Decision Date: April 18, 2001
Panel: Cindy Derkaz
Keywords: Water Act – ss. 1, 2, 18; conditional water licence amendment; duty; fish protection; industrial stockwatering; irrigation; prescription; priority date
This was an appeal by Trevor D. Marshall of the decision of the Assistant Regional Water Manager (“ARWM”) to amend a conditional water licence held by the Alexis Creek Ranch. The original licence authorized the diversion of water to irrigate a portion of a cattle ranch. The amendment authorized industrial stockwatering as an additional purpose, and authorized a trough as part of the works. A new conditional water licence reflecting the amendments was substituted for the existing licence, and had second priority on the stream. Mr. Marshall, who had a third priority licence, sought an order cancelling the substituted licence.
Mr. Marshall argued that, although the new licence authorized less acre-feet of water per annum than did the old licence, the new licence authorized the irrigation of more land and therefore more water would in fact be diverted. The Board found that the number of acre-feet authorized to be used under the licence determines the quantity of water that may be diverted, not the amount of land that will be irrigated. Furthermore, under the amended licence there will be more water available for downstream use.
Mr. Marshall also argued that Alexis Creek Ranch acquired a right to divert or use water by prescription, which is prohibited under section 2 of the Water Act. The Board found that Alexis Creek Ranch did not acquire the right to divert or use water by prescription. It acquired the right to use part of its licenced water allocation for a different purpose. In addition, the ARWM properly considered the relevant information before approving the amendments. Furthermore, the substituted licence is not a new licence, and retains the original licence’s priority date.
Finally, Mr. Marshall expressed concern that fish may be adversely affected by industrial stockwatering. In particular, streambanks may be trampled, thereby causing habitat destruction and contamination of the water. The Board found that the ARWM was not advised that fish inhabited the stream until after he had authorized the amendment. The Board found that the ARWM has the authority to require a licensee to screen the irrigation intake and control the timing of construction. In light of the new evidence showing that fish inhabit the stream, the Board referred the matter back to the ARWM to further amend the licence to include any reasonable and appropriate provisions to protect fish.
The appeal was dismissed.