Men fined $2K for failing to complete repairs on illegal, hazardous Cherry Creek dam

Men fined over illegal dam

Two men have been fined $2,000 apiece after failing to complete repairs on an aging dam built illegally on Cherry Creek more than 50 years ago.

Larry Penner and Robert Edward Simpson pleaded guilty in Kamloops provincial court on Tuesday to one count each of wilfully contravening an order under the Water Sustainability Act. The men are co-licensees on a small water works in the Cherry Creek area.

Crown prosecutor Dan Blumenkrans said a government worker was inspecting Cherry Creek about 10 kilometres west of Kamloops in the spring of 2017 when she noticed a problem — namely a dam, owned by Penner and Simpson, with water rushing over its top.

Court heard the concern is that the dam could fail and create “significant damage” to the environment, including nearby railway tracks.

The dam was deemed a hazard a short time after it was constructed illegally in 1967 by Phil Gaglardi, who was then B.C.’s Highways Minister. The project was the subject of some controversy at the time. Gaglardi was accused of using ministry crews, materials and equipment to build the dam on land he leased for horse breeding.

When it was deemed a hazard in 1968, an engineer with the Kamloops Water District made an order requiring the dam’s sluice gate to remain “fully open,” court was told. While the dam has remained open ever since, sediment buildup over time clogged the gate and created the problem documented by the government worker in 2017.

In the summer of 2019, Penner and Simpson were issued an engineer’s order for “immediate maintenance.” According to the order, described in court as "onerous," the men were required to hire an engineer and a biologist to oversee expensive repairs to the dam.

The work was never completed, leading to the charges to which Penner and Simpson pleaded guilty on Tuesday.

Blumenkrans and defence lawyers Jeff Frame and John Drayton suggested a joint submission for $2,000 fines.

“Compliance with the Water Sustainability Act is an important social principle,” Blumenkrans said.

“There is an element of denunciation and deterrence here in making sure these orders, when issued by the province, are complied with.”

Penner told court he has filed an application to abandon his water license. Simpson, however, hopes to keep using the works.

“You’ve got two co-owners with different ideas,” Drayton, who was representing Simpson, said in court.

“We are negotiating and we continue to negotiate.”

Kamloops provincial court Judge Marianne Armstrong went along with the joint submission and ordered Penner and Simpson to pay $2,000 fines, which are due at the end of the month.

In February of 1968, two Kamloops-area highways workers swore affidavits alleging that they were ordered to complete work at Silver Sage Ranch using government materials and equipment. The workers alleged members of the Gaglardi family were present while the work was undertaken.

Gaglardi said he leased the 300-acre ranch from a company with ties to his children.

In a story in the Feb. 19, 1968, edition of the Kamloops Daily Sentinel, Gaglardi said the work at the ranch was done on an emergency basis. He denied any wrongdoing.

“We do not play around with department equipment and men,” he said in the story. “Everything is above board.”

Gaglardi would later admit to using ministry steel to help build the dam, but referred to the materials as "scraps from the department yard which wouldn't amount to any more than $30," according to subsequent reporting by the Daily Sentinel.

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