Prince Edward County Field Naturalists win appeal, MOE approval of wind project revoked

Countylive.ca July 3 2013
The endangered Blanding’s turtle has helped the Prince Edward County Field Naturalists take down turbines. The Environmental Review Tribunal has allowed the appeal of the Ostrander Point Project by PECFN on grounds of serious and irreversible harm to the natural environment, and has revoked the approval of the project by the Director, Ministry of the Environment.

Lawyer Eric Gillespie represented the PECFN and the Alliance to Protect Prince Edward County (APPEC). The two citizen-based groups, on Jan. 4, 2013 – appealed the Ministry of the Environment’s approval of Gilead Power’s nine turbine Ostrander Point industrial wind project. The approval of the project by the MOE came under fire as it was issued Dec. 20, 2012 – just before the Christmas holidays.
The tribunal decision was announced Wednesday after 40 days, 185 exhibits and testimony of 31 expert witnesses appeared before the panel of lawyers Robert Wright and Heather Gibbs in Demorestville and Toronto.
The tribunal concluded “that engaging in the project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment. This is on the basis of findings that such harm will be caused to Blanding’s turtle.”
The PECFN appeal hearing took place over 24 hearing days and the APPEC appeal hearing took 16 days. The tribunal heard from nine witnesses for PECFN, 15 for  APPEC, 10 for the Director and 13 for the approval holder.
The two citizens’ groups submissions had to prove the project will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.
The tribunal concluded APPEC did not meet the first branch of the test regarding harm to human health “because no causal link has been established between wind turbines and human heath effects at the 550m setback distance required under this renewable energy approval.”
PECFN argued the Crown land on the south shore of Prince Edward County “is a highly sensitive ecological area and the wrong location for a wind farm because it is particularly susceptible to serious and irreversible harm, and that as Crown land, it ‘is a resource that belongs to all Ontarians.’ PECFN submitted that if wind turbines can be erected in this location, then they can be erected anywhere in Ontario. PECFN further submitted that the proposed “mitigation technologies are untested, unproven and unreliable.”
From the Summary of Findings:
Issue No. 1: Whether engaging in the Project in accordance with the REA will cause serious harm to human health.
[627] The evidence in this proceeding did not establish a causal link between wind turbines and either direct or indirect harm to human health at the 550 m set-back distance required under this REA.
[628] The evidence in this hearing did not establish that engaging in the Ostrander Point wind turbine project in accordance with the REA will cause serious harm to human health.
[629] For these reasons the Tribunal finds that the Appellant has not established that engaging in the Project in accordance with the REA will cause serious harm to human health, and dismisses APPEC’s appeal.
Issue No. 2: Whether engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment.
Sub-issue 1: animal life
[630] The Tribunal finds that mortality due to roads, brought by increased vehicle traffic, poachers and predators, directly in the habitat of Blanding’s turtle, a species that is globally endangered and threatened in Ontario, is serious and irreversible harm to
Blanding’s turtle at Ostrander Point Crown Land Block that will not be effectively mitigated by the conditions in the REA.
[631] The Tribunal finds that the appellant has not established that engaging in the Project in accordance with the REA will cause serious and irreversible harm to birds or their habitat.
[632] The Tribunal concludes that PECFN has not established that engaging in the Project in accordance with the REA will cause serious and irreversible harm to bats.
[633] The Tribunal finds that PECFN has not established that engaging in the Project in accordance with the REA will cause serious and irreversible harm to Monarch butterflies.
Sub-issue 2: plant life
[634] The Tribunal finds that PECFN has not shown that engaging in the Project in accordance with the REA, (i.e., including the minimum mitigation measures outlined in s. I17 of the REA that must be included in a future ARMP), will cause serious and irreversible harm to alvar plants or the alvar ecosystem at the Ostrander Point Crown Land Block.

How a turtle toppled Prince Edward County wind turbines
Former premier Dalton McGuinty could never have imagined the Blanding’s turtle would thwart his dream of a wind-driven green economy in Ontario
By: Jim Coyle Toronto Star Jul 05 2013
In honour of the hero of this tale, the small but mighty emydoidea blandingii, it shall unfold slowly and sedately, at a turtle’s pace.
Once upon a time, after his re-election in 2007 to a second majority government, then-premier Dalton McGuinty had a change of attitude. He returned to work, he said, with more confidence and less patience.
By 2009, McGuinty decided the economic recession pounding Ontario demanded that his Liberal government be bold, make controversial decisions and, if necessary, brush NIMBYists aside wherever they raised their heads.
That February, the former premier announced his Green Energy Act, an initiative that would, he foretold, generate a prosperous, sunny Ontario of whirring wind turbines, solar power and 50,000 new jobs. The green economy was the future, he said, “and we need to get there first.”
The group successfully fought the plan, arguing it would harm the habitat of the Blanding’s turtles. zoom
Among the many things Dalton McGuinty didn’t reckon on, however, was the Blanding’s turtle, or the feistiness of folks down in Ontario’s very own distinct society of Prince Edward County.
By the 2011 Ontario election, it was already apparent that offended anti-wind citizens dismissed as NIMBYists were intent on wreaking their revenge — campaigning to defeat Liberal MPPs in just about every riding with a turbine and reducing McGuinty to a minority government.
Then, this past week brought a stunner worthy of Truman beating Dewey in 1948, or the Miracle Mets of ’68, or Pierre Trudeau welcoming us all to the 1980s.
A proposed wind farm at Ostrander’s Point in The County, as it’s known locally, was rejected by an Ontario Environmental Review Tribunal.
Not because the wind turbines are harmful to humans. Not because the turbines are to some a blight on pastoral landscapes. Not for any reason to do with electricity policy or wind power.
No, the Ostrander Point proposal was rejected because it threatened the peaceful and orderly future of the Blanding’s turtle.
Overnight, in Prince Edward County at least, the charming little reptile named in honour of a Philadelphia naturalist who first identified it in the mid-1800s became the most famous of its kind since Dr. Seuss’s prideful Yertle the Turtle.
But let’s slow down.
The Battle of Ostrander Point began in earnest just before Christmas 2012 when the Ontario Environment Ministry approved a developer’s proposal to build nine 135-metre-high wind-turbine generators on 324 hectares of provincial Crown land about 15 kilometres south of Picton.
It was the first wind project approved on public land and required octagonal concrete platforms 18 metres in diameter for the turbines, 5.4 kilometres of access roads, underground cabling and overhead distribution lines and a parking and maintenance yard adjacent to a transformer substation for connection to the Hydro One electricity grid.
In The County, this was not a decision greeted with the popping of champagne corks. While some farmers had signed up for the cash-cow that the wind program seemed to be, many residents were not just unamused but mightily steamed.
After all, Prince Edward County is a singular and, by dint of geography, virtually separate part of Ontario.
It was settled in the 18th century by United Empire Loyalists. Over the last several decades, tourism and the wine industry have become staple industries. Day-tripping cyclists, birders and campers hit the back roads, trails and alluring white beaches of its provincial parks. The main towns of Picton, Bloomfield and Wellington appeal to artists, epicureans and fans of the theatre. All while the well-off buy, renovate and build recreational and retirement homes.
All this not only ensured local indignation at the intrusion of industrial-strength wind turbines into a bucolic retreat, but also provided the sort of organizational expertise and affluence needed to mount effective community action.
In January, two groups in The County filed appeals of the Environment Ministry’s decision to approve the Ostrander Point wind farm.
One, the Alliance to Protect Prince Edward County, focused on the potential adverse effects of wind turbines on human health. The other, the Prince Edward County Field Naturalists, argued against the project’s potential harm to the natural habitat.
In a decision issued Wednesday, the tribunal said the Alliance did not meet the test of proving a causal link between wind turbines and human health effects.
But to the joy of The County’s nature-lovers, it upheld the appeal by the Field Naturalists on the grounds of serious and irreversible harm to — fanfare, please — the Blanding’s turtle.
To some, this was a bit of a cop-out — leaving to another day the question of the health impact of wind farms and rendering this decision a rather specific one-off.
Gord Gibbins, president of the Alliance, told the Star “we’re all happy” and there was a “big buzz” in The County, but his group would have preferred victory on broader grounds.
“It leaves questions unanswered,” he said. “We expected to win on the health (concerns).”
By any measure, however, it was a rare case of human respect for creatures great and small. For Blanding’s turtles, which have a bright yellow throat and chin, average 1.3 kilograms in weight, are about 18 to 25 centimetres long and live for more than 70 years, you have to think it was a day worthy of the terrapin equivalent a tickertape parade.
The hearings on the issue began in March and produced testimony that was both highly technical and distinctly down-to-earth.
There was the splitting of legal hairs over what exactly constitutes “serious and irreversible harm.” Then there was the testimony of Dr. Robert Thorne, an acoustician or expert in sound, who said wind turbines “whoosh” and “thump” as the rotor blade passes the turbine tower and the “rumble-thump” they produce can sound “like a boot in a dryer.”
Early on, defenders of Ostrander’s Point, on The County’s south shore on Lake Ontario, portrayed the appeal as an epic David and Goliath mismatch — a soulless corporate entity represented by Bay Street lawyers against locals desperately fundraising to meet their legal bills.
The Field Naturalists were a citizens’ group of fewer than 50 members who had managed to raise almost $60,000 to fund an appeal with legal costs twice that amount.
Who could have imagined that the fate of their efforts would turn not on the usual turbine victims such as birds, bats and butterflies, but on the shelled back of the timid little Blanding’s turtle?
It turned out the proposed Ostrander’s Point site was a habitat for the creature, a semi-aquatic turtle that’s already a threatened species in Ontario.
Females do not reach sexual maturity for almost 20 years and produce 10 to 14 eggs every 18 months or so. With predators taking their toll, “there is very little chance that a single egg will make it to a breeding turtle,” the tribunal found.
One of the chief threats to the turtle, as it goes about its slow but steady business, is road mortality. The Field Naturalists argued that construction of roads on the site would increase traffic, both related to construction and the public afterward, and would subject the turtles to threat by both vehicles and the coyotes and foxes, and egg-raiding skunks and raccoons likely to use new access roads to traverse the habitat.
Kari Gunson, primary road ecologist consultant with the Ontario Road Ecology Group, told the tribunal that roads also cause habitat loss and fragmentation, as well as changes to vegetation and hydrology.
The use of signs, speed bumps, driver training and reduced speed limits seemed not to reduce the turtle carnage, she said, nor did she put much faith in culverts or tunnels as solutions.
At the end of the day, the tribunal concurred, finding that the proposed project posed “serious and irreversible harm to Blanding’s turtle at Ostrander Point Crown Land Block that will not be effectively mitigated” by the developer’s proposals.
With that, the tribunal revoked the ministry’s earlier decision. And the Twitter-verse lit up.
“We won!” tweeted the County Coalition for Safe and Appropriate Green Energy. “FANTASTIC.”
And how implausible, really, that an impatient man’s aspiration for boldness and speed — and a government’s zeal to “get there first” — should be thwarted by one of the slower plodders under the heavens.