The Blue Eyes Brook ponds: A wildlife bonus or a water source hazard?
By Andrew Bennett
A four year old water license application has resurfaced as BC’s Water Stewardship Division sought to clean out its files, but as Rossland maintains its objection to the application in the absence of an engineer’s report, the landowners question the city’s motivation.
A small tributary called the Blue Eyes Brook runs south into Topping Creek—a major water source for Rossland—but before the brook reaches the creek, it passes through several properties including that of Rosa Jordan and Derek Choukalos just north of Red Mountain Resort on the west side of the highway.
The brook runs into the so-called Blue Eyes Swamp on their property and, about 100 feet away, a gully runs parallel to the brook and also drains into the swamp. “The gully holds water during spring runoff and through part of the summer, drying up around August,” Jordan said. From there, the swamp drains into Topping Creek, including an intake to the city’s reservoirs about 150 metres beyond the property line.
Several years ago, Jordan said, “we thought it would be nice if we threw up two small dikes across the gully and diverted some water from the Blue Eyes Brook into them.” She said that deer, moose, mallards, and other wildlife were accustomed to coming to the gully to drink, and this diversion would allow the animals to drink there “right through to freeze-up.”
Because water from both the brook and the gully drain into the same swamp, Jordan figured there was no net effect of a small water line running from the brook to the gully. “We didn’t see that it would be a problem,” she said. “We were not using the water. There was no less water than before, minus only what the animals might drink from the ponds. The only difference is that without the diversion, the runoff goes on for about four months before the ponds dry up. With the diversion, the ponds stay filled until they freeze.”
According to Jordan, the diversion may have gone unnoticed by the city except for two major issues at the time: “We were engaged in a community-wide effort to prevent the city from incorporating our property, along with the properties of some 35 others in this area,” she said, “and we were among those fighting to prevent a golf course from being built in Rossland’s watershed.”
“As a result of our opposition to these two city objectives,” she said, “the city contacted various regulatory agencies in an apparent effort to find some type of regulatory violation on our property.”
The city planner said this was not the case, however, noting that the diversion and ponds were brought to the city’s attention by the concerns of a downstream property owner that the city was required to investigate.
Jordan clarified that Gideon Wiseman, then the owner of the Creekside condos, had noticed that the Blue Eyes Ponds on his property were clouding up and alerted the city who found that a berm had broken on Phil Johnson’s settling pond upstream of Jordan and Choukalos. Johnson quickly repaired the berm and the turbidity issue resolved, but in the meantime public works had discovered the diversion on Jordan and Choukalos’s property.
Jordan said the first she learned about the issue was from the Interior Health Authority (IHA) who said they had been asked by the city to determine if her septic tank could potentially contaminate Rossland’s water supply.
The Water Stewardship Division came next and the inspector told her and Choukalos to apply for the diversion. “We immediately removed the line and made the application to divert the water,” she said.
“The septic is located precisely in the location approved by the [IHA] in 1993,” Jordan said. “And that location is not in the same gully or anywhere near the ponds and the Blue Eyes Brook, nor in any place where it could conceivably contaminate Rossland’s water supply.”
Jordan claims this fact was verified by public works who visited the site, but the city planner and the mayor at the time, Gordon Smith, maintained that the septic system was a potential source of contamination. “We ignored these claims, since there was absolutely no evidence of this nor any reason to believe such contamination was even possible, given the location of our septic system,” Jordan said.
The city planner didn’t say there was a problem with the septic, but rather, “I don’t know if there is.” He clarified that he is not in a position to determine whether or not the diversion could create an issue with the septic tank, even if he were to visit the site, as city regulations require such judgement calls to be made by a professional hydrologist.
“The tiny diversion from the Blue Eyes Brook into our small man-made ponds did, however, provided the city with evidence of a violation,” Jordan said. “Namely, we had failed to get a license to divert the water. We hadn’t realized a license was needed because it was a non-consumptive use and the water ultimately ended up in the same place.”
To get a license, however, all downstream users needed to agree. “This included the City of Rossland,” Jordan said, “and it was obvious to us that, given the tension between ourselves and the city, there was no way that the senior planner was going to agree. So we abandoned the idea and let the ponds revert to swamp in the fall, just as they did before.”
“Flash forward four years, to this fall,” Jordan said. The Water Division contacted her to say the application was still pending and they wanted to close the file.
“I said we’d like to bring a trickle of water from the brook to our ponds, but I didn’t think we could get approval from the city,” Jordan said. “The official said he’d come and take a look, and maybe if the Water Division sent the application to the City, it would get approved.”
On Sept. 13, the water allocation officer of the Kootenay Boundary Region, Jim Brown, wrote to the city that he had inspected the site and the ponds’ overflows would “re-enter the natural water course,” as part of a “flow through system.” He wrote, “There will likely be some water losses due to evaporation and stream bed losses, but those are difficult to determine and should be minimal.”
The planner responded to Brown on Oct. 26 that the city’s drinking water intake is located just downstream from the proposed diversion, that the property is within the Topping Creek watershed and, as such, is in a “Development Permit area for environmental sensitivity.” A city bylaw for best practices in this area “directs that registered professionals certify that all works conducted in this area comply with provincial regulations.”
Maturo also wrote that it is “unclear” whether the combination of the septic system, the diversion, and the two man-made ponds “may pose a threat to the quality of the water.” He concluded that the city would require a “certified hydrological analysis,” before allowing the proposal to proceed.
Jordan called the reference to potential contamination from the septic system an “old red herring.” “There is no evidence that our septic system—which is over the hump from the [brook and gully], drains in the opposite direction, and has been in use for over 17 years—has ever contaminated the Blue Eyes Swamp.”
She concluded, “No way are we going to pay for a hydrologist’s report to disprove a non-existent problem. By requiring this unreasonable level of ‘proof’ of non-contamination, [the city] was able to block us from making this very minor improvement to our property—an improvement intended for, and only for, the benefit of local wildlife, which is being hemmed in and harassed by habitat destruction on all sides of us.”
