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379 Ronka Road Worthington, ON P0M 3H0 (705) 866-1677 LindaH@OntarioRiversAlliance.ca OntarioRiversAlliance.ca

28 February 2012 The Honourable Michael Gravelle Minister of Natural Resources Suite 6630, 6th Floor, Whitney Block 99 Wellesley Street West Toronto, Ontario M7A 1W3 E: Minister.mnr@ontario.ca Dear Minister Gravelle: Re:

Challenges in the Site Release Process Meeting Request

Ontario Rivers Alliance (ORA) is a Not-for-Profit grassroots organization with a focus on healthy river ecosystems all across Ontario. ORA members represent numerous organizations such as CPAWS-Ottawa Valley, Friends of Temagami, Paddle Canada, Whitewater Ontario, along with many stewardships, associations, and private and First Nations citizens, who have come together to ensure the rash of waterpower proposals currently going through the approvals process are environmentally, economically and socially sustainable. In the course of addressing these proposals ORA members have experienced a lack of transparency, cooperation, openness, and access to information from the two ministries most responsible for protecting the province’s environmental and natural heritage, the Ministry of Environment (MOE) and Ministry of Natural Resources (MNR). This blanket of secrecy has created an environment of mistrust, and opened the door for the developer to take a proponent led process to the extreme. I am writing on behalf of ORA to request a meeting with you to begin a dialogue in the hopes of resolving these and other issues that have taken on a sense of urgency, with a total of 87 waterpower proposals currently going through the approvals process, and over 2,000 sites1 earmarked for potential development. Ontario has an extensive history of hydroelectric dam development, where the damage inflicted by these dams has led to the extinction and extirpation of many aquatic species. First Nations have tried to warn decision makers in the past, but were ignored. The first defaunation 1

2005 Hatch Acres report, entitled, “Evaluation and Assessment of Ontario’s Waterpower Potential” P-18, Table 4.2

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of Ontario streams was due to the mill dams that caused the extinction of Lake Ontario Salmon, and doubtless many other lesser migratory populations that weren’t so well documented; and twentieth century hydro dams devastated many other species such as the American Eel and Lake Sturgeon. The numerous problems with hydroelectric have not gone away, and these new operating strategies devised to take advantage of peak demand have only served to increase the potential for negative impacts.

Overview of ORA Concerns: FIT Program Encourages Exploitation of Riverine Ecosystems As Xeneca Power Development Inc. (Xeneca) stated in their 2009 letter to OPA2 regarding the FIT Review, “Based on some preliminary analysis by Xeneca, the peaking premium amounts to less than 10% on total revenue and only if it can be exploited fully (i.e. most sites can only exploit peaking partially for environmental reasons). Given the benefit of peaking to the system, a greater peak shifting incentive should be considered. It will encourage a new plant design to exploit daily peaking to the optimum (i.e. installation of larger generators, lower capacity factors, and more energy produced during peak hours).” The current FIT Program with its 35% peaking bonus is the only thing making many of these smaller rivers look even remotely viable for hydroelectric development, and encourages developers to “exploit daily peaking to the optimum”. It has come to our attention that peaking and cycling will be used several times daily when flows permit, and this would occur during the low flow seasons when water levels and flows are the lowest and the rivers and their ecosystems the most vulnerable. A Lack of Trust and Confidence I will speak of Xeneca because this company has the bulk of the waterpower proposals in northern Ontario, and represents most accurately the challenges and concerns we are experiencing with this proponent led process. After ORA submitted the Ivanhoe River Part II Order Request, we asked Xeneca to show their willingness to cooperate with us by providing their Environmental Reports (ER) in an unsecured format to aid stakeholders in preparing our comments. However, not only were unsecured documents not provided, but shortly after ORA informed Xeneca of our intent to comment on the Serpent River Four Slide Falls GS ER, Xeneca demonstrated its unwillingness to cooperate by withdrawing a significant amount of information from the Serpent River ER. Appendixes D and E were removed from Xeneca’s website and replaced with reduced versions, where 116 pages were removed: a. Appendix D, Public Consultation – Xeneca removed 78 pdf pages; and b. Appendix E, Aboriginal Consultation – Xeneca removed 38 pdf pages. Xeneca removed essential documentation from this ER, and put into place a system of time consuming barriers and restrictive red tape to access it – a 30 day comment period does not 2

28 July 2009 letter from Xeneca Power Development Inc. to Mr. Jason Chee-Aloy, Director of Generation Procurement, OPA – P6&7, (No. 5) attached. 2

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allow time for filing a Freedom of Information Application. This information is vital and must be included in all future ERs. Green-Washing Many of these hydroelectric proposals are using cycling and modified peaking operating strategies, and are being green-washed with the "Green Energy Label". But this type of hydroelectric generation is not green, as water can be held back in holding ponds for up to 48 hours, is high impact, experimental on these smaller Ontario rivers, has numerous negative impacts3 4, and is in fact "Dirty Energy".

Issues to Discuss: ORA wishes to discuss the following issues at a meeting with you: 1. Moratorium on Waterpower Development: Place an immediate moratorium on all waterpower proposals currently going through the EA process, until integrity of the EA process has been restored and strengthened, to ensure proposals are environmentally, ecologically, and socially acceptable and sustainable. 2. EBR REGISTRY NUMBER: 010-7895: ORA made a submission on 13 April 2011 in response to EBR posting 010-7895 – Site Release Policy, and has had no feedback to date. ORA is requesting an update. 3. Site Release must Include Public Consultation: Under current legislation, Site Release is awarded without any public input or consultation. Therefore, many of these projects have been years in the process, and Site Release usually issued before the public is even made aware of a proposal. ORA requests that open public and municipal consultation and approval be a mandatory part of the Site Release process, and that municipalities are given the power to reject a “Green Energy” Application before it even proceeds on to the Site Release and EA process. 4. Site Release Must be Awarded Before Beginning EA: It is a waste of taxpayers’ dollars for the proponent to start an EA on a proposal for which Site Release has not yet been issued, unless perhaps “No” is not a possible answer in the Site Release process. 5. Fish Passage: ORA requests that the ECO’s recommendation of fish passage for all new and existing dams be included in the LRIA. “MNR should require, through approvals issued under the Lakes and Rivers Improvement Act (LRIA), that all new dams facilitate natural passage of fish by installing fish ladders or other similar structures. In addition, MNR should require all existing dams to be retrofitted with fish ladders or other similar structures to facilitate safe and natural migration along the course of all Ontario's streams and rivers, through LRIA approvals for improvement or repair to dams.”

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Environment Canada. 2001. Threats to Sources of Drinking Water and Aquatic Ecosystem Health in Canada. National Water Research Institute, Burlington, Ontario. NWRI Scientific Assessment Report Series No. 1. 72p. Page 69 – 15. Impacts of Dams/Diversions and Climate Change 4 Kerr, S.J. 1995. Silt, turbidity and suspended sediments in the aquatic environment: an annotated bibliography and literature review. OMNR, South Region Science & Technology Transfer Unit Technical Report TR-008. 277 pp. 3

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6. LRIA - Minimum Flow: The 1977 Lakes and Rivers Improvement Act (LRIA) offers provisions to protect the riverine ecosystem with its guidelines - “Generally two-thirds of the stream-flow at any time should be maintained downstream, unless conditions warrant otherwise.”5 The ERs issued to date by Xeneca have only offered .5 to as much as 5 CMS for environmental flow at their proposed dam sites – a far cry from two-thirds flow. We are facing developers whose primary focus is to make profits, and the generous FIT Program with its 35% peaking bonus encourages maximization of energy generation - at the expense of the riverine ecosystem. MNR staff have made it very clear to Xeneca that Q80 is acceptable to them, but Xeneca has not been listening. Why is this company allowed to advance forward through the EA process when they are not meeting the requirements of Agency staff or the LRIA guidelines? This is a waste of taxpayers’ dollars. 7. Cumulative Effects: Many of the current proposals involve numerous dams on a single river system, as well as other pressures such as mining, waste water treatment facilities, industry, agriculture, etc… This must all be taken into account when assessing the cumulative effects. An Ontario Divisional Court ruling known as the “Lafarge Decision” requires cumulative effects be considered and addressed before waterpower approvals are issued. Stakeholders are looking for assurance that there is a strong commitment to the precautionary approach, with positive contributions to sustainability, and real consideration of all the "cumulative affects", both current and future, on our riverine ecosystems throughout Ontario. 8. Climate Change: Scientists predict extreme rain and drought, and dwindling water quantity will become more and more of a problem. The Environmental Reports submitted by Xeneca contained only one short paragraph to report on the considerations made for climate change, and they did not even mention the increased incidence of extreme drought and water shortages. Reduced water flow and levels have been the norm in recent years and are likely to worsen if predictions are correct. There must be much more thought, credibility, and weight assigned to climate change when considering the sustainability of waterpower proposals and their possible impacts. 9. Power and Mandate Returned to Agency Staff: MNR and MOE staff must be given back their powers and mandate to process these proposals using their specialized training, best practices, and judgement. Agency staff must be left to do their jobs, and not be pressured or repressed by upper management or developers to do anything other than act in the best interests of the natural environment, riverine ecosystem and the people of Ontario. This was pointed out in ORA’s Part II Order requests for Serpent River Four Slide Falls GS6, and The Chute Ivanhoe River GS ER7, where two MNR staff were reported in a letter dated 27 May 2011, where P. Gillette wrote to Richard Linley, MNR, “This is most obvious at the Serpent River sites, but Fishery Management Plans seem to be issued in a

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Lakes and Rivers Improvement Act, s 4.3.3(1) Serpent River, Four Slide Falls GS ER - ORA Part II Order Request, 2011-09-28, 2. Contempt of Process, P5, 2(a)(iii) 7 Ivanhoe River, The Chute GS ER – ORA Part II Order Request 2011-08-08, 2. Contempt of Process, P5, 2(a)(vi) 6

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negative manner at all our FIT sites. The two key individuals raising these issues are Sandra Dosser and Greg Deyne”; and “The Wider “Ask” is staffs are asked to stop using policy to try to stop or delay projects and to work toward reasonable and positive solutions. This shifts the focus away from Xeneca spending money on addressing “ghost” issues (e.g., after two years of study we do not find certain species, but the MNR insists they are there with no proof and pushes for more study – this is the lochness monster affect) or using policy and process in a inappropriate way that is bordering on abuse of process. Instead, if we work together these resources could be used to produce positive environmental affects and better data collection for the benefit of the province; e.g. funding the stocking of trout lakes.”8 10. Consultants for Studies be Chosen by MOE and MNR: Mandate MOE staff to choose consultants to undertake studies and testing, at the expense of the proponent. This would aid agency staff in having much more confidence in field study results. 11. Streamlining the Approvals Process: The draft agreement between Ontario Waterpower Association (OWA), MNR and MOE to streamline the EA process even more would serve developers but not the interests of the people of Ontario or our Environment. An advocacy group for developers must not be allowed to set policy which goes against our Environmental Bill of Rights. A developer’s timelines and interests must not take precedence over policy, procedure, provincial regulations, the public, and most of all the health and well-being of the community, the environment, and the riverine ecosystem. 12. Terminate the Proponent Led Process: The Proponent led process has placed the fox in charge of the chicken coop and must not be continued. It has caused some developers to treat the public, the environment, and to a fair extent the regulators, with contempt, in the apparent expectation that the EA will be rubber stamped. MNR and MOE staff must be given back their powers and mandate to process these proposals using their specialized training, best practices, and judgement. 13. Funds up Front for Dam Decommissioning: Power Generation Agreements must include mandatory up-front funds for dam decommissioning, so that if for some reason the generating station is no longer viable the funds will be in place to cover costs for removal. There is a very good likelihood of this due to climate change, the possibility of a withdrawal of the FIT program, or in the event of major damage to the dam caused from ice and/or flooding - this must be made a condition for approval. This expense must no longer fall on the shoulders of the taxpayer, but be borne by the developer. 14. Dam Removal: Since the ecological benefits of dam removal are increasingly widely recognized in North America, most conspicuously in re-allowing the movement of migratory fish, preventing the still water amplification of populations of invasive organisms such as Zebra Mussels, and restoring natural flow regimes and water temperatures, will your government: i. Undertake a review of the ecological harm inflicted by impoundments, dams, and weirs throughout Ontario; ii. Work towards the removal of dams which do not provide benefits that compensate for the ecological harm they cause; and 8

Serpent River, Four Slide Falls GS ER, Appendix C, P-91, 2011, May 27 – Patrick Gillette to Richard Linley, MNR 5

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iii. Ensure that no ecological harm is imposed by building new hydroelectric dams until maximum benefit is obtained from all existing dams. 15. Discontinue Grant Funding: Currently some developers are offering government grants to First Nations rather than a share in the equity and proceeds from these projects – this must change. The public must not bear these costs when the developer will be reaping large revenues from these projects. Developers must share the proceeds with FN. 16. Stakeholder and Intervener Funding: Government funding must be made available to cover costs for stakeholders wishing to take part in the regulatory, approvals, and public consultation process. 17. Adopt the United Nation’s Millennium Ecosystem Assessment Approach: This would require an environmental, ecological and economic cost benefit analysis using a real ecosystem services approach to environmental valuation, to explicitly recognize and value the broad range of benefits that we and future generations would receive both from the environment in question, and from any potential development. 18. Ontario Waterpower Association (OWA): OWA is a developers’ advocacy group with the monetary backing of deep pocketed developers and has a powerful voice to advance their Agenda with this government. OWA has had a detrimental influence over government policy, planning and regulation by way of their proponent led process, and fast tracking of permits and approvals, without adequate review and consideration by the regulatory agencies. This is clearly not working in the best interests of the natural environment or the people of Ontario, and is not acceptable. OWA’s agenda must not take precedence. 19. Terminology: There must be an overarching government glossary of recommended terminology and definitions to standardize the way government and proponents communicate in their reports and studies. It is difficult enough for stakeholders to understand the terminology, let alone when it is constantly changing – even within a single report, i.e. modified peaking or modified flow or cycling; CMS or m3/s or Q80 or 2/3 flow; run-of-river or true run-of-river; etc….. 20. Adherence to MNR’s Statement of Environmental Values (SEV): ORA requests that MNR adhere to its Ministerial SEV, which states, “the Ministry’s mission is to manage Ontario’s natural resources in an ecologically sustainable way to ensure that they are available for the enjoyment and use of future generations. The Ministry is committed to the conservation of biodiversity and the use of natural resources in a sustainable manner.” MNR must go back to its guiding principles of sustainability.

Summary We all want Green Energy, but let's ensure we are implementing authentic and fully sustainable green energy projects, and that our democratic and environmental rights are enshrined in all the Acts, Regulations, Programs, Policy and Process that regulate it. It is unfortunate that "green" initiatives are undertaken as if they were "ordinary business opportunities," without acknowledgement of the environmental complexity, capacity, and 6

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impacts. The perception given to the concerned public is that these hydroelectric proposals are the epitome of “green” when in fact it couldn’t be further from the truth. What is sorely needed in the minds of government is the holistic understanding that these negative impacts on our environment and ecosystem are closely tied to the health and safety of the people of Ontario. Our ministries must not lose sight of the section of the Class Environmental Assessment Act that states decisions are to be made for “the betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.”9 This current Environmental Assessment Act is broken, has lost its vision of betterment, and is not doing the job that was originally intended. The Green Energy Act and Green Economy Act and all that its Agenda entails, has eroded the policies, processes and regulations designed to protect our natural environment and democratic rights, and has served to give away billions of dollars’ worth of irreplaceable Crown assets to private developers. ORA is committed to working with this government to resolve the above issues and concerns, and looks forward to meeting with you at your convenience. Respectfully,

Linda Heron Chair, Ontario Rivers Alliance Cc: The Honourable Dalton McGuinty, Premiere of Ontario - DMcGuinty.mpp.co@liberal.ola.org The Honourable Christopher Bentley, Minister of Energy - cbentley.mpp@liberal.ola.org The Honourable Jim Bradley, Minister of Environment, Minister.moe@ontario.ca Andrea Horwath, NDP MPP - ahorwath-co@ndp.on.ca Peter Tabuns, NDP MPP - tabunsp-co@ndp.on.ca France Gelinas, NDP MPP - fgelinas-co@ndp.on.ca John Yakabuski, PC MPP - john.yakabuskico@pc.ola.org Vic Fedeli, PC MPP - vic.fedelico@pc.ola.org Gord Miller, ECO - commissioner@eco.on.ca Theresa McClennaghan, ED & Counsel, CELA - theresa@cela.ca EcoJustice - toronto@ecojustice.ca Linda Williamson, Dir. of Communications, Ombudsman Ontario - lwilliamson@ombudsman.on.ca

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Environmental Assessment Act (EAA), R.S.O. 1990, c E.18

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The Honourable Minisster Gravelle