Decision Date: December 14, 2005

Panel: J. Alex Wood

Keywords: Water Act – ss.5, 7, 10, 15 and 22; fully recorded; domestic purposes; irrigation purposes; non-consumptive use

Randall McRoberts appealed a decision by the Assistant Regional Water Manager (the “Assistant Manager”) refusing Mr. McRoberts’ application for a water licence on Salter Creek on the grounds that the flow in Salter Creek was fully recorded under existing water licences, and there was insufficient water in the source to grant a new licence.

Mr. McRoberts sought an order reversing the decision on the grounds that the amount of water requested was very small and would not adversely affect the other licensed water users on Salter Creek. Mr. McRoberts requested a licence allowing the use of 1000 Imperial gallons per day (Igpd) for domestic purposes and 1000 Igpd for lawn irrigation.  Alternatively, if a licence was not issued, Mr. McRoberts requested that the licence application fee of $250 be returned to him.

Mr. McRoberts’ water licence application is for his lot, located downstream of the Zehnder Farms and upstream of NathanLee Forest and Farm’s (“NathanLee”) lots.  Zehnder Farms and NathanLee have water licences, the first for irrigation purposes and the second for power (residential) purposes for one dwelling unit.  Neither Zehnder Farms nor NathanLee had began to make beneficial use of the water at the time of the hearing, as authorized “works”, described in their water licences, had not been completed.

The Regional Manager submitted that Mr. McRoberts’ licence could not be granted because Salter Creek was fully recorded (meaning that the amount of water use authorized under licences for the stream had reached the stream’s full capacity for licensed use), and, thus, the requested licence would exceed the total flow available for most of the year.

The Regional Manager noted that the Zehnder Farms and NathanLee licences were granted in 1999, before Mr. McRoberts’ application.  Based on section 15 of the Water Act, since the Regional Manager issued a licence (which was not currently used) downstream from Mr. McRoberts, with a later priority date, Mr. McRoberts would have to allow the total flow to pass his proposed point of diversion to satisfy the priority licence downstream (i.e., NathanLee).  The Regional Manager stated Mr. McRoberts was refused the licence because granting it would adversely affect Zehnder Farms’ or NathanLee’s rights under their licences.

NathanLee’s two concerns were that when Zehnder Farms utilizes its licensed flow for irrigation, the water available for NathanLee’s power generation will be substantially reduced.  Furthermore, NathanLee stated that when this occurs, the Salter Creek flow will be insufficient to supply someone else with water further reducing the in flow in NathanLee’s point of diversion.

The Board first found that, in light of Salter Creek being fully recorded, there was no clear justification to issue a licence for 1000 Igpd for residential lawn irrigation, as this type of water use is ranked lower than other uses under section 15(2) of the Water Act.

However, the Board determined that Mr. McRoberts’ licence for 1000 Igpd for domestic purposes, as defined in section 1 of the Water Act, would not impact the upstream licence holder (Zehnder Farms).

The Board also found that, although the Zehnder Farms’ licence was not yet being used, once Zehnder Farms commenced using it, the remaining flow of the creek would likely be too low to operate NathanLee’s turbine, regardless of whether Mr. McRoberts’ licence was granted.  However, when the stream has sufficient flow to generate power, the impact of Mr. McRoberts’ use under his licence would be very small or relatively insignificant.

Thus, the Board reversed the Regional Manager’s decision and ordered him to issue a conditional water licence to Mr. McRoberts for domestic purposes, but not for lawn irrigation.

As for Mr. McRoberts’ request for a refund of his application fee, the Board found that there is no provision in the legislation that would allow the Board to waive or modify the fees for any individual making a water licence application.

Accordingly, the appeal was allowed, in part.