Province ofBritish Columbia

Ministry ofEnvironment

ENVIRONMENTAL APPEAL BOARDVictoriaBritish ColumbiaV8V 1X5

APPEALNO. 82-23 WAT.

JUDGEMENT

Reasons for decision of the Panel pursuant to Section 38 of the WaterAct and Section 11 of the Environment ManagementAct.

APPELLANI'

Mrs. Doreen Mary Ensign of Westbank, B.C., represented by Hr. .rosephT. Hattori, Solicitor of Kelawna, B.C.

1.0 GENEP-AL

1.1 The hearing of the appeal by a Panel of the Environmental AppealBoard was held in Capri Hotel, Kelowna, B.C. on September 8, 1982.

The Panel members were:

Mr. Valter RaudseppMrs. Dianne KerrMr. H.D.C. Hunter

Chairman- Member- Member

The stenographer taking proceedings before the Panel was Brs. Y.a.thleenMcKayof PRS Professional Reporting Services Ltd.

1. 2 The appal.Lan+Mrs. Doreen Ensign was present, represented by her sol.i.ci.tCJ;Mr. Hattori. Mr. Russell Ensign also gave evidence.

1.3 The Comptroller of Water Rights was represented by the followingpersons:

Mr. Paul Jannan, Solicitor, Ministry of Attorney GeneralMr. J .E. Farrell, Deputy Comptroller of Water Rights

~inistry of Environmentt-tr. D.B. Lovdahl, Regional Manager

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Mr. J.A. Botham, Senior TechnicianMr. A. AllportMr. G.W.Robinson, whodid not give evidence.

1.4 Twopersons whose rights would be affected by the appeal were presentand gave evidence;

Mr. Jack PaynterMr. George Yeulett

1.5 Exhibits filed by the parties during the hearing are as follows:

No. 1 - BoOkof 23 sheets of aJpies of dOCUIre!1ts,filed by theappellant.

No. 2 - A letter signed by T. Smithwick, December31, 1974.

No. 3 - A copy of Affidavit by Ibreen Ensign, March4, 1974.

No. 4 - A book of 25 tagged copies of documents.

No. 5 - A brief prepared by Paynters Orchard MeadowsLtd. .and G.R. Yeulett.

No. 6 - Plan showingMcDougallCreek licensing, Ministry ofEnvironment.

Exhibits Nos. 2,3,4 and 6 were presented by the Comptroller of WaterRights.

2.0 APPEAL

2.1 The appeal was against the order of Mr. J.E. Farrell, DeputyComptroller of Water Rights, herein called the Carrptroller, madeon May17, 1982, in a letter to Mr. J.T. Hattori, Solicitor. The order readsas follows:

"Being satisfied that the joint use of works would conservewater, and in accordance with Section 31 of the Water Act,

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it is hereby ordered that the rights to use water granted underConditional Water Licence 18812 and Final Water Licence 21619shall be exercised by the joint use of works authorized underConditional Water Licence 54365."

2.2 The grounds of appeal given in the Notice of Appeal dated June 16,1982, by Mr. J.T. Hattori, are as follows:

"1. The order has the effect of cancelling the water licencesof the appellant;

2. The decision counsels a breach of an easement agreementbetween the appellant and Arthur Ferdinand Johnson and PayntersOrchard MeadowsLtd."

"ANDFURI'HERTAKENarlCE that the appellant seeks an order that theorder of the Deputy Cbmptroller appealed from be rescinded andthe lands restored to its original use, or alternatively, thatthe order of the Deputy Comptroller be made subject to theprovision by Paynters OrchardX~adCMsLtd. of water to theextent provided by Conditional Water Licence 18812 and FinalWater Licence 21619 to the appellant."

During the hearing the appellant raised additional grounds of appealwhich are discussed in Section 4.

3.0 WATERUSEANDCONVEYANCEW)RKSFR.a1McDOUGALLCREEK

3.1 The order of the Comptroller fram which the appeal was taken dealswith the use of water frcm HcDougall Creek which is a small strearndischarging into Okanagan Lake near Westbank, B.C. A sketch, attachedhereto, depicts a section of McDougall Creek, land subdivisions and landowners, and the water licences referred to in Order of the Comptrollerand in the appeal. This sketch is similar to a plan in Exhibit No. 4.It was used during the hearing to clarify some of the evidence.

3.2 The appellant awns District Lot 2684, except Lot 1, Plan 19617 andParcel A, Plan 3930. She and Mr. Russell Ensign have occupied the land

since 1967 or 1969, first renting and thei1purchasing in -1943 fzxm Mr. Taylor .

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Three water licences are appurtenant to the appellant's land, namely:

i) Final Water Licence 21619, for irrigation, priority dateOctober 6, 1945, point of diversion at pP on McDougallCreek.

ii) Conditional Water Licence 18812, for irrigation, priority dateJune 14, 1948, point of diversion at the outlet of "23 AcreMeadows"water storage facility, from which the released waterwill be directed to HcDougall Creek at its headwaters andredi verted from McDougallCreek for use at point of diversionPp.

iii) Conditional Water Licence 54365, for irrigation, priority dateJanuary 24, 1907, point of diversion at J on McDougallCreek.Point J8 is approximately 1.2 kmdownstream from pP and lowerin elevation.

3.3 The water authorized to be diverted under the two licences from pointpP was conveyed to the appellant's property by a ditch and flume systemwhich was in existence when the appellant first occupied her land. Accordingto the evidence, this ditch and flume system conveyed water also to landsirnrrediately downstream from the appellant; namely, to District Lot 2602,except Lots 1,2,3,4,5, Plan 23091, awned by Paynters Orchard MeadowsLtd.,and to Lots 2 and 4, District Lot 2602, Plan 23091, presently ownedbyGeorge.and Ruth Yeulett, previous owner, Arthur Ferdinand Johnson.

The water licences held by Paynter and Yeulett and by the appellantauthorized diversion from McDougallCreek at point pP and the constructionof the flume and ditch for conveyance of water to their points of use.Sorreof the water licences held by Paynter and Yeulett from point pP havean earlier priority date than the licences held by the appellant. Inaddition to the-water licences already mentioned, there are several othersboth upstream and dcwnstrreamfrom the appellant's licences.

3.4 At point pP there exists a concrete diversion damby which same ofthe water in McDougallCreek can be di.verted to the conveyance system whichconsisted of sections of metal and wood flume supported by trestles, andsections of ditch excavated into earth or shale talus slope. The upperend of the ditch and flt:nne system crosses two parcels of private land, oneownedby Mr. Lobb and the other by Mr. Causton. Imnediatel y downstream

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and before entering the appellant's land, the system crosses CrCMIlland.A permit to allow a right-of-way over Crownland has reen issued underthe WaterAct in connection with the water licences.

3.5 The appellant filed at the hearing a copyof a registered easementagreement, dated August15, 1974, betweenthe appellant, DoreenHaryEnsign, as Grantor, and Arthur Ferdinand Johnson, (previous cwnerof theland nowownedby G. and R. Yeulett), and Paynters OrchardMeadowsLtd.,as Grantees. In it, the appellant gives the Grantees and their sucessorsin title, full right and liberty for the purpose of the construction of aditch and flurre for the carriage and delivery of water in, under and uponthose portions of the appellant's land shownoutlined in red on a planof easementdeposited in the LandRegistry Office at Kamloopsunder :No.10745, and to participate in the keeping and maintaining of sameat alltimes in goodcondition and repair, and of renewingor replacing the samein whole or in party fran time to time, and for every such purpose theGrantees, their successors and assigns, shall have access to the saidlands at all times by themor their agents, servants, employeesandworkmen. The agreementcontains certain other additional conditions,such as canpensation for darrage,which do not appear to be relevant tothe issues involved in this appeal. It is understood that this easementagreementwas the result of right-of-way expropriation by the Granteesunder Section 24 of the Water Act.

Theplan of easementmentionedin the agreementwas not presentedat the hearing. However,the Panel relieves that the easementreferredto is that on which the ditch and flume system frompoint pP was situated.

3.6 The appellant also filed during the hearing a copyof another agreementretween the Federal Minister of Citizenship and Immigrationas the Grantorof the first part, and Arthur F. Johnsonand Harry Paynter, as the secondpart, dated August 21, 1952. It was stated at the hearing that thisagreementhas not been registered in the LandRegistry Office. Theagreementrefers to an intention by the Federal Departmentto obtain awater licence fromMcDougallCreek for irrigation of WestbankIndianReserve lands which are situated downstreamof the lands so far discussed.

TheMinister agrees in that agreementto construct the water intakeand conveyanceworks fromMcDougallCreek at no cost to Hessrs. Johnson

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and Paynter and to allow the latter to use the works for taking waterauthorized under their existing licences at no cost to Messrs. Johnsonand Paynter.

Messrs. Johnson and Paynter agree to provide a right-of-way throughDistrict Lot 2602 at no cost to the Minister. It should be noted thatDistrict Lot 2602 is rrostly ownednowby Paynters Orchard Meado.vsLtd.and by G. and R. Yeulett, as described in Section 3.3.

M=ssrs. Johnson and Paynter further agree that they will maintainand keep in repair without cost and to the satisfaction of the Minister,the constructed ditch, f lumes and other works from and including theintake at the point of diversion from McDougallCreek, as described inthe licence to be obtained, to the western boundary of Lot 2602.

The agreerrent contains, arrong other provisions, a paragraph sayingthat the Minister agrees that the agreement, copy attached thereto,dated December12, 1945, between Messrs. Johnson and Paynter and E.J.and G.E. Taylor, shall remain in force according to the tenus andconditions as set out therein, as agreed by E.J. and G.E. Taylor in theirletter dated July 26, 1952, attached.

The last mentioned agreerrent dated December12, 1945, and a letterdated July 26, 1952, involving E.J. and G.E. Taylor, were not attachedto the copy of agreerrent filed with the Panel at the hearing of theappeal. Therefore, their contents are unkncwn,

3.7 It was established by the evidence at the hearing that the agreement,referred to in Section 3.6, refers to the ditch and flume system and theintake structure by which water was diverted from McDougallCreek atpoint pP, and from which conveyance works the appellant was taking waterauthorized under her two water licences. Similarly, the downstreamwaterusers also took water from that system which was constructed by theFederal Department for the irrigation of Indian Lands. There was noevidence indicating that the appellant ownedor was a part-owner of thediversion structure and ditch and flurre system from point Pp. I t wascwnedby the Westbank Indian Band. There mayhave been split o.vnershipagreerrents with other parties.

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3.8 There was sufficient evidence subrnitted by the Corrptroller and 1'1r.J.Paynter that the ditch and flurre system frompoint of diversion pPsuffered substantial losses of water diverted into it fromMcDougallCreek. The losses measuredin the section of the ditch and flurre on

the appellant's property indicated losses 16 to 18%and higher of thetotal diversion. The system, both ditch and flume sections, lost waterby seepage and leakage into the ground. The appellant has also statedin an affidavit, svorn in 1974, that excessive leakage from the"ditchingresulted in waste of water and damageto the land through flooding.

3.9 TheCanptroller subrnitted evidence that McDougallCreek is a par-ticularly watershort source of water supply during periods of low flow.This has forced the officials of the Comptroller to cut off or restrictjunior water licences during periods of low flow under Section 37 ofthe ~vaterAct, including licensees using water for domestic use, or byappointing a water bailiff under Section 33 of the WaterAct to regulatethe use of water.

3.10 Accordingto the evidence submitted by the Comptroller;and jointly byJ. Paynter and G. Yeulett, the water licensees irrunediately dc:wnStrearnfromthe appellant's property started in 1972to replace the ditch andflurre systemon their land by installation of pipes in order to reducewater losses. In 1970they applied to the Comptroller for changeofworksunder their licences to replace a section of ditch and flumeonthe appellant's property, fromthe north boundaryof District IDt2602 to apoint approximatelyin the middle of District Lot; 2684, wherethe appellantteak her water fromthe ditch and flurre system. TheCorrptroller approvedthis changeof worksunder Section 15 of the WaterAct in June, 1978.This was called Phase I of the pipe system.

3.11 In January, 1979, Mr. G. Paynter invited all licensees on McDougallCreekto discuss a newwater supply system fromMcDougallCreek. The appellantwas included but was not interested. The technical studies doneby theProvincial Governmentlater in 1979still included the appellant's waterdemands. There was an unsuccessful effort to receive qoverrment; fundsfor the newsystem.

3.12 The construction of the newworksauthorized.by the Comptroller inJuly, 1978, mentionedin Section 3.10, commencedin July 1980, and theclean-up of construction was corrpleted in April, 1981.

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3.13 In February, 1981, the Paynters, Yeuletts,and ShannonLake Estates Ltd.,applied to the Comptroller to replace the remaining ditch and flune ..that is upstream from Phase I (see Section 3.10 and 3.12) by a pipelineup to the diversion structure at point Pp. This change of works wascalled Phase 11. The appellant and her solicitor attended a meeting in theMinistry of Environment office in Kelawna, held in February, 1981, todiscuss the proposed pipeline to replace the remaining section of ditchand flunes system. The size of the pipeline was proposed to be between10 to 12 inches depending on whether the appellant wished to be included.The appellant made it clear that she did not wish to be included.

3.14 The Comptroller approved this Phase II of change of works on January 25,1982 under Section 15 of the Water Act. Apparently, no appeal was takenunder Section 38 of the Water Act fram that decision of the Comptroller.

The contruction commencedon April 30, 1982 and after expropriationof an easerrent at the upstream end, the VvDrkwas completed in May, 1982.

3.15 According to the evidence, the new pipeline from point pP onMclxmgall Creek is constructed on the appellant's land, on the easerrentreferred to in the agreement mentioned in Section 3.5, between tileappellant and Paynters and Johnson (nowYeulett). The old ditch andflune system no longer exists. The Westbank Indians had approved theremoval of flunes and received salvaged flume materials.

The size and carrying capacity of the new pipeline was determinedby the parties whopaid for the project based on their existing waterrights and additional water rights which they had applied for in antici-pation that the pipeline will substantially reduce previous conveyancelosses, thus making available water for a.dclitiona.l licensing. Evidence wassubmitted at the hearing that the Comptroller has recently decided togrant newwater licences to these land owners.

3.16 According to the evidence submitted by the Comptroller and Mr. Paynter,the new pipeline from point pP on McDougallCreek has no excess capacityto convey water to the appellant's land. The Comptroller advised theappellant that in the circumstances existing after the installation ofthe new pipeline, the appellant should give consideration to installationof her awnpipeline from point pP, and to apply for a change of works

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under her two licences accordingly. The appellant did not accept thatsuggestion. Alternatively, the Comptroller indicated to the appellantthat an order will be issued under Section 31 of the Water Act that thetwo licences with point of diversion at pP shall be exercised jointlywith her Conditional Water Licence 54365, authorizing the diversion ofwater by pumping at point J8.

3.17 According to the evidence, the appellant did not accept thesuggestion made by the Comptroller. The Comptroller then issued a letterto the appellant, dated May 17, 1982, advising her of his decision toissue an order from which the present appeal has been taken. See Section2.

The Comptroller added in his letter that the water licences involvedwill be amended accordingly and that, if at any time the appellantdecides to install her own pipeline from point pP, the Comptroller willgive consideration to an application for change of works to authorizesuch a pipeline.

4.0 GROUNDS OF APPEAL (See also Section 2)

4.1 In determining the merits of the appeal, the first question iswhether the Comptroller had authority to issue the order for joint useof works.

Section 31 of the Water Act provides as follows:

"31. Wheres atisfied that a joint use of works would conservewater or avoid duplication of works, the Comptroller mayorder joint use and fix its terms."

Also relevant are Section 15, authorizing the Comptroller to amenda water licence, and Sections 35 and 38, under which the Comptroller or anEngineer may determine, among other things, what constitutes beneficial

use of water and allowances of water to offset evaporation and seepage.

The next question is whether there were other reasons the Comptrollershould have considered before issuing the order.

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4.2 As discussed in Sections 3.8 and 3.9, the Comptroller had goodreasons for approving the changeof works froman open to a closed system.For him it was important that the installation of the pipeline resultedin significant conservation of water in the water-short McDougallCreek.The old ditch and fl1..1I1Esystemwas then no longer in existence. Theappellant did not respond to the Comptroller's suggestion to install aseparate pipeline frompoint PP. In the circumstances the Comptrollerissued the order framwhich the appeal was made.

4.3 The appellant has advancedseveral groundsof appeal in the Noticeof Appeal,(see Section 2.2), and in addition has put forward others duringthe hearing purporting to indicate that the order should be rescinded.These grounds are reviewedbelow.

4.3.1 The appellant states that the order issued by the Comptroller hasthe effect of cancelling the water licences held by the appellant frompoint pP, or at least changingthe priori ties of these two licences. Theevidence showsthat the appellant received water under her two licencesfram point pP on McDougallCreekby gravity via a diversionstructureJand ditch and fl1..1I1Esystems, which she did not cwnand did not maintain,thus at little or no cost to her. Underthe joint worksorder, theappellant is forced to install a newpumpingplant and pipeline at pointJB, the cost of whichshe claims to be very high. Asmentionedin Section3.2, point of diversion J8 is substantially lower in elevation than Pp.The appellant stated that the existing pumpat J8, installed underConditional WaterLicence 54365, is not capable of lifting water by some350 feet, whichwouldbe required in order to sprinkle-irrigate same36acres of land upstream from the old ditch and flume, which lands arepresently not irrigated. The cost of the newpumpingand piping installation,in the opinion of the appellant, is prohibiti ve. Therefore, the appellantargues, the Comptroller's order has the effect of cancelling these twowater licences previously authorizing diversion at point Pp.

There is no doubt that the appellant has lost the opportunity toreceive gravity water at lowor no cost to her from the old ditch andflume system. This was the result of the Comptroller's approval forreplacement of ditch and flumeby pipeline in order to conserve water.Whetheror not the newpumpand pipe system fromJ8 involves prohibiti vecosts was not sufficiently determined. Mr. Ensign gave SOIre guesses ofthe cost.

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There was no evidence of reliable cost estimate.

It is quite possible that the appellant would have faced substantiallyless capital and annual operating cost if she had agreed to participatein the installation of the new pipeline from point pP or if she hadapplied for the construction of her Otm pipeline from Pp. In both ofthese alternatives, which she decided not to oonsider, she would havecontinued to receive water by gravity. As mentioned in Section 3.16, theComptroller is still prepared to oonsider an application from the appellantfor the construction of such pipeline.

The Panel concludes that the appellant's rights to use water fromMcDougall Creek have not been cancelled. SimilarlYithe priority dates ofthese licences have not been changed. If there are stream losses fEomMcOougall Creek between points pP and J~ and the flow of water at J isinsufficient to allow to divert water authorized by the licences held bythe appellant, the regulatory pcwers of the officials under Section 37 ofthe Water Act will allow them to give full consideration to the priorities ofall licences affected by shortage of supply.

The order of the Corrptroller was made as the result of the constructionof the new pipeline in order to conserve wat.er,, Appellant' a, own decision notto participate in this improvement was the deciding factor in the decision ofthe Canptroller.

The Panel is satisfied that the Comptroller had ample reasons toapprove the replacement of the old ditch and flume system by a pipeline.

4.3.2 The appellant has stated that the order of the Comptroller counselsa breach of an easement agreement between the appellant and A.F. Johnson,now G. & R. Yeulett, and Paynters Orchard Meadcws Ltd. This agreementwas discussed in Section 3.5.

The appellant is of the opinion that when she acquired the land shepresently owns, she "inherited" the ditch and flume system that existedon the lan~and that the Grantees of the agreement were obligated to keepthe ditch and flume systrm in operation, thus guaranteeing the conveyanceof the appellant's water from McDougallCreek to her land.

The Panel finds that this view is not supported by the evidence.The agreement gives the Grantees (Paynter and Yeulett), the right to enter the

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easement;on the appellant's land and the right to maintain the system.HOVJever,the agreement does not obligate them to do so.

The other agreement, discussed in Section 3.6 , apparently un-registered, between the Federal Governmentand the owners of DistrictLot 2602, appears to grant the owners of D.L. 2602 the right to usethe ditch and flume system;which was constructed by the Federal agencyfor the irrigation of Westbank Indian lands. The Panel can find noevidence that the appellant had acquired right to take water from thesystem or had any legal interest in this agreement.

Evidence at the hearing indicated that the 'Hestbank Indian Band agreedwith the dismantling of the system when it was replaced by a pipeline j

and it received salvaged flume material. Thus,the Panel cannot findevidence to support the claim by the appellant. However, should theappellant have legal grounds for expecting delivery of water from theworks nONoperated by Paynters Orchard MeadowsLtd., this would be aquestion between her and the other party. The Canptroller correctlypointed out that he was not a party to the ditch and flume easementagreerrent. Section 24 of the Water Act; and Division 4 of the Regulationsissued under the Water Act,provide authority to a licensee to expropriateprivate land reasonably required for the construction, maintenance andoperation of works authorized under his licence. The Comptroller is notnecessarily aware of a private land easement and its conditions. Theappellant's complaint at the hearing that the Comptroller should not takesteps that may give grounds for litigation between licensees isjin Lhiscase inot justified by the evidence.

4.3.3 The appellant, in the grounds of appeal, seeks an order that theComptroller's order be rescinded and the land restored to its original use.Apparently, this refers to the Comptroller's approval of the applicationfor change of works to replace the ditch and flume system by a pipeline.As discussed in Sections 3.13 and 3.14, this approval was given inJanuary 1982. No appeal was taken from that decision. The Panel has nowno authority to review or change that decision.

In addition, the evidence has shownthat the replacement of ditchand flume system by pipeline was a necessary decision to eliminateexcessive water losses. Installation of another ditch or flume system

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from a water-short source would again very likely create an unreasonablewater loss situation.

4.3.4 The appellant stated at the hearing that the ditch and flume system,particularly the ditch sections carrying flowing water, was a factorenhancing the value of her land, which enhancement has now been lost,thus injuriously affecting the appellant.

The Panel finds that the appellant does not hold a water licencefor land improvement purpose. Further, the evidence sul:mitted by theComptroller casts doubt that an incidental enhancement from the ditchdid exist. The evidence contained statements made by the appellant in1974 that the ditch and flume system could be a hazard to animals andthat seepage fran it cause:ldarnageto her lands. Thus, this ground ofappeal is not substantiated.

4.3.5 Finally, the appellant complained that the Comptroller, instead ofissuing the order from which this appeal was taken, should have consideredother alternatives, such as: i) an economic and technical feasibilitystudy of improving the ditch and flume system to keep water losses at atolerable level, and Li.)ordering the owners of the new pipeline to conveywater to the appellant's land under a joint use order.

There was evidence that some engineering studies were made inconnection with the proposed pipeline. It appears to be reasonable tobelieve that the }X)ssibility of improving the ditch and flume system tomake it a viable alternative for operation and maintenance did not exist.Further, the Comptroller took a reasonable stand that the design andconstruction of works by a licensee from a cost point-of-view is primarilya matter for the licensee to consider. The proposed pipe would definitelyeliminate the excessive water loss problem which was an important factorfor the Comptroller.

After the approval of the pipeline, the appellant would be the onlyuser of the ditch and flume system. Evidence submitted at the hearingindicated that water losses from that portion of the ditch and flume systemwhich carried water to the appellant were too high to allow continued useof it. After construction of the pipeline, the ditch and flume system didnot exist.

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Regardingthe complaint that the Canptroller did not considerordering the ownersof the newpipeline to conveywater to the appellant'sland under a joint use order, it must be rerrernberedthat, according toevidence submitted by the Corrptroller and Mr. Paynter, the appellantwas invited rrore than once to participate in the jointly constructedpipe. She decided not to join. Therewas also evidence submitted byMr. Paynter and the Corrptroller that the appellant and Mr. R. Ensign hadin the past taken a numberof uncooperative and even disruptive actionsagainst downstreamusers of the ditch and flume.

Mr. Paynter testified that in June, 1982, Hr. Ensign attempted toconnect a pipeline to Paynter - Yeulett's pipeline on the easernentthrough the appellant's land. This attempt, not authorized by theCorrptroller or by the ownersof the pipeline, was reported to the RegionalManagerof the Comptroller whoordered immediateremovalof the unauthorizedpipeline under Section 37 of the WaterAct.

The Corrptroller submitted at the hearing that one of the factorswhenconsidering a joint use of workspossibility is the cooperativeattitude of the parties involved. In this case, the Comptroller had amplereason to doubt that such an attitude existed.

The Panel finds that the Comptroller had sufficient reasons not toconsider a joint use of works order allowing the appellant to receivewater from the newpipeline, even if the pipeline could be rrodified to haveexcess capacity.

5.0 DECISION

Havingconsidered all the evidence submitted at the hearing thePanel decides to refuse the appeal.

~~u£~Panel ChainnanEnvirorurentalAppealBoard

October 25, 1982.