Decision Date: May 20, 2020

Panel: Darrell Le Houillier

Keywords: Water Sustainability Act – definitions of “stream”, “stream channel”, “changes in and about a stream”, ss. 11, 93; order; flooding; berm

Vincent Smoluk appealed an order issued by the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resources and Rural Development (the “Ministry”). Mr. Smoluk owns property adjacent to the Nicola River in Merritt, BC. The property is located on the floodplain of the Nicola River, and was subject to periodic flooding from the River. Mr. Smoluk constructed a soil berm to prevent future flooding from affecting his property.

Section 11(2) of the Water Sustainability Act (the “Act”) provides that changes in and about a stream may only be made in accordance with a change approval, the regulations, the terms and conditions of an authorization, or an order. Mr. Smoluk did not obtain authorization from the Ministry before building the berm. The order was issued after the Ministry inspected the site.

The order stated that Mr. Smoluk modified the channel and floodplain of the Nicola River by adding the berm without authorization. Among other things, the order required Mr. Smoluk to retain a professional engineer to assess the functional viability of the unauthorized works, and the incremental flood risk to other property owners resulting from the unauthorized works.

Mr. Smoluk appealed the order. He submitted that the berm was built on his property and not in the stream channel, and the definition of “stream” in the Act does not include a floodplain. Therefore, he did not need authorization from the Ministry to build the berm. He requested that the Board reverse the order.

A similar order was issued to Mr. Smoluk’s neighbour, Mr. Ware, who had also built a berm to prevent flooding from affecting his property. Mr. Ware also appealed the order that was issued to him, and his appeal was addressed in a separate decision of the Board (Gary Ware v. Assistant Water Manager, Decision No. 2019-WSA-002(a)).

To determine whether the berm was an unauthorized “change in and about a stream” within the meaning of the Act, the Board first considered the definitions of “stream” and “stream channel” in the Act, and whether a floodplain is part of a stream. There was no dispute that much of Mr. Smoluk’s property is on the 200-year floodplain of the Nicola River, as is much of the City of Merritt. The Board found that if the definition of a “stream” included a floodplain, significant portions of the City would be within a “stream”, such that many City residents would need Ministry permission to do any work on their property. The Board held that such an interpretation would lead to an absurd result. Therefore, the Board concluded that the 200-year floodplain of the Nicola River was not captured by the definition of “stream”.

Next, the Board noted that the Act’s definition of “changes in and about a stream” includes “activity or construction within a stream channel that has or may have an impact on a stream or stream channel”. “Stream channel” is defined in the Act as the bed and banks of a stream, above and below the natural boundary of the stream, regardless of whether the channel has been modified. Neither “floodplain” nor “stream bank” are defined in the legislation. The dictionary defines “floodplain” as “level land that may be submerged by floodwaters”, and defines “bank” as “the rising ground bordering a lake, river, or sea or forming the edge of a cut or hollow”. Based on those definitions, the Board concluded that the boundary between the floodplain and the stream bank is delineated by the point where the rising ground of the stream bank levels off into the floodplain, regardless of whether that point is above the natural boundary of the stream.

Based on those findings, the Board held that constructing a berm that extends a pre-existing stream bank vertically may have an impact on a stream or its channel. In this case, some of the berm was built by adding soil to the top of the stream bank, such that the berm is now contiguous with the bank. This raised the height of the pre-existing stream bank, and changed the dimensions of the stream channel. Extending or reshaping the bank may have an impact on the channel.

Regarding the portion of the berm on the floodplain, the question was whether the berm amounted to a “modification to the nature of the stream”, including “… any modification to the land, vegetation and natural environment of a stream or the flow of water in a stream …”. The Board found that this portion of the berm was built within a few feet of the stream channel, and significantly modified the land adjacent to the stream. Altering the ground surface to redirect flood waters away from one side of a river affects the way flood waters move within the land of the stream. In doing so, the berm will affect the basic character of the land of the stream. Although there was no evidence that this alteration would have a detrimental impact, that was not required by the definition.

For those reasons, the Board concluded that the berm was an unauthorized “change in and about a stream” within the meaning of the Act. There was insufficient information to determine the berm’s exact effects on stream flow, water displacement, the incremental flood risk to neighbouring properties, or the functional viability of the berm including whether it will withstand future floods. The purpose of the order was to have an engineer examine those very questions and make recommendations to the Water Manager.

Accordingly, the appeal was dismissed, and the order was confirmed.