Decision Date: May 7, 1998

Panel: Judith Lee, Don Cummings, Sheila Bull

Keywords: Water Act – ss. 12, 21, 25; detention pond; maintenance schedule; security deposit; non-point source pollution; water quality; multiple impacts from a development

Albert Petersen and the Mill Bay Waterworks District filed separate appeals against the decision of the Regional Water Manager to authorize Alpex Development Corporation to construct a dam, storm detention reservoir and outflow control works to divert and store water from the Goodhope Creek for land improvement (storm detention) purposes. The Panel upheld the Water Manager’s decision to authorize the works in an interim decision but added certain conditions (97-WAT-06(b)). This decision simply set out the Panel’s full reasons for the interim decision and the conditions.

The Panel found that Mr. Petersen had not provided sufficient evidence that the quantity of water flowing downstream would be increased by the works such that his bridge was in jeopardy. Further, if the works did not operate as designed, Mr. Petersen had recourse through the courts and or under sections 21 or 25 of the Water Act. Therefore, the Panel refused to order Alpex to provide a security deposit to cover any damage to the bridge.

Although the Panel shared the concerns of Mr. Petersen and the Participants about non-point source pollution entering the works and the creek, the Panel found that the licensing provisions of the Water Act, as written, do not provide the Water Manager, or the Board, with the authority to consider the issue. However, the Panel found that there was a limited jurisdiction to consider the specific effects of any water licence issued under the Water Act. Looking at the direct impact of the authorized works, the Panel found no evidence that the works would impact negatively on fish habitat or water quality below the works. The Panel therefore found that no order for more complex treatment was necessary.

Finally, the Panel accepted the opinion of the Water Manager that there was no need for a security deposit to ensure maintenance of the works because it is in the best interests of a licence holder to maintain the structure in order to prevent liability for damage downstream. However, it agreed with Mill Bay’s request for better recording and reporting of the maintenance performed and amended the authorization accordingly. Mr. Petersen’s appeal was dismissed. Mill Bay’s appeal was allowed in part.