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 DECISION NOS WAT-001(a); 003(b); 004(a) In the matter of three appeals under section 92 of the Water Act, R.S.B.C. 1996, c BETWEEN: Tim Coertze and Sara de Rose APPELLANTS (2010-WAT-001) Albion Samuel Tidler APPELLANT (2010-WAT-003; 004) AND: Assistant Regional Water Manager RESPONDENT AND: Tim Coertze and Sara de Rose THIRD PARTIES (2010-WAT-003; 004) Albion Samuel Tidler THIRD PARTY (2010-WAT-001) BEFORE: A Panel of the Environmental Appeal Board Gabriella Lang, Panel Chair DATE: October 26-29, 2010 PLACE: Nanaimo, BC APPEARING: For the Appellants: Tim Coertze and Sara de Rose Albion Samuel Tidler For the Respondent: For the Third Parties: Larry Barr Tim Coertze and Sara de Rose Albion Samuel Tidler APPEALS [1] These three appeals were heard together: 1. Tim Coertze and Sara de Rose appeal the January 21, 2010 decision of Larry Barr, Regional Water Manager (the Regional Manager ), Ministry of Environment (the Ministry ) refusing to issue a water storage licence associated with a residential power project on Holmes Creek, Lasqueti Island. 2. Albion Samuel Tidler appeals the January 21, 2010 decision of the Regional Manager to issue Mr. Coertz and Ms. de Rose Conditional Water Licence allowing the diversion of water and authorizing certain works for residential power purposes on Holmes Creek, Lasqueti Island.

2 DECISION NOS WAT-001(a); 003(b); 004(a) Page 2 3. Mr. Tidler also appeals the January 21, 2010 decision of the Regional Manager to issue Mr. Coertze and Ms. de Rose Conditional Water Licence authorizing the diversion of water for domestic purposes from Holmes Creek on Lasqueti Island. [2] The Appellants are Third Parties to each other s appeals. Mr. Tidler supports the Regional Manager s decision to refuse to issue the water storage licence to the Appellants de Rose and Coertze. Ms. de Rose and Mr. Coertze support the Regional Manager s decision to issue them the two conditional water licences. [3] The Environmental Appeal Board has the authority to hear these appeals under section 93 of the Environmental Management Act and section 92 of the Water Act. Section 92(8) of the Water Act provides that, on an appeal, the Board may: (a) send the matter back to the comptroller, regional water manager or engineer, with directions, (b) confirm, reverse or vary the order being appealed, or (c) make any order that the person whose order is appealed could have made and that the board considers appropriate in the circumstances. [4] Mr. Coertze and Ms. de Rose ask the Board to issue a water storage licence and confirm the Regional Manager s decision to issue them with the two conditional water licences. [5] Mr. Tidler asks the Board to confirm the Regional Manager s denial of the water storage licence and to reverse or vary the Regional Manager s decision to issue the two conditional water licences. BACKGROUND [6] The three Appellants own adjoining properties on Lasqueti Island, identified as follows: Lot 4, 3, 2 and 1 Section 9 Plan Lasqueti Island, Nanaimo Land District are owned by Mr. Coertze and Ms. de Rose (the de Rose property ) Lot 1, Section 9 Plan VIP Lasqueti Island, Nanaimo Land District is owned by Mr. Tidler (the Tidler property ). [7] The properties are all rectangular in shape and run in a north-south direction. [8] Holmes Creek crosses the northern part of the de Rose property and includes a swampy area that all parties referred to as the Monahan Swamp, northern watershed or north pond. That swamp straddles the eastern part of the de Rose property and western part of the Tidler property. Mr. Tidler has a house on the northern edge of this swamp. [9] Another wetland, swampy area south of Monahan Swamp also straddles the de Rose property and the Tidler property. The parties referred to this as the southern watershed or south pond.

3 DECISION NOS WAT-001(a); 003(b); 004(a) Page 3 [10] Mr. Coertze and Ms. de Rose are full time residents of the island. Mr. Tidler uses his property for recreational purposes. [11] On April 28, 2009, the Ministry received a complaint about a dam constructed at the edge of Monahan Swamp on the de Rose property that was apparently affecting a wetland. On April 30, 2009, John Baldwin, from the Ministry s Water Stewardship Division, together with a Conservation Officer, investigated the complaint. They determined that all three of the Appellants had violated the Water Act by undertaking works in and withdrawing water from a stream without authorization. The Ministry directed all three Appellants to submit applications for water licences to legalize their activities. [12] All of the Appellants submitted applications for water licences. However, as the Panel pointed out during the hearing, the Ministry s investigation of and directions to Mr. Tidler are not part of these appeals. Also, the Regional Manager s decisions regarding Mr. Tidler s applications are not part of these appeals or this Panel s decision. Only the Regional Manager s decisions regarding Mr. Coertze s and Ms. de Rose s licence applications were considered during the hearing and in this decision. [13] In the case of Mr. Coertze and Ms. de Rose, the Regional Manager determined that they had made changes to a stream, Holmes Creek, and were withdrawing water from that stream without authorization. In 2006, they had a roadway built, including a dam on Lot 4 at their end of Monahan Swamp. The roadway was for access to their home. It started at what the parties called the main road at the north end of all the lots, then meandered through their Lots 4, 3 and 2. A culvert was placed in the dam structure. [14] Ms. de Rose and Mr. Coertze also installed a water wheel to generate power and a pipe to bring water from their end of Monahan Swamp to the wheel. They intended to use the water wheel to generate electricity for their home during the winter months. [15] Ms. de Rose and Mr. Coertze submitted their water licence applications on May 4, 2009, listing five purposes in the application. Some of those purposes are not relevant to this appeal because they apply to diversions and uses on other parts of the de Rose property and have no impact on Monahan Swamp. The application that is relevant to this appeal was for two purposes: storage (in support of power generation), and power generation. The storage and power purposes related to the operation of the water wheel. [16] In their application, they described the power production as for personal use or home use. The anticipated maximum power production would be 200 watts, the minimum 150 watts, and the average 175 watts. The proposed works include a storage dam and the footprint area would be 1 acre. The penstock was described as 360 metres in length and 10 metres wide. They also listed a turbo wheel (powerpac). In response to the question on the application, do or will the works occupy or flood another person s private land, the applicants checked no. [17] On June 27, 2009, they amended their application to also apply for a domestic water licence to support a future dwelling. [18] As part of the Ministry s review process, Ms. de Rose and Mr. Coertze were directed to send a copy of their application to Mr. Tidler. On September 21, 2009,

4 DECISION NOS WAT-001(a); 003(b); 004(a) Page 4 Mr. Tidler responded to the Regional Manager objecting to the storage licence application. He said that his neighbours were flooding his property, resulting in damage to his trees. He also said that they did not have an agreement with him to do this. [19] After the notice and review processes were completed, the Regional Manager issued the three decisions cited above with respect to Ms. de Rose s and Mr. Coertze s applications. [20] During the hearing, Ms. De Rose testified for herself and Mr. Coertze, and she also made submissions on behalf of both of them. Therefore, in this decision the Panel will refer to Ms. de Rose to include both of these Appellants, unless there is a reference to a specific action by Mr. Coertze. [21] Ms. de Rose s ground of appeal for the refusal of the water storage licence is that the storage is part of their residential power project and is needed for withdrawing water during the winter months only. [22] Mr. Tidler appealed the issuance of the two conditional water licences on various grounds, which the Panel summarizes as follows: (a) the application review process was flawed because he did not receive proper notice of what was being applied for; there were differences between the application and the licences issued; the referral of the application to other agencies was incomplete; (b) (c) the licences should not have been issued because Ms. de Rose and Mr. Coertze were violating the Water Act; and the issued licences do not protect his property from flooding damage caused by the dam construction and design, the failure to keep the culvert clear, and the failure to manage beaver activity in Monahan Swamp. [23] Originally, Mr. Tidler also appealed on the basis that the culvert was too high, but during the hearing he withdrew this ground of appeal. [24] The Panel has considered the grounds of appeal under the following issues. ISSUES [25] The three decisions made by the Regional Manager all relate to activities by Ms. de Rose affecting the stream known as Holmes Creek. Therefore, the Panel will first consider the issues common to all three licence decisions; that is, the application process and the issue of flooding. Then the Panel will consider the specific decisions made by the Regional Manager. 1. Whether the licence application process was fundamentally flawed, such that the licences should be rescinded. 2. Whether the dam construction and plugged culvert caused flooding on Mr. Tidler s property. 3. Whether the Regional Manager exercised his discretion reasonably when he made each of the licensing decisions.

5 DECISION NOS WAT-001(a); 003(b); 004(a) Page 5 RELEVANT LEGISLATION [26] The following sections of the Water Act are relevant to these Appeals: Definitions 1 In this Act: changes in and about a stream means (a) any modification to the nature of a stream including the land, vegetation, natural environment or flow of water within a stream, or (b) any activity or construction with the stream channel that has or may have an impact on a Stream; conditional licence means a licence that authorizes the construction of works or the diversion and use of water before the issue of a final licence; domestic purpose means the use of water for household requirements, and occupied with a dwelling house; order includes a decision or direction, whether given in writing or otherwise; power purpose means the use of water in the production of electricity or other power; storage or storage purpose means the collection, impounding and conservation of water; stream includes a natural watercourse or source of water supply, whether usually containing water or not, and a lake, river, creek, spring, ravine, swamp and gulch; works means (a) anything capable of or used for (i) diverting, storing, measuring, conserving, conveying, retarding, confining or using water, (ii) producing, measuring, transmitting, or using electricity, (d) changes in and about a stream Powers of comptroller or regional water manager respecting applications 12 (1) With respect to an application, whether objections to it are filed or note, the comptroller or the regional manager may (a) refuse the application,

6 DECISION NOS WAT-001(a); 003(b); 004(a) Page 6 (b) amend the application in any respect, (c) grant all or part of the application, (d) require additional plans or other information, (e) require the applicant to give security for the purposes and in the amount and form the comptroller or the regional water manager considers in the public interest, and (f) issue to the applicant one or more conditional or final licences on the terms the comptroller or the regional water manager considers proper. (1.1) An applicant must comply with any order made under subsection (1)(d) or(e) within the time specified by the comptroller or the regional water manager. (1.2) Without limiting subsection (1), the comptroller or the regional water manager may refuse an application or reject an application without consideration if (a) the applicant fails to comply with any directions or requirements under subsection (1)(d) or (e) or section 10(1), or fails to comply within the required time, (b)the application is incomplete, or (c)the application fails to meet the requirements of an approved plan. (3) With respect to an application for a licence, the comptroller or regional water manager must determine, in accordance with section 13, the precedence and appurtenancy of any licence to be issued under the application. Licences for power purposes 12.2(2)The term of a licence that is issued for a power purpose after this section comes into force, or is issued for a power purpose and renewed or amended to extend its term after this section comes into force is 40 years in respect of the use of water for a power purpose. DISCUSSION AND ANALYSIS General [27] During the hearing both Ms. de Rose and Mr. Tidler testified and submitted documentary evidence about various events preceding the Ministry s April 2009 investigation and the Regional Manager s licencing decisions. Ms. de Rose and Mr. Tidler often disagreed about conversations they allegedly had or didn t have, and contacts they had or didn t have. The Panel will not make any findings about their credibility or whose version of events is correct. The only relevant evidence in

7 DECISION NOS WAT-001(a); 003(b); 004(a) Page 7 these appeals is what facts and what legislative authority the Regional Manager relied on when he used his discretion to make his licensing decisions, as well as any new evidence that was not before the Regional Manager but the Panel finds to be relevant to the matters under appeal. [28] The parties all submitted documentary evidence and gave oral testimony. The Panel has reviewed and considered that evidence and testimony even if it is not specifically referred to in this decision. 1. Whether the licence application process was fundamentally flawed, such that the licences should be rescinded. [29] Mr. Tidler submitted that his appeals should be allowed because of what he considered to be irregularities in the licensing process. He submitted that: he was not provided with adequate notice of what Ms. de Rose proposed and what licences she applied for; the Regional Manager did not properly process the application and did not refer the application to other agencies; and the two conditional licences issued were not the ones applied for. [30] During the hearing, Mr. Tidler also asserted that his own licensing application was being treated differently. The Panel cautioned Mr. Tidler that these appeals were not about his applications or licensing decisions. The Panel allowed limited references to his application(s) so that the Regional Manager could explain how licensing applications are processed and assessed to demonstrate that all applications are treated in the same way. The Panel emphasized to Mr. Tidler that any issues or evidence regarding his own applications to the Regional Manager were not within the scope of these appeals and would not be considered by the Panel. [31] Paul Marquis, from the Ministry s Water Stewardship Division, testified for the Regional Manager. Starting with the investigation of the Water Act violations, he testified that the alterations to the stream had already occurred when the Ministry visited the site. Ms. de Rose was told to submit a water licence application to legalize the alterations and withdrawals and to consider licensed users downstream. [32] Mr. Marquis explained how water licence applications are processed. FrontCounter BC accepts applications on behalf of the Ministry, reviews them for completeness and accepts the fees. The Ministry checks applications to identify potential impacts such as impacts on existing licence holders, other landowners, sometimes other agencies and First Nations interests. When the notices required by the Ministry are completed and comments or objections are received, the Water Stewardship Division conducts a technical assessment of the application to determine whether a new water licence should be issued. The division then makes its recommendation to the Regional Manager. [33] Mr. Marquis also explained that, if a water licence is issued, it is common for the licence to be different from the purposes or specifications stated in the application. When people apply for licences, they may not fully understand what the application is for, or what the impacts might be. He cited section 12 of the Water Act as giving the Regional Manager the discretionary authority to amend applications and then issue the appropriate licence or licences. [34] Mr. Marquis noted that is not unusual for the Regional Manager to issue one or more licences from one application, as occurred here. The Regional Manager has the authority under section 12 of the Water Act to do this, and his decision often

8 DECISION NOS WAT-001(a); 003(b); 004(a) Page 8 depends on the type of activities or withdrawals being licensed. In this case, the power licence and domestic use licence were issued separately because power licences have an expiration date. [35] Regarding referrals to other agencies or groups, the Ministry has procedure manuals (parts of which were submitted into evidence) directing the agencies and groups that should be notified based on a risk assessment. For example, the Ministry considers the purpose that the water will be used for, and whether the proposed water use may affect fisheries, riparian rights or other rights downstream. If the referrals go out, the agencies that receive the referral decide whether they have interests in the application. The Ministry s procedures do not require referral of domestic water licence applications for a volume not exceeding 500 gallons per day on most streams. [36] Some referrals go to the Island Trust, the land use planning authority for the Gulf Islands. The Appellants testified about contacts with the Islands Trust which seemed to be in relation to draining a wetland. In this case, the Panel finds that there was no evidence that the Islands Trust referrals or responses in any way impacted the Regional Manager s decisions. [37] Mr. Marquis did not indicate that there was any departure from this application process in the case of Ms. de Rose s application. As to Mr. Tidler s specific objections about the notice he received, the Panel will review this next. [38] Ms. de Rose testified that on May 25, 2009, she sent Mr. Tidler a registered letter as required by the Ministry, giving him notice of their application. She also phoned his home to advise him that the letter was coming. With the written notice, she included a note addressed to Mr. Tidler outlining the purposes for the application: a licence to use the pond as storage; a licence for the water wheel which draws water from the pond (to be used only in winter months for drawing off excess water); and to maintain their ditches and irrigate in the dry season. Their intent was to have the pond drop to no lower than when they began the roadway work in September, [39] Mr. Tidler complained that this notice went to his Lasqueti Island address instead of his address on Vancouver Island. Notwithstanding this address issue, Mrs. Tidler sent a letter dated June 6, 2009 to the Ministry on Mr. Tidler s behalf. At the time, Mr. Tidler was working out of the province and was not able to respond. In that letter, Mrs. Tidler identified Mr. Tidler s concerns with water levels, potential flooding and impacts on the forest and his well. On September 21, 2009, Mr. Tidler wrote to Mr. Marquis stating that he visited his property on September 17 and observed flooding and acres of dead or dying trees in the flooded area. He enclosed photos taken on this visit. He wrote that he objected to the water storage application. [40] Mr. Marquis testified that Mr. Tidler raised legitimate concerns about the water storage application and the potential for harm to his property due to flooding. Therefore, in a letter of October 14, 2009, Mr. Marquis advised Ms. de Rose about Mr. Tidler s issues and the need to address those concerns. Mr. Marquis also stated that, before the water storage licence would be issued, the Ministry would require all of the Appellants, as neighbouring property owners, to have a landowner agreement for their joint management of Monahan Swamp. He gave them until January 1, 2010 to finalize that agreement.

9 DECISION NOS WAT-001(a); 003(b); 004(a) Page 9 [41] The Panel finds that, in fact, Mr. Tidler received timely and sufficient notice of the application. His wife responded on his behalf in June 2009, and he had time to visit his property and send a letter to the Ministry in September of The Panel also notes that his objections were considered by the Ministry in October These events occurred well before the Regional Manager s decisions. [42] Mr. Marquis stated that the landowner agreement had to specify the maximum water level for the storage pond as measured from an easily definable fixed reference, and detail who has responsibility for maintaining the water level. The agreement also had to include access to private property, the timing and rates of diversion for power, and the minimum pond level. [43] The Appellants testified about their negotiations and the drafts of the agreement that were submitted into evidence. However, they did not agree on who said or did what, or when. They did agree that the parties met on November 14, 2009 to discuss the agreement, that there were drafts of the agreement, and they all signed a version dated January 1, [44] Mr. Tidler submitted that, because the original application was amended to include a domestic water application, he did not receive proper notice of that application. The Regional Manager pointed out that domestic water licences were part of the Appellants landowner agreement negotiations. [45] The Panel will not address whose version of the negotiations is correct because, in the end, the signed agreement was abandoned. The Panel only notes that the draft agreements and the January 1, 2010 version had clauses referring to storage licences for Ms. de. Rose and Mr. Tidler, domestic water licences for Ms. de Rose and Mr. Tidler, beaver management, and Ms. de Rose s residential power project. The references to the domestic water uses and the residential power uses indicate to the Panel that Mr. Tidler did, in fact, know what Ms. de Rose applied for, including domestic water, well before the Regional Manager s decision. The specifics of those uses were part of the agreement negotiations. [46] The Panel finds that the Regional Manager processed Ms. de Rose s application in accordance with the Ministry s usual practices, including following the Ministry s referral procedures. The Panel also finds that Mr. Tidler received actual and effective notice of the application, sufficient for him to object in a letter in September 2009, and sufficient to be able to discuss the application during negotiations about the landowner agreement. [47] The Panel finds there were no irregularities or deficiencies in the way the Regional Manager considered Ms. de Rose s application. Even if there were any irregularities or deficiencies, they were not sufficient to warrant reversing the Regional Manager s decisions. In fact, during the hearing, Mr. Tidler acknowledged that he now had a better understanding of the Ministry s water licence application procedures. [48] Finally, even if there had been any procedural deficiencies in the Regional Manager s process, they would be cured by the full hearing of these appeals before this Panel as a new hearing of the matter, pursuant to section 92(7) of the Water Act.

10 DECISION NOS WAT-001(a); 003(b); 004(a) Page Whether the dam construction and plugged culvert caused flooding on Mr. Tidler s property. [49] Mr. Tidler asks that the Regional Manager s refusal to issue the water storage licence be confirmed and the decision to issue the two conditional water licences be reversed or additional conditions be placed in the power licence. He submits that Ms. de Rose s activities on Monahan Swamp, and specifically the design and construction of the dam, the failure to keep the culvert open, and the lack of beaver management have caused flooding resulting in damage to the trees on his property. [50] During the hearing, all the parties testified and presented documentary evidence about the dam, the culvert, water levels, and beavers in Monahan Swamp. [51] John Baldwin, a Water Stewardship Officer with the Ministry s Water Stewardship Division, testified that when he first went to the de Rose property in April 2009, he observed a culvert and dam. Mr. Baldwin said, at that time, the water level of Monahan Swamp was not on top of the culvert and he could see the culvert sticking through on the upstream (Tidler) side. It was during this inspection that Ms. de Rose was told that she would need to apply for a water licence for their activities on Holmes Creek. [52] Mr. Baldwin referred to photos taken that day to illustrate the dam and surrounding areas. In one photograph, Mr. Baldwin said that there was no evidence that the dam structure had ever been overtopped, but there were signs of seepage at the toe of the dam as indicated by the presence of swamp grass. A second photograph showed the dam at the outlet of Monahan Swamp with a culvert, taken from the direction of the Tidler property toward the de Rose property. Mr. Baldwin pointed to piles of debris on both sides of the culvert, and stated that the culvert was flowing. He observed boards against that culvert and said that the boards, in combination with a beaver dam, were holding some water back. He said that he told Ms. de Rose that the culvert should be cleared. [53] Mr. Baldwin testified that, in April 2009, he was concerned about the fill material put on the road for the dam structure and with the stability of that structure. The water level at that time was not above the culvert. Mr. Baldwin believes that he asked Ms. de Rose if flooding was occurring back to Mr. Tidler s property, and was told that Mr. Tidler had agreed to the dam construction. He said that he advised Ms. de Rose that she would have to notify Mr. Tidler about their water licence application because of impacts to his property. [54] Ms. de Rose testified that the dam was constructed in 2006 by a local contractor as part of a roadway project. She said that they needed a road to get to their house site. The contractor built the dam in the gully next to an old beaver dam. Ms. de Rose said she did approach Mr. Tidler in 2006 before construction and he said just keep the water level the same. [55] Ms. de Rose testified that in May 2009, they placed a grate over the mouth of the culvert to stop beaver debris from blocking it. The grate was a homemade wooden lattice. She said that they cleaned it on a regular basis. [56] In June 2009, because the water level was low she contacted Mr. Tidler to discuss the water level with him. However, he was working out of the province and was not reachable. At the end of June, they purposely stopped clearing the lattice covering the culvert to allow water to rise about 12 inches over the next 3 months

11 DECISION NOS WAT-001(a); 003(b); 004(a) Page 11 because of dry summer conditions. Ms. de Rose said that in November 2009 they were managing the water level with the water wheel. [57] Ms. de Rose said that she initially thought Mr. Tidler was concerned that his part of Monahan Swamp was being drained. She said that in mid-september of 2009, she heard from the Ministry that Mr. Tidler was concerned about flooding on his property. They reached Mr. Tidler that month and told him that they would agree to whatever water level he wanted. Ms. de Rose also asserted that, on several occasions they asked Mr. Tidler what level he would agree to, but he has never defined what that level is. She said they also offered to lower the road grade, but got no response from Mr. Tidler. [58] As for the cause of any flooding, Ms. de Rose pointed to ongoing beaver activity in Monahan Swamp and said beavers are active all over Lasqueti Island. She said that there were several beaver dams between the roadway dam and Mr. Tidler s house that caused flooding. She offered to put in a beaver baffler, but were unable to agree with Mr. Tidler on the type of baffler to use. [59] Mr. Marquis testified that there could be several reasons for water level fluctuations or flooding. He said that open water bodies, like the swamp, typically vary seasonally, depending on precipitation and draw down in use. Such water bodies can typically vary between cm throughout a year and, if beavers are thrown into the equation, there could be greater fluctuations. When he first visited the properties, in June of 2009, he did not know if a flood condition existed. He also didn t know whether deposited material or man-made effects caused floods in the swamp because he observed that both ends of the swamp (the de Rose end and the Tidler end) were disturbed. [60] When Mr. Marquis was asked about Ms. de Rose checking the no box in answer to the flooding question on the licence application, he said that he would have checked no because they are not altering the flow dynamics of the creek; therefore, they are not causing flooding. Mr. Marquis also stated that the Appellants applications were not made in response to flooding they were related to violations of the Water Act. [61] Mr. Tidler asserted that the dam and plugged culvert caused flooding on his property and damage to his trees. He testified that he did not agree to the construction of the dam or agree to any specific water level in Monahan Swamp. In his opinion, the flooding was due to a failure to maintain the culvert and also a lack of management of beaver activity. [62] Mr. Tidler said that he observed flooding in September 2009, saw grass growing through debris in the culvert, and also saw many dead and dying trees on his property at the edge of the swamp. He submitted photos that he took on September 17, 2009 showing the dead trees. He also stated that one photo showed the water level was inches above the base of the culvert, and showed that the culvert was plugged. He said that in September 2009, there was no grate at the culvert, just boards. On November 14, 2009, he checked the water level again and saw that the culvert was plugged and there was beaver debris. In his view, this was evidence that Ms. de Rose was not doing what the Ministry had directed: to keep the culvert clear.

12 DECISION NOS WAT-001(a); 003(b); 004(a) Page 12 [63] In support of his assertion about damage to his trees, Mr. Tidler submitted two reports from Dr. Julian Dunster, a certified arborist. In the first report, dated March 5, 2010, Dr. Dunster reviewed the conditions on Mr. Tidler s property based on a site visit on February 6, In that report, Dr. Dunster also recited a list of information provided by Mr. Tidler, which Dr. Dunster wrote he accepted as fact. That information included the following, as summarized by the Panel: before October 2006, Holmes Creek had a dam across it on the Coertze/de Rose property; in October 2006, the neighbors converted that dam into a roadway and inserted the culvert under the roadway; before that conversion, water levels on the Tidler property were stable with a well defined upper level and declined in summer months; there are beavers in the area and they have been present for many years; after the placement of the culvert, the beavers have repeatedly cut down trees and small vegetation and have plugged the culvert; the water levels on the Tidler property have risen substantially as a result of the culvert being plugged; when the culvert is plugged the water levels are higher and there is flooding on Mr. Tidler s land. [64] Dr. Dunster observed that approximately half of the trees within the wetland area between the culvert and the Tidler property are already dead. He found that evidence of flooding was visible in the form of a high water mark on grasses and other small debris. At the time of his visit, the water level was two inches above the base of the culvert which was partly blocked by debris. [65] Dr. Dunster wrote that his observations of the conditions of the trees, such as very sparse crown foliage, are typical of trees that have been flooded. The damage was restricted to the wetland area. He also wrote that it was very clear that there had been several flood incidents in the wetland area. [66] Mr. Tidler also provided a letter from Dr. Dunster dated September 13, 2010, reviewing further information about a property survey that Mr. Tidler had provided to him. In this letter, Dr. Dunster stated that the flooding damage was caused by the blocked culvert, as he noted in his last report. In his opinion, the only way to avoid additional flooding damage and loss of trees was to have the roadway redesigned. [67] Mr. Tidler submitted that Dr. Dunster is an expert and that his reports establish the reasons for the dead and dying trees and for the flooding on his property. The Panel notes that Mr. Tidler did not follow the Board s procedures to qualify Dr. Dunster as an expert, and that Dr. Dunster did not testify about his reports or the basis for his reports. Moreover, the other parties did not have an opportunity to question Dr. Dunster about his assumptions, his observations or his conclusions. Therefore, it would be unfair to accept Dr. Dunster s reports as expert evidence. The Panel has allowed the reports into evidence as part of Mr. Tidler s case, but will take these concerns into consideration when determining the weight it should give to the views expressed in the reports. [68] For instance, the Panel notes that, in his March 2010 report, Dr. Dunster recites a long list of information that he accepted as fact from Mr. Tidler, including the statement that water levels on the Tidler property have risen substantially as a result of the culvert being plugged. Without the benefit of Dr. Dunster s testimony

13 DECISION NOS WAT-001(a); 003(b); 004(a) Page 13 and the other parties opportunity to question this conclusion, the Panel can only accept these reports as evidence from a certified arborist that trees are dead and dying on the Tidler property, probably because of flooding. [69] Further, the Panel does not accept Dr. Dunster s conclusion that the reason for the flooding is a plugged culvert. The Panel acknowledges that Dr. Dunster observed the conditions on the Tidler property, but does not accept that he is an expert on the cause of flooding events. In fact, the Panel finds that there is evidence of other likely causes of flooding and fluctuating water levels, including the reasons recited by Mr. Marquis, such as beaver activity in the area. [70] Mr. Marquis testified that to prepare for this appeal hearing, he and Mr. Baldwin conducted two separate surveys in April 2010, one at the dam and the other at Homes Creek Road. He observed a number of beaver dams between the roadway dam and Mr. Tidler s house. [71] Mr. Tidler also surveyed his property in October, 2010 to compare his findings with those in the Ministry surveys. His results differ from the Ministry s, although Mr. Tidler acknowledged that the difference between the Ministry s survey results and his was only about inches. [72] Mr. Marquis explained the discrepancies. The surveys were six months apart and were taken at different times of the year. Mr. Marquis observed variation in elevation around the swamp which would be another reason for differences. Mr. Marquis said that a difference of 10 cm would not have any significant effect on Mr. Tidler s property his house is well above that. He also noted that the riparian area is influenced by the stream, and inundation is common for waters like this, because wetland areas tend to be inundated. [73] The Panel finds that neither the Ministry s survey nor Mr. Tidler s were considered by the Regional Manager when he made his January 2010 licensing decisions. However, the Ministry s survey indicates a continuing interest in the water levels on Mr. Tidler s property. The Panel accepts that Mr. Tidler s observation that there have been higher water levels on his side of Monahan Swamp starting from about September [74] In conclusion, based on all the evidence, the Panel accepts that there was flooding, or fluctuations of water levels, on Mr. Tidler s property and that trees have died or are dying as a result. However, whether or not the dam and/or a plugged culvert were the only causes for the changes in water levels, in the Panel s view, has not been established. There is credible evidence of other probable causes. 3. Whether the Regional Manager exercised his discretion reasonably when he made each of the licence decisions. [75] Mr. Tidler s position is that the Regional Manager should not have approved a licence for a structure that has a history of being plugged up and is contributing to flooding on his property. He also wants the Regional Manager to impose conditions in Ms. de Rose s licences to keep the culvert clean and manage the beavers. Alternatively, he wants the dam redesigned. [76] The Regional Manager submits that he did not authorize the dam structure and, in fact, has not yet dealt with that structure. The Regional Manager pointed out that the conditional water licences issued to de Rose/Coertze do not authorize the dam. The Regional Manager submitted that Mr. Tidler was told that the Ministry

14 DECISION NOS WAT-001(a); 003(b); 004(a) Page 14 would be dealing with the dam issues separately, after these appeals are completed. The Regional Manager advised the Panel that this is still the Ministry s intent. [77] The Panel will discuss the specific licencing decisions below. However, at this point the Panel finds that, after a review of those specific decisions and the two issued licences, it agrees with the Regional Manager that the dam structure was not part of those licences. There is no evidence that, as of the date of this hearing, the dam structure itself has been authorized by the Regional Manager or considered through one of the Ministry s processes. The only reference to aspects of the dam structure is found in the orders issued with the residential power licence, discussed more fully below. [78] Therefore, the Panel finds that because the Regional Manager has not yet made a decision about the dam or even considered an application for its approval, there is no appealable decision associated with the dam. The Panel notes that the Regional Manager has acknowledged Mr. Tidler s concerns about impacts of the dam and the culvert, and therefore, the Panel expects that Mr. Tidler will have an opportunity to submit his position(s) to the Regional Manager regarding that structure, including any proposed redesign and maintenance proposals. [79] The Panel also finds that this was a reasonable approach by the Regional Manager, especially since the Appellants do not agree about the effects of that dam structure, its stability, and the effectiveness or maintenance of the culvert. a. Refusal to issue water storage licence [80] The Regional Manager refused to issue Ms. de Rose a water storage licence associated with the residential power project because there was no landowner agreement between all of the Appellants. That storage licence would have applied to Monahan Swamp as the water storage source. Mr. Tidler supports this decision. [81] As discussed in Issue 1 (above), the Regional Manager required a joint landowner agreement for the management of Monahan Swamp because of Mr. Tidler s concerns about the storage licence resulting in flooding on his property. Such an agreement is not required by the legislation; however, the Regional Manager expected consensus on managing the swamp. Mr. Marquis testified that the Ministry does not enforce such agreements; it is up to the parties to enforce such an agreement. However, if a licence could be issued, he had hoped to include some of the agreement s terms as licence conditions. [82] The Appellants signed an agreement dated January 1, 2010, and, as discussed above, that agreement did not last for long. However, Mr. Marquis decided to proceed with the licensing process, and recommended that the Regional Manager refuse to issue the storage licence. [83] As noted earlier in this decision, the Appellants testified about the negotiations and the abandonment of the agreement, but their evidence conflicts on many points. The Panel finds that, for the purposes of this appeal, the reasons that the landowner agreement was abandoned are not relevant to these appeals. The only relevant fact is the abandonment itself. The Panel also notes that, even during this hearing, the Appellants did not agree on what the water level should be in Monahan Swamp, what type of beaver baffler should be used or who should manage which parts of the swamp, including removal of the debris.

15 DECISION NOS WAT-001(a); 003(b); 004(a) Page 15 [84] Because Monahan Swamp straddles both the de Rose property and the Tidler property, and because the Appellants activities impact each other s properties, the Panel finds that it was reasonable for the Regional Manager to require a joint landowner agreement for managing Monahan Swamp. Given the absence of such an agreement, and the fact that the Regional Manager has not yet considered whether to authorize the dam, the Panel finds that he had good reasons for refusing to issue the storage licence. [85] At the hearing, Ms. de Rose asked the Panel to issue, or direct the Regional Manager to issue, a licence for water storage for an area smaller than originally applied for, in a different location, and with a different type of intake. The Panel finds that this is an entirely different proposal than the one submitted in May 2009 and, therefore, would require a new application to the Regional Manager, and a new review and new assessment by the Ministry. The Panel does not have the jurisdiction to make such an order in this case. Even if the Panel could make this order, there was insufficient evidence at the hearing to properly consider such an alternative. [86] For all of these reasons, the Panel confirms the Regional Manager s decision to refuse to issue a water storage licence. The appeal of that decision is dismissed. b. Issuance of a conditional water licence for residential power [87] The licence for residential power specifies that the maximum quantity of water which may be diverted from Holmes Creek is 55 cubic metres per day, and the water may be used from November 1 st to April 30 th each year. The licence also authorizes the following works to be constructed: diversion structure, pipes, water turbine, and transmission line. That construction must be completed and the water beneficially used before December 31, [88] The power generated may be used in one dwelling, as located on the plan attached to the licence. That dwelling is Ms. de Rose s home. The plan shows a transmission line connecting the dwelling on Lot 3 and the powerhouse also on Lot 3 on Holmes Creek. [89] Mr. Marquis stated that this licence was for a run of the river power application with no storage associated with it. This licence is fairly typical of small hydro licences that involve the diversion of water from a small stream. The Ministry considers how the power is generated and the power capacity to determine what category of purposes the application falls into. In this case, after an assessment by the Water Stewardship Division, the Regional Manager determined that this fit into the residential power category. [90] Mr. Marquis testified that this conditional water licence is for residential power purposes only and there is no mention of a storage structure in this licence; the dam is not part of this licence. He also said that, although the Regional Manger can put more than one purpose in a licence, power licences are issued separately because power licences have expiry dates. [91] With the licence, the Regional Manager issued two orders in his January 21, 2010 letter: to keep the culvert on Holmes Creek near the intake for the penstock clear of debris; and

16 DECISION NOS WAT-001(a); 003(b); 004(a) Page 16 to construct a spillway near this location with an invert equal to the elevation of the top of the culvert. This spillway must be constructed by October 15, 2010, consisting of material which is not subject to erosion (e.g., properly sized rock) and allow the passage of the probable maximum flood. [92] The order to keep the culvert clear was included with the licence to be consistent with previous directives from the Ministry. Mr. Marquis stated that these orders could be enforced by the Ministry. [93] Mr. Marquis testified that the order to put in the spillway was a temporary measure so that the dam structure does not fail. The Water Stewardship Division s main concern was to maintain the integrity of that structure until the whole issue of the structure could be dealt with when these appeals have been concluded. The purpose of the spillway was to handle probable maximum floods; that is, the volume of run-off or discharge that would likely occur during certain high water events. The spillway was designed to take water as soon as water reaches the top of the culvert. [94] Mr. Tidler opposed the issuance of this licence for a number of reasons. Mr. Tidler maintains that the water wheel was in place before the licence was issued, and that Ms. de Rose was violating the Water Act even while applying for the licences. Therefore, she should not be issued this licence. [95] The Regional Manager submitted that it was because both Ms. de Rose and Mr. Tidler were violating the Water Act that they were both directed to apply for water licences after the Ministry inspection in April Both property owners needed to legalize their water use activities. This residential power licence addresses one of those violations. [96] The Panel agrees with the Regional Manager. Even if property owners are violating the Water Act, the Regional Manager has the discretion to legalize the water uses, to bring them into compliance with the law. There is no requirement to refuse to issue a licence just because diversions were made or works were constructed without authority. [97] Mr. Tidler also argued that the Regional Manager should not have issued this licence because Ms. de Rose did not keep the culvert clear even after being directed to do so. In Mr. Tidler s opinion, even with a spillway his property will still be flooded. Mr. Tidler also said that he is unhappy about the spillway requirement because he wants a primary system to prevent flooding. To him, the spillway is an emergency backup, and he wants an alternative for higher flows. [98] During the hearing, Ms. de Rose testified that the spillway had already been installed and she hoped that it was adequate. [99] Mr. Tidler questioned whether the spillway was properly installed and whether his property would still be flooded. [100] There is no evidence before the Panel that the spillway was not constructed as directed, or that it will not work properly. The Regional Manager submitted that the spillway is designed to take water as soon as the water reaches the top of the culvert. The Panel finds that, based on the Ministry s concerns about the integrity of the dam, this was a reasonable order for the Regional Manager to issue.

17 DECISION NOS WAT-001(a); 003(b); 004(a) Page 17 [101] As for the culvert, the Ministry had ordered Ms. de Rose to clear the culvert in January 2010, before this licence was issued. The Panel finds that the January 2010 order was another, clearly stated order by the Regional Manager that could be enforced. [102] Mr. Tidler submitted several documents that he obtained from the Ministry to demonstrate that the Ministry was, in fact, following up on the culvert issue and was considering enforcement. In a January 26, , Mr. Marquis advised Mr. Baldwin that he had contacted Mr. Tidler and told him that if his property was flooded in the future, the Ministry would commence enforcement actions. [103] In an from Mr. Baldwin to Mr. Marquis, also on January 26, 2010, Mr. Baldwin wrote that he discussed the plugged culvert with Ms. de Rose during the April 2009 site visit because he was concerned about the safety of the embankment. He also indicated that in his to Ms. de Rose of May 4, 2009, and in his letter of May 6, 2009, he instructed her and Mr. Coertze to clear the culvert for dam safety reasons. [104] On February 19, 2010, Mr. Marquis sent an internal stating that he phoned Mr. Coertze about a complaint from Mr. Tidler. He reminded Mr. Coertze that he was required to keep the culvert clean. Mr. Coertze said that he had done so. He also stated that he kept the penstock open to have greater discharge, and the water level was at the culvert inlet. Mr. Marquis added in the that, if there was another similar complaint, they may have to increase the level of enforcement. [105] The Panel finds that the Regional Manager issued this licence for residential power only; not for the dam structure. The licence legalizes a run of the river power project that was already in place on Holmes Creek. By issuing this licence, the Regional Manager exercised authority over this use of Holmes Creek and was able to set conditions for that use. [106] The Panel further finds that the Regional Manager addressed Mr. Tidler s concerns about flooding on his property by issuing the specific order in January 2010 to keep the culvert clean. The evidence also indicates that the Ministry has already considered enforcement action with respect to this order. [107] Mr. Tidler also submitted that a proper beaver management plan is needed, although he disagrees with Ms. de Rose about what that would be. The Panel finds that a beaver management plan would not be an appropriate part of this licence. This is for residential power only. It is, therefore, limited in its scope. Beaver management is a separate issue from residential power generation. The Panel also notes that the evidence indicated that beavers are active on both the de Rose side and the Tidler side of Monahan Swamp, which was not licensed for storage and which the Appellants have not been able to agree on how to manage. [108] The Panel finds that the Regional Manager properly exercised his discretion to legalize an existing use and associated works on Holmes Creek with a licence. This licence is limited in its application, and does not address the issues of the dam structure. Mr. Tidler s concerns about flooding were addressed by the enforceable order to keep the culverts clear. As for any concerns regarding the dam structure itself, the Regional Manager issued the spillway order to temporarily secure the