Author:
Canada | Publication | September 29, 2020
Section 11 of the Water Sustainability Act (the WSA)1 prohibits making changes in and about a stream, unless authorized to do so (such as by a licence, change approval, or the regulations2). What activities constitute a “change in and about a stream” are not well defined in the WSA, and have created significant uncertainty for those undertaking works that do not directly affect stream channels but may have incidental effects on stream function.
The British Columbia Environmental Appeal Board (EAB) recently released two decisions – Smoluk3 and Ware4 (together, the decisions) – that clarify the meaning of this prohibition. The decisions indicate that works will likely be considered a “change in and about a stream” within the meaning of WSA if, either: they modify the physical characteristics of the stream or stream channel, or they redirect flows relative to the stream at issue in a manner that modifies the “basic character or quality” of the stream.
The WSA provides the following definitions relevant to the prohibition against making changes in and about a stream:
Despite these definitions, there has been substantial confusion regarding exactly what constitutes a “change in and about a stream” that requires authorization. It is often not clear what the WSA means when it refers to a “modification to the nature of a stream,” or activities that “may have an impact on a stream or a stream channel.”
The decisions dealt with appeals from individuals who had built berms to prevent flooding of their properties, which lay within a floodplain along the Nicola River. The orders under appeal in the decisions required the berms be taken down, premised on the determination that the berms constituted unauthorized changes in and about a stream. The EAB had to address whether this determination was correct, recognizing that the entirety of the properties (in addition to the larger surrounding area) was a floodplain, and that, while portions of the berms sat directly on top of the river bank, other parts were set back farther.5
The EAB’s analysis in Smoluk (followed in Ware) addressed: 1) whether the portion of the berm on top of the river bank constituted a work that may have an impact on the stream or stream channel; and 2) whether the part of the berm that was set back further was nonetheless a modification to the nature of the stream.
The EAB began by noting that stream channel is defined in the WSA such that its banks extend above and below the waterway’s natural boundary; “the natural boundary is not helpful in determining the boundaries of the Nicola River’s stream channel.”6
The stream channel’s boundaries, the EAB then determined, are where the stream’s banks end and the floodplain begins. The EAB specified this boundary is delineated by “the point at which the rising ground of the stream bank levels off into the floodplain,” “regardless of whether that is above the natural boundary of the stream, and the level ground of the floodplain.”7
On this basis, the board found that constructing the berm on top of (or contiguous) with the stream’s banks may have an impact on the stream, and changed the pre-existing stream bank by raising its height. Accordingly, the EAB found that “extending or reshaping the wall of the channel may have an impact on the channel,” thereby meeting the second prong (b) of the definition of changes in and about a stream.8
The EAB clarified that the WSA’s reference to “the nature of” the stream means “the basic character or quality,” as opposed to simply “the environment,” and that the “the stream” should be understood to include some land adjacent to the stream channel.9
The EAB noted there is some uncertainty as to how far the “stream” should be considered to extend beyond its channel, recognizing it would be absurd to consider the entire floodplain to be part of the river. However, the board concluded that the berm, built within a few feet of the channel, fell within the meaning of a modification to the “land of a stream.”
The board also found that the berm altered the nature of the stream, as it would likely redirect flood waters away from one side of the river, and thus were an unauthorized “change in and about a stream” per the first prong (a) of the WSA’s definition.10
Moving forward, the decisions indicate that works will likely be considered a “change in and about a stream” within the meaning of WSA if, either: they modify the physical characteristics of the stream or stream channel, as had been done in Smoluk; or, they redirect flows relative to the stream at issue in a manner that modifies the “basic character or quality” of the stream.
Significant uncertainties remain. Different activities and works will have varying potential effects for streams. While the decisions indicate that physically modifying a stream or its channel will constitute an impact, it’s not clear how other effects would be assessed. Also, while the decisions establish that redirecting flood flows back into the river will constitute a modification to its “basic character or quality,” other works or activities that have different or lesser impacts may not.
This indeterminate scope creates regulatory uncertainty for those working near streams. Though it is always possible to seek change approvals, permitting costs and timelines can be significant and an unnecessary burden for works that are not likely to constitute a change in and about a stream. If proceeding without an approval, however, it is necessary to first undertake a careful assessment of the proposed works, to ensure there is not an anticipated effect that is more than incidental.
Publication
At times, disputes arise among such parties as to whether multiple contracts involving a common matter should be read as a single, integrated contract, or as separate and distinct agreements.
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