Decision Date: November 19, 2013

Panel: Gabriella Lang

Keywords: Water Act – ss. 9(1), 88(1); changes in and about a stream; unauthorized works; dugout; access road

Jason Ralph Frank appealed an order issued by the Regional Water Manager (the “Water Manager”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), requiring Mr. Frank to remediate unauthorized changes in and about the channel of Coal Creek.

In 2012, Mr. Frank purchased land in the Peace River Region of BC. Coal Creek runs through his land.

In early 2013, Ministry staff observed what appeared to be recently constructed or expanded road access to Coal Creek on Mr. Frank’s property. On further investigation, Mr. Frank advised the Ministry that he had widened an existing trail with a bulldozer to provide access for a pump and pipes that brought water to a dugout. The Ministry determined that the work had been done without authorization under the Water Act.

On April 18, 2013, the Water Manager issued the order to Mr. Frank, pursuant to sections 88(1)(d) and (e) of the Water Act. The order required Mr. Frank to retain a qualified professional to prepare a site remediation plan for restoring the disturbed areas in and about Coal Creek. The order required that the site remediation plan be submitted to the Water Manager by May 31, 2013, and the remediation work be completed by June 15, 2013.

Mr. Frank appealed to the Board on the basis that the order did not contain the correct legal description of his property, and therefore, did not apply to his property. He also submitted that the order should be reversed, because he widened the existing trail with as little disturbance as possible to the ground, the widening caused no contamination of Coal Creek, and the remediation work would cause greater disturbance to the Creek.

The Water Manager submitted that the order should generally be confirmed, but it should be amended to include the correct legal description of Mr. Frank’s property, and to extend the timelines for submitting and implementing the site remediation plan.

The Board found that the order incorrectly identified Mr. Frank’s property. However, there was no dispute that the activities that led to issuing the order took place on Mr. Frank’s property. Therefore, the Board directed the Water Manager to amend the order to reflect the correct legal description of the property.

Furthermore, the Board found that the evidence, including photographs of the site, established that widening the trail to access Coal Creek for the purpose of pumping water to the dugout constituted unauthorized changes in and about a stream, and resulted in increased sedimentation, and a risk of ongoing erosion, in Coal Creek. Consequently, the Board concluded that the order was reasonable in the circumstances, and should be confirmed except for extending the deadlines for submitting and implementing the site remediation plan.

Accordingly, the appeal was dismissed.