Decision Date: January 10, 2008

Panel: Alan Andison, Richard Cannings, J.A. (Alex) Wood

Keywords: Water Act – s. 9; species at risk; approval; changes in and about a stream

In 2006, the Assistant Regional Water Manager (the “Manager”) refused an application by 0707814 BC Ltd. (the “Appellant”) for an approval to “make changes in and about a stream” under section 9 of the Water Act.  The Appellant had applied to infill a ravine on its property in Abbotsford BC, in order to construct a road for the purposes of a residential development. The application was refused on the grounds that it would negatively impact the habitat of at least four provincially or federally listed species at risk found in the wetland area of the property: the Pacific waterleaf, the red-legged frog, the Oregon forestsnail, and the Pacific sideband.

The Board considered four issues.  The first issue was whether the design of the proposed infilling would protect the hydrological regime of the area.  The Board determined that it could offer protection, but only if three additional conditions regarding design flows for the site were added to any final approval of the proposal.

The second issue was whether the design of the proposed infilling addressed the environmental damage that would result from the proposed works. The Board accepted the Manager’s evidence that four species at risk inhabited the property and could be impacted by the application. The Board also confirmed that the impact of a proposal on species at risk is a relevant consideration in the context of a section 9 application, and that the overall weight to be given to this matter depends on the gravity and magnitude of the impact on the species. The Board found that, given the level of current and future development in surrounding areas, the species at risk identified (with the exception of the Pacific Waterleaf) were unlikely to persist on the property, even if the application was denied. The Board also noted that the proposal actually included certain protections for those species, which increased the likelihood of some of them surviving on the property. Therefore, the Board found that the proposal would not have an irreparable impact on the species at risk identified, and that it addressed the environmental damage that would result from the proposed works.

As a result, the Board found that it was appropriate to grant the application, subject to a number of conditions to protect the site’s hydrological regime and the species at risk identified.

Accordingly, the Board sent the matter back to the Manager with directions to issue an approval to the Appellant, and to include the conditions specified by the Board.

Finally, the Appellant applied for an order requiring the Manager to pay the Appellant’s costs associated with the appeal.  The Board denied the application for costs.

Accordingly, the appeal was allowed.