Wind farm will cause serious irreversible harm to wildlife, Tribunal finds

South Shore of Prince Edward County: [Photo Court Noxon, courtesy Point To Point Foundation]
South Shore of Prince Edward County: [Photo Court Noxon, courtesy Point To Point Foundation]
The decision on the appeal of the White Pines wind power project in Prince Edward County was released yesterday: the Environmental Review Tribunal found for the appellant and the environment (in part), in that serious and irreversible harm would result to the endangered Blandings turtle and the little brown bat. The Tribunal also noted risk to migratory birds.

This is a victory for a very hard-fought battle as members of this community fought to save the environment from Ontario’s own Ministry of the Environment.

See the decision in various formats here.

Statement from Orville Walsh, president of the Alliance to Protect Prince Edward County:

We are pleased to announce that APPEC’s appeal of wpd’s White Pines Wind Project has been upheld in part.  The Tribunal has found that the White Pines project will cause serious and irreversible harm to Little Brown Bats and to the Blanding’s turtle.   
 
The Tribunal did not find serious and irreversible harm to human health, to hydrology or to migratory birds. However in regards to the latter the Tribunal did note that this wind project presents a significant risk of serious harm to migrating birds and that the project site was poorly chosen from a migratory bird perspective.
We are cautiously elated!  The Tribunal acknowledges that engaging in this wind project in accordance with the REA (Renewable Energy Approval) will cause serious and irreversible harm to animal life.  Therefore wpd no longer has an REA to stand behind.  
 
The ERT has ordered a hearing of submissions with respect to potential remedies. 
 
The board will be studying the decision over the weekend and following consultation with our legal counsel Eric Gillespie, will have more information to give you next week. 
 
Orville Walsh
President, APPEC
Please go to the Save the South Shore website for information on how to donate toward the legal costs of this fight for the environment. The work done by the community groups in Prince Edward County, Eric K. Gillespie’s legal team, and the witness statements benefit everyone in Ontario.
ToughonNature

Amherst Island raises funds to protect environment

Citizens engaged in an appeal of the approval of a huge wind power project that will threaten wildlife and change a heritage landscape

Owls, Blandings turtle, and migratory birds all at risk from Amherst Island power project
Owls, Blandings turtle, and migratory birds all at risk from Amherst Island power project

February 17, 2016

The Association to Protect Amherst Island has formally launched a fund-raising campaign to assist with its legal actions against the huge Windlectric wind power project. An appeal is underway, with more hearings scheduled before the Environmental Review Tribunal in coming weeks, and a Judicial Review has been filed, based on details of the approval of the power project despite clear inaccuracies and inadequacies in the application.

More details:

The MOECC approved Windlectric’s Renewable Energy Application on August 24, 2015. Minister of Natural Resources and Forestry, Bill Mauro, approved an Overall Benefit Permit on the same day to allow Windlectric destroy the habitat of grassland birds on the Island.


Turbines are planned beside the world famous Owl Woods. Located on the Atlantic Migratory Flyway, the Island is a refuge for 11 species of Owls, wintering raptors, and grassland birds. 34 Species at Risk will be impacted.


The Ontario government claims to be a leader in environmental action but approval of a huge wind power project on Amherst Island will harm, not help the environment, say community leaders. “Approval of this turbine project indicates the hypocrisy of the government’s wind power program,” says Michele Le Lay, spokesperson for Association to Protect Amherst Island. “Constructing and operating wind turbines here will do great harm to the natural environment.”

 

After just one day, the group had raised over $2,600 toward its goal of $200,000.

Go to the fund-raising website here.

Planned devastation of Amherst Island, wildlife and Ontario economy
Planned devastation of Amherst Island, wildlife and Ontario economy

Niagara Field Naturalists warned of impacts of wind power project on wildlife

The Short-eared owl: one of many species affected by Niaga wind power project. But we'll never know how many, due to incomplete or absent studies
The Short-eared owl: one of many species affected by Niagara wind power project. But we’ll never know how many, due to incomplete or absent studies

Huge Niagara project to be built in Blandings turtle habitat, on migratory bird pathways, and near wetlands. Wind power developers get a free pass under the Green Energy Act

 

Niagara area resident Loretta Shields recently gave a presentation to the Niagara Peninsula Field Naturalists on the impact of wind power development on the environment and specifically, the fact that the Green Energy Act allows corporate wind power developers to escape the protections afforded by Ontario’s laws created for endangered and at-risk wildlife.

Here is an excerpt from a report on the presentation:

One serious concern of the project approval is the incomplete physical site investigations within the 120-metre zone of investigation for the industrial wind turbines. In most of the turbine locations, the 120-metre zone of investigation includes neighbouring lands where the landowners are not participants of this project.  Loretta showed several field notes where the surveyors for this project could not fully conclude the ecological land classification within the survey area (i.e., “interior not visible, only edge”);  30 percent of the field notes were inconclusive for reptile hibernacula, bat roosting areas, stick nests and vernal pools.

While the Renewable Energy Regulations do allow for alternative site investigations (surveys from the roadside instead of physical site surveys), these must be supported by an explanation as to why it was not reasonable to physically survey the site. An explanation (other than it was not reasonable) was not provided in the Natural Heritage report provided by the wind energy company, but the project was approved nonetheless.

Read the full report here: LorettaShieldsPresentationReport

ToughonNature

New witness statements on endangered species delays Amherst Island appeal

The 133-year-old St. Paul's Presbyterian Church on Amherst Island is the setting for this week's hearings by the Environmental Review Tribunal hearings for an appeal to the approval of a wind energy project on the island. (Elliot Ferguson/The Whig-Standard/)
The 133-year-old St. Paul’s Presbyterian Church on Amherst Island is the setting for this week’s hearings by the Environmental Review Tribunal in the appeal of a wind energy project on the island. (Elliot Ferguson/The Whig-Standard/)

“I don’t want to short-change any witnesses,” says Tribunal chair Robert Wright in extending the hearing

The Whig-Standard, February 2, 2016

By Elliot Ferguson

STELLA — A late influx of witness statements from Amherst Island residents had lawyers appearing before the Environmental Review Tribunal manoeuvring to find a way to incorporate them into this week’s hearings.

On the weekend, 14 more factual witness statements were submitted by lawyers representing the Association to Protect Amherst Island. They joined 30 other statements already filed.

Many of the statements include descriptions of sightings of the endangered Blanding’s turtle.

Additional expert witness statements and disclosure from the Ministry of the Environment and Climate Change were also submitted.

“We haven’t even had the chance to read these,” association lawyer Eric Gillespie said.

The tribunal had scheduled three days of hearings on Tuesday, Wednesday and Friday to deal with the resident witnesses, with the first residents to testify Tuesday morning.

The delay caused by the added witness statements, however, meant no residents took the stand Tuesday. Instead, Gillespie and Arlen Sternberg, a lawyer for Windlectric Inc., agreed that the tribunal would start an hour earlier on Wednesday and Friday to make up the lost time.

What was not agreed upon was the exact procedure for questioning and cross-examining so many witnesses in the shorter time frame.

Tribunal member Robert Wright encouraged both sides to figure out a way to both speed up the process and allow the witnesses to testify.

Please read the full story by Elliot Ferguson here.

Endangered wildlife key to citizen fight against Amherst Island wind power

Power developer says no turtles on Amherst Island; turtle experts and residents say there are.
Power developer says no turtles on Amherst Island; turtle experts and residents say there are.

Power developer claims no turtles were seen in its environmental assessment; experts and 30 citizens to testify with logs of turtle observations

The Whig-Standard, January 28, 2016

Elliot Ferguson

STELLA — Approximately 30 residents of Amherst Island will get to testify before the Environmental Review Tribunal about the presence of endangered Blanding’s turtles on the island.

In a conference call Wednesday, the tribunal rejected an attempt from lawyers for Windlectric Inc. to have the witness statements excluded from the proceedings.

Instead, the residents are to be presented during three days of hearings on the island next week.

Algonquin Power’s subsidiary Windlectric Inc. is proposing to build about 26 wind turbines on the island. The company’s lawyers had argued that the citizens’ statements about seeing Blanding’s turtles on the island had been falsified and photographs of the turtles were staged.

“It is important for us and we are happy that the tribunal recognized that, in fairness, that if Windlectric is allowed, through their expert, to say that people on the island are lying to oppose the project, well, we’re really, really happy that the tribunal recognized the fairness, or unfairness of that procedure,” said Michele Le Lay, spokesperson for the Association to Protect Amherst Island.

In a 2013 species at risk report prepared for Windlectric, Stantec Consulting Ltd. stated there are no Blanding’s turtles on Amherst Island.

“Over the course of all field surveys, no observations of either Blanding’s turtle or eastern musk turtle were made,” the report stated.

The opposing sides are to talk by telephone on Thursday to decide how the 30 residents could testify in three days of hearings in a manner that is fair to both sides.

Evidence that Blanding’s turtles live on the island could be critical to the project’s opponents.

 

Read the full story by Elliot Ferguson here.

Endangered turtle sighting testimony to be allowed in Amherst Island appeal

Spotted! (and by a lot of people) Endangered Blandings turtle
Spotted! (and by a lot of people) Endangered Blandings turtle

In spite of a move by the proponents’ lawyer to block testimony by expert witnesses called by the appellant, the Association to Protect Amherst Island, and further to disallow testimony of 30 residents of Amherst Island who have logged sightings of the endangered Blandings turtle, the Tribunal ruled today that the witness testimony would be heard.

The hearings in this matter have already begun, with a site tour on Monday and proceedings yesterday; the appeal will now likely take longer than the four days originally allowed.

The tribunal ruling is an important step in that allows actual residents of the affected community to be heard during the appeal.

For more information on the wind power project and Amherst Island, check the APAI website here: http://protectamherst.yolasite.com/

Amherst Island appeal resumes

Amherst Island is a favoured spot for owls, and other birds
Amherst Island is a favoured spot for owls, and other birds

Community alleges wind power project will harm environment and wildlife, and impact residents’ health

Kingston Whig-Standard, January 25, 2016

by Elliot Ferguson

STELLA — After more than a month-long hiatus, the Environmental Review Tribunal’s hearing into the Amherst Island wind energy project resumed Monday.

The tribunal began three days of hearings in Stella this week and included a tour of 16 points around the island.

Read the story here

Ostrander Point wind farm developer stuns appeal hearing Friday

On last hearing day, developer alleges bias and asks Tribunal panel to step down. Then the MOECC demands new criteria be used for the decision

January 16, 2016

The multi-year saga of the appeal of a wind power project approval at Ostrander Point on the South Shore of Prince Edward County continued yesterday in Toronto, at what was supposed to be a hearing of final oral submissions.

The day began slowly with the usual formalities.

Appellant lawyer Eric Gillespie said at the outset of the day that the purpose of the hearing was to review the proposed remedy to avoid killing endangered turtles. The developer needed to prove that the remedies will work, Gillespie said, and they have not.

Lawyer Chris Paliare said that the wind power project at Ostrander Point will be a costly experiment, with wildlife suffering as a result.

Then, counsel for the power developer Doug Hamilton stunned the audience and panel with his assertion that the panel was biased and should recuse itself. While both lawyers for the appellant and Intervenor objected, Chris Paliare said that this was the result of a “sinister plot” by the developer who saw that “things aren’t going their way.” It was preposterous to bring up such an unfounded and serious motion at this stage of the proceedings, Mr Paliare asserted.

Stunning tactics by lawyers for the developer, MOECC
Stunning tactics by lawyers for the developer, MOECC

Even more amazing was the introduction of the concept of “public interest” into the decision process, by Ministry of Environment and Climate Change lawyer Sylvia Davis. “It’s OK to kill turtles,” Ms Davis told the panel, if it’s for wind power because the project will reduce greenhouse gases and that is in the public interest.

“Are you saying that ‘public interest’ trumps everything?” asked panel chair Robert Wright.

“I’m not saying that,” Ms Davis answered, then said she didn’t have any further information.

Eric Gillespie said that in light of the issues now raised by the MOECC, he would be asking for an adjournment of the Amherst Island, White Pines, and Settlers Landing appeals until the issues were resolved.

Lawyers were directed by the panel to file final submissions by Wednesday January 20th.

Here is a report from the appellant, Prince Edward County Field Naturalists.

 

The drama continues

by Cheryl Anderson, Prince Edward County Field Naturalists

On Friday Jan 15 Heather Gibbs and Robert Wright of the Environmental Review Tribunal (ERT) panel, convened yet another day of hearings into the Prince Edward County Field Naturalists’ (PECFN) appeal of the Ministry of Environment and Climate Change (MOECC) Renewable Energy Approval (REA) of the Gilead Power Industrial Wind turbine project at Ostrander Point Crown Land Block.

This hearing was held to hear final oral submissions from Eric Gillespie, representing PECFN, Chris Paliare representing the South Shore Conservancy or SSC (intervenors supporting PECFN), Douglas Hamilton, representing Gilead Power and Sylvia Davis, representing MOECC.

This so-called re-hearing was brought about by the Court of Appeal decision last year which confirmed the original ERT decision, but sent the matter back to the ERT for consideration of Gilead’s proposed remedy to serious and irreversible harm to the Blanding’s Turtle — that is, to install gates on the turbine access roads. Arguments about this issue were heard throughout the late summer and fall and were remarkable for the admission from the Ministry of Natural Resources and Forestry (MNRF) Blanding’s Turtle expert, Joe Crowley, admission that he had recommended against the project when it was first proposed due to the danger it would cause to the population of Blanding’s Turtles at the site.

The final submissions of the Gilead Power legal team included two issues that began the hearing. One was the assertion that the time for making any decision about the remedy to the project had expired. The other was that the panel, specifically Mr. Wright was biased and that as a result the panel should recuse itself. This assertion was based on the fact that after giving the decision on Ostrander, Mr Wright was on the panel for another appeal where the ruling quoted from the Ostrander decision. On that panel with him was the ERT vice chair Jerry DeMarco, spouse of Anne Bell, Ontario Nature’s director of Conservation and Education.

In contrast to the usual, Ms. Davis did not agree with Mr. Hamilton in these two matters. Eric Gillespie and Chris Paliare spoke, also disagreeing with Mr. Hamilton. The panel reserved their decision (they will let us know later what they have decided).

We then came to the main arguments for the day which were oral presentations which essentially set out again all the reasons that PECFN (Eric Gillespie) and SSC (Chris Paliare) had for denying the remedy. This evidence relied on and reiterated the information given by Dr. Fred Beaudry and Ms. Kari Gunson at the hearings in the fall. Arguments were presented against the position of the approval holder (Gilead) and the MOECC that gates on the roads would save the turtles from serious and irreversible harm.

After lunch Mr. Hamilton and Ms. Davis had their turns to respond to the arguments presented by PECFN and SSC. This was, as expected, a reiteration of the written material which was sent before Christmas. Both commented that by installing gates serious and irreversible harm to the Blanding’s Turtle will be reduced to merely ‘universal’ harm and therefore the project should be approved.

However, in her written submission Ms. Davis had introduced a new issue which she now emphasized. That is, the MOECC is asserting that it was acting in the public interest by approving the Gilead power project because it involves renewable energy. There ensued a “discussion” between Mr. Wright and Ms. Davis regarding the MOECC’s Statement of Environmental Values (SEV). Mr. Wright has required Ms. Davis (and all other legal representatives) to submit to the Tribunal by Wednesday January 20 the arguments she is using to support her contention that approving the Ostrander Point project satisfies (or doesn’t) the Statement of Environmental Values of the MOECC.

Eventually the Tribunal will issue a decision on the issue of timing and bias. The final decision on the remedy issue will follow.

For more information and for a link to help out with fundraising in this important legal action, please go to: http://savethesouthshore.org/overview-of-issues/#sthash.b2k6ItFm.dpbs

Big bucks for Loyalist Twp for wind farm? Or crumbs off the developer’s table?

Loyalist Township

Loyalist Township’s Deputy Mayor is a cheap date

The CKWS Newswatch team reported that “Loyalist Township stands to rake in some big bucks once 26 wind turbines are built on Amherst Island.”

Two key agreements with Windlectric have been authorized by the township related to the 74.3 MW (megawatt) project that will see 26 turbines erected on the island. While the project has been authorized by the Ministry of the Environment and Climate Change (MOECC), the Association to Protect Amherst Island has appealed the approval.  The start date is therefore unknown as the developer must await the ruling of the ERT (Environmental Review Tribunal) which is not expected until the early Spring of 2016.

The term “big bucks” is relative to the size of the project and, perhaps, to the recipient of those “bucks”! In this case the community benefit agreed to is $500,000 annually for the next 20 years. On the surface it sure sounds like big bucks, but the really big bucks will wind up in the pockets of Windlectric’s shareholders.

Here’s how.

If the 74.3 MW capacity development operates at the expected average of 30% of its rated capacity, it should produce almost 2 million megawatt hours (MWh)of electricity and deliver that to Ontario’s grid — whether it’s needed or not. The math is simple:74.3 X 30% X 8760 (hours in a year) = 1,952,604MWh.

We should assume the Windlectric contract was executed prior to the slight downward movement in the feed-in-tariff (FIT) pricing, so for each MWh produced, Windlectric will be paid $135.00/MWh. If you do the math on what their annual revenue will be you might be surprised at the really “big bucks” they will receive!  The gross revenue for Windlectric will be about $26.4 million annually (1,952,604 MWh X $135 = $26,396,010) which most of us would consider “big bucks”!

Loyalist’s ‘big bucks’ is not even 2% of the developer’s revenue

The township will get $500,000 of the $26.4 million which amounts to 1.9% of the takeaway by Windlectic.   If the Amherst Island residents are, as the Deputy Mayor suggested, put “at ease” they shouldn’t be; council should have bargained much harder.

As one resident suggested, the “big bucks” may not be sufficient to even repair the damage to Amherst Island’s infrastructure after construction. And that doesn’t even consider the devaluation1. of property close to the turbines, destruction to migratory birds, plant and animal life, and of course to the 15 to 20 % of people who may feel the effects of the audible and inaudible noise on their health.

What a cheap date!

©Parker Gallant,  December 21, 2015

  1. Property devaluation will lead to reduced assessments and an eventual realty tax loss to the township.

The opinions expressed are those of the author and do not necessarily represent Wind Concerns Ontario policy.

Final evidence presented in White Pines appeal

Blandings turtle: clearly at risk
Blandings turtle: clearly at risk

Report on Environmental Review Tribunal Hearing on White Pines Wind Project‏‎

December 15

On Day 21 the Environmental Review Tribunal (ERT) heard the last witness in the appeal of the White Pines wind project.

APPEC tried to call three Reply Witnesses: Dr. Shawn Smallwood, an expert in avian wildlife behaviour and conservation; Robert McEwen, P. Eng., a structural engineer; and Kari Gunson, a road ecologist. Mr. McEwen and Ms. Gunson were intended to respond to WPD’s witness Shawn Taylor, who had done a survey of municipal roads on the day before he testified. Eric Gillespie, counsel for APPEC, asked the Tribunal either to disallow the new evidence collected at the eleventh hour or to allow APPEC an opportunity to respond. Mr. Gillespie argued that each party should have an equal opportunity to reply to the full submission of the other. 

Both MOECC counsel Andrew Weretelnyck and WPD counsel Patrick Duffy objected to the admissibility of Mr. McEwen and Mrs. Gunson as Reply Witnesses. The Tribunal agreed with their submissions and found that of the three witnesses only Dr. Smallwood’s evidence was proper reply.

Dr. Smallwood told the ERT he disagreed with WPD witness Dr. Strickland that pre-construction bat surveys have no value. He directed the Tribunal to graphs showing a plausible correlation between pre-construction bat activity and post-construction bat mortality. He noted that when more data is added the more the relationship is strengthened. This suggests there is value in doing pre-construction surveys to estimate bat fatality rates.  

Dr. Smallwood also noted that avoidance is not the same as displacement. While avoidance on a large scale will equal displacement, it might just as well involve manoeuvres to evade turbine blades, wind turbines, or an entire wind project. Repeated avoidance that leads to habitat loss is displacement. 

Today was the last day for evidence. The ERT will next hear submissions of the parties as follows:

Appellant Written Submissions – January 5, 2016
Respondent Written Submissions – January 15
Reply Written Submissions – January 19
Oral Submissions – January 20 in Prince Edward County 

ERT co-chair Marcia Valiante noted that this schedule leaves insufficient time for the Tribunal to meet the regulatory six-month deadline. As a result the Tribunal found that stopping the clock on the proceedings is required. Following the oral submissions the ERT will adjourn for four weeks and issue a decision on February 19, 2016. 

 –Paula Peel

Alliance to Protect Prince Edward County