Remedy to Challenge of Settlers’ Landing Wind Project Presented

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On Monday, August 22nd, the Environmental Review Tribunal (ERT) met at the Pontypool Community centre to hear final submissions from Capstone Infrastructure outlining their proposed changes to address concerns expressed by the tribunal over the possible creation of “serious and irreversible harm” to the surrounding woodland. After the10 megawatt project west of Pontypool was approved, local opposition formed a group to fight the project and launched an appeal in May 2015 on the grounds that the project will cause serious harm to human health and serious and irreversible harm to plant life, animal life or the natural environment. Last November the group learned that their appeal was successful and the project would require significant revisions in order to proceed.

It is not uncommon for unhappy residents to launch objections to wind project proposals, but the result of this appeal was very rare. Of the roughly 40 wind projects approved in Ontario, in only 3 instances has an appeal moved forward. The Approval Holder has the opportunity to revise the project at a “remedy hearing” to alleviate the concerns affirmed by the tribunal in order to retain the right to proceed with the project. The first remedy hearing concerned the Ostranders’ Point wind project, and on June 6th, the ERT cancelled the nine turbine project. The Pontypool hearing was the second remedy hearing.

The troublesome section of the project surrounds 2 of the 5 proposed turbines and one of the access roads which cuts the natural woodland into two sections. The Tribunal had ruled that turbines 3 and 5 would cause serious harm to a significant woodland habitat.

Through their lawyer John Terry, the wind company outlined its proposal to address these concerns which began with the elimination of one of the two problematic turbines, thereby eliminating one of the access roads. The remedy also addressed concerns about proposed clear cutting, reducing the area to be cleared from an original 6% of the area down to 2.2%, and widening an existing farm equipment path to reduce the impact of turbine 3. To address the concerns surrounding the replacement of a 40 year old forest with whips and seedlings (5 cm tall), the remedy proposed a 2.7 hectare area of intensely planted trees, including 35 mature specimens over 20 years old.   The suggested planting would consist of a 75% deciduous/25% coniferous mix, which the wind company submitted would actually improve the quality of the existing woodlot. They also proposed seeding open areas with native ground cover crops.

Throughout his presentation, Terry frequently provided suggestions to the Tribunal on how they should proceed with their ruling, discrediting the appellant’s submission on the basis that it contained assertions that were unsupported by expert testimony. He went as far as to suggest it was “not fair” for the tribunal to consider arguments that were made too late to be subject to the wind company’s expert cross-examination, suggesting that the Tribunal should only consider the expert testimony presented at the initial hearings.

Provincial representative Nadine Harris suggested that the remedy could raise new issues that had not yet been analysed, and reminded the Tribunal that they were not bound to the remedy proposal in its entirety, but could “pick and choose” among its remedial components.

Representing the appellants, Graham Andrews applauded the remedy plan, but said it did not go far enough. They are seeking the elimination of turbine 3 as well as turbine 5. Regarding the extended reforestation of the area, he suggested that if these trees survived, it would be many years until the existing forest would approach its current state.   The main point of his argument centres on the fact that the woodland lies within the provincially-protected Oak Ridges Moraine, and found it difficult to believe the project would create a habitat that was better than the current one.

The final decision on the future of this project will be announced September 19th. KG

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