2013 05 03 northland to ora h338464 0000 07 218 0028 by Linda Heron

Suite 500, 4342 Queen Street Niagara Falls, Ontario, Canada L2E 7J7 Tel. 905 374 5200  Fax: 905 374 1157  www.hatch.ca

May 3, 2013

Linda Heron Ontario Rivers Alliance 379 Ronka Road Worthington, ON P0M 3H0

Dear Ms. Heron;

Subject:

Response to Kabinakagami River Hydroelectric Project - Part II Order Request

We are in receipt of your letter dated March 6, 2013, regarding the Kabinakagami River Project Environmental Report (ER). We would like to thank you for your supporting introductory comments in your letter, but we also understand that you are requesting a Part II Order under the provisions of the Ontario Waterpower Association’s Class Environmental Assessment (OWA Class EA) and the Ontario Environmental Assessment Act. The Environmental Report issued for review with the Notice of Completion, contains responses to all of your previous concerns. This letter provides our responses to the comments/concerns you have outlined in your recent letter. The attached table identifies your specific comments, concerns and recommendations from the Supporting Information section of your letter as well as the Project’s response. We trust that the responses to your comments will meet with your satisfaction and provide you with the comfort that this important project for Constance Lake First Nation has been planned to meet all the assessment requirements under the Class EA process and will be implemented with the utmost level of environmental protection in mind. We will be pleased to discuss any outstanding concerns you may have at your earliest convenience after reviewing our responses. Yours faithfully,

Noel Boucher NB:gf cc:

T. Richardson, Northland Power Inc. P. Kaminski, Northland Power Inc. J. Mulvale, Northland Power Inc. B. Armstrong, MOE C. Randolph, MOE

H338464-0000-07-218-0028, Rev. 0

Linda Heron Ontario Rivers Alliance May 3, 2013

Table 1

ORA comments and Project Responses

ORA Comment

Project Response 1. Project Sites

ORA finds this to be a serious deficiency since Sites 1, 2 and 7 are already sitting in the cue for development, and will likely be more feasible for ECT hookup once the first four sites have been developed. All environmental assessments and considerations of these sites should have been completed before issuing this ER. These additional sites, could increase many serious environmental impacts, such as an increase in mercury levels in fish tissue, dam safety, cumulative effects, and could result in a significant increase to public health and safety risks. It was especially disturbing to note that these 3 sites were not even included as potential future developments within the “Cumulative Effects Assessment” portion of the ER. These types of glaring errors tend to beg the question of what else might have been missed. The failure to consider the cumulative effects of all seven sites makes a mockery of the ER process. This omission is of very grave concern. These studies must be carried out before the process is allowed to continue. Recommendation 3: All environmental studies must be extended to also include Sites 1, 2 and 7 before any Statement of Completion is issued.

Should Sites 1, 2 and 7 receive a FIT contract at some point in the future, they would be subject to the requirements of the OWA Class EA process and would be required to take into consideration the conditions created by development at Sites 3 to 6. Therefore, the potential effects of development at Sites 1, 2 and 7 are outside of the scope of the current Class EA. Only the environmental studies necessary to support development at Sites 3 to 6 have been completed or have been committed to by Northland Power. Completion of all environmental studies at Sites 1, 2 and 7 (per your Recommendation 3) is not required as part of the current Class EA and would only be necessary if those sites move into a Class EA process of their own. With regard to the Cumulative Effects aspect (per your recommendation 4), given that a complete Class EA would be required for Sites 1, 2 and 7 should they ever enter the development phase and that such an EA would require assessing the cumulative effects of those developments with the currently proposed Sites 3 to 6 (including identification of mitigation measures), incorporating of those developments in the current Class EA Cumulative Effects Assessment is not considered to be required. Further, it is considered unlikely that Sites 1, 2 and 7 will proceed in the future due to local transmission constraints.

Recommendation 4: Sites 1, 2 and 7 must also be included and properly assessed in this ER under the “Cumulative Effects Assessment”.

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response 2. Run-of-River Operation

The ER states, “However, development of a reregulating reservoir at the downstream end of the development was critical to the concept of daily peaking without affecting flow rates downstream. Taking this into account, as well as the lost energy generation potential of the dropped site, new locations for a downstream reservoir were investigated. Two new locations were identified for Site 7 at Sites 7A and 7B (Figure 1.2)”. This was confusing as it brought daily peaking back into question. Recommendation 5: This confusing paragraph must either be removed from the ER, or expanded upon to clearly dismiss any future plans for daily peaking.

The referenced paragraph is from Section 1.6.1 which provides a summary of the alternative development schemes that were considered during the planning process. As noted in the ER, the original 8-facility scheme proposed in the application to MNR for a Direct Site Release did propose daily peaking operations. Following elimination of Site 8 for environmental reasons, as referenced in the paragraph you have quoted, two additional sites were identified for the Site 7 development, to provide a downstream reservoir that would continue to allow daily peaking. However, as noted at the end of this Section, the current proposal only includes Sites 3 through 6, and as made clear throughout the entire Environmental Report, daily peaking is not contemplated. This paragraph is required to be in the report since a discussion of alternatives considered is necessary, but the remainder of the report makes it clear that these facilities are proposed as run of the river facilities with no daily peaking. Therefore, there is no need to revise this section.

3. Climate Change Scientists are predicting an increase in extreme rain and drought events, and a general increase in temperatures. The “Working Group of the IPCC reports in its Third Assessment Report on Climate Change (IPCC, 2001) that the globally averaged temperature is projected to increase by 1.4°C to 5.8°C over the period 1990–2100.” In Noel Boucher’s response (Response), dated, 1 March 2013, he stated, “The Climate Change Mapping Tool suggests that the average annual precipitation in the majority of the Kabinakagami River basin should increase slightly (0 to 10%) over the period 2011 to 2040 for both warm and cold

In response to ORA’s original request on May 14, 2012, Section 7.2.3 in the final ER issued at the Notice of Completion stage provides a substantial re-assessment of the potential environmental effects of climate change acting on the Project. It is acknowledged that future climate change may result in significant negative effects on the existing environment, even in the absence of the Project, due to changes in hydrology and temperature. The ER also concluded that the Project may result in incremental effects on the environment due to potential future climate change scenarios, including increased frequency of operations within the Low

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

weather periods. It should be noted that the uncertainties associated with any type of climate change prediction tools are quite large.”

Water Zone, increased frequency of plant shut down due to low flows and potential increases in water temperature in the head ponds. However, the incremental effects of the Project on the environment were determined to be of low magnitude, and have an uncertain probability of occurrence (given the uncertainty of future climate change scenarios), resulting in the determination that climate change acting with the Project would not result in significant incremental negative environmental effects (over and above the effects of climate change alone).

In checking out the link provided, it must be noted that this is a very gross tool, and the project lies in, or very close to, an area that is predicted to have 0 to 10 % decrease in precipitation during the warm summer months, and an increase of 0 to 10 % during the winter season. The winter melt does little to sustain flow over more than a few months, and a 10% decrease in precipitation could seriously affect the environmental, social and economic sustainability of this Project. This Climate Change Mapping Tool also indicates that average temperatures in both summer and winter are predicted to increase by anywhere from 1 to 4°C during this time period, which would increase evaporation and warming in the head ponds. This is backed up by the Ontario government’s report, entitled Climate Ready, Ontario’s Adaptation Strategy and Action Plan, where it reports that “The boreal forest and wetlands across the Far North region are considered to be one of the world’s largest, most intact ecological systems. The region is projected to be considerably warmer and will receive slightly more precipitation than it does today. These conditions will increase the potential for evapotranspiration (the loss of water through evaporation and through transpiration from plants) and, in turn, may lead to reduced ecosystem soil moisture, lower lake levels and reduced river flow.”

Therefore, while we agree that future climate change scenarios could potentially result in significant changes to the environment (which would also occur in the absence of the Project), our assessment disagrees that the Project has the potential for significant incremental negative effects on these environmental components

ORA submits there has not been sufficient consideration for the implications of climate change over the life of these facilities, especially when scientists are predicting “lower lake levels and reduced river flow” in this area.

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

Recommendation 6: There must be additional information and more rigorous studies to properly assess the potential effects of climate change on the environment, fisheries, habitat, water quality and water quantity, as well as on the future sustainability of Project operations, and its impacts on the downstream First Nation communities. 4. Flow Rates Flow data in this ER is based on 1951 to 1986 Water Survey Canada records. CLFN and local trappers both reported that water flows in the Kabinakagami River seem/appear lower over the last 10 years, and this is backed up by the World Meteorological Organization reporting that 20002009 was the hottest decade on record, with eight of the hottest 10 years having occurred since 2000.

Considerations regarding the feasibility of the Project as it relates to flow availability are outside the scope of the Class EA. It is the proponent’s responsibility to determine the feasibility and accept any associated risks based on the data they use to accept feasibility. Based on the data that is available, the proponent has determined that the Project is economically feasible.

Mr. Boucher’s Response to ORA’s comments was that there was over 35 years of flow data available and its validity was hydrologically confirmed by regional analysis for an additional 25 years. ORA does not accept this response as being valid, as it does not take into account the predictions of climate change. Northland Power has chosen not to collect any recent data, and ORA submits that current and accurate flow data collection is key to determining the feasibility and sustainability of the project, methylmercury production, water quality and quantity impacts, and ultimately the risk to public health and safety, and the riverine ecosystem.

As noted above, and addressed in Section 7.2.3 of the ER, any potential future reductions in flow and/or increases in water temperature due to climate change are not anticipated to have significant negative incremental effects on the environment, due to the Project.

Recommendation 7: Flow data and project feasibility take into account the possibility of up to a 10% decrease in

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

precipitation and a 1 to 4 C increase in temperatures over the next 40 year term of this contract, to determine the environmental, social and economic feasibility of this project. 5. Public Health and Safety (a) Mercury Loading “Increases in mercury levels in fish in the head ponds and downstream reach could result in increased recommended consumption restrictions; however, this effect is anticipated to diminish over time, with existing mercury levels being restored. Consumption restrictions, and associated distribution of this information within the CLFN community and to the general public, will ensure that no long-term effect on human health due to fish consumption occurs.” The ER also states that the Project will result in “some long-term, low-magnitude effects” and “minor net negative effects”. However, it would not be considered minor or low-magnitude to the Fort Albany and Kashechewan First Nations who live downstream of this proposed project, and rely on fish as a main staple in their diet. General populations would have their Walleye consumption limit cut in half, and sensitive populations would be totally cut off. Shorthead Redhorse consumption advisories suggest the general population’s limit would be cut in half, and sensitive populations would be allowed 4 per month for up to 16”, and none over that size. Consumption limits of both types of fish have cut in half for general populations, and sensitive populations are advised to not eat these fish at all.

We disagree that potential increases in mercury in fish in the proposed head ponds and downstream reach of the Kabinakagami River will result in “the loss of fish as a main staple in the diet” of Fort Albany or Kashechewan First Nations members. Even if these community members fish solely within the affected project areas (e.g., within the project head ponds), which is considered unlikely given the 400 km distance of the Project to those communities, fish consumption is anticipated to still be possible, albeit with the consumption restrictions identified in the report. Based on the assessment in the ER, it is considered to be highly unlikely that the Project will result in changes in fish tissue mercury concentration in any areas frequently fished by Fort Albany or Kashechewan community members that would result in the “loss of fish as a main staple in the diet”. The proponents are committed to monitoring mercury levels and ensuring that any consumption advisories that are present are provided to Aboriginal Communities. Commitments to compensate Fort Albany and Kashechewan communities are not considered to be warranted.

Studies also indicate that those fish at the top of the food chain would carry the highest amount of mercury in their fish tissue, and that the “Predicted peak increase factors for 700 mm northern pike ranged from 1.7x to 2.0x”, but there was no

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

baseline data for pike collected to determine their projected mercury levels or consumption restrictions. Further, there was only a cursory mention of mercury in the tissue of Lake Sturgeon. Due to harvesting restrictions no samples were taken, or projections of mercury increase in this long-lived and endangered species. First Nations members however are permitted to harvest lake sturgeon, and carry out fishing downstream, so eating a lake sturgeon would be a very risky undertaking. Mr. Boucher’s Response indicated, “Fort Albany and Kashechewan are the only two downstream First Nation communities. These two communities are over 400 river kilometers downstream of the northernmost of the Kabinakagami River projects, and the Kabinakagami River watershed at the Projects represents less than 3% of the Albany River watershed at Fort Albany and Kashechewan. Therefore it is not expected that there will be any effect on the fishery of Fort Albany and Kashechewan.” Lake Sturgeon, Walleye and Northern Pike are all very mobile and can travel long distances. As the ER states, “Lake Sturgeon travel from the Albany and Nagagami Rivers upstream to spawn, typically at a location below Site 6, but would have access to the base of Site 6.”9 Further, “Fish Hg levels downstream of reservoirs can increase to levels comparable to those in the reservoirs, sometimes 100 km or more downstream.” FAFN people have traditionally travelled and fished the Kabinakagami and Albany Rivers. Recommendation 8: Advisories and monitoring of effects is not adequate. The loss of fish as a main staple in the diet of First Nation people is in no way a “minor net negative effect”, and there must be compensation H338464-0000-07-218-0028, Rev 0 Page 7 © Hatch 2013 All rights reserved, including all rights relating to the use of this document or its contents.

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

provided to the Fort Albany and Kashechewan First Nation communities for the significant loss of this traditional source of food. (b) Dam Failure The ER stated that “The only downstream inhabited area was identified to be the camp at Mammamattawa, which is located just downstream of the confluence of the Kabinakagami River, Nagagami River and Kenogami River. It was determined that the incremental increases in water depth and flow velocity at the camp would not be sufficient to result in any Loss of Life. Safety risks for any users on the water (e.g., recreational fisherman or boaters) would also be present in the event of a dam failure, if humans were present in the downstream reach. However, during a flood of the nature that would have the potential to cause a dam failure, human use of the river system would not likely be occurring. Therefore, this has not been considered to result in a potential for loss of life.” Table 5.39 is a Summary of Significance of Net Negative Effects during Operations does not even mention the potential public safety hazard of dam failure. Dam failure has happened many times in the past, not just because of flooding, but for a multitude of reasons, including natural, mechanical and human caused disasters.

Section 6 of the ER, which assesses the potential effects of accidents and malfunctions (which dam failure is considered to be) assesses the potential effects of dam failure during both high and low flow periods. The quote provided in your letter is only from the high flow period assessment. The low flow period assessment does note that a dam failure under such conditions could potentially result in loss of life to recreational users downstream from the dam. While the ER reports the results of the preliminary dam safety assessment, a full dam safety assessment will be required as part of the application for approval under the Lakes and Rivers Improvement Act (LRIA) administered by the Ontario Ministry of Natural Resources. This review will ensure that the dam is properly designed to minimize the potential for dam failure to protect public safety. The project cannot proceed until the MNR issues LRIA approval, so the full dam safety assessment step is necessary and MNR’s requirements must be satisfied. Elevation of the Project to an Individual EA is therefore not required to ensure that this necessary step occurs.

ORA submits that the power of a flood wave created from the collapse of four, or seven dams, on a steep incline, with each holding back a wall of water 10 meters (40 feet) high, has the potential to cause death and destruction to all in its path for many, many kilometers downstream. As you can see from the Kabinakagami River Profile below [profile omitted from this table], the four dams would be located on a very steep grade/incline. This illustration provides an excellent H338464-0000-07-218-0028, Rev 0 Page 8 © Hatch 2013 All rights reserved, including all rights relating to the use of this document or its contents.

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

view of full gravity of the situation. Dam failure may not be a common everyday occurrence, but it has happened many times in the past. Common types of dam failure include:  Overtopping of embankment dam due to inadequate spillway discharge capacity to pass flood waters;  Faults in construction methods; Geological problems with the dam foundation; Landslides which fall into storage reservoir; and Earthquakes. Recommendation 9: If for no other reason, this proposal must be elevated to an Individual Environmental Assessment to ensure a much more rigorous and detailed environmental assessment is undertaken to ensure dam safety, and resulting public safety, has been properly addressed. 6. Fish Passage In Chief Andrew Solomon’s letter, regarding the necessity for fish passage, it states, “The justification given is that the dam is technically too high for use of a fish passage and that if Constance Lake First Nation doesn’t identify the impact on fish (e.g. Lake Sturgeon) as a “management objective” then this would appropriate.” To which CLFN responded, “Blockage of Lake Sturgeon movements was acknowledged within the Management Objectives developed by CLFN, MNR and DFO, which were made available for public review at the second open house.” ORA makes the case below in section 7, that the Duty to Consult was not met with FAFN or the other downstream communities.

The design of the proposed facilities is not beyond the scale of the Class EA for Waterpower. The table in Appendix B of the Class EA (OWA, 2012) provides “examples of the types of mitigation measures generally considered for waterpower projects” but notes that “alternatives to the measures listed below may be considered and/or implemented as circumstances dictate” and that “Proponent(s) will determine project specific potential effects and possible impact management measures”. The table states an example of a mitigation measure to prevent impediments to fish movement may be to “incorporate fish passage structures into project design where appropriate”. As discussed in the ER, fish passage structures are not feasible for the proposed facility, but further,

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

ORA supports Chief Solomon’s point that, “if the design is beyond the scale of an OWA Class EA project (i.e. it cannot follow the guidelines in the OWA Class EA), then this should be subject to an individual EA; or the design should be re-worked to ensure safe fish passage (i.e., lower dam height).”

they are not considered necessary, or even desirable in this case, to maintain populations of migratory fish species in the Kabinakagami River. DFO, under the Fisheries Act, has the power to require fish passage structures, but they have not stated this requirement for the proposed facilities.

Recommendation 10: If the designs of these proposed dams are beyond the scale of the Class EA for Waterpower and cannot meet its recommendations, then this proposal should either be subject to an Individual Environmental Assessment, or the dams designed to allow for effective fish passage mitigation measures. 7. First Nations Consultation As stated in a letter from Chief Andrew Solomon, FAFN, dated 11 May 2012, “Other than Constance Lake First Nation (CLFN), no other Aboriginal communities were meaningfully consulted (none attended open houses or PICs), and the proponent made little effort to facilitate participation by other First nations, particularly in terms of location of public participation opportunities and a lack of translated materials to local languages (none of the important documents were translated to Cree). Public participation opportunities (open houses and Public Information Centres) were held either in Hearst, ON or at Constance Lake First Nation, which made participation logistically impossible for remote, fly-in communities, especially in light of the fact that no participant funding was provided by the proponent or by the government.” Proponents have a duty to consult with First Nations, as upheld by the Supreme Court. ORA submits that the proponents’ duty to consult has not been met. Chief Solomon also stated, “And this is why we are taking this proposal seriously and have the full expectation that we will be properly consulted and

The comments quoted from Chief Andrew Solomon’s letter (dated May 11, 2012) were made in response to Fort Albany First Nation’s review of the draft Environmental Report issued at Notice of Inspection stage. A response was sent by CLFN to Fort Albany First Nation, as noted in the ER. Since that time, and prior to release of the Notice of Completion, CLFN/Northland Power made numerous attempts to set up meetings and have further discussions with Fort Albany First Nation, as well as Kashechewan First Nation, but nothing came to fruition despite these numerous attempts. Given that CLFN/Northland Power could not delay the issuance of the Notice of Completion any further without risking serious delays in commencement of construction, a decision was made to issue the Notice. However, with this issuance of the Notice (i.e. Notice of Completion), Fort Albany First Nation has had an additional 30 days to review the Environmental Report, which includes revisions made to address their comments at the Notice of Inspection stage. In addition to this and in response to your

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

our Traditional Knowledge will be collected and influence the decision on this project and future projects in the watershed.” FAFN has not had adequate opportunity to take part in the environmental assessment of this proposal and to provide their traditional knowledge as an integral component of the ER.

recommendation #11, CLFN/Northland Power are continuing their discussions with Fort Albany and Kashechewan First Nations as the project progresses beyond the Class EA stage. It is noted that the Kabinakagami River only accounts for approximately 3% of the flow of the Albany River at Fort Albany First Nation, which is located over 400 km downstream from the proposed Projects.

There is a vast difference between being told something is going to happen, as opposed to being consulted as to how and if it should happen? The definition of consultation - “the act of discussing something with somebody or with a group of people before making a decision about it.” ORA submits that the decision was already made, and that insufficient effort was made to consult with First Nation communities, other than CLFN. This type of “consultation” only creates an atmosphere of mistrust. It was stated in the ER that, “the partnership between CLFN and Northland is very important in that it can provide a long-term sustainable source of new income to CLFN if the project is approved.” This is very good, and is as it should be; however, it must not be done on the backs of the downstream First Nations who also rely on these essential resources for their lifesustaining and traditional needs. Recommendation 11: The proponents must be required to properly consult with the downstream First Nation communities, and incorporate their Traditional Knowledge as an integral component of the KRWP ER.

8. Dam Decommissioning The ER must address what is planned for this facility at the time of decommissioning, or in the case of abandonment, but no plans have been set out in this ER.

Given the 50 to 100 year lifespan of the proposed facilities, consideration of the potential future decommissioning is not considered to be warranted in the ER. Should such decommissioning be contemplated in the future, an environmental H338464-0000-07-218-0028, Rev 0 Page 11

Linda Heron Ontario Rivers Alliance May 3, 2013

ORA Comment

Project Response

Ontario is littered with old and derelict hydroelectric and other types of dams that are no longer in use, along with access roads, transmission lines and poles, and that must be monitored and maintained (at a cost, usually to the taxpayer), and ultimately removed for safety and/or ecological reasons. This all takes dollars which taxpayers must not have to pay. Developers reap the rewards for at least the 40 year life of their contract, and portions of these funds must be secured for dam decommissioning.

assessment and permitting and approvals process will be required, likely based on the legislation in place at the time.

If the FIT Program were to be terminated, peaking profits reduced, or costly repairs were needed due to damage caused by ice or flooding, or climate change reduced the amount of water available for energy production, the payback from these small rivers could make facilities like the Kabinakagami River Waterpower Project unprofitable, which could result in bankruptcy and/or abandonment. There is no clear commitment in this ER as to what provisions will be made to decommission the facility and its infrastructure if events such as the foregoing should occur. Provisions for dam decommissioning are essential.

As noted in the ER, CLFN will ultimately be the owner and operator of the proposed facilities through the development agreement in place with Northland Power. CLFN is committed to stewardship of the Kabinakagami River which is within their traditional territory and would undertake the necessary assessment and activities required if the facilities are to be decommissioned at some point in the future.

Recommendation 12: ORA requests that the proponents be required to secure funds up-front for future dam decommissioning, so that if or when the generating station is no longer viable and must be removed, the funds will be in place to do so.