Decision Date: April 6, 2018

Panel: James S. Mattison

Keywords: Water Sustainability Act – ss. 1 – definition of “environmental flow needs”, 14, 15; licence; groundwater; irrigation; aquifer; fish

In 2016, Doug and Donna Halstead (the “Appellants”) purchased a farm in the Bessette Creek watershed. There have been water allocation restrictions on Bessette Creek since 1965. The Bessette Creek watershed supports fish populations including salmon and rainbow trout. The farm had a spring which was already licensed for household use. The previous landowners sometimes allowed the spring to flood irrigate portions of a hayfield on the property. The Appellants intended to clear more of the property, to increase hay production. The Appellants did not purchase the property until after they had a test well drilled and tested.

In October, 2016, the Appellants applied for a “New Groundwater Licence” that would authorize the withdrawal of 160,000 m3 (cubic metres) of water per year from Aquifer 318 during May to September, to irrigate 40 hectares. The Appellants retained Western Water Associates Ltd. (“WWAL”) to provide the technical information supporting the application.

The Appellants’ application was reviewed by staff from the Ministry of Forests, Lands, Natural Resources and Rural Development (the “Ministry”). The Ministry staff requested further information from WWAL regarding Aquifer 318 and the direction of groundwater flow. Ministry staff met with WWAL staff to discuss the degree of connectivity between Aquifer 218 and Bessette Creek.

Ministry staff also reviewed a report prepared by a Ministry contractor that considered the environmental flow needs in Bessette Creek (the “EFN Report”). The EFN Report was prepared after a three-year program of flow monitoring and weighted useable habitat width calculations for environmental flows in the watershed. Based the EFN Report, the Ministry staff were concerned that, from July through October, stream flows in Bessette Creek were sufficient for salmon migration and spawning only about 50% of the time. During dry years, flows were typically below the level needed for salmon rearing, and well below the flows needed for salmon migration and spawning.

In March 2017, Ministry staff advised the Appellants and WWAL that Aquifer 318 is likely connected to Bessette Creek, and therefore, the Ministry was required to consider how water extraction under the proposed licence may impact the Creek’s environmental flow needs. The Ministry staff found that, although the water to be extracted may be a small fraction of the flow in the Creek, the Creek’s environmental flow needs were already compromised, and further licensing would exacerbate the issue. The Ministry advised the Appellants that their application would likely be reused, but offered to keep the application on hold if they wanted to explore options that might address the Ministry’s concerns. The Appellants declined the offer to keep the application on hold.

In June 2017, the Water Manager denied the Appellants’ licence application, on the basis that Bessette Creek is reasonably likely to be hydraulically connected to Aquifer 318, and there is insufficient flow in Bessette Creek to meet environmental flow needs.

The Appellants appealed the Water Manager’s decision on a number of grounds, including that the Ministry provided inadequate information and communication before accepting the Appellants’ application, which caused them to incur unnecessary expenses when the decision to refuse the licence had already been made. They also argued that the effect of pumping from the well would probably be unmeasurable, and would not coincide with the low-flow periods in Bessette Creek due to an expected time lag between pumping and when groundwater would reach the Creek. The Appellants requested that the Board grant a licence for 80,000 m3 per year, half the volume they had originally requested.

The Board found that the Ministry provided more than adequate information to, and communication with, the Appellants and WWAL during the process of considering the licence application. The Ministry did not cause the Appellants to incur unnecessary expenses, and the Water Manager’s decision was not made before they filed their application. The Appellants apparently relied on incorrect comments from their well driller that obtaining a water licence was just a formality. Decision-makers under the Water Sustainability Act must carefully assess the potential impacts of a proposed water licence, and there is no guarantee that an application will be granted. The Appellants acted at their own risk when they purchased the property and invested in a farming operation without first obtaining a water licence that could provide the irrigation water they needed.

In addition, based on the evidence, the Board found that Aquifer 318 is reasonably likely to be hydraulically connected to Bessette Creek, and the streamflow in Bessette Creek is already below target environmental flow needs during the early spring and late summer in average years, and conditions worsen during drought years. Although the amount of streamflow depletion associated with the requested licence was difficult to measure, the Board found that granting the licence presented a risk of additional harm to the proper functioning of the Creek’s aquatic ecosystem. Thus, granting a licence to withdraw 80,000 m3 per year would be contrary to the protection of Bessette Creek’s environmental flow needs.

Finally, the Board recommended that the Ministry consider designating Aquifer 318 as fully recorded for licensing purposes, or alternatively, designating the Bessette Creek watershed under section 65 of the Water Sustainability Act for the purpose of developing a water sustainability plan.

Accordingly, the appeal was dismissed.