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Information Notice:   EBR Registry Number:   011-3181
Title:
Ostrander Point GP Inc. has applied for and has been issued an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 with respect to Blanding’s Turtle, Eastern Whip-poor-will and Eastern Whip-poor-will habitat, for the purpose of the construction and maintenance of Ostrander Point Wind Energy Park in the Township of South Marysburgh.
 
Ministry:
Ministry of Natural Resources
Date Information Notice loaded to the Registry:
December 20, 2012
 
 

Members of the public are invited to submit their written comments by June 9, 2011 to the contact person listed in this notice. 

This notice was first published on May 10, 2011. It was republished on May 26, 2011 to add the following note:

Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

It was republished on December 20, 2012 to give notice of the decision.

 
Keyword(s):   Compliance  |  Electricity  |  Fish and Wildlife  |  Land use planning  |  Conservation

This notice is for your information. The Environmental Bill of Rights does not require this notice to be placed on the Environmental Registry, however, section 6 of the Act does allow the Environmental Registry to be used to share information about the environment with the public.

 
Rationale for Exemption to Public Comment:

This proposal is exempted by Ontario Regulation 681/94 under the Environmental Bill of Rights as a classified proposal for an instrument, because the species that would be specified in the permit is an animal and the authorization would apply to an activity on Crown Land.

Ministry of Natural Resources (MNR) is voluntarily posting this notice to advise the public of the proposal and to invite the public to submit written comments on this proposal to the contact person identified in this notice.

Description:

Gilead Power Corporation has applied for a permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) to kill, harm and harass Blanding’s Turtle and Whip-poor-will as well as damage and destroy the habitat of Whip-poor-will for the purpose of the development and operation of Ostrander Point Wind Energy Park in the Township of South Marysburgh.

The proposed Ostrander Point Wind Energy Park would consist of 9 wind turbines, up to 22.5 MW installed capacity, and is expected to produce enough electricity for approximately 6,000 homes. The project is proposed on 324 hectares of Crown land, along the shores of Lake Ontario, in Prince Edward County.

Purpose of the Notice:

The purpose of this notice is to ensure that the public is made aware of, and given an opportunity to comment on, the proposal, including the proposed conditions and outcomes of the permit for which the applicant is applying in order to kill, harm and harass Blanding’s Turtle and Whip-poor-will as well as damage and destroy the habitat of Whip-poor-will for the purpose of the development and operation of Ostrander Point Wind Energy Park in the Township of South Marysburgh, Prince Edward County. The proposed permit would be issued under section 17 of the Endangered Species Act 2007.  No MNR permits or authorizations will be issued until the Renewable Energy Approval has been issued by MOE.

Decision:

On February 23, 2012 the Minister of Natural Resources issued an overall benefit permit to Ostrander Point GP Inc. under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA), with respect to Blanding’s Turtle, Eastern Whip-poor-will and Eastern Whip-poor-will habitat, for the purpose of the construction and maintenance of Ostrander Point Wind Energy Park in the Township of South Marysburgh.

Note: Subsequent to the initial EBR posting on May 10, 2011, Gilead Power Corporation requested the name of the applicant be changed to Ostrander Point GP Inc., the general partner of Ostrander Point Wind Energy LP.

Reasonable alternatives to the proposal were considered, including alternatives that would not adversely affect the species. Alternatives considered included six different site layouts to eliminate or reduce adverse impacts Eastern Whip-poor-will and its habitat, as well as Blanding’s Turtle. The best alternative, which was adopted, consists of reducing the scale and footprint of the project from 12 turbines to 9 turbines, and adjusting construction windows to avoid adverse impacts to species during their active season.

The permit requires Ostrander Point GP Inc. to undertake a number of measures to minimize adverse effects on individual members of Blanding’s Turtle, Eastern Whip-poor-will and Eastern Whip-poor-will habitat, including:

- education of workers and staff about Eastern Whip-poor-will and Blanding’s Turtle;
- educational and speed limit signage would be installed and limits of 30km/h would be implemented on roads;
- best management practices would be implemented for dust, spills and waste collection;
- speed bumps on roads with appropriate signage would be installed after construction and used for the life of the operations to decrease potential for collisions with Eastern Whip-poor-will and Blanding’s Turtle;
- road maintenance would be completed at an appropriate time of year (outside nesting season) and include avoidance of chemical spraying;
- construction window (October - April) would avoid most critical life cycle periods for Eastern Whip-poor-will and Blanding’s Turtle;
- most construction would occur in areas not containing habitat which supports breeding; and
- mortalities and species sightings would be recorded and reported both during construction and operation/maintenance.

The permit requires Ostrander Point GP Inc. to undertake a number of actions to achieve an overall benefit to Blanding’s Turtle and Eastern Whip-poor-will within a reasonable time, including:

  • Proponent to secure and actively manage a 37 ha property for 20 years located in close proximity to the project for the preservation, rehabilitation and/or improvement of habitat for both Blanding’s turtle and Eastern Whip-poor-will.
  • Property must be managed in accordance with a comprehensive management plan approved by the Ministry, which is required to include goals and objectives for habitat management, improvement and rehabilitation.
  • Publication of Eastern Whip-poor-will survey methodology and the results of pre-construction monitoring
  • Research is required to be undertaken at an accredited post-secondary institution related to Eastern Whip-poor-will for one of the following subjects of interest: variation in nesting success rates with proximity to turbines, variation in fledging dates with proximity to turbines, variation in territory size with proximity to turbines, foraging behaviour differences in response to turbines, site fidelity or any other topics agreed to by the MNR and proponent that would assist in the recovery of Eastern Whip-poor-will
  • This research would be peer-reviewed and published.
  • Beyond standard species monitoring, a benefit to the species will be achieved through value added monitoring for multiple years on both the newly acquired property, as well as the windpower site, to gather new information and knowledge about Blanding’s Turtles and how they use their habitat. Value added monitoring includes: successful techniques and methods to restore damaged Blanding’s Turtle habitat; movement patterns such as hibernation and nesting. Reports summarizing monitoring results will be submitted to MNR annually.

Other Information:

Both Whip-poor-will (Caprimlugus vociferous) and Blanding’s Turtle (Emydoidea blandingii), are listed as threatened on the Species at Risk in Ontario List in Ontario Regulation 230/08 (O. Reg. 230/08) of the ESA. Clause 9 (1)(a) of the ESA provides that no person shall kill, harm, harass, capture or take a living member of a species that is listed on the Species at Risk in Ontario List as extirpated, endangered or threatened.

Whip-poor-will currently has general habitat protection under the ESA. Clause 10(1)(a) of the ESA provides that no person shall damage or destroy the habitat of a species that is listed on the Species at Risk in Ontario list as an endangered or threatened species.

The Minister of Natural Resources may issue a permit to an applicant under clause 17(2)(c) of the ESA that authorizes the person to engage in an activity that would otherwise be prohibited by section 9 or 10 of the ESA if the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

  • (i) the Minister is of the opinion that an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit, and,
  • (ii) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and,
  • (iii) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit.

An overall benefit to both species would be achieved through the following activities:

  • Proponent to acquire and manage a property outside the project area (that meets appropriate criteria as defined by the Ministry of Natural Resources) for the habitat preservation, rehabilitation and/or improvement of both Blanding’s turtle and Whip-poor-will.
  • Publication of Whip-poor-will survey methodology and the results of pre-construction monitoring 
  • Financial support to fund graduate research related to Whip-poor-will for one of the following subjects of interest: variation in nesting success rates with proximity to turbines, variation in fledging dates with proximity to turbines, variation in territory size with proximity to turbines, foraging behaviour differences in response to turbines, and site fidelity. This research would be peer-reviewed and published.
  • Beyond standard species monitoring, a benefit to the species will be achieved through value added monitoring for multiple years on both the newly acquired property, as well as the windpower site, to gather new information and knowledge about Blanding’s Turtles and how they use their habitat. Value added monitoring being considered includes; successful techniques and methods to restore damaged Blanding’s Turtle habitat, movement patterns between life-cycle sub-habitats such as hibernation and nesting. Other value added monitoring efforts are being considered by Gilead and will be agreed upon with the MNR district. Reports summarizing monitoring results will be submitted to MNR annually.

Reasonable alternatives have been considered, including alternatives that would not adversely affect both species and the best alternative was chosen in considering six different site layouts to eliminate or reduce adverse impacts to Whip-poor-will and its habitat and Blanding’s Turtle. The best alternative to balance the development plans and achieve overall benefit for Whip-poor-will and Blanding’s Turtle was selected. Construction windows were adjusted to avoid adverse impacts to species during the active season.

Reasonable steps to minimize adverse effects on both species would be taken and addressed as conditions of the proposed permit. Reasonable steps for both species include; education of workers and staff about Whip-poor-will and Blanding’s Turtle; speed limit signage would be installed and limits of 30km/h would be implemented on roads; prior to construction, the limits of vegetation clearing would be staked out where appropriate to ensure that no construction disturbance occurs beyond the staked limits; best management practices would be implemented for dust, spills and waste collection; educational signage would be installed where appropriate; speed bumps on roads with appropriate signage would be installed after construction and during the life of the operations to decrease potential for collisions with Whip-poor-will and Blanding’s Turtle; road maintenance would be completed at an appropriate time of year (outside nesting season) and include avoidance of chemical spraying; construction window (October - April) would avoid most critical life cycle periods for Whip-poor-will and Blanding’s Turtle; most construction would occur in areas not containing habitat which supports breeding; and mortalities and species sightings would be recorded and reported both during construction and operation/maintenance.  Nesting habitat will be strategically created on the eastern side of the proposed windpower site to minimize the likelihood of Blanding’s Turtles being attracted to the roadway to lay their eggs. This would reduce new road mortality for adult and hatchling turtles after the roadways are upgraded.

The web links on the right side of this notice provide additional information.

Other Public Consultation Opportunities:

Public Consultation on the proposal for this ESA permit was provided for 30 days, from May 10, 2011 to June 9, 2011. Seven hundred and thirty-nine comments were received in response to this registry posting.

The comments received were generally not supportive or not directly related to the ESA 17(2)(c) permit for Eastern Whip-poor-will, Blanding’s Turtle and Eastern Whip-poor-will habitat.

Comments relative to the posting fell into one of three categories: general ESA and species at risk (SAR) considerations; Blanding’s Turtle specific; or Eastern Whip-poor-will specific.

Comments and government responses that were related to general ESA and SAR considerations include:

- The construction and operation of wind turbines will negatively impact the survival of listed SAR in the area, including others not included on this proposal.

  • Response: Within the ESA there is a high standard for species protection but it also recognizes that some kinds of activity can occur even when species at risk are present. Flexibility tools exist under the ESA. Permits may be granted when an activity may harm or harass a species or damage or destroy their habitat. An overall benefit to the species is achieved through specific conditions outlined in the permit. Several years of on-site studies have been conducted to determine the natural features of the site and any potential impacts as a result of the proposed project. Best science was utilized to determine the best approach to minimize disturbance for most of the important habitat features on site. The Ministry of the Environment (MOE) is the lead ministry for the Renewable Energy Approval Regulation (REA) (Ontario Regulation 359/09) and as such, the decision to approve the renewable energy generation facility and associated conditions including post-construction monitoring rests with MOE.

- There are legal and ESA protocol related requirements that have not been properly addressed.

  • Response: Under the ESA, a permit of this type may be issued if adverse effects on species at risk would be minimized, reasonable alternatives have been considered and an overall benefit to the species would be achieved. Permits have to meet the requirements of the ESA and MNR takes great care to ensure that permit conditions achieve the requirements of the ESA

- There has been a lack of public consultation during the entire process.

  • Response: MNR has posted two separate Environmental Registry postings associated with this project. One for the clause 17(2)(c) overall benefit permit under the Endangered Species Act, 2007. The other posting is related to issuance of crown land tenure instruments related to the project. The Environmental Registry postings allow for all Ontarians (i.e. not just those affected by the project) the opportunity to provide comments and feedback to the MNR for consideration. The MNR has received over 700 comments regarding the overall benefit permit from individuals, non-profit and non-governmental organizations, and more than 20 comments associated with the tenure posting. All comments have been considered and evaluated in MNR decision making. Additionally, the proposed wind power project under review by MOE is subject to the Renewable Energy Approval (REA) process, which is currently posted on the ER for comment.

- A precedent will be set for similar development in areas with SAR if a permit supporting Gilead’s proposal is issued. 

  • Response: Each permit applied for under the ESA is specific to the site and species involved. A decision to issue the permit is made only if all tests are met under the ESA. Each REA project and ESA permit has considerable site specific consideration.

- Mitigation strategies suggested by MNR are not adequate to prevent habitat destruction or harm to species

  • Response: Minimizing adverse effects on individuals of the species by utilizing site construction windows have been established to avoid adverse impacts to wildlife during active seasons (i.e. breeding and nesting). Additionally, several mitigation measures including educational signage, speed limits and speed bumps, post construction and operational monitoring plans are in place to minimize potential impacts to terrestrial wildlife during both the construction, and operational phases of the proposed project. The ESA permit will ensure an overall benefit to both Eastern Whip-poor-will and Blanding's Turtle.

The Ministry of the Environment is the lead ministry for the Renewable Energy Approval Regulation (Ontario Regulation 359/09) and as such, the decision to approve the renewable energy generation facility and associated conditions including post-construction monitoring rests with that ministry.

EBR Registry Number: 011-5239
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTE1MDIx&statusId=MTcyMzgx&language=en

 
Contact:

Peterborough District
Species at Risk Biologist
Ministry of Natural Resources
Regional Operations Division
Southern Region
Peterborough District
300 Water Street
Floor 1
Robinson Place South Tower
Peterborough Ontario
K9J 8M5
Phone: (705) 755-3104
Fax: (705) 755-3125

Additional Information:

The documents linked below are provided for the purposes of enhancing public consultation.
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