Decision Date: December 3, 2010

Panel: Alan Andison

Keywords:  Water Act – s. 23(2); Fish Protection Act – s. 6; conditional water licence; cancellation; unauthorized water use; sensitive stream; irrigation

Fulford Creek Holdings Ltd. and Janis Gauthier filed separate appeals of the decision of the Assistant Regional Water Manager (the “Manager”), Vancouver Island Service Region, Ministry of Environment (the “Ministry”) to cancel conditional water licence no. 23644 (the “Licence”). The Licence authorized the diversion of water from Fulford Creek, a fish-bearing stream on Saltspring Island, for industrial purposes. The Licence also included a condition which required that any water diverted from the Creek must be returned to the natural channel of the Creek. The Manager decided to cancel the Licence after conducting a site visit at the Appellants’ properties and finding that water had not been used for the authorized industrial purpose for several years. Rather, the Appellants were diverting water from the Creek for unauthorized purposes; namely, irrigating crops and providing water to a small flock of chickens. Each of the Appellants operates a small commercial organic farm, and they require water to irrigate their crops during the dry summer months.

On appeal, the Appellants asked the Board to maintain the Licence with a reduced water allocation so that they could continue to draw water from the Creek for irrigation purposes until they could develop a more efficient irrigation system that incorporates water storage.

The Board found that the Licence did not authorize the diversion of water from the Creek for irrigation purposes, and the evidence established that water had not been used for the licensed industrial purpose for many years. The Board also found that the Licence authorized non-consumptive water use only, because it required that any water diverted had to be returned to the Creek channel, whereas irrigation is a consumptive use. The Board held both that the Appellants’ failure to comply with the terms of the Licence, and their failure to make beneficial use of the water for the licensed purpose for over three years, provided grounds to cancel the Licence under section 23(2) of the Water Act.

In addition, the Board considered that Fulford Creek has been fully recorded since 1980, and is a designated sensitive stream under the Fish Protection Act which means that the Creek’s fish population is considered to be at risk and in need of protection. Further, the evidence established that the Creek experiences low water flows during the summer which would cause stress to fish and fish habitat.

For all of those reasons, the Board concluded that the Appellants’ unauthorized consumptive use of water from the Creek should not be allowed to continue, and the Manager’s decision to cancel the Licence should be confirmed. However, the Board noted that this would not preclude the Appellants from applying for a new water licence authorizing irrigation use, if supported by water storage, and subject to the requirements of the Water Act and the Fish Protection Act.

Accordingly, the appeal was dismissed.