Environmental
Appeal Board
Fourth Floor 747 Fort Street
Victoria British Columbia
Telephone: (250) 387-3464
Facsimile: (250) 356-9923
Mailing Address:
PO Box 9425 Stn Prov Govt
Victoria BC V8W 9V1
APPEAL NO. 2002-WAT-028(b)
In the matter of an appeal under section 40 of the Water Act, R.S.B.C. 1996, c.
483.
BETWEEN:
V.C. Richard Baravalle
APPELLANT
AND:
Regional Water Manager
AND:
Anne Evelyn Posgate
AND:
David Lancaster
BEFORE:
A Panel of the Environmental Appeal Board
Cindy Derkaz, Panel Chair
Paul Love, Member
David Thomas, Member
DATE:
March 30 and 31, 2004
PLACE:
Nelson, BC
APPEARING:
For the Appellant:
For the Respondent:
For the Third Party
Anne Evelyn Posgate:
For the Third Party
David Lancaster:
RESPONDENT
THIRD PARTY1
THIRD PARTY
Richard Baravalle
John Dyck
Anne Evelyn Posgate
David Lancaster
APPEAL
V.E. Richard Baravalle appeals the April 2, 2002 decision of Allan Zackodnik,
Regional Water Manager (the “Regional Manager”), to issue Conditional Water
Licence 100275 (the “Licence”). The Licence, which is appurtenant to land owned
by Anne Evelyn Posgate, one of the Third Parties in the appeal, authorizes the
diversion and use of 500 gallons of water per day for domestic purpose from
Aylmer Creek, near Nelson, BC.
1
When the appeal was filed in 2002, David G. Saltman and Anne Evelyn Posgate were the holders of
the licence under appeal and were jointly named as a Third Party. However, Mr. Saltman did not
attend the hearing or make any submissions to the Panel. Ms. Posgate continues as Third Party in
the appeal.
APPEAL NO. 2002-WAT-028(b)
Page 2
David Lancaster holds a domestic water licence and an irrigation licence on Aylmer
Creek. He accepted third party status in the appeal.
The Environmental Appeal Board has the authority to hear the appeal under section
11 of the Environment Management Act and section 40 of the Water Act (the “Act”).
Section 40(6) of the Act provides that on an appeal the Board may:
(a)
send the matter back to the comptroller, regional water manager or
engineer, with directions,
(b)
confirm, reverse or vary the order being appealed, or
(c)
make any order that the person whose order is appealed could have made,
and that the board considers appropriate in the circumstances.
In his Notice of Appeal, Mr. Baravalle requested that the Board rescind the Licence.
BACKGROUND
Aylmer Creek rises in the mountains above the settlement of Queen’s Bay, near
Nelson, BC. The creek flows in a generally south-easterly direction before
eventually emptying into Kootenay Lake. Along its route, Aylmer Creek is joined by
South Aylmer Creek, which flows in from the west. Aylmer Creek, upstream from
the confluence with South Aylmer Creek is sometimes referred to as “North Aylmer
Creek.”
There are a number of water licences issued on Aylmer Creek and South Aylmer
Creek for domestic and irrigation purposes.
Mr. Baravalle owns and operates an organic apple orchard known as “Toft & Croft
Farm” in Queen’s Bay. The farm, which has been in the Baravalle family for over
50 years, produces a number of varieties of “heritage” apples.
The following water licences on Aylmer Creek are appurtenant to the Baravalle
family farm:
Licence No.
Quantity
Purpose
Priority Date
F004673
500 GD*
Domestic
June 18, 1912
F004516
500 GD
Domestic
November 8, 1919
C043974
2.9 AF**
Irrigation
March 5, 1934
C067641
4.5 AF
Irrigation
August 22, 1955
*GD = gallons per day
**AF = acre feet
APPEAL NO. 2002-WAT-028(b)
Page 3
The authorized points of diversion under these four licences are downstream from
the confluence of Aylmer Creek and South Aylmer Creek.
The Baravalles also hold a water licence on South Aylmer Creek:
Licence No.
Quantity
Purpose
Priority Date
C067642
1 AF
Irrigation
August 22, 1955
On July 26, 1990, Cathy-Ann Glockner and Kelly Toole applied to the Water
Management Branch, Land and Water British Columbia Inc. (“LWBC”) (then known
as the Ministry of Environment), for a water licence on Aylmer Creek with a point of
diversion upstream from the confluence with South Aylmer Creek. The application
was for 500 gallons per day for domestic purpose and 3 acre feet for irrigation
purpose for use on the Glockner/Toole property, legally described as Lot 2, DL6896,
Plan 806 (“Lot 2”). The sketch plan, which forms part of the application, shows a
point of diversion on Aylmer Creek on Crown Land, immediately to the west of the
westerly property line of Lot 2. The proposed works include a 2-foot high dam,
pipe and irrigation system.
In the space provided in the application form for “Any Additional Relevant
Information,” the applicants stated:
In the event that a license [sic] on Aylmer Creek is denied – we would
like to obtain water from Madden Creek (pumped from directly below
our property).
LWBC received the following objections to the Glockner/Toole application:
•
In a letter dated October 26, 1999, Mr. Baravalle requested that the
application “not be approved due to extreme low water flow in N. Aylmer in
the summer.”
•
Katherine Jackson filed a letter with LWBC dated September 25, 2001. At
that time, Ms. Jackson held a domestic water licence (FWL 4674) for 500
gallons per day and an irrigation licence (CWL 52364) for 5.25 acre feet on
Aylmer Creek. The points of diversion under these two licences are
downstream from the confluence with South Aylmer Creek. Ms. Jackson
expressed concern about insufficient water in Aylmer Creek to supply existing
water licences. She stated that she had to limit her irrigation use due to
unlicensed residents using water from Aylmer Creek, and upstream domestic
licensees drawing excessive water for irrigation and commercial purposes.
•
Claudette and John Burton filed a letter with LWBC dated September 27,
2001. They state that there is insufficient water in Aylmer Creek to meet the
demand of existing irrigation licences during dry years, and for the “riparian
health” of the creek. The Burtons hold a licence (CWL 43973) on Aylmer
Creek for 500 gallons per day for domestic purpose and 2.9 acre feet for
APPEAL NO. 2002-WAT-028(b)
Page 4
irrigation purpose. The authorized point of diversion for CWL 43973 is
upstream from the confluence with South Aylmer Creek and downstream
from the point of diversion proposed in the Glockner/Toole application. A
supplementary irrigation licence (CWL 100261) for 3 acre feet authorizes the
Burtons to divert water from South Aylmer Creek to meet the demand of
CWL 43973 when there is insufficient flow in Aylmer Creek.
Murray Springman, who was then a Water Allocation Officer with LWBC, prepared
the Report On A Water Application (the “Springman Report”) with respect to the
Glockner/Toole application. The Springman Report is dated March 7, 2001, and
was amended on October 19, 2001.
Mr. Springman’s analysis of water availability in Aylmer Creek is set out in the
Springman Report under the heading “Technical Report,” the particulars of which
are discussed in more detail in the Discussion and Analysis section of this decision.
Based upon a June 7, 2000 site inspection and his analysis of licensed demand and
minimum flow data, Mr. Springman recommended that a conditional water licence
be issued for 500 gallons per day for domestic purpose. James R. Brown, then
Head – Water Allocation Section of LWBC in Nelson, approved the Springman
Report on November 28, 2001.
On November 1, 2001, Ms. Posgate and Mr. Saltman purchased Lot 2 from Ms.
Glockner and Mr. Toole.
On April 2, 2002, the Regional Manager issued the Licence authorizing the diversion
from Aylmer Creek of a maximum of 500 gallons of water per day throughout the
whole year, for domestic purpose. The water is for use in one dwelling on Lot 2.
The Licence authorizes works described as “diversion structure, tank and pipe,” and
states that the “construction of the said works has been completed and the water is
being beneficially used.” Attached to the Licence is a permit under section 26 of
the Act to enter onto and occupy a small strip of Crown land for the purpose of
constructing, maintaining and operating the works.
The Licence has precedence from July 26, 1990.
The Panel notes that, although Ms. Glockner and Mr. Toole applied for 3 acre feet of
water for irrigation, the Licence does not authorize the diversion or use of water for
irrigation purpose.
In separate letters dated April 2, 2002 to each of Mr. Baravalle, Ms. Jackson and
the Burtons, the Regional Manager advised of his decision to issue the Licence. The
letters state in part:
The above application, to which you objected in your letter of …, has
been investigated, and after considering all the information available, I
have decided that your objection is not such as to warrant holding a
hearing.
APPEAL NO. 2002-WAT-028(b)
Page 5
Stream flow records show that there is water available for further
licensing and furthermore, senior licences have the protection afforded
by their earlier dates of precedence.
For these reasons, I am satisfied that the issuance of a licence from this
application will not adversely affect your rights, and your objection is hereby
dismissed.
Ms. Jackson and Mr. Baravalle filed separate appeals with the Board on April 25,
2002 and May 1, 2002, respectively. They both requested a stay of the Regional
Manager’s decision to issue the Licence.
In a decision issued on July 18, 2002, the Board denied the applications for a stay
of the Licence (see: Baravalle and Jackson v. Regional Water Manager, Appeal Nos.
2002-WAT-027(a) and 2002-WAT-028(a), [2002] B.C.E.A. No. 40 (QL).
Ms. Jackson sold her property to Mr. Lancaster on August 7, 2002, and, therefore,
no longer had standing to continue her appeal of the Licence. The Board granted
Mr. Lancaster third party status in Mr. Baravalle’s appeal.
Mr. Baravalle’s grounds of appeal can be summarized as follows:
•
The flow in Aylmer Creek during the late summer months is insufficient to
support the Licence. LWBC did not have any recent reliable flow data for
Aylmer Creek when making the decision to issue the Licence.
•
Madden Creek should have been considered by the Regional Manager as a
better source of water for Lot 2.
•
If there is insufficient water in Aylmer Creek, “senior” water licences with
earlier priority dates are not protected.
John Dyck was the regional water manager for the Kootenay Region from April 1,
1980 until his retirement in June 1999. He was retained by LWBC in August 2002
to represent the Regional Manager in respect to this appeal.
Mr. Dyck initiated discussions with the various parties involved in the appeal in an
attempt to negotiate a settlement. A draft settlement agreement dated September
11, 2002, was prepared and circulated.
On September 25, 2002, Mr. Baravalle requested that the Board adjourn the
hearing scheduled for October 2 to 4, 2002, on the grounds, inter alia, that it would
allow more time for a resolution of the issues. After considering the position of all
parties, the Board granted an adjournment.
The parties were unable to settle the matter and a hearing was re-scheduled for
March 30 and 31, 2004.
APPEAL NO. 2002-WAT-028(b)
Page 6
Mr. Baravalle requested that the Panel conduct a site visit to view the works. After
considering submissions from the parties, the Panel decided to conduct a site visit
for the purpose of better understanding the evidence. The site visit took place on
March 30, 2004, in the presence of all parties to the appeal.
The works for the gravity feed water system that serves the dwelling on Lot 2 are
as follows. A low diversion structure, consisting of sandbags placed across Aylmer
Creek, creates a small pool approximately one foot deep. Any water not captured
in the pool flows over the diversion structure and down Aylmer Creek. Water flows
from the pool, through a buried pipeline, into two white plastic 65-gallon storage
tanks located in a small locked building on Lot 2. From there, a buried pipeline
leads to the dwelling and an overflow pipe returns water to Aylmer Creek, some
distance downstream from the diversion structure.
Two other licensees draw water from the pool. Their joint works include a buried
pipeline which carries water from the pool to an inverted culvert located near the
creek, a short distance downstream from the diversion structure. An overflow pipe
returns the excess water to Aylmer Creek.
Mr. Baravalle originally sought an order from the Panel rescinding the Licence.
During closing argument, in response to questions from the Chair, seeking
clarification of his position, it appeared that Mr. Baravalle was prepared to agree to
an order that modifications be made to the Licence to ensure that Ms. Posgate’s
system:
a)
diverts only 500 gallons per day, or such lesser amount agreed to by the
parties; and
b)
permits the flow of Aylmer Creek to continue down the natural stream bed in
low flow conditions, instead of diverting the entire flow through the Posgate
storage tanks before returning it to the stream bed through the overflow
pipe.
Mr. Baravalle also requested that the Panel order flow monitoring of Aylmer Creek.
The scope of Mr. Baravalle’s submission on these points is unclear. The Panel
therefore characterizes his submission as a request that the Licence be rescinded
and in the alternative, if the Licence is not rescinded, that the Panel order the
above conditions.
The Regional Manager, Ms. Posgate and Mr. Lancaster all request that the Licence
be upheld and the appeal dismissed.
ISSUES
The issues in the appeal are:
1.
Whether there is sufficient flow in Aylmer Creek to support the Licence.
APPEAL NO. 2002-WAT-028(b)
2.
Page 7
Whether, in making the decision on the application for a licence on Aylmer
Creek, the Regional Manager should have considered whether Madden Creek
would be a more appropriate source of water for Lot 2.
RELEVANT LEGISLATION
The following sections of the Act are relevant to the issues in the appeal:
Rights acquired under licences
5
A licence entitles its holder to do the following in a manner provided in the
licence:
(a) divert and use beneficially, for the purpose and during or within the
time stipulated, the quantity of water specified in the licence;
…
(c) construct, maintain and operate the works authorized under the licence
and necessary for the proper diversion, storage, carriage, distribution
and use of the water or the power produced from it
Who may acquire licences
7
A licence for any one, 2 or 3 of the purposes defined in section 1 may be
issued by the comptroller or the regional water manager to any of the
following:
(a) an owner of land or a mine;
Procedure to acquire licences
10
A person who applies for a licence must
(a) comply with any requirements established by regulation,
(b) comply with the directions of the comptroller or the regional water
manager with respect to filing the application, giving notice of it by
posting, service or publication and paying the prescribed fees, and
(c) provide the plans, specification and other information the comptroller or
the regional water manager requires.
APPEAL NO. 2002-WAT-028(b)
Page 8
Objections to applications
11
(1) A licensee, riparian owner or applicant for a licence who considers that his
or her rights would be prejudiced by the granting of an application for a
licence may, within the prescribed time, file an objection to the granting of
the application
Powers of comptroller or regional water manager respecting applications
12
(1) With respect to an application, whether objections to it are filed or not, the
comptroller or the regional water manager may
(a) refuse the application,
(b) amend the application in any respect,
(c) grant all or part of the application,
(d) require additional plans or other information,
(e) require the applicant to give security for the purposes and in the
amount and form the comptroller or the regional water manager
considers in the public interest, and
(f) issue to the applicant one or more conditional or final licences on the
terms the comptroller or the regional water manager considers proper.
Precedence of licences on same stream
15
(1) Except as otherwise provided in subsections (2) and (3), the respective
rights exercisable under 2 licences authorizing the diversion of water from
the same stream have precedence in law according to the respective
priorities of the dates from which the licences take precedence as set out in
them.
(2) The respective rights exercisable under 2 licences taking precedence from
the same date have precedence in law according to the ranking of the
respective purposes for which water is authorized to be used under the
licences respectively, and the ranking of the several purposes for which
water may be used under licences are, from highest rank to lowest rank:
domestic, waterworks, mineral trading, irrigation, mining, industrial,
power, hydraulicking, storage, conservation, conveying and land
improvement purposes.
(3) The rights exercisable under 2 licences taking precedence from the same
date and authorizing the diversion of water from the same stream for the
same purpose have equal precedence in law.
APPEAL NO. 2002-WAT-028(b)
Page 9
DISCUSSION AND ANALYSIS
1.
Whether there is sufficient flow in Aylmer Creek to support the
Licence.
Mr. Baravalle submits that there is not sufficient flow in Aylmer Creek to support
the Licence, particularly during late August and September when water is being
diverted pursuant to existing irrigation licences2.
Mr. Baravalle testified about his observations of low flow in Aylmer Creek. He
stated that the summer of 2001 was warm and dry and, beginning on September 3,
2001, there was “minimal flow” in the creek. Although he was still drawing water,
his irrigation system was “sucking air”. Mr. Baravalle attributes the death of 613
apple trees, planted in 2000, to the water shortage in 2001. The low flow in Aylmer
Creek continued into October 2001.
Under cross-examination by Mr. Dyck, Mr. Baravalle acknowledged that he does not
have balancing storage for his irrigation system. He expects, as the holder of prior
licences, to be able to draw sufficient water from the flow of Aylmer Creek and
South Aylmer Creek upon demand.
In response to questions from the Panel, Mr. Baravalle stated that the intake for the
irrigation system that was “sucking air” in September 2001 is on South Aylmer
Creek, below the intake for the Burtons’ supplementary irrigation licence (CWL
100261). The Panel notes that the Licence does not affect the flow in South Aylmer
Creek.
Mr. Baravalle provided a photocopy of a photograph taken on September 16, 2001
at the culvert where Aylmer Creek flows beneath Hamilton Drive, downstream from
the Baravalle points of diversion. Mr. Baravalle described the flow in the photograph
as a “trickle.” The Panel notes that the flow appears to be wider than the 13-inch
hammer which Mr. Baravalle placed in the flow to provide a scale. The hammer is
almost fully exposed indicating very little depth of flow.
According to Mr. Baravalle there have been other dry years when there has not
been sufficient water to meet the demands of the Baravalle irrigation licences.
When pressed for specifics, he stated that 1967 and 1992 were dry years. He did
not provide any records in support of his recollection or details of the water
shortages experienced on the Baravalle farm in those years.
Mr. Baravalle produced a copy of the Burtons’ letter of objection dated September
27, 2001 (described in the Background, above) and a copy of a letter dated April
22, 2002 from G. Fitchett to the Regional Manager. Mr. Fitchett’s letter states, in
part, “as the creek has extremely low flow in the fall of the year, I feel that precise
measurement of this stream is necessary.” Mr. Baravalle submits that the letters
2
The irrigation licences on Aylmer Creek and South Aylmer Creek authorize diversion of water from
April 1 to September 30.
APPEAL NO. 2002-WAT-028(b)
Page 10
are further proof that there is insufficient flow in Aylmer Creek to support the
Licence.
Neither the Burtons nor Mr. Fitchett testified at the hearing.
The Panel finds the two letters to be hearsay evidence on a significant issue in the
appeal, i.e. the sufficiency of flow in Aylmer Creek. The contents of the letters have
not been tested by cross-examination. The Panel finds that it cannot assign any
weight to the two letters in reaching its decision on this substantive issue.
Mr. Baravalle noted that hydrologists have identified a general “drying trend.” He
stated that as high-density forests continue to grow in the Aylmer Creek watershed,
without being thinned, there will be more water shortages. He said that a 1999
report on the Aylmer Creek watershed recommends against logging or thinning the
surrounding forest. Mr. Baravalle did not provide the 1999 report to the Panel, nor
did he lead any evidence to substantiate this hypothesis or to quantify the impact
on the water resource. Further, the Panel notes that Mr. Baravalle is not an expert
in hydrology or in forestry, and is not qualified to express an opinion, that can be
given any weight, on hydrology or forestry issues. Therefore, the Panel assigns no
weight to Mr. Baravalle’s comments concerning forestry or hydrology.
The Regional Manager based his decision to issue the Licence on the analysis of
demand and supply contained in the Technical Report section of the Springman
Report.
Demand
According to the Springman Report, the licensed demand on Aylmer Creek and
South Aylmer Creek is as follows:
1.
On Aylmer Creek, upstream of the confluence with South Aylmer Creek,
licensed demand is 2500 gallons per day, including the 500 gallons per day
for the Licence. For the purpose of the analysis, the Burtons’ irrigation
licence for 2.9 acre feet was assumed to be filled under their supplementary
irrigation licence (CWL 100261) for 3 acre feet on South Aylmer Creek.
2.
On South Aylmer Creek, licensed demand is 9560 gallons per day.3 This
includes the demand under the Burtons’ supplementary irrigation licence for
3 acre feet.
3.
On Aylmer Creek, downstream of the confluence with South Aylmer Creek,
licensed demand is 34,650 gallons per day.
3
In order to have a common basis to measure demand, irrigation licences are converted from acre
feet to gallons per day. In the West Kootenay region, the conversion (based on a frost free period
of 120 days) is 2265 gallons per day for each acre foot.
APPEAL NO. 2002-WAT-028(b)
Page 11
Therefore, the licensed demand on South Aylmer Creek and Aylmer Creek,
downstream of the confluence with South Aylmer Creek, is equivalent to 44,210
gallons per day.
Mr. Baravalle does not dispute the calculation of licensed demand in the Springman
Report.
Supply
There are Water Survey of Canada (“WSC”) hydrometric records published for
Aylmer Creek and South Aylmer Creek for 1926 to 1929, inclusive. There are also
WSC records for South Aylmer Creek for 1957 and 1958. The Springman Report
summarizes the WSC minimum flow records for the months of June, July, August,
and September.
In addition to the WSC hydrometric records, LWBC has 14 spot flow records for
Aylmer Creek and South Aylmer Creek, which are set out in the Springman Report
as follows:
Date
Flow (gpd)
Remarks
Oct. 17, 1958
107,690
Location unknown - assumed on South Fork
Apr. 20, 1959
269,230
Location unknown - assumed on South Fork
Aug. 27, 1985
5,460
Aylmer Creek (North Fork)
Oct. 11, 1991
9,600
Aylmer Creek (North Fork)
Oct. 06, 1992
17,630
Aylmer Creek (North Fork)
Oct. 11, 1991
57,600
Aylmer Creek (South Fork)
Oct. 06, 1992
73,345
Aylmer Creek (South Fork)
Aug. 15, 1991
144,000
d/s of confluence of North and South Forks between WKP R/W & Hamilton Road
Oct. 11, 1991
72,000
d/s of confluence of North and South Forks between WKP R/W & Hamilton Road
Oct. 06, 1992
74,060
d/s of confluence of North and South Forks between WKP R/W & Hamilton Road
APPEAL NO. 2002-WAT-028(b)
Page 12
Oct. 23, 1990
270,000
immediately d/s of Hamilton Road
Aug. 15, 1991
151,200
immediately d/s of Hamilton Road
Oct. 11, 1991
72,000
immediately d/s of Hamilton Road
Oct. 06, 1992
86,400
immediately d/s of Hamilton Road
The Springman Report concludes:
From the above hydrometric records and spot flow measurements, the
low flows in Aylmer Creek upstream of the confluence with South
Aylmer range from dry during periods in 1926 and 1929 to 5460
[gallons per day] in August of 1985 and 17,630 [gallons per day] in
October of 1992. For this report, it is assumed that the flows in
Aylmer Creek upstream of the confluence with South Aylmer Creek
can meet demands of the existing licences as well as [the Licence]
most periods of the year. Flows in Aylmer Creek upstream of the
confluence with South Aylmer Creek during the late summer months
are minimal4. These minimal flows were observed during an on site
inspection on October 11, 2001.
As set out in the above hydrometric records and spot flow
measurements, South Aylmer Creek supplies the majority of the flow
to Aylmer Creek. Based on the above flow data there is water
available in South Aylmer Creek to meet the demands of all licences
and applications on South Aylmer Creek and Aylmer Creek
downstream of the confluence with South Aylmer Creek.
Based on this demand and supply data, it is recommended that a
Conditional Water Licence for 500 [gallons per day] for domestic
purposes issue from this application.
At the hearing, Mr. Springman stated that a flow “the size of a pen” (i.e. equivalent
to the cross sectional area of a pen) would provide 500 gallons per day.
Mr. Dyck provided the following spot flow measurements, which were taken on
Aylmer Creek in 2002, after the Licence was issued:
4
This sentence includes hand-written amendments dated Sept. 16/02. The original sentence was:
“Flows into Aylmer Creek downstream of the confluence with South Aylmer Creek during the late
summer months are minimal.” Mr. Dyck stated that the amendments result in consistency in the
report.
APPEAL NO. 2002-WAT-028(b)
Page 13
•
At the Hamilton Drive culvert, downstream from the Baravalle points of
diversion, taken by Mr. Baravalle on August 29 at 2:30 p.m. prior to any
precipitation of significance. Weather partly cloudy and temperature 80
degrees Fahrenheit. Flow of 103,684 gallons per day.
•
At the point of diversion for the Licence (i.e. upstream of the confluence with
South Aylmer Creek) taken by Mr. Dyck and Mr. Saltman on September 2,
2002 after rain on the previous day. Flow of 41,378 gallons per day.
•
At the Hamilton Drive culvert taken by Mr. Dyck and Mr. Baravalle on
September 2, 2002 after rain on the previous day. Flow of 204,642 gallons
per day.
•
At the Hamilton Drive culvert taken by Mr. Dyck and Mr. Baravalle on
September 15. Little or no precipitation in the previous 2 weeks. Flow of
124,466 gallons per day.
•
At the point of diversion for the Licence taken by Mr. Dyck on September 15.
Little or no precipitation in the previous 2 weeks. Flow of 25,344 gallons per
day.
There is no information about the quantity of water being diverted upstream, if any,
at the time of the above spot flow measurements.
Ms. Posgate testified that she moved to Queen’s Bay in September 2001. She often
walks past the Baravalle property and the culvert on Hamilton Drive. She stated
that she has never seen a time when there has been no flow in Aylmer Creek.
Mr. Baravalle did not produce any flow measurements at the hearing. He confirmed
that he did take measurements on August 29, 2001, and gave them to Mr. Dyck
“on a scrap of paper.” He said that he does not remember the measurements
being as high as those noted by Mr. Dyck. Otherwise, Mr. Baravalle has not
attempted to measure the flow in Aylmer Creek or to quantify his use of water for
irrigation. He stated that he knows about the flow of Aylmer Creek by the sound of
the creek flowing past his home.
Mr. Baravalle submits that the hydrometric data and spot flow measurements
contained in the Springman Report are outdated and should not be used to support
the issuance of the Licence. He points out that the Springman analysis uses data
dating back to the 1920’s, and that there has been no flow monitoring done in the
Aylmer Creek watershed since the 1950’s. He argues that spot flow measurements,
particularly those collected in October after the irrigation season ends, are not
reliable evidence of stream flow. He contends that in the absence of recent flow
data, the Licence should not have been issued.
Both Mr. Springman and Mr. Dyck testified that hydrometric data from the late
1920’s are a valuable resource for water management in the Kootenay region. The
late 1920’s and early 1930’s were very dry years in the region and although there
APPEAL NO. 2002-WAT-028(b)
Page 14
have been other stretches of dry years, none so far have exceeded the 7 or 8 years
in this period.
Mr. Dyck testified that stream flow monitoring in the region has been greatly
reduced over the years due to cutbacks by both the federal and provincial
governments. However there is still some continuous measuring being done for
community water systems in the region. Mr. Dyck stated that when recent
measurements are compared to past hydrometric data, the results are remarkably
consistent, in spite of forestry practices, fires and other changes in the landscape.
Mr. Dyck submits that the hydrology supporting the decision to issue the Licence is
valid. He acknowledges that the data are not complete; however, he argues that
they are sufficient to provide an understanding of water flow in Aylmer Creek.
Mr. Dyck stated that LWBC’s practice is to issue a licence if the supply of water in a
stream exceeds licensed demand. Further, LWBC will generally issue a domestic
licence, for a relatively small quantity of water, even if in some years there will not
be sufficient water to meet the demand of the new licence. In the present case,
Aylmer Creek, above the confluence with South Aylmer Creek, is close to being fully
recorded based on the Springman Report’s finding that it is dry in some years.
South Aylmer Creek provides the majority of the flow to satisfy licensed demand on
Aylmer Creek.
In response to Mr. Baravalle’s evidence that there is insufficient flow to meet the
licensed demand of his irrigation licences, Mr. Dyck states that the Baravalle works
could be upgraded to improve the use of water.
Mr. Dyck notes that on September 16, 1999, LWBC received an application from
Mr. Baravalle, on behalf of his mother, Mary S. Baravalle (now deceased), for a
water licence on South Aylmer Creek. The application is for 500 gallons per day for
domestic purpose. Mr. Baravalle has not withdrawn the application.
The Panel has reviewed all of the evidence before it in respect to the flow of water
in Aylmer Creek.
In particular, the Panel has considered that licensed demand on South Aylmer
Creek and Aylmer Creek downstream from the confluence with South Aylmer Creek,
during the irrigation season, is equivalent to 44,210 gallons per day. The lowest
flow recorded is 48,460 gallons per day at the WSC gauging station on South
Aylmer Creek in July 1926. The lowest WSC readings for 1927 to 1929 and 1957
and 1958 for the months of July, August and September in South Aylmer Creek
range from 75,380 to 156,150 gallons per day.
WSC data for Aylmer Creek above the confluence with South Aylmer Creek in 1927
to 1929 ranges from dry to 53,850 gallons per day.
The Panel accepts that LWBC uses WSC hydrometric data from the 1920’s and
1930’s in making licensing decisions. Ideally, LWBC would have recent flow
APPEAL NO. 2002-WAT-028(b)
Page 15
measurements upon which to base its decisions. Unfortunately recent hydrometric
data are not available for Aylmer Creek.
The Technical Report section of the Springman Report sets out spot flow
measurements taken on Aylmer Creek downstream from the confluence with South
Aylmer Creek in August, September and October. The Panel notes that the
measurements range from 72,000 gallons per day in October 1991 to 270,000
gallons per day in October 1990.
The Panel finds that 500 gallons per day authorized to be diverted from Aylmer
Creek pursuant to the Licence, is not a significant amount compared to the
available flow.
The Panel finds that the quality and quantity of the hydrometric data and the spot
flow measurements in the Springman Report are adequate to support the decision
to issue the Licence. Based upon the evidence before it, the Panel finds that, in
most years, licensed demand is substantially less than the flow in Aylmer Creek.
The Panel finds that the Regional Manager reasonably concluded that there is
sufficient water in Aylmer Creek to support the Licence.
In an appeal under the Act, the onus is on the appellant to prove his or her case on
the balance of probabilities.
The Panel finds that Mr. Baravalle could have taken flow measurements on Aylmer
Creek. Measuring stream flow does not require expensive or sophisticated
technology. An accepted practice, used by LWBC, involves a bucket and a
stopwatch.
Mr. Baravalle chose not to provide any flow measurements as evidence at the
hearing. Instead he attempted to discredit the evidence that the Regional Manager
relied on in making his decision to issue the Licence.
The Panel finds that Mr. Baravalle has failed to prove, on the balance of
probabilities, that there is insufficient flow in Aylmer Creek to support the Licence.
The Panel has also considered Mr. Baravalle’s submission that “senior” water
licences with earlier priority dates are not protected if there is a shortage of water.
He did not provide any legal argument or authority in support of his submission.
Section 15(1) of the Act states:
15
(1) Except as otherwise provided in subsections (2) and (3), the respective
rights exercisable under 2 licences authorizing the diversion of water from
the same stream have precedence in law according to the respective
priorities of the dates from which the licences take precedence as set out in
them.
APPEAL NO. 2002-WAT-028(b)
Page 16
The Panel finds that Mr. Baravalle’s submission on this point is unfounded as his
rights under prior licences are protected by statute.
2.
Whether, in making the decision on the application for a licence on
Aylmer Creek, the Regional Manager should have considered whether
Madden Creek would be a more appropriate source of water for Lot
2.
Madden Creek flows to the northeast of Aylmer Creek, in the general vicinity of Lot
2.
Mr. Baravalle submits that the Regional Manager should have considered Madden
Creek as a potential source of domestic water for Lot 2. He referred to the notation
in the Glockner/Toole application, which states:
In the event that a license [sic] on Aylmer Creek is denied – we would
like to obtain water from Madden Creek (pumped from directly below
our property).
He also produced a copy of a hand-written note from LWBC files, the relevant
portions of which read:
Kelly Toole was in 21 June 91. Would like to change source to Madden
Cr. from Aylmer.
…
During the source investigation on Aylmer & Madden Creeks, I had the
opportunity to meet with Cathy-Ann Glockner and discuss the pros &
cons of the different sources for water supplies.
She advised that @ present, they are tied in with the system which is
licensed to Candice Donnelly … on Madden Creek. I advised her that
according to our records Madden Cr. is fully recorded …
Mr. Baravalle submits that Ms. Glockner and Mr. Toole wished to change their
intake to Madden Creek because of an insufficient supply of water in Aylmer Creek.
Neither Ms. Glockner nor Mr. Toole testified at the hearing.
Mr. Springman testified that when he met with Ms. Glockner on June 7, 2000, the
works on Aylmer Creek were in place. There was no discussion about Madden
Creek.
Mr. Baravalle did not provide any evidence about the availability of water for
licensing in Madden Creek.
Mr. Dyck notes that the Glockner/Toole application was for a licence on Aylmer
Creek and that was the application that LWBC investigated and reported on. He
APPEAL NO. 2002-WAT-028(b)
Page 17
acknowledges that there was a substantial delay “on his watch” as the regional
water manager. However, he submits that the process was followed. If, as in the
present case, the supply of water exceeds licensed demand, a water licence is
issued.
Mr. Dyck submits that there is no requirement that LWBC direct an applicant to
alternate sources of water.
The powers of a regional water manager respecting licence applications are set out
in section 12 of the Act. The Board has previously considered the issue of whether
a decision maker under section 12 of the Act (in this case, the Regional Manager) is
required to consider alternate sources of supply or diversion points and works in
addition to those specified in a water licence application.
In Russell Halisheff v. Assistant Regional Water Manager (Appeal No. 2001-WAT017, April 16, 2002), [2002] B.C.E.A. No. 21 (QL), the Board held, at page 16:
In exercising discretion under section 12, again, there is no express
requirement for the comptroller or regional water manager to consider
alternate sources of water supply, diversion points or works. In
general, the decision maker must consider the particular licence
application submitted and any objections raised under section 11
about how a riparian owner or other licensee or applicant’s water
rights might be adversely affected. The Panel does not agree,
however, that alternatives may never be considered or will always be
irrelevant considerations. The discretion in paragraph 12(1)(b) and
(d) respectively to “amend an application in any respect” or “require
additional plans or other information” seems broad enough to allow
(but in no way mandates) the decision maker to consider alternatives
or, in certain cases, to amend the application to incorporate an
alternative where the decision maker considers them relevant and
appropriate in the context of the particular licence application.
The Halisheff decision is consistent with other Board decisions. (See: Sansom v.
Assistant Regional Water Manager (Appeal No. 98-WAT-08, October 22, 1998),
[1998] B.C.E.A. No. 72 (QL) and Selkirk Land and Cattle Corporation v. Assistant
Regional Water Manager (Appeal No. 00-WAT-03, October 31, 2000), [2000]
B.C.E.A. No. 57 (QL)). The Panel agrees with, and adopts, the Board’s
interpretation of a regional manager’s powers under section 12 as set out in the
Halisheff decision.
The Panel finds that, in making his decision on the Glockner/Toole application for a
licence on Aylmer Creek, the Regional Manager was not required to consider
Madden Creek as a potential source of domestic water for Lot 2.
APPEAL NO. 2002-WAT-028(b)
Page 18
OTHER MATTERS
As noted above, during his closing submissions, Mr. Baravalle requested that the
Panel order a modification of the works in place under the Licence to ensure that
Ms. Posgate’s system:
a)
diverts only 500 gallons per day, or such lesser amount agreed to by the
parties; and
b)
permits the flow of Aylmer Creek to continue down the natural stream bed in
low flow conditions, instead of diverting the entire flow through the Posgate
storage tanks before returning it to the stream bed through the overflow
pipe.
In particular, he seeks to have the size of the intake pipe reduced from the 2-inch
plastic pipe presently being used.
Mr. Baravalle bears the burden of proof with regard to his submissions. In order for
the Panel to accept an argument or submission, there has to be cogent evidence,
demonstrating, on balance of probabilities, that the Panel should order the relief
sought.
The Panel notes that condition (e) of the Licence states: “[t]he maximum quantity
of water which may be diverted is 500 gallons a day.” The critical factor is the
amount of water that is being diverted under the Licence for use on Lot 2. The size
of the pipe diverting water from the pool above the diversion structure into the
storage tanks is not determinative of the amount of water being diverted. In fact,
Mr. Baravelle admitted during his evidence-in-chief that “the pipe size if used
responsibly doesn’t matter.”
The system is designed to return any excess water (i.e. water not held in the two
storage tanks or diverted for use on Lot 2) to Aylmer Creek. Further, Mr. Baravalle
has not demonstrated that Ms. Posgate has diverted more than 500 gallons of
water per day. In the absence of any evidence from Mr. Baravalle demonstrating
that Ms. Posgate diverted more than 500 gallons per day, and that a reduction in
the diameter of the intake pipe would limit the diversion of water to 500 gallons a
day, the Panel is not prepared to direct that Ms. Posgate make any changes to the
intake pipe, or direct that the Regional Manager amend the Licence to provide for
changes to the size of the intake pipe.
Mr. Baravalle also requested that flow-monitoring stations be established on South
Aylmer Creek and Aylmer Creek that would be accessible to the community. He
stated that this would protect “senior” licensees’ water rights now and in the future.
A consistent theme in Mr. Baravalle’s case presentation was his dissatisfaction with
the “quality and limited nature of the hydrological information” used by the
Regional Manager in making the decision to issue licences for Aylmer and South
Aylmer Creeks.
APPEAL NO. 2002-WAT-028(b)
Page 19
In order to obtain more precise information concerning water availability and use on
Aylmer and South Aylmer Creek it would be necessary to install flow-monitoring
stations on the creeks, and intake metering devices on each intake for each
licensed user. The Panel finds that the request for “flow metering stations” is
outside of the jurisdiction of the Panel, in the context of this appeal.
DECISION
The Panel has carefully considered all of the submissions of the parties and the
documents and evidence before it, whether or not specifically reiterated herein.
The Panel finds that, based on historical data, there has been sufficient flow in
Aylmer Creek, in most years, to justify the decision to issue the Licence.
The Panel further finds that neither the Regional Manager nor this Board is obliged
to consider whether Madden Creek would be a more appropriate source of water for
Lot 2.
For the reasons set out above, the Panel upholds the Regional Manager’s decision
to issue the Licence.
The appeal is dismissed.
Cindy Derkaz, Panel Chair
Environmental Appeal Board
June 8, 2004