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:

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:

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

Google Earth good enough for research by White Pines environmental consultants

What? We don't show up on Google Earth? [Photo: Prince Edward Point Bird Observatory]
What? We don’t show up on Google Earth? [Photo: Prince Edward Point Bird Observatory]

Wind power developer wildlife consultant never visited Prince Edward County, used Google Earth to inspect the site, and dismisses “Important Bird Area” designation (that’s for bird-watchers, he says in testimony)

Report on Environmental Review Tribunal Hearing on White Pines Wind Project

December 11 

On Day 20 the Environmental Review Tribunal (ERT) on the White Pines wind project heard APPEC witness Rick James and an expert witness for developer WPD, Dr. Dale Strickland.

Mr. James, qualified previously as an acoustician, presented new evidence in reply to Denton Miller, witness for the Ministry of Environment and Climate Change (MOECC).  Following new ministry guidelines and omitting disallowed wind turbines T7 and T11, he calculated that 13 “points of receptions” (i.e., homes) would suffer noise above 40 dBA.

Both MOECC counsel Andrew Weretelnyck and WPD counsel James Wilson questioned Rick James on 40 dBA as a measure of serious harm.  James said the MOECC had set this compliance limit and the World Health Organization (WHO) had found health effects, specifically annoyance and sleep disturbance, start at 40 dBA.

In re-examination APPEC counsel Eric Gillespie confirmed with James that WHO had reported noise complaints during nighttime begin at 35 dBA.

Dale Strickland, Ph.D., founder and president of Western EcoSystems Technology, a Wyoming consulting firm with business and government clients, has published over 150 scientific papers and technical reports during a 40-year career.  The Tribunal qualified him as “a zoologist with expertise in ecological research and wildlife management, including assessing the impacts of wind turbines on wildlife.”

WPD counsel Patrick Duffy asked Dr. Strickland about the appropriate scientific measure for serious and irreversible harm.   He said it is based on the overall genetic and demographic status of a species’ population.

According to Dr. Strickland, the White Pines surveys of birds and bats are “adequate,” conform to established methods and published guidance, and are similar to those for other wind projects.  Bats would not be high in number without the presence of hibernacula.  Acoustical surveys are not necessary because they record bats at ground level and the results do not correlate with bat deaths at wind turbine rotor level.

Dr. Strickland also said the effects on habitat would be minimal.  Loss from access roads and other construction is relatively small, and displacement from habitat would not be significant because of the project size.

Regarding collisions, Dr. Strickland predicted 5-15 bird deaths annually per turbine, the same as at other North American sites.  He defended the Wolfe Island monitoring records, stating the mortality rates are reasonable for a searched radius of 50m, an area commonly used at other wind projects.  Considering the project location and size, he concluded that White Pines would not cause serious and irreversible harm to wildlife.

In cross-examination Eric Gillespie confirmed that Dr. Strickland had not visited the White Pines site but had based his opinions on WPD’s reports and on Google Earth images.  Although aware of Prince Edward Point National Wildlife Area and Point Petre Provincial Wildlife Area, he did not know their proximity to wind turbines.  However, he dismissed the “globally significant” South Shore Important Bird Area because the IBA designation reflects convenient public access and use of the site for bird-watching.

Dr. Strickland did not know of an “activity report” by the Ministry of Natural Resources and Forests finding five threatened bird species and three bat species in the White Pines area.  He agreed with Mr. Gillespie that such information might have influenced his opinions.  Similarly, he conceded that if there had not been adequate surveys for karst, then one needed more information to estimate the bat population.  He also admitted that the cumulative effects of wind projects must be considered to determine local impacts on birds.

When asked by ERT co-chair Marcia Valiante about a proposed 31ha compensation property, Dr. Strickland said it would have little measurable effect on the populations of displaced bobolinks and eastern meadowlarks.

-by Henri Garand, APPEC

Amherst Island appeal begins: significant impact on birds

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

The Whig-Standard, December 7, 2015

BATH — The appeal of the approval of a controversial wind energy project on Amherst Island is underway.

The Association to Protect Amherst Island is appealing to the Environmental Review Tribunal the decision by the Ministry of Environment and Climate Change to approve Windlectric’s application to build 26 turbines on Amherst Island.

In late August, the provincial government approved the project subject to more than two dozen conditions.

The appeal began on Friday and is to include a series of hearings between then and Dec. 22.

The association has hired environmental lawyer and University of Toronto adjunct professor Eric Gillespie to represent it.

On Friday, the tribunal heard testimony from Tom Beaubiah from the Cataraqui Region Conservation Authority, who spoke about potential impact on Owl Woods, wintering raptors and avian habitat.

Beaubiah requested that if the appeal is rejected and the project goes ahead, that additional conditions be placed on it to further investigate wildlife areas, relocate turbines and include the conservation authority in post-construction monitoring.

Island resident Amy Caughey also provided comment about health and safety concerns related to locating industrial components of the project, including a cement plant, laydown area, transformer station, mobile fueling, a maintenance building and construction office close to the Amherst Island Public School.

Bill Evans testified on behalf of the Kingston Field Naturalists about the project’s potential impact on bobolinks, of which there are about 2,800 on the island.

The Amherst Island project would kill more than 32 bobolinks each year, casualties that, when combined with loss of breeding habitat, would seriously threaten the bird’s population in Ontario.

Among the experts still to be called upon to testify for the association are epidemiologist Carl Phillips and biologist Christina Davy, who are to be backed by experts in hydrology, hydrogeology, ecology and biology.

The appeal comes in the wake of Ontario auditor general Bonnie Lysyk’s annual report that showed deficiencies in the province’s electricity system that have cost taxpayers billions of dollars.

Lysyk’s report showed the long-range plans from the Ontario Power Authority have not been reviewed and approved by the Ontario Energy Board.

Between 2006 and 2014, the electricity portion of the hydro bills of residential and small-business consumers increased by 70 per cent, according to Lysyk’s report. Included in that cost are fees paid to power-generating companies over the market price that cost consumers $37 billion over that time period. Those fees are expected to increase to $133 billion between 2015 and 2032.

Between 2009 and 2014, Ontario’s average annual electricity surplus was equivalent to the power-generating capacity of Manitoba, and the Independent Electricity System Operator predicts the power-generating capability of Ontario will exceed the province’s demand by an amount equivalent to Nova Scotia’s power needs for about five years.


Two-thirds of contested White Pines project on endangered species habitat, Tribunal hears

I'm here
I’m here

Alliance to Protect Prince Edward County

Report on the ERT Hearing on the White Pines Wind Project – Dec. 4, 2015
By Henri Garand, APPEC

On Day 17 the Environmental Review Tribunal (ERT) of the White Pines wind project heard the testimony of WPD witnesses Shawn Taylor and Dr. Paul Kerlinger.

Mr. Taylor was qualified by the Tribunal as “an ecological restoration and construction mitigation specialist.”  However, he testified at length about Blanding’s turtles because of his participation in a four-year study involving a Kanata road extension into their habitat.

After classifying the roads (paved, gravel, and access) required for White Pines, Taylor spoke about the risks from higher traffic, but he said these are minimal due to the “block-out period” on construction between April 15 and October 15, and the later infrequent maintenance visits.  Mitigations such as staff training and 15km speed limits will protect turtles.

Taylor also felt that “new roads would not increase fragmentation of Blanding’s turtle habitat.”  He described the access roads as “laneways” flush to the ground surface and therefore not a barrier to turtles.  Similarly, turtles will readily move through the nine culverts to be constructed.  The roads would also not interfere with water flow into deep wetlands, crucial overwintering habitat.

Predation of eggs and young by foxes, raccoons, and skunks is possible but could be mitigated by compaction and reduction of roadside gravel, though neither method is cited in the White Pines construction report.

During cross-examination by APPEC counsel Eric Gillespie, Taylor admitted that his witness statement is incorrect in describing most access roads as passing through ploughed fields instead of cultural meadow, alvar, and treed land. Only nine turbines are located within current agricultural fields.   The access “laneways” would be 5m wide, with brush clearance as much as 5m on each side.

Taylor also conceded that two thirds of the White Pines project lies within primary Blanding’s turtle habitat. According to a map in WPD’s Natural Heritage Assessment, wind turbines T7, T11-24, and T27-29 all fall within known turtle egg excavation or spring foraging areas.

Paul Kerlinger, Ph.D., was qualified as “a biologist with specialization in bird behavior and expertise on the impacts of wind energy projects.”   Once an Audubon Society director of the Cape May Observatory, Kerlinger redirected his career to studying avian risks from wind projects in Canada, Mexico, Spain, and the United States, and he has testified in 100 cases as an expert witness on behalf of developers.

Although stating that “all wind projects kill birds,” Kerlinger does not regard this as “serious and Irreversible harm” because the fatalities are not statistically significant at the species population level, whether measured as a percentage or by population viability models (which take into account reproductive rates, dispersal and mortality).   He said studies show that mortality ranges from 6-9 birds per turbines per year, and the upper figure applies to Wolfe Island when its monitoring records are averaged over three years.

Under cross-examination Kerlinger admitted there are different views of the appropriate geographical scale to be considered for assessing risk to bird populations.  He also conceded that monitoring results are dependent on search area size and terrain, number of predators, frequency of searches, and staff training.  Data comparison across projects is complicated by differing turbine sizes and power output.  Finally, though noting the effectiveness of such mitigations as flashing lights and turbine shutdowns, he said he had made no suggestions to WPD.

The ERT resumes Monday, December 7, 10 a.m., at the Prince Edward Community Centre, 375 Main St., Picton.