Panel: Carol Quin, Katherine Hough, Helmut Klughammer
Keywords:Water Act, s. 40(7); order; flooding; excavation; channel; stream; works
Two appeals were filed against the decision of the Assistant Regional Water Manager (“ARWM”) to order Shirley Daigle to restore the natural flow of water on her property by excavating an adequate channel. The stated reasons for issuing the order included that Mrs. Daigle had, by filling in a “stream channel”, caused flooding on adjacent land owned by the Olivers. The Olivers alleged that, by culverting a ditch that ran through her property, Mrs. Daigle had obstructed the flow of water from their property. Mrs. Daigle sought an order reversing the ARWM’s decision, while the Olivers sought an order varying the ARWM’s decision on the ground that it did not go far enough to alleviate flooding on their property.
The Board found that there had always been a natural flow of water through the two properties that met the definition of a “stream” under the Water Act. The rerouting or altering of the natural stream through ditching without a water licence did not change the finding that there was, in law, a natural watercourse. The ARWM therefore had authority under the Water Act to order the restoration or remediation of any changes in and about the stream.
The Board found that, by constructing the bucket culvert and associated works, Mrs. Daigle made changes in and about the stream. These changes contributed to the flooding of the Olivers’ meadow. As such, the Board found that the ARWM properly exercised his authority in ordering Mrs. Daigle to remediate the stream. The Board found, however, that it would be unjust to order Mrs. Daigle to construct a ditch providing superior drainage than had existed prior to the installation of the bucket culvert. The Board altered the ARWM’s order to reflect the Board’s findings and to resolve other ambiguities. The appeals were dismissed.