Biddle v. Ontario (Environment and Climate Change), 2015 CanLII 85981

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: December 15, 2015

CASE NO.: 14-063

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

Appellant: Scott Biddle

Approval Holder: 8437084 Canada Inc., operating as Port Ryerse Wind Farm Limited Partnership

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for Port Ryerse Wind Power Project

Reference No.: No. 6498-9HKHN3

Property Address/Description: Parts of Lots 3-5

Upper Tier: Norfolk County

ERT Case No: 14-063

ERT Case Name: Biddle v. Ontario (Environment and Climate Change)

Heard: November 3-4, 2015 in Simcoe, Ontario

APPEARANCES:

Parties	Counsel
Scott Biddle	Graham Andrews
Director, Ministry of the Environment and Climate Change	Andrew Weretelnyk
8437084 Canada Inc., operating as Port Ryerse Wind Farm Limited Partnership	Jonathan Kahn

DECISION DELIVERED BY JUSTIN DUNCAN

REASONS

Background

1On August 20, 2014, Vic Schroter, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Renewable Energy Approval No. 6498-9HKHN3 (the “REA”) to 8437084 Canada Inc., operating as Port Ryerse Wind Farm Limited Partnership (“the Approval Holder”) under s. 47.5 of the Environmental Protection Act (“EPA”). The REA is for a renewable energy project known as the Port Ryerse Wind Power Project, consisting of the construction, installation, operation, use and retiring of a Class 4 wind facility with a total nameplate capacity of 10 megawatts, located east of Port Ryerse in Norfolk County, Ontario (the “Project”).

2On September 4, 2014, Scott Biddle (File No. 14-063) and William Irvin (File No. 14-064) separately appealed the REA to the Environmental Review Tribunal (the “Tribunal”). Mr. Biddle (the “Appellant”) appeals under s. 142.1(3) of the EPA on the grounds that “engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment” (the “Environmental Appeal”). Mr. Irvin appeals under s. 142.1(3) of the EPA on the grounds that “engaging in the Project in accordance with the REA will cause serious harm to human health” (the “Health Appeal”).

3At the first appearance for preliminary hearing, which was held on October 6, 2014, the Tribunal granted an adjournment of the hearing of the appeals, as the Director had been advised by the Ministry of Natural Resources and Forestry (“MNRF”) that there had been a confirmed sighting of a Barn Owl in close proximity to the Project. Barn Owl is listed as endangered under Schedule 2 of Ontario Regulation (“O. Reg.”) 230/08 of the Endangered Species Act, 2007 (“ESA”). The Approval Holder subsequently advised the Tribunal that it was required to apply for a permit, pursuant to s. 17 of the ESA, to engage in activities within Barn Owl habitat which is prescribed under O. Reg. 230/08, and that the Approval Holder had made such application. The preliminary hearing respecting both appeals was adjourned several times, as the parties agreed that the outcome of the permit application was relevant to the Environmental Appeal.

4During a continuation of the preliminary hearing on April 7, 2015, the parties agreed to have the two appeals heard separately so that Mr. Irvin could proceed with the Health Appeal, which was not affected by the circumstances relating to the Barn Owl sighting. As a result, the Tribunal heard the Health Appeal on June 3 and 8, 2015 and a decision was issued by the Tribunal on August 20, 2015.

5The Approval Holder advised the Tribunal on July 28, 2015 that the MNRF had determined that a permit under the ESA would not be required for the Project. A telephone conference call was held on August 11, 2015 at which time filing deadlines and hearing dates of October 5 to 8, 2015 were set for the hearing of the Environmental Appeal.

6The October 5 to 8 hearing dates were subsequently vacated and the hearing of the Environmental Appeal was re-scheduled and heard on November 3 and 4, 2015. During the hearing of the appeal, the parties consented to a further adjournment of the appeal period so that the Tribunal must dispose of the appeal in accordance with s. 59 of O. Reg. 359/09 by December 15, 2015.

Issues

7In this appeal, the Appellant focuses on impacts that the Project will have on Barn Owls, Bald Eagles and other species at risk. The issue on this appeal therefore, is whether the engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment (the “Environment Test”).

Relevant Legislation and Rules

8The 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,

(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.

Same

(5) The Tribunal shall confirm the decision of the Director if the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will not cause harm described in clause (2) (a) or (b).

Evidence

9The Tribunal heard from a total of five witnesses on the appeal. The Appellant called three witnesses while the Approval Holder called two. The Director did not tender any evidence on the appeal.

10The Appellant and Suzanne Andrews testified in support of the appeal. Additionally, the Appellant had Chris Risley, Avian and Mammalian Species at Risk Specialist with the MNRF, appear under summons.

11Mr. Biddle testified that he has farmed his property since 2008 and started building a home there in 2012. He explained that his home is located approximately 550 metres (“m”) from the closest turbine proposed for the Project. He also explained that he has observed a multitude of species in the area near the Project and that the area from Port Dover to the east and Long Point to the west along the Lake Erie shoreline is known as the “Golden Horseshoe” as a result of its diverse and protected ecosystems. Mr. Biddle also testified about his sightings of Bald Eagles nesting in the Project area and has observed Eagles using the woodland directly next to his property fronting on Lake Erie. He also explained that a pair of Barn Owls had been discovered near the Project in late summer of 2014.

12Ms. Andrews, also a local resident, explained that she became aware that Barn Owls had been sighted in July or August of 2014 in a sawmill close to the Project area; the sawmill being 580 m from the closest turbine. Ms. Andrews also testified that there was a previous sighting of Barn Owls in a barn close to the Project in 2008 as well. She also explained that Bald Eagles have been using a nest located in a woodland northwest of turbine 2 of the Project. She explained that the nest has been used for multiple years and that Bald Eagles have always lived in the Port Ryerse area with their numbers having grown recently. Ms. Andrews also explained that she has observed Eagles fly from this nest, through the Project area, in the direction of Lake Erie. Finally, Ms. Andrews explained that the Port Ryerse area is located within the UNESCO designated Long Point World Biosphere Reserve, an area renowned for its unique climate and resultant ecosystems. In cross-examination, Ms. Andrews acknowledged that nobody observed the Barn Owls again after August 2014 but expressed the view that since they are very elusive that they could have moved elsewhere in the Project area.

13As mentioned above, Mr. Risley appeared under summons. He was qualified by the Tribunal as a biologist with expertise generally in bird and mammalian species at risk.

14Mr. Risley explained that he was asked by an MNRF biologist in Aylmer District for advice in relation to a draft version of the overall benefit permit that had been sought by the Approval Holder in relation to Barn Owl under the ESA. He had raised concerns relating to the draft permit arising from the fact that it would be the first permit issued in the Province for Barn Owl under the ESA. His view was that the Ministry should ensure conditions were present in the permit to ensure protection of the species. He also explained he had expressed the view that 580 m to the nearest turbine was very close to a nest and that benefits afforded by the permit should be more explicitly set out and greater in scope. For example, it was his view that the amount of habitat to be created pursuant to the permit was small in comparison to the habitat proposed to be impacted by the Project.

15Mr. Risley explained that he had no knowledge of how his comments were subsequently addressed as he had no further involvement in the processing of the application for the ESA permit or involvement in the Project more generally.

16Mr. Risley also explained that sightings of Barn Owl in Ontario are very rare with only two sightings of individual birds annually and a nest identified every five years on average in the Province. Mr. Risley also explained that Barn Owls do not have a clear pattern of affinity for nests and that monitoring would identify if birds were still using a nest.

17Mr. Risley explained that the main goal of the ESA recovery strategy for Barn Owl is to conserve, protect and restore Barn Owl habitat with the result being a self-sustaining population of Barn Owls in Ontario. He also explained that loss of grassland foraging habitat is the main issue for Barn Owl restoration.

18Finally, Mr. Risley explained that ESA regulations deem 1 kilometre (“km”) around a nest as habitat unless there has not been a sighting for a year, in which case the area is no longer considered habitat. He expressed the view that this one year time limit was likely a trade-off against other socio-economic factors in administering the Act and not for any particular biological reason.

19In cross-examination, Mr. Risley acknowledged that the draft of the ESA permit he reviewed was likely not the final draft. He also acknowledged that Ontario represents the northern most extreme of Barn Owl habitat range and that the species cannot overwinter here.

20The Approval Holder tendered the evidence of two experts: David Charlton and Dr. Kerlinger.

21Mr. Charlton was qualified as an ecologist by the Tribunal. He was responsible for overseeing the group at Stantec that was retained by the Approval Holder to complete the Natural Heritage Assessment/Environmental Impact Study (“NHA/EIS”) which was filed in support of the application for the REA. He testified about the work done by Stantec in relation to Bald Eagles and Barn Owls in relation to the Project.

22Mr. Charlton explained that Bald Eagles have recently been downgraded from “threatened” to “special concern” under the ESA given that their numbers are increasing in the Province.

23Mr. Charlton explained that the behaviour of the nesting pair of Bald Eagles and their young was studied by Stantec in June 2014. The flight paths of Eagles were documented throughout the Project area, including at locations at which turbines will be located for example. Mr. Charlton testified that there are currently several hundred wind turbines in Bald Eagle habitat in Ontario and there have been no documentation of bird strikes to date, though there may have been one or two unconfirmed strikes to date. It was his opinion as a result, that Eagles avoid turbines and that there is a very low risk of Bald Eagle mortality from the Project.

24Mr. Charlton also explained that the NHA/EIS incorporates mitigation measures into the REA for Bald Eagle, including during the nesting period.

25In relation to Barn Owl, Mr. Charlton explained that Stantec completed a Barn Owl assessment report and assumed that Barn Owl were present in the Project area and were using it. Foraging habitat for Barn Owl was identified as either ideal or marginal in character and it was determined that the Project would remove 0.3 hectares (“ha”) of habitat considered marginal as it currently consists of row crops of either soy or corn which are not good foraging areas for Barn Owl.

26In relation to the ESA permit application, Mr. Charlton explained that Stantec monitored the Project area from March 2015 to July 2015 by way of monitoring for Barn Owl calls on nine separate evenings. As no calls were identified it was determined that there were no Barn Owls present and MNRF confirmed in correspondence that it no longer considered the Project area habitat for the species and a permit under the ESA would not be required.

27Mr. Charlton concluded that since the Project will be constructed entirely within agricultural fields that there will be no direct loss of Bald Eagle nesting, perching or foraging habitat and the loss of only a small amount of marginal Barn Owl foraging habitat if the species were present in the Project area. Further, it was his view that the Project is unlikely to result in any indirect disturbance impacts to Bald Eagles or Barn Owls.

28In cross-examination, Mr. Charlton acknowledged that the Approval Holder did not search for other Barn Owl nesting sites in the Project area but noted that the potential nesting sites within 1 km of the sawmill are immense and that many people locally had been searching for Barn Owls following the initial discovery in 2014 and he would have expected that someone would have notified the MNRF if a Barn Owl had been identified. When questioned whether noise emitted from the Project would disturb Barn Owls if they were in the area, Mr. Charlton opined that such noise would be unlikely to cause them to stop foraging or to drive them off a nest.

29Dr. Kerlinger was qualified as an expert on avian species including raptors and on the impacts of wind projects on birds. He opined that he would define “serious harm” as biologically significant impact that materially reduces the population of a species leading to its decline.

30In relation to Bald Eagles, Dr. Kerlinger explained that Bald Eagles reared in Port Ryerse can disperse up to 100 km, meaning that in several generations dispersal of Bald Eagles can be very far. Based on this, his opinion was that the area occupied by the Eastern Great Lakes population of Bald Eagles is the relevant area to be considered when assessing impacts from the Project. Dr. Kerlinger testified that Bald Eagles do not fly into turbines very often, as documented by a number of studies he referenced, and he did not expect that Bald Eagles in the Project area would strike turbines. Further, Dr. Kerlinger explained that the species is increasing its range and numbers in Ontario. As a result, he opined that the Project would not result in serious or irreversible harm to Bald Eagles.

31In relation to Barn Owls, Dr. Kerlinger testified that all five turbines comprising the Project are to be located in what is currently tilled corn or soybean fields which is not good habitat for Barn Owls since not many rodents are present in tilled fields. He explained that Barn Owls require pasture and hayfields for foraging. He also explained that, as Barn Owls can disperse up to 1,000 km from their nest, it is more difficult to determine a relevant population, when assessing impacts. However, it was his opinion that the Barn Owls sighted in the sawmill likely originated from the southern United States at some point given the greater population density of the species there. In reviewing studies in areas where there are greater numbers of Barn Owl, such as the United Kingdom and the United States, Dr. Kerlinger opined that wind turbines have had little impact on the species. He explained that this was likely, in part, due to the fact that the species flies low to the ground while foraging. Overall, he opined that the Project would have neither displacement or collision impacts on Barn Owls.

32In cross-examination, Dr. Kerlinger acknowledged that removing available habitat for Barn Owl would run contrary to the goals of the Barn Owl recovery strategy under the ESA. Dr. Kerlinger also acknowledged that in authoring his report, he did not consider other Bald Eagle nests that may be present in the Port Ryerse area but outside the Project study area. However, he noted that the presence of other nests would not have altered his opinion. He also explained that he had considered cumulative effects of other wind turbine projects present along the Lake Erie coast in forming his opinions.

Submissions of the Parties

33In summary, the Appellant submits that, taken as a whole, the evidence clearly demonstrates that Bald Eagles and Barn Owls will suffer serious and irreversible harm as a result of the Project proceeding. In particular, the Appellant alleges that harm will accrue to Bald Eagles and Barn Owls through direct strikes with turbines and impacts to habitat, indirect impacts such as disturbance and cumulative impacts of the Project in combination with other wind turbine projects. On that basis, the Appellant requests that the Tribunal revoke the REA to prevent the harm from occurring.

34The Approval Holder submits that the Appellant has not adduced any evidence that the Project will result in serious and irreversible harm to plant life, animal life or the natural environment. The Approval Holder submits that the Tribunal has no evidence upon which to allow the appeal and asks that the appeal be dismissed and the Tribunal issue an order under s. 145.2.1(5) of the EPA confirming the decision of the Director to issue the REA.

35The Director similarly submits that the Appellant has failed to meet their onus under the Environment Test. The Director submits that the evidence establishes that engaging in the Project in accordance with the REA will not cause serious or irreversible harm to Barn Owls or Bald Eagles. The Director submits that the Tribunal should prefer the evidence of the Approval Holder over that tendered by the Appellant and requests that the appeal be dismissed and that the Tribunal issue an order confirming the decision of the Director to issue the REA.

Discussion, Analysis and Findings

36In consideration of the evidence and submissions of the parties, the focus for the Tribunal of this appeal is the Project’s impacts on Barn Owls and Bald Eagles. Consequently, the Tribunal focuses its analysis on the impact of the Project on these two species below.

37There appears to be no contest as between the parties in relation to the applicable law. Section 145.2.1 (3) of the EPA places the onus on the Appellant to prove on a balance of probabilities that the Environment Test has been met, as it relates to Barn Owls or Bald Eagles.

38The Tribunal has provided some helpful guidance in previous decisions as to when the Environment Test might be met, guidance that was summarized in Lewis v. Ontario (Ministry of the Environment) (2013), 82 C.E.L.R. (3d) 28 (“Lewis”) at para. 8:

As noted by the Approval Holder and the Director, the applicable guidance on the statutory test from previous Tribunal decisions is summarized in APPEC at paras. 185-186 (citations omitted):

Previous decisions of the Tribunal

Previous decisions of the Tribunal have considered some aspects of the second branch of the renewable energy approval test.

• An appellant is required to show such harm on the civil standard of a balance of probabilities.

• Regarding the phrase "in accordance with" the terms of the REA, the Tribunal has held: "Any harm that may be caused by exceedances will not be relevant to the Tribunal's decision."

• Evidence that only raises the potential for harm does not meet the onus of proof.

• "Will cause" must be proved on a balance of probabilities.

• The Tribunal can consider whether both "direct" and "indirect" effects will be caused.

• The word "serious" should be interpreted in a way that suits both branches of the test.

Serious and irreversible harm

The phrase of the test that the parties focus on in their submissions is "serious and irreversible harm". Previous decisions of the Tribunal have not considered this phrase in depth, but have found that:

• the word "serious", and the phrase "serious and irreversible", must be interpreted on a case-by-case assessment according to all relevant factors.

• one bird or bat mortality will not always constitute "serious and irreversible harm to plant life, animal life or the natural environment", but may be sufficient in certain circumstances.

• the test would be meaningless if it were to be interpreted to always be met or to never be met.

39In this instance, the Tribunal finds that the Appellant has failed to elicit the necessary evidence, either directly or through cross-examination, that would suggest that the Project operating in accordance with the REA will cause serious and irreversible harm to either Bald Eagles or Barn Owls.

40Before considering direct, indirect and cumulative impacts alleged by the Appellant on this appeal, the Tribunal considers the appropriate scale of impact relevant to its consideration in this case. In Lewis, supra, the Tribunal found at paras. 48-49, regarding the potential harm to a pair of Bald Eagles nesting in the area, that the local scale is the most appropriate. However, the Tribunal also noted that such an approach may not be a requirement in every instance, depending on the circumstances:

The Tribunal recognizes that bald eagles are obviously more mobile than Blanding's turtles (see APPEC at para. 191). Nevertheless, having regard to some of the other relevant factors listed in APPEC (see para. 362) and the evidence of the bald eagle's rarity in the Project area (this being the only nest in the vicinity of the Project), the importance of them to the community (and their own intrinsic importance), their status as a species at risk, and the relatively low number of pairs across all of southern Ontario (though they are increasing), the Tribunal finds that the local scale is the most appropriate one to use in assessing serious and irreversible harm to bald eagles in this particular case. Importantly, the death or displacement of this pair would constitute a loss of bald eagles from the immediate area, as there was no evidence of any other documented nest near this site. It should also be noted that, in southern Ontario, mortality to this pair would amount to a 1-2% impact on that population in light of the number of breeding pairs (i.e., 50-60). That magnitude of mortality impact beyond the local scale would also be of concern.

The Tribunal's finding in regard to the local scale being appropriate in assessing serious and irreversible harm to bald eagles here is again case-specific and not to be taken as a general conclusion that the local level is always the applicable scale to be used. As well, in some cases the spatial extent of habitat at the appropriate scale will be the predominant factor, especially where detailed data on actual population levels may not be available. As noted above, the Tribunal's assessment of harm, including the scale or scales at which it will be measured, is to be conducted on a case by case basis according to all relevant factors.

41Although Dr. Kerlinger’s opinion on the most appropriate scale for consideration was uncontested in this instance, the Tribunal sees no reason to depart from the approach set out in Lewis which was partly based on an interpretation of the statutory language of the Environment Test and in part on the rarity of the environmental features at issue in that appeal – namely a pair of nesting Bald Eagles. The Tribunal has therefore conducted its analysis of impacts in this appeal based on the potential for harm to Bald Eagles and Barn Owls in the Project area.

42The Tribunal has also considered the fact that Bald Eagles are listed as “special concern” under the ESA while Barn Owls are listed as “endangered”. Although the status of Bald Eagle has improved, the Tribunal has considered the need to ensure that both species are afforded heightened consideration as a result of their conservation status.

43The Tribunal now turns to a consideration of the direct, indirect and cumulative impacts to Barn Owl and Bald Eagle in the Project area as alleged by the Appellant.

44In terms of direct impacts, the Appellant has alleged that both Barn Owl and Bald Eagle will be harmed through strikes with turbines. However, the Tribunal only received evidence that it is unlikely that either species would suffer from strikes with turbines. The Appellant has not tendered any evidence about the probability of strikes, with the result that the Tribunal is left with the uncontroverted evidence of both Mr. Charlton and Dr. Kerlinger that both species are unlikely to strike turbines.

45Although the Appellant alleges that Barn Owl and Bald Eagle will suffer indirect impacts from the Project, the evidence received by the Tribunal in this appeal suggests otherwise.

46The woodland in which Bald Eagles have been nesting will not be altered by the Project.

47The Tribunal is aware that by operation of regulations under the ESA, the Project area is not currently considered regulated habitat under the ESA since no Barn Owls have been sighted in the area for over a year. The Tribunal is not bound by the one year period in the ESA regulation as part of its analysis of the Environment Test. Indeed, Mr. Risley of the MNRF acknowledged that the one year cut-off period under the ESA incorporates a trade-off between protecting a rarely sighted species and socio-economic considerations. For the purpose of its analysis, therefore, the Tribunal has treated the sawmill, having been recently used for nesting, and the surrounding area, having been recently used for foraging, as Barn Owl habitat.

48However, having made this finding, the Tribunal notes that only 0.3 ha of marginal Barn Owl habitat would be removed for the Project. The Project will not remove the sawmill or other potential nesting sites in the Project area. The Tribunal received no evidence to support a finding that removal of 0.3 ha of marginal habitat is serious. The Tribunal finds that removal of 0.3 ha of marginal habitat is not serious and irreversible harm to Barn Owl in these circumstances.

49Additionally, the Tribunal heard no convincing evidence to suggest that either Bald Eagles or Barn Owls will change their behaviour, such as avoiding the Project area, as a result of the operation of the Project. Thus, the Tribunal finds that the Appellant has not demonstrated that this type of displacement impact will occur.

50In terms of cumulative impacts, although the Appellant alleges that there will be cumulative impacts, to the Bald Eagle in particular, as a result of various industrial wind projects in combination with the Project along the Lake Erie coastline, the Tribunal heard evidence from Dr. Kerlinger that he had considered the possibility of cumulative impacts and opined that serious harm would not be expected as a result of cumulative impacts. The only other evidence heard by the Tribunal on this issue was that of Ms. Andrews, who testified that some Bald Eagles now living in the Project had previously lived near other wind turbine projects in the Province. Without more evidence, the Tribunal does not conclude that those other projects caused Bald Eagle displacement impacts or that the instant Project will cause similar impacts that will be additive to existing impacts to the species. The Tribunal notes that no evidence was led relating to the specific impacts to Bald Eagle or Barn Owl resulting from other projects in close proximity to the Project at issue on this appeal. Nor was any evidence led that any such impacts would be cumulative in nature.

51In conclusion, the Tribunal finds that the Appellant has failed to meet the onus under the Environment Test on this appeal and, as a result, in accordance with s. 145.2.1(5) of the EPA, the Director’s decision to issue the REA is confirmed.

DECISION

52The appeal is dismissed and the Director’s decision to approve the REA is confirmed in accordance with s. 145.2.1(5) of the EPA.

Appeal Dismissed

Director’s Decision Confirmed

“Justin Duncan”

JUSTIN DUNCAN MEMBER

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