Decision Date: June 3, 2015

Panel: Alan Andison

Keywords: water licence; diversion; stream channel; order; consent order

Jason Horst appealed an order issued on October 4, 2013, by the Assistant Regional Water Manager (the “Regional Manager”), Kootenay Boundary Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). Mr. Horst and each of the Third Parties hold water licences on Maguire Creek, and they share a joint diversion structure and water pipeline. The order required Mr. Horst to undertake certain work to restore the point of water diversion to a condition that complied with his licensed water works, so that water in excess of that diverted by the licensed intake could flow down the “main natural channel” of Maguire Creek.  Specifically, he was ordered to clear a “minor diversion,” constructed at or near the point of diversion, that allegedly diverted nearly all of the creek flow to a small intake pond. The unused water was allegedly flowing over an old rock weir and into an abandoned ditch, rather than continuing in the natural channel of Maguire Creek.

Mr. Horst appealed the order on the basis that, before and after his water works were constructed, Maguire Creek downstream of the works has flowed in two channels, rather than one, and eventually becomes part of an alluvial fan. He submitted that it would be unnatural and dangerous to divert all of the water into one channel, especially during periods of high water flow. He submitted that doing so would create risks to a nearby road, neighbouring properties, and riparian habitat.

The Board offered Third Party status in the appeal to Mr. and Mrs. Purcell, Mr. Proudfoot, and Mr. and Mrs. Melling, as licensees on Maguire Creek who may be directly affected by the Board’s decision on the appeal. Each of them accepted Third Party status.

Mr. Proudfoot submitted that Mr. Horst was unlawfully diverting water into the abandoned ditch, contrary to Mr. Horst’s water licence, and that this resulted in nearly no water flow some distance downstream in the natural channel of Maguire Creek. Mr. Proudfoot submitted that this resulted in insufficient water reaching the groundwater well and marsh located on his property. A complaint by Mr. Proudfoot to the Ministry had led to the issuance of the order.

Similar to Mr. Horst’s grounds for appeal, Mr. and Mrs. Purcell submitted that excess water that is not diverted at the licensed diversion works should be allowed to flow down both branches of Maguire Creek. They submitted that, when they purchased their property in 2006, water was flowing in both branches of Maguire Creek, and has continued to flow in both branches except for a period in August 2013. They understood that this was caused by Mr. Horst moving rocks near the point of diversion. They submitted that, if the water flow ceased in one branch of Maguire Creek on a permanent basis, they would be adversely affected. Their fields which are used as pasture for horses would have no naturally occurring water, and expensive irrigation equipment would need to be installed. They also submitted that, if the flow in both branches of the Creek ceased, there would be significant adverse impacts on the economic, aesthetic and environmental values of their property.

Mr. and Mrs. Melling submitted that they use their property for ranching and agricultural purposes, and Maguire Creek flows through their property. They have upgraded their irrigation system, and they had applied for a new water licence that would allow the diversion of water from Maguire Creek downstream of the existing diversion works. They expressed concern about the impact of reduced Creek flows on their irrigation system and their enjoyment of the Creek.

An oral hearing of the appeal was scheduled to be held in August 2014, but the Purcells requested an adjournment, which the Board granted. The Board rescheduled the hearing in April 2015. In the meantime, the parties decided to attempt to negotiate a resolution of the appeal.

Before the appeal was heard, an agreement to settle the matter was reached by Mr. Horst, the Regional Manager, Mr. Proudfoot, and Mr. and Mrs. Melling. Mr. Horst agreed to comply with the order by July 15, 2015. The other parties consented, with the exception of Mr. and Mrs. Purcell.

The Regional Manager advised the Board of the settlement reached by all the parties except the Purcells. The Regional Manager requested that the Board accept the agreement and issue a consent order, despite the lack of consent from the Purcells. The Regional Manager submitted that a hearing was unnecessary because Mr. Horst had conceded his appeal, and the Purcells had provided no information that would overturn the order. The Board offered the Purcells an opportunity to provide comments, and they confirmed their objection to the agreement, for the reasons provided in their previous submissions. They also submitted that they had evidence to support their position, which they would present at the appeal hearing.

By a letter dated April 10, 2015, the Board advised the parties that the agreement and consent order signed by all parties, except the Purcells, concluded the issues in the appeal, and Mr. Horst’s appeal had essentially been abandoned given his agreement to comply with the order issued in 2013. The Board found that the Purcells, as a Third Party, could not force the appeal filed by Mr. Horst to proceed to a hearing. To do so would be unfair to Mr. Horst. In these circumstances, the Board decided to accept the consent order, as filed, and cancel the appeal hearing.

Accordingly, with the consent of Mr. Horst, the Regional Manager, and the Third Parties other than Mr. and Mrs. Purcell, the appeal was dismissed.