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The Environmental Review Tribunal has issued another decision approving a 45 turbine wind farm, but strongly recommended that the proponent defer or relocate the two turbines within 800 metres of a bald eagles’ nest. Lewis v. MOE, 13-044 is an appeal from a Renewable Energy Approval Number 2494-94QQ97 (the “REA”), issued by the Director, Ministry of the Environment (“MOE”), to Bornish Wind LP, as a general partner for and on behalf of Bornish Wind Energy Centre (the “Approval Holder”) under s. 47.5 of the Environmental Protection Act (“EPA”). The Bornish wind farm will be a Class 4 wind facility with 45 wind turbine generators, with a total name plate capacity of 72.9 megawatts (the “Project”), located in the Municipality of North Middlesex, Middlesex County, Ontario.

On May 13, 2013, Robert Lewis (Case No. 13-044) and the Municipality of North Middlesex (Case No. 13-045) filed separate appeals for a hearing before the Tribunal pursuant to s. 142.1 of the EPA. The Municipality filed its appeal on the basis of harm to human health and Mr. Lewis filed his appeal on the basis of harm to the environment, particularly an eagles’ nest within 800 metres of two of the turbines.

The Tribunal dismissed the human health argument, as it has in all previous cases, as the evidence of claimed harm does not meet the statutory test. But the Tribunal found there was good reason for concern about the potential effect of the wind farm on the eagles’ nest. This did not meet the statutory test, so they were obliged to approve the wind farm. However, the Tribunal strongly recommended that the proponent defer the two turbines within 800 m. of the nest, and obtain much evidence that the eagles would be unaffected before building those two particular turbines.

Wind turbines and eagles

The Tribunal said:  

[22] The approach of maintaining existing habitats is well supported in Ontario laws and policies respecting natural heritage. … Where possible, decisions should attempt to maintain existing features that are not easily recreated rather than proceeding too quickly with a relocation, compensation or restoration plan that may not work completely.

[23] In general, species at risk, including extirpated, endangered, threatened, and special concern species, receive added attention in conservation efforts. Their status is also highly relevant in assessing serious and irreversible harm under the EPA. … It is not enough for the Ministry of Natural Resources to sign off on the project; the Tribunal will make its own decision about the impact of a project on an endangered or threatened species, or a species of special concern. And physical harm to the eagles or to their overall population is not required. For bald eagles, given their special status, disturbance of this single pair may be enough:  

[56] …Will the Project affect the eagles’ behaviour, including displacement from the breeding site and/or loss of surrounding habitat? Indeed, it is a question that is the subject of a behavioural study to be conducted by the Approval Holder this year. It is currently an open question as to how far the tertiary habitat for this nesting pair extends. Two potential turbines are proposed within 800 m of the nest, which is the radius of potential tertiary habitat as per the Bald Eagle Guidelines. … However, there was no adequate evidence that the eagles will be disturbed.

[67] … it cannot be said that there has been any proof that there will be harm to these eagles or their habitat, regardless of whether the two proposed turbines nearest the nest are in fact built. Taken at its highest, the evidence brought forward by Mr. Lewis (largely through cross-examination) is that there is some potential for harm to the eagle pair’s habitat. It does not rise to the level of proof required by the statute. …  

[69] … the Tribunal concludes that there may be harm to the eagles or their habitat if there is construction of turbines in the tertiary zone and that the tertiary zone may extend to 800 m when there is a direct line of sight…  

[76] … there is a potential for harm from these two turbines and it is not clear that the current limited duration field studies will sufficiently eliminate that potential for harm. While the Approval Holder is not “expecting” any harm to result, the possibility of harm remains. …

[79] … there is a perception by some that renewable energy projects take precedence over everything else. They should not … Here, the Tribunal recommends that the Approval Holder not attempt to immediately utilize condition K5(2) of the REA and build the two contested turbines based on a short behavioural study. … Relocating or postponing construction of these two turbines would also allow more behavioural studies to be undertaken. … Further study could provide better information in determining the tertiary habitat zone and deciding whether to build the two turbines in question. …  

[81] There is no need for the Approval Holder to jeopardize that community goodwill or the eagles themselves by placing two turbines in the potential tertiary habitat of this nesting pair without longer-term data on the pair’s behaviour in a newly modified landscape (i.e., one where the rest of this Project has been built, and any neighbouring projects). While the Tribunal does not have the statutory authority in these circumstances to alter condition K5(2) to require more in-depth longer term study in the absence of proof of harm from the construction of two turbines within 800 m of the nest within the meaning of the EPA test, it does recommend to the Approval Holder that it not immediately build the two turbines on the basis of a short duration behavioural study.”

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