STELLA – The two sides in the legal battle over the Amherst Island wind energy project laid out their final submissions Tuesday.
The Association to Protect Amherst Island (APAI) is seeking the revocation of a conditional approval of Windlectric’s wind power project.
The hearing comes after the association appealed an August decision by the Ontario government that gave the project conditional approval. The Amherst Island Island Environmental Review Tribunal is expected to be the largest such hearing since the process was established.
Island resident Amy Caughey led off the final submissions by arguing that the negative effects on children’s health have not been studied collectively.
Caughey said the proximity of a proposed concrete batch plant near Amherst Island Public School would hurt pupils’ health.
But Caughey said such effects can’t properly be studied unless the children are first exposed to the dust and noise from the plant and the changes in their health documented.
“In Canada, in 2016, we do not permit such trials on children,” she said. “The burden of proof cannot fall on a parent.”
APAI’s lawyer, Eric Gillespie, said the evidence has met the burden of proof needed to show wind turbines are detrimental to human health.
“This case advances the health claims further than any other case this tribunal has heard,” he said, before outlining the key evidence his witnesses presented about the potential negative impacts of the wind turbines.
Gillespie said expert testimony showed Amherst Island is home to many species – birds, bats and turtles – that could be negatively affected by the project.
“This island is a stronghold for species that is under pressure,” he said of the local bobolink population.
Gillespie saved his final submission for the Blanding’s turtle, which has taken a special place in ERTs in this area.
The closing of the Amherst Island ERT came the day after a similar process rejected a wind energy plan for Prince Edward County.
On Monday, an ERT upheld an appeal of a nine-turbine project by the Prince Edward County Field Naturalists (PECFN), saying the installation of gates on access roads won’t adequately protect the population or habitat of Blanding’s turtles.
Gillespie said island residents called as witnesses have testified to have seen the turtle on the island.
While the Stantec report showed turtle habitat limited to coastal marshes, about 30 per cent of the turtle sighting have been in other parts of the island.
Since the turtles don’t go more than 250 metres from their habitat to nest, Gillespie said either one-third of the island’s turtles were “Kenyan Olympic turtles that run all over the place” or there is turtle habitat in other parts of the island.
“If you are going to keep denying that there is other habitat out there, you were not protecting anything,” he said.
Gillespie said the addition of gravel access roads will increase the potential of turtles getting killed there through collision, predation and poaching.
“If you kill one female turtle every year, year and a half, you will extirpate the species,” he said.
With the prominence of the Blanding’s turtle in this case and the Ostrander Point ERT, Arlen Sternberg, a lawyer for Windlectric Inc., focused much of his closing submission on the turtle.
Sternberg said APAI had not met the legal standard to have the project cancelled.
He said there is no evidence of regular, sustained Blanding’s turtle presence in the wind turbine project area, nor is there evidence that the project would harm the turtles enough to damage the island’s population.
Sternberg said the turtle is largely an aquatic species and nests close to water, and grassland fields, which cover much of the island, are not suitable to nesting.
Stantec Consulting, the company hired by Windlectric to conduct environmental surveys of the island, spent 800 hours of field work over five years where the turbines and access roads are to be built, Sternberg said.
Eighteen biologists surveyed within 250 metres of proposed turbine locations and last year conducted 10 surveys specifically looking for turtles, he said.
That work produced no Blanding’s turtles or nest sightings in the project area.
“If Blanding’s turtles had any meaningful presence in those fields, they would have been seen,” Sternberg said.
The majority of the Blanding’s turtle sightings have been close to the coastal marshes, he added.
Of the 62 sightings, 44 were close to the coastal marshes, and 33 of the sightings bordered the Long Point Marsh.
Almost all – 54 out of 62 – were between late May and early July when the turtles were nesting, he said.
Sternberg rejected Gillespie’s suggestion that there are more wetlands or fish habitat on the island that provide more habitat for the Blanding’s turtle.
While turtles usually nest within 250 metres of water or wetland habitat, Sternberg said they don’t always do that.
“Occasionally, turtles go on longer nesting forays,” he said.
The new access roads are to be built on private property in grassland farm fields, so it is highly unlikely that turtles will cross those fields to nest on the roads.
APAI made a leap, Sternberg said, from stating there could be turtles in the project area to there being turtles killed on roads.
“Their case falls because of it,” he said.
Sternberg said between Long Point Marsh, Nut Island Duck Club Marsh and Webb’s Bay Marsh there are 600 hectares of very good Blanding’s turtle habitat on the island. All of those wetlands are outside the project location and the coastal dunes are on the opposite side of wetlands from the closest project component.
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