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A proposed hybrid wind/hydro-power development in Cape Breton, Nova Scotia

Petition

Petitions Manager/Gestionnaire des pétitions
Commissioner of the Environment and Sustainable Development / Commissaire à l'environnement et au développement durable
Office of the Auditor General of Canada / Bureau du vérificateur général du Canada
240, rue Sparks, Ottawa  K1A 0G6
(613) 952-0213 x6326
Toll free 1-888-761-5953 x6326
Fax/téléc (613) 941-8286

I hereby submit this petition to the Auditor General of Canada under section 22 of the Auditor General Act:

WHEREAS the pristine freshwater lakes of Loch Lomond, Cape Breton County, Nova Scotia serve as a watershed area for fish, foul, reptiles, insects and fauna of a threatened and/or an endangered nature, and whereas the Grand River flows from the lakes of Loch Lomond to the Atlantic Ocean and serves as a breeding ground for Atlantic salmon and as a home to innumerable other ecologically fragile organisms; and

WHEREAS the residents, tourists, visitors and neighboring communities utilize the lakes of Loch Lomond and the Grand River Watershed region as a source of drinking water, recreation, navigation, swimming, fishing and a plethora of other uses for sustaining permanent or seasonal residency and facilitation of recreational and tourist visitations; and

WHEREAS Cape Breton Explorations Ltd. (CBEL) is undertaking to build a 200-megawatt hybrid wind hydro-power development on Lake Uist in southern Cape Breton, that includes 44 wind turbines and two hydro-power generators, whereby the wind power will be used to pump water up to an elevated reservoir above Lake Uist, so its water can be fed into two 50-megawatt hydro turbines; and

WHEREAS the electricity produced from this project will feed the Nova Scotia power grid and for which the incremental power will be sold to the United States, and

Whereas the environment for fish and wildlife habitat will be permanently affected, as well as an adverse impact on drinking water drawn from this source, and the construction of obstacles to recreational and local navigation on this water system;

Therefore: We, the undersigned residents of Canada request the Minister of Fisheries & Oceans Canada, the Minister of Transportation Canada, and the Minister of Environment Canada to:

1. investigate whether federal laws or regulations are being contravened and to advise us accordingly?

2. investigate whether appropriate administrative and environmental process is being conducted by; the local Cape Breton Regional Municipality, the Government of Nova Scotia and CBEL, and advise us accordingly?

3. what action if any your respective departments have taken or expect to take with respect to the Lake Uist/Grand River watershed and the proposed CBEL200-megawatt hybrid wind hydro-power development on Lake Uist?

[Original signed by Allister Marshall]

Allister Marshall, Chair, Save The Grand River Watershed Association, Chapel Island First Nation, Richmond Co., NS
902-535-2426, marshall_allister@hotmail.com

[Original signed by Mark Macneill]
  
Mark Macneill, Consultant, C.M. Macneill & Family Ltd., 42 Glen Albert Dr., Big Pond, NS B1J1R5 macneillmark@hotmail.com 902-828-2206

[Original signed by Alex Kennedy]

Alex Kennedy, Vice-Chair, Save The Grand River Watershed Association, 460 Gardiner Rd., Gardiner Mines, NS B1H5L8 alexjkennedy@live.ca, 902-849-7191

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Minister's Response: Environment Canada

10 June 2010

Mr. Mark Macneill and Co-signatories
Consultant
C.M. Macneill & Family Ltd.
42 Glen Albert Drive
Big Pond NS B1J 1R5

Dear Mr. Macneill and Co-signatories:

I am pleased to provide Environment Canada’s response to your Environmental Petition No. 298, pursuant to section 22 of the Auditor General Act, regarding Cape Breton Explorations Limited’s proposed hybrid wind/hydro pump storage power‑generating facility near Lake Uist, Nova Scotia. The petition was received in Environment Canada on February 24.

Please find enclosed Environment Canada’s responses to Questions 1, 2 and 3. I understand that the Minister of Fisheries and Oceans, the Honourable Gail Shea, and the Minister of Transport, Infrastructure and Communities, the Honourable John Baird, will be responding separately to the questions as they relate to their respective mandates and legislative responsibilities.

As you are likely aware, my responsibilities for the federal environment portfolio include Environment Canada and the Canadian Environmental Assessment Agency. To clarify, Environment Canada has broad responsibilities regarding environmental protection and conservation, and is responsible for administering several federal statutes. The Department is also often called upon to provide expert scientific knowledge and advice with respect to project environmental assessments. The Canadian Environmental Assessment Agency, on the other hand, provides administrative and advisory support to federal departments responsible for conducting environmental assessments under the Canadian Environmental Assessment Act.

I appreciate the opportunity to respond to your petition, and I trust that you will find this information useful.

Sincerely,

[Original signed by Jim Prentice, Minister of the Environment]

The Honourable Jim Prentice, P.C., Q.C., M.P.

Enclosure

c.c.:  The Honourable Gail Shea, P.C., M.P.
The Honourable John Baird, P.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment
and Sustainable Development

Environment Canada’s Response to Environmental Petition No. 298,
regarding the proposed wind/hydro project near Lake Uist, Nova Scotia

Question 1: Investigate whether federal laws or regulations are being contravened and to advise us accordingly?

Response: The Canadian Environmental Assessment Agency administers the Canadian Environmental Assessment Act. This act may apply to federal authorities when they contemplate certain actions or decisions in relation to a project that would enable the project to proceed in whole or in part. The Agency has reviewed the environmental assessment process as it applies to the proposed 200‑megawatt hybrid wind/hydro development, and has not found any contravention of the Canadian Environmental Assessment Act.

Environment Canada is responsible for administering several statutes that may be relevant to the proposed development, including the Canadian Environmental Protection Act, 1999, the Fisheries Act (specifically section 36), the Species at Risk Act, and the Migratory Birds Convention Act.

On December 5, 2007, Environment Canada received a project description from the Canadian Environment Assessment Agency with a request that the Department identify any potential requirements for a federal environmental assessment. On January 16, 2008, the Department responded that it likely did not have any power, duty, or function that would trigger the Canadian Environmental Assessment Act in this regard. However, Environment Canada also indicated that it did possess scientific knowledge and information, based on the Department’s mandated responsibilities, that could be pertinent to the proposed development. Since that time, there have been no activities carried out in relation to the proposed development that would contravene any of the federal laws or regulations for which Environment Canada has responsibility.

Question 2: Investigate whether appropriate administrative and environmental process is being conducted by; the local Cape Breton Regional Municipality, the Government of Nova Scotia and CBEL, and advise us accordingly?

Response: Neither the Department nor the Agency has a role in any processes administered by the Cape Breton Regional Municipality, the Government of Nova Scotia, or CBEL, and therefore cannot comment on this question.

The Department and the Agency were aware that the proposed wind/hydro development was being assessed by the Government of Nova Scotia as a Class II project. Project‑related documents have been posted on the Nova Scotia Environment website at www.gov.ns.ca/nse/ea/CBWindHydro.asp. Although that environmental assessment did not proceed, after Fisheries and Oceans Canada received information that the hydro portion of the project would not be pursued, the wind energy portion may be registered in the near future. At that time, it would be expected that the Government of Nova Scotia would determine the necessary level of review and other requirements under applicable provincial legislation.

Question 3: What action if any your respective departments have taken or expect to take with respect to the Lake Uist/Grand River watershed and the proposed CBEL200-megawatt hybrid wind hydro-power development on Lake Uist?

Response: On December 5, 2007, the Agency distributed the project description of the proposed development to federal authorities, including Fisheries and Oceans Canada, Environment Canada, Natural Resources Canada, and Transport Canada in accordance with the Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements under the Canadian Environmental Assessment Act.

The Agency’s role with respect to the proposed project was as federal environmental assessment coordinator. The Agency assumes that role for screening‑type assessments that also require an environmental assessment by another jurisdiction, in this case the Province of Nova Scotia. The role of coordinator is to identify those federal departments with responsibilities for conducting environmental assessments under the Canadian Environmental Assessment Act, as well as those that can provide expert information and knowledge; coordinate their involvement throughout the environmental assessment process, ensuring they fulfill their responsibilities under the Canadian Environmental Assessment Act; and coordinate the environmental assessment with other jurisdictions.

On August 18, 2008, following a site visit, Fisheries and Oceans Canada posted a Notice of Commencement on the Canadian Environmental Assessment Registry website indicating that it would be responsible for conducting a screening‑type environmental assessment of the proposed project. A screening-type environmental assessment was triggered by the Fisheries and Oceans Canada requirement to issue a permit under subsection 35(2) of the Fisheries Act. Natural Resources Canada, Environment Canada and Health Canada indicated that they had expertise related to the project, and would provide that expertise to Fisheries and Oceans Canada.

On March 3, 2010, Fisheries and Oceans Canada posted a notice on the Canadian Environmental Assessment Registry website (www.ceaa-acee.gc.ca/050/details-eng.cfm?evaluation=41995) terminating the environmental assessment for the proposed project, after receiving information from the proponent indicating that the hydro portion of the project will no longer be proceeding.

Because the project has been withdrawn from the environmental assessment process, the Agency and the Department no longer have a role with respect to the proposed project. Should the proponent wish to proceed with the proposed project, a new project description to restart the federal environmental assessment process would be required. At that point, the Agency would determine its precise role. Environment Canada would, upon request from the responsible authority, provide expert knowledge and advice to help ensure that the environmental assessment and ensuing regulatory decisions are well‑informed.

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Minister's Response: Fisheries and Oceans Canada

18 June 2010

Mr. Mark Macneill
Save the Grand River Watershed Association
42 Glen Albert Dr.
Big Pond, Nova Scotia
B1J 1R5

Dear Mr. Macneil:

Thank you for your letter dated January 31, 2010, concerns related to proposed hybrid wind/hydro-power development in Cape Breton.

Your Environmental Petition was submitted to the Commissioner of the Environment and Sustainable Development under the provision of the Auditor General Act and subsequently assigned the reference number 298. I am providing you with my Department’s response to the questions raised in your environmental petition.

I appreciate the opportunity to respond to your petition and trust that you will find this information helpful. Please do not hesitate to contact Donald Humphrey, Senior Environmental Assessment Analyst, Environmental Assessment and Major Projects Division (902-426-9740), if you have any further questions.

Sincerely,

[Original signed by Gail Shea, Minister of Fisheries and Oceans]

Gail Shea, P.C., M.P.

Attachment

c.c.: Scott Vaughan, Commissioner of the Environmental and Sustainable Development

The Commissioner of the Environment and Sustainable Development has forwarded me your petition dated January 31, 2010 in relation to the proposed hybrid wind-hydro power development located in Cape Breton, Nova Scotia. In the petition, you asked that Fisheries and Oceans Canada (DFO):

1. Investigate whether federal laws or regulations are being contravened and to advise accordingly.
2. Investigate whether appropriate administrative and environmental process is being conducted by: the local Cape Breton Regional Municipality, the Government of Nova Scotia and the proponent, and advise accordingly.
3. Identify if our department has taken or expects to take any action in respect to the proposed project.

Your petition has been reviewed for concerns related to DFO’s mandate. My colleagues at Transport Canada and Environment Canada will respond separately to your petition in relation to each of their respective mandates and appropriate legislation. On behalf of DFO, I offer the following responses to your questions:

Question #1: Investigate whether federal laws or regulations are being contravened and to advise accordingly.

To my knowledge, no federal laws or regulations have been or are being contravened in relation to the proposed development. In particular, the applicable requirements and procedures set forth in the Fisheries Act and the Canadian Environmental Assessment Act (CEAA) and its regulations were followed.

DFO mandate as it pertains to the above-noted project falls under the habitat protection provisions of the Fisheries Act. In particular, DFO identified that the hydro portion of the proposed project would likely require a section 35(2) Fisheries Act authorization. A section 35(2) Fisheries Act authorization allows for the Harmful Alteration, Disruption or Destruction (HADD) of fish habitat, provided mitigation and habitat compensation measures ensure that there is a no-net-loss of fish habitat.

On December 7, 2007 the Canadian Environmental Assessment Agency provided DFO with a description of the proposed Lake Uist Wind-Hydro Project as per the Federal Coordination Regulations of the CEAA. Based on the project description, DFO determined that it would likely require an environmental assessment of the proposed project because a section 35(2) Fisheries Act authorization is listed as regulatory approval on the Law List Regulations of the CEAA, and therefore cannot be issued prior to completing a federal environmental assessment. In accordance with the CEAA and its regulations, on August 18th, 2008, DFO posted a Notice of Commencement on the Canadian Environmental Assessment Registry Internet Site indicating that it would be responsible for conducting a screening level environmental assessment of the proposed project.

DFO informed the proponent that additional project design information would be required in order to conduct a federal environmental assessment. No additional design information has been received and the proponent has since indicated that they would not proceed with the project as initially proposed. On March 3, 2010, DFO posted a notice on the Canadian Environmental Assessment Registry terminating the environmental assessment for the proposed project.

Question #2: Investigate whether appropriate administrative and environmental process is being conducted by: the local Cape Breton Regional Municipality, the Government of Nova Scotia and the proponent, and advise accordingly.

DFO has no role in provincial or municipal affairs. However, DFO is aware that the Province of Nova Scotia was conducting a Class 2 Environmental Assessment under the Nova Scotia Environment Act. The environmental assessment was cancelled at the proponent’s request.

Question #3: Identify if our department has taken or expects to take any action in respect to the proposed project.

As mentioned in the response to question #1 above, on March 3, 2010, DFO posted a notice on the Canadian Environmental Assessment Registry Internet site terminating the environmental assessment for the proposed project. This action was taken after DFO received a letter from the proponent indicating the project would no longer be proceeding as proposed. Since the completion of an environmental assessment is necessary for DFO to take action in relation to the project, such as issue a permit or authorization, no authorizations will be issued for the project at this time. Should the proponent wish to proceed with the proposed project, they will be required to submit a new project description to re-start the federal environmental assessment process.

I would like to thank you for bringing your environmental concerns in relation to the project to the Commissioner of Environment and Sustainable Development and trust that my answers are helpful in understanding DFO’s role with respect to the proposed project.

c.c.: The Honourable Jim Prentice, Minister of Environment Canada
The Honourable John Baird, Minister of Transport Canada
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

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Minister's Response: Transport Canada

24 June 2010

Mr. Allister Marshall, Mr. Mark Macneill and Mr. Alex Kennedy
Petition Letter
42 Glen Albert Dr.
Big Pond, Nova Scotia
B1J 1R5

Dear Sirs:

I am writing in response to the petition you sent to the Officer of the Commissioner of Environment and Sustainable Development, dated January 31^st, 2010, regarding the Lake Uist and Grand River Watershed. Your petition (#298) was forwarded to Transport Canada on February 24, 2010, pursuant to Section 22 of the Auditor General Act.

Your petition has been reviewed in relation to Transport Canada’s mandate. Transport Canada is pleased to provide a response to the questions listed below. I understand that Environment Canada as well as Fisheries and Oceans Canada will be responding to your letter according to their mandate and legislative responsibilities.

Question 1: Investigate whether federal laws or regulations are being contravened and to advise accordingly.

Transport Canada’s mandate, as it pertains to the Lake Uist Power Generating Facility, would fall under the Navigable Waters Protection Act. Under this act, an application must be made to Transport Canada for approval to proceed before any work is built in, on, over, under, through or across any navigable water. If Transport Canada determines that an approval under the Navigable Waters Protection Act is required, this could also trigger the requirement for Transport Canada to complete an environmental assessment under the Canadian Environmental Assessment Act.

On December 7, 2007, the Canadian Environmental Assessment Agency provided a description of the proposed power generating facility to federal authorities, including Transport Canada, as per the Federal Coordination Regulations under the Canadian Environmental Assessment Act. Transport Canada reviewed the description and requested additional information be included in a completed Navigable Waters Protection Act application.

Transport Canada has not, as of yet, received a Navigable Waters Protection Act application from Cape Breton Explorations Ltd.. However, it is understood that the power generating facility is in the preliminary proposal/design stage and the company will require final design plans before submitting an application. To date, Transport Canada has participated in workshop held by Cape Breton Explorations Ltd. along with other federal and provincial departments and will continue to participate in all discussions until the department receives an application. It will then review it in order to clearly determine its role and responsibilities for the proposed power generating facility.

Question 2: Investigate whether appropriate administrative and environmental process is being conducted by the local Cape Breton Regional Municipality, the Government of Nova Scotia, and Cape Breton Explorations Ltd., and advise us accordingly.

Transport Canada is aware that the proposed power generating facility is undergoing a Class 2 Environmental Assessment under the Nova Scotia Environment Act, which requires Cape Breton Explorations Ltd. to prepare a review panel-like environmental assessment subject to public hearings. However, in a letter dated March 3^rd, 2010, Cape Breton Explorations Ltd. indicated that it will not proceed with the hydro pumped storage portion of the facility at this time. It plans to submit a new environmental assessment application with the Nova Scotia Provincial Department of Environment for only the wind farm portion.

Question 3: What action, if any, your respective departments have taken or expect to take with respect to the Lake Uist/Grand River watershed and the proposed Cape Breton Explorations Ltd. 200-megwatt hybrid-power development on Lake Uist?

As outlined in the response to Question 1, any regulatory action that Transport Canada would likely take regarding the proposed power generating facility would fall under the Navigable Waters Protection Act. The issuance of an approval under this act could trigger the requirement for Transport Canada to complete an environmental assessment under the Canadian Environmental Assessment Act. As mentioned above, Transport Canada has not yet received a Navigable Waters Protection Act application from Cape Breton Explorations Ltd. and therefore the department has not issued an approval.

Due to the above-mentioned change in the proposed power generating facility, Transport Canada will now require a new project description. Depending on the project, Transport Canada may also require a completed Navigable Waters Protection Act application in order to determine its federal interest.

Thank you for bringing your concerns to the Commissioner of Environment and Sustainable Development. I trust that the foregoing has clarified your questions regarding Transport Canada’s role with respect to the Lake Uist Power Generating Facility development project.

Sincerely,

[Original signed by John Baird, Minister of Transport, Infrastructure and Communities]

John Baird, P.C., M.P.

C.Cs:
Scott Vaughan, Commissioner of the Environment and Sustainable Development
The Honourable Jim Prentice, Minister of Environment Canada
The Honourable Gail Shea, Minister of Fisheries and Oceans Canada