Decision Date: October 16, 2020

Panel: Darrell Le Houillier

Keywords: Water Sustainability Act – ss. 14(1)(f), 15(1), 22(7) and (9); 131(2)(a) and (b); conditional water licence; groundwater; aquifer; flow measuring device; statutory interpretation

William Di Pasquale (the “Appellant”) appealed a conditional water licence issued by the Assistant Water Manager (the “Water Manager”), Okanagan Shuswap Natural Resource District, Ministry of Forests, Lands, Natural Resource Operations and Rural Development. The licence authorized the Appellant to divert groundwater from Aquifer 482 for irrigation subject to certain conditions. The Appellant objected to licence conditions that required him to install a flow meter or other measuring device, and to retain flow meter/measurement records for inspection.

The Appellant submitted that the Water Manager’s statutory powers should not be interpreted as allowing him to impose those conditions. The Appellant argued that the Water Sustainability Act (the “Act”) empowers the Lieutenant Governor in Council (the government Cabinet) to make regulations on those matters, but no such regulations existed. Therefore, the Water Manager’s discretion to impose conditions in licences should not be interpreted as including those types of conditions. The Appellant also argued that installing a flow meter would be expensive and contrary to supporting irrigation for food production. The Appellant asked that those conditions be removed from the licence.

The Board noted that section 14(1)(f) of the Act states that the Water Manager may issue a water licence “subject to prescribed terms and conditions and on the terms and conditions the decision maker considers advisable”. The Board found that this discretion should be interpreted broadly, and in a manner that is consistent with the purposes and scheme of the Act. One of the Act’s purposes is to regulate water diversion and use through a scheme of authorizations, including licences. Groundwater is regulated to ensure it is used in a sustainable manner, taking into account the precedence of uses and environmental considerations established in the Act.

Under the Act, certain environmental considerations generally take precedence over licensed water use. For example, although irrigation use is ranked only below domestic use and waterworks use in section 22(7) of the Act, section 22(9) indicates that irrigation use from a stream, or an aquifer that is hydraulically connected to that stream, is subordinate to maintaining the critical environmental flow threshold for the stream. Similarly, section 15(1) of the Act requires the environmental flow needs of a stream to be considered when issuing a licence on the stream or an aquifer that is likely to be hydraulically connected to that stream. Requiring licensees to measure and record how much water they are using is consistent with the Act’s regulatory and environmental objectives, and the scheme of authorizations. It is not contrary to supporting food crop irrigation; rather, it helps to ensure that finite water resources are used in a manner that is sustainable for all users while protecting environmental flow needs.

In addition, the Board held that the discretion in section 14(1)(f) is not limited by the absence of regulations requiring water users to install specified works or use specified formulae for measuring the quantity of water diverted and used. Only if, and when, such regulations come into force can they limit the discretion to impose conditions in a licence.

Turning to the facts in this case, the Board found that there was evidence that Aquifer 482 is likely hydraulically connected to streams with chronic low flows in the late summer, when there may be concerns about sustaining environmental flow needs in those streams. Aquifer 482 is likely hydraulically connected to those streams, which means that groundwater from it likely supports or is supported by the flow in those streams. Given the importance that the Act places on protecting environmental flow needs, this was relevant to the Water Manager’s decision to impose conditions in the licence. In addition, there was no evidence that the expense of installing a flow meter or other measuring device would have the detrimental effects on agricultural production contended by the Appellant. However, the parties agreed that a flow meter was unnecessary and that other measuring devices and/or a method of calculation may be sufficient.

Consequently, the Board varied the licence conditions to say that the Appellant was required to use “a measuring device and/or method of calculation” to measure and record the volume of water diverted under the licence.

The appeal was allowed, in part.