Decision Date: December 16, 2003

Panel: Cindy Derkaz

Keywords:  Water Act – ss. 1 – definition of “works”, 39; conditional water licence; dam

Urs Studer appealed the order by an Engineer under the Water Act (the “Act”) that required him to remove an unauthorized dam located on Honeyburn Creek near Quesnel, BC.  Mr. Studer requested that the Engineer’s order be reversed.

The issues in this appeal were: whether the dam on Honeyburn Creek was an authorized structure; and, whether the impounded water should be released and the dam removed.

The Panel found that the dam on Honeyburn Creek was authorized by a Conditional Water Licence.  The Panel also found that, even if the dam on Honeyburn Creek was an authorized structure, an engineer has the power under section 39(1)(d) of the Act to order it removed.  The Panel held that limiting an engineer’s power under section 39(1)(d) to ordering the removal of unauthorized works would be an unreasonable restriction, because an engineer must have the power to require alterations to or removal of works (including previously authorized works) that are no longer viable or efficient.

The Panel upheld the order and found that the dam should be removed.  The Panel found that the dam and the pond created by the dam were an inefficient use of the province’s water.  In reaching this conclusion, the Panel noted that, given the evidence of reduced water flow in Honeyburn Creek, it is important that licensees install works that only divert the amount of water authorized in their licence.  The Panel found that Mr. Studer could install a more appropriate and efficient diversion structure that would divert only the quantity of water authorized under his water licence.

The appeal was dismissed.