Decision Date: February 7, 2012
Panel: Blair Lockhart
Keywords: Water Act – s. 12; application for water licence; unrecorded water; spring; unauthorized water use; hydrological assessment
This appeal involved the refusal of an application for a water licence on Roy Seward Spring, located outside of Golden, BC. Roy Seward Spring consists of a number of surface seeps that, together, provide a source of water. The Spring is adjacent to a creek.
There are two water licences on Roy Seward Spring. One licence (the “Helmer Licence”) is held by a company, owned by Wilhelm Helmer, that operates a guest ranch. The Helmer Licence authorizes the diversion of 5,000 gallons per day (“gpd”) from a surface seep at the Spring to the land where the guest ranch is located (the “North East ¼”). Andre Weilenmann and Barbara Friedli (“WF”) hold the second water licence (the “WF Licence”), and they operate a guest lodge. The WF Licence authorizes the diversion of water from two other surface seeps at the Spring to the land where their guest lodge is located.
There is a history of disagreements between Mr. Helmer and WF over water consumption and diversion from Roy Seward Spring. Each blames the other for water shortages, and accuses the other of interfering with their water works.
In 2006, Mr. Helmer applied for an additional licence on Roy Seward Spring, to divert water from a new surface seep to a parcel of land (“Lot 2”) that is jointly owned by Mr. Helmer and his son. He sought to divert 500 gpd for domestic use, and 10,000 gpd or the “remaining total flow” for a pond. WF objected to Mr. Helmer’s application.
In March 2007, WF also applied for a further licence on Roy Seward Spring, authorizing the diversion of 10,000 gpd to support an existing pond on their property. Mr. Helmer objected to WF’s application.
In September 2008, after staff from the Ministry of Environment (now the Ministry Forests, Land and Natural Resource Operations) (the “Ministry”) conducted site visits and meetings with the licensees, the Ministry sent a letter to Mr. Helmer and WF, advising that their licence applications would be held in abeyance until May 2009, and no further licences would be issued on Roy Seward Spring, until they obtained an independent assessment of the water source by a hydrologist and a joint works agreement between all licensees.
Subsequently, additional licence applications on Roy Seward Spring were filed by Mr. Rivet and Mr. Nydr.
In early 2009, Mr. Helmer discovered two additional surface seeps at Roy Seward Spring.
In July 2009, Ministry staff attended at Roy Seward Spring to measure the water flow at all of the diversion points, including some that were unauthorized. Staff found that Mr. Helmer was diverting more water from the Spring than he is authorized to under the Helmer Licence.
In November 2009, the Ministry’s Assistant Regional Water Manager (the “Assistant Manager”) issued a decision refusing Mr. Helmer’s application.
The Assistant Manager issued separate decisions denying the other applications for licences on Roy Seward Spring.
Mr. Helmer appealed the Assistant Manager’s decision regarding his application.
On appeal, Mr. Helmer requested a remedy that was different from what he had sought in his licence application. Specifically, he requested a licence authorizing him to divert approximately 5,000 gpd (instead of 10,500 gpd) to support four ponds on the North East ¼ where his guest ranch is located (instead of a pond on Lot 2).
The Assistant Manager and the Third Parties requested that the Board dismiss the appeal.
The Board found that there is unrecorded water available for licensing at Roy Seward Spring, but there is insufficient information about the sustainability of the surface seeps, the interconnectedness of the various surface seeps at the Spring, and the surface and subsurface sources that may be recharging the Spring, to allow further licensing. The Board also found that there is insufficient water available from the Spring to meet the total demand consisting of the two existing licences plus the amount sought by all applicants for licences. The Board agreed with the Assistant Manager that an independent hydrological assessment should be done before any further licences are issued on the Spring, and the Board found that the assessment had not been done when the appeal was heard. Moreover, the Board found that the remedy requested by Mr. Helmer on appeal was such a significant departure from what he sought in his licence application that it constituted a new request that should be submitted to the Ministry as a new application for a licence. In these circumstances, the Board concluded that the evidence did not support granting a licence to Mr. Helmer, either in the form he originally applied for, or in the revised form he requested during the appeal proceedings.
The Board noted that the Appellant and Third Parties expressed a willingness to share the costs of a hydrological assessment, and seemed sincere in their commitment to resolve the issues of water use from the Spring. The Board offered recommendations to assist the parties in obtaining an independent hydrological assessment of the Spring.
Accordingly, the appeal was dismissed.