Decision Date: November 10, 2017

Panel: Cindy Derkaz

Keywords: Water Sustainability Act – ss. 22, 30; conditional water licence; domestic purpose; sufficient water supply; precedence of water rights; beneficial use

Rodney Gerald Retzlaff appealed a conditional water licence (the “Licence”) issued by the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resource Operations, and Rural Development. The Licence was issued to Mabel Denisoff, and authorized the use of 500 gallons per day (“gpd”) of water from Shore Creek for domestic purposes. The Licence specified that it authorized the use of water for one dwelling, and construction of the water works had to be completed and the water beneficially used before December 31, 2019.

Shore Creek was already a source of water for several homes and small agricultural holdings in the community of Glade, near Castlegar, BC. Mr. Retzlaff lived in Glade for many years and co-owned a small residential acreage with hay fields and an orchard. Before the Licence was issued, there were eight licensees (including Mr. Retzlaff) holding 13 water licences (the “Prior Licences”) on Shore Creek. The Prior Licences authorized the diversion and use of water for domestic and/or irrigation purposes. Many of the Prior Licences were issued in 1964. The Prior Licences shared the same point of diversion on Shore Creek. The licensees constructed and maintained joint works to divert water from the Creek, and shared the costs of operating the system. A gravity feed system captured almost all the surface water of Shore Creek at the point of diversion. There were no licensees downstream of the joint works, and no record of fish in Shore Creek.

Mr. Retzlaff held two conditional water licences on Shore Creek: one issued in 2000 authorizing the use of 1.22 acre-feet of water per year for irrigation; and one issued in 1964 authorizing the use of 500 gpd of water for domestic purposes. He had sought the use of two acre-feet per year for irrigation. At the time, the Ministry advised Mr. Retzlaff that there may be periods when Shore Creek may not produce the licensed quantity of water, and that the quantity of water approved in his irrigation licence was reduced from the amount sought following a discussion between him and Ministry staff regarding his proposed water use. Over the years, Mr. Retzlaff experienced water shortages while irrigating.

The Licence application indicated that there was no home on the parcel of land at the time, and the land was going to be sold. The applicant proposed that a new water connection would be added to the joint works to supply water under the Licence. The eight existing licensees on Shore Creek were notified of the application for the Licence, and Mr. Retzlaff was the only one to object.

A Technical Report prepared by Ministry staff in response to the Licence application noted that there was extensive flow monitoring of Shore Creek in the mid-late 1980’s, and water shortages had occurred at certain times during dry years. The Ministry had placed a “Possible Water Shortage” notation on the file. However, the Water Manager determined that most of the time, in most years, there would be sufficient water supply to issue the Licence without adversely affecting the rights granted under the Prior Licences.

Mr. Retzlaff appealed the Licence on several grounds. He argued that Shore Creek was already over-subscribed by the existing licensees, and that the superior status given by the Water Sustainability Act (the “Act”) to domestic water rights would, during water shortages, reduce the amount of water available to the holders of irrigation licences with earlier precedence dates than the Licence. He also argued that the issuance of the Licence, when the applicant had no intention of making beneficial use of the water, violated the Act. He requested that the Licence be cancelled and Shore Creek be designated as “fully recorded”.

Based on the Ministry’s past flow measurements on Shore Creek and Mr. Retzlaff’s testimony that he had experienced occasional water shortages, the Board found that there probably would be times, during drier summers, when there is insufficient flow to meet the total licensed demand. However, Mr. Retzlaff provided no details about the water shortages he had experienced, or the reasons for the Ministry’s decision to grant him 1.22 acre feet per annum for irrigation. Without more information, the Board could not conclude that the decision to grant him 1.22 acre feet instead of two acre feet was due to insufficient water supply. The Board noted that the decision-maker may have concluded that his intended irrigation use did not require the full two acre feet requested.

The Board also found that occasional water shortages on a water source do not necessarily preclude the issuance of a new licence, especially if the new licence is for a small amount of water and there will be no adverse effects on the environment, as in the present case. The Board found that the quantity of water granted under the Licence was insignificant relative to the demand of an irrigation licence and to the flow of Shore Creek, and would have no measurable impact on Mr. Retzlaff’s ability to irrigate his hay field and orchard.

Finally, the Board found that it would be unreasonable to require a landowner to construct a dwelling without knowing whether water rights would be issued. Regarding Mr. Retzlaff’s concerns about a lack of beneficial use under the Licence, the Board found that the Licence required beneficial use before December 31, 2019. If the water is not beneficially used by then, the Water Manager has the authority to cancel the Licence.

For all of those reasons, the appeal was dismissed.