Decision Date: September 9, 1999
Panel: Marilyn Kansky
Keywords: Water Act – ss. 1, 9; stream; “changes in and about a stream”; removal of gravel; fish; fish habitat; precautionary approach
Doug Horth appealed a decision of the Water Manager to refuse Mr. Horth’s application for approval to make changes in and about the Cheekye River. Mr. Horth sought an order to allow the removal of gravel from the river.
Mr. Horth was concerned that erosion of the bank of the river, which he submitted was being caused by the bedload (gravel) positioning in the riverbed and by the configuration of the riverbank, would eventually result in the flooding and destruction of an eight year old tree plantation on his Woodlot Licence. He advised the Board that the potential for flooding was also of concern to private property owners in the area. He submitted that removal of the gravel would correct this problem, and that it would also facilitate the construction of a new bridge that would allow access for logging trucks to the northeast bank of the river. He argued that this was important as it would facilitate the fulfillment of his responsibilities under the Woodlot Licence to establish and manage plantations on the woodlot.
The Water Manager responded that the Ministry of Environment, Lands and Parks objects to the removal of gravel from rivers because of the negative impacts on fish and fish habitat. He added that the Fish, Wildlife and Habitat Protection Branch takes a precautionary approach in protecting fish habitat with respect to applications for gravel removal from streams, and that it does not support gravel removal if buildings or structures are not at risk. With regard to the Cheekeye River in particular, the Water Manager submitted that the river is inherently unstable and that it is inadvisable to exacerbate the natural instability by removing gravel from the river.
The Board found that the removal of gravel from the river would cause an impact on fish and fish habitat, although the extent of the potential damage could not be predicted due to the vagueness of the estimate in Mr. Horth’s proposal of how much gravel would be removed. The Board also found that there was no evidence before it to indicate the existence or potential of an emergency threat to homes or other structures from flooding that would justify the removal of the gravel. The Board noted Mr. Horth’s concerns about his responsibilities under the Woodlot Licence, but found that the question of the construction of the bridge and other works would have to be considered in a separate application under section 9 of the Water Act.
The Board found that the Water Manager had the authority to refuse approval for the removal of gravel from the river and that his decision was reasonable. The appeal was dismissed.