White Pines Wind Project ERT Hearing – December 15, 2015

Report on the ERT Hearing on the White Pines Wind Project – Dec. 15, 2015
By Paula Peel, APPEC

On Day 21 the Environmental Review Tribunal (ERT) heard the last witness in the appeal of the White Pines wind project.

APPEC tried to call three Reply Witnesses: Dr. Shawn Smallwood, an expert in avian wildlife behaviour and conservation; Robert McEwen, P. Eng., a structural engineer; and Kari Gunson, a road ecologist. Mr. McEwen and Ms. Gunson were intended to respond to WPD’s witness Shawn Taylor, who had done a survey of municipal roads on the day before he testified. Eric Gillespie, counsel for APPEC, asked the Tribunal either to disallow the new evidence collected at the 11th hour or to allow APPEC an opportunity to respond. Mr. Gillespie argued that each party should have an equal opportunity to reply to the full submission of the other.

Both MOECC counsel Andrew Weretelnyck and WPD counsel Patrick Duffy objected to the admissibility of Mr. McEwen and Ms. Gunson as Reply Witnesses. The Tribunal agreed with their submissions and found that of the three witnesses only Dr. Smallwood’s evidence was proper reply.

Dr. Smallwood told the ERT he disagreed with WPD witness Dr. Strickland that pre-construction bat surveys have no value. He directed the Tribunal to graphs showing a plausible correlation between pre-construction bat activity and post-construction bat mortality. He noted that when more data is added the more the relationship is strengthened. This suggests there is value in doing pre-construction surveys to estimate bat fatality rates.

Dr. Smallwood also noted that avoidance is not the same as displacement. While avoidance on a large scale will equal displacement, it might just as well involve manoeuvres to evade turbine blades, wind turbines, or an entire wind project. Repeated avoidance that leads to habitat loss is displacement.

Today was the last day for evidence. The ERT will next hear submissions of the parties as follows:

Appellant Written Submissions – January 5, 2016
Respondent Written Submissions – January 15
Reply Written Submissions – January 19
Oral Submissions – January 20th & 21st in Prince Edward County

ERT co-chair Marcia Valiante noted that this schedule leaves insufficient time for the Tribunal to meet the regulatory six-month deadline. As a result the Tribunal found that stopping the clock on the proceedings is required. Following the oral submissions the ERT will adjourn for four weeks and issue a decision on February 19, 2016.

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