Decision Date: September 10, 2007

Panel: David H. Searle, C.M., Q.C., Don Cummings, Gary Robinson

Keywords: Water Act – s. 9, s. 88, s.93; unauthorized stream diversion; stream restoration; “innocent purchaser”

In 2006, the Assistant Regional Water Manager (the “Manager”) issued an order under section 88 of the Water Act requiring Double 00 Ranch Ltd. (“Double 00”) to restore a stream channel located on Double 00’s property. Double 00 had purchased the property from Mr. Olsen, who had excavated a diversion ditch on the property to intercept Kersley Creek without lawful authority. Double 00 sought a reversal of the order.

The Board determined that orders made pursuant to section 88 of the Water Act run with the land, and, therefore, the Manager had jurisdiction to issue an order to Double 00 regarding unauthorized works performed by the previous owner. The Board also found that Double 00 was not an “innocent purchaser”, insofar as they knew or ought to have known of the diversion, yet proceeded with the purchase of the property without obtaining a copy of the required authorization. Therefore, Double 00 was properly named in the order.

The Board found that there was sufficient basis for the order. Aside from the general authority to issue an order for an unauthorized diversion, the diversion had contributed to the downstream sediment load, hence to some problems in the watershed that needed to be addressed. Therefore, the Board confirmed the issuance of the order.

However, the Board determined that the Manager should have taken more time to discuss the matter with Double 00, provided a copy of the professional report which was the basis for the order, and provided longer time frames for compliance. The Board also found the requirement in the order to restore the bed load and flow conditions leaving the property to what they were before the diversion to be unfair and unreasonable. There had been changes to the flows onto the property which were not the sole responsibility of Double 00 to address. As a result, the Board varied the order to require restoration that would, instead, eliminate or mitigate the effects of the unauthorized diversion, and extended the timeline for completion of the restoration.

Therefore, the appeal was allowed, in part.