Decision Date: September 15, 2003

Panel: Cindy Derkaz

Keywords: Water Act – ss. 5, 12, 22, 39; fish habitat; delay

Tom Redl appealed various conditions of a water licence issued by the Assistant Regional Water Manager (the “Regional Manager”), authorizing diversion and storage of water for irrigation purposes.

The main issue in this appeal was whether the Regional Manager erred in including conditions in the licence to allow for a minimum flow of water for a downstream fish habitat.

The Board found that it was within the discretion of the Regional Manager to consider the impact of the water licence on fish habitat, and that the Regional Manager properly considered practices and procedures regarding minimum fish flows that came into effect after the licence application was submitted.  The Board found, however, that some of the conditions of the licence were unreasonable.  The evidence before the Board did not support a finding that there was a need for conditions requiring the redesigning of a dam, the installation of monitoring devices, and restricting water diversion based on flow minimums.  The Board held that such conditions placed an unreasonable burden on the Appellant, and that the Regional Manager failed to show sufficient reason for including them in the licence.  The matter was referred back to the Regional Manager with directions to remove the provisions relating to flow minimums for fish and to redraw the plan attached to the licence to show District Lot lines.

The appeal was allowed, in part.