Ostrander Point Wind Energy Project permit revoked: Decision

OVERVIEW

[1] This appeal concerns a renewable energy approval issued by the Director, Ministry of the Environment ("MOE") on December 20, 2012 to put nine wind turbine generators with a total installed nameplate capacity of 22.5 megawatts (MW) and supporting facilities on 324 hectares of provincial Crown land in Prince Edward County. This is the first wind project approval in Ontario that is proposed to be located entirely on Crown land, known as the Ostrander Point Crown Land Block.

[2] The 135 metre ("m") high turbine towers would require concrete platforms, 5.4 kilometres of on-site access roads (in addition to the existing roads), underground cabling and overhead distribution lines, and a parking/maintenance yard at the north end, adjacent to a 25 mega-volt-ampere transformer substation for connection to the Hydro One grid. In keeping with the definitions used in the Approval Holder‟s application materials, the Ostrander Point Wind Energy Park will be referred to as the "Project". The proposed location of the Project on the Ostrander Point Crown Land Block is shown on the map attached as Appendix B (relevant legislation and rules are labeled Appendix A). The "Subject Property", also referred to in these reasons as the "Site", is synonymous with all of the Ostrander Point Crown Land Block.

[3] The Crown land would be leased to Ostrander Point GP Inc., as general partner for and on behalf of Ostrander Point Wind Energy LP (collectively, the "Approval Holder") for 25 years, with one extension for a further term of 15 years, via a "Commercial Wind Energy Lease".

[4] The Ostrander Point Crown Land Block is about 15 km south of Picton. It is roughly bordered on the north by Helmer Road, on the west by Petticoat Point Trail, on the east by Ostrander Point Road, and on the south by Lake Ontario. The Project would be located on the south shore of Prince Edward County, which is a peninsula that extends into the north east portion of Lake Ontario, approximately in the middle of the peninsula. At the eastern end of the peninsula is the Prince Edward Point National Wildlife Area, which hosts the Prince Edward Point Bird Observatory ("PEPtBO"), and Point Petre Provincial Wildlife Area is to the west. The Prince Edward County South Shore ("PECSS") peninsula is shown on Appendix C.

[5] The south shore of Prince Edward County is one of the least developed areas in the County with a low population, a mixture of year-round and seasonal residences, very few commercial operations and virtually no industrial operations. The Subject Property is relatively flat, with predominantly low lying vegetation, with a provincially significant wetland in the southeast corner and seasonal wetlands scattered throughout, and other provincially significant as well as seasonal wetlands in the vicinity, and is bounded by Lake Ontario to the south.

[6] On January 4, 2013, Alliance to Protect Prince Edward County ("APPEC") and Prince Edward County Field Naturalists ("PECFN") filed appeals for a hearing before the Environmental Review Tribunal (the "Tribunal") pursuant to s. 142.1 of the Environmental Protection Act ("EPA").

[7] During the course of the 40 day hearing of this matter, the Tribunal received extensive evidence, including 185 exhibits and testimony of 31 expert witnesses, and submissions on both branches of the test that applies to a renewable energy appeal under s.145.2.1 of the EPA. They are: whether engaging in Project in accordance with the renewable energy approval (the "REA") will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.

[8] For the reasons given below, the Tribunal concludes that the appellant citizen group APPEC has not met the first branch of the test regarding harm to human health because no causal link has been established between wind turbines and human health effects at the 550 m setback distance required under this REA.

[9] Regarding the second branch of the appeal test, for the reasons outlined below, the Tribunal concludes that the appellant citizen group PECFN has shown, on a balance of probabilities, that engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment. This is on the basis of findings that such harm will be caused to Blanding‟s turtle.

[10] As the Tribunal has determined that engaging in the Project in accordance with the REA will cause the harm referred to in s. 145.2.1(2)(b) of the EPA, it may, under s. 145.2.1(4) of the EPA,

(a) revoke the decision of the Director;
(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with the EPA and the regulations; or
(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

[11] The Tribunal revokes the decision of the Director.