Geoffrey Fox v. Assistant Water Manager

Decision Date: January 11, 2022

Panel: Daphne Stancil

Keywords: Water Sustainability Act - ss. 11, 93; Water Sustainability Regulation - ss. 33, 39; order; unauthorized change in and about a stream; agricultural land

In September 2020, an Assistant Water Manager with the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”) issued an order (the “Order”) under the Water Sustainability Act (the “Act”) to Geoffrey Fox. The Order directed Mr. Fox and a co-owner of property to take certain steps to remediate unauthorized changes that Mr. Fox made to a creek that runs through the property.

The property is within the Agriculture Land Reserve. Mr. Fox and the co-owner purchased the property with the intention of clearing it and creating a vineyard. Foch Creek runs through the property on a seasonal basis. While Mr. Fox was clearing the property in December 2019, he noted water pooling on part of the property, and he used an excavator to make a more defined channel to collect the water and direct it across the property.

In January 2020, Ministry staff attended the property after receiving a complaint regarding the condition of the creek downstream from the property. Ministry staff viewed the creek, advised Mr. Fox of its presence, and advised him not to further disturb the area on the property where water collected.

In February 2020, Ministry staff attended the property and advised Mr. Fox to submit a plan regarding property development and stream protection. In response, Mr. Fox sent an email to the Ministry explaining that he had placed logs along the banks of the creek, ordered material to install a silt fence, proposed plantings along the creek, and planned to install a bridge across the creek. The Ministry replied that the plan was inadequate, but Mr. Fox did not receive the Ministry’s reply.

In July and August 2020, Mr. Fox installed a culvert where the creek enters the property under a highway, installed footings for a bridge across the creek, and used heavy equipment to contour the property and further channelize the creek.

In August 2020, Ministry staff advised Mr. Fox to keep heavy equipment out of the creek. Ministry staff issued a violation ticket to him, and the next day, delivered a stop work order directing him to cease work in and about the creek.

In early September 2020, Ministry staff observed equipment and recent disturbance in and about the creek, and issued two more violation tickets to Mr. Fox.

In mid-September 2020, Mr. Fox planted winter rye adjacent to the creek and distributed cut hay along the banks of the creek.

On September 25, 2020, the Assistant Water Manager issued the Order. It required Mr. Fox and the co-owner of the property to retain a qualified environmental professional to develop a plan addressing the risk of sedimentation from the unauthorized changes in and about the creek, complete the work in the plan by October 16, 2020 with oversight by an environmental monitor. The Order also required them to submit a plan from a qualified environmental professional to the Ministry by November 30, 2020, addressing the long-term remediation of Foch Creek to stabilize its banks and reduce erosion, and complete the work in the plan.

Mr. Fox appealed the Order. He asked the Board to reverse the Order on the basis that the changes in and about the creek were authorized by regulations under the Act and the Agricultural Land Commission Act, and that further remedial steps were unnecessary. He also asked the Board to consider the financial burden of complying with the Order.

The Board found that although a regulation under the Agricultural Land Commission Act authorized Mr. Fox to clear, drain, and level the land adjacent to the creek for agricultural use, it did not authorize him to make changes in and about the creek.

Next, the Board considered whether section 33(2) of the Water Sustainability Regulation authorized the changes in and about the creek. Section 33(2) exempts a person from the requirement under the Act to hold an authorization for the “diversion of water from an aquifer” using agricultural drainage works. Given that section 33(2) only applies to water diversion from an aquifer, the Board found that it did not apply to Mr. Fox’s work in and about the creek.

The Board also considered whether section 39 of the Water Sustainability Regulation authorized the changes in and about the creek. The Board held that modifying the channel of a creek was not one of the activities authorized under section 39(1). Installing a culvert and installing a clear span bridge would be authorized by section 39(1) if specific conditions were met, but those conditions were not met in this case.

Given that there was no regulatory authorization for the changes in and about the creek, Mr. Fox needed to obtain an approval under section 11(1) of the Act before he made those changes. He did not do so, contrary to section 106(2)(b)(ii) of the Act. In those circumstances, the Assistant Water Manager had authority under section 93(2)(e)(i) of the Act to direct Mr. Fox to restore or remediate the changes in and about the creek. The Assistant Water Manager could have ordered Mr. Fox to “restore” the creek, but made a less onerous order requiring him to remediate and mitigate the unauthorized changes. The Board found that the directions in the Order were appropriate in the circumstances, but the deadlines for completion had passed and new dates needed to be set.

In summary, the Board confirmed the directions in the Order, and set new deadlines for completion. The appeal was dismissed.