SR Opposition Corp. v. Ontario (Environment and Climate Change), 2015 CanLII 86926

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

December 22, 2015

CASE NO.:

15-053

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

Appellant:

SR Opposition Corp.

Approval Holder:

Snowy Ridge Nominee Ltd.

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Renewable Energy Approval for Snowy Ridge Wind Park

Reference No.:

2543-9TVSLU

Property Address/Description:

59 Beers Road, Bethany,

Lots 12 -16, Concession 8

Municipality:

City of Kawartha Lakes

ERT Case No.:

15-053

ERT Case Name:

SR Opposition Corp. v. Ontario (Environment and Climate Change)

Heard:

September 28-30, 2015 in Janetville, Ontario, and October 26, 2015 in Pontypool, Ontario.

APPEARANCES:

Parties

Counsel/Representative⁺

SR Opposition Corp.

Priya Vittal

Director, Ministry of the Environment and Climate Change

Nadine Harris and Katie Clements

Snowy Ridge Nominee Ltd.

John Terry, Dennis Mahony and Arlen Sternberg

Participants

City of Kawartha Lakes

Ron Taylor⁺

Save the Oak Ridges Moraine Coalition

Cindy Sutch⁺ and Debbe Crandall⁺

Kathleen Morton

Self-represented

Presenters

Jane Zednik

Self-represented

John Moore

Self-represented

DECISION DELIVERED BY MARLENE CASHIN AND HEATHER I. GIBBS

REASONS

Background

1On June 19, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (the “MOECC”) issued Renewable Energy Approval No. 2543-9TVSLU (the “REA”) to Snowy Ridge 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 59 Beers Road in Bethany, City of Kawartha Lakes, Ontario (the “Site”). A portion of the Site is on the Oak Ridges Moraine (the “ORM”), within the “Countryside Area” designation.

2On July 3, 2015, SR 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 and serious and irreversible harm to plant life, animal life and the natural environment.

3The Tribunal held a preliminary hearing in Lindsay on August 10, 2015, at which time several individuals and organizations were granted participant and presenter status. The Tribunal also heard a motion to strike portions of the notice of appeal and portions of the witness statements of certain of the Appellant’s witnesses, on August 28, 2015 in Toronto. Further background to this appeal can be found in orders of the Tribunal dated August 25, 2015 and September 17, 2015.

4The main hearing took place in Janetville on September 28-30, 2015 and in Pontypool on October 26, 2015.

5The parties gave their final submissions partially in person on October 26, 2015, and partially in writing following the final appearance. The Approval Holder and Director objected to the Appellant’s reply submissions filed on November 30, 2015, on the basis that they were not proper reply. The Tribunal determined that the Appellant’s reply submissions were improper and would not be considered, for reasons to follow. Those reasons are Appendix A to this Decision.

6By this Decision the Tribunal dismisses the appeal and confirms the decision of the Director.

Relevant Legislation

7Environmental Protection Act (“EPA”)

1. (1) “natural environment” means the air, land and water, or any combination or part thereof, of the Province of Ontario;

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.

(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).

(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.

Issues

8The issues are:

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

(i) water contamination;

(ii) noise and cumulative effects;

(iii) harm to community health – archeological concerns; or

(iv) public safety – fire.

2. Whether engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment; specifically through harm to:

i) ORM, including surface water and groundwater; and

ii) birds, including species at risk.

Discussion, Analysis and Findings

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

Introduction

9Under s. 145.2.1(3)(a) of the EPA, the person who requested the hearing bears the onus of proving that engaging in the renewable energy project in accordance with the REA will cause serious harm to human health (the “Health Test”).

10On the issue of serious harm to human health, the Appellant led evidence through expert David Kerr, who testified pursuant to a subpoena, and through lay witnesses Heather Stauble and Bill Bateman. Presenter Jane Zednik and participant Kathleen Morton also testified regarding harm to human health. The Approval Holder’s witnesses with regard to the Health Test were Dr. Robert McCunney and Shant Dokouzian. The Director did not lead evidence on the issue of harm to human health, with the exception of MOECC hydrogeologist Shawn Kinney’s evidence on potential groundwater contamination, which has been captured in the section below on the ORM. The evidence of Mr. Kerr and Ms. Zednik addressing water issues is included in that section as well.

Summary of Evidence

Bill Bateman

11Bill Bateman is a retired lawyer who lives with his wife on a large farm property in close proximity to the Project. He testified as a lay witness for the Appellant. Mr. Bateman testified that he and his wife moved to Bethany and chose their home’s location because they wanted a peaceful and healthful home for retirement. Their farm is designated as one of the identified receptors in the Approval Holder’s Noise Report. Mr. Bateman testified that another wind energy project, Sumac Ridge, is also located nearby their home, and that 8 of the 10 turbines associated with the two projects will be located within 550 to 1,500 metres (“m”), and on three sides, of their property.

Heather Stauble

12Heather Stauble testified as a lay witness for the Appellant. Ms. Stauble is the Councillor for Ward 16 in the City of Kawartha Lakes (location of the Project). She stated that she also sits on Conservation Authority, Source Protection, Health, and Planning boards and committees. Ms. Stauble testified that she attended all the public and pre-consultation meetings related to the Project, has met with Ministers and their various representatives, and has had extensive interactions with her constituents and the Project proponents throughout the Project’s REA process. She stated that her testimony represents the concerns and information conveyed to her by her constituents regarding serious harm to human health and serious and irreversible harm to plant life, animal life and the natural environment, with the major areas of concern being noise and setbacks, adverse health effects, hydrogeology and the ORM.

Kathleen Morton

13Kathleen Morton appeared before the Tribunal as a participant. She is a resident of Bethany, is President of the Manvers Historical Society, and owns and operates a farm and business in the vicinity of the Project. Ms. Morton told the Tribunal that she holds an anthropology degree and is certified in water source management. However, she did not seek expert status in the proceeding. Ms. Morton’s presentation focused on two areas, first her concerns that the Project will cause “serious harm to local water resources and natural fauna” and, “to the system that supplies water to a quarter of a million people”. Her presentation’s second area of focus was a concern that the Project will cause serious harm to community health as a result of the destruction of the natural terrain and environment around a recognized burial site, and placement of industrial structures in close proximity to a spiritually significant Aboriginal site.

Dr. Robert McCunney

14Dr. Robert McCunney is a medical doctor practicing occupational and environmental medicine at Brigham and Women’s Hospital in Boston, and is a research scientist at the Massachusetts Institute of Technology. He testified that he is co-author of a review of the peer-reviewed scientific literature with respect to wind turbines and human health, entitled “Wind Turbine Sound and Health Effects: An Expert Panel Review” (Colby et al, 2009), and the lead author of an article published in the Journal of Occupational and Environmental Medicine, entitled “Wind Turbines and Health: A Critical Review of the Scientific Literature” (McCunney et al, 2014).

15On agreement of the parties, Dr. McCunney was qualified by the Tribunal as a medical doctor specializing in occupational and environmental medicine with particular expertise in the health implications of noise exposure. His testimony focused on responding to the general concerns of the Appellant regarding noise from the Project causing harm to human health. He responded specifically to Ms. Stauble’s concerns regarding low frequency sound and the possible impacts of noise on children living close to, or going to school close to wind turbines.

Shant Dokouzian

16Shant Dokouzian, a licensed professional engineer, is the Team Leader for Development and Engineering Services at DNV GL, a renewable energy consultancy firm. He told the Tribunal that he has been involved in over 65 noise assessments, more than 20 ice throw assessments, approximately 45 shadow flicker assessments and a number of overall risk assessments for wind farm projects. The Tribunal qualified Mr. Dokouzian as an engineer with expertise in the design, impact assessment, including risk and public safety assessment, and post-construction monitoring, of wind farms. Mr. Dokouzian’s testimony focussed on responding to the witness statements of Mr. Bateman, Ms. Stauble, and Peter Beer as they related to specific concerns regarding noise, and public safety.

David Eva

17David Eva is a Vice-President at Capstone Power Development for Snowy Ridge Nominee Ltd., the Approval Holder for the Project. He is a registered professional engineer. Mr. Eva testified that he is a graduate of the University of Waterloo (Master of Engineering in mechanical engineering) and Queen’s University (Honours Bachelor of Science in mechanical engineering), and that before joining Capstone he worked in various roles in renewable energy development and management consulting. The Approval Holder did not seek to have Mr. Eva qualified as an expert. His evidence focussed on an overview of the Project and the process that Snowy Ridge undertook to apply for the REA.

Jim Wilson

18Jim Wilson is a Regional Discipline Leader for Archaeology in Central Canada at Stantec, and a licensed archaeological consultant specializing in the pre-contact Aboriginal and early historic occupations of the Northeast. Mr. Wilson told the Tribunal that he has participated in archaeological assessments for many projects across Ontario, including a large number of wind energy projects, and for the past 30 years has worked on and directed numerous surveys and excavations. He stated that he holds both Bachelor’s and Master’s degrees in anthropology, and is a member of the Ontario Archaeological Society. The Tribunal qualified Mr. Wilson to give opinion evidence as an archaeologist. His evidence focussed on an explanation of the archaeological assessment that was undertaken as part of the REA process. He responded as well, to the witness statement and presentation of participant Kathleen Morton regarding the proximity of the Project to certain Aboriginal sites.

Submissions and Findings on Issue 1

(i) Water Contamination

19The issue of water contamination resulting from the construction and operation of the Project as a serious harm to human health was raised by the Appellant, and evidence was adduced by the parties’ witnesses. However, since evidence on the issue of impacts to water as a harm to human health was intertwined with evidence that also dealt with such impacts as potential harm to the environment, this issue is discussed below in the “Environment Test” section on water. The Tribunal finds, for the reasons set out therein, that the Appellant has not produced sufficient evidence to establish that water contamination, resulting from the construction and operation of the Project, should it occur, will result in serious harm to human health.

(ii) Noise and Cumulative Effects

20The Appellant relies on the evidence of its witnesses Ms. Stauble and Mr. Bateman to prove that the Project, even if operated in accordance with its REA, will cause serious harm to human health resulting from noise.

21Both the Director and Approval Holder disagree and say that the Noise Assessment Report for the Project met the requirements of the applicable guidelines, in this case, the 2008 MOECC publication “Noise Guidelines for Wind Farms: Interpretation for Applying MOE NPC Publications to Wind Power Generation Facilities” (the “Noise Guidelines”). A project proponent is required to take cumulative impact into account – that means calculating noise immission levels at each receptor, taking into account all noise from wind turbine projects including those approximately 5 kilometers (“km”) away. The testimony of Mr. Dokouzian, expert witness for the Approval Holder, confirmed that a cumulative noise assessment was conducted for this Project, taking into account the Sumac Ridge project which is located within 5 km.

22The Appellant submits that the cumulative noise assessment completed for the Project should have included three REA projects, Settlers Landing, Sumac Ridge and Snowy Ridge, not just two of the projects, due to the close proximity of the projects to one another. The Appellant submits that section 6.4.9 of the Noise Guidelines is clear in its intention that the impact of adjacent projects be assessed by cumulative assessments and that the wording “approximately 5 km” is to provide flexibility to allow for the inclusion of all turbines in an area. The Appellant relies on a September 2012 letter from Doris Dumais, Director Ministry of Environment (now MOECC) to Ms. Stauble, and a March 2013 letter from Ms. Dumais to the City of Kawartha Lakes, to support this interpretation of the Noise Guidelines section.

23The Approval Holder and Director submit that the turbines and transformer associated with the Settlers Landing project were not included as they are located more than 5 km away from the Snowy Ridge wind project receptors, with the evidence showing that the closest Snowy Ridge receptor is 5067 m from the closest Settlers Landing noise source. The Director noted that in cross-examination, Mr. Dokouzian stated that the 5 km distance for cumulative assessment in the Noise Guidelines is significantly greater than the 2-3 km distance considered by other jurisdictions, and that sound sources located over 5 km away do not “make a difference” to the sound level at a receptor. Mr. Dokouzian also testified that he considered a 5 km distance to be very conservative, and he said that “what has been adopted by everyone in the industry, including the reviewers at MOECC, has been to consider 5 km as the distance”.

24The Tribunal accepts Mr. Dokouzian’s evidence that beyond a distance of 5 km there is no measurable difference to sound levels. The Appellants have not established otherwise.

25In any event, as set out in the Tribunal’s order of September 17, 2015, issues regarding anticipated noise exceedances beyond the regulated levels, or other non-compliance with REA conditions, are beyond the Tribunal’s jurisdiction to consider. In this regard, the Tribunal struck portions of the witness statements referring to noise exceedances or other REA non-compliance, including evidence relating to noise and setbacks.

26Mr. Bateman, witness for the Appellant, stated his concern for his family’s health as follows: “as aging residents with sensitivity to noises and with sleep problems, we are concerned that reflected, repetitive, constant noise will seriously affect our physical and mental wellbeing.”

27Ms. Stauble, also testifying on behalf of the Appellant, attached a number of statements and documents to her witness statement that addressed the relationship between health and wind turbines. These were admitted into evidence by the Tribunal for the purpose of establishing the basis for her concerns and not for the truth of their contents, as Ms. Stauble was not qualified as an expert to give opinion evidence.

28The Director submits that Dr. McCunney, expert witness for the Approval Holder, reviewed the documents referred to by Ms. Stauble, and concluded that none of the studies or literature reviewed shows a clear or consistent association between wind turbine noise and any reported disease or other indicator of harm to human health. The Director also submits that on the issue of infrasound and low-frequency sound, Dr. McCunney testified that there are no studies demonstrating harmful effects to humans as a result of exposure to infrasound or low-frequency sound at the noise levels measured in the vicinity of wind turbines.

29The Approval Holder also submits that wind turbine noise related to this Project is not a health risk, and relies on the testimony of Dr. McCunney. The Approval Holder emphasizes that Dr. McCunney is the only expert witness at the hearing qualified to give opinion evidence in the area of human health, further submitting that his evidence was unshaken on cross-examination and shows that there is no scientific evidence sufficient to conclude that wind turbines cause serious harm to human health.

30While studies such as the Health Canada Study, frequently cited by appellants in other renewable energy appeal proceedings as proving harm to human health caused by wind turbines, suggest an association between wind turbine noise and annoyance, and an association between annoyance and health, these studies do not include affirmative conclusions about causality. Regarding such evidence, the Tribunal has consistently found that an association is not sufficient to permit an inference of causation, and the Tribunal confirms that finding in relation to this Project.

31In response to Ms. Stauble’s concerns about low-frequency noise and the impact of wind turbine noise on children, Dr. McCunney said that there are no studies demonstrating harmful effects to either adults or children, as a result of exposure to infrasound or low-frequency sound at the noise levels measured in the vicinity of wind turbines. In the absence of evidence to the contrary, the Tribunal accepts the testimony of Dr. McCunney in this regard.

32While the Appellant’s witnesses Mr. Bateman and Ms. Stauble expressed concerns about noise from the Project generally, or from the cumulative effects of noise from nearby wind projects together with this Project, these concerns did not rise to the level of proof on a balance of probabilities that serious harm will occur.

33In summary, therefore, the Tribunal finds that the Appellant has adduced insufficient evidence to establish that the Project will cause serious harm to human health due to noise.

(iii) Harm to Community Health – Archaeological Concerns

34Ms. Morton, a participant in the proceeding, expressed concerns about the potential impact of the Project on known and unknown archaeological sites in close proximity to the Site. She outlined what she described as significant omissions in the Approval Holder’s archaeological assessment including a recorded village settlement site within 870 m of industrial wind Turbine 2 and a significant recorded ossuary site within 1,800 m of Turbine 3. She testified regarding sites of other finds of artifacts in the Project area including on one of the participating properties.

35Both the Approval Holder and the Director submit that the Approval Holder’s expert witness, Mr. Wilson, confirmed that a Stage 1-2 archaeological survey had been conducted over the entire Project location and that the survey had documented no archaeological artifacts.

36Ms. Morton expressed particular concern regarding the Project’s potential impact on the Manvers “Hill of Bones”, an ossuary which is within 1300 m of the Project Location. However, according to Mr. Wilson, this resource will not be threatened by the construction or operation of the Project because of the ossuary’s distance from the study area. In Mr. Wilson’s opinion, the Project is not expected to cause any impact on archaeological resources. He testified as well, that the REA requires that should any undocumented archaeological resources be discovered during construction or operation of the Project, the Approval Holder’s work in the area must cease immediately, the Director must be notified, and an archaeologist must conduct further fieldwork.

37The Approval Holder submits as well, that Ms. Morton’s concerns are beyond the jurisdiction of the Tribunal, as the legislation in establishing the test for serious and irreversible harm under s. 142.1(1) of the EPA limited it to harm to the natural environment and human health, and that there is no evidence that archaeological concerns fall within either category.

38The Tribunal granted Ms. Morton’s participant status to speak to this issue, provided that her testimony was given in the context of possible serious harm to the health of First Nations communities. Ms. Morton testified that given the relationship of the dead to the living in such communities, and the possibility of another ossuary site being located in the Project area, great care should be taken to preserve Aboriginal artifacts. She suggested that the Approval Holder have a person with knowledge of Aboriginal artifacts present during excavation for the Project’s turbine foundations in order to minimize the risk of permanent loss of archaeological artifacts. Despite Ms. Morton’s obvious concern regarding the health of First Nations communities, she did not offer any further evidence regarding the possibility of serious harm to human health in this context.

39The Tribunal finds that insufficient evidence has been adduced to establish that the operation of the Project will cause serious harm to the health of First Nations communities.

(iv) Public Safety – Fire

40The Appellant relies on the evidence of Ms. Stauble regarding concerns about the potential risk of fire to assert that the construction and operation of the Project in accordance with its REA will cause serious harm to human health.

41Ms. Stauble testified that the Project area is serviced by a volunteer fire department, and that there are no fire hydrants in the area. She says that the fire department does not have the capacity to deal with a wind turbine fire, and that the Approval Holder has not prepared an adequate response plan.

42The Approval Holder submits that Ms. Stauble’s evidence is speculative and, at its highest, only raises general concerns in respect of a potential risk that the Project will cause harm to human health. The Approval Holder submits that the only expert opinion evidence before the Tribunal on the issue of public safety is Mr. Dokouzian, who testified that turbine fires are “extremely rare” because modern turbines are equipped with a number of fire safeguards, and that the risk of harm from the Senvion MM92 turbines used in this Project is “very low”.

43The evidence before the Tribunal is that wind turbine fires are very rare. Mr. Dokouzian testified in cross-examination that he did not have statistics on occurrences of turbine fires because they are extremely rare. The evidence is also that the Senvion MM92 turbine has state-of-the-art protection measures, including an automatic fire suppression system. The Tribunal finds, therefore, that the risk of a turbine fire at the Project is low. Further, although it is plausible that a turbine fire could occur, there was no evidence that if one did occur that it would cause serious harm to the public.

44Despite Ms. Stauble’s concerns, in the absence of evidence to the contrary, the Tribunal accepts Mr. Dokouzian’s opinion that the risk of harm to the public from a turbine fire is very low.

45The Tribunal finds that insufficient evidence has been adduced to establish that the construction and operation of the Project will cause serious harm to human health resulting from a threat to public safety from fire, or any other safety risk.

Conclusion on Issue 1

46In conclusion, having reviewed all the evidence and based on the findings above, the Tribunal finds that the Appellant has adduced insufficient evidence to establish that the operation of the Project in accordance with its REA will cause serious harm to human health.

Issue 2: Whether engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment

Overview

47Under s. 145.2.1(3)(b) of the EPA, the person who requested the hearing bears the onus of proving 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.

48The evidence adduced by the Appellants with regard to serious and irreversible harm to plant life, animal life or the natural environment (the “Environment Test”) focused primarily on two sub-issues: (i) potential impacts to the ORM including surface water and groundwater in the Project area; and (ii) potential impacts to species at risk, in particular, certain bird species. As noted above, the Appellant’s evidence and submissions relating to the ORM and water relate both to the Health Test, and to the Environment Test.

(i) ORM including surface water and groundwater

Summary of Evidence

49The Appellant’s witnesses on issues related to the ORM including surface water and groundwater were expert David Kerr, and lay witnesses Perry Sisson and Mr. Beer. The participants, the City and Save the Oak Ridges Moraine Coalition (“STORM”), and presenters, John Moore and Jane Zednik also provided the Tribunal with written submissions and presentations. The Director’s witness on matters related to the ORM was Shawn Kinney, and the Approval Holder led evidence through witness Grant Whitehead.

David Kerr

50David Kerr is a geoscientist, and Manager of Environmental Services, Department of Public Works for the City of Kawartha Lakes (the “City”). Mr. Kerr testified that he has been involved in environmental site remediation and clean-up of contaminant discharges for approximately thirty years. He stated that his professional experience has been in the areas of hydrogeology, hydrology, water resources, source protection, waste water issues, landfill issues and chemical spills, and that he has worked as a consultant to the Ministry of Natural Resources and Forestry. He testified that he has been involved in various studies involving environmental investigations of surface and groundwater resources on the ORM. The Tribunal qualified Mr. Kerr as a professional geoscientist with expertise in hydrogeology.

51His testimony focused on what he characterized as inconsistencies in findings between the Approval Holder’s various hydrogeological reports, and the potential for the Project to result in large scale contamination of waters flowing onto the ORM.

52Mr. Kerr testified that,

liquid industrial materials such as those contained in turbines and transformers are of concern in highly sensitive areas such as high aquifer vulnerability areas. Spillage of these types of materials may result in serious and irreversible harm to the moraine and associated water resources.

53Mr. Kerr testified that there is extensive tile drainage in the Project area, particularly at the site of Turbines 3, 4 and 5. He explained that tile drainage is an agriculture practice that removes excess water from soil subsurface, and that tile drainage provides a rapid path for contaminants to travel from the site of contamination into nearby aquifers and surface water courses. He stated that tile drainage can also provide a pathway for water and contaminants to reach other wells, aquifers and water bodies more quickly than natural soil infiltration.

54Mr. Kerr stated that the interference will cause an impact on the hydrogeological balance and put a strain on the aquifer yields and a reduction in spring discharge quantity. He said that increased impervious coverage may result in serious and irreversible harm to the moraine and water resources, affecting seeps and streams, wetlands, ponds and other surface water courses.

Perry Sisson

55Perry Sisson resides on a family farm property located between Project turbines T2 and T3. He appeared as a witness for the Appellant. Mr. Sisson testified that he is a water resources engineer who has previously been qualified as an expert witness before the Tribunal. The Appellant did not seek to have Mr. Sisson qualified as an expert in this proceeding.

56Mr. Sisson testified that he believes the placement of turbines T3, T4 and T5, will result in irreversible harm to the environment, particularly to the tributary of the Pigeon River. He testified that as a result of the compaction of soils beneath turbine foundations, crane pads, laydown areas, an access road and a parking lot, rainwater will not infiltrate these features and be converted to runoff. He stated that greater runoff will cause soil erosion and more pollution of watercourses.

57Regarding the hydrogeological report, Mr. Sisson raised concerns about the adequacy of the assessment of certain headwaters, watersheds, sub watersheds, watercourses, springs, and seeps in the general Project area.

58He also believes that the assessment of the watercourse limits and presence of seepage areas for the Project is unreliable, and that since a portion of the Project is within the ORM and the remainder has moraine type soils, a watershed plan should be completed to confirm the connection and interaction between surface water and groundwater quality and quantity in the area of the Project.

Peter Beer

59Peter Beer and his family live on Beers Road, in close proximity to the Project. Their house is designated as one of the identified receptors in the Approval Holder’s Noise Report, and the closest turbine will be approximately 640m away. Mr. Beer appeared before the Tribunal as a lay witness for the Appellant. He testified that the Project’s turbines and transformer will be located within a few thousand feet of his residence, on farmlands that he has been familiar with since childhood. He said that the proposed location of the turbines and transformer concerns him, because there has been inadequate or incorrect mapping of a number of water features on the properties involved, and that this incorrect mapping and construction of the turbines as proposed, will result in serious and irreversible harm to the surface water courses and multiple springs draining into the ORM watershed system.

John Moore

60John Moore is a resident of Bethany who lives approximately 700 m south of the Project. Mr. Moore appeared as a presenter in this proceeding. He testified that he has serious concerns that the Project could irreparably damage water quantity on his property as a result of construction dewatering. Mr. Moore testified that the well on his property is shallow, and not on the Ontario Well Registry, so there was no mention of it in the Approval Holder’s reports. He stated that, in his opinion, no proper hydrogeological studies were performed, and as a result he is also concerned about water quality. He says that the water table is very high and is susceptible to contamination, and that construction methods, accidents, and maintenance of equipment are factors that concern him. Mr. Moore also said that he is concerned because the transformer sub-station will be located on the ORM and will be situated on an area deemed high aquifer vulnerability.

Jane Zednik

61Jane Zednik appeared as a presenter in this proceeding. Ms. Zednik is a resident of Campbellcroft, which is located on the ORM. She is reliant on a well for her drinking water. Ms. Zednik has appeared as a witness in a previous Tribunal hearing and as a presenter in two others. Her testimony focused on her concerns regarding the potential impacts that construction and operation of the Project will have on surface and groundwater sources in the area. She testified that she believes these impacts will occur as a result of “erroneous and missing information” provided by the Approval Holder.

City of Kawartha Lakes

62The Participant City provided the Tribunal with written submissions and a presentation by Ron Taylor, Chief Administrative Officer for the City. Mr. Taylor testified that he previously held the position of Director of Development Services with the City, and that the Development Services Department is responsible for the review of projects requiring Renewable Energy Approvals and building permits, and is also responsible for input and consultation on road user agreements executed by the City. In his testimony, he stated that the City opposed the Project, and outlined the City’s submissions in support of this position, which are summarized in the submissions section below.

Save the Oak Ridges Moraine Coalition

63Cindy Sutch, Executive Director and Chair, and Debbe Crandall, Past Chair and Founder of STORM, testified on behalf of STORM. Ms. Sutch and Ms. Crandall, in their written and oral presentations, told the Tribunal that STORM was established in 1989 to raise awareness of the sensitivity of the moraine’s ecology to impacts from urban development and other land uses, and to secure better planning and management governance for the ORM.

64Ms. Sutch stated that STORM has participated in four other renewable energy appeal hearings before the Tribunal, and she expressed her view that the caliber of hydrogeological evaluation reports from developers of renewable energy projects, have improved significantly over time, and that this is particularly evident in the hydrogeological reports for this Project and the nearby Settlers Landing project.

65Their presentation of behalf of STORM reviewed the values of the ORM, how environmental planning and management governance evolved on the ORM and how, in STORM’s view, the Green Energy Act and associated governance has “severely undermined established protections”. The presentation also outlined STORM’s concerns regarding cumulative effects.

66Although they stated that they favour the adoption of green measures including the development of green energy projects, Ms. Sutch stated that STORM’s main concern is the scale of these developments, indicating that the applications that STORM has opposed are all “industrial scale developments”. They noted that this Project is a neighbour to a number of similar renewable energy projects located within the same community, and that the Project lies within an area of high aquifer vulnerability within the Countryside Area designation, and contains significant woodlands.

67Finally, they noted that MOECC’s Statement of Environmental Values requires that MOECC consider cumulative environmental effects when making environmentally significant decisions. They stated STORM’s position that these projects are being approved by the MOECC without concern for cumulative effects. Their presentation also urged that government undertake a cumulative effects assessment study of green energy projects within the entire Greenbelt.

Shawn Kinney

68Shawn Kinney is a Regional Hydrogeologist with the Technical Support Section Water Resources Group of the Eastern Region of the MOECC. He appeared on behalf of the Director. Mr. Kinney testified that he has worked for the MOECC since 1999, and is a registered professional geoscientist. He stated that, in his current position, he provides scientific advice to Ministry staff as an expert in the field of hydrogeology, reviewing technical reports and evaluating the hydrogeological impacts of proposed and existing activities. On consent of the parties, the Tribunal qualified Mr. Kinney as a professional geoscientist with expertise in hydrogeology.

69Mr. Kinney’s opinion is that the Project will not cause serious or irreversible harm to groundwater resources, that the Project does not pose a threat to aquifers or local wells, and that a full hydrogeological study of the site is not warranted.

70Mr. Kinney explained 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, and that this Project will not do either. He testified that he agreed with his colleague Mr. Frank Crossley, the hydrogeologist for MOECC who conducted the review of the Project, that a full hydrogeological report was not considered necessary.

71Mr. Kinney testified that the transformer substation is the only element of the Project that is within the Oak Ridges Moraine Conservation Plan (“ORMCP”) area. It is located within an area of “high aquiver vulnerability”. Mr. Kinney testified that the REA would not permit the Approval Holder to engage in any of the prohibited activities in a high aquifer vulnerability area as defined under s. 29(5) of the ORMCP.

72Mr. Kinney explained that transformer oil is categorized as an F3 / F4 hydrocarbon, with the following chemical properties: extremely low water solubility (less than 1 mg/L); not chemically reactive with water; expected to partition mostly to soil; and inherently biodegradable. He further explained that the Canadian Council of Ministers of the Environment considers that guidelines for potable groundwater protection are not necessary for these hydrocarbons, “due to their inherent low solubilities and high affinity for adsorption on soil organic carbon”. He testified that, based on these known physical and chemical properties, a potential oil spill from the transformer substation does not pose a threat of serious or irreversible harm to the aquifers of the ORM or wells in the area.

73Mr. Kinney disagreed that the tile drainage would necessarily materially affect the rate of contamination in the event of a spill. As Mr. Kinney explained, a tile drain is designed to remove excess water, and while it is possible for a spilled substance such as oil to enter a tile drain, it would not move along the drain until it reached the point of oversaturating the surrounding soil, and then would enter slowly, not flow into the drain as water would. He said if a spilled substance were to enter the tile drain and travel along its length, it would exit at the discharge point, thus facilitating remediation.

Grant Whitehead

74Grant Whitehead is a Senior Hydrogeologist and Project Manager at Stantec, and a registered professional geoscientist in the Province of Ontario. He told the Tribunal that for the past 15 years, he has either managed and/or has been the principal investigator for numerous groundwater supply and protection evaluations, permitting and compliance studies, and groundwater monitoring and hydrogeological impact investigations throughout Ontario. He stated that he has a thorough understanding of the geological and hydrostratigraphic framework of the ORM, having completed several field-based and desktop-level hydrogeological investigations within or in close proximity to this physiographic feature. He further stated that he has experience in performing hydrogeological impact assessments for renewable energy based developments, including large scale wind developments. The Tribunal qualified Mr. Whitehead as a professional geoscientist with expertise in hydrogeology.

75Mr. Whitehead testified that Stantec was retained in 2014 to complete a desktop-level hydrogeological impact assessment of the Project site, and that he was the senior hydrogeologist responsible for the assessment. The Desktop Assessment concluded that no detrimental changes in groundwater recharge patterns are anticipated, that preventative and emergency spill response protocols and mitigation measures are in place to prevent detrimental impacts to groundwater, and that the Project is in compliance with the ORMCP.

76Mr. Whitehead further testified that in May 2015, Stantec was retained to do a field-based hydrogeological assessment for the Project. The tasks to be completed mirrored the concerns raised by Mr. Kerr on behalf of the City, and the hydrogeological report of September 9, 2015 was subsequently provided to the City. The field-based report comes to the same conclusions as the desk-top level assessment; there will be no significant harm to the hydrogeological form and/or function of the ORM.

77Mr. Whitehead testified that Condition K1 of the REA mandates that the transformer substation must be equipped with an integrated spill containment structure approved by a professional engineer that will have “a minimum spill containment capacity equal to the volume of transformer oil and lubricants plus the volume equivalent to providing a minimum 24-hour duration, 50-year return storm capacity”. Mr. Whitehead explained that the containment structure must have an impervious floor with walls of reinforced concrete or impervious plastic liners, and as a result, in the unlikely event of any release from the transformer, no material would be expected to reach the ground.

78Mr. Whitehead also stated that the site specific tests performed during the field-based hydrogeological assessment showed that water spilled at the ground surface would move slowly through the subsurface to reach groundwater, and that downward movement of a spill of oil would be much slower than water, taking days to reach the shallow groundwater system. Mr. Whitehead said that in his opinion, spills responders would be on site to remediate the spill in far less time than that.

79Mr. Whitehead testified that the Project will create an approximately 0.002% increase in imperviousness on the section of the ORM that is located within the Kawartha-Haliburton Source Protection Area, or 0.002 km^2^ of 102 km^2^, which he says is a very small increase. In his opinion, the precipitation which will occur post-construction will flow into native soils and continue to recharge underlying aquifer systems. Mr. Whitehead also testified that the turbine foundations to be constructed outside the ORM boundaries, will cover an area of approximately 0.19 ha, the turbine access roads and crane pad and laydown areas will consist of an aggregate base, and the Project’s buried electrical cabling will be laid in trenches that will be backfilled with sand and native fill material. He says that these materials are permeable and will permit precipitation falling on these areas to readily infiltrate the subsurface.

80Mr. Dokouzian also gave testimony relevant to the issue of groundwater contamination. He testified that any oil spilled from the nacelle of a turbine would be completely contained by a “leak tight yaw deck” located directly below the nacelle deck. It is designed to hold the total amount of lubricants and greases contained in a turbine, in the event of any oil spill from the nacelle.

Appellant’s Submissions

81The Appellant submits that the Project does not conform to the ORMCP, submitting that the Approval Holder has not kept its promise to evaluate the proposed Project for compliance with the stipulations outlined in the ORMCP. The Appellant asks that the Tribunal revoke the REA, or, alternatively, direct that the substation be relocated off the ORMCP area as a precautionary measure, asserting that this would prevent serious harm to the public.

82The Appellant acknowledges that the only portions of the Project located within the ORMCP boundaries are the transformer substation and common coupling area. The Appellant, nonetheless, submits that the ORMCP’s boundaries are based on political considerations, and that the entire Project area is, in fact, located on the same vulnerable landform.

83The Appellant notes that witnesses for all the parties confirmed that, although the Green Energy Act provides an exemption from the ORMCP for renewable energy generation facilities such as this Project, the Project is still subject to specific provisions of Ontario Regulation 359/09, to allow for the maintenance and protection of natural features within the ORMCP area.

84The Appellant submits that some surface water features were not properly considered by the Director when he decided to issue the REA for the Project. In this regard the Appellant relies on evidence of Mr. Beer and Ms. Zednik.

85Regarding potential spills, the Appellant relied on Mr. Kerr’s evidence that, if spills were to occur from the construction, operation or decommissioning of the Project, the result would be serious and irreversible harm to the natural environmental by contaminating the “sensitive hydrogeological landscape”. Similarly, the Appellant submits that the nature of the ORM hydrogeology is such that spills would enter the aquifer quickly, and contaminate local wells.

86The Appellant argues that there are multiple other ways contaminants from the nacelle and transformer might leak onto the ground including structural failures, accidents, natural events and unintentional damage during maintenance and repairs.

87The Appellant submits that the restrictions and spills management protocols that are in place assume that spills only occur once the turbines and transformers are built and that this fails to consider the risk of spills during construction.

88The Appellant also relies on Mr. Kerr’s testimony that the increase in the amount of impervious land surface caused by the Project’s infrastructure will prevent water infiltration, and reduce natural recharge to the aquifers. The Appellant also points out Mr. Sisson’s concerns that water infiltration will be reduced, and erosion increased, due to soil compaction.

89The Appellant submits that hydrogeological information provided to the MOEEC on this Project was incorrect or insufficient, or both. The Appellant submits that, despite the Approval Holder’s contention that they have “gone above and beyond” to meet the City’s request, the hydrogeological report was not provided to the City for review until after the Director’s decision had been made. Further, the Appellant submits that the field-based hydrogeological report is unreliable as it missed the high water table levels of the spring freshet, does not contain enough data to give a full understanding of fluctuating water table levels, was not provided to the MOECC for review as part of the REA, and was not provided to the City for the normal iterative review process.

City’s Submissions

90The City takes the position that it is not supportive of development, including renewable energy development, on the ORM. It submits that wind turbines and their associated infrastructure should be located in areas that do not result in degradation of the ORM, and that authorizing construction in green space areas within the ORMCP area is inconsistent with the intent of protection of the ORM. The City also submits that the purpose of the conditions of the REA is to confirm that the Project will not result in “significant harm to human health or significant and irreversible harm to the environment”. In this case, it says, REA conditions G1 and G2 and the Erosion and Sediment Control Plan, relating to stormwater management and sedimentation and erosion control, are “insufficient to confirm that the development will not result in significant harm to human health”.

91The City asks that the Tribunal exercise its jurisdiction to amend the REA to add the requirement that the proponent satisfy the City that stormwater management and sedimentation and erosion control plans will not result in negative impact on adjacent and municipal property.

92The City also believes that it is appropriate that a Road Users Agreement be entered into between the City and the proponent, to address the issues of insurance, indemnification, and financial security. In this respect, the City asks that the Tribunal exercise its jurisdiction to amend the REA to remove the wording, “as applicable" from condition M2.

93The City submits that in the absence of detailed engineering modelling to determine the extent of the Project’s impact, the Tribunal should determine that the impact amounts to "serious harm" in order that the risk can be eliminated by denying the appeal and ordering amendments to the REA.

STORM’s Submissions

94STORM did not provide written submissions in addition to the submissions incorporated in STORM’s presentation described above.

Director’s Submissions

95The Director points out that a Natural Heritage Assessment to identify natural features and an Environmental Impact Study report to identify potential impacts to the natural environment and wildlife, have been completed for this Project. The Director further submits that mitigation measures have been established, an Environmental Effects Monitoring Plan to preserve the integrity of natural heritage features has been prepared, and that the Ministry of Natural Resources and Forestry has confirmed that these measures all comply with O. Reg. 359/09.

96The Director submits that the Appellant has not established that operating the Project in accordance with the REA will result in any specific harm to the moraine’s features and functions, let alone serious or irreversible harm.

97The Director relies on Mr. Kinney’s evidence to submit that the physical and chemical properties of transformer oil are such that any spill, should one occur, will not result in contamination of water resources.

98The Director submits that concerns raised by the Appellant and the City about impacts occurring as a result of increased impervious coverage are unfounded. Relying on the evidence of Mr. Kinney, the Director submits that, even with an extremely conservative assumption that any precipitation hitting turbine bases would not permeate the ground, the amount of precipitation lost due to impermeability would be so small over the Project area, which covers hundreds of square kilometers, that it likely would not be measurable. The Director also relies on Mr. Kinney’s testimony that there is no additional risk to groundwater contamination due to tile drainage in this case.

99The Director emphasizes that two MOECC hydrogeologists reviewed this application and concluded that a full hydrogeological report was not considered necessary. Despite this, the Approval Holder prepared a hydrogeological report in September 2015 to allay the City’s concerns.

Approval Holder’s Submissions

100The Approval Holder submits that the proponent took all the required steps in completing a Water Assessment Report and Environmental Impact Study, as outlined in Mr. Eva’s testimony. The Approval Holder notes that it identified all water bodies located within 120 m of Project infrastructure, and proposed avoidance and mitigation measures to guard against spills, and potential impacts of spills in the event that they do occur.

101The Approval Holder relies on Mr. Whitehead and Mr. Dokouzian’s testimony that the infrastructure design includes numerous anti-spill features. Further, if a small quantity of such liquid did make it into groundwater, its movement would be slow enough that it could be remediated prior to contaminating the aquifer, and that in any event the minor impact would be reversed by natural biodegradation processes. The Approval Holder relies on Mr. Kinney’s evidence that even a spill of 10,000 litres of electrical insulating oil, for instance, would not pose a threat of serious or irreversible harm because the oil is inherently biodegradable, and existing techniques can remove impacted soil.

102The Approval Holder submits that the Project is unlikely to cause any impact to the groundwater recharge function of the ORM. The Approval Holder points to Mr. Whitehead’s testimony, that the Project will create an approximately 0.002% increase in imperviousness on the section of the ORM that is located within the Kawartha-Haliburton Source Protection Area, to argue that interference with recharge will be too small to measure.

103The Approval Holder disputes the Appellant’s concerns that the spring freshet conditions were not captured by the hydrogeological report, relying on its expert Mr. Whitehead’s explanation, that in 2015 the region experienced an uncharacteristically dry spring during March, April, and May, and in June had one of the wettest months on record. His opinion is that, as a result of these unusual weather conditions, the on-site monitoring program captured spring freshet conditions.

Findings on Issue 2(i)

104The Tribunal accepts that the Project, operating in accordance with the REA conditions, will pose a low risk of surface water, groundwater, or well water contamination. First, there is a low likelihood of a spill due to infrastructure design and spill prevention conditions, and second, if a spill did occur, it would be unlikely to contaminate surface or groundwater due to the physical and chemical properties of the fluids involved.

105The Tribunal notes that Condition A1 of the REA, including the application materials, contains provisions to minimize the potential for spills, incorporating a commitment to no refueling of vehicles or storage or use of bulk chemical or fuels on the Project lands.

106The Tribunal heard evidence from several witnesses regarding the type of contaminants that might be released into the soil or water in the Project area if a spill should occur during construction, operation, and decommissioning of the Project. Both Mr. Kinney and Mr. Whitehead testified that that the kinds of oil to be used in the Project have a very low solubility in water, and tend to stick to soil, making any such spill a low risk for water contamination, and easy to excavate for disposal. The Tribunal accepts that transformer and gear box oils used for projects of this kind are classified as “F3 hydrocarbons” meaning that they have extremely low water solubility.

107The Tribunal finds that it is unlikely that the impervious surfaces associated with the Project will lead to a detrimental impact on the groundwater recharge function of the ORM, or the infiltration of precipitation into Project lands outside the ORMCP area. Mr. Kerr expressed concerns that there would be a negative impact to the local aquifers and on the watershed within the Project Area. However, his concerns were general in nature and did not amount to evidence that harm will occur. The evidence before the Tribunal is that the Project’s infrastructure will cause an increase in impervious surfaces in the amount of, as calculated by Mr. Whitehead, 0.002% of the section of the ORM that is located within the Kawartha-Haliburton Source Protection Area. The Tribunal finds this to be a very small increase. In addition, the Tribunal accepts Mr. Whitehead’s un-contradicted evidence that precipitation will continue to flow into native soils and continue to recharge underlying aquifer systems.

108The Tribunal acknowledges that the field-based hydrogeological report responds directly to the concerns raised by the City, and accepts Mr. Whitehead’s evidence that the spring freshet conditions were captured by it. In reaching this conclusion, the Tribunal notes that Mr. Kerr’s testimony was that he “only had a cursory glance” at the hydrogeological report, and so it appears that he is less familiar with the report’s contents and conclusions. The Appellant and Participants put significant emphasis on the fact that the 2015 hydrogeological report was not before the Director when the REA was issued. The Tribunal notes, however, that whether the hydrogeological report was provided to MOECC as part of the REA review, and whether it was provided to the City, are not relevant to the Tribunal’s determination of this appeal, as the Tribunal is not restricted to only considering information that was before the Director when the Director made his decision to issue the REA.

109In conclusion, having reviewed the evidence in its totality, the Tribunal finds that the Appellant has not established that the Project will cause serious and irreversible harm to the natural environment in the form of harm to the ORM, including surface and groundwater on the moraine, or on other water features in the vicinity of the Site.

110As mentioned above in the section of this decision on the Health Test, the evidence on water was related to both the Health Test and the Environment Test. The Appellant’s allegation is that contamination to groundwater or surface water will cause serious harm to human health, because residents of the area obtain their drinking water through wells. Given the Tribunal’s finding above, that there is little risk that the Project, operating in accordance with the REA, will contaminate groundwater or surface water in the area, the Tribunal finds that the Appellant has not adduced sufficient evidence to show that the Project will cause serious harm to human health through water contamination.

(ii) Birds, including Species at Risk

Introduction

111On the issue of the potential impacts of the Project on birds, including Species at Risk (“SAR”), the Appellant led evidence through expert witness Geoffrey Carpentier. Presenter, John Moore, also made brief submissions. The Director did not lead evidence on this issue of SAR, but participated in the cross-examination of the witness for the Appellant and made submissions. The Approval Holder led evidence on birds including SAR through expert witnesses David Charlton and Dr. Paul Kerlinger.

112A Natural Heritage Assessment (“NHA”) and Environmental Impact Study (“EIS”) were completed as part of the REA application. The Snowy Ridge Wind Farm Species at Risk and Endangered Species Act Registration Process Summary (the “SAR summary”), was also completed as part of the REA application process. The SAR summary confirms that three avian species that are listed as “at risk” in the Endangered Species Act (“ESA”) were observed and confirmed present during surveys conducted at the Project Site: the Bobolink, the Eastern Meadowlark, and the Barn Swallow.

113Some of the presenters raised concerns regarding the risk to bats in the Project area of mortality due to collision with wind turbines. This was not an issue raised by the Appellant, however, and was not addressed in the parties’ evidence. The Tribunal notes the concern, but will not further deal with this allegation.

Summary of Evidence

John Moore

114In addition to his concerns about impacts to water quantity, Mr. Moore expressed concerns that wildlife will be irreparably harmed by the construction of the Project. He expressed his view that the removal of trees and areas of habitat will devastate local and migratory birds, and that many species of bats, birds, birds of prey and quadrupeds which inhabit the area will suffer from disrupted pathways. Mr. Moore focused in particular on collision mortality risk to bats.

Geoffrey Carpentier

115Geoffrey Carpentier is the owner and principal of Avocet Nature Services. On consent of the parties the Tribunal qualified Mr. Carpentier as an ornithologist with experience in field recognition of Canadian species of birds including species at risk, and in identifying suitable bird habitats.

116Mr. Carpentier’s testimony focused on the potential for permanent damage to local populations of SAR birds that he says will be displaced by the construction and operation of the industrial wind turbines. Specifically, he gave his opinion that the Project would cause a loss of Barn Swallow foraging habitat, as well as significant grassland nesting habitat for Eastern Meadowlark and Bobolink. He is also of the opinion that the Project will harm raptors, and that gaps in the assessment of the Project’s impacts by the Approval Holder’s consultants will lead to serious and irreversible harm.

117Mr. Carpentier’s surveys indicate that there is a total of 14.3 hectares (“ha”) of land being utilized by the two at-risk bird species; much more, he testified, than the 5.9 ha of impacted habitat estimated by Stantec. He consequently expressed his opinion that the creation of 8.9 ha of compensation grassland habitat is insufficient. Mr. Carpentier conducted numerous bird surveys in the area, and identified areas in the vicinity of turbines 1 and 2 as Bobolink and Eastern Meadowlark habitat. Mr. Carpentier’s reply witness statement affirms that “the areas around turbines 1 and 2 are not fractured but rather contiguous habitats of mostly undisturbed pastureland, foraged mostly by horses and to a lesser degree by cattle.” He concedes that the habitat in the fields around turbines 3, 4 and 5 is degraded with heavily mowed hayfields. Mr. Carpentier concludes in his reply witness statement, based on his studies of the area, that:

there are 11.3 ha of available Eastern Meadowlark habitat onsite and 3.5 ha are being utilized, while for Bobolinks 22.5 ha is available and 10.8 ha is being utilized. So if 5.9 ha of habitat are removed for either species the impacts would be significant.

118Mr. Carpentier testified that a displacement impact that lasts for years can be drastically detrimental to a species. He stated that reduced nesting of Bobolinks will be experienced from 75-100 m from a turbine, and that grassland species including Bobolink and Eastern Meadowlark “displace more readily than other species.”

119Mr. Carpentier is of the view that “for species at risk, every bird lost or piece of habitat destroyed is critical.” He also testified that cumulative impacts of other influences must be taken into account, and that it “is not representative of the reality of the situation” to consider the Project in isolation. Mr. Carpentier’s opinion is that the evaluation of serious and irreversible harm to animal life should be made at the Project scale, rather than using a population viability analysis.

120With regards to the two parcels of land proposed to be compensatory grassland habitat, Mr. Carpentier questioned whether the full 8.9 ha will truly become habitat for Bobolink and Eastern Meadowlark. He questions whether the entire parcels identified have appropriate soil moisture levels to support grassland habitat, and whether the soil has residual pesticides that will prevent planted grasses from growing within 12 months, as planned. Mr. Carpentier also questions whether other land uses in the vicinity of the compensation lands (i.e., a home, feral cats, and a busy road) will reduce the size of the actual useable habitat.

David Charlton

121David Charlton is a Senior Principal, Environmental Management at Stantec. On consent of the parties, the Tribunal qualified Mr. Charlton as an ecologist with expertise in assessment and mitigation of environmental impacts at wind farms, including with respect to vegetation and birds. The focus of his testimony was on natural heritage features, including bird habitat, in the Project area.

122In the opinion of Mr. Charlton, the Project as constructed and operated in compliance with the REA is not expected to result in any significant impacts to birds or bird habitat. He testified that three bird species that are listed as threatened on the Species at Risk in Ontario (“SARO”) list were identified within the Project area: Bobolink, Eastern Meadowlark and Barn Swallow. He testified that “although all three are listed as threatened, they are still widespread across the province and are commonly encountered in agricultural landscapes.” In his view, the province has developed “proven methods” to deal with these species in a way that benefits their long term survival.

123Mr. Charlton testified that the Project Location does not overlap with any Barn Swallow nesting habitat (barns or open outbuildings), and that any indirect impact to such structures within 250 m of the Project Location will be prevented through timing restrictions on construction of the Project (i.e., no construction during breeding season). Mr. Charlton testified that the SAR report identified a “small area of potential Barn Swallow foraging habitat” that may be affected by construction of the Project. However, in his view the potential disturbance will have no impact on Barn Swallows, because foraging habitat is widespread, and not considered to be a limiting factor to Barn Swallow recovery.

124Mr. Charlton explained that the “Project Location” boundary is the outer limit of where site preparation and construction activities will occur and where infrastructure will be located, including the air space occupied by turbine blades. It is therefore smaller than the “Project Area”, which includes the Project Location plus an additional 120m zone of investigation.

125Mr. Charlton stated in his witness statement that “approximately 5.9 ha of Bobolink and Eastern Meadlowlark habitat within the Project area will be impacted (through direct removal for Project infrastructure or temporary removal during construction) or potentially impacted (through potential disturbance of a buffer around the Project turbines.)” Orally, Mr. Charlton explained that the 5.9 ha estimate includes three categories: habitat lost “permanently” for the lifetime of the Project, which amounts to less than 1 ha (e.g., roads, foundations, transformer); areas of temporary disruption (e.g., construction season only such as buried cables); and a conservative estimate of displacement effects within 100m radius of turbines. He testified that Bobolink and Eastern Meadowlark habitat was identified in hay and pasture fields around turbines 1 and 3. Turbine 1 is surrounded by 3.4 ha of grassland bird habitat, although Mr. Charlton testified it is of low quality due to the presence of goldenrod and other forbs, which Bobolink do not tolerate. Turbine 3 is in a hay field which he calculated is 2.5 ha of potential habitat, although he noted that “it could be mowed at any time.” Turbines 2, 4 and 5 are in active agricultural fields, Mr. Charlton testified, with “zero” habitat.

126Mr. Charlton outlined the ESA requirements for permission to damage or destroy 30 ha or less of Bobolink or Eastern Meadowlark habitat, which are laid out in s. 23.6(4) of O. Reg. 242/08 and included as conditions in the REA. He testified that, as part of the ESA requirements, the Approval Holder will be creating 8.9 ha of compensation habitat, which is 1.5 times more than the area of impacted and potentially impacted area, and is more than what is required by regulation. There is a habitat management plan that prescribes the allowable height and mix of grass. In Mr. Charlton’s opinion, the compensation habitat “will produce a benefit to each species greater than what was anticipated in the Regulation”, and will directly contribute to the recovery goal for grassland bird species by protecting and managing 1.5 times more habitat than the Project might impact. Mr. Charlton testified that there is no concern about cumulative impact to grassland bird habitat from renewable energy projects, because “every single one of the projects results in a benefit for bird habitat.”

127Generally, Mr. Charlton testified that the REA conditions will ensure bird collision mortality will be kept at levels that will not significantly impact birds, including raptors, either at the local Project scale or the population scale. Mr. Charlton also opined that raptor habitat would not be impacted as no “significant habitat” has been identified in the Project area.

Dr. Paul Kerlinger

128Dr. Paul Kerlinger is a senior biologist and principal in the consulting firm of Curry & Kerlinger, LLC. On consent of the parties, the Tribunal qualified Dr. Kerlinger as an expert on birds and the impacts of wind farms on birds.

129Dr. Kerlinger testified that in his opinion, the wind Project would have a very small displacement impact for grassland bird habitat, and any such displacement would be more than offset by the grassland compensation habitat required by the REA and by the ESA.

130Dr. Kerlinger testified that young Bobolink and Eastern Meadowlark do not return to the natal site to breed after winter migration; rather, they typically disperse about 15 km from their nest when they return to breed, meaning that Bobolink or Eastern Meadowlark that are hatched near the Project will generally not return to the Project Area.

131Dr. Kerlinger’s overall opinion agrees with that of Mr. Charlton, that the Project, as built in accordance with the REA, will not result in any serious, let alone serious and irreversible, harm to any bird species or bird habitat.

Appellant’s Submissions

132The Appellant relies on Mr. Carpentier’s opinion that the grassland habitat surrounding Turbines 1 and 3 are suitable habitats for avian species and should be maintained, and that the grassland habitat surrounding Turbines 1 and 2 is one contiguous piece of habitat.

133The Appellant submits that the 2014 Snowy Ridge Wind Farm Species at Risk and Endangered Species Act Registration Process Summary (“ESA Summary”), prepared by the Approval Holder’s consultants, supports the view that the grassland is currently habitat, when it states the majority of the habitat for Bobolink consists of hayfields which persist until late June and likely provide habitat long enough for some Bobolinks to fledge young.

134The Appellant submits that the Tribunal should prefer Mr. Carpentier’s opinion that the locations of turbines 1, 2 and 3 provide good quality habitat for species at risk Bobolink and Eastern Meadowlark, and that 14.3 ha of land is being utilized by the two species. In this regard, the Appellant emphasizes that Mr. Carpentier conducted breeding bird surveys in 2014 and 2015, while the Approval Holder’s consultants conducted no breeding bird surveys, and that Mr. Carpentier mapped breeding bird sites for both Bobolink and Eastern Meadowlark, and explained how the size was calculated. The Appellant submits that the NHA/EIS prepared by M.K. Ince is inaccurate and contains numerous errors, particularly with respect to identification of birds using the Project Area. Mr. Charlton, it argues, did not conduct any on-site surveys, and only visited the Site in September, when Bobolink, Eastern Meadowlarks and Barn Swallow would not be present. The Appellant argues that the Tribunal should prefer Mr. Carpentier’s opinion because he has conducted site surveys, observed the property many times and accounts for the local population, while Dr. Kerlinger, the Appellant submits, merely provides a literature review and summary of the Approval Holder documents.

135With respect to the two parcels of compensation lands, the Appellant submits that 11 ha of habitat will be negatively impacted (not the Approval Holder’s estimated 5.9 ha). The minimum compensation habitat asserted by the Appellant is a 2:1 ratio, amounting to 22 ha. The Appellant contrasts this with the size of the two parcels in this case, one 4.5 ha and one 4.4 ha, which amount to only 8.9 ha of compensation habitat planned. The Appellant also submits that the Approval Holder did not provide thorough documentation demonstrating the suitability of the compensation locations, and neither of the Approval Holder’s experts has visited the compensation properties to evaluate them, or done their own calculations of their size. Further, the Appellant submits that Bobolink already uses one of the parcels as habitat, and highlights the concerns expressed by Mr. Carpentier that less than the entire parcels should be considered suitable habitat.

136The Appellant submits that the appropriate scale for assessing impacts to birds under s. 145.2.1(2)(b) of the EPA is on a local scale, rather than a population viability scale, and submits that the Tribunal should consider the cumulative impact of habitat loss caused by a number of renewable energy projects planned in the ORM.

137The Appellant submits that the combination of the loss of habitat, the construction of turbines, inadequate compensation habitat on top of the already declining populations of Bobolink and Eastern Meadowlark, taken together, will cause serious and irreversible harm to animal life. The Appellant requests that the REA be revoked.

Director’s Submissions

138The Director submits that the expert evidence in this appeal does not support the conclusion that serious and irreversible harm will result to birds from the operation of the Project. The Director asserts that Mr. Charlton and Dr. Kerlinger remained within their area of expertise and provided detailed pathways for their conclusions including references, assumptions and analyses, and as a result, their evidence and opinions should be given considerable weight by the Tribunal. In summary, the Director says, the Appellant has failed to establish that engaging in the Project in accordance with the REA will cause serious and irreversible harm to birds.

Approval Holder’s Submissions

139The Approval Holder’s position is that the Project will not cause serious and irreversible harm to Bobolink or Eastern Meadowlark, even without the added compensation habitat. Rather, the Approval Holder submits the compensation habitat provides a significant added benefit which will likely result in an increase in the number of Bobolink and Eastern Meadowlark in the Project Area.

140The Approval Holder submits that Mr. Carpentier initially raised concerns in his witness statement about the potential impact on Bobolink and Eastern Meadowlark generally throughout the Project Area, but in his oral testimony he limited his concerns to the areas surrounding turbines T1 and T2, and stated that he no longer has concerns relating to the areas around T3, T4 and T5. The Approval Holder therefore asks the Tribunal to disregard the Appellant’s submissions relating to T3.

141The Approval Holder submits that there will only be a small amount of marginal quality grassland habitat removed for the Project. T2 is located in tilled agricultural fields, which all experts agree provide zero habitat value for the SAR bird species. T1 is located in marginal habitat, it submits, as it is grazed pasture containing animals and goldenrod and milkweed.

142The Approval Holder submits that, given the dispersal and breeding ecology of Bobolink and Eastern Meadowlark, the appropriate geographical scope of population for purposes of the analysis here extends well beyond the borders of the Project Area, at least 15 km in all directions. The Approval Holder submits that, in any event, Dr. Kerlinger and Mr. Charlton both opined that there would not be any significant impact to either species even at the narrow geographic scale of the Project Area itself (although it submits there is no proper scientific basis to consider it so narrowly).

143The Approval Holder submits that the Bobolink and Eastern Meadowlark habitat in the Project Area is not unique. Active row crop fields and hay fields, it submits, are either unsuitable or of marginal quality for these bird species because they are subject to being tilled or mowed which destroys nests and kills most fledglings. The Approval Holder also notes the evidence that the population density of these species in the Project Area is average for the province.

144The Approval Holder submits that there will be low collision mortality at this Project, a point which Mr. Carpentier did not dispute in cross examination.

145The Approval Holder submits that any displacement risk to Bobolink and Eastern Meadowlark is “minimal and temporary”, since grassland birds have adapted to wind turbines and have continued to use hay and pasture fields that contain wind turbines.

146The Approval Holder points out that REA conditions A1 and J require that construction activities be restricted during the breeding season, which dramatically reduces and disturbance risk to the Bobolink and Eastern Meadowlark during construction.

147The Approval Holder submits that, under Regulation 242/08, the minimum compensation area must be equal to or larger than the impacted area, i.e., 5.9 ha. In this case, the Approval Holder has committed to an area 1.5 times the size of the impacted area, being 8.9 ha, which is adjacent to the Project Area. The Approval Holder submits this will directly contribute to the recovery goal for grassland bird species. This compensation habitat, it submits, will be larger in size and superior in quality to any habitat impacted by the Project, as it will be protected from mowing during the nesting season.

Findings on Issue 2(ii)

148Although Barn Swallow is a species at risk that was identified in the Project Area, the uncontested evidence is that the Project will not remove any Barn Swallow nesting habitat, and that only a small amount of foraging habitat will be impacted. The expert evidence before the Tribunal is that Barn Swallow foraging habitat is diverse and abundant, and not considered to be a factor limiting Barn Swallow recovery. For these reasons, the Tribunal finds that the Appellant has not established that the Project, operating in accordance with the REA, will cause serious and irreversible harm to Barn Swallow or its habitat.

149There is similarly no evidence that the Project will cause serious and irreversible harm to raptors or their habitat. While Mr. Carpentier had concerns that raptor passage in the area has not been adequately studied, the Appellants did not adduce evidence to support a finding there would be harm to raptors, taking into account the REA conditions generally mitigating risk to birds and limiting collision mortality.

150With respect to the Bobolink and Eastern Meadowlark, the Tribunal finds that the Appellant has not established that the Project will cause serious and irreversible harm to these SAR birds or their habitat, for the following reasons:

1. The current habitat in the Project Area is marginal as it is vulnerable to harmful farm practices;

2. Only Turbines 1 and 3 will impact Bobolink and Eastern Meadowlark habitat;

3. The Approval Holder has found compensation property adjacent to the Project area that will be protected from such farming practices;

4. The 8.9 ha grassland compensation habitat is larger than the 5.9 ha area that may be affected by the Project; and

5. The lease for the compensation property is for 21 years, which is the duration of the Project. Once the Project lifespan is over, the infrastructure is to be removed. There is no allegation the harmful impact to grassland bird species will continue once the infrastructure is removed.

Current Habitat Unprotected and Marginal

151Mr. Charlton explained that Stantec undertook a field assessment on May 6, 2015 to identify and delineate the current extent of Bobolink and Eastern Meadowlark habitat in the Project Area. Stantec conservatively concluded that 5.9 ha of Bobolink and Eastern Meadowlark habitat in the Project Area will be impacted, or potentially impacted.

152Mr. Charlton testified that Turbine 1 is located in a hay field, which could also be called pasture. The photos showed a donkey in the field. He testified there is an abundance of goldenrod, which is not ideal for Bobolink but nonetheless the field has some habitat potential. Turbine 2 is located in an active agricultural field, planted in soybeans when M.K. Ince did its field work, as well as beans and wheat historically. In Mr. Charlton’s opinion, there is no suitable grassland bird habitat south of turbine 2, although he agrees there may be some over 150 m to the west.

153Mr. Carpentier disagreed with Stantec’s estimate of impacted habitat. It is unclear to the Tribunal, however, how Mr. Carpentier came to his conclusion about the size of “impacted” habitat. While he initially estimated there would be 22 ha of impacted habitat, it later became clear this was a calculation of all areas he considered to be Bobolink and Eastern Meadowlark habitat in the Project Area, rather than habitat that might be impacted by the Project. In addition, Mr. Carpentier acknowledged that the area around turbines 3, 4 and 5 is not Bobolink or Eastern Meadowlark habitat. It is clear that the area consists primarily of agricultural fields which are subject to crop rotation, which may also have led to different “suitable habitat” calculations. A field that is grassland bird nesting habitat one year because it is in hay, for example, may no longer be habitat the next year because it is put into row crops.

154Given the ambiguities in Mr. Carpentier’s evidence on impacted habitat, the Tribunal prefers Mr. Charlton’s evidence respecting the potential area of grassland bird habitat impacted by the Project. While there was disagreement among the experts about whether larger amounts of land are currently being used by Bobolink and Eastern Meadowlark as habitat, there is no dispute about the footprint of the Project, and all the experts refer to the same studies regarding displacement impacts.

155Mr. Carpentier is of the view that Bobolink and Eastern Meadowlark exhibit avoidance behaviour within 100 m of a turbine. Dr. Kerlinger’s opinion is more nuanced, testifying that some, not all, Bobolinks and Meadowlarks exhibit this behaviour, between 75-100 m from a turbine. He also testified that the species have shown resilience, and tend to nest closer to the structures after a few years.

156The Approval Holder’s calculation of impacted habitat includes a 100 m area of potential displacement of Bobolink and Eastern Meadowlark. The Tribunal therefore finds that, even if the SAR birds are using more of the Project Area than estimated by the Approval Holder, the footprint is constant and the assumed impact area is relatively clear. The Tribunal therefore relies on the habitat calculations provided by Stantec. It is clear, therefore, that the size of the grassland compensation habitat is at least as large as the area of potential impact, and appears to be 1.5 times larger.

157None of the current Bobolink and Eastern Meadowlark habitat in the Project area enjoys protection from harmful farm practices. As all of the turbines in this Project are proposed on agricultural lands, all of the hayfields that qualify as Bobolink and Eastern Meadowlark habitat are marginal habitat, because any Bobolinks and Eastern Meadowlarks nesting on the ground are vulnerable to farming practices that are lethal to their offspring.

Compensation Habitat

158Section 10(1) of the ESA prohibits any person from damaging or destroying the habitat of any endangered or threatened species unless authorized to do so under the Act. Section 23.6(2) exempts a person from the s. 10(1) prohibition in respect of a construction activity that would affect 30 ha or less, provided that the conditions in s. 23.6(4) are satisfied. These conditions include a requirement to create and maintain compensation habitat in accordance with the Regulation, as well as the following additional requirements:

1. Avoid performing any part of the activity that is likely to damage or destroy the habitat between May 1 and July 31 of any year (s. 23.6(4)(5)(i));

2. Take reasonable steps to minimize adverse effect of the activity on Bobolink or Eastern Meadowlark, including routing access roads along existing fencerows or hedgerows (s. 23.6(4)(5)(ii));

3. Develop a Management Plan for the creation or enhancement of habitat for Bobolink and Eastern Meadowlark. Requirements for the habitat creation or enhancement include:

a. The habitat must be larger than the habitat being damaged or destroyed (s. 23.6(7)(1));

b. The habitat must be a minimum of 4 ha (s. 23.6(7)(2));

c. No portion of the habitat to be less than 200 m wide (s. 23.6(7)(3));

d. Habitat must consist of suitable vegetation for Bobolink and Eastern Meadowlark, including;

i. A minimum of 60 to 80 per cent of the habitat must be covered with at least three different grass species and any remaining part of the habitat must be covered with forbs or legumes (s. 23.6(8)(1)); and

ii. Among the grass species, at least one must grow greater than 50 centimetres high under normal growing conditions (s. 23.6(8)(2));

4. Habitat must be managed for Bobolink and Eastern Meadowlark, including:

a. No harvesting, mowing or cutting between April 1 and July 31 of any year (s. 23.6(9)(1)); and

b. For the first five years, take such actions that are necessary to maintain the grass, forb and legume species and remove woody vegetation and invasive species (s. 23.6(9)(3));

5. Monitoring the created or enhanced habitat by conducting at least three surveys in each of the first five years to determine if the species are in fact present and, if so, to assess fledgling success (s. 23.6(4)(7)); and

6. Prepare and maintain an annual record for the first five years including:

a. Steps taken to minimize adverse effects on Bobolink and Eastern Meadowlark;

b. Steps taken to create or enhance and manage habitat;

c. Photographs of the area of created or enhanced habitat that show the area prior to and after creation or enhancement; and

d. Results of the monitoring described above (s. 23.6(4)(8) and 23.6(10)).

159The Approval Holder has signed leases for two parcels of land that are adjacent to the Project site, one of 4.5 ha and the other of 4.4 ha, totalling 8.9 ha. The compensation habitat will be larger than the habitat that may be impacted by the Project.

160The Tribunal accepts that neither of the sites is currently protected from harmful farming practices during breeding season, such that even if some Bobolink and Eastern Meadowlark currently nest there, the parcels will be better habitat once the Habitat Management Plan is in place. Further, the requirements in s. 23.6(4) of the ESA apply to the Approval Holder, including the requirement to plant grasses that are preferred for Bobolink and Eastern Meadowlark habitat. The Tribunal accepts that these measures will result in improved habitat, as compared to what is currently on site, for these species.

161Based on the above findings, the Tribunal finds that the Appellant has not established that the Project, operating in accordance with the REA, will cause serious and irreversible harm to Bobolink or Eastern Meadowlark, or their habitat.

Conclusion on Issue 2

162In summary, based on all of the evidence before it, and given the findings set out above, the Tribunal finds that the Appellant has adduced insufficient evidence to establish that the Environment Test has been met.

Summary Conclusion

163Based on the findings above, the Tribunal finds that the Appellant has failed to adduce sufficient evidence to establish that the Project operating in accordance with its REA, will cause serious harm to human health, or that it will cause serious and irreversible harm to plant life, animal life or the natural environment.

DECISION

164The appeal by SR Opposition Corp. 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

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

Appendix 1 - Tribunal Reasons Relating to Appellant’s Reply Submissions

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Environmental Review Tribunal

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Appendix 1

Tribunal Reasons Relating to Appellant’s Reply Submissions

On November 30, 2015, the date agreed upon by the parties and ordered by the Tribunal, the Appellant filed its reply closing submissions in this matter. The submissions were 20 pages in length and contained what were referred to as, “primary” and “alternative” submissions. The Appellant requested that the Tribunal give the latter whatever weight it feels is appropriate.

The following day, counsel for the Approval Holder wrote to the Tribunal objecting to the Appellant’s reply submissions as being improper reply, setting out in detail its reasons for that position, and requesting that the Tribunal disregard the submissions. The Approval Holder also requested that the Tribunal confirm whether or not it would consider the submissions, as it would require an opportunity to respond, in turn, to the Appellant.

The Tribunal, through its Case Coordinator, requested a response from the Parties to the position taken by the Approval Holder, and submissions on the appropriateness of the reply submissions.

Counsel for the Director and for the Appellant each provided the Tribunal with brief submissions by way of emails. The Director agreed with the Approval Holder for the same reasons set out in the Approval Holder’s email, saying that “the entirety of the ‘reply’ is improper and must be disregarded by the Tribunal”… The Appellant asked simply that the Tribunal “give the Reply Submissions the weight it feels appropriate”.

On December 15, 2015, the Tribunal’s Case Coordinator communicated the Tribunal’s finding to the parties, that it would not consider the “reply and alternative submissions” of the Appellant, for reasons to follow. These are those reasons.

The Approval Holder’s position on the law, as detailed in its December 1, 2015 submissions, is summarized briefly below.

Reply is a narrow right, engaged to allow new arguments only where they could not reasonably have been raised by the moving party in the first instance. A moving party is not allowed in reply to either bolster its case by recasting and repeating arguments it has already made, or by introducing new arguments that could have been raised earlier. Those important restrictions are intended to prevent the unfairness of a moving party book-ending a respondent by having both the first word and the last word. Abuse of the mechanism of reply by a moving party to re-introduce/re-cast arguments it did introduce in the first instance, or introduce for the first time argument it could have raised in the first instance, undermines the most fundamental right of a respondent – the opportunity to respond. To allow that abuse would be a major process defect, resulting in profound unfairness to the respondents.

The Tribunal, having reviewed the Appellant’s reply submissions and considered the submissions of the Parties, agrees with the statement of law in this area and the characterization of the reply submissions as set out in the Approval Holder’s submissions.

In this case, there were numerous new arguments advanced in the reply submissions, e.g., the steep slope assessment issue (paragraphs 1-4). While in some cases the Appellant states it is responding to a particular paragraph in the Approval Holder or Director’s final submissions, the content of the paragraph does not, in fact, respond to the point made by the other party and invariably covers different material. In paragraphs 5 through 9, the Appellant repeats or recasts arguments that it has already made in its closing submissions relating to spills, drinking water impacts, and the impervious percentage footprint of the Project. The detailed discussion of Mr. Beer’s evidence at pages 8-13 of the reply submissions does not respond to the cited paragraph of the Approval Holder’s submissions. Pages 14 and 15 of the reply submissions discuss the suitability generally of the compensation habitat, already covered in the Appellant’s original submissions, and do not respond to the Approval Holder’s submissions. Similarly, the “reply” and “alternative” submissions on noise and health do not respond to submissions made by the Approval Holder, but attempt to exploit what is clearly a typographical error.

In summary, the Tribunal finds that the reply submissions are improper reply, and therefore will be disregarded.