Rocky Island Lake: Alleged Contravention of the Lakes and Rivers Improvement Act
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Introduction
In October 2002, two EBR applications were submitted to the Ministry of Natural Resources by local residents who had noted, and photographed, the essentially drained condition of Rocky Island Lake earlier that summer. The removal of water from the reservoir had killed game fish such as pickerel, destroyed habitat, and endangered wildlife dependent on the ecology of the lake. The draining of the lake disrupted shoreline activities and public enjoyment, and made boat launch impossible. The applicants were also concerned that the muddy bottom of the reservoir was dangerous to moose and other wildlife.
Alleged Contravention
The first of the EBR applications requested an investigation of the operations of Great Lakes Power, Inc., alleging contraventions of sections 16 and 17 of the Lakes and Rivers Improvement Act (LIRA).
Request for Review of LIRA
The second application requested a review of the same two sections of the Act, as well as s. 23, alleging that the Act fails to achieve its stated purposes, which include the provision for:
- “the protection and equitable exercise of public rights in or over the waters of the lakes and rivers of Ontario”;
- “the protection of the interests of riparian owners”; and,
- “the management, perpetuation and use of the fish, wildlife and other natural resources dependent on the lakes and rivers.”
Water Management Plans
The applicants were aware that in June 2002, the ministry had modified the Lakes and Rivers Improvement Act to state that the minister “may order” operators of waterpower sites to prepare Water Management Plans (WMPs), but they felt that the assurance of minimum water levels under the plans should be mandatory rather than at the discretion of the minister. (See also Water Management Planning Guidelines for Waterpower.)
Hydroelectricity and the Mississagi River
The Mississagi River is located in the Sudbury and Algoma Districts north of Lake Huron, and has its origins at Biscotasi Lake, some 110 kilometres northeast of the City of Elliot Lake. The river runs southwest through Mississagi River Provincial Park to Rocky Island Lake, which is the primary reservoir for hydroelectric production on the Mississagi River. Further south, the river passes through more parkland, then through a series of four hydroelectric generating stations and a number of lakes and reservoirs, prior to emptying into the North Channel of Lake Huron just west of the Town of Blind River. The river supports a range of aquatic ecosystems and human uses, including swimming, canoeing, angling, seasonal and permanent residences, and tourism operations.
Between 1950 and 1970, four hydroelectric generating stations were built on the Mississagi River. In May 2002, shortly after the Ontario government opened the electricity market to competition, Brascan Corporation purchased all four of the generating stations and related control structures on this river system from Ontario Power Generation, Inc. The four generating stations on Rocky Island Lake have a combined generating capacity of 488 MW and are operated as peaking facilities, which means that they store water in their reservoirs for use during peak electricity demand hours. Great Lakes Power/Mississagi Power Trust, which is a subsidiary company of Brascan Corporation, operates these facilities.
2002 Heat Wave
During the summer of 2002, a long heat wave caused a surge in electricity demand and pushed hydroelectric prices sharply upward. Demand pushed all facilities, including those on the Mississagi, to produce as much power as continuously as possible. As a result, the water level of Rocky Island Lake continued to drop until, by July 2002, it was essentially empty.
Ministry Response
MNR denied both of the applications. In its response to the applicants who requested an investigation of Great Lakes Power, Inc., MNR stated that the control of water levels in Rocky Island Lake in the summer of 2002 did not relate to any alteration, improvement or repair of a dam by Great Lakes Power, and, therefore, that s.16 of LRIA would not apply. The ministry also noted that LRIA’s s.17 applies only to the minister, so that contravention by the producer would not be possible. MNR did not, however, dispute that the water level had dropped and caused the conditions described by the applicants.
The ministry provided a thorough response to the application for investigation. It looked not only at the LRIA but also at possible contraventions of s. 35(2) under the Fish and Wildlife Conservation Act (FWCA), Fisheries Act and other federal legislation. Prior to the receipt of the EBR application, ministry staff flew over the affected area (in July and August 2002) and conducted three ground inspections in order to assess possible contraventions. MNR pointed out that it no longer enforces the habitat disruption sections of the federal Fisheries Act. At the suggestion of the ECO, the applicants subsequently sent a copy of their application material to the federal Office of the Auditor General so that the issues raised would be subject to the environmental petition process under the Auditor General Act. The petition resulted in an investigation by Fisheries and Oceans Canada into possible contraventions of the federal Fisheries Act.
Although MNR provided a response to the EBR application for investigation within the prescribed 60-day period, the ministry was one month late in its response to the EBR application for review. In denying this application, MNR stated that it did not believe a review needed to be undertaken of the referenced sections of the Lakes and Rivers Improvement Act (LRIA) 'because “harm to the environment is unlikely due to the actions already recently taken by the ministry.” Specifically, MNR pointed out that amendments to the LRIA were completed in June 2002, that comprehensive guidelines for the preparation of Water Management Plans for Waterpower were approved by the minister in May 2002, and, finally, a water management planning process for the Mississagi River has recently been initiated. However, the water management plan for the Mississagi River will not be completed until December 31, 2006.
In its response to the applicants, the ministry also indicated that in the fall of 2002, MNR’s Sault Ste. Marie District Office had established a committee of representatives from Great Lakes Power, the Mississagi First Nation, recreational users and the commercial tourism industry. This committee will identify issues resulting from the recent operations of the system and make recommendations. These parties have negotiated a voluntary operating plan to bridge the period from the present until December 31, 2006, when the new water management plan will take effect. Despite these assurances, the operator of the four Great Lakes Power generating stations on the Mississagi has stated that this summer the company will again be operating “within the legal limits, as we did this past year.”
ECO Comment
In November 2002, the ECO issued a special report entitled: “Climate Change: Is the Science Sound?” In this report, we presented the case that human-induced climate change is in fact occurring, and that a “business as usual” approach is no longer an option. In its 10-Year Outlook report of 2003, the Independent Electricity Market Operator, which oversees electricity generation capacity in Ontario, has recognized the broader problem of demands on hydroelectric facilities, stating that dry seasons or extensive operation of peaking facilities to meet high demand over a period of time, such as in 2002, can result in “insufficient water available in storage reservoirs to support required levels of operation later within that period.”
In addition to the potential for climate change issues, the Rocky Island Lake incident underscores the potential for problems resulting from changes in ownership of hydroelectric facilities. Against this background, MNR’s introduction of water management planning is very timely and affords the potential for the natural resource values of river systems to be put on an equal footing with the economic values of hydropower generation.
| This is an article from the 2002/03 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2003. "Rocky Island Lake: Alleged Contravention of the Lakes and Rivers Improvement Act." Thinking Beyond the Near and Now, ECO Annual Report, 2002-03. Toronto, ON : Environmental Commissioner of Ontario. 128-131.
