Decision Date: May 22, 2013

Panel: Blair Lockhart

Keywords: Water Act – ss. 12(1), 23(2); licence; domestic purpose; fully recorded; beneficial use

Caroline Hopp appealed a decision of the Assistant Regional Water Manager (the “Water Manager”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), refusing to issue a water licence to Ms. Hopp.

Irish Spring is a small water source located on a parcel of land (“Lot 12”) near Bralorne, B.C. Lot 12 is owned by the Third Parties, who also hold a water licence on Irish Spring. Ms. Hopp owns land (“Lot 9”) across the road from Lot 12.

In 2008, Ms. Hopp applied for a licence to divert 500 gallons of water per day from Irish Spring for domestic purposes. In her licence application, she indicated that although the proposed water diversion works would have to be located on Lot 12, the Third Parties did not consent to having such works on their property. She advised the Ministry that the flow of water from Irish Spring was estimated in November 2008 to be 1,458 gallons per day.

In 2008, Ms. Hopp also applied for a licence to divert and use 500 gallons of water per day from Ogden Spring, located adjacent to the northern boundary of Lot 12. That licence was issued in late 2009.

In March 2009, Ms. Hopp notified the Third Parties of her application for a water licence on Irish Spring. Subsequently, the Third Parties notified the Ministry that they objected to the proposed licence.

In September 2010, and again in September 2012, Ministry staff visited Irish Spring to determine the rate of water flow from the Spring. The 2010 estimate was 130 gallons per day, and the 2012 estimate was 100 gallons per day.

In September 2012, the Water Manager refused to issue the licence on Irish Spring, on the basis that the Spring is fully recorded under the existing licence and there is insufficient water to enable a new licence to be issued.

Ms. Hopp appealed to the Board on the basis that there is sufficient water flow to support a new licence, and the Third Parties’ existing licence on Irish Spring is not being beneficially used and should be cancelled pursuant to section 23 of the Water Act. Ms. Hopp also submitted that 200 gallons of water per day from Irish Spring would be sufficient to meet her needs, as her other licence provides sufficient water except during especially dry years.

The Water Manager submitted that his decision should be confirmed.

The Third Parties agreed with the Water Manager. They also submitted that there are significant seasonal variations in the flow from Irish Spring, and in especially dry years the Spring dries up almost entirely between July and October.

Based on the evidence, the Board found that there is insufficient water flow from Irish Spring to support an additional licence, even for the reduced amount of 200 gallons per day. Further, the dry periods when Ms. Hopp would need to use the flow from Irish Spring were also the times when the flow from Irish Spring was very low. The Board held that Irish Spring is fully recorded.

Next, the Board considered whether the Water Manager should have cancelled the Third Parties’ licence on Irish Spring for failure to make beneficial use of the water. The Board found that the scope of the present appeal was limited to the Water Manager’s decision regarding the licence application, and did not extend to deciding whether a different existing licence should be cancelled. However, even if the scope of the appeal did include this issue, the Board concluded that there was beneficial use by the Third Parties, who provided evidence that they used the water for domestic purposes associated with a rustic cabin and small garden on Lot 12.

Accordingly, the appeal was dismissed.