Decision Date: April 16, 2013

Panel: James S. Mattison

Keywords: Water Act – s. 9(1)(a); approval; changes in and about a stream; stream channel; natural boundary

0805626 BC Ltd. (the “Company”) appealed a decision of the Assistant Regional Water Manager (the “Water Manager”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Water Manager refused the Company’s application for an approval to make changes in and about a stream. Specifically, the Company requested an approval to place fill on part of the Company’s property adjacent to Dragon Lake, BC. The Company sought to add the fill to protect its property from flooding. A recreational vehicle park is operated on the property.

In the past, a previous owner of the property placed fill along the edge of the property adjacent to the Lake. In 1994, the Ministry ordered the previous owner to cease adding fill, and obtain a survey of the property boundaries.

In 1999, after the site was surveyed, the natural boundary of Dragon Lake was adjusted, and the property line was established along the southern portion of the property. The property line was also realigned to reflect the natural boundary of Dragon Lake on the east side of the property. As a result of the survey, “new” land was recorded between the revised natural boundary of the Lake and the property. This new land was registered as a separate parcel, and is the area on which the previous owner placed most of the fill.

By a Crown Grant issued in December 1999, the previous owner purchased the new land. As a condition of the Crown Grant, the new land was consolidated with the pre-existing property, which was largely unfilled, to form the subject property. The Crown Grant also required that “… the Grantee shall not construct, erect or maintain any improvements on the land within 7.5 metres of the natural boundary of Dragon Lake …”.

In 2008, after the Company purchased the property, one of the Company’s partners added more fill along the side the property, adjacent to the Lake. Following a complaint, the Ministry inspected the site.

In the Fall of 2008, the Ministry requested that the Company stop the filling, to allow a habitat assessment. On the completion of this assessment, the Company was directed by a Habitat Officer with the Ministry to remove the fill. The Appellant appealed that direction to the Board. However, the Board advised that it had no jurisdiction over an appeal from the decision of a Habitat Officer. No further filling was done at that time, but no fill was removed.

In 2011, the Company notified the Ministry that it intended to place more fill. However, the Ministry advised the Company to apply for approval to do so.

In September 2011, the Company applied for an approval under the Water Act to make changes in and about a stream by placing fill on the property adjacent to Dragon Lake, and seeding the area with grass. Approximately 2500 square metres of area was proposed to be disturbed. The application was referred to interested agencies for comment, including the Ministry’s Habitat Management section. Following a site visit, a Habitat Biologist with the Ministry recommended that the area should not be filled.

In June 2012, the Water Manager refused the Company’s application on the basis that the area to be filled is part of Dragon Lake, and the Habitat Biologist recommended that the area should not be filled.

The Company appealed to the Board on the basis that the Water Manager’s decision was based on several errors. The Company submitted that the portion of the property to be filled was sold by the Crown in 1999, and at that time, was determined to be land and not part of the Lake. The Company also submitted that the area to be filled is above the Lake’s high water mark, and therefore, is not in a “stream” as defined in the Water Act. In addition, the Company submitted that the Lake’s water level is controlled by the City of Quesnel, and the Habitat Biologist visited the site when the property was flooded as a result of the City not releasing enough water.

The Board first considered whether the placement of fill on part of the property more than 7.5 metres inland from the natural boundary of Dragon Lake fits within the definition of “changes in and about a stream” and, therefore, requires an approval under the Water Act. The Board found that the southern portion of the subject area is directly connected to the Lake and, therefore, is “in and about a stream”. The Board found that the eastern portion of the subject area is not in the Lake, but is close to the Lake and may be a “swamp”. Based on evidence of the area’s characteristics, the Board found that at least some of the eastern area is a swamp, and therefore, the Company requires an approval under the Water Act.

Next, the Board considered whether an approval should be granted in this case. The Board found that it is important to protect the quality of the water in Dragon Lake, and that swamps and areas around the shoreline help to maintain water quality. Based on evidence of the subject area’s characteristics, the Board confirmed the Water Manager’s decision to deny the approval in respect of the southern portion of the subject area. However, in respect of the eastern portion of the subject area, the Board found that it had insufficient evidence about the areal extent and location of the swamp, and how filling that area may affect water quality, fish and fish habitat, to decide whether an approval should be issued. Consequently, the Board sent the matter back to the Water Manager to reconsider the eastern portion of the subject area, with directions to seek further information about the areal extent and location of the swamp, and how filling that area may affect water quality, fish and fish habitat.

Accordingly, the appeal was allowed, in part.