• Murray Johnston v. Assistant Regional Water Manager

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    Decision Date: February 12, 2009

    Panel: Gabriella Lang

    Keywords:  Water Act – s. 1 – definitions of “changes in and about a stream”, “natural boundary”, “stream”, 9; fill; swamp; wetland; approval

    Murray Johnston appealed a decision issued on April 11, 2008, by the Assistant Regional Water Manager (the “Assistant Manager”), Cariboo Region, Ministry of Environment (the “Ministry”), denying Mr. Johnston’s application for an approval to make “changes in and about a stream.”  Mr. Johnston sought an approval to authorize the placement of fill in a low lying area of lakefront property.

    Mr. Johnston started placing the fill on portions of his lakefront property in early February 2008.  On February 15, 2008, a Conservation Officer observed fill being dumped on the foreshore of the lake, and reported the activity to the Assistant Manager.  The Assistant Manager determined there were no approvals or licences authorizing the filling.  Mr. Johnston was directed to stop the work and apply for an approval, which he did.

    The Assistant Regional Manager denied Mr. Johnston’s application on the basis that the fill would harm or destroy wetland habitat.

    In his appeal to the Board, Mr. Johnston submitted that the area where he sought to place fill is not “wetland”, and that he needs to fill the area to provide lake access and protect his land from high water levels.  He also submitted that his neighbour previously received an approval to fill a foreshore area.

    The Board held that the area where Mr. Johnston sought to place fill is, based on its natural features, a “swamp”, which is synonymous with a “wetland”.  The Board held that the area is a swamp even if it does not contain standing water year-round.  The Board also held that the area is within the natural boundary of the lake.  The Board concluded that the definition of “stream” in the Water Act includes a “swamp”, and therefore, the area in question is subject to the Water Act.

    In addition, the Board found that, when considering an application to make changes in and about a stream, the decision-maker must weigh the applicant’s stated purposes for the changes against the effects on water resources and environmental values.  The Board found that, in this case, the potential adverse effects on water resources and the environmental values associated with the area outweighed Mr. Johnston’s purposes for filling the area.  In particular, the Board found that Mr. Johnston already had access to the lake, and the fill would not protect his land given that the existing fill was already eroding into the lake.  In addition, the fill would destroy valuable habitat that contributes to the lake’s water quality and supports several wildlife species.  The Board also found that the prior issuance of an approval to Mr. Johnston’s neighbour involved different circumstances, and did not provide a basis for granting Mr. Johnston’s application.

    For those reasons, the Board confirmed the Assistant Manager’s decision to deny the application for an approval.

    Accordingly, the appeal was dismissed.