Province ofBritish Columbia

Ministry of88vironment and Parks

ENVIRONMENTAL APPEAL BOARDVictoriaBritish ColumbiaV8V lXS

IN THE MATTER OF AN APPEALTO THE ENVIRONMENTAL APPEAL BOARD

UNDER THE WATER ACTBETWEEN:

JOHN STUYT APPELLANT:

AND:THE DEPUTY COMPTROLLER OF WATER RIGHTS, J.E. FARRELL

RESPONDENT

This is an appeal under Section 38 of the Water Act, 1979, RSChap, 429 (the Act) and Section 11 of the Environment ManagementAct, 1981, S.B.C., c.14, by the Appellant from an order of theRespondent dated January 24, 1986 advising of his decision toissue Conditional Water Licence No. 63528 to Mohinder S. Parmarand Salinder K. Parmar of 2110 - 272nd Street, Aldergrove, B.C.VOX lAO (hereinafter collectively referred to as the "Parmars").

A panel of the Environmental Appeal Board (hereinafterreferred to as the "Board") was duly appointed by the Chairman,F.A. Hillier, P.Eng., to hear this appeal in accordance with theprovisions of Section 11 of the Environment, ibit.

HEARING INFORMATIONThe hearing was held on May 1, 1986 in Abbottsford, B.C.

The Panel consisted of the following Board members:

Mr. P.D. MeyersA. J. LynchJ.W. Warr

- Chairman- Member- Member

Miss Shirley Mitchell, Executive Secretary to the Board,acted as recorder for the proceedings.SUMMARY OF EVIDENCE BEFORE THE PANEL

The Appellant is a registered owner of land situated at 1824- 272nd Street, Aldergrove, B.C. Twenty-four acres of thisproperty are used by the Appellant to grow raspberries. TheAppellant is also a holder of Conditional Water Licence No. 48986authorizing the diversion of 12 acre feet of water from BertrandCreek for the purpose of irrigating the 24 acres of raspberryfields referred to above during the period April 1 to September30. This Water Licence is appurtenant to Lot 2, Section 17,

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Township 13, East of the Coast Meridian, Plan 5713. Priority dateon the Licence is December 26, 1966. Upstream from Mr. Stuyt, Mr.Harvey Krause grows 35 acres of berries of which raspberries formthe largest part. Mr. Krause's property is situated at2052-272nd Street, Aldergrove, B.C. more particularly described asthe south half of Lot 3 of Section 17 of Township 13, East of theCoast Meridian, Plan 7489. Mr Krause is also the holder of FinalWater Licence No. 52247 appurtenant to the above propertyauthorizing the diversion of 6 acre feet per annum from BertrandCreek to be used for irrigation purposes on 12 acres from April 1to September 30. The Parmars own land jointly situated at2110-272nd Steet, Aldergrove, B.C. (more particularly described asLot 4 of Section 17, Township 13, East of the Coast Meridian, Plan27781) upstream from the Stuyt and Krause properties. On March19, 1982 the Parmars applied for a Conditional Water Licence todivert 17 acre feet to irrigate 18 acres. The licence was to bemade appurtenant to Lot 4 of Section 17, Township 13, Plan 27881.

Bertrand Creek, the source of water for these licences, issituated in the central Fraser Valley and the centre of thewatershed is located just south of the Village of Aldergrove. Thefirst irrigation licence was issued on Bertrand Creek in 1948 for14 acre feet and the licenced irrigation quantity reached a peakin 1966 of 389 acre feet. Today the irrigation licences total 248acre feet. Six irrigation licences have been abandoned orcancelled in the watershed since 1947.

By registered letter dated June 3, 1982 addressed to theComptroller of Water Rights, Margaret Rae of the firm of Major &Rae, Barristers and Solicitors, Aldergrove, B.C., on behalf of herclient, John Stuyt, objected to the Parmars' application on thegrounds that if it were granted there would be insufficient wateravailable to Mr. Stuyt to enable him to irrigate his raspberrycrop. Mr. Ronald J. Hall, Barrister and Solicitor, Aldergrove,B.C. by letter dated June 10, 1982 also registered an objectionto the Parmars' application on behalf of his client, HarveyKrause, on grounds that there was insufficient water available toaccommodate further demands on the water supply.

By letter dated March 28, 1984 the Parmars were advised byMr. J.W. McCracken, Regional Water Manager, Lower Mainland Regionof his refusal to grant their application for a water licence ongrounds that an investigation had shown that Bertrand Creek wasfully recorded and there was insufficient water in the source to

hPPEAL NO. 86/07 WAT Page 3

enable him to grant a new licence. The Parmars appealed thisdecision to the Comptroller of Water Rights by letter received bythe Ministry of Environment on April 25, 1984. This appeal wasconfirmed by letter dated May 10, 1984 from the Deputy Comptrollerof Water Rights, J.E. Farrell. The Deputy Comptroller requestedin this letter that if the Parmar's had additional informationwhich they wished him to consider it should be submitted to him inwriting by June 10, 1984. He also advised the Parmars that shouldit be necessary to hold an oral hearing they would be advised at alater date. A decision on the appeal was promised by the DeputyComptroller as soon as he had had an opportunity to consider allthe information available.

By letter dated June 11, 1985 the Deputy Comptroller advisedthe two objectors, John Stuyt and Harvey Krause, of the appeal andtheir right to be heard in the appeal. Material such as a copy ofthe application for a Water Licence by the Parmars, letters ofObjection, the decision of the Regional Water Manager, the letterof Appeal and the report entitled Evidence from Investigation ofthe Appeal, documented by R.J. Penner, P. Eng., and dated June 8,1985 were enclosed with each letter with a request that thematerial be reviewed and any comments or further informationrelating to the Appeal be presented within one month of the dateof this letter. Each person was requested to advise the DeputyComptroller if he had nothing further to present. Each objectorwas also advised that the Parmars and other objectors would alsobe given an opportunity to comment or present further information.Each objector was also advised by the Deputy Comptroller of WaterRights that after he has received all the submissions andrebuttals he would review the evidence and decide on the Appeal.He also stated in each letter that if he was not satisfied that hehad all the information relating to the Appeal, he would hold anoral hearing. By letter of the same date (June 11, 1985)addressed to the Parmars, the Deputy Comptroller enclosed the samematerial with the same comments and advise contained in theletters to the objectors. By letter received by the Ministry ofEnvironment on June 21, 1985 the Parmars challenged Mr. JohnStuyt's statement that he grew 24 acres of raspberries andsuggested the actual figure to be more like 10 to 12 acres. TheParmars also challenged Mr. Stuyt's statement that Bertrand Creekwas so dry in 1980 and 1981 that water could not be diverted andstated that no one irrigated raspberries in 1980 and there were noshortages in 1981 whatsoever. They also stated that no oneirrigated more than twice since 1981.

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By letter dated July 2, 1985, G. Alan Major, Barrister andSolicitor advised the Deputy Comptroller that he represented bothobjectors, Mr. John Stuyt and Mr. Harvey V. Krause, Berry Farmers,whose farms are immediately downstream from the Parmar's property.He also advised that Mr. Stuyt grows 30 acres of raspberries andMr. Krause grows 35 acres of strawberries and raspberries, thelargest portion of which is raspberries. On behalf of Mr. Krause,he denied the Parmar's statement that he did not water his crop in1980 and only once in 1981, 1982 and 1983. He further stated onadvice from Mr. Krause that Mr. Krause uses the irrigation systemregularly during the raspberry growing season. He further statedthat Mr. Stuyt and Mr. Krause advised him that water is in shortsupply from mid-June to mid-August which is the key period in theberry growing season. Mr. Major also stated that the Parmars growthe same crops as Mr. Stuyt and Mr. Krause, primarilyraspberries, and this makes their application for a water licencemore critical because it would increase the demand in that area ofBertrand Creek from 18 acre feet to 35 acre feet, and theirlicence if granted, would fall most heavily in the key growingperiod. Mr. Major further stated that Mr. Stuyt and Mr. Krausehave worked together by alternating the days of irrigation whenthe water supply is low, however, they have no confidence that theParmars would be prepared to do the same. Their reason for thisconclusion is that the Parmars have been taking water fromBertrand Creek for purposes of irrigation, presumably without aLicence for the last three years.

By letter dated January 24, 1986 the Deputy Comptrolleradvised the Parmars that he had reviewed all the informationrelated to their Appeal and has decided to uphold their Appeal andto issue them a water licence on Bertrand Creek. Due to the factthat the Parmars were currently irrigating only 13 acres with noimmediate plans to develop more, the licence was issued extendingwater rights to a volume of water adequate to irrigate 13 acresi.e., 13 acre feet. Enclosed with the letter was a copy of aletter to Mr. G. Alan Major, Barrister and Solicitor, forMr. John Stuyt and Mr. Harvey Krause. The letter lists theinformation considered and gives reasons for the DeputyComptroller's decision. The reasons were as follows:(a) That the Regional Water Manager did not grant the Parmars a

water licence because there was insufficient water inBertrand Creek.

(b) That on occasions there may not be sufficient flow inBertrand Creek to satisfy all existing licences.

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(c) That allocation of water according to priority date of thelicence as established under the Water Act of BritishColumbia provides a system for regulating the works oflicences to account for water shortages which may occur fromtime to time.

(d) That the Regional Water Manager has not shown that anyregulation has been required in the past on Bertrand Creek.

(e) That no evidence has been presented to show that regularlythe flow in Bertrand Creek is insufficient to satisfy theexisting licenses. To the contrary, his clients freely admitthat the Parmars have been using water for the last threeyears without any apparant adverse affects on otherlicences.

(f) That on occasions there is sufficient water to satisfy allthe existing licences on Bertrand Creek as well as the waterrequirements of the Parmars.

(g) That to deny the Parmars a right to use water because onoccasions there may not be sufficient water to satisfy allthe licences is not making sufficient use of the waterresource.

(h) The dates of precedence of Conditional Water Licence 48986held by J.M. Stuyt and J.E. Stuyt and Final Water Licence52247 held by E.V. Krause are sufficient protection of· therights of your clients.

As a result of this decision Conditional Water Licence 63528was issued on January 24, 1986 to the Parmars authorizing thediversion of 13 acre feet per annum from Bertrand Creek to be usedon and appurtenant to Lot 4 of Section 17, Township 13, East ofthe Coast Meridian, Plan 27881, of which 13 acres may beirrigated.

By letter dated February 20, 1986 Mr. G. Alan Major filed aNotice of Appeal with the Environmental Appeal Board on thefollowing grounds:

1. That the Deputy Comptroller erred in determining that therewas sufficient flow of water in Bertrand Creek to satisfy allexisting licences.

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2. That the Deputy Comptroller erred in determining thatallocation of water according to the priority dates of theLicence provides adequate protection from excessive use ofwater from Bertrand Creek by the Parmars when they havedemonstrated a lack of respect for the licencing system bytaking water for three years without a licence.

3. That the Deputy Comptroller erred in determining that becausethere may be sufficient water to satisfy the existinglicences on Bertrand Creek on occasions as well as the waterrequirements of the Parmars, that was a proper basis on whichthe licence should be issued without considering thefrequency of the occasions on which the water supply wassufficient.

4. That the Deputy Comptroller erred in failing to consider thecosts to the taxpayers of British Columbia which may resultfrom the demands placed on the staff of the Water ManagementBranch to monitor the usage of licences taking water fromBertrand Creek in accordance with the priority dates of theirlicences.

5. That the learned Deputy Comptroller failed to consider thatthe fact of more land clearing in the areas borderingBertrand Creek has resulted in faster runoff of surfacewater, and has resulted in less water in Bertrand Creek.

6. The Deputy Comptroller erred in failing to consider whetheror not the supply of water in Bertrand Creek was sufficientin the period of peak irrigation not to have any detrimentaleffect on fish in Bertrand Creek.

ISSUE

The issue before this panel is whether there was a sufficientflow of water available from Bertrand Creek to justify theissuance of a water licence to the Parmars, namely, ConditionalWater Licence No. 63528, having precedence from March, 19, 1982within the context of the provisions of the Water Act, ibit,particularly, sections 12, 20 and 37.

Part of the evidence submitted by the Respondent is a Reportby Robert Marsh on "A Comparative Analysis of Climate MoistureAvailability for 1983, 1984 and 1985 at Aldergrove, B.C." The

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Climatic Moisture Balance (CMB) is defined in the report as thearithmetic difference between the amount of precipitation fallingduring some particular period of time and the potential amount ofmoisture which could have been evaporated from a vegetated soilsurface over the same period. For example: if 25 mm ofprecipitation occurs during some specific week, and iftemperatures over the same period were high enough to evaporate 20mm of water, then the net result is a CMB of +5 mm; this happensto be a Climatic Moisture Surplus and would reduce existingirrigation requirements by 5 mm over that week. If, in theexample above, temperatures were great enough to evaporate 35 mmof water, then the net result is a CMB of -10. This is a CimaticMoisture Deficit and implies that over that particular period, anextra 10 mm of irri9ation water would have to be applied to thesoil in order to malntain steady-state soil moisture conditions.This parameter considers only the meteorologically induced waterbalance. There is no consideration of moisture actually orpotentially, held in the soil. The analysis was performed usingmeteorological data from Abbotsford Airport. The methodology usedin the analysis is consistent and provides a good indication ofthe relative wetness/dryness of the years 1983, 1984 and 1985 fromApril through to September. This report indicated that the year

1985 was considerably drier than normal and the probability ofoccurrence of the 1985 Climatic Moisture Deficits are 4% in July -August (4 years in 100 or 1 in 25 years).DECISION

The view of the panel is that there is a sufficient flow ofwater in Bertrand Creek to justify the issuance of ConditionalWater Licence No. 63528, having precedence from March 19, 1982.It is clear from the evidence before the panel that the shortagescomplained of by the Appellant were of short duration.Furthermore, it is clear from the Report by Robert Marsh on aComparative Analysis of Climate Moisture Availability for 1983,1984 and 1985 at Aldergrove, B.C. that the period of July andAugust, a critical period for the growing of raspberries, duringwhich irrigation is required, was extremely dry. However, it isto be noted that the probability of occurrence of the 1985Climatic Moisture Deficits are; in July and August : one in 25years.

The panel adopts the Counsel for Respondent's. application ofthe provisions of the Water Act ibit, to the issue in this caseand we quote as follows:

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"The rights of John Stuyt (the Appellant) underConditional Water Licence No 48986 havingprecedence from December 21, 1966 are adequatelyprotected under the provisions of the Water Act,R.S.B.C. 1979 c. 429, on those occasions when thereare water shortages". Section 12 of the Water Actprovides, inter alia, that 'the respective rightsexercisable unde~licences authorizing thediversion of water from the same stream haveprecedence in law according to the respectivepriorities of the dates from which the licencestake precedence as set out in them'. Furthermore,every engineer under the Water Act has theauthority under Section 37 to order theconstruction, installation and maintenance of anymeasuring device and to regulate, in person, orthrough a water bailiff, the diversion, storage,carriage, distribution and use of water. Also,failure by a licensee to comply with an order of anengineer or of the Comptroller of Water Rights,including the Respondent, may give rise to a licencesuspension or cancellation pursuant to Section 20 ofthe Water Act". These provisions ensure theprotection of a water licence havng an earlierpriority date on a stream, such as the Appellant'sConditional Water Licence No. 48986, in the event ofwater shortages.We also concur with the Conclusions reached by counsel for

the Respondent which are as follows:

1. No evidence has been presented to show that regularly theflow in Bertrand Creek is insufficient to satisfy existingwater licences, including the Appellant's Water Licence No.48986. On the contrary, there is sufficient water to satisfyall the existing water licences on Bertrand Creek as well asthe water requirements of the Parmars under Conditional WaterLicence No. 63528.

2. To deny the Parmar's right to use water because on occasionsthere may not be sufficient water to satisfy all the existingwater licences on Bertrand Creek is not making efficient useof the water resource, especially in view of the protectionunder the Water Act of water licences having an earlierpriority date on Bertrand Creek such as that of theAppellant.

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3. There is no evidence of regulation of the diversion and useof water from Bertrand Creek by an engineer or a waterBailiff under the Water Act being required in the past.

4. No evidence has been presented to show that more landclearing in the areas bordering Bertrand Creek has resultedin a faster run-off of surface water or in less water inBertrand Creek.

5. No evidence has been presented to show that the supply ofwater in Bertrand Creek is insufficient in the period of peakirrigation to have a detrimental effect on fish in BertrandCreek.Accordingly it is the decision of the panel that the Appeal

of the Appellant be denied.On the questions of regulation, Counsel for the Respondent

suggests as follows:"However, efficient use of the water resource may necessitate

the future regulation of the diversions and use of water fromBertrand Creek by an engineer or a Water Bailiff under the WaterAct. Some regulation of the diversion and use of water fromBertrand Creek by an engineer or a Water Bailiff under the WaterAct would not be unreasonable in order to ensure the efficient useof the water resource.

On this subject the Respondent stated in cross-examinationthat "whether Mr. Parmar was issued a Water Licence or not, it hasbecome very apparent here to-day that there is a regulationproblem on this creek and your client is experiencing them hereto-day, mainly with the family of Mr. Krause and perhaps others.Downstream I have heard about others. So without Mr. Parmar'slicence putting it aside, there are regulating problems on thisCreek which should be dealt with and which seem to be greater thanissuing a licence to Mr. Parmar. When I hear that Mr. Krause issucking large amounts of water out of Bertrand Creek and alsoirrigating land he has no licence for, that to me is a moresignificant problem than issuing the last priority licence onBertrand Creek".

There is already evidence before the panel to indicate thatthe reason for the shortages complained of by the Appellant may beactually due, to the unauthorized diversion of water by other

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licensees such as Mr. Krause and to some extent Mr. Parmar.Mr. Parmar when asked on cross-examination how much water he wasdiverting, said he did not know.

Accordingly, it appears to the panel as it does to theRespondent that a regulation problem exists on Bertrand Creek withrespect to Final water Licence No. 52247 and Conditional WaterLicence Nos. 63528 and 48986, and, perhaps, other water licenceson Bertrand Creek.

THEREFORE, IT IS HEREBY ORDERED THAT the regional manager forthe Lower Mainland Region (the regional manager) regulate or causeto be regulated the diversion and distribution of water fromBertrand Creek with respect to Conditional Water Licences Nos.48986 and 63528 and Final Licence No. 52247 and any other waterlicences on Bertrand Creek he considers may be involved. Suchregulation is to be commenced at a time during the periodcommencing April 1st, 1987, and terminating September 30th, 1987,to be determined by the regional manager and may be continuedduring subsequent periods of April 1st to September 30th as theregional manager deems necessary. Regulation in whole or in partmay be discontinued at any time the regional manager is satisfiedthat regulation is no longer required.

AND IT IS FURTHER ORDERED THAT flow control recording devicesbe installed at the diversion points of the above noted waterlicences at the cost of the respective licences. Such other flowcontrol recording devices may be installed at the diversion pointsof other water licences on Bertrand Creek at the licensees'expense as the regional manager may deem necessary.

<),lffttdU

Ip.M. M~~~Panel Ch~irman,Environmental Appeal Board

Victoria, B. C.September 22nd, 1986.