Keywords:Water Act – ss. 1 definitions of “stream”, “works”, 2(1), 3, 15; conditional water licence; diversion of water; priority rights
The Appellants filed separate appeals against the decision of the Assistant Regional Water Manager to issue a conditional water licence to the Owners of Strata K-180, allowing for the diversion of 15 acre feet of water from Kitley Creek, located north of Kearns Creek, for storage and irrigation (golf course watering). All of the Appellants reside or hold licences on or near Kearns Creek, and claim that Kitley Creek contributes to Kearns Creek. The Appellants argued that there is insufficient water available in Kearns Creek to meet the demands of licensees, wildlife and the community. The Appellants sought to have the Assistant Manager’s decision reversed and the licence cancelled.
The Panel found that Kitley Creek and Kearns Creek are separate and distinct bodies of water for the purpose of the Water Act because there is no natural surface connection between the two watercourses. The Panel noted that the only connection between the two creeks is a man made ditch, which is properly characterized as “works” under the WaterAct. Furthermore, the Panel found that the licensees on Kearns Creek cannot have priority rights over those on Kitley Creek because the creeks are separate streams for the purposes of the Act. Section 15 of the WaterAct outlines the priority system that gives precedence to the licences with earlier priority dates when two licences are for the same stream.
In addition, the Panel found that a water shortage in Kearns Creek in summer 2002 was the result of extremely dry conditions, and not from the licence holder’s use of water, because the licensee used well water to irrigate the golf course during that time.
Therefore, the decision to issue the licence was upheld. The appeals were dismissed.