Decision Date: August 4, 2010

Panel: R.G. (Bob) Holtby

Keywords:  Water Act – s. 12; water licence; lake; diversion

Warron Bridger appealed a decision by the Assistant Regional Water Manager (the “Assistant Manager”), Water Stewardship division, Ministry of Environment. The Assistant Manager refused an application by the Regional District of East Kootenay (the “Regional District”) for a water licence to divert two cubic feet per second (“CFS”) of water from Lewis Creek to Lazy Lake during August and September of each year.

Lazy Lake is located near Wasa, BC. Lewis Creek flows near Lazy Lake. In or about the early 1900’s, Lazy Lake was smaller than it is today, but it began to increase in size as a result of runoff from irrigation on adjacent lands. It eventually became a recreational lake. In 1965, a water licence was issued to several owners of cottages on Lazy Lake, authorizing them to divert 5 cfs of water from Lewis Creek to Lazy Lake between May 15 and July 31 of each year. In the early 1970’s, those water rights were transferred to the Regional District so it could carry out improvements to the diversion structures to maintain the water level in Lazy Lake. In 2004, a second water licence was issued to the Regional District, authorizing the diversion of 5 cfs of water from Lewis Creek to Lazy Lake between October 1 and November 30 of each year.

In 2008, the Regional District applied for a further water licence to divert 2 cfs of water from Lewis Creek to Lazy Lake during August and September of each year. The Assistant Manager refused that application on the basis that there is insufficient water in Lewis Creek to grant the licence. Mr. Bridger owns property on Lazy Lake, and he appealed to the Board on the basis that the water lost from Lazy Lake flows back into Lewis Creek, and therefore, the licence should have been granted.

The Board considered the parties’ evidence regarding drainage flows from Lazy Lake, the existing amount licensed water use on Lewis Creek, and the amount of in-stream flow that should be retained in Lewis Creek to meet requirements for fish and downstream benefits. The Board held that there is no evidence that any flow from Lazy Lake returns to Lewis Creek, and there is no additional water available in Lewis Creek for diversion during August and September.

Accordingly, the appeal was dismissed.