The proposed project would make all this too dangerous to continue …

Dec 232014
 

Here is our understanding of the current status of the proposed project to construct a hydro-electric generating station at the Bala Falls.

Summary

  1. The proponent still requires several approvals before they could begin construction.
     
  2. Their plans have too high a risk of flooding Lake Muskoka during the proposed construction.
     
  3. There are significant unaddressed marine navigation, public safety, and land ownership issues. Please e-mail your elected government officials to ask that approvals therefore not be provided for this proposed project until these issues are openly addressed and resolved.

 

Detail

Current approval status

Provincial – approval not yet provided
The Ministry of Natural Resources and Forestry has not provided Plans and Specifications approval, which is required under the Lakes and Rivers Improvement Act. This approval, and the subsequent Work Permit, and the subsequent Lease to Construct, is required before the proponent could begin construction.

Municipal – approval postponed
The District Municipality of Muskoka’s Engineering & Public Works Committee passed a resolution on May 21, 2014 to provide the proponent with the required Driveway Entrance permits as of October 20, 2014. However, as shown here (the mark-ups are the amendments passed at the subsequent District Council meeting on June 16, 2014), these permits are subject to several conditions, such as the proponent first providing a performance bond and insurance coverage.

At the December 17, 2014 Engineering & Public Works committee meeting, the proponent requested that some of these conditions be removed and that other conditions be clarified. Also, it may not be clear whether the conditions would need to be met before installing construction fencing. As a result, District staff will prepare a report with recommendations to be considered at a future meeting of the Engineering & Public Works committee, which may then pass resolutions to be considered at a subsequent District Council meeting. So until the proponent either meets all the conditions or District Council passes a resolution to remove conditions, the proponent cannot begin construction.

Federal – confusion
On June 25, 2014, Transport Canada provided approval under the new Navigation Protection Act (NPA), which had just come into force a few months prior. However, as the proponent did not formally “opt-in” to have their entire proposed project assessed, it appears that this approval does not cover impacts to marine navigation on the Moon River or the Mill Stream as these are considered “non-scheduled waterways” under the NPA (scheduled waterways are listed in the Schedule to the Act, all other lakes and rivers are non-scheduled).

We have sent several letters to Transport Canada. For example, marine navigation concerns were detailed in this February 7, 2014 letter for the Moon River, and in this August 12, 2014 letter for the Mill Stream. Transport Canada has not responded to or even acknowledged these concerns, even after we asked MP Tony Clement to advocate on our behalf and request that Transport Canada meet with us to discuss the issues.

While this is rude and annoying, Transport Canada is just following-through on their plans to no longer provide marine safety assessments for non-scheduled waterways. Instead individual citizens or other affected parties would need to initiate (and pay for) a lawsuit if they feel a proponent’s in-water works are affecting their safe marine navigation (makes one wonder what we’re paying taxes for).

For example, Transport Canada’s Navigation Protection Act FAQ states that navigation protection for such non-scheduled waterways is now through the Courts as would be any Common Law issue directly between two parties. As a result, this CBC article notes it is expected there will be many such Court challenges.

  • This article confirms that since the proponent did not opt-in, Transport Canada did not provide the certainty of approval to protect them from such litigation (which should be cause for concern to any potential investors in the proponent’s proposed project).
  • Continuing with the legal observations, this document notes the difficulty of obtaining Court orders before harm has occurred, so the end result could be that if the proposed generating station is constructed then it may not be permitted to operate during the summer due to the danger it would create in the main boating season. This too would be cause for concern to potential investors.

 
Risk of flooding Lake Muskoka
The proponent’s construction plans show they would build a rock-fill cofferdam across the entire Bala north channel and this would be in place and block the flow of all water through the Bala north channel from June through March. Therefore, during this 10-month period, all water flow through Bala would need to go through the Bala south channel, which has a maximum capacity of 252 m³/s (one cubic metre would fill about four bathtubs).

Environment Canada’s Water Office collects and makes available historical water flow data, and this has been analysed to determine whether the water flow through Bala from June through March has ever been greater than the capacity of solely the Bala south channel. Such a high-flow event could happen if there was an unusually early and rapid spring thaw, or particularly heavy and prolonged rain storms.

Examining the actual flow data through Bala for the years 1966 through 2010 shows that the Bala south channel could not have handled the required flow through Bala in the months of June through March a total of 13 times in this 45-year period. This means there is a (13/45=) 29% chance that the proponent’s construction plans would cause flooding of Lake Muskoka.

  • We show this graphically in this article.
  • The most recent flow data has been analysed and this graph summarizes the results, which confirm that there continues to be more than a one in four chance that the proponent’s construction plans would flood Lake Muskoka.

Transport Canada considers this proposed upstream cofferdam to in Lake Muskoka, which is a scheduled waterway and so they should have assessed the possible impacts. We included this flooding concern as item 3) of this November 24, 2014 letter to MP Tony Clement asking his assistance in requesting a meeting with Transport Canada so that we can discuss this and other issues. Unfortunately MP Clement reports that “Transport Canada has declined the meeting”.

The proponent claims that in such an emergency flooding situation they could and would quickly remove their cofferdam. This is simply not credible, for example:

  1. As the high-flow event would likely be due to heavy rains, it would be dangerous to be operating the required construction equipment so close to the flooding waters.
     
  2. The necessary equipment and personnel may not be on‐site when needed.
     
  3. The cofferdam would basically be tons of rocks, dirt, and plastic sheeting, and all of this would be washed down into the Moon River. This would be an environmental disaster as it would destroy the fish habitat.
     
  4. The proponent removing the upstream cofferdam would flood their construction site and this would; destroy much of their completed work, threaten the District’s Muskoka Road 169 bridge and the MNR’s Bala north dam, delay the project by a year (as some of the construction stages can only be done at certain times of the year), and therefore cost millions of dollars. The proponent would clearly not want this, so would likely instead; hope the rain stops, let Lake Muskoka flood, and hope to save themselves time and money by trying to sort it all out in Court, no doubt claiming the flooding was an act of god and a natural disaster (but we’d know it was caused by the proponent’s poor planning). A big question is how insurance companies would treat such a situation.
     
  5. But the biggest concern of all is that the cofferdam would be needed to prevent water bypassing the Bala north dam, through the 60′-wide excavation required for the proposed generating station. That is, removing the cofferdam during some construction stages would result in the uncontrolled flow of much of Lake Muskoka into the Moon River. The water level in Lake Muskoka would drop by 10′ and the Moon River would be flooded like never before. This proponent with no assets, no operations, and no employees would not have insurance adequate to cover this. This would be a widespread financial and environmental disaster. So again, the proponent would not remove their cofferdam during such a construction stage.

The public deserves, but has yet to receive, detailed information on how the proponent would manage this risk to private and public infrastructure, and to the environment.

 

Presentation to Township Council
On December 16, 2014, we had an opportunity to provide this presentation to the Township of Muskoka Lakes’ Committee of the Whole. This summarized some unaddressed marine navigation, public safety, and land ownership concerns – and notes that these could become the municipality’s problem.

As a result of the several delegations that day on the topic of the proposed hydro-electric generating station at the Bala Falls, the Chief Accounting Officer was asked that recommendations for next steps be included in a staff report to be presented and considered at a future meeting. We provided the following as input to this report:

Hello Mr. Harris,

The summary of my delegation to Township Council on December 16, 2014 is that as a result of the recently-adopted Navigation Protection Act, which excludes the Moon River and Mill Stream from Transport Canada’s responsibility, the federal government may be downloading risks and responsibilities to the municipality.

As a result, our suggested Ask is that the Township write a letter to Transport Canada concerning the impacts of the proposed hydro-electric generating station at the Bala falls and asking the following:

  1. Whether Transport Canada has done an assessment of the impacts to marine navigation on the Moon River and Mill Stream, and if so, the detailed results of this, including responding to the questions raised in the attached letters dated February 7, 2014 and August 12, 2014. This response should specifically address canoe navigation:
    • In the Mill Stream, given the velocity of the water below the Muskoka Road 169 bridge.
    • Approaching the Town Docks in the Moon River, given that the proposed generating station would operate at full capacity an average of 21 days each summer.
       
  2. How the proposed construction plans are acceptable given the high risk of flooding Lake Muskoka, for the reasons detailed in the attached letter dated November 24, 2014.
     
  3. How the proponent’s suggested alternate Portage Route #1 could be an identified portage route, given the encroachment and land ownership issue of the boardwalk leading to the Town Docks on the Moon River.

Transport Canada’s responses should be made available to the public for comment, and subsequently; the risks to, responsibilities of, and additional information needed by, the Township of Muskoka Lakes determined.

Until the risks to the Township are known, we request that the Township of Muskoka Lakes not facilitate the construction of the proposed hydro-electric generating station at the Bala falls. For example, the Township should not provide the Driveway Entrance permit from Bala Falls Road to the Crown land beside Purk’s Place.

Thank you, and please let me know if you have any questions.

We look forward to reading this staff report.

 

The Bala Portage
Cartographer David Thompson’s 1837 hand-written maps and journal document that the Bala Portage has always been south of the Bala north falls. In fact the proponent’s own 2009 Environmental Screening/Review report and their own Land Use History report both confirm this. Unfortunately, the proponent’s current Alternative 1A plan (which was first proposed in their 2012 Addendum), would permanently obstruct and eliminate the Bala Portage.

As portages are apparently considered part of marine navigation, the proponent suggested two alternate portage routes in their application to Transport Canada for approval under the NPA. Both suggested routes have significant land ownership and public safety issues, as we detailed in our August 12, 2014 and November 24, 2014 letters to Transport Canada.

An additional issue is that Portage Street is not even public property. As shown by this official Parcel Register, Portage Street is currently owned by the Estate of Thomas Burgess (Portage Street is PIN 48154-0626, as is shown on this Property Index Map).

That is, while Transport Canada apparently claims to have accepted these alternate portage routes, they clearly have not adequately assessed the marine navigation, public safety, and land ownership implications. Their approval seems to be irresponsibly based on incomplete information provided by the proponent.

It therefore appears that Transport Canada’s refusal to accept public input has resulted in important issues remaining unaddressed. Also Transport Canada is downloading risks and responsibilities to the municipality and public, but has not provided any notification or information to understand and assess this. Until the resulting risks to the municipality are understood, we hope the Township and District will not provide any approvals or otherwise facilitate this proposed project.

 

District Councillor Conflict of Interest
Muskoka has a two-tier municipal government. The District Municipality of Muskoka is the upper-tier, and its responsibilities include determining the conditions which the proponent would need to meet for the Driveway Entrance permits needed to begin construction of their proposed hydro-electric generating station. The lower tier is comprised of the following:

  • Town of Bracebridge
  • Town of Gravenhurst
  • Town of Huntsville
  • Township of Georgian Bay
  • Township of Lake of Bays
  • Township of Muskoka Lakes

Of interest is that the Towns of Bracebridge and Huntsville together own more than 76% of Lakeland Holding Ltd., which in turn owns Bracebridge Generation. The proponent has stated that Bracebridge Generation would be the operator of the proposed hydro-electric generating station at the Bala Falls.

Therefore, the Towns of Bracebridge and Huntsville would financially benefit from the operation of the proposed Bala generating station, and as the MNR would be providing an initial 40-year land lease, this benefit would be substantial. Also of interest is that as shown on page 21 of the Lakeland Holding Ltd. Annual Report, in 2013 the Towns of Bracebridge and Huntsville received over $750,000 in dividends as a result of their share ownership of Lakeland Holding Ltd., so this is a significant business and motivator for them.

The concern is that two of the members of the District’s Engineering & Public Works Committee are District Councillors of the Towns of Bracebridge and Huntsville. Also, the Deputy Chair of the District is a District Councillor of the Town of Bracebridge. Clearly these Councillors are conflicted and should be required to excuse themselves from discussion of or voting on matters concerning the proposed Bala generating station.

 

What you can do
There’s much to be concerned about and the next step is to politely and clearly contact your government representatives so they know that the outstanding issues, such as public safety, marine navigation, and risk of flooding Lake Muskoka need to be openly addressed, communicated, and resolved before any approvals or permits are granted.

  • The Township of Muskoka Lakes Mayor and Councillors are listed here.
  • The District Municipality of Muskoka Chair and Councillors are listed here.
  • Parry Sound – Muskoka MPP Norm Miller is here, and you can find other provincial MPPs here.
  • Parry Sound – Muskoka MP Tony Clement is here, and you can find other federal MPs by constituency/name, or determine your constituency (electoral district) by Postal Code.
  • Other government contacts are listed here.

As always, for more information, visit us at SaveTheBalaFalls.com, and if you have any questions or comments, e-mail us at info@SaveTheBalaFalls.com. Let your family, friends, and neighbours know they can sign themselves up to received these e-Newsletters at the top-right at SaveTheBalaFalls.com.

SaveTheBalaFalls.com

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