VI. DRAINAGE OF LANDS

See also:

II. PREVENTION AND CONTROL OF WATER POLLUTION

1. INTRODUCTION

The drainage of lands in general, i.e. disposing of excess water on it, including the drainage and reclamation of swamps and marshes for land development purposes, is the target of separate legislation designed to facilitate the disposal of such waters, and to prevent or minimize their harmfulness to human life, health and property.

This Chapter will deal separately with the drainage of lands and, in view of their environmental and other implications, with the reclamation of swamps and marshlands.

2. LAND DRAINAGE

Preventing and mitigating the damage to human life and property wrought by poor land drainage involves the construction of works designed to improve land drainage in general. In this connection, the legislation grants certain powers to government in relation to the construction and maintenance of works by, or with the financial participation of, concerned landowners. Relevant subsidiary legislation may lay down requirements for the exercise of such powers (I and V), the methodology of calculation of charges to be levied on land suffering from inadequate drainage, to finance the costs of improving land drainage (II and IV), and standard formats for the raising and collection of such charges (III).

I - UNITED KINGDOM - Land Drainage Act, 1991

Schedule 4 - Schemes for Small Drainage Works.

1. (1) Before making a scheme under section 18 of this Act, a local authority shall consult the NRA^[57].

(2) Before making a scheme under section 18 of this Act, the NRA or a local authority shall give a notice under this paragraph:

(a) to the owners and occupiers of land within the area to which the scheme relates; and

(b) to any other persons appearing to the NRA or, as the case may be, that local authority to be affected by the scheme.

(3) A notice under this paragraph is a notice in the prescribed manner of:

(a) the intention of making the scheme;

(b) the place where a draft of it can be inspected; and

(c) the period (which shall not be less than thirty days) within which objections to it may be made to the NRA or local authority.

2. (1) Where any objections to a scheme are duly made and are not withdrawn:

(a) the NRA or local authority shall send a copy of the draft scheme, together with copies of the objections, to one of the Ministers; and

(b) the scheme shall not be made unless the draft is confirmed, with or without modifications, by one of the Ministers.

(2) Before either of the Ministers confirms a scheme under this paragraph, he shall either:

(a) cause a public local inquiry to be held; or
(b) give to:

(i) the NRA or, as the case may be, the local authority; and

(ii) the persons by whom the objections are made, an opportunity of appearing before and being heard by a person appointed by him for the purpose.

3. (1) Where a scheme is made by the NRA or a local authority under section 18 of this Act, the NRA or, as the case may be, that authority shall send copies of the scheme to the owners and occupiers of land in the area to which it relates.

(2) Where the NRA makes such a scheme it shall also notify the council of any county, district or London borough in which any of that land is situated.

II - UNITED KINGDOM - Drainage Charges Regulations, 1990

3. (1) For the purposes of ascertaining, under subsection (1) of section 49 of the principal Act, the amount per hectare of a general drainage charge for any time after 31st March 1990, the quotient referred to in paragraph (b) of that subsection shall cease to be calculated under paragraph (a) of that subsection but shall instead be calculated in accordance with the following provisions of this regulation.

(2) The said quotient shall be determined by the application of the following formula:

where:

A means the aggregate amount demanded by the precepts issued by the Authority in respect of the district under section 46(3) of the principal Act in respect of the financial year beginning in 1989;

B means the aggregate amount of the estimated penny rate products on the basis of which the amount A was apportioned in pursuance of section 46(1) of the principal Act in respect of that financial year;

C means the amount ascertained by dividing the amount A by the number of the relevant population of the district for the financial year beginning in 1990;

D means the aggregate amount of the levies issued by the Authority in respect of the district under the National Rivers Authority (Levies) Regulations 1990 for the financial year in respect of which the drainage charge is raised;

E means the relevant population of the district for the financial year in respect of which the drainage charge is raised.

(3) For the purposes of this regulation, the relevant population of a district means the relevant population of each charging authority's area or (as the case may be) the part of that area which falls within the district, and for a financial year:

(a) in relation to the area of an English charging authority, is the relevant population of the area for the year, calculated by the Secretary of State under paragraph 4 of Schedule 12A to the 1988 Act^[58];

(b) in relation to the area of a Welsh charging authority, is the relevant population of the area for the year, calculated in accordance with the rules for the time being effective (as regards the year) under regulations made under paragraph 5(1) of the said Schedule 12A;

(c) for part of the area of a charging authority, is the relevant population of that part for the year, calculated in accordance with the rules for the time being effective (as regards the year) under regulations made under paragraph 6(2) of the said Schedule 12A. ...

5. Arrears of any drainage charge raised in respect of any time after 31st March 1990 may be recovered by the Authority in the same manner in which arrears of a non-domestic rate may, under the 1988 Act, be recovered by a charging authority.

III - UNITED KINGDOM - The Drainage Rates (Forms) Regulations, 1993

2. Form of drainage rate

Every drainage rate made by an internal drainage board in respect of a period beginning after 31st March 1993 shall contain the particulars set out in Form 1 in the Schedule to these Regulations.

3. Form of demand for drainage rates

Every demand for payment of a drainage rate shall be in Form 2 in the Schedule to these Regulations or in a form substantially to the like effect.

Schedule - Form 1 - Particulars required to be set out in every drainage rate

(1) The amount in the pound of the rate or, if a differential rating order is in force, the amount in the pound in each sub-district.

(2) The period for which the rate is made (Note (i)).

(3) If the rate is declared to be payable by instalments, the amount of each instalment and the date when it becomes due.

(4) The date on which a resolution was passed by the internal drainage board authorising their seal to be affixed to the rate (Note (ii)).

NOTES:

(i) The period for which a rate may be levied is the financial year (1st April to 31st March) (section 40(1) and 72(1) of the Land Drainage Act 1991).

(ii) The seal of the internal drainage board must be affixed in pursuance of a resolution authorising it to be affixed (section 48(1) of the Land Drainage Act 1991).

Form 2 - Form of demand for payment of a drainage rate - See Appendix VI, page 399.

IV - CANADA - ALBERTA - Drainage Districts Regulations, 2001

1. Definitions

In this Regulation, ...

(b) "agricultural use value" means the value of a parcel of land based exclusively on its use for farming operations; ...

(e) "farming operations" means the raising, production and sale of agricultural products and includes

(i) horticulture, aviculture, apiculture and aquaculture,
(ii) the production of livestock as defined in the Livestock and Livestock Products Act, and
(iii) the planting, growing and sale of sod;

5. Making assessments

(1) For the purposes of assessments of land in a drainage district, the valuation standard of the land is the agricultural use value of the land, regardless of whether the land is being used for farming operations.

(2) An assessment of land in a drainage district must

(a) be based on agricultural use value, ...

(3) An assessment must be based on the value of the land on January 1 of the assessment year in which the assessment is made.

V - UNITED KINGDOM - Drainage (Northern Ireland) Order, 1973

11. Preparation of drainage schemes

(1) If the Ministry is of opinion that the carrying out --

(a) of drainage works on a designated watercourse; or
(b) of works on any designated sea defences;

is expedient for the drainage of any land, the Ministry may prepare a scheme for the carrying out of those works, and for that purpose may make such surveys as shall appear to the Ministry to be necessary or expedient.

(2) Every drainage scheme prepared by the Ministry shall contain such provisions as the Ministry may consider necessary for the protection of rights (including rights to water cattle or other animals) or interests affected by the scheme, and shall show, either in the body of the scheme or by means of appropriate maps, drawings, plans, sections and schedules annexed thereto, the following matters -

(a) the watercourses, or the sea defences, proposed to be dealt with;

(b) the land which will be drained or otherwise improved by the carrying out of the scheme;

(c) the details of the drainage works proposed to be carried out in pursuance of the scheme, together with a description of the works to roads, bridges or culverts which will be necessary to enable the scheme to be carried out or to be effective for drainage purposes;

(d) the manner in which it is proposed to implement.

(3) Without prejudice to Article 37, the officers, agents and servants of the Ministry may, at all reasonable times, on production (if so required) of their authority, enter on any land and do there all such things as may appear to them to be reasonably necessary or expedient for the purposes of the preparation of a drainage scheme.

(4) Every reference in this Order to a drainage scheme shall be construed as including every map, drawing, plan, section and schedule annexed to such drainage scheme.

12. Restrictions on drainage schemes

The Department shall not confirm a drainage scheme unless -

(a) it has complied with the requirements of Articles 12A to 12E in relation to the scheme; and
(b) where a proposal for the scheme has been referred to the Commission under Article 12E(5):

(i) the Commission has consented to the carrying out of the scheme; and
(ii) the scheme is carried out in accordance with any conditions to which the consent is subject. ...

13. Confirmation of drainage schemes

(1) Where:

(a) the Department has stated in accordance with Article 12A(3)(c) that it does not consider that the works specified in the proposed scheme are likely to have significant effects on the environment; and

(b) no representations made in accordance with Article 12A(3)(d) are received in relation to those works within the time limit therein specified,

it may, within 28 days of the expiration of the time limit referred to in Article 12A(3)(d) and, after considering any representations sent to it under Article 12A(4)(b) and after holding such enquiry, if any, as it considers necessary, by order confirm the scheme in whole or in part, either without modification or with such modifications as the Department thinks fit.

(2) Subject to paragraph (3), where the Department has prepared an environmental statement in relation to the works specified in a drainage scheme it may, after the expiration of 28 days from the expiration of the period of notice referred to in Article 12C(8)(a), and after holding such an enquiry, if any, as it considers necessary, by order confirm the scheme in whole or in part, either without modifications or with such modifications as the Department thinks fit.

(3) Where the Department has prepared an environmental statement in relation to the works specified in the drainage scheme it shall not, under paragraph (2) confirm the scheme unless it has first taken into consideration -

(a) the statement;

(b) any information relevant to it and obtained pursuant to Article 12C(6) or (12);

(c) the works specified in the drainage scheme;

(d) any representations sent to it under Article 12A(3)(d);

(e) any representations made in accordance with Article 12C(8)(a) within the time limit specified that sub-paragraph;

(f) any representations made by another EEA State during consultations under Article 12D in relation to the likely environment effects of those works and which are received within the time limits therein specified;

(g) the environmental factors specified in Schedule 2C; and

(h) the determination made by the Department under Article 12E(2) or, as the case may be, any consent given by the Commission under Article 12E(8)(b).

(4) Where having taken into consideration the matters specified in paragraph (3)(a) to (h), the Department decides to confirm a scheme in accordance with paragraph (2) it shall:

(a) inform in writing any person or EEA State which made representations in accordance with Article 12A (3)(d), Article 12C(8)(a) or Article 12D of its decision and any reasons and considerations upon which it was based and that in making it the Department has taken into consideration the matters specified in paragraph (3)(a) to (h); and

(b) by notice published in the Belfast Gazette and at least two local newspapers announce its decision and the considerations on which it was based and state that in making it the Department has taken into consideration the matters specified in paragraph (3)(a) to (h).

(5) In this Article, modification includes a variation, addition or exception.

3. DRAINAGE AND RECLAMATION OF SWAMPS AND MARSHLANDS

Swamps and marshlands, and, generally, naturally occurring collections of stagnant water can be the source of nuisances primarily as breeding grounds of water-borne vectors of diseases - malaria-bearing mosquitoes being the classic example. On the other hand, such "harmful" view of these particular collections of water is contrasted by the wildlife-supporting function of wetlands, which is beneficial to the environment in general and to man. Reclaiming and draining swamps and marshlands may bring benefits in terms of increased availability of land and water resources for development, and abatement of the nuisances above-mentioned. On the other hand, it may be in conflict with a wetland's wildlife habitat function. In response to the potentially controversial nature of swamp and marshland drainage and reclamation projects, these tend to attract regulatory legislation for the vetting of the project, independent of a water use permit. If use of post-reclamation water is contemplated, separate water use permit requirements may have to be met.

Projects for the drainage and reclamation of swamps and marshes may attract specific permit requirements (IV), or permit requirements of general applicability to a spectrum of water utilizations and water development projects. Specific permit requirements focus on information to be provided concerning the proposed project (I and II), and on technical specifications of design and construction to be met, protection of water rights in the swamp to be drained, the effect of drainage on boundaries between landholdings demarcated by streams which have either been dried up or which have changed their course, and on separate permit requirements for the use of water developed as a result of a swamp reclamation project (III).

I - PHILIPPINES - Water Rules and Regulations

4. All applications shall be filed in the prescribed form, sworn to by the applicant and supported by the following:

E. For a Permit for Drainage Purposes:

1. Brief description of project for which drainage scheme is necessary;

2. Location and layout maps of drainage works showing area to be drained, route of drainage canal and drainage outlet which should be a natural body of water or a natural waterway;

3. Articles of Incorporation or Articles of Partnership in case applicant is a private corporation or partnership, or Certificate of Registration in case of cooperatives....

II - KENYA - Water (General) Rules

47. If a permit is required involving reclamation and drainage, there shall be submitted, when so required by the Water Apportionment board, in addition to the general map required by rule 51 of these Rules:

(a) a detail plan, showing the present area flooded or waterlogged, and the area proposed to be unwatered or reclaimed;

(b) detail plans of the proposed works for lowering the level of the water, showing how the water will be carried away and where it will be discharged.

51. Every application for a permit to drain or reclaim a swamp shall be in form No. W.A.B.5 in the Second Schedule to these Rules, and shall be accompanied by a general map, drawn in indian ink or by means of other indelible process acceptable to the Water Apportionment Board on tracing cloth or other substantial material to such a scale as will allow all requisite details to be legibly recorded, signed and dated by the applicant, showing the boundaries of the swamp, the position of the body of water it is proposed to drain and the position of any dams, weirs, canals, channels, watercourses, bodies of water, flumes, wells, surface drains, subsoil drains or other works and lands, if any, which may be affected, the names of the land-holders and the land registration numbers and boundaries of the farms affected by the proposed works.

Form W.A.B. 5 - Application for a Water Permit for the Drainage and Reclamation of a Swamp - See Appendix VI, page 400.

III - KENYA - Water (General) Rules

52. (1) Whenever any proposal for the drainage and reclamation of a swamp involves the subsequent use by the applicant of all or any of the water conserved by the drainage or reclamation of such swamp, the applicant shall submit an application for a permit for the diversion, abstraction, storage or use of such water, and shall show, if possible, by gauging the flow of the stream at suitable points the expected conservation of water due to such drainage or reclamation.

(2) All gaugings for this purpose shall, where conveniently possible, be made by means of a gauging weir or current meter.

53. Whenever a canal is used for the purpose of passing any water around or through a swamp, the bed of such canal shall be graded to the satisfaction of the Water Apportionment Board, and the side slopes thereof shall be constructed so that no sloughing of the banks occurs.

54. (1) No works involving the drainage of a swamp shall deprive of reasonable access to water any landholder with a licence, sanction or permit relating to such body of water except by agreement or on payment of compensation, or on supplying water from other sources or by other means, and the applicant concerned shall submit to the Water Apportionment Board all plans and documents showing his proposals to provide such landholder with access to water, and any agreements to this effect, and he shall, if his proposals include any works for supplying such landholder with water, submit an application for a permit.

(2) Any question as to whether such access, compensation or supply is reasonable shall be decided by the Water Apportionment Board.

55. (1) If, owing to any works being constructed for the drainage or reclamation of a swamp, a body of water which constitutes the boundary of two or more properties ceases to flow between or to separate such properties or is diverted into a new course, the boundaries of such properties shall, unless readjusted by mutual agreement between the parties concerned, remain as before.

(2) When such body of water is diverted into a new course the Water Apportionment Board may, under section 31 of the Act, declare the new course to be a watercourse, and may require the original course to be retained as a flood channel.

IV - UGANDA - The National Environment (Wetlands, River Banks And Lake Shores Management) Regulations, 2000

11. Uses of wetlands

(1) A person desiring to carry out any of the regulated activities listed in the Second Schedule or extract any wetland produce in a wetland shall make an application in Form A set out in the First Schedule to these Regulations.

12. Wetland resource use permit

(1) Subject to the provisions of these Regulations, a person shall not carry out any activity in a wetland without a permit issued by the Executive Director.

(2) Any person intending to carry out an activity listed in the Second Schedule to these Regulations shall apply to the Executive Director for a permit in Form A of the First Schedule.

(3) The application in sub-regulation (2) shall be accompanied by the fee specified in the Fourth Schedule.

(4) The Executive Director may issue a permit in Form B specified in the First Schedule permitting the use of wetland resources.

13. Rejection of permit

(1) Where the Executive Director rejects an application made under sub-regulation (2) of regulation 13, the Executive Director shall -

(a) state reasons, in writing, to the applicant; and
(b) give the applicant the right to be heard either orally, or in writing, or both.

14. Revocation of permit

The Executive Director may, at any time, after consultation with the lead agency, revoke a permit granted under these Regulations if he or she is satisfied that the conditions of the grant of the permit have not been complied with or that the continued use of the wetland is likely to be injurious to the community and the environment.

15. Temporary permits

The lead agency may, after consultation with the Executive Director, grant temporary permits for the use of a wetland where-

(a) there is need to irrigate an area pending a construction;

(b) there is need to use water for emergency situations pending the availability of alternative sources of supply;

(c) the wetland is needed for construction of a road, a building or other infrastructure;

(d) a special research project requires the use of the wetland for a certain period of time;

(e) there is an unforeseen delay in the use of the wetland pending the issuance of a permit.

16. Implied covenants

It is implied in any permit issued under these Regulations that the holder of any permit shall --

(a) not substantially affect hydrological and ecological characteristics of the wetland beyond the terms and conditions contained in the permit;

(b) keep and maintain the margins of the wetland for purposes of bilharzia and malaria control;

(c) not assign the permit to any other person without the consent of the Executive Director; and

(d) within a period of one year after the expiration or revocation of the permit, remove or restore the wetland to as near the state it was as possible immediately before the commencement of the permitted activities.

Second schedule - Regulated activities in a wetland (Regulation 11 & 12)

... 4. Drainage ...

First schedule - Form A - Application for a permit to carry out a regulated activity in a wetland, riverbank and lake shore - See Appendix VI, page 403.

Form B - Permit to carry out a regulated activity in a wetland/riverbank/lake shore) - See Appendix VI, page 404.

^[57] National Rivers Authority.
^[58] I.e. the Local Government Finance Act, 1988.