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Appeals from the Water Act
2009
Decision Date:
August 19, 2009
Panel:
Alan Andison
Keywords:
Water Act - ss. 18(1)(c), 23(2); water licence;
beneficial use; precedence date
Earl Tourangeau
appealed a decision issued on March 26, 2009, by the
Assistant Regional Water Manager (the “Assistant
Manager”), Cariboo Region, Ministry of Environment (the
“Ministry”), denying Mr. Tourangeau’s request to cancel
a water licence held by Dan Moorhead on Otto’s Spring,
which is located on Mr. Tourangeau’s property near
Quesnel.
Mr. Tourangeau and Mr.
Moorhead both hold water licences on Otto’s Spring which
allow each of them to use 500 gallons of water per day
for domestic purposes. Mr. Moorhead’s licence was
issued before Mr. Tourangeau’s, and therefore Mr.
Moorhead’s water rights have precedence over Mr.
Tourangeau’s water rights. When Mr. Tourangeau
purchased his property in 2002, he was unaware of Mr.
Moorhead’s water licence on Otto’s Spring, and Mr.
Moorhead had not used water from Otto’s Spring since at
least 2001. Shortly after Mr. Tourangeau moved onto the
property, Mr. Moorhead advised him that his water rights
on Otto’s Spring had precedence over Mr. Tourangeau’s,
but he hadn’t used the water for some time due to a
problem with his water line near where it crosses some
oil and gas pipelines. Both parties have other sources
of water.
In 2008, Mr.
Tourangeau provided a sworn declaration to the Assistant
Manager stating that Mr. Moorhead had not used the water
from Otto’s Spring for more than 5 years. Mr.
Tourangeau requested that the Assistant Manager cancel
Mr. Moorhead’s water licence on Otto’s Spring for
failure to make beneficial use of the water for 3
successive years, pursuant to section 23(2) of the
Water Act. In or about the same time, Mr.
Moorhead’s water line from Otto’s Spring was being
excavated and reconnected.
In his appeal to the
Board, Mr. Tourangeau submitted that, other than testing
the new water line, Mr. Moorhead has not used the water
from Otto’s Spring, and Mr. Moorhead does not have an
easement or right-of-way for his water line over Mr.
Tourangeau’s property. Mr. Tourangeau argued that he
has greater need for the water than Mr. Moorhead, and he
requested that the Board cancel Mr. Moorhead’s licence
so that Mr. Tourangeau would have “first right” to the
water in Otto’s Spring.
The Board held that
there is no authority under the Water Act to
change the precedence date of a licence in order to give
another licensee “first rights” to the water. Section
23(2) of the Water Act provides authority to
cancel a licence for failure to make beneficial use for
3 successive years, but section 18(1)(c) of that Act
provides authority to extend the time set for making
beneficial use of the water. The Board found that, in
the circumstances, Mr. Moorhead was properly given more
time to make beneficial use of the water. The Board
found that Mr. Moorhead lost the use of water from
Otto’s Spring through no fault of his own. Rather, it
was caused by the activities of oil and gas companies,
who made it difficult for Mr. Moorhead to excavate his
water line and make repairs. The Board further held
that his non-use of the water since the water line was
reconnected appears to have been due to a dispute
between himself and Mr. Tourangeau regarding a
right-of-way or easement over Mr. Tourangeau’s
property. The Board found that the absence of a
right-of-way or easement is not a ground for cancelling
the licence at this time. The Board concluded that the
parties should be given time to negotiate access to
Otto’s Spring and joint maintenance of the water works,
or to proceed with expropriation and compensation under
section 27 of the Water Act.
For those reasons, the
Board confirmed the Assistant Manager’s decision.
Accordingly, the
appeal was dismissed.
Decision Date:
March 19, 2009
Panel:
Alan
Andison, Robert Cameron, Gary Robinson
Keywords:
Water
Act - ss. 1 – definitions of “changes in and about a
stream”, “divert”, “land improvement purpose”; 4, 5(d),
7(a), 9; Water Regulation – s. 37(4); stream
channel; realignment; approval; licence
Murray Wood appealed an approval issued
by an Engineer under the Water Act (the
“Engineer”), Ministry of Environment (the “Ministry”).
The approval was issued under section 9 of the Water
Act, and authorized Sandhill Developments Ltd. (“Sandhill”)
to make changes in and about Jeffrey Brook, a stream
that passes through property owned by Sandhill in
Langley, BC. Specifically, the approval authorized
Sandhill to realign part of Jeffrey Brook’s channel
where it passed through Sandhill’s property. Sandhill
planned to develop its property for mixed commercial and
residential use.
Mr. Wood owns property adjacent to
Sandhill’s. The plans submitted with Sandhill’s
application for the approval indicated that the new
channel for Jeffrey Brook would be approximately 1 metre
from the boundary of Mr. Wood’s property. Mr. Wood
argued that the approval unlawfully authorized Sandhill
to divert a stream, because a stream diversion can only
be authorized by a water licence. He also argued that
the approval was issued for a purpose that is prohibited
under the Water Act, and that the approval
violated section 37(4) of the Water Regulation.
Mr. Wood requested that the Board set aside the
approval, or alternatively, send the matter back to the
Engineer with directions.
The Board considered the regulatory
scheme created by the Water Act, and the
statutory provisions that relate to approvals and water
licences. The Board found that approvals and licences
serve different but somewhat overlapping purposes.
Specifically, the Board found that section 9 approvals
are limited to authorizing “changes in and about a
stream” as defined in the Water Act. Section 9
approvals cannot authorize the beneficial use of water.
Water licences may authorize changes in and about a
stream, but they may also grant the right to “divert”
and “use” water. One of the main functions of water
licences is to control and regulate the beneficial use
of water. Although the Water Act’s definitions
of “divert” and “changes in and about a stream” overlap
to some degree, “divert” involves “taking” water from a
stream in order to exercise possession and control of
the water, whereas “changes in and about a stream” need
not involve exercising control or possession of water in
a stream.
Applying those findings to the evidence
in this case, the Board found that the approval
authorizes building a new section of channel for Jeffrey
Brook that would be substituted for part of the
pre-existing channel. The approval did not authorize
beneficial use of the water, or diversion on the stream
in order to take possession and control of the water.
The Board held, therefore, that the realignment of
Jeffrey Brook did not require a water licence, and
involved changes in and about a stream that were
properly authorized by the approval.
The Board found that the issue of whether
the approval was for a prohibited purpose was moot,
because the prohibition in the Water Act against
using water for purposes other than those defined in
section 1 only applies to the diversion, extraction, use
or storage of water, and the approval authorized none of
those things. However, the Board addressed this issue
for clarity. The Board found that the Water Act
does not require that section 9 approvals be issued only
for one of the purposes defined in section 1 of the
Water Act. Moreover, the Board found that, even if
the changes to Jeffrey Brook constituted a water
diversion, which they do not, the approval was granted
for a purpose defined in section 1 of the Water Act;
namely, a “land improvement purpose.”
Finally, the Board found that Mr. Wood
failed to establish that the approval was contrary to
section 37(4) of the Water Regulation.
Specifically, there was insufficient evidence of a
contravention of section 37(4)(a) because there was
prima facie evidence, in the form of an
authorization issued by the federal Department of
Fisheries and Oceans, that the approval complied with
federal fisheries enactments. The Board also noted that
the approval appeared to comply with Langley’s bylaws,
but the Board made no findings in that regard because
the parties did not fully address this question.
Regarding section 37(4)(b), the Board found that the
approval authorized no changes or works on Mr. Wood’s
property, nor any setbacks or encroachments onto his
property.
Accordingly, the Board confirmed the
Engineer’s decision to grant the approval.
The appeal was dismissed.
Decision Date:
February 12, 2009
Panel:
Gabriella Lang
Keywords:
Water
Act - s. 1 – definitions of “changes in and about a
stream”, “natural boundary”, “stream”, 9; fill; swamp;
wetland; approval
Murray Johnston appealed a decision
issued on April 11, 2008, by the Assistant Regional
Water Manager (the “Assistant Manager”), Cariboo Region,
Ministry of Environment (the “Ministry”), denying Mr.
Johnston’s application for an approval to make “changes
in and about a stream.” Mr. Johnston sought an approval
to authorize the placement of fill in a low lying area
of lakefront property.
Mr. Johnston started
placing the fill on portions of his lakefront property
in early February 2008. On February 15, 2008, a
Conservation Officer observed fill being dumped on the
foreshore of the lake, and reported the activity to the
Assistant Manager. The Assistant Manager determined
there were no approvals or licences authorizing the
filling. Mr. Johnston was directed to stop the work and
apply for an approval, which he did.
The Assistant Regional
Manager denied Mr. Johnston’s application on the basis
that the fill would harm or destroy wetland habitat.
In his appeal to the
Board, Mr. Johnston submitted that the area where he
sought to place fill is not “wetland”, and that he needs
to fill the area to provide lake access and protect his
land from high water levels. He also submitted that his
neighbour previously received an approval to fill a
foreshore area.
The Board held that
the area where Mr. Johnston sought to place fill is,
based on its natural features, a “swamp”, which is
synonymous with a “wetland”. The Board held that the
area is a swamp even if it does not contain standing
water year-round. The Board also held that the area is
within the natural boundary of the lake. The Board
concluded that the definition of “stream” in the
Water Act includes a “swamp”, and therefore, the
area in question is subject to the Water Act.
In addition, the Board
found that, when considering an application to make
changes in and about a stream, the decision-maker must
weigh the applicant’s stated purposes for the changes
against the effects on water resources and environmental
values. The Board found that, in this case, the
potential adverse effects on water resources and the
environmental values associated with the area outweighed
Mr. Johnston’s purposes for filling the area. In
particular, the Board found that Mr. Johnston already
had access to the lake, and the fill would not protect
his land given that the existing fill was already
eroding into the lake. In addition, the fill would
destroy valuable habitat that contributes to the lake’s
water quality and supports several wildlife species.
The Board also found that the prior issuance of an
approval to Mr. Johnston’s neighbour involved different
circumstances, and did not provide a basis for granting
Mr. Johnston’s application.
For those reasons, the
Board confirmed the Assistant Manager’s decision to deny
the application for an approval.
Accordingly, the appeal was dismissed.
Decision Date:
February 10, 2009
Panel:
Alan
Andison
Keywords:
Water
Act - s. 1 – definition of “changes in and about a
stream”, 9, 88(1)(d) & (e); engineer’s order;
unauthorized water diversion
Vann Chrysanthous appealed an order
issued on January 31, 2008, by an Engineer under the
Water Act (the “Engineer”), Water Stewardship
Division, Ministry of Environment (the “Ministry”). The
order amended a previous order that required Mr.
Chrysanthous to stop diverting water from an unnamed
stream. The Engineer’s order amended the previous order
by extending the deadline for Mr. Chrysanthous to stop
diverting water from the stream. Mr. Chrtysanthous
requested that the Board reverse the Engineer’s order.
A long history of
events led to this appeal. The unnamed stream flows
through Mr. Chrysanthous’ property to the boundary of
his neighbour’s property. In or about July 1997, Mr.
Chrysanthous’ neighbour diverted the stream without
authorization under the Water Act. During late
1997 through 1998, Mr. Chrysanthous contacted certain
government agencies, including the Ministry, regarding
the unauthorized diversion, and expressed concern about
damage to his fence, the potential for flooding on his
property, and possible damage to an adjacent road as a
result of the diversion. Those agencies, including the
Ministry, requested that the neighbour return the stream
and road bed to their prior state, but the neighbour did
not comply, and the agencies did not follow up.
In May 2007, acting in response to a
complaint from the neighbour that Mr. Chrysanthous had
unlawfully diverted the stream, Ministry staff attended
at Mr. Chrysanthous’ residence with law enforcement
officers and verbally requested that he return the flow
of the stream to its previous state. The present
Ministry staff were unaware, at that time, of the events
that had occurred in the 1990’s. Mr. Chrysanthous did
not comply with the verbal request.
On July 5, 2007, the Engineer issued an
order requiring Mr. Chrysanthous to cease his diversion
of the unnamed stream, and return the water to where it
flowed prior to his unauthorized diversion. Between
July 2007 and January 2008, Mr. Chrysanthous discussed
the matter numerous times with the Engineer.
On January 31, 2008,
the Engineer issued his order amending the July 5, 2007
order. In or about
February 2008, the Engineer became aware of Ministry
photographs and documents from the 1990’s which
indicated that there had been an unauthorized diversion
by Mr. Chrysanthous’ neighbour.
The Board held that
the present situation arose due to unlawful diversions
undertaken by both Mr. Chrysanthous and his neighbour.
In the circumstances, the Board found that the fairest
solution, and the best solution for the environment,
would be to restore the stream to a channel that is as
close as possible to the one it had before those
unauthorized diversions. However, the Board found that
its powers were limited due to the nature of the order
under appeal. Specifically, the order under appeal only
amended the order issued on July 5, 2007 by extending
the deadline for returning the stream to where it had
flowed before. The July 5, 2007 order is a separate
order and Mr. Chrysanthous did not appeal that order.
Consequently, the Board could only address the deadline
set out in the January 31, 2008 order. The Board could
not make a decision that would address the July 5, 2007
order.
In addition, the Board noted that
confirming the January 31, 2008 order would not
adequately address either of the parties’ concerns,
whereas reversing the order would place Mr. Chrysanthous
in immediate non-compliance with the July 5, 2007 order,
such that he may be subject to enforcement action.
Also, confirming the January 31, 2008 order, with a
short extension of time to account for the appeal
process, would result in Mr. Chrysanthous being required
to return the stream to the channel that was created by
his neighbour’s unauthorized diversion.
Under the circumstances, the Board
concluded that the January 31, 2008 order should be
returned to the Engineer with directions to extend the
deadline to March 31, 2010, in order to allow the
Engineer and Mr. Chrysanthous time to consider and
comply with a number of other directions from the
Board. Specifically, the Board directed the Engineer to
consider granting Mr. Chrysanthous an approval under the
Water Act to divert the stream along the course
that has been designed by Mr. Chrysanthous, or to an
alternate acceptable channel on Mr. Chrysanthous’
property. The Board directed that such an approval
should contain requirements to prevent future flood
events and ensure that Mr. Chrysanthous’ property is
protected.
Accordingly, the appeal was allowed.
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