Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: September 30, 2016 CASE NO.: 16-077

PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Applicant: Brian Young (File No. 16-077) Applicant: Mississippi River Watchers (File No. 16-078) Instrument Holder: Enerdu Power Systems Ltd. Respondent: Director, Ministry of the Environment and Climate Change

Subject of leave to appeal: Permit to Take Water issued under section 34.1 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended Reference No.: 2527-A4EMK8 Property Address/Description: 11 Main Street, Almonte Municipality: Town of Mississippi Mills Upper Tier: County of Lanark ERT Case No.: 16-077 ERT Case Name: Young v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties	Counsel
Brian Young	Self-Represented
Mississippi River Watchers	Eric K. Gillespie
Director, Ministry of the Environment and Climate Change	Sarah Kromkamp and Rebecca Crangle
Enerdu Power Systems Ltd.	Janet E. Bradley

DECISION DELIVERED BY MARLENE CASHIN AND HEATHER I. GIBBS

REASONS

Background

1On June 23, 2016, Greg Faaren, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Permit to Take Water No. 2527-A4EMK8 (“PTTW”) to Enerdu Power Systems Ltd. (“Enerdu”). The PTTW allows Enerdu to take water in accordance with certain conditions for the purposes of hydroelectric power generation at Enerdu’s hydroelectric station located at 11 Main Street, Almonte, Mississippi Mills, County of Lanark (“Enerdu Station” or "Station”) for a two-year period.

2On July 14, 2016, under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”), Brian Young filed with the Environmental Review Tribunal (“Tribunal”), an application for leave to appeal the Director’s decision to approve the PTTW. In summary, Mr. Young cited in his application the concerns that the proposed water taking:

• may cause impact beyond the 250-metre (“m”) impact zone included in the Class Environmental Assessment (“EA”);
• ignores the potential impacts on Rapids Clubtail Dragonflies and downstream wetlands;
• contains vague and unenforceable conditions; and
• allows for water level surging, which negatively impacts erosion and rights of other riverside property owners.

3Mr. Young requests that operation of the Enerdu Station be suspended until a “full environmental assessment” is completed.

4On July 19, 2016, 25282086 Ontario Inc. (“Mississippi River Watchers” or “MRW”) also filed an application for leave to appeal the PTTW under s. 38 of the EBR. In summary, the concerns cited in MRW’s application are that the PTTW:

• directly conflicts with an applicable Water Management Plan;
• contains conditions that are vague and unenforceable;
• does not consider a Candidate Area of Natural and Significant Interest (“ANSI”) and Provincially Significant Wetland (“PSW”);
• may cause harm to the endangered Rapids Clubtail Dragonflies and their habitat; and
• may harm the aesthetic quality of the weir.

5In these reasons, Mr. Young and MRW are referred to as the “Applicants”. For the reasons that follow, neither of the Applicants has met the test for leave to appeal the PTTW, and their applications are dismissed.

Relevant Legislation

6Environmental Bill of Rights,1993

38. (1) Any person resident in Ontario may seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument of which notice is required to be given under section 22, if the following two conditions are met:

39. The person seeking leave to appeal has an interest in the decision.

40. Another person has a right under another Act to appeal from a decision whether or not to implement the proposal.

41. Leave to appeal a decision shall not be granted unless it appears to the appellate body that,

(a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and (b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

Issues

7The two issues on these applications for leave to appeal are:

1. whether the Applicants have standing under s. 38(1) of the EBR to seek leave to appeal; and
2. whether the Applicants meet the two-part test for leave to appeal under s. 41 of the EBR (“Leave Test”).

Discussion, Analysis and Findings

Introduction

8Although the Tribunal has considered all of the parties’ submissions, only the most relevant submissions have been summarized in this Decision. In order to avoid repetition, where issues, parties’ submissions or findings related to the applications of Mr. Young and MRW overlap, they are noted as applying to both.

Overview and Summary of Evidence

9Enerdu has been operating a power generation facility at 11 Main Street in the Town of Mississippi Mills, Ontario since the 1990s. The Enerdu Station was originally built in 1842 as a flour mill and part of the original dam is still in use. The heritage building remains on the site. In the 1990s, a new generating station was constructed at the Enerdu Station.

10A number of permits to take water have been issued for the Enerdu Station since the 1990s. The most recent one, dated August 18, 2005 (“2005 PTTW”), was issued for 10 years. Although the 2005 Permit was to expire on August 31, 2015, an extension was granted to allow for an application for renewal to be processed.

11The PTTW that is the subject of these applications allows for the taking of 840,000 litres of water per minute to a maximum of 1,209,600,000 litres per day for a two-year period. It is essentially a renewal of the 2005 Permit, which allowed the same quantity of water taking, with additional conditions primarily related to monitoring.

12Public consultation on the proposed PTTW was open for 30 days, during which time the Instrument Proposal Notice was posted on the EBR Registry and nine comments were received. The Director incorporated specific terms and conditions in the PTTW in response to these comments, as follows:

Additional conditions requiring monitoring of nearby surface water features have been added to this Permit in order to address concerns raised by local stakeholders and the local conservation authority (MVCA) during the public consultation process, and to address concerns the Director is required to consider under the Water Taking and Transfer Regulation (O.Reg 387/04). These additional conditions will remain in force for the duration of the Permit unless otherwise specified by the Director.

13The PTTW was issued June 23, 2016 and the Decision Notice was posted to the EBR Registry on July 4, 2016. The PTTW will expire on August 31, 2018.

14An application to renew an existing permit for the same water taking usually follows an abbreviated process. However, in this case, the PTTW was not issued until additional studies had been undertaken pursuant to an EA for a proposed expansion of the Enerdu Station from 350 kilowatts to 995 kilowatts, which had been submitted by Enerdu in 2012 (“Proposed Expansion”). Sixteen requests for a Part II Order (“bump up”) under the Environmental Assessment Act (“EA Act”) were filed in relation to the Proposed Expansion. The Minister of the MOECC denied the requests, but required that a Heritage Impact Assessment and surface water hydraulic modelling be undertaken in addition to the other studies undertaken as part of the EA. The EA report was accepted with conditions by the former Minister of the Environment in November 2013, and the Proposed Expansion was approved by the MOECC Environmental Approvals Branch on February 10, 2016. Enerdu notes that, in due course, an application for a new permit to take water will have to be filed and issued before the Proposed Expansion can commence operation.

Issue 1: Whether the Applicants have standing under s. 38(1) of the EBR to bring the applications for leave to appeal

15The test for standing under s. 38(1) of the EBR has four parts:

• the applicant must be an Ontario resident;
• the decision in question must be whether or not to implement a proposal for a Class I or II instrument for which notice is required to be given under s. 22 of the EBR;
• the applicant must have an interest in the decision; and
• another person must have the right to appeal under another Act.

Mr. Young

16The Director does not dispute that Mr. Young has standing under s. 38(1) of the EBR to seek leave to appeal. However, Enerdu asserts that Mr. Young’s application relates specifically to “the Proposed Expansion and not to the 2016 Permit relating to the continuation of the existing permit”.

17Despite the fact that Mr. Young’s application includes wording which requests a “suspension of the Enerdu Project until such time as a full Environmental Assessment is completed”, the first phrase of his leave application states, “attached is an appeal for the water taking permit...”. The subject line of the application’s cover letter dated July 12, 2016, references “Permit to Take Water No. 2527-A4EMK8”, which is the permit in question. It is clear to the Tribunal that Mr. Young intends an appeal of the PTTW.

18The Tribunal finds that Mr. Young is an Ontario resident and the PTTW is a classified instrument for which notice was given. Mr. Young provided comments regarding the proposal during the public consultation process, through the EBR Registry, showing a clear interest in the decision. Also, another person has a right to appeal the decision (in this case, the Permit Holder, Enerdu, under s. 100 of the Ontario Water Resources Act (“OWRA”)). As such, the Tribunal finds that Mr. Young meets the four requirements under s. 38(1) of the EBR and therefore has standing to seek leave to appeal.

Mississippi River Watchers

19The Director does not dispute that MRW meets the requirements under s. 38(1) of the EBR for standing, saying:

The Director understands that Mississippi River Watchers is a provincially incorporated entity and its members are residents of Ontario. A Director of MRW provided comments on the proposal through the EBR Registry, thereby demonstrating an interest in the decision.

20Enerdu, however, disputes that MRW has standing to seek leave to appeal on the basis of the group’s status as a legal entity. There is no argument that MRW, as an incorporated entity effective July 19, 2016, is a “person” resident in Ontario. However, the group was not incorporated at the time that comments were solicited through the EBR Registry on the decision to grant the PTTW.

21For that reason, Enerdu submits that MRW cannot be said to have made comments on the decision through the EBR Registry, thereby evidencing an interest in the decision, since it was not a “person” as defined by the Tribunal’s Rules of Practice (“Rules”) during the period of the public consultation process. Enerdu asserts that MRW “was not a legal entity throughout the year long process when the review of the application for the 2016 Permit [the PTTW] was being undertaken”, and “it cannot have generated an interest when it did not exist”.

22Enerdu does not dispute that a director of MRW posted comments on the EBR Registry pertaining to the PTTW, but submits that the individual director of the MRW who did post comments could have sought leave to appeal in his own right but chose not to.

23The Rules apply to applications under the EBR. Rule 3 sets out the definitions that apply to the Rules “unless the context requires otherwise”. An “Applicant” is defined by Rule 3 as follows:

“Applicant” includes a person who brings an application for Leave to Appeal under section 38 of the Environmental Bill of Rights, 1993 or a person who has applied for a development permit that is the subject of a proceeding under the Niagara Escarpment Planning and Development Act. [emphasis added]

24A “person”, in turn, is defined by Rule 3 as follows:

“person” includes a corporation and in accordance with the legislation applicable to a proceeding, a person as defined in section 1 of the Climate Change Mitigation and Low-carbon Economy Act, 2016, section 1 of the Consolidated Hearings Act, section 1(1) of the Environmental Assessment Act, section 1(1) of the Environmental Protection Act, section 1(1) of the Ontario Water Resources Act, section 1(1) of the Pesticides Act, section 2(1) of the Safe Drinking Water Act, 2002 and section 1(2) of the Statutory Powers Procedure Act, a public body as defined in section 1(1) of the Oak Ridges Moraine Conservation Act, 2001 and section 1(1) of the Greenbelt Act, 2005; but does not include an unincorporated association except as permitted under section 1 of the Climate Change Mitigation and Low-carbon Economy Act, 2016, section 1 of the Consolidated Hearings Act, section 1(1) of the Environmental Assessment Act and section 1(2) of the Statutory Powers Procedure Act.

25The Tribunal may be guided by Rules 4 to 10 when interpreting or applying the Rules. For example, Rules 4 and 5 allow for a liberal reading and application of the Rules, or where appropriate, a departure from the Rules as follows:

Interpretation

4. These Rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

5. If it considers it appropriate in the particular circumstances, the Tribunal may depart from these Rules or may waive any provision of these Rules other than a provision which is also found in a statute or regulation.

26In this circumstance, the Tribunal believes that a liberal reading and application of the Rules is appropriate to secure the just and most expeditious determination of this proceeding. The Tribunal finds that MRW is a person resident in Ontario, and was a person when it made its application for leave to appeal the PTTW. It is undisputed that a director of MRW commented on the proposal to issue the PTTW, and s. 38(3) of the EBR provides, “the fact that a person has exercised a right given by this Act to comment on a proposal is evidence that the person has an interest in the decision on the proposal.” The Tribunal therefore finds that MRW, through its director George Yaremchuk, has demonstrated an interest in the Director’s decision. Moreover, under s. 38(3), commenting on a proposal is not a requirement for standing but rather simply evidence of an interest. Finally, another person (Enerdu) has a right to appeal (under s. 100 of the OWRA).

27Enerdu also submits that MRW’s application should be dismissed as it is out of time. Enerdu argues that the last day for filing an application for leave to appeal the decision was July 19, 2016, but that MRW did not serve Enerdu by that date, and that its supporting affidavit was not received by Enerdu until July 22, 2016. Enerdu says that MRW’s application must therefore be dismissed for failure to comply with the required period for making an application.

28The evidence provided by Enerdu on whether or not service by MRW was made by July 19, 2016 is contained in a statement from the affidavit of Ronald Campbell, dated August 8, 2016. In the statement Mr. Campbell said:

Enerdu did not receive the Mississippi River Watcher’s Leave Application until July 21, 2016, and the Leave Application was received not from the Mississippi River Watchers but rather by an email from Sarah Kromkamp at the MOECC. Enerdu did not receive the Affidavit of Priyanka Vittal until July 22, 2016.

29MRW says service of the Notice of Application for Leave to Appeal was made by fax to Enerdu on July 19, 2016. It has provided proof of service on that date to the fax number provided on Enerdu’s Class Environmental Assessment for Waterpower Projects Statement of Completion, through the affidavit of Sarah Quildon, dated August 10, 2016.

30The Tribunal accepts the evidence of MRW on the issue of service, as the affidavit of Ms. Quildon for MRW includes as an exhibit a copy of a fax confirmation, dated July 19, 2016, showing that service was made to fax number 613-253-0071 at 3:43 p.m. on that day. Also included as an exhibit is a copy of Enerdu’s Waterpower Projects Statement of Completion that confirms Enerdu’s fax number as 613-253-0071.

31There is an additional reason for dismissing Enerdu’s objection. The 15-day requirement for filing an application for leave to appeal with the Tribunal arises from s. 40 of the EBR, and is therefore statutory. There is no dispute that the application was filed with the Tribunal within this time frame. However, the requirement for service on other parties “on or before the day on which the application is filed with the Tribunal” arises from Rule 49. For the same reasons set out above, the Tribunal finds it would be appropriate in this case to depart from a strict adherence to Rule 49, as permitted under Rules 4 and 5, to secure a just determination of this proceeding on its merits.

32For the reasons set out above, the Tribunal finds that MRW meets all of the requirements under s. 38(1) of the EBR and, therefore, has standing to seek leave to appeal the Director’s decision to approve the PTTW, and that its notice was filed within the time requirements of the Act.

Issue 2: Whether the Applicants meet the two-part Leave Test under s. 41 of the EBR

The Leave Test

33The Leave Test under s. 41 of the EBR provides that leave shall not be granted unless it appears to the Tribunal that: (a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and (b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

34The Leave Test has been frequently applied by the Tribunal and the courts, and is perhaps best explained in Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 30290 (ON SCDC), [2008] O.J. No. 2460 (“Lafarge”), at para. 45:

At the leave to appeal stage, the appropriate standard of proof is an evidentiary one, i.e., leading sufficient evidence to establish a prima facie case, or showing that the appeal has "preliminary merit", or that a good arguable case has been made out, or that there is a serious issue to be tried. Although worded differently, all of these phrases point to a uniform standard which is less than the balance of probabilities, but amount to satisfying the Tribunal that there is a real foundation, sufficient to give the parties a right to pursue the matter through the appeal process.

35The Tribunal follows the approach set out in Lafarge in assessing these applications for leave to appeal.

36The Tribunal also follows the approach, taken in Guelph (City) v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 25 at paras. 16 and 17, of declining to descend into the merits of the appeal, and focusing instead on those aspects of the evidence and argument directly relevant to the Leave Test:

…A leave to appeal hearing is not meant to be a written version of the ultimate hearing of the merits. While there is inevitably some overlap between the matters that may be raised at the leave stage and those at an appeal hearing, it remains important that the focus remains on the former.

For the purposes of this decision, which turns on key threshold issues such as the proper scope of the decision under review, the Tribunal has declined to descend into the merits of the appeal…

Sub-issue 2(a): The First Branch of the Leave Test under s. 41 of the EBR − Reasonableness

Mississippi River Watchers’ Application

37MRW’s overall position is that it appears that there is good reason to believe that the Director’s decision to issue the PTTW was unreasonable. As was noted above, some of the submissions of MRW and Mr. Young overlap. Where that occurs, the submissions or responses have not been duplicated.

Conflict with a Water Management Plan

38MRW alleges that the PTTW is in direct conflict with the Mississippi River Water Management Plan (“MRWMP” or “Plan”) since the Plan describes the Enerdu Station as a “run-of-the-river” operation, but that Enerdu Station is actually operating as a Modified Peak generating system. A “run-of-the-river” generator station is one that uses only natural flows in the river, as they are available. MRW states that the Enerdu Station has been using the Reach 18 stretch of the Mississippi River (9 km) as a head pond that recharges overnight and is drawn down during the day, due to 0.5 m flashboards that were installed on the weir. It submits that the Enerdu Station varies water levels approximately 0.5 m daily.

39MRW submits that the 2005 PTTW was issued prior to the implementation of the MRWMP in 2006, which states that the Enerdu Station is run-of-the-river. It submits that increasing water levels or storage of water is in contravention of the Plan, and that no reasonable person could approve a PTTW that is contradictory to the Plan.

Condition 5.4 is Vague and Unenforceable

40Condition 5.4 requires that Enerdu “minimize and/or mitigate sudden and rapid draw-down currents in the Mississippi River near the residences located along the Mississippi River in proximity to the site of the taking.” MRW says that it is impossible for any person to know if Condition 5.4 is or is not being complied with, since the provision is not specific enough to tell how the water taking will be controlled to minimize and/or mitigate sudden and rapid draw-down currents. MRW further submits that it is difficult to see how enforcement of the provision is possible.

No Consideration of Candidate ANSI and Provincially Significant Wetland

41Enerdu Station operates in a stretch of the Mississippi River referred to as Reach 18, which also includes the Appleton PSW and the Appleton Swamp Provincially Significant Candidate ANSI. MRW submits that although the MOECC has imposed significant water level data collection conditions in the PTTW in an attempt to gather information on Enerdu Station’s possible impacts on these natural features, the due date for the collected data is December 31, 2017, well after the PTTW has been granted. MRW submits that without this information, the Director does not have the “knowledge to inform himself how changing water levels have affected the environment.” In addition, the data will not be available in time for an upcoming MRWMP review. MRW therefore submits that it is unreasonable for the Director to issue the PTTW without having already conducted proper monitoring.

Harm to Rapids Clubtail Dragonflies and Habitat

42MRW submits that the Director erred when issuing the PTTW in not taking into account the impact on Rapids Clubtail Dragonflies downstream of the Mississippi River Power Corporation (“MRPC”) operation, another facility whose generators are turned on and off due to varying water levels resulting from the Enerdu Station’s operations. The evidence filed by MRW includes MRPC compliance logs that indicate non-compliance following from Enerdu’s operations upstream. MRW says it is unreasonable for the Director to have issued the PTTW without assessing the risks to this endangered species and its habitat.

Harm to Aesthetic Quality of the Weir

43Condition 4.10 of the PTTW requires Enerdu to maintain flow over the falls for aesthetic purposes at the Enerdu weir, and at the falls immediately downstream of the facility and upstream of the MRPC facility. MRW submits that Condition 4.10 does not define a minimum amount of compensation flow required to ensure flow over the falls for aesthetic purposes, nor the configuration of the flow, and it is unenforceable. MRW compares Enerdu’s PTTW with the one issued to MRPC, and submits that the latter “describes in much greater detail the requirements of compensation flows and remedial actions.” MRW submits that the Director was unreasonable to issue the PTTW with uncertain, vague and unenforceable terms such as those contained in Condition 4.10.

Mr. Young’s Application

44Mr. Young raises the concern that no environmental assessment has been completed for the impacts of the PTTW, outside of the 250 m distance considered in the “Class EA Restricted Review” in relation to the Proposed Expansion. He alleges that the inclusion of Conditions 4.1 to 4.1 into the PTTW nonetheless “clearly acknowledges the expanded impact of the facility”. Mr. Young argues that the PTTW was issued based on a “false and misleading Zone of Impact”.

45Mr. Young submits that the Conditions of the PTTW are “open to wide interpretation” and provide no clear and measurable protection for the river environment and local property owners. He acknowledges that most of his objections are referred to in the PTTW, but are “not addressed in a manner which could be enforced”.

46He submits that there should be clear and measurable requirements in Condition 4.10, such as "2 cm of water over the full length of the weir", and a clear statement of “the actions required by the permit holder to ensure constant flow over the weir.” In this regard, Mr. Young’s interpretation of a “run-of-the-river” facility is that no flow interruption can be allowed.

47In addition, he submits that in issuing the PTTW, the Director did not consider its impact on the Appleton PSW and the habitat of the Rapids Clubtail Dragonfly, an endangered species which has habitat downstream from the Enerdu Station. He alleges that the Appleton PSW has been experiencing “massive destruction and die off” due to the current water level management by the Enerdu Station.

48Mr. Young argues that Condition 5.2 “requires clarification” as to how it will impact the Rapids Clubtail Dragonfly habitat downstream, and the upstream users. He argues that it is essential that the discharge criteria from the dam be studied prior to issuing the PTTW, and regulated to protect the habitat of the Rapids Clubtail Dragonfly. He further argues that since the PTTW does not define the Enerdu Station as “run-of-the-river”, one must assume it is a Modified Peaking operation with a large holding pond.

49Mr. Young expresses concerns relating to stream flow for downstream users, damage from erosion and impacts of draw-down currents, addressed in Conditions 5.2, 5.3 and 5.4. He submits the Conditions need clarification because erosion “has been and continues to be” an issue. He asks that “maximum current speeds” be identified in the PTTW, and that continued access to the shoreline by riparian owners should be ensured. Mr. Young believes that surging will be an issue, and he wants clarification to ensure that upstream and downstream will not be negatively impacted by surging.

Director’s Response

50The Director submits that the Applicants have not identified any relevant laws or policies that the Director’s decision fails to consider or reflect, and have not demonstrated any errors in the Director’s decision or filed any expert evidence that challenges the scientific or technical basis for the decision.

51The Director’s position is that neither Applicant has brought sufficient evidence to meet their burden under either branch of the Leave Test. The Director relies on the facts set out in the Faaren Affidavit as well as certain documents attached to the affidavit of Priya Vittal, filed by MRW. The Director notes that the PTTW does not approve water taking in relation to the approved expansion under the Class EA process, which will require another PTTW.

52With respect to the first branch of the Leave Test, the Director submits that the evidence establishes that the PTTW is a renewal permit that was issued following a thorough review, and that the Director considered all relevant laws and policies in his decision to issue the PTTW. The Director further submits that the decision was not only reasonable, but also appropriate, in the circumstances.

53The Director points out that the Enerdu Station operates within overlapping regulatory regimes governing waterpower facilities in Ontario, including the Lakes and Rivers Improvement Act (“LRIA”), the EA Act, the OWRA, and the Endangered Species Act, 2007 (“ESA”), and that the PTTW is only one authorization that relates to its operation. Therefore, the Director says, many of the concerns raised by the Applicants in these leave to appeal applications relate to issues outside the scope of the PTTW that has been issued. The Director says these concerns, including water levels and flows in the Mississippi River, endangered species and the Proposed Expansion, are all governed by regulatory regimes external to the PTTW process. The Director considered these issues and exercised his discretion to issue the PTTW within this broader regulatory context.

54The Director submits that a number of Mr. Young’s comments (i.e. regarding impact to Appleton Wetlands or Rapids Clubtail Dragonfly habitat) relate to water level and flow management in the Mississippi River, which is within the jurisdiction of the Ministry of Natural Resources and Forestry (“MNRF”).

55On the overlap between MOECC and MNRF jurisdictions in this area, the Director submits that he is required to consider a “wide range of matters” for a PTTW, including issues related to water flow and water levels (s. 4(2) of O. Reg. 387/04). In this case, in addition to reports from MOECC staff, the Director sought input from MNRF and the Mississippi Valley Conservation Authority (“MVCA”) as part of a complex planning process. Specifically, the Director argues, this is a PTTW for a water power project that is the subject of a complex water management plan under the LRIA. The MNRF has developed Water Management Planning Guidelines for Water Power to guide this type of decision. The Director submits that he has no jurisdiction over the MRWMP and, therefore, it would be unreasonable for the Director to issue a PTTW that conflicts with, or undermines, the MRWMP. The Director submits:

Similarly, while a PTTW Director is required to consider issues related to the protection of the natural functions of the ecosystem under O. Reg. 387/04, given the comprehensive and specialized legislative regime governing endangered and threatened species managed by MNRF under the ESA, it is appropriate for the PTTW Director to defer to MNRF’s expertise with regards to potential impacts of a water taking project on species at risk.

It is not in the public interest for the Director to attempt to duplicate the extensive and specialized evaluation of these issues that occurs under the LRIA and ESA. It would be unreasonable to expect the Director to conduct a de novo assessment of these issues in light of the specialized regulatory regimes in place.

56The Director distinguishes the case of Robins v. Ontario (Ministry of the Environment), [2007] O.E.R.T.D. No. 15 (“Robins”), where the Tribunal found the Director’s powers are not ousted by other legislation, the LRIA or any water management plan. The Director points to the fact that there have been changes to the PTTW powers since that time. The Director submits:

It should also be noted that, with respect to the Robins case, the Tribunal found that the Director’s decision with respect to the water management planning issues was unreasonable because he did not consider these issues. In this case, the Director considered the issues that were within MNRF’s jurisdiction and reasonably deferred to MNRF’s expertise in these areas and/or the process established through these specialized regulatory regimes. Moreover, with respect to the concerns regarding the Appleton Wetland, the Director took a precautionary approach and required a water level monitoring program as part of the PTTW to further study this issue.

Conflict with a Water Management Plan

57Specifically the Director submits that, although MRW alleges that the PTTW authorizes Enerdu to operate the Station as a “Modified Peak generating system”, this is not the case. The Director says that the PTTW contains no conditions permitting or requiring the operation of the Enerdu Station as a modified peak generating station and to the extent that the Station operates in the alleged manner, it is because of its Operating Plan under the MRWMP, and not the PTTW, and is not in contravention of the MRWMP.

Conditions 5.2, 5.3 and 5.4 are Vague and Unenforceable

58The Director submits that Condition 5.2 is a standard condition included in all surface water permits to take water, and that the Director had no information before him to suggest that specific discharge criteria were required, nor has Mr. Young provided evidence to suggest that such an approach is required.

59The Director submits that the Director’s decision in respect of Conditions 5.3 and 5.4 was that performance-based conditions would address the concern regarding downstream water users and sudden or rapid draw-down currents, without being unduly prescriptive. The Director says that while MRW and Mr. Young may have preferred a different approach, they have not shown that there appears to be good reason to believe that the performance-based approach adopted by the Director does not fall within the range of reasonable decisions in these circumstances.

No Consideration of Candidate ANSI and Provincially Significant Wetland

60The Director submits that the concerns regarding the impact of the Enerdu Station on the Appleton Wetland relate to the water levels as set out in the MRWMP, and not the PTTW.

61The Director submits that the potential impact of the Enerdu Station on upstream ecosystems was discussed extensively during the Director’s review of the PTTW application. The Director submits that he sought and relied on expertise from MNRF and MVCA in respect of this concern and with respect to the Mississippi Valley Field Naturalists (“MVFN”) Wetland Study, but that the experts could not substantiate the proposition that water levels due to the operation of the Enerdu Station were harming the Appleton Wetland or causing the vegetation community change.

62Nonetheless, despite the fact that water levels are set out in the MRWMP and not the PTTW, the Director argues that he took a precautionary approach:

Faced with this information, the Director made the decision that it would be appropriate and precautionary to issue a short-term, two-year PTTW with monitoring conditions that will study the relationship between the use of flashboards and water levels in the river and in the Appleton Wetland. The monitoring required by the PTTW would assist in the review of any future PTTW applications for the Facility.

Harm to Rapids Clubtail Dragonflies and Habitat

63The Director submits that the management and protection of endangered species fall within the mandate of the MNRF, pursuant to the ESA. Enerdu is required to comply with the ESA, and Condition 2.2 of the PTTW confirms that the Permit Holder is not relieved from any obligation to comply with other applicable legal requirements.

64The Director submits that the Applicants have not provided any evidence that the current operation of the Enerdu Station is negatively impacting the Rapid Clubtail Dragonfly habitat, or to support the suggestion that the water management regime established by the MRWMP is insufficient to protect the Rapids Clubtail Dragonfly.

65The Director submits that concerns related to the water levels in the Mississippi River, and potential impact to species as a result, are more appropriately raised in the context of the water management planning process. The Director says, “not only does the MNRF administer the ESA and have expertise regarding both endangered species and water management…, the Minister has the authority to make an order requiring that a water management plan…be amended, and may also at any time amend a plan.” The Director submits therefore, that it was eminently reasonable to rely on the MNRF with respect to the Rapids Clubtail Dragonfly when making his decision to issue the PTTW.

Harm to Aesthetic Quality of the Weir

66MRW and Mr. Young have both suggested that it was unreasonable for the Director not to specify in Condition 4.10 a minimum amount or configuration of compensation flow required for aesthetic purposes. The Director submits that he declined to include a numerical value for minimum aesthetic flow, which would be extremely difficult to verify, but did include a requirement in the PTTW to maintain aesthetic flow at the weir and the falls downstream of the Enerdu Station. The Director submits that there is no reason to believe that the Director’s chosen approach was a decision that no reasonable person could have made.

Enerdu’s Response

67Enerdu submits that the Applicants’ concerns do not relate to the PTTW, which merely permits continuation of the existing approval, but relate to the Proposed Expansion for which no PTTW has yet been issued.

68Enerdu submits that the PTTW is not inconsistent with the MRWMP, which establishes the compliance range for the Station’s water levels, and that the Station will continue to operate in accordance with the approved MRWMP.

69Enerdu submits that Condition 5.4 of the PTTW is not vague or unenforceable. It submits that because the current MRWMP water elevations continue to apply, there is no need for greater specificity. Further, there are specific conditions in the PTTW to ensure stable stream flow and that provide for a duty to notify of any complaints. Similarly, Enerdu submits that the depth of the water over the dam does not need to be specified, as alleged by Mr. Young, and that there will be no impact on the aesthetics of the dam because there is to be no change in flow or in operations.

70Enerdu points to a report prepared by Bowfin Environmental Consulting, conducted as a requirement of the MOECC as part of the EA for the Proposed Expansion, which recognized that the area is potential habitat but no Rapids Clubtail Dragonfly was found in Reach 18. This was confirmed by a further letter dated April 10, 2015. Further, Enerdu adduced a letter from the MNRF, dated July 24, 2015, which concluded that the Proposed Expansion would not likely contravene the ESA with respect to the Rapids Clubtail Dragonfly and its habitat.

Findings on Sub-issue 2(a): The First Branch of the Leave Test under s. 41 of the EBR – Reasonableness

71The Tribunal begins by observing that the amount of water taking has remained the same between Enerdu’s 2005 PTTW and the PTTW in question. The PTTW, which was issued in 2016, includes additional conditions designed to address the environmental concerns raised during the consultation process, and was issued for the limited period of two years.

72Mr. Young suggests that by including the additional conditions, MOECC is recognizing that there are impacts beyond the 250 m zone that was considered in the Class EA (which is applicable to the Proposed Expansion). However, impacts of the Proposed Expansion are not relevant to the appeal of the PTTW, which proposes no change in flow or operation. While Mr. Young and MRW argue that the current flow or operation is causing harm to the habitat of the Rapids Clubtail Dragonfly, they provide no evidence to support this contention.

73The MRWMP’s Operating Plan for the Enerdu Station (Exhibit G attached to the Vittal Affidavit) provides that the Enerdu Station operate within the best management practices or target range, when water is available. According to the Campbell Affidavit at paras. 30-32, the Enerdu Station operates within the compliance band with respect to the lower and upper limit of water level, as established by the MRWMP planning process in 2006. The MRWMP establishes the compliance range of 116.70 m to 118.00 m and the best practices or target range of 117.20 m to 117.70 m for the Enerdu Station.

74Condition 4.10, which the Applicants’ allege is unenforceable and vague, is within the section of the PTTW entitled “Monitoring”. It provides:

4.10 The taking of water for power production shall be configured such that flow over the falls for aesthetic purposes at the Enerdu Weir, and at the falls immediately downstream of the facility and upstream of the Mississippi River Power Corporation facility are maintained at all times. If flows over these falls are not maintained for aesthetic purposes, the Permit Holder shall make changes to the operations of the Generating Station to immediately restore the flows.

If the Mississippi River is not of sufficient flow to maintain flows for aesthetic purposes over the falls at the Enerdu Weir, and at the falls immediately downstream of the facility and upstream of the Mississippi River Power Corporation facility, and no water is being taken for power production, the Permit Holder is not required to augment flow within the river to achieve aesthetic flows over the Middle or Lower Falls.

75The Tribunal accepts Mr. Faaren’s sworn testimony that the flow regime in this section of the Mississippi River is determined by the MNRF through the MRWMP, and that the aesthetic flow is related to this flow as determined under the regime of the MRWMP. The Director nonetheless included Condition 4.10 to require Enerdu to make changes to its operations to maintain flows for aesthetic purposes, where water is available. Neither MRW nor Mr. Young have established that no reasonable person could have issued Condition 4.10 without a more precise numerical value to ensure a specific depth of water to flow over the weir for aesthetic purposes.

76Mr. Young raises specific concerns relating to Conditions 5.2, 5.3 and 5.4, and their resulting environmental impacts downstream, and on upstream water users. Condition 5 of the PTTW is entitled “Impacts of the Water Taking”. The conditions in that section provide:

For Surface-Water Takings

5.2 The taking of water (including the taking of water into storage and the subsequent or simultaneous withdrawal from storage) shall be carried out in such a manner that streamflow is not stopped and is not reduced to a rate that will cause interference with downstream uses of water or with the natural functions of the stream.

5.3 The discharge of water shall be controlled in such a way as to avoid erosion and sedimentation. The Permit Holder shall undertake shoreline protection measures if damage from erosion occurs as a result of the water taking.

5.4 The taking of water shall be controlled in such a manner as to minimize and/or mitigate sudden and rapid draw-down currents in the Mississippi River near the residences located along the Mississippi River in proximity to the site of the taking.

77The Tribunal accepts the Director’s submission that Condition 5.2 is a standard condition included in all surface water permits to take water, and finds that the Applicants have provided no grounds to find its inclusion in the PTTW to be unreasonable.

78The Applicants’ concerns with Conditions 5.3 and 5.4 relate to impacts on riverbanks and to riverside residents from changes to water flow, and in particular alleged harmful impacts resulting from the use of flashboards being added to the top of the weir and across the river to maintain normal summer levels. The assertion by MRW and Mr. Young that Enerdu Station should be considered a “modified peaking operation” is not borne out because the MRWMP, which was finalized after Enerdu’s 2005 PTTW was issued, clearly defines it as a “run-of-the-river operation” despite its use of flashboards, and the Plan takes into account varying water levels (see Exhibit G attached to the Vittal Affidavit at page 96). Mr. Young’s concerns regarding the impacts of “surging” arising from the Proposed Expansion of the Enerdu Station is not relevant to the PTTW that is the subject of this leave application.

79The Tribunal agrees with the point outlined in the MNRF letter to the Director of October, 2015 that the “elevation of the water surface caused by the dam” has been the concern expressed (in this appeal by MRW and Mr. Young), not the quantity of water taken by the turbines and dam under the PTTW.

80Mr. Faaren has testified that the conditions added to Enerdu’s PTTW reflect an intention to address concerns expressed to him through the consultation process, while at the same time giving deference to the MNRF and its role in water flow management, and applying its specific expertise.

81The Tribunal finds that the Director was entirely reasonable in including additional monitoring requirements in Condition 4, and requirements relating to potential impacts of the water taking in Condition 5 of the PTTW, as a result of the additional studies conducted in response to Enerdu’s application for the Proposed Expansion, and in response to public input from numerous sources including postings on the EBR Registry. The Applicants have not established that there appears to be good reason to believe that no reasonable person could have used the performance-based approach adopted by the Director, rather than a prescriptive approach, in respect to these Conditions.

82MRW argues that it is unreasonable for the Director to have issued the PTTW without having additional studies and information regarding how the operation of the Enerdu Station could impact the Appleton Wetland and the Appleton Swamp ANSI. In this regard, MSW relies on a report by the Appleton Wetland Research Group of the MVFN dated August 11, 2014 (“AWRG Report”) and an addendum to that report, dated March 20, 2015 (attached to the Vittal Affidavit). The AWRG Report concluded that the decline of the maples in the Appleton Wetland was “a direct result of using the Enerdu flashboards”, and recommended that the MRWMP be amended to restrict such use. The AWRG Report notes that the MRWMP recognized the presence of the Appleton Wetland PSW and ANSI on Reach 18, but that the Management Plan “appears to have overlooked that raising water levels to the extent allowed in the Enerdu operating plan would kill the trees in the Appleton Wetland.”

83On this point, the Tribunal agrees with the Director that the MVFN was aware of and understood the distinctive roles and interplay between the MRWMP and the PTTW, since the recommendations set out in the AWRG Report all relate to amendments to the MRWMP.

84The Tribunal accepts the Director’s evidence that he carefully considered the Appleton PSW and the Appleton Swamp ANSI in issuing the PTTW, as set out in the Faaren Affidavit. Further, the Tribunal finds the Director was reasonable in relying on MNRF and MVCA expertise, as outlined above.

85The Director’s submissions addressed Robins, an earlier Tribunal decision which considered the relationship between permits to take water and the LRIA in the context of water power. In that case, the Tribunal found that the Director’s decision with respect to the water management planning issues was unreasonable because he did not consider these issues. In this case, however, the Tribunal finds that the Director considered the issues that were within MNRF’s jurisdiction and reasonably deferred to MNRF’s expertise and/or the process established through these specialized regulatory regimes. The Tribunal finds that the Director’s decision to issue the PTTW with a required water level monitoring program to further study the issue was entirely reasonable in the context of this complex regulated riverine environment. There is evidence that the Director turned his mind to all aspects of the PTTW that were within his jurisdiction, and relied on the particular expertise contributed by the MNRF and MVCA.

86Mr. Young has expressed his preferred changes to the PTTW, but has not specifically addressed the elements of the leave to appeal test, namely laws and policies that the Director failed to consider. The Tribunal finds that neither MRW nor Mr. Young has established that no reasonable person could have made the decision to issue the PTTW for a two-year period with the additional conditions that were included.

Overall Conclusion on Sub-Issue 2(a) − Reasonableness

87The Tribunal therefore finds that it does not appear that there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind could have issued the PTTW in question. Further, the Tribunal finds that limiting the PTTW to two years, during which time additional monitoring occurs, represents a reasonable approach to preventing environmental harm in this case.

Sub-issue 2(b): The Second Branch of the Leave Test under s. 41 of the EBR – Significant Environmental Harm

88Both branches of the Leave Test under s. 41 of the EBR must be satisfied in order for leave to be granted. Since the first branch was not satisfied, it is not necessary for the Tribunal to analyze the second branch.

DECISION

89The Tribunal finds that neither of the Applicants has satisfied the test for leave to appeal found in s. 41 of the EBR, in relation to Permit to Take Water No. 2527-A4EMK8. The applications for Leave to Appeal are dismissed.

Applications for Leave to Appeal Dismissed

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

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Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248