Province of Ministry of ENVIRONMENT AL APPEAL BOARD Environment Victoria British Columbia V8V 1X5

Appeal No. 82-27 WAT

JUDGEMENT

LICENCENO. No licence has been issued

APPEAL: The appeal is against an order of the Deputy Comptroller of Water Rights, dated May 27, 1982, in that he refused to issue the appellant with an Approval, application dated May 6, 1981, to make changes in or about a stream which flewed through the appellant's property (Branch File No. 0339796).

The reason for the appeal is that because of poor drainage on the appellant's property, extensive flood.ing takes place, which causes serious damage to the appellant's fanning operations .

I ~e appellant requests that he be allewed to carry out the necessary works to improve the drainage on his property located at 31585 DCW'nes Road , Matsqui, B.C., by clearing, deepening and/or widening a creek, camnonly kncwn as Edinburgh Creek, Mth on his property and on the adj acent property downstream. With these changes or alterations to t:-l/lecreek, his flooding problerrs should be corrected. (The Board has no authority at this time to deal with "tAeadj acent property) .

HEARINGINFORMATION:I

The hearing was held on October 12th, 1982, at the Robson Square Media Centre, 800 Hornby Street, in Vancouver, B. C.

1e members of the Board in attendance were:

Mr. Frank Hillier, P. Eng. - Olainnan Mr. Va1ter Raudsepp, P. Eng. - Merrber MrI .' Lou OSl• pov , P . Eng. - M-~letllUer.-. I Miss Shirley Mitchell - Official Recorder

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Appeal - Geo. Ulridl, Water Act

REGISTERED APPELLANT:

Mr. George H. Ulrich - Matsqui , B. C.

REGISTERED OBJECI'ORS:

Mr. D.J. Robinson, Director of the Fish & Wildlife Branch, Ministry of Environment

Mr. D.D. Aural, District SUpervisor, Fisheries & Oceans, Covernrrent;of Canada

Neither of the registered objectors appeared at the hearing as objectors.

LISI' OFEXHIBITS:

"A" - Mapof the property adjacent to and davnstrearn from the Ulrich property (i.e. Contour Plan of Parcel E, Reference Plan 1153, and Lot 5, Plan 53899of District Lot 405, Gp. 2, N.W·.D.)

"B!' Letter of February 21st, 1961, frc:rnA.F. Paget, Comptroller of Water Rights, to the Appel.Lant..

"C" Paper of I .C. Came, concerning red raspberry grCMT- ing with particular reference to the .

"D" Advertisement on West Coast Land Drainage

"E" Excerpt from the "Awake"rragazine.

"F" Newspaperarticle entitled "False Security"

"G" Letter of July lOth, 1980, from the Appellant to the Corporation of the District of Matsqui.

"H" Plan an::1Elevationsof the M.E.!. Property drawn by G.H. Ulrich.

"I" Water Rights Branch Paper entitled "General Infonna- tion on Water Lawin British Columbia".

"J" Application for water licence by G.H. Ulrich, Septerrber 5th, 1980.

"K" Letter of April 21st, 1981, frc:rnR.G. Riecken,1'1unicipal Engineer f MatsquiI to Water Rights Branch in New Westminster, B.C.

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Gee. Ulrich - appeal, Water Act

"L" Letter of June 15, 1981 to the Appellant fran the Deputy Canptroller of Water Rights, J. E. Farrell.

"M" "Acqui.s.i.t.ionof Approvals" form, signed by the Appel- land of May 6, 1981.

"N" Letter of August 7th, 1981, from Hedda Cochran, Municipal Clerk, Matsqui, B. C., to the Appellant.

"0" Letter of April 23rd, 1981, from Hedda Cochran, Municipal Clerk, Matsqui, to the Appellant.

"P" Letter of July 2nd, 1981, from R.A. Edwards, Water Rights Branch, to D. R. Riecken, Mtmicipal Engineer, Matsqui, B. C.

"Q" Letter of September 3, 1981, to "itVhomit may concern" from the Appellant.

"R" Newspaper Article entitled "Scandal calendar records Ri+chi.e,"

"S" Letter of September 2nd, 1981, to the Appellant from P.R. Brady, Canptroller of i"1ater Rights.

"T" Application for a Water Licence by G.H. Ulrich, November 23rd, 1981.

"U" Letter of October 1st, 1981, to·the Appellant from the solicitors of the Mennonite Educational Institute (M.E.L)

"V" Letter of December 1st, 1981, to the Appellant fzrm Nundal, Cherrington & Easingwood, Barristers & Solici- tors.

'W" Letter of October 5th, 1982, to the Appellant from Robert A. Edwards, District vJater Rights Engineer, Water ManagementBranch.

"X" Letter of April 6th, 1982, f rcm Mr. D.J. Robinson, Director of Fish & Wildlife Branch, to P.M. Brady, Comptroller of Water Rights.

"Y" Mapof NewWestminster Water District, Tp, 16, E.C.M. Sec. 31.

"Z" Letter of May 27th, 1982, to the Appellant from J.F. Farrell, Deputy Comptroller of Water Rights .

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Geo. Ulrich - Appeal - Water Act

"A-A" AppealBookfrom the Water Rights Branch,

"B-B" EdinburghCreek Profile within the M.E.I. Property.

SlM1ARYOFTHEAPPELLANT'SPRESENI'ATION(In Part)

Mr. Ulrich said that he was a fanner and that he gravs raspberries on a cammercialbasis. He said that he wanted to extend the area for growingraspberries on his fann downonto a lcwer section of his prop- erty that was newsubject to flooding because of developmentto the property adjacent to his farm, He said that raspoerxi.es cannot stand wet roots. Theyneed to be planted in areas where the top three feet of the soil can drain very quickly to prevent rotting of the roots. He said it is not profitable to farm wet land and he nowhas wet land because of the developrrent; of the MennoniteEducational Institute (M.E.I.) property.

He then went on to tell the Boardof the chain of events leading up to his present problems:-

1) Whenhe first bought his property, he and his father cleared out the stream in question so as to drain the lower pasture, the area he nowwants to plant in raspberries. In order to drain this area adequately, it was also necessary to clean out the stream on his neighbour's property. It appears that he got pennission to do this and for sane 17 years was satisfied with the results of his Labour's in this respect on both properties, and also obtained adequate drain- age of the area. He noted, hcwever, that part of his neighbour's property was covered in a large flood plain.

2) Somethree years ago, M.E.1. bought his neighbour's prop- erty and in the course of the construction and developnent of their school, filled in the flood plain and built a road into the school along the edge of UIri ch,s property. They installed a culvert under the road so that the creek in question could still continue to drain Ulrich I s property. Ulrich, however, cl.aimsthat the culvert was set at too high an elevation and is too small in size. He also c.Laimsthat the elevation of the bottan of the creek as it nowpasses through the M.E.I. property, is also too high to give him the drainage he needs.

3) He said that whenME..1. first purchased the property, he got good co-operation frrm them. During the course of their developnent program, he madea suggestion that they deepen the creek

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Ulridh F.ppeal- Water Act

through their property. 'Ihey would not do this and,in fact, told him that they intended to widen the creek to form two small ponds on the property. 'Ihey indicated as time progressed that they were not too sympathetic to his requests and that he was becominga nuis ance.

4) He then took his problem to the Municipality, but, initially, obtained no satisfaction. 'Ihey referred him to the Water ManagementBranch of the Ministry of Envirornrent. The Municipal Engineer, hcwever, subsequently, did write to the Water ManaganentBranch asking them to investigate the matter, and he also wrote to M.E. I. requesting them to ensure that Ulrich' s drainage was not adversely affected. The Municipal Engineer received no answer fram M.E.I.

5) Ulrich then madean application to the Water Management Branch for a water licence. Theytold him that he did not possess complete legal tenure on the land uponwhich he wished to make improvements,and that M.E.I. objected to his plans. His appli- cation for a Water Licence was not accepted. Hewas further told that if he wanted a water licence for land improvementpurposes, in order to secure an easement by expropriation to do work on the M.E.I. private property, he must first makean application to alter the creek on his 0NI1 property under Section 7 of the Act. Hewas also told that in the opinion of personnel within the Water ManagementBranch, the proposed work on his cwnproperty would not accomplishbetter drainage by itself.

6) Aboutthis time, in a letter from R. A. Edwards,Water ManagementBranch, Mr. Ulrich was also told that the 36" diameter culvert under the road adjacent to his property had not received approval fran the Water ManagementBranch, but that Mr. Rudy Nickel, of M.E.L was aware of the situation and promised to replace it with a bigger culvert if it was the cause of any flooding prob- lems.

7) OnMay6th, 1981, Mr. Ulrich madeapplication for an approval under section 7 of the Act to makechanges in and about his stream or creek. He also madeapplication again for a water licence on November23rd, 1981. OnMay27th, 1982, the approval to makechanges to his creek was refused on the basis that Federal Fisheries & Oceans and the Fish & Wildlife Branch objected to his proposal, and because the work would not improvehis drainage problems,presumablybecause he didn't have a water licence to solve his downstreamproblems.

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Geo. Ulric:h - appeal - Water Act

8) Ulrich said that he has never received an answer to his application for the new water licence.

9) On June 20th, 1982, Ulric:h notified the Deputy Ccmp- troller of Water Rights that he wished to appeal the refusal of May 27th, 1982, for an application to make changes in and about Edinburgh Creek, the creek in question.

10) Sometimebefore October 5th, 1982, Mr. Ulrich, in desperation, went ahead with the alterations to deepen and widen Edinburgh Creek without the proper permission from the Water ManagEmentBranch. He said he did this to prove that the alterations would accomplish the necessary drainage which he required for his proposed raspberry fields. On a visit to the site, the Board viewed the alterations. Mr. Edwards, of the Water ManagementBranch, had already requested that Mr. Ulrich forthwith restore the channel of Edinburgh Creek to its original condition by October 31st, 1982, or presumably face prosecution under Section 41 of the Water Act. In his letter of October 5th, 1982, Mr. Edwards, hc:wever, did offer Ulrich an alternative to the restoration order, in that if he did further work to fix up the side slopes of the now altered creek to prevent soil naterial being t.ransport.ed downstream, his alterations would be accepted by the Branch.

CDMMENTSMADEDURINGTHEcross EXAMll'JATIONOF THEAPPELLANT:

1) Mr. Ulrich has 20 acres of land, of which 13 acres are cleared, 7 acres are cultivated and 5 acres are in pasture.

2) Mr. Ulrich's property is classified as A-l agricultural land.

3) The illegal work which Mr. Ulrich has already done constitutes only part of his application for alterations to his creek.

4) Last winter he experienced flooding on about 1 1/2 acres of his property, up to about 1 1/2 feet in depth.

5) In the surrmer, the creek on his property goes dry.

6) He wishes to Lcwer the creek in question by about 3 feet .

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Geo. Ulridl - appeal - Water Act

7) The creek is relatively flat on his property and relatively flat for half the distance across the M.E.l. property.

8) He wishes to lower the creek bed by a minimumof about two feet for an indeterminate distance on the west side of the M.E. I. property. He understands that this requirement is not part of th:is appeal.

SUMMATIONOF THECOMPI'IDLLEROF WATERRIGHTS'PRESENTATION(In Part)

The representatives of the Comptroller of Water Rights were as follows:

1. Mr. J. E. Farrell, P. Eng., Spokesman Deputy Comptroller of Water Rights

2. Mr. R.A. Eavards, P. Eng., Witness Head, Water Allocation Water Management Branch

3. Mr. N. Singh, Diploma of Eng. Witness Technician, Regional Office Water ManagementBranch

4. Miss Lama Giles, B.Sc. Witness Habitat Protection Technician Fish & Wildlife Brandl

Mr. Farrell and his witnesses gave the Board the following infonnation:

Mr. Farrell:

1) Phyllis Brook flows into Edinburgh Creek from the Ulrich property just after it enters the M.E.1. property. Edinburgh Creek forms part of the headwaters of Downes Creek and Downes Creek flews into the .

2) Edinburgh Creek, before Ulrich altered it, was about 2 feet wide by 1 foot deep.

3) In Ulrich's application of May 6, 1982, he requested pennission to alter Edinburgh Creek to a minimumdepth of 3 '0" and a minimumpassage of water of 20 sq. ft (about 7 feet wide) .

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Geo. Ulrich - Appeal - Water Act

4) After reviewing his engineer's report; of May 17th, 1982, he refused approval to alter the creek. on the fo Ll.cw.inq bases:

a) The Fish & Wildlife Branch of the ~tinistry of Environment cbj ected strongly to the proposed alteration.

b) Fisheries & Oceans, Governmentof Canada, also strongly objected to the proposed alteration.

c) The District of Matsqui also raised a verbal objection.

d) The Mennonite Educational Institute objected very strongly to the proposed alteration.

e) Without deepening the creek on the Mennonite property, the proposed works would not help the drainage problem on Ulrich's property. He then introduced a profile of the bottom of Edinburgh Creek. on the M.E.l. property to prove his point.

5) As background information, he offered the following:

a) Ulrich had made an application to alter Phyllis Creek,which he had approved.

b) Ulrich had previously applied for a land improve- ment lioence on the M.E.l. property, whim he had refused.

c) Ulrich had another application for a land improvement licence on the M.E.l. property at the current time, which he had not dealt with as yet.

Mr. Singh -

1) He has a Diploma in Civil Engineering fran India.

2) He was the person who took the rreasurements and pre- pared the profile drawing of Edinburgh Creek, submitted by W.M.B., on the M.E.1. property.

3) He had wished to carry the creek's profile measurements through onto Ulridh's property but Ulrich would not give him permission.

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Geo. Ulrich •.•Appeal - Water Act

4) ~Vhenhe approached Ulrich, about September 1, 1981, about, giving the Water ManagerrentBranch a plan of What he intended to do to the creek, Ulrich was generally uncooperative. Ulrich said he wanted to deepen the creek by sane three feet for its entire length, presilllBbly only on his property. He roughed out, on the spot , sketches of his intentions. These sketches were not too clear even to the Board when they examined them at the hearing.

5) Ulrich indicated during Singh's field investigation that the proposed WJrks, when completed, woul.dhelp him to force his downstream neighbours to do the required dredging on their prop- erty. Singh told Ulrich that the alterations to his property alone would only cause ponding on his awn property, and WJuld not help the over-all drainage problem.

Mr. Edwards -

1) He stated that bhe proposed alterations would not improve the drainage of water frxm Ulridl' s property. The proposed altera- tions wou.Idonly cause a large pond of stored water, which would becone stagnant and dry up in the sumrrer.

2) He did indicate that the proposed works may help water drainage from the pasture land to the creek at certain times of the year, but that the water woul.dnot be able to get away at the outlet to Ulrich's property, without downstream work.

Miss Giles:

1) She said she had a . Bachelor of Science degree in Zoology.

2) She said that her job with the Fish & Wildlife Branch, since 1975, was that of assessing fisheries populations and fish habitat in streams, and assessing the impact of land use on fish life.

3) She said that the fisheries values in DownesCreek supported populations of coho salmon, chumsalmon and cut-throat trout. Most of the stream is used for rearing and migration purposes. Irrrnedi- ately south of D:JwnesRoad, which is dc:wnstreamfzxm the M.E.I. property, there is an excellent spawning and rearing habitat for mho salmon and cut-throat trout.

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Geo. Ulrich Appeal - WaterAct

4) She said that her main concernwas with water quality in connection with the fish habitat. She said any ponding upstream from the habitat area could cause an increase in water temperatures whichwould stress the fish. The fish are very sensitive to any temperatures above 68oF, and are more likely to becanediseased. Higher temperatures also lower the oxygenlevel in the water and increase the grcwth of algae which, whenit dies and decays, uses up oxygen. Silt, during construction work, is also a problembecause it fills in the spaces in gravel beds where the fish spawn.

5) She said that M.E~Lhad done sorrework to create pools on their property in anticipation of a proposed salmonenhancement program. She noted the proje::::thad not gone ahead, presurrably for the sameadverse reasons which Mr. Ulrich's proposed alterations would cause.

(J)MMENTS MADE DURlNG CROSS-EXAMINATlOO OFTHE WATER MANAGEMENT BRANaI.

1) Mr. Farrell said that clearly there could be valid work done on the whole project (i .e. both properties) if evexyonecould agree.

2) Onthe basis that workwas necessary on both Ulrich's property and the M.E.L property in order to get qood drainage, Mr. Ulrich asked Mr. Farrell whyhe had not also given considera- tion to his applications for a land improvementwater licence for the M.E.L property instead of just considering his property alone, and then turning dawnthe application for his property on the basis that by itself it VIasinadequate. Mr. Farrell then stated that Mr. Ulrich' s first water licence application had already been dealt with and been turned downbefore Ulridh's creek alteration application had comebefore him. As to Mr. Ulrich' s current water licence application, he stated that this application had not reached him before he ma.dehis current decision (subject of this appeal).

3) Mr. Ulrich then asked Mr. Farrell if the two applications should not be dealt with at the sametime. Mr. Farrell said that he could not corrmenton the nEWwater licence application because he felt that it maybecomethe subject of a further appeal.

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Geo. Ulrich Appeal - Water Act

DECISION:

The Environmental Appeal Board has considered all of the evidence submitted to it at this appeal hearing, and has decided to approve Mr. Ulrich' s application for an Approval under Section 7 of the Water Act to rrake dlanges in or about the creek, subject to the follcwing conditions:

1) The Approval is valid only if he applies for and is granted a land improvement water licence to have the required alterations for good drainage made to Edinburgh Creek as it passes through the M.E.L property.

2) That the creek bed shall not be made lcwer in elevation than the elevation of the improved creek bed irrmediately dc:wnstreamon the M.E.L property under a water licence mentioned in (1) above.

3) 'Thework shall be done at a time of the year when mirrimumdamagewill occur to the creek's fish population. 'The Fish & Wildlife Branch of the Ministry of Environment should specify that time.

The Environmental Appeal Board directs the Canptroller of Water Rights to issue an Approval to the appellant accordingly.

F. A. Hillier, P. Eng., Olainren, Environmental Appeal Board

December 20th, 1982