legal exchange between b.c. government and testalinden dam owner
DESCRIPTION
Letters exchanged between the B.C. Environment Ministry and the lawyer for Elkin Ranch Ltd., the owner of a dam that breached near Oliver, B.C.TRANSCRIPT
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August 4, 2010
ELKINK RANCH LTD. 25451 HIGHWAY 3 CA WSTON BC VOX 1
The Place on Earth
Water Licence File: 8000709 Dam File: 76915-20/220-TES
(Attention: ACE EDWARD ELKINK, President, Secretary and Director)
Dear Sir:
Re: Watel' Act Order - Alteraltio:lIs to Te!ltaiiindlm Dam I Co,nditi.)lliliWatel'
BC Ministry of Environment water licence and property searches show that Ranch Ltd, is the CUlTen! holder of Conditional Water Licence ("CWL") 66123, as
well as the owner of the land to which the licence is appul1enant. Further, a corporllte search reveals that you are an Officer and Director of Elkink Ranch Ltd, and that Elkink . Ranch Ltd. was fom1erly named & !vI. Cattle Co, Ltd, until a name change to Elkink Ranch Ltd, 1968.
CWL 66123 authorizes the licence holder or licensee to stOrC a maximum quantity of 45 aCI'e-Iect per annum in the reservoir on Testalindcn Lake for storage and irrigation purposes. The works authorized by CWL 66123 include a "dam" on Testalinden Lake (the "Testalinden Lake Dam"). FUlthelTl1ore, eWL 66123 is the only water licence which authorizes a dam and the storage of water on Testalinden Lake. A copy of CWL 66123 has been attached for your information. Also attached is a copy ofthe Permit No,15800 undcr the Water Act which authorizcs Elkink Ranch Ltd. to occupy Crown land with works authorized under CWL 66123,
Please advised that the Ministry of Environment continues to investigate the circumstances which contributed to the breach (or failure) of the Testalindcn Lake Dam on 01' about June 13, 2010,
The pllfpose of this covering letter is to explain the Regional Water reasons for issuing an Order under the Water Act to Elkink Ranch in relation to possible rucl11rea1terations by the licensee of the works authorized by CWL 66123, in particular the Testalinden Lake Dam,
Ministry of Environment Water Stewardship DMsion Okanagan RegIon 102 Indusl,;al Place Penticton Be V2A 7C8
Telephone: (250) 490·8200 Facsimile: (250) 490·2231
FNR-2013-00257 Page 1
Under the Water Act and its regulations, particularly sections 5, 16 and 21 of the Water Act and section 1 (a) of the British Columbia Dam Safety Regulation, the "dam owner" is the person who holds the current licence (the licensee) for the dam. Elk\nk Ranch Ltd., as the licensee of the Testalinden Lake Dam and the dam owner, is responsible for meeting applicable requirements of the Water Act and the British Columbia Dam Safety Regulation. Copies ofthese sections of the Water Act and the British Columbia Dam Safety Regulation have been attached for your infOlmation.
The breach or failure of the Testalinden Lake Dam on or about June 13,2010, and the resultant release of water from Testalinden Lake into Testalinden Creek, triggered a debris flow which has caused significant damage to downstream land, works and. other property. As the current licensee and dam owner, Elkink Ranch Ltd. is responsible for ensuring that the Testalinden Lake Dam does not pose an ongoing risk to public safety and to land, works and other properties downstream.
Therefore, E1kink Ranch Ltd. is being required to take certain steps to prevent further risk and damage, including from any possible future alterations to Testalinden Lake Dam. In particular, the Testalinden Lake Dam breach must be stabilized before winter freeze up to prevent further risk and damage during the freshet in 2011.
In view of the foregoing, as the Regional Water Manager in the Okanagan area, I am issuing you the attached Order under sections 85 and 88 of the Water Act, as well as· under the British Columbia Dam Safety Regulation.
Please note that the issuance of this Order to you and your compliance with the requirements of this Order does not preclude or prejudice this or any future investigations, enforcement actions or other legal proceedings against you in respect of this matter.
If you· have any questions, or if you require clarification of the scope or intent ofthis Order, please contact the undersigned at 250-490-8232.
Any correspondence, including submission of plans or other material as required by the Order should be mailed to the Regional Water Manager at the following address:
BC Ministry of Environment 102 Industrial Place· Penticton, BC V2A7C8 Attention: Ken Cunningham, Regional Water Manager under the Water Act
A right of appeal from this decision lies to the Environmental Appeal Board. Information of filing an appeal can be found on the Environmental Appeal Board Website at:
http://www.eab.gov.bc.caf.''
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For your information it is an offence under section 93 and/or 94 ofthe Water Act to breach the regulations or to fail to do an act or thing required under the Water Act or under an order ofthe comptroller, regional water manager, engineer or officer. Under section 97 of the Water Act, this also applies to an employee, officer, director or agent of a corporation who authorizes, permits or acquiesces in an offence.
Finally, I request that you provide the undersigned with an indication of Elk ink Ranches Ltd. 's longer term intentions with respect to CWL 6612} and the Testalinden Lake Dam. If you would like to discuss the options please contact the undersigned in Penticton at (250) 490-8232.
Sincerely,
Ken Cunnin am Regional Water Manager under the Water Act Water Stewardship Division Okanagan Region
Attachments: 1. Regional'Water Manager's Order 2. Conditional Water Licence 66123 3. Permit No. 15800 4. Extract from Water Act 5. British Columbia Dam Safety Regulation under .Water Act
cc. Conservation Officer Service, Mike deLaronde Comptroller of Water Rights, Ministry of Environment, Victoria
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ORDER under the WATER ACT, R.S.B.C. 1996, c.483, and the British Columbia Dam Safety Regulation
IN THE MATTER OF a breach or failure of Testalinden Lake Dam which occurred on or about June 13,2010; and
WHEREAS, ELKINK RANCH LTD., having a registered office at:
Lot 14 - 2 -1, Chopka Indian Reserve #7 and 8, Cawston, B.C. VOX lC3, and
a records office at:
25451 Highway 3, Cawston, B.C. VOX lC3,
is the current holder of Conditional Water Licence ("CWL") 66123, which authorizes "works", including a dam to store 45 acre-feet of water in Testalinden Lake, for storage and irrigation purposes; and
WHEREAS Elkink Ranch Ltd. (formerly named E. & M. Cattle Co. Ltd. until a name change to Elkink Ranch Ltd. in 1968) is the owner of the land to which CWL 66123 is appurtenant; and
WHEREAS a corporate search reveals 'that ACE EDWARD ELKINK is an Officer and Director of Elk ink Ranch Ltd.; and
WHEREAS, under the Water Act and its regulations, particularly sections 5,16 and 21 of the Water Act, and under section 1 (a) of the British Columbia Dam Safety Regulation, BC Reg,44/2000, the current holder of CWL 66123, ELKINK RANCH LTD., is the "dam owner" and licensee in respect of the Testalinden Lake Dam; and
WHEREAS, ELKINK RANCH LTD., as the licensee ofthe Testalinden Lake . Dam and the dam owner, is responsible for meeting requirements of the Water Act and the British Columbia Dam Safety Regulation in respect of the construction, maintenance, use, operation, failure, removal and decommissioning of its works, including Testalinden Lake Dam;
WHEREAS, a breach or failure of the Testalinden Lake Dam occurred on or about June 13,2010 which triggered a debris flow that caused significant damage to downstream land, works and other property; and
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WHEREAS remedial steps must be taken to prevent further risk and damage from the licensed works and in particular the Testalinden Lake Dam breach must be stabilized before winter freeze up to prevent further risk and damage; and
WHEREAS, as the licensee and dam owner, ELKINK RANCH LTD., is responsible for ensuring that the Testalinden Lake Dam does not pose an ongoing risk to public safety and to land, works and other properties downstream;
WHEREAS, I, KEN CUNNINGHAM, Regional Water Manager, in addition to my powers as a regional water manager under the Water Act and the British Columbia Dam Safety Regulation, also have authority pursuant to section 85(2) of the Water Act to do any act or thing that an engineer or officer is empowered to do under the Water Act, including under section 88 of the Water Act and the British Columbia Dam Safety Regulation; and,
WHEREAS, an engineer under the Water Act is empowered under section 88(1) ofthe Wdtel' Act, to, among other things:
" ... (d) order the alteration, installation, replacement, repair, maintenance, improvement, sealing, closure or removal of, or the addition to, any works ... "
WHEREAS, under section 8 of the British Columbia Dam Safety Regulation a dam owner must, among other things:
" ..... (f) modify the operation of the dam to minimize or prevent damage which may be caused by the failure of the dam, and undertake any other hazard response activity required by a dam safety officer or engineer or by the comptroller or regional water manager." .
WHEREAS, it is an offence under section 93 and/or 94 of the Water Act to breach the regulations or to fail to do an act or thing required under the Water Act or to fail to do an act or thing required under an order of the comptroller, regional· water manager, engineer or officer; and, under section 97 of the Water Act, an employee, officer, director or agent of a corporation who authorizes, permits or acquiesces in an offence also commits an offence.
NOW THEREFORE, I, KEN CUNNINGHAM, Regional Water Manager, with the powers of a regional water manager, engineer and officer under the Water Act, HEREBY ORDER ELKINK RANCH LTD. to:
1. Effective immediately, cease and desist any work on or alteration to all or any part ofthe breached Testalinden Lake Dam until written authorization for any work or alteration has been obtained from the Regional Water Manager;
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2. On or before October 31, 2010, stabilize the existing breach in the Testalinden Lake Dam under the supervision of, and in accordance with, plans and specifications prepared by a suitably qualified professional engineer registered in the Province of British Columbia, all to the satisfaction of the Regional Water Manager;
3. On or before November 15, 2010, submit a report from the professional engineer refened to in section 2 of this Order confinning that the breach in the Testalinden Lake Dam has been stabilized as required under this Order;
4. For the purposes of this Order, and without limiting the plans and specifications that may be recommended by a 'suitably qualified professional engineer to stabilize the Testalinden Lake Dam breach, the work to' stabilize the Testalinden Lake Dam breach must include the following elements:
a) the side slopes of the breach in the Testalinden Lake Dam must be cut back and shaped to a more stable and gradual angle of repose. This work shall be undertaken in a manner that does not encroach upon the existing bottom width of the breach or otherwise restrict the discharge capacity of the breach or the creek channel below the breach;
b) the side slopes of the breach in the Testalinden Lake Dam must be armoured to protect the side slopes from stream erosion and scour; and
c) the exposed soils of the side slopes of the breach in the Testalinden Lake Dam and the immediately sunounding dam faces must be protected against surface erosion and to prevent sedimentation.
5. In carrying out any act or thing required under this Order, ELKINK RANCH LTD. must also comply with the conditions ofCWL 66123 and Permit over Crown Land No.1 5800, as well as with the provisions of the Water Act and the British Columbia Dam Safety Regulation, and the requirements of any other applicable enactment, regulation or other authorization.
DATED at Penticton, British Columbia, this 3rd day of August, 010.
Ken Cunningham Regional Water Manager, with powers of a regional water manager, engineer and officer under the Water Act
--,I
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------r---~--_,
~-.
WA'l'ER MANAGEMENT BRANCH
MINISTRY OF ENVIRONMENT
and Paxks ..... ,' .1 ••
TIlI>~PVINCE OF BIUTISH COLUMBIA-WATER ACT
CQNDITIONAL: WATER LICENCE
E. & M. Cattle Co. Ltd. of R.R. #1, Cawston; .British Columbia, VOX leO
.is hereby a~~h~r.i.~ed ~o divert, ~~e a~d store water as follows:
(a) The source . ..of_tb.e water-$up~~y is Tea.talindan Creek and the :r.e.eerv.oir is Te$taiindeh·La~e.
(b) The point~of .diversion, r~4iversiQn and the storage site are located aa shown on the attached plan.
(c) The dat~ f;-om.,which this licence $hall have precedence i§ 1st August 1985.
(d) The purp?$~ F~~.Fhich this ~t~qc~ is issued is storage and irrigation.
(e) The maximum quantity of water which may be. diverted into stora&e-is.45 acre feet per 'annum 8.~ci· diverted :£01' irrigation purpose is the quantity that is available_ from storage.
(f) The perio4 9f the year during which the water may be diverted into storage is 1st Qctober t(Ll!?th June and used for irrigation purpose is 1st April to 30th September.
(g) The land UP.93~ libicb the wate,r is to be used and to which this licence is appurtenant ~s Lots 177, 178, and 179 all within Similkameen Division of Yale District of ~hi~Q 15 acres ~ay ba_ irrigated.
(h) The ?,?r.~8_Aut;~i,z~d to be .<;onst~ct.ed are dam, diversion and J:ediversion structures, ditch, pipe, pomp and sprinkler system, which shall be located appro~imate1y as, shown on th:e attached plan.
(i)
(j)
The con~tructiQn_of the said works shal~ be completed and the water beneficially.,~a.<t Qn .9'r b~fp';r:e . .the. 31s.t da.y of December> .1989.
This licence is _issued in supstitotioa-or Final Water Licence.20031.
o nik t P.Eng. Water Manager Interior Region
-.Fi,le No. 8Q.o07M. Conditional Licence 66123
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Province of British Columbia
PENTICTON ~ WATER
__ ~ FAIRVIEW
... PRECINCT
....
PRINCETON '--"
WATER '\
-rL-. t---,-t---L---,-- DISTRICT ,. \
1615,. 2er '\
c., , L.354A
KEREMEOS
LAND DISTRICT
LEGEND
. ~ L/·/ :SIMILKAMEEN DIVISION OF YALE Signatur ._ ......... ,:_.rm~_~_. . ....... .
Dat •.. A ............. ·J~1 _____ ............ .
20031 Scale : 1,50000 Point of Diversion a Rediversion a Dam I. Map Number W R 1502 a 6936 Pipe and Ditch • __ • __ Permit over Crown Land: ••• ,
'The boundaries of the land to which this IIcenco Is appurtenant are shown thus: _____ _
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m Province of _ British Columbia
Minislryof Environment
PERMIT UNDER THE WATER ACT AUTHORIZING THE
OCCUPATION OF CROWN LAND
The holder of Conditional Water Licence 66123 1 being E. & ,M. Cattle Co. Ltd. at the date of issue of the said licence, whose licence authorizes the diversion J use and storage of water from Testalinden Creek and the reservoir is Testalinden Lake, is hereby authorized to occupy Crown Land by constntcting, maintaining and operating thereon the works authorized under the said licence and any licence which may be issued in substitution thereof.
(a) The Crown Land which is authorized to be occupied under this permit is a portion of Lot 4102 8 and unsurveyed land within Similkameen Division of Yale District, the location of which is shown approximately on the plan attached to the said water licence(s) •
(b) The approximate dimensions of the Crown Land authorized to be occupied under this permit are: Pipe & ditch 1.4 acres
Dam site .2 acre Flooded area 2.0 acres Total 3.6 acres
(c) The permittee may cut and remove from the said Crown Land any timber necessary to permit construction and maintenance of the said works and clearing of the said lands which may be flooded. Prior to the cutting, destruction or flooding of any timber, the permittee shall apply for and obtain a licence to cut timber from the District Manager and the amount of stumpage, royalty and (or) compensation payable to the Crown in respect of trees, including merchantable or young growth, cut, removed, damaged, or destroyed by the permittee, shall be the sum or sums fixed by the Forest Service of the Province of British Columbia. .
(d) This permit is appurtenant to the land, mine or undertaking to which the aforesaid water licence is appurtenant.
(e) This permit shall become void if the water licence with respect to which the permit is issued should terminate, be abandoned or cancelled, or amended so 8S to render this permit unnecessary.
(f) This permit is issued and accepted on the understanding that the permittee shall indemnify and save harmless the Government of the Province of British Columbia for all loss, damage to works, cost or expense suffered by the permittee by reason of the Crown Land or any portion thereof being submerged or damaged by erosion or otherwise affected by flooding.
(g) The holder of this permit shall not be entitled to compensation if the Crown grants permits to other persons to occupy the land affected by this permit.
(h) In the event,of a dispute at any time with respect to the area or boundaries of the land affected by this permit, the holder shall, at his own expense, have the said land surveyed by a duly qualified surveyor.
(i) The annual rental for this permit is $28.00, which is subject to review and revision at any time at the discretion of the Crown.
File No. 8000709 Date Issued
Pipe 6: Ditch Dam site Flooded area Total
~ 4.00 20.00 4.00
= ~~~~~~-'n~V~'ironment
a d
AUG 251987 Permit No. 15800
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Excerpts from the Water Act [RSBC 1996] CHAPTER 483
Rights acquired uuder 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; (b) store water; (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; (d) alter or improve a stream or channel for any purpose; ( e) construct fences, screens and fish or game guards across streams for the purpose of conserving fish or wildlife.
Transfer of licence, approval 01' permit 16 (1) A licence, approval or permit that is made apPUlienant to any land, mine or undertaking and any rights and obligations granted and imposed under the licence, approval or permit pass with a conveyance or other disposition of the land, mine or undeliaking. (2) A person conveying or otherwise disposing ofland, a mine or an undertaking to which a licence is appurtenant, or in respect of which an approval or permit was issued or, in the case ofa transmission of land, a mine or an undeliaking to the personal representative or other person
representing the owner, the personal representative or other person must give written notice of the conveyance or other disposition to the comptroller or regional water manager.
Rights and responsibilities under licence or approval 21 (I) The following persons must exercise reasonable care to avoid damaging land, works, trees or other prope11y, and must make full compensation to the owners for damage or loss resulting from construction, maintenance, use, operation or failure of the works: (a) an applicant; (b) a Ii censee; (c) a holder of an approval; (d) a person who, in accordance with the regulations or an order, makes changes in and about a stream or diverts or uses water. (2) Subject to subsection (1), a holder of a licence for power pUipose, waterworks purpose or irrigation purpose may fell and remove any tree and remove any rock or other thing that endangers the holder's works.
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B.C. Reg. 44/2000 O.C. 13112000
Deposited February 10,2000
Water Act
BRITISH COLUMBIA DAM SAFETY REGULATION
1 Definitions 2 Application
[Convenience copy on ly 1
Contents
3 Operation and maintenance of a dam 4 Alteration of a dam 5 Inspection 6 Reporting 7 Dam safety review 8 Hazardous conditions at a dam 9 Suspension of normal operation or removal of a dam
10 Information and evaluation 11 Instrumentation 12 Expert opinion
SCHEDULE 1
SCHEDULE 2
Definitions
1 In this regulation:
"Act" means the Water Act; "dam" means
(a) a barrier constructed across a stream, or
(b) a barrier constructed off-stream and supplied by diversion of water from a stream,
for the purpose of enabling the storage or diversion of water, and includes all works which are mcidental to or necessary for the barrier;
"dam owner" means, with respect to a dam, any or all of the following:
(a) the person who holds the current licence or is required to hold a licence for the dam;
(b) the person who last held a licence for the dam, including a licence that has been suspended, cancelled, abandoned or terminated;
(c) if there is no person to whom paragraph (a) or (b) applies, the owner of the land on which the dam is located or the person who had the dam constructed;
"dam safety officer" means an engineer or officer who is designated in writing by the comptroller as a dam safety officer;
"emergency preparedness plan" means a plan prepared by a dam owner under section 3 (2) (a) that describes the actions the dam owner proposes to take in the event of an emergency at a dam;
. . )
March 10, 2000 1
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B.C. Reg. 44/2000 WATER ACT
BRITISH COLUMBIA DAM SAFETY REGULATION
"height" means the vertical distance to the top (crest) of a dam measured,
(a) in the case of a dam across a stream, from the natural bed of the ~tream at' the downstream outside limit of the dam, or
(b) in the case of a dam that is not across a stream, from the lowest elevation at the outside limit of the dam;
"instrumentation" means, but is not limited to, survey monuments and stations, inclinometers, extensometers, piezometers or measuring weirs;
"maintain" or "maintenance" means the performance of those tasks required to keep the dam in good operating condition;
"operation, maintenance and surveillance manual" means a manual prepared by a dam owner under section 3 (2) (b) that describes the dam owner's operation, maintenance and surveillance procedures for the dam;
"professional engineer" means a person registered, and in good standing, as a professional engineer under the Engineers and Geoscientists Act;
"volume of water" means the total storage volume of the reservoir at full supply level measured in accordance with one of the following:
(a) between the natural bed of the stream and the spillway crest;
(b) between the upstream outside limit of the dam!!1ld the spillway crest;
( c) if a low level outlet is excavated to an elevation lower than the general foundation of the dam, between the bottom of that outlet and the spillway crest.
Application
2 (1) This regulation applies to all of the following:
(a) a dam 1 metre or more in height that is capable of impounding a volume of water greater than 1 000 000 m3; 610 Ar-
(b) a dam 2.5 metres or more in height that is capable of impounding a volume of water greater than 30 000 m3; '2..4 AF ~ S I .
(c) a dam 7.5 metres or more in height; ?-?' (d) a dam that does not meet the criteria under paragraph (a), (b) or (c) but has
a downstream consequence classification under Schedule 1 oflow, high or very high.
(2) This regulation does not relieve a dam owner from any other requirements that may be imposed under the Act, the Water Regulation or any other applicable enactment.
Operation and maintenance of a dam
3 (1) A dam owner must operate and maintain a dam in accordance with all of the following:
(a) this regulation;
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B.C. Reg. 44/2000 WATER ACT
BRITISH COLUMBIA DAM SAFETY REGULATION
(b) any applicable license or approval;
(C) any order that is made under the Act;
(d) the emergency preparedness plan that has been prepared and accepted in accordance with subsection (2) (a);
(e) the operation, maintenance and surveillance manual that has been prepared and accepted in accordance with subsection (2) (b).
(2) A dam owner must, in the form and manner and within the time period specified by the comptroller or regional water manager, prepare and submit to a dam safety officer, for acceptance by the dam safety officer, the following:
(a) if the downstream consequence classification under Schedule 1 is high or very high, an emergency preparedness plan;
(b) if the downstream consequence classification under Schedule 1 is low, high or very high, an operation, maintenance and surveillance manual.
(3) Subsection (2) applies whether or not there is a term or condition in an approval granted or licence issued that requires the preparation of such a plan or manual for the dam.
(4) A dam owner must ensure that the dam is adequately safeguarded to prevent unauthorized operation of the dam by someone other than the dam owner or an agent of the dam owner.
Alteration of a dam
4 (I) Any alteration, improvement or replacement to all or any part of a dam must be authorized by an approval, licence or order.
(2) Subsection (I) does not apply to an alteration, improvement or replacement for the purpose of
(a) maintaining the dam as authorized under section 3, or
(b) addressing a h~ardous condition under section 8.
(3) A dam owner must submit to a dam safety officer, on completion of the alteration, improvement or replacement, a report on the work and the manner in which any such alteration, improvement or replacement to all or any part of the dam was performed.
Inspection
5 A dam owner must do all of the following: .
(a) carry out an inspection of a dam on the frequency applicable to the downstream consequence classification for the dam as set out in Schedule 2 in order to assess the condition of the dam during the construction, operation or alteration of the dam;
(b) record the results of every inspection performed under paragraph (a);
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B.C. Reg. 44/2000 WATER ACT
BRITISH COLUMBIA DAM SAFETY REGULATION
Reporting
6
(c) repair any safety hazard revealed by an inspection, if authorized to do so by an approval, licence or order or as authorized under this regulation.
(1) A dam owner must, when an inspection is carried out under section 5 or when any other inspection is carried out with respect to a dam,
(a) submit to a dam safety officer; in the form and manner and within the time period specified by the dam safety officer,
(i) the record of inspection required by section 5 (b), and
(ii) the results and analysis of any test or measurement taken including, but not limited to,
(A) instrumentation readings and analysis,
(B) visual records or observations,
(C) drawings,
(D) soil, aggregate and concrete test results, and
(E) any other test results, and
(b) promptly submit to a dam safety officer the record of inspection required by section 5 (b) if the inspection reveals a potential safety hazard.
(2) A dam owner must submit to a dam safety officer, if requested by the dam safety officer, the original or clear copies of the following documentation required for the design, construction or alteration of the dam:
(a) all design notes, drawings and specifications;
(b) hydraulic, hydrologic, geological and geotechnical data;
(c) reports and other similar documentation.
Dam safety review
7 (1) If required by Schedule 2, a dam owner must have a professional engineer, experienced in dam safety analysis, do a dam safety review and prepare, in the form and manner and within the time period specified by the comptroller Qr regional water manager, a dam safety report.
(2) The dam owner must submit to It dam safety officer a copy of the dam safety report prepared by the professional engineer who carried out the dam safety review under subsection (1).
Hazardous conditions at a dam
8 If conditions exist with are or are likely to be hazardous to a dam, or if conditions may reasonably be anticipated to cause a dam, or any part of a dam, or any 9peration or action at or in connection with a dam, to be or become potentially hazardous to public safety, the infrastructure or works, other property or the environment, a dam owner must promptly do all of the following:
4 March 10, 2000
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.. _) .
B.C. Reg. 44/2000 WATER ACT
BRITISH COLUMBIA DAM SAFETY REGULATION
(a) if an emergency preparedness plan exists, modify the operation of the dam, or any part of the dam, in accordance with the emergency preparedness plan;
(b) if an emergency preparedness plan does not exist, operate the dam in a manner, and initiate any remedial actions, that will
(i) safeguard the public,
(ii) minimize damage to the infrastructure or works or to other property, including that not owned by the dam owner, and
(iii) minimize damage to the environment;
(c) contact the Provincial Emergency Program continued under the Emergency Program Act;
(d) notify a dam saf~ty officer, or the comptroller orregional water manager, of
(i) the nature of the existing or anticipated conditions,
(ii) all things done by the dam owner to rectify the conditions, and
(iii) the time and exact nature of any information or warning of existing or anticipated conditions issued to any person under this section;
(e) inform local authorities, and persons who maybe in immediate danger from the potential failure of the dam, of the nature of the existing or anticipated conditions and, if necessary, advise those persons who may be in immediate danger to vacate and remove any property from the endangered area;
(f) modify the operation of the dam to minimize or prevent damage which may be caused by the failure of the dam, and undertake any other hazard response activity required by a dam safety officer or engineer or by the comptroller or regional water manager.
Suspension of normal operation or removal of a dam
9 (1) A dam owner must give the comptroller or regional water manager at least 60 days written notice before undertaking any of thefollowing activities:
(a) removing all or a significant part of a dam;
(b) decommissioning or abandoning a dam;
(c) stopping the normal operationofa dam for a period oftime longer than one year.
(2) The dam owner must prepare, and submit to a dam safety officer for approval,
(a) a plan respecting an activity under subsection (1) (a) or (b), or
(b) if required by the dam safety officer, a plan respecting an activity under subsection (1) (c).
(3) The dam owner must, at least 14 days before the date on which the work is expected to commence, notify a dam safety officer before commencing any work under the approved plan.
March 10,2000 5
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B.C. Reg. 44/2000 WATER ACT
BRITISH COLUMBIA DAM SAFETY REGULATION
(4) The dam owner must submit to a dam safety officer, on the completion of the work performed under the approved plan, a report on the work and the manner in which it was performed.
(5) The dam owner must undertake any further actions that the comptroller or regional water manager requires to alleviate any adverse consequences to any person, the infrastructure or works, other property or the environment that may be affected by any work performed on the dam.
(6) An approval under subsection (2) respecting the decommissioning of a dam is subject to the Environmental Assessment Act and to approvals, if any, required under that Act.
Information and evaluation
10 (1) A dam owner must, if requested by a dam safety officer, provide the following information in order to evaluate the condition or hazard potential of a dam:
(a) information with respect to the dam including, but not limited to, (i) foundation investigation results,
(ii) design details and as-built plans, (iii) construction records, (iv) operation manuals, (v) records of instrumentation,
(vi) inspection reports, (vii) safety reports, and (viii) inundation studies and emergency preparedness plans;
(b) information with respect to the naturll of the land and the stream, and the use of the land and the stream, downstream from or adjacent to the dam or reservoir, including the hydraulic, hydrologic, geological and geotechnical characteristics and the uses of the land and stream;
(c ) information with respect to the watershed upstream of the dam.
(2) The information requested under subsection (1) must be submitted to a dam safety officer, in the form and manner and within the time period specified by the comptroller or regional water manager.
(3) The dam owner must conduct any inspection, investigation, surveyor test that is necessary to provide the information required by subsection (1).'
Instrumentation
11 A dam owner must do all of the following:
6
(a) install any instrumentation necessary to adequately monitor the performance of a dam;
(b) monitor, maintain or replace instrumentation installed at a dam to ensure continuity of readings;
March 10, 2000
..
-'
, /
FNR-2013-00257 Page 16
B.C. Reg. 44/2000 WATER ACT
BRITISH COLUMBIA DAM SAFETY REGULATION
Expert opinion
( C) submit instrumentation readings and evaluations to a dam safety officer, in the form and manner and within the time period specified by the dam safety officer;
(d) submit, to a dam safety officer for approval by the dam safety officer, (i) notice of any planned modifications to, changes to or removal of the
instrumentation at least 60 days before the proposed modification, change or removal, or
(ii) an annual plan outlining intended changes to the instrumentation.
12(1) If, based on information submitted in respect of a dam or related works, the comptroller or regional water manager considers that a question has arisen as to what is proper practice for resolving an issue involving a dam or related works, the comptroller or regional water manager may require a dam owner to retain an expert, satisfactory to the comptroller or regional water manager, with qualifications and experience as follows:
(a) in the case of a dam, in dam design, construction and analysis;
(b) in the case of related works, in hydraulic, hydrological, geological, geotechnical, mechanical or structural engineering or other appropriate disciplines.
(2) The expert retained under subsection (1) must provide a report to the comptroller or regional water manager on the issue.
March 10, 2000 7
FNR-2013-00257 Page 17
B.C. Reg. 44/2000 WATERAoT
BRITISH COLUMBIA DAM SAFETY REGULATION Schedule 1
Rating
VERY HIGH
HIGH
LOW
8
SCHEDULE 1 (sections 2 (1) (d) and 3 (2))
DOWNSTREAM CONSEQUENCE CLASSIFICATION GUIDE
Loss of Life Economic and Environmental and
Social Loss Cultural Losses
Large potential for mUltiple loss Very high economic losses Loss or significant deterio-oflife involving residents and affecting infrastructure, public ration of nationally or provin-working, travelling andlor and commercial facilities in and cially important fisheries habitat recreating public. Development beyond inundation area. (including water quality), within inundation area (the area Typically includes destruction wildlife habita~ rare andlor that could be flooded if the dam of or extensive damage to large eIl;dangered species, unique fails) typically includes commu- residential areas, concentrated landscapes or sites of cultural nities, extensive commercial comrnercialland uses, Significance. Feasibility andlor and work areas, main highways, highways, railways, power practicality of restoration andlor railways, and locations of lines, pipelines and other compensation is low. concentrated recreational utilities. Estimated direct and activity. Estimated f~talities indirect (interruption of service) could exceed 100. costs could exceed $100
million. Some potential for multiple loss Substantial economic losses Loss or significant deterio-cfHfe involving residents, and affecting infrastructUre, public ration of nationally or provin-working, travelling andfor and commercial facilities in and cially important'fisheries habitat recreating public. Development beyond inundstion area. (including water quality), within inundation area typically Typically includes destruction wildlife habita~ rare andlor includes highways and railways, of or extensive damage to endangered species, unique commercial and work areas, concentrated commercial land landscapes or sites of cultural locations of concentrated recre-- uses, highways, railways, power significance. Feasibility and ational activity and scattered lines, pipelines and other practicality of restoration andlor residences. Estimated fatalities utilities. Scattered residences compensation is high. less than 100. may be destroyed or severely
damaged. Estimated direct and indirect (interruption of service) costs could exceed $1 million.
Low potential for multiple loss Low economic losses to limited Loss or Significant deterio-of life. Inundation area is infrastructure, public and ration of regionally important typically undeveloped except commercial activities. fisheries habitat (including for minor roads, temporarily Estimated direct and indirect water quality), wildlife habita~ inhabited or non- residential (interruption of service) costs rare and endangered species, farms and rural activities. There could exceed $1 00 OOO~S) unique landscapes or sites of must be a reliable element of cultural significance. Feasibility natural warning iflarger and practicality of restoration development exists. andlor compensation is high.
Includes situations where recovery would occur with time without restoration.
March 10, 2000
FNR-2013-00257 Page 18
B.C. Reg. 44/2000 WATERAoT
BRITISH COLUMBIA DAM SAFETY REGULATION SchedulEi 2
VERYWW Minimal potential for any loss Minimal economic losses No significant loss or deterio-of life. The inundation area is typically limited to owner's ration of fisheries habitat,
.
typically undeveloped property not exceed $100 000. wildlife habitat, rare or Virtually no potential exists for endangered species, unique future development of other landacapes or sites of cultural . land uses within the foreseeable significance. future.
SCHEDULE 2
(sections 5 (a) and 7 (1))
MINIMUM INSPECTION FREQUENCY AND DAM SAFETY REVIEW REQUIREMENTS
Item. Very High High Low Very Low
Consequence Consequence Consequence Consequence
Site Surveillance [a] WEEKLY WEEKLY MONTHLY QUARTERLY Formal Inspection [b] SEMI·ANNUALLY SEMI·ANNUALLY ANNUALLY ANNUALLY
or ANNUALLY Instnnnemation AS PER OMS * ASPEROMS' AS PER OMS * N/A
MANUAL MANUAL MANUAL Test Operation of ANNUALLY ANNUALLY ANNUALLY ANNUALLY Outlet Facilities, Spillway gates and other Mechanical Components Emergency UPDATE UPDATE UPDATE N/A Preparedness Plan COMMUNICA· . COMMUNICA· COMM]JNICA·
TIONSDIRECTORY TIONSDlRECTORY TIONSDIRECTORY SEMI·ANNUALLY SEMI·ANNUALLY ANNUALLY
Operation, REVIEW EVERY REVIEW EVERY REVIEW EVERY REVIEW EVERY Maintenance & 7· 10 YEARS 10 YEARS 10 YEARS 10 YEARS Surveillance Plan· Dam Safety Review EVERY 7·10 EVERY 10 YEARS [d] [d] [c] YEARS [d] [d]
* Operation, Maintenance, and Surveillance Manual.
[a] Site surveillance may consist of visual inspections andlor monitoring of automated data aeqnisition systems. Reduced frequencies of visual inspections may be determin.ed by seasonal conditions.
[b] Formal Inspections are intended as more thorough inspections performed by the . appropriate representative of the owner responsible for safety surveillance.
[c] A Dam Safety Review involves collection of all available damrecords, field inspec· tions, detailed investigations and possibly laboratory testing. It then proceeds with a check of structural stability and operational safety of the dam, beginning with a reappraisal of basic features and assumptions. The level·of detail required in a Dam Safety Review should be commensurate with the importance and complexity of the . dam, as well as the consequences of failure.
March 10, 2000 9
FNR-2013-00257 Page 19
'!(B:C. Reg. 411/2000 WATER ACT
BRITISH COLUMBIA DAM SAFETY REGULATION $chedule2
."
[d] Dam owners must conduct an annual review of conditions downstream of their dam and notify a dani safety officer if the downstream consequence classification level increases. The downstreamc~nsequence classification guide is shown iri Schedule 1.
[provisions of the Water Act, R.S.B.C. 1996, c. 483, relevant to the enactment of this regulation: s~tion 46 (i) and (2) (d), (t), (h) and (i)]
10
Queen's Printer for British Columbia© Victoria. ::!OOO
March 10, 2000
FNR-2013-00257 Page 20
BORDEN
LADNER
GERVAIS
VANOI, 2818312: v2
Borden Ladner Gervais LLP lawye!S-Ll'atenl&JradOomackAgents- _____ _
1200 Waterfront Centre
Received 200 Burrard Street, P.O. Box 48600 Vancouver, B.C., Canada V7X 1T2
September 3, 2010 tet: (604) 687-5744 fax: (604) 687-1415
wvlW.blgcanada.com
SEP 0 8 2010 FILE NO: 556947/000001
BY FAX & COURIER
RICK WILLIAMS direct tel: (604) 640-4074 direct fax: (604)622-5887
email: [email protected]
BC Minishy of Environment 102 Industrial Place Penticton, BC V2A 7C8
Attention: Ken Cunningham, Regional Water Manager under the Water Act
Dear SirslMesdames:
Re Water Act Order - Alterations to Testalinden Lake Dam / Conditional Water Licence 66123
We are the solicitors for Elkink Ranch Ltd. ("Elkink Ranch") and its principal, Mr. Ace Elkink. We write on behalf of our client to respond to your letter dated August 4, 2010 and the enclosed August 3, 2010 Order issued pursuant to the Water Act against our client with respect to the above licence.
As discussed below, it is our position that Elkink Ranch is not liable for the Testalinden Lake Dam or the breach which occurred on June 13, 20 I 0 and therefore our client is not required to carry out the remedial work. Nevertheless, given the costs and delay associated with an appeal of the Order, our client is prepared to carry out the
. remedial work, but it will do so under protest with full preservation of its rights and remedies under statute and at common law, including the right to seek full recovery of all costs fi-om the responsible patiies.
In agreeing to carry out this work Elkink Ranch does not concede, and in fact expressly denies, the facts as set out in the Order, specifically, and without limitation:
• Elkink Ranch denies that the "works" authorized under Conditional Water Licence 66123 include "a dam to store 45 acre-feet of water in Testalinden Lake, for storage and irrigation purposes"
• Elkink Ranch denies that it is the "dam owner and licensee in respect of the Testalinden Lake Dam"
• Elkink Ranch denies that it "is responsible for meeting requirements of the Water Act and the British Columbia Dam Safety Regulation in respect of the construction, maintenance, use, operation, failure, removal and decommissioning of ... Testalinden Lake Dam".
- I -
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Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership FNR-2013-00257 Page 21
VANOI: 2818312: v2
• Elkink Ranch denies that it "is responsible for ensuring that the Testalinden Lake Dam does not pose an ongoing risk to public safety and to land, works and other propeliies downstream".
E&M Cattle Co. Ltd., now Elkink Ranch, was purpOliedly granted Conditional Water Licence 66123 on August 25, 1987 (the "Licence"). The Licence provided for the construction of authorized works on Testalinden Creek, Richter Creek and Richter Lake to divert and re-divert water to use for irrigation purposes. The works were to be completed by December 31, 1989. The works were never constructed and Elkink Ranch did not make any beneficial nse of the water by the 1989 deadline (or after) and as such, no Final Water Licence was ever issued.
At no time prior to, or since, the Licence was purpOliedly issued to Elkink Ranch did the Province or anyone else advise our client that there were any issues with respect to the earthen dam/roadway on Testalinden Lake. Only after the recent washout did it come to Elkink Ranch's attention that the Province and prior licence holder, the National Research Council. ("NRC"), were fully aware of, and failed to address, a number of significant latent defects with respect to the dam structure which resulted in its washout.
These defects were detailed repeatedly in inspection reports canied out by the Province and your office dating back to the 1960's (as referenced in the Deputy Solicitor General's RepOit - Review of the Testalinden Dam Failure). In paliicular, a 1978 inspection repOli written by your office was provided to NRC and stated that:
"The dam in its present condition is a hazard to life and property to some of the settled areas along the Osoyoos-Oliver highway which lies downstream of Testa/inden Lake Dam. We recommend that the dam either be breached or reconstructed The dam should be breached by April 1, 1978 should a decision be made not fa reconstruct. "
The NRC was granted two TIuiher extensions to address these issues and another letter was issued to NRC by your office highlighting the same safety concems with a final deadline to effect remedial work by May 15, 1981. Nothing was done to the dam and it appears that the NRC abandoned its licence in 1981 without having carried out any of the required remedial work. Contrary to the Deputy Solicitor General's RepOli, there was no licence holder for Testalinden Lake/Creekfrom 1981 until the Licence was granted to Elkink Ranch in August, 1987. During that time, it appears that the Province continued to conduct inspections of the dam and identify safety concems, but it failed to undeliake any repairs or address these concems.
At no time did the Province, NRC or any other infOimed party advise our client of these safety issues or their failure to effect repairs. Had Elkink Ranch been advised of any of these issues relating to the dam, which the Province had a legal duty to disclose, it would never have applied for or accepted the Licence, which to date has been of no benefit. Given the longstanding knowledge of the Province regarding these safety concems, its failure to ensure that repairs were effected, and the lack of disclosure to our client, it is unconscionable that the Province is now attempting to transfer responsibility
-2-
FNR-2013-00257 Page 22
" ,
VAN01: 2818312: v2
for this unfOliunate event on our client who has paid less than $100 a year for a licence it has never used.
Even if the Licence contemplates responsibility for the Testalinden Lake Darn, which is denied, the Licence was invalidated by the Province's non-disclosure of such material information affecting the Licence and existing works. By this Order, the Province is now attempting to pass responsibility for the darn to Elkink Ranch through the purported issuance of the Licence in 1987. That is improper as the Province was obligated to act in good faith and disclose all material facts, especially those relating to risk, which it clearly failed to do.
Finally, we note that the Province had ample notice and oppOltunity to avert the breach and subsequent washout. The Province received at least 2 days advance warning from a local hiker, Mr. Hal Krieger, that water was overflowing the darn and eroding the road, whereby a complete failure was likely resulting in serious damage to downstream property owners. Despite the Province's longstanding awareness of safety issues with the darn, it failed to respond to the warning or otherwise take steps which could have averted the breach
As a result of the material non-disclosures, inaction and failure of the Province to meet its duties in issuing the Licence, Elkink Ranch is entitled to and does hereby rescind the Licence. Alternatively, and without admitting the Licence is valid, Elkink Ranch hereby abandons the Licence.
We enclose a Notice of Abandornnent of Water Licence with respect to the Licence. Despite the language on the form, we dispute, and our client does not accept, any existing or ongoing liability for damage resulting from the darn given the Province's above noted material non-disclosures, failure to effect repairs (either by the Ministry or prior licence holders), and failure to respond in a timely manner to remedy the known latent deficiencies in the darn or otherwise avert the breach.
As noted above, Elkink Ranch will effect the remedial work as set out in the Order, but it does so under protest. As such, our client will retain a professional engineer to prepare appropriate plans and specifications for your review before proceeding with the specified remedial work. The engineer will conduct appropriate field reviews of the work to stabilize the breached section and ultimately issue a report as required by the Order. We understand that Golder & Associates will be retained by our client to perform this work and the responsible professional will be Gerald Imada, P. Eng. We enclose a copy of Mr. Imada's resume. Please confirm that Mr. Imada and his firm are acceptable to you to proceed in this fashion. Golder will then prepare the plans and specifications for your review and approval before our client proceeds with the work.
- 3 -
FNR-2013-00257 Page 23
.' .
YANGl: 2818312: v2
We look forward to receiving you approval to proceed on that basis.
RLW:pc
cc: Elkink Ranch Ltd. Attn: Ace Elkink
Yours tlUly,
FNR-2013-00257 Page 24
FNR-2013-00257 Page 25
FNR-2013-00257 Page 26
FNR-2013-00257 Page 27
Pages 28 through 36 redacted for the following reasons:- - - - - - - - - - - - - - - - - - - - - - - - - - - -s.22
September 13,2010
BY FAX & COURIER
BRITISH COLUMBIA
The Best Place on Earth
BORDEN LADNER GERVAIS LLP 1200 WATERFRONT CENTRE 200 BURRARD STREET PO BOX 48600 VANCOUVER BC V7X 1 T2 Fax: (604) 622-5887
Attention: Rick Williams
Dear Mr. Williams:
Water Licence File: 8000709 Dam File: 76915-20/220-TES
Re: Water Act Order - Alterations to Testalinden Lake Dam / Conditional Water Licence 66123
We have your letter dated September 3, 2010. We do not accept the accuracy of the facts and assertions made on behalf of your clients or the conclusions drawn from them.
We confirm that Elkink Ranch Ltd. has agreed to carry out the remedial work stipulated by the Water Act Order dated August 3, 2010. Gerald Imada, P. Eng., of Golder Associates Ltd. is acceptable as a "suitably qualified professional engineer" as required by the Order.
The Notice of Abandonment from Elkink Ranch Ltd. (formerly E & M Cattle Co. Ltd.) will be addressed under separate cover.
~7Y' f~c~~
Brian S .. n s,-P .Eng. DeputY'~ omptroller under the Water Act For Ieen Cunningham, Regional Water Manager under the Water Act Water Stewardship Division, Okanagan Region
Ministry of Environment Water Stewardship Division Okanagan Region 102 Industrial Place Penticton BC V2A 7C8
Telephone: (250) 490-8200 Facsimile: (250) 490-2231
FNR-2013-00257 Page 37
cc. ELI(INI(RANCHLTD. 25451 HIGHWAY 3 CAWSTONBC VOX 1C3 (Attention: ACE EDWARD ELI(INI(, President, Secretary and Director) Conservation Officer Service, Mike deLaronde Comptroller of Water Rights, Ministry of Environment, Victoria
FNR-2013-00257 Page 38
t:iGOlder ~ Associates
October 8,2010
Mr. Ken Cunningham, Regional Water Manager under the Water Act BC Ministry of Environment 102 Industrial Place Penticton, BC V2A 7C8
TESTALINDEN DAM BREACH STABILIZATION
Dear Sir,
Received
OCT 0 8 2010
102 Industrlai Place ,."tleton\ ee. ViA 1.
Project No. 10-1494-0239
Pursuant to the Water Act order, dated August 4, 2010, Golder Associates Ltd. on behalf of Elkink Ranch Ltd. is
submitting the attached plan showing the proposed stabilization works for the breached section of the
Testalinden Dam for your review and approval. We request a quick response given the October 31, 2010
deadline to complete the works, as well as the closing weather windows.
Should you have any questions, please contact the undersigned.
Yours very truly,
GOLDER ASSOCIATES LTD.
dl~ Associate, Senior Geotechnical Engineer
GI/jc
CC: Elkink Ranch Ltd, Ace Elkink
n:lactive1201011494 bcio geotechnicaI110-1494-0239 branch macmaster testalinden dam failurelreportslfinal wpldam breach stabilization oct 8-10.docx
Golder Associates Ltd. 220 - 1755 Springfield Road, Kelowna, British Columbia, Canada v1Y 5V5
Tel : +1 (250) 860 8424 Fax: +1 (250) 860 9874 www.golder.com
Golder Associates : Operations in Africa, Asia, Australasia, Europe, North America and South America
Golder, Golder Associates and the GA globe design are trademarks of Golder Associates Corporation. FNR-2013-00257 Page 39
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98
97
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A NORTH
B WEST
PROPOSED WATERBARS (typical)
o 5
LOCATION OF DAM BREACH
EXISTING CULVERT
SITE PLAN (SCALE 1: 500)
10 15
Scale in Meters
20
APPROXIMATE DAM ---7'----\
FOOTPRINT
EXISTING ROCK BRIDGE
25
PROPOSED DAM BREACH
EDGE OF LAKE
I
i
CREST OF DAM BREACH
A' EXISTING GROUND SURFACE \
EXISTING CULVERT \
STABILIZATION (See Detail 'A') V ~ SOUTH
\ \ 0
0 5
TESTALINDEN LAKE
0 5
\ \ ,
10 15
1"
E ...........
10 15
/ LOCATI6N I OF DAM BREACH
" 1/ , "l
'\. / \ '" ./ \ "--.--.-
20 , 30/ HORIZONTAL DISTANCE (m)
APPROXIMATE DAM WIDTH
i 20 \ 25 30
~ PROPOSED GRADING ALONG BOTTOM OF BREACH USING 3.5% SLOPE
TYPCIAL SECTIONS (SCALE 1: 200)
\ \
/ /
35
B' EAST
35
PROPOSED WATERBARS (typical)
103
102
I 101
z 0 100 i= « > w 99 ....J W
98
97
LEGEND
.pp EXISTING POWER POLE
.Y SURVEYED LAKE WATER LEVEL (97.584m)
CONSTRUCTION SEQUENCE
1. 2. 3.
4.
5.
6.
Trim breached sideslopes to 1.75 horizontal to 1 vertical. Maintain at least a 2.0 m wide section at bottom of breach. Grade bottom of breached section to at least a 3.5 per cent grading down towards the downgradrient side (easterly direction). Place geotextile (Nilex 4551 or equivalent) along base of breach and up along trimmed sideslopes for a distance of at least 1.5 m. Place a minimum 350 mm thickness of Class 10 riprap material measured at right angles to the slope. Riprap gradation percentage to consist of rock sizes having the following percentages of rock mass (kg):
85% greater than 1 kg mass, 50% greater than 10 kg mass, 15% greater than 30 kg .
Excavate two waterbars/swales across full width of existing access road on either side of the breach at the approximate locations shown. Depth of waterbars/swales to extend to at least 0.45 m below surface of existing access road . (waterbars/swales to prevent formation of erosion channels in remediated breach from uncontrolled surface water flowing down existing access road).
LOCATION ~------------------4--------0FDAMBREACH------------------~
Trimmed Sideslopes
Geotextile (Ni ex 4551 or equivalent)
20 25 35
HORIZONTAL DISTANCE (m)
DETAIL IAI - PROPOSED DAM BREACH STABILIZATION
(SCALE 1: 125) o 2 3 4 5
Scale in Meters
NOTES 1. FIELD SURVEY DATE SEPTEMBER 21, 2010. ELEVATIONS BASED ON RELATIVE
BENCHMARK OF 100.00 m.
PROJECT
TITLE
ELKINK RANCH DAM BREACH STABILIZATION
TESTALINDEN LAKE, BC
SITE PLAN and PROPOSED DAM BREACH STABILIZATION
PROJECT No. 1D-149H1239(4000) FILE 1ti.14940239_4000_survey.dwg
DESIGN GI 22SEPTl 0 SCALE As Shown REV. 0
CADD JG 22SEPTl O
FNR-2013-00257 Page 40
Q BRITISH
COLUMBIA The Best Place on Earth
October 12, 2010 Water Licence File: 8000709 Dam File: 76915-20/220-TES
BY FAX &'COURIER
BORDEN LADNER GERVAIS LLP 1200 WATERFRONT CENTRE
FAX: 604-622-5887
200 BURRARD STREET PO BOX 48600 VANCOUVER BC V7X 1 T2
Attention: Rick Williams
Dear Mr. Williams:
Re: Water Act Order dated August 3, 2010-Alterations to Testalinden Lake Dam I Conditional Water Licence 66123
We have received a letter dated October 8,2010 from Gerald Imada, P. Eng. of Golder Associates Ltd. showing the proposed stabilization works for the breached section of the Testalinden Dam. '
The proposed works are satisfactory and authorization is granted to undertake the related work.
Upon completion of the work, ensure a report from Gerald Imada, P. Eng. of Golder Associates Ltd. is submitted confirming that the breach in the Testalinden Lake, Dam has been stabilized as re ired under the above-referenced Order. .
Ken Cunningham, Regional Water Manager under the Water Act
Ministry of Environment Resource Stewardship and Parks Division Okanagan 102 Industrial Place Penticton BC V2A 7C8
Telephone: (250) 490-8200 Facsimile: (250) 490-2231
FNR-2013-00257 Page 41
Q BRITISH
COLUMBIA The Best Place on Earth
Ministry of Environment
102 Industrial Place, Penticton BC V2A 7C8
o Environmental Protection Division Kootenay & Okanagan Regions
o Environmental Stewardship Division Okanagan Re£lion
o Water Stewardship Division Okanagan Re£lion
Telephone: (250) 490-8200
TO: R I etc W I LU t9:m "5
FAX SHI;:--ET
Fax: (250) 490-2231
FAX NUMBER __ &J_O_Lf_-_G_~-...,....-~_-__ ~_g_g_1 __
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THIS FACSIMILE IS INTENDED FOR THE USE OF THE INDIVIDUAL(S) TO WHOM IT IS ADDRESSED, ANY DISTRIBUTION, COPYING OR OTHER USE BY ANYONE ELSE IS STRICTLY PROHIBITED. IF YOU RECEIVED THIS FACSIMILE IN ERROR, PLEASE TELEPHONE US IMMEDIATELY AND DESTROY IT, THANK YOu.
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FNR-2013-00257 Page 42
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O c t . 6. 8:33AM 250 549 1226 G3TESM 0 - 36" P. 2 O K 1210 12: 13 PM 403 652 2455 G3TESM 0 - 33" P. 4 OK 1211
1 : 24PM Fax G3TESM 0 - 37" P. 1 OK 1212 Oc t. 7. 4:04PM F ax G3 T ES M 0 - 57" P. 2 OK 1213 O c t. 8. 9:23AM 604 596 5101 G3TESM 0- 33" P. 4 OK 1214
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( RX ) F i 1 e D ate Time Sender Mode RX t i rn e Pa ge Resul t Use r Name No.
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FNR-2013-00257 Page 43
'D'le Best Place on Earth
Ministry of Environment
o Environmental Protection Division Kootenay & Okanagan Regions
o Environmental Stewardship Division Okanagan Region
D Water Stewardship Division Okanagan Region
102 Industrial Place, Penticton BC V2A 7C8 Telephone: (250) 490-8200
TO: GtG1ZA-LD 1!11A-/OA- e~q ·
FAX SHEET
Fax: (250) 490-2231
FAX NUMBER _2_S_0_----.;~~\o_O.,..._---g-<6-1-Lf.;....-., __
PAGES TO FOLLOW:,:..... _ 2 ____ DATE SENT: __ O_C_' \=----' _ \ _;2~J,---\_D~ __
FROM: _'~--=--R_\_~~~_S~j~IM_~_rJ---=-()~S-=----________ _
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THIS FACSIMILE IS INTENDED FOR THE USE OF THE INDIVIDUAL(S) TO WHOM IT IS ADDRESSED, ANY DISTRIBUTION, COPYING OR OTHER USE BY ANYONE ELSE IS STRICTLY PROHIBITED, IF YOU RECEIVED THIS FACSIMILE IN ERROR, PLEASE TELEPHONE US IMMEDIATELY AND DESTROY IT. THANK YOu.
L:\Templates\TEMPLATE\MOE Fax Header.doc
FNR-2013-00257 Page 44
P.
* * * Journal ( Oct. 12. 2010 3:55PM) * * * 1) Prov of BC Pent icton 250-4902231 2)
(Ma n u a 1 p r i n t) \ TX ) F i 1 e D ate Time Dest inat ion Mode TX tim ePa g e Result User Name No.
S e p. 30. 3: 14PM 2505543990 G3TESM l' 24 " P. 4 OK 1205 3: 16PM 2504924813 G3TESM 4' 19" P. 5 OK 1206 3:21PM 250 769 9053 G3TSM 4' 02 " P. 5 OK 1207
Oct. 5. 8:09AM 9052129041 G3TESM 0' 19" P. 1 OK 1208 11:42AM 2503569239 G3TESM 0' 46" P. 6 OK 1209
Oc t . 6 . 8:33AM 250 549 1226 G3TESM 0' 36" P. 2 OK 1210 12: 13PM 403 652 2455 G3TESM 0' 33" P. 4 OK 1211
1: 24PM Fax G3TESM 0'37" P. 1 OK 1212 Oc t. 7 . 4:04PM Fax G3TESM 0'57" P. 2 OK 1213 Oc t. 8. 9:23AM 604 596 5101 G3TESM 0' 33" P. 4 OK 1214
11: 21 AM 512509533340 G3TESM 0 ' 37" P. 4 OK 1215 2: 18 PM 12503546332 G3TESM 3' 25 " P. 31 OK 1216
Oct. 12. 2: 13 PM 512504940746 G3TESM 0' 28" P. 3 OK 1219 3: 19PM BLG Vancouver G3TESM 0' 27'" P. 3 OK 1220 3 : 22PM 250 860 9874 G3TESM 0 ' 26 "' P. 3 OK 1221
( RX ) F i 1 e D ate Time Sender Mode RX tim e Page Result Use r Name No.
----------------------------------------------------------------------------------------------------
TX Count 003571 RX Count 000002
# Bat c h C Confi dent ial $ Transfer P SEP Code M Memory L Sen d 1 ate r @ Fo r warding E ECM S Standard D De t ail F Fin e U Sup e r Fin e > Reduction H Sto red / D. Se rve r lI: LAN-Fax + Delive r y Q RX Not ice R e Q. A RX Notice <$> Ma i 1 <H> IP-FAX D F old e r
FNR-2013-00257 Page 45
~'GOlder ~ -Associates
November 9,2010
Received
NOV 1 0 2010
P 102, IngYstrt,,; Place tnt oton, BO V2A 708
Mr. Ken Cunningham, Regional Water Manager Under the Water Act Ministry of Environment Water Stewardship Division 102 Industrial Place Penticton, BC V2A 7C8
Project No. 10-1494-0239
WATER ACT ORDER - ALTERATIONS TO TESTALINDEN LAKE DAM/CONDITIONAL WATER LICENCE 66123
Dear Sir,
This letter confirms that the breach in the Testalinden Lake Dam has been stabilized as per the above order.
The work was carried out by Elkink Ranch on October 26, 2010 and supervised by an on-site Golder Associates
Ltd. technologist. With the exception of one change, the breach was stabilized as per the recommendations presented in Golder's letter dated October 8, 2010. The one change was that the rip rap on the trimmed slopes
was increased to a height of 2.0 m instead of 1.5 m.
The attached figure shows the as-built breach.
We trust the foregoing provides you with the information that you require at this time. Should you require
additional information or have any questions, please do not hesitate to contact the undersigned at your earliest
convenience.
Yours truly,
GOLDER ASSOCIATES LTD.
47/--Gerald Imada, P.Eng. Associate, Senior Geotechnical Engineer
GI/jc
CC: Elkink Ranch, Ace Elkink
Attachments: Figure 1: Site Plan Showing As-Built Breach Remediation
n:\active\201 0\1494 bcio geotechnical\1 0-1494-0239 branch macmaster testalinden dam failure\reports\final drafi\water act order testalinden lake dam nov 9-1 O_docx
Golder Associates Ltd. 220 - 1755 Springfield Road , Kelowna, British Columbia, Canada V1Y 5V5
Tel : +1 (250) 860 8424 Fax: +1 (250) 860 9874 www_golder.com
Golder Assoc iates: Operat ions in Africa, Asia, Austra las ia, Europe, North America and South America
Golder, Golder Associates and the GA globe design are trademarks of Golder Associates Corporation. FNR-2013-00257 Page 46
E 0
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CONSTRUCTED WATER-BARS
Existing Ground Surface
Trimmed side slope
5
EXISTING ROCK BRIDGE
AS-BUILT REMEDIATION LIMITS
EDGE OF LAKE
SITE PLAN (SCALE 1: 500)
Scole In Meters
350 mm Rlprap thickness with non-woven geotextJle separator SECTION A-AI
CONSTRUCTED BREACH REMEDIATION (SCALE 1: 125)
o 2 3 4 5
Scale in Met er s
CREST OF RE-GRADED
) SIDESLOPE
--/ ~
CONSTRUCTED WATER-BARS
PHOTO 2 • LOOKING EAST AFTER INSTALLATION OF ANGULAR SHOTROCK RIPRAP COVER FOR A MINIMUM 350 mm THICKNESS. RIPRAP WAS INCORPORATED INTO THE EXISTING ROCK BRIDGE ROCK LOCATED AT n lE WEST INLET END OF THE THE SPILLWAY.
LEGEND
. pp EXISTING POWER POLE
y.. SURVEYED LAKE WATER LEVEL (97.564m)
.. TEMPORARY FIELD SURVEY BENCHMARK (relative elevation)
AS-BUILT CONSTRUCTION NOTES
1. Breached side slopes 1rtnmed back to about 1.9 horizontal to 1 vertical as shown on Section A-A' and site photo.
2. Bottom of breach re-gradecl to provide an overall grade of 3.9 per cent before placement of rlprap cover material.
3. Non-woven geotextlle (Dewitt, productFF60l12.5360 product placed along base of re-graded breach and extending up along the trimmed side slopes for a distance of at 2.0 m. (See Photo 1).
4. Nominal 350 mm thickness of Oass 10 rlprap material placed over noo-woven geotextlle. (See Photo 2).
5. Riprap material incorporated into the existing rock bridge material. 6. Four water-bars/swales constructed across the existing access
road width at the locations shown.
PHOTO 1 - LOOKIr-lG WEST TOWARDS TESTALINDEN LAKE AFTER INSTALLATION OF A NON-WOVEN GEOTEXTILE BEFORE RIPRAP PLACEMENT. GEOTEXTILE EXTENDS UP THE TRIMMED SIDE SLOPE A DISTANCE OF 2.0 II\.
NOTES
TfTl£
ELKINK RANCH DAM BREACH STABILIZATION
TESTALINDEN LAKE, BC
SITE PLAN SHOWING AS-BUILT BREACH REMEDIATION
. :. -
DESIGN GI 22SE?Tl0 SCALE As Shown REV. 0
CADD RT 1 NOV1 0
CHECK FIGURE: 1 REVIEW
FNR-2013-00257 Page 47
BI{ITISH COLUMBIA
'The Best Place on Earth
January 24,2011 Water Licence File: 800709 Dam File: 76915-20/220 TES
REGISTERED MAIL
Borden Ladner Gervais LLP 1200 Waterfront Centre 200 Burrard Street PO Box 48600 Vancouver BC V7X 1 T2
Attention: Rick Williams
Dear Mr. Williams:
Re: Order to Stabilize Testalinden Lake Dam Breach - Acceptance of Work
I have received a letter dated November 9, 2010 from Gerald Imada, P.Eng. of Golder Associates Ltd. confirming that Testalinden Lake Dam has been stabilized as per my ORDER, issued August 3, 2010 under the WATER ACT, R.S.B.C. 1996, c.483, and the British Columbia Dam Safety Regulation.
I accept that this work satisfies the requirements of the Order to stabilize the breach.
In reference to your letter dated September 3, 2010, advising of Elkink Ranch Ltd.'s proposal to abandon Conditional Water Licence 066123, please note that a response is forthcoming under separate cover.
Sincerely,
Ken Cunn' gham Regional Water Manager under the Water Act Water Stewardship Thompson Okanagan Region
cc: Elkink Ranch Ltd., Attn: Mr. Ace Elkink
Ministry of Natural Resource Operations
Regional Operations Thompson Okanagan Okanagan Shuswap District
Mailing i\ddress: 102 Industrial Place Penticton BC V2A 7C8
Telephone: (250) 49()-82()() Facsimile: (250) 490-22.'11 Website: www.gov.bc.ca/nro
FNR-2013-00257 Page 48
BI{ITISH COLUMBIA
The Best Place on Earth
January 24, 2011 Water Licence File: 800709 Dam File: 76915-20/220 TES
REGISTERED MAIL
Borden Ladner Gervais LLP 1200 Waterfront Centre 200 Burrard Street PO Box 48600 Vancouver, BC V7X 1 T2
Attention: Rick Williams
Dear Mr. Williams:
Re: Proposed Abandonment of Water Licence CWL 066123
I refer to your letter dated September 3, 2010, advising of Elkink Ranch Ltd.'s proposal to abandon Conditional Water Licence ("CWL") 066123 - Testalinden Creek/Lake. In a related letter also sent today, I have accepted the work completed under the Order to stabilize the Testalinden Lake dam breach to prevent further risk and damage during this spring's freshet.
CWL 066123 authorizes a dam and the storage of water on Testalinden Lake. As previously stated, Elkink Ranch Ltd. is the licence holder and the owner of land to which the licence is appurtenant and, as such, is considered to be the "dam owner" for the purposes of the Water Act and the British Columbia Dam Safety Regulation (the "Regulation").
Regarding the proposal to abandon this licence, I direct your attention to section 9 of the Regulation as it relates to the requirements for abandoning or de-commissioning a dam. For ease of reference, section 9 of the Regulation is attached. In addition to the stabilization work carried out to date, the abandonment and de-commissioning of Testalinden Lake dam will involve additional steps to be undertaken by your client under the direction of his qualified professional. These steps should include an assessment of the recently stabilized dam breach to ensure its long term effectiveness and, if not effective, to recommend additional work to be incorporated into the plan for decommissioning of the dam.
Ministry of Natural Resource Operations
Regional Operations Thompson Okanagan Okanagan Shuswap District
Mailing Address: 102 Industrial Place Penticton BC V21\ 7CS
. .. /2
Telephone: (250) 490-S200 Facsimile: (250) 490-2231 Website: www.gov.bc.ca/nro
FNR-2013-00257 Page 49
Page 2 Borden Ladner Gervais LLP January 24, 2011
Therefore, I ask that your client engage his qualified professional to review the situation post freshet 2011. He should then advise me by letter before July 1, 2011 as to how effectively the stabilization functioned during this year's freshet; recommend any further measures; and propose a plan for abandoning and decommissioning the remnants of the dam in accordance with the Regulation.
In addition to the long term functionality of the dam breach, the plan submitted by your client's qualified professional must address re-vegetation of disturbed soils, as well as the safety concerns for public access that are posed by the steep slopes of the remaining portions of the breached dam (such as by cutting back slopes to gentler slope gradients and putting warning signage in place at both ends of the dam).
If your client or his qualified professional requires more information regarding the decommissioning / abandonment process, please contact Michael Noseworthy, Dam Safety Officer for the Okanagan Shuswap District, at (250) 490-2291.
Sincerely,
Ken Cunnin am Regional Water Manager under the Water Act Water Stewardship Thompson Okanagan Region
cc: Elkink Ranch Ltd., Attn: Mr. Ace Elkink
Attachment
FNR-2013-00257 Page 50
Suspension of normal operation or removal of a dam
9 (1) A dam owner must give the comptroller or regional water manager at least 60 days written notice before undertaking any of the following activities:
(a) removing all or a significant part of a dam;
(b) decommissioning or abandoning a dam;
(c) stopping the normal operation of a dam for a period of time longer than one year.
(2) The dam owner must prepare, and submit to a dam safety officer for approval,
(a) a plan respecting an activity under subsection (1) (a) or (b), or
(b) if required by the dam safety officer, a plan respecting an activity under subsection (l ) (c).
(3) The dam owner must, at least 14 days before the date on which the work is expected to commence, notify a dam safety officer before commencing any work under the approved plan.
(4) The dam owner must submit to a dam safety officer, on the completion of the work performed under the approved plan, a report on the work and the manner in which it was performed.
(5) The dam owner must undertake any further actions that the comptroller or regional water manager requires to alleviate any adverse consequences to any person, the infrastructure or works, other property or the environment that may be affected by any work performed on the dam.
(6) An approval under subsection (2) respecting the decommissioning of a dam is subject to the Environmental Assessment Act and to approvals, if any, required under that Act.
FNR-2013-00257 Page 51
03/0.1I2011 FRI 09: 29 FAX 60,1 6,10 <1192 BORDEN LADNER GERVAIS
BLG Borden Ladner Gervais
Borden Ladner Gervais LlP 1200 Waterfront centr~
200 Burr.ard St, P.O. Box 48600 VMcou\ler, Be, Canada V7X 1T2
blg.com
MESSAGE:
T 604.687,5744 F 604.667.1415
Please see attached.
VAiJ01: 2903578' v1 l3-!'F'I'; j Paler.[ &. Trade-mark A9{,'-!1\!;.
DATE: March 4, 2011
PAGES (inClusive): L\ To: Ken Cunningham, Regional Waste Manager
CLIENT NO: 556947
MATTER NO: 000001
under the Water Act F (250) 490·2231
Company Be Ministry of Environment T (250) 490·8200 --------~~----------
From:
F
T
RICK WILLIAMS
(604) 622-5887
(604) 640-4074
Original will ...
Follow by mail.
Follow by courier. VBe held on file.
If you did not rec~jvQ: all the pnges, please call the Wldersigncd operator :U
soon as possible.
Pearl Chin (604) 632-3489
Tr.is f<i1. ;-,;/jirC'(.kd in tMlidenr,e zo1el:;!6 tile pi!r~on rla'TIed ~bo'Js, en·j rn~J nol t;\herv,i,e b~ <j,slr:blJ~A, cop,M 01 (t~cosed. The t,ofltenl& ohl{,. fil:t. ma-f 21:;:0 ba sub;cd 10 ~CI\:,_i!o~·~:eflt plivi~;iJ'~ <tfld fill flghlS 10 In,,\ prr~i:'={la !JR e"pra~s\ da"rred 2no nO\I',ai.-tlo. If;O\I ha~e roc~i~'C1;j Iilh I~'.; in elffit', piea!:.e nutJfy us trr.med,3:~ly by IsI~phonB. ThJl'I1( ~0\J for you( ams.:Jnce. FNR-2013-00257
Page 52
03/0·1/2011 FRI 09: 29 FAX SO·1 S·IO H92 BORDEN LADNER GERVAIS
RICK WILLIAMS T 604.640.4074 F 604.622.5887 [email protected]
File No. 5569471000001
Marcl1 4, 20 II
Border'! Ladnor Gervais LLP 1200 Waterfront Centre 200 Burrard St. P.O. 80<48600 Vancouver, BC, Canada VlX 112 T 60·1.687.5744 F 604.687.1415 blg.com
Deliverl'd by Facsimile (250.490.2231)
Be Ministry of Environment I02lndustrial Place Penticton, BC V2A 7C8
i3LGitQu{~ Boril eh LatineiGervais',
Attention: Ken Cunningham, Regional Water Manager under the Water Act
Dcar Sirs/Mesdames:
Rc: Acceptance of Work and Abandonment of Conditional Licence 066123
As you know, we are counsel for Elkinl Ranch Ltd. ("Elkink Ranch"). We write in response to YOLlT two letters dated January 24, 2011.
You refer to our letter dated September 3, 2010 as advising of our client's proposal to abandon Conditional Water Licence 066123 (the "Conditional Licence"). That is incorrect. Our letter " clearly states that Elkink Ranch rescinded the Conditional Licence. Furthermore, our client !'
~.:,: abandoned the Conditional Licence by completing and delivcring to you a signed Notice of L Abandonment in the prescribed fornl. The legislation and the Notice do not require your officc to ~;
accept the abandonment before it is effective. As such, the Conditional Licence was rescinded r: ;-;-'
and abandoned more than 4 months prior to your letters. ~i
On August 3, 2010, you issued an Order pursuant to the Water Act against our client requiring that certain work be carried out (0 the Testalinden Lake dam (the "Dam"). Given tbe costs and delays associated with an appeal of the Order, we con finned that our client was prepared to carry out the remedial work; however, it would only do so under protest with full preservation of its rights and remedies under statute and under common law, including the right to seek full recovery of alJ costs from the responsible parties. This was confimled in our September 3'" letter, which included the Notice of Abandonment and sought Y0Lll' approval of Gerald Imada of Golder Associates to carry out the work.
- 1 -VAN II J: 2890880: v) 13\''/ysr.> I Palanl & Trude·(T1;).(i< A9~nts: Borden Ladner Gsr'tais LLP i$ an Onlanc Limited Li9.bilily Partne(~hir>
. ,
FNR-2013-00257 Page 53
03/0,1/2011 FRI 09: 29 FAX 60,1 6,10 <l192 BORDEN LADNER GERVAIS
13L.GtOD Borden Ladne, Gervais .
We received a letter dated September 13, 2010 from Mr. Brian Symonds, D1Uty Comptroller of your office (and on your behalf), confirming receipt of our September 3' letter. Your office eonfrrmed that our client would carry out the remedial work stipulated in the Order and that Mr. !mada was a "suitably qualified professional engineer" as required by the Order. Mr. Symonds also stated that the "Notice of Abandonment" would be addressed llilder separale cover. We received nothing further from your oHice regarding the Nolice of Abandonment until receiving your recenllettcrs.
On October 8, 2010, Mr. !mada submitted a letter and attached plan to your offIce for your review and approval, showing the proposed work to stabilize the Dam and comply with the Order.
On October 12, 20 I 0, we received another letter from Mr. Symonds on your behal f, confirming receipt of Mr. Imada'~ lelter and advising that that the "proposed works are satisfactory and authorization is granted to undertake the related work". At no point were we or our client (or Mr. Imada) advi~ed lhal the work was insufficient, lhal it would present any "safely concerns for public access" or that any further work would be required.
On November 9, 2010, Mr. Imada wrotc to you confirming that the work had been completed as per the approved scope with one noted improvement. Mr. Imada enclosed an as-built drawing of the completed work and he confirmed that the Dam had been stabilized and the worIc was perfolmed as required by the Order.
We heard nothing further from your office until receiving your January 24, 2011 lelters. We note lhal in one of your letters, you refer to Mr. lmada's November 9, 2010 letter and contlrm that "this work satisfies the requirements of the Order". You also refer to our client's Notice of Abandonment and that a response is coming under separate cover. We have already dealt with that issue above. However, your other letter now advises that you require our client to carry out nllther work \vith respect to the Dam. With respect, Elkink Ranch has completed all works under the Order with your approval and acceptance. Any further work that is requested after the Conditional Licence has been rescinded and abandoned is not our client's responsibility.
As you are aware, it is our position that Elkinlc Ranch is not liable for the Dam, or the breach which occurred on June 13,2010. We remind yO'll that the earthen Dam was built back in the late 1930' s on Crown lands. The Dam and access road remain on Crown lands and under your control. Neither were constructed, nor ever altered by our client, lhough they have been altered by others.
While our client disputes thal il has, or cvcr had, any responsibility for the Dam, it is preparcd to have Mr. Jmada cany out the post-freshet inspectiol1 requested and report his findings regarding the adequacy ofthe work performed. Our client doe:; so again under protest, with full preservation of its rights and remedies under starute aed at common law, including the right to seek full recovery of all costs from the responsible parties.
·2· VANO \. 28908RO' '\.'3
FNR-2013-00257 Page 54
03/0412011 FRI OS: 30 FAX 604 6·10 US2 BORDEN LADNER GERVAIS
······a· •.. 11.·'.~...100 '--~ ,'VAllCO"UYFR
BCir'den l:adner -Ge(iiafs
We are advised by Mr. Imada thal no traffic (vehicular or foot) should be permitted near the Dam struchlrc and in particular, over and adjacent to the stabilized section. Any such lraf11c risks further damage and adversely impacts the effeotiveness of the stabilization work that was carried out. As the Dam is located on Crown lands, the Province is responsible for ensuring that access is not permitted and that appropriate signage is erected. We will write to you further after Mr. Imada has mude his inspection and provided his report.
Yours truly,
Z-;-Ih-'am-s--~-----RLW:wd
cc: Elkink Ranch Ltd.
- 3 -VANDI: 2890880: '13
FNR-2013-00257 Page 55
06/17/2011 FRI 15:31 FAX 60~ 640 ~192 BORDEN LADNER GERVAIS
L3LG Borden Ladner Gervais
Borden Ladner Gervais LLF 1200 Waterfront Centre
200 Burrard St, P.O. Box 48600 Vancouver. BC. Canada V7X 1T2
bIg. com
MESSAGE:
T 604.687.5744 F 604.687.1415
Please see attached.
VANQ1: 2903578: v1
DATE: June 17, 2011
PAGES (inclusive):
To: Ken Cunningham, Regional Waste Manager
CLIENT NO: 556947
MATTER NO: 000001
under the Water Act F (250) 490·2231 Company: Be Ministry of Environment T (250) 490-8200
From:
F T
RICK WILLIAMS
(604) 622-5887
(604) 640-4074
Original will ... Follow by mail. Follow by courier.
Be held on file.
1f you did not receive all the pages, please cflll the undersigncd opcrlltor liS
soon as possible.
Pellr) Chin (604) 632-3489
Lawyers I Palent & Tradc·m~r~ Agenls Sorden Ladner Gervei. LLF i8 en Onlario Limiled Liability p~(IIlI.',ship
Thi. ia:t. i5 d:recled in confidence ;olely !O the person narr,ed ~bove. end may nol olhe!wi6e be dl.lribuled. copied or dl~cIO!:ed, Tne contenTS of this 13>' may al.o be subje:IID ~olJcilol-cll~nt privilege and a'i rights 101M! prlvllege 3re expressly cl3imed and not weiva,j. If you ha,e recei'eo this fax in errOr, plea .. e nalily U~ Immediately by Ielephone. Thank you fe·r your ~ssisl~nr,c. FNR-2013-00257
Page 56
06/17/2011 FRI 15:31 FAX 604 640 4192 BORDEN LADNER GERVAIS
RICK WILLIAMS T (604) 640-4074 F (604) 622-5887 [email protected]
File No. 556947/000001
June 17,2011
Borden Ladner G&rvals LLP 1200 Waterfront Centre 200 Burrard St. P.O. Box 48600 Vancouver, BC, Canada VTX 1T2 T 604.687.5744 F 604.687.1415 blg.com
Delivered by Facsimile (250.490.2231)
Be Ministry of Environment 102 Industrial Place Penticton, Be V2A 7C8
Attention: Ken Cunningham, Regional Water Manager under the Water Act
Dear Sir:
Re: Acceptance of Work and Abandonment of Conditional Licence 066123
We refer to your January 24, 2001 letter and our March 4,2011 response. You had requested that :Mr. Imada review the effectiveness of the stabilization work, post freshet, and report his findings to you before July 1, 2011. Mr. !mada has been unable to access the area to date due to the heavy snowpack and late spring melt. He expects that he should be able to get up there: in the next couple of weeks and report his findings by August 1, 2011. Should you or any others in the Ministry have further questions or concerns in this regard, please contact our office and not Mr. hllada directly.
We remind you that Mr. Irnada has advised that no traffic (vehicular or foot) should be pennitted near the dam and in particular, over and adjacent to the stabilized section. Any access could result in further damage and/or adversely impact the effectiveness of the stabilization work. The Province, as owner of these lands, is responsible for ensuring that access is not pcnnitted.
Yours truly, "-----:::::::>'
RLW:pc
cc Elkin.k Ranch Ltd.
VANOI: 29417J4: vi
~I'S I Palent 8. TI1lda-merk Agents Borden Uldrer Gervais UP is an Onlario UMlied Uat:ilily Pannership
FNR-2013-00257 Page 57
July 8, 2011
BORDEN LADNER GERVAIS LLP 1200 WATERFRONT CENTRE 200 BURRARD STREET PO BOX 48600 VANCOUVER BC V7X 1 T2
Attention: Rick Williams
Dear Mr. Williams:
BRITISH COLUMBIA
Water Licence File: 800709 Dam File: 76915-20/220 TES' t
REGISTERED MAIL
Re: Extension of time for Review of Effectiveness of Stabilization Work
I refer fo your letter dated June 17,2011, indicating th~t{your client's consultant, Mr. Imada, P.Eng., needs additional time to review the effectiveness of the Testalindefl Dam stabilization work done post freshet. As requested, I am responding to you directly instead of Mr. Imada. A submission date of August 1, 2011 for the report, as requested, is acceptable.
As a general point, Mr. Imada should turn his mind to the work required to fully de-commission the dam.
~ . Mr. Imada has apparently indicated that no traffic (vehicular or foot) should be permitted near the dam and, in particular, over and adjacent to the stabilized section. I must point out that this reservoir is within the boundaries of the South Okanagan Grasslands Protected Area and is subject to recreational hiking. There are also two range tenures in the area. Cattle will be grazing throughout the area. In addition, although vehicle traffic in this area is prohibited, enforcing this prohibition has proven difficult over time. The final de-commission plan must contemplate these types of uses. '.
If your client, or his qualified professional, require additional information regarding the decommissioning/abandonment process, please contact Michael Noseworthy, Dam Safety Officer for the Okanagan Shuswap District, at (250) 490-2291.
Sincerely,
Ken Cunningh Regional Water Manager under the Water Act
KC/mn
cc: Elkink Ranch Ltd., Attn: Mr. Ace Elkink
Ministry of Forests, Lands and Natural Resource Operations
. Okanagan Shuswap District 102 Industrial Place Penticton, BG V2A 7G8
Telephone: (250) 490-8200 Facsimile: (250) 490-2231
FNR-2013-00257 Page 58
RICK WILLIAMS T (604) 640·4074 F (604) 622·5887 [email protected]
File No. 556947/000001
Borden Ladner Gervais llP 1200 \'/a tcrlron! Centre 200 Burrard St, P.O. Box 48600 Vancouver. BG. Canada V7X 1T2 T 604.687.5744 F 604.687. 1415 blg.com
(
aLG inn VANCO U V E R
Borden Ladner Gervais
Received July 13 , 2011
JUL 1 4 2011 Delivered by Courier
BC Ministry of Environment 102 Industrial Place Penticton, BC V2A 7C8
lOll Inaystrlal Plaae Pentlcton, 90 V2A 7Ca
Attcntion: Ken Cunningham, Regional 'Yater Manager under the Water Act
Dear Sir:
Re: Acccptance of 'York and Abandonment of Conditional Licence 066123 Water Licence File: 800709 Dam File: 76915-20/220 TES
We refer to our letters dated March 4 and June 17,2011. Mr. Imada completcd hi s review of the effectiveness of the stabilization work on July 4, 20 11. We enclose a report from Mr. [mada which confirms that there has been no post freshet changes to the dam stabili zat ion work undertaken last year, the stabili zed breach is effecti ve and it should continue to aCL as a permanent structure.
Yours truly,
Rick Williams
RLW:pc Enclosure
,
cc Elkink Ranch Ltd.
Golder Associates Ltd . Attn. Gerald Imada
VANOI : 2949379: vi
lawyers I Patent & Trade-mark Agents Borden Ladner Gervais Ll P is an Ontario limited liabili ty ParlnelShip
FNR-2013-00257 Page 59
CIIGOlde~ ~ Associates
July 8,2011
Mr. Ken Cunningham, Regional Water Manager Under the Water Act Ministry of Environment Water Stewardship Division 102 Industrial Place Penticton, BC V2A 7C8
Project No. 1014940239-001-L-Rev1
WATER ACT ORDER - ALTERATIONS TO TESTALINDEN L.AKE DAM, WATER LICENCE 66123, POST FRESHET INSPECTION OF THE DAM BREACH STABILIZATION WORKS
Dear Sir,
As requested, on July 4, 2011, the undersigned conducted a post freshet inspection of the dam breach stabilization works which were completed on October 26, 2010. The purpose of the inspection was to determine whether there had been any changes to the stabilization works over the 2011 Spring freshet.
Based on the undersigned's visual observations there were no visible changes to the stabilized breach. With the absence of any outside interference, the stabilized breach should continue to act as a permanent structure. However, it should be noted that it was observed that unknown persons have been placing rocks in front of the
stabilized breach to provide vehicle access to the north side of the dam (see attached photographs).
Yours very truly,
GOLDER ASSOCIATES LTD.
, 7/ Ge~ Imada, P.Eng. Principal, Senior Geotechnical Engineer
GI/cfh
Attachments: Site Photographs
n:\active\201 0\ 1494 bcio geotechnical\1 0-1494-0239 branch macmaster testalinden dam failure\reports\jlna l wp\1 014940239-001 -I-rev1-post freshet inspection-08jul_11 .docx
Golder Associates Ltd.
Tel : Fax: www.golder.com
Golder Associates: Operations in Africa, Asia, Australasia, Europe, North America and South America
Golder, Golder Associates and the GA globe design are trademarks of Golder Associates Corporation. FNR-2013-00257 Page 60
N:\Active\20 1 0\ 1494 BCIO Geotechnical\ 10-1494-0239 Branch MacMaster Testalinden Dam Failure\Drafting\CAD\ Drawing file: 1014940239_ 4000_PHOTOS.dwg Jul 08, 2011 - 9 :09am
PROJECT
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TESTALINDEN DAM BREACH OLIVER, B.C.
SITE PHOTOGRAPHS
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DESIGN GTl 06JU111 SCALE AS SHOWN REV. 0
CADD SWD 07JU111
- AssoCiates CHECK Gll 07JULll PLATE: 1 Kelowno. Be REVIEW Gll 07JULI I
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FNR-2013-00257 Page 61
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VIEW LOOKING NORTH ALONG ACCESS ROAD (FENCING AND ROAD BARRIER RELOCATED BY UNKNOWN PERSONS. THE FENCING AND ROAD BARRIER WERE PRESENT DURING AUGUST 18, 2010 SITE INSPECTION
VIEW OF UPSTREAM SIDE OF DAM BREACH REPAIR
PROJECT
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FNR-2013-00257 Page 63
September 27,2012
REGISTERED MAIL
Borden Ladner Gervais LLP 1200 Waterfront Centre 200 Burrard Street PO Box 48600 Vancouver BC V7X 1 T2
Attention: Rick Williams
Dear Mr. Williams:
BRITISH COLUMBI1\
Water Licence File: 8000709 Dam File: 76915-20/220 TES
Re: Acceptance of Works as Permanent Decomlmissioning of Testalinden Dam
We refer to your letter dated July 13,2011, Re: Acceptance of Work and Abandonment of Conditional Licence 066123, Water Licence File: 800709, Dam File: 76915-20/220 TES, and the attached letter report provided by Gerald Imada, P. Eng. , of Golder Associates dated July 8, 2011 RE: Water Act Order -- Alterations to Testalinden Lake Dam, water Licence 66123, Post Freshet Inspection of the Dam Breach Stabilization Works.
In his letter report Mr. Imada has advised that the "stabilized breach should continue to act as a permanent structure". We infer from this that the stabilized breach constitutes a permanently decommissioned dam and that no additional works are required. As such, we accept the works to date sufficient to consider the dam permanently decommissioned.
Sincerely,
Ken Cunningham Regional Water Manager under the Water Act
KClmn
Ministry of Forests, Lands and Natural Resource Operations
Okanagan Shuswap District 102 Industrial Place Penticton , Be V2A 7Ga
Telephone: (250) 490-8200 Facsimile: (250) 490-2231
FNR-2013-00257 Page 64
~~--~--~~---------------~----------.
Ministry of Forests, Lands and BRITISH
COLUMBIA Natural Resource Operations
File: 8000709
April 25, 2013
.Borden Ladner Gervais LLP 1200 Waterfront Centre 200 Burrard Street PO Box 48600 Vancouver BC V7X 1T2
Attention: Rick Williams
Dear Mr. Williams:
Re: Abandonment of Water Licence C066123
As per Notice of Abandonment for Water Licence C066123, we have updated our records to reflect Water Licence C066123 abandoned as of September 3,2010.
Monies paid may be refunded, in whole or in part, as determined by the Comptroller of Water Rights. The refund may be credited towards rentals, fees, or charges under the Water Act or applied to any outstanding debts to the Province in accordance with the Financial Administration Act.
Golder Associates' letter of July 8, 2011 concluded the stabilized breach should continue to act as a permanent structure, however, the work undertaken to permanently decommission the dam only comprises a partial removal of the works. Regardless of the abandonment of the rights held under this licence, the owner ofthe property or undertaking to which the licence was appurtenant is not relieved of liability for damage resulting from any remaining works.
If you have any questions or comments, please contact this office.
Sincerely,
KenCunnin Resource Manager
KClbjm
Ministry afForests, Lands and Okanagan Shuswap Natural Resource District Natural Resource Operations
Mailing Address: . 102 Industrial Place Penticton Be V2A 7C8
Tel' (250) 490-8200 Fa."'(; (250) 490-2231
Website: www.gov.bc.ca/for/dos/
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