Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: December 7, 2015

CASE NO.: 15-037

PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: SLWP Opposition Corp.

Approval Holder: Settlers Landing Nominee Ltd.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for Settlers Landing Wind Park

Reference No.: 8992-9TVSKD

Property Address/Description: 510 Telecom Road Part of Lots 7-9, Concession 3

Municipality: City of Kawartha Lakes

ERT Case No.: 15-037

ERT Case Name: SLWP Opposition Corp. v. Ontario (Environment and Climate Change)

Heard: September 9, 10, 11 and October 22, 2015 in Pontypool, Ontario, November 9, 2015 by telephone conference call, and in writing.

APPEARANCES:

Parties

• SLWP Opposition Corp.: Graham Andrews
• Director, Ministry of the Environment and Climate Change: Nadine Harris and Katie Clements
• Settlers Landing Nominee Ltd.: Grant Worden, John Terry and Dennis Mahony

Participants

• City of Kawartha Lakes: Robyn Carlson
• Save the Oak Ridges Moraine Coalition: Cindy Sutch

Presenters

• Jane Zednik: Self-represented
• Monica McCarthy: Self-represented

ORDER DELIVERED BY JUSTIN DUNCAN AND HEATHER GIBBS

REASONS

Background

1On May 7, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Renewable Energy Approval No. 8992-9TVSKD (the “REA”) to Settlers Landing Nominee Ltd. (the “Approval Holder”), granting approval for the construction, installation, operation, use and retiring of a Class 4 wind facility with a total name plate capacity of 10 megawatts (the “Project”). The Project is to be located at 510 Telecom Road in the City of Kawartha Lakes, Ontario (the “Site”). The Site is within the Oak Ridges Moraine Conservation Plan (“ORMCP”) area, within the “Countryside Area” designation.

2On May 22, 2015, SLWP Opposition Corp. (the “Appellant”) appealed the REA to the Environmental Review Tribunal (the “Tribunal”) on the grounds that the Project will cause serious harm to human health (“Health Test”) and serious and irreversible harm to plant life, animal life or the natural environment (“Environment Test”).

3Evidence was heard on the appeal in Pontypool, Ontario on September 9, 10 and 11, 2015, with closing submissions heard on October 22, 2015. Additionally, a motion to introduce new evidence under Rule 234 of the Tribunal’s Rules of Practice relating to woodland and grassland habitat compensation was heard on October 22, 2015. The motion was granted by the Tribunal, and the Appellant was given the opportunity to file responding evidence in writing. Responding evidence by the Appellant, along with additional evidence by the Approval Holder, was filed on November 9, 2015. Additional closing submissions in relation to woodland and grassland habitat compensation were also filed by the parties on November 9, 2015 and the Tribunal held a telephone conference call (“TCC”) that day to hear submissions on those remaining matters.

4On November 19, 2015 the Tribunal issued an order finding that the Appellant has failed to meet the onus under the Health Test but has met the onus under the Environment Test, specifically in relation to the removal of portions of a significant woodland and impact to woodland habitat in the Project area. The Tribunal’s order, as well as the hearing of evidence and submissions regarding several issues, has taken place in the context of the expedited procedure and unique test required by the Environmental Protection Act (“EPA”). These are the reasons for the Tribunal’s order of November 19, 2015.

Relevant Legislation

5The following provisions of the EPA set out the jurisdiction of the Tribunal on this appeal, the onus of proof of the Appellant and the powers of the Tribunal where the Appellant has met their evidentiary onus:

What Tribunal must consider

145.2.1 (2) The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

Onus of proof

(3) The person who required the hearing has the onus of proving that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b).

Powers of Tribunal

(4) If the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b), the Tribunal may,

(a) revoke the decision of the Director;

(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or

(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

(6) The decision of the Director shall be deemed to be confirmed by the Tribunal if the Tribunal has not disposed of the hearing in respect of the decision within the period of time prescribed by the regulations.

Issues

6The three issues to be determined on this appeal are as follows:

1. Whether engaging in the Project in accordance with the REA will cause serious harm to human health.

2. Whether engaging in the Project in accordance with the REA will cause serious harm to human health, or serious and irreversible harm to the natural environment, specifically through hydrological or hydrogeological impacts.

3. 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, specifically through impacts to grassland bird habitat and to woodlands/woodland habitat.

7The Tribunal heard evidence from a total of 17 witnesses on this appeal. The Appellant tendered evidence from Doug McRae, David Bridges, Stuart Williams and Heather Stauble. Additionally, the Appellant summonsed David Kerr, an employee of the City of Kawartha Lakes (the “City”), to testify.

8Also in support of the appeal, the Tribunal heard evidence from Ron Taylor of the participant City, and Cindy Sutch on behalf of the participant Save the Oak Ridges Moraine Coalition (“STORM”) and from the two presenters, Jane Zednik and Monica McCarthy.

9On behalf of the Director, the Tribunal heard evidence from Shawn Kinney and Mahdi Zangeneh.

10On behalf of the Approval Holder, the Tribunal heard evidence from David Eva, Dr. Robert McCunney, Grant Whitehead, David Charlton, Dr. Paul Kerlinger and Shant Dokouzian.

11The Tribunal has considered all the evidence of the parties, participants and presenters, and the various submissions in detail. In these reasons, the Tribunal has only included a summary of the evidence and submissions received.

Issue No. 1: Whether engaging in the Project in accordance with the REA will cause serious harm to human health.

Evidence

a. Appellant

12To begin, Mr. Bridges testified on behalf of the Appellant. He testified, among other things, that as the Project is located at the highest point of the Oak Ridges Moraine (“ORM”), the Project will appear to dominate the countryside. He expressed his view that the Project will undermine and conflicts with the purpose of the Oak Ridges Moraine Conservation Act, 2001 (the “ORMCA”) which is to protect the ORM in perpetuity. Mr. Bridges also explained that there was an original proposal for 30 turbines that have now been split into five different projects which, in his view, was intended to reduce the setbacks necessary for turbines from 750 metres (“m”) to 550 m.

13Ms. Stauble is the City Councillor for the area in which the Project will be located. She testified about the character of the ORM and provided an overview of her concerns relating to the Project and the process leading to its approval. In particular, she testified that the MOECC had committed to conduct a cumulative effects study to assess the impacts of the Project in conjunction with the nearby Snowy Ridge and Sumac Ridge Projects, but that such an assessment has not yet occurred. Ms. Stauble expressed the view that noise receptors located between the Project and other adjacent projects should have a specific noise assessment done based on the cumulative noise from both projects.

14Ms. Stauble also expressed concerns about health impacts from the Project to residents in the area, including loss of sleep and increased annoyance and stress levels that may result from the Project.

b. Presenters

15Ms. McCarthy testified about her concerns relating to impact to children and other vulnerable individuals, such as those using pacemakers, resulting from the Project, including from potential noise impacts.

c. Director

16Mr. Zangeneh was qualified by the Tribunal as a mechanical engineer with special expertise in noise and the application of the MOECC’s 2008 Noise Guidelines (the “MOECC Guidelines”) for wind turbines. He explained that the closest Project turbine to a non-participating receptor is 635 m and as a result, the Project meets the regulated setback of 550 m.

17With regards to assessing cumulative noise impacts, Mr. Zangeneh explained that under the MOECC Guidelines one must first identify a receptor within 1,500 m of a turbine, and then use all turbines within 5,000 m of that receptor to assess noise impacts. He explained that this was undertaken for the Project. He stated that all five wind turbines from the Sumac Ridge Wind project were used in the noise modeling, but that none of the turbines from the Snowy Ridge project are captured within the 5,000 m radius and were not modeled. Mr. Zangeneh also explained how the conditions in the REA are intended to monitor and verify noise levels for the Project, including noise from the turbines and the transformer substation.

18In cross-examination, Mr. Zangeneh acknowledged that the Snowy Ridge project is close to the 5,000 m limit stipulated for assessment under the MOECC Guidelines. However, he testified that the contribution of turbines over 5,000 m away to noise would be a fraction of a decibel (“dBA”). In other words, the contribution to noise would not be noticeable. He also testified that in preparing for the hearing that he had included the Snowy Ridge project turbines and verified that their added contribution to noise was is in the range of only 0.03 – 0.04 dBA when combined with the noise from the Project.

d. Approval Holder

19Dr. McCunney was qualified by the Tribunal as a medical doctor specializing in occupational and environmental medicine with particular expertise in health implications of noise exposure. In summary, his evidence was that in his various reviews and syntheses of expert literature, he found no association between exposure to wind turbine noise and health effects, nor has any been generally recognized. More specifically, he considered the various concerns of the Appellant’s witnesses in relation to susceptibility of children and shadow flicker allegedly causing epilepsy, among other health issues, and opined no such causation has been shown. It was his opinion that the Project will not pose a serious risk to human health.

20In cross-examination, Dr. McCunney acknowledged that theoretically, infrasound (sound below human audibility) could have a health effect, but he testified that it has not yet been demonstrated in any of the studies he has reviewed. Dr. McCunney also defined serious harm from a medical perspective to be a situation where a person’s life is impacted by the diagnosis of disease and that it interferes with their ability to work, they need to take medication, or the disease markedly impairs their ability to engage in activities of daily life.

21Mr. Dokouzian was qualified by the Tribunal as an engineer with expertise in wind turbine impact assessment, including noise and shadow flicker, risk and public safety assessment, and post-construction monitoring. He explained how the MOECC Guidelines apply to the Project and the steps taken to comply with the Guidelines. Mr. Dokouzian opined that the noise assessment performed for the Project was conservative and he verified that all Sumac Ridge turbines were considered in conjunction with the Project as part of a cumulative assessment conducted for noise. He also explained that the Snowy Ridge project turbines were excluded from the assessment as they were beyond 5,000 m from any turbine of the Project.

22Mr. Dokouzian also opined that the turbines to be used for the Project are modern top-tier models with a very low risk of fire. Additionally, as the Approval Holder is adding a fire suppression system, he opined that the risk of fire was further reduced.

23In relation to shadow flicker, Mr. Dokouzian explained that modeling undertaken for the Project considered worst case scenarios and the highest amount of shadow flicker possible for any observer yearly is a total of 14 hours, 59 minutes. It was his opinion that this is a low total annual amount, and that it is likely that reality will result in much less flicker being experienced by anyone.

Submissions

24The Appellant submits that the Project will cause serious harm to human health through noise and infrasound impacts and visual impacts if the construction and operation of the Project as approved is permitted to proceed.

25The Appellant submits that the Project, being located in the middle of a heavily populated rural area, will expose thousands of residents to noise and infrasound that will have a serious adverse impact on a non-trivial percentage of them. The Appellant requests that the appeal be allowed and the REA revoked.

26The Director submits that the evidence adduced by the Appellant fails to meet the Health Test. The Director submits that the Appellant did not call any medical experts to support its allegation of harm to human health and relied solely on the testimony of one lay witnesses and a presenter. At its highest, it is argued, this evidence establishes that individuals have concerns about the Project and it does not establish that the Project will cause harm to human health. In opposition, the Director submits, the respondents called the superior evidence of two noise engineers and a medical doctor whose evidence addressed the concerns raised by these two witnesses.

27The Director requests that the Tribunal dismiss the appeal and confirm the decision of the Director to approve the REA.

28The Approval Holder also submits that the Appellant has failed to meet its onus under the Health Test. The Approval Holder submits that similar to previous appeals based on similar evidentiary foundations, the Appellant has failed to meet their evidentiary onus. More specifically, the Approval Holder submits that the relevant scientific studies do not support a finding that wind turbines generally cause serious harm to human health. The Approval Holder further submits that the expressions of concern from pre-turbine witnesses, (i.e., those who have not yet experienced living near operating turbines), as to the potential impact of wind turbines on their health are speculative and fall far short of the level of proof required to demonstrate that the operation of the Project in accordance with its REA will cause serious harm to human health.

29Overall, the Approval Holder requests that the appeal be dismissed.

Discussion, Analysis and Findings on Issue No. 1

30Pursuant to s. 145.2.1(2) (a) of the EPA, the test that the Tribunal must apply is limited to considering whether engaging in the Project in accordance with the REA will cause serious harm to human health.

31In order to meet the Health Test, the Appellant must prove on a balance of probabilities that harm will occur, rather than that it may occur. While the Appellant need not establish the precise mechanism whereby harm is caused, the Appellant must prove that the alleged harm is caused by the Project operating in accordance with the REA. Evidence that only raises the potential for harm does not meet the onus of proof.

32In considering the totality of the evidence in relation to health impacts of the Project, the Tribunal finds that the Appellant has not established, on a balance of probabilities, that the Project, operating in accordance with the REA, will cause serious harm to human health.

33The evidence tendered by the Appellant, participants and presenters only raised concerns about the potential for harm to human health. For example, Ms. Stauble’s evidence relating to annoyance, loss of sleep and stress did not rise to the level of showing that harm to human health will result from the Project and certainly did not show that such harm will be serious in nature.

34The Tribunal accepts the uncontradicted expert evidence of Dr. McCunney that research to date has not established that wind turbines cause specific health effects at the distances and sound levels involved in this Project.

35The Appellant asserts that proof of annoyance should be sufficient to meet the Health Test. That cannot be the case. Annoyance due to noise or other aspects of the Project, without additional evidence of the scope, character and seriousness of health impacts resulting from such annoyance, does not answer the question of whether the Project will cause serious harm to human health.

36Additionally, on balance, the Tribunal finds that the evidence relating to risk from fires, shadow flicker and noise does not rise to the level of serious harm. To the contrary, Mr. Eva’s evidence explaining the safety features of the Project turbines and Mr. Dokouzian’s evidence has satisfied the Tribunal that the risk of fire from the Project is very low. Additionally, Mr. Dokouzian’s evidence has satisfied the Tribunal that potential shadow flicker impacts will be low.

Issue No. 2: Whether engaging in the Project in accordance with the REA will cause serious harm to human health, or serious and irreversible harm to the natural environment, through hydrological or hydrogeological impacts.

Evidence

a. Appellant

37Ms. Stauble provided testimony expressing her concerns about the potential for impact to the ORM from the Project. In particular, she expressed concerns relating to impacts to groundwater flows and water quality due to spills, and impacts to agricultural lands and woodlands. She stressed that the Project is proposed in a vulnerable aquifer area of the ORM and any spills resulting from the Project will result in potential contamination to groundwater. Furthermore, Ms. Stauble testified that the Project and other adjacent projects are located in the most heavily forested areas of the ORM. She testified that the ORM received legislative protection in order to protect the area from incremental and cumulative development across the moraine. It was her view that the scientific reasons for the protection of the ORM must prevail.

38Mr. Kerr, currently the manager of environmental services for the City and appearing under summons, was qualified by the Tribunal as a professional geoscientist with expertise in hydrogeology. Mr. Kerr’s testimony focused on the risk of spills and contamination of ORM groundwater. He testified that the ORM is highly susceptible to contamination because sediments in the ground are very permeable. He also explained that contamination is very difficult to detect and remediate as groundwater flows in the ORM are very complex.

39Mr. Kerr explained that there are a number of private wells in the Project area and the water table is very high in many areas. Mr. Kerr was of the view that the Approval Holder’s consultants had failed to evaluate the water table during seasonally high water flow and he had communicated with the Approval Holder to explain what details the City wanted to see as part of a fulsome groundwater analysis.

40On cross-examination, Mr. Kerr was taken through the witness statement of Mr. Whitehead. Upon review of that witness statement and the updated report appended to it, entitled Settlers Landing Wind Park Hydrogeological Assessment, dated September 2, 2015, Mr. Kerr acknowledged that the updated report had addressed the concerns he had raised previously. However, he testified that he remained unsatisfied that the highest water table had been considered and that he remained concerned that groundwater contamination would result from a spill.

b. Participants

41Mr. Taylor, Chief Administrative Officer with the City, testified that the ORMCP is reflected in the City’s Official Plan and that wind turbines are not a permitted use in either document. He acknowledged, however, that many of the City’s concerns with the Project have been addressed and that the only remaining items relate to sedimentation and erosion control which have not been addressed by the conditions of the REA.

42Ms. Sutch, on behalf of STORM, testified that her organization’s major concern is cumulative impacts of various developments on the ORM. It was her view that the ORM is an environmentally significant landscape and simply cannot accommodate industrial-scale development. She testified that the ORMCA and its associated plan have improved the hydrological and ecological conditions on the ORM. She provided testimony relating to the importance and vulnerability of the aquifers of the ORM, including the supply of drinking water to a multitude of communities. It was Ms. Sutch’s view that cumulative impacts on the ORM should be fully considered before any further industrial wind projects are permitted on the moraine.

c. Director

43Mr. Kinney was qualified as a professional geoscientist with experience in hydrogeology. Mr. Kinney explained that the electrical insulating oil and the lubricants to be used in the turbines and transformer are not the type of hydrocarbons that can contaminate ground water. He explained that these substances are hydrophobic meaning that they do not enter groundwater, but rather will be absorbed by soils which can then be readily cleaned up and backfilled with clean soil. He explained that, as a result of the characteristics of these hydrocarbons, Ontario does not even have Drinking Water Standards for them.

d. Approval Holder

44Mr. Eva is the Vice-President at Capstone Power Development for Settlers Landing Nominee Ltd., the Approval Holder. He explained that the Project consists of five turbines with a hub-height of 100 m. He explained the safety features of the turbines, including the fire resistant materials used and fire suppression features. He explained that the turbines contain lubricants but that the turbines are designed not to leak in the first place, and to contain lubricants inside the structure in the unlikely event that a leak should occur. He explained that the REA contains terms intended to address any spills from the turbines or the transformer substation. It was his evidence that redundancies exist in the Project to reduce the likelihood of spills.

45Mr. Whitehead was qualified as a professional geoscientist with expertise in hydrogeology. He is a senior hydrogeologist with Stantec. Mr. Whitehead testified that two hydrogeological studies were conducted for this Project; the first was a desk-top evaluation dated July 11, 2014, and the second was a field-based study dated September 2, 2015. The latter study was not submitted as part of the REA application, but was conducted to respond to concerns raised by Mr. Kerr and the City of Kawartha Lakes.

46Mr. Whitehead reviewed the conclusions of the field study, and testified that he is confident this Project will not detrimentally impact the form or function of the ORM. For example, he explained he was very confident that there is no high water table (water close to the surface) where Project components will be placed (at geographical high points). With respect to the Appellant’s concern that the field study was not conducted during the spring freshet, Mr. Whitehead testified that water levels are typically highest during the spring freshet but since April and May were untypically dry in 2015, followed by a very wet June, the highest water table was experienced in June of 2015. He testified that this peak high water level was considered when determining whether high water tables existed near the Project.

Submissions

47The Appellant submits that the Project will cause serious harm to human health through groundwater contamination and that impacts to the ORM groundwater from the Project will result in serious and irreversible harm to the natural environment.

48The Appellant submits that the ORM is one of the most significant and sensitive natural formations in south-central Ontario, and one of only four areas in Ontario protected by a Provincial Plan. The portion of the moraine affected is an area of high aquifer vulnerability where contamination is more likely to occur as a result of surface contamination caused by accidental spills. The Appellant also submits that the Project is located near sensitive watersheds and water features including a spring and a water table almost at surface level.

49The Appellant also submits that Project infrastructure will negatively affect water infiltration and flow. The Appellant submits that the permeability of the largely sandy Moraine soils makes the ORM highly vulnerable to erosion. The Appellant relies on Mr. Kerr’s description of the ORMCP area:

Water falling on most areas of the Moraine is absorbed rapidly into the sandy soils. The water filters through silt, sand and gravel until it reaches a less permeable layer. It eventually travels out of the moraine, forming headwaters, seeps, and springs. The outflows are often under pressure, as shown by shallow artesian wells and springs in the Project area. Moraine water in the area flows into creeks and rivers. The internal pathways and connections between surface and ground waters within this part of the Moraine are unknown.

50The Appellant stresses that the flow patterns and links between water entering the Moraine and water emerging from it, or the permeable pathways within it, are not fully known or understood.

51The Appellant relies on Mr. Kerr’s testimony, that in his experience equipment leakage is a common source of spills, and that the “risk of spills also exists during refueling, mechanical breakdowns, storage, transfer or accidents such as fires.” Mr. Kerr stated that “it is not a question of if it will happen but rather when it will happen.”

52The Appellant submits that the Approval Holder did not do sufficient hydrogeological studies to understand the impact of a spill on this area of high aquifer vulnerability, and that the test wells drilled after the REA was issued did not capture the annual high water condition. The Appellant submits that the hydrogeological assessment for the Project’s REA application is not reliable because it was a desktop study, which relied upon a previous geotechnical report by the Approval Holder’s consultant LVM (the “LVM Report”). The Appellant submits that the LVM Report is unreliable due to its failure to identify the Pontypool municipal well as the closest well to the Project, and its failure to mention the fact that the Project is within the ORMCP area and in a high aquifer vulnerability zone. The Appellant maintains that only the borehole records may be relied upon, and asserts that these records show wet conditions at all the turbine sites that were accessible for study; i.e., Turbines 1, 2, 4 and 5.

53The Appellant submits that the turbines in the Project will require regular maintenance, presenting a risk of spill since maintenance includes regular exchange of hundreds of litres of oils and other hazardous materials stored within the nacelle of the turbines. The Appellant also relies on the evidence of the Director’s witness Mr. Kinney who testified that any spill will be rapidly absorbed into soil, such that response time will not be fast enough to prevent harm.

54The Appellant submits that Mr. Whitehead, the expert called by the Approval Holder, could not speak to the local water or hydrogeology situation with any authority and was not aware of local shallow wells relied on by numerous residents for their water supply, or the spring in the Project area.

55The City submits that policy 1.6.6.7(c) of the 2014 Provincial Policy Statement (the “PPS”) requires the City to conduct a review of any proposal in the City to ensure there is no increase in risk to health. Here the City reviewed the REA and submits that it is unable to determine if sedimentation and erosion issues have been properly addressed to the extent that it can carry out its responsibilities under the PPS. The City argues that there was not sufficient documentation filed in support of the REA to indicate that there will not be an increase in harm to human health and that as a result, the appeal should be allowed and conditions included in the REA requiring that a development agreement be concluded with the City to address outstanding sedimentation and erosion issues.

56The Director submits that the witnesses called by the Appellant, the participants and the presenters expressed concerns and opinions about potential harm to the ORM, development and visual pollution on the moraine and potential impacts to groundwater are speculative and not supported by the evidence. To the contrary, the Director argues, the evidence of the respondents establishes that the Project, operating in accordance with the REA, will not cause harm.

57Regarding groundwater contamination, the Director submits that the Appellant has failed to establish that the Project infrastructure will contain any groundwater contaminants, that a spill at the Project site is likely, or that if a spill did occur, it will cause serious and irreversible harm to groundwater or the aquifer.

58The Director also submits that the Appellant has failed to lead any evidence that construction and excavation activities would result in any serious or irreversible harm to groundwater.

59The Director submits that there is very low risk of any contaminant being spilled from the Project. In this regard the Director points to REA conditions: requiring that the transformer substation be designed with an approved oil spill containment facility; prohibiting the proponent from refueling vehicles or storing or using bulk chemicals on Project lands; requiring regular inspection and maintenance; and monitoring the Project components on a continuous basis. The REA provides that no hazardous waste or liquid industrial waste may be generated or stored on the ORM.

60The Director submits that the Tribunal should afford Mr. Kerr’s assertion that the question is not “if” there will be a spill, but “when”, no weight. In this regard, the Director refers to the Divisional Court decision in Ostrander Point GP and another v. Prince Edward County Field Naturalists and another, 2014 ONSC 974 (“Ostrander”), para. 127, where the Court reiterated that it is up to the Tribunal to determine what weight to give to expert evidence and “an expert’s conclusion which is not appropriately explained and supported may properly be given no weight at all”. The Director submits that the test pit data demonstrate that the geology of the Project site is not variable or complex.

61The Director submits that if there is a spill, it will not cause serious or irreversible harm to the groundwater or aquifers. In this regard, the Director relies on Mr. Kinney’s evidence that transformer oil and other material contained in the turbines are not groundwater contaminants. Rather, the Director submits that these types of hydrocarbons have extremely low solubility in water and are inherently biodegradable.

62The Director notes that the MOECC requires hydrogeological studies for proposed activities which can be expected to either remove significant amounts of groundwater from or emit potential contaminants to an aquifer. The Director argues that such studies are not required in this case, because the Project is not designed to take significant amounts of groundwater from an aquifer, nor release any substances to an aquifer which might contaminate groundwater. Nonetheless, the MOECC had a subject matter expert review the application prior to the issuance of the REA and provide an opinion as to potential impacts of the Project on groundwater quantity and/or quality. The Director submits that this expert concluded that the Project did not constitute a potentially contaminating activity in respect of groundwater, that potential groundwater impacts were negligible, and that further hydrogeological study of the site was not warranted. Mr. Kinney concurred with this assessment.

63With respect to the Appellant’s request that a complete hydrogeological study be undertaken, the Director submits that it is unproductive and an inefficient use of resources to require in-depth studies where study is not justified on the basis of scientific necessity and not commensurate with the potential groundwater risk. The Director observes that, nonetheless, the Approval Holder had its consultant prepare a study consistent with the parameters stipulated by Mr. Kerr in preparation for the hearing.

64The Approval Holder submits that despite the Appellant’s assertion that the legislature never intended the ORM for the kind of development that is at issue in this proceeding, it is clear the legislature specifically considered the matter and concluded that wind development is compatible with the ORM. That is why, it is submitted, s. 62.0.2 of the Planning Act exempts wind projects from the ORMCP.

65The Approval Holder submits that the evidence establishes that the Project will not have a serious impact on the hydrogeological form and function of the ORM, that a spill of hazardous material at the Project is unlikely, and that even if a spill occurred, the small volume and the nature of the material would be such that it would be very unlikely to cause serious harm, let-alone serious and irreversible harm.

66The Approval Holder agrees with the Director, that the expert opinion evidence from both Mr. Whitehead and Mr. Kinney is that the likelihood of a spill is small, and even in the very unlikely event that a spill occurred, it would be unlikely to pose a contaminant threat to the groundwater in the Project Area or the Oak Ridges Moraine.

67Furthermore, the Approval Holder submits that Stantec, on behalf of the Approval Holder, carried out a comprehensive field-based hydrogeological assessment of the Project Area in 2015 (the “2015 Hydrogeological Report”), and that Mr. Kerr acknowledged on cross-examination that this was the field-based assessment he had requested be conducted.

68The evidence that a spill is unlikely includes Mr. Whitehead’s testimony that the enclosed turbine gearbox is located in the enclosed turbine nacelle, and only uses a small volume of oil. The Approval Holder submits that, even in the event of a spill first from the gearbox and then from the nacelle, it is unlikely that a significant quantity of oil would reach the ground 100 m below, before being identified and addressed. Mr. Eva described the safety features of the MM92 turbines that are designed to prevent and contain spills, such as the leak-proof design of components, and that any leaks would be enclosed within the turbine structure itself.

69As for the transformer substation, the Approval Holder points out that Condition K1 of the REA provides that the transformer substation must be equipped with an “integrated spill containment structure” approved by a professional engineer, capable of containing the volume of transformer oil and lubricants used at the substation. Mr. Whitehead explained the leak-proof design of the transformer substation that is designed to prevent any leaked material from reaching groundwater.

70The Approval Holder also notes that the Design and Operations Report submitted as part of the application for the REA and which now forms part of the REA requirements, includes a requirement that no refueling of vehicles take place and no storage or use of bulk chemical or fuels occur on the Project site. The Approval Holder emphasizes that Mr. Taylor, the Chief Administrative Officer of the City, testified that the City has reviewed the REA and related documents, and is satisfied with respect to the provisions relating to hazardous materials.

71The Approval Holder submits that the likelihood of a spill will also be reduced through regular inspection and maintenance, and monitoring of oil levels in each turbine and in the substation “24/7” using a “supervisory control and data acquisition” (“SCADA”) system, which notifies Project personnel in the event of a fire or if fluid levels have dropped to a point suggestive of a leak.

72The Approval Holder also submits that, contrary to Mr. Kerr’s assertion, the hydrogeology of the Project site is well understood. Two assessments have taken place: the 2014 desktop-level hydrogeological impact assessment which was submitted with the REA application, and Stantec’s 2015 Hydrogeological Report, based on field-based hydrogeological work. The scope of the requested work for the 2015 Report was set out in an email from Mr. Kerr to Mr. Whitehead dated May 6, 2015.

73The Approval Holder submits that the 2015 Hydrogeological Report is also consistent with the Tribunal’s recommendation in the Cham Shan Temple v. Ontario (Ministry of Environment) (2015), 94 C.E.L.R (3d) 175 at para. 363, as follows:

A hydrogeological report should be prepared which investigates the interactions of surface water and groundwater, where any REA project is proposed on high vulnerability aquifer locations.

74The Approval Holder also submits that in the unlikely event that a spill occurs, it is unlikely to pose a threat to the groundwater in the area. First, Mr. Whitehead described the emergency spill response procedures set out in Appendix H of the 2015 Hydrogeological Report, that would mitigate a spill before infiltrating to the regional aquifer system. Second, the oil used at the Project has “extremely low water solubility” and, if spilled, would be absorbed by shallow soil and immobilized in the immediate vicinity of the spill. The Approval Holder submits that any such spill therefore poses a low environmental risk and would be easy to excavate for disposal. Third, the site-specific tests show it would take days for a spill of oil to reach the shallow groundwater system due to the very slow infiltration rate in the Project area.

75With respect to impacts to the groundwater recharge functions of the ORM, the Approval Holder points to Mr. Whitehead’s testimony that the Project will create an approximately 0.013% increase in imperviousness on the section of the ORM that is located within the Kawartha-Haliburton Source Protection Area, which it submits is a very minor increase. The Approval Holder submits that, in addition, the precipitation which will occur post-construction will flow around the turbine foundations and into native soil and continue to recharge the underlying aquifer systems.

76The Approval Holder submits that the Project is not expected to cause any impacts to private well water supplies because the groundwater table in the Project Area is deeper than the depth of the turbine foundations and other underground infrastructure, as confirmed by Mr. Whitehead. Further, contrary to the concerns expressed by Mr. Kerr, the Approval Holder submits that the evidence establishes that Stantec’s on-site monitoring program captured spring freshet conditions.

Discussion, Analysis and Findings on Issue No. 2

77The Tribunal finds that the Appellant has not established that the Project will cause serious harm to human health or serious and irreversible harm to the natural environment through hydrological or hydrogeological impacts, for the following reasons.

78Mr. Kerr’s concerns relating to contamination of the aquifer and negative impacts to infiltration were not substantiated through evidence. To the contrary, the evidence of Mr. Eva and Mr. Kinney satisfied the Tribunal that: (1) there is little risk of a spill, and (2) if a spill occurs there is little risk of groundwater contamination due to the spill-proof design of the infrastructure, which is mandated partly by conditions in the REA, and to the characteristics of the lubricants and oils involved, which are unlikely to enter groundwater.

79The Tribunal acknowledges the effort made by the Approval Holder to respond to water-related concerns of the City through conducting field-based research and producing the 2015 Hydrogeological Report. Specifically, Mr. Kerr on behalf of the City of Kawartha Lakes asked the Approval Holder to undertake the following work in correspondence with the Approval Holder:

a. install multi-level wells to assess shallow groundwater conditions and potential surface water-groundwater interactions at each proposed turbine location and at the proposed substation location;

b. install shallow well points (i.e., drive-point piezometers) immediately adjacent to identified surface water features located in the vicinity of the Project to assess shallow groundwater conditions;

c. evaluate vertical hydraulic gradients established over the course of seasonal fluctuations in the groundwater table (spring-summer);

d. prepare cross-sections showing the location of proposed construction features in relation to the shallow groundwater table; and

e. provide conclusions regarding the potential impacts of proposed construction activities on groundwater/surface water flow regime and outline mitigation measures to be employed to reduce any such potential impacts.

80Mr. Kerr agreed in cross-examination that the 2015 Hydrogeological Report appeared to meet those requirements. The Report concludes at pages 6.1 and 6.2 that:

a. a shallow groundwater flow system is not present beneath the Project lands and that any infiltration occurring across these lands likely recharges a deeper aquifer system;

b. the construction of Project components are expected to create 1.3 ha of impervious surfaces, however the residual effect to the infiltration function of the ORM is expected to be negligible;

c. the installation of this infrastructure will occur above the groundwater table and construction dewatering will not be required, such that construction of the Project components is not expected to cause a negative effect on existing groundwater flow regimes and,

d. subsequently, to yields of nearby private wells; and

e. the permeability of the soils and solubility of the oils used is such that it would take days for an accidental spill to reach the groundwater system.

81Both Mr. Whitehead and Mr. Kinney agree with those conclusions. The Tribunal heard no evidence to contradict those opinions.

82The Tribunal further acknowledges that the recommendation made in Cham Shan, cited above, relating to understanding the hydrogeological characteristics of the area where a project is proposed in the ORM, have been met in this case.

83Turning to the Appellant’s concern regarding increased impermeable surfaces, the Tribunal finds that the evidence does not establish that the turbine bases and Project infrastructure will have any impact on infiltration rates in any measurable way. Mr. Kerr’s concerns in this regard were not supported with evidence. On the other hand, Mr. Whitehead provided opinion evidence that water will simply flow over or around the turbine bases and infiltrate into adjacent land into groundwater. The Tribunal accepts Mr. Whitehead’s evidence on this issue.

84With respect to the potential issue of erosion and sedimentation raised by the City, the Tribunal finds this amounted to a statement of the City’s concern based on the City’s view that the information provided by the Approval Holder is insufficient. However, no direct evidence of an anticipated increase in sedimentation or erosion and resultant health impacts was adduced to support this view.

85In conclusion, 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, or serious and irreversible harm to the natural environment, through hydrological or hydrogeological impacts.

Issue No. 3: 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, specifically through impacts to grassland bird habitat and to woodlands/woodland habitat.

86The Project involves five turbines. Turbines 1, 2 and 4 are located in agricultural fields. Turbines 3 and 5, and access roads for turbines 2, 3 and 5, are located within a significant woodland identified as woodland number 11 (“SW-11”), and require vegetation clearing, including removal of portions grassland areas and the forested portions of SW-11.

Evidence

a. Appellant

87Mr. Williams testified describing the type of vegetation and bird species found in the Project area. Although Mr. Williams readily admitted he is not trained as a professional ornithologist, he has studied birds and bird habitat for 57 years as a field ornithologist and has focused on the ORM since 1981. Mr. Williams has contributed to the 5 year bird census of 2001 to 2005 for the Ontario Breeding Bird Atlas. Mr. Williams has also lived in the Project area for over 18 years and stated that during that time, he has monitored birds inhabiting the woodlands and grassland areas of the Project site.

88Mr. Williams explained that the Project site provides a variety of habitat for breeding birds including grassland, mature deciduous forest, mixed coniferous/ deciduous forest, young re-growth where selective logging has taken place, and bramble and thicket in logged openings. He explained that all of the woodlands on the site are classified by the province as “significant woodlands” as part of the ORM.

89Mr. Williams provided a photographic tour of the Project area showing the woodlands, grasslands, other areas and the relative locations of proposed turbines and other Project infrastructure. He testified that 134 species of birds have been identified near the Project site, with 104 species identified during breeding season, of which 48 are confirmed breeders.

90He explained that the grassland habitat is utilized by Bobolink, Eastern Meadowlark and Grasshopper Sparrow among other bird species. He testified that it is known that there are 2-3 breeding pairs of Bobolink nesting in the Project area.

91Mr. Williams testified that there have been Eastern Wood-Pewee (currently listed as special concern under the Endangered Species Act, 2007 (“ESA”)) identified yearly in the woodlands in the Project area, including in SW-11. Mr. Williams testified that numerous other species of birds use SW-11, the grasslands, and especially the woodland edges as habitat.

92Mr. Williams also explained that the woodland area SW-11 is not a fragmented minimal value woodland predominated by Scots pine plantation, as depicted by the Approval Holder. Rather, Mr. Williams testified that the Scots pine plantation located in a portion of SW-11 was planted decades ago, the Scots pine are dying off as they have reached the end of their lifecycle, and they are being replaced by native hardwood species. He testified that it will take a lifetime for any compensation habitat to replace the woodlands to be removed for the Project.

93Mr. McRae was qualified by the Tribunal to provide expert evidence as a field naturalist with expertise in birds and their habitat. He has 45 years of experience studying birds and their habitat. On June 12 and 13, 2015, Mr. McRae conducted a two-day daytime field survey with Mr. Williams of the Project area and identified over 50 species of birds in the immediate vicinity of the Project that were considered breeding or probable breeders. His opinion was that finding 50 species of breeding birds in just two overcast days indicates the Project area is a very diverse site. He testified that with more time, and with the inclusion of nighttime surveys, many more species would be identified in the Project area. Mr. McRae explained that when bird surveys focus solely on the interior of woodlands, species are often missed as birds often rely upon edge habitats – the transition between woodland and grassland in this instance for example. He also testified that many of the species present in the edge habitat areas are either scarce or in decline.

94Mr. McRae acknowledged that turbines are not killing many birds in most cases but that it is more of a concern here that access roads and turbines will remove 18% of SW-11 (as set out in the Approval Holder’s application for the REA) and Project-related activities will disturb bird species. He explained that some species of bird are tolerant of disturbance but many are not. He expressed his opinion that SW-11 is high value habitat for birds. He stated that this habitat is not fragmented, explaining that this is indicated by the presence of birds that do not breed in fragmented woodlands, including Black-throated Blue Warbler which he identified as probably breeding due to displayed behaviour. He also explained that SW-11 appears to function as a distinct woodland block as birds are not flying between woodland blocks in the Project area.

95Mr. McRae also explained that the Project area, and especially SW-11, is functioning as a mosaic of habitats. With respect to its quality as habitat, he stated:

Most of the existing forest blocks are comprised of native trees of many species and with different age structure – the preferred elements to promote and sustain a high level of biodiversity. While it is true some of the forest is comprised of Red and Scots Pine plantations, the understory will regenerate with primarily native species, and the plantations still serve an important function for connectivity. If left standing, these forests will only become more significant to wildlife and birds as they mature and will help increase block size and the forest interior value.

96Mr. McRae testified that the Scots pine in SW-11 are approximately 50 years old and it will only be another 15-20 years before they are completely replaced by the growth of native trees. Mr. McRae acknowledged that some forest compensation can be beneficial to species but that it was the size and quality of compensation that matters. It was his view that habitat has to be of similar quality and of a comparable size to be adequately compensatory.

97In response to Dr. Kerlinger’s approach of analyzing serious and irreversible harm based on species-specific status across a species’ entire range, Mr. McRae testified that there are only a few bird species in Ontario that are listed under the ESA where losing individuals will result in serious and irreversible harm to the species. His view was that, at the point where loss of individual birds of a species matters statistically, it is usually too late for the species to survive. He opined that collective impacts are what matter. It was his view that the focus here should be on the local impacts from the Project.

98On cross-examination, Mr. McRae acknowledged that the main contributor to loss of Bobolink is the early harvesting of hay fields which destroys nests and the young they contain before the birds are able to fledge.

b. Presenters

99Ms. Zednik stressed that the ORMCA is intended to prevent the removal of woodlands, with narrow exceptions and even then, only where there are no reasonable alternatives. It was her view that the Project will result in damage to SW-11 that will be permanent through woodland removal, fragmentation and degradation. She testified that “multiple varied ecosystems will be eliminated when the interior core” of SW-11 is removed. She observed that the Approval Holder has not provided information on the number or age of trees to be removed, and cited statistics from the Ontario Woodlot Association that the average number of mature trees found per hectare (“ha”) in a woodland ranges between 600 and 1000. She explained that although compensation habitat is intended to be provided for lost woodland and grassland, no permanent protection is afforded to these new areas in the REA. She also testified that compensation woodland will take over 30 years to grow to the same extent as the existing woodland areas to be removed, and that there is no plan to compensate for lost ground plants in the cleared woodland areas which form part of the functioning woodland ecosystem. She also testified that, if the area to be turned into woodland habitat as compensation is already habitat for other species, it will involve losing current habitat to create the replacement habitat resulting, on balance, in a loss of habitat to accommodate the Project. Overall, it was Ms. Zednik’s view that SW-11 will be divided in half by the Project’s access roads, and that no compensation can fully account for this.

c. Approval Holder

100Mr. Eva explained that the natural heritage assessment/environmental impact assessment (“NHA/EIS”) prepared for the Project was approved by the Ministry of Natural Resources and Forestry (“MNRF”) as part of the REA approval process. He also explained that Condition I1 of the REA captures the requirement for the Woodland Rehabilitation Protocol, and that Condition J recognizes the requirement to comply with the ESA, which in turn requires that grassland bird habitat compensation be provided.

101On cross-examination, Mr. Eva acknowledged that it is not yet known what will happen with habitat compensation areas upon Project decommissioning.

102Mr. Charlton was qualified by the Tribunal as an ecologist with expertise in the assessment and mitigation of environmental impacts including at wind farms with regards to vegetation and animals, including birds. Mr. Charlton, an employee of Stantec, provided an overview of the NHA/EIS, which was prepared by the consulting company M. K. Ince. He testified that, having reviewed the report, he agrees that there will be no significant environmental impact from the Project as approved by the REA.

103Mr. Charlton considers SW-11 to be a significant woodland, having been so deemed under MNRF Guidelines, and stated his witness statement is not intended to imply otherwise. He testified, however, that the question for him is the sensitivity of the woodland to additional disturbance.

104Mr. Charlton visited SW-11 on two occasions, and described it as a doughnut shape with an agricultural clearing in the middle, half of which was planted in soybean crops and the other half being old pasture. He confirmed that much of the 44 ha woodland is made up of plantations that are 40-50 years old. He testified that the Scots pine plantation in SW-11 has started to naturalize, now including maple, cherry, and oak, and that Scots pine is no longer utilized as a solution to replace removed forests and to stabilize soils. He testified SW-11 has lots of diversity, but there is “no significant interior habitat to speak of”, and that “there is lots of this type of woodland on the moraine.”

105Mr. Charlton testified that Stantec calculated that 2.5 ha of the 44 ha of SW-11 would be removed, which is higher than the M.K. Ince calculation of 1.8 ha. However, his team also calculated that this represents 6% of the woodland being removed, rather than 18% as calculated by M.K. Ince in the NHA/EIS, which he testified was an error. It was Mr. Charlton’s view that this removal will not significantly add to the existing fragmentation of SW-11.

106With respect to the 10-year monitoring period required as part of the woodland restoration plan, Mr. Charlton testified that a functioning woodland cannot be created in 10 years, but that it is good to monitor over that period of time, to get the woodland “off to a better start”. While Mr. Charlton acknowledged there would be changes to bird habitat caused by removal of the woodland, he opined it would not be significant enough to be considered serious harm.

107Mr. Charlton acknowledged that construction of turbine 5 will require the removal of native species and “higher quality trees” but testified that, in his opinion, it is a “reasonable tradeoff” due to the benefit of clean energy sources.

108In cross-examination, Mr. Charlton acknowledged that it will take at least 30-40 years before the “whips” (3 m tall saplings) to be planted as compensation will mature to a similar size as mature native hardwoods that have already grown and partially replaced Scots pine. He also acknowledged that SW-11 is “relatively intact”, as opposed to “fragmented”. He testified that an opening of 20 m or less is not considered a “break” in the forest according to NHA/EIS guidance unless such breaks are maintained as public roads.

109Mr. Charlton acknowledged that 7 to 8 of the birds sighted by Mr. McRae in the Project site could be viewed as interior woodland species: the Red-bellied Woodpecker, Eastern Wood-Pewee, Red-eyed Vireo, Ovenbird, Brewster’s Warbler, American Redstart, Black-throated Blue Warbler, and perhaps the Indigo Bunting. However, he noted that some that were observed may have been migrating when observed in June by Mr. McRae.

110With respect to grassland bird habitat, Mr. Charlton testified that Stantec undertook an independent analysis and concluded that the Project would impact 2.9 ha of Bobolink and Eastern Meadowlark habitat. He explained that Ontario Regulation (“O. Reg.”) 242/08 of the ESA provides, among other things, that an equal or greater amount of habitat must be replaced. He testified that the key protective measure for grassland bird species is ensuring there will be no mowing of fields during the period before birds fledge.

111Dr. Kerlinger was qualified by the Tribunal as an expert on birds and the impacts of wind energy projects on birds. He testified that a “biologist’s definition” of “serious harm” would be a significant impact resulting in a material decline in a population, or acceleration of a decline in a population. Similarly he testified that a “biologist’s definition” of “irreversible harm” would be a decline that cannot be reversed and would lead to the extinction of a species. Prior to preparing his witness statement Dr. Kerlinger reviewed the Approval Holder’s reports regarding this Project, and concluded that this Project will not cause that type of harm. He stated that he visited the Site shortly before his appearance at the hearing of this appeal.

112Dr. Kerlinger testified that SW-11 is not an “ideal shape” for interior bird habitat given that it has irregular edges, nor does it contain high quality interior bird habitat as it is “highly fragmented”. Dr. Kerlinger acknowledged that there are several locations where interior habitat (i.e., at least 100 m from an edge) is present in SW-11; however, he testified there is little of it. Dr. Kerlinger testified that once turbines 3 and 5 are constructed there will no longer be any interior habitat. While he did not dispute Mr. McRae’s observation of interior obligate bird species on the Project site such as Eastern Wood-Pewee, Black-throated Blue Warbler, American Redstart, Ovenbird and Wood Thrush, his view was nonetheless that SW-11 does not currently contain “suitable” habitat for those species because they prefer large forests, and he questioned whether interior species were successfully nesting in SW-11.

113Dr. Kerlinger testified that wind turbines have a small displacement effect on grassland species, and that grassland compensation habitat is effective simply as a result of the prevention of mowing during the breeding season. In his opinion, 4.4 ha of grassland compensation habitat is sufficient to offset the Project impacts on grassland habitat.

114In cross-examination, Dr. Kerlinger stated that he was not aware of the time period required for woodland compensation habitat to grow. His view was that 10 years of monitoring is sufficient for grassland habitat compensation, however. With respect to bird collision mortality, Dr. Kerlinger testified that carcass searches are more difficult in forests because searcher efficiency is poor due to scavenging. Dr. Kerlinger also acknowledged that as a biologist, he has only been called upon to interpret “serious harm” or “irreversible harm” in the context of REA appeals in Ontario. The terminology most often used in the United States, he testified, is “undue adverse impact”.

115Based on the evidence and the manner in which the parties have organized their submissions, the Tribunal has organized its consideration of birds and animal habitat into two broad categories: grassland bird habitat and woodlands/woodland habitat. The Tribunal also heard evidence that some bird species prefer edge habitat; i.e., the transition areas between woodland and grassland areas. However, it was not alleged that bird species which prefer edge habitat would be uniquely impacted by the Project.

i. Grassland Bird Habitat

Submissions on Bird Habitat Generally and Grassland Bird Habitat Specifically

116Broadly, the Appellant submits that the Project will cause serious and irreversible harm to birds and bird habitat and reduce the number and variety of birds present and breeding in the Project area. The Appellant alleges this will occur due to removal and degradation of both woodland habitat and grassland habitat. The Appellant argues that the compensation properties are not sufficient to prevent serious and irreversible harm to habitat or the natural environment.

117The Appellant relies on the opinion of Mr. McRae in submitting that the Project will harm breeding bird populations, reduce foraging sites and impact the amount of food that is available to adult birds feeding their young. The Appellant argues that removal of a significant amount of habitat available for nine species at risk bird species will also cause serious and irreversible harm to animal life and the environment.

118The Appellant submits that of the two bird experts, Mr. McRae’s evidence should be preferred because he is familiar with local birds and works closely with the ORMCP area. Dr. Kerlinger, on the other hand, stated he was “somewhat familiar” with the area, and relied on models using a global scale of analysis to predict the potential impacts of wind turbines on avian populations. The Appellant argues that Dr. Kerlinger is not as familiar with the ORM; his experience is related to bird habitats in more southerly portions of North America, where habitats may differ for the same species found in the ORM area; he did not consider all the species observed in the woodlands; he did not consider cumulative impacts; and he improperly focused on a broad population analysis.

119The Appellant stresses that Mr. McRae documented 52 species during his June 2015 surveys, and Mr. Williams and other birders have identified 134 species over the last five years in the area, of which 81 species are confirmed or probably breeding on the site. On the other hand, Dr. Kerlinger’s opinion did not acknowledge this variety of species.

120The Appellant notes that the Approval Holder’s consultants found the following birds, designated as “threatened” under the ESA, on the Project site: Bobolink, Bank Swallow, Barn Swallow, Eastern Meadowlark, Common Nighthawk, Golden-winged Warbler and Eastern Whip-poor-will.

121The Appellant submits that the Tribunal should assess the local bird population which encompasses the ORM in determining impact on populations, as suggested by Mr. McRae, rather than relying on the presumed resiliency of a species across its global range. To do otherwise, submits the Appellant, would render any conservation moot until a species is so imperiled that there were only a few individuals remaining. In this regard the Appellant refers to the Tribunal’s analysis in Fata v. Ontario (Ministry of the Environment) (2014), 90 C.E.L.R. (3d) 37 at para. 247-248 (“Fata”).

122The Appellant argues that both forest and grassland bird habitat lost through this Project is irreparably lost.

123In reply submissions, the Appellant argues that, contrary to the Approval Holder’s submissions, Grasshopper Sparrows have been seen recently on the Project site. The Appellant argues that Mr. Williams and Mr. McRae found at least three Grasshopper Sparrows, one of which was carrying food and presumed to be nesting as a result, in the grassland within the upland centre of the doughnut and also in the fields to the north-east of turbine 5 during their site visits in June 2015.

124The Appellant argues that the REA condition requiring grassland compensation, will allow removal of woodland to become grassland. The condition requiring woodland compensation, will allow grassland to become woodland. One way or the other, argues the Appellant, there will be a net loss of habitat due to this Project. The Appellant notes that the REA conditions do not require the compensation property to be either within the Project area, or even within the ORMCP area.

125The Appellant submits that reforesting a portion of the grassland “doughnut” in the centre of SW-11, which was admitted as new evidence by the Tribunal, should neither be condoned nor permitted because it effectively removes grassland habitat in order to recreate woodland habitat, and that in any event will not be useful as woodland habitat for many years to come. The Appellant submits that the grassland in the “doughnut hole” includes a valley and a higher area which is used as nesting and foraging area for several pair of Grasshopper Sparrows, the presence of which was noted by Mr. McRae. The Appellant submits this proposed conversion is contrary to the intention of both the EPA and the ORMCP. The Appellant submits that any new woodland habitat should be adjacent to SW-11 and should be placed in an area of active cultivation so as not to destroy habitat of Grasshopper Sparrows, Eastern Meadowlarks, or Bobolinks, all of which are ESA listed species.

126The Director submits that, under the ESA regime, the Approval Holder is required to create a compensation habitat for Bobolink and Eastern Meadowlark, which in this case involves creation of 4.4 ha of grassland compensation habitat. The Director submits this represents an area 1.5 times greater than the impacted and potentially impacted area, and greater than the area required by the ESA.

127The Director submits that the Tribunal should give considerable weight to the Approval Holder’s expert evidence because Mr. Charlton and Dr. Kerlinger remained within their area of expertise and provided detailed pathways for their conclusions including references, assumptions and analyses.

128The Approval Holder submits that the Tribunal should rely on the opinions of Dr. Kerlinger and Mr. Charlton, that the grassland compensation habitat requirements will result in a net gain of habitat for grassland birds.

129The Approval Holder submits that the following species, mentioned by the Appellant’s submissions, should not be considered by the Tribunal for the reasons cited:

a. Bank Swallow; there is no evidence on this species in this proceeding;

b. Grasshopper Sparrow; none seen since cultivation of the grassland began “years ago”

c. Common Nighthawk; not seen in the last ten years

d. Eastern Whip-poor-will; not seen in the last ten years

e. Golden-winged Warbler; seen in 2014 but not 2015

130The Approval Holder submits that the Tribunal should not rely on Mr. Williams’ evidence as anything other than an expression of concern, as he is not a recognized bird expert.

131The Approval Holder submits that the three rounds of breeding bird surveys conducted in 2011 and 2012 by its consultants showed the only species at risk in the Project Area to be grassland birds, namely Bobolink, Eastern Meadowlark and Barn Swallow.

132The Approval Holder submits that removal of 6% of SW-11 will not impact the three species of concern in the Project area, as they are all grassland species.

133With respect to Bobolink and Eastern Meadowlark, the Approval Holder submits that there is no scientific evidence supporting an assertion that there will be displacement impacts for these species. Rather, reliance is placed on Dr. Kerlinger’s opinion that these two species “will land and nest within close proximity to the turbines,” that displacement risk is low for Bobolink and Eastern Meadowlark at the Project site, and the breeding success of the species is not expected to be affected.

134The Approval Holder relies on Mr. Charlton’s opinion that the construction and use of access roads and wind turbines do not fragment the habitat, or materially affect the density, of breeding Bobolinks or Eastern Meadowlarks.

135The Approval Holder submits that the experts are unanimous that agricultural fields are low quality habitat for Bobolink and Eastern Meadowlark because they have been previously disturbed and are subject to crop rotation. Further, the REA conditions A1 and J required that construction activities be restricted during the breeding season, which will reduce disturbance risk.

136With respect to Barn Swallow, the Approval Holder submits that no habitat will be impacted because no habitat (typically barns or other open buildings) was found within the Project area. Dr. Kerlinger testified that the removal of a small amount of Barn Swallow foraging area as a result of the Project will result in no serious harm to the species, as they are habitat generalists and will use other areas for foraging.

137The Approval Holder submits that Condition K of the REA requires grassland compensation habitat, under the ESA, to be in place prior to commencement of construction, and that all the experts agreed that the grassland compensation habitat will provide a benefit.

138The Approval Holder also points to the testimony of Mr. Charlton and Dr. Kerlinger that mortality risk from strikes of birds with operating wind turbines is low for Eastern Meadowlark and Bobolink.

Discussion, Analysis and Findings – Grassland

139Two experts on birds were called as witnesses in this hearing: Mr. McRae by the Appellant and Dr. Kerlinger by the Approval Holder. Relevant testimony to the Tribunal’s consideration was also provided by Mr. Williams for the Appellant, Mr. Charlton for the Approval Holder and by the presenter Ms. Zednik. These witnesses testified to the presence of a variety of birds and bird habitat in both the grassland and woodland areas of the Project site.

140The parties take opposing positions on the weight that should be afforded to the testimony of witnesses testifying about birds and their habitat and the impacts of the Project. The parties’ submissions and the Tribunal’s findings in relation to the expertise of these witnesses and the weight to be afforded to their testimony applies equally to both grassland and woodland birds and their habitat.

141The Tribunal begins by making the overall observation that opinion evidence may only be relied upon where the witness has been recognized as having expertise in the subject area of the opinion being provided. This does not mean, however, that lay witnesses may only give “expressions of concern”. Non-expert witness may have any number of factual and technical observations upon which the Tribunal may properly rely, and which may be preferred over or may supplement other evidence before the Tribunal.

142The Approval Holder and Director asked that the Tribunal consider virtually all of the evidence brought by non-expert witnesses as “expressions of concern”. In this case, the Tribunal finds that evidence of Mr. Williams and some of the evidence of Mr. McRae that the Approval Holder and Director submitted was outside his area of expertise, was based on extensive observational and field experience, indicating that their technical observations can be considered reliable. It would be improper for the Tribunal to afford little or no weight to such evidence out of hand. Rather, the Tribunal, as evidenced in these reasons, has weighed these technical observations, based on their practical experience, along with the expert opinion adduced in this proceeding.

143The Tribunal further finds that Mr. McRae and Mr. Williams’ evidence, and indeed their local knowledge regarding bird species and bird habitat in the ORM generally, and the Project site in particular, is relevant to the issues to be addressed in this proceeding. The Tribunal accepts their evidence regarding the number and variety of birds on the Project site, and finds that Mr. McRae and Mr. Williams’ two-day survey of the Project site most likely underestimated the number of species using the site. In this regard the Tribunal notes that none of the experts disagreed with the list Mr. McRae generated during his observations. What is disputed is Mr. McRae’s assessment of whether SW-11 represents quality habitat for certain species. This is discussed below in the Tribunal’s analysis of the woodland habitat impacts.

144The Tribunal also wishes to stress that local knowledge is particularly important, given the Tribunal’s finding in previous REA appeals that it is appropriate in the analysis of impact on animal life to assess local impacts as a starting point. The Tribunal endorses its findings regarding scale in REA appeals that was described in Fata, supra, at paras. 247-248, as follows:

There may be reasons why a particular species requires a smaller scale consideration (e.g., a species of plant or animal dependent on a wetland which is found in one small part of a large project area), or a larger scale consideration (e.g., a migratory bird species which only use the airspace above a project, or has a significant habitat directly adjacent to a project), or an area that straddles the project boundary. Indeed, the NHA guidance documents for proponents specifically recognize circumstances where the proponent must look for habitat, for instance, outside the project area.

If a project were to have a lethal impact on every member of a species within the project area, yet not be found to have a discernible impact on the overall regional or continental population of a species, the “population viability” approach would lead to the absurd result of a finding of no serious harm to animal life.

145In a similar vein, the Tribunal rejects the approach of Dr. Kerlinger to assessing the legal definition of “serious harm” to animal life. The Tribunal finds that s. 145.2.1(2)(b) of the EPA cannot be read such that a species-wide viability analysis is the appropriate scale for the assessment of serious harm. Dr. Kerlinger’s analysis would render the Environment Test almost meaningless at the scale of local impacts by requiring the Appellant to prove that the Project has an impact that results in a material change to the population of a species overall, before any modification to it could be ordered. This is clearly not the intention of the EPA, which includes the purpose at s. 3 of “the protection and conservation of the natural environment”, and at s. 47.2 (the Renewable Energy section of the Act) “to provide for the protection and conservation of the environment.”

146In addition, O. Reg. 359/09 sets out reporting requirements for renewable energy project proponents, and mandates that studies analyze the anticipated impacts of the undertaking in the project area. The Tribunal, consistent with its findings in previous REA appeals including Fata (paras. 247-250), Lewis v. Ontario (Ministry of the Environment) (2013), 82 C.E.L.R. (3d) 28 (paras. 42-49) and APPEC v. Ontario (Ministry of the Environment) (2013), 76 C.E.L.R. (3d) 171 (paras. 355 and 359), rejects the notion that the Environment Test should be restricted to a global population viability analysis in relation to impacts to specific animals under s. 145.2.1(2)(b) of the EPA.

147The Tribunal finds that the scale that is most appropriate and relevant to its consideration of serious and irreversible harm to grassland birds and their habitat in this instance, and to woodland habitat below, therefore, is the local Project scale.

148There is no dispute that habitat of grassland birds, including Bobolink and Eastern Meadowlark, will be affected by the Project operated in accordance with the REA, although there is disagreement as to the amount of displacement and habitat disturbance that will occur. Portions of grassland habitat will be removed for infrastructure, and there will be some displacement and disturbance. Bobolink and Eastern Meadowlark in particular are species listed as threatened under the ESA.

149The REA requires the Approval Holder to obtain an ESA permit (or allows an exemption on certain conditions) to harm, harass or kill endangered species. The ESA exemption in this case, contained at s. 23.6 of O. Reg. 242/08 enacted under the ESA, for Eastern Meadowlark and Bobolink requires the Approval Holder to provide an area of compensation habitat greater than the area of habitat to be removed. Here the Approval Holder has entered into a lease agreement with a nearby land owner to create and protect 4.4 ha of grassland compensation habitat, an area approximately 1.5 times the area that is calculated to be impacted by the Project.

150The Tribunal finds that the grassland compensation requirements in the REA will, more likely than not, offset any impacts of the Project to grassland bird habitat, for the following reasons.

151First, all experts agreed that Bobolink and Eastern Meadowlark habitat would be better protected through the conditions in the REA, if met, in the short-term. In particular, the greatest threat to Bobolink and Eastern Meadowlark is loss of breeding habitat due to farm practices where hay is mowed before fledglings leave their nests, located on the ground, resulting in their death. The terms of the REA and the agreement entered into ensure that a greater amount of compensation habitat will be created in the vicinity of the Project which will be managed to ensure that mowing does not occur during breeding season.

152Secondly, based on the evidence of Dr. Kerlinger, the Tribunal finds that, following construction, at least some of the disturbed grassland habitat will, in the range of several years, once again become usable by grassland species as habitat and additionally, birds will likely recover partially from any disturbance from the period of construction and operations of the Project commencing.

153The Appellant asserts that the area in the “doughnut” that will be used for woodland compensation is a field that is not currently cultivated and therefore habitat for grassland bird species. The Appellant relies on Mr. McRae in this regard, who suggested that the proposed woodland compensation causes additional loss to grassland habitat, that itself requires compensation.

154In Mr. Charlton’s supplementary witness statement of October 29, 2015, he stated that the open field of the “doughnut” is not suitable habitat for SAR-listed grassland birds. He lists the reasons for his conclusion as follows:

a. M.K. Ince did not observe any Bobolink, Eastern Meadowlark, Grasshopper Sparrow, Field Sparrow or Eastern Towhee in the area in 2011, nor did Stantec in May, 2015;

b. the Stantec biologist who conducted the site visit in 2015 “judged the habitat at this location to be unsuitable for grassland birds as it consisted of active agriculture row crops in the south part of the opening, and over-mature meadow in the north part”;

c. He visited the area twice in 2015, and noticed that the northern meadow “included small shrubs and areas of dense forbs”, which make the meadow unsuitable for most grassland birds except Field Sparrow, a relatively common species with abundant habitat; and

d. The dimensions of the open meadow are too small to be suitable habitat for Bobolink and Eastern Meadowlark.

155In consideration of the evidence of Mr. McRae and Mr. Charlton, the Tribunal finds that the variety of grassland species identified in other areas do not use the “doughnut” hole, and more specifically, this area is not habitat for Bobolink or Eastern Meadowlark.

156The Tribunal finds, based on the evidence before it, that grassland habitat disturbed due to construction of the Project site will likely become useable once again in the short-term under the terms of the REA, and that displacement effects caused by presence of the infrastructure will be addressed through the REA conditions requiring the creation of 4.4 ha of superior grassland habitat.

157Overall therefore, 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 grassland bird species or their habitat in the Project area.

ii. Woodlands and Woodland Habitat

Submissions

158The submissions of the parties in relation to the weight to be afforded to expert and non-expert evidence is set out above under the grassland habitat section. Similarly, the overview of the parties’ submissions in relation to bird habitat generally throughout the Project area and the Environment Test are set out above.

159In relation to woodland impacts, the Appellant submits that significant habitat once removed cannot be replicated, and that it is a restoration myth that an ecosystem can be restored or recreated as a copy of the original.

160The Appellant further submits that the Approval Holder should have considered the full intent of the ORMCP provisions, as directed by s. 9.3 of the Technical Guide to Renewable Energy Approvals, MOECC, 2011 (“Technical Guide”), but did not do so.

161The Appellant highlighted the relevant objectives for the ORMCP, established through section 4 of the ORMCA, which include protecting the ecological integrity of the ORM area, and ensuring that only land and resource uses that maintain, improve or restore the ecological functions are permitted.

162The Appellant notes that the Project is located within the Countryside Area of the ORM. In relation to planning applications on the Moraine, the Appellant references ORM Technical Paper 3 - Supporting Connectivity which states (at pages 2 and 5) that, in order to “ensure the movement of plants and animals across the ORM and to natural areas north and/or south of the ORM” the requirement is for “all wooded areas outside key natural features and hydrologically sensitive features and their associated vegetation protection zones (including hedgerows) [to be] maintained or enhanced”.

163The Appellant submits that the Project will cause habitat fragmentation in SW-11 due to the construction of a gravel access road to turbines 2, 3 and 5, with the result that the southern section of SW-11 will be separated from the northern section of the woodland. The Appellant submits that areas in the southern section will be further fragmented into smaller wooded fragments to enable the construction and installation of the bases for turbines 3 and 5.

164The Appellant submits that the environmental damage to SW-11 will be permanent because all but the top metre of the “800 tonne concrete bases” will remain in the ground and prohibit natural tree and woodland regeneration, and will alter rainfall infiltration patterns and ground and surface water flow. The Appellant notes that the Approval Holder will not remove the gravel access road if the landowner wishes to keep it, and emphasizes that there is no long-term requirement in the REA to maintain the woodland compensation habitat.

165The Appellant submits that SW-11 has been defined as “significant” according to the ORM Technical Paper 7, and that the significant woodland plays an important role in the ecosystem of the ORM in ways other than acting as habitat:

Woodlands generally play an important role in the complex hydraulic cycle of evaporation, transpiration, and rainfall that support natural features such as streams, rivers, geological features and the water table. Trees reduce runoff by breaking rainfall. Woodlands leaf and twig ground litter hold back melt water and storm water runoff and increase the rates of groundwater recharge. Trees act like a sponge that filters water naturally and uses it to recharge groundwater supplies. Root systems of trees provide erosion controls. Their root channels created during growth improve water infiltration into the soil.

Significant Woodland 11 is located within a significant hydrologic area of the Oak Ridges Moraine designated ‘high vulnerability’ as well as a ‘significant recharge’ zone and is part of the larger Fleetwood Creek Forest complex.

166The Appellant submits that 24 species of trees will be removed in the construction phase, and trees will also be lost in the decommissioning phase as well.

167The Appellant also submits that the Approval holder has not been correct in its description of the amount of woodland to be removed. While the NHA/EIS states in three separate locations that 18% of the significant woodland will be removed, Mr. Charlton testified orally that this was a “typo”. The Appellant submits it could not be a “typo” made three times.

168The Appellant submits that no clear information has been given to the MOECC (or the Tribunal) regarding the amount of significant woodland that will actually be removed. The EIS and EEMP reports indicate that 1.8 ha of woodland will be removed. However, the Appellant notes that Mr. Charlton stated that, based on GoogleEarth imagery, closer to 2.5 ha would be removed.

169In addition, the Appellant submits that Mr. Charlton’s testimony regarding the significance of the woodlands should be given significantly less weight than the locally-informed testimony of both Mr. Williams and Mr. McRae, for reasons including errors in identifying the woodland in photos to the Tribunal and contradictory testimony.

170The Appellant submits that s. 22(2) of the ORMCP prohibits removal of any part of a woodland classified as significant, unless the Approval Holder can demonstrate the need for the Project and that there is no reasonable alternative, which the Approval Holder has never done. The Appellant submits that the Approval Holder has never produced documentation that there is no reasonable alternative to constructing this industrial project wholly on the ORM.

171The Appellant also submits that the Project violates s. 38 of O. Reg. 359/09, which prohibits activity within a significant woodland or within 50 m of a significant woodland.

172The Appellant submits that the cumulative impact of tree removal for this Project must be considered along with “the thousands of trees that will also be removed in order to accommodate the adjacent wind energy project, Sumac Ridge, which is also located on the Oak Ridges Moraine thus further fragmenting the Fleetwood Creek Forest.”

173The Appellant notes that Dr. Kerlinger confirmed there are three distinct bird habitat communities within SW-11; grassland, edge habitat and interior woodland habitat. Interior bird species, according to both Dr. Kerlinger and Mr. Charlton, require a forest with an interior at least 100 m from an edge.

174The Appellant argues that the Tribunal should not rely on the opinions of Mr. Charlton and Dr. Kerlinger regarding the quality of habitat within SW-11, because they both focused their comments exclusively on the mature Scots pine plantation. The Appellant submits they did not fully evaluate the benefits of the existing habitat in the four other environmental land classification components identified in the NHA, including the mixed white birch deciduous forest, the sugar maple forest, the other coniferous woodland as well as another mixed sugar maple dominated deciduous woodland.

175The Appellant disagrees with the Approval Holder’s assertions regarding Eastern Wood-Pewee habitat, stating that at least six Eastern Wood-Pewee were found by Mr. McRae and Mr. Williams in several areas of SW-11 on both days of their site visit, indicating that SW-11 is important habitat for the species.

176The Appellant submits that bird habitat is important to protect from cumulative impacts, as follows:

It cannot be assumed that species affected by the Project will simply “adapt” to the removal of habitat. Habitat removal erodes populations. Breeding habitat removal is the major cause of population decline in Southern Ontario. If habitat continues to be eroded, at some future point in time critical turning points will occur when some species’ concentrations are sufficiently reduced that they cannot recover. As was pointed out, bobolinks cannot move north – they need the climate of Southern Ontario for part of their life cycle otherwise they will disappear from this area.

177Finally, the Appellant submits that construction of the Project in the significant woodland will also negatively impact snake and bat habitat. The Site map (forming part of the NHA/EIS) denotes two potential bat maternity colonies (one in each of significant woodland SW-10 and SW-11) and two candidate significant snake hibernacula (both in SW-11) within 60 m of areas to be cleared for the Project.

178The Director’s submissions on this issue largely focus on the fact that Mr. Charlton was qualified as an expert and, as the Appellant did not call a witness with specific expertise on woodlands, that Mr. Charlton’s evidence should be preferred. The Director submits that the Appellant only tendered the evidence of Ms. Zednik and Ms. Stauble which should only be considered expressions of concern. The Director submits that the Appellant adduced no expert evidence that the removal of a portion of the significant woodlands will have a negative impact on any bird species. The Director relies on the conditions of the REA and Mr. Charlton’s opinion, that the potential impact of the removal of a small portion of SW-11 is mitigated by conditions A1 and I of the REA which require the implementation of the Environmental Effects Monitoring Plan including the Woodland Rehabilitation Protocol.

179The Director made no submissions on the issue of removing portions of a “significant woodland” within the ORMCP area specifically, nor how the Tribunal should apply the Environment Test in this context.

180The Approval Holder submits that the principal thrust of the Appellant’s environmental case centers on the impact of “the removal of 6% of a single woodlot … which the Appellant argues must remain undisturbed because of the habitat it allegedly provides for protected species.” The Approval Holder argues that the only evidence before the Tribunal from an expert qualified to opine on the health and viability of woodlands and their constituent trees and plants is Mr. Charlton, whose evidence is that SW-11 “is not comprised of high value native species but instead is comprised largely of non-native species that are highly fragmented, and are without any significant amount of interior habitat.” The Approval Holder submits that the compensation agreement reached with an owner of part of SW-11 satisfies the requirement of Woodland Protocol in the REA. The Approval Holder submits that the removal of a small percentage of SW-11 will not cause serious and irreversible harm to any bird species either directly or indirectly.

181The Approval Holder submits that the figure of 18% woodland removal, which appears in the NHA/EIS, is a “typo” or a “mathematical error”. The Approval Holder relies on Mr. Charlton’s calculation, which is that the total area of SW-11 is 44 ha, of which 2.5 ha will be impacted by the project construction, or 6% of the total area (i.e., 2.5/44 = 0.0568 or 6% after rounding up).

182The Approval Holder submits that the woodland removal is not serious as there is no significant habitat that is negatively impacted, and the woodland itself is “highly fragmented”, including an agricultural field in the middle and roads for farm equipment and logging access. Further, it is submitted that the woodland areas to be removed are comprised of low-desirability non-native species such as Scots pine. The Approval Holder submits that the woodland was designated significant on the basis of its size, without regard to its quality.

183The Approval Holder further submits that the woodland removal is not irreversible as the compensation woodland, as outlined in the Woodland Compensation Protocol contained in the Environmental Effects Monitoring Plan will be a better mix of native trees. The compensation woodland is to be 2.7 ha in size, and is currently made up of “agricultural fields” in the centre of SW-11. Additionally, the Approval Holder relies upon the fact that the lease agreement concluded for woodland compensation habitat is for a period of 20 years, while the REA only requires monitoring for 10 years.

184With regards to woodland bird habitat, the Approval Holder submits that the Tribunal should rely on the opinions of Dr. Kerlinger and Mr. Charlton that the removal of 6% of SW-11 will not cause serious and irreversible harm to any bird species. The Approval Holder points to Dr. Kerlinger’s opinion that the “poor quality of the woodlands is such that it is not important for nesting, wintering or migrating birds, either for species at risk or other birds,” and Mr. Charlton’s opinion agreeing that SW-11 “does not provide high-quality wildlife habitat.” Further, according to the Approval Holder no species at risk that require forest for nesting or foraging were encountered during the bird surveys.

185Regarding the Eastern Wood-Pewee, a species listed as “special concern” under the ESA, and observed in SW-11 by Mr. McRae, the Approval Holder relies on Dr. Kerlinger’s testimony that this species requires woodlands larger in size than SW-11, with more sizeable trees for nesting.

186The Approval Holder submits that the Appellant’s bird expert, Mr. McRae, did not support a finding of serious and irreversible harm to birds as he testified only that “it is difficult to speculate precisely what will be the biological impact on birds, wildlife and habitat”, and that “it is completely unclear what impact the on-going operation of the turbines will have” on species at risk.

Discussion, Analysis and Findings – Woodland

187There are two aspects to the Project’s impact on woodlands; harm to SW-11 itself as an ecosystem including removal of trees, and harm to the woodland as habitat for a variety of species, including (but not limited to) birds, bats, snakes and mammals.

188As a general comment relating to opinion evidence given by experts as compared to the technical evidence provided by various witnesses, the Tribunal’s reasons above in the “grassland” section apply equally here. That is, technical evidence may be reliably received from lay witnesses, as from experts in relation to the size and species of trees observed and the variety of bird species present and utilizing SW-11. For example, the woodland photographic survey provided by Mr. Williams and his explanation of the various photographs revealed the maturity and variety of tree species in SW-11. His evidence, along with the information contained in the NHA/EIS made it clear that SW-11 cannot merely be considered a low quality Scots pine plantation. This evidence was the best evidence and most useful to the Tribunal in regard to those matters, even though Mr. Williams is not an expert. The Tribunal elaborates upon this further below.

189At the outset, the Tribunal recognizes that there was significant evidence and submissions dedicated to the issue of the creation of compensation woodland areas. The Tribunal is satisfied that the compensation agreement reached by the Approval Holder to create woodland in the centre of SW-11 likely satisfies the requirement of the Woodland Protocol in the REA. The question for the Tribunal remains however, whether engaging in the Project in accordance with the REA will result in serious and irreversible harm despite the compensation to be provided for.

190In summary, the Tribunal finds that the Project will cause serious and irreversible harm to SW-11 and to the habitat it represents, for the reasons below.

191The Tribunal considers whether harm is “serious” and whether it is “irreversible” separately, given that different evidentiary matters relate to these two considerations in this context. The Tribunal wishes to stress that these considerations, in other contexts, may also be considered in tandem.

Serious harm

192The Tribunal has found that the harm to SW-11 will be serious in consideration of the following factors:

• Designation of SW-11 as “significant woodland”;

• Prohibition of development in significant woodlands in statute, regulation and policy as an aid to interpreting “serious harm”;

• Negative impacts are to the features and functions for which the woodland is designated “significant”;

• Harm to the features and functions of the woodland despite mitigation measures, including

• Loss of trees - age and type,

• Forest fragmentation,

• Invasive species and edge effects,

• Impact on animal habitat including birds,

• Loss of woodland interior and presence of woodland interior bird species which have been identified at risk under the ESA; and

• Possible cumulative impacts on the ORM.

SW-11 is a “significant woodland”

193There is no dispute that SW-11 is designated “significant woodland” by operation of law. That designation remains despite the establishment of the renewable energy approval system through the Green Energy and Green Economy Act. SW-11 is described in the Approval Holder’s Natural Heritage Evaluation of Significance Report at p. 11 as follows:

[SW-11] … is a significant woodland under the Natural Heritage Assessment Guide for woodland native diversity dominant. Additionally, WO11 is significant under the criteria of the ORMCP Technical Paper 7 based upon tree cover and area which is both > 4 ha in Countryside Area of the ORMCP and intersecting a key natural heritage feature.

194The evaluation process required in applying for a renewable energy project approval includes development of an “Evaluation of Significance” report, followed by an “Environmental Impact Study” (“EIS”) report for the natural features that were identified as “significant”. The EIS is intended to address negative impacts through the identification of mitigation measures.

195In this case, the Evaluation of Significance Report (M.K. Ince, October 26, 2012) explains that SW-11 qualifies as a significant woodland under two evaluation tools: MNRF’s Natural Heritage Assessment Guide, and ORMCP Technical Paper 7.

i. MNRF’s Natural Heritage Assessment Guide

196MNRF’s Natural Heritage Assessment Guide is a document that dictates how a NHA/EIS is to be prepared in support of an application for a renewable energy approval.

197The Approval Holder’s NHA indicates that SW-11 qualifies as significant as a “woodland composed of native tree species”, also referred to as “woodland native diversity dominant.” While SW-11 is made up of a number of environmental land classification (“ELC”) ecosites, it is the portion of the woodland designated as FOCM6-3 that qualifies as significant under this criterion. Turbine 3 and access roads are planned inside FOCM6-3. Below is an excerpt from the Table in the Evaluation of Significance Report appendix, which comprises part of the NHA/EIS, and summarizes the significance of SW-11:

Ecosite Ecosite size woodland interior woodland native diversity dominant

FOCM6-3 20.72 ha 0.34 ha 20.72 ha

198While “woodland interior” is not a characteristic that led to its designation of significance, it is also of note that FOCM6-3 is the only ecosite in SW-11 that contains what is considered woodland “interior”. Interior habitat is a notable quality due to its relative rarity, and for species of animals that rely on such habitat, amongst other reasons.

ii. Oak Ridges Moraine Conservation Plan Technical Paper 7

199SW-11 is also considered significant under the criteria of the ORMCP Technical Paper 7, “based upon tree cover and area which is both > 4 ha in Countryside Area of the ORMCP and intersecting a key natural heritage feature.” Specifically, SW-11 was found to have:

a. at least 60% tree cover;

b. its area (44 ha) is greater than 4 ha in the Countryside Area of the ORMCP; and

c. it intersects a key natural heritage feature (significant wildlife habitat - snake hibernacula: SH07 and SH13).

200With regard to the third criterion (significant wildlife habitat), page 14 of the Evaluation of Significance Report states:

In accordance with OMNR guidance, including the Natural Heritage Assessment Guide (OMNR, 2011) and consultation with the district office, rock piles more than 30 m and less than 120 m from the Project Location were treated as significant snake hibernacula and exempt from further studies (see the Settlers Landing Site Investigation Report for complete details) and carried to the Environmental Impact Study. SH01, SH06, SH07 and SH13 were between 30 m and 120 m from the Project Location, and will be treated as significant snake hibernacula and carried forward to the Environmental Impact Study.

201The EIS then reports that Snake Hibernaculum SH07 “is located 46 m from underground electrical cabling; 48 m to Project Road to T5; 117 m to T5 bladeswept area.” Snake Hibernaculum SH13 is located “95 m and 120 m to T2 bladeswept area; 101 m to Project Road to T2; 107 m to underground electrical cabling.”

202Mr. Charlton did not comment on the influence of the snake hibernacula on SW-11’s designation as significant.

Provincial Statute, Regulation and Policy as Aids in Determining Whether Harm is Serious

203There are various Ontario statutes under which natural features are designated as significant in some way. The designation of significance may come in the form of protection of species and the habitat upon which they rely through the ESA, protective legislation relating to development in a specially designated landform (e.g., Niagara Escarpment or the ORM), or a designation as “significant wildlife habitat”, “significant wetland” or “significant woodland” by way of statutory definition – through the PPS under the Planning Act or through the ORMCP under the ORMCA for example. A basic principle of statutory interpretation presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter (see for example R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 at para. 52 and Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, 2014 ONSC 974 at para. 59).

204Here, the Tribunal finds that a consideration of other statutory schemes is relevant to its consideration of what should be considered serious harm in this context in applying the Environment Test under s. 145.2.1(2)(b) of the EPA. The Tribunal finds the ORMCP and the ESA to be of such assistance. Specifically, the Tribunal finds that not only does SW-11 represent habitat for species at risk listed under the ESA, as discussed below, but it has also been afforded special status under provincial statute and policy as a significant woodland for which there is a presumption of protection.

205Both the ORMCP and the EPA contain provisions protecting significant woodlands. The ORMCP defines and then prohibits development within a significant woodland. The EPA only exceptionally allows renewable energy development within significant woodlands where a natural heritage investigation has demonstrated that the impact can be “addressed”. The Tribunal now turns to the relevant provisions of these legislative and policy schemes.

i. O. Reg. 359/09 of the Environmental Protection Act

206As a result of the Green Energy and Green Economy Act, which amended the Planning Act by adding s. 62.0.2(1)2, the ORMCP does not operate to prohibit projects approved under a renewable energy approval from being developed in a significant woodland. However, the incorporation of a strong deference to the ORMCP in O. Reg. 359/09 and in the MOECC’s ORM Technical Guide indicates that there is a very strong preference that significant woodlands be preserved where possible as intended by the ORMCP.

207Section 38 of O. Reg. 350/09, which applies throughout the province including the ORMCP area, provides that a renewable energy project is prohibited in a significant woodland or within 120 m of a significant woodland unless an exception in s. 38(2) applies. That is, an environmental impact study is prepared and the negative effects identified are “addressed”. The section reads:

38(2) Subsection (1) does not apply if, as part of the application for the issue of a renewable energy approval in respect of the renewable energy project, the applicant submits,

(a) an environmental impact study report prepared in accordance with the Natural Heritage Assessment Guide, that,

(i) identifies and assesses any negative environmental effects of the project on a natural feature, provincial park or conservation reserve referred to in the Table to subsection (1),

(ii) identifies mitigation measures in respect of any negative environmental effects mentioned in subclause (i),

(iii) describes how the environmental effects monitoring plan set out in paragraph 4 of item 4 of Table 1 addresses any negative environmental effects mentioned in subclause (i), and

(iv) describes how the construction plan report prepared in accordance with Table 1 addresses any negative environmental effects mentioned in subclause (i);

(b) written confirmation from the Ministry of Natural Resources that the report mentioned in clause (a) has been prepared in accordance with the Natural Heritage Assessment Guide; and

(c) any written comments provided by the Ministry of Natural Resources to the applicant in respect of the project.

208Additionally, section 9.3 of the MOECC’s Technical Guide to Renewable Energy Approvals, provides that the “full intent” of the ORMCP is to be considered by project proponents:

Renewable energy projects at project locations that are located entirely or partly on land subject to the Oak Ridges Moraine Conservation Plan have special provisions that must be considered in an application for an REA. These provisions are located in sections 42 – 46 of O. Reg. 359/09. The provisions were incorporated in the regulation to maintain protection of the Oak Ridges Moraine in respect of renewable energy projects since these are now exempt from the Planning Act. While O. Reg. 359/09 describes the minimum legal requirements that pertain to projects in the Oak Ridges Moraine, applicants are expected to consider the full intent of the Oak Ridges Moraine Conservation Plan when evaluating negative environmental effects that will or are likely to occur as a result of the proposed project.

209With this strong deference to the full intent of the ORMCP in mind, the Tribunal now turns to that policy document.

ii. Oak Ridges Moraine Conservation Plan

210The ORMCP is Ontario Regulation 140/02 made under the ORMCA. The objectives of the ORMCP are set out in s. 4 of the ORMCA which provides:

4. The objectives of the Oak Ridges Moraine Conservation Plan are,

(a) protecting the ecological and hydrological integrity of the Oak Ridges Moraine Area;

(b) ensuring that only land and resource uses that maintain, improve or restore the ecological and hydrological functions of the Oak Ridges Moraine Area are permitted;

(c) maintaining, improving or restoring all the elements that contribute to the ecological and hydrological functions of the Oak Ridges Moraine Area, including the quality and quantity of its water and its other resources;

(d) ensuring that the Oak Ridges Moraine Area is maintained as a continuous natural landform and environment for the benefit of present and future generations;

(e) providing for land and resource uses and development that are compatible with the other objectives of the Plan;

(f) providing for continued development within existing urban settlement areas and recognizing existing rural settlements;

(g) providing for a continuous recreational trail through the Oak Ridges Moraine Area that is accessible to all including persons with disabilities;

(h) providing for other public recreational access to the Oak Ridges Moraine Area; and

(i) any other prescribed objectives.

211The ORMCP considers significant woodlands to be “key natural heritage features”, which are afforded special protection from development. Specifically, development within these features is prohibited, unless an exception applies. The relevant sections read:

22. (1) The following are key natural heritage features:

…6. Significant woodlands.

(2) All development and site alteration with respect to land within a key natural heritage feature or the related minimum vegetation protection zone is prohibited, except the following:

3. Transportation, infrastructure and utilities as described in section 41, but only if the need for the project has been demonstrated and there is no reasonable alternative.

212The s. 41 exception referred to in s. 22(2)3 requires a demonstration of need, and of no reasonable alternative. It reads as follows:

41. (1) Transportation, infrastructure and utilities uses include,

(a) public highways;

(b) transit lines, railways and related facilities;

(c) gas and oil pipelines;

(d) sewage and water service systems and lines and stormwater management facilities;

(e) power transmission lines;

(f) telecommunications lines and facilities, including broadcasting towers;

(g) bridges, interchanges, stations and other structures, above and below ground, that are required for the construction, operation or use of the facilities listed in clauses (a) to (f); and

(h) rights of way required for the facilities listed in clauses (a) to (g).

213STORM made the point that s. 41 applies to linear development of transportation, infrastructure and utilities such as transmission lines and pipelines that cross through the ORM area. The generation of electrical power, however, does not explicitly appear on the list. If power generation is not included as a s. 41 exception, then wind turbine development would be prohibited entirely within significant woodlands in the ORMCP area.

214Thus a reading of these provisions demonstrates that under the ORMCA, all development and site alteration is prohibited in significant woodlands in the ORMCP area, with narrow exceptions and even then only when “need” has been shown. The Tribunal finds that this is a strong indication that removal of portions of the significant woodlands in this area should be considered “serious” harm by operation of legal standards set in the ORMCP adopted through O. Reg. 359/09, and as explained by the MOECC’s ORM Technical Guide. This does not mean that such removals are prohibited (given s. 62.0.2(1)2 of the Planning Act), but rather that harm is acknowledged under the EPA where woodlands are to be removed.

215Wooded areas are also recognized in the ORMCP as important in serving a key connectivity function for wildlife and plants to the north and south of the ORMCP area. ORM Technical Paper 3 - Supporting Connectivity requires that “all wooded areas outside key natural features and hydrologically sensitive features and their associated vegetation protection zones (including hedgerows) [be] maintained or enhanced”.

iii. Planning Act and Provincial Policy Statement

216Although the PPS is not applicable to the Project directly by virtue of amendments to the Planning Act made through the Green Energy and Green Economy Act, the PPS also provides some interpretative assistance in assessing the importance of significant woodlands provincially.

217The PPS places restrictions on development and site alteration in significant woodlands. The PPS defines “woodland” and “significant” for woodlands at part 6 (definitions) as follows:

Significant: means

b) in regard to woodlands, an area which is ecologically important in terms of features such as species composition, age of trees and stand history; functionally important due to its contribution to the broader landscape because of its location, size or due to the amount of forest cover in the planning area; or economically important due to site quality, species composition, or past management history. These are to be identified using criteria established by the Ontario Ministry of Natural Resources…

Woodlands: means treed areas that provide environmental and economic benefits to both the private landowner and the general public, such as erosion prevention, hydrological and nutrient cycling, provision of clean air and the long-term storage of carbon, provision of wildlife habitat, outdoor recreational opportunities, and the sustainable harvest of a wide range of woodland products. Woodlands include treed areas, woodlots or forested areas and vary in their level of significance at the local, regional and provincial levels. Woodlands may be delineated according to the Forestry Act definition or the Province’s Ecological Land Classification system definition for “forest.”

218Section 2.1.5(b) of the PPS then goes on to state:

2.1.5 Development and site alteration shall not be permitted in:

b) significant woodlands in Ecoregions 6E and 7E (excluding islands in Lake Huron and the St. Marys River);

unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.

219The Project area at issue in this appeal is within the area of Ecoregions 6E and 7E identified in the PPS. Similar to provincial law and policy above, the PPS also stresses the importance of significant woodlands in the province.

220To summarize, designation of a woodland as “significant” by a provincial authority is instructive in the Tribunal’s consideration of whether harm to it should be considered “serious” under s. 145.2.1(2)(b) of the EPA. In addition, the fact that SW-11 is within the ORMCP, an area that the province has determined warrants additional ecological protection, is an added indicator of the harm that the province considers would be occasioned through development or site alteration within it.

iv. Endangered Species Act

221The final legislative scheme that the Tribunal views as relevant to its interpretation of the Environment Test is the ESA. As set out below, the Tribunal has found that SW-11, more likely than not, represents habitat for nesting species of birds that are listed under the ESA, including Eastern Wood-Pewee and possibly Wood Thrush and Golden-winged Warbler, all of which are listed under the ESA as species of special concern.

222Under the ESA, the habitat of species listed as special concern does not receive specific protection similar to that of species listed as either threatened or endangered, but the criteria set out in the Act for listing a species as special concern includes consideration that the species may become threatened or endangered as a result of threats to it:

5. (1) For the purposes of this Act, COSSARO shall classify species in accordance with the following rules:

6. A species shall be classified as a special concern species if it lives in the wild in Ontario, is not endangered or threatened, but may become threatened or endangered because of a combination of biological characteristics and identified threats.

223Additionally, s.12 of the ESA mandates that a management plan be prepared for each species listed under the Act as special concern:

12. (1) The Minister shall ensure that a management plan is prepared for each species that is listed on the Species at Risk in Ontario List as a special concern species.

224Therefore in assessing “serious harm” the Tribunal is cognizant that species listed as special concern under the ESA are in need of some form of protection beyond what is provided for through usual planning processes, in order to prevent further decline of the species.

225Overall therefore, the Tribunal finds that SW-11’s significance is recognized by operation of provincial statute, regulation and policy. The Tribunal further finds that this significance is relevant to the Tribunal’s application of the Environment Test in the context of this appeal and particularly in determining whether any harm to SW-11 rises to the level of serious. With this in mind, the Tribunal now turns to a consideration of the impacts to SW-11; those anticipated in the Approval Holder’s reports, as well as those alleged by the Appellants.

Impacts to SW-11

226The EIS includes a summary in table form (Table 4-1) of the anticipated impacts to SW-11, and proposed mitigation measures which the Tribunal has replicated and attached to these reasons as Appendix 1.

227As noted in the table, direct effects identified by M.K. Ince that will be caused by construction and decommissioning of the Project road, construction of turbines 2 (“T2”), 3 (“T3”) and 5 (“T5”) and underground electrical cabling include:

a. Encroachment onto feature due to placement of two turbines (T3 and T5) including the foundation (306 square metres (“m²”)), permanent project roads (3,180 m²), underground electrical cabling (1,187 m²), temporary turning radii (1,043 m²) and rotor assembly area and crane pad (13,225 m²).

b. Potential for small edge effect (colonization on feature borders, pollution, erosion, loss of habitat) given minor encroachment onto feature.

c. Impacts to wildlife habitat will be minimal.

d. Improper storage or disposal of oils, gasoline, grease or other materials used in construction vehicles, turbines or maintenance vehicles may result in spills or leaks, contaminating soils or water.

e. Potential for erosion and/or sedimentation but these impacts will be short term and highly localized.

f. Changes in soil moisture and structure (compaction), however should be highly localized and previously compacted from prior road construction – negligible effect.

228The Approval Holder’s application reports state that 1.8 ha of woodland and hedgerow, or 18% of SW-11, will be cleared and kept clear for the life of the Project for operational purposes. Mr. Charlton’s calculations increased the area to be cleared to 2.5 ha, although he estimates this amounts to 6% of SW-11. The Tribunal finds that the area to be cleared is 2.5 ha, a number that has not been disputed. Based on the total area of SW-11 of 44 ha, a size that has also not been disputed, the Tribunal finds that 6% of the woodland will be cleared for the Project (2.5 ha of cleared area of 44 ha of total woodland represents 6% of the woodland if one rounds up to the nearest whole number).

229The Approval Holder’s documents indicate that clearing within SW-11 will occur within a number of Environmental Land Classification types:

a. FODM3-2 (Dry-fresh White Birch Deciduous Forest)

b. FODM5-1 (Dry-fresh Sugar Maple Deciduous Forest)

c. FOCM6-3 (Dry-fresh Scots Pine Naturalized Coniferous Plantation)

d. WOCM1 (Dry-fresh Coniferous Woodland)

e. WODM4-3 (Dry-fresh Sugar Maple Deciduous Woodland)

230The Natural Heritage Site Investigation Report includes a map at Appendix D that shows at p.28 the exact ELC classifications within SW-11. The figure at p. 28 shows that turbine 3 is located in FOCM6-3, described as “Dry-Fresh Scots Pine Naturalized Coniferous Plantation Type”, and turbine 5 is located in WOCM1, described as “Dry-Fresh Coniferous Woodland Ecosite”. Appendix D to the Natural Heritage Site Investigation Report lists the range of tree species to be removed in these areas:

FOCM6-3: Beech, Balsam fir, basswood, black cherry, red oak, dotted hawthorn, mountain ash, read pine, Scots pine, sugar maple, white birch, white cedar, white spruce, white ash and scarlet hawthorn.

WOCM1: red oak, red pine, scarlet hawthorn, Scots pine, basswood, mountain ash, ironwood, sugar maple, trembling aspen, white ash, white birch, white spruce, red maple, red oak, and red spruce.

Characterization of SW-11

231The characterization of SW-11 by the Approval Holder’s witnesses was markedly different from that of the Appellant’s witnesses and the participants and presenters.

232The Appellant provided photographs of SW-11, which indicate very tall trees on the sites identified as the locations for turbines 3 and 5. The evidence was that there is one access trail for farm equipment to enter the agricultural fields at the centre of the “doughnut” from the south, and that a new access road will be constructed specifically for the Project which enters the woodland from the east.

233Mr. Charlton’s witness statement characterizes the woodland as a “Scots pine plantation”, and states that “the woodland possesses all of the characteristics of a highly disturbed, low quality site and virtually none of the indicators of higher quality sites outside of the Project area”. In oral testimony, however, Mr. Charlton stated that he does consider SW-11 to be significant, that there is “no question it is significant”, and that he did not intend to denigrate its importance.

234The Tribunal finds that Mr. Charlton substantially minimized the importance of SW-11 in his witness statement. Both Mr. Charlton’s witness statement and the Approval Holder’s submissions refer to the ecosite impacted by the Project as TAGM1 (“Coniferous Plantation”), while in fact turbine 3 is located in WOCM1 (“Dry-Fresh Coniferous Woodland Ecosite”). They correctly identified turbine 5 as located in FOCM6-3 (“Dry-Fresh Scots Pine Naturalized Coniferous Plantation”). The Approval Holder’s reports show that the very ecosite in which turbine 3 and access roads will be built, is the one that qualifies SW-11 as significant under MNRF’s Natural Heritage Assessment Guide due to “woodland native diversity dominant”. Mr. Charlton acknowledges in his witness statement that the woodland around turbine 3 has “naturalized”. Mr. Charlton also acknowledged on cross-examination that mature, native species of trees, which he termed “higher quality trees”, will be removed for the construction of turbine 5.

235The Tribunal also finds that Mr. Charlton was applying planning considerations in coming to his opinion regarding impacts to SW-11, when such planning considerations are not particularly relevant to the Tribunal’s application of the Environment Test. He testified, for example, that the removal of 2.5 ha of SW-11 is a “good tradeoff” when “balanced” with the goal of clean energy. O. Reg. 359/09 has removed planning considerations from the test applied by the Tribunal. Indeed, were the usual planning considerations before the Tribunal the woodland removal proposed would appear to be prohibited by the ORMCP.

236Further, Mr. Charlton testified that a factor in his opinion that construction in SW-11 will not cause serious harm was that the mosaic of habitat it represents, with small amounts of interior habitat, is of a “lower level of rarity on the Moraine” compared with bigger, intact woodlands such as Fleetwood Creek Forest. The “more and better elsewhere” analysis is not helpful in determining, at the Project scale, whether the Project operated in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment. Indeed, the fact that the province has earmarked significant woodlands such as SW-11 for protection generally in most other contexts, is indicative of the rarity of SW-11. The fact that there are woodlands considered even more rare than SW-11 does not lead to the conclusion that SW-11 should not be afforded consideration as significant in this context in the application of the Environment Test.

237For all of these reasons, the Tribunal finds Mr. Charlton’s opinion unpersuasive regarding “serious” harm to SW-11 as interpreted under s. 145.2.1(2)(b) of the EPA.

238Dr. Kerlinger was qualified as an expert on birds and the impacts of wind energy projects on birds, and not specifically on assessing woodlands. Nonetheless he provided opinions relating to the suitability of SW-11 as bird habitat. The Tribunal notes in this regard that he based his comments on the mistaken understanding that SW-11 was a “Scots pine plantation”, which he stated was “worthless for wildlife.” As a result, the Tribunal finds his opinion unpersuasive regarding “serious” harm to SW-11 under s. 145.2.1(2)(b) of the EPA.

239Mr. McRae disagrees with Mr. Charlton’s opinion that SW-11 is “low quality”, fragmented or degraded. Rather, he states at p. 3 of his witness statement that:

(t)hese forests appear to support healthy populations of Pileated Woodpecker, Eastern Wood-Pewee, Great Crested Flycatcher, at least one pair (possibly two) of Broad-winged Hawk, … as well as forest interior species such as Ovenbird. This species mix demonstrates that, even though there has been some disturbance between the woodlots, they are still interconnected and function as a whole. It is clear that this area within the Subject lands and those immediately adjacent still support diverse and important bird communities.

240Mr. McRae acknowledged that “the woodlots are somewhat fractured now”, but testified SW-11 still functions as a connected unit, and that it is a rich area that has not been degraded as habitat as revealed by his observation of bird species in the woodland. He testified that the Black-throated Blue Warbler, for example, which he sighted in the Project area, does not nest in small, isolated woodlots. Rather, it is typically a forest interior species. He also testified that “the planned cutting will result in the removal of a large proportion of the remaining woods, including some high quality habitat.”

241Ms. Zednik made a number of relevant observations as to information that was not included in the Approval Holder’s analysis of SW-11. For example, she noted that “the Approval Holder did not conduct a plot grid calculation to determine the trees per square metre, has not revealed the number of trees to be removed, or the total numbers within various tree species.” She stated that “the approval holder has not indicated the age of the trees to be removed”, while observing that residents have indicated there are old-growth stands within SW-11. She emphasized that the Approval Holder’s consultants noted the presence of red spruce in WOCM1, which is rare in southern Ontario. Ms. Zednik pointed out that no ground layer plants were included in the botanical inventory conducted by the Approval Holder in 2013, and that there is no mitigation strategy to replace ground layer plants.

242Mr. McRae testified that Scots pine were largely planted in the 1930s to 1950s. He testified that plantations of Scots pine generally create a “biological desert”, but the trees nonetheless reduce erosion on sandy soils and “act as shade to allow forest tree seedlings to grow.” He testified that in this case, the woodland has naturalized and the Scots pine will die out in the next 15 to 20 years, leaving native species in the forest. This was consistent with Mr. Charlton’s evidence on the life span of Scots pine.

243Based on the above evidence and findings, the Tribunal finds that SW-11, in its current naturalized state, is an important and functioning woodland, and woodland habitat, in the ORMCP area.

244The Tribunal finds that the significance of SW-11, and its significance as habitat, is not reduced by the fact that portions of it are a mature Scots pine plantation. To the contrary, being mature Scots pine indicates, as shown by the evidence, that native tree species will soon fully replace the remaining Scots pine. Although all the experts agreed that Scots pine plantations are undesirable, nonetheless the evidence is that the plantations within SW-11 are old enough that the area has naturalized to a large extent and become valuable as habitat, including a diversity of native species of mature trees.

245The Tribunal agrees with the Appellant’s submission that the Approval Holder’s consultants did not fully evaluate the benefits of the existing habitat in the mixed white birch deciduous forest, the sugar maple forest, the other coniferous woodland as well as another mixed sugar maple dominated deciduous woodland in SW-11.

246The Tribunal therefore finds that, in addition to its deemed significance by operation of statute and policy, SW-11 has significance due to its value as a diverse functioning woodland within the ORMCP area which provides connectivity and habitat to a variety of species. The woodland cannot simply be considered low quality Scots pine plantation devoid of species diversity broadly across its area or even at the specific locations where trees will be removed for the Project.

Loss of Trees

247The Design and Operations Report considers the value of timber harvested from the woodland. However, the Tribunal also recognizes that trees have inherent value and provide benefits including the filtering of pollutants from air and water, absorbing and storing carbon, reducing soil erosion, and providing habitat for plants, wildlife and pollinators. They assist in fighting climate change, which is the same goal of the renewable energy production that is proposed to replace them.

248Trees are beneficial for water filtering and reducing soil erosion; both important in the “high vulnerability aquifer area” designation under the ORMCP, where SW-11 is situated. The Approval Holder’s botanical inventory classifies the soils within SW-11 as “fine textured silty sand”, which are vulnerable to erosion. Ms. Stauble testified to the improvement in area over the past 50 years, including reversal of soil erosion and desertification, as a result of the tree planting activities that have taken place.

249One of the mitigation measures listed in the EIS is implementation of a woodland rehabilitation plan. Appendix D to the EIS is the Woodland Rehabilitation Protocol. It states that, following Project construction,

Approximately 1.8 ha of [SW-11] are planned for clearing during the project construction phase. Within one year of construction, a total of 2.7 ha of open agricultural land or open meadow will undergo regeneration efforts. This reflects a 3:2 ratio of habitat regenerated to land cleared.

Ideally, woodland regeneration will take place on the impacted property, with a location adjacent to woodland [SW-11] strongly preferred. If this is not possible on the impacted property, woodland rehabilitation will occur within the same township as the project, and will be added to a woodland that is 40 ha or greater in size.

250The Woodland Rehabilitation Protocol states that for regeneration, the following measures will be taken:

Native saplings or seedlings will be planted in the same ratio/composition as the adjacent ELC polygon, or similar pending consultation with Trees Ontario. Saplings/seedlings will be obtained from an organization that maintains seed banks from local sources. Trees will be planted at a density of approximately 1000 stems/hectare.

For the first two years following planting, monitoring will occur once monthly between the months of May and September to collect complete inventories of vascular plants within the regeneration areas, to remove non-native woody species, and to remove native woody species in the vicinity of planted seedlings/saplings that are not associated with the adjacent ELC polygon type. Photographs will be taken of the regeneration area at each visit.

Following the two year intensive monitoring period, the same measures will be implemented each growing season once between April and June and once between July and September until the tenth year after construction, or until an agreement is reached between the proponent and the OMNR that regeneration efforts have been sufficient.

An analysis of biodiversity comparing the regeneration area and the adjacent ELC polygon will be performed once annually, and a summary report will be submitted to the OMNR. Discussions to modify, extend, or to halt the process above will be ongoing with monitoring.

251The Woodland Compensation Protocol provides for woodland replacement of 2.7 ha of open meadow. There is no disagreement among the experts that compensation plantings could take upwards of 40 years to mature to the same extent of some of the areas of the existing woodland that are to be removed.

252Mr. Charlton testified that woodland restoration is a “tried and proven method of compensating for forest removal.” He suggested that “specific factors that suggest the proposed forest regeneration for this project will result in an enhancement forest cover on the Oak Ridges Moraine” include:

a. There is no difficulty obtaining native seeds;

b. The woodland to be removed is “dominated by a Scots pine plantation”…; and

c. Scots Pine is being actively removed because it is invasive.

253The Tribunal has found on the basis of the evidence before it that SW-11 is not dominated by a Scots pine plantation, but is considered “native species dominant”, and the specific area where turbine 3 is located is “naturalized plantation”, and turbine 5 is “coniferous woodland”. The Tribunal finds that the key factor in considering mitigation of tree removal in a significant woodland through planting seedlings and whips, is the 30 to 40 year time lag involved. The Appellant’s witnesses testified that it would take “a lifetime” for the trees to mature, Mr. Charlton acknowledged that it would take at least 30 to 40 years for the planted whips to grow to the size of some of the trees to be removed in the area of turbine 5, and testified that “you cannot create a functioning woodland in ten years”, which is the time requirement for monitoring under the Protocol (although the compensation agreement is for 21 years).

254Given that removal of mature trees is “irreversible harm”, as discussed below, the Tribunal finds that forest replanting in this case cannot be considered fully mitigable harm. Rather, it is appropriately considered as partial “compensation” for the serious harm to be occasioned.

Forest Fragmentation

255The Appellant submits that, while removal of 2.5 ha is already serious and irreversible harm, much more of SW-11 will be negatively impacted due to fragmentation. Ms. Zednik’s evidence was that the woodland will be effectively divided into two; north and south. She notes that the Protocol only takes into account areas cleared, and submits that 2.7 ha of compensation does not compensate for dividing the significant woodland into two.

256Mr. Charlton, on the other hand, testified that SW-11 is already fragmented, and the additional cleared areas will not change the functions of the feature. He testified the woodland does not have “high quality” functioning interior habitat. On cross-examination, he nonetheless characterized the woodland as “relatively intact.”

257Simply calculating the woodland to be removed for the construction of Project infrastructure does not fully capture the extent of the Project’s impacts to SW-11. Although the NHA/EIS considered impacts within 120 m of Project infrastructure, those documents do not fully account for fragmentation impacts and removal of remaining interior habitat from SW-11.

258The Tribunal finds that it is not only relevant that 6% of the woodland will be cleared, it is an important consideration that the woodland to be removed will result in fragmentation effects beyond Project infrastructure boundaries.

259Fragmentation of woodlands is a very serious problem in southern Ontario. MNRF’s Report on The State of Ontario’s Forests, 2011, for example, at p. 2 (cited in Ms. Zednik’s materials) states:

The level of fragmentation of a forest (e.g., how broken up or dispersed forests are on the landscape) affects ecological processes and wildlife habitat. Fragmentation levels also affect the capacity of the forest landscape to retain species and processes usually found in those habitats. Forest fragments may be too small to maintain viable breeding populations of certain species.

260Fragmented forests are characterized as isolated and with more edge and less forest interior, leading to loss of biodiversity, increases in invasive plants, pests, and pathogens, and reduction in water quality (see Ecosystem Fragmentation, November 1, 2000, Environmental Commissioner of Ontario).

261Forest fragmentation is also damaging because it allows invasion into forest interior by predators and non-native plants, leading to reduced biodiversity.

262In this case, Dr. Kerlinger acknowledged that if one could consider any of SW-11 interior habitat from a technical perspective, the Project would all but eliminate these remaining areas.

263All the experts agreed that there will be an increase in “edge” habitat, at the expense of interior habitat, as a result of this Project.

264It is possible that beyond the life of the Project operated in accordance with the REA, the woodland compensation, if maintained, could lead to reduced fragmentation of SW-11 overall. However, while this may occur in the long-term (although there is no guarantee), the Tribunal is not satisfied that fragmentation impacts will be reduced during the life of the Project operated in accordance with the REA. To the contrary, the Tribunal finds that the Project will increase forest fragmentation of SW-11, leading to a decrease in the quality of the SW-11 that will remain after construction. This impact is in addition to and compounds the impacts of 2.5 ha of woodland removal.

Impact on Animal Habitat Including Birds

265The Design and Operations Report summarizes impacts on bird habitat at p. 59 as:

Some habitat loss will occur as a result of this project, although a woodland rehabilitation plan will be implemented to offset this loss. No net effects on bird populations due to impacts of habitat loss are anticipated.

266Mr. Charlton testified that the Project will not eliminate any one type of habitat, but that there will be “some change” to the habitat in that some areas will be reduced and some increased. Dr. Kerlinger acknowledged that the Project would largely eliminate the remaining interior forest (i.e., 100 m from a forest edge) in SW-11, although he did not agree it was successful interior-obligate bird habitat.

267There is no disagreement that SW-11 supports a variety of bird habitat, although the parties disagree on whether the mix of birds should be considered a “large variety”, or just a “normal number in the ORM”.

268With respect to species listed under the ESA, all the parties accept that Eastern Wood-Pewees (listed as special concern under the ESA) have been identified in SW-11. Dr. Kerlinger testified that the woodland should not be considered habitat for the species because they “prefer” more mature and larger woodlands, and he speculated that perhaps the birds sighted in the area are not breeding “successfully”. Dr. Kerlinger testified that the literature states Eastern Wood-Pewee is found in large interior forests, but acknowledged that more recently the species has been observed in smaller forests. Mr. McRae testified that, despite conventional knowledge about Eastern Wood-Pewee habitat, “the birds are telling us another story” given that he has viewed them present in the Project area annually.

269Given Mr. McRae’s uncontested observation of Eastern Wood-Pewee in the area displaying behaviour that suggests probable breeding and the fact that the species has been observed in the woodlands in the Project area annually, the Tribunal finds that the woodland is most likely nesting habitat for Eastern Wood-Pewee. Additionally, given Dr. Kerlinger’s evidence that the species prefers the interior of woodlands, the Tribunal finds that it is likely that the elimination of remaining interior habitat could have the impact of eliminating Eastern Wood-Pewee from SW-11.

270The Tribunal finds, based on the evidence before it, that SW-11 is habitat for a significant number and variety of birds, including some interior obligate species such as the Eastern Wood-Pewee. Dr. Kerlinger’s research relating to displacement of birds due to wind turbines relates to grassland species, and collision mortality has not been raised as an issue in this hearing. It is clear that removal of woodland habitat for any type of development will cause harm to a bird species that relies upon that woodland habitat.

271The NHA/EIS documents also identify potential bat and snake habitat in the Project Area, including within SW-11. Although mitigation is proposed in those documents to minimize impacts to such areas, what is clear is that there are a variety of species using the Project area and SW-11.

272The Tribunal finds that, whether or not the Approval Holder’s experts deem the habitat provided by SW-11 to be of “high quality”, SW-11 nonetheless provides habitat for a wide variety of species, including interior obligate birds.

Cumulative Impacts

273Mr. Williams, Ms. Stauble, Ms. Zednik and STORM all expressed the concern that permitting this Project will set a precedent, and send a signal that is directly opposite to the efforts that have been underway for many years in the ORMCP area. For example, Ms. Zednik stated in her witness statement that:

Municipalities, conservation authorities, provincial agencies and ministries as well as individuals have been actively promoting and seeking ways to connect and restore fragmented sections of Fleetwood Creek Forest. The Approval Holder is actively seeking to undermine this incentive by further fragmenting woodland cover in the area, setting the stage for other developers and individuals to follow suit and also destroy and further fragment Fleetwood Creek Forest.

274The Tribunal agrees that, to the extent future renewable energy projects are proposed in significant woodlands on the ORM, there could be cumulative fragmentation impacts for the ORMCP area and its forest cover, resulting in the potential for cumulative effects. Although the Appellant raised the issue of woodland removal at other locations of the ORM, the Tribunal did not receive any direct evidence of other renewable energy projects proposed in significant woodlands on the ORM, or evidence of how that woodland removal may result in harm in combination with what is proposed here. As a result, the Tribunal is unable to make any additional findings on this particular issue.

275To conclude this section, the Tribunal finds that serious harm will be occasioned by the removal of portions of SW-11, despite the mitigation measures provided. The proposed woodland compensation will be considered further under the “irreversible harm” part of the Tribunal’s analysis.

Irreversible Harm

Submissions

276The Appellant submits that the removal of a 100 m radius of trees around turbines 3 and 5 will cause irreversible harm to that woodland. First, the Appellant argues the woodland habitat currently in existence will be lost. The trees being planted are not of the same size, and would take many years to support the number and breadth of species currently in SW-11. The Appellant cited Mr. McRae’s testimony in submitting that the species will not simply “move next door”, but will likely not survive to the next breeding season. The Appellant also submits that the current mixture of species found in SW-11 is a function of its habitat mixture, and the various stages of development of its components. A regenerated habitat, it submits, would be something different and would not comprise the same species. In addition, the Appellant submits that the decades of time required for woodland regeneration means the harm is irreversible for generations of species inhabiting the woodland, meaning the species would not be able to remain in the area.

277The Director submits that the test for “serious” harm is the extent of impact on the biological function of the woodland, which has not been established here. The Director submits that the test for irreversible harm cannot be simply that the replaced trees are not of the same age as those removed, and submits that a woodland can be regenerated, “with the caveat of time”. The Director submits that the underlying theory is that the woodland regeneration plan ensures that any harm is not irreversible. In this regard, one must address whether the regeneration planned is proximate, and makes sense. The Director submits that the only expert who gave an opinion on the impact of removing 6% of SW-11 is Mr. Charlton. On birds, the Director submits, Mr. McRae on behalf of the Appellant only expressed concerns regarding loss of habitat and displacement, while Dr. Kerlinger and Mr. Charlton opined there would not be serious and irreversible harm to birds.

278The Approval Holder agrees with the Director, that requiring woodland regeneration to be exactly the same as the portion removed is not reasonable. The Approval Holder submits that the plan here is to improve the 6% of the woodland that is impacted, through the Woodland Protocol. The Director submits the Protocol includes specific direction as to species that must be planted, to provide the highest quality woodland habitat. The Approval Holder submits there is no evidence that SW-11 is habitat for any species at risk. The Approval Holder submits simply that the 6% of removed woodland will be “reversed” by the compensation woodlands.

Discussion, Analysis and Findings

279The Decommissioning Plan report states that further tree removal will be required to decommission the Project, although details have not been provided. Section 2.1 states that “Vegetation and trees on rights-of-way or at turbine sites may need to be cleared. As vegetation patterns on the site may change during the lifetime of the project, specific locations cannot be described at this point.”

280The NHA/EIS recognizes that the Project will have “residual impacts” on the two main significant woodlands in the vicinity of the Project, but concludes that those impacts will no longer exist after decommissioning:

It is anticipated that implementation of the mitigation and monitoring measures … in addition to those included in the Construction Plan Report (MKI, 2012) and the Environmental Effects Monitoring Plan within the Design and Operations Report (MKI, 2012), will minimize the environmental impacts on the natural environment. Minimal residual impacts are anticipated as a result of the construction, operation or decommissioning of the Settlers Landing Wind Park. [SW-10] and [SW-11] may experience some residual impacts. However, following the decommissioning of Settlers Landing Wind Park, these residual impacts are no longer anticipated.

281Construction of turbines 3 and 5 will remove “woodland interior” in SW-11, that is contained in the FOCM6-3 portions of SW-11, thereby removing any habitat for interior obligate species. Interior habitat, being at least 100 m from any forest edge, will not again exist until either (i) the Project is decommissioned and the woodland regenerates in the footprint of the Project infrastructure, or (ii) property adjacent to SW-11 actually becomes part of the woodland, and matures to a sufficient size and quality as the existing woodland portion to be removed. As acknowledged by Mr. Charlton, the compensation habitat will not be functioning similar to the areas of SW-11 that will be removed for the Project for approximately 30-40 years.

282As shown by the evidence, SW-11 is a complex functioning ecosystem consisting of a variety interactions between its trees, other plant life, birds and animals. SW-11 has taken many decades to develop and regenerate after being cleared many decades ago and planted with Scots pine to prevent further erosion of the ORM. The Tribunal has already found that the removal of portions of SW-11 constitutes serious harm.

283Although it remains unclear based on the evidence heard whether woodland functionality lost through woodland removal can even be replicated, assuming it even can be, any attempt to do so in this instance through mitigation or compensation under the REA will extend decades beyond the life of the Project. The question posed by s. 145.2.1 is whether the harm is “irreversible” as a result.

284The Tribunal finds that the answer to this question is in the affirmative: the harm that will be caused by Project operated in accordance with the REA will indeed be irreversible in consideration of both mitigation and compensation measures incorporated into the REA. The Tribunal considers these measures below.

Mitigation of Woodland Impacts

285The REA includes conditions to minimize impact to animal life and to the woodland during construction, operation and decommissioning of the Project. The only mitigation measures (as opposed to “compensation”, dealt with below) that address the serious harm that will be occasioned to SW-11 during construction and operation are “limitation” of clearing, and erosion control measures. These mitigation measures do not prevent the vegetation clearing that the Tribunal has found creates the harm. With respect to decommissioning, some portions of the infrastructure will remain permanently within SW-11. According to the Decommissioning Plan Report, the turbine bases are to be left in the ground permanently below 1 m, and access roads could remain permanently if the landowner wishes it. These portions of the Project that may remain after decommissioning will interfere permanently with woodland regeneration.

286Vegetation removed for construction of the Project will remain cleared until the Project is decommissioned, which will not occur at least until the feed-in-tariff contract (“FIT Contract”) for the Project expires in 20 years, or for an unknown extended period of time since the contract may be renewed from time to time. The Decommissioning Plan report, part of the REA Application documents, states:

The FIT contract awarded to the Settlers Landing Wind Park has a term of 20 years. At the conclusion of this term, a decision will be made whether to continue operating the facility – conducting maintenance and upgrades as necessary – or to decommission the wind farm entirely.

287The Decommissioning Plan contemplates seeding the cleared non-agricultural areas with native grasses which could eventually, one would assume, be replaced by trees over time through natural succession. Even if trees were specifically replanted in the cleared areas within SW-11, they will take 30-40 years to grow to replace the existing woodland, after being planted at the end of the original 20 year term. It could reasonably be 50-60 years before trees grow to a replacement size in those areas as a result, or 70-80 years if the Project is extended for an additional 20 years.

288The word “irreversible”, as it is applied in the Environment Test, has temporal components to it in this context. Dr. Kerlinger indicates in his witness statement that birds using the Project area live approximately 1 to 4 years. For many of the birds currently using SW-11 therefore, decommissioning will not even start for many generations. The Tribunal therefore finds that removal of portions of SW-11 for the Project is also irreversible in the sense that mitigation cannot address the fact that many of the species that rely upon those areas of woodland have life spans much shorter than the time that areas of SW-11 will be lost for the Project and as a result, portions of their habitat will be lost for multiple generations of the species.

289The Tribunal is aware of the fact that there is little judicial consideration of “irreversible harm”. The Parties in this case were asked for submissions on the meaning of “irreversible harm” in the context of a significant woodland, and made no reference to case law. The Tribunal is aware that courts have considered “irreparable harm”, inter alia in determining interlocutory injunctions. The MNRF itself recognizes in its NHA Guide for renewable energy projects that fragmentation of forests should be avoided as a mitigation measure. This is consistent with the Court’s reasoning in Algonquin Wildlands League v. Northern Bruce Peninsula (Municipality) (2000) 39 C.E.L.R. (N.S.) 53 (Ont. S.C.J.) (“Algonquin Wildlands League”) where the Court recognized that permanent harm could be occasioned by the removal of established trees in the context of a party seeking an interlocutory injunction.

290Although the test for an interlocutory injunction is not directly on par with the Environment Test that the Tribunal must apply in this instance, and the Tribunal recognizes that the scope of harm a Court may consider in that context is of a shorter duration, the Tribunal finds Court precedent in the injunction context to be of some assistance. Courts have found that the removal of trees and the length of time it would take to replace them as meeting the irreparable component of the four-part injunction test established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney-General), 1994 117 (SCC), [1994] 1 S.C.R. 311. For example, in Algonquin Wildlands League, supra, at para. 2, Lamek, J. found the “irreparable harm” part of the injunction test “easy” to meet in the context of tree removal given the length of time it takes for trees to regrow:

Irreparable harm is easy. Absent an injunction, the clearing of the road will proceed and the trees will have gone, if not forever, at least for decades. The balance of convenience, too, favours the Applicants — as the British Columbia Court of Appeal observed in MacMillan Bloedel Ltd. v. Mullin, 1985 154 (BC CA), [1985] 3 W.W.R. 577 (B.C. C.A.)] (a case quite similar to the one before me) if the application for an injunction should eventually fail, the trees will still be there to be harvested.

291The Tribunal therefore finds that the mitigation measures in the REA are insufficient to prevent irreversible harm to SW-11. The Tribunal will now consider the impact of the compensation property outside SW-11.

Woodland Compensation

292As noted above, the Tribunal considers “mitigation measures”, which are designed to prevent harm, as being different from “compensation”, which is designed to compensate for harm that has been occasioned. Nonetheless, the Woodland Compensation Protocol forms part of the REA and must be considered by the Tribunal. The fact that the compensation property that has been found by the Approval Holder is adjacent to SW-11 also makes it more clearly relevant to an evaluation of serious and irreversible harm to the woodland in this particular case.

293The Protocol provides that 2.7 ha of compensation woodland be planted, preferably adjacent to SW-11 but if that is not possible, it should be adjacent to another significant woodland.

294Under these requirements, the Approval Holder could have complied with the Protocol by finding compensation land outside of the ORMCP area entirely; or could have found 2.7 ha of land in another Ecoregion. In both of those examples, the Project operated in accordance with the REA would have caused harm through the loss of woodland to the ORMCP area, or to the Ecoregion, respectively.

295As it stands, however, the Approval Holder found compensation property within the ORMCP area and adjacent to SW-11, and has signed a 21-year lease agreement. The 2.7 ha site is in fact surrounded on three sides by SW-11, which would appear to be an ideal location for compensation for SW-11, in the long-term.

296Mr. McRae acknowledged that the “general idea” of enlarging SW-11 is a good one. However, he raised some concerns regarding future biodiversity in the area slated for tree planting, due to its poor soil quality and hilly terrain, and suggested alternate locations adjacent to SW-11 that he believed would be more successful. Mr. McRae also had concerns that the replanting would in fact remove current habitat of grassland bird species. All of Mr. McRae’s concerns were contested by the Approval Holder.

297Mr. Charlton also testified that the whips and seedlings planted in the compensation forest will take 30 to 40 years, or “probably longer”, to grow to the size of those removed for turbine 5.

298The undisputed evidence at the hearing was that trees planted in the compensation area, assuming they grow successfully, will take approximately 30-40 years to establish to the degree that the larger ones to be removed currently exist. In considering the Project operated in accordance with the REA under s. 145.2.1, the Tribunal finds there to be a disconnect between the timelines of Project approval and the compensation to be provided and that the lag time for compensatory woodlands results in irreversible harm.

299In the context of this appeal, the Tribunal, again, notes that neither mitigation, nor compensation in the lifetime of the Project operated in accordance with the REA will address the harm occasioned by the removal of parts of SW-11. The Tribunal therefore finds that the serious harm is irreversible. Further submissions on mitigation and compensation can be considered in the next phase of this proceeding, insofar as they are relevant to a remedy under s. 145.2.1(4) of the EPA.

300To conclude, the Tribunal finds that the harm to SW-11 is both serious and irreversible and the Tribunal finds that the appeal should be allowed in part.

301As outlined in the Tribunal’s order of December 4, 2015, the deadline for the Tribunal’s disposition of this appeal is now January 15, 2016. A TCC is scheduled for December 14, 2015 to discuss procedural steps for the parties to make submissions in relation to the appropriate remedy under s. 145.2.1(4) of the EPA.

ORDER

302The Tribunal orders that the appeal is allowed in part.

Appeal Allowed in Part

“Justin Duncan”

JUSTIN DUNCAN

MEMBER

“Heather I. Gibbs”

HEATHER I. GIBBS

MEMBER

Appendix 1 - Summary of the Anticipated Impacts to SW-11

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please visit www.elto.gov.on.ca to view the attachment in PDF format.

Environmental Review Tribunal

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Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix 1

Summary of the Anticipated Impacts to SW-11

Excerpt from Environmental Impact Study, Table 4-1, pages 27-29: