Aeration Of Lakes May Come To End In Alberta

[DonAndersen]

Folks.

 

Previously, Clive told us that aeration of lakes in Alberta may end.

 

I reviewed the lakes that will be lost in the Rocky area alone.

 

In the Rocky area, to understand the problem, here is what is leftBirch - winterkill probableBeaver - winter kill probableFiesta - winter kill completeIronside Pond - winter kill completeAlford Lake - winter kill completeMitchell  - winter kill very possibleStruble Lake - perchedPhylsis Lake - perchedTwin Lake - perchedCow Lake - perchedTay Lake - perchedPerched means the lake has been illegally stocked with perch thereby decreasing trout growth to near 0.Leaving us withPeppers Lake - tiny troutGoldeye Lake - tiny troutFish Lake - tiny troutLoss of the aerated lakes will hit hard.

 

I contacted Todd Zimmerling CEO of the ACA to find out what they intended to do. They are working with some companies in an effort to get some type of aeration systems installed. The ones Todd mentioned are costly and untried in Alberta.

 

So - put on your thinking caps - how would you aerate a lake w/o creating an open water pool.

 

regards,

 

Don

 

 

 

 

 

[albertatrout]

Okay, not a way to prevent a open spot but what about a floating wooden dock/ structure that a person couldn't fall through at the surface over an aerator? May be a cheaper solution which could make it so people can't fall in the hole (make it big enough so there is solid ice to the edges). Could be as simple as some of those 45 gallon drums floating a mesh looking kind of dock. It would cost a fair bit of money to build but I mean, may be a solution until a better aerator is found. Wood isn't too hard to source. Otherwise, how about suspended netting similar to what they place over fish farms/ salmon farms anchored near the aeration site so no one could possibly enter the hole/ fall in. Just a crazy idea, hope someone can come up with something better using airstones/ enough dissipators.

 

Something like this even?? (ignore the article, just see pic) http://thechronicleherald.ca/business/1121175-cooke-makes-big-purchase-in-chile

[DonAndersen]

Albertatrout,

 

I'll pass your comments along to the ACA.

 

My thanx for the idea.

 

Regards,

 

Don

[SilverDoctor]

I like the idea of a floating dock, it could have the open area covered with mesh and be safe.

[danhunt]

As I read the article in Clive's original post, I don't believe that the intent is to say that a person can't make a hole in the ice. I think the intent is that you can't make a large hole that would be a siginficant hazard for other people on the ice without adequately warning them of the danger and taking reasonable precautions to prevent someone from accidentally falling through. I think something like a double log boom around the aerator with some of that bright orange snow fencing on it would be enough of a visual warning and barrier to cover the ACA's proverbial backside. Maybe I'm wrong, but that's my $0.02...

[DonAndersen]

I have been told from the guy who is involved with the aeration of Alford Lake that the compressor was disabled and the electrical breakers feeding the compressor have been removed.

This was not an ACA project but efforts by private citizens to keep Alford from winter killing.

The only involvement by others was the power supply from the Provincial Govt.

It appears that Alford will be killed.

 

 

Don

[northfork]

I have been told from the guy who is involved with the aeration of Alford Lake that the compressor was disabled and the electrical breakers feeding the compressor have been removed.

This was not an ACA project but efforts by private citizens to keep Alford from winter killing.

The only involvement by others was the power supply from the Provincial Govt.

It appears that Alford will be killed.

 

 

Don

 

So it begins....

[DonAndersen]

Folks,

 

Aeration equipment installed into Beaver Lake today. The ACAc plan which will be revealed Oct. 17 may tell us how long it will run.

 

Regards,

 

 

 

Don

[bigbowtrout]

How will they manage Lower K below the outlet?

[DonAndersen]

 

Hi,

 

The Provincial Roundtable Meeting is done. Todd Zemmerling CEO of the ACA laid out the options.

1) do nothing and plan on stocking larger fish in 2016 plus get all the lakes ready for aeration.

2) do about 4 to determine the best alternative.

3) do 8 with bubbler systems c/w a covering over the open hole plus an exclusion fence.

 

The meeting was divided. What is clear, the ACA aerates 16 lakes or ponds. At best only 1/2 will get done this winter.

 

Although there is some concern that bubblers won't do the job, I pointed out that a lot of the systems not run by the ACA use bubblers of some type. Some systems were just a CDN Tire compressor and a bubble stone.

 

 

The ACA board will call the shot on what is going to be done.

 

And here is the other issues! The Fish & Game clubs run a pile of systems, the Alberta Govt. also runs systems (Police Outpost for example), several NGO's plus some municipalities also run systems. What are they going to do?

 

The issue doesn't stop at aerated ponds. Hot water discharges into river, sewage outflows, dam outflows and even the Canadian Ice Breakers all create open water.

 

Looks like the only solution is to change the law or have society spend millions dealing with fences etc.

 

As soon as the ACA informs us or posts to their web site, we will all know what is next for them. The other aeration users may not know of the issue.

 

 

Regards,

 

Don

[DonAndersen]

Folks,

Copied Peter's post.

 

Following discussion at the Fisheries Management Roundtable on Saturday, the ACA released this statement today.

 

"AERATION AND ISSUES ARISING FROM SECTION 263 OF THE CRIMINAL CODE. OCTOBER 20, 2015 PROPOSED ACTIONS

Background:

Alberta Conservation Association (ACA) aerates 16 lakes across Alberta using surface aerators. These surface aeration systems discharge water into the air, like a fountain, and create open water (a polynia) in a lake. In July 2015, ACA became aware of potential liability issues under Section 263 of the Criminal Code associated with making a hole in ice. Section 263 reads:

“Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under legal duty to guard in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.”

In August 2015, ACA received an initial opinion from Dentons Canada LLP regarding the impacts of Section 263 with respect to ACA aeration operations. In part, their opinion read “While it would make sense that a fence could work to prevent liability under s.263, we cannot be certain; it is difficult to say exactly what type of fence ‘would be adequate to prevent persons from falling in by accident’ and ‘adequate to warn them that the opening exists.’ “ The Criminal Code provides that “everyone who fails to perform a duty imposed by Section 263 is guilty of manslaughter, if the death of a person results.”

Based on the issues raised by Dentons Canada LLP, ACA sought a second opinion from McLennan Ross which was received on September 25, 2015. In reviewing case law associated with excavations on land (a subsection of 263) the McLennan Ross opinion notes: “…The Court’s reasoning suggests that the fact of the boys falling in the excavation was in and of itself proof that guarding was in adequate (although the Court says the warning was adequate).” The Court used the same reasoning in a second case referenced by McLennan Ross. In layman’s terms “guarding” has been considered inadequate because someone has fallen in, regardless of what type of guarding has been put in place. As a result a “due diligence” defence is not be possible under this section of the Criminal Code. McLennan Ross goes on to state: “Accordingly, it does not appear that there can be any assurance that any additional mitigative steps, including fencing, would prevent charges from being laid (if someone is hurt or killed – this would go towards a due diligence defence to any charge in the absence of harm). Arguably, should an individual climb the fence, and then accidentally fall in a hole in the ice and be injured or die, the warning and guarding could still be considered inadequate. Although this seems unfair, the reality is that it is the way the provision is currently worded.” And: “Accordingly, from a legal perspective, we do not believe that it is possible to eliminate the risk of criminal charges. Obviously, effective fencing or other steps such as those recommend by the cottage owners associations or followed under the B.C. policy would significantly reduce the practical likelihood of anyone being injured or dying, and may give rise to an argument that the duty to warn and guard never arose in the first place because the opening was not open to the public. However, if the duty is established, there appears to be no legal defence, other than the possible constitutional challenge, in the event that an incident actually happens, assuming the victim fell in ‘accidentally.’”

 

Based on two legal opinions, ACA has determined that the risk of criminal charges arising from someone being injured or dying in a hole created by aeration is low; however, the consequences of charges being laid is severe (manslaughter in the case of death) and would fall upon ACA’s staff, management and Directors. As such, ACA has decided that for the winter of 2015/16 surface aeration will be suspended while issues related to Section 263 are resolved. It is our intent to ensure our aeration program is running again at full capacity by the winter of 2016/17 at the latest.

 

Proposal for dealing with Section 263 of the Criminal Code:

The following is ACA’s proposed eight point plan which has been reviewed by the ACA Board of Directors, Alberta Environment and Parks and the Fisheries Round Table.

1) Starting immediately, attempt to super-saturate all lakes prior to ice-on then shut surface aerators off. Historical records show that a portion of the lakes ACA aerates did not winterkill every winter and we believe some lakes can survive successfully (the type of winter we have will play a major role).

2) Aerate eight lakes using bubble diffusers with enclosed polynia. Bubble diffusers are relatively simple to install and operate; however, they will create a hole in the ice. We believe we can contain the polynia within a 40 ft x 40 ft square created by floating dock material and then covered with chain link fencing material. Creating a floating, enclosed square should eliminate any possibility of people from falling in the open hole. A person would have to cut the chain link to access the hole in the ice. Pros: If the polynia becomes too large the aerator can be temporarily shut-down. Aeration can occur during thin ice periods with no risk of people falling in the hole. The floating docks can be reconfigured in the spring and used as casting platforms. Cons: The lakes we are aerating are relatively shallow (< 8 m) and as a result there is limited data on the rate of oxygen diffusion that will take place using the bubble diffusers or the size of the polynia that will be created. Based on the information we have, we believe the diffusers should provide sufficient aeration and the polynia can be contained within a 40 ft x 40 ft square, but both of these assumption need to be tested.

The eight lakes chosen for aeration are: Beaver Lake, Fiesta Lake, Ironside Pond, Muir Lake, Mitchell Lake, Millers Lake, Figure Eight Lake, East Dollar Lake

3) Increase the fish stocking program in the spring of 2016. Work towards having larger fish to stock, to replace the growth that an over wintering fish would be expected to have. Finding larger fish on short notice may be an issue.

4) Immediately inform stakeholders of the aeration plan.

5) Engage a lawyer to draft a proposed amendment to Section 263 that allows for a due diligence defence. Based on initial conversations there is a relatively minor wording change required.

6) Engage stakeholders, Provincial Government and other jurisdictions to help in persuading the Federal Government to amend Section 263 as proposed. We will need stakeholders to contact their local MP’s and ask for their support in making a change to a law that will benefit anglers across the country.

7) Continue to test new aeration techniques to implement for the winter of 2016/17.

8) Ensure the aeration program is fully operational by the winter of 2016/17 (all 16 lakes).

 

Our lawyers are working on the wording for a proposed amendment to Sec 263. As soon as I have that I will pass it along so that everyone can begin the process of talking to their new MP to try and get this law changed so that we don’t have issues in the future.

 

[Weedy1]

Interesting outcome.

 

I have to wonder how the University of Alberta gets away with producing an enormous hole in the North Saskatchewan river in Edmonton during winter months.

Water from the North Saskatchewan River is used for cooling and condensing purposes. It is brought in and discharged at two points in the river just west of the High Level bridge. The discharge can prevent freeze up of the river for quite a distance.

 

http://www.facilities.ualberta.ca/en/FO_Utilities/Chilled%20Water.aspx

 

How about the Wabamun plants or any other production that creates open water during the winter months?

 

Is there a different set of rules for the utility companies and university?

 

Maybe the ACA can talk to the University's Legal department for some advice.

[dryfly]

Thanks for the information Don.

 

Looks lie ACA is doing the right things under the circumstances.

 

Oh well, on the bright side folks always said there were bigger fish in Police Outpost when it winter killed every few years. Maybe we will get to find out. Just kidding. This is serious stuff.

 

Gosh I agree with Weedy....there is all sorts of situations where power plants or simple weirs create open water.

 

E&P operates a weir on the OMR in the City of Lethbridge. The ice on the river is always dodgy and unsafe but there is indeed open water immediately below the weir and it is there solely because of the weir. There is zero difference between a weir and an aerator. Both are manmade devices that cause open water. That one is permanent and one temporary should not be germane.

 

Both are potential killers of stoopid people. And ya can't fix stoopid, eh?

 

 

[Weedy1]

E&P operates a weir on the OMR in the City of Lethbridge. The ice on the river is always dodgy and unsafe but there is indeed open water immediately below the weir and it is there solely because of the weir. There is zero difference between a weir and an aerator. Both are manmade devices that cause open water. That one is permanent and one temporary should not be germane.

 

Hmmm, wonder if anyone has ever drown in wintertime beneath that or any other weir in Canada. Could make for a rather lucrative legal business pursuing all those responsible. I would have to think the Gov't of Canada would be at least partially to blame in any death beneath a weir considering they write the laws pertaining to these waterways....... just sayin'

[DonAndersen]

Guys,

 

I suspect that the list of man made open water in ice operations/processes is near endless. Some leave Govts who authorized or designated open water holes at risk. One that arose the other day were pump out sewage lagoons who have to be fenced. I was told that a typical 3 wire barbed wire fence was required. A 3 wire fence is certainly not "idiot Proof".

All of these issues place a lot of responsibility on Govts and businesses to get the law revised.

Over the next while, we as sportsman will be requested to write our respective MLAs & MPs detailing the issue and require a change to the law. I trust that as least some of you will make the effort.

 

Regards,

 

Don

[dryfly]

Don

 

Thanks for the info.

If you have an email copy of the ACA release could you please email a copy to me?

Thanks,

Clive
schaupmeyer@gmail.com

[dryfly]

Ya can't fix stupid...

http://globalnews.ca/video/1271187/river-ice-break-up-sparks-warning-from-officials

 

And in the photo below as well...there is open water below this water control structure in Saskatoon.

 

I bet five bucks that every city and every municipality owns examples of where open water is "created" by man-made structures.

 

Sure this is flowing water and the structures not natural. But POL is also a partially man-made reservoir. Is there a difference? Not if the legal eagles are interpreting the law as rigorously as the case law example provided.

 

 

[Weedy1]

Oh my god we're going to have to shut down Canada!!!!

[DonAndersen]

Weedy.

Not all of Canada - just the pooping part. Then all Cdn's will be really full of shitt - just not FF types.

 

Don

[DonAndersen]

Don

 

Thanks for the info.

 

If you have an email copy of the ACA release could you please email a copy to me?

Thanks,

Clive

schaupmeyer@gmail.com

 

 

Clive,

 

All I got was an email from Todd which is copied above. I had expected that the ACA would get something up on their web site. So far, I can't find anything

 

Don

[dryfly]

Thanks Don. Will keep looking. Would be nice to attach a formal copy to letters. One letter concept would be to send the press release to legal offices and politicians in many cities with a covering letter.

 

Hey Weedy1, that comment is what makes this whole thing so inane.

 

Lethbridge and Medicine Hat water/power plants also cause open water all winter. As noted, U of A, Wabumun power plants, Sheerness (an artificial cooling water lake) .. all the same.Sewage treatment plants across Canada that put clean water back into rivers. Man-made open water. The list is endless as the stupidity ... which is a nice segue to:

The difference between stupidity and genius is that genius has its limits. Albert Einstein

Poor old Albert would pull his hair out today.

[dryfly]

A quick search brings up numerous references to the problems. I am going to continue looking for some reference to cities with open water.

 

Some discussion in Ontario where cottage owners protect their boat docks with bubblers.

 

See page 8 here:

http://www.elpoa.ca/services/elpoa-newsletter.pdf

 

Two law professors and two opinions.

 

Professor Knutsen is an expert in insurance and accident law, and he had some interesting perspectives on this issue. First, he noted that landowners are generally required to make reasonable effort to prevent people from interacting with hazards (such as an opening in the ice) on or around their property. In the event of a lawsuit related to an accident, a landowner must show that he or she acted the way that a ‘reasonable’ person ought to have.

Seems to me that the professor (above) is missing the point. This is not about a lawsuit. This is about some schmuck being charged with manslaughter because of some Darwin boob.

Last winter, Mike Day erected two warning signs, and a string of red and white flags marking the opening in the ice caused by his bubbler. This year he plans to install a solar-powered warning light. Erik Knutsen, the Queen’s Professor, suggested that it might also be reasonable to consider that kids can’t read warning signs, and may be drawn toward red flags and holes in the ice. Also, it might be reasonable to consider what would happen to the flags and lights after a big winter storm or a period of warm weather.

Based on a quick perusal this seems to have discussed for some time. I can't see the law changing just like that. And what would change? Perhaps an inclusion of some "due diligence" law.

 

My guess is the thing that could move this along is for cities and municipalities to take action. A few dead fish sure was heck won't make one iota of difference.

 

What do people with real lives do on a Saturday night? :lol:

[dryfly]

Here is a PDF copy of the ACA proposal. I think this is the final copy:

http://flyfishing.afgmag.com/wp/wp-content/uploads/2015/10/2015-16-Aeration-plan-final.pdf

 

The legal opinion

http://flyfishing.afgmag.com/wp/wp-content/uploads/2015/10/Executive-summary-related-to-section-263-McLennan-Ross.pdf

 

Regarding due diligence, the courts have said NO MATTER WHAT IS DONE TO INFORM AND PROTECT, if someone gets hurt/dies then those precautionary actions were inadequate. Lose lose. The morons win legally....but are dead. Good people lose.

 

[dryfly]

I gotta get a life!!

 

So how is a stoopid person falling into open water any different than the guy's other stoopod brother jaywalking and being hit by a cement truck? Could not the same argument be made? i.e. That the municipality failed to provide adequate warning and protection from speeding traffic?

 

Existing

263. (1) Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.

Here is a fictitious addition about (say) roads ... and you can think of many many other examples.
263. (3) Every one who makes or causes to be made an open access to roadways frequented by the public is under a legal duty to guard it in a manner that is adequate to prevent persons from walking or falling by accident and being hit by a hybrid cement truck, Smart car or Prius.

 

This whole thing is absurd.

 

Have a nice day.

[DonAndersen]

Clive,

 

Just so ya' know - the last revision of the law was done in 1988 during the reign of Brian Mulroney. What do ya' expect but absurd?

 

And are you going to write the Minister of Parks and your MLA.?

 

regards,

 

 

Don