
•
•
South Dakota
North Dakota
Pollution Discharge
Elimination System
Sanitary districts are
established to provide an
adequate and efficient system
and means of collecting,
conveying, pumping, treating
and disposing of domestic
sewage and garbage and
industrial wastes
Local government units must •
adopt floodplain management
ordinances and these must be
approved by the
commissioner of the DNR
Ordinances must include:
delineation of floodplains and
floodways, preservation of the
capacity of the floodplain to
carry and discharge regional
floods, minimization of flood
hazards and regulation of the
use of the land.
DNR commissioner shall
establish rules for determining
•
floodplain uses, variance
procedures, and establish
criteria for alternative or
supplemental floodplain
management measures
If emergency flood protection
measures are undertaken, a
plan outlining their use, must
•
be sent to the DNR
commissioner as part of a
future comprehensive flood
emergency program
Working agreements may be
entered into with South
Dakota-Minnesota Boundary
Waters Commission
The DNR commissioner is
22
Every municipality and
county has the power to
implement flood control
programs: to prevent or
control flooding within its
boundaries which endanger
property, to enter into
agreements to co-operate in
preventing or controlling such
flooding, to acquire and hold
in its name property and
easements and rights of way
for all purposes to prevent and
control such flooding, and to
appropriate moneys therefore.
No person may construct
facilities on any watercourse
to control floods for the
purpose of preventing or
alleviating damage without a
permit (applies only to
watercourses whose flow
exceeds that of a dry-draw)
A permit for flood control
works may be issued only if
the project will reduce the
damage from flooding or
erosion in the area proposed
to be benefited, will not
increase the likelihood or
severity of flood damages in
other areas, will not endanger
•
•
•
•
•
•
•
State Water Commission has
authority to construct and
operate flood control projects
Water Resource Districts are
responsible for management,
conservation, protection,
development and control of
water resources and for the
prevention of flood damages
Dikes, dams or other devices
for flood control regulation
which are capable of
retaining, obstructing or
diverting more than 12.5 acrefeet of water require a permit
Water Resource Districts
guide development of the
floodplains to reduce flood
damages through
management, stressing nonstructural measures such as
zoning and floodproofing,
acquisition and relocation and
flood warning practices.
Each community shall adopt
floodplain management
ordinances
Permissible uses in floodways
and floodplains are defined
Communities subject to
excessive flooding are to
Issue
Manitoba
Minnesota
of protection against floods
within the city
•
Irrigation
•
•
Use of water for irrigation, at
a rate of more than 25,000
litres per day, for artificial
application to soil to supply
moisture essential for plant
growth, requires a Water
Rights Act license
Use of water for irrigation is
fifth in the order of priority
•
•
•
South Dakota
responsible for adopting
model standards and criteria
for the subdivision, use and
development of shoreland
•
Municipalities having
shoreland must submit
ordinances or rules affecting
the use and development of its
shoreland to the DNR
commissioner for review
human life or property and
will not impair existing water
rights.
The chief engineer may
authorize temporary
emergency facilities
constructed for the immediate
protection of life or property
•
Use of all water required for
irrigation of lands of any
district, together with canals
and ditches already
constructed, the rights-ofways for canals and ditches,
sites for reservoirs and
pumping plants, and all other
property required is subject to
the regulation and control of
the state.
Any appropriator may be
required to construct and
maintain a substantial
headgate or other means of
measurement at the point of
diversion and shall construct
or install a measuring devise
Assessments levied are based
on benefits received
Water shall be for irrigation
and other farm purposes
Use of water to irrigate
agricultural land requires a
permit
Soil and Water Conservation
District provides
recommendations, to the
DNR commissioner,
regarding compatibility to a
comprehensive soil and water
conservation plan
Applications for groundwater
for agricultural irrigation are
designated class A or class B
•
•
•
23
North Dakota
participate in the National
Flood Insurance Program
•
•
•
•
•
An irrigation district may be
formed when the majority of
electors within an area
containing 80 acres or more
of land, susceptible of
irrigation, desire to provide
irrigation of such land
An irrigation district shall
provide for the proper
drainage of any and all lands
within its limits
Any appropriator may be
required to construct and
maintain a substantial
headgate or other means of
measurement at the point of
diversion and shall construct
or install a measuring device
Assessments levied are based
on benefits received
A corporation or limited
liability company may be
formed for the purpose of
acquiring water rights, or for
the purpose of establishing,
owning, leasing, operating
and maintaining an irrigation
system and selling,
distributing, supplying and
delivering water for irrigation
purposes or for domestic use
to its members or
Issue
Manitoba
Minnesota
South Dakota
North Dakota
•
24
stockholders
The amount of water allowed
for a permit to irrigate shall
not be in excess of 2 acre-feet
of water per acre per year
Comparison Summary
Review of additional issues related to water law identifies greater differences between state and
provincial legislation. South Dakota does not prioritize water use or specifically address
preservation of wetlands. Minnesota addresses drought conditions, drainage water replacement, and
a soil and water conservation plan for irrigation.
IV. CANADA FEDERAL - PROVINCIAL JURISDICTION
Under the Constitution Act of 1867, Provinces were given ownership of most of their water
resources, including surface, and groundwater. This Act provided the Provinces with the authority
to legislate all aspects of water supply, use, pollution control, hydroelectric, and non-nuclear power
development, irrigation, and recreation.
The Federal Government maintained responsibility for water on federal lands, reserves of
Canada’s Native peoples and water located on or across international boundaries. The Federal
Government legislates fisheries, protection of navigable waters, shipping, some specific aspects of
environmental protection, and international water management. The Canada Water Act of 1970
established the Department of Environment in 1971 and entrusted it with providing leadership for
freshwater management.
Shared Federal-Provincial responsibilities include: inter-provincial water issues, agriculture,
significant national water issues, and health.
Canada Federal Legislation
Navigable Waters Protection Act
The Navigable Waters Protection Act, under the Minister of Transport, ensures that navigable
waters remain open to navigation. The Act requires that any works built or placed in, on, over,
under, through, or across any navigable water, and substantially interferes with navigation be
approved by the Minister. Any vessel that obstructs or endangers navigable water must be reported
to the Minister or to the chief officer of Customs and Excise. The Act prohibits the deposition of
wood products, earth materials, or rubbish into the waters. Regulations to govern ferry cable,
swing, and draw bridges are also regulated under this Act.
International River Improvements Act
Administered under the Ministry of Environment, the International River Improvements Act
pertains to dams, canals or any other works, with the purpose or effect of increasing, decreasing or
altering the natural flow of an international river, or interfering with, altering, or affecting the actual
or potential use of the international river outside Canada. The construction, operation or
maintenance of an international river improvement requires licensing and is subject to the same
laws of the legislature of the province in which it is situated. This Act does not apply to
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international river improvements situated within boundary waters, or constructed, operated, or
maintained solely for domestic, sanitary, or irrigation purposes or similar consumptive purposes.
International Boundary Commission Act
The International Boundary Commission Act enables the International Boundary Commission
to maintain the demarcation of the boundary line between Canada and the United States. The
Commission is empowered to control any works located within ten feet of the boundary line.
Prairie Farm Rehabilitation Act
Rehabilitation of drought and soil drifting areas is provided for in the Prairie Farm
Rehabilitation Act, administered by Agriculture Canada. Prairie Farm Rehabilitation Committees
advise the Minister of the best methods to develop and promote water supply systems that will
afford the greatest economic security. The Act also empowers the Minister to undertake the
development, operation and maintenance of any project, and enter into agreements with any
province, municipality, or person.
International Boundary Waters Treaty Act
. Administered by the Department of Foreign Affairs, the International Boundary Waters
Treaty Act defines the jurisdiction under which the International Joint Commission, established
under the Canada-United States Boundary Waters Treaty of January 11, 1909, carries out its
mandate to make recommendations regarding use, obstruction, and diversion of boundary waters.
The laws of Canada and the Provinces were to be amended to permit the obligations of the treaty to
be undertaken. Any interference with or diversion of boundary waters by Canada, which negatively
impact the United States, would be legally remedied as if the impacts occurred in that part of
Canada.
Fisheries Act
Department of Fisheries and Oceans is responsible for administration of the Fisheries Act, which
prevents obstructions across streams and provides for the regulation of fishing, management of fish
stocks, fish habitat protection, and pollution prevention measures. Ministerial approval is required
for any work or undertaking that results in the harmful alteration, disruption and destruction of fish
habitat.
Canada Wildlife Act
Being an act of the Ministry of Environment, the Canadian Wildlife Act applies to a species
that is wild by nature and the habitat of any such animal, plant or other organism. Habitat includes
any water on, or flowing through land belonging to Canada. The Minister may designate an area as
a wildlife area. Within a wildlife area, no person shall damage, destroy, remove any plant, or
destroy or molest animals, nests, or eggs thereof, without a permit issued by the Minister. Manitoba
has two designated wildlife areas, Pope National Wildlife Area in the R.M. of Hamiota and
Rockwood National Wildlife Area in the R. M. of Rockwood.
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Canadian Environmental Assessment Act
The purpose of the Canadian Environmental Assessment Act is to ensure environmental effects
of a project are considered, promote sustainable development, eliminate duplication of project
assessment, and provide an opportunity for public participation. Any project where a federal
authority is the proponent, makes or authorizes financial assistance, or sells, leases or disposes of
federal lands to a province for a project is required to undergo an environmental assessment.
Projects may be either a physical work or physical activity. Regulations stipulate what projects are
required to apply for a permit or license under the Act. The Act also establishes the Canadian
Environmental Assessment Agency who advises the Minister of Environment and administers the
environmental assessment process.
Migratory Birds Convention Act
The Migratory Birds Convention Act implements a Convention to protect migratory birds and
nests in Canada and the United States. A permit, issued by the Minster of Environment, is required
to carry on any activity that may harm migratory birds, eggs, nests or habitat in a migratory bird
sanctuary. There are no designated migratory bird sanctuaries in Manitoba, however, under the
Act no person shall deposit or permit to be deposited oil, oil wastes or any other substance harmful
to migratory birds in any waters or any area frequented by migratory birds.
Canada Water Act
The Canada Water Act provides the basis for federal-provincial co-operation in water resource
management, water quality management, and conservation. It includes the authority to conduct
research, make inventories, develop comprehensive management plans, and establish special waterquality management areas to address concerns pertaining to waste. Formulation of policies and
programs are carried out through intergovernmental committees. Ministry of Environment
administers the Act.
Canada Shipping Act
Under the jurisdiction of Transport Canada, the Canada Shipping Act provides authority
relating to shipping and navigation in Canadian waters and waters in the exclusive economic zone
of Canada. It also provides for prevention of pollution by oil and other pollutants resulting from
marine activities.
Dominion Water Power Act
Administered by the Ministry of Indian and Northern Affairs, the Dominion Water Power Act
provides authority for establishing and managing water power installations on federal lands. The
Act applies to all public lands required and acquired in connection with the development or working
of water powers and to the power and energy produced.
Indian Act
Administered by the Minister of Indian and Northern Affairs, the Indian Act addresses matters
relating to Indian affairs and reserve land. Any non-band member who wishes to occupy or use a
reserve to otherwise exercise rights on a reserve requires a permit from the Minister. Regulations
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may be made by the Governor-in-Council and by-laws may be made by the Council of a band
regarding the preservation, protection, and management of fur bearing animals, fish and other game
on the reserve.
Canada Federal / Provincial Agreement
Canada-Manitoba Agreement for Environmental Assessment Harmonization
Signed in 1994, this Agreement is based on a framework for Environmental Assessment
Harmonization adopted by the Canadian Council of Ministers of the Environment. Through early
notification of projects and integrated information requirements duplication of processes is
prevented. Any project in Manitoba may be reviewed by either party whether or not they have an
interest in the project as defined by the Agreement. Neither Canada nor Manitoba gives up any
jurisdiction, right, power, privilege, prerogative, or immunity.
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Manitoba Provincial Legislation
The Water Resources Administration Act
The Water Resources Administration Act establishes the Lieutenant Governor in Council’s
authority to designate any water control work, natural water channel, or lake as a provincial
waterway. The Minister is authorized to manage and administer all those matters that relate to the
construction or operation of water control works and matters dealt with under The Diking Authority
Act, The Ground Water and Water Well Act, The Water Power Act, and The Water Rights Act.
This Act also sets out prohibitions of use within designated flood areas. Within designated flood
areas, the Act requires a permit to be issued authorizing the occupation and construction of
buildings; the permit can contain terms and conditions consistent with existing and the new
proposed “Designated Flood Area Regulation”.
The Water Rights Act
All property in and all rights to the use or diversion of all surface and ground water is vested
in the Crown and in the right of Manitoba. The use or diversion of water, and the construction,
establishment, or maintenance of works requires a licence issued under The Water Rights Act.
Water is allocated on a “first in time, first in right” principle. Priorities of purpose have been
established to address situations with identical submission dates. The highest priority is domestic
use followed by municipal, agricultural, industrial, irrigation, and other purposes. Diversions
include drainage of agricultural land and flood control works. The Act also provides for a
reservation to be placed on unlicensed water and for agreements or arrangements to be entered into
regarding inter-provincial boundary waters.
The Water Power Act
Jurisdiction over water power and any lands required for its creation, development or
protection is addressed in the Water Power Act. Ministerial approval is required to divert, use or
store water for power purposes, and for activities that impact water within a water power reserve.
The Ground Water and Water Well Act
All persons engaged in the business of drilling water wells are to be licensed under The Ground
Water and Water Well Act. The Act provides the legal right to limit flow from wells to protect the
aquifer. Specifications, standards, and safety procedures for wells and well drilling are prescribed
in the regulation.
The Diking Authority Act
The Diking Authority Act gives the City of Winnipeg authority and control over dykes and
pumping stations constructed for the protection of property during periods of flood in the Red
River, Assiniboine River, or Seine River. Supervision of administration of the Act is provided by
The Diking Commissioner who is a member of The Water Resources Branch.
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The Water Commission Act
The Water Commission Act establishes a five-member commission to study projects, problems,
and schemes referred by the Minister. The commission prepares a report and makes
recommendations designed to secure the maximum benefits from the use, allocation, and
conservation of water. In 1997, the Manitoba Water Commission conducted an independent review
of actions taken during the 1997 Red River flood for the Minister of Natural Resources.
The Water Supply Commission Act
Establishment of a water commission area, known as a water district, and a water commission
for each district is provided for in The Water Supply Commission Act. The Commission is
responsible for preparing schemes for supplying the water commission area with an adequate and
reliable permanent supply of water relative to the control and use of the water resources available.
Currently there is the Souris River Water Commission and the Lower Red River Valley Water
Commission. Both commissions act in an advisory capacity only.
The Endangered Species Act
The Endangered Species Act ensures the protection, and enhances the survival of endangered
and threatened species and their habitat. The Act prevents the destruction, disturbance, or
interference of their habitat and the damage, disturbance, obstruction, or removal of a natural
resource on which an endangered or threatened species is dependent on for its life and propagation.
The Wildlife Act
The Wildlife Act authorizes the Province of Manitoba to designate special areas for the better
management, conservation and enhancement of the wildlife resource; simulate what constitutes an
offence; and determine licensing, permit, and enforcement provisions. Authorization is required,
in the form of a license or permit, to destroy or damage habitat on Crown lands or to wilfully
destroy the nest or eggs or any game bird or bird listed in the schedule.
The Manitoba Habitat Heritage Act
The Manitoba Habitat Heritage Act provides for the establishment of the Manitoba Habitat
Heritage Corporation. The Corporation is responsible for conservation, restoration, and
enhancement of fish and wildlife habitat and populations on Crown land and private land by
agreement with the owner.
The Crown Lands Act
Crown lands are managed and administered under The Crown Lands Act. The Act provides for
the sale, lease, permitting, licensing, enforcement, and reservations for specific departmental and
government programs. Out of every disposition of Crown land where the land extends to the shores
of any navigable water, an inlet thereof or to the boundary line between Canada and the United
States, a strip of land 1 1/2 chains in width’ measured from ordinary high water mark or from the
boundary line is reserved for the Crown. Agricultural disposition of Crown lands is administered
by The Department of Agriculture.
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The Provincial Parks Act
The Provincial Parks Act provides the authority to establish lands as provincial parks. In
accordance with parks classifications and land use categories, the purpose may be to conserve
ecosystems and maintain biodiversity. Regulations have been developed regarding the protection
and use of water, interference with drainage patterns, and pollution of water.
The Sustainable Development Act
Sustainable development will be implemented in the provincial public sector and promoted in
the private industry and in society through the framework created in The Sustainable Development
Act. The government will address sustainable development through development of new legislation,
revision of existing legislation, and development or reporting requirements for departments, Crown
agencies and provincial public sector organizations. The Act provides for the: Manitoba Round
Table for Sustainable Development, Sustainable Development Co-ordination Unit, Sustainable
Development Strategy, Code of Practice and Sustainable Development Innovation Fund.
The Environment Act
The intent of The Environment Act is to provide for environmental assessment of projects
likely to have significant effects on the environment; development and implementation of standards
and objectives for environmental quality; and development of environmental management strategies
and policies for the protection, maintenance, enhancement, and restoration of environmental quality.
There are three classes of environmental assessments, based on the size of the project, each with
their own set of licensing criteria.
The Dangerous Goods Handling and Transportation Act
The Dangerous Goods Handling and Transportation Act establishes controls over all aspects of
dangerous goods affecting the environment and/or public health with an emphasis on standards for
handling, disposal of hazardous wastes, environmental accident response, and highway
transportation.
The Manitoba Water Services Board Act
The Manitoba Water Services Board Act provides for the establishment of the Manitoba Water
Services Board. The Board’s objective is to provide for the development and maintenance of water
and sewage treatment facilities and related infrastructure in agricultural and rural areas. Services are
delivered through municipalities or water districts.
The Conservation Districts Act
The purpose of The Conservation Districts Act is to provide for the conservation, control and
prudent use of resources through the establishment of conservation districts and to protect the
correlative rights of owners. A municipality or group of municipalities may form a Conservation
District. A municipality or group of municipalities may form a Conservation District. Each
management plan developed by the Conservation District Board must comply with The Water
Rights Act, The Land Rehabilitation Act, and The Planning Act. Programs may address soil
conservation, water management and storage, and land drainage.
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The Municipal Act
The Municipal Act provides for the formation of a municipality, it’s council and the
jurisdiction under which it governs. With respect to water, a municipality may pass by-laws
regarding drains and drainage on private or public property.
The Planning Act
The Planning Act provides for the development of Provincial Land Use Policies, establishment
of special planning areas and planning districts; and provides for the development of basic planning
statements, development plans and zoning by-laws. Special planning areas are designated for the
protection and conservation of natural resources such as lakes, rivers, and shore lands.
The City of Winnipeg Act
The City of Winnipeg Act stipulates the power and authority under which the City of Winnipeg
is governed. With regards to water related issues, the city has full authority concerning protection
against floods, construction, and maintenance of drains and watercourses and pollution thereof.
The Department of Agriculture Act
The Department of Agriculture Act allows the Department of Agriculture to institute and carry
out programs, projects, and undertaking relating to any aspect of agriculture or of rural
communities. The Departments of Agriculture and Natural Resources co-operate in matters of land
drainage, irrigation, and rural water supplies.
The Highways and Transportation Department Act
The Highways and Transportation Department Act allows the Department of Highways and
Transportation, with consent of the Minister of Agriculture, to construct, maintain, and acquire land
for the purpose of draining water from departmental roads.
The Public Health Act
The Public Health Act provides for the development of regulations and orders regarding sewer
treatment systems, construction, maintenance, and purification of water systems and supplies; and
prevention of pollution of wells, underground waters and springs.
The Heritage Resources Act
The Heritage Resources Act allows sites with heritage significance to be designated as
provincial or municipal heritage sites. The Act also provides protection of these sites by allowing
heritage or municipal heritage permits to be issued. Before commencing proposed works, activity,
or development on heritage sites, a heritage permit must be obtained. The proponent may be
required to submit a heritage resource impact assessment and/or development plan.
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V. UNITED STATES
United States Federal Legislation
Clean Water Act
This Act is the principle law governing pollution control and water quality of U.S. waterways.
The object is to restore and maintain chemical, physical, and biological integrity. The Clean
Water Act provides standards and enforcement, a number of regulatory programs with permits and
licenses, grants and revolving funds, as well as general provisions and provisions for research and
related programs.
Section 402 of this Act created the National Pollution Discharge Elimination System (NPDES)
which requires permits for discharge of wastes into water of the United States from industrial and
sewage treatment facilities or similar facilities.
Section 404 (permits for Dredged or Fill Material), applies when a government agency,
landowner, or developer intends to place dredged or fill material such as dirt, soil, rock, trees,
cement, or other such materials into a lake, stream, river, or wetland. This section is administered
by the Secretary of the Army.
Endangered Species Act
The Endangered Species Act intends to programmatically conserve endangered and threatened
species and the ecosystems they inhabit. This Act requires all federal departments and agencies, in
consultation with the Secretary of the Interior/Commerce, to ensure that any actions authorized,
funded or carried out by them do not jeopardise endangered or threatened species, or result in the
destruction or adverse modification of the habitats of such species, unless an exception has been
granted by the Endangered Species Committee.
Federal Water Project Recreation Act
The Act establishes the policy that consideration be given to the opportunities for outdoor
recreation and fish and wildlife enhancement in the investigating and planning of any Federal
navigation, flood control, reclamation, hydroelectric or multi-purpose resource project, whenever
any such project can reasonably serve either or both purposes consistently.
National Environmental Policy Act
The National Environmental Policy Act (NEPA), is the basic national charter for protection of
the environment. The Act authorized and directed "that, to the fullest extent possible, the policies,
regulations and public laws of the United States shall be interpreted and administered in accordance
with the policies of the Act". Every recommendation or report on proposals for legislation and
other major federal actions include a statement on environmental impacts of the proposed actions;
any adverse environmental effects that can not be avoided; alternatives to the proposed action; etc.
NEPA also establishes the Council on Environmental Quality of which the primary functions in
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relation to water resources is the preparation of regulations concerning the development of
environmental impact statements developed by the Corps and other agencies.
Safe Drinking Water Act
This Act protects the US’s drinking water sources. Drinking water is protected through
drinking water standards, identifying critical aquifer protection areas, and development of wellhead
area protection programs. Activities that may impact underground drinking water supplies must be
reviewed, approved, and permitted by the state agency designated to administer drinking water
quality standards.
Fish and Wildlife Co-ordination Act
This Act specifies that fish and wildlife conservation shall receive equal consideration with
other project purposes. A federal agency is required to consult with the Service and State fish and
wildlife agency concerning the effects on fish and wildlife resources of a federal water resource
development project or non-federal water development requiring a permit or license.
National Wild and Scenic Rivers Act
This Act requires that in all planning for the use and development of water and related land
resources, consideration be given by all Federal agencies involved to potential national wild, scenic,
and recreational river areas. The National Park Service has compiled and maintains a Nation-wide
Rivers Inventory, a register of river segments that potentially qualify as national wild, scenic, or
recreational river areas.
Rivers and Harbours Act
The Rivers and Harbours Act prohibits the unauthorized obstruction or alteration of navigable
waters by fill or construction of outfalls, piers, levees, etc., or work such as dredging without a
permit from the Corps of Engineers.
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Minnesota Legislation
Minnesota water law is addressed in Chapters 103A - 103I, 110A and 115 of the Minnesota
Statutes.
Minnesota Statutes
Chapter 103A – Water Policy and Information
This chapter allows the state of Minnesota to adopt policies in several areas including
regulatory, wetlands, hydropower, groundwater, conservation for rainwater, soil, and water
conservation, floodplain management, scenic river protection, marginal, and erodible land
retirement policy and water law policy.
This chapter establishes a state wide information system, administered and maintained by the
Commissioner of the Department of Natural Resources.
Chapter 103B – Water Planning and Project Implementation
Water planning is carried out at various levels of government. The Board of Water Resources
co-ordinates the water and soil resources planning activities of the counties, the soil and water
conservation districts, watershed management organizations, and any other local unit of
government. It does this though the various authorities responsible for approving local plans and
the administration of state grants or by whatever other means may be appropriate. The Board also:
• facilitates communication and co-ordination among state agencies
• develops information and education programs
• provides a forum for the discussion of local issues and opportunities
The Environmental Quality Board is responsible for the co-ordination of water resource
planning and represents the governor on interstate water resource organizations. The Commissioner
of the Department of Natural Resources prepares a state-wide framework and assessment water and
related land resources plan in co-operation with other state and federal agencies, regional
development commissions, the metropolitan council, local government units, and citizens.
The Metropolitan Water Management program provides for the authority, responsibility, and
rules governing metropolitan watershed management organizations. A watershed management plan
is required for watersheds located wholly or partly within the metropolitan area. After a watershed
plan is approved and adopted, or amended, the local government units prepare a local water
management plan. Each county is encouraged to develop and implement a comprehensive water
plan.
Public values of wetlands are addressed within this chapter, as is the South Dakota-Minnesota
Boundary Water Commission.
35
Chapter 103C – Soil and Water Conservation Districts
This chapter provides for the establishment of soil and water conservation districts, outlines
their powers and function, and provides guidance for their operation.
It is a policy of the state to encourage land occupiers to conserve soil and water resources through
the implementation of practices that effectively reduce or prevent erosion, sedimentation, siltation,
and agriculturally related pollution in order to preserve natural resources, ensure continued soil
productivity, control floods, prevent impairment of dams, and reservoirs, assist in maintaining the
navigability of rivers and harbours, preserve wildlife, and protect public lands.
Chapter 103D – Watershed Districts
This chapter provides for the establishment of watershed districts, outlines their powers and
functions, and provides guidance for their operation. Watershed districts are established to conserve
the natural resources of the state by land use planning, flood control, and other conservation projects
by using sound scientific principles for the protection of public health and welfare and the provident
use of natural resources. Watershed districts are required to adopt a watershed management plan.
The rights of private or corporate landowners to use the waters of the watershed district for any
purpose continue as the rights existed at the time of the organization of the watershed district.
Chapter 103E – Drainage
Often referred to as the Minnesota Drainage Law, this chapter provides the legal authority for
drainage; outlines procedures required for constructing, repairing, or improving drainage ditches,
and provides for the legal mechanisms to determine benefits and determine who is responsible for
costs incurred. Powers and permission requirements of the drainage authority are stated. If a water
body or watercourse is determined to be public waters, the drainage proceedings are subject to rules
relating to replacing public waters and the water bank program. Petitions are required for
establishment of new drainage system projects and impounding and diversion of drainage system
waters.
Chapter 103F – Protection of Water Resources
Floodplain management policy, shoreline development guidelines, scenic river protection
policy, soil conservation practices, the County Lake Improvement Program/the Water Bank
Program, and Clean Water Partnership laws are addressed within this chapter.
Shoreland development is regulated to preserve and enhance surface water quality, preserve
natural environmental values, and provide for the wise use of water and water-related land
resources. Certain rivers that possess outstanding scenic, recreational, historical, scientific, and
similar values are protected under the Scenic River Protection Policy.
The Reinvest in Minnesota Resources Law (RIM), encourages retirement of marginal, highly
erodible land, particularly land adjacent to public waters, drainage systems, wetlands, and locally
designated priority waters, from crop production and reestablishment of a perennial vegetation
cover is encouraged. Retirement of marginal land is accomplished through the following programs:
conservation reserve; permanent wetlands reserve; preservation of marginal land and wetlands;
water bank; wetland preservation areas.
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The Clean Water Partnership law is designed to protect and improve surface and ground
water, through financial and technical assistance to local units of government to control water
pollution associated with land use and land management activities.
The County Lake Improvement Program establishes a lake improvement program to preserve
and protect lakes and to increase and enhance the enjoyment of lakes.
Chapter 103G – Waters of the State
This chapter deals with water conservation, water allocation priorities, water supply, drainage,
and wetlands issues.
The Commissioner of Natural Resources is responsible for developing a water resource
conservation program which includes conservation, allocation, and development of waters and
preparing public waters inventory maps showing designated public waters for each county. A
permit authorizing drainage of public waters and wetlands may not be issued unless the areas to be
drained are replaced by areas that will have equal, or greater, public value. Replacement of
wetlands, wetland values replacement plans, and local comprehensive wetland protection and
management plans are addressed in detail.
The allocation of waters for consumptive use and appropriation are priorized as follows:
1.
2.
3.
4.
5.
6.
domestic water supply and power production to meet contingency planning provisions does not include industrial or commercial use of municipal water supplies
water use that involves the consumption of less than 10,000 gallons of water per day
agricultural irrigation and processing of agricultural products that involve water
consumption in excess of 10,000 gallons per day
power production in excess of the use provided for in a contingency plan
uses involving the water consumption in excess of 10,000 gallons per day - does not
include agricultural irrigation, processing of agricultural products and power production
non-essential uses
Appropriation and use of water, irrigation of agricultural land, construction of private dams on
non-navigable waters, dam construction, and maintenance by state, hydropower generation, and a
stream maintenance program are addressed in detail.
Chapter 103H – Groundwater Protection
It is the goal of the state that groundwater be maintained in its natural condition, free from any
degradation caused by human activities.
This chapter also deals with the determination, identification and protection of areas sensitive
to groundwater contamination as well as monitoring requirements and the determination of health
risk limits.
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Chapter 103I – Wells, Borings and Underground Uses
This chapter provides a means for the development and protection of groundwater in an
orderly, healthful and reasonable manner. Issues addressed include:
• powers and duties of the Commissioner of Health
• authority over wells and borings
• well construction
• licensing and regulation of wells and borings
• well contractor's licenses
• monitoring of well contractors
Chapter 110A – Rural Water User Districts
The establishment, organization, powers and operation, of rural water user districts is detailed
within this chapter.
Chapter 115 – Water Pollution Control and Sanitary Districts
This chapter defines the powers and duties of the Minnesota Water Pollution Control Agency,
addresses the creation of sanitary districts, establishes the classification of surface water, and
addresses water quality and purity standards.
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North Dakota Legislation
North Dakota law is contained in, the Century Code and the Administrative Code. The Century
Code is the codification of all general and permanent law enacted since statehood. Each area of law
is combined into a division called a Title and within each Title are subdivisions called Chapters.
Chapters are further categorized into Sections.
Water is addressed in Title 61-Waters, Title 4-Agriculture, Title 23-Health and Safety, and
Title 43-Occupations and Professions.
The Administrative Code is classified in a similar manner and contains rules pertaining to and
implementing the Century Code.
A state does not possess exclusive control over waters appearing within its borders. The
federal government regulates certain aspects of control over navigable water within the United
States.
Century Code: Title 61- Waters
Chapter 61-01 – General Provisions
This chapter defines the State’s water jurisdiction, water rights that existed prior to 1905, water
resource policy and penalties. All waters within the State including surface and ground water
(excluding diffused surface waters, surface waters, residual waters resulting from beneficial use, all
waters in non-contributing drainage areas) may be appropriated for beneficial use. The right to the
use of these waters must be acquired.
Chapter 61-02 – Water Commission
The State Water Commission is responsible for designing and implementing a comprehensive
state-wide water development plan and for approving all water projects. The Commission has the
authority to:
• investigate, plan, regulate, undertake, construct, establish, maintain, control, operate and
supervise all private and public works, dams, and projects
• establish rules
• exercise full power and control of the construction, operation, and maintenance of water
works and the collection of rates, charges, and revenues realized therefrom
• sell, lease and otherwise distribute all waters which may be developed, impounded, and
diverted by the commission for the purpose of irrigation, development of power, watering
of livestock and other private or public use
• acquire, own and develop lands for irrigation and water conservation
• acquire, own and develop dam sites and reservoir sites
• acquire easements and rights-of-way for diversion and distribution systems
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Chapter 61-04 – Appropriation of Water
This Chapter contains the procedures for obtaining a water permit from the State Engineer's
Office. A permit is required to appropriate water unless such construction or taking from such
constructed works is for domestic, livestock, fish, wildlife, and recreational uses of less than twelve
and one-half acre feet of water.
When there are competing applications for water from the same source, and the source is
insufficient to supply all applicants, the order of priority of use is domestic, municipal, livestock,
irrigation, industrial, fish, wildlife and other outdoor recreational uses. Priority of a water right
dates from the filing of a complete application.
Chapters 61-05 to 61-14 – Irrigation Districts
Irrigation districts may be formed through a petition process. Details are provided regarding
government powers and duties, fiscal affairs, assessments, boundaries, and dissolution of irrigation
districts. Provisions for the establishment of flood irrigation projects, which entails construction of
dams, gates, and necessary ditches and canals for the purpose of controlling, regulation, and forcing
the overflow of water in non-navigable rivers or streams is provided. The organization of
corporations for irrigation projects is also addressed.
Chapter 61-15 – Water Conservation
The state has control of navigable lakes, which have been meandered and their metes and
bounds established, for the purpose of constructing, maintaining and operating dams, dikes, ditches,
fills, spillways, or other structures. State control is intended to promote the conservation,
development, storage, distribution, and utilization of navigable lakes and the propagation and
preservation of wildlife.
Chapter 61-16 and 61-16.1 – Water Resource Districts
This Chapter provides for the establishment of Water Resource Districts governed by a Board
of Water Resource Managers appointed by the County Commissioners. The Boards are responsible
for managing, conserving, protecting, developing, and controlling water resources and preventing
flood damages in watersheds in their Districts. Power, responsibilities, and duties of the Water
Resources District watershed are defined.
Creation of assessments district for the construction, maintenance, repair, improvement, or
extension of watercourses, ditches, and drains requires petitions to be filed with the water resources
districts.
Chapter 61-16.2 – Floodplain Management
Floodplain management is defined by this chapter as floodplain zoning, and floodproofing,
acquisition and relocation, and flood warning practices. The State Engineer is responsible for
assisting communities in floodplain management activities and co-ordinating Federal, State, and
local activities in the State.
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Chapter 61-20 – Artesian Wells
This chapter requires the flow from artesian and flowing wells be controlled by a valve. Rules
exist for the drilling of such wells.
Chapter 61-21 – Drainage Projects
Petitions may be made to water resource districts to establish Assessment Districts for the
purpose of constructing, maintaining, repairing, improving, and cleaning of watercourses, ditches,
and drains for the drainage of sloughs and other lowlands. All drains, except township drains, are
under the charge of the Water Resource Districts.
Chapter 61-28 – Control, Prevention & Abatement of Pollution of Surface Waters
The State Department of Health is responsible for developing comprehensive programs for the
prevention and control of new or existing pollution of waters of the state.
Chapter 61-30 – Lake Protection and Rehabilitation
This chapter requires the State Department of Health to adopt rules for determining the
eligibility and priorization of lakes for protection and rehabilitation projects. Eligibility and priority
are based upon the severity of the problem, the impact on area recreation and fisheries, the likely
effectiveness of the plan, and the ability of the applicant unit of government to implement the plan.
Chapter 61-31 – Waterbank Program
The Commissioner of Agriculture may enter into agreement with landowners for the
conservation of wetlands. These agreements exist for a period of five to ten years with renewed
provisions of an additional five to ten years. Duties of the landowner and commissioner are
defined.
Chapter 61-32 – Wetlands
Draining of a pond, slough, lake or sheetwater, which has a watershed area comprising 80 acres
or more, requires a permit from the Water Resource District. However, the State Engineer may
request the application be returned to the State Engineer for final approval.
Chapter 61-33 – Sovereign Land Management
Sovereign lands are defined as those areas lying within the ordinary high water mark of
negotiable lakes and streams. The State Engineer and the Board of University and School Lands
administer all sovereign lands of the state. Both are advised on general policies and specific
projects by as Sovereign Lands Advisory Board.
Chapter 61-35 – Water Districts
A petition may be filed requesting that the State Engineer organize a district encompassing an
area in one county or in two or more adjacent counties, for the purpose of providing an adequate
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supply of water for the residents of the area. Powers and responsibilities of the district board are
noted in detail.
Century Code – Title 4 - Agriculture
Chapter 4-35.1 – Chemigation Regulation
This chapter regulates chemigation through irrigation systems to minimize the possibility of
chemical, pesticide, fertilizer, or other contamination of water supplies.
Century Code – Title 23 - Health and Safety
Chapter 23-33 – Ground Water Protection
This chapter establishes a degradation prevention program for the purpose of protecting ground
water resources, encouraging the wise use of agricultural chemicals, providing public education
regarding preservation of ground water resources, and providing for safe disposal of wastes in a
manner that will not endanger ground water resources.
Century Code – Title 43 – Occupations and Professions
Chapter 43-35 – State Board of Water Well Contractors
The State Board of Water Well Contractors is responsible for: certifying installers of wells, water
well pumps and pit-less unit installation; developing standards for well drilling, and installation of
water well pumps and pit-less units; and developing standards for monitoring.
Administrative Code
Chapter 89-02-01 – Drainage of Ponds, Sloughs, or Lakes, or Any Series Thereof, and of
Meandered Lakes
Chapter 89-02-04 – Drainage Complaint Appeals
Chapter 89-03-01 – Water Permits
Chapter 89-03-02 – Modification of a Water Permit
Chapter 89-03-03 – Definitions (Water Appropriation)
Chapter 89-08-01 – Definitions (Statues)
Chapter 89-08-02 – Construction Permits
Chapter 89-08-03 - Inspections
Chapter 89-08-04 – Operating Plan
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South Dakota Legislation
South Dakota water law is contained in two documents, Codified Laws and Administrative
Rules. Each area of law is combined into a division called a Title; within each Title are subdivisions
called Chapters. Chapters are further categorized into Sections.
Water is addressed under the Codified Laws in Title 34A – Environmental Protection, Title 46
– Water Rights, and Title 46A – Water Management.
Within the Administrative Rules, water is addressed in Title 74, Chapter 2.
Codified Law - Title 34A - Environmental Protection
Chapter 34 A-2 – Water Pollution Control
This chapter was established to prevent the discharge of waste into any waters without
treatment or other corrective action, and to provide for the prevention, abatement, and control of
new and existing water pollution. A Water Management Board is responsible for establishing
policy and rules to accomplish this.
Construction permits are required for activities discharging wastes into groundwater or surface
water. These permits are issued for a period up to 5 years. Permits are not issued for discharge of
toxic or dangerous substances.
This chapter also addresses waste treatment management areas and agencies, storage-tanks, and
a groundwater quality classification system.
Chapter 34A-3A – Safe Drinking Water
This chapter ensures that public water systems meet or exceed a minimum standard for
drinking water quality. The Water Management Board is responsible for establishing safe drinking
water standards and procedures to ensure compliance. Public water systems are required to meet
the Safe Drinking Water Act criteria.
Codified Law - Title 46 – Water Rights
Chapter 46-1 – Definitions and General Provisions
The right to use water may be acquired by appropriation as provided by law. Domestic use is
the highest use and takes precedence over appropriative rights.
Chapter 46-2A – Administrative Procedure for Appropriation of Water
Subjects include: permit to appropriate water, amendment of an existing permit or license,
reservation or future use, permit for flood control, well driller licenses, reinstatement of a permit,
and a vested right claim.
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Chapter 46-4 – Dry-Draw and Non-navigable Stream Dams
Construction of a dam across a dry-draw, which will impound more than 25-acre feet of water,
requires a permit. Any water right or permit for a dam on a stream or dry-draw is subject to the
doctrine of prior appropriation. A dam may be constructed on any non-navigable stream provided
the course of water is not changed, vested rights are not interfered with, and no land is flooded other
than that belonging to the owner.
Chapter 46-5 – Appropriation of Water
Conditions under which the flow of water may not be altered are defined. Permits for domestic
use are not required. A permit is required for: irrigation (a set limited has been established), water
distribution systems diverting more than 18 gallons per minute, actual use of reserved water,
facilities to control floods, and drip irrigation systems that are for commercial use and exceed 18
gallons per minute. Applications for appropriations of water in excess of 10,000 acre-feet annually
shall be presented by the Water Management Board to the Legislature for approval.
Chapter 46-6 – Groundwater and Wells
This chapter addresses licensing of well drillers, construction and specifications of wells,
keeping of records, etc. It also addresses uncontrolled artesian wells.
Chapter 46-7 – Storage, Diversion and Irrigation Works
This chapter addresses headgates or other measuring devises; repair; inspection; investigation
of storage, diversion, and irrigation works.
Chapter 46-8 – Eminent Domain
The rights, limitations, and laws regarding use of water under eminent domain are detailed.
Chapter 46-10A – Water Use Control Area
Water Use Control Areas may be established when a petition is set forth by either the chief
engineer or water rights holders and approval is given by the Water Management Board. These
areas are usually established when there is a need to equitably apportion the available water supplies
for use among water right holders.
Codified Law - Title 46A – Water Management
Chapter 46A-1 – State Water Resources Management
This chapter provides a means for the planning, funding, and development of a state water plan.
The plan is comprised of the State Water Resources Management System and the State Water
Facilities Plan. The Board of Water and Natural Resources is responsible for establishing the statewide policy on all multi-purpose water facilities, designating portions of rivers as wild, scenic or
recreational, authorizing water projects, and administering funds.
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Chapter 46A-2 – South Dakota Conservancy District
The South Dakota Conservancy District is a governmental agency, political body, and
corporation with authority to exercise the powers specified in this chapter. The District oversees the
construction of water resource facilities for the conservation, storage, distribution, and utilization of
water for multiple purposes and to market the power generated from hydroelectric projects.
Chapter 46A-5 – Irrigation District Projects and Operations
The use of all water required for irrigation of land of any district, together with canals and
ditches already constructed, the rights-of-ways for canals and ditches, sites for reservoirs and
pumping plants, and all other property required, is subject to the regulation and control of the state.
Rights and duties of the Irrigation Boards of Directors are detailed.
Chapter 46A-10A – County Drainage
The Board of County Commissioners, Board of Trustees, and the Department of Environment
and Natural Resources are all responsible for county drainage; this chapter defines the duties of
each entity. Drainage construction and rehabilitation projects require a permit and must conform to
a drainage plan. Permits are not required if the drainage is wholly upon an owner’s land.
Landowners may petition the Board for a drainage project.
Chapter 46A-10B – Drainage Basin Utility Districts
One or more counties or municipalities may establish a drainage basin utility district to enhance
their ability to comply with federal and state water quality standards or to alleviate conditions in one
or more drainage basins that may, because of flooding or other surface drainage:
• threaten human life
• produce severe damage to property
• seriously impact the environment
• produce serious sociological impacts,
• cause serious adverse economic impacts in the basin
Certain actions, however, must be approved by county or municipal government. The
governing body must prepare and adopt a master drainage plan for district facilities and prepare a
storm water map delineating the boundaries of the basins included in the district.
Chapter 46A-13 – Interstate Drainage Districts
In situations where water concerns involve another state, an interstate drainage district may be
established. Such drainage districts are considered a public corporation. The powers and duties of
the commission are detailed.
Chapter 46A-14 – Watershed Districts
Watershed districts may be formed, by petition, to carry out the conservation of the natural
resources of the state through land utilization, flood control, and other needs. The districts are
considered a public corporation. Construction of land and water projects shall receive review,
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approval, and assistance of the administering agency of the state to the extent that proposed project
works are complementary with other existing and proposed developments. Formation of watershed
districts, duties, and powers are noted.
Chapter 46A-16 – Minnesota Boundary Waters
South Dakota-Minnesota Boundary Waters Commission was created to investigate and
determine the most desirable and beneficial water surface elevations of artificially controlled
boundary waters and to prescribe a plan for controlling and regulating those levels. A local
advisory committee exists for each lake protection and rehabilitation project.
Administrative Rules
74:02:01 – General Rules
74:02:02 – Flowing Artesian Wells
74:02:03 – Public Lake Elevations
74:02:04 – Well Construction Standards
74:02:05 – Regulation of Groundwater Use
74:02:08 – Safety of Dams
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VI. INTERNATIONAL AGREEMENTS / TREATIES
United Nations Convention on Environmental Impact Assessment in a Trans-boundary
Context (1991)
This United Nations convention establishes an environmental impact assessment procedure that
permits public participation on both sides of the boundary and preparation of an environmental
impact assessment document. The convention outlines procedures for notification, preparation of
the environmental impact assessment document, consultation, decision making, and issues related to
the convention itself.
Boundary Waters Treaty
Signed in 1909, the Boundary Waters Treaty provided the principles and mechanisms to help
prevent and resolve disputes concerning water quantity and quality along the boundary between
Canada and the United States. The International Joint Commission (IJC) was established to respond
to applications for the use, obstruction, or diversion of boundary waters if such uses affect the
natural water levels or flows on either side. The IJC also undertakes investigations of specific
issues or monitor situations when requested by government. However, implementation of
recommendations made by the IJC is at the discretion of the two governments.
Boundary waters are defined as waters from main shore to main shore of the lakes, rivers, and
connecting waterways, or the portions thereof, along which the international boundary passes,
including all bays, arms, and inlets thereof. Boundary Waters include tributary waters which, in
their natural channels, would flow into such lakes, rivers, and waterways; waters flowing from such
lakes, rivers, and waterways; or the water of rivers flowing across the boundary.
Within Manitoba, the IJC has been involved in several government requests. In 1940, the IJC
was requested to investigate and report with recommendations on the regulation, use, and flow of
the Souris River and its tributaries and the apportionment of the water between Canada and the
United States. In 1992, the IJC was requested to begin monitoring compliance with the measures
outlined in the 1989 Canada-U.S. Agreement for Water Supply and Flood Control in the Souris
River Basin. In 1997, the governments of Canada and the United States requested the IJC examine
and report on the causes and effects of floods in the Red River Basin, and to recommend ways to
reduce and prevent harm from future flooding.
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VII. OVERALL SUMMARY
Review of Canadian and American Federal, Provincial and State water legislation indicates that
issues which may impact the Red River Basin are addressed in a similar manner.
Federal legislation in both countries define standards of water quality, control amount of water
allocated and address projects which may impact navigable waters.
Boundary Waters Treaty and United Nations Convention on Environmental Impact Assessment in a
Transboundary Context ensure that transboundary water projects, which may impact another
country, are reviewed and mitigated.
No significant areas of legislation overlap or lack of legislation were identified. Provided
legislation, treaties and agreements are adhered to, conflicts between countries should be minimal.
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Summary of Issues - Points
General
•
•
All jurisdictions use appropriation for allocation of some form of water use.
Minnesota uses riparianism and appropriation to address water use.
Ownership
• Federal ownership of the beds of navigable waters occurs in all jurisdictions.
• Various levels of ownership exist in all jurisdictions.
Allocation/Permits/License
• All jurisdictions issue permits/licenses for some form of water use.
Dams
•
•
•
All jurisdictions require the licensing/permitting of some form of dam.
Manitoba is the only jurisdiction that requires all dams be licensed.
The impoundment criteria vary widely in the three states.
Pollution Control
• All jurisdictions address pollution control.
• North Dakota specifically addresses chemigation through irrigation systems.
• Reporting of spills is addressed in all jurisdictions.
Drinking Water Standards
• Drinking water standards exist in all jurisdictions.
Water Quality Standards
• Water quality standards exist in all jurisdictions.
Effluent Standards
• Effluent standards exist in all jurisdictions.
Flood Control/Flood Management
• All jurisdictions contain legislation addressing development within a flood plain.
• Within all jurisdictions local governments are responsible for flood management plans.
Federal Government
• Canadian and American federal legislation address general water issues,
allocation/licensing, dams, pollution control, drinking water standards, water quality
standards and effluent standards.
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Summary of Comparisons - Points
Planning
• All jurisdictions have a variety of planning boards/commissions/districts.
Allocation/Permits/License
• All jurisdictions issue permits for some form or water use.
• Minnesota and South Dakota use 10,000 gallons per day as licensing criteria, Manitoba
uses approximately 5500 gallons per day and North Dakota uses approximately
4,073,138 gallons per day.
• Well drillers are licensed/permitted in all jurisdictions.
Permit/License Fees
• Fees exist for all jurisdictions however the charges differ from one to another and
include fees based on amount of water used, processing fees, and type of license issued.
Permit Transfers
• Permit transfers require approval in all jurisdictions.
• Within South Dakota and North Dakota irrigation use is appurtenant to the land.
Priorities
• Domestic use takes precedence in all jurisdictions
• South Dakota has no list of priorities as water is allocated on a first-in-time, first-in-right
system.
Drought
•
Only Minnesota formally addresses drought conditions.
Drainage
• Only in Manitoba is drainage not carried out on a district basis.
• Minnesota has a water bank program that addresses water replacement.
Wetlands
• Only South Dakota does not have legislation specifically addressing the preservation of
wetlands.
Irrigation
• All jurisdictions require a permit to irrigate land.
• Minnesota requires a soil and water conservation plan.
• Within North Dakota a corporation or limited liability company may be formed for
selling water for irrigation.
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VIII. REFERENCE SOURCES
Manitoba http://www.gov.mb.ca/chc/statpub/secure/index.html
Canada
http://canada.justice.gc.ca/FTP/EN/Laws/index.html
Minnesota
http://www.revisor.leg.state.mn.us/stats/
North Dakota http://intranet.swc.state.nd.us/CenturyCode/WaterIndex.html
South Dakota http://www.state.sd.us/denr/DES/WaterRights/WR_laws.html
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