November 2009 

Persons giving or taking interests in real property, or contemplating doing so, in particular, with respect to real properties situated outside of areas affected/covered by public/community wastewater collecting and processing systems, including buyers, sellers, mortgage lenders and realtors and lawyers advising same, should be aware of the requirements specified under the "Onsite Wastewater Management Systems Regulation" (Manitoba Regulation #83/2003, registered April 28, 2003 and the "Onsite Wastewater Management Systems Regulation, amendment" (Manitoba Regulation #156/2009, registered September 28, 2009), both of these Regulations having been enacted under the Environment Act (Manitoba) (the "Act").  Hereinafter, the "combined" aforementioned Regulations will be referred to as the "Amended Wastewater Regulation".

Before considering the requirements imposed on property owners under the Amended Wastewater Regulation, it is important to take note of certain of the definitions set forth at the beginning of the Amended Wastewater Regulation, in particular:

1. "Wastewater" means either one or both "greywater" and "sewage", in other words, in a typical household, either one or both of "used" water that drains out of a kitchen or bathroom sink, bathtub or shower, and, the effluent that is placed in or runs through toilets.
2. "Onsite wastewater management system" means all or any part of a system for the "holding", "treatment" and/or "management" of wastewater, "including, but not limited to:

(a)          an aerobic treatment unit;

(b)          a composting toilet system;

(c)           a disposal field;

(d)          a greywater pit;

(e)          a holding tank;

(f)            a septic tank; and

(g)          a sewage ejector."

Although not specifically stated as such, the intent of this definition appears to be to describe a wastewater management system which is designed or intended to service a particular property only, as opposed to a "community" (or multi-property) wastewater management system.

1. "Wastewater collection system" means a sewer system used for the collection and conveyance of wastewater.  Again, although not specifically stated as such, it would appear that the intent of this definition is to cover wastewater management systems, or perhaps more accurately, the "collection" portion thereof, which is used or intended to be used to service multiple properties.  Also, although it is not clearly specified, it would appear that "wastewater collection system" is intended to refer to systems which are owned by a level of government or some entity controlled by a level of government, most typically, by a local government.

Although there are many rules in the Amended Wastewater Regulation that specify (often detailed) requirements for the installation, maintenance and operation of onsite wastewater management systems, the purpose of this memorandum is to highlight certain requirements/obligations of landowners which came into effect via Manitoba Regulation #156/2009, namely:

1. Sections 8.1 and 8.2 provide:

(a)          A person who, on the day that the Amended Wastewater Regulation came into force, owns land in an area that is serviced by a wastewater collection system, but who has not connected his/her wastewater sources to the system must both connect his/her wastewater sources to the wastewater collection system and take any onsite wastewater management system that the person has (or any privy located on the land) out of service and decommission it, before the earlier of five years from the date that the Amended Wastewater Regulation came into force and the transfer or subdivision of the person's land.

(b)          In the case of a person in a similar position to that described in subparagraph (a) immediately hereinabove, but who does not have a wastewater collection system available to be hooked up to on the date that the Amended Wastewater Regulation came into effect, but whose property is subsequently commenced to be serviced by a wastewater collection system, such person must similarly connect to the installed wastewater collection system and take out of service any onsite wastewater management system (or privy) located on such person's land and decommission it, by the earlier of five years from the day upon which the (newly installed) wastewater collection system has been installed and the transfer or subdivision of the person's land.

Both Sections 8.1 and 8.2 go on to specify that where a person transfers his/her land without doing the required remediation work before transfer, the new owner/transferee must complete the required remediation within "two years after the transfer".  Presumably this means two years after the date upon which registration of a transfer of land is giving "accepted" status by the Land Titles Office.  Also presumably, an "old" owner who transfers title before doing the required remediation work will be in breach of the Amended Wastewater Regulation and thus subject to fines, penalties, etc., notwithstanding that the new owner/transferee does the required remediation work within the two year time span given to the new owner/transferee.

1. Section 14.2 of the Amended Wastewater Regulation provides that the owner of land on which a sewage ejector system is located must take such system out of service and decommission it before the earlier of the transfer of the land on which the sewage ejector system is located and the subdivision of the land on which the sewage ejector system is located.  As similarly specified in Sections 8.1 and 8.2 pertaining to transfers of ownership of land serviced by a wastewater collection system, it is further provided that where the owner of land with a sewage ejector system on it transfers ownership without taking the ejector system out of service and decommissioning it, the transferee/new owner then has the obligation to do the required remediation work within two years after the transfer.  Again, it would appear that even where the transferee/new owner does the required remediation work within the two year period, the old owner/transferor is in breach (or perhaps more accurately, continues to be held to be in breach) of its obligation and is thus subject to fines, penalties, etc.
2. The original Wastewater Management Systems Regulation specified (in Section 8) that, in effect, a person was not entitled to install (or modify) an onsite wastewater management system on his/her land without first submitting a proposal for same and having the director (under the Act) approve same.  Section 8(2.1) of the Amended Wastewater Regulation now specifies that, not only must the director refuse any such proposal where there is an existing wastewater collection system available to be hooked up to, but that the director must also refuse any such proposal if the applicant's property "is expected to be serviced by a wastewater collection system within five years after the day that the proposal was received".  In this regard, Section 8.3 of the Amended Wastewater Regulation now provides that:

(a)          If there is a dispute or difference of opinion as to whether or not a landowner's property is - or is not - in an area that is serviced by an (existing) wastewater collection system, or, as to whether or not the property is "expected to be serviced" by a wastewater collection system within five years, the director may determine the matter in dispute; and

(b)          The director may also at any time inform a landowner as to whether or not the owner's land is in an area that is serviced by an existing wastewater collection system or is expected to be serviced by a wastewater collection system within five years.  Property owners, realtors, mortgage lenders and their legal advisors may wish to make appropriate "searches" or enquiries of the director in this regard.

These new rules/requirements raise certain questions which we will all have to consider and take into account when advising clients:

(I)            As noted above, it appears that even where a potential seller and buyer are aware of the Amended Wastewater Regulation's requirements as they apply to the seller's land, an arrangement between the parties to the effect that the purchaser will do the required remediation work (presumably two years from the date of transfer), and presumably with an "adjustment" in the sale and purchase price, may not relieve the seller form exposure to fines, penalties, etc. which may be imposed on the seller by virtue of his/her/its failure to do the required remediation work by the time of transfer.  Should such arrangements thus be avoided at all cost, or should a seller and buyer be advised that, provided that the buyer does the required remediation work within the required two year period (and the purchaser will not be exposed to fines, penalties, etc.), the seller, despite such potential exposure, is not likely to be prosecuted by the authorities simply because the "evil" intended to be eliminated by the Amended Wastewater Regulation will have been eliminated?  Would such advice itself be unethical because one would be counselling the seller to, in effect, "break the law"?

(II)          Regarding the triggering occurrences of "transfer" and "subdivision" of land:

(a)          Does "transfer" include change of ownership arising by virtue of operation of law, such as where a surviving joint tenant acquires ownership, change of ownership by way of devise, inheritance, corporate amalgamation, winding-up, transmission on bankruptcy or changing of ownership by virtue of the issuance and registration of a vesting order given by a Court?

(b)          If there is the disposition and acquisition of an interest in land which does not constitute a "subdivision" within the meaning of the Manitoba Planning Act and/orthe City of Winnipeg Charter, would the same not constitute a "subdivision" for the purposes of the Amended Wastewater Regulation?

(III)         As noted above, this writer suspects that a wastewater collection system means a wastewater collection system which is owned by a level or entity of government, but this is not entirely clear.  Would the expression include a collection system which is privately or communally owned? 

(IV)        What about those unfortunate persons who entered into contracts to sell and buy lands before the Amended Wastewater Regulation came into effect, but with a closing after such effective date?  In some cases, such persons' purchase and sale contracts may be legally "frustrated", but unless the cost of the required remediation is substantial in relation to the purchase and sale price, this may will not likely be so.  Perhaps the only practical way to deal with these situations is for the buyer and the seller to more or less equally split the cost of the required remediation - but what about a buyer who refuses to do so?

(V)          Are there enough competent tradespeople available to take onsite wastewater management systems out of service, decommission them and where appropriate, hook up a property owner's wastewater sources to a new (or existing) wastewater collection system servicing the neighbourhood?

(VI)        What will be the cost of taking an onsite wastewater management system out of service, decommissioning it, and, connecting a property's wastewater sources to a wastewater collection system servicing the neighbourhood?