Wind construction may begin this week, and the County is doing what it can
There may be little the County can do about a wind developer’s intention to begin work on their sites this week.
Last week, Mayor Robert Quaiff called a special meeting of council to discuss correspondence from wpd, a wind developer based in Germany whose Canadian branch plans to build a wind turbine project near Milford.
The project, dubbed White Pines, was initially proposed with 29 turbines spreading across Athol and South Marysburgh. Two of those were denied when the project was first approved by the Ministry of Environment. Then a ruling came this spring from an Environmental Review Tribunal.
The tribunal was called by resident groups and the County in response to White Pines. It took into account a previous wind project that had been rejected on the County’s south shore because of its proximity to the habitat of the endangered Blanding’s turtle, and told wpd to remove all turbines planned to be built south of Royal Road, near that habitat.
That left nine.
It changes a lot of things for the project. Along with the scope, it means lines connecting generated energy to distribution facilities might no longer be underground, as they were originally planned. Instead, they could be on wires strung alongside the roads like hydro poles. Although wpd hasn’t made clear what the changes will look like, a change like that would require new permits.
So when wpd came to council in July, asking for an amendment to the Road User’s Agreement (RUA) they had been issued during the original planning phase, council decided they needed more time to consider the changes.
The RUA is a permit that allows for temporary disruption on roads for construction purposes, blockages, widening and other changes to public roads. At issue was the scope of the amendments proposed, with the potential to require a new RUA for the drastically altered project.
At issue, too, is the fact that the smaller project requires different permits, not only from the County, but also from provincial bodies and electricity regulators.
The RUA was postponed in late July and, days later, the County received a letter from wpd informing the municipality it was going to commence construction on its project on September 10—a Sunday.
When County planning head Robert McAuley questioned whether it had the proper permits to start building, White Pines project president Ian MacRae responded with a letter on August 23 threatening to take the County to court if municipal permits weren’t issued in time. MacRae contended that McAuley acted in bad faith by questioning the company.
John Hirsch, director of the County Coalition for Safe and Appropriate Green Energy (CCSAGE), was the first of three members of the community who gave deputations to council opposing wpd’s White Pines project at the start of the meeting.
“We believe there are a number of hurdles that wpd has not successfully met before they can proceed,” Hirsch told council. “They cannot meet the requirements of their original FIT contract with the IESO with only nine of the original 29 turbines left. They require a new contract with a much-reduced capacity. Such a contract has not been authorized by the government.”
Hirsch pointed to a quotation from the Independent Electricity Systems Operator (IESO) that the organization had not yet granted wpd a notice to proceed. However, the IESO has since clarified that, under their contract with wpd, the company does not need a notice to proceed in order to begin construction.
“It is premature and dangerous for the County to issue permits under the old Road User’s Agreement, which would allow wpd to start modifications to County roads, work on the new transmission lines and which would send a completely inappropriate message that the County is going along with this project, which it has opposed from the start,” Hirsch concluded.
Cheryl Anderson, president of the Prince Edward Point Bird Observatory, was one of the three deputants at the meeting.
She reminded council that without the resources of residents fighting the previous proposed wind turbine project, one that was completely rejected by an ERT, there would be more than nine turbines on the County’s south shore.
“The municipality should oppose all efforts by wpd to bully us into agreeing to their destruction of South Marysburgh. I do not accept any argument that we cannot afford to fight it,” she told council, adding that PEPtBO has been observing and documenting Blanding’s turtles north of Royal Road, in case that information might be useful.
South Marysburgh councillor Steven Ferguson took a moment to comment on the letters before council moved to an in-camera session with the County lawyer, Wayne Fairbrother, for just over an hour before reconvening in front of the public.
“This is not just a south issue. This is not about the ability of some landowners to derive income from what they consider useless property,” Ferguson said to his colleagues. “What is at play is Mr. MacRae’s announcement on July 31 that regardless what the people most impacted by his project believe, or what the municipal government may think—whose job it is to, among other things, ensure residents’ wellbeing— his company is going to begin construction of what remains of the White Pines project beginning on Sunday, September 10th. Why a Sunday?”
He criticized the company’s tactics, the threat of a lawsuit if the County did not acquiesce to the company’s demands.
“My first emotional impulse upon reading the third paragraph of Mr. MacRae’s letter of August 23 was to try and sell council on the idea of rescinding last year’s RUA. To outright reject approval of any permits for any work involving the White Pines project; and to tell Mr. MacRae and wpd to bring it on,” Ferguson says. “However, I’m also smart enough to know that legal opinions can temper emotional impulses so I look forward to hearing today what my fellow councillors and legal counsel may recommend to us.”
Last night, after press time, Ferguson hosted a town hall meeting in Milford to discuss the project with concerned residents.
After the closed session had ended, council resumed its public meeting to discuss Fairbrother’s advice. It was not hopeful.
Fairbrother explained that as long as the company was ready and able to fulfill its responsibilities under its contract with the County in its original RUA, the municipality is unable to stop them.
Although a municipality generally has a measure of control about how, when and where new construction takes place that involves its property, the provincial government has restricted those powers under the Green Energy Act, Fairbrother elaborated.
“The County’s authority has been restricted by the provincial government, for better or for worse, to road issuance,” he explained. “In this particular situation, for better or for worse, the provincial government have said none of that applies. The municipality in which the project is going to be located has none of that right. No authority to deal with that at all. The only authority the municipality has is with respect to the use of its roads. And that’s it.”
He added that because of the clause in the ERT ruling, the County is further limited by being obliged to negotiate a reasonable amendment to the RUA within three months of receiving material from wpd.
“That’s not very long,” he said. “I just wanted to make it clear that that’s the limit of the County’s authority with respect to these types of projects. It’s unfortunate. Maybe talk to your MLA about that, but that’s what we got.”
McAuley told council the company may begin certain construction such as road widening and private site clearing and creation of road entrances but without permits, the possible work is limited, likely to site clearing as construction begins.
Like Fairbrother, he agrees there’s little the County can do, so long as the company honours the terms of the contract.
“They’ve also provided notice under the electricity act, which is interesting, because that gives them special powers as an electrical authority to use the roads over the objection of the municipality. So I think they’re covering both their bases. If the road user agreement is in place, and they can’t fulfill it, they might argue that they have power under the legislation to proceed.”
Council finished the meeting by passing a motion that would prevent staff from issuing RUA or any other permits until it is certain the company will fulfill all the provisions of that agreement.
Anderson was at least assured the County had done what they could to address the issue.
“Council took time,” she says. “If they had come back out in 10 minutes I was going to be feeling a little like this (she cringes), but they took time to organize themselves and obviously discuss the issues and think through it and get all of the advice from the lawyer and the engineer. And so I think that council worked well at this.”