What’s permitted?

County, wind company dispute permits

When a ruling came back from an environmental review tribunal (ERT) reducing the scope of a wind turbine project to nine from its original 29, it seemed a crushing blow to a company that had once been steadfast about the size of the project proposed for the Milford area.

“From the get-go, when the arguments against this project began several years ago, wpd’s position and Stantec consulting’s position was that the loss of even one turbine would jeopardize the project,” says South Marysburgh councillor Steven Ferguson. “Then they lost two, and the project wasn’t jeopardized. Then they lost 18, and now they’re going ahead with nine. These guys are talking out of both sides of their mouth.”

The project is still going ahead. This spring, before the ruling was made available, clearing activities on the properties where wpd’s turbines are scheduled to be constructed ramped up.

But the ERT laid out certain rules wpd would have to follow in order to proceed. One of those rules was that, within three months of the April 26 ruling, wpd would have to prepare an updated Traffic Management Plan to account for the new, reduced scope of the project and share that plan with the County in order to create a new Road User’s Agreement (RUA). An RUA is a municipal permit necessary for any work that affects traffic or road conditions.

The company is allowed another three months to make a reasonable effort to enter into that RUA with the County. That would bring them to late October. The condition was set to “ensure continued communication between the Company and the local municipalities,” according to the ruling.

By mid-July, a report had been prepared between wpd and the County, and amendments to the original RUA, prepared in 2015, were proposed.

That report received CAO approval on July 21, four days before the Tuesday, July 25 council meeting where the updated RUA was first proposed. In light of the timing, Ferguson asked his colleagues for a delay, and the decision was postponed to a meeting scheduled for September 19.

“We want to go through this RUA again. There was no time to do it the last time. It came up mere days before we were to consider it. There’s input from the public that’s important,” says Ferguson. “Just because wpd wants something and snaps their fingers, doesn’t mean that we necessarily have to do it, and there’s no reason why we should without public input.”

Less than a week after that council meeting, on July 31, wpd wrote a letter informing the municipality that they intended to begin work on September 10, a Sunday, just over a week before the rescheduled meeting. County staff received that letter on August 8.

This isn’t unusual—it’s not the first time a project like this begins work prior to having all permits in place.

In December, residents of nearby Amherst Island raised concerns when the company set to build a wind turbine project there commenced construction before all the final permits were in place. This was the same project for which products were being shipped by barge from Picton Terminals when a transfer barge took on water and began to sink, triggering a boil water advisory and cleanup in the bay.

Robert McAuley, the County’s engineering head, responded with a letter stating that the County wouldn’t be able to issue a permit until wpd’s status was clarified: They have not yet received a permit from the Ministry of Environment and Climate Change or the Ontario Energy Board (OEB) for their project with its new scope.

Then, last Friday, another letter arrived at Shire Hall from wpd. This one was more than just informative.

The letter was a notice of dispute, and argued that because wpd had permits from all necessary bodies for a project of larger scope, there would be no reason for the County to withhold an updated permit for the smaller project.

McAuley believes the new project requires permits through the OEB instead of Hydro One because of the reduced voltage. The company applied for that permit the same day they sent the notice of dispute to the County.

The letter, signed by White Pines Wind Incorporated president Ian MacRae, stated that “the County’s failure to issue the permits to which wpd is entitled under its REA will be taken by wpd to be an act of bad faith and an attempt to frustrate its wind energy project,” and continues: “If we do not hear from you by September 7, 2017, we will engage our external counsel to take all steps necessary to enforce our rights before the Divisional Court on an urgent basis and to seek our costs for doing so.”

The County will hold a special council meeting to discuss the permits for this project tomorrow (Thursday) at 1 p.m. Although the meeting is partially open to the public, a portion of it will be in-camera to allow council to discuss wpd’s potential litigation with the County’s lawyer, Wayne Fairbrother.

Ferguson sees the letter, and the timing of the notice to begin work, as a direct reaction to the County’s process.

“The REA they were given is totally different from what they’re proposing now,” says Ferguson. “So the question is, can they go ahead and do this? We don’t know. Nobody knows. And so with the deferral of the RUA, they decided we’re going to start construction on a Sunday.”

He adds that while wpd may have a contractor dig nine holes that are three metres deep and 23 metres in diameter, there is no guarantee that the landowners will ever see turbines on those properties, referencing a similarly sized project in Grey county that was shut down because of Ontario’s uncertain renewable energy market.

“The hole gets dug, and all this concrete gets poured, and if I were the land owner, I’d be kind of wondering, what happens if the project gets cancelled, or revoked or whatever?” Ferguson queries. “I’d be looking at a 75-foot concrete pad going, what am I going to do with that?”

He will be hosting a town hall meeting to answer questions and get comments from members of the public at Milford town hall on Tuesday, September 5 from 7 until 9 p.m.