Canada: ERT Allows Another Appeal Of A Wind Farm Approval

Last Updated: March 8 2016
Article by Bryn Gray and H. Michael Rosenberg

Most Read Contributor in Canada, September 2018

 The Environmental Review Tribunal ("ERT" or "Tribunal") has granted an appeal of a Renewable Energy Approval ("REA") issued to wpd White Pines Wind Incorporatedfor its 27 turbine White Pines Wind Project in Prince Edward County (see case 15-068 Hirsch V. Ontario (MOECC) dated February 26, 2016). The ERT concluded the project would cause serious and irreversible harm to two species at risk, the Little Brown Bat and the Blanding's Turtle. While this is the third REA appeal granted by the ERT, it is the first time that it has found a wind project would cause serious and irreversible harm to bats and this could have significant implications for future projects.

Little Brown Bat

The Little Brown Bat is an endangered hibernating bat that roosts in trees and buildings during the spring and summer months. The expert evidence before the Tribunal indicated that the Little Brown Bat population in Ontario used to exceed 6 million but has dropped by 90 to 95 per cent over the past six years due to White-nose Syndrome. This is a disease caused by a fungus that colonizes the bat's skin.

Despite there being no direct evidence of Little Brown Bats in the vicinity of the project, the ERT held on a balance of probabilities that the Little Brown Bat was present in the project area based on its historic presence in Prince Edward County and the existence of some foraging habitat for bats in the project area. The ERT also held that the project would cause serious and irreversible harm even assuming that Little Brown Bat fatalities would be few in number based on expert evidence that even small-scale impacts will lessen the species' chance of recovery over the life of the project.

This is a significant ruling given the potential presence of the Little Brown Bat throughout southern Ontario and the low threshold applied by the ERT. It will likely result in a heightened focus on bat issues in the REA process and future ERT appeals. This decision also underscores the need for developers to ensure that they conduct appropriate acoustic monitoring at sites to provide indications of bat activity and abundance in the event this issue is challenged in the future. This was not done in this case and this was troubling to the ERT.

Blanding Turtle

This is the second decision in which the ERT has found that construction and/or operation of a wind project would cause serious and irreversible harm to the Blanding's Turtle, a species of turtle that is classified as threatened in Ontario (the first decision, regarding Ostrander Point Wind Farm, is currently awaiting a decision from the ERT on whether there is an appropriate remedy that would allow the project to proceed without causing serious and irreversible harm to the turtles).

In its decision on the White Pines Wind Project, the ERT accepted evidence that Blanding's Turtle habitat occurs at the project site and that the turtles regularly use the site for part of their lifecycle, as well as evidence that even a small incremental increase the death of adult turtles on an annual basis (as low as 2% above the natural mortality rate) could cause the species to become extirpated.

In contrast to the ERT's original decision on the Ostrander Point Wind Farm, the ERT found that road mortality associated with the wind farm access roads will not result in serious harm to the Blanding's Turtle, due to the mitigation measures and conditions in the REA including that the roads will be on private land and closed to the public. However, the ERT found that upgrading of municipal roads will more likely than not lead to increased annual turtle mortality, as the roads will be open to the public, speed limits will increase, the roads will be used without restriction during active season, and will be used by vehicle operators who have not been trained to avoid turtles. The ERT concluded that the resulting death of even a few turtles will likely cause serious harm to the local population. Notably, the REA did not contain conditions and mitigation measures to reduce turtle mortality on municipal roads.

The ERT also found that upgrades to municipal roads and construction of crane pads, turbine bases and access roads will likely result in increased turtle nest predation (as the turtles will use the exposed crane pads, turbine bases and roads as nesting sites instead of their current, more protected sites) and that these effects combined with mortality on municipal roads will cause serious and irreversible harm to the Blanding's Turtle.

Other Grounds & Remedy

Beyond the Little Brown Bat and Blanding's Turtle, the appellants raised a number of other grounds which were not successful. The ERT once again dismissed an appeal on health grounds concluding that there was insufficient evidence to demonstrate that the project would cause serious harm to human health. The ERT also concluded there was insufficient evidence to establish serious harm to migrating birds or three specific bird species at risk (Bobolink, Eastern Meadowlark and the Eastern Whip-poor-will) or serious and irreversible harm to hydrogeology and hydrology in the area.

Conclusion

While the Tribunal allowed the REA appeal, it has not yet made a determination on remedy and this will be the subject for further submissions. If this matter is not appealed, we will be following with interest to see if the project developer is able to: (1) develop and undertake adequate studies on the presence of Little Brown Bats to convince the Tribunal that the project will not cause fatalities and consequential serious and irreversible harm to this species; and, (2) develop additional mitigation measures adequate to convince the Tribunal that the upgrading of municipal roads and increased predation at the project site will not cause serious and irreversible harm to the Blanding's Turtle.

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