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Slow & Steady wins in Turtle vs. Wind Turbines

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Blanding's Turtle winsPrecedent – Ontario Court of Appeal – Turtles vs. Wind Turbines

Toronto – April 20, 2015

The Ontario Court of Appeal has reversed a lower court ruling regarding a Renewal Energy Approval of the 9 turbine Ostrander Point industrial wind project. The decision reinstates the key initial finding of the Environmental Review Tribunal (ERT) that serious and irreversible harm to threatened Blanding’s Turtles will occur if the project operates as approved. “We’re very pleased. The court has ruled in favour of protecting the environment, which is what we’ve asked for throughout“ said Myrna Wood of the successful appellant Prince Edward County Field Naturalists. “The decision is undoubtedly important” said Eric Gillespie, its legal counsel. “This is the first renewable energy case to reach the Court of Appeal. The Court has supported our client’s fundamental concerns and affirmed a number of legal principles that clearly will be relevant to other appeals.” The question of remedy has been directed back to the ERT.

For further information contact Myrna Wood 613-476-1506 myrna@kos.com or Eric Gillespie 416-436-7473 (voice/text) egillespie@gillespielaw.ca

 

Ostrander Wind Developer Says Gates will Protect Turtles

From the Wellington Times

by Rick Conroy

The developer seeking to construct nine 50-storey industrial wind turbines at
Ostrander Point is now proposing to erect a series of gates on provincially
owned crown land—in a last ditch maneuver to persuade a provincial court to
overturn an Environmental Review Tribunal decision that took away the
developer’s permit to build the project in a landmark ruling issued earlier
this year.

LANDMARK DECISION

In July, after more than 40 days of hearings, the Tribunal revoked a Ministry
of Environment approval of the project in which Gilead Power Corporation
proposed to develop a nine-turbine wind project on Crown land on the shores of
South Marysburgh. The two member panel ruled that the project would cause
serious and irreversible harm to the Blanding’s turtles that reside in this
rare alvar habitat at Ostrander Point. The Tribunal concluded, too, that
measures proposed by the developer to lessen the impact of the development on the
turtles were untested and unlikely to be effective. Given that the Blanding’s
turtle is an endangered species, they decided the potential harm was too great,
and once inflicted could not be undone.

It was a precedent-setting decision— not since the provincial government had
enacted legislation to reduce the administrative and regulatory hurdles for
wind and solar energy developers had an environmental review tribunal revoked
an approval permit. Conservation groups and environmentalists rejoiced— as did
everyone else opposed to Ontario’s natural heritage being spoiled by 500-foot
towers of carbon and steel structures.

The developer appealed the Tribunal decision, along with the Ministry of
Environment, seeking to uphold the approval of the project.

THE APPEAL

Among other things, the developer and the MOE will argue that the Tribunal
exceeded its jurisdiction. They will argue that the Ministry of Natural
Resources had given the developer the ability to “kill, harm or harass” the
endangered species. And that the Tribunal lacked the authority to second guess
the provincial ministry.

Gilead Power has a lot riding on the appeal, scheduled to be heard in January
in Toronto. It is clearly not willing to risk the outcome of this project on
jurisdictional interpretation. Instead it is seeking to take away the issue
raised by the Tribunal— specifically the well-being of the creatures at the
centre of the Tribunal’s decision—the Blanding’s turtle. Once again, it has the
Ministry of Natural Resources on its side.

On January 20 the developer will seek to present new evidence to the appeal
hearing. Specifically it will ask the court to consider a plan to erect a
series of gates securing access to the road network it wants to build on Crown
land at Ostrander Point.

“Restricting public access to the access roads would also provide enhanced
protection for wildlife, including species at risk, from traffic mortality,”
wrote Mike Lord to the Ontario Ministry of Resources (MNR) in August.

In September a MNR official agreed it would issue a lease of the Crown land to
the developer to enable it to build the fence, pending the approval of the
project. The MNR also sought a “Project Access and Control Plan” for the access
roads. That plan calls for six double swing gates to be erected at key points,
one at the entrance and at five other locations where pre-existing trails
intersect with the proposed access road. The gates would be locked from May 1
to October 15. Gilead staff will monitor and enforce access restrictions.

Gilead staff will report monthly on issues of public motor vehicles bypassing
the gates.

Quoting from the Gilead access control plan: “Project staff will be trained on
how to answer questions from the public regarding the need for gated access on
the Project access roads.”

In its motion the developer will argue that it has taken these steps in order
to resolve the Tribunal’s “stated concern”. They will argue the Tribunal should
have given it the opportunity to address the issue, rather than revoke the
permit. And, that the provincial court should consider this new evidence to
satisfy “natural justice.”

Myrna Wood says the developer and the MOE have come far too late in the process
to present new evidence. Worse, she says, the developer and the MNR struck this
deal with MNR behind closed doors—without any public consultation about this
use of Crown Land.

She argues, too, that a few gates will not eliminate the threat the project
poses to the Blanding’s turtle’s habitat.

“Gilead’s emphasis on road mortality is an attempt to avoid the Tribunal’s main
concern, said Wood. “that is, the destruction of the whole habitat.”

Upping the ante, the developer has also asked the court to make the Prince
Edward County Field Naturalists pay the costs of making its motion should the
Field Naturalist oppose it.

Undeterred, Wood says Gilead’s and MOE’s intimidation tactics have not stopped
her organization so far, nor are they likely to now.

Victory for Preservation of Ostrander Point

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Blanding's Turtle winsSouth Marysburgh ON/July 9, 2013  The South Shore Conservancy congratulates the Prince Edward County Field Naturalists on the outstanding results of their appeal of an approval of the Ostrander Point wind project to the Ontario Environmental Review Tribunal. 

The Tribunal agreed with the Field Naturalists that this project would cause harm to the Blanding’s turtle, a turtle which is globally-endangered and threatened in Ontario. The Tribunal acknowledged that 5.4 kilometres of new roads constructed to accommodate the massive machinery needed to build and operate the nine 2.5 megawatt wind turbines would meet the test of serious and irreversible harm to Blanding’s turtles. The panel also considered that these roads would be permanently open to the public and thereby create on-going risks to the Blanding’s turtle in this fragile ecosystem.

The Conservancy is impressed by the Tribunals’ concern to prevent possible future harm to the Ostrander Point site.  As the Tribunal notes, the Ostrander Point Crown Land Block is identified by the Ministry of Natural Resources (MNR) as a candidate Area of Natural and Scientific Interest (ANSI) [15]. “If this area were a confirmed, rather than a candidate ANSI, it would be afforded further protections under the EPA. [610] The site “has simply not yet been designated as (a protected landform) by the MNR.” [612] “The evidence before the Tribunal raises the question of whether a wind project development will prevent a candidate ANSI from being considered as an ANSI in the future. The Tribunal has considered this possible future harm to the Site, due to removal of this opportunity for long-term protection.” [613]

The process to confirm the Prince Edward Point to Ostrander Point ANSI has been stalled since 2007, when the wind project at Ostrander Point was announced.   The process has been stalled long enough.  An opportunity now exists for long-term protection for Prince Edward County’s south shore – for the globally-significant Important Bird Area, the globally-rare alvar and the rare and at-risk species like Blanding’s turtle that are imperilled by wpd Canada Corporation’s 29-turbine wind project.

The Conservancy calls upon the Ontario Minister of Natural Resources to follow through on the recommendation to the MNR made over a decade ago to consider the Prince Edward Point to Ostrander Point a provincially significant ANSI.

The Conservancy urges the MNR to pursue the ANSI confirmation process and declare Prince Edward Point to Ostrander Point an ANSI.

Ostrander Point Appeal Fund

On December 20, 2012, the Ontario Ministry of Natural Resources approved nine wind turbines for Ostrander Point in Prince Edward County. The area has been described as “one of the worst possible places to construct a wind farm” (Ontario Nature). Successfully appealing the approval will save critical natural habitat from destruction and protect the endangered species, species at risk and rare ecosystems at Ostrander Point.

To learn more about Ostrander Point, click here

A project of Prince Edward County Field Naturalists

Endorsed by Nature Canada, Ontario Nature, Kingston Field Naturalists, Quinte Field Naturalists, the Audubon Society (New YorkState and United States) and the Royal Society for the Protection of Birds (United Kingdom)

blandings_turtle 

To donate to the Ostrander Point Appeal Fund click here

Ostrander Point Decision: Chance to enhance Ontario’s Green Energy Policies

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Prince Edward County Field Naturalists, Nature Canada, and Ontario Nature have repeatedly urged the Ontario Government to protect Ostrander Point, and reject a proposed industrial wind energy project there. As a final decision on this project from the Ontario Ministry of the Environment is pending, it’s a good time to restate the key arguments for preserving this special place, and why the Green Energy Act would suffer a serious blow to its credibility if the project is approved.

The Green Energy Act has been successful in attracting industry and converting some of Ontario’s electricity generation from coal to renewable sources. It’s helped to create jobs. This is very good news.
However, by opening all Crown Land to development, an important government responsibility has slipped between the cracks: the protection of wildlife habitat.

The most blatant and acute example of this is the proposed wind energy plant for Ostrander Point in Prince Edward County. Ostrander Point is a Candidate Area of Natural and Scientific Interest in the centre of the Prince Edward County (PEC) South Shore Important Bird Area (IBA). This IBA and the adjacent National Wildlife Area were designated globally significant under the congregatory (water fowl) species category and nationally significant under the threatened species category. Millions of birds migrate through the PEC South Shore in spring and fall — in even more dense concentrations than famed Point Pelee.

In other words, this area is a super highway for birds, bats and monarch butterflies – the worst place to consider building 150 metre high wind turbines.

To approve this project, the Ontario government would need to ignore its responsibilities for species at risk and international agreements such as the Migratory Bird Convention Act.

However, denying the project would send a positive message confirming the government’s commitment to protecting the environment, which is is one of the primary reasons for the Green Energy Policy. It would show the Act is being implemented with regard to wildlife and in a responsible way.

Nineteen Species at Risk are found at Ostrander Point. Fourteen Priority Species (birds that are declining rapidly) listed by Ontario Partners in Flight breed there. The continued ability of federally and provincially listed species at risk – Blanding`s Turtle (Threatened) and Whip-Poor-Will (Threatened) – to breed at Ostrander Point are seriously threatened by the construction of access roads and turbines.

Ostrander Point meets 11 criteria of Environment Canada`s definition of a site of “Very High Sensitivity” where turbines should not be sited. As EC Environmental Assessment Officer, Denise Fell has said: “This is one of the most important landfall sites in Ontario. Unique about this particular site is that birds are ascending and descending during migrations, whereas normally they migrate over the landscape in a broad front above the typical height of wind turbines. Since birds on migration in this area can therefore be found at tower height, and are typically very tired and stressed when descending, they may be more at risk of collision with wind turbines.”

Within the same flyway, just a little east of Ostrander Point, the TransAlta Wolfe Island wind plant is already in operation, and its casualty rate of 13.4 birds per turbine per year is about seven times the industry average in Canada, according to CANWEA.

What’s more, the Wolfe Island turbines are very selective in the birds that they kill. Casualties are mainly swallows, including the rapidly declining Tree Swallow (70 percent decline in last 40 years) and Purple Martin (95 percent decline in last 40 years), as well as birds of preys such as Red-tailed Hawks. It is possible that the wind farm has killed off all of the local population of this species. Bobolink, a recently listed Species at Risk that has declined 80 percent in the last 40 years, has also been disproportionately killed.

That project’s thresholds for mortality rates are at the highest level recorded at any large wind facility inNorth America. Gilead proposes “adaptive management” thresholds for Ostrander Point at the same level. In other words, the highest casualty rate is the bar under which no mitigation is required.

Not only will the Gilead Project destroy two-thirds of the site’s significant wildlife habitat, it will be in place for 25-50 years, threatening the lives of birds and bats migrating through spring and fall, and permanently displace species that breed at Ostrander Point. Gilead states that it is a favourable site for their development because it “is in a relatively isolated part” of the County. This isolation from human use has created its value as wildlife habitat.

The decline of most species is primarily due to human encroachment on habitat but also exacerbated by the effects of climate change. All the more reason to preserve this site, which has evolved over millennia as a crucial staging area for neotropical migrants. The nearby Prince Edward Point Bird Observatory records more birds than any other migration monitoring station inCanada.

The government’s Wind Atlas shows that the available wind is no higher at Ostrander Point than at hundreds of other locations. Approval of the Ostrander Point project will pave the way for the addition of another 29 turbines by WPD-Canada White Pines. All the projects proposed to date could total 60 turbines in the South Shore IBA, many on Provincial lands, and many on the narrow bird funnel known as the Long Point peninsula on which Ostrander point and Prince Edward Point are located.

Gilead claims that the project has been “designed to be sensitive to the wildlife of the area”.

But they have applied for permits to kill, harm and destroy the habitat of two endangered species: Blanding’s Turtle and Whip-poor-will. Gilead’s “most aggressive mitigation measures in North America to protect local and migrating species” consist of:

Blanding’s Turtle – buying part of its significant wetland while destroying part;

Whip-poor-will – hiring a graduate student to study its declining use of the habitat;

counting mortality numbers of migrating birds and bats for 3 years.

Developing wind energy in Canada, coupled with conservation measures to reduce all forms of fossil fuel consumption, is a good thing. But wind energy must not be produced at the expense of wildlife.

Wind turbines and wind farms should not be located in places – like Ostrander Point – where birds congregate, migrate and breed. All wind farm proposals should be subject to an environmental assessment prior to development in order to evaluate their impact on all wildlife, including birds and bats. And regulators such as the provincial and territorial governments should adopt policies and guidelines that exclude wind energy projects from Important Bird Areas and other areas that are known to be of importance to birds and bats.

Let’s get wind power right in Ontario!

Ted Cheskey

 

 

Sign our Save the Blanding’s Turtle petition

      www.savetheblandingsturtle.com               

The beautiful Blanding’s Turtle is an Endangered Species that happens to still have a wonderfully safe, natural home at Ostrander Point on the south shore of Prince Edward County. However, their home and mere survival are now at serious risk.

 They need your help to protect them from a permit to KILL, HARM and HARASS them and to DESTROY their habitat and it’s free!

 Just click on the web address and follow the very simple instructions.  It’s easy as 1,2,3! Please support this important cause.                                               
                                                  
DEADLINE is Sunday Feb 19 2012!

Expert says Ostrander Point Blanding’s turtle habitat now damaged

Comments on habit disturbance activities (UXO removal site preparation) on Ostrander Point August/September 2011 by Frederic Beaudry, Ph.D. Assistant Professor of Environmental Science,  Alfred University, Alfred, New York, September 8, 2011

The original Word document appears below.

 “The following comments refer to activities observed on the site of a wind farm proposed by Gilead Power Corporation on Ostrander Point,Ontario. It appears that site preparation for unexploded ordnance removal has been conducted in the last week of August 2011. The activities documented on photos show site preparation consisting in clearing land of grass, forbs, shrubs and small trees using a Brushcat rotary mower pushed by a Bobcat skid steer.

These activities are of serious concern for the viability and persistence of the local population of Blanding’s turtles. Two main threat mechanisms were at play because of those activities:

 1)     Direct damage to Blanding’s turtle habitat is evident from the photographs and the maps situating the mowing activities. The mowing occurred in areas turtles use to conduct upland movements between foraging and nesting sites. More importantly, without proper prior wetland delineation procedures, damage may have occurred in spring / early summer foraging areas that would most likely be dry at this point. Damage in these foraging areas would affect their suitability for pond-breeding amphibians, a significant source of food for Blanding’s turtles. Finally, the use of gas- or diesel-powered vehicles in turtle habitat is risky, as highly polluting fuel, oils or lubricants can easily leak into the environment.

 2)     A greater threat to the Blanding’s turtle population is the risk of injuries or mortality from the mower.  At this time of year, the air temperature is still high enough to allow for relatively frequent overland movements as adult turtles seek new foraging areas, search for deeper waters as wetlands dry out, or make movements back towards the wetlands where they will overwinter. The mower can inflict mortal wounds to the turtles that are located upland, a threat that has long been recognized and usually associated with agricultural mowing equipment such as disk mowers. This risk is of great concern as Blanding’s turtle populations are extremely vulnerable to any additional mortality of adults. Their delayed sexual maturity, low annual reproductive output, and low egg and hatchling survival rates need to be offset by a high longevity. Because of this the adults’ annual survival rate needs to be between 94 and 96%; the loss of just a few individual adults, as little as one or two in small populations, is enough to drive local extinctions. For this reason the operation of motor vehicles or machinery that can kill adults is the greatest threat to their persistence.”

Frederic Beaudry, Ph.D.

Assistant Professor of Environmental Science

Alfred University

Alfred, New York

beaudry_comments_on_UXO_activities