Decision Date: January 25, 2006
Panel: Lynne Huestis
Keywords: Water Act – sections 5, 11 and 12; beneficial use, stream flow measurements, water seepage and evaporation, public objections
The B.C. Cattle Co. Ltd. (the “Appellant”) appealed the refusal of a water licence application that would have allowed it to divert and use water out of Big Bar Creek, Fiftynine Creek, and Fiftyseven Creek. The Assistant Regional Water Manager (the “Regional Manager”) from Land and Water British Columbia Inc. refused the application on the basis that there was insufficient available water to support the Appellant’s proposed diversion.
The Appellant asked the Board to approve its water licence application, or send the matter back to the Regional Manager with directions to reconsider the water licence application.
After considering all the evidence, the Board found that there was insufficient unrecorded water available to support the diversion of water for which the Appellant had applied. The Board found that there were no grounds to conclude that the water available under another licensee’s conservation licence should have been made available to the Appellant, and that there was no legislative basis on which to “double licence” water to the Appellant and any other licensee. The Board also concluded that stream flow measurements for Big Bar Creek taken in 2005 should not form the basis for the assessment of the Appellant’s application, as many streams in the southern interior of British Columbia exhibited unusually high freshet flows in 2005. The Board concluded that such unusually high flows would not be representative of the actual availability of water in those streams.
The Board found that the downstream licensed demand is not less than the Regional Manager had believed. In that regard, the Board held that there was no basis to conclude that the abandonment of a power licence in 1991 made additional water available downstream from the Appellant’s location.
In regard to the Appellant’s question as to the relevance of public objections to its water license application, the Board found that they were relevant and that, consequently, they had to be taken into account in the assessment of the Appellant’s application. The Board also found that the Appellant had not adequately addressed valid concerns raised in the objections.
Finally, the Board found that the Regional Manager did not err in concluding that the Appellant would be able to make beneficial use of the water due to substantial losses from evaporation and seepage, and the high alkalinity of the lake in which the water would be stored. On the question of beneficial use, the Board also found that, although the Appellant’s application was considered jointly with another water application, the Appellant’s application was considered on its own merits and was, therefore, not prejudiced.
The appeal was dismissed.