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Drainage licensing in Manitoba: Policy or politics?

Landowners say some municipalities are bending the rules when it comes to water management and the provincial government is turning a blind eye. Concerns are boiling over into the courts as the province considers off-loading the responsibility for drainage licensing onto municipalities

Flood forecasts are as predictable as spring in Manitoba and the latest ones have Elm Creek-area landowner Pat Houde bracing for yet another showdown over water.

He’s been fighting with the RM of Grey for years over drainage around his home and land he owns between Elm Creek and St. Claude.

The blunt-talking Houde doesn’t attract much sympathy, at least not locally. Over the years, he’s tangled repeatedly with the RM on drainage issues and clashed with animal rights groups over his horse feedlot operation.

His farm laneway has a profanity-laced sign spelling out exactly how little he cares if anyone is offended by what they see. He matter-of-factly concedes he’s “not well liked” in the area, but goes on to say he doesn’t much worry about it.

Now he’s spending thousands of dollars taking the province and the RM to court over his drainage complaints, something he says has become a matter of principle.

Why it matters: Pending changes to how drainage is regulated in Manitoba have the potential to increase tensions between landowners and local governments.

While some would dismiss this as just Houde’s latest quarrel, he’s not the only one to have problems with the interplay between drainage, local government and the provincial department that’s supposed to regulate it.

Elm Creek-area landowner Pat Houde took the RM of Grey to court recently over a drainage issue. Many observers say this lawsuit isn’t the first over drainage, and it certainly won’t be the last.
photo: Gord Gilmour

Landowners across the province say they’re facing a situation where provincial regulators have been issuing drainage licences, often to local governments, without fully considering their downstream impact.

Their pleas for help are falling on deaf ears. Yet when they then take action to protect their interests, they say regulators are suddenly ready to take action — against them.

In Houde’s case, land just north of his home place is getting additional water from a municipal drainage channel that flows from the east. The water passes through two newer culverts, where it hits a small ditch that quickly becomes overburdened and overflows — onto his land.

He contends a drainage channel across the end of his land is the RM’s responsibility to maintain and it has failed in its duty to do so.

Houde says municipal officials have repeatedly told him they’re not willing to do any further drainage work to move the water away.

Pat Houde.
photo: Gord Gilmour

“They want to use my land as a holding area,” Houde said. “They installed those culverts without my consent, and the law says they need the consent of any downstream landowner. And Sustainable Development (the provincial department in charge of drainage) doesn’t seem to care — but when I build a dike, they’re out here right away with a high-hoe to put a hole in it.”

The RM presented a different perspective in its presentations in court hearings in early March. Curran McNicol, lead counsel for the RM of Grey, said Houde purchased land that had been pasture, cleared trees, conducted unlicensed drainage work of his own, and now wants the municipality to assume responsibility for maintaining a private drain that’s on his land, albeit connected at both ends to municipal drainage infrastructure.

“Mr. Houde had lived and owned land in this area for many years,” McNicol told the court. “He knew the condition of the land and knew it looked like a holding pond.”

McNicol added, Houde by his own testimony, says he chose to “take a chance” on the property.

Which version of events is truer is the question before Manitoba Court of Queen’s Bench Justice Brenda Keyser, who heard several days of testimony.

Brewing battles

Farming wouldn’t take place in Manitoba without drainage. Still, the region’s topography makes spring flooding a fact of life in the province.

The situation has intensified as farming equipment and farms have increased, the pressure to drain has grown and the technology to do it has improved. The result is a rush of water every spring, frequently with nowhere to go as the public drainage infrastructure becomes overwhelmed.

That’s caused anger and frustration from landowners who are starting to take the disputes to court, finding no solution either from local government or the province.

One drainage consultant says she’s had eight clients in the past two years either take the matter to court or begin legal proceeding and then settle prior to trial. Another says there are many more cases out there that are likely to seek a legal solution in the coming years.

It’s an expensive and time-consuming process that can take years. In the case of Houde and the RM of Grey, the first legal documents on file stem from 2013.

For one former landowner in the Interlake, who asked to remain anonymous because he has pending legal action, the battle has underscored a double standard in regulatory enforcement.

“The whole thing just makes me so frustrated,” the landowner told the Co-operator during a recent conversation.

After he disputed drainage work carried out by the RM under previous leadership upstream and downstream of his property in the northern Interlake, he concluded local governments receive different treatment from regulatory officials than individual landowners.

The municipal work involved changing the direction of water flow and building a water control structure, he said. He claims the work was in clear violation of the Water Rights Act, but getting resolution has proven to be a long and winding road.

Among the discoveries he made on that journey was that the drainage application was made verbally to provincial staff, resulting in what he says is inadequate analysis, and that the RM had illegally installed the water control structure adjacent to a highway without a permit from the provincial Highways Department, as well as other violations.

He also says he was astonished to learn of the thousands of licences Sustainable Development issues in some years, especially during wet cycles (see below), and questions how provincial staff could possibly conduct their due diligence.

photo: File

He and Houde both say local politics played a role in how their drainage fights played out, noting that it seems to be landowners with less local economic and political clout who are disproportionately affected.

“You can get high school politics in some of these RMs,” the landowner said. “There are three groups out there. There are people who count a lot and get what they want. There are people who count a little and get some of what they want. And there are people who don’t count at all and get nothing.”

Obvious issues

A former provincial government engineer who worked for 25 years in drainage and water licensing agrees with the landowners’ concerns.

Since his retirement, John Arthur has worked as a consulting engineer for landowners, governments and developers.

John Arthur.
photo: Gord Gilmour

“In water licensing, analysis has just dropped off the table,” Arthur told the Co-operator. “Drainage applications are being rubber-stamped without proper analysis. Plus, there’s favouritism — municipalities are allowed a lot more leeway than private individuals.”

He says there are plenty of examples of local governments that spend the time, energy and money to get it right. But he said there are even more examples of those that aren’t putting in that effort, which is creating drainage chaos in some parts of the province.

He said a provincial government that’s no longer equipped to do the work exacerbates the problem.

In Arthur’s time with the department, provincial engineers reviewed drainage applications. He questions whether the department has enough expertise on the front lines today to handle the incoming requests. As well, the workload increased, with thousands of drainage licences issued during peak years.

“They just hammer these licences out. When I was there, we had engineers. My staff were engineers and civil engineering technologists,” Arthur said. “We did proper analysis — this is the drainage area, this the flow, this is the size of the pipes — we just did a proper analysis, to ensure nobody got flooded upstream or downstream.”

That’s resulted in a system that’s driven by complaints, rather than compliance. He said as he travels the province as a consultant, he sees multiple examples of drainage work that wouldn’t qualify if compliance were the standard.

“If you’re putting in a 36-inch culvert and downstream there’s an 18-inch culvert, you can look at that and say, ‘that might be a problem,’” Arthur said.

The problem is set to get worse if, as is widely speculated, the province is set to download responsibility for drainage onto local governments in an ongoing review that should yield results later this year.

“I think it’s fair to say the current government would just love to off-load this to RMs and say, ‘here, it’s your headache,’” Arthur said.

But in reality in many cases that would just further download the headache onto farmers and other landowners. They’ll face economic losses as the water pushes the problem downstream.

Under review

Manitoba Sustainable Development disputes the contention the department is playing favourites.

In remarks prepared by a communications officer, the organization says it “… reviews every licence application under the Water Rights Act based on the application and local conditions. There is certainly no bias towards one party or the other.”

When asked what the minimum qualifications were for individuals approving drainage licences, Sustainable Development said staff are “… hired based on the best qualifications to effectively do their jobs. Ongoing training, mentorship and performance management is provided to ensure they provide the best, professional service.”

An amended Water Rights Act came into effect June 4, 2018, and Sustainable Development recently completed public consultation on what it describes as a new “… streamlined approach to drainage licensing under the proposed Water Rights Regulation,” noting there will be updated policies and procedures coming as a result of the changes.

Sustainable Development also insisted that lack of documentation doesn’t mean adequate reviews aren’t being conducted.

“Every application is different and may not always require significant documentation,” its statement read.

What to do if you’ve got a drainage problem there are some simple steps you can take to protect your interests.

  • Ask to see the drainage licence and any accompanying Sustainable Development analysis.
  • Ask to see any surveys or other studies done on the project either by the province or local government or other agencies.
  • Seek related documents from other agencies like conservation districts or the Highways Department.
  • Keep a record of any contacts you make on the issue in the form of a diary and take plenty of photos.

About the author

Editor

Gord Gilmour is Editor of the Manitoba Co-operator.

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