Follow-up actions arising from the federal environmental assessment and approval of the Oldman River Dam project

Petitioner:

Martha Kostuch, Vice-President
The Friends of the Oldman River
Box 1288
Rocky Mountain House
Alberta T4T 1A9

FEDERAL GOVERNMENT

RESPONSE TO THE OLDMAN RIVER DAM PROJECT

ENVIRONMENTAL REVIEW PANEL REPORT

2.1

The Oldman River dam is located 10 kilometres northeast of Pincher Creek, downstream from the confluence of the Crowsnest, Castle and Oldman Rivers in southwestern Alberta. The dam is owned and operated by the Province of Alberta and the proponent is Alberta Environmental Protection. The dam was constructed to impound water for water management, flood control, erosion control, flow regulation, conservation and recreation.

2.2

Both the Department of Fisheries and Oceans and the Department of Transport were considered initiating departments for the purposes of EARPGO when the original assessment was started. The Supreme Court of Canada's decision of January 1992, however, found that the Department of Fisheries and Oceans does not have an affirmative regulatory duty in relation to the project and is not, therefore, an initiating department. The Supreme Court of Canada found that an approval under subsection 5(1) of the Navigable Waters Protection Act (NWPA) does trigger a requirement to do an environmental assessment. Since the Oldman River at the site of the project is a navigable waterway, an approval from the Minister of Transport to construct the Oldman River dam is required under the NWPA. Consequently, the Department of Transport, which administers this statute, is the initiating department for the assessment.

2.3

The Department of Transport, with input from the Departments of Agriculture, Environment, Fisheries and Oceans, Health, Indian Affairs and Northern Development, Natural Resources (Forestry), and Justice has prepared this response to the Panel's recommendations on behalf of the federal government. Many of the Panel's recommendations fall within provincial jurisdiction. The Department of Transport and colleague departments have worked with Alberta Environmental Protection, representing the provincial government, to address these issues.

2.4

The federal approval under subsection 5(1) of NWPA, issued on September 18, 1987 was quashed by the courts. A new approval for construction of the dam will incorporate conditions to mitigate project impacts and to implement ongoing monitoring.

2.5

The federal government has already indicated that it rejects Recommendation 1 which calls for decommissioning of the dam. The federal government generally supports the other Panel recommendations and has taken or will take the actions set out in this document to respond to each of the recommendations under consideration (i.e., 2 to 23). The federal government has no authority to implement recommendations which fall within provincial jurisdiction.

#

Recommendation

Government Response

Responsible Department(s)

1

Decommission the Dam: Decommission the dam by opening the low level diversion tunnels to allow unimpeded flow of the river

The Federal Government rejects this recommendation. The federal government believes that the operation of the dam can be made environmentally acceptable and therefore concludes that decommission is not required

No response required

2

Conditional approval: If recommendation 1 is not accepted and the Oldman River Dam is to be operated, attach stringent conditions to the approvals granted by the Federal Government. These conditions include the proponent reaching an agreement with the Peigan First Nation and making a long term commitment to mitigating the many environmental impacts of the project.

Two federal departments have authority to grant approvals for this project: the Department of Transport with respect to the Navigable Waters Protection Act and the Department of Fisheries and Oceans with respect to the Fisheries Act. Approval under section 35 of the Fisheries Act does not in this case require an environmental assessment under EARPGO.

Fisheries and Oceans: The Canadian Coast Guard (CCG) was transferred to DFO from Transport Canada in 1995. Thus, since that time, the Navigable Waters Protection Program (NWPP) program has been administered by DFO. All further references in the petition to the NWPA approval will be addressed by DFO.

While the Federal Government is facilitating the process of negotiations between the Peigan First Nation and the proponent, these negotiations could take some time and the Department of Transport may approve the permit before negotiations are completed.

Indian and Northern Affairs Canada to reply under separate cover

Appropriate mitigation requirements that relate to federal areas of jurisdiction will be encompassed in the conditions of NWPA approval. Subsection 35(2) of the Fisheries Act provides the Minister of Fisheries and Oceans with the authority to authorize harmful alteration, disruption or destruction of fish habitat. Conditions considered necessary for the protection of fish and fish habitat, related to the operation and maintenance of the Oldman Dam, will be addressed through an authorization pursuant to subsection 35(2) of the Fisheries Act.

Fisheries and Oceans: Conditions deemed necessary for the protection of fish and fish habitat were included in the NWPA approval and Fisheries Act authorization as committed to in the 1993 Federal Response to the Panel Report.

The Department of Fisheries and Oceans will work closely with the Government of Alberta on a joint federal/provincial committee to develop appropriate mitigation and monitoring programs to protect fish and fish habitat. The Department of Fisheries and Oceans will also monitor and determine the effectiveness of the proponent's mitigation measures for fish and fish habitat in order to ascertain compliance with mitigation requirements contained in the Fisheries Act authorization, through on-site visits, cooperative field investigations and by consultation with provincial fisheries officials. (See further details under Recommendation 3)

Fisheries and Oceans: DFO participated on the provincially led Environmental Advisory Committee (EAC) as well as two other committees that provided information on monitoring and mitigation to the EAC; the Fisheries Technical Working Group (TWG) and the Monitoring Committee, which in turn made recommendations for implementation of mitigation measures and compensation for unavoidable impacts.

3

Create an Environmental Management Committee and give it full authority to mitigate and continue mitigating the major environmental impacts, especially those affecting fish, wildlife and riparian ecosystems. Programs and activities of the Environmental Management Committee should be open to public scrutiny.

The Federal Government is of the opinion that an Environmental Management Committee, to be called the Environmental Advisory Committee (EAC), could be an effective way to advise on the environmental effects of the project.

Fisheries and Oceans: EAC was already in place at the time that the Federal Response was prepared. It was determined that it should be maintained in its present form to address this recommendation.

The Department of Transport is closely involved with the Province of Alberta in organizing the EAC based on the Local Advisory Committee already established by the proponent. The EAC will be composed of representatives from the six groups identified in the Panel's report as the local community, the Peigan First Nation, Federal Government departments, the proponent, downstream water users, and environmental groups.

The Department of Transport will participate as a member of the EAC. The Department of Fisheries and Oceans will participate on a joint federal/provincial committee with Alberta in order to assess the mitigation works already in place, to provide advice on additional mitigation efforts and to assure the proponent's long-term commitment to agree upon mitigation plans. Other Federal Government specialists department such as the Departments of Natural Resources (Forestry) and Health will be available to assist the federal/provincial committee.

DFO participated on the EAC, the TWG and the Monitoring Committee. The technical committee and Monitoring Committee provided information for the EAC which in turn made recommendations for implementation of mitigation measures and compensation for unavoidable impacts.

Environment Canada: “EC provided input to the federal member of the EAC on an ongoing basis when requested to do so. Input focused on advice and information on mitigation and monitoring related to hydrology and wildlife concerns within the scope of EC's capacity and mandate. (e.g. hydrometric data, sediment data, advice on migratory birds and species at risk). ”

NRCan: To date, the assistance of NRCan (Forestry) has not been requested by the proponent. NRCan remains open to assisting if called upon.

Health Canada: There is no evidence within HC to indicate that the Department was ever approached to assist the EAC/Environmental Management Committee.

However, HC continues to be available to assist the EMC/EAC by providing scientific and technical advice and information as required.

4

Establish a negotiating process by which the proponent and Peigan First Nation can reach an agreement on mitigation and compensation for environmental, social and cultural impacts of the project on the Peigan First Nation and Peigan Reserve. The Federal Government supports the establishment of a negotiating process by which the proponent and the Peigan First Nation can reach an agreement on mitigation and compensation for impacts of the project on the Peigan First Nation and the Peigan reserve.

The Federal Government is currently facilitating this negotiating process and the Department of Indian Affairs and Northern Development will act as a facilitator,

Some discussions to this end took place before the release of the Panel's report. Agreement in principle has been reached to establish two negotiating committees to resolve the outstanding issues:

1. Environment, Health and Safety Committee,
2. Socio-Economic Development Committee.

Representatives from the provincial Department of the Solicitor-General, the federal Department of Indian and Northern Development and the Peigan First Nation are now negotiating guidelines for these committees. The Departments of Transport and Indian Affairs and Northern Development will co-chair the federal advisory group to these negotiating committees. The negotiating committees will be supported by other federal departments.

Indian and Northern Affairs Canada to reply under separate cover

5

If the proponent fails to comply with Recommendations 2, 3 and 4 then decommission the dam in accordance with Recommendation 1.

Decommissioning of the dam would be considered only under subsection 6(1) of the Navigable Waters Protection Act.

No response required

6

Hydrology: If the project is de commissioned, assess the extent and frequency of flooding on lands upstream of the dam to determine the best uses for the lands and to design appropriate reclamation projects.

The Federal Government has rejected decommissioning under Recommendation 1. Decommissioning of the dam would be considered only under subsection 6(1) of the Navigable Waters Protection Act.

No response required

If the project is operated, undertake monitoring and analyze the data to define more clearly hydrologic changes and mitigation options. Such a monitoring, evaluation and management program should be a condition of any approval granted by the Federal Government on this project

The second part of the recommendation is being met. Alberta and the Federal Department of Environment are monitoring and analyzing hydrological changes and mitigation options. The Federal Government will encourage continuation of this program. The Navigable Waters Protection Act approval will require the proponent to carry out the evaluation, management and monitoring of hydrological changes as related to navigation.

Environment Canada: “EC has provided hydrometric and hydrological science support to ongoing monitoring and mitigation from 1993 to the present-day. This support was made available when requested by the Federal representative on the EAC and to DFO and provincial representatives on related working group. EC has also provided similar support on an ongoing basis to INAC in support of negotiation of an agreement with the Peigan (Piikani) First Nation and in support of the follow-up EIA program that has resulted from that agreement.”

7

Water Allocation for conservation: If the project is operated, apply a condition to any approval issued by the Minister of Transport that a reserve of water for conservation purposes (such as minimum fisheries flows and flows sufficient to ensure protection for riparian cottonwood forests) be set aside. It is further recommended that the determination of minimum flows for conservation purposes be assigned to the Environmental Management Committee.

Apart from its effect on Indian lands, fisheries and navigation, water allocation is not a federal responsibility. The proponent has established and integrated into the operational plan for the dam instream flow requirements for water quality and riparian cottonwood forests and associated vegetation. The proponent has stated that it is required by its license issued under the Alberta Water Resources Act to review the operational plan and to modify it as needed. The Navigable Waters Protection Act approval will require the proponent, subject to the concurrence and/or participation of the Peigan First Nation, to carry out the evaluation, management and monitoring off cottonwood forests that relate to federal responsibilities.

Fisheries and Oceans: As a result of the recent settlement agreement between the Peigan First Nation, Government of Alberta and the Federal Government, the “Monitoring and Follow-up Environmental Impact Assessment Program” (FEIA) was launched in 2003. Six working groups have been established – Group #5 addresses cottonwoods, wildlife and migratory birds on the Reserve.

Indian and Northern Affairs Canada to reply under separate cover

Pursuant to subsection 35(2) of the Fisheries Act, the Minister of Fisheries and Oceans will issue an authorization containing conditions considered necessary for the protection of fish and fish habitat, related to the operation and maintenance of the Oldman dam.

Fisheries and Oceans: Conditions deemed necessary for the protection of fish and fish habitat and navigation were included in the NWPA approval and Fisheries Act authorization as committed to in the 1993 Federal Response to the Panel Report.

8

Efficiency of Water Use: The Federal Government should support and encourage research, development and implementation of techniques for improved efficiency of water use.

The Federal Government, through the efforts of various department and agencies, is currently conducting considerable applied research on efficiency of water use and has several related technology transfer programs under way at the Department of Environment's National Hydrology Institute in Saskatoon and at the Department of Agriculture's Research Stations in Lethbridge and Swift Current.

AGR: There was no specific role for AAFC in the ongoing assessment of water quality in the Oldman River related to the construction of the Oldman Dam. However, AAFC has an active ongoing research program, centered at the Lethbridge Research Centre, to assess the effects of agricultural practices on water quality in the Oldman River Basin.

Environment Canada: EC continues to advocate the need to improve water use efficiency in all sectors (http://www.ec.gc.ca/water/en/manage/effic/e_weff.htm) Specific applications of this concept in the agricultural sector in the Oldman River basin should be available from AGR (http://www.agr.gc.ca/nlwis/main_e.htm) and from the province of Alberta (http://www.waterforlife.gov.ab.ca/). While progress in this area has been made since the Oldman Dam Panel recommendations were made, it is not possible to explicitly link these accomplishments to specific follow-up to the Panel report. That should not in any way diminish the fact that positive results have been achieved in water conservation science and outreach in the Oldman River basin and beyond.

9

Water allocation to the Peigan First Nation: Withhold federal approval for the project until an agreement between the Peigan First Nation and Alberta on water allocation is reached. In the interim, reserve and not allocate to others, the maximum amount of water that might be allocated to the Peigan First Nation.

Alberta is working with the Peigan First Nation to establish a negotiation process to address a number of issues including water allocation. The Federal Government supports this effort. Resolution of all these issues is expected to take some time. The applicable federal legislation does not confer authority to withhold approvals until such agreement is reached.

Alberta has the authority to allocate water, and has designated for 6,000 of new irrigation development on the Peigan Reserve. Alberta has stated that this allocation will be reassessed in the year 2000 along with all limits established within Alberta's irrigation expansion policy.

Indian and Northern Affairs Canada to reply under separate cover

10

Riparian Cottonwood Forests: If the project is operated, then monitoring, evaluation and management of riparian cottonwood forests should be a condition of any approval granted by the Federal Government to ensure the survival and continued health of these ecosystems.

Management of the cottonwood forests and other related ecosystems requires the cooperation of Alberta, the Federal Government (for cottonwood forests on federal lands) and municipalities as well as associations and private landholders who control the majority of the affected land. The Environmental Advisory Committee and Alberta Environmental Protection will promote this cooperation. The Navigable Waters Protection Act approval will require the proponent, subject to the concurrence and/or participation of the Peigan First Nation, to carry out the evaluation, management and monitoring of cottonwood forests that relate to federal responsibilities.

The proponent has indicated its willingness to protect the riparian habitat by means of a comprehensive study of the cottonwood forest and the appropriate modification of the reservoir-operating plan to ensure its maintenance. The Federal Government supports the goals of the “Conservation and Management Strategy for Riparian Forest in Southern Alberta” which has recently been produced by the World Wildlife Fund and the Alberta government. The Department of Natural Resources (Forestry) is prepared to participate as required by the proponent.

Fisheries and Oceans: As a result of the recent settlement agreement between the Peigan First Nation, Government of Alberta and the Federal Government, the “Monitoring and Follow-up Environmental Impact Assessment Program” (FEIA) was launched in 2003. Six working groups have been established – Group 5 addresses cottonwoods, wildlife and migratory birds on the Reserve as stipulated in the NWPA approval.

Indian and Northern Affairs Canada input under separate cover

Environment Canada: EC has provided advice on wildlife–related aspects of cottonwood forest ecosystem maintenance on request on an ongoing basis from1993 to the present-day. This expertise was made available when requested by the Federal representative on the EAC, to INAC in support of negotiation of an agreement with the Peigan First Nation (Piikani) and directly to First Nation coordinators of the follow-up EIA program that has resulted from that agreement.

NRCan: To date, the assistance of NRCan (Forestry) has not been requested by the proponent. NRCan remains open to assisting if called upon.

11

Vegetation: If the project is decommissioned, undertake studies to determine to what degree the reservoir area should be revegetated and prepare and implement a reclamation plan.

If the project is operated, conduct surveys of plant species composition and abundance downstream of the dam to identify and quantify the effects of flow regulation. Further, reserve a portion of water in the reservoir to provide adequate flows to maintain riparian ecosystems.

Decommissioning of the dam would be considered only under subsection 6(1) of the Navigable Waters Protection Act.

Alberta has informed the Federal Government that it intends to monitor all plant species downstream of the reservoir. Modification of the reservoir-operating plan, if necessary, will take into consideration flow requirements for the maintenance of downstream riparian ecosystems. The Federal Government supports the provincial initiative. The Navigable Waters Protection Act approval will require the proponent, subject to the concurrence and/or participation of the Peigan First Nation, to carry out the evaluation, management and monitoring of cottonwood forests that relate to federal responsibilities.

No response required

Environment Canada: EC has not had direct involvement in vegetation surveys. EC has provided advice on request on an ongoing basis to the Federal Representative on the EAC and has supported the INAC-led initiative to negotiate and implement an agreement with the Peigan (Piikani) First Nation on environmental concerns of the project on ecological features on Reserve lands. Vegetation as related to wildlife habitat would likely have been a component of such advice.

NRCan: To date, the assistance of NRCan (Forestry) has not been requested by the proponent. NRCan remains open to assisting if called upon.

Fisheries and Oceans: As a result of the recent settlement agreement between the Peigan First Nation, Government of Alberta and the Federal Government, the “Monitoring and Follow-up Environmental Impact Assessment Program” (FEIA) was launched in 2003. Six working groups have been established – Group 5 addresses cottonwoods, wildlife and migratory birds on the Reserve.

Indian and Northern Affairs Canada to provide input under separate cover

12

Wildlife: If the project is decommissioned, the Environmental Management Committee should be responsible for identification and implementation of reclamation programs to restore the wildlife habitat of the reservoir area.

If the project is to be operated, the Federal Government should use its statutory powers to ensure that Alberta undertakes a fully funded, long-term wildlife mitigation program (inclusive of the concerns of the Peigan First Nation people). The implementation of the program should be assigned to the Environmental Management Committee.

Decommissioning of the dam would be considered only under subsection 6(1) of the Navigable Waters Protection Act.

Alberta has informed the Federal Government that a wildlife mitigation program initiated in 1986 is nearing completion. The management plan for the 2,400 hectare land base around the reservoir gives major consideration to wildlife. An on-site biologist is undertaking long term mitigation monitoring and evaluation studies.

The Federal Government will provide input to the Environmental Advisory committee with respect to wildlife. The Navigable Waters Protection Act approval will require the proponent, subject to the concurrence and/or participation of the Peigan First Nation, to carry out the evaluation, management and monitoring of wildlife and wildlife habitat as well as migratory birds that are on the Peigan Reserve and are related to the project.

No response required

Environment Canada: EC has provided advice on wildlife aspects of the Oldman River Dam project on request on an ongoing basis from1993 to the present-day. This advice was made available when requested by Federal representative on the EAC and to INAC in support of negotiation of an agreement with the Peigan First Nation (Piikani) and directly to First Nation coordinators of the follow-up EIA program that has resulted from that agreement.

Indian and Northern Affairs Canada to reply under separate cover

13

Rare Fish Species: If the project is decommissioned, modify at least one of the diversion tunnels to provide upstream fish passage past the dam. Until this measure is in place, upstream migrating fish should be trucked past the dam.

If the project is to be operated, a program to mitigate adverse effects on rare species should be a condition of any approval granted by the Federal Government. This program would be implemented under the auspices of the Environmental Management Committee.

Decommissioning of the dam would be considered only under subsection 6(1) of the Navigable Waters Protection Act.

The Department of Fisheries and Oceans is of the opinion that Alberta has undertaken sufficient field surveys to ascertain that no rare or endangered fish species reside in areas directly influenced by the Oldman River Dam project. Should contrary information become available, the mitigation requirements established for the identified species should provide adequate protection for rare species. The Department of Fisheries and Oceans will work closely with Alberta through a joint federal provincial committee to determine if additional protection is warranted.

No response required

Fisheries and Oceans: DFO is not aware of any information suggesting the presence of species at risk in areas influenced by the Oldman River Dam.

Fisheries and Oceans: DFO is working with the Government of Alberta and the Peigan First Nation Monitoring and Follow-up Environmental Impact Assessment Program (FEIA) as agreed in the recent settlement agreement.

14

Role of Fisheries and Oceans Canada: A clearer definition of the role that the Department of Fisheries and Oceans will play in fishery conservation and habitat protection in the provinces is needed. This should include the requirement for an operational definition of no net loss, criteria and procedures for achieving no net loss, and plans for monitoring, evaluation and management of any programs to achieve no net loss.

This recommendation does not specifically relate to the Oldman River dam. It is outside the scope of the review conducted under the Environmental Assessment and Review Process Guidelines Order. Nevertheless, the Department of Fisheries and Oceans has the authority to protect fish and fish habitat pursuant to the Fisheries Act. Responsibility for fisheries management in inland water is shared by federal, provincial and territorial governments. In Alberta, the provincial government manages the fisheries on a day-to-day basis, and the Federal Government has certain decision-making and legislative responsibilities and is accountable to Parliament for federal legislation.

Through the Policy for the Management of Fish Habitat, the conservation goal of maintaining the current productive capacity of fish habitats supporting Canada's fisheries resources is maintained so that fish suitable for human consumption may continue to be produced. Under this policy, the Department of Fisheries and Oceans strives to balance unavoidable habitat losses with habitat replacement on a project-by-project basis. When the fishery resource and its supporting habitat are put at risk by a proposed development project or activity, the Department of Fisheries and Oceans works with the proponent and the provincial fisheries departments to determine the measures to be taken to mitigate impacts on fish and fish habitat and to compensate for unavoidable impacts.

Fisheries and Oceans: DFO participated on the monitoring team; mitigation measures were deemed adequate to meet the conditions of the Fisheries Act authorization further to the protection of fish and fish habitat.

The Department of Fisheries and Oceans will monitor and determine the effectiveness of the proponent's mitigation measures for fish and fish habitat in order to ascertain compliance with mitigation required in the Fisheries Act authorization, through on-site visits, cooperative field investigations, consultation with provincial fisheries officials and participation on a joint federal/provincial committee charged to design mitigation and monitoring programs to protect fish and fish habitat.

Fisheries and Oceans: DFO continues to participate on the Monitoring Committee to address this recommendation. The Monitoring Committee provided recommendation to the EAC, which in turn made recommendations for implementation of mitigation measures and compensation for unavoidable impacts.

15

Fish Mitigation: If the project is operated, encourage the Environmental Management Committee to adopt a realistic goal of upstream enhancement.

The Federal Government agrees that there should be a realistic goal for upstream enhancement. The Department of Fisheries and Oceans will work closely with Alberta through the federal/provincial committee to ensure that adequate and realistic goals for upstream enhancement are adopted. This committee will review the fisheries mitigation goals and monitor the effectiveness of the program established by Alberta Environmental Protection.

Fisheries and Oceans: DFO continues to participate on the monitoring committee; the mitigation measures were deemed adequate to meet the conditions of the Fisheries Act authorization.

16

Reservoir Fisheries: If the project is decommissioned, establish woody vegetation on the stream banks in the reservoir area as soon as the reservoir is drained, to prevent excessive bank erosion and channel migration during the first few years of ecosystem recovery.

If the project is operated, routinely monitor fish in the reservoir for mercury levels during the first few years of reservoir operation. Provide results of the monitoring programs to the Environmental Management Committee for action as required.

Decommissioning of the dam would be considered only under subsection 6(1) of the Navigable Waters Protection Act.

A five-year program was initiated in 1991, under the auspices of the Alberta Environmental Centre, to assess changes in mercury levels in fish within the reservoir. The results of the monitoring program will be reviewed by the joint federal/provincial committee, on which the Department of Fisheries and Oceans will be represented, for action as required. The need for continued monitoring and assessment of health impacts will be reviewed by the Departments of Fisheries and Oceans, Health Canada, and the Province of Alberta.

No response required.

Fisheries and Oceans: DFO participated on the monitoring committee and reviewed the results of the monitoring reports.

Health Canada: There is no evidence to indicate that HC was approached to review the results of the five-year program initiated in 1991 under the auspices of the Alberta Environmental Centre to assess changes in mercury levels in fish within the reservoir and the potential impacts on human health.

HC remains available to assist in reviewing the need for continued monitoring and assessment of health impacts as required.

17

Downstream Fisheries: As a condition of any approval granted, the Federal Government should require that Alberta develop a plan of monitoring, evaluating, and managing downstream fisheries that would protect and enhance these populations. In addition, the Minister of Fisheries and Oceans should investigate the issue of fish passage and entrainment at the Lethbridge Northern Irrigation District weir and ensure that any necessary remedial measures are implemented.

The Federal Government should exercise its fiduciary responsibility to Native people and ensure that the rights of the Peigan First Nation to fish on their reserve are protected. One requirement is that a routine monitoring program for mercury in fishes downstream from the Oldman Dam be instituted.

The federal Minister of Fisheries and Oceans should seek a reserve of water in the reservoir for fishery management purposes. This reserve should be sufficient to ensure minimum flows downstream from the Lethbridge Northern Irrigation District weir and to provide flexibility in flow regimes to manage for conservation and enhancement.

The Environmental Management Committee should determine whether a multilevel water release structure is required to permit control over downstream water temperatures. If deemed necessary the Minister of Fisheries and Oceans should require its construction.

The Department of Fisheries and Oceans will work closely with Alberta through a joint federal/provincial committee to ensure that the mitigation plan is implemented in such a way as to protect downstream fish and fish habitat resources. The issue of fish passage at the Lethbridge Northern Irrigation district weir has been recognized by Alberta. Studies are under way to assess the nature, magnitude and significant of the problem. If ascertained to be significant from a sport fisheries perspective, Alberta is committed to remedy the problem by modification of the structure.

The Department of Fisheries and Oceans considers any negative impact related to fisheries to be important and is prepared to work closely with Alberta to address such matters. The issue of possible mercury contamination in downstream fish will be addressed by the Alberta mercury-monitoring program (see response to Recommendation 16).

The Department of Fisheries and Oceans has concluded that a reserve of water in the reservoir is not needed for fishery management purposes. Although the regulated flows provided by the dam may well enhance downstream fisheries, the demand for water withdrawals for irrigation purposes presents the need to address minimum downstream flow requirements. The authorization pursuant to subsection 35(2) of the Fisheries Act will establish a joint federal/provincial committee which will ensure that the works are operated and maintained so as to protect fish and fish habitat.

Should it be determined that temperature control is required, the Department of Fisheries and Oceans will work closely with Alberta through the joint committee to ensure that appropriate mitigation is provided.

Fisheries and Oceans: DFO is participating in follow-up of the environmental impact assessment, which considers issues surrounding the Lethbridge Irrigation structure.

Fisheries and Oceans: Through DFO's participation on the Monitoring Committee and the TWG, DFO has worked closely with the Province of Alberta and HC to address the issue of mercury contamination through the mercury-monitoring program.

Health Canada: The National First Nations Environmental Contaminants Program offered through the Assembly of First Nations, in collaboration with Health Canada's First Nations and Inuit Health Branch, assists First Nations to undertake research on sources, exposure and health risks of environmental contaminants in their communities. This program promotes capacity building in the field of environmental health within the community. First Nations communities, including Piikani First Nation, are invited annually to submit research proposals for funding.

Health Canada: In the year 2000, the Piikani First Nation submitted a research proposal to the National Environmental Contaminants Program to conduct a follow-up study to investigate the potential health impacts of the Oldman River Dam Project on the Piikani First Nation. The study proposed to include re-sampling of hair for mercury levels as well as a food consumption and health survey. Health Canada assisted in the development of the Follow-up Environmental Impact Assessment (FEIA) research protocol and provided scientific and technical support. No proposal from the Piikani Nation, however, has been funded by the regional or national programs.

Fisheries and Oceans: DFO has worked through the Monitoring Committee and the Technical Working Group to address this and ensure protection of fish and fish habitat. The Monitoring Committee and the Technical Working Group provided recommendations to the EAC, which in turn made recommendations for implementation of mitigation measures and compensation for unavoidable impacts.

Fisheries and Oceans: Temperature control was not required. Through the Monitoring Committee and TWG it was determined that due to the location where the water is drawn from the reservoir, the cold-water downstream fishery now extends further than historically recorded.

18

Archaeology and the Peigan First Nation: Withhold federal approvals for the dam until such time as the Peigan First Nation have reached an agreement with the proponent on the extent to which the Peigan First Nation should be compensated for cultural and spiritual losses in the reservoir area.

It is understood that both the Province of Alberta and the Peigan First Nation undertook independent studies to identify specific sites and none were identified. Notwithstanding these observations, the Federal Government supports the continuing discussions between Alberta and the Peigan First Nation on this and other issues. The applicable federal legislation does not confer authority to withhold approvals until such agreement is reached.

Indian and Northern Affairs Canada to reply under separate cover

19

If the project proceeds, Indian and Northern Affairs Canada should assist the Peigan First Nation in carrying out an assessment to identify and mitigate potential effects of the project on the Peigan First Nation people, religion, culture and land, and to assist the Peigan First Nation in negotiating the implementation of such mitigation as is necessary.

The Federal Government is providing financial assistance to the Peigan First Nation to support the negotiating process, which will include an assessment to identify and mitigate potential effects of the project on the Peigan First Nation and their land.

Indian and Northern Affairs Canada to reply under separate cover

20

Economic Assessment of Projects: In providing environmental assessment panels with terms of reference, the federal Minister of the Environment should require project justification through such means as a thorough and balanced assessment of both the economic efficiency and the regional development and social equity values of projects under review.

Under the Environmental Assess and Review Process Guidelines Order, the Minister of the Environment, with the approval of the Minister of the initiating department, may include matters such as the general socio-economic effects and the need for the project in the terms of reference of an environmental assessment panel review. Inclusion of the examination of need or project justification in the terms of reference for future panel reviews will be examined on a case by case basis.

Under the Canadian Environmental Assessment Act, which is not yet in force, there is a requirement to consider the purpose of any project that is subject to review by an environmental assessment panel. In addition, the definition of environment effect required examination of any change in socio-economic conditions caused by any alteration the project may cause to the environment.

Canadian Environmental Assessment Agency: An examination of the justification for a project is normally included in the terms of reference for review panels under the Canadian Environmental Assessment Act.

Under paragraph 16(1)(e) of the Act, the Minister of the Environment may require a review panel to consider “the need for a project.” An operational policy statement issued by the Canadian Environmental Assessment Agency in 1998 strongly encourages consideration of this matter in every comprehensive study, mediation and review panel.

Subsection 16(2) of the Act is also relevant to the Oldman River Dam panel report. It requires all comprehensive studies, mediations and assessments by review panels to include an examination of the purpose of the project and the “capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future.”

The Act also employs a definition of “environmental effect” that requires a consideration of the effect of changes that the project may cause in the environment which, in turn, affect socio-economic conditions.

21

Navigation: If the project is decommissioned, Transport Canada should assess the marine safety of the project and identify any requirements to ensure safety of users.

If the project is operated and an approval for the Oldman River Dam is issued, Transport Canada should determine conditions for marine safety and include them as part of the approval. Special attention should be paid to the instream fisheries mitigation measures, to the kayak run, to the recreation facilities around the reservoir and to the safety of the Lethbridge Northern Irrigation District weir downstream.

Decommissioning of the dam would be considered only under subsection 6(1) of the Navigable Waters Protection Act. In that event an assessment of requirements for marine safety would be undertaken.

The Navigable Waters Protection Act approval will include marine safety requirements.

No response required.

Fisheries and Oceans: The following conditions (6-13) were included in the NWPA approval to respond to marine safety concerns:

6) The proponent shall provide a reserve of water for navigation and conservation purposes.
7) The proponent shall provide boat-launching facilities to allow for portaging around the dam. The position of structure for boat launching shall be discussed with the NWP Regional Officer with respect to navigation safety.
8) The proponent shall install a permanent control boom across the reservoir at a safe distance upstream of the spillway for the safety of vessels. The boom shall be painted yellow, carry yellow retro reflective material and be marked with yellow flashing lights. The characteristics of the lights shall be: 15 flashes per minute, 3.5 sec dark.
9) The proponent shall demonstrate to the satisfaction of the Minister of Transport that the operating regime of the Oldman River dam will not result in unsafe navigation conditions above or below the dam or near the Lethbridge Northern Irrigation District Weir.
10) Fisheries mitigation works such as groynes shall not be constructed so as to become a danger to navigation.
11) The proponent shall, at all times permit the Minister of Transport or his representatives to monitor the rate of discharge of water.
12) Public recreational facilities such as boat launching ramps, floats and bank protection shall be constructed in such a manner as to enhance public safety.
13) The proponent shall ensure that debris control and removal procedures are in place and that debris is removed from under the waterway.

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Emergency Evacuation Plan: Both the Alberta government and the Peigan First Nation should agree on an emergency evacuation plan very quickly. Indian and Northern Affairs Canada should provide whatever assistance is needed to encourage meaningful negotiations to achieve such an agreement. If such an agreement is not reached, the Alberta government as the project proponent should develop and make public a contingency plan to deal with evacuation on the Peigan Reserve.

The province of Alberta has informed the Federal Government that it is actively engaged in the preparation of an Emergency Preparedness Plan. The plan was tested in March 1992. The Alberta Public Safety Services have provided assistance to the Peigan First Nation in the development of its local emergency plan.

Indian and Northern Affairs Canada to reply under separate cover

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Follow-up Programs: So that environmental protection may benefit from experience during the implementation phase of projects, the Panel recommends that follow-up programs (monitoring, evaluation and management of environmental and socio-economic effects during the implementation phase of the project) should be a routine part of all projects proceeding to the implementation stage which are reviewed by panels.

Under paragraph 33(1) (d) of the Environmental Assessment and Review Process Guidelines Order, it is the responsibility of the initiating department, in cooperation with other concerned parties, to ensure that suitable implementation, inspection and environmental monitoring programs are established. These matters have been addressed in this document, in the conditions, which will be attached to the Navigable Waters Protection Act approval, and in the Fisheries Act authorization.

Under the Canadian Environmental Assessment Act, provision is made for the design of follow-up programs, as considered appropriate by the responsible authority, for projects that are carried out following an environmental assessment.

Fisheries and Oceans: As per the NWPA approval and the Fisheries Act authorization, DFO participated in the TWG and EAC and Monitoring committee to ensure that suitable implementation; inspection and environmental monitoring programs were established.

Canadian Environmental Assessment Agency: Amendments to the Canadian Environmental Assessment Act, which took effect on October 30, 2003, requires follow-up programs for all projects that have been assessed by a review panel. In addition, follow-up programs are now mandatory for any project that undergoes mediation or a comprehensive study.