From: APAI To: Cc: Subject: Date: Attachments: Closing ...

From APAITo Jeff Norman davidmitchellpenneconcomCc michaeloreillypenneconcom jimstewartalgonquinpowercom Homer Lensink Robert MaddocksSubject Fwd APAIs Top Eleven Recommendations on the Operations Plan for the Amherst Island Wind ProjectDate May-16-17 72947 AMAttachments Closing Submissions of the Approval Holderpdf

133560078 Design-20160317-LAB2-2-2pdf

Dear Mr Mitchell and Mr Norman

Please provide a substantive response to APAIs recommendations for changes to the draftWindlectric Operations Plan so that comments can be filed with Loyalist Township prior toMay 23 2017

Thank you

APAI

---------- Forwarded message ----------From APAI ltprotectaikosnetgtDate Sat Apr 22 2017 at 1246 PMSubject APAIs Top Eleven Recommendations on the Operations Plan for the Amherst IslandWind ProjectTo Jeff Norman ltjeffnormanalgonquinpowercomgt davidmitchellpenneconcomCc Robert Maddocks ltbmaddocksloyalistcagt dashleyloyalistcachrisraffaelontarioca jimstewartalgonquinpowercomhomerlensinkalgonquinpowerca michaeloreillypenneconcomsarahconstantinepenneconcom

Without Prejudice

Dear Mr Norman and Mr Mitchell

Thank you for bringing senior representatives of the team to Amherst Island on Thursday evening and listening attentively The facilitator did an excellent job

The preferred option of the Association to Protect Amherst Island (APAI) is to preserve the rich cultural and natural heritageof the Island ie no turbines The following comments are made in that context

Windlectric Pennecon and Algonquin could ameliorate longstanding residents issues by not only listening but acting onresidents concerns Its time for some symbolic and meaningful good neighbour relationship building

APAIs top eleven recommendations for changes to the Windlectric Operations Plan dated March 27 2017 in no particularorder are

1 Resolve the issue of municipal road allowances and forced roads by conducting legal title searches of the dozen or soaffected properties (Front Road Third Concession and South Shore Road) and develop the haul and turbine routes andcollector line installation to respect property ownership The issue will not go away MTO legal boundariescompliancestandards have no relevance to this project Only legal title searches and related mapping are acceptable to beginconversations with affected owners

2 Implement a groundwater management plan developed by an independent consultant (not Stantec) and with residentspermission test water quality and rate of flow to establish a baseline for all dugdrilled wells prior to further construction

ERT Case No 15-084

ENVIRONMENTAL REVIEW TRIBUNAL

IN THE MATTER OF an appeal by Association for the Protection of AmherstIsland filed September 8 2015 for a hearing before the Environmental ReviewTribunal pursuant to section 1421 of the Environmental Protection Act RSO1990 c E 19 as amended with respect to Renewable Energy Approval No 7123-9W9NH2 issued by the Director Ministry of the Environment and Climate Changeon August 24 2015 to Windlectric Inc under section 475 of the EnvironmentalProtection Act regarding a Class 4 wind facility consisting of 26 wind turbinegenerators 345 KV overhead andor below ground collector lines and 115 kVtransmission line with a total name place capacity of 743 megawatts (MW) locatedin Loyalist Township within the County of Lennox and Addington Ontario

CLOSING SUBMISSIONS OF THE APPROVAL HOLDERWINDLECTRIC INC

Torys LLP79 Wellington St W 30th FloorBox 270 TD CentreToronto ON M5K 1N2Fax 4168657380

Dennis MahonyTel 4168658214

John TerryTel 4168658245

Arlen SternbergTel 4168658203

Lawyers for the Approval HolderWindlectric Inc

i

TABLE OF CONTENTS

I OVERVIEW 1

II THE PROJECT 8

III THE LEGAL TEST AND GOVERNING PRINCIPLES 9

IV THE HEALTH APPEAL 12

V THE ENVIRONMENTAL APPEAL 33

A Overview 33

B Bobolink and Owls 33

C Bats 69

D Hydrogeology and Hydrology Evidence 88

E Turtles 117

VI ORDER REQUESTED 182

APPENDIX A - EXHIBIT 75E2 SATELLITE IMAGE 1

APPENDIX B - SPECIES AT RISK REPORT EXTRACT 1

APPENDIX C - BOBOLINK FATALITY ndash ADJUSTMENT FACTORS 1

APPENDIX D - EXCERPT OF APPROVAL HOLDERrsquoS MOTION RECORD TOEXCLUDE APPELLANTrsquoS ADDITIONAL WITNESS STATEMENTS 1

APPENDIX E - SUMMARY OF BLANDINGrsquoS TURTLE MITIGATION MEASURES 1

ERT Case No 15-084




I OVERVIEW

1 The Director Ministry of the Environment and Climate Change (the ldquoMOECCrdquo) issued

Renewable Energy Approval No 7123-9W9NH2 (the ldquoREArdquo) to Windlectric Inc (the

ldquoApproval Holderrdquo) for a Class 4 wind facility consisting of 26 wind turbines on Amherst Island

(the ldquoProjectrdquo) APAI appealed pursuant to section 1421 of the Environmental Protection Act

The issues on this appeal are

(a) whether engaging in the Project in accordance with the REA will cause serious

harm to human health and

(b) 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 with respect to

(i) Bobolink or Owls

(ii) Little Brown Myotis or Northern Myotis or

(iii) Blandingrsquos Turtle

- 2 -

2 In our respectful submission the Appellant has not met its onus of proving that engaging

in the Project in accordance with the REA will cause either serious harm to human health or

serious and irreversible harm to plant life animal life or the natural environment The weight of

the evidence establishes that the Project will not cause any such harm

Health Appeal

3 The health appeal advanced by the Appellant is a weak variant of the same health appeal

that has been brought before and dismissed by the Tribunal dozens of times The appeal is rooted

in the unsubstantiated generic allegation that sound generated by all wind farms causes serious

harm to human health and the Project will therefore produce those results in the surrounding

community

4 The Appellant relied on a single witness ndash Dr Carl Phillips He argued that all of the past

decisions of the Tribunal on this topic were based on a fundamental misunderstanding of the

science and that the internet and media reports about individual health complaints respecting

wind turbines are sufficient to establish epidemiologically that wind turbines will cause disease

in nearby residents On the record before the Tribunal that assertion is wholly unjustified and in

any event Dr Philliprsquos generic critique is not sufficiently project-specific to discharge the

Appellantrsquos burden in this case

5 In addition to that generic health claim a lay participant Amy Caughey expressed her

concerns about the potential harm that she thought might be caused by the sound and air

emissions from the temporary concrete batch plant approved as part of the Project The Approval

Holder responded through fact and expert witnesses to establish that impacts to human health

would not reasonably be expected from the Project

Environmental Appeal

6 The Appellant focused its environmental appeal on concerns with respect to bats (Little

Brown Myotis and Northern Myotis) and Blandingrsquos Turtle Concerns about Bobolinks were

advanced by the Kingston Field Naturalists (ldquoKFNrdquo) and concerns about owls were advanced by

the Cataraqui Regional Conservation Authority (ldquoCRCArdquo)

- 3 -

Bobolink and Owls

7 Mr Evans ndash an acoustic monitoring expert who has no experience in conducting fatality

studies ndash argued on behalf of KFN that the Project could result in Bobolink mortality of

approximately 32 individuals per year out of an Amherst Island population he (under) estimated

to be approximately 2800 He speculated in his witness statement that this level of harm would

be serious and irreversible despite the admission that he has no expertise in population biology

or ecology and without any consideration of the Bobolink habitat compensation required of the

Project He was supported in reply by the Appellantrsquos witness Dr Smallwood who applied his

own new and unconventional adjustment factors to estimate that 61 Bobolink would be at risk

annually

8 The Approval Holder called three expert witnesses each with considerable Bobolink

experience They explained that Mr Evans had substantially underestimated the annual

population on Amherst Island ndash which is approximately 20100 birds ndash by making two

fundamental errors (1) using an inaccurate and unusually low density figure of 04 adult

breeding pairs of Bobolink per hectare rather than the 18 adult breeding pairs per hectare

derived from Stantecrsquos island wide field studies and (2) forgetting to include fledglings (new

born birds) The responding witnesses estimated the annual Bobolink mortality risk would be

approximately 29 before considering the required compensation measures

9 Notably the responding experts concluded that whether they used Mr Evansrsquo fatality

estimate of 324 Bobolink per year (0016 of the properly estimated population)

Dr Smallwoodrsquos unconventionally derived 61 (0030) or their own estimate of 291 fatalities

per year (0014) the resulting harm to the Bobolink on the island would not be serious let

alone irreversible That conclusion was based in part on the fact that Bobolink have a very high

natural productivity All three opined further that even if they used Dr Smallwoodrsquos inflated

fatality estimate (61) and Mr Evans fundamentally flawed population estimate (2800) the

resulting 22 annual loss would not reasonably be expected to result in serious and irreversible

harm ndash it would be an impact from which the Bobolink population on Amherst Island would

recover

- 4 -

10 When the benefits of the compensation habitat required of the Project are taken into

account ndash an annual net addition of approximately 187 Bobolinks ndash not only would there be no

serious harm there would in fact be a net benefit to the islandrsquos Bobolink population

11 Mr Beaubiah ndash a biologist without bird expertise ndash testified on behalf of the CRCA on

owls and owl habitat He did not allege serious and irreversible harm to owls or owl habitat

instead focusing on what he perceived to be gaps in the available information and concluding

that the Approval Holder could not prove that serious and irreversible harm would not occur

Dr Smallwood ndash who has very little experience with owls ndash spent a small fraction of his reply on

owls and owl habitat Mr Taylor and Dr Kerlinger each of whom have extensive owl

experience explained why these relatively low flying adaptable birds would not reasonably be

expected to be at risk from the modern well-spaced turbines at the Project They drew strong

empirical support from the fact that none of the post construction wind farm fatality monitoring

studies done for 33 wind farms in Ontario has ever recorded an owl fatality That statistic

included the years of post-construction fatality monitoring done at nearby Wolfe Island Notably

Dr Smallwood did not identify the particular species of owls on the island he said could be

harmed nor did he calculate a fatality estimate let alone make any effort to assess the potential

impact relative to the local population of owls in general or any species in particular

Little Brown Myotis and Northern Myotis

12 In its Closing Submissions the Appellant appears to be trying to track the bats analysis

from the Tribunalrsquos recent Hirsch decision without alluding to the materially different evidence

in this proceeding

bull The turbines and access roads at this Amherst Island Project would be in agricultural

grasslands that are not bat habitat (including for foraging) ndash these grasslands are not

the kind of landscape where the two species of bats at issue in this proceeding (Little

Brown Myotis and Northern Myotis) would be expected to be found unlike the

prime foraging habitat (forest edges and larger wetlands) that are abundant

throughout the White Pines site

bull Maternity roost habitat and hibernacula were specifically investigated at Amherst

before the REA application was filed and potential hibernacula sites were

- 5 -

investigated again during this proceeding and it was confirmed in both cases that

there is no such habitat

bull Unlike in Hirsch acoustic surveys (done by Mr Thorne) were part of the evidence in

this case and they did not confirm a significant presence of myotis on the island

bull Because these bats are not expected to have any material presence at the Project

Location and given their ecology there is unlikely to be any bat mortality ndash an

expectation supported by expert evidence including detailed consideration of the

results of the Wolfe Island monitoring program that was before this Tribunal but not

before the Hirsch panel ndash at Wolfe Island there were no (zero) Little Brown or

Northern Myotis fatalities in the last three years of monitoring and

bull Unlike in Hirsch the Operation Mitigation Plan that is being implemented as a

precautionary measure for the Amherst Project is considerably more protective and

does in fact require curtailment for all the turbines during the entirety of the bat

active season right from the outset of operations

13 In light of those significant differences the record before the Tribunal is not only

insufficient to discharge the Appellantrsquos statutory burden it demonstrates that the Project is not

expected to harm the two bat species at issue

Blandingrsquos Turtle

14 The Appellant has planned for years (going back at least to the summer of 2013 when the

Ostrander decision was released) to try to rely on Blandingrsquos Turtle as a basis to challenge this

Project It organized a large local team to search for and document any Blandingrsquos Turtle

sightings The Appellant was well aware that evidence (not mere assertions) would be necessary

to meet its burden to prove that the requisite harm will occur

15 The Appellant did not however retain any expert (or anyone at all) to conduct any

surveys to assess the habitat on the island Instead it now relies in its Closing submissions on

(a) a misconception that all ldquoagriculturalrdquo lands are suitable Blandingrsquos habitat when

the uncontradicted evidence is that the type of agricultural lands that cover the

- 6 -

Project site namely grasslands (hay and pasture fields) are not suitable

Blandingrsquos habitat

(b) its legal counselrsquos interpretation of Stantec land classification surveys

erroneously positing that anything defined as a ldquowetlandrdquo for ELC purposes

equals Blandingrsquos Turtle habitat which is not the case as explained by the

experts and

(c) the unsuccessful critique by a witness without turtle expertise (Mr Stanfield) of

Stantecrsquos water body assessment review also evidently based in part on the

flawed premise that any lsquowater bodyrsquo would automatically be suitable Blandingrsquos

Turtle Habitat

16 Against this the Tribunal has strong expert opinion that the Project Location ndash including

in particular the hay and pasture fields in which the turbines and access roads will be located ndash is

not suitable Blandingrsquos Turtle habitat The evidence comes from Stantec who conducted

extensive surveys over 5 years in the Project Location (including as recently as last year) the

concurring opinion of one of Canadarsquos foremost Blandingrsquos Turtle expert Dr Brooks the

concurring opinion of turtle expert Dr Hasler and the concurring opinion of the Ontariorsquos

governmentrsquos senior Blandingrsquos Turtle expert Mr Crowley

17 In terms of where on the island Blandingrsquos Turtles are located Dr Brooks Dr Hasler

Mr Crowley and Andrew Taylor all testified that they are mainly expected to be located in and

close to the coastal marsh wetlands at the Southwest end of the island outside the Project

Location Those areas represent good Blandingrsquos Turtle habitat including nesting habitat The

Appellant having chosen not to retain its experts to conduct any turtle surveys or population

assessment decided to use their ldquocitizen sciencerdquo approach While the Respondentsrsquo experts

(including Mr Crowley) all cautioned against over-reliance on that information what it showed

overall is that Blandingrsquos Turtles were principally sighted in proximity to the coastal marsh

wetlands ndash where they would be expected to be The sightings also show that the occasional

turtle wanders a further distance beyond these resident wetland areas These sightings do not

indicate that Blandingrsquos Turtles are likely to be found in the Project Location and certainly no

regular presence would be expected The Tribunal also heard from many of the owners of the

- 7 -

grasslands within the Project Location where turbines and access roads will be located None of

them has ever seen a Blandingrsquos Turtle on their property

18 In terms of risk of harm the evidence shows that the risk of any road mortality as a result

of the construction or operation of the Project is very low It is unlikely there will be any

mortality on the access roads ndash which are all in privately owned farm fields that will be closed to

the public and will only get infrequent use ndash or on the existing public roads that will be used for

the Project The current risk on public roads is low and will remain that way A majority of the

roads including those in proximity to the coastal marsh wetlands will not be used for the Project

and will not be upgraded On the remaining roads the modifications will be minor and

temporary There are in any event mitigation measures in place to ensure the protection of

turtles including that construction of the Project will mostly be occurring outside the turtle

active season And although not a significant focus of the Appellantrsquos evidence nest predation is

not a material threat to Blandingrsquos Turtle population viability and there is no reasonable

expectation of any increase to that risk as a consequence of the Project

19 The neighbouring Wolfe Island project is a comparable project in respect of Blandingrsquos

Turtle and thus a good predictor of risk ndash no harm to Blandingrsquos Turtle has resulted from that

project

Organization of These Submissions

20 In these submissions we have addressed the substantive issues in the same order as they

are addressed in the Appellantrsquos Closing Submissions The various sections are tabbed and are

stand-alone sections that can be read in any order

- 8 -

II THE PROJECT

21 The approved location of the Project is Amherst Island one of the largest islands in the

Great Lakes measuring approximately 66 square kilometres in size (16 kilometres long and over

seven kilometers wide at its widest point) The once forested landscape was substantially cleared

for commercial farming in the late 18th and 19th centuries and is now predominantly

agricultural grasslands with large hay farming cattle and sheep grazing operations There is also

a quarry on the north eastern side of the island Exhibit 75E2 from the Proceeding shows the

islandrsquos predominantly agricultural landscape Appendix A is a reduced copy of the same image

Witness Statement of Alex Tsopelas (November 25 2015) (ldquoTsopelasWSrdquo) para 12-15

22 The Projectrsquos turbines and access roads will be located on private agricultural grasslands

(hay and pasture)

Tsopelas WS para 8 Witness Statement of Andrew Taylor(November 25 2015) (ldquoAndrew Taylor WSrdquo) para 49

23 The Project has been through an extensive public consultation process and there are

many islanders that support it approximately 100 of whom were directly represented at the

hearing through Citizenrsquos of Amherst Island for Renewable Energy (CAIRE)

Tsopelas WS paras 2-22 Witness Statement of Eric Welbanks(January 31 2016) (ldquoWelbanks WSrdquo) pp 1-3

- 9 -

III THE LEGAL TEST AND GOVERNING PRINCIPLES

The Environmental Protection Act

24 The relevant provisions of the Environmental Protection Act (ldquoEPArdquo) are well known to

the Tribunal

25 Section 1421(1) of the EPA sets out the right of any person resident in Ontario to bring a

REA appeal on grounds of either serious harm to human health or serious and irreversible harm

to plant life animal life or the natural environment

Hearing re renewable energy approval

1421(1) This section applies to a person resident in Ontario whois not entitled under section 139 to require a hearing by theTribunal in respect of a decision made by the Director undersection 475

Same

(2) A person mentioned in subsection (1) may by written noticeserved upon the Director and the Tribunal within 15 days after aday prescribed by the regulations require a hearing by the Tribunalin respect of a decision made by the Director under clause475(1)(a) or subsection 475(2) or (3)

Grounds for hearing

(3) A person may require a hearing under subsection (2) only onthe grounds that engaging in the renewable energy project inaccordance 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 thenatural environment

EPA s 1421 BOA Tab 1

26 Under s 14521(3) of the EPA the person who requested the hearing ndash ie the Appellant

ndash bears the onus of proving that engaging in the Project in accordance with the REA will cause

serious harm to human health or serious and irreversible harm to plant life animal life or the

natural environment Applicable principles in respect of the legal test which have been

established by prior decisions of this Tribunal include the following

- 10 -

bull The appellant must prove that the wind project ldquowill causerdquo the requisite harm on

the civil standard of a balance of probabilities

bull The Director and Approval Holder are not required to disprove harm

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

bull The appellant must show causation ie that the alleged effects are being caused

by the Project

bull In its analysis the Tribunal must assume that the Project will operate in

accordance with the REA

EPA s 14521(3) BOA Tab 1Monture v Ontario (Ministry of the Environment) [2012] OERTDNo 50 (Monture 1) para 70 BOA Tab 2Monture v Director Ministry of the Environment [2012] OERTDNo 69 (Monture 2) para 31 BOA Tab 3Erickson v Director Ministry of the Environment [2011] OERTDNo 29 (ldquoEricksonrdquo) paras 521 595 629 BOA Tab 4

27 As the Tribunal has also emphasized in past decisions s 1421(3) requires the Appellant

to prove that the Project ldquowill causerdquo the requisite harm As stated in the Monture 1 decision

evidence that ldquopredominantly raise[s] questions and expressions of concern regarding the

potential for harm as opposed to the evidence that harm will occurrdquo does not meet the test

(emphasis in original)

Monture 1 para 70 BOA Tab 2Monture 2 para 31 BOA Tab 2Wrightman v Director Ministry of the Environment (2013) ERTCase Nos 13-102 to 13-104 (ldquoWrightmanrdquo) para 152 BOA Tab 5Haldimand Wind Concerns v Ontario (Ministry of the Environment)[2013] OERTD No 12 para 20 BOA Tab 6

28 In respect of causation it is the particular wind project at issue that must be found to

cause the harm in order for the test to be met Therefore the Appellant must meet the legal test

for causation which requires the Appellant to prove that the alleged serious harm alleged would

not occur but for this Project

Erickson paras 629-631 BOA Tab 4Clements v Clements [2012] SCJ No 32 para 8 BOA Tab 7

- 11 -

Lambton (County) v Director Ministry of the Environment (ERTCase Nos 14-065-14-067) (March 4 2015) paras 134-136 BOATab 8

29 In respect of the environmental grounds of appeal the statute is clear that the Appellant

must prove that the Project will cause harm that is both serious and irreversible Serious harm is

not sufficient the serious harm must also be such that it is not capable of being reversed In the

Ontario Divisional Courtrsquos decision in Ostrander the Court emphasized the importance of the

distinction between these two elements of the test and how the Appellant must meet both of

them The Ontario Court of Appeal upheld this saying that in terms of harm with respect to

serious and irreversible the ldquotwo factors address very different issuesrdquo

EPA s 14521(2) BOA Tab 1Prince Edward County Field Naturalists v Ostrander Point GP[2014] ONSC No 974 para 39 (Div Ct) revrsquod 2015 ONCA 269(ldquoOstranderrdquo) at para 47 BOA Tab 9A

tporfido
Text Box
HEALTH TAB13

- 12 -

IV THE HEALTH APPEAL

Overview

30 The Appellant has fallen well short of meeting its onus of proving on a balance of

probabilities that proceeding with the Project in accordance with the REA will cause serious

harm to human health Neither the evidence submitted by the Appellant nor the concerns raised

by the participant Amy Caughey establish that the Project will result in any harm much less

serious harm to health

31 The Appellant relies on the evidence of Dr Carl Phillips a public health expert ldquowith

knowledge of epidemiologyrdquo who argues that individual health complaints relating to wind

turbines reported mainly in the media and the internet should be regarded as ldquocase-crossover

studiesrdquo and establish that wind turbines are causing health effects in nearby residents In

response the Approval Holder relies on the evidence of Dr Kenneth Mundt an expert

epidemiologist and Dr Robert McCunney a medical doctor with expertise in health

implications of noise exposure both of whose testimony has been accepted by this Tribunal on

many previous occasions As described below their evidence confirms that individual

complaints about wind turbines are not studies at all let alone case crossover studies and cannot

be relied on to determine causality They also confirm that based on their review of the scientific

literature the Project when operated in accordance with the REA will not cause serious harm to

human health

32 The Tribunal also heard from a participant Ms Caughey (a lay witness) who raised

concerns about potential health risks associated with emissions from the temporary concrete

batch plant proposed to be used for the Projectrsquos construction Ms Caughey also raised concerns

that the Approval Holder did not obtain an Environmental Compliance Approval (ECA) for the

batch plant The record before the Tribunal demonstrates that the operation of the batch plant

will not cause harm to human health that the batch plant has obtained an ECA and that it has

been subject to the requirements of both ECA and REA approval processes

33 In light of this evidence there is no basis for the Tribunal to depart from the finding it

first made in Erickson v Director and that it has reached in every subsequent health appeal ndash that

- 13 -

the evidence does not establish that the Project as approved will cause serious harm to human

health

Erickson para 871 BOA Tab 4

Expert Health Evidence

34 As indicated above the Appellantrsquos expert Dr Phillips testified that reports primarily in

the media and the internet about individual health complaints relating to wind turbines should be

considered case crossover studies and provide overwhelming epidemiological evidence that

wind turbines are causing disease in nearby residents His evidence was contradicted by

Drs Mundt and McCunney who stated that these reports are not case crossover studies and

cannot be relied on to prove causation Drs Mundt and McCunney also concluded based on

their review of the scientific literature that the Project operated in accordance with the REA

(which it must be) will not cause serious harm to human health While Dr Phillips has expertise

in public health Dr Mundt an epidemiologist and Dr McCunney a medical doctor who

teaches epidemiology are better qualified than Dr Phillips to opine on these issues As such

Drs Mundt and McCunneyrsquos evidence should be preferred over that of Dr Phillips

35 Dr Carl Phillips has a doctorate in public policy He was qualified by the Tribunal as an

expert ldquoin public health with knowledge of epidemiology and related health sciences including

scientific epistemology (the study of knowledge) and methodologyrdquo He is currently the Chief

Scientific Officer for the Consumer Advocates for Smoke-Free Alternatives Association

Although he wrote an article in 2011 about the health effects of wind turbines in a publication

called the Bulletin on Science and Technology he writes primarily about issues relating to

smokeless tobacco and to tobacco harm reduction

Witness Statement of Carl V Phillips (October 26 2015) (ldquoPhillipsWSrdquo) pp 1-2 Phillips CV Phillips Testimony

36 Dr Kenneth Mundt is an epidemiologist who has worked in that field for nearly 30

years He is an Adjunct Professor in the Department of Epidemiology at the University of North

Carolina at Chapel Hill an Adjunct Associate Professor in the Department of Biostatics and

Epidemiology and Chair of the Deanrsquos Advisory Board at the University of Massachusetts and a

- 14 -

Principal in the Environment and Health unit at Ramboslashll formerly ENVIRON International

Corporation

Witness Statement of Kenneth Mundt (November 25 2015) (ldquoMundtWSrdquo) paras 2 5-6 Mundt Testimony

37 Dr Mundtrsquos experience includes designing conducting interpreting and publishing

epidemiological research studies critically reviewing and synthesizing the published

epidemiological and public health literature to identify causes of human health effects graduate

level training of epidemiologists and physicians including classroom teaching advising and

chairing of Epidemiology Masterrsquos and Doctoral Committees and serving in epidemiological

advisory review and editorial capacities at the local national and international levels Dr Mundt

is an editor for several peer-reviewed scientific journals as well as a peer reviewer for those and

other medical and health journals Dr Mundt has testified in numerous ERT proceedings at

which he has been qualified as he was in this case as ldquoan expert epidemiologistrdquo

Mundt WS paras 7-10 Mundt Testimony

38 Dr Robert McCunney is a medical doctor board certified in occupational and

environmental medicine a research scientist at the Massachusetts Institute of Technology (MIT)

Department of Biological Engineering and a staff physician in occupationalenvironmental

medicine at Brigham and Womenrsquos Hospital in Boston For the past 34 years Dr McCunney has

practiced occupational and environmental medicine which has involved clinical research and

educational work He has been board certified since 1982 by the American Board of Preventive

Medicine in Occupational and Environmental Medicine Dr McCunney has an active clinical

practice in Boston where he evaluates and treats people exposed to potential occupational and

environmental hazards At MIT where he is a research scientist Dr McCunney conducts

environmental and occupational medical research and also co-teaches a course in epidemiology

He also regularly lectures at the Harvard School of Public Health on the subject of noise and

hearing

Witness Statement of Robert McCunney (November 25 2015)(ldquoMcCunney WSrdquo) paras 2-3 McCunney Testimony

39 Dr McCunney has published two comprehensive reviews of the peer-reviewed scientific

literature with respect to wind turbines and human health ndash Wind Turbine Sound and Health

- 15 -

Effects An Expert Panel Review (Colby et al 2009) and Wind Turbines and Health A Critical

Review of the Scientific Literature (McCunney et al 2014) (on which Dr Mundt is also a co-

author) Dr McCunney has testified in numerous ERT proceedings at which he has been

qualified as he was in this case as ldquoa medical doctor specializing in occupational and

environmental medicine with particular expertise in health implications of noise exposurerdquo

McCunney WS paras 4-6 10 McCunney Testimony

40 The Appellant in its Closing Submissions suggested that the 2014 literature review that

Drs McCunney and Mundt co-authored and by implication their evidence as a whole is

somehow biased because it was funded by the Canadian Wind Energy Association (ldquoCanWEArdquo)

However that literature review expressly states that in accordance with MIT guidelines

members of CanWEA did not take part in editorial decisions or reviews of the manuscript and

the final manuscript was independently reviewed to ensure academic independence and eliminate

any bias Drs McCunney and Mundt have testified many times before this Tribunal been subject

to multiple cross-examinations and have proven to be fair and objective witnesses whose

evidence this Tribunal has relied upon As it has done before the Tribunal should assess their

evidence on its merits and disregard the ad hominen attacks made against them by both the

Appellant and ndash as described below ndash Dr Phillips

No Support for Assertions

41 Dr Phillipsrsquo assertions find no support whatsoever in well-established epidemiological

research methodology or in the scientific literature respecting wind turbines and human health as

Drs Mundt and McCunney explain in their testimony

42 The individual observations that Dr Phillips calls ldquocase-crossover studiesrdquo are not

ldquostudiesrdquo at all1 They are reports of symptoms that individuals say are associated with the

operation of wind turbines As Dr Mundt stated ldquothese individual complaints ndash also referred to

1 Neither the individual reports upon which Dr Phillips relies nor his ldquolight-bulbrdquo analogy are ldquocase-crossoverrdquostudies In a true case-crossover study eligible study subjects (typically individuals diagnosed with an acute illnesssuch as a heart attack or injury) are enrolled and circumstances and risk factors immediately preceding the event(eg in the hour before) are contrasted with the circumstances and risk factors identified at specified time periods atrisk prior to the event onset such as the same timehour the day before the heart attack Evaluation of time periodsprior to the event represent the ldquocontrolrdquo period(s) and the selection of the proper control time periods is one of thechallenges of this approach None of the individual testimonials that Dr Phillips cites meet this criteria (Mundt WSparas 17 31-32 Mundt Testimony)

- 16 -

by Dr Phillips as lsquotestimonialsrsquo ndash are complaints and do not constitute scientific studies or

objective observations They are not the product of any standard research methodology and not

part of or themselves epidemiological studiesrdquo Dr McCunney explained that

The ldquocase-crossover studiesrdquo discussed in Dr Phillipsrsquo witnessstatement are individual statements of a suspected associationbetween an exposure (eg wind turbine noise) and an outcome(eg self-reported symptom) These personal statements aresimilar to ldquocase reportsrdquo but they lack the consistency or rigor ofpublished case reports Published case reports can be useful ashypothesis generating tools but cannot determine causation

McCunney WS paras 52 63 McCunney Testimony Mundt WSpara 35 Mundt Testimony

43 One of the significant limitations of these complaints is that they are most often prepared

without medical records diagnostic information or an updated medical evaluation that can assess

symptoms properly to formulate a diagnosis As Dr Phillips admitted on cross-examination he

has not examined or interviewed any of the individuals who have complained of experiencing

symptoms and as a result he does not know their medical histories nor does he know whether

they are members of an anti-wind group or might have some other motivation for making a

complaint such as litigation

McCunney WS para 63 McCunney Testimony Mundt WSparas 34-35 Mundt Testimony Phillips Testimony

44 As Dr Mundt stated Dr Phillipsrsquo perspective is unconventional and unreliable

Dr Phillips appears to acknowledge that his perspective isunconventional ldquoThe most compelling evidence comes in formsthat may seem unusual (though really they are far more commonmethods of health science inquiry to say nothing of scientificinquiry in general than are ldquostandardrdquo epidemiologic study types)rdquo(p 3) Not only do volunteer testimonials ldquoseem unusualrdquo butthere are well-understood and documented reasons for not relyingon such information especially when they are self-selected andself-reported unblended to the alleged health claims and solicitedfor political litigation or even advocacy purposes and notsystematically and scientifically derived

Mundt WS para 48 Mundt Testimony

- 17 -

45 Dr Phillips also sought to draw an analogy between the individual complaints he relies

on and ldquoAdverse Event Reportsrdquo (AERs) which are often submitted to regulatory agencies in

cases of suspected associations between medication and adverse events But as Dr McCunney

testified the United States Food and Drug Administration and Health Canada have each

developed systems for AER reporting that among other things make clear that AER data cannot

be used to determine causation As Health Canada explains to users of its Canada Vigilance

Adverse Reaction Online Database ldquo[e]ach report represents the suspicion opinion or

observation of the individual making the reportrdquo and ldquoin some cases the reported clinical data is

incomplete and there is no certainty that the health products caused the reported reaction A

given reaction may be due to an underlying disease process or to another coincidental factorrdquo

McCunney WS paras 64-70 McCunney Testimony

46 Contrary to Dr Phillipsrsquo assertions the ldquosheer volumerdquo of adverse event reports is also

not proof of causation As Dr McCunney explains at its highest AERs can only indicate

ldquosignalsrdquo that may warrant further study to determine whether a causal link exists In this case

those ldquosignalsrdquo have been well studied As discussed below the relevant scientific literature and

studies have shown an association between wind turbines and annoyance but none have shown a

causal relationship

McCunney WS para 82 McCunney Testimony Mundt WSparas 50-51 Mundt Testimony

47 There is similarly no support for Dr Phillipsrsquo bald assertions that ldquowith probability very

close to 100 this installation will cause serious disease outcomesrdquo his estimate that 5 of

people living near wind turbine will experience ldquoserious health problemsrdquo or his statement that

ldquohealth effects are common within 14 km or 2 km of wind turbinesrdquo These statements are

fundamentally contrary to the balance of scientific opinion which is that the evidence remains

where it was at the time that Erickson was decided ndash it does not demonstrate that wind turbines

cause serious harm to human health

Phillips WS pp 12 46 Phillips Testimony McCunney WS paras84-85 McCunney Testimony Mundt WS paras 62-63 MundtTestimony

- 18 -

Current State of Scientific Knowledge

48 The evidence of Drs McCunney and Mundt confirms that there is no evidence that wind

turbines cause serious harm to human health

49 As described above Dr McCunney is the co-author of two comprehensive peer-

reviewed literature reviews relating to wind turbine noise and health effects In 2009 the Expert

Panel Review of which Dr McCunney was a member carried out a comprehensive review of the

scientific peer-reviewed literature which amounted to over 125 references Based on their

review of that literature the Expert Panel concluded among other things the following

bull The sounds emitted by wind turbines are not unique There is no reason to

believe based on the levels and frequencies of the sounds and the Expert Panelrsquos

experience with sound exposures in occupational settings that the sounds from

wind turbines could plausibly have direct adverse health consequences

bull The body of accumulated knowledge about sound and health is substantial

bull The body of accumulated knowledge provides no evidence that the audible or

sub-audible sounds emitted by wind turbines have any direct adverse

physiological effects

McCunney WS para 12 McCunney Testimony

50 The findings of Dr McCunney and Dr Mundtrsquos 2014 critical review of the scientific

literature regarding wind turbines and health (McCunney et al 2014) were consistent with those

of the 2009 Expert Panel Dr McCunney Dr Mundt and their co-authors concluded the

following

bull Measurements of low-frequency sound infrasound tonal sound emission and

amplitude-modulated sound show that although infrasound is emitted by wind

turbines the levels of infrasound at customary distances to homes are typically

well below audibility thresholds

bull No cohort or case-control studies were located but among the cross-sectional

studies of better quality no clear or consistent association is seen between wind

turbine noise and any reported disease or other indicator of harm to human health

- 19 -

bull Components of wind turbine sound including infrasound and low-frequency

sound have not been shown to present unique health risks to people living near

wind turbines

bull Annoyance2 associated with living near wind turbines is a complex phenomenon

related to personal factors and noise from turbines plays a minor role in

comparison with other factors in leading people to report annoyance in the context

of wind turbines

McCunney WS para 15 Exhibit 18 McCunney TestimonyMundt WS para 57 Mundt Testimony

51 The findings in McCunney et al 2014 are consistent with a recent publication in

Environmental Research (Feder 2015) relating to the quality of life survey administered to

participants in the recent Health Canada Study regarding wind turbines and human health As the

authors note the survey results do not support an association between wind turbine noise up to

46 dBA and a decreased quality of life


52 These findings are also consistent with Dr Mundtrsquos assessment of the relevant scientific

literature As Dr Mundt explains the current scientific evidence fails to demonstrate that wind

turbine noise causes any adverse health effects

The peer-reviewed literature on wind turbine noise and humanhealth mainly consists of cross-sectional surveys (ie no cohort orcase-control studies) and experiments in which volunteers areexposed to recorded wind turbine sounds under various controlledconditions This literature does not establish that residentialexposure to wind turbines causes any disease or any harm tohuman health let alone serious harm At most the literaturereports an association (or correlation) between sound pressurelevels and self-reported or perceived annoyance however these

2 As Dr McCunney testified ldquoannoyancerdquo is not a health effect Dr McCunney was unable to find ldquoannoyancerdquodescribed in any medical dictionary and he was also unable to locate ldquoannoyancerdquo as a disease entity in the 10th

revision of the International Classification of Diseases (ICD-10) He explained that annoyance associated with windturbines is a subjective phenomenon which appears to be related primarily to attitudes to the visual impact of windturbines and economic benefit associated with wind farms (McCunney WS para 15 (footnote 2) McCunneyTestimony)

- 20 -

findings may well reflect attitudes toward wind turbines or fearsor perceptions of economic loss or aesthetic degradation


53 Dr McCunney notes that ldquo[b]ased on experimental studies and field measurements

conducted in the vicinity of active wind farms noise associated with wind turbines including

infrasound and low-frequency sound is not a health riskrdquo For these reasons Dr McCunney and

Dr Mundt are both of the opinion that the Project will not cause harm to human health

McCunney WS para 26 McCunney TestimonyMundt WS para 20 Mundt Testimony

54 The Appellant attempts to impugn the credibility of Dr Mundtrsquos evidence by asserting

that his witness statement ldquoexpressly reliedrdquo on an article by Onakpoya et al that the Appellant

describes as validating the quality and result of studies such as those of Nissenbaum et al that

were relied on by Dr Phillips However Dr Mundt testified that (a) he was not relying on this

article but simply referencing it as part of his literature review so that it would be

comprehensive (b) he disagreed with Onakpoya et alrsquos assessment of the quality of the studies

they examined stating that some of what they report is not believable and (c) in any event the

Onakpoya et al article came to a conclusion consistent with the results of the literature review

that ldquo[c]omplaints such as sleep disturbance have been associated with A-weighted wind turbine

sound pressures of higher than 40 to 45 dB but not any measure of healthrdquo


55 The Appellant also raised a concern ndash stated for the first time in its Written Submissions

ndash that Drs McCunney and Mundt did not attach to their witness statements all the reports to

which they cited and that their evidence should therefore be disregarded The Appellant has had

these witness statements since November 2015 and has never previously raised this concern or

asked for copies of these reports These reports are well-known to the Appellantrsquos counsel from

previous Tribunal proceedings and full citations for them were provided in the witness

statements making them easily accessible for the Appellantrsquos expert Dr Phillips to review Had

the Appellant its counsel or Dr Phillips been genuinely concerned to review any particular

report they could have retrieved it based on the citation requested it from the Approvalrsquos Holder

- 21 -

counsel or raised any objection they had prior to Drs McCunney and Mundtrsquos testimony rather

than springing this objection on the Approval Holder and the Tribunal in closing submissions

many months later3

Temporary Concrete Batch Plant

56 A participant Ms Caughey raised concerns about potential health risks associated with

emissions from the Projectrsquos temporary concrete batch plant that the Batch Plant Acoustic

Report failed to consider the Amherst Island Public School as a receptor and that the Approval

Holder had failed to obtain the necessary approvals for the batch plant

57 Ms Caugheyrsquos concerns ndash echoed by the Appellant in its Closing Submissions ndash are at

base process complaints that are not within the Tribunalrsquos jurisdiction In essence Ms Caughey

argues that the studies conducted by the Approval Holder are insufficient to determine whether

the installation and operation of the temporary concrete batch plant will cause harm to human

health This is clear from her Closing Submissions where she states that

(1) there is no evidence that adjacent sensitive land use was considered (para 2)

(2) there is no evidence that noise and vibration were assessed at the school on

Amherst Island (para 3)

(3) there is no evidence that the cumulative impacts to the school were

considered (para 4)

(4) noise expected at the school has not been properly assessed (para 5) and

(5) the cumulative impacts of this project on a school have not been fully

assessed (para 9)

Closing Submissions of Amy Caughey (May 26 2016) (ldquoCaugheyClosing Submissionsrdquo) paras 2-5 9

58 The Appellant makes similar arguments in its closing submissions

3 Even if the Tribunal were to agree with the Appellant that it should disregard Drs McCunney and Mundtrsquosevidence in their witness statements about their review of the scientific literature (which it should not) that evidenceis already in the record in the form of the McCunney et al 2014 literature review which was marked byAppellantrsquos counsel as Exhibit 18 in this proceeding

- 22 -

(1) the REA fails to consider the cumulative impacts of emissions on the

Amherst Island School environment (para 31)

(2) there is also insufficient evidence of mitigation measures in place to limit

emissions from plant operations and associated functions (para 33)

(3) there was also no evidence that the cumulative impacts from all other sources

surrounding the Amherst Island School environment were considered

(para 34)

(4) the REA failed to demonstrate the cumulative impacts of [impulsive] noise

on the Amherst Island School environment (para 39) and

(5) Additional noise emitted from truck traffic mobile refueling construction

etc has not been assessed (para 40)

Appellantrsquos Closing Submissions paras 31 33-34 39-40

59 It is well settled that in a REA appeal ndash which is a review of the Directorrsquos decision to

issue the REA and not an appeal per se ndash the only issues the Tribunal may consider are those set

out in s 14521(2) of the EPA whether the Project when operated in accordance with its REA

will cause (1) serious harm to human health or (2) serious and irreversible harm to plant life

animal life or the natural environment The burden of proof rests with the party asserting harm

the Tribunal has repeatedly ruled that proof demonstrating that serious harm may result from the

particular project is insufficient to meet the statutory test

EPA s 14521(2)(3) BOA Tab 1 Erickson para 521 BOA Tab 4Monture 1 at p 20 BOA Tab 2

60 Notwithstanding that the Approval Holder bears no burden to disprove harm it called

fact evidence from the Project Manager Alex Tsopelas and expert evidence from

Dr McCunney Bridget Mills and Shant Dokouzian in response to Ms Caugheyrsquos concerns

Their evidence establishes that the operation of the temporary concrete batch plant will not harm

human health and that all necessary approvals were obtained

Approval Holderrsquos Fact and Expert Witnesses

61 Mr Alex Tsopelas is the Project Manager He oversees the development of the Project

including construction planning budgeting and wind resource analysis consultation with

- 23 -

landowners municipalities and First Nations all permitting processes and the siting of turbines

roads and collection infrastructure

Tsopelas WS paras 1-2 Tsopelas Testimony

62 Ms Bridget Mills is a Principal and Senior Environmental Engineer at BCX

Environmental Consulting with more than 25 years of experience in air quality consulting She

was qualified as ldquoan engineer with expertise in air quality assessmentrdquo Over her career

Ms Mills has developed expertise preparing air emissions inventories and modelling reports for

Ontariorsquos aggregate sector including pits and quarries ready mix concrete batching plants hot

mix asphalt plants and cement plants She has been actively involved in the preparation of more

than 100 air quality studies for ready mix concrete batching plants all of which have been

reviewed and approved by the MOECC and the preparation of which require an in-depth

knowledge of how ready mix plants work their air emissions profile and the operating practices

and controls required to ensure compliance with MOECCrsquos air quality limits Ms Mills also

advises facilities with respect to compliance with the conditions of operating permits such as the

preparation and implementation of Best Management Practices Plans for the control of nuisance

dust As described below she was involved in the preparation of an Emission Summary and

Dispersion Modelling report prepared for the Approval Holder with respect to the concrete batch

plant proposed for the Project

Witness Statement of Bridget Mills (November 25 2015)(ldquoMills WSrdquo) paras 2-5 Mills Testimony

63 Mr Shant Dokouzian is a Team Leader for Development and Engineering Services at

DNV GL4 where he is involved in the design configuration and optimization of wind farms in

Canada and overseas including managing DNV GLrsquos North American acoustical services for the

past 5 years Mr Dokouzian is a licensed Professional Engineer in Ontario and Quebec He

conducts pre-construction and post-construction noise impact and compliance assessments on a

regular basis and regularly applies the ISO 9613-2 noise propagation model ndash the same model

used to model the noise from the temporary batch plant as discussed further below

Mr Dokouzian has testified as an expert witness in several proceedings before the

4 DNV GL is an international consulting company with approximately 17000 employees worldwide of whomapproximately 2000 to 3000 provide consulting services strictly with respect to renewable energy

- 24 -

Environmental Review Tribunal and was qualified as he has been in other proceedings as ldquoan

engineer with expertise in noise and the design impact assessment and post-construction

monitoring of wind farmsrdquo

Witness Statement of Shant Dokouzian (December 9 2015)(ldquoDokouzian WSrdquo) paras 2-8 Dokouzian Testimony

Emissions from the Batch Plant Will Not Cause Harm to Human Health

64 As Mr Tsopelas explained the Project would include a temporary mobile concrete batch

plant that would be set up to facilitate construction of the concrete components of the Project ndash

primarily the turbine foundations The batch plant would be in operation during the Projectrsquos

construction phase which is estimated to be approximately 18 months and would be removed

when no longer needed to support construction activities As specified in the conditions set out in

Schedule ldquoDrdquo Condition A1 of the REA the batch plant may only be operated for a maximum

period of 120 days5

Tsopelas WS para 33 Tsopelas Testimony REA Exhibit 61

65 Because of the quick-dry nature of the product they produce batch plants must be located

in close proximity to the project they are serving For this reason it is not uncommon in Ontario

for batch plants to be located in urban areas within hundreds of metres (and in some cases closer)

to more sensitive land uses like schools hospitals and retirement homes In her testimony

Ms Mills cited as one example a batch plant in Mississauga that is located within 800 metres of

seven schools the closest of which is 300 metres from the plant

Mills WS para 33 Mills Testimony

66 The batch plant area (ie the area in which the batch plant components will reside)

would be located within a certain parcel of property (the ldquoBatch Plant Siterdquo) The boundary of

the Batch Plant Site would be located 592 metres from the closest boundary of the school

5 In her Closing Submissions Ms Caughey states that ldquo29 trucks per 60-minute period from 700 am to 700 pmwill pass by the adjacent land to the schoolhelliprdquo While Section 2(2) of the REA places a maximum number on thetrucks that may arrive at and depart from the Concrete Plant during a 60-minute period (8 ready mix trucks 20aggregatesand trucks one cement powder tanker truck) there is no evidence that this number of trucks will arriveand depart from the Concrete Batch Plant during any single hour let alone for a sustained period

- 25 -

property Actual batch plant operations ndash those within the plant area ndash would be 705 metres from

the closest boundary of the school property and 843 metres from the school building itself


67 Although the REA Regulation (O Reg 35909) does not require that an Emission

Summary and Dispersion Modelling Report (ESDM) be prepared for the batch plant (as it is not

one of the specified project types requiring an ESDM) the Approval Holder nevertheless

committed in its REA application to have an ESDM prepared In accordance with that

commitment the Approval Holder retained a third party consultant ndash BCX Environmental

Consulting ndash to prepare an ESDM report in respect of the temporary batch plant

Tsopelas WS para 36 Tsopelas Testimony

68 As further instructed by the Approval Holder BCX prepared the ESDM in accordance

with a conservative air dispersion model ndash the AERMOD model ndash which is more stringent than

the current provincial standard As Ms Mills explained the AERMOD air dispersion model

takes into consideration historical meteorological conditions and the most up-to-date Schedule 3

(to O Reg 419) air standards making it ldquosignificantly more sophisticated and more

representative of actual site conditionsrdquo than the Schedule 2 standards currently in force in

Ontario

So the ESDM report does the air modelling the model provides themaximum concentration of all of the contaminants and thatmaximum concentration is the concentration that is compared tothe industry standards

So just to describe the meteorological data the model uses what iscalled a 5-year meteorological data set So that data set containshourly data for five years The model takes that hourly data for fiveyears and calculates from that 5-year period the worst day and thatworst day concentration if it is a daily standard or worst hourconcentration if itrsquos an hourly standard is compared to the Ministrystandard and must comply with the Ministry standard

Mills WS paras 18-21 Mills Testimony

- 26 -

69 As noted in the ESDM report certain contaminant sources are expected to be negligible

and are therefore not included in modelling Examples include routine maintenance activities

onsite vehicle fuelling and storage tanks and certain admixtures In addition the ESDM notes

that ldquofugitive dustrdquo from onsite roadways and wind erosion of stockpiles may be excluded from

the modelling where (1) the nature of the fugitive dust emissions is such that they are not likely

to pose a health risk to humans and (2) the emissions are relatively small or have been

minimized through effective implementation of a fugitive dust control plan consistent with best

management practices As Ms Mills explained

So for certain types of operations and industries the Ministryunderstands that there can be fugitive dust emissions And forcertain kinds of operation and facilities that they consider low riskthey will allow the facility to prepare a fugitive dust managementplanhellipthe Ministry specifically identifies ready-mix concretebatching plants as low risk facilities and provided those facilitieshave fugitive dust management plans then they agree thatemissions from road wind erosion or stockpiles can be wellmanaged and therefore those sources are insignificant6

ESDM Report pp 5-6 Mills WS Exhibit ldquoCrdquo Mills Testimony

70 The Dust Management Plan7 is attached as Appendix D to the ESDM Report and

separately as Exhibit ldquoDrdquo to Ms Mills witness statement8 The plan provides that unpaved roads

and like areas will be treated with road watering for dust suppression and similarly that the

moisture levels of the two stockpiles (one containing stone and the other sand) be maintained at

appropriate levels to minimize fugitive dust dispersion

Dust Management Plan Mills WS Exhibit ldquoDrdquo pp 5-6 andparas 27-30 Mills Testimony

6 The Appellant is incorrect in asserting at paragraph 31 of its Closing Submissions that the fugitive emissionsassociated with road wind erosion and stockpiles were not considered ldquosince these were not stationary equipmentand therefore not within her mandate to assessrdquo7 As Ms Mills explained in oral testimony the MOECC refers to this document as a ldquoBest Management PracticePlan for the Control of Fugitive Dust Emissionsrdquo (Mills Testimony see also the definition of ldquoBest ManagementPractice Planrdquo in Schedule ldquoDrdquo of the REA)8 The Appellantrsquos assertion in paragraph 33 of its Closing Submissions that the ldquoApproval Holder and the witnessfailed to produce evidence of such a Planrdquo is wrong

- 27 -

71 As Ms Mills explained the Dust Management Plan was submitted to and approved by

the MOECC as part of the REA and the approval process The implementation of that plan has

been incorporated as a requirement of the REA (Schedule D Condition 4) In Ms Millsrsquo

opinion the plan meets industry standards and is expected to minimize fugitive dust emissions

Mills WS paras 27 30 Mills Testimony

72 The AERMOD assessment demonstrated that under maximum possible (worst reasonable

case) operating conditions ndash measured as the historical worst day and hour over a five year

period ndash the batch plant would comply with the stringent Schedule 3 air quality standards at the

boundary of the Batch Plant Site It also showed that concentrations of air contaminants at the

school property (including respirable crystalline silica) would be very low so low as to be below

rural background levels9 As Ms Mills explained the air dispersion model demonstrated that at

the boundary of the Batch Plant Site the concentrations of potential contaminants will be below

industry standards As the emissions disperse out from that boundary their concentration

decreases with the result that at the school property the concentrations would be ldquoa fraction of

the Ministryrsquos standardsrdquo For this reason it is Ms Millsrsquo opinion that the batch plant will not

cause any air quality impacts on the school property

Mills WS paras 22 26 31-32 Mills Testimony

73 Dr McCunney agrees In his opinion the emissions from the batch plant will not pose a

significant risk to children at the public school nor to anyone else because they will be present in

de minimus levels that are not harmful10 As to Ms Caugheyrsquos specific concerns about the

presence of crystalline silica it is Dr McCunneyrsquos opinion that ldquothe quantity of crystalline silica

in the emissions from the temporary batch plant will be so small that it will not pose a health risk

either to children or to adultsrdquo


9 On cross-examination Ms Mills confirmed that the ESDM modelling grid that was submitted to the MOECC forreview extended out from the Temporary Batch Plant 5 km in all directions and included the Amherst Island PublicSchool (Mills Testimony)10 In her Closing Submissions Ms Caughey expresses her concern that children and adults will respond differentlyto emissions Dr McCunney ndash the only qualified medical professional to testify at the hearing ndash took children intoaccount and concluded that the emissions from the batch plant will not pose a health risk to them (McCunney WSpara 90)

- 28 -

Acoustic Report

74 Ms Caughey raised a concern that the HGC Engineering Acoustic Assessment Report

prepared in respect of the batch plant (the ldquoBatch Plant Acoustic Reportrdquo) failed to identify the

Amherst Island Public School as a receptor As Mr Dokouzian explained that is not so On the

contrary the Amherst Island school was included in the noise modeling which determined that

daytime sound pressure levels at the school will be within acceptable limits11

Dokouzian WS paras 14-22 Dokouzian Testimony

75 As Mr Dokouzian explained the Batch Plant Acoustic Report analyzed and compiled

stationary and traffic acoustic sources associated with the operation of the batch plant (the

Appellantrsquos assertion in paragraph 39 of its Closing Submissions that noise from mobile sources

was not modelled is incorrect)12 The sound propagation of the various sources were then

modeled across the site with a model widely used for this type of sound modeling (ISO 9613-2)

The results were then compared against the permissible outdoor limits in the relevant MOECC

Guideline (NPC-300)

Dokouzian WS para 16 Dokouzian Testimony

11 Notably Ms Caughey in her Closing Submissions no longer raises this concern though the Appellant raises thisissue at paragraph 36 of its Closing Submissions12 Modelled noise sources are listed in Table A1 of the HGC Engineering Acoustic Assessment Report and includeamong other things tanker trucks ready-mix trucks aggregate trucks front-end loaders (HGC EngineeringAcoustic Assessment Report Appendix A Table A-1 Dokouzian WS Exhibit ldquoCrdquo)

- 29 -

76 Figure 4 of the Batch Plant Acoustic Report is a noise iso-contour map which shows

sound pressure levels at and around the proposed site of the batch plant Figure 4 is reproduced

below

77 The coloured lines are acoustic contour lines which represent the predicted sound levels

emanating from the potential noise sources associated with the operating of the batch plant The

- 30 -

acoustic contour lines are not concentric which makes sense given they incorporate noise from

various sources including traffic


78 The sound that would be perceived along the outermost pink line in Figure 4 would be 45

dBA which is the daytime limit according to NPC-300 Five ldquokey receptorsrdquo (R122 R166

R328 R573 and R611) ndash those closest to the pink line ndash are represented by white and black

circles The batch plant is in the area of the concentrated green lines The school is in the upper

right hand corner under the words ldquoFront Roadrdquo which appear in yellow As the contour map

illustrates the outdoor daytime noise level at the school will be between 40 and 45 dBA likely

closer to 41 or 42 dBA which is compliant with NPC-300 Indoor noise levels will be quieter

Indoor noise levels are lower than outdoor noise levels due to attenuation (much like absorption)

of the sound as it passes through the materials used for the building It is commonly accepted that

the outdoor to indoor sound attenuation through a dwelling or building with the windows open

is approximately 15 dBA In this case on the basis of HGCrsquos modeling of the outdoor noise

levels attributable to the batch plant the sound level inside the school with windows open

would be between 25 dBA and 30 dBA during the predictable worst case daytime hour In

Mr Dokouzianrsquos opinion this is a very low sound level which would be unnoticeable in a

school environment


79 Ms Caughey also raised concerns that ldquo[a]t the school for the worst case there will be

about 20 peak sound pressure level pulses per hour above 45 dBArdquo This concern appears to

relate to ldquoimpulsiverdquo sound which is high intensity sound of short duration such as gunshots

explosions or certain industrial metal working activities such as defined in Ontario NPC-10313

None of the potential sources of sound listed in Table A1 of the Batch Plant Acoustic Report is

13 The Appellantrsquos assertion at paragraph 37 of its Closing Submissions that Mr Dokouzian was ldquounable to defineimpulsive soundrdquo is wrong During his cross-examination Mr Dokouzian stated ldquo[t]here are many definitions outthere but it is a sound that increases very rapidly The sound will increase by tens and tens of decibels in a fractionof a second for a limited amount of time and then decrease as rapidly Thatrsquos what an impulse isrdquo (DokouzianTestimony)

- 31 -

impulsive As a result there are no noise sources which would produce the ldquopulsesrdquo about which

Ms Caughey expressed concern14


All Necessary Approvals Were Obtained

80 Finally Ms Caughey expressed a concern that the Approval Holder had been required to

obtain an Environmental Compliance Approval (ECA) for the batch plant and had failed to do

so Ms Caugheyrsquos concern is unfounded In fact as described below the batch plant has been

subjected to the stringent requirements of both REA and ECA approval processes which have

confirmed that it is designed and sited to meet the relevant Provincial air quality requirements

Indeed on a very conservative basis the Approval Holder did more than what was required to

confirm there will be no harm

81 REA Process From the outset the Renewable Energy Approval was intended to be a

single comprehensive streamlined process for renewable energy development which integrates

a number of former regulatory approval requirements That concept is enshrined in amendments

to the EPA that were brought into force through the Green Energy and Green Economy Act

2009 (ldquoGEArdquo) In particular section 473(1) of the EPA requires every person engaging in a

renewable energy project to first obtain a REA if engaging in the ldquorenewable energy projectrdquo (a

defined term which includes ldquoconstructionrdquo) would have otherwise required certain MOECC

environmental approvals such as a section 9(1) [air and noise] or 27(1) approval under the EPA

or a section 34(1) [permit to take water] or 53(1) permit under the Ontario Water Resources Act

(ldquoOWRArdquo) In turn section 473(2) of the EPA exempts persons who are engaging in a

renewable energy project from the requirements to obtain those same MOECC approvals In this

14 In her Closing Submissions Ms Caughey states in paragraph 5 that ldquo[t]here is evidence from Dr John Harrison ndashwho has expertise in noise ndash that the school will be exposed to unacceptable levels of impulsive soundrdquo TheAppellant makes similar assertions at paragraph 38 of its Closing Submissions citing a document attached toMs Caugheyrsquos witness statement that purports to be a submission to the ldquoEnvironmental Review BoardrdquoDr Harrison did not testify at the hearing The submission appended to Ms Caugheyrsquos witness statement may onlybe admitted as the basis for her expressions of concern and not for the truth of its contents In any event asMr Dokouzian explained based on his review of all of the sources of noise at the batch plant as outlined in theHGC report he can confirm that there will be no impulsive sounds associated with the operation of this facility(Dokouzian WS para 27 Dokouzian Testimony)

- 32 -

regard section 473(2) states that section 9(1) and 27(1) of the EPA and sections 34(1) and 53(1)

of the OWRA ldquodo not apply to a person who is engaging in a renewable energy projectrdquo

EPA s 473(1)(2) BOA Tab 1

82 In preparing the REA application the Approval Holder retained Ms Mills and her

colleagues at BCX Environmental Consulting to prepare an ESDM Report to demonstrate that

the Temporary Batching Plant is designed and sited to meet the air quality requirements of

Ontario Regulation 41905 Air Pollution ndash Local Air Quality (O Reg 419) the principal

regulation that governs air quality in Ontario15 The ESDM report for the Temporary Batching

Plant was prepared in accordance with the requirements of O Reg 419 and the MOECCrsquos

guidance documents It was submitted to the MOECC as part of the REA application process

and was reviewed and approved by the MOECC


83 ECA Process Outside of the REA process section 9 of the Environmental Protection

Act requires any facility that emits a contaminant to the atmosphere to obtain an ECA unless it is

listed as an exemption under O Reg 52498 Environmental Compliance Approvals ndash

Exemptions from Section 9 of the Act Equipment used on a construction site for the purposes of

construction such as a batch plant is expressly exempted As a result independent of the GEA

the batch plant could lawfully operate without any such ECA Notwithstanding this the operator

(Lafarge) has obtained an ECA for the batch plant 16 so the temporary concrete batch plant has

been through two separate layers of regulatory review and approval

Mills Testimony O Reg 52498 s 1(2) BOA Tab 10 Tsopelas WSpara 35 Tsopelas Testimony

15 This regulation is intended to protect communities against adverse effects from local sources of air emissions16 In paragraph 32 of its Closing Submissions the Appellant questions (for the first time) the evidence relating to theECA stating that Ms Mills was ldquotold that an [ECA] exists for the Projectrdquo and raising concerns that the ECA wasnot produced The Appellant has never asked for production of the ECA Further Mr Tsopelas testified to theexistence of the ECA (Tsopelas WS para 35 Tsopelas Testimony) and his evidence was unchallenged on cross-examination Having chosen not to seek production of the ECA or to ask the Approval Holderrsquos corporaterepresentative any questions about it the Appellant cannot now complain that it has been ldquodeprived hellip of knowingor being able to test this evidencerdquo

tporfido
Text Box
BIRDS TAB13

- 33 -

V THE ENVIRONMENTAL APPEAL

A Overview

84 The statutory onus is on the Appellant to prove that the Project operated in accordance

with its REA will cause serious and irreversible harm to plant life animal life or the natural

environment This onus cannot be satisfied by the Appellant without a compelling evidentiary

basis On the record here the evidence before the Tribunal is clearly insufficient to meet the

Appellantrsquos onus And even though there is no obligation on the Approval Holder to show that

the Project will not cause serious and irreversible harm the weight of the evidence establishes

just that

B Bobolink and Owls

(i) Overview

85 The Bobolink case was advanced through the evidence of Mr Evans on behalf of the

KFN The owls case was advanced through the evidence of Mr Beaubiah on behalf of the

CRCA Both Mr Evans and Mr Beaubiah filed witness statements in compliance with the

Tribunal ordered October deadline and testified in early December 2015

86 The Appellant disclosed no evidence on Bobolink or owls on the Tribunal ordered

October deadline but chose to address both for the first time in reply through the evidence of

Dr Smallwood who filed his first statement in December 2015 and testified in early February

201617

87 The Approval Holder responded to the case on Bobolink through Andrew Taylor and

Drs Kerlinger and Bollinger each of whom filed their first witness statements in accordance

with the Tribunal ordered November 2015 responding deadline Mr Taylor and Dr Kerlinger

also responded to the case on owls by the November 2015 deadline All three testified in early

March 2016

88 In our submission the evidence put forward by the Appellant cannot and does not

reasonably support a finding of serious let alone serious and irreversible harm either to Bobolink

17 Of the 31 pages in his first reply statement just over two pages were dedicated to owls (pp 27-29) Of his 37 pagefurther reply statement one paragraph was dedicated to owls (para 41)

- 34 -

or owls or their respective habitats On the contrary the record establishes that the impact to the

Bobolink on the island will be minimal even before compensation is considered and that after

compensation is taken into account there will be a net benefit to the Bobolink on the island For

owls and their habitat the evidence before the Tribunal does not support a finding that there is

even a material risk let alone the required proof of serious and irreversible harm

89 Mr Evans advanced a series of calculations alleging that the Project would result in an

annual Bobolink collision mortality of approximately 1 of the islandrsquos population

Drs Bollinger Kerlinger and Mr Taylor all of whom have significantly more expertise on

Bobolinks than Mr Evans reviewed his analysis and found that a number of the assumptions

underlying it are fundamentally flawed

90 Mr Beaubiah who gave (by far) the most evidence on owls of all the appeal-side

witnesses did not even allege serious harm would be caused to owls or owl habitat but instead

expressed concern that the available information was not sufficient to prove that such harm

would not occur Dr Smallwood spent very little time on owls or their habitat choosing to rely

on bald assertions (for example simply stating that owls lsquowill be killedrsquo) and describing his

experience with burrowing owls at a much older generation mega-wind farm in California

Dr Kerlinger and Mr Taylor each of whom have much more expertise on owls presented

reasonable credible evidence that post construction monitoring data from many wind projects

demonstrates that owls are one of the bird categories that have proven to be least at risk from

wind projects that owls habituate well to a variety of human disturbance and they fly low to the

ground when hunting well below the rotor sweep zones of modern wind turbines like the ones

that would be used at the Project

(ii) Expertise

91 Tom Beaubiah was qualified by the Tribunal as ldquoan expert in the field of general

biologyrdquo He was clear in his oral testimony that he is not a bird expert let alone an owl expert

and he has no experience assessing the potential impact of wind energy projects on birds

Accordingly he limited his evidence to identifying perceived gaps in the available information

which he believed resulted in uncertainty regarding the potential for risk to owls and owl habitat

He did not offer an opinion that harm will be caused by the Project only that ldquothe Approval

- 35 -

Holder has not provided sufficient evidence to demonstrate that the proposed project can proceed

without causing serious and irreversible harmrdquo

Witness Statement of Thomas Beaubiah (October 28 2015) (ldquoBeaubiahWSrdquo) paras 1-2 Beaubiah CV Beaubiah Testimony Hirsch v Ontario(Environment and Climate Change) (ERT Case No 15-068)(February 26 2016) (ldquoHirschrdquo) BOA Tab 11

92 William Evans sought to be qualified as an expert in ldquonocturnal bird migration and avian

impacts from tall manmade structuresrdquo [emphasis added] the latter italicized portion of which

had been sought by him and rejected by two previous Tribunal panels (in Ostrander and

Ernestown) Only two days prior to his testimony in this proceeding he was qualified for the

third time by an ERT panel (in Hirsch) as an expert in lsquoavian acoustic monitoring and nocturnal

bird migrationrsquo

Evans Testimony APPEC v Director Minister of the Environment[2013] OERTD No 6 (ldquoOstrander Trial Decisionrdquo) para 386BOA Tab 9B Bain v Director (Ministry of the Environment) ERTCase Nos 13-10613-107 (February 28 2014) (ldquoErnestownrdquo)para 136 BOA Tab 12 Hirsch para 166 BOA Tab 11

93 Mr Evansrsquo broader qualification request was sought and rejected again in this

proceeding this time by replacing ldquoimpactsrdquo (the breadth of which lsquoconcernedrsquo the Tribunal)

with the much more specific ldquofatalitiesrdquo18

Evans Testimony

94 Mr Evansrsquo CV makes it clear that virtually all of his work has been acoustic monitoring

of night migrants the expertise for which he is known He has only had a very modest

involvement in wind projects where his role has been to carry out his core competency

gathering acoustic monitoring data not to conduct fatality studies or conduct fatality analyses In

his oral testimony he explained that only once (at the Maple Ridge Project) did he conduct any

kind of lsquofatality studyrsquo Even then it was in fact a small feasibility study to assess a new

automatic bird strike acoustic detection device He indicated that the study covered only eight of

18 The assertion in paragraph 41 of the Appellantrsquos Closing Submissions that Mr Evans was qualified as an expert inavian impacts is incorrect The Tribunal rejected this proposed qualification on the basis of its legitimate concernabout the broader implication of the word ldquoimpactsrdquo

- 36 -

the Projectrsquos 195 turbines and that it involved only the very narrow exercise of comparing the

carcasses found at each of those eight turbines to the data being collected by the acoustic

collisionstrike detectors installed on each turbine The purpose of the exercise was not to

estimate fatality rates but to correlate the data to assess the accuracy and utility of the new

technology sensors The actual fatality study and analyses for the Maple Ridge wind project was

conducted by Dr Kerlingerrsquos firm

Evans Testimony

95 Mr Evans does not have any expertise in population biology or population ecology

Evans Testimony

96 Despite these limitations Mr Evans provided (improperly) a full impact analysis for

Bobolink on the island which included a variety of topics outside the scope of his expertise

including his opinion regarding the density of Bobolinks per hectare on the island his view of

the significance of that density relative to the surrounding region his calculation of the

population of Bobolinks on the island a full and detailed conventional fatality analyses his

views on the likelihood of habitat fragmentation and displacement and (although he did not

consider the topic at all in his witness statement) his opinion in oral testimony regarding the

sufficiency of the required grasslands compensation19

Witness Statement of William Evans (ldquoEvans WSrdquo) paras 10-12 18-24 Evans Testimony

97 Dr Shawn Smallwood was qualified as ldquoan ecologist with expertise in avian wildlife

behavior and conservationrdquo His research and consulting experience is not exclusive to birds and

wind turbines but covers instead a broad variety of wildlife issues20 His birds and wind farm

related research and field work has been concentrated in the infamous Altamont Pass area of

California a semi-arid landscape which is home to the oldest largest and most densely packed

wind farm in North America with a tower design and lay-out for its thousands of turbines that is

19 In our submission much of Mr Evansrsquo evidence cannot be considered by the Tribunal as it falls outside the scopeof expertise for which he was qualified and in any event is inherently unreliable It is clear that an expert witnessmay only provide evidence within the four corners of his expertise (see White Burgess Langille Inman v Abbott andHaliburton Co [2015] 2 SCR 182 at para 23 BOA Tab 13)20 Dr Smallwoodrsquos work has included the study of mountain lions in California and concentrations of the SumatranTiger (Smallwood Testimony)

- 37 -

well known to have resulted in an atypically high risk profile for birds Dr Smallwood has not

visited Amherst Island and has no practical experience with the Ontario landscape or its avian

population The only two places that he has ldquodone actual work direct field workrdquo are Altamont

Pass and Pine Tree both located in California He also has no experience with Bobolink ndash they

do not inhabit the arid climes of the Altamont Pass ndash and he has not conducted any research

studies into wind project displacement impacts on Bobolink His experience with owls is limited

to Altamont

Reply Witness Statement of Shawn Smallwood (November 30 2015)(ldquoSmallwood Reply WSrdquo) para 4 CV pp 1-2 4 SupplementaryWitness Statement of Paul K Kerlinger (January 19 2016)(ldquoKerlinger Supplementary WSrdquo) paras 3-9 Smallwood Testimony

98 Dr Smallwoodrsquos evidence on Bobolink was focused on raising concerns about the

responding witnessesrsquo conventionally calculated fatality estimates In essence he argued that the

conventional methods for estimating fatalities should be fundamentally altered by using two new

approaches that he has begun developing recently on the basis of his experience at Altamont

Neither of those proposed new approaches have been field tested let alone generally accepted ndash

one he terms an lsquointegratedrsquo adjustment and the other is a new approach to search radius

adjustment He then applied those new approaches to arrive at a fatality estimate for the

Bobolink on the island which is double what the other witnesses (including Mr Evans) had

estimated21

Smallwood Reply WS paras 23-48 Smallwood Testimony

21 Although very brief (two pages) the Appellantrsquos Closing Submissions respecting Dr Smallwoodrsquos reply to thewitnesses who testified on Bobolink and owls appears to try to reposition his evidence as somehow applying to adifferent much broader allegation of impacts to lsquoavian speciesrsquo lsquobirdsrsquo in general and even bats In the (in total)eight paragraphs (paragraphs 53 to 60 of the Appellantrsquos Closing Submissions) the word lsquoBobolinkrsquo is used almostas an afterthought while lsquoowlrsquo is not used once Reply evidence by any definition is inherently tied to the evidenceto which it is purporting to reply There can be no question that this aspect of the environmental case was directedfrom the outset and all the way through to Bobolinks and owls and it is disingenuous to suggest otherwise The factthat Dr Smallwood cited fatality data on various categories of birds birds in general and bats to support andillustrate how he arrived at his views on the evidence of the witnesses who were called to speak to Bobolink andowls cannot fairly be used as a pretext for broad new allegations to be put to the responding parties for the firsttime in closing In any event ndash and because in fact Dr Smallwood used that more general information forsupportive illustrative purposes only ndash the record before the Tribunal does not support a conclusion that theAppellant has shown on a balance of probabilities that the Project lsquowill causersquo harm to birdsavian species ingeneral that is both serious and irreversible It is also worth noting that the obvious weaknesses in theunconventional new approaches to fatality estimation that Dr Smallwood is developing render them suspectwhether they are applied at the individual species level or more broadly ndash see Appendix B

- 38 -

99 Apart from mortality risk Dr Smallwood did not seriously pursue allegations of other

kinds of harm to the Bobolink (including potential behavioral disruption like displacement)

because his expertise does not extend to Bobolink ecology or behavior as he acknowledged in

cross-examination

Q In respect of Bobolink in particular you havenrsquot conducted anyresearch studies into wind project displacement impacts on thatparticular species have you

A I have not

Q You have published no peer-reviewed papers on that particular topicOf displacement impacts on wind projects on Bobolink in particular

A No I have not

Q Since Bobolink donrsquot nest in California I take it you have had noopportunity to yourself observe at Altamont Pass or the other Californiawind projects whether or to what extent Bobolinks were displaced by theProject

A No I have not

Smallwood Testimony

100 Nor did Dr Smallwood spend any real time pursuing concerns relating to the potential

for impacts to owls and owl habitat In his first witness statement he made it clear that his only

experience with owls is from Altamont where many of the (much older generation) turbines are

unusually densely packed together their blades are unusually close to the ground and the risk is

to a species of owl that does not occur in Ontario In his second witness statement he addressed

owls in a single paragraph indicating the results of his lsquoreview of owl fatality datarsquo without

citing to any source or providing any evidentiary support Even if those figures are accurate

(which there is no way to determine) they are likely to have been drawn from the South

Western United States (California in particular) rendering comparisons to the different

landscapes and species of owls in the north eastern part of the continent virtually meaningless

Finally he made no effort at all to identify the particular owl species at Amherst Island he

indicates will be impacted estimate the relevant population size and scope predict the number

of owls he baldy asserts ʽwill be killedʼ by the Project or assess (rather than simply stating)

why the result would be both serious and irreversible

Smallwood Reply WS paras 51-58 Smallwood Supplementary ReplyWS para 41

- 39 -

101 In contrast to the appeal-side witnesses each of Dr Kerlinger Mr Taylor and

Dr Bollinger have extensive relevant expertise on Bobolink and Dr Kerlinger and Mr Taylor

each have deep and relevant expertise on owls

102 Mr Andrew Taylor was qualified as ldquoan expert terrestrial ecologistbiologist with

expertise assessing the impacts of wind energy projects on birdsrdquo He is a Senior Ecologist and

Project Manager at Stantec with wind farm experience that includes the completion of pre-

construction bird surveys post-construction monitoring plans and surveys and bird studies for

over twenty different wind energy projects That work has involved among other things

completing records reviews conducting field surveys identifying bird habitat and how birds are

using it and designing and implementing mitigation measures He has also conducted post-

construction mortality monitoring at eight wind projects in Ontario

Andrew Taylor WS para 3-6 Supplementary Witness Statement ofAndrew Taylor (January 19 2016) (ldquoAndrew Taylor SupplementaryWSrdquo) paras 110-111 Andrew Taylor CV pp 1-3 Taylor Testimony

103 Mr Taylor noted in his oral testimony that every wind project he has been involved in

has required him to carry out assessment with respect to Bobolinks and owls both of which are

common in the agricultural grassland landscapes in which most wind farms in Ontario have been

sited He was for example the lead on and authored the reports for the five years of pre- and

post-construction bird studies on neighbouring Wolfe Island which included extensive Bobolink

and owl observations and data collection He also oversaw the pre-construction bird studies that

have been conducted on Amherst Island which also included extensive Bobolink and owl

observations and data collection As a consequence he has a deep and relevant understanding of

the habitat and behavior of Bobolinks and owls particularly with respect to assessing the

potential impacts from wind farms

Andrew Taylor WS paras 87-92 Andrew Taylor Supplementary WSparas 112-113 Taylor Testimony

104 Dr Paul Kerlinger was qualified by the Tribunal as ldquoan expert on birds and the impacts

of wind energy projects on birdsrdquo Dr Kerlinger holds a PhD in biology with specialization in

bird behavior ecology and research designstatistics He has taught and conducted avian

research as a college professor and as a post-doctoral fellow and is the former director of the

- 40 -

Cape May bird observatory He established a research department for the New Jersey Audobon

Society a nonprofit environmental organization that performs advocacy work directed towards

the protection of birds and other wildlife He has published five books on birds and over 40

peer-reviewed papers in scientific journals on bird ecology and behavior

Witness Statement of Paul Kerlinger (November 25 2015)(ldquoKerlinger WSrdquo) paras 2-3 Kerlinger CV pp 1-3 KerlingerTestimony

105 Dr Kerlinger has extensive experience over the past 20 years assessing the impacts of

wind energy projects and communications towers on birds including Bobolink and owls He has

been involved in impact assessments for over 100 wind energy projects and has conducted post-

construction bird fatality studies at about 35 wind plants across North America including four

years of research on the 3400 older generation turbines at Altamont As part of the numerous

impact studies that he has conducted Dr Kerlinger has observed and documented flight patterns

and the behaviour of birds including Bobolinks and owls at many different facilities and in

many different environments

Kerlinger WS paras 4-5 Kerlinger Supplementary WS paras 3 (FN 1)56-57 CV pp 1-3 Kerlinger Testimony

106 Dr Kerlinger has studied in particular the impacts of wind projects on grasslands birds

including the Bobolink in landscapes similar to Ontario That experience includes studies in

New York Pennsylvania West Virginia and Illinois

Kerlinger WS paras 4 28 38 CV p 2 Kerlinger Testimony

107 Dr Kerlinger also has a great depth of expertise in owls having studied their behavior

and ecology for nearly 40 years During his three years as a Natural Sciences and Engineering

Research Council of Canada (NSERC) post-doctoral fellow at the University of Calgary he

focused on the population biology and habitat selection of owls in winter which resulted in

several peer-reviewed publications He has also conducted additional owl research and published

articles on owl migration behavior (through capture and banding studies) and conducted

numerous pre- and post-construction impact studies at wind farms across North America where

most of the projects considered the potential for impacts to owls

- 41 -

Kerlinger Supplementary WS paras 56-58 CV p 1 KerlingerTestimony

108 Dr Eric Bollinger was qualified by the Tribunal as ldquoan expert on grassland birds

including Bobolinkrdquo He is an elected member of the American Ornithologists Union ndash an

organization dedicated to the scientific study and conservation of birds ndash and in 2007 was elected

a Fellow of that organization He is a Professor in the Department of Biological Sciences at

Eastern Illinois University where he has taught for the past 25 years He obtained his PhD from

Cornell University in 1988 ndash the title of his dissertation was ldquoThe Breeding Dispersion and

Reproductive Success of Bobolinks in Agricultural Landscaperdquo ndash and he has been researching

and writing about the Bobolink and its habitat ever since

Witness Statement of Eric Bollinger (November 25 2015) (ldquoBollingerWSrdquo) paras 2-5 Bollinger CV pp 1-2 Bollinger Testimony

109 Dr Bollinger has over the years received numerous grants to support his studies leading

to the publication of 14 peer-reviewed articles relating to Bobolink and its habitat and numerous

presentations at scientific meetings on the topic He recently conducted a five-year study of

grassland birds including Bobolink in conservation and reserve program fields in Illinois

Bollinger WS paras 6-8 Bollinger CV pp 2-5 Bollinger Testimony

(iii) Bobolink

About the Species

110 Bobolink is a medium-sized member of the blackbird family and the perching bird order

Passeriformes members of which are often referred to as ldquopasserinesrdquo Bobolink occur

throughout Ontario and are most commonly encountered in the kind of agricultural fields that

make up the majority of the landscape on Amherst Island In Ontario Bobolink are listed on the

Species at Risk in Ontario (ldquoSAROrdquo) list as lsquothreatenedrsquo

Bollinger WS paras 12-14

111 Bobolink typically live relatively short lives (4-8 years on average) and in undisturbed

habitat have a high reproductive rate of approximately 3 fledglings per breeding pair per season

throughout their adult lives As a consequence a single breeding pair can produce 12 to 24

- 42 -

young over a lifetime which is a six to twelve fold multiplier Like most birds they have a

relatively high rate of mortality from a variety of sources but their reproductive potential has the

ability to more than compensate for annual mortality making the Bobolink naturally very

resilient as a species

Bollinger WS para 15 Bollinger Testimony

112 One of the primary reasons that Bobolinks are now lsquothreatenedrsquo is because modern

farming practices have resulted in a material reduction of undisturbed breeding habitat and a

consequent material reduction in breeding success Early growth hay for example provides the

right height lsquograssesrsquo but harvesting (also known as lsquocroppingrsquo or lsquomowingrsquo) it during the

Bobolink breeding season which is common in Ontario destroys the nests and can also kill the

nesting adults When fields with active nests are cut 51 of the Bobolink eggs and nestlings are

initially destroyed by mowing That mortality figure subsequently climbs quickly (to 94) due

to factors such as nest abandonment and predation

Bollinger WS paras 17 22 Kerlinger WS para 24 Andrew TaylorWS para 44

113 Amherst Island is an area in which most Bobolink nests occur in farmed hayfields as

well as grazed grasslands The hayfields are typically croppedmowed in breeding season

leading to high levels of nest failure Livestock also present a threat to Bobolink on pasture land

through grazing and trampling Grazing reduces the abundance height and biomass of plants

used as nesting cover and changes the composition and structure of the local vegetation

Trampling also reduces nesting cover and increases the likelihood that eggs and nestlings will be

killed

Bollinger WS paras 24-25 Kerlinger WS para 24 Andrew TaylorWS para 44

Existing Bobolink Habitat on Amherst Island

114 As part of the initial investigation for the Project Mr Taylor and his colleagues at

Stantec conducted a Natural Heritage Assessment (ldquoNHArdquo) and Environmental Impact Study

(ldquoEISrdquo) in accordance with the requirements of Ontario Regulation 35909 (the ldquoREA

Regulationrdquo) and various related Ministry of Natural Resources and Forestry (ldquoMNRFrdquo)

- 43 -

guidelines and directives that apply to the process The purpose of the NHAEIS is to assess

potential risk to the natural environment and to protect significant natural features and wildlife

habitats The original NHAEIS report was confirmed by MNRF on December 14 2012 Two

years later in late 2014 a NHAEIS addendum was completed to address the significant

reduction in the number of proposed turbines from 37 to 26

Andrew Taylor WS paras 15-16 Andrew Taylor Testimony

115 The NHAEIS process included an extensive review of existing informationrecords and

extensive field investigations in respect of the ldquoProject Locationrdquo as well as a ldquozone of

investigationrdquo extending outside the full perimeter of the Project Location It also included

comprehensive grassland breeding bird surveys conducted over most of Amherst Island to

identify species presence and distribution The surveys included area searches as well as 40 point

counts in grassland habitat (ie hay and pasture fields) which were used to measure breeding

density twice the number of point counts recommended by the MNRF in the applicable

Guidelines All of the field surveys were conducted by qualified trained biologists with

particular expertise in birds and bird habitat

Andrew Taylor WS paras 17 41 Andrew Taylor Testimony

116 Dr Bollinger also reviewed this information as part of his assessment His description of

the comprehensive process that was followed is set out below The figures he provided showing

the Bobolink surveys were conducted all over the island are attached as Appendix B Note in

particular the yellow Bobolink symbol listed in the legends on each figure under ldquoGrassland

Species Observationsrdquo and the many point count locations at which they occur all over the

island

27 As reflected in the NHAEIS Stantec conducted certainbreeding bird surveys in order to identify the bird species presenton Amherst Island As reported in Appendix ldquoGrdquo of the NHAEISbreeding bird surveys were conducted in all habitat typesincluding grassland Three rounds of surveys were conducted ingrassland habitats (among others) during the period 30 May to 12July 2011 for a total of 44 survey dates over which 64 point countlocations were surveyed As further noted in Appendix ldquoGrdquo pointcounts were augmented by area searches Surveys were conductedat or within half an hour of sunrise and were completed by 1000am and the point counts were conducted in accordance with

- 44 -

Environment Canadarsquos ldquoRecommended Protocols for MonitoringImpacts of Wind Turbines on Birdsrdquo

28 Appendix ldquoFrdquo of the NHAEIS includes the results ofStantecrsquos field surveys The results relating to Bobolink arediscussed in detail in the Species at Risk (ldquoSARrdquo) Report alsoproduced by Stantec As the SAR Report notes ldquoAreas within theAmherst Island Project Study Area assessed as suitableBobolinkhellipbreeding habitat consisted of the following culturalmeadows (CUM1-1) hayfields pastures and fallow vegetationcommunitieshellip On Amherst Island pasture lands where intensivegrazing was observed were also considered suitable breedinghabitat forhellipBobolinkrdquo As further described in the SAR Report ofthe 63 surveyed breeding bird point count locations Bobolinkswere recorded at 41 locations Areas of grassland habitatconsidered potential Bobolink habitat are shown in Figures 40-48of the SAR Report copies of which are attached as Exhibit ldquoCrdquo

Bollinger WS paras 27-28 Bollinger Testimony

117 Based on this extensive survey work Stantec determined that there are approximately

3720 hectares (9188 acres) of Bobolink habitat on Amherst Island This includes 3113 hectares

in or adjacent to the Project Area that were identified through grassland birds field surveys and

at least another 605 hectares of habitat outside of the Project Area identified through aerial

photographs and electronic mapping as well as knowledge of the area from the field surveys

Andrew Taylor WS para 42 Andrew Taylor Testimony

118 Mr Evans did not conduct any field work but appears to have relied on a rule-of-thumb

estimate indicating ldquoabout three quarters of the available shrub land is used by Bobolinksrdquo to

arrive at a similar number of approximately 3480 hectares (8596 acres)

Evans WS para 10 Evans Testimony

Bobolink Density (Per Hectare) on the Island

119 As noted Mr Taylor and his colleagues carried out Bobolink breeding density studies

across all of Amherst Island Those studies included area searches as well as point count surveys

The latter involve trained observers standing in one location for 10 minutes and recording all

breeding pairs within 100 metres then working out the density per hectare and averaging across

all point counts In this case 40 point counts were performed across the island three times each

- 45 -

(for a total of 120 point counts) over a period of two months in the Bobolink breeding season

See the yellow Bobolink symbols on the figures attached as Appendix B for the exact locations

As Mr Taylor explained on cross-examination ten minutes is a very long time to stand still in a

field and provides a trained observer more than ample time to record all of the Bobolinks

present within 100 metres


120 Stantecrsquos comprehensive density studies revealed an average of 18 pairs of Bobolink per

hectare ndash or 36 breeding adults per hectare ndash within the grassland habitat across all of Amherst

Island This density figure is similar to that of Bobolink breeding bird surveys conducted on

similar habitats at other wind projects in Ontario including on Wolfe Island and in the North

Eastern United States As a result the Bobolink density on Amherst Island is in-line (and

consistent with) with what would be expected and in no way unique

Andrew Taylor WS para 43 Andrew Taylor Supplementary WSpara 64 Andrew Taylor Testimony Kerlinger WS paras 38-39Kerlinger Supplementary WS para 52 Kerlinger TestimonyBollinger Supplementary WS para 34 Bollinger Testimony

121 In contrast Mr Evansrsquo density estimate of 04 pairs of Bobolink per hectare is unusually

low ndash four to five times lower than what would normally be found in similar landscapes

Kerlinger WS para 38 Kerlinger Supplementary WS para 52Kerlinger Testimony Bollinger WS para 51 Supplementary WitnessStatement of Eric Bollinger (January 19 2015) (ldquoBollingerSupplementary WSrdquo) para 34 Bollinger Testimony Andrew TaylorWS paras 59-60 Andrew Taylor Supplementary WS paras 62-64Andrew Taylor Testimony

122 Unlike Mr Taylor Mr Evans is not qualified to conduct or assess breeding bird field

studies he did not conduct any such studies nor did he rely on field work that averaged observed

data from fields across the island Instead Mr Evans relied on a study by KFNrsquos Kurt Hennige

of a single 947 acre (380 hectare) field which only covers a fraction of the potential Bobolink

habitat on the island (3803720 = 102) Mr Evans describes that study in one paragraph of his

witness statement but does not attach the study or the data The uncontradicted evidence is that

- 46 -

the single 380 hectare KFN field is likely used for cattle grazing which compromises Bobolink

habitat and would explain the anomalous result

Evans WS para 9 Evans Testimony Andrew Taylor WS para 59Andrew Taylor Supplementary WS para 64 Andrew TaylorTestimony

123 The only Bobolink breeding density survey data collected by Mr Hennige that is in the

record before the Tribunal is from a study in which he investigated fields across the island (rather

than one unrepresentative field) and derived a significantly higher average density (22 pairs per

hectare) consistent with the densities found in similar landscapes and the densities found by

Stantec (18 pairs per hectare)

Hennige Study (2012) Taylor Supplementary WS para 64 andExhibit ldquoBrdquo Taylor Testimony

124 Mr Taylor made it clear in cross-examination the explanation is not that the single field

study by KFN that Mr Evans relied on is more recent (and therefore more accurate) than

Stantecrsquos field work As he explained Stantec has done extensive Bobolink survey work

throughout Ontario recently and it is ldquonot seeing decreases anything like [the KFN single field]

numbersrdquo

Andrew Taylor Testimony

125 Mr Evans relies on his unusually low density figure (of 04) to calculate a low island

population of 2800 which serves to make his fatality estimate appear more significant His

estimated 324 fatalities per year would equate to 12 of 2800

126 The Appellant in its Closing Submissions at paragraph 43 recommends the Tribunal rely

on that low population estimate because KFN ldquodo not simply have a passing or financial interest

in surveying populationsrdquo To the extent that argument is an allegations that paid professional

consultants like Stantec produce misleading data to assist their clients it is worth quoting

Dr Bollingerrsquos measured response in cross-examination to the same charge against Stantec ndash ldquoif

they were providing biased data I donrsquot think they would be in business very longrdquo It is also

worth noting that the data in question was all submitted as part of the REA application process

and it is an offence under section 184 of the EPA (for a corporation or an individual) to ldquoorally

- 47 -

in writing or electronically give or submit false or misleading information in any statement

document or data to any provincial officer the Minster the Ministry any employee or agent of

the Ministryhellip in respect of a matter related to this Act or the regulationsrdquo An offence under that

provision carries a maximum penalty for a first offence of up to $6000000 for corporations and

five yearrsquos imprisonment for individuals

Bollinger Testimony EPA ss 184-187 BOA Tab 1

127 Ironically Mr Evans goes on to contend on the basis of that same unusually low 04

density figure from a single KFN grazing field that Amherst Island is a ldquoBobolink strongholdrdquo in

the region The way Mr Evans explains his contention is by indicating that 04 pairs is a lot

denser than the 0029 density figure for the surrounding Kingston region (which he draws from a

publication entitled Birds of the Kingston Region) What he fails to point out is that the

comparison he is proposing is apples to oranges and as a consequence is highly misleading His

island density estimate of 04 is for grasslands only while the regional figure of 0029 average

includes extensive urban landscapes (including the City of Kingston where Bobolinks do not

nest) not just grasslands Using that kind of comparator would make any agricultural grasslands

(even trampled grazing lands) appear to have an unusually high Bobolink density It would be

the equivalent of comparing the Bobolink density in the hayfields of the King City region north

of the Greater Toronto Area (ldquoGTArdquo) to the Bobolink density in the GTA generally Nobody

would reasonably expect the heavily urbanized landscape of the GTA to be decent Bobolink

habitat so the comparison would be meaningless As Mr Taylor noted the hayfields in the

Kingston region would be expected to have approximately the same density as hayfields on

Amherst Island

Evans WS paras 11-12 Evans Testimony Andrew Taylor WS para60 Andrew Taylor Supplementary WS para 62 Andrew TaylorTestimony

Accurate Population Estimate

128 Estimating the total number of Bobolink on the island is a very straight forward two-step

process First one multiplies the number of hectares of Bobolink habitat on the island by the

adult breeding pair density per hectare In this case that is 3720 hectares x 18 pairs (36 birds) =

13392 Second (a step that Mr Evans skipped) one must add an estimate of the fledglings that

- 48 -

will be born every year The evidence on the record is that in compromised habitat ndash like the

regularly mowed grasslands in a typical farm field ndash one fledgling per pair is a reasonable

estimate Adding that one fledgling per pair of birds results in an additional 6696 birds (18 pairs

per hectare = 18 fledglings per hectare x 3720) which produces a total population estimate of

20088 (13392 + 6696)22

Kerlinger WS para 41 Kerlinger Testimony Andrew Taylor WSpara 44 Taylor Testimony Bollinger WS paras 32-33 BollingerTestimony

129 While ornithologists do not define natural populations of birds based on where a

particular wind project might happen to be sited each of Mr Taylor Dr Kerlinger and

Dr Bollinger put that perspective aside in favour of assessing the potential impacts to the local

population in this case to the 20088 Bobolinks that would be expected to take up residence on

Amherst Island every year The evidence is very clear that none of them assessed the potential

impacts on some broader regional or global population scale

Kerlinger WS para 35 Kerlinger Sur-Reply WS para 3 KerlingerTestimony Bollinger Supplementary WS para 3 BollingerTestimony Andrew Taylor Testimony

Low Displacement Risk

130 Research demonstrates that any Bobolink displacement that may occur as a result of the

presence of wind turbines is minor and short-lived One example is from a study from Upstate

New York which showed that only small numbers of Bobolinks were displaced within 50-100 m

of turbines and beyond 100 m there was no displacement That study also demonstrated that

Bobolink density within the wind farm was not significantly different from the density in

adjacent reference areas and over time Bobolinks habituated to turbines becoming more

numerous within 50-100 m of turbines five years after construction as compared to the first year

after construction Dr Kerlingerrsquos observations at wind projects in farm fields of Pennsylvania

22 Mowing and grazing does occur on Amherst during breeding season As Mr Lance Eves testified he usuallystarts mowing the hay on his farm ldquoaround the 20th of Junerdquo (Eves Testimony) But even if it did not fledgling rateswould likely be three fledglingha rather than one resulting in the addition of another ~13400 fledglingsyear for arevised population total of 33488 (ie 20088 + an additional 13400 fledglings) (Bollinger WS para 33)

- 49 -

also show that Bobolinks continue to forage close to and beneath turbine rotors (within about 50

m)

Kerlinger WS para 28 Kerlinger Testimony Bollinger WS para41 Bollinger Testimony

131 At neighbouring Wolfe Island Mr Taylor and his colleagues conducted ldquoone of the most

comprehensive disturbance studies to date on Bobolinkrdquo It involved three different kinds of pre-

and post-construction survey and monitoring programs over five years all of which demonstrate

that the wind project did not result in reduced Bobolink densities even very close to the turbines

Mr Evanrsquos assertion to the contrary ndash that Bobolink density at Wolfe Island is lower than on

Amherst ndash is based on a fundamental misunderstanding of the Stantec studies (which he is not in

any event qualified to assess)23

Andrew Taylor WS para 47 Andrew Taylor Testimony KerlingerWS para 29 Kerlinger Testimony

132 That same Wolfe Island study supports Mr Taylorrsquos experience at many other wind

projects in Ontario that access roads at wind projects do not fragment Bobolink habitat

Dr Bollinger shares the opinion that the Project will not result in any habitat fragmentation

Behavioral observations document that male Bobolink territoriesoften span these types of access roads Further the ESA Permit alsorequires that vehicular and human traffic on access roads beminimized as much as possible during the Bobolink breedingseasonhellip Given that the access roads will be narrow gated andinfrequently used I would expect the impact if any on Bobolinkdensities would be negligible


23 In 2014 Mr Taylor and his colleagues at Stantec examined the displacement risk to Bobolinks after constructionat Wolfe Island using three different methods The first method ndash examining Bobolink numbers within 1-100 m100-200 m and 200-300 m of the wind turbines ndash revealed there were not significantly fewer Bobolinks closer tothe turbines as would be expected if displacement had occurred The second method ndash point counts done at 27 sitesin the wind plant ndash also showed very little difference in densities of Bobolinks closer to turbines as opposed tofarther away The third method ndash surveys done from the road-side ndash showed no decline in the first year post-construction but some marginal decline in years two and three on either side of the roads Stantecrsquos view was thedecline is attributable to a temporary disturbance due to road upgrades that were carried out in year 2 and 3 makingthe results unrepresentative (Andrew Taylor WS para 47 Kerlinger WS para 29)

- 50 -

Minimal Impact on Habitat

133 Over the life of the Project the 396 hectare infrastructure footprint ndash which includes all

of the Project infrastructure that would not be removed after construction such as the access

roads turbines and their pads the area of the operations building and parking ndash would overlap

with only 16 hectares of the available 3720 hectares of Bobolink habitat on Amherst Island

representing only 04 of the available habitat

Andrew Taylor WS para 45 Andrew Taylor Testimony KerlingerWS para 30 Bollinger WS para 29

134 Based on his extensive experience with the post-construction studies including at

neighbouring Wolfe Island it is Mr Taylorrsquos opinion that this small amount of already

compromised habitat removal would not have any significant impact on Bobolink Dr Bollinger

and Dr Kerlinger concur the latter noting that ldquo[a] good portion of the existing Bobolink habitat

on Amherst Island is of limited value because like much of the available agricultural habitat in

North America it has been degraded by modern farming practices such as mowing crop rotation

and grazingrdquo

Andrew Taylor WS para 46 Kerlinger WS para 31 BollingerSupplementary WS para 30

135 A further 107 hectares of Bobolink habitat would be temporarily disturbed during

construction and available again for Bobolink within a year or two This 107 hectares is

comprised largely of a 20 metre wide construction area buffer established along the path of the

site access roads for construction activities Once the construction phase is complete the reserve

area would be returned to its pre-construction state and only the 6m access roads would remain

Bollinger WS paras 43-44 Bollinger Supplementary WS para 29Bollinger Testimony Kerlinger WS para 33 Table 1 KerlingerSupplementary WS para 49 Kerlinger Testimony Andrew TaylorWS para 45 Andrew Taylor Supplementary WS para 60(2)Andrew Taylor Testimony

136 In its Closing Submissions at paragraph 46 the Appellant argues that roads being

constructed will ldquoremove 70ha of Bobolink habitatrdquo resulting in the loss of ldquo28 pairs of

Bobolinkrdquo from the island That significant overestimate is based on Mr Evanrsquos erroneous

- 51 -

assumption that the large buffer zones for access road construction are part of the road width

when (as noted above) in fact the roads will only be 6 m after construction In any event the

evidence is that the result of temporary habitat removal would be displacement to another nearby

area not the loss of the birds from the island

Bollinger Supplementary WS paras 29-30

Negligible Mortality Risk

137 The responding witnesses estimated the Bobolink mortality from the Project to be

approximately 29 per year Mr Evansrsquo estimate was slightly higher at 324 per year24

Evans WS para 22 Kerlinger WS para 36(2) Table 1 BollingerWS para 38 Andrew Taylor WS para 49

138 The responding witnesses all concluded that this mortality risk was not significant

Kerlinger WS para 43 Kerlinger Testimony Bollinger WS para34 Bollinger Testimony Andrew Taylor WS para 52 AndrewTaylor Testimony

139 Dr Bollinger noted that 291 fatalities constituted 014 of the estimated 20088

Bobolink on Amherst Island and given the very high relative breeding productivity of Bobolink

he had no doubt that a potential loss of 014 annually was not significant He said that even if

he used Dr Smallwoodrsquos inflated estimate of 61 (which would increase the percentage to 030)

the impact would still be negligible Through questions from the Tribunal he confirmed that in

an extreme hypothetical using Mr Evans fundamentally flawed population estimate of 2800 and

Dr Smallwoodrsquos inflated mortality of 61 (increasing the percentage to 22) the impact would

still not be significant because of the relative reproductive resilience of the Bobolink


140 Dr Bollinger was confident in his assessment and had fully taken into account that the

Bobolink was a threatened species As he explained in response to a question from the Tribunal

24 At paragraph 46 of the Appellantrsquos Closing Submissions the Appellant argues that Mr Evansrsquo number of 324ldquowould likely be greater given the higher density of breeding Bobolink on Amherst Islandrdquo in an attempt to justifyhis guess of up to a 5 fatality rate In fact the density on Amherst Island of 18 pairs per hectare is similar to thedensity on Wolfe Island and other wind projects across Ontario (Andrew Taylor WS para 43) so that is no reasonto project a potentially higher figure

- 52 -

the key is to understand that the decline in Bobolink populations is from the very large

proportion of nests (and proportionately much larger fatality) lost to modern farming practices

and it is only that type of dramatic impact that can affect (or influence) a population decline in

this species

Bollinger Testimony

141 Dr Kerlinger and Mr Taylor were each taken through the same scenarios and gave

consistent answers based on their extensive experience with Bobolinks

Kerlinger Testimony Andrew Taylor Testimony

Bobolink Fatality Estimate

142 The wind project at Wolfe Island has been in operation since 2009 In the period since it

began operation Mr Taylor and his colleagues at Stantec prepared seven post-construction

monitoring reports summarizing the results for birds including extensive monitoring to assess

the impact of the Project on Bobolinks During the six monitoring periods for which complete

data are available (2009-2011) twenty-three Bobolink carcasses were collected within 50 m of

wind turbines Applying certain correctionadjustment factors addressed below this number

represents 1815 birds across the six reporting periods or 605 mortalities per year which equates

to 070 Bobolinks per turbine per year (ie 605 mortalities per year 86 turbines = 070

Bobolinks per turbine per year)

Andrew Taylor WS paras 48-49 Andrew Taylor TestimonyKerlinger WS Table 1 Kerlinger Testimony Bollinger WS para 37Bollinger Testimony

143 As each of Dr Bollinger Dr Kerlinger and Mr Taylor explained for Amherst Island

this number must be further adjusted to account for the fact that only 60 of the turbines are in

grassland on Wolfe Island whereas 96 of the turbines will be in grassland on Amherst Island

(ie 25 of 26 turbines on Amherst Island will be in grassland) The resulting calculation is

straight forward 070 Bobolinks per turbine per year (from Wolfe Island) x 26 turbines (from

Amherst Island) = 182 Bobolinks in total per year at Amherst Adjusting this calculation for the

higher proportion of turbines in grassland on Amherst Island divide 182 Bobolinks per turbine

per year by 06 (the percent of turbines in grassland on Wolfe Island) then multiply by 096 (the

- 53 -

percentage of turbines in grassland on Amherst Island) = 291 or 11 Bobolinks per turbine per

year

Bollinger WS para 38 Bollinger Testimony Andrew Taylor WSpara 49 Andrew Taylor Testimony Kerlinger WS Table 1Kerlinger Testimony

144 The estimate of 291 mortalities per year is likely a conservatively high estimate As

Mr Taylor and Dr Bollinger explained the proposed turbines at Amherst Island would be taller

than those on Wolfe Island As a result the bottom of the blade sweep area would be at 45

meters off the ground which is 10 m higher than at Wolfe Island This higher blade clearance

zone would be expected to reduce the mortality of Bobolinks nesting and foraging on Amherst

Island as the majority of Bobolink flights are relatively low to the ground usually within 10 m

During the extensive post-construction monitoring at Wolfe Island Mr Taylor and his

colleagues did not observe any Bobolinks flying at blade height ndash the extra 10 m of extra

clearance would therefore make blade collision an even rarer event for Bobolink at Amherst

Island

Andrew Taylor WS para 51 Andrew Taylor Testimony BollingerWS para 38 FN F

145 The estimate of 291 fatalities per year is consistent with Bobolink mortality rates

observed at other wind projects As Dr Kerlinger explained of the small number of bird

fatalities that occur at Canadian (including Ontario) wind projects only about 2 of those

fatalities are Bobolinks despite their relative abundance in the fields used for turbines and

adjacent fields Dr Kerlinger has observed similarly low numbers at several other projects

including through post-construction studies in New York State at the Maple Ridge project

Wethersfield project and Bliss projects

Kerlinger WS paras 26-27 Kerlinger Testimony

146 The estimate of 291 is also close to the estimate of 324 that Mr Evans calculated and

that the Appellant relies on in paragraph 45 of its Closing Submissions

147 Dr Smallwoodrsquos estimate of 61 Bobolink fatalities per year ndash which is noted at paragraph

57 of the Appellantrsquos Closing Submissions ndash is the outlier at roughly double the estimate of the

- 54 -

other four witnesses and was calculated using unconventional new methods that he is in the

process of developing A further explanation of the adjustments factors that are applied as part of

conventional fatality estimation and an assessment of the basis for the new approaches

Dr Smallwood is developing is set out in Appendix ldquoCrdquo

Bobolink Mitigation and Compensation

148 Despite the low risk of impacts to the islandrsquos Bobolink population from the construction

and operation of the Project Condition L1 of the REA provides a further layer of protection by

requiring the Approval Holder to ensure that the proper authorization under the Endangered

Species Act (ldquoESArdquo) is obtained in the form of an ESA permit

Andrew Taylor WS para 52 Andrew Taylor Testimony KerlingerWS para 32 Kerlinger Testimony Bollinger WS paras 29 45Bollinger Testimony

149 That permit has been obtained and provides that Bobolink compensation measures be

implemented during and after construction namely

(1) the creation and management of a Bobolink Habitat Enhancement Site that

meets certain geographic and size criteria In particular the ESA Permit

requires that greater than 123 hectares of compensation habitat be

established and managed for the life of the Project The 123 hectares is

intended to offset the 16 hectares of habitat that will be permanently removed

and the 107 hectares of temporary disturbance

(2) the use of specific seed mixtures to improve the Bobolink Enhancement Sites

(50-75 grasses with the remainder in forbs mixture of tall and short

grasses etc) and

(3) protection from mowing and from grazing animals during the breeding

season (April 1 to July 31)

ESA Permit Andrew Taylor WS Exhibit ldquoFrdquo Andrew Taylor WSpara 53 Andrew Taylor Testimony Kerlinger WS para 33Kerlinger Testimony Bollinger WS paras 29 46-48 BollingerTestimony Witness Statement of Kathleen Pitt (November 25 2015)(ldquoPitt WSrdquo) paras 28 32

- 55 -

150 In accordance with the requirements of the REA and ESA Permit the Approval Holder

has entered into 25 year leases (five years longer than the life of the Project) for the use of five

parcels of land on the island covering a total of 136 hectares of habitat 13 hectares more than

the 123 hectares required by the ESA Permit

Leases Andrew Taylor WS Exhibit ldquoGrdquo Andrew Taylor WS para54 Andrew Taylor Testimony Bollinger WS para 46 BollingerTestimony

151 The Appellantrsquos Closing Submissions at paragraph 47 argue that ldquoit is clearrdquo the five

parcels ldquoare far from optimal Bobolink habitatrdquo which appears to simply be based on the opinion

of its legal counsel (no evidence is cited to support this assertion) None of the witnesses in this

proceeding provided that view25 On the contrary as Mr Taylor explained in his letter of

November 20 2015 to MNRF regarding the five parcels of Bobolink habitat they all meet

andor exceed the requirements of section 41 of the ESA Permit which requires that the Bobolink

habitat meet the following requirements

(1) greater than 123ha in size

(2) located as close to the Project as possible and not outside of Ecoregion 6E

(3) each parcel must contain a minimum of 4 ha of contiguous interior habitat

more than 100m from the edge of the habitat

(4) no portion shall be less than 200m wide and

(5) each parcel of land must be determined in consultation with and approved by

the MNRF26

Andrew Taylor WS paras 54 and 55 Exhibit ldquoGrdquo

152 Dr Bollinger confirmed on cross-examination that each of the parcels provides ldquoa pretty

big chunk of ground for a Bobolink population in a fieldhellip From looking at the maps of the

25 Mr Evans did not address the compensation habitat other than to say in oral testimony that he did not believe thatit would be helpful because in his view the birds ldquowould still be under threat while they are flying around theislandrdquo (Evans Testimony) Dr Kerlinger Dr Bollinger and Mr Taylor all offered the opinion that the five parcelsof compensation habitat are good quality habitat for Bobolinks26 As required by the ESA Permit and the REA this habitat will be ready the first breeding season followingconstruction

- 56 -

compensation fields there is not a lot of woods surrounding the edges They should be good

habitatrdquo This is consistent with Mr Taylorrsquos view that that due to the size of the parcels

ldquofragmentation will not be a concernrdquo and that the Approval Holderrsquos commitment to managing

136 hectares of Bobolink habitat (not just a 123 hectare subset) on the island that are currently

compromised by the risks of modern farming will ldquoundoubtedly enhance the island Bobolinkrsquos

breeding successrdquo Dr Kerlinger concurred opining that ldquobreeding success in that improved and

protected compensation habitat will significantly exceed the success that the degraded habitat

would have been expected to producerdquo

Andrew Taylor WS para 56 Andrew Taylor Testimony BollingerTestimony Kerlinger WS para 36(4)

153 As a further layer of protection Bobolink are also included in the Operation Mitigation

Plan (ldquoOMPrdquo) which sets out further requirements for the Bobolink Habitat Enhancement Site

as well as additional monitoring and mitigation measures to be taken during Project operation27

The OMP requires that at least 25 of the habitat designated as the Bobolink Habitat

Enhancement Site will be located away from edges such as roads or forests and that all of the

habitat be comprised of 50-75 grasses less than 25 alfalfa a mixture of tall and short grasses

with a minimum of 3 grass species The additional mitigation measures require the

implementation of operational mitigation steps to appropriately address and minimize Bobolink

mortality and to ensure that the Project complies fully with the conditions of the ESA Permit

specifically

To avoid harming or harassing Bobolink and their habitat duringmaintenance activities while operating the Project the followingmeasures will be implemented

bull Maintenance to roads and collector lines will not be undertakenduring the breeding bird season (May 1st to July 31st) unlessnecessary for safety and environmental protection

bull Maintenance activities will avoid Bobolink habitat and workareas will be clearly delineated to avoid accidentalencroachment into habitat and

27 Following each year of monitoring the results will be reviewed by the principal investigator a delegate of theProject operator and a third party independent expert (the ldquoTechnical Advisory Committeerdquo) to consider if operationof the Project is having any adverse effects on Bobolink and other species The Technical Advisory Committee willalso consider how further operational mitigation should be implemented if required (OMP Taylor WS ExhibitldquoErdquo p 23)

- 57 -

bull Dust suppression measures will be implemented as required

OMP Andrew Taylor WS Exhibit ldquoErdquo pp 23 28 29 AndrewTaylor WS para 57 Andrew Taylor Testimony

154 Monitoring will take place annually for the first three years of operations and thereafter

once every five years for the life of the Project or as required to address potential effects on the

Species After review of the full monitoring results in years 1-3 the need for and scope of

additional monitoring in years 4-6 will be determined by the Technical Advisory Committee

Should any operational mitigation be required to minimize or eliminate any adverse effects to the

Species beyond year three additional monitoring will be undertaken to assess the effectiveness

of the mitigation In addition monitoring will occur for a period of five years to determine the

success of Bobolinks in the Habitat Enhancement Site28

OMP Andrew Taylor WS Exhibit ldquoErdquo pp 23 33

155 Taken together the measures set out in the ESA Permit and the OMP would be expected

to result in an overall annual increase in the number of Bobolinks on Amherst Island as nesting

success should be much higher than would be the case for the 123 hectares of habitat (that is

subject to hay-cropping and animal grazing) that will for the most part only be temporarily

disturbed by the Project29

Bollinger WS para 45 Bollinger Testimony Kerlinger WS para34 Kerlinger Testimony Andrew Taylor WS para 56 AndrewTaylor Testimony

156 That increase was quantified by the responding experts in this case as the difference in

reproductive success expected between a high quality site (eg optimum seed mixtures and no

farming induced disturbance) and a low quality site (eg no management of grass mix and

28 During each year of monitoring three rounds of surveys will be conducted at least one week apart between June 1and the first week of July The monitoring will consist of point counts in accordance with ESA requirements Duringthe surveys the following information will be recorded date and weather number and location of Bobolinkobserved distance and direction of each observation relative to the closest vertical structure and the nature of thatstructure estimated location of nests and estimated distance between each probable nest and closest verticalstructure and the nature of that structure (OMP Taylor WS Exhibit ldquoErdquo p 33)29 Kathleen Pitt Management Biologist in the Peterborough District of the MNRF confirmed that managedgrassland habitat in this case will ldquoresult in an increase in breeding productivity per year for an expected 20 yearsover what would have occurred if the habitat was not actively managedrdquo (Pitt WS paras 31 Pitt Testimony)

- 58 -

subjected to farming practices) Dr Bollinger Dr Kerlinger and Mr Taylor calculated that

benefit as resulting in a net gain of 1869 Bobolink fledglings per year as follows

(1) the nest densities would be the same (18 nestsha)

(2) the enhanced habitat should produce a mean of 3 fledglings per nest but

Dr Bollinger Dr Kerlinger and Mr Taylor each adopted a conservative

estimate of approximately 2 fledglings per nest (as opposed to the 1 that

would be produced in compromised habitat)30

(3) the high quality habitat would thus produce 18 more fledglings per hectare

than poor quality habitat

(4) the 16 ha of habitat that will be directly impacted for the life of the Project

are subtracted from the 136 ha of high quality compensation habitat31

(5) the remaining 120 hectares of high quality habitat will produce 18 more

fledglings per hectare (or 120 x 18 = 216) annually than it would have

without the enhancement and protection required by the ESA permit and the

OMP and

(6) from this annual figure (216) are subtracted the projected annual mortalities

resulting from the Project (291) resulting in a net annual increase of 1869

birds per year for the life of the Project


30 As discussed in paragraph 156 in uncompromised habitat the expectation would be two to three nestlings onaverage per nest In compromised habitat with mowing or livestock the expectation would be one nestling per nestDr Kerlinger Dr Bollinger and Mr Taylor have conservatively assumed only one additional nestling per nest in theBobolink Habitat Enhancement Sites where the agricultural influences have been removed and the seed mixmanagement has been introduced (Bollinger Testimony Kerlinger Testimony Taylor Testimony)31 As Dr Bollinger explained the adults displaced from the 16 ha are likely to find nesting locations elsewhere onAmherst Island and are likely to produce some offspring This is consistent with post-construction monitoringstudies on Wolfe Island have shown that the removal of a small amount of habitat does not reduce the breedingindividuals in the landscape However Drs Bollinger and Kerlinger and Mr Taylor have approached the net benefitcalculation conservatively and have not included these additional nestlings in their calculation (Bollinger WS para49 FN H)

- 59 -

157 Mr Evans did not take the compensation requirements into account in the preparation of

his witness statement nor did he challenge them in any meaningful way in his oral testimony In

particular in his oral testimony all he said was ldquo[m]y main criticism of the mitigation plan of

managing 136 hectares for good Bobolink habitat is that 136 hectares is also on Amherst

IslandhellipI donrsquot see how the Amherst Island project can possibly be beneficial for it Thatrsquos

where I got into this issue with the extra acreage that was being set aside and preserved because

those birds are still going to be under threat while they are flying around the islandrdquo

Evans Testimony

158 Dr Smallwood argued that even with the Bobolink Habitat Enhancement Site the

Project will result in the loss of 12 Bobolink annually He starts from the same place as

Dr Kerlinger Dr Bollinger and Mr Taylor that the Bobolink Habitat Enhancement Site will

contribute 216 birds annually However from that figure he subtracts four numbers

(1) 86 which he says should be deducted to account for the 58 adults (16 x 36 = 58)

adults and 28 fledglings (16 x 18 = 28) that will be lsquolostrsquo when the 16ha of long

habitat lost for the life of the Project There are two problems with this First

nestlings from the 16 hectares lost from the Project have already been deducted

(the 28 are not included in the 216) as noted in paragraph 156 above Second the

loss of 16 hectares is unlikely to result in the loss of adult Bobolinks on Amherst

Island who are instead likely to relocate elsewhere on the island32

(2) 58 which represents an annualized calculation for the number of birds

Dr Smallwood says will be ldquolostrdquo as a result of temporary habitat displacement

Dr Smallwoodrsquos assumptions underlying this calculation are flawed First he

assumes that the habitat would be removed for at least three years As discussed

above disturbed areas will be immediately reseeded and available for use within

one year of construction Second Dr Smallwood incorrectly equates

32 As Dr Bollinger explained it is likely that these displaced birds especially the females would still breedsomewhere nearby Dr Bollinger has first-hand experience with this in between his third and fourth seasons of hisdissertation research on Bobolinks about half of the hayfield he was working in was converted to a heavily grazedpasture which was no longer usable by Bobolinks The remaining half of the hayfield had 50 more birds than theprevious two years and the males had higher levels of polygyny (Bollinger Supplementary WS para 30)

- 60 -

displacement with fatalities Displaced birds are likely to nest elsewhere on the

island as noted above

(3) 61 which represents his calculation of annual fatalities For the reasons discussed

above this estimate is vastly overstated and

(4) 23 which represents his estimate of fatalities attributable to failed nests caused by

increased parent mortality Again there are two problems with this calculation

First it assumes a starting point of 61 fatalities which is incorrect for the reasons

discussed above Second as Mr Taylor explained a nest failure rate of 25 is

fundamentally inconsistent with the post-construction monitoring data from

Wolfe Island33

Andrew Taylor Supplementary WS para 60 KerlingerSupplementary WS para 49 Bollinger Supplementary WS para 33

159 To summarize Dr Smallwoodrsquos estimate of the net fatalities taking into consideration

the benefits of the Bobolink Habitat Enhancement Site is 216-86-58-61-23= -12 birds34 For the

reasons discussed above the correct estimate is 216-0-0-291-0 = +1869 birds

Kerlinger Supplementary WS para 49 Bollinger Supplementary WSpara 33 Andrew Taylor Supplementary WS para 61

Owls

160 The concerns raised about the possibility of impacts to owls and owl habitat were

articulated by Mr Beaubiah and addressed in the responding evidence of Mr Taylor and

Dr Kerlinger Dr Smallwood used a small fraction of his reply evidence to criticize some of the

responses Dr Kerlinger provided to Mr Beaubiahrsquos evidence on owls

33 On Wolfe Island Mr Taylor observed that the majority of Bobolink fatalities during the breeding season weremales that had been born that year and were at the time of fatality neither nestlings (ie their death was not theresult of a failed nest) nor adults (ie they did not support a nest) Of the 23 recorded fatalities over the three plusyears of monitoring only three (13) were females during the breeding season If one were to assumeconservatively that all of those deaths resulted in nest failure and apply that rate to Amherst Island the result is anestimate of 13 of 29 fatalities or four fatalities resulting from failed nests which is significantly less than the 23estimated by Dr Smallwood (Taylor Supplementary WS para 60(4))34 A net benefit of -12 birds per year would represent 0005 of a population of 20088 birds or 04 of apopulation of 2800 birds

- 61 -

161 In evaluating the evidence in its totality the relative inexperience of Mr Beaubiah and

Dr Smallwood with owls and their habitat is an important consideration for the Tribunal

Mr Beaubiah is not a bird expert and does not have any experience assessing the potential

impact of wind turbines on birds or their habitat Dr Smallwood does have expertise in assessing

the impacts of wind turbines on birds but his field experience is exclusively in California and

mostly at Altamont (which is described above at paragraph 97 and in Appendix C at

paragraph 15) Neither Mr Beaubiah nor Dr Smallwood conducted any field work at the Project

site Dr Smallwood has not even visited Amherst Island

162 Mr Taylor in contrast has conducted extensive field work at numerous wind projects

throughout Ontario including pre- and post-construction studies to identify the potential for

impact from wind farms on owls That work included the most comprehensive post-construction

study in Ontario (at nearby Wolfe Island) of the potential impacts of turbines on birds including

owls He applied that experience to conduct and coordinate the extensive background review

work and field surveys including behavioral observations for the NHAEIS for the Project

which provided what he considers to be a thorough understanding of the form and function of

owl habitat on the island

Andrew Taylor WS paras 87-90 92 Andrew Taylor SupplementaryWS paras 112-113 Andrew Taylor Testimony

163 Dr Kerlinger is not only an exceptionally experienced full time bird expert with decades

of experience evaluating the impacts of wind projects on birds and their habitat he is also an owl

expert as described in paragraph 107 above Dr Kerlingerrsquos work with owls has spanned almost

40 years including his postdoctoral work as a Natural Sciences and Engineering Research

Council of Canada (NSERC) fellow at the University of Calgary the numerous articles that he

has published on owl migration behaviour and the many pre- and post-construction impact

studies he has conducted at wind farms across North America which considered the potential for

impacts to owls

Kerlinger Supplementary WS paras 56-58 Kerlinger CV p 1Kerlinger Testimony

- 62 -

No evidence of material risk of harm

164 Although the requisite legal test requires proof of serious and irreversible harm in this

proceeding there was little evidence before the Tribunal that there is even a material risk of harm

to owls and their habitat Mr Beaubiah limited his evidence to perceived gaps in the available

information and the suggestion that further studiesinvestigation could and should be carried out

He did not allege that serious and irreversible harm will occur instead expressing that the

Approval Holder could not confirm that kind of harm will not occur

Beaubiah WS paras 25(c) 33-35 Beaubiah Testimony

165 In particular Mr Beaubiah was concerned that there was not enough information

available to conclude with certainty that the islandrsquos owls would not be disrupted or displaced

from their huntingforaging by the Project that the density of the owlrsquos principal prey (voles)

would not be affected by the construction of new access roads and that the owls would not suffer

mortality from the operation of the turbines Dr Smallwood spent very limited time on the topic

focusing on replying to some of what Dr Kerlinger had said in response to Mr Beaubiahrsquos

concerns He also added some personal observations he had made at Altamont Pass and asserted

without foundation that lsquoowls will be killedʼ at Amherst without indicating how many of what

species and to what extent if any such mortality would impact the existing owl population (for

which he did not even suggest a population size)

Beaubiah WS paras 25(c) 33 Beaubiah TestimonySmallwood Reply WS para 56 Smallwood Testimony

No Evidence of DisplacementDisruption

166 Dr Kerlinger explained that many owl species habituate to human activity foraging

along road sides near the edges of runways city parks golf courses suburban neighborhoods

and other areas where there is regular human activity and loud noises He described this ability to

habituate as one of the reasons owls are so popular with birders That would also explain why

despite years of visits from curious onlookers to the Owl Woods ndash an area of woods with

established trails that attract birders and photographers at a rate of up to 400 people per day when

the owls are present ndash the owl density on the island remains strong

- 63 -

Kerlinger WS para 46 Kerlinger Testimony Beaubiah WSpara 21 Beaubiah Testimony

167 The pre-construction and post-construction monitoring studies at nearby Wolfe Island

conducted by Mr Taylor and his colleagues at Stantec35 included monitoring of wintering

migratory and breeding raptors including owls 36 They confirmed that turbines pose a very low

risk of owl displacement and no displacement of the owlsrsquo foraging habitat Owls continue to

winter in large numbers on Wolfe Island near the turbines As Mr Taylor explained the owls

have not stayed away from the area as Mr Beaubiah suggested may happen stating that ldquoif you

go to Wolfe Island today and want to find owls you go to where the turbines arerdquo

Andrew Taylor WS para 104 Andrew Taylor Supplementary WSpara 115 Andrew Taylor Testimony

168 Mr Taylor and his colleagues at Stantec have also conducted extensive pre-construction

monitoring studies of owls and owl habitat at Amherst Island which included the identification

of significant wildlife habitat for owls through Ecological Land Classification37 and over 350

hours of behavioral studies in both the wintering and breeding periods38 These extensive surveys

have provided Stantec with a strong understanding of the raptors and owls on Amherst Island39

He observed that the range of owls species on Amherst Island is the same as that on Wolfe

Island As with Wolfe Island it is expected that the Project will pose no displacement risk to the

owls on Amherst Island

35 Mr Beaubiah suggested that the pre-construction data for Wolfe Island with respect to owls and their habitat islimited On the contrary the ESR for the Wolfe Island Wind Project included extensive multi-year pre-constructionsurveys of wintering migratory and breeding raptors and owls in 2007 and 2008 Monitoring of owls was alsoconducted during construction in the winter of 2009 (Taylor WS para 103) and more recently36 Dr Smallwood incorrectly suggested that no studies have been designed or executed to test whether owls aredisplaced by wind turbines As Mr Taylor explained he conducted precisely those studies on Wolfe Island (TaylorSupplementary WS para 115 FN 3)37 Mr Taylor and his colleagues took a conservative approach to this assessment by including active agriculturalfields which are not considered by MNRF to be owl habitat (Taylor Testimony)38 Trained observers drove the main roads of the Project Area at slow speeds and walked transects over the Projectarea observing and mapping where the owls forage and roost and monitoring flight heights and patterns In thebreeding periods the observers also noted the locations of the owlsrsquo breeding habitat (Taylor WS paras 87-90)39 Mr Beaubiah raised a concern that a study of prey density (voles) is necessary to support a thorough impactassessment of owls and raptors Dr Kerlinger and Mr Taylor disagreed explaining that the extensive field surveysfor the owls themselves provide a very good understanding of where and how owls are using habitats on the island(Taylor WS para 98 Kerlinger WS para 49)

- 64 -

Andrew Taylor WS paras 87-91 Andrew Taylor Supplementary WSpara 116 Andrew Taylor Testimony

169 Mr Beaubiah raised concerns about the location of the four turbines west of Owl Woods

As Mr Taylor explained these turbines are not expected to have any impact on the owls as the

closest Project infrastructure is set well back from the woods and more than 500 meters from the

particular tree plantation within the Owl Woods where most of the owls are known to roost ndash the

concentration of Jack Pines on the eastern end of the Woods There is also no reason to believe

that these turbines would create any kind of a barrier or that owls would have any difficulty

flying around them As Dr Kerlinger explained there would be considerable room for owls to

fly well below the turbines at Amherst (the bottom of the blade tips would be 45 meters off the

ground) and ample separation between the turbines (at least 100m tip to tip) for the owls to fly

between them

Beaubiah WS paras 18 20 Beaubiah Testimony Andrew TaylorWS para 93 Andrew Taylor Testimony Kerlinger Testimony

No Impact on Owl Prey (Voles)

170 Mr Beaubiah notes that the islandrsquos vole (a small rodent) population is a stable source of

food for the owls and speculates that the removal of a small portion of the islandrsquos grassland

habitat and the construction of turbine access roads might have an impact

Beaubiah WS paras 26(c) and (d) Beaubiah Testimony

171 Dr Kerlinger noted that the 16 hectares (04) of the islandrsquos grassland that would be

removed for the life of the Project is unlikely to have any material impact on the local vole

population and that the compensation habitat enhancement that would be provided for the

Bobolink would probably even improve the volesrsquo productivity as the longer (un-mowed) hay

and un-trampled fields would provide them with better conditions for breeding success

Dr Smallwood took issue with the latter assertion but as Dr Kerlinger pointed out

Dr Smallwoodrsquos experience was with a different variety of voles (from California)

The vole species that Dr Smallwood studied in California(Microtus californicus) inhabits dry grasslands The species thatinhabits Ontario (Microtus pennsylvanicus) tends to flourish inthicker moister grasslands including tall mature hayfields When

- 65 -

one considers the difference in the preferred habitat of thesespecies the answer to Dr Smallwoodrsquos question ldquo[h]ow willcessation of mowing hay crops result in higher density of volesrdquo(para 54) is obvious cessation of mowing in the compensationareas results in taller thicker vegetation for voles which permitsthem to have greater reproductive success and greater densities

Kerlinger WS para 49 Kerlinger Supplementary WS para 64

172 Dr Kerlinger and Mr Taylor also opined that there was no reason to believe there would

be lsquohabitat fragmentationrsquo for the vole population as a consequence of the construction of the 6

meter wide gravel access roads which would be easily crossed by voles Mr Taylor noted that

the field surveyors had observed voles at the site crossing the much wider paved roads on the

island As Dr Kerlinger noted

Meadow voles are very common mammals and more than able to crosssmall roads very quickly so the suggestion they may be negativelyimpacted seems unfounded These mammals are located throughoutsouthern Ontario where there are roads as well as much of New YorkQuebec Pennsylvania and beyond and are not considered to be rare ora species of concern They breed very rapidly and disperse broadlyespecially when population densities reach their highest levels Thesmall roads at the Project site are unlikely to deter dispersal or bebarriers to movements of meadow voles

Kerlinger WS para 50 Andrew Taylor WS para 100

173 Mr Beaubiah also raised concerns that turbines will potentially change the lsquowind sweptrsquo

nature of the island resulting in greater snow accumulation under which the voles can hide

Mr Taylor explained that Stantec has worked on many wind farms which by their nature are in

windy locations and has never observed any significant impact on wind flows or snow

accumulation

Beaubiah WS para 26(d) Andrew Taylor WS para 101

No Mortality Risk

174 Mr Beaubiah speculated that the Project might result in increased owl mortality

Dr Smallwood described some statistics on burrowing owls at Altamont and from there he

leapt to the conclusion that lsquoowls will be killedʼ at Amherst Island

- 66 -

Beaubiah WS para 28 Beaubiah TestimonyWitness Statement of Shawn Smallwood (September 28 2015)(ldquoSmallwood WSrdquo) para 56 Smallwood Testimony

175 The reality is that there is no basis for this concern given the typical behavior of owls

and the very considerable volume of empirical data on the potential for impacts to owls from

modern well-spaced wind farms Dr Kerlinger and Mr Taylor each explained that in their

experience owls show good awareness and avoidance of wind turbines when in flight between

hunting grounds When they are actually hunting (and looking down at the ground) they are

either sitting on perches that average a few meters off the ground or are engaged in low level

flight (because the prey is on the ground) Because the turbine blade swept zone at the Project

(unlike Altamont) does not begin until 45 meters off the ground an owl hunting at normal

heights would not be at any risk of being hit by a blade

Kerlinger WS para 53 Kerlinger Testimony Andrew TaylorTestimony

176 Those behavioral characteristics may well explain why there were no owl fatalities

recorded at Wolfe Island nor has there ever been an owl fatality recorded in the post-

construction studies carried out at 33 other wind projects in Ontario

Andrew Taylor Supplementary WS para 123 Andrew TaylorTestimony Kerlinger Supplementary WS para 60 KerlingerTestimony

177 Mr Beaubiah also expressed concerns that the higher raptor density on Amherst Island

would result in greater mortality than that observed on Wolfe Island This is highly unlikely as

there would be 70 fewer turbines on Amherst Island and their blades would be higher off the

ground

Beaubiah WS para 29 Beaubiah Testimony Kerlinger WS para 56

178 Dr Smallwoodrsquos experience with Burrowing Owls at Altamont is not applicable to

Amherst As Dr Kerlinger explained Burrowing Owls (which are not found in Ontario) are at

risk at Altamont because of the unfortunate combination of their unusually active hunting and

flying height and (very importantly) the low turbine blade height and close proximity to one

another of the older generation turbines used at Altamont Those factors together create an

- 67 -

atypically dangerous environment for Burrowing Owls a risk that would not be replicated by the

tall well-spaced modern turbines at Amherst

Kerlinger Supplementary WS paras 60 61 Kerlinger TestimonyAndrew Taylor Supplementary WS para 122

179 As noted above on the basis only of his Altamont experience Dr Smallwood makes the

categorical assertion that ldquoowls will be killed by wind turbines on Amherst Islandrdquo He makes no

effort to identify the particular owl species estimate their population size or scope predict the

number of individuals he asserts ldquowill be killedrdquo or evaluate the extent and implications of the

impact

Smallwood Reply WS para 56 Smallwood Testimony KerlingerSupplementary WS para 62 Andrew Taylor Supplementary WS para 123

180 In his final witness statement in responding to the criticism that he had not presented any

data on owls (just one anecdote) Dr Smallwood listed in a single paragraph what he asserted

were the results of his review of owl fatality data without citing to any source or providing any

evidentiary support As Dr Kerlinger explained the majority of owl fatalities that have occurred

in the United States have occurred in the Altamont Pass in California and have involved

Burrowing Owls Owl mortality elsewhere is rare

Smallwood Supplemental Reply WS para 41 Kerlinger Sur-ReplyWS paras 22-23 Andrew Taylor Sur-Reply WS para 19 KerlingerSupplementary WS paras 60 61 Kerlinger Testimony AndrewTaylor Supplementary WS para 122

181 As Dr Kerlinger also explained the post-construction mortality data from typical wind

projects shows that ldquoit is more likely than not that owls will not be killed by the Project In fact

the chance of such a fatality is very lowrdquo [emphasis in original]

Kerlinger Sur-Reply WS para 23

tporfido
Text Box
BATS TAB13

- 68 -

C Bats

Overview

182 In its Closing Submissions the Appellant tracks the bats analysis from the Tribunalrsquos

recent Hirsch decision addressing the White Pines project in Prince Edward County and

attempts to minimize the materially different evidence in this proceeding to produce the same

outcome The Tribunal in Hirsch as in many previous cases was very clear that each case must

be determined on its own facts

183 One of the important factual distinctions is that the Amherst Project is proposed for a

very different landscape where 96 of the turbines and access roads would be in agricultural

grasslands (hay and pasture fields) ndash not the kind of landscape where the bats at issue in this

proceeding would be expected to be found The forest edges and larger wetlands which are good

foraging habitat ndash and in Hirsch were found to be abundant throughout the White Pines site ndash are

on the facts in this proceeding replaced by wind swept agricultural grasslands lands that do not

constitute bat habitat or provide foraging opportunities to attract bats

184 Stantec conducted specific surveys on Amherst Island for maternity roosts and

hibernacula and confirmed there were none They went back to the island again to look

specifically at the caves and allegedly lsquokarsticrsquo features identified by Mr Cowell as did

Dr Reynolds and determined they were not suitable for bat use

185 In Hirsch because the bats were expected to be at turbine locations there was a

likelihood of mortality albeit small In this proceeding because the bats are not expected to be at

turbine locations although they may occur elsewhere on the island the risk is much lower so

low that the weight of expert evidence is that there is unlikely to be any bat mortality to the

species at issue That reasonable expectation is fully supported by the detailed expert

consideration of the results of the Wolfe Island monitoring program that was before this Tribunal

but not before the Hirsch panel In this proceeding the Tribunal heard that in the most recent

three years of post-construction monitoring at Wolfe Island there were no (zero) Little Brown

fatalities and that was in a landscape (on Wolfe Island) that has even less agricultural grasslands

than here There were also zero Northern Myotis mortalities There is no basis on the record to

- 69 -

conclude that the Amherst Project is likely to cause mortality The Appellantrsquos speculation is not

enough to discharge its burden to prove there will be mortality let alone mortality that would

constitute serious and irreversible harm

186 Further unlike in Hirsch the OMP that is being implemented as a precautionary measure

for the Amherst Project is considerably more protective and does in fact require curtailment for

all the turbines during the entirety of the bat active season right from the outset of operations

For a project that presents a lower risk to bats that is another material distinction

187 For those reasons and the ones set out below the Appellant has not discharged its onus to

prove that the Project will cause serious and irreversible harm to bats or bat habitat

(i) Bat Activity and Bat Habitat

188 On this issue the Approval Holder called expert evidence from both Dr Reynolds and

Andrew Taylor Dr Reynolds is a population biologist with extensive experience in respect of

Little Brown Myotis and the impacts of wind energy projects on bats Each confirmed in their

testimony that there is no significant bat habitat present Amherst Island overall and the Project

Location specifically have no significant attractants for bats

Witness Statement of D Scott Reynolds (November 25 2015)(ldquoReynolds WSrdquo) paras 14-18 Andrew Taylor WS para 28

189 Dr Reynolds explained that ldquothe Project site is predominantly open agricultural field

habitat which is not the preferred roosting or foraging habitat of any of the three species referred

to in the Davy witness statement (Little Brown Myotis Northern Myotis and tricolored bat) The

Project site lacks the forested habitat that is required for the roosting requirements of Northern

Myotis or tricolored bats Moreover the site does not include significant attractants for bats

(riparian corridors or open water habitat) Amherst Island is not unique or critical habitat in any

respect This is particularly true for the species referred to in the Davy witness statement It is

also highly unlikely that construction of the Amherst Island Project site will lead to a significant

increase in linear landscape elements or edge habitat two features that are often associated with

higher levels of bat activity (Walsh and Harris 1996 Verboom and Spoelstra 1999)rdquo

Reynolds WS para 15

- 70 -

190 In respect of Little Brown Myotis Dr Reynolds testified that ldquowhile there are likely

some of these bats present within the vicinity of the Project it is unlikely that a large resident

population currently exists on Amherst Island That is primarily due to the agricultural landscape

that dominates the island and the Project site which is not preferred habitat for this species

Furthermore in general across Ontario Little Brown Myotis are not nearly as abundant on the

landscape as they were previously due to the impacts of WNS There also are no bat hibernacula

on Amherst Island or even close to the island The nearest known hibernaculum is over 26 km

northeast of the Project site (Stantec 2013) The Project site is unlikely to be an important area

for Little Brown Myotis in any respectsrdquo

Reynolds WS para 17

191 In contrast to the habitat at White Pines the evidence highlighted that the agricultural

grassland landscape of the Amherst Island Project Location does not represent foraging or

roosting habitat for Little Brown Myotis Dr Reynolds emphasized this in his oral testimony ndash

he stated that Little Brown Myotis ldquodonrsquot cross open habitat regularlyrdquo and stated

Q In what habitat do little brown bats typically forage

A They are very water-associated bats They tend to forage inwhat we would call riparian habitat habitat associated with slowmoving water and the forest boundaries around that habitat Theyare open water foragers They tend to prefer still waters pondsshallow lakes

Q Do little brown bats typically roost or forage in openagricultural fields

A No they are typically not found in those habitats

Reynolds Testimony

192 When asked in cross-examination whether he thinks either Little Brown Myotis or

Northern Myotis are present on Amherst Island Dr Reynolds indicated that while ldquoit is

possiblerdquo he stated that ldquoI think if they are on the landscape they are going to be extremely rare

as a combination partly of the land use pattern on the island but predominantly because of the

impacts of white nose syndromerdquo He explained again that the island ldquois not an attractantrdquo

because there is ldquoless than 2 open water on an island that is surrounded by water next to a

mainland that has abundant moving water systemsrdquo

- 71 -

Reynolds Testimony

193 In respect of Northern Myotis he stated that ldquoAs for Northern Myotis it is unlikely that

they will be present in any abundance in the area of the Project I did not capture any Northern

Myotis in two separate survey periods on nearby Galloo Island presumably because of their

strong preference for forested habitat for roosting and foraging Because Amherst Island has

many of the same landscape and habitat features as Galloo Island and similarly lacks others in

my view it is unlikely that there will be any presence of Northern Myotis in the Project location

(and certainly no significant presence)rdquo

Reynolds WS para 18

194 Dr Reynolds further testified that Northern Myotis are not commonly present in

Southern Ontario (they are not commonly found below 50ordm North latitude) and in respect of their

habitat preference

This is our most forest-associated species of bat that we have It isusually found in intact forest mature forest and if you look athabitat associations where they are found more often than youwould predict by the frequency of that habitat they are usually foundon forested trails forested moving water so a riparian corridor orforested stream They are typically not found in unforested habitatThey do not typically cross open habitat and are found less often insuburban human-associated habitats than little browns

Reynolds Testimony

195 Andrew Taylor similarly confirmed based on Stantecrsquos site investigations and his

experience

The majority of Amherst Island is comprised of open agriculturallandscape with limited coverage of woodlands and wetlands Inparticular there is little in the way of habitat features that wouldeither attract or support bats such as hibernacula maturewoodland and wetlands within or near the Project LocationFurthermore the open windswept nature of the island results in anoticeable low abundance of flying insects as experienced byStantec biologist during extensive field surveys As such it isexpected that Amherst Island would provide more limited foragingopportunities compared to more sheltered settings OverallAmherst Island does not share the same characteristics as other

- 72 -

sites in Ontario where Stantec has observed significantconcentrations of bats including species at risk bats

Andrew Taylor WS para 28

196 In respect of the potential presence of Little Brown and Northern Myotis on Amherst

Island the Tribunal heard evidence of acoustic monitoring conducted by a masterrsquos student

Toby Thorne His research focused on ldquomigratoryrdquo bat species (ie other bat species not

residenthibernating bat species such as Little Brown and Northern Myotis) and in his paper he

stated that while he ldquoattempted to identify calls by species of myotis combined in a single

categoryrdquo as a result of a ldquolow level of identification accuracyrdquo he in fact ldquodid not include them

in any further analysisrdquo His research also showed that overall Amherst Island has relatively

low levels of summer bat activity than other locations he surveyed Dr Davy conceded in cross-

examination that as far as she is aware Thornersquos paper gives an accurate indication of the level

of bat activity on Amherst Island compared to the other locations that he surveyed (ie mainland

locations and Pelee Island)

Davy TestimonyldquoThe Role of Islands in the Migration of Bats Across Lake Erie andLake Ontario Lasiurus Borealis Lasiurus Cinereus and PerimyotisSubflavusrdquo Toby J Thorne 2015 referred to in Davy WS

197 On the issue of bats the Appellant only called brief testimony from Dr Davy (the

biologist also called in respect of Blandingrsquos Turtle)40 In her witness statement Dr Davy made

a general statement that she believes these two species of bats are present on Amherst Island

based on the Thorne paper and unspecified ldquoNHIC recordsrdquo In her oral testimony she then

merely stated that the bats present on the island ldquopotentiallyrdquo include Little Brown Myotis andor

Northern Myotis Regardless Dr Davy provided no evidence as to where in particular they may

be present nor did she suggest they are abundant on the island let alone at the Project Location

198 It bears repeating that the landscape and habitat at White Pines is very different than the

Project Location on Amherst Island which of course affects the risk analysis As noted in the

Tribunalrsquos decision at White Pines ldquothere are wetland and woodland edges in many parts of the

40 As a reminder we note that while Dr Smallwood made passing reference to bats in his testimony he was onlycalled as a witness on and qualified by the Tribunal to opine in respect of Bobolink and owls In particular he wascalled in response to Dr Kerlinger who was called to respond to Bobolink and owl evidence

- 73 -

[project] siterdquo That stands in contrast to the Project site at Amherst which is almost entirely

open agricultural fields which do not represent foraging or other habitat for Little Brown Myotis

or Northern Myotis

Hirsch paras 133-135 BOA Tab 11

(ii) No Removal or Destruction of Bat Habitat

199 Dr Davy raised very briefly and in general terms a concern about ldquopotential destruction

of roosting sites andor maternity colonies during constructionrdquo of the Project The

uncontradicted evidence from the responding experts established however that there will be no

such destruction (or removal) of habitat and in large part Dr Davy concurred in her reply

witness statement

Witness Statement of Christina M Davy (October 26 2015) (ldquoDavyWSrdquo) para 7 Exhibit 57 Witness Statement of Christina M Davy(December 1 2015) (ldquoDavy Reply WSrdquo) para 9 Exhibit 58

200 Andrew Taylor and Dr Reynoldsrsquo evidence confirmed that there is no significant

maternity roost habitat for Little Brown or Northern Myotis in the Project Location Roosting

habitat typically requires a certain density of snag trees that is absent in the farm fields of the

Project Location In this respect Andrew Taylor testified that

In Ontario maternity roosts are found in woodland areas withconcentrations of large diameter trees that could serve as roostinghabitat For this Project specific site investigations wereundertaken within and near the Project Location and it wasconcluded that there were no candidate maternity roosts Thatmakes sense in part because much of the woodland on AmherstIsland within or near the Project Location is early to mid-successional so it is not mature enough to support significantmaternity roosting Some mature woodland does occur on theIsland but in areas away from the Project Location As aconsequence neither the construction nor the operation of theProject is expected to have any impact on the availability ofmaternity roosts on Amherst Island


201 Dr Reynolds similarly stated that ldquothe other concern briefly raised in the Davy WS is

potential habitat impact Bat maternity colony habitat assessments were conducted for each bat

- 74 -

species which included an inventory of potential roost trees and snag density throughout the

Project site Habitat surveys completed during the spring and summer of 2011 failed to document

any forested habitat with a snag density in excess of 10 per hectare indicating a low suitability of

habitat for maternity colonies (Stantec 2013) Because there is no significant bat habitat on

Amherst Island I do not expect the Project to result in any removal of or other harm to such

habitatrdquo

Reynolds WS para 30

202 In her reply witness statement (Exhibit 58) Dr Davy indicated that she agrees with the

above evidence of Andrew Taylor She stated ldquoI concur with Mr Taylorrsquos statement (24) that

there will be no likely risk to maternity colonies in old trees because these were not found by

Stantec situated in the Project area or elsewhere on the islandrdquo

Reply Witness Statement of Christina M Davy (December 1 2015)(ldquoDavy Reply WSrdquo) para 9

203 Dr Davy then raised the possibility that Little Brown Myotis may be roosting in

buildings in proximity to the Project area and questioned whether construction noise might

potentially affect them In response to this new concern Dr Reynolds stated that while bats

ldquosometimes form maternity colonies within buildings hellip there is no evidence that construction

activities have any negative impact on bats in general or house-roosting bats in particular If

anything I would expect house-roosting bats are more adapted to noise disturbance than

woodland bats because they live in close proximity to peoplerdquo

Supplementary Witness Statement of D Scott Reynolds (January 192016) (ldquoReynolds Supplementary WSrdquo) para 19

204 Andrew Taylorrsquos testimony also echoed that of Dr Reynolds on this point Based on his

experience he stated that ldquoroosting bats are not particularly sensitive to disturbances it is rare (if

at all) that one sees bats flushed from a maternity roost Moreover bats that roost in buildings

would generally be accustomed to a certain level of disturbance from humans or livestock with

the result that outdoor construction disturbance is very unlikely to have any impact on bats

roosting in buildingsrdquo

Taylor Supplementary WS para 2

- 75 -

205 Other than brief speculative testimony Dr Davy provided no evidence or research to

suggest that any bats roosting in houses (in the event there were any such bats in proximity to the

Project) would be affected at all by the construction Further the chances of there being any such

impact (even theoretically) are very low given the timing of construction of the Project which

the evidence indicates is September 2016 through March 2017 Both of these species of bats

hibernate for the winter in a hibernaculum and prior to hibernation they would travel from

Amherst Island to their hibernaculum (there is no evidence of hibernaculum on the island) So

these species of bats are unlikely to be present on Amherst Island during much of the

construction in any event

Reynolds Supplementary WS paras 9 11

206 Mr Cowell who is not a biologist let alone a bat expert provided his view in reply

evidence that Amherst Island was in the process of ldquokarstificationrdquo and as a consequence the

subsurface hydrogeology was unusually complex and vulnerable to harm Although he made

little effort to tie these general claims to the respondentrsquos bats case Mr Cowell indicated that

there are several karstic features on the island that he implies could serve as a bat hibernaculum

including an open-pit quarry and various open fractures and crevices He also speculated that

Stantec ndash who concluded in its NHIA that there were no bat hibernaculum on the island ndash had not

conducted any field investigation

207 In fact Stantec not only conducted an initial full field investigation of the island with

trained biologists specifically to look for potential bat hibernacula it went back to the island

again to look specifically at the features about which Mr Cowell had speculated As Andrew

Taylor noted in reply to Mr Cowell

13 The Statement of Mr Cowell (the ldquoCowell Statementrdquo) raisespotential concerns about the presence of karst on Amherst Island thathe speculates might be used as hibernacula for bats Specifically atparagraphs 23 through 41 the Cowell Statement provides variousexamples of what he puts forward as evidence of karst

14 The examples of karst in the Cowell Statement include wellrecords (paragraphs 27 28 and 29) solution enhanced fractures(paragraphs 30 31 and 32) presence of sink holes (paragraph 34)shoreline cave (paragraph 35) bedrock escarpments (paragraphs 36and 37) and open fractures (paragraph 38) Regardless of whetherthese examples are evidence of karst none of these examples

- 76 -

constitute potential bat hibernacula Hibernacula for Myotis and Tri-coloured Bat occur in deep caves or abandoned cave-like mine shaftswith cool stable temperatures The cave or mine must have a surfaceentrance that is accessible to bats The temperature in the hibernaculamust be above but close to freezing (1-5degC) High humidity is also animportant factor Myotis require close to 100 humidity duringhibernation (Barbour and Davis 1969 Fenton 1983 Fenton 2005 andMcManus 1974) Generally entrances to the hibernacula are relativelywide (more than 15cm) Horizontal passages underground should be ata minimum 10m or longer with fissures that bats can access There istypically more than one entrance to a hibernacula and there should besome airflow with detectable air movement coming from the entranceOpenings or passages with evidence of flooding are unlikely toprovide suitable hibernacula The descriptions provided by the CowellStatement at paragraphs 27 through 38 as well as photos 2 through 7do not suggest any suitable opening for bat hibernacula Cracks andcrevices or openings with streams flowing from them are not suitablehibernaculum

15 At paragraph 16 Mr Cowell points out that the abandoned quarryon the island is a type of mine While that is technically accurate it isan open-pit mine and would therefore not be expected to providepotential for bats to hibernate

16 At paragraph 52 the Cowell Statement suggests that Stantec reliedonly on a records review to identify the potential presence of bathibernacula and did not conduct any field studies This is not correct Aspart of the NHAEIS Stantec conducted a site assessment which lookedfor potential bat hibernacula features within the Project Area and aroundAmherst Island The Project Area and adjacent lands were traversed onfoot identifying bedrock outcrops and inspecting for potential entranceways As pointed out at paragraph 29 of the Cowell Statement AmherstIsland typically has an overburden on top of the bedrock Thatoverburden is a barrier to bats such that even if there were potentialsuitable hibernation formation in the bedrock bats would be unable toaccess the formation As such Stantecrsquos field investigations focused onthe limited areas of exposed bedrock and trained biologists searched forpotential entrances to caves No such suitable features were found

17 Specifically in response to the assertions of bat hibernacula inparagraphs 27 through 38 of the Cowell Statement I arranged to havea staff field biologist visit these locations on the island The field-workwas conducted by a Stantec biologist familiar with bat ecology and thecharacteristics of bat hibernacula The biologist reported to methroughout the site visit These in-the-field observations strengthen myconclusion that these features provide no potential for bat hibernacula

Taylor Supplementary WS paras 13-17

- 77 -

208 Mr Taylor further confirmed in his oral testimony

Q The various features he [ie Mr Cowell] referred to do theyconstitute potential bat hibernacula

A No regardless of whether or not they are lsquoyoung karstrsquo asMr Cowell put it or fractured bedrock they dont constitute bathibernacula Bat hibernacula is a very specific habitat conditionsTemperatures need to be just above freezing with very highhumidity They are far underground 10 metres underground andyou need a wide access for the bats to fly down The little cracksand crevices are nothing that would be used by bats for hibernating


209 Dr Reynolds also responded to Mr Cowellrsquos evidence He confirmed that the karstic

features Mr Cowell referred to are unlikely to be suitable for bat hibernacula and also that

Dr Reynolds attended the island and saw no features that suggested the presence of any

hibernaculum He stated that ldquoMr Cowell identified several potential karst features during one of

his visits to the island none of which appeared remotely appropriate for a hibernaculumrdquo He

further stated

4 Mr Cowellrsquos summary of what he describes as potential karstfeatures on the Island does not alter the fact that there are noknown bat hibernacula on Amherst Island based on the OntarioMinistry of Natural Resources or the Bat Hibernacula Mappingdatabase provided by the Renewable Energy Atlas (LIO 2012)Further the features he identified on the Island are unlikely to besuitable for bat hibernacula given their small volume shallowdepth and deteriorating condition The low volume and shallowdepth do not allow the establishment of a stable microclimate thatpermit the bats to hibernate with the least amount of metaboliccost For Little Brown Myotis in particular bats typically hibernateover a hundred meters from (deep into) the portal (or entranceMcManus 1974 Durham 2000) where temperatures are cold butmore stablehellip

5 Mr Cowell states that Mr Taylor was not qualified to concludethat there were no bat hibernacula on Amherst Island because he isnot a geoscientist and did not conduct directed field studies on theisland to identify potential hibernacula In my experience thosekinds of studies to identify potential hibernacula within a projectsite are only required and would make sense when there are known

- 78 -

artificial (abandoned mines) or natural (caves) features that couldreasonably support a bat hibernaculumhellip

6 I have extensive experience searching for hibernacula I have alsobeen involved in multiple projects that have investigated theinfluence of karst topography of summer habitat usage in batsincluding sites that had both active and abandoned quarryoperations within the project site I made no observations duringmy site visit on Amherst Island that would suggest the likelypresence of any bat hibernacula and as mentioned there are noknown hibernacula on the Island

Reynolds Supplementary WS paras 4-6 Reynolds Testimony

(iii) Mortality Risk

210 The weight of expert testimony supported by the uncontradicted recent and relevant

factual data from other Ontario wind projects ndash including the Wolfe Island project ndash

demonstrates that the mortality risk to Little Brown or Northern Myotis from this Project is low

211 On this issue Dr Reynolds stated that to begin with the bat species at issue are unlikely

to be present at the Project Location (and certainly not in any abundance) for the reasons

described above He also explained that existing evidence from many other wind projects shows

that Little Brown and Northern Myotis (to the extent they are present) ldquoare at relatively low risk

of collision mortality because they generally commute and forage very close to the ground well

below the height of the rotating turbine blades (Adams 1997 Russell et al 2009)rdquo When they

commute from their daytime roost to their foraging area (which is typically over water) they

typically fly less than 2 metres off the ground and when they are feeding (on insects) they are

similarly very close to and often right at the surface of the water ndash ldquofor the most part they are

skimming the water surface to drink and foragerdquo41

Reynolds WS paras 10 11 22 Reynolds Testimony

41 The panel in Hirsch at paragraph 142 seemed to take issue with the fact that Little Brown bat is naturally atlower risk than other bats because of their typical flying height on the basis of largely pre-WNS data (reported in201213 but aggregating data over the previous several years) that indicate the bats had been killed by turbines Asdescribed further in these submissions that data properly interpreted actually confirms that the Little Brown Myotisis at lower risk because they were being impacted much much less than would be expected given their relativelyhigh presence on the landscape pre-WNS

- 79 -

212 As noted these bat species are unlikely to be foraging in the locations of turbines at the

Project given that the turbines are sited in open agricultural fields Dr Davy did not deny that

observation ndash in respect of Little Brown Myotis she merely stated that ldquocommuting to foraging

sites can bring bats into contact with wind turbines even if they donrsquot spend much time foraging

near turbinesrdquo

Reynolds WS paras 10-11Supplementary Witness Statement of Christina M Davy (January 222016) (ldquoDavy Supplementary WSrdquo) para 16(c) Exhibit 59

213 Recent data from other wind projects highlights the low mortality risk for each of these

species

Northern Myotis

214 Dr Reynolds summarized ldquothe data from 28 post-construction monitoring studies from

the United States and Canada indicate that Northern Myotis are rarely found during post-

construction mortality surveys In fact 20 of these studies did not document a single Northern

Myotis mortality Even at various sites where Northern Myotis were documented to be abundant

on the landscape ndash which is not the case at Amherst Island ndash subsequent post-construction

mortality surveys nonetheless did not show even a single mortality (Fiedler 2004)rdquo

Reynolds WS para 23

215 Both sidesrsquo experts agree that the Wolfe Island project is a good indicator as it is

comparable to this Amherst Project in many ways At Wolfe Island there was not a single

Northern Myotis mortality in any of the 3frac12 years of post-construction monitoring Dr Reynolds

therefore stated that the results from that project ldquosupports the conclusion that there is unlikely to

be any Northern Myotis mortality at the Project site Post-construction carcass searches

conducted at Wolfe Island showed no mortality of Northern Myotisrdquo

Reynolds WS para 24Wolfe Island Report Tab C of Reynolds WSDavy Testimony

- 80 -

Little Brown Myotis

216 The post-construction mortality results from Wolfe Island (which has 86 turbines)

showed that in the most recent three years of monitoring (2010-2012) ndash which are all of the years

post-WNS and therefore are the years that are most reflective of the current situation and the

current level of risk ndash there was not a single Little Brown Myotis mortality

Wolfe Island Report Tab C of Reynolds WS Reynolds WS para 24Reynolds Testimony Andrew Taylor Testimony

217 In her first witness statement Dr Davy asserted that in her view ldquoit is reasonable to

expectrdquo that turbines on Amherst Island would result in some mortality ldquoalthough the amount of

mortality cannot be predictedrdquo However the only empirical support she relied on was the 2011

post-construction monitoring results from Wolfe Island While she was correct to observe that

bat mortality occurred in 2011 none of that mortality was to Little Brown Myotis or Northern

Myotis

Davy WS paras 7 9Reynolds WS para 27

218 When this fact was pointed out by the responding experts Dr Davy then indicated that

she was relying on the 2009 mortality results from Wolfe Island That was the first year of

monitoring at that project at a time when the abundance of Little Brown bats on the landscape

was very different than the current situation There were 13 recorded Little Brown Myotis

mortalities that year but as Dr Reynolds explained that was prior to WNS hitting the area and

was at a time when Little Brown Myotis was ldquoby far the most abundant speciesrdquo on the

landscape In fact 70-80 of all bats on the landscape were Little Brown Myotis at the time and

yet they only represented about 15 of the recorded mortalities at projects Therefore

Dr Reynolds stated that ldquogiven their prevalence at the time those surveys showed that Little

Brown Myotis was at relatively low mortality risk compared to their abundance on the

landscaperdquo That there were mortalities in 2009 prior to WNS does not suggest there is likely to

be mortality now

Davy Reply WS para 15Reynolds WS para 25 Reynolds TestimonyAndrew Taylor Testimony

- 81 -

219 In respect of recent data from other Ontario wind projects Dr Reynolds testified that

ldquothe conclusion that no Little Brown Myotis mortality is likely to occur at the Project is also

supported by the general lack of Little Brown mortality at other Ontario wind project sites over

the last few years The likelihood of there being no mortality is even greater in respect of

Northern Myotis and the tricolored bat two species that had low levels of wind-related mortality

in Ontario even prior to the onset of WNSrdquo Dr Reynolds confirmed that at other wind projects

as well there has been very little mortality to these species in the past three years ndash he indicated

that at all Ontario wind projects combined there have been only ldquoa handfulrdquo of Little Brown

mortalities over the past three years

Reynolds WS para 28 Reynolds Testimony

220 In his testimony and based on his extensive experience conducting post-construction

monitoring at other projects Andrew Taylor opined that even before we factor the mitigation

measures into the analysis the level of mortality risk to Little Brown Myotis and to Northern

Myotis mortality is ldquovery lowrdquo and there is unlikely to be any mortality at the Project

Q Would you expect there to be any mortality to that species

A I think it would be unlikely Using Wolfe Island as acomparator it is evident in recent years there has been very lowrisk of mortality to the species Since then we would expect evenless and Wolfe Island would be a very good comparator toAmherst Island given both islands similar habitat and sameregion


221 In contrast to the above at the Hirsch hearing the experts on both sides appeared to agree

that Little Brown Myotis mortality would in fact occur at that project given the risks at that site

In the Hirsch case the Tribunal accepted Dr Fentonrsquos evidence (the appellantrsquos bat expert in that

case) that mortality would occur and that ldquothis would be scientifically significantly for Little

Brown Bat when considered at a local scalerdquo The Tribunal also noted that Dr Strickland (the

general wildlife expert called by the approval holder in that case) ldquodid not disagree that

incidental mortality will occur but stated that the numbers will be smallrdquo At this hearing

however as described above Dr Reynolds ndash the most qualified bat expert who testified ndash and

- 82 -

Andrew Taylor both opined that the risk of there being any mortality at all is low and that

mortality is unlikely to occur given the features of this Project

The Protective Mitigation Measures in Place

222 The evidence also shows that in the unlikely event there was any mortality of the bat

species at issue ldquothere are stringent mitigation measures in place that would promptly be

triggered in order to prevent any significant or population-level impacts from occurringrdquo as

stated by Dr Reynolds There are ldquoappropriate and protective mitigation measures in place in the

REA to reduce any impacts on batsrdquo

Reynolds WS paras 29 32

223 While the REA requires various mitigation measures to protect bats overall (ie all

species of bats) there are additional measures required under the REA specifically to protect the

SAR species Little Brown Myotis and Northern Myotis As noted by Dr Reynolds ldquothe REA

together with accompanying obligations under the applicable [ESA] regulation contain a number

of mitigation measures directed at the SAR bats including the requirement to use proven

curtailment methods to minimize any mortality An operational mitigation plan has been

prepared in this respect that contains various commitmentsrdquo

Reynolds WS para 32

224 If there is a single mortality of either a Little Brown Myotis or a Northern Myotis it must

be reported to the MNRF within 24 hours or the next business day under condition K13(2) of the

REA

REA Condition K13(2) Exhibit 61

225 Condition L1 of the REA requires that the Approval Holder ldquoshall ensure that activities

requiring authorization under the Endangered Species Act 2007 will not commence until

necessary authorizations are in placerdquo Under the provisions of the ESA a notice of activity has

been filed as a precautionary measure42 which in turn requires the Project to comply with a

number of obligations under section 2320 of the ESA Regulation (24208) These include the

42 See Andrew Taylor WS para 33 which indicates the Notice of Activity was submitted voluntarily as a ldquofurtherprecautionary measurerdquo

- 83 -

obligation to prepare a mitigation plan in respect of SAR bats and an obligation under 2320(11)

to take operational mitigation steps such as turbine curtailment to minimize any adverse effects

on the Project on SAR bats Compliance with these obligations is therefore required under

condition L1 of the REA

REA Condition L1 Exhibit 61Reynolds WS para 41Andrew Taylor WS paras 33-35

226 In accordance with the above requirements an Operation Mitigation Plan for bats

(ldquoOMPrdquo) for the Project has been submitted to the MNRF The OMP requires additional

mortality monitoring including daily monitoring in the month of August (the highest risk period

for Myotis) as well as monthly monitoring at all 26 turbines The OMP also requires

implementation of operational mitigation steps to address and minimize any mortality and to

ensure the operation of the Project complies fully with the obligations under OReg 24208

OMP Exhibit D to Reynolds WSAndrew Taylor WS paras 34-35

227 The OMP contains an important new measure to protect the SAR bats and further

minimize any mortality risk that mitigation plans at prior projects including the White Pines

project have not had As a precautionary measure the OMP contains upfront curtailment from

the outset of the Project at all turbines during the active bat season From the outset the

turbines will be locked in place at all times when the wind speeds are below 30 ms between

May 1 and October 31each year This will prevent the blades from spinning below this 30 ms

cut-in speed As stated in the OMP

The Operational Mitigation Plan will consist of a two-step approachThe first step is to implement mitigation from the commencement ofoperation to reduce the potential risk of mortality to Little Brown orNorthern Myotis The second step involves an adaptive managementapproach to refine and augment the operational mitigation in theevent mortality to the Species occurs

Operational mitigation that will be implemented at thecommencement of operation involves locking the turbine bladesbelow the cut-in speed of 30ms during the bat active season fromMay 1 to October 31 Locking the blades will prevent the bladesfrom spinning or ldquopin wheelingrdquo below this cut in speed thusreducing the risk to bat mortality during these low wind conditions

- 84 -

Reynolds WS para 42OMP p 25 Exhibit D to Reynolds WSAndrew Taylor WS para 36

228 As explained by Dr Reynolds bats are most active in low wind conditions This

curtailment measure will ensure there is no risk to bats during these low wind conditions

Reynolds Testimony

229 The OMP expressly commits the Approval Holder to taking further turbine curtailment

measures as need be to avoid killing harming or harassing Little Brown Myotis or Northern

Myotis At a minimum additional curtailment ndash ie further increasing the cut-in speed of

turbine(s) to 55 ms ndash is required in the unlikely event any repeated mortality occurs at any

turbine The details of these further measures are outlined in Appendix D of the OMP

OMP Exhibit D to Reynolds WS

230 Dr Reynolds emphasized in his testimony the proven effectiveness of the curtailment

mitigation measures contained in the OMP In its past decisions the Tribunal has referred to this

kind of curtailment measure as being ldquosure-firerdquo (in Ostrander) and the Bovaird case ldquothe

Tribunal accepts the evidence before it that these mitigation measures are effective at

significantly reducing collision mortalityrdquo

Reynolds WS para 32Reynolds TestimonyOstrander Tribunal Decision para 518 BOA Tab 9BBovaird v Ontario (Minister of the Environment) [2013] OERTDNo 87 (ldquoBovairdrdquo) BOA Tab 14

231 In her witness statements Dr Davy did not refer at all to the mitigation measures

contained in the REA including those measure required by the ESA regulation and contained in

the OMP She admitted on cross-examination that she had not reviewed the mitigation measures

required by the REA including those required by the OMP and therefore did not take them into

account in forming her opinion regarding the potential impacts of the Project Dr Davy conceded

that she should have done so ndash in respect of the REA she stated that ldquoIn hindsight had I had a

less fuzzy mind and more time I should have reviewed the REA at that pointrdquo Even though the

- 85 -

OMP was attached to both Dr Reynoldsrsquo witness statements Dr Davy had still not even

reviewed it as of the time she gave her oral testimony

Davy WS Davy Testimony

232 Even in the unlikely event there were any Little Brown Myotis or Northern Myotis

mortality that would promptly be addressed because the further required minimum curtailment

measures in the OMP would be triggered including that the plan requires that the obligations of

section 2320 of the ESA Regulation be complied with at all times As was noted by the Tribunal

in the Bovaird decision that section of the ESA regulation expressly requires that the steps the

Approval Holder ldquomust takerdquo to avoid the killing harming or harassing of any Little Brown

Myotis include ldquoadjusting the blades of the turbines changing the speed of wind turbines and

periodically shutting the turbines down at times of highest riskrdquo Further the plan ensures MNRF

notification so the MNRF would be involved throughout to ensure that appropriate measures

are being taken and the ESA requirements are being met The Tribunal should assume that the

MNRF will fulfill its statutory mandate in this regard

OMP Exhibit D to Reynolds WSESA Ontario Regulation 24208 s 2320 BOA Tab 15Bovaird para 261 BOA Tab 14

(iv) There Will Be No Serious and Irreversible Harm

233 To meet the statutory test the Appellant must prove that this Project will in fact cause

harm to Little Brown Myotis or Northern Myotis that is both serious and irreversible

EPA s 14521(2) BOA Tab 1Ostrander para 29 BOA Tab 9A

234 Because the weight of evidence establishes that Little Brown Myotis and Northern

Myotis is unlikely to occur the record does not support a finding that the Project will cause any

serious harm to bats

235 Even if there was a possibility of a small amount of incidental mortality (which the

evidence does not support) the Appellant would have to provide compelling evidence of what

level of mortality in the circumstances would trigger an irreversible impact Here the

uncontradicted evidence from Dr Reynolds is that mortality at a wind project would have to

- 86 -

materially increase the rate of declined the population in order to cause such impact The relevant

consideration for the test therefore is not whether there will be a single mortality or even a

small number of incidental mortalities at the Project (which the evidence does not support) but

rather whether any such mortality would have an impact on the relevant population that is also

irreversible This analytical framework was accepted for Little Brown Myotis in the decision of

the Tribunal in Bovaird on similar evidence as is before the panel in this case The Tribunal

stated

As discussed below it is possible that some additional endangeredbats may be killed as a result of the operation of the ProjectHowever the Tribunal accepts the evidence of Dr Reynolds thatthe current downward slope of the population trajectory of LittleBrown Myotis is due to WNS and that incidental mortalities fromthis Project will not be scientifically significant and will not affectthe slope of that trajectory either at the local scale or theprovincial scale The Tribunal therefore finds that the Appellantshave not shown that the number of fatalities of endangered bats inaddition to the overwhelming number of deaths due to WNS willconstitute serious and irreversible harm

Ostrander paras 40-47 BOA Tab 9AReynolds WS para 47 Reynolds TestimonyBovaird para 247 BOA Tab 14

236 On this point Dr Reynolds testified that even in the unlikely event there were to be any

mortality at this Project it would not alter the population trajectory of Little Brown Myotis or

Northern Myotis in the area and thus would not constitute serious and irreversible harm

Reynolds WS paras 48-49

237 Dr Davy concedes that she does not know what mortality may or may not occur at the

Project Rather she merely states that the Project ldquocouldrdquo cause serious and irreversible harm

and urges the Tribunal to take a ldquoprecautionary approachrdquo to avoid any potential mortality In

order to meet the statutory test the Appellant must do more than suggest the Project could cause

the requisite harm and the Tribunal has confirmed in past decisions that the statutory test does

not permit adoption of the ldquoprecautionary approachrdquo to address potential harm

Davy WS para 9 Davy Supplementary WS para 20Erickson para 521 BOA Tab 4

- 87 -

238 In a number of past cases involving wind projects in agricultural landscapes similar to

Amherst Island the Tribunal has considered potential impacts to bats (including SAR bat species

in particular) and has consistently concluded that no serious and irreversible harm would result

to them These cases include for example the Bovaird case in which the above analytical

framework was expressly accepted by the Tribunal and the Lewis case On the record here the

same conclusion is warranted

tporfido
Text Box
HYROGEOLOGY TAB13

- 88 -

D Hydrogeology and Hydrology Evidence

Overview

239 The Appellant addresses the hydrogeology and hydrology evidence on pages 33 to 41

(paragraphs 89 to 119) of its Closing Submissions

240 The Appellantrsquos witnesses ndash Darryl Cowell and Les Stanfield ndash covered these issues very

broadly when their witness statements were filed as reply evidence in early December 2015

After assessing the proper scope of that filing the Tribunal directed that Mr Cowellrsquos evidence

ldquobe limited to evidence in respect of habitat of Blandingrsquos turtle and bat speciesrdquo and that

Mr Stanfieldrsquos evidence ldquobe limited to evidence in respect of habitat of Blandingrsquos turtlerdquo

Reasons for December 14 Tribunal Order dated March 23 2016para 43

241 The evidence of Messrs Cowell and Stanfield was not subsequently amended or focused

but continued to be directed broadly to the potential for impacts to the groundwater surface

water and environmental features of Amherst Island generally Their evidence did not focus on

the specific water bodies subsurface channels or environmental features on Amherst Island that

would allegedly be harmed by the Project or to what extent if any that alleged harm would in

turn impact specific turtle or bat habitat As a consequence that evidence even taken at its

highest remains too general to enable the Tribunal to assess whether where how or to what

extent the Project might impact turtle or bat habitat

242 In addition to the generality of their evidence the opinions offered by Messrs Cowell

and Stanfield were not rooted in site investigations or available data but were essentially

impressionistic When Mr Stanfield attempted to undermine the methodology and results of

Stantecrsquos water bodies assessment it became clear ndash as described below ndash that his critique was

superficial and he had made numerous errors In addition when he and Mr Cowell speculated

about potential impacts to turtle and bat habitat it was through broad statements unsupported by

any analysis reflecting in part that neither of them have any expertise with respect to turtles or

bats In contrast the responding witnesses Dr Kent Novakowksi and Grant Whitehead on

hydrogeology and Steven Brown and Nancy Harttrup on hydrology offered views well

- 89 -

supported by analyses of the results of extensive field work subsurface investigations and well

documented data

Broad and General Scope of Appellantrsquos Evidence

243 The Tribunalrsquos direction as to the allowable scope of the hydrogeology and hydrology

evidence arose from unique circumstances On October 6 2015 the date on which the

Appellantrsquos witness statements were due the Appellant instead disclosed only a list of its

witnesses with a very brief summary of their intended evidence That list named Mr Stanfield as

one of the Appellantrsquos witnesses but not Mr Cowell The witness summary stated that

Mr Stanfield would provide ldquoan expert opinion regarding the serious and irreversible harm that

will be caused to the various waterways on Amherst Island as a result of the construction for the

projectrdquo It stated that the Appellant would ldquoseek to have Mr Stanfield qualified as a

hydrogeologistrdquo and that among other things he would provide evidence that the landscape of

Amherst Island is known as ldquokarstrdquo and characterized by sinkholes caves and underground

drainage systems

Disclosure Statement from Association to Protect Amherst Island(October 6 2015) (ldquoAppellantrsquos Disclosure Statementrdquo) Appendix D

244 When the Appellant eventually filed its witness statements on October 26 2015 it did

not include a witness statement from Mr Stanfield Nor did any of the Appellantrsquos witness

statements filed that day address surface water or hydrogeological matters in any material way

In follow-up communications the Appellantrsquos legal counsel confirmed unequivocally that it

would not be calling Mr Stanfield or advancing the points reflected in his intended evidence

The Approval Holder relied on the witness statements filed by the Appellant on October 26

2015 and the assurances of legal counsel for the Appellant and filed responding statements from

its own witnesses on November 25 2015

Email chain between John Terry and Asha James dated October 27and 28 2015 Appendix DEmail chain between Mr Worden and Ms Pietrzyk dated October 282015 Appendix D

245 On December 1 2015 the Appellant filed for the first time witness statements from

Messrs Cowell and Stanfield describing each of them as lsquoreplyrsquo witness statements Each of

- 90 -

their statements explained in the introductory paragraphs they were intended to be limited to

specific reply evidence regarding Blandingrsquos turtle habitat (and in Mr Cowellrsquos case bat habitat

as well) but the body of the witness statements was not consistent with that assertion

Mr Stanfieldrsquos ʻreplyʼ statement dealt with the same broad allegations that had been described

on October 6 2015 in the Stanfield witness summary ndash in particular the surface water hydrology

of Amherst Island and the alleged harm that would be caused to surface waterways as a result of

the construction of the Project Likewise Mr Cowellrsquos statement dealt with the alleged broad

hydrogeological impacts to the supposed karst terrain of Amherst Island and the potential impact

of the Project on Amherst Islandrsquos hydrogeology

Reply Witness Statement of Les Stanfield (December 1 2015)(ldquoStanfield WSrdquo) Reply Witness Statement of Darryl Cowell(November 30 2015) (ldquoCowell WSrdquo)

246 Despite the Tribunalrsquos subsequent direction (in its December 14 2015 ruling)

Messrs Cowell and Stanfield did not amend their witness statements or focus their oral

testimony on Blandingrsquos turtle or bat habitat On the contrary Mr Cowellrsquos evidence focused

almost entirely on whether or not Amherst Island was karstic and Mr Stanfieldrsquos evidence

focused almost entirely on whether or not Stantec had failed to identify all the water bodies on

Amherst Island and how the Project might therefore inadvertently impact some of them through

construction activities The evidence of both included assertions that the Project would cause

serious and irreversible harm to karst and water features but did not identify where on the island

such impacts would potentially affect bat or turtle habitat let alone to what extent

247 Where Messrs Cowell and Stanfieldrsquos evidence did relate to turtles or bats the

statements from each were speculative and unaccompanied by any analysis Mr Cowell stated

for example that karst conduits could play a role as thermal regulators in maintaining aquatic

habits that do not freeze But he did not link that speculative general statement to any particular

alleged karstic feature on Amherst Island any particular alleged Blandingrsquos turtle habitat or any

particular part of the Projectrsquos construction or operation He also stated that caves karst

topography and abandoned rock quarries exist on Amherst Island all of which could (he

thought) be used by bats but did not link that general statement to any specifics as to location or

other relevant features related to bat hibernacula With respect to Project impacts Mr Cowell

- 91 -

stated that trenching for collector and cable lines will interfere with the shallow karst flow

system in areas of thin soils but did not provide particulars as to the area(s) of the Project to

which that risk pertained and what turtle habitat if any might be affected Mr Stanfieldrsquos

evidence respecting Blandingrsquos turtle habitat was even more general consisting of no more than

an assertion that because he believed Stantec had underestimated the extent of water bodies on

Amherst Island the Project would cause serious and irreversible harm to water bodies that are

part of an ecosystem that includes Blandingrsquos turtle habitat These perfunctory references to

Blandingrsquos turtle or bat habitat can be fairly described as little more than an afterthought to the

main theme of each of these witnessesrsquo evidence

Cowell WS paras 11-1416 48 62-63 Stanfield WS pp 2-3 15

Hydrogeology

Appellantrsquos Evidence Impressionistic

248 Mr Cowell was qualified by the Tribunal as ldquoa professional geoscientist with expertise in

karstrdquo He did not seek to be qualified as and is not a hydrogeologist

Oral Testimony of Darryl Cowell (February 4 2016) (ldquoCowellTestimonyrdquo)

249 Mr Cowell is a geoscience consultant applying geosciences in support of proposed

developments He has worked on a range of projects both nationally and internationally and has

done various karst studies during the course of his career

Cowell WS paras 2-8

250 The Approval Holderrsquos expert witnesses Dr Novakowski and Mr Whitehead were both

qualified as hydrogeologists ndash Dr Novakowski as a hydrogeologist with expertise in fractured

rock and Mr Whitehead as a professional geoscientist with expertise in hydrogeology

Oral Testimony of Kent Novakowski and Grant Whitehead (March 222016) (ldquoNovakowski and Whitehead Testimonyrdquo)

251 Dr Novakowski is the Head of the Civil Engineering Department at Queenrsquos University

and a senior consulting hydrogeologist with extensive experience in respect of groundwater

flows including the flow of contaminated groundwater across the continuum of fractured rock

- 92 -

(including but not limited to karst) settings He also has specific experience involving

contamination in the top of the bedrock at a site on Amherst Island

Novakowski and Whitehead Testimony Witness Statement of KentNovakowski and Grant Whitehead (January 19 2016) (ldquoNovakowskiand Whitehead WSrdquo) paras 3-4

252 Mr Whitehead is a senior hydrogeologist and project manager at Stantec who has

managed or been the principal investigator for numerous groundwater supply and protection

evaluations and a variety of groundwater monitoring and hydrogeological impact investigations

including performing hydrogeological impact assessments for renewable energy developments

Like Dr Novakowski Mr Whitehead has experience in sites characterized by a range of kinds

of fractured limestone dolomite and shale bedrock overlaid by thin overburden deposits similar

to the conditions on Amherst Island

Novakowski and Whitehead Testimony Novakowski and WhiteheadStatement paras 5-6

253 Dr Novakowski and Mr Whitehead as hydrogeologists are better qualified to offer the

Tribunal comprehensive opinions respecting the hydrogeology of Amherst Island While

Mr Cowell has expertise in karst his expertise is more limited than that of a hydrogeologist

Dr Novakowskirsquos hydrogeological background has enabled him to gain expertise across the

whole continuum of fractured rocks including (but not limited to) karst

I would like to start by pointing out that karst systems are a smallcomponent of that whole spectrum of fractured rock type sites Infact there are a lot of attributes we see in karst that appear in theseother types of fractured bedrock settings In my consultingexperience and research as well I have focused on both types ofsites meaning sites in sedimentary rock and sites in complexcrystalline rock

Novakowski and Whitehead Testimony Novakowski and WhiteheadWSrdquo) para 3

254 Mr Cowellrsquos evidence was premised entirely on his speculation that Amherst Island is a

karst aquifer with significant karst features He reached that conclusion on the basis of very

limited data ndash a desktop review of a 2007 study by the consulting firm Trow of the Western

Cataraqui Region of which Amherst Island is a small part (the ldquoTrow Reportrdquo) two sample well

- 93 -

logs from the central portion of Amherst Island and ndash in particular ndash his observation of a small

number of surface features which he visited ldquoover the course of less than a day and a half on

Amherst Islandrdquo on November 26 and 27 2015

Cowell WS paras 23-43 Cowell Testimony

255 In reaching his conclusion he ignored the following paragraph in his own witness

statement about the types of investigations that need to be carried out for a proper

hydrogeological evaluation in karst terrain

Groundwater modelling is very difficult and a thoroughunderstanding of the flow can only be achieved by detailed groundchemical and geophysical surveys Survey techniques specific tokarst terrains include dye tracing from sinking surface streams toknown springs micro-gravity and electromagnetic geotechnicalinvestigations and establishing chemical signatures of the waterChemical signatures and changes in water chemical and physicalproperties within the rockmass provide excellent information onthe nature of the karst aquifer Of particular importance aremeasurements of water temperature (especially in comparison toair temperatures) specific conductance alkalinity

Cowell WS para 22

256 In cross-examination Mr Cowell admitted he did not carry out any of the investigations

described in that paragraph and as described below barely considered the report of the Approval

Holderrsquos experts respecting the data they obtained by carrying out these kinds of investigations at

the Project site

Cowell Testimony

257 This is not the first time Mr Cowell has taken this approach in providing evidence to this

Tribunal In Hirsch Mr Cowell testified that the White Pines Project site in Prince Edward

County was a karst aquifer with significant karst features His witness statement using virtually

identical language in his key conclusions as to the language he used in his Amherst witness

statement was based on very limited data ndash primarily a site visit four well records and anecdotal

observations made by local residents about certain features The Hirsch Tribunal concluded that

Mr Cowell ldquodid not undertake the type of investigations that he agreed he would ordinarily

undertake to determine the presence of karst His opinion was therefore based on very limited

- 94 -

evidencerdquo It found Mr Cowellrsquos evidence to be uncertain and insufficient to prove on a balance

of probabilities that the Project area at issue was a karst landscape

Hirsch paras 335 339 BOA Tab 11

258 The Approval Holderrsquos experts in the present case in contrast relied on extensive data to

reach their conclusion that the groundwater system in the area is situated in shale-limestone

formations which do not form karst That information included

(a) an extensive subsurface hydrogeological investigation dated January 13 2015 (the

ldquoStantec Hydrogeological Reportrdquo) which included data from 12 groundwater

wells continuously monitoring groundwater levels at the Project site the

assessment of subsurface permeability through hydraulic conductivity testing and

the evaluation of recharge potential based on the infiltration testing of onsite soils

(b) a Ground Penetrating Radar (ldquoGPRrdquo) study produced for the construction of the

Projectrsquos conductor cable and

(c) a Google Earth image used to provide a more comprehensive above-ground

assessment of a feature that Mr Cowell had identified as a sinkhole

Novakowski and Whitehead WS paras 7 12 and 13

259 In cross-examination Mr Cowell acknowledged that the Stantec Hydrogeological Report

included borehole investigations hydraulic response testing and infiltration testing and the GPR

study was an electromagnetic geotechnical investigation ndash all investigations he had identified as

important for a proper hydrogeological assessment in karst terrain

Cowell Testimony

260 Mr Cowell also admitted that in preparing his supplementary witness statement and

even prior to his oral testimony he had carried out only a cursory review of the extensive data

included in the Stantec Hydrogeology Report In his January 28 2016 supplementary witness

statement (the ldquoCowell Supplementary Statementrdquo) he wrote ldquoI have not had sufficient time to

full [sic] review and assess this new materialrdquo In cross-examination he stated the following

regarding the Stantec Hydrogeological Report

Q You mentioned you spent about an hour reviewing this

- 95 -

A Maybe two I had to write another witness statement in threehours

Q This report also involves hydraulic response testing Is thatcorrect

A Yes

Q And infiltration testing Correct

A What I used what I went to was table 1 mostly the hydraulicconductivity I did not analyze this in detail at all I didnrsquot havetime I put that in my witness statement I didnrsquot have time to fullyanalyze this

Q That would be the case to date as well

A Correct

Supplementary Witness Statement of Daryl Cowell (January 292016) Cowell Testimony

Amherst is not ldquoKarsticrdquo

261 Contrary to Mr Cowellrsquos conclusions the subsurface data relied on by Dr Novakowski

and Mr Whitehead is consistent with Amherst Island being typical shale-limestone not karst

terrain

Novakowski and Whitehead WS paras 8 18 Novakowski andWhitehead Testimony

262 For example Mr Cowell stated in his testimony that of the features he observed the

most notable evidence of karst was a feature he described as a sinkhole complex that captures a

stream In cross-examination he acknowledged that he did not find this feature independently

but was directed to it by a local resident

Cowell Testimony

263 Mr Cowellrsquos interpretation of this feature as evidence of karst is contradicted by the data

relied on by Dr Novakowski and Mr Whitehead This data showed the feature is not a sinkhole

complex but more likely a buried streambed or escarpment that would date back to the last

glaciation Dr Novakowski and Mr Whitehead reached this conclusion based on a review not

only of Mr Cowellrsquos photographs but also of aerial photographs from Google Earth and the

hard data available from the GPR study As Dr Novakowski explained in his testimony

- 96 -

Mr Cowell claims that this sinkhole is capturing a stream Part ofthe reason why I showed the Google Earth image is because itdoesnrsquot show any stream whatsoever It shows some kind oftopographic depression around the drainage and perhaps some kindof topographic valley associated with it but there is no evidence ofwhat we would think of as a stream in this kind of setting Thesecond point is that this is a relatively thick sequence of clays Weknow that from figure 3 in our witness statement which is anillustration of the approximate depth of bedrock determined fromground penetrating radar If you look at that figure there is a lot ofmagenta That indicates deeper or greater depth to bedrock fromthe surface This is a deepening section of overburden material inthis area

Novakowski and Whitehead WS paras 12-13 Figures 2-3 CowellTestimony Novakowski and Whitehead Testimony

264 Dr Novakowski also testified about a further indication that the feature is not a sinkhole

complex

There is another interesting piece of evidence that suggests that thishas nothing to do with a sinkhole hellip There is in Mr Cowellrsquossupplementary witness statement on photo 4 a caption that indicatesthat this whole thing floods on occasion at spring snow melt Theinteresting thing is that means this has a limited permeability in thebottom hellip If we have an opening crevice like this the way thiswould form if this were a sinkhole would be an opening crevice likethis as result of dissolution that comes down from above and thenthis material this mass sitting here above that falls into it But youhave to have permeability for that to happen You have to have waterrushing through that vertical fracture to make that happen and itcanrsquot be if we have water pooling at significant heights when youhave a very short period of time when that happens

Novakowski and Whitehead Testimony

265 Mr Cowellrsquos interpretation of the Trow Report and the two well logs from the centre

portion of Amherst Island also failed to demonstrate any evidence of karst on Amherst Island In

arguing that these documents show evidence of karst Mr Cowell quoted a passage from the

Trow Report stating ldquoKarst and fractured bedbrock are common in the Limestone Plainsrdquo and

then applied that general statement to Amherst Island without any supporting evidence

Mr Cowell also presented the two well logs and argued that the presence of dry wells in

proximity to yielding wells is ldquoa prime example of a karst aquiferrdquo

- 97 -

Cowell WS paras 24-29

266 In fact according to the Trow Report as Dr Novakowski and Mr Whitehead explained

the uppermost bedrock formation that underlies Amherst Island (called the Verulam formation)

is characterized by the presence of clay (or shale which is the rock formed of clay materials)

which is well-known to inhibit the formation of karst In addition it is common in the Verulam

formation that underlies Amherst Island the Bobcaygeon formation that underlies the Verulam

and in many other subsurface formations to find wells that are dry within 200 feet of wells where

groundwater is encountered ndash without that being a sign of karst Mr Cowellrsquos similar attempt to

rely on well records in the Hirsch proceeding to support his opinion that it was an area of active

karsification was rejected by that Tribunal

Novakowski and Whitehead WS paras 16 and 17 Cowell WS Figure2 Hirsch paras 335-337 BOA Tab 11

267 Dr Novakowski and Mr Whitehead also relied on a map (prepared by FR Brunton and

JEP Dodge and published by the Ontario Geological Survey attached as Exhibit E to the

Novakowski and Whitehead witness statement) which showed Amherst Island to be in an area

of ldquounknown or no observed evidence of karstificationrdquo as opposed to other areas of the map

that were identified as being areas of ldquoknown karstrdquo ldquoinferred karstrdquo or ldquopotential karstrdquo In his

testimony respecting the Brunton and Dodge map Dr Novakowski explained that ldquo[i]f we look

at Amherst Island Amherst Island is verulam there is no verulam anywhere in this diagram that

shows the potential for karst It does notrdquo Notably in Hirsch the Tribunal referred to the same

Brunton and Dodge map (which likewise showed the area in which the White Pines Project was

located as an area of ldquounknown or no observed evidence of karstificationrdquo) in support of its

conclusion that the evidence did not prove that project area was a karst landscape

Novakowski and Whitehead WS Exhibit E Novakowski andWhitehead TestimonyHirsch paras 332-335 BOA Tab 11

268 Contrary to Mr Cowellrsquos assertions Dr Novakowski and Mr Whitehead concluded on

the basis of the extensive data they reviewed that Amherst Island is not karst terrain

characterized by shallow and deep karst aquifers but rather a typical shale-limestone sequence

having very modest bulk permeability dominated by sparsely-distributed fracture features at

- 98 -

depth oriented primarily horizontally with some vertical features As Dr Novakowski explained

to the Tribunal relying on a cross-sectional illustration at Figure 5 of the Novakowski and

Whitehead Witness Statement the relative impermeability of the drift cover will impede the

penetration of any water into the subsurface Any water that does penetrate through the

subsurface will migrate vertically toward the weathered zone before entering the vertical

fractures of the Verulam formation which itself has very low permeability

Novakowski and Whitehead WS paras 8 18 Figure 5

No Impact on Groundwater

269 While virtually all of Mr Cowellrsquos evidence was directed to showing that Amherst Island

is underlain by a karst aquifer he also made sweeping assertions about the potential impact of

the Project on the supposed shallow karst groundwater system As noted above Mr Cowell

provided no details as to exactly where or how the Project might have those effects

Nevertheless the Approval Holderrsquos experts responded in detail to these general assertions with

evidence explaining why the construction and operation of the Project is highly unlikely to have

those results

270 As Dr Novakowski and Mr Whitehead explained the Project will involve limited work

below the ground surface and this work is highly unlikely to interfere with the groundwater

system on Amherst Island The turbine foundations will be installed to a depth of approximately

three meters below ground surface The collection cabling will generally be installed 12 meters

below ground surface In contrast as shown in the water well records discussed in the

Novakowski and Whitehead witness statement the depths targeted for the local water wells are

typically 15 metres or greater This means that the source of the water for these wells must be the

underlying Bobcaygeon formation which is much deeper below ground surface than any of the

construction activities In addition Dr Novakowski and Mr Whitehead stated that

bull There is no evidence of through-going caverns conduits or sinkholes in the data The

absence of these features means that the construction of the Project will not cause the sort

of unpredictable impacts to the groundwater system alleged by Mr Cowell

- 99 -

bull The depth to competent bedrock along the vast majority of the collection cable pathway

is well in excess of the planned construction depth of 12 metres with minor exceptions

discussed below

bull The presence of a buried and backfilled collection cable will be highly unlikely to impede

the migration of infiltrating water During any such migration the water would not be

flowing laterally such that its flow could be cut off by a collector trench or cable Rather

the water would be flowing vertically and would flow around the buried cable and

continue downwards towards the water table

bull There are a very few cases ndash for example around Turbine S-09 and along the South Shore

Road ndash where excavation into the bedrock will be required The excavations at these

locations will be into the top of competent bedrock which the data shows to be virtually

impermeable As a result the migrating water would be directed by the intersection of the

cable backfill and the topographic contours of the bedrock and escape down the nearest

vertical fracture There is a very limited area where it is possible that the cable and

backfill could extend below the water table ndash ie at Shore Road In that area

groundwater flow will be very slow and perpendicular to the cable direction Under these

conditions because the sand backfill is likely to be more permeable than the native rock

flow will occur right through without being impeded As a result the potential for impact

on the groundwater discharge process in both cases is minimal Out of an abundance of

caution as discussed above cutoff collars will also be installed throughout the cable

trench

bull Given the nature and flow of the groundwater system identified in the data the likelihood

that there is enough groundwater discharging to a spring or stream (even if these features

were part of a karstic formation) to thermoregulate or provide a major source of nutrients

to the local environment is extremely low The measurements of Dr Novakowski and

Mr Whitehead showed that the drift material is of moderate to low hydraulic

conductivity and the upper bedrock is of much lower hydraulic conductivity As a result

there is no mechanism for the continuous discharge of sufficient groundwater to have

these effects

- 100 -

Novakowski and Whitehead WS paras 26 31 Figure 7 Novakowskiand Whitehead Testimony

No Spills Risk

271 Mr Cowell also made broad assertions that it would not be possible to retrieve or contain

contaminants from the Project once in the karst system In response Messrs Novakowski and

Whitehead together with Shant Dokouzian (whose expertise includes risk and public safety

assessment in relation to wind farms) confirmed that the likelihood of a spill of contaminants

during the construction or operation of the Project is very low and if it occurred would be

mitigated As they explained

bull During the construction phase of the Project there will only be small quantities of

potentially hazardous fluids used on the Project site To minimize the risk of any spills

of these substances during the construction phase the Approval Holder has committed

in the Construction Plan Report (incorporated into the REA) to conduct refueling

activities in accordance with applicable regulations only in certain designated areas In

addition Condition J1 of the REA requires any temporary fuel storage tanks to be

designed and constructed with a spill containment system that meets all applicable

regulations standards codes and practices According to these requirements the storage

tanks must have secondary containment that holds at least 125 of the volume of the

tank

bull During the operational phase of the Project the risk of a potential spill is very low and

even lower than for many other wind projects in Ontario Unlike other projects the

Projectrsquos turbines do not have a gear box so there is no gear oil which in other turbine

models is the main source of fluids in the nacelle A small amount of grease for the main

bearing is required but that grease is so viscous that it would not directly discharge to

the ground surface as it would first be released inside the contained nacelle have to

travel to escape from it and then have to migrate down the exterior of the tower (which

has a hub height of 995 m) and is unlikely to reach the ground at all Similarly

although a small volume of oil is used in the hydraulic systems in the nacelle and hub in

the unlikely event of the release of such oil it would also have to migrate down the

- 101 -

exterior of the tower before reaching the ground and would likely be identified before

reaching the ground

bull A spill from the transformer substation is similarly unlikely to reach the ground As

required by Condition I of the REA the transformer substation will be equipped with an

integrated spill containment structure 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 for

the stormwater discharge area around the transformer under normal operating

conditions As required by the REA this engineered containment structure must have an

impervious floor with walls of reinforced concrete or impervious plastic liners among

other things As a result in the unlikely event of any release from the transformer no

material would be expected to reach the ground

bull Further reducing the likelihood of any spill from the turbines or transformer substation is

the fact that each will be subject to regularly scheduled inspection and maintenance

Outside of these maintenance activities the turbines and transformer substation will be

electronically monitored 247 using a SCADA (supervisory control and data acquisition)

system which will immediately notify Project personnel in the event of any incident that

would suggest that fluid levels have dropped below a pre-established point that would

suggest a leak may have occurred

bull In the unlikely event that a spill occurs during the construction andor operation phase of

the Project emergency response protocols have been established to assess the extent of

the spill dispatch trained personnel equipped to contain and clean-up the spill and notify

the appropriate authorities as required under the Environmental Protection Act These

are mandatory procedures that are contained either in the Construction Plan Report or

Design and Operations Report (and therefore required by Condition A1 of the REA) or

in the Projectrsquos Emergency Response and Communication Plan (required by Condition

Q1 of the REA) These procedures include the following

bull Any ground surface spill that does occur is not expected to have a

significant impact because of the nature of the spilled material and the

nature of the ground (and subsurface) onto which it would be spilled On

- 102 -

the first point ndash the nature of the spilled material ndash Dr Novakowski and

Mr Whitehead explained that it is well-known that the kind of oil used in

the turbines has a very low solubility in water would be expected to

partition (or stick) to the subsurface materials onto which it was spilled

and is inherently non-toxic On the second point ndash the nature of the ground

and subsurface ndash Dr Novakowksi and Mr Whitehead explained that any

material spilled at the ground surface would not quickly infiltrate the

overburden making it slow to reach groundwater if at all They noted that

the time it would reasonably be expected to take for any spilled substance

to reach the groundwater table would be more than the necessary time for

responders to implement remedial measures

Novakowski and Whitehead WS paras 32-39 Supplementary WitnessStatement of Shant Dokouzian (January 19 2016) SupplementaryWitness Statement of Alex Tsopelas (January 19 2016) paras 6-13Novakowski and Whitehead Testimony Oral Testimony of ShantDokouzian Oral Testimony of Alex Tsopelas

No Impacts to Turtle or Bat Habitat

272 With respect to turtle habitat Mr Cowell made very brief and general assertions in his

first witness statement that karst water can provide thermal regulation water quantity and

mineral nutrients to surface water habitats and that interruption or diversion of ldquokarst recharge

waterrdquo could affect them The Appellant relies on this evidence in support of its arguments

including at paragraphs 102 and 107 to 110 of its Closing Submissions

Cowell WS paras 11-13 62

273 Mr Cowellrsquos evidence is far too brief and conclusory to support the Appellantrsquos

assertions and is in any event contradicted by the responding evidence and data Other than

making general assertions Mr Cowell does not attempt to describe or explain the extent

location or any particulars of the impact the Project might have on the features he has identified

as being linked to turtle habitat so the Tribunal has no basis to assess whether any impact if it

should occur will be serious let alone serious or irreversible As this Tribunal has stated on

many occasions assertions that a Project has a potential to cause harm do not meet the statutory

standard of proving that a Project will cause harm In addition as described above the evidence

- 103 -

does not establish that the island is karstic so the underlying presumption that ldquokarst recharge

waterrdquo is present on Amherst Island and could play some kind of role in habitat maintenance is

unfounded conjecture As noted in paragraph 270 above the data indicates there is very unlikely

to be enough groundwater of any kind discharging to a spring or stream (even if these features

were part of a karstic formation) to thermoregulate or provide a major source of nutrients ndash there

simply is no subsurface mechanism through which it could occur

274 With respect to bat habitat Mr Cowell asserts that karst caves crevasses and one mine (a

rock quarry) exist on Amherst Island and speculates that Stantecrsquos biologists must not have

conducted directed studies to investigate the presence of potential bat hibernacula Leaving aside

the issue of whether Amherst Island has karstic features the evidence is clear that Stantec did

conduct directed field studies to investigate for bat hibernacula as part of preparing the

NHAEIS The evidence is that the Project area and adjacent lands were traversed on foot by

field biologists specifically looking for rock bedrock outcroppings cave entrances and other

potential hibernacula and no suitable features were found Stantec also made a return visit to

Amherst Island to investigate the features specifically identified in Mr Cowellrsquos first witness

statement and concluded that none provided potential for bat hibernacula With respect to the

ldquominerdquo that Mr Cowell speculated might be bat habitat Stantec pointed out that it is an open pit

quarry and therefore not the kind of mine that would reasonably be expected to provide potential

for bats to hibernate

Cowell WS paras 14 16 63 Taylor WS paras 13-19

275 In any event even if Mr Cowellrsquos assertion that Stantec did not properly investigate

potential bat hibernacula had some merit (which the evidence unequivocally demonstrates it does

not) there is no basis on which such speculation could be relied on by the Tribunal to determine

that the Project will cause serious and irreversible harm to such habitat The burden of proof in

this proceeding remains firmly with the Appellant and no alleged gap (even if proven) in the

Approval Holderrsquos investigations is sufficient to shift that burden let alone sufficient to meet it

- 104 -

Hydrology Evidence

276 Mr Stanfield sought to be but was not qualified as an expert in hydrology

277 Mr Stanfield spent his career (1989 to 2014) working as a fisheries biologist and fish

habitat specialist for the Ministry of Natural Resources He also teaches various courses on

stream survey techniques and is one of the authors of Ontariorsquos stream assessment protocol

Stanfield WS pp 4-5

278 Having heard evidence about his background and qualifications the Tribunal qualified

Mr Stanfield as an ldquoaquatic biologist with expertise in stream ecology and watershedsrdquo The

Appellant did not seek to adduce evidence from any other expert who could be qualified as a

hydrologist and relied instead on Mr Stanfield as its sole expert witness to testify about the

hydrology of Amherst Island

Stanfield Testimony

279 The Approval Holder had two expert witnesses who gave evidence on surface water

hydrology ndash Mr Brown and Ms Harttrup The Tribunal qualified Mr Brown as an engineer with

expertise in hydrology and Ms Harttrup as an aquatic biologist

Oral Testimony of Steve Brown and Nancy Harttrup (March 232016) (ldquoBrown and Harttrup Testimonyrdquo)

280 Mr Brown is a professional hydrologist He is currently a senior water resources

engineer at Stantec and has responsibility to coordinate the firmrsquos water resources work

throughout Ontario and the Atlantic provinces He is also Vice President of the Ontario Branch

of the Canadian Water Resources Association a nongovernmental agency that advocates for

quality management of water resources in all their forms He has designed surface water

mitigation plans for a large number of urban development transportation corridor and renewable

energy projects across Ontario

Witness Statement of Steve Brown and Nancy Harttrup (January 192015) (ldquoBrown and Harttrup WSrdquo) paras 4-5

281 Ms Harttrup was the lead biologist at Stantec responsible for the preparation of the water

assessment for the Project She has been a biologist at Stantec for 25 years She has extensive

- 105 -

experience in evaluating surface water features including water bodies as part of the renewable

energy approval process She works closely with professional hydrologists in the course of this

work

Brown and Harttrup WS para 3

282 Mr Stanfield admitted in cross-examination that he first became involved with the

Appellant after meeting some of its representatives at the Hirsch hearing in summer or early fall

of 2015 and ldquocommiseratingrdquo with them about ldquoinconsistencies that had been observed in the

WPD water body reports [for the White Pines Project] and similar inconsistences in the Amherst

Island water bodies reportsrdquo He explained that he lived in Prince Edward County within three to

five kilometres of the closest turbine in the White Pines Project He is a member of the

Association for the Protection of Prince Edward Country (ldquoAPPECrdquo) ndash one of the appellants in

the Hirsch proceeding

Oral Testimony of Les Stanfield (February 4 2016) (ldquoStanfieldTestimonyrdquo)

283 In describing how he became an expert in the Amherst proceeding he testified that he

told the Appellantrsquos representatives when he met them in the summer or early fall of 2015 that he

would ldquohelp in any way I couldrdquo by providing the Appellant with an opinion on water bodies

hydrology and water body studies in respect of their appeal of the Project and was contacted

subsequently in November 2015 to provide an expert witness statement

Stanfield Testimony

Water Bodies Well Documented

284 The theme of Mr Stanfieldrsquos evidence was that the WAWB Report failed to properly

classify certain water features as ldquowater bodiesrdquo in accordance with O Reg 35909 and the

technical guidance published by the Ministry of the Environment and Climate Change

(ldquoMOECCrdquo) It became clear however through the filing of Mr Stanfieldrsquos witness statements

and in the course of his testimony that he did not evaluate these features in accordance with the

applicable regulatory criteria and did not complete any serious field surveys of these features

Stanfield WS pp 3-4 Stanfield Testimony

- 106 -

285 When asked about photographs he had had taken on Amherst Island on February 3 2016

after an intensive period of rain and snow melt he explained that in his opinion a water body is

any water that is flowing in a channel and connected to the dendritic network (the branched

surface water system that occurs on any terrain)

Q When you are going through the slides [shown during histestimony] you said look there is obviously flow it is clearly awater body Do I take it as soon as you see flow it is automaticallya water body even if it has rained a lot

A Basically yes if it is flowing to a connected part of thedendritic network it is a water body That is also from the O Regguidelines in the more technical guidelines

Q I think I understand No matter how much rain there was if yougo and see flow and it is connected to the dendritic network then itis a water body

A I am afraid I have to say for the most part that is true hellip Aslong as there is a channel and there is flow then that is a waterbody

Stanfield Testimony

286 Mr Stanfieldrsquos understanding of what constitutes a water body is inconsistent with the

definition of a water body in section 1(1) of O Reg 35909 which states that the term ldquowater

bodyrdquo includes ldquoa lake a permanent stream an intermittent stream and a seepage area but does

not include

(d) grassed waterways

(e) temporary channels for surface drainage such as furrows or shallow channels that

can be tilled and driven through

(f) rock chutes and spillways

(g) roadside ditches that do not contain a permanent or intermittent stream

(h) temporarily ponded areas that are normally farmed

(i) dugout ponds or

- 107 -

(j) artificial bodies of water intended for the storage treatment or recirculation of

runoff from farm animal yards manure storage facilities and sites and outdoor

confinement areasrdquo

O Reg 35909 s 1(1) BOA Tab 10 Brown and Harttrup WSpara 11

287 Section 1(1) of O Reg 35909 defines ldquointermittent streamrdquo as ldquoa natural or artificial

channel other than a dam that carries water intermittently and does not have established

vegetation within the bed of the channel except vegetation dominated by plant communities that

require or prefer the continuous presence of water or continuously saturated soil for their

survivalrdquo


288 Mr Stanfield did not complete the detailed field surveys necessary to confirm whether

the features he visited and photographed had the characteristics of intermittent streams (and

therefore whether they could be properly classified as water bodies) He indicated he had a very

short time frame to prepare his report he was retained on November 26 2015 visited Amherst

Island on November 28 and 29 2015 and submitted his Reply Witness Statement on December

1 2015 He stated that he did not have access to private property during his visit to the Amherst

Island so rather than conduct proper in-the-field surveys he ldquodrove around the island on roadsrdquo

with his spouse and a local volunteer and did ldquobasically a road surveyrdquo at some of the locations

Stantec had identified as potential water bodies as well as trying to identify some additional

water bodies

Stanfield Testimony

289 In contrast Stantec completed an extensive desk-top and full field evaluation of the water

features in the Project area First Stantec did a comprehensive review of records to identify

potential watercourses in the study area Second Stantec completed a detailed site investigation

over many days during the spring and summer of 2011 and 2012 As part of that investigation

Stantec conducted proper field surveys to confirm the presence or absence of water bodies

identified during the records review and searched in the field for any water bodies not identified

- 108 -

in the records review The surveys were carried out by a team of experienced field staff who

investigated a total of 41 sites on Amherst Island and an additional 11 sites on the mainland The

initial field work was supplemented with additional site reconnaissance in 2013 2014 and 2015

to confirm specific information pertinent to more detailed work ongoing during later parts of the

Project

Brown and Harttrup WS para 17 Brown and Harttrup Testimony

290 As part of its extensive site investigation Stantec completed detailed surveys of water

features to determine whether they were intermittent streams using the guidance set out in the

MOECCrsquos Technical Guide to Renewable Energy Approvals (the ldquoTechnical Guiderdquo) The

Technical Guide sets out the following steps to identify an intermittent stream which Stantec

followed

bull Walk and investigate carefully any drainage channels that exist upstream beyond

the areas containing flowing water

bull Preferably undertake this survey at a time of year when the water table is high

normally the spring

bull In the absence of observable water watch for the following as they may be

indicative of an intermittent stream

bull Streambed material that differs from the surface of the ground surrounding

the stream eg recent accumulations of silt sand cobble or gravel in the

streambed

bull Ridges of sand or silt deposited roughly parallel to the stream on its flood

plain

bull Presence of seepage areas springs or a high water table near the stream

channel

bull Presence in or near the stream channel of wetland plants attached algae

clam or mussel shells crayfish chimneys or exoskeletons or aquatic insect

larvae

bull Sediments deposited on top of plants or plant debris in the streambed

- 109 -

bull Absence of leaf litter in the streambed

bull Accumulations of debris such as leaves twigs or litter on the upstream

side of obstructions in the stream channel andor

bull Presence of hydric soils in the streambed

MOECCrsquos Technical Guide to Renewable Energy Approvals Chapter8 p 161 BOA Tab 16 Brown and Harttrup WS para 20

291 Mr Stanfield criticized Stantec for not completing a Geographic Information Systems

(ldquoGISrdquo) analysis of a digital elevation model (ldquoDEMrdquo) as part of its desk-top phase in order to

properly identify potential water bodies prior to field investigation in the Project area Mr Brown

and Ms Harttrup explained why such an analysis was unnecessary in this case in particular

because Stantec already had extensive records and data available to create a map of potential

water bodies in the study area prior to conducting field investigations As Mr Brown and

Ms Harttrup explained GIS analysis of a DEM would have supplemented the existing records

and data with a slightly more detailed map to guide field investigations but not added materially

to the data used by Stantec to guide the site investigations Mr Brown and Ms Harttrup also

explained that the only method of accurately confirming the presence or absence of potential

water bodies in a study area is by investigating the study area in person and that a GIS model is

no substitute for investigative field work As Mr Brown testified

The base line or real test is to go out in the field and verify whatyou find The mapping exercises whether they are done throughthe records review that Nancy talked about or through the GISassessment is information to guide the field crews in the field sothey know what and where to look

Stanfield WS pp 7-9 Stanfield Testimony Brown and Harttrup WSparas 27-28 Brown and Harttrup Testimony

292 Nevertheless to address Mr Stanfieldrsquos comment Stantec conducted a GIS analysis of

DEMs that were obtained from the Cataraqui Region Conservation Authority (ldquoCRCArdquo) Once

this modelling was completed Stantec conducted a further field survey and determined that the

model was consistent with the previous water body survey work Stantec had carried out During

the field survey Mr Brown and Ms Harttrup visited in wet conditions specific locations on

Amherst Island that the model identified as having the highest potential to be water bodies that

- 110 -

were not identified in the WAWB Report and confirmed that none of them met the

qualifications for being water bodies Mr Brown and Ms Harttrup stated that as a result of their

own GIS work and the follow-up field confirmation they were firmly of the view that Stantecrsquos

2012 WAWB assessment of water bodies on the site was and remains accurate

Brown and Harttrup WS paras 29-36 Brown and HarttrupTestimony

293 Although Mr Stanfield attempted to identify errors in Stantecrsquos work Mr Brown and

Ms Harttrup demonstrated that it was Mr Stanfield who was making repeated errors

Brown and Harttrup WS Sur-Reply Witness Statement of NancyHarttrup and Steve Brown (January 31 2016) (ldquoBrown and HarttrupSur-Reply WSrdquo) Second Sur-Reply Witness Statement of NancyHarttrup and Steve Brown (March 16 2016) (ldquoBrown and HarttrupSecond Sur-Reply WSrdquo)

294 Indeed Mr Stanfield candidly acknowledged on cross-examination that he had put

together his witness statements quickly and there were a number of errors in them He agreed for

example that he had erroneously relied on a GIS map prepared by Ms Gunson which showed

turbine locations based on the 36 turbine layout that had been planned at the time rather than the

27 turbine layout that was approved in the REA and that this had caused him to erroneously

assert in one of his witness statements that several turbines that are no longer part of the Project

ldquoare in close proximity to the modelled waterbodiesrdquo He also agreed that he had mislabelled a

photograph purporting to show a water body that had not been identified by Stantec because he

had only ldquo24 hours noticerdquo to prepare the witness statement in which that photograph was

included

Stanfield Testimony

295 He also agreed that he had erroneously asserted that Stantec

(a) had not identified a water body when in fact it was outside the Projectrsquos Zone of

Investigation

(b) had not identified a water body when in fact it had been identified by Stantec

- 111 -

(c) had excluded a water body when in fact Stantec had included the feature as a

water body downstream but (properly) had not included the portion upstream as a

water body

(d) had erred in sampling but not reporting on a feature when in fact it was clear that

the feature was outside the Projectrsquos Zone of Investigation and

(e) had erred in not including an undersized culvert that was in fact outside the Zone

of Investigation

Stanfield Testimony

296 Mr Stanfield also erroneously asserted that Stantec did not identify the high water mark

for any water bodies This is incorrect In preparing the WAWB Report Stantec followed the

provisions of the Technical Guide It states

For the purposes of the REA applications the average annual highwater mark for streams means the usual or average level to which abody of water rises at its highest point and remains for sufficienttime so as to change the characteristics of the land In flowingwaters this refers to the ldquoactive channelbankfull levelrdquo which isoften the one-to two-year flood flow return levelrdquo

MOECCrsquos Technical Guide to Renewable Energy Approvals Chapter8 p 159 BOA Tab 16 Brown and Harttrup WS para 53 Brownand Harttrup Testimony

297 In accordance with the Technical guide Stantec assessed and reported bankfull widths

for all of the water bodies identified

Stanfield WS pp 14-15 Brown and Harttrup Brown and HarttrupWS paras 50-54 Brown and Harttrup Sur-Reply paras 48-49

298 Like Mr Cowell Mr Stanfield made broad assertions about the potential impact of the

Project on the hydrology of Amherst Island Also like Mr Cowell he provided no details as to

exactly where or how the Project might have those effects Nevertheless the responding experts

provided detailed evidence explaining why the construction and operation of the Project will not

have any significant impact to water bodies on Amherst Island or their functions

- 112 -

299 Mr Stanfield asserted that there could be an adverse impact to surface water flow due to

the interception of water by buried electrical collection cable As described at paragraph 270

above Dr Novakowski and Mr Whitehead testified that the presence of a buried and backfilled

collection cable will be highly unlikely to impede the migration of infiltrating water In addition

Mr Brown and Ms Harttrup explained that the Project has committed to mitigation in the

unlikely event any continuous inflow to the cable trench is identified In particular if during the

trenching any continuous inflow into the trench is identified the Project will install cut-off

collars every 50 meters or as appropriate to prevent lateral migration of flows along the trench

Mr Brown and Ms Harttrup explained that contrary to Mr Stanfieldrsquos speculation cut-off or

anti-seepage collars are regularly and effectively used in a variety of construction projects

Novakowski and Whitehead WS para 31Brown and Harttrup WS para 55 Brown and Harttrup Sur-ReplyWS para 46 Brown and Harttrup Testimony

300 Mr Stanfield also asserted that floodplain capacities could be reduced resulting in

increased erosion in water bodies and the subsequent deposition of sediments in wetlands (or

other low lying areas) As Mr Brown and Ms Harttrup testified this claim has no merit since

among other things the REA requires the Project to put in place mitigation measures designed to

maintain the hydrological conditions on Amherst Island in their current state

Stanfield WS p 15 Brown and Harttrup WS para 56 Brown andHarttrup Testimony

301 These mitigation measures are numerous Some are simply decisions in respect of the

location of Project infrastructure For example perennial and intermittent water bodies were

identified through the WAWB Report and turbines were sited to avoid these locations


302 Other mitigation measures are specifically included as conditions in the Projectrsquos REA

and therefore required to be implemented by the Approval Holder These include

bull Condition G9 The Company shall ensure that any water discharged to the

natural environment does not result in scouring erosion or physical alteration of

stream channels or banks and that there is no flooding in the receiving area or

- 113 -

water body downstream water bodies ditches or properties caused or worsened

by this discharge

bull Condition G10 Siltation control measures shall be installed at the discharge

site(s) and shall be sufficient to control the volumes

bull Condition G11 Any discharge facilities installed at or downstream of the

discharge point(s) such as discharge diffusers settlement ponds silt bags flow

checks or filters are designed and constructed to capture and treat the discharge

water for suspended solids prior to release to any watercourse The discharge

facilities shall be maintained for the full duration of the discharge

bull Condition H1 The Company shall prepare and submit using current best

management practices a site-specific stormwater management plan and erosion

and sediment control plan for the construction installation use operation

maintenance and retiring of the Facility and the Facility (Concrete Plant) to the

Director and the District Manager at least one month prior to the commencement

of construction of the Facility and the Facility (Concrete Plant)

bull Condition H16 The Company shall install all In-water Works in a manner which

bull Prevents an Adverse Effect to the stream bed substrates stream bank

instream and near-shore habitat and flow characteristics absent of any

authorizations such as timing restrictions and or mitigation requirements

from partner Ministries and agencies

Brown and Harttrup WS paras 45 Brown and Harttrup Testimony

303 Mr Brown and Ms Harttrup testified that they were confident based on Stantecrsquos

records review and site investigations that the surface water of hydrology is well understood

and that the mitigation measures described above will succeed in providing sufficient protection

against any potential impact of the Project


- 114 -

Blandingrsquos Habitat at the Project not Missed

304 The Appellantrsquos Closing Submissions at paragraphs 91 to 99 attempt to paint a

misleading picture of the water bodies present in the Project Area one that is fundamentally at

odds with the results of Stantecrsquos water bodies assessment documented in the WAWB Report

The Appellant asserts that Mr Stanfieldrsquos evidence shows there are many unmapped water

features that Stantec missed (despite its extensive field investigations) ndash including water body

corridors wetlands and natural flooded grassy areas ndash which Mr Stanfield (who is not a turtle

expert) speculates ldquocould readily provide habitat and migration corridors for Blandingrsquos Turtlesrdquo

The Appellantrsquos arguments ignore Mr Brown and Ms Harttruprsquos evidence the data and

investigations relied on by them and the frailties of Ms Stanfieldrsquos assertions and

methodologies as revealed through cross-examination

305 As described at paragraphs 289 to 290 and 292 above the evidence shows that the

investigation and analysis Stantec carried out in identifying and assessing water bodies on

Amherst Island was careful defensible in-depth and comprehensive Importantly it was rooted

in many days of intensive field work by trained Stantec staff during 2013 and 2014 Stantec

supplemented these field investigations with an additional field survey in 2015 after reviewing

Mr Stanfieldrsquos evidence conducting its own GIS mapping and ultimately confirming through

this additional ground-truthing that the results of the WAWB Report were reliable and accurate

As Mr Brown and Ms Harttrup explained the only method of accurately confirming the

presence of potential water bodies in a study area is by investigating the study area in person

Preliminary desk-top work which includes a records review andor a GIS exercise helps set the

stage but is no substitute for the actual in-the-field observations required to ldquoground truthrdquo the

desk-top studies


306 In contrast as described above at paragraph 287 the evidence showed that Mr Stanfield

did not conduct proper field work but instead drove around the island with his spouse for a

couple of days and reviewed some photographs the Appellant had taken He acknowledged he

had neither the time nor private property access to conduct the kind of extensive and

- 115 -

comprehensive field investigations carried out by Stantec He also admitted he made a variety of

errors in alleging Stantec had not properly carried out their assessment work

Stanfield Testimony

307 The Appellant at paragraphs 91 93 and 95 of its Closing Submissions repeatedly refers

to a GIS map of Amherst Island prepared by Ms Gunson (who is not a hydrologist) which

Ms Gunson describes as illustrating where stream channels ldquowillrdquo occur The Appellant suggests

the Tribunal should rely on it (or GIS mapping in general) rather than the results of the extensive

field investigations reflected in Stantecrsquos WAWB Report That suggestion is based on a

fundamental misunderstanding of GIS mapping as some kind of substitute or replacement for

the results of a comprehensive field investigation In fact as the evidence of both sides made

clear GIS mapping is a preliminary desk-top exercise that provides (along with other records

and data) some indication for trained personnel to start looking on the ground during the

subsequent and necessarily extensive field exercises

Brown and Harttrup Testimony Stanfield Testimony

308 As described at paragraph 291 above Mr Brown and Ms Harttrup were careful to

emphasize that GIS mapping is only one of several sources that might be used as a preliminary

basis for a trained hydrologist to map out and then begin conducting comprehensive field

investigations Mr Stanfield made the same point He volunteered from the outset that

Ms Gunsonrsquos GIS map was ldquocursoryrdquo and ldquotime constrainedrdquo He also explained that GIS

mapping identifies differences in elevation in grid cells and determines ldquowhat direction water

would flow if it was flowing out of that cellrdquo As he stated

These are just predicted water bodies They donrsquot necessarily meanthe water is flowing there It just says that the digital elevationmodel predicts there should be water there or if there was waterthat was where it would be located In each instance when you do aGIS analysis it is predicted hellip It is used so people could directtheir sampling to find out whether a water body is there or not

Stanfield WS pp 13-14 Stanfield Testimony Brown and HarttrupTestimony

309 Contrary to the argument the Appellant appears to make in its Closing Submissions its

own expertrsquos evidence makes clear that GIS mapping cannot serve as a substitute for

- 116 -

comprehensive field investigations GIS mapping will by its very nature produce false positives

because not all differences in elevation identified in a GIS map will turn out to be water bodies

Even the Stantec GIS work (which the evidence shows was far more granular and precise than

Ms Gunsonrsquos map) resulted in false positives as described above at paragraph 292 Given the

consensus of the expert evidence on this point there is no basis on which the Tribunal can find

as the Appellant appears to suggest that the GIS maps prepared by either Ms Gunson or Stantec

can substitute for the maps of water body locations contained in the WAWB Report which are

the product both of desktop work and ndash most importantly ndash comprehensive field investigations

For reference the figures in the WAWB Report showing the water bodies at the Project Location

are attached as Appendixes E F and G of the Brown and Harttrup Witness Statement

310 Importantly it is a wholly unjustified leap unsupported by any evidence before the

Tribunal to suggest as the Appellantrsquos do (repeatedly) that any and all water bodies at or near the

Project Location are suitable Blandingrsquos Turtle habitat

311 Although Blandingrsquos turtles are largely aquatic the water they use must be still or

standing water ndash they avoid large open water rivers and creeks For foraging they rely on still

water high enough in nutrients to support their prey base The water must also be sufficiently

deep for them to swallow their food underwater For overwintering they need still or standing

water that is about one meter in depth so that the bottom of the water column doesnrsquot freeze

Witness Statement of Ronald J Brooks (November 25 2015)(ldquoBrooks WSrdquo) paras 11 12 22 and 26

312 Mr Stanfield was neither qualified to (nor did he attempt to) distinguish between the

particular water bodies identified at the Project Location on the above basis His evidence cannot

as a consequence be relied on to establish the presence of Blandingrsquos Turtle habitat

tporfido
Text Box
TURTLES TAB13

- 117 -

E Turtles

313 In respect of Blandingrsquos Turtle the Tribunal heard from many expert witnesses and lay

witnesses covering among other things turtle ecology and habitat where turtles are located the

estimated size of the turtle population the relevant Project components and mitigation measures

and the level of risk posed by the Project

314 In our submission the Appellant has failed to meet its onus The evidence considered in

totality establishes the following main points

(1) There is unlikely to be a turtle presence in the Project Location itself Blandingrsquos

Turtles on the island are primarily in the Coastal Marsh Wetlands at the southwest

end of the island and in close proximity to them outside the Project Location

(2) The Project will not result in any destruction or removal of Blandingrsquos Turtle

habitat

(3) There is minimal risk of there being any Blandingrsquos Turtle mortality as a result of

the Project

bull The Project would be constructed mostly during the time when turtles are

hibernating

bull The turbine access roads pose no material mortality risk as they are on

private agricultural grasslands gated and located outside Blandingrsquos Turtle

habitat and would get very little use

bull The risk on existing public roads is also low and would remain that way ndash a

majority of the roads (or sections of roads) on the island including those

closest to the Coastal Marsh Wetlands would not be used at all for the

Project and upgrades to other roads would be minor and temporary

bull No ESA permit was required for this Project in respect of Blandingrsquos Turtle

as there is not expected to be any harm to the species

bull The Wolfe Island project is a good predictor of risk ndash no harm to Blandingrsquos

Turtle has resulted from that project

- 118 -

bull There is no reasonable prospect of increased nest predation and even if there

was it would take a dramatic increase to have any impact Increased nest

predation would not create any risk for adult females

(4) In order for serious and irreversible harm to be caused to Blandingrsquos Turtle there

would have to be sustained chronic mortality over a number of years ndash there is no

material risk (let alone the ldquowill causerdquo level of proof required in this proceeding)

of that occurring as a result of the Project

315 Besides the transportation engineers called by both sides (Messrs Northcote and

Stewart) the Tribunal heard from the following experts relating to these issues

bull Dr Davy (called by the Appellant) ndash called in respect of both turtles and bats She

was qualified as ldquoa conservation biologist with expertise in conservation genetics and

turtle and bat ecologyrdquo She finished obtaining her educational degrees in 2012 and

has some research and working experience with each of turtles and bats

bull Mr Nagle (called by the Appellant) ndash qualified as ldquoa herpetologist with expertise in

turtles including Blandingrsquos Turtlerdquo By way of educational background he has a

Masterrsquos degree He is the Director of Environmental Health and Safety at Juniata

College an administrative role and he is an instructor of environmental science (not

a professor position) His work with Blandingrsquos Turtle has been at the ESG Reserve

working as research associate to Dr Congdon and his publications on the species

(principally papers he co-authored) have been based on that work at the ESG

Reserve

bull Ms Gunson (called by the Appellant) ndash qualified as ldquoa road ecologistrdquo She is not a

herpetologist or biologist and was not qualified to opine on Blandingrsquos Turtle

ecology behaviour or population biology

bull Dr Brooks (called by the Approval Holder) ndash qualified as ldquoa herpetologist with

expertise in turtles including Blandingrsquos Turtlerdquo After obtaining his BSc and

Masterrsquos degrees from the University of Toronto he obtained his PhD in Zoology

(University of Illinois) in 1970 After holding faculty positions at other universities

he was a full professor at the University of Guelph for 18 years (1988 to 2006) and

- 119 -

has been professor emeritus there since 2006 He has published extensively over the

years on turtle species at risk He has authored two books on reptiles and

amphibians 16 chapters in other books and 233 papers in refereed journals plus 250

technical reports For 17 years he was the co-chair of the amphibians reptiles and

turtle species specialist sub-committee of COSEWIC and was also a member of

COSSARO He was instrumental in Blandingrsquos Turtle being listed as a SAR He was

co-chair of OMSTARRT (the Ontario multispecies turtles at risk recovery team) For

6 years he was president of the Canadian Association of Herpetologists He has

devoted much of the past 25 years to the conservation of species at risk turtles

including Blandingrsquos Turtle and has won numerous awards for his work over the

years43

bull Dr Hasler (called by the Approval Holder) ndash qualified as ldquoa conservation scientist

with expertise assessing the impact of infrastructure projects on turtlesrdquo He obtained

his PhD in Biology (Carlton University) in 2011 From 2011 to 2014 he was a

research scientist with Dillon Consulting He has authored technical reports and

research papers on Blandingrsquos Turtle He worked for 3 years on the South Marsh

Highlands project (the extension of Terry Fox Drive near Ottawa) including

conducting a Blandingrsquos Turtle population and ecology study He worked as a

consultant on various wind and solar energy projects assessing the impacts on turtles

and their habitat and developing mitigation measures

bull Mr A Taylor (called by the Approval Holder) ndash qualified as ldquoa terrestrial

ecologistbiologist with expertise assessing impacts of wind energy projects on

wildliferdquo He has a BSc from the University of Guelph He obtained his certificate

in respect of ecological land classification He has been at Stantec for 11 years he is

senior ecologist and project manager at Stantec Throughout his time at Stantec his

focus has been conducting environmental impact assessments He has been involved

in that work on over 20 wind energy projects in Ontario He has expertise assessing

the impacts of projects on birds bats and turtles and the design and implementation

43 In its submissions APAI seeks to tarnish Dr Brooksrsquo reputation and cast aspersions in respect of his evidenceThose attacks ndash used by APAIrsquos counsel as a pretext to try to dismiss his testimony without addressing any of thesubstance ndash are unwarranted and unfair We respond to those submissions further below

- 120 -

of mitigation measures He has conducted post-construction mortality monitoring at

many wind projects over the years

bull Mr S Taylor (called by the Approval Holder) ndash qualified as ldquoa road ecologist and

biologist with expertise in the areas of ecological restoration and construction

mitigationrdquo He has a BSc from the University of Guelph (1984) in aquatic biology

and a Masterrsquos in integrated agricultural and aquaculture He has approximately 25

years of experience working on a variety of infrastructure projects including many

road construction projects He has expertise assessing the impacts of roads on turtles

and turtle habitat and mitigating them

bull Kathleen Pitt (called by the MOECC) ndash qualified simply as ldquoa biologistrdquo and was

called to provide factualtechnical evidence regarding the process of ESA permits

She is not a herpetologist and was not qualified to opine in respect of Blandingrsquos

Turtle ecology

bull Mr Crowley (called by the MOECC) ndash qualified as a herpetologist with expertise in

Blandingrsquos Turtles He obtained his BSc degree in environmental biology in 2003

and his Masters of Science in 2005 from the University of Guelph He is the species

at risk herpetology specialist for the MNRF He regularly assesses and advises on the

risks of projects or activities on SAR including Blandingrsquos Turtle He is a member

of COSEWIC the soon-to-be president of the Canadian Herpetological Society a

member of the Ontario Turtle Conservation Group and a member of the Ontario

Road Ecology Group

(1) There is Unlikely to Be Any Blandingrsquos Turtle Presence in the Project Location

316 As described below the Project Location itself is not suitable Blandingrsquos Turtle habitat

and Blandingrsquos Turtles have not been observed in the past ndash including by Stantec or the resident

landowners ndash within the Project Location where turbines and access roads will be located For

these reasons it is unlikely that Blandingrsquos Turtles will be present in the Project Location more

than occasionally if at all No regular presence would reasonably be expected

- 121 -

Blandingrsquos Turtle Habitat

317 As explained by Dr Brooks ldquoBlandingrsquos Turtles are largely aquatic and inhabit a wide

range of shallow eutrophic wetland habitat They are typically in large wetlands with an

abundance of emergent vegetation They are often associated with wetlands maintained by

beavers They principally use permanent aquatic habitat for their residence wetlands for refuge

during movements and for foraging exposed soil in warm settings close to wetlands to place

nests and areas in which they can thermoregulate and hibernate in the winterrdquo

Witness Statement of Ronald J Brooks (November 25 2015)(ldquoBrooks WSrdquo) para 22

318 Nests are usually located from 5 to 250 metres from a wetland though sometimes longer

distances have been reported As Dr Brooks testified ldquoit is important to recognize that the

females probably nest as close to wetlands as possible to reduce the energetic costs and predation

risks of travelrdquo

Brooks WS para 25

319 The above preferred habitats can be contrasted with habitats that Blandingrsquos Turtles tend

to avoid These include agricultural fields such as hayfields pasture fields and other fields with

dense vegetation The research has shown and multiple experts at this hearing testified that

those types of fields are not suitable Blandingrsquos Turtle habitat As Dr Brooks explained

ldquoalthough a Blandingrsquos Turtle may occasionally traverse such a field when travelling to a nearby

wetland or nesting site they typically will not be found in these areas as they do not provide

habitat for any essential lifecycle functions and expose the turtle to dehydration temperature

extremes predators and agricultural machinery (Saumure et al 2006) while lacking any

potential foodrdquo

Brooks WS para 28 and research cited in it Brooks TestimonyWitness Statement of Caleb T Hasler (November 25 2015) (ldquoHaslerWSrdquo) paras 11-12Andrew Taylor WS para 96 Andrew Taylor Testimony

320 Dr Hasler similarly confirmed that ldquonormally Blandingrsquos Turtle will not be found in

agricultural fieldsrdquo

Hasler WS para 11

- 122 -

321 Mr Crowley the MNRFrsquos expert on Blandingrsquos Turtle also confirmed that ldquoBlandingrsquos

Turtles occupy a variety of wetlands and aquatic habitatsrdquo Throughout most of their active

season ldquothey will primarily be found in and around those wetland habitatsrdquo While they move

relatively short distances between wetlands ldquoeven when they move they try to stick to the

aquatic areas when they canrdquo he testified He further stated that ldquothey tend to avoid moving

extensive distances through open agricultural landscapes for a variety of reasonsrdquo

Witness Statement of Joe Crowley (February 29 2016) (ldquoCrowley WSrdquo)paras 21-23 Crowley Testimony

The Project Location is Not Suitable Habitat

322 There can be no real debate that overall the Project Location is not suitable habitat for

Blandingrsquos Turtle That is because the Project Location is predominantly comprised of

agricultural fields ndash namely dry upland habitat with dense vegetation mainly hayfields and

pasture fields As Andrew Taylor of Stantec confirmed ldquothe Project will be situated primarily on

privately owned agricultural landsrdquo He testified that on the island almost the entire Project

Location consists of agricultural fields The turbines and related access roads are situated within

agricultural grasslands hay and pasture fields These kinds of fields with dense vegetation stand

in contrast to row crop fields with exposed rows of soil which the Appellant refers to in its

submissions

Brooks WS paras 30-31 and research cited in it Brooks TestimonyAndrew Taylor WS paras 11 69 Andrew Taylor Supplementary WSpara 95 Andrew Taylor TestimonyHasler WS paras 11-12

323 The Approval Holderrsquos turtle experts including Drs Brooks and Hasler definitively

stated that the Project Location is not suitable habitat for Blandingrsquos Turtle

bull Dr Brooks ldquoIn general the Project location is not suitable habitat for Blandingrsquos

Turtle The Project location is predominantly comprised of agricultural fields and

dry upland habitat with dense vegetation such as pastures hayfields or crops A turtle

may cross such areas occasionally while looking for a suitable nest site or perhaps a

new wetland or other fascination However this species does not forage hibernate

or thermoregulate in these habitatsrdquo

- 123 -

bull Dr Hasler ldquoThe Project location consists mainly of agricultural fields Suitable

wetland habitat containing standing water is generally not found within the Project

location Normally Blandingrsquos Turtle will not be found in agricultural fields

Blandingrsquos Turtle do not forage hibernate or inhabit the habitat that is present in the

Project locationrdquo

Brooks WS para 30Hasler WS para 11

324 Joe Crowley of the MNRF similarly confirmed that the proposed turbine locations and

access roads are located within the agricultural areas and most are not within 500 m of

Blandingrsquos Turtle suitable aquatic habitat

Crowley WS para 23

325 In terms of the Project Location in their testimony Dr Davy and Ms Gunson focused

principally on one particular area that Dr Davy referred to as being ldquopotentially suitable habitatrdquo

That is a spot adjacent to Lower 40 Foot Road in relative proximity to turbines 12 28 and 33 at

the eastern end of the island Dr Davy and Ms Gunson questioned why that location (of which

Dr Davy provided 2 photos in her witness statement) was not specifically surveyed by Stantec

for Blandingrsquos Turtle as part of its 2015 surveys As by both Dr Brooks and Andrew Taylor

explained that location is not in fact Blandingrsquos Turtle habitat and it is also outside the Project

Location as well

Davy Reply WS para 8Witness Statement of Kari E Gunson (September 28 2015)(ldquoGunson WSrdquo)

326 While that location adjacent to Lower 40 Foot Road may be classified as ldquowetlandrdquo for

Ecological Land Classification purposes it nonetheless is not Blandingrsquos Turtle habitat In

respect of the particular spots shown in Dr Davyrsquos photographs Dr Brooks testified that ldquothe

areas shown in those photos do not represent Blandingrsquos Turtle habitat in my view and I would

not refer to them as potentially suitable habitat (particularly in the context of the surrounding

landscape) I would not expect any Blandingrsquos Turtles to be located there I understand that there

have never been any sightings (or alleged sightings) of Blandingrsquos Turtle in those lsquowetlandsrsquo or

near the locations of the 3 turbines mentionedrdquo

- 124 -

Brooks Testimony

327 Dr Brooks visited that particular location and further confirmed that it does not represent

Blandingrsquos Turtle habitat and he expects the area to be dry in the summer In his testimony he

emphasized that the fields surrounding it are similarly not suitable Blandingrsquos Turtle habitat

making it even less likely that any Blandingrsquos Turtles would be located there He stated

Another point that it is important to not lose sight of is that even ifthere were some other area that might be ldquopotentially suitablerdquo forBlandingrsquos Turtle in the Project Location ndash which I do not believe tobe the case ndash the turtles would still have to cross (likely extensive)habitat they normally avoid in order to get there So we would be leftwith an area or spot that might be ldquopotentially suitablerdquo but that issurrounded by (ie isolated by) plainly unsuitable habitat It isunlikely there would be any Blandingrsquos Turtles in such a location

Supplementary Witness Statement of Ronald J Brooks (January 192011) (ldquoBrooks Supplementary WSrdquo) paras 16-17 BrooksTestimonyAndrew Taylor Supplementary WS para 92

328 Andrew Taylor who led the detailed ELC exercise confirmed that the above location

adjacent to Lower 40 Foot Road is ldquoin reality a dry meadow heavily dominated by the non-

native invasive reed canary grassrdquo and is ldquoparticularly unsuitable to Blandingrsquos Turtlerdquo

Importantly it does not contain standing water In oral testimony he confirmed that he is

personally familiar with the conditions at that location in the summer months having attended

there himself in the summers

Andrew Taylor Supplementary WS para 77 Taylor Testimony

329 In its Closing Submissions the Appellant refers to a table from the NHAEIS which

describes that the above location ldquois associated with various intermittent channels and streams

which intersect with the communityrdquo The Appellant incorrectly submitted that this phrase

contradicts Mr Taylorrsquos evidence that the location is dry in the summer It does not The key

word is ldquointermittentrdquo ie there may be some water there intermittently during snowmelt or

after a major rain event but the water does not remain Mr Taylor confirmed the area is dry in

the summer (based on his own observations) and Dr Brooksrsquo expectation was the same after he

visited that location as well

- 125 -

330 Mr Taylor further indicated that ldquoIt is in my experience well understood that reed canary

grass degrades habitats and is of little value to native wildlife in particular turtles I have done

many turtle surveys and extensive turtle related field work in Ontario over many years and I

have never known Blandingrsquos Turtles to use such habitatrdquo While Dr Davy raised some

questions about reed canary grass Dr Brooks then replied as follows

In paragraph 5 of the Supplementary Davy WS she questions thestatement that reed canary grass is an invasive species that takesroot in wetlands and can make it unsuitable habitat for turtles andindicates she is not aware of literature on this point In my viewthe above statement is a correct one and I am surprised byDr Davyrsquos questioning of it given her involvement with recentCOSEWIC reports on threats to Blandingrsquos and other turtles fromReed Canary Grass and European Common Reed and the paperfor example by Bolton and Brooks (2010) I could also suggestthat she review Anderson H 2012 Invasive Reed Canary Grass(Phalaris arundinacea subsp arundinacea) Best ManagementPractices in Ontario Ontario Invasive Plant Council PeterboroughON which summarizes the impacts of these invasive plants onwildlife including Blandings Turtles

Andrew Taylor WS para 92 Andrew Taylor Supplementary WSpara 77 Andrew Taylor Sur-Reply WS (turtles and bats) para 3Andrew Taylor TestimonySur-Reply Witness Statement of Ronald J Brooks (January 31 2016)(ldquoBrooks Sur-Reply WSrdquo) para 5 Brooks Testimony

331 Largely in reliance on an ELC document from an NHA appendix ndash a document that The

Appellantrsquos turtle experts did not testify about or attach to their witness statements and which

The Appellantrsquos counsel chose strategically not to put to Andrew Taylor (who led the ELC

exercise) or to the Approval Holderrsquos turtle experts or to Mr Crowley ndash Appellantrsquos counsel now

tries to argue that there are many wetlands in or close to the Project Location that constitute

Blandingrsquos Turtle habitat Doing so is highly misleading apart from the evidentiary Browne v

Dunn problem for the Appellant The evidence including from the experts is that not all

ldquowetlandsrdquo for purposes of ELC classification constitute Blandingrsquos Turtle habitat

332 As explained by Andrew Taylor various features that are technically considered to be

ldquowetlandsrdquo under the Ontario wetland evaluation system are not suitable Blandingrsquos Turtle

habitat The Appellantrsquos legal counsel to argue that they are synonymous when that is simply

- 126 -

not the case Only wetlands with specific characteristics are the suitable and preferred habitat of

Blandingrsquos Turtle as explained by Dr Brooks He stated that ldquomost of the wetlands in proximity

to the Project Location are temporary wetlands that are unlikely to be used by Blandingrsquos

Turtlerdquo

Andrew Taylor TestimonyBrooks WS para 31 Brooks Testimony

333 Dr Brooks explained the habitat requirements of Blandingrsquos Turtle for their various

lifecycle functions ndash evidence with which the Appellantrsquos turtle experts did not disagree The

type of wetland habitat they use is aquatic habitat permanent aquatic habitat for residence for

wintering water deep enough not to freeze for foraging water that supports fish or amphibians

ndash they feed underwater Accordingly to be used by Blandingrsquos Turtle wetlands must have

sufficient water to meet the above requirements If they do not they are not Blandingrsquos Turtle

habitat

Brooks WS paras 22 26 37-40

334 In respect of the ldquowetlandsrdquo in the NHA appendix the Appellant refers to wetland

numbers 1 2 4 5 6 7 9 10 11 19 and 21 in its submissions With the exception of wetland 21

(which is the Long Point Marsh) the evidence is that these are not suitable Blandingrsquos Turtle

habitat They are areas that do not contain surfacestanding water and thus do not meet the needs

of Blandingrsquos Turtle The only such wetland that includes surface water is wetland 21

335 The difficulty is that in its submissions the Appellantrsquos counsel ndash without expert evidence

ndash is trying to interpret what a ldquowetlandrdquo means in the NHA appendix In fact section 313 of the

NHA confirms that ldquowetlandsrdquo are defined in the REA regulation as features that are swamp

marsh bog or fen that are ldquoseasonally or permanently covered by shallow water or has the

water table close to the surface and have hydric soils and vegetation dominated by

hydrophotic or water tolerant plantsrdquo Many of the ldquowetlandsrdquo to which the Appellant refers have

water tables close to the surface (ie do not contain standing water at any period throughout the

year) and contain water tolerant plants That is why they are classified as ldquowetlandsrdquo but they

are not Blandingrsquos Turtle habitat nor do the NHA or SAR reports indicate otherwise Andrew

Taylor confirmed this point in his evidence

- 127 -


336 In its Closing Submissions the Appellant also seeks to rely on the MNR GHDBT

document to suggest there is Blandingrsquos Turtle habitat at the Project Location even though

neither of the Appellantrsquos turtle experts did so This is another instance of the Appellantrsquos

counsel selectively referencing and we respectfully say misinterpreting the document in an

effort to construct an argument In fact the GHDBTrsquos habitat description is consistent with the

Approval Holderrsquos evidence that the Project Location is not suitable habitat

337 The Appellantrsquos submissions on this point mainly rely on the following partial quote in

respect of habitat from the GHDBT document ldquoSuitable habitat for Blandingrsquos Turtles during

the active season includes a variety of wetlands such as marsh swamps ponds fens bogs slow-

flowing streams shallow bays of lakes or rivers as well as graminoid shallow marsh and slough

forest habitats that are adjacent to larger marsh complexesrdquo In fact all of the habitat in that

description contains standing water The GHDBT does not include habitats that are dry Also the

Appellantrsquos Closing Submissions do not include the full description from the document which

is ldquosuitable habitat for Blandingrsquos Turtles during the active season includes a variety of wetlands

such as marsh swamps ponds fens bogs slow-flowing streams shallow bays of lakes or rivers

as well as graminoid shallow marsh and slough forest habitats that are adjacent to larger marsh

complexes (Joyal et al 2001 Gillingwater 2001 Gillingwater and Piraino 2004 2007 Congdon

et al 2008 Edge et al 2010 Seburn 2010) Suitable wetlands used during the active season are

typically eutrophic (mineral or organic nutrient-rich) shallow with a soft substrate composed of

decomposing materials and often have emergent vegetation such as water lilies and cattails

(COSEWIC 2005 Congdon et al 2008)rdquo This full description makes it evident that suitable

habitat for Blandingrsquos Turtle is not only from one of the listed habitats but also contains shallow

standing water rich in nutrients and with emergent vegetation such as water lilies or cattails

Dry fields of reed canary grass or green ash swamps without standing water do not meet this

description of suitable habitat for Blandingrsquos Turtle The Appellant points out the GHDBT

definition does not include the specific words ldquostanding waterrdquo (para 298 of the Appellantrsquos

Closing Submissions) While it does not include those exact words the GHDBT is clearing

referring to areas of shallow water

MNR GHDBT Document

- 128 -

338 No matter how hard they try in their submissions the Appellant cannot change the fact

that the Project Location including the locations where the turbines and access roads will be

located consists of agricultural grasslands (hayfields and pasture fields) These fields are simply

not Blandingrsquos Turtle habitat

Lack of Turtle Sightings in the Project Location

339 Over a 5 year period Stantec conducted extensive field investigations and surveys in the

Project Location on the island including in all areas where the turbines and related access roads

will be located At no time did Stantec observe any Blandingrsquos Turtle during those site

investigations and surveys

Andrew Taylor WS paras 67-68Brooks WS para 32

340 In particular approximately 18 trained biologists were actively engaged in this field

work for a total of approximately 1400 hours Of that 1400 hours in excess of 800 hours of

survey time was during the active season for Blandingrsquos Turtle (May through October) Within

the turtle active season 230 hours of field investigative survey work were carried out in June the

heart of the nesting season for Blandingrsquos Turtle All optioned lands for the Project were visited

twice in June traversing the lands on foot More than 150 hours were spent in May and 124

hours in July Mid-May to early July would cover the entire nesting season

Andrew Taylor WS para 67 Andrew Taylor Supplementary WSpara 71

341 After the Ostrander ERT case was decided in early July 2013 Blandingrsquos Turtle took on

a special profile in the wind opposition community in the subsequent years Shortly after the

Ostrander decision it appears the Appellant began to focus on and try to find sightings of

Blandingrsquos Turtle to support its opposition to the Project There is no evidence to suggest that

any concerns in respect of Blandingrsquos Turtle had been raised previously in respect of this Project

As a result of the apparent new interest by the wind opposition community in Blandingrsquos Turtle

Stantec conducted even further turtle surveys of the relevant portions of the Project area in the

summer of 2015 (the ldquo2015 Turtle Surveysrdquo)

Andrew Taylor WS paras 71-75

- 129 -

APAI Slide Deck Meeting Presentation Exhibit 39

342 As Andrew Taylor (who led the surveys) testified these 2015 Turtle Surveys focused on

areas within the 250 metres of any Project infrastructure Within those areas Stantec took a

conservative approach and considered any areas with standing water ndash even if the water was just

temporary for a portion of the year ndash as potential suitable habitat for purposes of selecting the

locations to survey These included temporarily flooded areas and small dug ponds Mr Taylor

confirmed


343 Ten rounds of surveys were conducted in those areas by biologists over ten separate days

in June and early July (on June 11 13 14 16 17 18 26 and July 3 4 5 and 24) Besides

making observations from a distance using binoculars or a scope the biologists also accessed the

standing water areas on foot and waded in shallow water to improve vantage points As part of

this survey work three rounds of nesting surveys were also conducted (ie these were not just

basking surveys that were conducted) in the evenings to detect any turtles using potential nesting

sites including roadsides

Andrew Taylor WS para 73 Andrew Taylor Supplementary WSparas 73-75 2015 Turtle Surveys Exhibit H to Andrew Taylor WS

344 While the Appellantrsquos witnesses were critical of part of the survey methodology for the

2015 Turtle Surveys it appears from their witness statements that they may have misunderstood

some of the details of the methodology that was in fact used and the full scope of the surveys

that were conducted In fact the surveys were thorough and the 10 rounds that were conducted

is twice the recommended level of effort specified in the MNRF survey protocols Stantec also

consulted with Dr Brooks in advance of conducting the 2015 Turtle Surveys in respect of the

locations to survey and the survey methodology to employ He approved of the surveys and

confirmed that they were conducted at the appropriate time of year to detect any turtles that may

be present

Andrew Taylor Supplementary WS paras 75-77 Andrew TaylorTestimonyBrooks WS para 33 Brooks Supplementary WS paras 14-17Brooks Testimony

- 130 -

345 Over the course of the 2015 Turtle Surveys no Blandingrsquos Turtles or Blandingrsquos Turtle

nests were observed in any of the locations (two painted turtles were observed)

Andrew Taylor WS paras 74-75 and Exhibit HBrooks WS para 36

346 Further the Appellantrsquos survey methodology criticisms focus mainly on a relatively small

amount of Stantecrsquos field investigation work at the Project Location This ignores that Stantecrsquos

biologists were in the fields of the Project Location for over 800 hours during the turtle active

season over the course of 5 years The Appellant tries to ignore this fact

347 Pursuing a theme advanced unsuccessfully by Mr Stanfield with respect to the water

bodies assessment (as addressed above) the Appellantrsquos submissions go to great lengths to try to

create the impression that Stantec made fundamental mistakes in its survey methodology and

urges the Tribunal to disregard the results The Appellant essentially asserts it is understandable

that Stantecrsquos considerable and sustained survey efforts did not show any presence of Blandingrsquos

turtle at the Project Location or any suitable Blandingrsquos Turtle habitat because (to paraphrase)

they did not know what they were doing This despite the reality that Stantec has been

investigating for the presence of and identifying Blandingrsquos Turtle for many years including at

the wind projects that were the subject of the proceedings in Ostrander and Hirsch Stantec not

only knows what it is doing it has a proven track record in that regard before this Tribunal

348 As an example of the misleading nature of the Appellantrsquos assertion paragraph 169 of its

submissions reproduces almost in its entirety a letter from Dr Beaudry ndash who was not called as a

witness and therefore on whom the Appellant should not be seeking to rely ndash and adopts a prior

critique it contains of Stantecrsquos survey work without reservation or based on the premise that

Dr Davy shares ldquomost ofrdquo the concerns

349 What the Appellant leaves out is that Dr Beaudry obviously had an incomplete

understanding of the survey work that was done at that stage of the process Dr Beaudry focused

on only two types of surveys the ELC (or land classification surveys) and the turtle surveys that

were incorporated into the surveys for significant wildlife habitat In addition to these Stantec

spent over 230 person hours in June (prime Blandingrsquos nesting season) in the fields where the

- 131 -

Project is located as well as targeted Blandingrsquos Turtle surveys in 2015 which included twice as

much effort as required by the MNRF Blanding Turtle survey protocol

350 As Mr Taylor noted

23 The Davy Reply continues to misrepresent the level of fieldsurvey effort conducted by Stantec Specifically at paragraph 1 theDavy Reply relies on a letter from Mr Beaudry which raises concernsabout the time spent and methods used by Stantec to identify turtlehabitat on Amherst Island In his letter Mr Beaudry largely focusedon the surveys completed for turtle nesting and overwintering habitatin the NHAEIS However what Mr Beaudry did not seem tounderstand is that these surveys are intended to identify significantwildlife habitat and not the surveys relied on to identity the habitat forthreatened and endangered species such as Blandingrsquos TurtleMr Beaudry also significantly underestimates the amount of surveytime completed by Stantec He considers only the fieldwork for the siteinvestigation which is a very small fraction of the hundreds of hoursof field surveys conducted by Stantec on Amherst Island during theBlandingrsquos Turtle active season Furthermore this letter was writtenbefore and therefore did not take into consideration Stantecrsquos targetedBlandingrsquos Turtle surveys in 2015

24 The Gunson Statement also makes reference to the Beaudry letterfrom 2014 Specifically at point 29 Gunson references the Beaudryletter which concludes Stantec did not conduct surveys during the peaknesting season in June However this conclusion is not true Stantecbiologist spent considerable time on Amherst Island in June Alloptioned lands for the Project were visited twice in June traversing thelands on foot and visiting all habitat patches In total there were 230hours of survey time spent in June As stated in my witness statementthis is a conservative number of hours as it only represents time spentconducting actual survey work and does not include all the time spentby the team of biologists traveling to and between survey sites (by carand by foot) on the Island and generally all the rest of the time spenton the Island which was considerable As one of many examples in2011 one Stantec biologist lived on Amherst Island for the entiremonth of June spending the early mornings and evenings conductingfieldwork then spending the rest of the day on the IslandFurthermore as stated above the Beaudry letter did not take intoconsideration the targeted Blandingrsquos surveys in 2015 which tookplace during the nesting period

Andrew Taylor Supplementary WS paras

- 132 -

351 A second example is found in the assertions of the Appellantrsquos counsel at paragraph 281

of its submissions where it is asserts that Stantec somehow ldquoerroneously restricted their field

searcheshabitat assessmentsrdquo for Blandingrsquos habitat because they didnrsquot understand the breadth

of habitat they should be investigating This particular critique comes not from any witness (and

was not disclosed in any witness statement or put to Mr Taylor or any of the Blandingrsquos

experts) but is rooted entirely in excerpts from an MNRF document (the GHDBT) which post-

dated most of the field work at issue and was therefore not available to Stantec at the time

Counsel for the Appellant had Ms Pitt (a general biologist from the MNRF) simply identify

those excerpts in cross-examination without interpretation apparently so that counsel could then

provide interpretive opinion in submissions (see pages 88 to 92 of its Closing Submissions)44

352 What counsel for the Appellant apparently did not apprehend is that many of the habitat

types ndash for example fens bogs and slough forest ndash do not occur on Amherst Island which

explains why they were not searched by Stantec Habitat types of each wetland in the Project

Area are provided in Table 6 Appendix B of the NHA the attributes column provide a detailed

description based on Stantecrsquos extensive field surveys It is also clear that Stantec assumed

Blandingrsquos were present in the Coastal Marsh Wetlands complex which included marsh and

swamps

353 Outside of the Coastal Marsh Wetlands complex the only potentially suitable habitat left

for the turtles on the GHBDT list would be graminoid shallow marsh and dug ponds which were

included in Stantecrsquos surveys but not only ldquoadjacent to large marsh complexesrdquo as the GHDBT

provides but anywhere in proximity to the Project Location And Stantec went even further by

surveying all areas with standing water only a subset of which will contain the kind of specific

conditions required to be Blandingrsquos Turtle habitat

354 The bottom line is that the assertion that Stantec did not conduct proper and

comprehensive surveys in this case is without merit Stantecrsquos survey results for the presence of

44 Without the interpretation of any turtle expert on the record the Tribunal has no evidentiary foundation to assesslet alone accept legal counselrsquos interpretation of these excerpts of the GHDBT If counsel for the Appellant wantedto advance that argument the only way to have done so properly would have been by seeking the interpretation ofone or more witnesses with the expertise necessary to interpret them either in chief or through cross-examination Itis unfair ndash and a violation of the rule in Browne and Dunn ndash to criticize Mr Taylorrsquos survey work on the basis of anargument to which he was not given any opportunity to respond

- 133 -

Blandingrsquos turtle habitat and Blandingrsquos turtle has been relied upon repeatedly by the same

counsel for the Appellant in the Ostrander and Hirsch proceedings before the Tribunal It has

done nothing to show in this case why the same firm conducting the survey work through the

same time period covered by those cases should now be considered fundamentally unreliable

355 Dr Brooks Dr Hasler and Andrew Taylor all opined that since zero Blandingrsquos Turtles

were observed by Stantec in the Project Location during their five years of field

investigationssurveys and since zero Blandingrsquos Turtles were observed by Stantec during the

2015 Turtle Surveys these facts are a strong indicator that Blandingrsquos Turtle is not present in the

Project Location certainly not any regular presence If Blandingrsquos Turtle had any regular

presence in the Project Location (ie any presence other than perhaps an occasional turtle

wandering through) Stantecrsquos professional biologists would surely have detected them there

Brooks WS para 36 Brooks TestimonyHasler WS para 15Andrew Taylor WS para 68

356 Further evidence supporting the conclusion that Blandingrsquos Turtle is not present in the

Project Location where turbines and access roads will be placed is the evidence of the many

island residents who own properties where the Project components will be located The Approval

Holder provided witness statements from 14 such residents (Exhibit 73) 12 of whom testified in

person Without exception these landowner witnesses all confirmed that they have never seen a

Blandingrsquos Turtle on their properties Most of them have owned their properties for many years

and spent much time on their properties which consist of agricultural fields It is not surprising

that they did not observe any Blandingrsquos Turtles on their properties as hay pasture and other

types of agricultural fields do not constitute suitable Blandingrsquos Turtle habitat

Approval Holderrsquos Responding Fact Statements on Turtles (Sur-Reply) Statements of Lance Eves Vincent Eves David FeradayWayne Fleming Gwen Lauret Kelly McGinn Karen Miller GaryOsborne Nancy Pearson Charles Plank Gord Thompson EricWelbanks Rick Welbanks David Willard Exhibit 73Oral Testimony of Gwen Laurent Vince Eves David Willard EricWelbanks Wayne Fleming Gary Osborne Nancy Pearson CharlesPlank Lance Eves Gord Thompson Karen Miller and DavidFeraday Testimony

- 134 -

357 By way of example

bull Lance and Vince Eves They own a number of farm properties They have cattle

grow some corn and soy and the rest of their properties are used for hay and pasture

Three turbines and portions of those access roads will be on their properties On

average every season from sometime in May until October they each spend more

than 40 hours per week in the fields of the properties they own While they

occasionally see a snapping or a painted turtle (in June and mostly on roadways)

they have never seen a Blandingrsquos Turtle on any of their properties

bull David Feraday He is a longtime resident of Amherst Island He has spent every

summer for the past 55 years on his familyrsquos Amherst Island farm generally from

June until Labour Day He teaches high school science during the school year in

Toronto The farm currently consists of hayfields His wifersquos family also owns a

farm on the island where he has spent considerable time over the years He has seen

very few turtles on either farm property over the years They have mostly been

snapping turtles He has never seen a Blandingrsquos Turtle at either of these properties

bull Wayne Fleming He is a full-time Amherst Island resident having lived there all 57

years of his life He lives on Stella 40 Foot Road and also owns another property on

3rd Concession Road His family owns about 40 acres of farmland Their farming

consists of beef cattle and their farmland is 90 pasture for the cattle He is

regularly out in the fields each summer While he has from time to time seen the

occasional turtle on their properties (2 or 3 a year in total) these have mainly been

snapping turtles and the occasional painted turtle He has never seen a Blandingrsquos

Turtle at any time on their properties

bull Nancy Pearson She has lived on the island on South Shore Road (running along

Marshall 40 Foot Road) for the past 11 years Her property includes a working farm

with fields used as sheep pasture While she has seen some snapping turtles over the

years ndash less than once a year ndash she has never seen a Blandingrsquos Turtle

bull Charles Plank He has been a full-time resident of Amherst Island for the past 28

years at 4700 South Shore Road (on the East end of the island) His property

- 135 -

includes a large area of farmland leased to a local farmer who pastures 900 sheep on

the farm In his 28 years he has never seen any turtles on his property

bull Gord Thompson He is a full-time resident of Amherst Island He has lived on the

island on and off over the past 10 years His property is at 8855 Front Road a 125

acre farm property currently used as pasture for sheep It includes a small shallow

dug pond (dug for earth for his parentsrsquo home ndash it gets low and dries out and he

refills it with water) In the spring and summer he spends at least 30 hours per week

on this farmland (he also grows flowers and vegetables not commercially) He often

walks around his property As best he can recall he has never seen a turtle (or any

species) on his property

Approval Holderrsquos Responding Fact Statements on Turtles Exhibit73 Testimony of Fact Witness

358 In its Closing Submissions (at paragraph 163) the Appellant concedes that ldquothere is no

reason to doubt the evidence of these witnesses (ie the fact witnesses of the Approval Holder)rdquo

359 There has also never been any historical record of Blandingrsquos Turtle being sighted or

present within the Project Location area of the island As part of its Natural Heritage

Assessment and preparation of the Species at Risk Report Stantec did a comprehensive records

review to determine if there had ever been a record of Blandingrsquos Turtle in this portion of the

island ndash there was not


360 In reliance on the Appellantrsquos resident Blandingrsquos Turtle sightings it has baldly (and

repeatedly in its submissions) asserted that Blandingrsquos Turtles are present ldquothroughout the

Islandrdquo Based on the record that assertion is a significant overstatement In fact none of the

APAI sightings actually made within the Project Location where any turbines or access roads

would be located (with the possible exception of one sighting in proximity to Turbine S37) Even

though the Appellant tries to characterize it differently the fact remains that the vast majority of

their sightings were in proximity to the Coastal Marsh Wetlands at the southwest portion of the

island outside the Project Location Overall the APAI turtle sighting evidence is consistent

- 136 -

with and supports the conclusion that Blandingrsquos Turtle has no regular presence in the Project

Location itself (ie the hayfields and pasture fields that comprise the Project Location)

Andrew Taylor Supplementary WS para 87 Andrew TaylorTestimonyBrooks Supplementary WS para 28 Brooks TestimonyHasler WS para 16Stantec Map of APAI Turtle Sightings Exhibit 75E1APAI Map Exhibit 33

361 In light of all of the above Dr Brooks opined that other than the occasional turtle that

might wander there are unlikely to be any Blandingrsquos Turtles in the Project Location Andrew

Taylor and Dr Hasler also reached similar conclusions Their opinions on this point are amply

supported by the evidence They should be preferred over the view of Dr Davy Her testimony

was superficial on this point essentially a blanket statement that turtles are moving throughout

the island without having specific regard for the facts referred to above While Ms Gunson

proffered some comments on this point as well she was only qualified to opine on road ecology

not on issues of turtle habitat and turtle ecology

Brooks TestimonyAndrew Taylor TestimonyHasler Testimony

Where On the Island Turtles Are Located

362 The evidence ndash including APAIrsquos turtle sightings referred to above ndash establishes that the

Blandingrsquos Turtles present on the island are likely to be located in the Coastal Marsh Wetland

complexes and in close proximity to them at the southwest end of the island

363 The Blandingrsquos Turtle experts on both sides agree that that Coastal Marsh Wetlands

comprise suitable preferred habitat for the Blandingrsquos Turtle Those wetland complexes consist

of Long Point Marsh Nut Island Duck Club Marsh and Wemps Bay Marsh Those coastal

marshes (with Long Point Marsh being the largest of them) comprise about 600 hectares of

marsh These marsh wetlands are ideally suited to Blandingrsquos Turtle and the experts on both

sides agree that they are resident wetlands for Blandingrsquos Turtle Dr Brooks stated that these

wetland complexes ldquoinclude a series of large marshes forested swamp aquatic vegetation and

coastal sand bar barrier featuresrdquo which make them particularly suitable

- 137 -

Brooks WS paras 37-39Witness Statement of Roy Nagle (December 1 2015) (ldquoNagle WSrdquo)para 6Andrew Taylor WS para 66

364 These Coastal Marsh Wetlands are bordered along the Lake Ontario coastline with

expanses of sandy beach dune areas that run in a semi-circle shape adjacent to each of Long

Point Marsh Nut Island Duck Club Marsh and Wemps Bay Marsh As Dr Brooks and Andrew

Taylor explained these beach dune areas provide good nesting habitat for Blandingrsquos Turtle In

reference to the dunes beside Long Point Marsh for example Dr Brooks stated

Long Point Marsh (which is the largest part of the wetlandcomplexes) has a high berm and beach dunes located immediatelyadjacent to the marsh at the south end at the shore of Lake Ontario(Long Point Bay) ndash and well outside the Project Location (on theopposite side of the marsh) which would provide many suitablepotential nesting sites These features would have good soilcharacteristics for nesting turtles be above the water table andhave good exposure to direct sunlight to provide adequate heat toallow completion of incubation

Brooks WS para 39 Brooks TestimonyAndrew Taylor WS para 69

365 It is not just Dr Brooks and Andrew Taylor that agree that these Coastal Marsh Wetlands

are the resident wetlands for Blandingrsquos Turtle on the island The Appellantrsquos herpetologist

expert Mr Nagle testified that ldquotwo relatively large Coastal Marsh Areas in the southwest

portion of Amherst Island are believed to provide resident wetland habitat for Blandingrsquos

Turtlerdquo Mr Nagle did not suggest that there are other resident wetlands for Blandingrsquos Turtle on

the island His testimony on this point was consistent with that of Dr Brooks

Nagle WS para 6 Nagle Testimony

366 Mr Crowley of the MNRF similarly opined that ldquoturtles are probably spending most of

their time around the coastal wetlandsrdquo a conclusion he noted is supported overall by the

locations of the APAI turtle sightings He further testified that ldquofor the most part those project

components [ie turbines and access roads] most of them are located quite a distance away from

the large coastal wetlands You wouldnrsquot expect those small inter-wetland movements between

- 138 -

some of these wetlands to take the turtles through the project footprint simply because the

footprint is outside of those areasrdquo

Crowley WS para 23 Crowley Testimony

367 Historical records also indicate that the presence of Blandingrsquos Turtles on the island is in

the Coastal Marsh Wetlands The historical record in the NHIC database was thought to be in

either Long Point Marsh or Nut Island Duck Club Marsh and a paper by Norris in 1992 (an

MNR biologist) noted that he had observed Blandingrsquos Turtles in Long Point Marsh apparently

in the wetland now managed by Ducks Unlimited Prior to the APAI sightings there had never

been any reported occurrences of Blandingrsquos Turtle outside of the Coastal Marsh Wetlands

Andrew Taylor WS paras 66 69 Andrew Taylor TestimonyBrooks WS para 39 and accompanying footnote Brooks Testimony

368 For purposes of their Species at Risk Report as confirmed by Andrew Taylor in his

testimony Stantec assumed that Blandingrsquos Turtles were present in the Coastal Marsh Wetlands

Mr Nagle and Dr Davy questioned why Stantec did not observe Blandingrsquos Turtle in its field

investigations The answer is that Stantecrsquos field work and surveys were conducted within the

Project Location which was appropriate Stantec did not survey the Coastal Marsh Wetlands or

the beach dune areas bordering them because it was proceeding on the assumption they were

present there and because those areas are all outside the Project Location As such they are not

expected to be affected by the Project and there was no regulatory requirement or practical

purpose for Stantec to survey there as part of the REA process


369 In respect of the presence of Blandingrsquos Turtles on Amherst Island the Appellant relies

on its turtle sightings made between 2013 and 2015 The data presented in respect of those

sighting (summarized in Ms Gunsonrsquos EcoKare report) contained inconsistencies in respect of

various sightings and contained a small number of photos that appear to depict unusual turtle

nesting behaviour and one sighting for which the photograph was in fact of a painted turtle That

is why the Approval Holderrsquos experts were critical of the data as it was presented in the Ecokare

report ndash both they and Dr Davy agree that this data is not ldquosciencerdquo and Mr Crowley cautioned

against over-reliance on it

- 139 -

Andrew Taylor TestimonyCrowley TestimonyBrooks TestimonyDavy Testimony

370 In any event overall the Appellantrsquos turtle sightings are consistent with where the turtle

presence is expected to be on the island Even if one takes all the Appellantrsquos sightings at face

value and assumes they are all reliable the vast majority of them are clustered near the areas of

the Coastal Marsh Wetlands outside the Project Location Dr Brooks Andrew Taylor and

Mr Crowley all testified that those are the areas where one would expect to find turtles on the

island Contrary to the Appellantrsquos submissions there is no inconsistency in the testimony of the

Approval Holderrsquos experts on this point

Andrew Taylor Supplementary WS para 87Stantec Map of APAI Turtle Sightings Exhibit 75 E1APAI Map Exhibit 33BBrooks Supplementary WS para 29 Brooks TestimonyCrowley WS paras 21 22 Crowley Testimony

371 On this point Andrew Taylor testified

Q In respect of paragraph 87 [of your supplementary witnessstatement] Mr Taylor if this tribunal were to accept all of theAPAI witness turtle sightings as true and accurate do they indicatea presence of Blandings turtle in the Project Location itself

A No there is no confirmation of turtles within the ProjectLocation

Q What do those APAI sightings tell us about the area of theisland where Blandings turtles are principally located

A They are telling us the vast majority of the turtles are beingobserved in proximity to the coastal wetlands


372 The evidence of the Appellantrsquos witnesses and the mapping of the turtle sightings show

that 44 of the 62 sightings were in close proximity to the Coastal Marsh Wetlands Thirty-three

of the sightings were alongside Long Point Marsh ndash a number of sightings were right at the

southwest point of this marsh (at the end of 3rd Concession Road) and many other sightings were

at 8875 South Shore Road (the Bennicksrsquo property) and at 9225A South Shore Road (B

- 140 -

Livingstonrsquos property) which border the southern portion of the Marsh and Lake Ontario Those

observations were all within 200-300 metres of Long Point Marsh or closer in the case of the

sightings at the end of 3rd Concession Road We note that this area of South Shore Road (which

borders the Marsh at the southwest end of the island) is at the opposite end of the island from the

section of South Shore Road on which there will be some temporary curve widening (which is

the most eastern section of the road east of Stella 40 Foot Road)

Stantec Map of APAI Turtle Sightings Exhibit 75 E1Brooks TestimonyNagle TestimonyAPAI Turtle Fact Witnessesrsquo Statement including BennicksrsquoTestimony and Livingston Testimony Exhibit 34

373 In respect of the locations of these turtle sightings Dr Brooks similarly testified

Q In terms of location on the island where were the majority of the APAIcitizen turtle sightings located

A They were mostly located around those coastal marshes on SouthShore Road and Third Concession and up on Emerald 40 Road andDalton -- Art McGinns Road

Q I am showing you Exhibit 75E1 On this map we see a lot of turtlesightings that are noted to be at 8875 South Shore Road and then anumber of other ones noted to be at 9225 South Shore Road First of allthose two groupings of sightings where are they in relation to LongPoint marsh

A Right next to it

Q Then we see a number of other sightings according to this map atthe southwest tip of Long Point marsh down there along the shorelineWhere is that in proximity to

A It is also Long Point marsh on the other side almost in it

Q All the sightings we have looked at bordering or close to Long PointMarsh where were those sightings in relation to where you wouldexpect to find Blandings turtles How do those sightings compare towhere you would expect to find them

A Like I was saying turtles live in the marsh I would think and comeout and nest sometimes close to it other times I would think if youwalked along that arc where those sand dunes are in the berm youwould find a lot more nests

Brooks Supplementary WS para 28 Brooks Testimony

- 141 -

374 While the Appellant tries to create an impression otherwise the fact is that only a small

minority of the turtle sightings were made in areas of the island away from the areas of the

Coastal Marsh Wetlands and those sightings were spread out over 3 different years In

particular there were a total of (i) 4 sightings on South Shore Road at or east of Stella 40 Foot

Road (ii) 5 sightings on Front Road east of Stella 40 Foot Road and (iii) about 5 sightings at

inland locations (on 3rd Concession Stella 40 Foot and 2nd Concession Roads Most of the

above sightings were on roads that go along the lakeshore With the exception of sighting 112

(close to turbine S37) none of those sightings was at a turbine or access road location within the

Project Location

APAI Turtle Fact Witnessesrsquo Statements Exhibit 34Stantec Turtle Sighting Map Exhibit 75 E1

Turtles Are Unlikely to Travel to the Project Location to Nest

375 The Appellantrsquos road ecologist witness Ms Gunson contends that turtles may travel into

the Project Location to nest in the areas of access roads However Dr Brooks as well as

Andrew Taylor and Dr Hasler ndash all of whom unlike Ms Gunson have expertise in respect of

turtle ecology ndash confirmed that turtles are unlikely to do so other than an occasional turtle (if

any) and they explained the reasons for this conclusion Mr Crowley also had a similar view

Brooks WS paras 38-39 Brooks Supplementary WS paras 7-8Brooks TestimonyAndrew Taylor WS para 107Hasler WS paras 12-13Crowley Testimony

376 On this point Dr Brooks explained that ldquoAny occasional turtle that might enter the

Project area would likely be a female adult during nesting when turtles will sometimes move up

to several 100 metres to find an acceptable nest site Typically however they tend to nest closer

to their resident wetland and thus would not tend to enter the Project area This is particularly

the case because there appears to be plenty of suitable nesting sites close to the wetland

complexes outside the Project Location The wetland complexes includes a series of large

marshes forested swamp aquatic vegetation and coastal sand bar barrier features (CRCA

2006)rdquo

Brooks WS para 38

- 142 -

377 Dr Brooks detailed why the sand dune areas bordering the Coastal Marsh Wetlands and

the lakeshore represent ideal nesting habitat He further explained why it would make no

biological or evolutionary sense for turtles to travel long distances through hay and pasture fields

to get to an access road to nest when there are good nesting areas much closer to their wetlands

He stated

As Standing et al note in their 1999 study almost all femalesnested within a few metres of water and very few went inland toroads or other sites when there were adequate sites close to waterThere is no basis to suggest that turtles (other than perhaps theoccasional one) would travel long distances through a farm fieldlandscape away from the coastal marsh wetland complexes at thesouthwest end of the Island to nest Standing et al and also thelong-term studies with which I have been involved in Ontarioclearly show that turtles do not make long nesting trips if good nestsites are nearby (see Caverhill et al as well) To do so would notmake biological or evolutionary sense as in Dr Naglersquos own wordsturtles are more vulnerable to extrinsic factors when they embark onlong treks These threats are greater in agricultural landscapes (suchas the Project Location) and presumably that is why studies haveshown that Blandingrsquos Turtles avoid these habitats

On Amherst Island there appear to be ample good nesting siteslocated within and immediately adjacent to the coastal marshwetland complexes For Blandingrsquos Turtle wandering out intoagricultural fields is both risky and very likely to be unproductiveThey tend not to take these types of risky excursions due topredation and other threats Therefore they sensibly tend to nest asclose to their resident wetland as they can

Brooks Supplementary WS paras 7-8

378 In explaining why they nest relatively close to a wetland Dr Brooks further stated that

ldquoAgain it is this trade off between their own safety These are animals that have been selected to

live a long time by natural selection They are built to not take big risks They donrsquot take big

risks when they lay their eggsrdquo When asked if they typically go on long nesting forays through

farm fields his answer was ldquoNordquo He also explained that they do not typically go on forays

through farm fields in part because ldquothey could be dehydrated by the sunrdquo He stated that it

ldquodoesnrsquot make sense for them to go wandering long distances away from good nest sites good

foraging sitesrdquo and thus most turtles would be unlikely to travel very far away from the Coastal

Marsh Wetlands

- 143 -

Brooks Testimony

379 While Mr Nagle testified about the distances of turtle movements he observed at the

ESG Reserve in Michigan the uncontradicted evidence showed that the ESG Reserve is a very

different landscape and context than Amherst Island and therefore turtle movements there are

not a good predictor of the likely movements of turtles on Amherst Island including for nesting

purposes

Andrew Taylor Supplementary WS paras 80-81Brooks Supplementary WS paras 5-7 10

380 Dr Brooks and Andrew Taylor both testified as to the stark differences between the ESG

Reserve and Amherst Island and in cross-examination Mr Nagle also agreed with the landscape

features that distinguish these two contexts As stated by Dr Brooks (who himself spent parts of

6 years at the ESG Reserve) ldquothat ESG Reserve site is a 1600 acre protected area in Michigan

that is vastly different from the landscape at Amherst Island The movement distances and habits

observed there have limited application to Amherst Island in my viewrdquo He went on to explain

ldquothe ESG Reserve site is a reserve of high rolling hills with extensive interconnected wetlands

and heavily forested uplands Put simply it is a paradise for Blandingrsquos Turtle In stark contrast

most of Amherst Island (with the exception of the Coastal Marsh wetlands at the southwest end

of the island) is agricultural land not at all the preferred habitat of Blandingrsquos Turtle (eg Millar

and Blouin-Demers 2012)rdquo and ldquothe movements of turtles on the ESG Reserve ndash between

extensive interconnected wetlands and to nest in that landscape ndash would be very different than on

Amherst Islandrdquo The testimony of Andrew Taylor was similar on this point referring to the

ESG Reserve as being ldquostarkly different from the agricultural landscape of Amherst Islandrdquo

Again the agricultural land in which the turbines and access roads will be located is grassland

(hayfield and pasture) It is not row crops

Brooks Supplementary WS paras 5-7 10 Brooks TestimonyAndrew Taylor Supplementary WS paras 80-81 Andrew TaylorTestimonyNagle Testimony

381 As part of his testimony on the topic of typical movement distances Dr Brooks cited

ample research including in particular from sites in Canada showing that turtles typically nest

- 144 -

quite close to water and tend to avoid hay and pasture fields When asked if hay and pasture

fields in particular represent nesting habitat he stated ldquoNo I donrsquot think they would even

attempt to nest thererdquo In its submissions the Appellant tries to rely on some research showing

that Blandingrsquos Turtle will nest in row crop fields in certain circumstances However as stated

above and as was explained by the Approval Holderrsquos experts row crop fields (with exposed

soil) are very different than hay and pasture fields for nesting purposes

Brooks WS paras 22-23 Brooks TestimonyAndrew Taylor Testimony Andrew Taylor Supplementary WSpara 95(Miller and Blouin ndash Demers 2011) Habitat Suitability Modelling forSpecies at Risk is Sensitive to Algorithm and Scale A case study ofBlandingrsquos Turtle(Mui et al 2015) Nesting Sites in Agricultural Landscapes MayReduce the Reproductive Success of Blandingrsquos Turtle(Saumere et al 2006) Effects of Haying and Agricultural Practiceson a Declining Species the North American Wood Turtle(Standing et al 1999) Nesting Ecology of Blandingrsquos Turtle in NovaScotia

382 Consistent with the evidence of the Approval Holderrsquos experts Mr Crowley confirmed

that while females sometimes make longer distance nesting migrations (which explains how

some turtles have been sighted in the eastern portion of the island) they are unlikely to travel

through the hay and pasture fields of the Project to do so He stated

hellip That being said as I indicated females will make longerdistance nesting migrations so they will potentially be found inother parts of the island Even in those cases though they are stillmost likely where they can to move through other aquatic featuresto move through other natural features if they exist The last routethat they would probably take would be to go through agriculturalfields which I think Dr Brooks indicated in his witness statementThey tend to avoid these types of habitats whenever feasible

Because the turbines and access roads are located in agriculturalfields and areas even on these long-distance movements for themost part the turtles are probably going to be sticking as much aspossible to existing aquatic features or other more natural habitats

Crowley Testimony

(2) The Project Will Not Destroy Blandingrsquos Turtle Habitat

- 145 -

383 The evidence is that there will be no removal or destruction of Blandingrsquos Turtle habitat

as a result of the Project For all of the reasons described on pages 119 to 127 above the Project

would be constructed entirely outside of the Blandingrsquos Turtle habitat on the island The

principal habitat on the island consists of the Coastal Marsh Wetlands There would be no

Project components in the Coastal Marsh Wetlands and no construction activities at all would

occur in them As stated by Dr Hasler ldquothe Project is not located in any significant wetland

which would reasonably be expected to represent Blandingrsquos Turtle habitatrdquo

Andrew Taylor Supplementary WS para 95 Andrew TaylorTestimonyBrooks Supplementary WS paras 30-31 41Hasler WS para 22

384 The Appellantrsquos own herpetologist expert (Mr Nagle) did not assert there will be

destruction or removal of Blandingrsquos Turtle habitat Rather the only focus of concern for him

was on potential mortality risk not harm to habitat

385 There are also a number of routine construction mitigation measures in place and

required pursuant to the REA to ensure that any wetlands that are in any proximity to Project

construction are protected These measures outlined in the testimony of Andrew Taylor and

Dr Hasler include delineating the limits of wetland boundaries and staff awareness training of

them implementing a sediment and erosion control plan implementing dust suppression

installing silt fencing prior to construction at the limits of construction for all staging areas

access roads turbine foundations and laydown areas general wetland mitigation around

vegetation removal dust potential spills and other measures These measures are summarized in

Appendix E

Andrew Taylor WS paras 77-79Shawn Taylor WS para 21Hasler WS paras 23 26

(3) There is No Material Road Mortality Risk to Blandingrsquos Turtle as a Result of TheProject

386 Mainly with broad conclusory statements the Appellant has tried to make a case that

Blandingrsquos Turtle mortality will occur here and could cause serious harm In its submissions the

Appellant makes an unwarranted leap in logic unsupported on the evidence because there are

- 146 -

Blandingrsquos Turtles on the island there will be mortality on the access roads andor the existing

public roads In fact on the island an examination of the evidence shows that the risk of there

being any Blandingrsquos Turtle mortality from their Project is very low There is unlikely to be any

mortality caused by the construction or operation of the Project including the access roads or the

use of existing public roads for the Project

The Access Roads

The Construction Phase

387 By way of summary the risk of any mortality during the construction of the access roads

is low for the following reasons

bull there are unlikely to be Blandingrsquos Turtles present in the locations of the access

roads

bull construction would for the most part occur when turtles are hibernating ndash and would

occur entirely outside the nesting season (when the evidence indicates turtles

occasionally wander)

bull the access roads would be on private property and gated ndash they would get minimal

use

bull even in the unlikely event a turtle happened to be in the area at the time of

construction there would be barrier fencing in place to prevent any turtle from being

able to get onto an access road and

bull there are also other mitigation measures in place ndash including a low speed limit

(15 kmhr) and staff awareness training ndash to ensure no turtle would be harmed

388 First there is unlikely to be any presence of Blandingrsquos Turtle in the locations of the

access roads because those roads would be constructed in agricultural grassland fields hay and

pasture fields As noted earlier those fields do not represent suitable habitat for Blandingrsquos

Turtle and no Blandingrsquos Turtles have to date ever been observed in these locations on the

island Both the evidence from turtle fact witnesses and the expert evidence established that there

certainly is not expected to be any regular presence of Blandingrsquos Turtles in the areas of the

- 147 -

access roads At most an occasional turtle may wander into the fields and if that were to occur

it would most likely be during the nesting season

389 The expert evidence on this point included the following

bull Dr Brooks stated ldquowhile it is possible that the occasional turtle might travel into the

Project Location any such incursions are likely to be infrequentrdquo and ldquoit is highly

unlikely that Blandingrsquos Turtles will be in the area of the access roadsrdquo In oral

testimony the first reason he gave for his view that Blandingrsquos Turtles will not be

harmed by the access roads is ldquoFirst they [ie the turtles] are not thererdquo

bull In respect of whether any turtles will enter the areas of the access roads Dr Hasler

concluded that this ldquois not likely to occur and certainly not with any frequency given

the location of these roads in agricultural fieldsrdquo

bull Andrew Taylor testified ldquoI donrsquot anticipate Blandingrsquos Turtles travelling to the

hayfields to nest on the access roadsrdquo and he also confirmed that on nearby Wolfe

Island no Blandingrsquos Turtles were observed at any time on the access roads at that

project during the 3 plus years of post-construction monitoring which roads were

similarly located in hayfields

Brooks WS paras 45 47 Brooks TestimonyHasler WS para 28Andrew Taylor Supplementary WS para 107 Andrew TaylorTestimony

390 Second the timing of construction is such that Blandingrsquos Turtles will not be harmed by

construction of the access roads The uncontradicted evidence is that the access roads will be

constructed during these time periods

bull the access roads for turbines S03 S09 S11 and S36 ndash the four turbines in closest

proximity to the Coastal Marsh Wetlands ndash will be constructed between November 1

2016 and completed by mid-April 2017 at the latest (the roads will likely have been

completed by March) and

- 148 -

bull all of the remaining access roads will be constructed between October 1 2016 and

completed by mid-April 2017 at the latest (the roads will likely have been completed

by March)

Tsopelas Testimony Supplementary Witness Statement of Alex Tsopelas(January 19 2016) (ldquoTsopelas Supplementary WSrdquo) para 14Shawn Taylor Sur-Reply WS paras 3-4Andrew Taylor Supplementary WS paras 97-98 Andrew Taylor WS

para 77

391 The only turbines and access roads about which the Appellantrsquos herpetologist expert

Mr Nagle raised any particular concern are turbines S03 S09 S11 and S36 These are the ones

he specified as being placed within his ldquorecommended protection zonerdquo Dr Brooks

emphatically disagreed with the expanded scope of this so-called ldquoprotection zonerdquo as it was

based on ESG Reserve turtle movements but in any event the fact is that those four turbines and

access roads will be constructed exclusively during the Blandingrsquos Turtle hibernation season

There is therefore no chance that the construction of those Project components (in the middle of

farm fields) could harm any Blandingrsquos Turtle


392 The construction timing window for the other turbines and access roads which are well

away from the Coastal Marsh Wetlands only overlaps with the turtle active seasons by two

months (September and October 2016) The rest of the construction period is during the

hibernation season (November 2016 to March 2017) September and October are when

Blandingrsquos Turtles are approaching dormancy and are well outside the nesting season which is

May to early July The concern raised by the Appellantrsquos experts is that Blandingrsquos Turtles could

potentially nest on access roads Even if they were inclined to do so there is no chance of them

being harmed during construction of the access roads since no such construction will be taking

place during the nesting season

Brooks TestimonyWitness Statement of Shawn Taylor (January 19 2016) (ldquoShawnTaylor WSrdquo) para 21 Shawn Taylor Sur-Reply W paras 3-4

- 149 -

393 Third as stated all of the access roads would be located on private farm land and they

will also be gated They will not be open to the public As a result they would get very little use

These facts are undisputed

Andrew Taylor WS para 79Brooks WS paras 46-47Shawn Taylor WS para 21Hasler WS para 29

394 Fourth at all times during construction the access roads would be fenced off using

geotextile silt or other barrier fencing While Ms Gunson questioned the effectiveness of silt

fencing in some contexts if not installed properly Shawn Taylor confirmed that in respect of the

fencing that would be used here ldquoits use is recommended in the MNRF Best Practices Technical

Note for reptiles and amphibiansrdquo and that the heavy duty silt fence that would be used is

effective in his experience The fencing would be installed by trained staff and would also be

monitored by the on-site environmental inspector to ensure it is effective

Shawn Taylor WS para 21 Shawn Taylor Sur-Reply para 8

395 Shawn Taylor concluded that he has ldquoa high degree of confidence that this type of barrier

fencing is appropriate and highly effective to prevent wildlife including turtles from entering

the area that is fenced off I fully expect this fencing would prevent a Blandingrsquos Turtle from

entering the access roads and encompassed construction areas during constructionrdquo Mr Taylor

was the only expert qualified with specific expertise in respect of ldquoecological restoration and

construction mitigationrdquo a field in which he has had extensive on-the-ground experience at many

other projects

Shawn Taylor WS para 21 Shawn Taylor Testimony

396 Fifth besides the above measures the access roads would be subject to a very low speed

limit of 15 kmhr and the construction staff using them would all have received specific

awareness training The training would be reinforced regularly and staff will be held personally

accountable for abiding by this requirement Shawn Taylor testified that ldquoBased on my

experience being onsite during construction of many projects I expect that staff will abide by the

speed limit and the training they receive as the importance of this will be regularly reinforced

with them through regular tailgate meetingsrdquo He added that in his experience ldquotrained

- 150 -

construction workers on major projects are usually very careful attentive drivers because their

safety and livelihood depends on itrdquo This context is very different than the situation of members

of the public being desensitized to speed signage on major public highways which was the

context about which Ms Gunson testified

Shawn Taylor WS para 21 Shawn Taylor Sur-Reply para 6 ShawnTaylor Testimony

397 When considering these latter mitigation measures it is important to bear in mind that

there is almost no chance that a Blandingrsquos Turtle could even be in the area of the access roads

during construction to begin with in light of the first two points discussed in paragraphs 388 to

392 above

The Operation Phase

398 During the operating life of the Project the access roads would continue to pose minimal

mortality risk That is because the access roads are in private farm fields will be gated would

continue to get very infrequent vehicle use (by trained staff for purposes of servicing the

turbines) and will have a low 15 kmhr speed limit

399 In terms of their use the uncontradicted evidence is that besides a small amount of use

by professional biologists when conducting post-construction monitoring the access roads are

only expected to be driven on by trained Project staff on average only 1 to 2 times per week The

use would be for turbine maintenanceservicing purposes

Andrew Taylor Supplementary WS para 10Brooks WS paras 48 51Shawn Taylor WS paras 21-22

400 Given the farm field locations of these access roads and the limited vehicle use they

would get the chance of a Blandingrsquos Turtle happening to be on an access road at the exact same

time as one of these 1 to 2 vehicle trips per week is extremely low As stated by Andrew Taylor

Q In your view what are the chances that a Blandings turtle willhappen to be present at the same time as one of these maintenancevehicles on one of these access roads

A The chance would be very minimal next to zero I anticipate itwould be a very rare event to find a turtle on these roads If you did

- 151 -

find one it would be most likely in the evening outside of businesshours when there would not be traffic The number of minutes acar would be on those roads is very small The chances of a turtlebeing on the road is very small When you compare those two thechances of a vehicle being on the road at the same time as a turtleare infinitesimally small


401 Given that the above vehicle trips would be by trained staff (or professional biologists)

and the very slow speed limit the chances of a Blandingrsquos Turtle being run over on an access

road are even lower

402 Mr Crowley of the MNRF also testified that in his view the access roads will not result

in any mortality By way of summary he stated

Q hellipIn your opinion will the proposed access roads lead to anincrease in road mortality of adult Blandings turtles

A In my opinion no The proposed access roads wont lead to anincrease in mortality for Blandings turtles The access roads to myunderstanding are on private property and they are gated Myunderstanding is that people using them that use will be verylimited maybe once or twice a week Those people have educationand they have received training about Blandings turtles and theywill be driving at low speeds and watching for the turtles Thesearent comparable to public roads that typically result in potentiallyproblematic mortality rates for turtles These are a very differentbeast

Crowley Testimony

403 In raising her concern about mortality risk on the access roads Ms Gunson suggested

that likely ldquofarming equipment of the private landowner will use access roads especially when

roads are within agricultural land userdquo The evidence established and common sense also

indicate that the access roads would not cause any increased mortality risk if they were to be

used by farm equipment of the landowner On this point Dr Hasler noted for example that

9 In respect of the risk posed by farming equipment any such riskhas already been present for a long time The Project (and newaccess roads) will not increase that risk but may actually decreasethat risk in my view

- 152 -

10 I understand that the farms on Amherst Island have beenfarmed for over a century The construction of the Project will notincrease the amount of farming taking place If the farmers start touse a new access road on their land for their farm equipment ratherthan continuing to use whatever farming roads or lanewaysthrough the fields they currently use this may further reduce anytheoretical risk to a turtle that may unexpectedly be presentTypically farming roadslaneways through fields are poorlydrained rutted and partly covered in vegetation The newlyconstructed access roads will be well drained and graveled In theunlikely event a Blandingrsquos Turtle were to enter or be traversingthrough one of these farm fields and in the even more unlikelyevent farming equipment happened to be in use in the exact samearea at the exact same time as the turtle the turtle would be morevisible to the farmer on the access road and more easily avoidableby the farmer

Gunson WS (December 12015) p 5Hasler Supplementary WS paras 9-10

404 Shawn Taylor similarly stated that ldquoIn respect of the possible use by the landowner of

the private access roads with farming equipment these landowners would already currently have

laneways to access their lands and the new access roads will be similar to these laneways In my

experience All Terrain Vehicles (ATVs) are often used by farmers as work vehicles to fix

fences deliver feedstock to animals or inspect their crops They generally use ATVs responsibly

and at low speed not for recreational purposes Regardless the landowner farmers are already

using ad hoc poorly constructed laneways for their farming equipment If they start to instead

use the access roads this will not increase the risk above that which is now existing as there will

be no significant change in the frequency of vehicle movements If anything the new access

roads may present an even lower risk than the current laneways as they will be well drained and

not present water-filled pot holes where a turtle could potentially hide and become more at risk

Also in my experience most farmers normally access their fields late at night (or in the very

early morning) only during early spring planting (before turtle nesting season) and then again

during fall harvesting well after the eggs of Blandingrsquos Turtle would have hatchedrdquo

Shawn Taylor WS para 23

405 A number of the landowners who own the farm fields at issue themselves testified and

their views were consistent with those of Dr Hasler and Shawn Taylor Those witnesses that

- 153 -

carry on active farming all confirmed that their farming practices and the extent to which they

drive their equipment through their fields will not change after construction of the access roads

If they drive equipment on the access roads that would reduce their driving on other parts of their

property By way of example

bull Lance Eaves testified that ldquoon our farms we drive tractors trucks haying machines

and other farm equipment We largely drive on rough laneways to get to our fields

Even if access roads are built on our properties we will not do any more driving

when we farm than we currently do The amount of work to do on the fields

themselves will not change and there will not be any reason to drive more than we do

right nowrdquo

bull Wayne Fleming testified that ldquoon my farmlands I drive tractors and other farm

machinery I currently drive on rough laneways but spend most of the time driving

in the fields (including cutting hay) If access roads are built on my property I may

use those instead of the laneways but there would be no need to do more driving I

still have to cover the same amount of land If I use the access roads this would

reduce my driving on the current lanewaysrdquo

bull Eric Welbanks testified that ldquoI own several pieces of farm machinery including a

new tractor and tilling equipment Currently I drive the equipment on laneways on

the property and in the fields themselves Once access roads are constructed on my

farms I may use them to drive my farm equipment but I will end up driving the same

amount I do not think that the addition of the access roads will lead to any additional

driving of the equipment If I use access roads this will reduce my use of the current

lanewaysrdquo

The testimony of other landowners was also consistent with the above evidence Also a number

of properties are used for pasturegrazing and do not involve much (if any) driving of equipment

in the fields

Approval Holderrsquos Responding Fact Statement on Turtles (Sur-Reply) Exhibit 73

- 154 -

406 In all of the circumstances Dr Brooks concluded overall that the access roads during

both the construction and operation phases of the Project pose ldquoclose to a nil risk of mortalityrdquo

He stated

In light of the above measures the new access roads will get littlevehicle use and that use will be controlled in the ways describedabove As it is highly unlikely that Blandingrsquos Turtles will be inthe area of the access roads to begin with and given the abovemitigation measures in my view there is close to a nil risk ofmortality as a result of these roads

Brooks WS para 47

407 In oral testimony he summarized the main reasons why he does not think the access

roads would cause any harm to Blandingrsquos Turtles ndash including that they are not open to the

public will get very little use and will be subject to the 15 kmhr speed limit ndash and concluded by

saying that ldquoI just donrsquot see how there could be any problem for the turtles from these roads

again especially because they are not thererdquo

And he continued

Basically what you have is a situation where there are probably noturtles there and then you have these layers of things being done tomitigate if they did happen to be there You have people who aresupposed to be there watching to make sure that people arentspeeding that the drivers are trained that the fences stay up I haveto say I was flabbergasted by all this being done for these turtleswhen they are probably not around

Brooks WS para 47 Brooks Testimony

408 Dr Hasler Shawn Taylor Andrew Taylor and Mr Crowley all were similarly of the

view that the access roads pose minimal risk Like Dr Brooks they do not expect any

Blandingrsquos Turtle mortality to occur on them as a result of the Project

409 Besides general pronouncements of risk the Appellantrsquos experts provided no detailed

testimony to support a view that mortality will in fact occur on the access roads or to try to

explain how that might occur We submit there was no compelling testimony that could have

been offered by them on this issue

- 155 -

410 In the Hirsch case the Tribunal concluded in respect of access roads that neither the

construction nor operation of the access roads would cause any serious harm The Tribunal stated

that ldquoWith respect to the access roads during operation of the Project the Tribunal agrees with

the Approval Holder that the evidence does not demonstrate that there will be a significantly

increased risk of road mortality on the new access roads following construction due to their

being entirely on private property with limited use no public access training of users and low

speed limitsrdquo In respect of access roads this Project poses there is even a much lower mortality

risk for Blandingrsquos Turtle because of the different habitat in which much of the White Pines

project would be constructed


410a In its submissions the Appellant also refers briefly to poaching risk a topic not pursued

serious in the evidence This is not an issue because the access roads will not be creating access

to any previously remote sites and those roads will be on private land and gated (so not

accessible to the public)

Andrew Taylor Supplementary WS para 107

The Use of Existing Public Roads

411 In their testimony the Appellantrsquos expert witnesses (relatively briefly and mainly in

broadgeneral terms) raised a concern about ldquopotential increased road mortality due to increased

traffic on existing roadsrdquo (Dr Davy) ldquosome roads will be upgraded to meet project

specifications on these roads island residents and tourists will be able to travel faster increasing

the risk of road mortality for turtles crossing roadsrdquo (Ms Gunson) Dr Davy and Ms Gunson did

not provide specifics as to any roads in particular nor did Dr Davy provide any explanation as

to what ldquoincreased trafficrdquo will occur that is of concern to her It is also important to note that it

was clear from both Dr Davy and Ms Gunsonrsquos testimony that their opinions on these points

was based on the old project layout which involved 10 additional turbine locations and the use

of many public roads that are not actually going to be used or upgraded at all for purposes of the

current Project

412 The evidence including detailed responding expert evidence establishes that for various

reasons described below the Project will cause no increased mortality risk for Blandingrsquos Turtle

- 156 -

on existing public roads during the construction or operation of the Project Further the existing

mortality risk on Amherst Island is very low and is expected to remain that way

The Current Mortality Risk is Low

413 An important contextual point to keep in mind in respect of this issue is that the current

mortality risk on the island is already very low There is no known Blandingrsquos Turtle mortality

that has occurred on the roads of Amherst Island in the past Turtle experts on both sides

confirmed that this is their understanding (including Dr Davy) None of the Appellantrsquos fact

witnesses suggested they have ever seen or even ever heard of a Blandingrsquos Turtle mortality on

the island45 That is not surprising given where turtles are mostly concentrated on the island and

given the nature of the island roads and the light traffic volume on them

Brooks WS para52Andrew Taylor TestimonyDavy Testimony

414 As explained by Dr Brooks and shown in the road ecology research cited by

Ms Gunson the types of rural roads that exist on Amherst Island are the types of roads that are

generally a low risk for turtles The types of roads where turtle mortality is an issue are busy

highways with high traffic volume and high travel speeds in particular ldquocausewaysrdquo (highways

that bisect wetland habitat on both sides of the road) Dr Brooks stated that ldquoit is particularly an

issue where you have highways going through wetlands causeways where there is water on both

sidesrdquo and ldquoit is a particular problem where you have highways and high speeds and high traffic

densityrdquo

Brooks Testimony

415 The research cited by Ms Gunson and of which she was a co-author also confirms that

road kill of turtles is prevalent at limited ldquohot spotsrdquo on certain types of highways namely

45 Ms Jensen indicated that over the course of her years living on the island she has seen two dead turtles but theywere not Blandingrsquos Turtles She stated ldquoI have two personal sightings of dead turtles not Blandingrsquos Turtlesrdquo Ifthe Appellantrsquos counsel is trying to suggest that Ms Jensen testified about Blandingrsquos Turtle mortality that isincorrect

- 157 -

causeways On those highways ldquoroad mortality occurred at locations close to water with high

traffic volumesrdquo and high speeds was another important risk factor

Gunson TestimonyRoad Mortality in Fresh Water Turtles Identifying Causes of SpatialPatterns to Optimize Road Planning and Mitigation (Gunson et al2012) part of Exhibit 64

416 Those conditions which cause significant mortality risk for turtles do not exist on

Amherst Island The roads on the island are at the opposite end of the spectrum in terms of risk

This point was emphasized by Dr Brooks and also by Mr Crowley Mr Crowley for instance

stated that

When we talk about roads being a significant risk to these speciesBlandings turtles included we are typically talking about roadsthat have a much higher traffic volume and traffic speed I think Ireferenced a study in my witness statement Other studies that havelooked at impacts of roads are typically looking at roads with high-- they are looking at public roads roads with vehicles going backand forth all day in excess of hundreds of vehicles a day highspeed limits of at least 80 kilometres an hour We are usuallytalking about highways Highway 7 Highway 69 Those are thetypes of roads that pose a serious risk to this species There is ahuge spectrum

The roads on Amherst Island stand in stark contrast to the types of settings where road mortality

is a problem

Crowley Testimony

417 Put simply Blandingrsquos Turtle road mortality has never been an issue on Amherst Island

For the reasons outlined below there is no credible reason to think it would become an issue as a

result of this Project All of the respondentsrsquo turtle and road ecology experts firmly opined that

the minor and temporary modifications to roads ndash including in particular the 3 road widening

locations ndash would not materially increase the already very low mortality risk They all opined

that the chances of even a single turtle being killed as a result of the Project are very low

Brooks WS para 44Hasler WS para 27Andrew Taylor Supplementary WS para 105Shawn Taylor WS para 19

- 158 -

Crowley Testimony

Many of the Islandrsquos Roads Are Not Being Used For the Project

418 The evidence of Mr Tsopelas and of Andrew Taylor confirmed that many existing public

roads on the island would not be used at all and would not be upgraded at all for the now

smaller 26 turbine Project These roads highlighted in red on the Exhibit 69 map are the

following

(i) Emerald 40 Foot Road

(ii) Art McGinns Road

(iii) Front Road west of the Stella 40 Foot Road (starting about 500 metres

west of Stella and running to the western end of the island)

(iv) 2nd Concession Road running west from the access road to Turbine S01

(v) South Shore Road west of the access road to Turbine S02 (ie the stretch

of South Shore Road starting about 15 kms east of Stella and going west

to the end of the road)

(vi) Marshall 40 Foot Road

(vii) two sections of Stella 40 Foot Road (the northern section between Front

Road and 2nd Concession and the southern section going from Turbine

S37 to South Shore Road) and

(viii) the western section of 3rd Concession running from the access road to

Turbine S11 until the western end of the road) In addition the remaining

section of 3rd Concession road highlighted in blue on Exhibit 69 will not

be used between May and October for the Project

Tsopelas TestimonyMap Exhibit 69Andrew Taylor Testimony

419 Accordingly the only roads (or portions of roads) that would in fact be used for the

Project are (i) a portion of 2nd Concession (ii) a portion of Front Road (iii) a portion of South

Shore Road (ie a portion at the eastern end of the island starting east of Stella 40 Foot Road)

- 159 -

(iv) Lower 40 Foot Road (v) a portion of Stella 40 Foot Road and (vi) a portion of 3rd

Concession but only from November through March

Alex Tsopelas TestimonyMap Exhibit 69

420 Importantly when considering the level of turtle mortality risk the roads on which any

turtles are most likely to be encountered are amongst the roads that would not be used or

upgraded at all for the Project Those are the roads at the western end of the island which are

closest to the Coastal Marsh Wetlands namely Emerald 40 Foot Road Art McGinns Road and

the most westerly sections of both 3rd Concession and South Shore Roads The majority of

APAIrsquos turtle sightings were made on those roads in proximity of the Coastal Marsh Wetlands

The locations of those sightings are consistent with Dr Brooksrsquo view that those roads are the

ones on which any turtles are most likely to be encountered because of their proximity to the

Coastal Marsh Wetlands and because turtles may travel on them from time to time during the

nesting season (mid-May to early July) Dr Brooks stated

Q When turtles are active and awake so not during theirhibernation on which roads on the island in your view are turtlesmost likely to be encountered

A South Shore Road and Emerald 40 and the western part ofThird Concession

Q Which part of South Shore Road

A The part down by the Long Point marsh but in general west ofthe Stella Road

Brooks WS para 49 Brooks TestimonyStantec Map Exhibit 75 E1


421 The construction of the Project on the island would take place for the most part when

Blandingrsquos Turtles are hibernating and entirely outside the nesting season For this reason alone

ndash and before even considering the various other mitigation measures that are in place ndash it is

highly unlikely that the use of public roads for construction of the Project will cause any harm to

Blandingrsquos Turtles

Alex Tsopelas Supplementary WS para 14 Alex Tsopelas Testimony

- 160 -

Shawn Taylor WS para 21Brooks WS para 43 Brooks Testimony

422 In particular the construction of Turbines S03 S09 S11 and S36 and their access roads

(ie the ones closest to the Coastal Marsh Wetlands) would only be taking place between

November 1 2006 and the end of March 2017 This is outside the active season for Blandingrsquos

Turtle The turtles are hibernating that whole time There would be no use of any roads during

the turtle active season in connection with the construction of those turbines or access roads and

therefore there is no risk of any turtle mortality as a result of this construction

Alex Tsopelas TestimonyBrooks WS para 43Shawn Taylor WS para 17Nagle Cross-Examination Testimony

423 In respect of the construction of all of the remaining turbines and access roads the use of

the public roads (ie the roads further away from the Coastal Marsh Wetlands referred to

above) would only overlap with the end of the turtle active season for two months (September

and October 2016) as referred to above This is well outside the nesting season The nesting

season is when both sidesrsquo experts agree that turtles are most likely to be encountered on roads

Given the locations of these roads that will be used and the time of year they would be used the

chances of encountering a Blandingrsquos Turtle on these roads during the construction of the Project

are low The expert evidence confirmed this point The APAI turtle sightings also highlight this

point 54 of the 62 sightings (listed in Appendix ldquoArdquo of the EcoKare report) took place during

the nesting season Over the three year period a total of only four sightings took place in

September and there were zero sightings in October

Alex Tsopelas WS para 14Shawn Taylor WS para 21Brooks WS para 23EcoKare Report Appendix ldquoArdquo Exhibit 65

424 Dr Brooks summarized the main reason there is unlikely to be any harm to turtles on

public roads during the construction phase

Q Turning to the topic of the existing public roads addressed inparagraphs 48 to 52 in your view will the use of existing public

- 161 -

roads for construction of the project result in increased mortalityrisk for turtles

A No because it will be temporary and as I understand it there isjust one winter of construction and then it is over and while theyare constructing the turtles are in hibernation

Brooks Testimony

425 In addition there are a number of other mitigation measures that would further reduce the

already low risk of any harm occurring Dr Brooks summarized these measures as follows

50 In respect of the remaining public roads during theconstruction of the Project there are mitigation measures in placeto minimize any risk of harm to Blandingrsquos Turtle (in the event anyturtles happened to be travelling in the vicinity of them) Thesemeasures include the following which are referred to in theWildlife Appendix of the Traffic Management Plan

(1) Barrier Fencing including silt fencing where appropriate willbe installed along the public roads in the locations of any watercrossings or where roads are in proximity to any farm ponds orareas of temporary flooding This should keep any turtle fromaccessing the roads in these locations

(2) The speed of Project traffic will be restricted with signage toreinforce awareness

(3) Limiting Project traffic during evening hours when nestingoccurs

(4) Driver awareness and sensitivity training will take place andbe reinforced regularly

Brooks WS para 50

426 Shawn Taylor Andrew Taylor Dr Hasler and Mr Crowley all similarly opined that

these additional measures would further minimize any risk of harm Given the Project layout and

the various mitigation measures in place Mr Crowley (for instance) concluded that both the

construction and operation of phases of the Project will result in a ldquonegligible riskrdquo to Blandingrsquos

Turtle

Andrew Taylor WS para 80Shawn Taylor WS para 21Hasler WS paras 33-34Crowley Testimony

- 162 -

The Operation Phase

427 During the operating phase of the Project the evidence was clear that the roads on the

island ndash those that would be used at all ndash would get very little use for purposes of the Project

There are expected on average to be only 1 to 2 vehicles trips per week on those roads

principally for purposes of maintenanceservicing of turbines Those vehicles trips are expected

to occur during the daytime when turtles are typically less active As a practical matter this use

of public roads will not cause any increased risk of Blandingrsquos Turtle mortality As Dr Hasler

succinctly stated (which testimony was similar to the opinion of Dr Brooks)

During the 20 year operational period of the Project the number ofProject ndash related vehicles on public roads is estimated to be notmore than two per week and expected to only be during thedaytime when turtles are less active Therefore during theoperational life of the Project there is no increase in risk toBlandingrsquos Turtle compared to the risk that currently occurs now

Hasler WS para 35Brooks WS para 51

428 The Appellant raises a concern as to whether there would be increased traffic volume or

driving speed by members of the public on Island roads as a result of the Project On the facts

and evidence that concern is without basis The upgrades that would be made to public roads for

purposes of the Project would be relatively minor and temporary in nature In all likelihood they

would not be expected to cause peoplesrsquo driving on the island to change and the overall extent of

traffic volume on the island at any given time is a finite amount given that it is an island

429 As confirmed by the expert testimony the roads that would be used for the Project are in

quite good condition overall and would not require much work Importantly none of the paved

roads would be repaved no gravel roads will be paved and no additional road shoulders (beyond

what already exists) will be needed Shawn Taylor stated

27 In respect of the remaining Island roads that will be used duringconstruction of the Project the upgrading of them will be limitedand temporary This includes that there will be no re-paving ofexisting paved roads and there will be no paving of existing gravelroads The types of roads that exist will be maintained as theycurrently exist

- 163 -

28 There are few paved roads on the Island however parts of FrontRoad and Stella 40 Foot Road are paved and would be used Theycurrently meet the standard necessary for the longer trucks butmay need minor pavement improvements in a few locationsOtherwise damaged pavement will be repaired during and afterconstruction mobilization

29 The majority of the gravel roads are in relatively good shape arewide enough to sustain truck traffic and will only need minorgravel top ups to improve the surface or adjust the width All ofthese good gravel roads are currently posted for a 60 kmhr speedlimit and it is not expected that the improvements (gravel top up ampleveling) will result in increases in speed or traffic frequency thatwould affect a change in risk to turtles

Shawn Taylor WS paras 27-29

430 The Appellant focused its concern on the temporary road widenings that will occur as

shown on Exhibit 88 and described in Mr Tsopelasrsquo evidence ndash it called the evidence of

Mr Northcote on this topic As shown on Exhibit 88 there are only three roads on which any

such widening will take place (i) certain curves on an eastern section of South Shore Road

between Stella 40 Foot Road and Lower 40 Foot Road (ii) Dump Road and (iii) the one S-bend

curve in the middle of 3rd Concession Road

Drawings Exhibit 88Alex Tsopelas Testimony

431 These road widenings are temporary measures that would at most be in place between

September 2016 and mid-March 2017 (with the 3rd Concession widening not occurring until at

least the start of November 2016) The Approval Holder has unequivocally confirmed that it

would reverseremove these road widenings immediately after the turbines have been delivered

The turbines are all expected to have been delivered and erected by about mid-March

Mr Tsopelas confirmed these points in his testimony as did Andrew Taylor The Exhibit 88

drawings also expressly confirm this point (in bold red text) regarding the timing of removal of

the road widenings

Alex Tsopelas TestimonyAndrew Taylor TestimonyRoad Widening Location Drawings Exhibit 88

- 164 -

432 Mr Tsopelas further confirmed that for a number of reasons it is imperative that the

above schedule be adhered to and confirmed that it would be met46

Alex Tsopelas Testimony

433 Based purely on his own speculation the Appellantrsquos transportation engineer

Mr Northcote questioned whether the road widening would be removed When the Panel

permitted him to provide that testimony (over the objection of counsel for the Approval Holder)

the speculative nature of the evidence was noted and the Chair questioned whether weight would

ultimately be given to it The reason Mr Northcote gave for his speculation was that generally

speaking municipalities are happy when someone else will ldquobuild them a road that they donrsquot

have to pay forrdquo However in this case the Approval Holder would not be building a new road

and there is no reason to expect that the Municipality would intervene to try to prevent these

temporary road modifications from being removed The Appellant called no evidence to indicate

that the Municipality has any intention to in fact intervene in this way

Northcote Testimony

434 In response to Mr Northcotersquos evidence the Approval Holder called Mr Stewart a

senior member of IBI who has over 30 yearsrsquo experience as a transportation engineer both in the

private and in the public sector He has extensive experience dealing with municipalities on both

sides and with many projects involving temporary road modifications He testified that in all of

his yearsrsquo experience he has never seen a municipality intervene to try to prevent the removal of

a temporary road layout or other modification that was done to facilitate construction of the

Project

Stewart Testimony

435 He also testified that municipalities are generally by nature risk averse Where such as

here constituents have publicly gone on record taking the position that the temporary road

modifications could result in an increased risk of harm it makes it even that much more unlikely

the municipality would intervene to prevent the modifications from being removed Mr Stewart

46 In its submissions the Appellant tries to argue that the construction schedule is overly ambitious butMr Tsopelasrsquo evidence on this point was uncontroverted

- 165 -

testified that based on his experience he sees no reason why the Municipality might intervene

here

Stewart Testimony

The Traffic Speed Issue

436 Importantly and in any event ndash even hypothetically if these road widenings were to

remain in place beyond the construction of the Project (which is not the case) ndash it is unlikely they

would cause people to drive any faster on these three roads and certainly not any significant way

that would affect turtle mortality risk On this point Mr Stewart testified that

bull in providing his opinion on this issue the Appellantrsquos expert Mr Northcote was

relying on design speed but design speed is not synonymous with the actual speed at

which people operate their vehicles on any given road

bull the actual operating speed is affected by various factors apart from the precise

curvature of the road including the driverrsquos desired speed speed limitations climatic

conditions the presence of other vehicles and the physical characteristics of the road

and adjacent land use ndash on the narrow single lane gravel roads at issue here

including South Shore Road these other factors (which will be unaffected by the

curve widenings) explain why people drive slowly on these roads and will continue

to do so

bull consistent with the opinion of the Approval Holderrsquos expert Mr Stewart the

Loyalist Township speed and volume survey that was conducted confirmed that

people drive quite slowly on the stretch of South Shore Road that is at issue an

average speed of 3945 kmhr and 85 of the people drive less than 60 kmhr and

bull the design speed table and the formula on it on which Mr Northcote was relying

does not apply to the roads at issue here in any event ndash rather that table and its

design speed formula apply to roads with super-elevation (where curves are banked

towards the inside of the road) and that are paved

Stewart Testimony

- 166 -

437 In respect of the stretch of South Shore Road east of Stella 40 Foot Road ndash the road that

was the main focus of Mr Northcotersquos testimony ndash much of that stretch of road would not be

widened but instead will remain the same narrow width it is now The temporary widening will

only occur at certain curves In those spots one side of the curve will be widened to ldquoshaverdquo the

inside of the curve

Drawings Exhibit 88Tsopelas Testimony

438 Mr Stewart provided detailed testimony to explain the various characteristics of South

Shore Road that cause people to drive slowly regardless of the minor curve widenings that will

take place He stated (in reference to photos he took on this road)

First of all the surface of the road is gravel It is not pavementThere are ruts and pot holes along it When you drive andparticularly if you increase your speed you have some gravelkicking up into your wheel wells You have vibration With thenarrowness of the road you can see that there is a worn track whichdemonstrates that traffic in both directions generally follows thesame track unless they are abreast of each other If you take a lookat this picture you can see as part of this curve you have a guiderail abutting the road which is a lateral fixed object You havetrees I also note that you can see that the surface is not banked orwhat we call super-elevatedhellip

As you carry on there can be some sight line issues if you look faralong to the far end of the road where you would adjust your speedfor the fact you cant see all the way around the curve so thatwould affect how fast you would feel comfortable driving Beingon gravel with rutting and gravel being kicked up and vibrationThat would all affect your degree of comfort with driving a certainspeed on that section of road

Turning to the next photo you do have a guide rail It is signed at theend to mark it as a hazard and direct vehicles to keep to the left of itSimilar commentary Guide rail narrow again I dont see super-elevation et cetera

If we go to the third photo that has the utility pole on it justidentifying some of the other objects that would affect comfort atdriving on the road You have a utility pole driveways to cottages orfarms you have trees you have a tree canopy over top of the roadYou can see a single set of tracks down the middle of the road

- 167 -

Finally I took a photo at the east end of the South Shore Road justbefore it turns to go to the north You can see I am at the very edgeof the road parked and that there is just enough room and this is ata spot where there isnt the lateral hazards There is enough roomlaterally for another car to pass me going slowly in the oppositedirection

Stewart Testimony

439 Mr Stewart also noted that sections of the road are in close proximity to the lakeshore

another factor affecting the speed at which people will tend to drive

Stewart Testimony

440 In respect of the above factors ldquothey are all factors that would cause people to decrease

their operating speedrdquo Mr Stewart confirmed and stated that these factors will not be affected

by the curve widenings

Q Will these various factors you have described to us about theroad and adjacent land will they be affected or changed by thecurved road widenings as you understand it

A In my opinion they wont because the minor widenings do notchange any of these other factors They would continue to be inplace

Stewart Testimony

441 In respect of the average speed of 3945 kmhr on the Loyalist Township report

Mr Stewart indicated that was likely measured on a straight section of the road where people are

likely to drive at the highest speed Over the entire stretch of South Shore Road at issue

Mr Stewart opined that the average speed was likely even lower than 3945 kmhr In his

opinion people are unlikely to increase that average speed And hypothetically if a particular

driver were inclined to increase their speed as a result of the road widenings he indicated the

diver would likely only do so on the widened curve itself and only by ldquoseveral kilometres [per

hour] but not very much at allrdquo

Stewart Testimony

- 168 -

The Traffic Volume Issue

442 Mr Stewart also opined that the road widenings would unlikely cause any increased

traffic volume on South Shore Road Dump Road or 3rd Concession Road compared to the

current volume of traffic In respect of people travelling from the ferry dock to Owl Woods or to

the KFN property on the eastern end of the island ndash the one specific route on which

Mr Northcote suggested the traffic volume may be altered ndash Mr Stewart confirmed that it would

not make sense for people to take the South Shore Road route to get to those destinations

compared to the Front Road route because the South Shore route is 4 kms longer and takes about

3-5 minutes longer) Mr Northcote himself conceded in cross-examination that the Front Road

route is significantly shorter and takes less time

Stewart TestimonyNorthcote Testimony

443 Even if there were any increase in traffic volume on South Shore Road (or either of the

other two roads) due to altered route selection by people there would necessarily be a

corresponding decrease in traffic volume on Front Road (or other roads) as a consequence That

is because there is a finite volume of vehicle traffic on the island at any given time a point with

which both Messrs Northcote and Stewart agreed Thus there would be no overall increase in

turtle mortality risk on island roads Also none of the roads at issue here is in proximity to the

Coastal Marsh Wetlands And overall given the small island population ndash a total of about 400

year-round and about 800 people in the summer ndash traffic volume is light on the island

Stewart TestimonyNorthcote TestimonyGunson Testimony

A Summary of the Mitigation Measures

444 We have referred above to the mitigation measures in place applicable to various

components of the Project and applicable to the construction and operation phases of it In its

submissions the Appellant seeks to ignore various measures that are in place including ones

required by the REA The Appellant even erroneously submits that ldquothere are not turtle

mitigation measures listed in the REArdquo ndash in fact there are a number of mitigation measures

required by the REA that will protect Blandingrsquos Turtle

- 169 -

445 For convenience we have summarized in Appendix E the main mitigation measures

The Predation Issue

446 In her oral testimony Ms Gunson and Dr Davy briefly raised a concern about nest

predation This was not a concern that was raised by the Appellantrsquos herpetologist expert

Mr Nagle however which is telling

447 Dr Brooks Andrew Taylor and Mr Crowley all responded to the concern raised Their

testimony confirmed that (i) the Project is not expected to result in any increase in nest predation

(compared to the level of predation that already occurs) and (ii) even if there was a slight change

in the rate of nest predation ndash as Ms Gunson speculated may occur ndash this would not affect the

viability of the Blandingrsquos Turtle population on the island The research has established that it is

the adult turtles not the eggs or hatchlings that are of much greater value to the population

Brooks TestimonyAndrew Taylor TestimonyCrowley WS para 24 Crowley Testimony

448 Dr Brooks specifically testified that he does not expect any increase in nesting predation

He does not expect turtles to nest on the access roads given their location nor would he expect

predators to be patrolling them looking for nests In any event he explained that even if there

were an increase in predation it would not likely affect the population Dr Brooks stated ldquoit

wouldnrsquot affect it too much unless it was a really big change so if you went from an average rate

of 10 percent or 20 percent which is very low to 90 percent it would have an impact or if you

like to 100 percent it would obviously because you wouldnrsquot have any new recruits but in

general the value to the population of adults is much greater than eggs or hatchlingsrdquo When

asked if he sees there being any risk of that type of big change in nest predation as a result of the

Project he stated ldquono I donrsquotrdquo

Brooks Testimony

449 Andrew Taylor similarly testified ldquoI donrsquot believe there will be any increased risk of

predation on roadsrdquo He explained the reason for his view as follows

A Turtles do have fairly high nest predation The ideal situationfor turtles for a group of turtles is to have a widespread diverse

- 170 -

areas to lay their eggs The more widespread your nests are theless chance there is of a predator finding them all

The worst case scenario is having one small area where all the eggsare laid which makes it easier for a predator to find In order toincrease the risk of predation it occurs when you are creatinghabitat that is better than the existing habitat so it attracts theturtles and more accessible to the turtles than the existing habitatwhich creates a concentration of it In our situation here we are notcreating a better habitat we are creating access roads When theprime habitat is the sand dunes we are also putting that habitatfurther away further away from the sand dunes

If a turtle were to nest on a road it is more likely to nest on thepublic roads that are in close proximity or the driveways that are inclose proximity

In the unlikely event a turtle does make it out to an access road tolay its eggs to nest it would be at lower risk of predation because itwould be spread out from a main group of nests and harder for apredator to find

Q Do you expect any turtles to be nesting on the access roads thatare going to be created

A I think it would be a very unlikely event


450 Mr Crowley also opined that the proposed Project is unlikely to result in an increase in

Blandingrsquos Turtle nest predation Given the other available nesting habitat that is present on the

island in his view ldquoit is very unlikely that the construction or operation of new gravel access

roads would result in significant shifts in nesting habitat use or increases in subsidized predator

populationsrdquo

Crowley WS para 24

451 Mr Crowley also emphasized an important point made by Dr Brooks even if there were

to be a change in the rate of nest predation as posited by the Appellant it would not affect the

Blandingrsquos Turtle population viability The expert evidence on this point is uncontradicted

Mr Crowley stated citing research by Dr Congdon

Furthermore even if there were the potential for the project toresult in changes to rates of nest predation and nest success it isextremely unlikely that increases in predation and decreases in nest

- 171 -

success would be significant enough to affect long-term populationviability It is imperative to understand the biology of this specieswhen assessing potential risk from nest predation Nest andhatchling success is normally low in Blandings Turtle populationsand changes in nest survival rates have a much smaller effect onBlandings Turtle population viability than changes in adultsurvivorship (Congdon 1993)

Crowley WS para 24

No Endangered Species Act (ESA) Permit Was Required

452 When considering the risk of harm to Blandingrsquos Turtle from this Project the fact no ESA

permit was required for Blandingrsquos Turtle is further evidence that the risk of harm is low

453 Stantec carried out a species at risk analysis in respect of Blandingrsquos Turtle and delivered

its species at risk report to the MNRF The MNRF considered this issue and met with the

Appellantrsquos representatives to consider their information as well Following its analysis the

MNRF agreed with the conclusion that this Project will result in no harm to Blandingrsquos Turtle

including no mortality

Crowley WS para 20Pitt WS para 8

454 In his testimony the MNRFrsquos senior herpetologist expert Joe Crowley summarized the

reasons why no ESA permit was required He testified that

bull Blandingrsquos Turtles are typically found in wetland habitats ldquoif they have to they will

move through upland terrestrial habitats but even when they move they try to stick

to the aquatic areas when they canrdquo

bull in respect of the APAI turtle sightings ldquothe majority of observations are generally

where you would expect them to be close to those [coastal marsh] wetlandsrdquo with

just ldquoa spattering of observations elsewhererdquo

bull the turtle sightings ldquosupported the assessment that the turtles are probably spending

most of their time around the coastal wetlandsrdquo

bull for the most part the Project components ldquoare located quite a distance away from the

large coastal wetlands You wouldnrsquot expect those small inter-wetland movements

- 172 -

between some of these to wetlands to take the turtles through the project footprint

simply because the footprint is outside of those areasrdquo

bull in respect of longer distance nesting migrations that some females might make ldquothe

last route they would probably take would be to go through agricultural fields which

I think Dr Brooks indicated in his witness statement They tend to avoid these types

of habitats whenever feasible Because the turbines and access roads are located in

agricultural fields and areas even on these long-distance movements for the most

part the turtles are probably going to be sticking as much as possible to existing

aquatic features or other more natural habitatsrdquo

bull the access roads will not result in any mortality as they are on private property

gated will be used very infrequently etc ndash ldquothese arenrsquot comparable to public roads

that typically result in potentially problematic mortality rates for turtles These are a

very different beastrdquo

bull in respect of the public roads he does not expect any increased mortality risk as

ldquothey arenrsquot being significantly upgraded to the point where we would see a

significant increase in traffic speed or volumesrdquo and he also explained that these

types that exist on the Island are not the types that cause a turtle mortality issue ndash

ldquowhen we talk about roads being a significant risk to these species Blandingrsquos

Turtles included we are typically talking about roads that have a much higher traffic

volume and speedhellip roads with vehicles going back and forth all day in excess of

hundreds of vehicles a day high speeds of at least 80 kmhr We are usually talking

about highways Highway 7 Highway 69rdquo

Crowley Testimony

Low Turtle Risk at Neighbouring Wolfe Island

455 When assessing the level of risk posed by this Project the experience at the neighbouring

Wolfe Island project with respect to turtles is also useful and instructive It strongly supports the

conclusion that there is unlikely to be any harm to Blandingrsquos Turtle

- 173 -

456 The uncontradicted evidence is that Wolfe Island is comparable to Amherst Island in

respect of Blandingrsquos Turtles and the risk to them If anything Wolfe Island arguably would be a

somewhat higher risk as it has about three times as many turbines a higher density of them and

only 60 of them (as opposed to 96 here) in agricultural grasslands Andrew Taylor noted

bull Wolfe Island is very similar habitat to that of Amherst Island dominated by

agricultural fields with a predominance of hay and pasture as well as a large coastal

marsh complex

bull there is a known presence of Blandingrsquos Turtles in the coastal marsh wetlands

complex on Wolfe Island and

bull the Wolfe Island Project has access roads and several wind turbines close to the

coastal wetland complex much more so than the Amherst Island Project However

as those particular project components were in mostly hay and pasture fields

Blandingrsquos Turtles were not expected to be there


457 At Wolfe Island there was no harm to Blandingrsquos Turtle as a result of that wind project

As confirmed by Andrew Taylor ldquoThrough the construction period no Blandingrsquos Turtles were

observed in the construction site at Wolfe Island nor was there any harm to Blandingrsquos Turtles

in the construction sites or on public roads Furthermore through the 3frac12 (4 years covering May

and June) of post-construction monitoring no observations of Blandingrsquos Turtle or turtle nests

were made on the Wolfe Island access roadsrdquo Dr Davy confirmed that she is not aware of any

Blandingrsquos Turtle mortality occurring at Wolfe Island or at any other Ontario wind project

Andrew Taylor WS para 82Davy Testimony

458 Mr Taylor concluded on this point by saying that ldquoGiven the strong similarities between

the habitat features of Wolfe Island and Amherst Island we can expect very similar results that

no Blandingrsquos Turtles will be encountered (or harmed) during construction and operation of the

Project This is particularly so considering the significant additional precautionary mitigation

measures that will be implemented at the Amherst Island Projectrdquo


- 174 -

459 The Appellantrsquos experts provided no evidence to suggest that the results of the Wolfe

Island project will not be replicated at Amherst Island and they did not offer any reason why that

might be the case

460 Another wind project with similar features to Amherst Island relevant to risk to turtles is

the Niagara Region Wind Farm The experience from that wind project further supports the

conclusion that this Amherst Island Project poses low risk of any harm occurring

461 Andrew Taylor testified as follows in respect of the Niagara Regional Wind Farm

Stantec completed the REA for the Niagara Region Wind Farmincluding the NHAEIS as well as the SAR Report and ESAauthorizations The records review including consultation with theMNRF identified occurrences of Blandingrsquos Turtle within one largewetland complex immediately adjacent to the Project Location(much closer than at Amherst) The large wetland was surrounded byagricultural fields where the project components were sited andwhere no turtles were found despite extensive surveys

During construction of the Niagara Region Wind Farm this pastsummer exclusionary fencing was installed (during active seasonfor the turtles) No Blandingrsquos Turtles ended up in the constructionarea and no Blandingrsquos Turtles were harmed during construction

Andrew Taylor WS para 82(1)

This Project is Different Than White Pines

462 In its Closing Submissions the Appellant tries hard to create the impression that this

Project is similar to White Pines so that it can rely on the Tribunalrsquos decision in Hirsch

However the White Pines project is distinguishable from this one in key respects By

comparison this Project is lower risk and the totality and weight of expert evidence at this

hearing ndash including in respect of the level of risk on public roads and in respect of the nest

predation issue ndash was very different than in the Hirsch case

463 The habitat within and Blandingrsquos Turtle presence within the White Pines project as

noted by the Tribunal in its decision

bull much of the project was situated in Blandingrsquos Turtle habitat and there was no

dispute on this important fact ndash ldquoStantec the Approval Holderrsquos consultant

- 175 -

identified Blandingrsquos Turtle habitat at the Project site including 1451 ha of spring

foraging and oviposition habitatrdquo and that habitat for each season and each life stage

was present [para 145]

bull there was a known turtle presence within the project site itself given the Blandingrsquos

Turtle habitat present within the site ndash for example ldquoduring its field surveys Stantec

made 10 Blandingrsquos Turtle observations at seven locationsrdquo [para 245]

bull ldquothe Project site surrounds the much smaller Ostrander site with similar habitat in

the southern parts close to the Ostrander siterdquo [para 249]

bull ldquodue to the rocky alvar surrounding much of the Blandingrsquos Turtle habitat at the

Project site nesting areas are not widely availablerdquo ndash this made it more likely that

turtles would be attracted to the new access roads crane pads and turbine bases to

nest the Tribunal found and [para 268]

bull there was speculation that some public road improvements could potentially be

removed but no evidence the approval holder had committed to doing so and the

Tribunal noted ldquothe evidence also indicates that the municipal roads in the poorest

condition and thus most likely to require upgrades are adjacent to the Blandingrsquos

Turtle habitat particularly wetlands in the southern part of the Project siterdquo and that

there had previously been ldquoa few reported fatalities associated with these areas of the

Project siterdquo on which the public roads were going to be significantly upgraded

[para 262]

Hirsch paras 145 245 249 262 268 BOA Tab 11

464 As described above the hayfieldpasture field landscape of this Amherst Island Project

the availableabundance nesting habitat elsewhere on the island (outside the Project Location)

the location of public roads that are not going to be used or upgraded at all the Approval

Holderrsquos commitment to remove the temporary road widenings the 100-600 population size

estimate and other extensive responding expert evidence distinguish this Project and its risk to

Blandingrsquos Turtle from the Hirsch case

- 176 -

(4) There Will Be No Serious and Irreversible Harm

465 For all of the reasons outlined above the weight of evidence including expert opinion

establishes that it is highly unlikely there will be any Blandingrsquos Turtle mortality as a result of

the Project during the construction or operation phases of it It would be surprising if even a

single turtle were harmed or killed But in any event the expert evidence on both sides

confirmed that in order for there to be an impact that would be serious and irreversible there

would have to be sustained chronic mortality over an extended period of time There is no

realistic chance of that occurring as a result of the Project

466 The research on this topic ndash including the leading paper by Dr Brooks ndash shows that it is a

sustained chronic increase in mortality that can cause population declines namely a mortality

increase of at least 2-3 per year for a number of years would typically be required to have any

such impact Mr Nagle conceded this point in cross-examination Populations of Blandingrsquos

Turtles are able to withstand a one-time increase in mortality of that nature or even 2-3 years of

added mortality As explained by Dr Brooks

Dr Nagle states in paragraphs 8 and 9 of his statement thatBlandingrsquos Turtle cannot sustain increased mortality rates of adultsof as low as 2-3 annually It is important to clarify that suchlosses would have to be chronic over an extended period of timeto cause declinnes In other words if the mortality rate of adultsand older juveniles were to be 3 or more higher than ldquonormalrdquoover several years then a decline would likely occur Howeversuch added annual mortality for a single year or even 2-3 yearswould not imperil a healthy population or lead to a risk ofextirpation Such sporadic incremental increased annual mortalityundoubtedly occurs in all turtle populations without drasticconsequences as the 250 million years history of turtles plainlyattests As Dr Nagle notes the conservation of long-livedBlandingrsquos Turtle requires the protection of large areas of corehabitat including the type of wetlands and nesting sites that arepresent in the Coastal Marsh Wetland complexes at thesouthwestern coast of Amherst Island

Brooks Supplementary WS para 12Nagle WS para 8 9 Nagle Testimony

467 When considering what level of sustained chronic mortality would constitute irreversible

harm the size of the population of Blandingrsquos Turtles on Amherst Island has to be considered

- 177 -

On the evidence the size of the Blandingrsquos Turtles population is likely in the range of 100-600

turtles

468 On this point Dr Brooks was asked to opine on the size of the island population on the

assumption that all of the APAI turtle sightings are accepted as being true47 Dr Brooks testified

that that size of the population in the Coastal Marsh Wetland areas is ldquoalmost certainly between

100-600rdquo turtles In arriving at that range he

(i) took into account the number of APAI ldquoopportunisticrdquo turtle sightings or roads on

the island (assuming they are accepted as being true) and the number of

individuals those sightings likely represent including taking into account

Dr Davyrsquos review of the photographs she was provided

(ii) considered that the APAI sightings were likely adult females given that almost all

of the sightings were in the nesting season ndash he assumed there is likely about a 11

ratio of adult males to adult females in the population (a ratio with which

Mr Nagle agreed)

(iii) reasoned that since neither Stantec nor APAI surveyed the Coastal Marsh

Wetlands for turtles or the prime nesting areas along the sand dunes ldquothere has to

be a lot of turtles they didnrsquot see that are in the marshes and nesting on the

dunesrdquo and

(iv) looked at the size of Blandingrsquos Turtle population in other locations in Ontario in

particular at two marsh areas that are similar in size to the Coastal Marsh

Wetlands on Amherst Island (Big Creek and Long Point) and found that they

have a density of about 1 Blandingrsquos Turtle per hectare of Marsh ndash accordingly

ldquoon that measure it would be roughly 600 turtles in the three marshes on Amherst

Islandrdquo

Brooks Testimony

47 In its submissions APAI asserts that it was somehow inconsistent or contradictory for him to do so That is notthe case For purposes of his population estimate he took the sightings into account on an assumed basis

- 178 -

469 Dr Brooks concluded by saying that ldquoI would say 600 is a good estimate but it is likely

less than that It is almost certainly between 100 and 600rdquo

Brooks Testimony

470 Although at one point in his testimony Mr Nagle characterized the population on the

Island as being likely small when asked directly whether he disagreed with Dr Brooksrsquo range of

100-600 under cross-examination his response was merely that ldquo600 seems high to merdquo He did

not disagree with the entire range

Nagle Testimony

471 Mr Nagle conceded that most of the turtles APAI sighted on their ldquoopportunisticrdquo road

survey were likely adult females and that the population likely includes as many adult males

and also as many juveniles as there are adult females (ie a 111 ratio) He also conceded that in

order to estimate the total size of the population on the island one would need to consider the

turtles in the Coastal Marsh Wetlands and turtles that may be nesting on the sand dunes

bordering them He further agreed that when trying to estimate the size of the population it can

be useful to look at the populations of other wetlands of a similar size and similar habitat

quality That is exactly what Dr Brooks did in arriving at this population estimate Mr Nagle

was not familiar with the other Ontario wetlands to which Dr Brooks was referring

Nagle Testimony

472 Dr Davy did not offer a population size estimate She confirmed that all she did was

review the 44 photographs that were provided to her which were photographs of 44 of the 62

APAI sightings From her review of those 44 photographs she concluded that they represent up

to 39 different individual turtles She confirmed that these APAI sightings were the result of

ldquoopportunistic surveysrdquo on roads and were just a ldquopresence absencerdquo exercise not a population

survey and Dr Davy did not suggest that those sightings represented the extent of the island

population No population survey or study was conducted by the Appellant Dr Davy or the

Appellantrsquos other experts Ms Gunson also confirmed that the APAI sightings (summarized in

her EcoKare report) do not represent ldquorelative abundancerdquo of Blandingrsquos Turtles on Amherst

Island rather it is ldquopresence only datardquo

- 179 -

Davy WS (December 1 2015) para 7 Davy Supplementary WS(January 22 2016) para 10EcoKare Report p 11 Gunson Testimony

473 If Dr Davy disagreed with Dr Brooksrsquo 100-600 range estimate the Appellant could have

called her as a witness in reply testimony to provide that evidence It chose not to do so

supporting a reasonable inference that her testimony on this ultimate point would not have

assisted the Appellantrsquos position

474 We also note that the MOECC sought to adduce evidence from its herpetologist expert

Mr Crowley in respect of the size and health of the Blandingrsquos Turtle population on Amherst

Island in support of its case and its position that no ESA permit was required The Appellant

objected to this evidence and the Tribunal refused to permit Mr Crowley to provide that

testimony

475 In its Closing Submissions the Appellant now submits that the size of the Amherst Island

population is ldquounknownrdquo and yet later on it makes an argument ldquoassuming a population of 50 to

100 turtlesrdquo Counsel for the Appellant has simply made up this assumption No expert for either

side opined that the population may be 50 to 100 turtles There is no proper basis in the record

for that assumption which we submit is artificially and unreasonably low

476 For argumentrsquos sake even if one were to take the lower end of the 100-600 population

estimate provided by Dr Brooks in order for the Project to have any impact that could be both

serious and irreversible there would still have to be sustained Blandingrsquos Turtle mortality of a

number of turtles per year for several years and even a higher amount of annual sustained

mortality assuming the population is actually greater than the low end of the range On the

evidence here there is no basis to conclude that such a level of mortality is a realistic possibility

let alone one that will occur

The Weight of Expert Evidence

477 The most qualified Blandingrsquos Turtle expert to testify at this hearing was Dr Brooks He

has spent most of his lengthy career devoted to the research and conservation of SAR turtles in

Canada including Blandingrsquos Turtle He was instrumental in the Blandingrsquos Turtle being listed

- 180 -

as a SAR He is widely regarded as a leading in Canada Dr Davy herself acknowledged under

cross-examination that in the field of turtle biology and conservation he is a ldquowell-known and

leading expertrdquo and Andrew Taylor similarly stated that Dr Brooks ldquois widely considered one of

the main authorities on turtles in Canadardquo and ldquowas principally the one responsible for

Blandingrsquos being listed [as SAR]rdquo

Brooks CVDavy TestimonyAndrew Taylor Testimony

478 In this evidence Dr Brooks confirmed that given his career dedication to the

conservation of this species if he had any concerns that Blandingrsquos Turtle would be harmed by

this Project he would be quick to point this out as he has done in the past in respect of other

types of projects He stated that given his longstanding roles with COSEWIC and COSSARO

he has in the past been outspoken in opposition to a number of infrastructure projects where he

had concerns about potential impacts to SAR turtles such as Blandingrsquos Turtle He further

stated

hellipIf I thought Blandingrsquos Turtles would be harmed by this ProjectI would be quick to point this out as I have done in other situationswhere the species was likely to be harmed ndash I have dedicated muchof my career to ensuring the protection of Blandingrsquos Turtle andother reptile species and was instrumental in obtaining the SARdesignation for the Blandingrsquos Turtle I do not believe this Projectwill cause any harm to Blandingrsquos Turtle

Brooks Supplement WS para 31

479 It is noteworthy that the Appellant chose not to cross-examine Dr Brooks at all

480 In its submissions counsel for the Appellant was critical of Dr Brooks plain spoken

sometimes unpolished candor (focusing mainly on a few words used in one witness statement)

using it as a pretext to try to dismiss his testimony entirely without addressing any of the

substance With respect to accuse an academic of Dr Brooksrsquo stature who has spent much of his

working life on conservation efforts as worse than an advocate for industry is not only

unwarranted it is highly unfair In respect of those few words Dr Brooks explained that he was

not intending to make any accusation about peoplesrsquo integrity but merely to convey that a few of

- 181 -

the photos he was asked to view appeared to show unusual nesting behaviour He acknowledged

the language he used in that statement to express that view was not the best choice of wording

and he specifically corrected and clarified that wording in his reply statement We also note that

in her witness statement Dr Davy herself acknowledged that some of the photos may have been

ldquoposedrdquo to get a better shot Counsel for the Appellant advanced no substantive basis for the

allegation that Dr Brooks is biased or any rationale at all for why that would be the case

Brooks Sur-Reply WS paras 3-4Davy Supplementary WS para 3

481 Dr Brooksrsquo opinion should be given considerable weight In a number of respects

Mr Naglersquos testimony was consistent with and confirmatory of points made by Dr Brooks

Dr Hasler Andrew Taylor and Mr Crowley of the MNR also provided opinions consistent with

that of Dr Brooks confirming the low risk to Blandingrsquos Turtle presented by this Project

- 182 -

VI ORDER REQUESTED

482 For the above reasons the Approval Holder requests that this appeal be dismissed

483 In the event the Tribunal were to find its jurisdiction has been engaged in respect of any

of the grounds of appeal we would respectfully request an opportunity to address the issue of

remedy at that stage

June 3 2016 ALL OF WHICH IS RESPECTFULLY SUBMITTED

Torys LLP 79 Wellington St W 30th Floor Box 270 TD Centre Toronto ON M5K 1N2 Fax 4168657380

Dennis Mahony Tel 4168658214

John Terry Tel 4168658245

Arlen Sternberg Tel 4168658203

Lawyers for the Approval Holder Windlectric Inc

Table of Contents

I OVERVIEW

II THE PROJECT




A Overview

B Birds

C Bats

D Hydrogeology

E Turtles

VI ORDER REQUESTED

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ORI

GIN

AL

SHEE

T - A

RCH

D

March 2016Project Number 133560078

AMHERST ISLAND WIND PROJECTAMHERST ISLAND LOYALIST TOWNSHIP ONTARIO

Widening LocationsPublic Road Temporary

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N

N

The widening will be reversedremovedimmediately after the turbines havebeen delivered

N


N


N


133560078 Design-A

133560078 Design-C000

133560078 Design-C001

133560078 Design-C002

133560078 Design-C003

133560078 Design-C004

Inventory shore wells that cross municipal road allowances on haul routes and collector line routes Make a commitment todeliver a solution if construction impacts wells in any way

3 Commit unequivocally to all mitigation measures including minor and temporary road widenings as contained in Exhibit88 and timing presented at the ERT (refer to paragraphs beginning at 421 summarized in Torys closing statement attached)specifically but not limited to

422 In particular the construction of Turbines S03 S09 S11 and S36 and their access roads (ie the ones closestto the Coastal Marsh Wetlands) would only be taking place between November 1 2006 (sic) and the end of March2017 This is outside the active season for Blandingrsquos Turtle The turtles are hibernating that whole time Therewould be no use of any roads during the turtle active season in connection with the construction of thoseturbines or access roads and therefore there is no risk of any turtle mortality as a result of this construction

423 In respect of the construction of all of the remaining turbines and access roads the use of the public roads (iethe roads further away from the Coastal Marsh Wetlands referred to above) would only overlap with the end of theturtle active season for two months (September and October 2016) as referred to above This is well outside thenesting season

429 As confirmed by the expert testimony the roads that would be used for the Projectare in quite good condition overall and would not require much work Importantlynone of the paved roads would be repaved no gravel roads will be paved and noadditional road shoulders (beyond what already exists) will be needed Shawn Taylorstated

27 In respect of the remaining Island roads thatwill be used during construction of the Project theupgrading of them will be limited and temporaryThis includes that there will be no re-paving ofexisting paved roads and there will be no pavingof existing gravel roads The types of roads thatexist will be maintained as they currently exist

28 There are few paved roads on the Islandhowever parts of Front Road and Stella 40 FootRoad are paved and would be used Theycurrently meet the standard necessary for thelonger trucks but may need minor pavementimprovements in a few locations Otherwisedamaged pavement will be repaired during andafter construction mobilization29 The majority of the gravel roads are inrelatively good shape are wide enough to sustaintruck traffic and will only need minor gravel top upsto improve the surface or adjust the width All ofthese good gravel roads are currently posted for a60 kmhr speed limit and it is not expected that theimprovements (gravel top up amp leveling) will resultin increases in speed or traffic frequency that wouldaffect a change in risk to turtles

430 As shown on Exhibit 88 there are only three roads on whichany such widening will take place (i) certain curves on an eastern section ofSouth Shore Road between Stella 40 Foot Road and Lower 40 Foot Road (ii)Dump Road and (iii) the one S-bend curve in the middle of 3rd ConcessionRoad

431 These road widenings are temporary measures that would at most be inplace between September 2016 and mid-March 2017 (with the 3rd Concessionwidening not occurring until at least the start of November 2016) The ApprovalHolder has unequivocally confirmed that it would reverseremove these roadwidenings immediately after the turbines have been delivered The turbines are allexpected to have been delivered and erected by about mid-March Mr Tsopelasconfirmed these points in his testimony as did Andrew Taylor The Exhibit 88drawings also expressly confirm this point (in bold red text) regarding the timingof removal of the road widenings

Temporary Road Widening Location Drawings (exhibit 88) presented to the ERT arealso attached

4 Commit unequivocally to comply with the REA conditions in their entirety including all of the supporting documentsespecially for the batch plant The dock design and the addition of aggregate conveyors are symbolic of lack of say do byWindlectric Refer to the dock design proposed in Modification 1 and review the as built for the Island dock Build themainland dock as submitted in the approved REA Modification 1 or seek a modification to the REA

5 Thank you for committing to STOP using the Island ferry Please eliminate the qualifiers as all work in this phase isconstruction work You may not be aware that not only do seasonal visitors arrive soon but cattle delivery from the mainlandhappens in the next few weeks and the reverse occurs in the fall

6 Commit to find a solution to delivery of turbine blades that does not require changes to trees drainage or the hill by StPauls Meet with representatives of St Pauls prior to finalizing the Operations Plan

7 Comply with the Overall Benefit Permit (work south of Front Road and on all leased lands) the Noise By-law the FishSpawning regulations (spud barges were moved during the restricted period) NPC 300 and all other permit and regulatoryrequirements and cease efforts to obtain interpretations of or exemptions to the rules to the companies benefit

8 Address the safety issue at the intersection of Front Road and the Island dock access perhaps by moving the dock accessroad 200 feet to the east Remedial efforts since this was brought to your attention in December 2016 have been ineffectiveand the issue needs to be resolved before a serious accident occurs

9 Present a simulation of tugsbarges crossing the ferry path twelve times per day in winter to demonstrate exactly what therisks to the public and environmental safety are and how they can be mitigated Show the community and Loyalist staff atime lapse video of exactly what will happen from 7am to 8 pm when ice covers the channel Shoe exactly how the submarinecable will be laid across the ferry path

10 Undertake a noise impact study to ensure that all truck traffic and equipment operation and movement complies withNPC 300

11 Commit to open and transparent communication and accountability Appoint someone with communications expertise toliaise with community Make all community working group meetings public Engage your faciltatorlawyer or adocumentation specialist to review all documents prior to submission to the Township and release to the public

Finally once the items raised at Thursdays meeting are addressed including a complete document with municipal addressesso that residents can assess the impact of the project (collectors line installation obstruction free zones tree trimming andcutting) please provide 2 printed copies on the Island one to be located at the Museum and one at the Post Office and requestcomments within 15 days APAI looks forward to your response and to a complete and corrected version of the OperationsPlan with sufficient time for review and comment

While it is outside the scope of APAI to restore company credibility on the Island please fulfil Windlectrics commitment tothe Little family to acquire their property at 1355 Second Concession at its 2015 appraised amount or an amount mutuallyagreed plus legal costs for both closing and for acquisition of another property moving costs and a dumpster with weeklyrefresh for up to 8 weeks prior to the closing date Eliminate all conditions concerning moving from the Island

More detailed comments on the Operations Plan will follow particularly with respect to the Emergency and Marine Safety

Plans

Thank you for your consideration APAI appreciates that we see this project through very different lenses

Representatives of APAI are available to meet with senior staff to discuss these recommendations It would be helpful if youwould clarify who may represent and bind the company now that Algonquin no longer has a controlling interest and no newDirectors appear to have been appointed

I look forward to your response

Sincerely

Michegravele Le LayPresident Association to Protect Amherst Island

ERT Case No 15-084









i

TABLE OF CONTENTS

I OVERVIEW 1

II THE PROJECT 8




A Overview 33


C Bats 69


E Turtles 117







ERT Case No 15-084




I OVERVIEW














- 2 -





Health Appeal





community


















- 3 -

Bobolink and Owls









annually


















recover

- 4 -





















in this proceeding









- 5 -




























- 6 -






experts and




Turtle Habitat




















- 7 -

















project





- 8 -

II THE PROJECT










(hay and pasture)






- 9 -




the Tribunal






Same


Grounds for hearing










- 10 -






by the Project















- 11 -










tporfido
Text Box
HEALTH TAB13

- 12 -


Overview

















human health










- 13 -


health


























- 14 -


Corporation























hearing




- 15 -


























- 16 -

















- 17 -

















causal relationship










- 18 -





















following








- 19 -



wind turbines




of wind turbines














- 20 -




























- 21 -



many months later3















considered (para 4)



assessed (para 9)




- 22 -







(para 34)






















- 23 -





























- 24 -












period of 120 days5













- 25 -

















Ontario




- 26 -


















- 27 -


























- 28 -

Acoustic Report













Guideline (NPC-300)



- 29 -



below



- 30 -


















school environment








- 31 -
























- 32 -























tporfido
Text Box
BIRDS TAB13

- 33 -


A Overview







just that

B Bobolink and Owls

(i) Overview








201617





March 2016




- 34 -























(ii) Expertise







- 35 -









bird migrationrsquo





Evans Testimony









- 36 -







Evans Testimony


Evans Testimony

















- 37 -







to Altamont










estimated21



- 38 -




cross-examination


A I have not


A No I have not


A No I have not

Smallwood Testimony
















- 39 -




























- 40 -



























- 41 -
















(iii) Bobolink

About the Species










- 42 -





















killed







- 43 -






















island


- 44 -




















- 45 -























- 46 -














numbersrdquo













- 47 -






















Amherst Island







- 48 -





20088 (13392 + 6696)22



















- 49 -


m)
















- 50 -














and grazingrdquo











- 51 -
























- 52 -




this species

Bollinger Testimony























- 53 -


year











Island














- 54 -





















grasses etc) and




- 55 -



















the MNRF26





- 56 -



















specifically





- 57 -






















- 58 -















OMP and






- 59 -








Evans Testimony



















- 60 -










Wolfe Island33






Owls






- 61 -

























impacts to owls


- 62 -




























- 63 -



















- 64 -











between them















- 65 -














accumulation


No Mortality Risk




- 66 -



















ground







- 67 -








impact













tporfido
Text Box
BATS TAB13

- 68 -

C Bats

Overview



























- 69 -



























Reynolds WS para 15

- 70 -










Reynolds WS para 17









Reynolds Testimony








- 71 -

Reynolds Testimony








Reynolds WS para 18



habitat preference


Reynolds Testimony


experience


- 72 -


























- 73 -



or Northern Myotis







witness statement










- 74 -






habitatrdquo

Reynolds WS para 30





















- 75 -

























- 76 -






- 77 -










further stated



- 78 -




















- 79 -





near turbinesrdquo



species

Northern Myotis







Reynolds WS para 23








- 80 -

Little Brown Myotis











Myotis













be mortality now


- 81 -


























- 82 -

















Reynolds WS para 32



REA








- 83 -






















- 84 -




Reynolds Testimony




















- 85 -



























- 86 -







stated














- 87 -







tporfido
Text Box
HYROGEOLOGY TAB13

- 88 -


Overview


























- 89 -


documented data












drainage systems













- 90 -





























- 91 -











Hydrogeology








Cowell WS paras 2-8








- 92 -























- 93 -









Cowell WS para 22




the Project site

Cowell Testimony









- 94 -





















Cowell Testimony








- 95 -



A Yes




A Correct





terrain






Cowell Testimony







- 96 -




complex










- 97 -




























- 98 -















those results













- 99 -



discussed below


















trench








these effects

- 100 -


No Spills Risk
















tank











- 101 -


reaching the ground





























- 102 -




























- 103 -



























- 104 -

Hydrology Evidence





Stanfield WS pp 4-5






Stanfield Testimony















- 105 -



work
















Stanfield Testimony









- 106 -









Stanfield Testimony




not include







(i) dugout ponds or

- 107 -









survivalrdquo











water bodies

Stanfield Testimony







- 108 -





Project






followed




normally the spring





streambed


plain


channel



larvae


- 109 -


























- 110 -


















included

Stanfield Testimony



Investigation


- 111 -



water body




of Investigation

Stanfield Testimony














- 112 -



























- 113 -


by this discharge

























- 114 -























desk-top studies






- 115 -



Stanfield Testimony























- 116 -























tporfido
Text Box
TURTLES TAB13

- 117 -

E Turtles











habitat


the Project


hibernating












- 118 -





















Reserve









- 119 -











years43



















- 120 -













Turtle ecology








Road Ecology Group







- 121 -













Brooks WS para 25









potential foodrdquo




Hasler WS para 11

- 122 -

















submissions










- 123 -










Crowley WS para 23








Location as well










- 124 -

Brooks Testimony






















- 125 -



















- 126 -




Turtlerdquo








habitat

















- 127 -






























MNR GHDBT Document

- 128 -




























- 129 -







confirmed


















be present


- 130 -




























- 131 -







- 132 -

















swamps










- 133 -























- 134 -






























- 135 -




























- 136 -

























- 137 -





















- 138 -





























- 139 -





















- 140 -












A Right next to it






- 141 -









Project Location
















2006)rdquo

Brooks WS para 38

- 142 -





He stated












Marsh Wetlands

- 143 -

Brooks Testimony





purposes





















- 144 -














Crowley Testimony


- 145 -




















Appendix E






- 146 -






The Access Roads





roads





use












- 147 -

























- 148 -



by March)


para 77




















- 149 -



















other projects









- 150 -









392 above

The Operation Phase















- 151 -





road are even lower





Crowley Testimony







- 152 -




















- 153 -










right nowrdquo













lanewaysrdquo



in the fields


- 154 -



He stated


Brooks WS para 47






And he continued










- 155 -



























current Project



- 156 -



















densityrdquo

Brooks Testimony




- 157 -







stated that



is a problem

Crowley Testimony








- 158 -

Crowley Testimony





following





















- 159 -


























- 160 -
























- 161 -



Brooks Testimony








Brooks WS para 50





Turtle


- 162 -

The Operation Phase





















- 163 -


















the road widenings


- 164 -














Northcote Testimony







Project

Stewart Testimony






- 165 -


here

Stewart Testimony















to do so









Stewart Testimony

- 166 -





inside of the curve









- 167 -


Stewart Testimony



Stewart Testimony






Stewart Testimony









Stewart Testimony

- 168 -




























- 169 -


The Predation Issue





















Brooks Testimony




- 170 -












populationsrdquo

Crowley WS para 24






- 171 -


Crowley WS para 24






















- 172 -























Crowley Testimony





- 173 -







marsh complex






















- 174 -



might be the case



















- 175 -




















[para 262]








- 176 -



















- 177 -


turtles












Mr Nagle agreed)




dunesrdquo and






Islandrdquo

Brooks Testimony


- 178 -



Brooks Testimony





Nagle Testimony










Nagle Testimony











- 179 -










testimony

















- 180 -













stated











- 181 -












- 182 -

VI ORDER REQUESTED











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T - A

RCH

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N

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N


N


N


APAI ndash Top Eleven Recommendations ndash Operations Plan

Top Eleven - Closing Submissions of the Approval Holder (002)

I OVERVIEW

II THE PROJECT




A Overview

B Birds

C Bats

D Hydrogeology

E Turtles

VI ORDER REQUESTED

Top Eleven - 133560078 Design-20160317-LAB2-2-2 (002)

133560078 Design-A

133560078 Design-C000

133560078 Design-C001

133560078 Design-C002

133560078 Design-C003

133560078 Design-C004

ERT Case No 15-084









i

TABLE OF CONTENTS

I OVERVIEW 1

II THE PROJECT 8




A Overview 33


C Bats 69


E Turtles 117







ERT Case No 15-084




I OVERVIEW














- 2 -





Health Appeal





community


















- 3 -

Bobolink and Owls









annually


















recover

- 4 -





















in this proceeding









- 5 -




























- 6 -






experts and




Turtle Habitat




















- 7 -

















project





- 8 -

II THE PROJECT










(hay and pasture)






- 9 -




the Tribunal






Same


Grounds for hearing










- 10 -






by the Project















- 11 -










tporfido
Text Box
HEALTH TAB13

- 12 -


Overview

















human health










- 13 -


health


























- 14 -


Corporation























hearing




- 15 -


























- 16 -

















- 17 -

















causal relationship










- 18 -





















following








- 19 -



wind turbines




of wind turbines














- 20 -




























- 21 -



many months later3















considered (para 4)



assessed (para 9)




- 22 -







(para 34)






















- 23 -





























- 24 -












period of 120 days5













- 25 -

















Ontario




- 26 -


















- 27 -


























- 28 -

Acoustic Report













Guideline (NPC-300)



- 29 -



below



- 30 -


















school environment








- 31 -
























- 32 -























tporfido
Text Box
BIRDS TAB13

- 33 -


A Overview







just that

B Bobolink and Owls

(i) Overview








201617





March 2016




- 34 -























(ii) Expertise







- 35 -









bird migrationrsquo





Evans Testimony









- 36 -







Evans Testimony


Evans Testimony

















- 37 -







to Altamont










estimated21



- 38 -




cross-examination


A I have not


A No I have not


A No I have not

Smallwood Testimony
















- 39 -




























- 40 -



























- 41 -
















(iii) Bobolink

About the Species










- 42 -





















killed







- 43 -






















island


- 44 -




















- 45 -























- 46 -














numbersrdquo













- 47 -






















Amherst Island







- 48 -





20088 (13392 + 6696)22



















- 49 -


m)
















- 50 -














and grazingrdquo











- 51 -
























- 52 -




this species

Bollinger Testimony























- 53 -


year











Island














- 54 -





















grasses etc) and




- 55 -



















the MNRF26





- 56 -



















specifically





- 57 -






















- 58 -















OMP and






- 59 -








Evans Testimony



















- 60 -










Wolfe Island33






Owls






- 61 -

























impacts to owls


- 62 -




























- 63 -



















- 64 -











between them















- 65 -














accumulation


No Mortality Risk




- 66 -



















ground







- 67 -








impact













tporfido
Text Box
BATS TAB13

- 68 -

C Bats

Overview



























- 69 -



























Reynolds WS para 15

- 70 -










Reynolds WS para 17









Reynolds Testimony








- 71 -

Reynolds Testimony








Reynolds WS para 18



habitat preference


Reynolds Testimony


experience


- 72 -


























- 73 -



or Northern Myotis







witness statement










- 74 -






habitatrdquo

Reynolds WS para 30





















- 75 -

























- 76 -






- 77 -










further stated



- 78 -




















- 79 -





near turbinesrdquo



species

Northern Myotis







Reynolds WS para 23








- 80 -

Little Brown Myotis











Myotis













be mortality now


- 81 -


























- 82 -

















Reynolds WS para 32



REA








- 83 -






















- 84 -




Reynolds Testimony




















- 85 -



























- 86 -







stated














- 87 -







tporfido
Text Box
HYROGEOLOGY TAB13

- 88 -


Overview


























- 89 -


documented data












drainage systems













- 90 -





























- 91 -











Hydrogeology








Cowell WS paras 2-8








- 92 -























- 93 -









Cowell WS para 22




the Project site

Cowell Testimony









- 94 -





















Cowell Testimony








- 95 -



A Yes




A Correct





terrain






Cowell Testimony







- 96 -




complex










- 97 -




























- 98 -















those results













- 99 -



discussed below


















trench








these effects

- 100 -


No Spills Risk
















tank











- 101 -


reaching the ground





























- 102 -




























- 103 -



























- 104 -

Hydrology Evidence





Stanfield WS pp 4-5






Stanfield Testimony















- 105 -



work
















Stanfield Testimony









- 106 -









Stanfield Testimony




not include







(i) dugout ponds or

- 107 -









survivalrdquo











water bodies

Stanfield Testimony







- 108 -





Project






followed




normally the spring





streambed


plain


channel



larvae


- 109 -


























- 110 -


















included

Stanfield Testimony



Investigation


- 111 -



water body




of Investigation

Stanfield Testimony














- 112 -



























- 113 -


by this discharge

























- 114 -























desk-top studies






- 115 -



Stanfield Testimony























- 116 -























tporfido
Text Box
TURTLES TAB13

- 117 -

E Turtles











habitat


the Project


hibernating












- 118 -





















Reserve









- 119 -











years43



















- 120 -













Turtle ecology








Road Ecology Group







- 121 -













Brooks WS para 25









potential foodrdquo




Hasler WS para 11

- 122 -

















submissions










- 123 -










Crowley WS para 23








Location as well










- 124 -

Brooks Testimony






















- 125 -



















- 126 -




Turtlerdquo








habitat

















- 127 -






























MNR GHDBT Document

- 128 -




























- 129 -







confirmed


















be present


- 130 -




























- 131 -







- 132 -

















swamps










- 133 -























- 134 -






























- 135 -




























- 136 -

























- 137 -





















- 138 -





























- 139 -





















- 140 -












A Right next to it






- 141 -









Project Location
















2006)rdquo

Brooks WS para 38

- 142 -





He stated












Marsh Wetlands

- 143 -

Brooks Testimony





purposes





















- 144 -














Crowley Testimony


- 145 -




















Appendix E






- 146 -






The Access Roads





roads





use












- 147 -

























- 148 -



by March)


para 77




















- 149 -



















other projects









- 150 -









392 above

The Operation Phase















- 151 -





road are even lower





Crowley Testimony







- 152 -




















- 153 -










right nowrdquo













lanewaysrdquo



in the fields


- 154 -



He stated


Brooks WS para 47






And he continued










- 155 -



























current Project



- 156 -



















densityrdquo

Brooks Testimony




- 157 -







stated that



is a problem

Crowley Testimony








- 158 -

Crowley Testimony





following





















- 159 -


























- 160 -
























- 161 -



Brooks Testimony








Brooks WS para 50





Turtle


- 162 -

The Operation Phase





















- 163 -


















the road widenings


- 164 -














Northcote Testimony







Project

Stewart Testimony






- 165 -


here

Stewart Testimony















to do so









Stewart Testimony

- 166 -





inside of the curve









- 167 -


Stewart Testimony



Stewart Testimony






Stewart Testimony









Stewart Testimony

- 168 -




























- 169 -


The Predation Issue





















Brooks Testimony




- 170 -












populationsrdquo

Crowley WS para 24






- 171 -


Crowley WS para 24






















- 172 -























Crowley Testimony





- 173 -







marsh complex






















- 174 -



might be the case



















- 175 -




















[para 262]








- 176 -



















- 177 -


turtles












Mr Nagle agreed)




dunesrdquo and






Islandrdquo

Brooks Testimony


- 178 -



Brooks Testimony





Nagle Testimony










Nagle Testimony











- 179 -










testimony

















- 180 -













stated











- 181 -












- 182 -

VI ORDER REQUESTED











Table of Contents

I OVERVIEW

II THE PROJECT




A Overview

B Birds

C Bats

D Hydrogeology

E Turtles

VI ORDER REQUESTED

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N

N


N


N


N


133560078 Design-A

133560078 Design-C000

133560078 Design-C001

133560078 Design-C002

133560078 Design-C003

133560078 Design-C004






















Plans




Sincerely


ERT Case No 15-084









i

TABLE OF CONTENTS

I OVERVIEW 1

II THE PROJECT 8




A Overview 33


C Bats 69


E Turtles 117







ERT Case No 15-084




I OVERVIEW














- 2 -





Health Appeal





community


















- 3 -

Bobolink and Owls









annually


















recover

- 4 -





















in this proceeding









- 5 -




























- 6 -






experts and




Turtle Habitat




















- 7 -

















project





- 8 -

II THE PROJECT










(hay and pasture)






- 9 -




the Tribunal






Same


Grounds for hearing










- 10 -






by the Project















- 11 -










tporfido
Text Box
HEALTH TAB13

- 12 -


Overview

















human health










- 13 -


health


























- 14 -


Corporation























hearing




- 15 -


























- 16 -

















- 17 -

















causal relationship










- 18 -





















following








- 19 -



wind turbines




of wind turbines














- 20 -




























- 21 -



many months later3















considered (para 4)



assessed (para 9)




- 22 -







(para 34)






















- 23 -





























- 24 -












period of 120 days5













- 25 -

















Ontario




- 26 -


















- 27 -


























- 28 -

Acoustic Report













Guideline (NPC-300)



- 29 -



below



- 30 -


















school environment








- 31 -
























- 32 -























tporfido
Text Box
BIRDS TAB13

- 33 -


A Overview







just that

B Bobolink and Owls

(i) Overview








201617





March 2016




- 34 -























(ii) Expertise







- 35 -









bird migrationrsquo





Evans Testimony









- 36 -







Evans Testimony


Evans Testimony

















- 37 -







to Altamont










estimated21



- 38 -




cross-examination


A I have not


A No I have not


A No I have not

Smallwood Testimony
















- 39 -




























- 40 -



























- 41 -
















(iii) Bobolink

About the Species










- 42 -





















killed







- 43 -






















island


- 44 -




















- 45 -























- 46 -














numbersrdquo













- 47 -






















Amherst Island







- 48 -





20088 (13392 + 6696)22



















- 49 -


m)
















- 50 -














and grazingrdquo











- 51 -
























- 52 -




this species

Bollinger Testimony























- 53 -


year











Island














- 54 -





















grasses etc) and




- 55 -



















the MNRF26





- 56 -



















specifically





- 57 -






















- 58 -















OMP and






- 59 -








Evans Testimony



















- 60 -










Wolfe Island33






Owls






- 61 -

























impacts to owls


- 62 -




























- 63 -



















- 64 -











between them















- 65 -














accumulation


No Mortality Risk




- 66 -



















ground







- 67 -








impact













tporfido
Text Box
BATS TAB13

- 68 -

C Bats

Overview



























- 69 -



























Reynolds WS para 15

- 70 -










Reynolds WS para 17









Reynolds Testimony








- 71 -

Reynolds Testimony








Reynolds WS para 18



habitat preference


Reynolds Testimony


experience


- 72 -


























- 73 -



or Northern Myotis







witness statement










- 74 -






habitatrdquo

Reynolds WS para 30





















- 75 -

























- 76 -






- 77 -










further stated



- 78 -




















- 79 -





near turbinesrdquo



species

Northern Myotis







Reynolds WS para 23








- 80 -

Little Brown Myotis











Myotis













be mortality now


- 81 -


























- 82 -

















Reynolds WS para 32



REA








- 83 -






















- 84 -




Reynolds Testimony




















- 85 -



























- 86 -







stated














- 87 -







tporfido
Text Box
HYROGEOLOGY TAB13

- 88 -


Overview


























- 89 -


documented data












drainage systems













- 90 -





























- 91 -











Hydrogeology








Cowell WS paras 2-8








- 92 -























- 93 -









Cowell WS para 22




the Project site

Cowell Testimony









- 94 -





















Cowell Testimony








- 95 -



A Yes




A Correct





terrain






Cowell Testimony







- 96 -




complex










- 97 -




























- 98 -















those results













- 99 -



discussed below


















trench








these effects

- 100 -


No Spills Risk
















tank











- 101 -


reaching the ground





























- 102 -




























- 103 -



























- 104 -

Hydrology Evidence





Stanfield WS pp 4-5






Stanfield Testimony















- 105 -



work
















Stanfield Testimony









- 106 -









Stanfield Testimony




not include







(i) dugout ponds or

- 107 -









survivalrdquo











water bodies

Stanfield Testimony







- 108 -





Project






followed




normally the spring





streambed


plain


channel



larvae


- 109 -


























- 110 -


















included

Stanfield Testimony



Investigation


- 111 -



water body




of Investigation

Stanfield Testimony














- 112 -



























- 113 -


by this discharge

























- 114 -























desk-top studies






- 115 -



Stanfield Testimony























- 116 -























tporfido
Text Box
TURTLES TAB13

- 117 -

E Turtles











habitat


the Project


hibernating












- 118 -





















Reserve









- 119 -











years43



















- 120 -













Turtle ecology








Road Ecology Group







- 121 -













Brooks WS para 25









potential foodrdquo




Hasler WS para 11

- 122 -

















submissions










- 123 -










Crowley WS para 23








Location as well










- 124 -

Brooks Testimony






















- 125 -



















- 126 -




Turtlerdquo








habitat

















- 127 -






























MNR GHDBT Document

- 128 -




























- 129 -







confirmed


















be present


- 130 -




























- 131 -







- 132 -

















swamps










- 133 -























- 134 -






























- 135 -




























- 136 -

























- 137 -





















- 138 -





























- 139 -





















- 140 -












A Right next to it






- 141 -









Project Location
















2006)rdquo

Brooks WS para 38

- 142 -





He stated












Marsh Wetlands

- 143 -

Brooks Testimony





purposes





















- 144 -














Crowley Testimony


- 145 -




















Appendix E






- 146 -






The Access Roads





roads





use












- 147 -

























- 148 -



by March)


para 77




















- 149 -



















other projects









- 150 -









392 above

The Operation Phase















- 151 -





road are even lower





Crowley Testimony







- 152 -




















- 153 -










right nowrdquo













lanewaysrdquo



in the fields


- 154 -



He stated


Brooks WS para 47






And he continued










- 155 -



























current Project



- 156 -



















densityrdquo

Brooks Testimony




- 157 -







stated that



is a problem

Crowley Testimony








- 158 -

Crowley Testimony





following





















- 159 -


























- 160 -
























- 161 -



Brooks Testimony








Brooks WS para 50





Turtle


- 162 -

The Operation Phase





















- 163 -


















the road widenings


- 164 -














Northcote Testimony







Project

Stewart Testimony






- 165 -


here

Stewart Testimony















to do so









Stewart Testimony

- 166 -





inside of the curve









- 167 -


Stewart Testimony



Stewart Testimony






Stewart Testimony









Stewart Testimony

- 168 -




























- 169 -


The Predation Issue





















Brooks Testimony




- 170 -












populationsrdquo

Crowley WS para 24






- 171 -


Crowley WS para 24






















- 172 -























Crowley Testimony





- 173 -







marsh complex






















- 174 -



might be the case



















- 175 -




















[para 262]








- 176 -



















- 177 -


turtles












Mr Nagle agreed)




dunesrdquo and






Islandrdquo

Brooks Testimony


- 178 -



Brooks Testimony





Nagle Testimony










Nagle Testimony











- 179 -










testimony

















- 180 -













stated











- 181 -












- 182 -

VI ORDER REQUESTED











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N

N


N


N


N




I OVERVIEW

II THE PROJECT




A Overview

B Birds

C Bats

D Hydrogeology

E Turtles

VI ORDER REQUESTED


133560078 Design-A

133560078 Design-C000

133560078 Design-C001

133560078 Design-C002

133560078 Design-C003

133560078 Design-C004

i

TABLE OF CONTENTS

I OVERVIEW 1

II THE PROJECT 8




A Overview 33


C Bats 69


E Turtles 117







ERT Case No 15-084




I OVERVIEW














- 2 -





Health Appeal





community


















- 3 -

Bobolink and Owls









annually


















recover

- 4 -





















in this proceeding









- 5 -




























- 6 -






experts and




Turtle Habitat




















- 7 -

















project





- 8 -

II THE PROJECT










(hay and pasture)






- 9 -




the Tribunal






Same


Grounds for hearing










- 10 -






by the Project















- 11 -










tporfido
Text Box
HEALTH TAB13

- 12 -


Overview

















human health










- 13 -


health


























- 14 -


Corporation























hearing




- 15 -


























- 16 -

















- 17 -

















causal relationship










- 18 -





















following








- 19 -



wind turbines




of wind turbines














- 20 -




























- 21 -



many months later3















considered (para 4)



assessed (para 9)




- 22 -







(para 34)






















- 23 -





























- 24 -












period of 120 days5













- 25 -

















Ontario




- 26 -


















- 27 -


























- 28 -

Acoustic Report













Guideline (NPC-300)



- 29 -



below



- 30 -


















school environment








- 31 -
























- 32 -























tporfido
Text Box
BIRDS TAB13

- 33 -


A Overview







just that

B Bobolink and Owls

(i) Overview








201617





March 2016




- 34 -























(ii) Expertise







- 35 -









bird migrationrsquo





Evans Testimony









- 36 -







Evans Testimony


Evans Testimony

















- 37 -







to Altamont










estimated21



- 38 -




cross-examination


A I have not


A No I have not


A No I have not

Smallwood Testimony
















- 39 -




























- 40 -



























- 41 -
















(iii) Bobolink

About the Species










- 42 -





















killed







- 43 -






















island


- 44 -




















- 45 -























- 46 -














numbersrdquo













- 47 -






















Amherst Island







- 48 -





20088 (13392 + 6696)22



















- 49 -


m)
















- 50 -














and grazingrdquo











- 51 -
























- 52 -




this species

Bollinger Testimony























- 53 -


year











Island














- 54 -





















grasses etc) and




- 55 -



















the MNRF26





- 56 -



















specifically





- 57 -






















- 58 -















OMP and






- 59 -








Evans Testimony



















- 60 -










Wolfe Island33






Owls






- 61 -

























impacts to owls


- 62 -




























- 63 -



















- 64 -











between them















- 65 -














accumulation


No Mortality Risk




- 66 -



















ground







- 67 -








impact













tporfido
Text Box
BATS TAB13

- 68 -

C Bats

Overview



























- 69 -



























Reynolds WS para 15

- 70 -










Reynolds WS para 17









Reynolds Testimony








- 71 -

Reynolds Testimony








Reynolds WS para 18



habitat preference


Reynolds Testimony


experience


- 72 -


























- 73 -



or Northern Myotis







witness statement










- 74 -






habitatrdquo

Reynolds WS para 30





















- 75 -

























- 76 -






- 77 -










further stated



- 78 -




















- 79 -





near turbinesrdquo



species

Northern Myotis







Reynolds WS para 23








- 80 -

Little Brown Myotis











Myotis













be mortality now


- 81 -


























- 82 -

















Reynolds WS para 32



REA








- 83 -






















- 84 -




Reynolds Testimony




















- 85 -



























- 86 -







stated














- 87 -







tporfido
Text Box
HYROGEOLOGY TAB13

- 88 -


Overview


























- 89 -


documented data












drainage systems













- 90 -





























- 91 -











Hydrogeology








Cowell WS paras 2-8








- 92 -























- 93 -









Cowell WS para 22




the Project site

Cowell Testimony









- 94 -





















Cowell Testimony








- 95 -



A Yes




A Correct





terrain






Cowell Testimony







- 96 -




complex










- 97 -




























- 98 -















those results













- 99 -



discussed below


















trench








these effects

- 100 -


No Spills Risk
















tank











- 101 -


reaching the ground





























- 102 -




























- 103 -



























- 104 -

Hydrology Evidence





Stanfield WS pp 4-5






Stanfield Testimony















- 105 -



work
















Stanfield Testimony









- 106 -









Stanfield Testimony




not include







(i) dugout ponds or

- 107 -









survivalrdquo











water bodies

Stanfield Testimony







- 108 -





Project






followed




normally the spring





streambed


plain


channel



larvae


- 109 -


























- 110 -


















included

Stanfield Testimony



Investigation


- 111 -



water body




of Investigation

Stanfield Testimony














- 112 -



























- 113 -


by this discharge

























- 114 -























desk-top studies






- 115 -



Stanfield Testimony























- 116 -























tporfido
Text Box
TURTLES TAB13

- 117 -

E Turtles











habitat


the Project


hibernating












- 118 -





















Reserve









- 119 -











years43



















- 120 -













Turtle ecology








Road Ecology Group







- 121 -













Brooks WS para 25









potential foodrdquo




Hasler WS para 11

- 122 -

















submissions










- 123 -










Crowley WS para 23








Location as well










- 124 -

Brooks Testimony






















- 125 -



















- 126 -




Turtlerdquo








habitat

















- 127 -






























MNR GHDBT Document

- 128 -




























- 129 -







confirmed


















be present


- 130 -




























- 131 -







- 132 -

















swamps










- 133 -























- 134 -






























- 135 -




























- 136 -

























- 137 -





















- 138 -





























- 139 -





















- 140 -












A Right next to it






- 141 -









Project Location
















2006)rdquo

Brooks WS para 38

- 142 -





He stated












Marsh Wetlands

- 143 -

Brooks Testimony





purposes





















- 144 -














Crowley Testimony


- 145 -




















Appendix E






- 146 -






The Access Roads





roads





use












- 147 -

























- 148 -



by March)


para 77




















- 149 -



















other projects









- 150 -









392 above

The Operation Phase















- 151 -





road are even lower





Crowley Testimony







- 152 -




















- 153 -










right nowrdquo













lanewaysrdquo



in the fields


- 154 -



He stated


Brooks WS para 47






And he continued










- 155 -



























current Project



- 156 -



















densityrdquo

Brooks Testimony




- 157 -







stated that



is a problem

Crowley Testimony








- 158 -

Crowley Testimony





following





















- 159 -


























- 160 -
























- 161 -



Brooks Testimony








Brooks WS para 50





Turtle


- 162 -

The Operation Phase





















- 163 -


















the road widenings


- 164 -














Northcote Testimony







Project

Stewart Testimony






- 165 -


here

Stewart Testimony















to do so









Stewart Testimony

- 166 -





inside of the curve









- 167 -


Stewart Testimony



Stewart Testimony






Stewart Testimony









Stewart Testimony

- 168 -




























- 169 -


The Predation Issue





















Brooks Testimony




- 170 -












populationsrdquo

Crowley WS para 24






- 171 -


Crowley WS para 24






















- 172 -























Crowley Testimony





- 173 -







marsh complex






















- 174 -



might be the case



















- 175 -




















[para 262]








- 176 -



















- 177 -


turtles












Mr Nagle agreed)




dunesrdquo and






Islandrdquo

Brooks Testimony


- 178 -



Brooks Testimony





Nagle Testimony










Nagle Testimony











- 179 -










testimony

















- 180 -













stated











- 181 -












- 182 -

VI ORDER REQUESTED











Table of Contents

I OVERVIEW

II THE PROJECT




A Overview

B Birds

C Bats

D Hydrogeology

E Turtles

VI ORDER REQUESTED

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N

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N


N


N


133560078 Design-A

133560078 Design-C000

133560078 Design-C001

133560078 Design-C002

133560078 Design-C003

133560078 Design-C004






















Plans




Sincerely


ERT Case No 15-084









i

TABLE OF CONTENTS

I OVERVIEW 1

II THE PROJECT 8




A Overview 33


C Bats 69


E Turtles 117







ERT Case No 15-084




I OVERVIEW














- 2 -





Health Appeal





community


















- 3 -

Bobolink and Owls









annually


















recover

- 4 -





















in this proceeding









- 5 -




























- 6 -






experts and




Turtle Habitat




















- 7 -

















project





- 8 -

II THE PROJECT










(hay and pasture)






- 9 -




the Tribunal






Same


Grounds for hearing










- 10 -






by the Project















- 11 -










tporfido
Text Box
HEALTH TAB13

- 12 -


Overview

















human health










- 13 -


health


























- 14 -


Corporation























hearing




- 15 -


























- 16 -

















- 17 -

















causal relationship










- 18 -





















following








- 19 -



wind turbines




of wind turbines














- 20 -




























- 21 -



many months later3















considered (para 4)



assessed (para 9)




- 22 -







(para 34)






















- 23 -





























- 24 -












period of 120 days5













- 25 -

















Ontario




- 26 -


















- 27 -


























- 28 -

Acoustic Report













Guideline (NPC-300)



- 29 -



below



- 30 -


















school environment








- 31 -
























- 32 -























tporfido
Text Box
BIRDS TAB13

- 33 -


A Overview







just that

B Bobolink and Owls

(i) Overview








201617





March 2016




- 34 -























(ii) Expertise







- 35 -









bird migrationrsquo





Evans Testimony









- 36 -







Evans Testimony


Evans Testimony

















- 37 -







to Altamont










estimated21



- 38 -




cross-examination


A I have not


A No I have not


A No I have not

Smallwood Testimony
















- 39 -




























- 40 -



























- 41 -
















(iii) Bobolink

About the Species










- 42 -





















killed







- 43 -






















island


- 44 -




















- 45 -























- 46 -














numbersrdquo













- 47 -






















Amherst Island







- 48 -





20088 (13392 + 6696)22



















- 49 -


m)
















- 50 -














and grazingrdquo











- 51 -
























- 52 -




this species

Bollinger Testimony























- 53 -


year











Island














- 54 -





















grasses etc) and




- 55 -



















the MNRF26





- 56 -



















specifically





- 57 -






















- 58 -















OMP and






- 59 -








Evans Testimony



















- 60 -










Wolfe Island33






Owls






- 61 -

























impacts to owls


- 62 -




























- 63 -



















- 64 -











between them















- 65 -














accumulation


No Mortality Risk




- 66 -



















ground







- 67 -








impact













tporfido
Text Box
BATS TAB13

- 68 -

C Bats

Overview



























- 69 -



























Reynolds WS para 15

- 70 -










Reynolds WS para 17









Reynolds Testimony








- 71 -

Reynolds Testimony








Reynolds WS para 18



habitat preference


Reynolds Testimony


experience


- 72 -


























- 73 -



or Northern Myotis







witness statement










- 74 -






habitatrdquo

Reynolds WS para 30





















- 75 -

























- 76 -






- 77 -










further stated



- 78 -




















- 79 -





near turbinesrdquo



species

Northern Myotis







Reynolds WS para 23








- 80 -

Little Brown Myotis











Myotis













be mortality now


- 81 -


























- 82 -

















Reynolds WS para 32



REA








- 83 -






















- 84 -




Reynolds Testimony




















- 85 -



























- 86 -







stated














- 87 -







tporfido
Text Box
HYROGEOLOGY TAB13

- 88 -


Overview


























- 89 -


documented data












drainage systems













- 90 -





























- 91 -











Hydrogeology








Cowell WS paras 2-8








- 92 -























- 93 -









Cowell WS para 22




the Project site

Cowell Testimony









- 94 -





















Cowell Testimony








- 95 -



A Yes




A Correct





terrain






Cowell Testimony







- 96 -




complex










- 97 -




























- 98 -















those results













- 99 -



discussed below


















trench








these effects

- 100 -


No Spills Risk
















tank











- 101 -


reaching the ground





























- 102 -




























- 103 -



























- 104 -

Hydrology Evidence





Stanfield WS pp 4-5






Stanfield Testimony















- 105 -



work
















Stanfield Testimony









- 106 -









Stanfield Testimony




not include







(i) dugout ponds or

- 107 -









survivalrdquo











water bodies

Stanfield Testimony







- 108 -





Project






followed




normally the spring





streambed


plain


channel



larvae


- 109 -


























- 110 -


















included

Stanfield Testimony



Investigation


- 111 -



water body




of Investigation

Stanfield Testimony














- 112 -



























- 113 -


by this discharge

























- 114 -























desk-top studies






- 115 -



Stanfield Testimony























- 116 -























tporfido
Text Box
TURTLES TAB13

- 117 -

E Turtles











habitat


the Project


hibernating












- 118 -





















Reserve









- 119 -











years43



















- 120 -













Turtle ecology








Road Ecology Group







- 121 -













Brooks WS para 25









potential foodrdquo




Hasler WS para 11

- 122 -

















submissions










- 123 -










Crowley WS para 23








Location as well










- 124 -

Brooks Testimony






















- 125 -



















- 126 -




Turtlerdquo








habitat

















- 127 -






























MNR GHDBT Document

- 128 -




























- 129 -







confirmed


















be present


- 130 -




























- 131 -







- 132 -

















swamps










- 133 -























- 134 -






























- 135 -




























- 136 -

























- 137 -





















- 138 -





























- 139 -





















- 140 -












A Right next to it






- 141 -









Project Location
















2006)rdquo

Brooks WS para 38

- 142 -





He stated












Marsh Wetlands

- 143 -

Brooks Testimony





purposes





















- 144 -














Crowley Testimony


- 145 -




















Appendix E






- 146 -






The Access Roads





roads





use












- 147 -

























- 148 -



by March)


para 77




















- 149 -



















other projects









- 150 -









392 above

The Operation Phase















- 151 -





road are even lower





Crowley Testimony







- 152 -




















- 153 -










right nowrdquo













lanewaysrdquo



in the fields


- 154 -



He stated


Brooks WS para 47






And he continued










- 155 -



























current Project



- 156 -



















densityrdquo

Brooks Testimony




- 157 -







stated that



is a problem

Crowley Testimony








- 158 -

Crowley Testimony





following





















- 159 -


























- 160 -
























- 161 -



Brooks Testimony








Brooks WS para 50





Turtle


- 162 -

The Operation Phase





















- 163 -


















the road widenings


- 164 -














Northcote Testimony







Project

Stewart Testimony






- 165 -


here

Stewart Testimony















to do so









Stewart Testimony

- 166 -





inside of the curve









- 167 -


Stewart Testimony



Stewart Testimony






Stewart Testimony









Stewart Testimony

- 168 -




























- 169 -


The Predation Issue





















Brooks Testimony




- 170 -












populationsrdquo

Crowley WS para 24






- 171 -


Crowley WS para 24






















- 172 -























Crowley Testimony





- 173 -







marsh complex






















- 174 -



might be the case



















- 175 -




















[para 262]








- 176 -



















- 177 -


turtles












Mr Nagle agreed)




dunesrdquo and






Islandrdquo

Brooks Testimony


- 178 -



Brooks Testimony





Nagle Testimony










Nagle Testimony











- 179 -










testimony

















- 180 -













stated











- 181 -












- 182 -

VI ORDER REQUESTED











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N

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I OVERVIEW

II THE PROJECT




A Overview

B Birds

C Bats

D Hydrogeology

E Turtles

VI ORDER REQUESTED


133560078 Design-A

133560078 Design-C000

133560078 Design-C001

133560078 Design-C002

133560078 Design-C003

133560078 Design-C004

From: APAI To: Cc: Subject: Date: Attachments: Closing ...

Documents

Transcript of From: APAI To: Cc: Subject: Date: Attachments: Closing ...