Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO. 98-WAT-26 In the matter of an appeal under section 40 of the Water Act, R.S.B.C. 1996, c.483. BETWEEN: Louis Etcheverry APPELLANT AND: Assistant Regional Water Manager RESPONDENT AND: BEFORE: Lesley and Cynthia Bentley Melvin and Anne Campbell Darlene Volk Norman and Delores Marshall Keith and Penny Prigmore A Panel of the Environmental Appeal Board Jane Luke, Panel Chair Harry Higgins, Member Helmut Klughammer, Member THIRD PARTIES DATE: June 17, 1999 PLACE: Kamloops, B.C. APPEARING: For the Appellant: Lowell Horning For the Respondent: Lesley & Cynthia Bentley: Melvin & Anne Campbell: Livia Meret, Counsel Lesley Bentley Melvin Campbell Norman & Delores Marshall: Delores Marshall Keith & Penny Prigmore: Penny Prigmore APPEAL This is an appeal of the October 7, 1998 decision of Ron Smith, Assistant Regional Water Manager (the Water Manager ) refusing the Appellant s application for a water licence on Richards Spring, and ordering removal of the Appellant s works in the Spring, and restoring it to its natural state.
APPEAL NO. 98-WAT-26 Page 2 The Environmental Appeal Board (the Board ) has the authority to hear this appeal under section 11 of the Environment Management Act and section 40 of the Water Act (the Act ). Section 40 of the Act permits an appeal of an order to the Environmental Appeal Board, which can: (a) (b) (c) send the matter back to the comptroller, regional water manager or engineer with directions, confirm, reverse, or vary the order being appealed, or make any order that the person whose order is appealed could have made, and that the board considers appropriate in the circumstances. The Appellant wants the refusal overturned, to be issued the water licence, and to be permitted to retain the dug out pond and intake he has constructed in the Spring. BACKGROUND The Appellant owns and lives on property near Celista in the southern interior region of British Columbia. In August 1991, he applied for a water licence to take from Richards Spring 500 gallons per day for domestic use, water to irrigate four acres, and storage of 4-acre feet. Richards Spring originates in a swamp, which is mostly on the Appellant s property. Between 1991 and 1995, the Appellant made two trips to the Water Manager s office in Kamloops to inquire about the status of his licence application. He spoke to a receptionist who told him the application process was slow because the office was very busy. The Respondent has no record of these inquiries on file. In 1995, the Appellant constructed a dug out pond and water intake in the swamp, with pipes and a pump. These works were unauthorized. In July 1995, J. Bouchard, a water management officer, visited the Etcheverry property to do a field inspection. From his observations and discussions with the Appellant, he found that the Appellant s house was serviced by a well, and the intended use of the Richards Spring water was to water about 2.5 acres of lawn and garden. Mr. Bouchard advised the Appellant to revise his application to 2.5 acrefeet industrial (lawn and garden) purpose. The Appellant told him to proceed to process the application on that basis. Mr. Bouchard again did on-site inspections and water flow measurements in September 1995, October 1997, and August 1998. The 1998 inspection was, in part, a response to complaints of water shortages in nearby Grouse Creek. At that time, Mr. Bouchard completed an investigation called a ground truthing to determine the configuration and drainage of Richards Spring and nearby Beguelin and Grouse Creeks. He found that Richards Spring discharges into Beguelin Creek, which in turn is a tributary of Grouse Creek. Until Mr. Bouchard s August 1998
APPEAL NO. 98-WAT-26 Page 3 ground truthing, the Water Manager did not know that Richards Spring discharged into Beguelin and Grouse Creeks. Beguelin Creek and Grouse Creek have experienced severe water shortages, and during low flow periods will in several places sink underground and reappear downstream. Grouse Creek is fully recorded with licences that pre-date the Appellant s application. There are no licences on Beguelin Creek. A previous application for a licence on Beguelin Creek was refused, partly because of the water shortages on Grouse Creek. On the stream register, Richards Spring is shown as fully recorded for all purposes without full backup storage except for small domestic use. There are two existing licences on Richards Spring, both having priority before the August 27, 1991 date of the Appellant s application. The Respondent s position is that granting additional rights in the Richards Spring watershed would compound an already serious water shortage problem. In his view, the contribution of flow from Richards Spring is required to meet licenced water demand downstream of Richards Spring. The Appellant argues that there is plenty of water in Richards Spring, and not very much of it drains into Beguelin Creek and Grouse Creek. In his view, it is unreasonable to deny his licence and make him remove the works in the swamp seven years after his application, when he was never told during that time that his licence application may not succeed. Third parties, Keith and Penny Prigmore, own property adjacent to the Appellant s. They bought their property with its Richards Spring water licence from John Richards, who filed a written objection to the Appellant s application in November 1991. Mr. Richards protested in his 1991 letter that there was insufficient water from Richards Spring to allow another water licence. The Prigmores adopt Mr. Richard s objection, and complain further that their intake has been dry since 1998 because of the Appellant s works in Richards Spring. All of the other Third Parties are downstream licencees on Grouse Creek. All of the licences pre-date the Appellant s licence application. With the exception of Darlene Volk, who did not appear at the hearing, but provided a letter saying she did not object, the Third Parties object to the licence. The Third Parties are very concerned about water shortages, and they gave evidence about their experience with shortages, which generally occur from late June through September. Delores Marshall said they have experienced periodic water shortages ever since they bought their property in 1991. RELEVANT LEGISLATION Section 12 of the Act sets gives authority to a comptroller or regional water manager to refuse an application for a water licence. Section 9 and section 41(1)(s) of the Act make it an offence to make changes in and about a stream unless the person obtains written authorization from the comptroller, regional water manager, or engineer.
APPEAL NO. 98-WAT-26 Page 4 By definition under the Act, a stream includes a natural watercourse or source of water supply, whether usually containing water or not. Changes in and about a stream is defined in section 1 of the Act as: (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 within the stream channel that has or may have an impact on the stream. Works as defined in the Act includes changes in and about a stream, as well as anything capable of or used for diverting, storing, confining or using water. Under section 39 of the Act, the Water Manager is authorized to order the removal of any works, and the restoration or remediation of any changes in and about a stream. ISSUES 1. Whether there is a sufficient amount of unrecorded water in the Richards Spring watershed to support a licence to the Appellant. 2. Whether it was reasonable for the Water Manager to order removal of the Appellant s works in Richards Spring. 3. Whether the Water Manager s decision is unreasonable due to the fact that the refusal came 7 years after the Appellant applied for the licence. DISCUSSION AND ANALYSIS 1. Whether there is a sufficient amount of unrecorded water in the Richards Spring drainage system to support a licence to the Appellant. The Respondent testified that Richards Spring is fully recorded for all purposes without full backup storage, except for small domestic use. There are two existing licences on Richards Spring, both having priority before the August 27, 1991 date of the Appellant s application. Grouse Creek is fully recorded with licences that pre-date 1991. Water shortages have been so severe that the demands of the junior licence holders cannot be met, even when the senior irrigation rights holders voluntarily shut down their irrigation. The Appellant argued that the Water Manager was basing his decision on the 1998 water shortages, and that 1998 was the driest year in 102 years. The Respondent disputed that fact. In any case, the Panel heard evidence that water shortages in Grouse Creek have been occurring at least since 1991. The Panel agrees that, in the circumstances, the drainage system of Richards Spring, Beguelin Creek and Grouse Creek cannot support the licence to the Appellant
APPEAL NO. 98-WAT-26 Page 5 2. Whether it was reasonable for the Water Manager to order removal of the Appellant s works in Richards Spring. Mr. Bouchard testified that the size of the dug out pond is far in excess of what would be necessary for his proposed licence. The Appellant himself testified on cross-examination that the dug out pond is 25 feet by 70 feet, and up to 6 feet deep. Mr. Bouchard said that if the licence had been granted, the approved diversion and intake would have been much smaller. It is not clear whether the Appellant s works have caused the Third Party Prigmores loss of water from their intake in Richards Spring. The Prigmores said that the Appellant s pond and intake are below theirs, and it has resulted in changes to the drainage of the swamp containing Richards Spring, causing their intake to dry up. The Appellant refuted the Prigmores allegation, and said their intake dried up because it is old and in poor repair, and blocked by debris. He also suggested that the Prigmores digging of roadside ditches on their property could have caused their water problem. At the hearing, Mrs. Prigmore testified that their intake has been cleared of dirt and vegetation and thet they never dug out ditches, rather they raised the road, making the ditches appear deeper. It is possible that Appellant s works have changed the drainage in the Swamp, resulting in the Prigmores problems. In any case, the works were unauthorized, and are unnecessary since the Panel has concluded that the Appellant s licence application was correctly refused as there is insufficient water. The Panel concludes that the unauthorized works should be removed as ordered, because of the excessive size of the dugout, and the possible effect it could be having on the Prigmores licenced water supply from Richards Spring. 3. Whether the Water Manager s refusal to issue the water licence is unreasonable due to the fact that the refusal came 7 years after the Appellant applied for the licence. The Appellant complained that at no time in the past 7 years was there any indication that the application would be refused. He was angry that it took so long, and he said he built the pond and intake in 1995 because he thought by then nobody cared about his application. At the hearing, the Panel was also very concerned about the length of time this application took. The Respondent told the Panel that there were some unique problems with this case. The original technician left in the fall of 1991. Because of a hiring freeze, he could not be replaced until Mr. Bouchard took the job in 1992. The water manager requires two years of in-house training before qualifying a technician to make reports and recommendations on water licence applications. There was a huge backlog of applications, and, indeed, there is still a backlog of 1600 applications for new or revised licences in the Thompson/Nicola area. There is not enough staff to deal with them in a timely manner. The Panel accepts the Respondent s evidence that the delay was not a deliberate attempt to thwart the Appellant s application, as was suggested in the Appellant s statement of points. However, the delay of seven years is unacceptable, and the
APPEAL NO. 98-WAT-26 Page 6 Panel urges the Water Manager to do everything possible to avoid such a long delay in the future. The Panel has sympathy with the frustration felt by the Appellant about the length of time his application took to be investigated and decided upon. However, the delay cannot negate the reasons for refusal of the licence, or the requirement to remove the works in Richards Spring. DECISION In making this decision, the Panel of the Environmental Appeal Board has considered all the relevant documents, evidence and submissions made at the hearing, whether or not they have been specifically reiterated here. The Panel confirms the Water Manager s October 7, 1998 decision refusing the water licence, and ordering that the Appellant remove his works and fill in the dug out in Richards Spring and return the area to its natural state. Jane Luke, Panel Chair Environmental Appeal Board October 27, 1999