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Appeals from the Water Act 2018


2018-WAT-001(a) Bruce Gibbons v. Assistant Water Manager (Christopher MacKenzie and Regula Heynck, Third Parties)

Decision Date: June 19, 2018

Panel: Alan Andison

Keywords: Water Sustainability Act – s. 105(1); water licence; groundwater; riparian owner; preliminary decision; standing

In November 2017, the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resources and Rural Development, issued a groundwater licence (the “Licence”) to Christopher MacKenzie and Regula Heynck (the “Third Parties”). The Licence authorized the Third Parties to divert and use up to 10 cubic metres per day of water from Aquifer 408 for industrial purposes; i.e., fresh water bottling. The Third Parties own a small acreage in a rural area, and a groundwater well was drilled on the property before the Licence was issued. Bruce Gibbons owns land approximately ¼ mile away from the Third Parties’ property. His land also has a groundwater well.

When the Licence was issued, no other licences had been issued for Aquifer 408, and only one licence application was outstanding. The Province did not begin to regulate non-domestic groundwater use until 2016. A three-year transition period for existing domestic groundwater wells allows land owners to receive groundwater licenses if applications are filed by March 1, 2019.

Mr. Gibbons was not notified when the Licence was issued. He found out about the Licence a few months later, when the Third Parties applied to re-zone their property to permit “water and beverage bottling”.

In March 2018, Mr. Gibbons appealed the Licence on a number of grounds. He argued that: the Licence was approved without adequate baseline data; Aquifer 408 is located in a rural area where residents, farmers and agricultural operations rely on the aquifer for water; and, fish habitat in local creeks and rivers depends on the Aquifer during droughts. He also submitted that he was directly affected by the Licence, because he relies on a groundwater well for drinking water.

Before the appeal was heard, the Water Manager challenged Mr. Gibbons’ standing to appeal the Licence. Specifically, the Water Manager submitted that Mr. Gibbons did not qualify as an appellant under section 105(1) of the Water Sustainability Act (the “Act”), because he was not “an owner whose land is or is likely to be physically affected by” the Licence, a “riparian owner”, an authorization holder, or an applicant for an authorization. Since Mr. Gibbons was not an authorization holder or an applicant for an authorization, the Board focused on whether Mr. Gibbons was an owner whose land was or was likely to be physically affected by the Licence, or was a riparian owner.

The Board held that Mr. Gibbons was not “an owner whose land is or is likely to be physically affected” by the Licence within the meaning of section 105(1)(b) of the Act. The Board found that there was insufficient evidence to establish, on a prima facie basis, reasonable grounds to conclude that Mr. Gibbons’ land was, or would likely be, physically affected by the Licence. Mr. Gibbons provided no information about his well, such as its depth, the amount of water he draws, or how any impact on the flow of water from his well might “physically affect” his land. The Board noted that, based on the language in section 105(1)(b) of the Act, it is his land that must be affected, or be likely to be affected, as opposed to his water supply.

The Board also found that there was insufficient evidence to conclude that Mr. Gibbons was “a riparian owner” within the meaning of section 105(1)(d) of the Act. The phrase “riparian owner” is not defined in the Act, but under common law principles it means a person who owns land that is abutting, adjacent to, or bordering on and in contact with a stream that has a defined channel. The phrase has not been used in relation to groundwater. The Board found that Mr. Gibbons provided no evidence that his land is adjacent to any particular stream, especially a stream that is hydraulically connected to Aquifer 408. In addition, the Water Manager’s evidence showed that Aquifer 408 is probably a confined aquifer, and is unlikely to be connected to a stream.
 
For all of those reasons, the Board concluded that Mr. Gibbons had no standing to appeal the Licence, and therefore, the Board had no jurisdiction over the appeal.

Accordingly, the appeal was dismissed.

2017-WAT-010(a) Karen Nonis v. Assistant Regional Water Manager

Decision Date: April 19, 2018

Panel: John M. Orr, Q.C.

Keywords: Water Sustainability Act – ss. 5(3), 6(3)(a), 9; licence; irrigation use; unlicensed water use

Karen Nonis owns a property in the City of Kelowna (the “City”), on the shore of Okanagan Lake. Dan Nonis purchased the property in 1992, and Ms. Nonis was later added to the title of the property. When Mr. Nonis purchased the property, it had a system to draw water from Okanagan Lake. The water system and associated water use were unlicensed. Nevertheless, over the years, the property owners did extensive landscaping on the property, and continued to irrigate their trees and plants with water from the Lake.

In March 2017, Ms. Nonis received approval to replace a lakeshore retaining wall on the property. However, during an inspection by staff from the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”), the unlicensed water works were noted. The Ministry advised Ms. Nonis that she had to apply for a water licence if she wanted to continue to draw water from the Lake.

In April 2017, Ms. Nonis applied for a licence to divert 3,520 cubic metres of water from the Lake between May and September of each year, to irrigate 0.45 hectares of land.
 
On reviewing her licence application, the Ministry’s Assistant Regional Water Manager (the “Water Manager”) calculated the property’s arable area to be 0.233 hectares rather than 0.45 hectares, after eliminating areas covered by structures, driveway, and a pool. The Water Manager estimated that the amount of water needed to irrigate that area would be 1819 cubic metres, about half of the amount requested. In addition, the City advised the Water Manager that the City’s water system, and size of the property’s piping connected to that system, was sufficient to irrigate that area.

In July 2017, the Water Manager denied the licence application on the basis that Ms. Nonis had access to sufficient water from the City to meet the property’s irrigation needs, and there was no need to draw water from the Lake.

Ms. Nonis appealed the Water Manager’s decision on a number of grounds. Among other things, she submitted that she was required to plant at least 100 riparian plants and 11 trees as part of the approval to replace her retaining wall, and the City’s water system could not provide sufficient water for irrigation without enlarging the property’s connection to the system.

The Board found that although there was a history of the property’s owners using water from both the City system and the Lake, there was no question that the use of Lake water was unlicensed and unauthorized. Under the Water Sustainability Act, no right to divert or use water may be acquired by prescription (i.e., use over time). Although the use of unrecorded water for “domestic purpose” is permitted without a licence in certain circumstances under section 6(3)(a) of the Water Sustainability Act, “domestic purpose” as defined in section 2 of that Act does not include irrigating large areas of landscaping. The evidence showed that the City’s water system, and the property’s connection to it, was sufficient to meet the property’s irrigation needs, and there was no need to draw water from the Lake. The Board also found that denying the application for a licence was consistent with the scheme of the Water Sustainability Act and the public interest in conserving and managing water in Okanagan Lake.

Accordingly, the appeal was dismissed.

2017-WAT-014(a) Bernard Wohlleben v. Assistant Water Manager (Joan Kyba, Preston Lenko, Janet Garland, Michael Lenko, and Mabel Lanko (collectively, the “Lenko Family”), and Tammy Lofstrom, Third Parties)

Decision Date: April 16, 2018

Panel: Cindy Derkaz

Keywords: Water Sustainability Act – s. 93(2)(d); Administrative Tribunals Act – s. 25; order; stay; preliminary decision; dam; flooding; RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)

This stay application was part of a long-running dispute between Bernard Wohlleben and the Lenko Family concerning flooding on the Lenko Family’s waterfront property on Gabriola Island, BC. Mr. Wohlleben and Tammy Lofstrom own a waterfront acreage adjacent to the Lenko Family’s property. Martin Brook is a seasonal stream that flows through both properties and then into the ocean.

In 1994, a former water manager with the Ministry (now the Ministry of Forests, Lands, Natural Resource Operations, and Rural Development) issued a water licence and a permit to occupy Crown land, which authorized the construction of a dam on the Crown foreshore and the property of Mr. Wohlleben and Tammy Lofstrom, at the mouth of Martin Brook. The purpose of the dam was to store fresh water from Martin Brook for irrigation and stockwatering.

After the dam was built, the Lenko Family complained that the dam caused unauthorized flooding on their property. In response, Mr. Wohlleben insisted that the flooding was on Crown land, and was authorized by the water licence and the permit authorizing the occupation of Crown land. At the heart of the dispute was a disagreement about the location of the legal boundary between the private property and the Crown-owned foreshore.

In 2002, a former water manager issued an order cancelling the water licence and requiring the dam to be removed (the “2002 Order”). Mr. Wohlleben appealed the 2002 Order to the Board. In deciding that appeal, the Board found that although the dam may cause some flooding above the natural boundary of the Crown foreshore, there was insufficient evidence to reach a conclusion about the location of the boundary (Wohlleben v. Assistant Regional Water Manager, (2002-WAT-034(b)), May 15, 2003). The Board reversed the 2002 Order.

Subsequently, the former water manager reconsidered the matter, and found that the dam caused flooding above the natural boundary of the Crown foreshore. In 2004, he issued another order (the “2004 Order”) cancelling the water licence, and ordering the removal of the dam by September 30, 2004. Mr. Wohlleben did not appeal that order, and did not remove the dam.

In September 2017, the Ministry notified Mr. Wohlleben that it expected him to comply with the 2004 Order, and requested confirmation of his plans by the end of September 2017.

In November 2017, the Assistant Water Manager (the “Water Manager”) issued a further order (the “2017 Order”), requiring Mr. Wohlleben and Ms. Lofstrom to remove the dam. The 2017 Order required them to retain professionals to prepare plans to remove the dam and to restore Martin Brook. The 2017 Order further required the dam and related works to be removed, and for Martin Brook to be restored, during the summer of 2018, with all work to be completed by no later than September 28, 2018.

Mr. Wohlleben appealed the 2017 Order to the Board, and applied for a stay pending the Board’s final decision on the merits of the appeal.

In determining whether a stay ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General).

With respect to the first stage of the test, the Board considered whether the appeal raised serious issues to be decided, which were not frivolous, vexatious or pure questions of law. Mr. Wohlleben submitted that the appeal raised the same serious issue as in his 2002 appeal: i.e., what is the correct legal boundary between private property and the Crown foreshore. He submitted that the answer to that question was critical to the issue of whether the dam caused flooding of the Lenko property. Mr. Wohlleben submitted that the 2004 Order was incorrect, and he requested that the Board overturn the 2004 Order and the 2017 Order.

The Water Manager submitted that the appeal was “frivolous” and raised no serious issue to be tried, because the 2004 Order cancelled the water licence, and therefore, Mr. Wohlleben had no authority to maintain the dam and store water. The appeal period for the 2004 Order expired long ago, and the Board had no jurisdiction to reverse or vary the 2004 Order. Also, the 2004 Order was not reversed or replaced by the 2017 Order.

The Board found that the 2004 Order cancelled the water licence that authorized the dam and related works. Mr. Wohlleben did not appeal that order. Once the licence was cancelled, Mr. Wohlleben had no authority to maintain the dam or to store water from Martin Brook. The 2017 Order did not revisit the licence cancellation; it only addressed the removal of the unauthorized dam and the restoration of Martin Brook. Therefore, the Board could not reconsider the cancellation of the licence. The Board concluded that the appeal, as filed, was “frivolous”, and Mr. Wohlleben had not established a serious issue to be decided.

Given those findings, the Board did not need to consider the second part of the RJR MacDonald test. However, for greater certainty, the Board found that Mr. Wohlleben had failed to show that he would suffer irreparable harm if the stay was denied and he was required to provide the plans required by the 2017 Order prior to the Board’s final decision on the merits of the appeal.

Given the findings on the first and second parts of the RJR MacDonald test, the Board found that it did not need to address the third part of the test. However, the Board would have found that the balance of convenience favoured denying the stay.

Accordingly, the application for a stay was denied.

2017-WAT-007(a) Doug and Donna Halstead v. Water Manager (Patricia Frass, Participant)

Decision Date: April 6, 2018

Panel: James S. Mattison

Keywords: Water Sustainability Act – ss. 1 – definition of “environmental flow needs”, 14, 15; licence; groundwater; irrigation; aquifer; fish

In 2016, Doug and Donna Halstead (the “Appellants”) purchased a farm in the Bessette Creek watershed. There have been water allocation restrictions on Bessette Creek since 1965. The Bessette Creek watershed supports fish populations including salmon and rainbow trout. The farm had a spring which was already licensed for household use. The previous landowners sometimes allowed the spring to flood irrigate portions of a hayfield on the property. The Appellants intended to clear more of the property, to increase hay production. The Appellants did not purchase the property until after they had a test well drilled and tested.

In October, 2016, the Appellants applied for a “New Groundwater Licence” that would authorize the withdrawal of 160,000 m3 (cubic metres) of water per year from Aquifer 318 during May to September, to irrigate 40 hectares. The Appellants retained Western Water Associates Ltd. (“WWAL”) to provide the technical information supporting the application.

The Appellants’ application was reviewed by staff from the Ministry of Forests, Lands, Natural Resources and Rural Development (the “Ministry”). The Ministry staff requested further information from WWAL regarding Aquifer 318 and the direction of groundwater flow. Ministry staff met with WWAL staff to discuss the degree of connectivity between Aquifer 218 and Bessette Creek.

Ministry staff also reviewed a report prepared by a Ministry contractor that considered the environmental flow needs in Bessette Creek (the “EFN Report”). The EFN Report was prepared after a three-year program of flow monitoring and weighted useable habitat width calculations for environmental flows in the watershed. Based the EFN Report, the Ministry staff were concerned that, from July through October, stream flows in Bessette Creek were sufficient for salmon migration and spawning only about 50% of the time. During dry years, flows were typically below the level needed for salmon rearing, and well below the flows needed for salmon migration and spawning.

In March 2017, Ministry staff advised the Appellants and WWAL that Aquifer 318 is likely connected to Bessette Creek, and therefore, the Ministry was required to consider how water extraction under the proposed licence may impact the Creek’s environmental flow needs. The Ministry staff found that, although the water to be extracted may be a small fraction of the flow in the Creek, the Creek’s environmental flow needs were already compromised, and further licensing would exacerbate the issue. The Ministry advised the Appellants that their application would likely be reused, but offered to keep the application on hold if they wanted to explore options that might address the Ministry’s concerns. The Appellants declined the offer to keep the application on hold.

In June 2017, the Water Manager denied the Appellants’ licence application, on the basis that Bessette Creek is reasonably likely to be hydraulically connected to Aquifer 318, and there is insufficient flow in Bessette Creek to meet environmental flow needs.

The Appellants appealed the Water Manager’s decision on a number of grounds, including that the Ministry provided inadequate information and communication before accepting the Appellants’ application, which caused them to incur unnecessary expenses when the decision to refuse the licence had already been made. They also argued that the effect of pumping from the well would probably be unmeasurable, and would not coincide with the low-flow periods in Bessette Creek due to an expected time lag between pumping and when groundwater would reach the Creek. The Appellants requested that the Board grant a licence for 80,000 m3 per year, half the volume they had originally requested.

The Board found that the Ministry provided more than adequate information to, and communication with, the Appellants and WWAL during the process of considering the licence application. The Ministry did not cause the Appellants to incur unnecessary expenses, and the Water Manager’s decision was not made before they filed their application. The Appellants apparently relied on incorrect comments from their well driller that obtaining a water licence was just a formality. Decision-makers under the Water Sustainability Act must carefully assess the potential impacts of a proposed water licence, and there is no guarantee that an application will be granted. The Appellants acted at their own risk when they purchased the property and invested in a farming operation without first obtaining a water licence that could provide the irrigation water they needed.

In addition, based on the evidence, the Board found that Aquifer 318 is reasonably likely to be hydraulically connected to Bessette Creek, and the streamflow in Bessette Creek is already below target environmental flow needs during the early spring and late summer in average years, and conditions worsen during drought years. Although the amount of streamflow depletion associated with the requested licence was difficult to measure, the Board found that granting the licence presented a risk of additional harm to the proper functioning of the Creek’s aquatic ecosystem. Thus, granting a licence to withdraw 80,000 m3 per year would be contrary to the protection of Bessette Creek’s environmental flow needs.

Finally, the Board recommended that the Ministry consider designating Aquifer 318 as fully recorded for licensing purposes, or alternatively, designating the Bessette Creek watershed under section 65 of the Water Sustainability Act for the purpose of developing a water sustainability plan.

Accordingly, the appeal was dismissed.

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