Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO. 99-WAT-32(a) and 36(a) In the matter of an appeal to the Environmental Appeal Board under section 40 of the Water Act, R.S.B.C. 1996, c BETWEEN: Shirley M. Daigle APPELLANT AND: Assistant Regional Water Manager RESPONDENT AND: Judith and David Oliver THIRD PARTY BEFORE: DATE OF HEARING: A Panel of the Environmental Appeal Board Judith Lee, Panel Chair Conducted by way of written submissions concluding on September 3, 1999 APPEARING: For the Appellant: Shirley M. Oliver For the Respondent: For the Third Party: W.S. Klopp Judy Oliver STAY DECISION APPLICATION On July 6, 1999, W.S. Klopp, Assistant Regional Water Manager, issued an order (the Order ) to Shirley M. Daigle to excavate a channel to drain water from a meadow area on an adjacent property. The Order provides that the channel shall be constructed by September 15, Ms. Daigle appealed the Order and requested a stay of the Order under section 40(7) of the Water Act. Judy and David Oliver, the adjacent property owners who sought to have the meadow area drained, have also appealed the Order (Appeal No. 99-WAT-36). BACKGROUND This appeal arises from an ongoing dispute between adjacent property owners as to the original directions of water flow in an area where natural drainage patterns have been altered by humans, and raises the issues of what steps should be taken to alleviate flooding of a formerly cultivated meadow which is now flooded, and who should take those steps. On several occasions, the land owners have reached an apparent agreement, but one or both of the parties has subsequently repudiated the agreement.

2 APPEAL NO. 99-WAT-32(a) and 99-WAT-36(a) Page 2 Ms. Daigle is the registered owner of District Lot 2727, Lillooet District ( Lot 2727 ). Judith and David Oliver own District Lot 2968, Lillooet District ( Lot 2968 ), which is adjacent to and north of Lot According to a report dated June 29, 1999 by Ken Kvist of the Cariboo Region Water Management office, the southeast ¼ of Lot 2968 was historically a meadow, free of surface water for most of the year. To control water levels in the meadow, previous landowners appear to have excavated a ditch through the meadow, and then either further excavated an existing stream channel or dug a ditch extending south of the meadow towards Lot 2727, to control water levels in the meadow. Although the true origin of this drainage channel is a point of contention in this appeal, it is clear that the Olivers cultivated hay in this meadow until approximately Sometime between 1990 and 1996, the meadow became permanently flooded, and the Olivers are now unable to cultivate the meadow. Both Ms. Daigle and the Olivers were issued Water Licences on June 22, The Olivers were issued Water Licence C101380, for the diversion and use of water from East Pond and Leah Pond, both in the southeast ¼ of Lot 2968, for irrigation purposes. Leah Pond is located at the north end of the meadow, and the main area of flooding is south of Leah Pond. Ms. Daigle was issued Water Licence C101330, which authorizes storage and rediversion of water in Bing Pond and Bang Pond, both in the northeast ¼ of Lot 2727, for irrigation purposes. Licence C also allows the diversion of water from Buffalo Creek, which flows through Lot 2727, to fill Bang Pond, located north of Buffalo Creek. Bing Pond flows into Bang Pond. Beginning in 1992, prior to issuance of Licence C101330, Shirley and Roger Daigle filled in the drainage channel flowing from the meadow to Bing Pond, and replaced it with a buried culvert made of buckets placed end to end. By doing so, the Daigles may have curtailed the natural flow of water. In 1996, the Olivers applied to amend Licence C101380, to provide for drainage of the meadow via existing ditches from East Pond and Leah Pond and the culvert in the northeast corner of Lot The Daigles objected to the amendment, expressing concerns about potential flooding on their property by water draining from Lot Water Management staff inspected the area in May 1996, but it appears that they were unable at that time to determine the original lay of the land or direction of water flow. On April 16, 1997, Water Licence C was issued to the Olivers. This licence authorized additional improvements to drain the meadow, including a diversion structure, ditch and pipes. Water was to be piped within the northeast ¼ of Lot 2727 to the ground surface where the Daigles had filled the ditch. On May 1, 1997, the Daigles appealed the issuance of Licence C on a number of grounds. Water Management staff negotiated with both the Daigles and the Olivers, and as a result, the Oliver s Licence C was replaced with Water Licence C on October 17, Under the new licence, drainage water from the meadow was to be piped south to Bing Pond, rather than being discharged on the ground near the Daigles corral area, and a control gate was to be placed on the drainage pipe.

3 APPEAL NO. 99-WAT-32(a) and 99-WAT-36(a) Page 3 However, this did not rectify the situation. Shortly after Licence C was issued, and continuing through the spring of 1999, the Olivers made several complaints to Water Management staff. They expressed concern that the works authorized under Licence C did not address the flooding issue, and that the Daigles filled in the drainage channel on Lot 2727 every spring when water from melting snow began to flow. To date, the Olivers have had an area surveyed for installation of the drainage pipeline, but no works have been installed. Initially, Water Management staff took the position that the Olivers licence allows them to pump water for irrigation and install drainage for the meadow, but they have failed to do so. However, Water Management staff agreed to further investigate the matter. They examined air photographs to determine historical water levels and flows in the area, and information from former land owners regarding the area s history. On April 20, 1999, the Respondent, Mr. Klopp, and Mr. Kvist, also of the regional Water Management office, inspected Lots 2968 and 2727 to examine the conditions and directions of water flow. On July 6, 1999, Mr. Klopp ordered Ms. Daigle to excavate a channel to drain the meadow, pursuant to his powers as an Engineer under section 39 of the Water Act. Specifically, she was ordered to: 1. Excavate a channel, of adequate dimensions to convey the flow of water between the Southeast ¼ of District Lot 2968, Lillooet District and Bing Pond within the Northeast ¼ of District Lot 2727, Lillooet District; 2. The invert at the upstream end of the channel shall be a minimum of 6 inches (150 mm) below the ground level on the meadow; 3. The channel shall be at a uniform grade between the upstream and downstream ends; 4. The water retained in the meadow area shall be released in a controlled manner to minimize erosion and avoid inconvenience; 5. The side slopes of the channel shall be a minimum of 2:1 (h:v), and the bottom width a minimum of 12 inches (30mm); 6. Once constructed, the side slopes shall be seeded with grass immediately, and willow shoots placed along the slopes to assist in stabilizing; 7. Complete the works to the satisfaction of an Engineer under the Water Act by September 15, Ms. Daigle appealed the Order, and requests a stay of the Order until such time as she can afford to put in a deeper well, or secure a water licence on the unnamed stream. Despite the history of disputes, this appears to be the first appeal to the Board regarding this matter. The Respondent has offered no submissions regarding a stay of the Order.

4 APPEAL NO. 99-WAT-32(a) and 99-WAT-36(a) Page 4 The Olivers oppose a stay of the Order. RELEVANT LEGISLATION Section 40(7) of the Water Act states: An appeal does not act as a stay or suspend the operation of the order being appealed unless the appeal board orders otherwise. ISSUE The issue in this application is whether the Board should exercise its discretion under section 40(7) of the Water Act to stay the execution of the Order until there is a decision on the merits of the appeal. In North Fraser Harbour Commission et al. v. Deputy Director of Waste Management (Environmental Appeal Board, Appeal No. 97-WAS-05(a), June 5, 1997) (unreported)), a case involving a stay application under the provisions of the Waste Management Act, the Board concluded that the test set out in RJR- MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.) applies to applications for stays before the Board. That test requires an applicant for a stay to demonstrate the following: 1. There is a serious issue to be tried; 2. Irreparable harm will result if the stay is not granted; and 3. The balance of convenience favours granting the stay. The Panel finds that this test is applicable to a stay application under the Water Act. DISCUSSION Serious Issue This branch of the test has the lowest threshold. As stated in RJR MacDonald at pages 402-3, unless the case is frivolous or vexatious or is a pure question of law, as a general rule, the inquiry should proceed onto the next stage of the test. Ms. Daigle did not expressly address whether or not there was a serious issue to be tried. However, she states that the solution proposed in the Order will not be in the best interests of all parties. She submits that excavating the channel required by the Order will result in damage to her property and will create a potential hazard to humans and livestock. She also argues that part of the area where she has been ordered to dig the channel is owned by Dept. of highways for a right-of-way. The Olivers also do not expressly state whether there is a serious issue to be tried, but submit that flooding in the meadow has inhibited their ability to use it and surrounding land, has been a financial drain on them, and is affecting the environment. The Panel finds that the parties have raised issues concerning potential harm to the property of both parties, and whether the Order prescribes an appropriate and

5 APPEAL NO. 99-WAT-32(a) and 99-WAT-36(a) Page 5 effective way of addressing these concerns. The Panel finds that these issues are neither frivolous nor vexatious, and that there are serious issues to be tried in this appeal. Irreparable Harm At this stage, Ms. Daigle must show that she will suffer irreparable harm if a stay is not granted. As stated in RJR MacDonald, at 405: At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the District s own interest that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. Ms. Daigle states that excavating the channel as required by the Order will result in inconvenience and damage to her property, as it will cut our property in half. She also submits that the channel will create a potential hazard to humans and livestock that may fall into the ditch and become injured. She states that she has 50 head of cattle, plus sheep, and that she had to pull lambs and calves out of the ditch in the past [before it was filled in]. She states that she has been unable to complete corral systems due to the proposed channel. The Panel finds that Ms. Daigle may suffer irreparable harm if the stay is not granted. The Panel accepts that there may be some financial loss to Ms. Daigle if the stay is not granted, as she will be required to excavate a channel, and plant willow shoots and seed grass along the channel banks at her own expense. The Panel notes that the court in RJR MacDonald indicated that financial loss relied upon by an applicant may be considered irreparable harm, so long as it is unclear that such loss could be recovered at the time of a decision on the merits. The Panel notes that it is unlikely that Ms. Daigle would be able to recover the costs associated with completing the ordered works should the Board rescind the Order after hearing the merits of the appeal. Balance of Convenience At this stage of the test, the Panel must determine which of the parties will suffer greater harm from the granting of, or refusal to grant, the stay application, pending a determination of the appeal on its merits. The Olivers submit that since the flooding occurred, they have been unable to use the meadow and areas of peat adjacent to it. They state that each year, they lose more land in the flooded area, which was used to grow hay. Consequently, they must purchase more hay to feed their livestock. The Olivers also submit that trees in the affected area are stressed and some are dying, thereby contributing to erosion and affecting wildlife. In response, Ms. Daigle challenges the assertions made by the Olivers. She argues that flooding on the Oliver s property is caused by overflow from their [own] pond, and that logging in their area has increased water flow on their property. She submits that there are no stressed or dying trees in the flooded area, and that wildlife are abundant. She also submits that the Olivers have a water licence that authorizes them to construct the works necessary to drain their property, but the

6 APPEAL NO. 99-WAT-32(a) and 99-WAT-36(a) Page 6 Olivers refuse to do so. Ms. Daigle stresses that the channel required by the Order will harm her property and pose a safety hazard. Finally, Ms. Daigle suggests that her appeal would be pointless if a stay is not granted. The Panel has reviewed all of the submissions and finds that the balance of convenience favours a stay of the Order. The Panel acknowledges that the Olivers have suffered some property damage and have incurred costs to purchase hay since flooding of the meadow became a problem. However, the Panel notes that this flooding problem has existed since at least 1996, and that even if a stay were denied and the channel succeeded in draining the meadow, it would be too late for the Olivers to plant hay in the meadow this season. Conversely, Ms. Daigle will suffer inconvenience and financial loss if she is required to construct the channel. Also, it is unclear from the evidence whether excavation of this channel is, in fact, the only way or the best way to resolve the Oliver s flooding problem. Therefore, the Panel is not satisfied that any additional harm to the Oliver s interests that may be incurred over the next several months, until the appeal is decided on its merits, would outweigh the harm to Ms. Daigle s interests if a stay were denied. Accordingly, the application for a stay of the Order is granted. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all the evidence before it, whether or not specifically reiterated here. The application for a stay is granted. Judith Lee, Vice Chair Environmental Appeal Board September 13, 1999