Decision Date: October 31, 2007

Panel: Margaret Eriksson, Don Cummings, Bruce Devitt

Keywords: Water Act – s. 2, s. 19; water licence; environmental assessment; economic impacts; use and enjoyment of property; riparian rights; fettering of discretion; oral decision

Mr. Planedin owns and operates a family campground and RV park (the “Campground Property”) at the bottom of Cascade Falls near Christina Lake, BC, and jointly owns a second  riparian property (“Lot 2”). In 2006, the Deputy Comptroller of Water Rights, Ministry of Environment (the “Deputy Comptroller”) issued a Conditional Water Licence (the “Licence”) to Powerhouse Developments Inc. (“PDI”). The Licence allowed PDI to divert water from the Kettle River at the top of Cascade Falls and to construct works in connection with a “run of the river” hydroelectric project. Mr. Planedin appealed the Deputy Comptroller’s decision and asked that the Licence be rescinded.

At the conclusion of the appeal hearing, the Board issued an oral decision. The Board subsequently issued written reasons for its decision, as required by its enabling legislation.

The Board found that, as the owner of the Campground Property and Lot 2, Mr. Planedin had standing as a riparian owner to bring an appeal under the Water Act (the “Act”). However, the Board found that it had no jurisdiction to consider the issues raised by Mr. Planedin regarding the environmental assessment process completed before the issuance of the Licence, as the Board’s jurisdiction is limited to the considerations that go into the making of decisions under the Act.

The Board first considered whether the water diversion and related works authorized by the Licence would have a negative impact on the Campground Property and Lot 2. The Board found that the placement of the tailrace, which will direct water from the project’s powerhouse back into the stream channel, and part of the works approved under the Licence may have a negative physical impact on the Campground Property and/or Lot 2 if not designed properly. Therefore, the Board added a condition to the Licence, directing PDI to ensure that the final design of the tailrace will mitigate potential negative impacts on the water flows and the sandy cut-bank. Another condition was added to require PDI to develop a monitoring plan to assess potential changes to the Cascade Cove beach area and to recommend mitigative actions.

The Board then considered whether Mr. Planedin, as an owner of riparian property, had a “right” under the Act to economic survival and not to be driven out of business or have the quiet use and enjoyment of his property diminished by the project authorized by the Licence. The Board considered the meaning of the word “rights” in the context of section 92(1)(c) of the Act, and whether the “rights” referred to were limited to riparian rights. The Board determined that it did not need to address the issue, as the Environmental Assessment Certificate (the “Certificate”) that was issued to PDI included a number of conditions to mitigate Mr. Planedin’s concerns in relation to his quiet use and enjoyment of his property. Moreover, although the Board concluded that economic impacts may be relevant to a decision under the Act, the economic losses Mr. Planedin sought to be protected from were purely speculative.

Next, the Board considered whether the diversion of water would impact the appearance of Cascade Falls. The Board determined that the preservation of aesthetic values was outside the purview of the Act. Additionally, the Board found that riparian rights to the use and flow of water in a stream had been extinguished by the Act.

Finally, the Board considered whether the Deputy Comptroller’s discretion had been fettered by the environmental assessment process and the issuance of the Certificate. Although the Deputy Comptroller was part of the team that provided briefings and comments to the Minister during the environmental assessment process, and his Minister signed the Certificate and the Order-in-Council, the Board was satisfied that he retained independent discretion to issue or refuse PDI’s water licence application. He took into account legitimate and relevant considerations under the Act in deciding to issue the licence, and the terms and conditions of the Licence are fair and reasonable and will protect the water resource.

Accordingly, the Regional Manager’s decision was confirmed, subject to two minor amendments to the Licence. The appeal was allowed, in part.