THUNDER BAY — A tribunal has rejected a request by the City of Thunder Bay to require Robert Whiteside to get a separate permit to take water to operate his generating station below the Boulevard Lake Dam.
In 1985, Whiteside and the city negotiated a 40-year lease for city land where he installed a small hydro plant, and a pipe that brings water to the turbine.
The Ministry of the Environment never issued his company, the Current River Hydro Partnership, a permit to take water.
Over the years, however, it did issue permits to the city authorizing the city to impound water from the Current River to maintain Boulevard Lake "for recreational, hydroelectric generation and fisheries enhancement."
After the ministry issued the city a new PTTW last April, the city expressed concern with some of the permit's new terms.
It also objected that the permit, in its view, improperly makes it responsible for the control of the Whiteside facility, and liable for the actions of the operator.
The city's concerns date back to 2010, when the ministry charged it with offences under the Ontario Water Resources Act after reduced water flows through the dam jeopardized the spring smelt spawning run and left some fish stranded out of water.
The Environmental Review Tribunal, which received submissions on the water permit issue at a hearing in August, has noted that "Over the last few years, the relationship between the City and Mr. Whiteside has deteriorated."
At the hearing, the ministry maintained that the water piped to the generating station is water "already taken" by the city to create Boulevard Lake.
It said the city is the only party taking water within the meaning of the OWRA, "as it is the city that owns, controls and operates all components of the dam, including the intake pipes and knife gates that are built into the dam and that control the entire flow to the Whiteside facility."
Whiteside told the ERT that it is the city-operated dam that impounds all the water of the Current River in order to maintain the lake as the first priority, and that only excess water flows through sluiceways to a by-pass and fish ladder, and through gates to his generating station.
He said his facility is supplied with water from the dam and does not take water independently of the dam's structure and operation.
The parties, the tribunal said, disagree on who ultimately controls the withdrawal of water for the generating station.
"The city stresses that, because it is not legally entitled to control the facility's day-to-day operations, Whiteside is in control. [The ministry] and Whiteside, in turn, focus on the city's ability to limit the flow to the facility or shut it off entirely by closing the knife gates," the ERT said.
The ministry also pointed to the terms of the 1985 lease which "contemplate changes in the operations of the dam on the initiative of the city, suggesting that the city also has legal control over the flow through the intakes."
The tribunal found that, to differing degrees, both parties can and do physically control the amount of water that flows to the power plant, but "whether any water flows through the intakes is ultimately up to the city."
The city, it added, retains "significant legal control" over the dam as a whole, and over the intakes to the Whiteside facility in particular.
In finding that his operation does not constitute taking water within the meaning of the law, the tribunal dismissed the city's motion to force Whiteside to get a permit.
The ERT will hold another hearing in late November and December to consider the city's appeal of some of the requirements of its own amended permit from the ministry.
