Decision Date: May 22, 2020

Panel: Darrell Le Houillier

Keywords: Water Sustainability Act – definition of “stream”, s. 93; order; flooding; unauthorized change in a stream

Dario Rossi, Cora Rossi, Rocky Rossi and Samantha Rossi (the “Appellants”) appealed an order issued by the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resources and Rural Development (the “Ministry”). The order relates to sandbags that the Appellants placed in an unnamed watercourse running through the Appellants’ land in Abbotsford, British Columbia (the “Property”). The watercourse flows through a culvert under Ranch Avenue and enters the Property. The culvert drains from the Kangs’ property, across Ranch Avenue.

According to the Appellants, so much water flows through the culvert at certain times of the year that water rises over the banks of the watercourse, resulting in flooding on their Property and in their basement. The Appellants believed that the Kangs contributed to this flooding by placing soil on their property to elevate their land and address flooding on their property. To protect the Property from flooding, the Appellants placed sandbags in the watercourse, downgradient from the culvert, to slow down the water entering the Property. The Appellants did not receive permission from the Ministry to place the sandbags in the watercourse.

The order required the Appellants to immediately remove unauthorized material from the bed and banks of a “stream” described as “a tributary to Howes Creek”. The order stated that the unauthorized material “backed up” water in the culvert under Ranch Avenue onto the Kangs’ property, as well as along the roadside ditches.

The City of Abbotsford (the “City”) owns and maintains Ranch Avenue. The City agreed that the Appellants’ actions resulted in increased flooding of the Kangs’ property.

The Appellants appealed the order. The Appellants asked the Board to order “the unconditional dismissal” of the Water Manager’s order.

Before the hearing of the appeal concluded, the Water Manager rescinded the order. This gave the Appellants the remedy they requested (i.e., the sandbags remained in the watercourse), which seemed to render the appeal moot. However, the Water Manager indicated that she might issue a similar order to the Appellants in the future.

The Board asked the parties whether there were any issues that the Board should still decide, given that the order was rescinded. After considering the parties’ submissions, the Board concluded that it should decide two issues raised by the Appellants: whether the unnamed watercourse on the Property is a “stream” as defined in the Water Sustainability Act; and, whether the Appellants’ sandbags are causing flooding on the Kangs’ property.

The Board found that the Water Sustainability Act defines “stream” as a “natural watercourse … or a natural body of water, … or a natural source of water supply”. The Board held that the word “natural” is a key element of the definition. Thus, the critical question was whether the watercourse was human-made or naturally created. Although the Appellants submitted that the watercourse on the Property was no longer connected to Howes Creek, this was not determinative of whether the watercourse is a “stream”. The question is whether the watercourse is “natural”—did it exist before any human-caused changes? If so, it is a “stream”.

The evidence before the Board included historical aerial photographs dating back as far as 1954. The Board found that the photographs showed a stream channel in the general location of the current watercourse. The photographs showed the channel before land clearing for agriculture and subdivision development. Later, portions of the stream were modified by humans, such as realigning or straightening the channel, cleaning out the channel, and steeping the banks. Based on the evidence, the Board found that the watercourse was natural. Although portions of the stream were modified by humans over time and the stream is sometimes dry, the definition of “stream” in the Water Sustainability Act includes the words “whether or not the stream channel of the stream has been modified” and “whether or not usually containing water”. Therefore, the watercourse was a “stream” as defined in the Water Sustainability Act.

In addition, the Board held that the evidence showed that both the Property and Kangs’ property are in a depression where water will collect. Therefore, the Appellants’ actions were not the only cause of flooding on the Kangs’ property. The Appellants’ placement of sandbags could result in water backing up at the culvert, but the extent to which this would impact the Kangs’ property was unclear based on the evidence.

In conclusion, the Board agree with the Appellants and the Kangs that flooding in the area is a problem that extends beyond their respective properties and likely requires the involvement of the City, the Province, or both. The Board encouraged all parties to work towards a solution.