Fourth Floor 747 Fort Street

Environmental Victoria British Columbia

Telephone: (250) 387-3464

Appeal Board
Facsimile: (250) 356-9923

Mailing Address:
PO Box 9425 Stn Prov Govt
Victoria BC V8W 9V1

DECISION NO. 2008-WAT-003(b)

In the matter of an appeal under section 92 of the Water Act, R.S.B.C. 1996, c.
483.

BETWEEN: Murray Wood APPELLANT

AND: Engineer under the Water Act RESPONDENT

AND: Sandhill Developments Ltd. THIRD PARTIES

Corporation of the Township of Langley

BEFORE: A Panel of the Environmental Appeal Board

Alan Andison, Chair
Dr. Robert Cameron, Member
Gary Robinson, Member

DATE: January 19 and 20, 2008

PLACE: Vancouver, BC

APPEARING: For the Appellant: Jonathan Baker, Counsel

For the Respondent:
For the Third Parties
Sandhill Developments Ltd.:
Corporation of the
Township of Langley:
APPEAL
Jay Spiro, Counsel
Livia Meret, Counsel
Larry A. Gold, Counsel
Daniel R. Bennett, Counsel
Katie Seymour, Counsel

[1] Mr. Wood appeals an approval “to make changes in and about a stream” that
was issued to Sandhill Developments Ltd. (“Sandhill”) on March 3, 2008, by Tim
Bennett, P. Eng., a designated Engineer under the Water Act (the “Engineer”), of
the Ministry of Environment (the “Ministry”). The approval issued pursuant to
section 9 of the Water Act authorizes the realignment of Jeffrey Brook 1 and the
construction of certain mitigation/compensation works within properties owned by
Sandhill. Mr. Wood owns property adjacent to the Sandhill property.

1
Jeffrey Brook is referred to as “Jeffries Brook” by some of the parties. In this decision, the
Board refers to the stream as “Jeffrey Brook”.
DECISION NO. 2008-WAT-003(b) Page 2

[2] The authority for the Environmental Appeal Board to hear this appeal is
found in Division 1 of Part 8 of the Environmental Management Act and section 92
of the Water Act. Pursuant to section 92(8) of the Water Act, the Board may:

(a) send the matter back to the comptroller, regional water manager or
engineer, with directions,

(b) confirm, reverse or vary the order being appealed, or

(c) make any order that the person whose order is appealed could have
made and that the board considers appropriate in the circumstances.

[3] Mr. Wood requests that the Board set aside the Engineer’s approval.
Alternatively, Mr. Wood requests that the Board send the matter back to the
Engineer with certain directions.

BACKGROUND

[4] Sandhill owns three parcels of bare land in the Corporation of the Township
of Langley (the “Township”), British Columbia, located along the north side of 66th
Avenue. It purchased the properties in 2005 and plans to develop them for mixed
commercial and residential use; specifically, it intends to build a shopping center,
seniors housing and residential development on the properties.

[5] In order to develop the properties as planned, Sandhill needs to “move” or

“realign” Jeffrey Brook, a salmon-bearing stream which currently runs in a north to
south direction through the centre of Sandhill’s property. This realignment requires
an authorization from the federal Department of Fisheries and Oceans (“DFO”),
which is discussed further below. The realignment also requires authorization from
the Ministry under the Water Act. One of the main issues in this appeal is whether
the approval is the proper form of authorization for the changes to Jeffrey Brook.
Mr. Wood argues that it is not, and that the changes can only be authorized by a
licence issued under the Water Act.

[6] Prior to submitting its application for the approval, Sandhill retained ECL
Envirowest Consultants Limited (“Envirowest”) to design the rerouting of Jeffrey
Brook and to obtain the necessary government approvals. Envirowest worked with
another consulting firm, Core Group Consultants, on the design.

[7] The design submitted to the DFO and the Ministry eliminates the channel of
Jeffrey Brook that flows southward through Sandhill’s property. In general, the
design is for Jeffrey Brook to be diverted to a new channel along the north end of
Sandhill’s property, through proposed stream enhancement works toward the east
side of Sandhill’s property. The new channel then turns southwards and runs along
the eastern boundary of Sandhill’s property, with the near edge of the channel
being approximately one metre inside the property line and the centerline of the
channel being approximately 2.6 metres inside the property line. It then exits
Sandhill’s property in the southeast corner, into a ditch along 66th Avenue where it
proceeds and connects with existing works.
DECISION NO. 2008-WAT-003(b) Page 3

[8] The realignment of Jeffrey Brook is consistent with the Official Community
Plan and Neighbourhood Plan adopted on June 17, 2000, by the Township, as well
as with the contents of a June 7, 2000 letter from the Ministry to the Township 2 .

[9] On February 4, 2008, the DFO issued Sandhill “Authorization for Work or
Undertaking Affecting Fish Habitat” number 07-HPAC-PA2-000-00281 (the “DFO
Authorization”). The DFO Authorization is for the “Destruction of approximately
4,805 m2 of habitat, including 155 m2 of wetted and 4,650 m2 of potential riparian
habitat.” There are 22 conditions attached to the DFO Authorization, as well as
requirements for mitigation works and compensatory habitat, monitoring and
reporting of results.

[10] The DFO was offered, but did not accept, Third Party status in this appeal.

[11] On March 3, 2008, following the DFO Authorization, the Engineer granted the
approval that is the subject of this appeal. The approval includes the following
terms and conditions:

(b) The changes to be made in and about the stream are:

The realignment of the stream and construction of

mitigation/compensation works within West ½ of Lot 24, East ½ of Lot
24, Plan 2466 and Lot 93, Plan 40131, all within District Lot 311,
Group 2, New Westminster District [Sandhill’s properties].

(c) This Approval does not authorize entry onto privately held or Crown
land.

(e) The holder of this Approval shall take reasonable care to avoid
damaging any land, works, trees or other property and shall make full
compensation to the owners for any damage or loss resulting from the
exercise of rights granted hereunder.

(o) All works shall comply to Drawing No… prepared by ECL Envirowest
Consultants Limited and Plan… prepared by Core Group Consultants.

(t) The approval holder shall adhere to all terms and conditions of
Fisheries and Oceans Canada Authorization No. 07-HPAC-PA2-000-

2
This letter was written on behalf of the DFO and the Ministry following an environmental
planning meeting with the Township. The letter outlines the positions of the DFO and the
Ministry with regard to the relocation options for the Jeffrey Brook watershed.
DECISION NO. 2008-WAT-003(b) Page 4

00281 and the Ministry of Environment, Lands and Parks letter dated
June 7, 2000. Copies of each are attached to the approval.

[12] On April 2, 2008, Mr. Wood appealed the approval. Mr. Wood owns land
located at 20257/20263-66th Avenue, which is adjacent to the east boundary of
Sandhill’s property. The new channel for Jeffrey Brook will be located
approximately 1 metre from the west boundary of Mr. Wood’s property.

[13] On June 4, 2008, Sandhill challenged Mr. Wood’s standing to file the appeal.

[14] The Board requested submissions from the parties on the issue of Mr. Wood’s
standing. Sandhill, the Engineer and the Township submitted that Mr. Wood failed
to establish that the approval is likely to physically affect his property, and
therefore, he has no standing under section 92 of the Water Act to appeal the
approval. Mr. Wood argued that he has standing to appeal under section 92(1)(b),
as an owner whose land is likely to be physically affected by the approval.

[15] On August 28, 2008, the Board held that Mr. Wood had standing to appeal
because, on a balance of probabilities, there was a reasonable likelihood that Mr.
Wood’s property would be physically affected by the approval (Murray Wood v.
Engineer under the Water Act, Decision No. 2008-WAT-003(a)) (unreported). At
paragraph 49 of that decision, the Board cautioned that its findings regarding the
likelihood of Mr. Wood’s property being physically affected by the approval were
only for the purpose of deciding the preliminary issue of standing, and were not
based on a full hearing of the evidence. Consequently, those findings have no
bearing on the merits of the case.

[16] On November 26, 2008, Mr. Wood filed an amended Notice of Appeal that
states three main grounds for appeal, which are summarized as follows:

! the works proposed by Sandhill include the diversion of water from a

stream, and such works could only be authorized by a licence issued
under the Water Act by a regional water manager or a comptroller;

! the approval was issued for a purpose that is prohibited by sections 1

and 4 of the Water Act; namely, to maximize the developable area of
one property at the expense of another adjacent property, and to
facilitate the construction of a private development; and

! alternatively, the approval violates sections 37(4)(a) and (b) of the

Water Regulation, B.C. Reg. 204/88 (the “Regulation”), in that Sandhill
failed to comply with certain terms and conditions of all applicable
federal, provincial and municipal enactments, and Sandhill did not
obtain Mr. Wood’s approval before proceeding with the approved
works.

[17] The Engineer, Sandhill, and the Township all submit that the approval in this
case was correctly made, and request that the Board dismiss the appeal.
DECISION NO. 2008-WAT-003(b) Page 5

[18] It should be noted that, when this appeal was heard, some of the works
authorized by the approval had been completed but were not yet in use; namely,
water was not flowing within them.

ISSUES

[19] The Board has considered the following issues:

1. Whether the approval permits the diversion of water from a stream, and if
so, whether the diversion may only be authorized by a licence issued
under the Water Act by a regional water manager or comptroller.

2. Whether the approval was issued for a purpose that is prohibited by

sections 1 and 4 of the Water Act; namely, to maximize the developable
area of one property at the expense of another adjacent property, and to
facilitate the construction of a private development.

3. Whether the approval violates sections 37(4)(a) and (b) of the Water
Regulation.

Mr. Wood also raised concerns regarding the possibility of future realignments of
Jeffrey Brook that may affect his property. However, the Panel finds that this issue
is beyond the Board’s jurisdiction in this appeal, which is to consider the merits of
the decision to grant the approval. Accordingly, the Panel will not consider that
matter further.

RELEVANT LEGISLATION

[20] The following sections of the Water Act are relevant to this appeal. Other
relevant legislation is reproduced later in this decision.

Definitions

1 In this Act:

“changes in and about a stream” means

(a) any modification to the nature of a stream including the land,

vegetation, natural environment or flow of water within a stream, or

(b) any activity or construction within the stream channel that has or may
have an impact on a stream;

…
DECISION NO. 2008-WAT-003(b) Page 6

“divert”, or a word of similar import, means taking water from a stream and
includes causing water to leave the channel of a stream and making a
change in or about the channel that permits water to leave it;

Prohibition

4 Except for a purpose defined in section 1 of this Act, a person who is not
registered under the Water Protection Act must not divert, extract, use or
store any water from a stream.

Rights acquired under licences

5 A licence entitles its holder to do the following in a manner provided in the

licence:

(d) alter or improve a stream or channel for any purpose;

Who may acquire licences

7 A licence for any one, 2 or 3 of the purposes defined in section 1 may be

issued by the comptroller or the regional water manager to any of the
following:

(a) an owner of land or a mine;

Changes in and about a stream

9 (1) The comptroller, a regional water manager or an engineer may grant an

approval in writing authorizing on the conditions he or she considers
advisable

(a) a person to make changes in and about a stream,

(2) A minister, municipality or other person may only make changes in and
about a stream in accordance with an approval under this section or in
accordance with the regulations or a licence or order under this Act.
DECISION NO. 2008-WAT-003(b) Page 7

DISCUSSION & ANALYSIS

1. Whether the approval permits the diversion of water from a stream,

and if so, whether this may only be authorized by a licence issued
under the Water Act by a regional water manager or comptroller.

[21] Mr. Wood submits that the approval is ultra vires the Water Act because it
permits Sandhill to divert water from a stream without a licence. Mr. Wood accepts
that the works authorized in the approval involve changes in and about a stream;
namely, the altering and realignment of Jeffrey Brook’s channel. However, Mr.
Wood submits that the authorized works also involve the diversion of water from a
stream or a natural watercourse into a man-made “temporary bypass channel” that
includes both open channels and concrete pipe, and therefore, a licence is required.
Furthermore, Mr. Wood argues that the “temporary” bypass channel could remain
in place indefinitely because the approval does not stipulate a time limit, and
therefore, the works are not the proper subject of an approval.

[22] In addition, Mr. Wood submits that a licence to divert water from a stream
may only be issued by a comptroller or a regional manager under section 7 of the
Water Act, and not the Engineer.

[23] In support of those submissions, Mr. Wood refers to several judicial

decisions, including R. v. Placer Development Ltd. (1982), 28 C.R. (3d) 225
(“Placer”). He also refers to the Board’s decision in Patricia Clarke et al v. Assistant
Regional Water Manager (Decision No. 2004-WAT-013(a), June 24, 2005), [2005]
B.C.W.L.D. 5130 (“Clarke”).

[24] The Engineer submits that the authorized realignment of Jeffrey Brook and
the associated construction of mitigation/compensation works constitute “changes
in and about a stream” that are the proper subject of an approval granted under
section 9 of the Water Act.

[25] The Engineer submits that there is overlap in the Water Act between the
meaning of “divert” and “changes in and about a stream”, and there is also overlap
between what may be authorized by licences and approvals. Specifically, the
Engineer submits that a diversion of a stream is also a change in and about a
stream, because the definition of “divert” in section 1 of the Water Act includes
“making a change in and about the channel [of a stream] that permits water to
leave it”. In addition, the Engineer argues that the definition of “changes in and
about a stream” in section 1 includes any modifications to the nature of the stream
and any activity or construction within the stream channel.

[26] Additionally, the Engineer maintains that, regardless of whether the

authorized works involve diverting the stream or realigning the stream channel, the
works fall within the ambit of the definition of “changes in and about a stream”
because they involve modification to the nature of the stream or construction within
the stream channel. The Engineer submits that, although section 5(d) of the Water
Act states that a licence entitles a licensee to “alter or improve a stream or channel
for any purpose”, section 9 provides that an approval may be granted to allow a
DECISION NO. 2008-WAT-003(b) Page 8

person to “make changes in and about a stream”. The Engineer submits that
section 9(2) of the Water Act recognizes that a change in and about a stream may
be authorized by an approval, order, licence or, in some cases, in accordance with
the Water Regulation.

[27] The Engineer submits that a licence is not required in this case, because the
realignment and associated works are “changes in and about a stream” as
contemplated by section 9 of the Water Act, and because “beneficial use” of the
water is not contemplated. The Engineer submits that the main purpose of the
licensing provisions in the Water Act is to control and regulate the use of water for
beneficial purposes. In support of those submissions, the Engineer referred to
DeBeck (Re), [1976] 72 D.L.R. (3d) 581 (B.C.S.C.) (“DeBeck”), in which the Court
considered the jurisdiction of the comptroller to approve infilling of sloughs under
the Water Act, R.S.B.C. 1960, c. 405. In DeBeck, the applicants argued that the
comptroller had no jurisdiction under section 7 of the former Water Act (now
section 9 of the current Act) to approve the infilling, and that it could only be
authorized under a water licence. However, the Court held that the comptroller had
jurisdiction under section 7 to approve the infilling of the sloughs as “changes in
and about a stream”.

[28] Sandhill submits that Jeffrey Brook is not being diverted; rather, it is being
realigned. Sandhill refers to the definition of “divert” which provides that water is
being taken from a stream, possibly for consumptive use. Sandhill argues that
“realignment”, which is not defined in the Water Act, implies that a stream channel
has been reconstructed without taking water from it, and this constitutes a “change
in and about a stream” which requires an approval under the Water Act but not a
licence. Sandhill agrees with the Engineer that “changes in and about stream” may
be made in accordance with an approval, order, licence or under the Water
Regulation.

[29] In addition, Sandhill argues that the main purpose of a water licence is to
allow the storage or consumptive use of water, neither of which apply in this case.
Sandhill submits that a licence may include authorization to make changes in and
about a stream that facilitate such uses. Conversely, changes in and about a
stream that are not associated with storage or consumptive uses may be authorized
by an approval. Further, Sandhill submits that water uses under a licence tend to
be ongoing in nature, whereas works authorized under an approval tend to be “one-
time” in nature.

[30] Sandhill accepts that Jeffrey Brook, including the sections through and
upstream of Sandhill’s property, is a “stream”. However, Sandhill disputes Mr.
Wood’s characterization of Jeffrey Brook as a “natural watercourse” where it runs
through the middle of Sandhill’s property. Sandhill maintains that this portion of
Jeffrey Brook is a man-made ditch created through the historic realignment of the
stream between two of Sandhill’s properties.

[31] The Township submits that any provisions of the Water Act that may require
Sandhill to obtain a licence do not affect the approval or constitute an appropriate
ground for appeal of the approval. The Township maintains that there is nothing in
DECISION NO. 2008-WAT-003(b) Page 9

the Water Act that required the Engineer to ensure that Sandhill acquired a licence
before the approval was issued, assuming that a licence is necessary.

Panel’s findings

[32] In deciding this issue, the Panel has considered the overall regulatory
scheme created by the Water Act, and the meaning of the specific statutory
provisions that relate to approvals and licences. The Panel has also considered how
those provisions apply to the facts in this case. The judicial decisions and previous
Board decisions that the parties referred to are discussed, as needed.

[33] The legislature has created approvals and licenses as separate statutory
instruments under the Water Act. Approvals are granted under sections 8 and 9,
whereas licences are issued under section 7 and are subject to certain other
provisions in the Water Act that expressly apply to licences. The Panel finds that, in
creating approvals and licences as distinct statutory instruments under the Water
Act, the legislature intended for approvals and licences to be used in different
circumstances and/or to serve different purposes, but there is also some overlap
between licences and approvals.

[34] First, it is helpful to consider the provisions pertaining to approvals. Sections

8 and 9 of the Water Act provide for two types of approvals: section 8 approvals
may be granted for the “diversion or use of water” for a term not exceeding 12
months; and section 9 approvals may be granted “to make changes in and about a
stream”. Thus, these two types of approvals authorize specific and different things.
Another important difference between the two types of approvals is that section
8(1) states that “the diversion or use, or both, are subject to the same provisions
as if the approval were a licence [underlining added].” In contrast, section 9 does
not contain such language, nor does it refer to water “use”.

[35] Next, it is useful to consider the differences between section 9 approvals and
water licences. For example, section 7 of the Water Act states that “A licence for
any one, 2 or 3 of the purposes defined in section 1 may be issued”. Such
language is not found in section 9. Indeed, section 9 makes no reference to the
purposes defined in section 1.

[36] Also, section 13 of the Water Act sets out certain requirements that apply
specifically to water licences. It requires that every licence issued on or after
June 21, 1995:

(a) specifies the date of precedence of the licence,

(b) is for the diversion, extraction, use or storage of water, or for any
combination of those things, for one, 2 or 3 of the purposes defined in
section 1 and the purpose is or the purposes are specified in the licence,
and…

[underlining added]
DECISION NO. 2008-WAT-003(b) Page 10

[37] There is no indication in sections 7 or 13, or elsewhere in the Water Act, that
such requirements apply to section 9 approvals. Similarly, the principle of
precedence of licensed water rights on the same stream, which is set out in section
15 of the Water Act, is specific to licences and does not apply to section 9
approvals.

[38] Perhaps one of the most important differences between licences and section
9 approvals is that licences grant a wide range of rights in relation to water
resources, whereas section 9 approvals are restricted to authorizing changes in and
about a stream. The rights that may be acquired under water licences are listed in
section 5 of the Water Act, as follows:

Rights acquired under licences

5 A licence entitles its holder to do the following in a manner provided in the

licence:

(a) divert and use beneficially, for the purpose and during or within the time
stipulated, the quantity of water specified in the licence;

(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.

[39] When sections 5 and 7 of the Water Act are considered together, it is
apparent that key features of a water licence are the right to “divert and use
beneficially” water for a purpose or purposes defined in section 1 of the Water Act.
Indeed, a licensee is obligated to make beneficial use of the water for the purpose
specified in the licence, or risk having their licence suspended or cancelled if there
is a lack of beneficial use for three successive years (section 23(2)(a)). In contrast,
no right (or requirement) to “use” water is mentioned in the provisions pertaining
to section 9 approvals.

[40] Based on the relevant statutory provisions, the Panel finds the main purpose
of the licensing provisions in the Water Act is to control and regulate the use of
water for beneficial purposes. The Panel finds that this approach is consistent with
the findings in DeBeck at paragraph 12, where the Court stated that the main
purpose of the licensing provisions was to “control and regulate the use of water for
beneficial purposes and to impose an annual fee for that use.”

[41] The Panel agrees with the Engineer that there is some overlap between
section 9 approvals and licences. For example, section 9(2) of the Water Act
provides that a change in and about a stream may be authorized by several
DECISION NO. 2008-WAT-003(b) Page 11

instruments, including an approval granted under section 9 and a water licence.

Similarly, a licence may authorize the licensee to “alter or improve a stream or
channel” for any purpose. However, it is clear that a section 9 approval may only
authorize changes in and about a stream, whereas a licence may authorize such
changes as well as granting a number of other rights.

[42] Thus, the Panel finds that the relevant provisions of the Water Act provide
that approvals granted under section 9 are restricted to authorizing “changes in and
about a stream”, whereas licenses may authorize “changes in and about stream”
and grant other rights including, most importantly, the right to “divert and use
beneficially” water. The Panel further finds that this approach is consistent with
DeBeck, in which the Court held that a statutory decision-maker may grant an
approval to make “changes in and about stream” when the beneficial use of water
by the approval holder is not contemplated.

[43] The next question is whether the “realignment” of Jeffrey Brook constitutes a
“diversion” or a “change in and about a stream”, or both. For convenience, the
definitions of “divert” and “changes in and about a stream” are reproduced below:

“divert”, or a word of similar import, means taking water from a stream

and includes causing water to leave the channel of a stream and making
a change in or about the channel that permits water to leave it;

“changes in and about a stream” means

(a) any modification to the nature of a stream including the land,

vegetation, natural environment or flow of water within a stream, or

(b) any activity or construction within the stream channel that has or may
have an impact on a stream;

[underlining added]

[44] The Panel finds that the decision in Placer is of limited assistance in this case
because it involved consideration of the common meanings of “divert” and “alter”,
whereas the present case involves statutory definitions. However, the Panel finds
that the definitions of “divert” and “changes in and about a stream” in the Water
Act do overlap to some degree.

[45] Specifically, the Panel finds that the focus of the definition of “divert” is on
taking water from a stream. The definition states that “divert” includes certain
types of change in and about the channel of stream; namely, changes that cause or
permit water to leave the stream channel. However, the focus of the definition is
clear: diverting water means (as opposed to includes) “taking” water from a
stream.

[46] The Merriam-Webster’s Dictionary, (10th ed., 1993), defines “take” as

follows:

1: to get into one’s hands or into one’s possession, power or control…

DECISION NO. 2008-WAT-003(b) Page 12

[47] Similarly, Black’s Law Dictionary, (7th ed., 1999), defines “take” as follows:

1: to obtain possession or control, whether legally or illegally…

[48] Based on the common meaning of “take”, the Panel finds that “taking” water
from a stream means not taking water in the sense of causing or permitting water
to leave the stream channel, but more importantly, it means exercising possession
or control of the water.

[49] The Panel finds that the definition of “changes in and about a stream” is not
focused on “taking” water from a stream in the sense of exercising possession or
control, but rather on making “changes” to a stream or its channel.

[50] In summary, the Panel finds that, based on the definitions in the Water Act,
“changes in and about a stream” may or may not involve diverting water, and
“diverting” water may or may not involve changes in and about a stream.
Furthermore, the key characteristic of “diverting” is taking water from a stream in
the sense of exercising possession or control of the water. In contrast, “changes in
and about a stream” need not involve exercising possession or control of water.

[51] The parties generally agree that the realignment of Jeffrey Brook involves
changes in or about a stream. However, the parties disagree on whether the
realignment involves diverting the stream. The Panel finds that the question of
whether the realignment involves diverting the stream depends primarily on
whether the realignment involves “taking” water from Jeffrey Brook in the sense of
Sandhill exercising possession or control of the water.

[52] The evidence clearly indicates that the realignment involves moving the
channel of Jeffrey Brook within Sandhill’s property. Sandhill is not seeking to divert
onto its property any part of a stream that is not already on its property, nor is it
seeking to divert the stream from its property onto someone else’s property. It is
common ground that the entire volume of water in the stream with the exception of
high flows that will be diverted into a storm sewer, will travel from the existing
channel, through a newly created channel, and then back into the existing channel
further downstream. Sandhill does not seek to extract water from Jeffrey Brook for
a consumptive use, store on its property water from Jeffrey Brook, or acquire a
right to “use” the water for some benefit directly derived from the water itself, such
as power generation. Sandhill does not seek to acquire ‘possession’ of a quantity of
water from the stream.

[53] Based on the evidence, the Panel finds that the primary objective of the
changes in and about Jeffrey Brook is not to allow Sandhill to take possession or
control over the water, or to beneficially use the water in the stream, but rather to
assist Sandhill’s development of its land.

[54] The Panel finds that the realignment of Jeffrey Brook in this case is best
characterized not as a “beneficial use” of water or even a “diversion” or “taking”
water from a stream, but rather as a “change” to the stream channel that involves
substituting one stream channel for another.
DECISION NO. 2008-WAT-003(b) Page 13

[55] In DeBeck, the Court stated as follows at paragraph 12 in finding that a

licence was not required for works that would cause a stream to find and create
other watercourses:

The word “change” has a wide variety of meanings, but one of them is
the substitution of one thing for another.

[56] The Panel finds that this concept of “change” applies similarly to the present
case, in that a new channel is being constructed that will be a substitute for a
section of the existing channel of Jeffrey Brook.

[57] Mr. Wood referred to the Board’s previous decision in Clarke in support of his
submissions that the realignment of Jeffrey Brook is a diversion that requires a
licence. However, the Panel finds that Clarke is of limited assistance because the
parties in that case did not raise, and the Board did not consider, the issue of
whether an approval or a licence was the proper instrument for authorizing the
works in that case, which involved pipes and decorative ponds. In other words, in
Clarke, the Board did not turn its mind to this issue.

[58] For all of these reasons, the Panel finds that the works in this case are
“changes in and about a stream” that involve substituting one section of a stream
channel for another, and do not involve diverting water from a stream or
beneficially using water from a stream. Consequently, the Panel finds that these
changes do not require a water licence, and are the proper subject of an approval
issued under section 9 of the Water Act.

2. Whether the approval was issued for a purpose that is prohibited by

sections 1 and 4 of the Water Act; namely, to maximize the
developable area of one property at the expense of another adjacent
property, and to facilitate the construction of a private development.

[59] Section 1 of the Water Act defines a number of purposes for which water
may be used: conservation purpose, domestic purpose, industrial purpose,
irrigation purpose, land improvement purpose, mineral trading purpose, mining
purpose, power purpose, river improvement purpose, storage purpose, and
waterworks purpose. Section 4 of the Water Act states as follows:

Prohibition

4 Except for a purpose defined in section 1 of this Act, a person who is not
registered under the Water Protection Act must not divert, extract, use or
store any water from a stream. 3

3
For clarification, registration under the Water Protection Act [RSBC 1996] c. 484, applies
to the export of water from British Columbia. Therefore, that exception does not apply to
the circumstances of this appeal.
DECISION NO. 2008-WAT-003(b) Page 14

[60] Given the Panel’s findings above that there is no diversion or beneficial use of
water by Sandhill, this issue is moot. There is also no extraction of water or
storage of water from the stream. However, for clarity, the Panel will address this
issue.

[61] Mr. Wood submits that the approval is ultra vires section 4 of the Water Act
because it permits the diversion of water for a purpose that is not defined in section
1. Mr. Wood submits that, although the approval does not state a purpose,
Sandhill sought the approval to facilitate the construction of a
residential/commercial development in place of a protected, natural salmon-bearing
stream and riparian habitat. Mr. Wood argues that such a purpose does not fit
within any of the permitted purposes defined in section 1 of the Water Act.

[62] The Engineer submits that section 9 of the Water Act imposes no
requirements with respect to the purpose for a change in and about a stream. The
Engineer maintains that, if an approval is issued for a change in and about a
stream, the requirement in section 13(b) of the Water Act regarding the purposes
defined in section 1 are not engaged. This is because the purposes in section 13(b)
of the Water Act only apply to the issuance of licences under the Act. Here no such
licence is required as this activity has been properly authorized under section 9 of
the Act.

[63] Furthermore, the Engineer submits that even if changes in and about a
stream can only be made for the purposes defined in section 1 of the Water Act, the
changes in this case are for a “land improvement purpose” defined in section 1 as
follows:

“land improvement purpose” means the diversion or impounding of

water to protect property, to facilitate the development of a park or
the reclamation, drainage or other improvement of land or to carry
out a project of a similar nature;

[64] Specifically, the changes are being made to facilitate the development of
Sandhill’s property. The Engineer argues that “improvement” has a broad meaning,
and that the realignment of Jeffrey Brook increases the utility of Sandhill’s property,
in terms of making it more useful to Sandhill. On that basis, the realignment is an
“improvement” that serves a valid land improvement purpose. In support of those
submissions, the Engineer refers to the Board’s decision in David Avren et al v.
Regional Water Manager (Decision Nos. 2006-WAT-003(a), 2006-WAT-004(a),
2006-WAT-005(b), June 29, 2007) (unreported) (“Avren”).

[65] Sandhill submits that, if the realignment of Jeffrey Brook is a diversion, then
it is for a purpose that is allowed under the Water Act. Specifically, it argues that
the definition of “land improvement purpose” applies to the realignment in this
case. Sandhill acknowledges that the realignment of Jeffrey Brook facilitates the
proposed residential/commercial development of its property, and it submits that
this is a “land improvement purpose”. Sandhill argues, therefore, that the
prohibition in section 4 of the Water Act does not apply.
DECISION NO. 2008-WAT-003(b) Page 15

[66] The Township adopts the Engineer’s submission that a defined purpose under
the Water Act is not required for an approval. However, if a defined purpose is
required for an approval, the Township submits that this case fits within the “land
improvement purpose”.

[67] Furthermore, the Township submits that the relocated portion of Jeffrey
Brook is the legitimate result of the Southwest Gordon Estates Neighbourhood Plan
which was adopted by the municipal council. The Township submits that this Plan
was developed through extensive consultation with the Ministry, DFO, and affected
members of the public, and it confirms that the relocation of Jeffrey Brook is an
important component of drainage as set out in the Plan. The Township notes that
Mr. Wood filed a petition in the BC Supreme Court to challenge the Plan, and that
the Court is the appropriate forum for Mr. Wood’s concerns about the Plan.

Panel’s findings

[68] Based on the language in section 9(1) of the Water Act, the Panel finds that
there is no requirement that an approval under section 9 may only be granted for
one of the purposes defined in the Water Act. For convenience, section 9(1)(a) is
reproduced below:

9 (1) The comptroller, a regional water manager or an engineer may grant

an approval in writing authorizing on the conditions he or she
considers advisable

(a) a person to make changes in and about a stream,

[69] The Panel agrees with the Engineer that section 9 of the Water Act imposes
no requirements with respect to the purpose for a change in and about a stream.
Section 9(1) provides that an engineer may grant an approval “on the conditions he
or she considers advisable” to make changes in and about a stream. Section 9(1)
contains no reference to the purposes defined in section 1 of the Water Act, nor
does it impose a requirement that an approval be granted only for a defined
purpose. Indeed, section 9 provides the decision-maker with broad discretion in
issuing an approval for a change in and about a stream.

[70] In contrast, sections 7 and 13(b) of the Water Act state that a water licence
must be “for one, 2 or 3 of the purposes defined in section 1”. Section 13(b) also
requires that “the purpose is or the purposes are specified in the licence”. Had the
legislature intended to restrict the purposes for which an approval may be granted
under section 9, it could have done so, but it did not.

[71] In any event, if the changes to Jeffrey Brook in this case amount to diverting
a stream, thereby bringing the changes within the ambit of the section 4 prohibition
against diverting water except for one of the purposes defined in section 1, the
Panel finds that the approval was granted for a “land improvement purpose” as
defined in section 1. In that regard, the Panel agrees with the Board’s reasoning in
Avren at page 18, as follows:
DECISION NO. 2008-WAT-003(b) Page 16

Although the Regional Water Manager will not impose his or her own
subjective opinion about whether the land is “improved”, the Regional
Water Manager is still required to objectively evaluate whether the
proposed use will improve the utility of the land to the applicant. An
applicant is not entitled to define for himself or herself what is an
improvement; rather, he or she must demonstrate to the satisfaction
of the Regional Water Manager that the proposed use of water will add
utility to the applicant in his or her use, or proposed use, of the land.

[72] Sandhill has indicated that the realignment of Jeffrey Brook facilitates the
residential/commercial development of its property. The Panel finds that the
realignment of Jeffrey Brook will make Sandhill’s property more useful to Sandhill
for development purposes. In other words, it “will improve the utility of the land to
the applicant”. Consequently, if a defined “purpose” was required by section 9,
which is not the case, the realignment would fit within the definition of “land
improvement purpose”.

3. Whether the approval violates sections 37(4)(a) and (b) of the Water
Regulation.

[73] Section 37 of the Regulation states as follows:

37 (1) A change in and about a stream must not proceed unless it is

(a) authorized by an approval, licence or order, or

(b) made in compliance with this regulation.

(4) The fact that a change in and about a stream meets the requirements of
subsection (1) does not relieve the person carrying out the change in and
about the stream from

(a) the requirement to comply with all applicable federal, provincial or

municipal enactments, and

(b) if the change in and about a stream will occur on Crown land or land
owned by another person, from the requirement to obtain the approval
of the owner before proceeding.

[74] Mr. Wood submits that the approval is contrary to section 37(4)(a) of the
Regulation because the approval was issued based on an application and plans filed
by Sandhill, as well as the authorization issued by DFO, which did not comply with
all applicable federal, provincial and municipal enactments. Specifically, he submits
that the authorized works do not comply with the Canadian Environmental
Assessment Act (the “CEAA”), certain federal fisheries guidelines and policies, and
Langley Official Community Plan Bylaw 1979 No. 1842 Amendment (Streamside
Protection) Bylaw 2006, No. 4485 (the “Streamside Protection Bylaw”).
DECISION NO. 2008-WAT-003(b) Page 17

[75] Furthermore, Mr. Wood submits that the approval is contrary to section
37(4)(b) of the Regulation because Sandhill did not obtain Mr. Wood’s approval
prior to proceeding, nor did the Engineer require Sandhill to do so. Mr. Wood
maintains that the approved changes in and about Jeffrey Brook will occur partially
on his land.

[76] The Engineer submits that it is clear that fisheries agencies are prepared to
allow the approved changes to proceed. Furthermore, the Engineer submits that
the DFO Authorization serves as an exemption from Langley’s Streamside
Protection Bylaw.

[77] Further, the Engineer submits that the changes have all occurred within
Sandhill’s properties, and do not take place on Mr. Wood’s property. The Engineer
submits that no restrictive covenants, setbacks or encumbrances are being required
or requested in relation to Mr. Wood’s property. To the extent that Mr. Wood’s
concerns relate to a possible future realignment of Jeffrey Brook, those concerns
are premature and cannot be considered by the Board in this appeal.

[78] Sandhill submits that section 37 of the Water Regulation does not apply in
this case because the approval was issued, and the approved works comply with
any applicable federal laws and do not occur on Mr. Wood’s property. Sandhill
submits that the Streamside Protection Bylaw recognizes the DFO and Ministry
authorizations.

[79] The Township did not address this issue.

Panel’s findings

[80] The Panel notes that the object of section 37(4) is to impose requirements on
how a person (Sandhill in this case) carries out a change in and about a stream
once an approval has been issued. Section 37(4) is not directed towards the
approval itself or the decision to issue an approval, but rather on how the approved
works are carried out. The Panel finds that questions regarding whether the works
constructed to date comply with applicable federal, provincial, and municipal laws
are beyond the scope of this appeal, which is limited to the merits of the decision to
grant the approval. Such questions are more properly addressed by the agencies
that have authority over the enforcement of those laws.

[81] However, the Panel finds that the evidence indicates that the authorized
changes in this case (as distinct from any changes that have been carried out)
comply with federal fisheries enactments and the provincial Water Act. Specifically,
the fact that the DFO Authorization was issued is prima facie evidence that the
authorized changes comply with federal fisheries enactments, and the Panel has
found that the changes are the proper subject of a section 9 approval under the
Water Act. The question of whether the authorized changes comply with any other
provincial legislation that may apply was not addressed by the parties, and
therefore, the Panel makes no comment on that question.
DECISION NO. 2008-WAT-003(b) Page 18

[82] The Panel finds that the federal fisheries guidelines and policies referred to
by Mr. Wood do not fall within the ambit of section 37(4)(a), because government
policies and guidelines are not “enactments”. Section 1 of the Interpretation Act
states that “enactment” means “an Act or a regulation or a portion of an Act or
regulation”.

[83] Additionally, the Panel finds that the authorized changes appear to comply
with the Township’s Streamside Protection Bylaw. However, that question was not
fully argued by the parties. Consequently, the Panel makes no comment on that
question.

[84] Regarding section 34(b) of the Regulation, the Panel notes that the approval
does not authorize any changes in and about Jeffrey Brook that “occur on” land
owned by Mr. Wood. The approval only authorizes changes on land owned by
Sandhill, and the approval imposes no setbacks and authorizes no encroachment
onto Mr. Wood’s property.

[85] For all of these reasons, the Panel finds that Mr. Wood has not established
that the approval violates sections 37(4)(a) and (b) of the Regulation.

DECISION

[86] In making this decision, the Panel of the Environmental Appeal Board has
carefully considered all of the evidence before it, whether or not specifically
reiterated here.

[87] For the reasons provided above, the Panel confirms the Engineer’s decision to
grant the approval.

[88] Accordingly, the appeal is dismissed.

“Signed”
Alan Andison, Chair
Environmental Appeal Board

“Signed”
Robert Cameron, Panel Member
Environmental Appeal Board

“Signed”
Gary Robinson, Panel Member
Environmental Appeal Board

March 19, 2009