Don’t fence me in

Developer proposes gates, training to protect Blanding’s turtle

Within days of learning that its Renewable Energy Approval (REA) had been revoked, Gilead Power Corporation and its lawyers met to calculate their next steps. They would, of course, appeal the Environmental Review Tribunal (Tribunal) ruling, but they also decided they had better beef up protection for the Blanding’s turtle on the proposed project site at Ostrander Point—just in case their appeal failed. They had to be ready to show they could protect this turtle. And—they would argue—that natural justice dictated they be given the opportunity present their remedy. In June 2013, the Tribunal concluded, after 40 days of testimony, that the proposed industrial wind project on Crown land located on the County’s south shore posed serious and irreversible harm to the Blanding’s turtle, an endangered species in Ontario. The project comprises nine turbines made of steel and concrete, each spinning three massive 48- metre (160-foot) blades reaching up to 44 storeys above the ground. The Tribunal heard specific concerns about the proposed road network required to construct and maintain these machines.

As the legal fight navigated the judicial process, Gilead set to work developing a fallback position. Stantec, an consultancy, was tasked with producing an impact monitoring plan. Gilead produced an access control plan—a series of gates designed to limit vehicle traffic on the access roads. Meanwhile, discussions began with the Ministry of Natural Resources (MNR).

To effectively monitor the site and restrict access, Gilead also needed to expand its agreement beyond an easement. So in August of 2013, the company applied to the MNR for a full-fledged Crown lease for its access roads. Among the reasons stated were: to secure its sizable investment; to prevent theft and vandalism and limit civil liability; to provide the company with the legal authority to enforce restrictions to public access, and to minimize the MNR’s liability exposure.

“In addition, restricting public vehicle access to the access roads would also provide protection for wildlife, including species at risk from traffic mortality,” wrote Mike Lord, vice-president of Gilead Power Corp. in the request.

In September, the MNR responded to Lord, saying it was supportive of his request and would issue a lease to give Ostrander Point Energy LP “exclusive possession of the road during the term of the lease.”

Financial terms of the lease were not disclosed. Last week, the Appeal Court of Ontario reinstated the Tribunal’s decision revoking the developer’s permit, but it also directed the Tribunal to hear Gilead’s proposed remedies.

Now the spotlight turns to these plans. Whether they are sufficient to protect this endangered species will be up to the Tribunal to decide.

Likely, the most controversial plans include the construction of gates on access roads leading to the property. Gates will be installed at the entrance and where existing trails intersect with access roads. They will be locked from May 1 until October 31, according to the plan.

Stantec’s monitoring and management plan prescribes a series of measures that will inform the developer how to manage the site and to react to the sighting of a Blanding’s turtle or its nest.

Monitoring will be done by a third party, qualified professional.

Each April, the developer says it will train its staff about the lifecycle of the Blanding’s turtle, along with the mitigation and avoidance measures developed to protect the species. The company will provide monthly reports on the status of the gates and will report trespassers to the OPP.

The developer also vows keep a count of dead turtles and other reptiles on the project location and the cause of mortality.

ADAPTIVE MANAGEMENT
What if the mitigation doesn’t work? What happens when Blanding’s turtle and whippoorwill carcasses begin to accumulate?

The developer has a plan B called Adaptive Management.

In the event that significant and unanticipated adverse environmental effects are observed, the developer has proposed another list of mitigation and restoration measures—these may include speed bumps, increased training, fencing and underground culverts.