City disputes permit it says makes it liable for Current River Hydro actions
'The permit makes the city responsible for Whiteside. That is the essence of this problem'
The City of Thunder Bay, Ont., is appealing to the province's Environmental Review Tribunal saying that a permit related to the operation of the Boulevard Lake dam inappropriately holds it liable for the actions of the Current River Hydro Partnership and its operator, Robert Whiteside.
The director of the Ministry of the Environment issued the Permit to Take Water on April 30 — a permit that sets out terms under which the city may operate the dam.
It includes provisions requiring the city to, among other things, maintain minimum and maximum surface water levels in Boulevard Lake and maintain continuous minimum flow levels immediately downstream from the bypass reach and tailrace of the Current River Hydro generating station, which is next to the dam.
'The permit makes the city responsible for Whiteside'
The city, in a notice of appeal filed with the tribunal, said it can't adhere to the regulations without controlling Whiteside's facility, which takes water through an intake upstream from the dam and discharges it through a tailrace downstream from the dam.
"The city does not have, in its view, control over Whiteside and never wanted control over Whiteside," said Rodney Northey, an expert in environmental law who is acting for the city in the case.
"The permit makes the city responsible for Whiteside. That is the essence of this problem."
The city insists in its appeal that the Whiteside facility is a separate water-taking that requires a separate permit.
Controversy over the city's responsibility for the Current River Hydro Partnership dates back to 2010, when, according to the notice of appeal, the city was charged with three offences under the Ontario Water Resources Act — after pulsing water flows through the generating station during a period of low water levels led to reports of smelt mortality at the mouth of the Current River.
Controversy dates back to charges against the city
The Ministry initially charged both the city and Whiteside, according to the appeal, but subsequently decided that Whiteside was covered under the city's permit and dropped the charges against him — though a Justice of the Peace ultimately acquitted the city on the charge of taking water from the Current River in such a manner as to cause interference with downstream use of water or with the natural function of a stream.
Following the dispute, the Department of Fisheries an Oceans began seeking an amended Permit to Take Water for the city to ensure it complies with the Fisheries Act.
The city has objected to multiple subsequent drafts of the amended permit, arguing that Whiteside's generating plant constitutes a separate facility conducting a separate water-taking.
In its notice of appeal, it is asking the Tribunal to issue a separate permit to Whiteside and to strike sections of the city's permit that it can't adhere to without controlling Whiteside's facility.
City seeking a stay
The city is also asking that the amended permit spell out priorities for the use of the water it takes; earlier permits prioritized recreation and maintenance procedures for Boulevard lake, followed by power generation and operation of the fish ladder, but those are no longer spelled out in the amended permit, and the city is asking for clarity on them.
The city is currently seeking a stay of the amended permit while it awaits a full hearing of its appeal.
The hearing on the stay was scheduled at a pre-hearing conference on Thursday for early August.