• Frank Fugger and Gayle Fugger v. Assistant Regional Water Manager

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    Decision Date: June 1, 2001

    Panel: Marilyn Kansky

    Keywords: Water Act — ss. 2, 5, 7, 9, 10, 12(1), 13, 16(1), 20, 42(2), 44; unrecorded water; reservation of water; community water plan; domestic use; owner

    The Appellants appealed the decision of the Assistant Regional Water Manager (“ARWM”) refusing to issue them a water license. The license application was for the use of water from Adams Lake for domestic purposes. They sought an order issuing the license, and a decision that they are entitled to divert water for domestic purposes without a license.

    The ARWM submitted that the Appellants were not owners and could, therefore, not apply for a license. The Board found that Appellants have possession of an interest in land, which is sufficient to establish ownership as defined in the Water Act. The Board referred the matter back to the ARWM for reconsideration, as the license was refused solely on the basis that the Appellants were not owners of the land.

    The Board also found that the Water Act allows for unrecorded water that is subject to a water reservation to be diverted for domestic use without a license. However, the Board found that the Appellants propose to make changes in and about the Lake channel that went beyond merely diverting the water from its channel. As such, the Appellants would need to have an approval before making the proposed changes in and about the Lake channel.

    The appeal was allowed, in part.