Decision Date: April 19, 2018

Panel: John M. Orr, Q.C.

Keywords: Water Sustainability Act – ss. 5(3), 6(3)(a), 9; licence; irrigation use; unlicensed water use

Karen Nonis owns a property in the City of Kelowna (the “City”), on the shore of Okanagan Lake. Dan Nonis purchased the property in 1992, and Ms. Nonis was later added to the title of the property. When Mr. Nonis purchased the property, it had a system to draw water from Okanagan Lake. The water system and associated water use were unlicensed. Nevertheless, over the years, the property owners did extensive landscaping on the property, and continued to irrigate their trees and plants with water from the Lake.

In March 2017, Ms. Nonis received approval to replace a lakeshore retaining wall on the property. However, during an inspection by staff from the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”), the unlicensed water works were noted. The Ministry advised Ms. Nonis that she had to apply for a water licence if she wanted to continue to draw water from the Lake.

In April 2017, Ms. Nonis applied for a licence to divert 3,520 cubic metres of water from the Lake between May and September of each year, to irrigate 0.45 hectares of land.

On reviewing her licence application, the Ministry’s Assistant Regional Water Manager (the “Water Manager”) calculated the property’s arable area to be 0.233 hectares rather than 0.45 hectares, after eliminating areas covered by structures, driveway, and a pool. The Water Manager estimated that the amount of water needed to irrigate that area would be 1819 cubic metres, about half of the amount requested. In addition, the City advised the Water Manager that the City’s water system, and size of the property’s piping connected to that system, was sufficient to irrigate that area.

In July 2017, the Water Manager denied the licence application on the basis that Ms. Nonis had access to sufficient water from the City to meet the property’s irrigation needs, and there was no need to draw water from the Lake.

Ms. Nonis appealed the Water Manager’s decision on a number of grounds. Among other things, she submitted that she was required to plant at least 100 riparian plants and 11 trees as part of the approval to replace her retaining wall, and the City’s water system could not provide sufficient water for irrigation without enlarging the property’s connection to the system.

The Board found that although there was a history of the property’s owners using water from both the City system and the Lake, there was no question that the use of Lake water was unlicensed and unauthorized. Under the Water Sustainability Act, no right to divert or use water may be acquired by prescription (i.e., use over time). Although the use of unrecorded water for “domestic purpose” is permitted without a licence in certain circumstances under section 6(3)(a) of the Water Sustainability Act, “domestic purpose” as defined in section 2 of that Act does not include irrigating large areas of landscaping. The evidence showed that the City’s water system, and the property’s connection to it, was sufficient to meet the property’s irrigation needs, and there was no need to draw water from the Lake. The Board also found that denying the application for a licence was consistent with the scheme of the Water Sustainability Act and the public interest in conserving and managing water in Okanagan Lake.

Accordingly, the appeal was dismissed.