Decision Date: January 20, 2020

Panel: Linda Michaluk

Keywords: Water Sustainability Act – ss. 11, 13, 16, 39, 46; approval; change in and about a stream; wetland; mitigation; compensation

Robert and Julie Craig appealed a decision issued by the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resources and Rural Development (the “Ministry”), denying their application for an approval to make changes in and about a stream. The Appellants applied for the approval to build a driveway to access their property, which is located adjacent to Rosen Lake.

Although the property has had a residence on it for many years, the Appellants have no legal access to their land. They use an illegal access via a BC Hydro right-of-way in the property’s northeastern corner. Part of the southwestern corner of the Appellants’ property borders Rosen Lake Road. An unnamed ephemeral creek also flows through the southwestern part of the Appellants’ property.

The Third Parties, the LaSalles, own property adjacent to the southwestern part of the Appellants’ property.

In or around 2015, the Appellants decided to subdivide their property. The Appellants filed a subdivision application with Ministry of Transportation and Infrastructure (“MOTI”), the approving agency for rural subdivisions. One of the pre-requisites for subdividing was legal access to the lots. The Appellants proposed legal access from Rosen Lake Road using an unconstructed right-of-way on Crown land on the southwest side of their property. Specifically, they wanted to construct a driveway from the southwest corner of the property, over the creek and up to the house in the northwest. A culvert would be installed to allow the creek to flow.

MOTI referred the subdivision application to the Ministry’s habitat section and water stewardship section. MOTI asked for feedback on the location of the proposed driveway, noting the presence of the creek and a wetland area.

In March 2016, Ministry staff conducted a site visit. In April 2016, they advised MOTI that they did not support the proposed driveway as it would result in a loss of wetland and riparian habitat. They recommended that an alternate access be explored. MOTI conveyed this information to the Appellants, and concluded that it would not permit construction of access from Rosen Lake Road. MOTI noted that access to the property may be possible by obtaining an approval under the Land Act via the BC Hydro right-of-way.

In Fall 2017, Ministry staff advised MOTI that the proposed works would take place in a wetland and would require an approval under the Water Sustainability Act (“WSA”). The Ministry suggested that the Appellants be encouraged to find alternatives to building a driveway through a wetland.

In April 2018, the Appellants applied for an approval to “make changes in and about a stream” under section 11 of the WSA (the “Application”). The Application stated that the approval was sought for “Driveway access over stream”. The proposed works were described as “creating driveway with culvert”. The Application did not mention the presence of a wetland or infilling for the driveway.

After the Application was filed, there were reviews, consultations, and site inspections by various Ministry staff. Initially, the Ministry’s review focused on the placement of the culvert, but as the review progressed it became apparent that some infilling would be needed to build the driveway. The Appellants suggested that their relinquishment in 1970/71 of a “substantial area” of property to MOTI for a right-of-way should be considered compensation or mitigation for any impact from the driveway, but the Ministry was not open to this as a compensation/mitigation measure. Ultimately, Ministry staff prepared a Technical Summary which recommended that the Application be refused, or an alternative structure be considered that did not require filling in the wetland.

In January 2019, the Water Manager denied the application on the grounds that the driveway required infilling part of a wetland and would result in an unacceptable impact on riparian habitat.

The Appellants appealed to the Board.

First, the Board considered whether the Water Manager’s decision was fatally flawed because: it was based on an incorrect interpretation of section 46 of the WSA regarding the authority to allow infilling of a stream; it was based on irrelevant or improper considerations and was not impartial; the Water Manager was unduly influenced by the LaSalles; the Ministry failed to consider compensation and mitigation options; or, the Application process was unfair.

The Board found that section 11 of the WSA provides the Water Manager with the discretion to allow infilling of a stream, which is otherwise prohibited under section 46. The Board also found that the definition of “stream” includes a wetland, and the evidence indicated that the proposed driveway would go through a wetland. However, there was no indication that the Water Manager relied on section 46 as the reason for refusing the Application. The Water Manager’s decision focussed on habitat loss and impacts. There was no indication that she did not understand that she could grant an approval for the infilling under section 11. There was no persuasive evidence that the Water Manager refused the Application based on irrelevant or improper considerations, or was not impartial.

In addition, the Board found that the Ministry properly notified the LaSalles about the Application under section 13 of the WSA, because they are either riparian owners, or owners whose land is or is likely to be physically affected by the project. Once they were notified, subsection 13(3) of the WSA allowed them to file an objection to the Application. Thus, the Ministry’s notification of the LaSalles and consideration of their input was required by section 13 of the WSA, and did not taint the process.

Further, the Board held that the Water Manager has the discretion under section 16 of the WSA to require or accept mitigation or compensation to address significant adverse impacts, but section 16 does not contemplate a previously granted right-of-way as appropriate compensation or mitigation. The Board found that it was appropriate for the Water Manager not to consider the Appellants’ previous grant of land for rights-of-way as compensation or mitigation for impacts from the Application. In addition, the Board held that the Water Manager considered mitigation, but she decided that no measures that could mitigate the adverse impacts of habitat and connectivity losses from the proposed project. The Board also concluded that the Water Manager’s decision-making process was not unfair.

Next, the Board considered whether the Application should be granted based on the evidence. The Board found that evidence from all parties confirmed that a significant portion of the culvert and a segment of the driveway would be built in a “wetland” as defined in the WSA. The evidence also confirmed that infilling part of the wetland would likely have significant negative effects on the wetland. The Board was not satisfied that the proposed mitigation measures were sufficient to address those effects as required by subsection 16(1) of the WSA. The proposal would result in habitat loss, not simply damage. While it may be possible to mitigate or compensate for habitat loss in some cases, it was not possible in this case. Also, this was the only relatively undisturbed wetland in the vicinity.

Accordingly, the Water Manager’s decision was confirmed, and the appeal was dismissed.