Decision Date: April 5, 2011

Panel: Alan Andison, Reid White, Loreen Williams

Keywords:  Water Act – s. 7; irrigation purpose; minimum stream flow; fisheries

Peter and Joan Sanders appealed the decision of the Assistant Regional Water Manager, Ministry of Environment (the “Ministry”) refusing to issue a licence authorizing the Sanders to divert 12 acre feet of water per year from Bridge Creek.  They sought to irrigate a hay field on their farm so they could support a larger flock of sheep.  The Assistant Regional Water Manager refused their application on the basis that the Creek is fully recorded, and has insufficient flow to provide for the licence they sought and still meet the demands of existing water licenses and provide the minimum flow needed for fisheries.

During the appeal hearing, the Sanders indicated that their intention in applying for the licence was to withdraw water from the Creek during the freshet in May and June, and in most years they would need only 50 to 60 percent of the 12 acre feet of water sought.  They acknowledged that their licence application did not specify those things, and it was understandable that the Assistant Regional Water Manager assessed their application on the basis that they sought to use the water year-round.  However, they submitted that the Assistant Regional Water Manager relied on flawed information when he determined that the Creek had insufficient flows to support the licence they sought.

The Board found that the Assistant Regional Water Manager relied on a flawed report regarding the minimum flows needed to support fisheries in the Creek, and that the Board was not bound by a Ministry policy that new licences may only be issued on fully recorded streams if the water use is supported by storage during freshet.  Based on the evidence presented at the hearing, the Board concluded that there was sufficient flow in the Creek to support a licence for the diversion of 6 acre feet of water from the Creek between May 1 and June 30 annually.  The Board determined that withdrawing 6 acre feet of water at that time would have no negative impacts on fisheries or existing downstream licensees.  However, the Board ordered that, as a condition of the licence, the Sanders must install and maintain a stream gauge and record the volume of water they used.  The Board also ordered that the Assistant Regional Water Manager should establish a reasonable and defensible low-flow level for the Creek, and that water withdrawal would not be permitted below that level.

Accordingly, the appeal was allowed.