Decision Date: August 24, 2016

Panel: James Mattison, Linda Michaluk, Robert Wickett, Q.C.

Keywords: Water Act – ss. 16, 20, 23, 33; conditional water licence; run-of-river hydroelectric project; monitoring; fish; frogs; flooding; minimum stream flow; habitat loss; environmental impact

Maureen and Charlie Chapman appealed a decision of the Assistant Regional Water Manager (the “Water Manager”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), to issue a conditional water licence to Zella Holdings Ltd. (“Zella”). The water licence authorizes Zella to divert water from Lorenzetta Creek for use in a run-of-the-river hydroelectric plant.

The Appellants reside downstream of the hydroelectric plant, and hold a conditional water licence that authorizes them to use water from Lorenzetta Creek for irrigation and domestic purposes.

When Zella applied for the water licence in 2012, the Appellants were offered an opportunity to file an objection. The Appellants wrote objection letters to both the Ministry and to Zella. The Appellants also attended a meeting with representatives of Zella and the Ministry. The Appellants raised concerns about the impacts of the project on salmon and the Creek’s ecosystem. Zella provided written responses to the Appellants.

The Water Manager issued the water licence in April 2015. The licence authorizes a maximum diversion rate of 0.6 cubic metres per second throughout the year, subject to numerous conditions. For example, the licence requires Zella to: maintain a minimum instream flow of 0.062 cubic metres per second at all times; conduct continuous instream flow monitoring; manage ramping rates when fish fry are present; prepare a monitoring plan for the Water Manager’s approval; submit annual reports summarizing the results of monitoring and any impacts on fish habitat and wildlife; and implement any mitigation to the Water Manager’s satisfaction. Additionally, prior to construction of the project, the licence requires Zella to: submit engineered design drawings to the Water Manager for approval; retain an independent engineer and an independent environmental monitor; prepare a construction management plan to mitigate the effects of construction; and, obtain the Water Manager’s permission to commence construction. Further, before beginning the diversion and use of water, the licence requires Zella to: establish stream gauges at various locations; submit an operating plan for the Water Manager’s approval; and obtain the Water Manager’s permission to commence water diversion and use.

The Appellants appealed the licence on numerous grounds including concerns about the potential impacts of the project on invertebrates, fish, fish habitat, water quality, and flooding, among other things. They also submitted that there was a lack of direct communication from the Ministry before the licence was issued.

The Board found that the Ministry appropriately relied on Zella to respond to the Appellants’ questions or concerns about Zella’s licence application, given the technical complexity of the project. However, the Panel recommended that, in the future, the Ministry should advise objectors that the proponent will respond to questions and requests for information about the proponent’s application.

Turning to the Appellants’ concerns about the licensed water use, the Board considered the extensive evidence that was presented by Zella, including six expert witnesses, and by the Water Manager. In contrast, the Appellants presented little evidence, and no expert evidence, in support of their appeal. Based on the evidence, the Board found that there were sufficient requirements in the licence, and sufficient consequences for any non-compliance, to ensure sufficient stream flow to protect environmental values, and to ensure proper monitoring and reporting of potential impacts. The Board found that variations in stream flow, including periods of flooding as well as low flow, were addressed in the project design and the licence conditions. The Board also found that the diversion and use of water in accordance with the licence would have minimal impact on invertebrates, fish, fish habitat, and frogs, and any potential environmental impacts would be managed and addressed through monitoring and mitigation measures. Furthermore, there was no evidence that the licence would impact the Appellants’ licensed water use.

Accordingly, the appeal was dismissed.