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1E Membersof the Board in Attendance Were Province of Ministry of ENVIRONMENT AL APPEAL BOARD British Columbia 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 ..... /2 - 2 - 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 Fraser Valley. "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. n. - 3 - 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 . ./4 - 4 - 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 .... /5 - 5 - 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. .... /6 - 6 - 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.
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