Decision Date: April 25, 2012

Panel: Cindy Derkaz, Les Gyug, Reid White

Keywords: Water Act – ss. 18(1)(e), 88(1); order; unauthorized diversion; licence amendment; error in a licence

On June 27, 2011, the Assistant Regional Water Manager (the “Regional Manager”), Cariboo Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), issued an order to Dr. Julia Low Ah Kee Inc. (the “Appellant”). The order requires the Appellant to restore the flow of Chavez Creek by removing a “blockage” or berm that was diverting all of the surface water in Chavez Creek to a ditch that connected to Cedar Creek. The diverted water eventually flowed to Lot 167, which the Appellant purchased in 2010.

The Appellant holds a conditional water licence (the “Licence”) that is appurtenant to Lot 167. The Licence allows a maximum of 18,502.35 cubic metres (15 acre feet) of water per year to be diverted for irrigation purposes, from April 1 to September 30. Paragraph (a) of the Licence states that the water rights are granted on “Cedar Creek.” Paragraph (b) of the Licence refers to a point of diversion located on a map attached to the Licence. Paragraph (h) of the Licence describes the authorized works as “diversion structure, ditch, pipe, pump and sprinkler system, which shall be located approximately as shown” on the map attached to the Licence.

In May 2011, the Applicant’s contractor cleared some vegetation from Cedar Creek. In June 2011, Ministry staff investigated the site in response to a public inquiry. Ministry staff found an alleged illegal diversion that was directing water from Chavez Creek into a ditch connected to Cedar Creek. The Regional Manager issued the order after determining that the Appellant’s License authorizes water diversion out of Cedar Creek, but not out of Chavez Creek.

The Appellant appealed the order, and requested a stay of the order pending a decision from the Board on the merits of the appeal. After considering written submissions, the Board granted the stay application (Decision No. 2011-WAT-008(a), issued August 10, 2011).

The Regional Manager and the Participants opposed the appeal, and requested that the order be confirmed. The Participants Doug E. Schuk and Jackson Sandford Hart hold water licences on Chavez Creek downstream of the blockage.

The Appellant submitted that the “blockage” and ditch were built decades ago by a previous owner of Lot 167, and were unauthorized works when they were built but are authorized under the Licence, which was issued in 2009. The Appellant also submitted that removing the berm would result in no water being available for irrigation on Lot 167. The Appellant requested that the Board rescind the order, and rename the creek above the berm as Cedar Creek. Alternatively, the Appellant requested that the Board amend the Licence to state that the water source is Chavez Creek. The Appellant also requested that the Board provide directions with respect to monitoring water use on Chavez Creek.

Based on the evidence presented at the hearing, the Board found that the work done on the Appellant’s behalf in May 2011 did not cause the blockage on Chavez Creek, or the diversion of water into the ditch leading to Cedar Creek. Rather, the blockage was constructed as early as 1961, when a berm was built to divert the entire normal flow of water from Chavez Creek into the ditch that flows into Cedar Creek. The Board found that the maintenance work done in May 2011 did not change the effect of the berm during normal surface water flows in Chavez Creek.

In addition, the Board found that although paragraph (a) of the Licence states that it grants rights on Cedar Creek, paragraph (b) of the Licence refers to a diversion point on a map attached to the Licence, and the map shows a diversion point on Chavez Creek. Also, a map from the Ministry’s water rights database shows the diversion point as being on Chavez Creek. Further, the “diversion structure and ditch” authorized in paragraph (h) of the Licence is the berm and ditch located at the diversion point indicated on those maps. Based on the evidence, the Board concluded that the Licence authorizes the diversion of water from Chavez Creek.

Next, the Board considered whether the order should be reversed, taking into account the water rights of all persons who may be affected, and the objectives and purposes of the Water Act including the impacts on fish and fish habitat. The parties’ evidence regarding the geology of the area and historical water flows indicated that most of the surface flow that is diverted from Chavez Creek seeps back into Chavez Creek within a short distance of the diversion. There was no evidence that the work done in May 2011 altered the seepage back into Chavez Creek, or that reduced water flows experienced in recent Summers by downstream licensees on Chavez Creek were caused by the diversion, which has been in place for many decades. Further, there was no evidence that the diversion had any impact on fish or fish habitat, or that the flows in Chavez Creek do not meet the minimum necessary to support fish and fish habitat. Additionally, there was no evidence as to what would happen to the water regime and the environment if the berm was removed, given that it had been in place for decades. Based on all of the evidence, the Board held that the order should be reversed.

Regarding the remedies sought by the Appellant, the Board found that paragraph (a) of the Licence should be amended to state that the water rights are granted on Chavez Creek and Cedar Creek. The Board declined to require monitoring of water use on Chavez Creek or Cedar Creek, but noted that the Regional Manager may require monitoring in the future. The Board referred the matter back to the Regional Manager with directions to amend the Licence.

Accordingly, the appeal was allowed.