Report on the Environmental Review Tribunal Hearing on the White Pines Wind Project

November 10, 2015

by

Henri Garand and Paula Peel, APPEC
The Environmental Review Tribunal (ERT) of the White Pines wind project focused, on Day Four, on Joe Crowley, a species-at-risk expert in the Ministry of Natural Resources and Forests (MNRF).  Due to numerous procedural disputes, however, the hearing lasted from 10 a.m. till 8:30 p.m.
Crowley was summoned to testify on the basis of his evidence at the Ostrander Point ERT, and he was similarly qualified as an expert witness, specifically as a “herpetologist with expertise in Blanding’s turtles.”  At MNRF he is employed in the Species Conservation Branch, where his work includes assessment and review annually of some 70 projects affecting reptiles and turtles.  He confirmed he is the only MNRF employee with special expertise in the Blanding’s turtle, though other biologists may have general knowledge.
However, Crowley was never consulted about White Pines despite its adjacency to Ostrander Point.  Nor did he know just who was consulted in MNRF.
APPEC counsel Eric Gillespie asked Crowley whether the White Pines project could have similar impacts on the turtle population.  Crowley made clear he knew nothing about White Pines, but after reviewing a project map he admitted that Turbines 12 – 24 and 26 – 29 might be in suitable Blanding’s turtle habitat.
At several points Crowley recanted testimony made a month earlier at the Ostrander Point ERT and repudiated his own previously-held opinions:

  • Crowley said he overestimated turtle numbers at Ostrander Point and is no longer confident there is a “healthy and viable” population.
  • Crowley supposed it is “conceivable” that Blanding’s turtles could be moving along the shoreline.   Gillespie reminded Crowley of his Ostrander ERT testimony that Blanding’s turtles were known to range both along the south shore and inland 2 to 6 kilometres.
  • Despite his own references in MNRF documentation to a

​n interconnected

wetland complex

​ on the south shore​

, Crowley now considers that it’s only possible turtles move off the Ostrander property because their home range is typically 2 kilometres.

  • Crowley identified two critical habitats for Blanding’s turtles at Ostrander Point.  When reminded of the ERT’s finding that the entire site is critical habitat Crowley responded that it would depend on the definition of critical.

Due to nest predation and other threats, Crowley explained that a female turtle may have only one surviving offspring over 20-30 years of reproduction.  Given this low survival, he had considered at one time that Blanding’s turtle populations could only withstand mortality rates of up to 2%.  However, he now believes that as much as

​5

% mortality is sustainable.
Due to the number of reversals from his testimony at the Ostrander Point ERT, Crowley was required to leave on two occasions while lawyers and the ERT panel discussed how to proceed.   Gillespie asked the Tribunal to declare Crowley an adverse witness because his testimony was couched with imprecise words such as “could,” “possibly,” and “may.”  This request would allow Gillespie to ask leading questions and speed up the process.   But the Tribunal denied the request even though counsels for the Ministry of Environment and Climate Change (MOECC) and wind developer WPD had been pressing Gillespie to reduce the time of his examination.

During cross-examination by Sylvia Davis, counsel for the MOECC Crowley discussed the need for mark-capture surveys in order to assess population size.  After further questioning by Gillespie he agreed that such studies were not done for either the Ostrander Point or White Pines projects. Crowley also informed the Tribunal of a study demonstrating that driver training could have good results in decreasing road mortality.  When asked about this study by Gillespie, Crowley clarified that it concerned the Eastern Foxsnake and not Blanding’s turtles.

There were some positive points that came out of the testimony.   Blanding’s turtles will move from Ostrander Point into the White Pines project area.  Crowley’s 2011 statement from the Ostrander project, where he refers to interconnected wetland complexes throughout southern Prince Edward County is now on record.  The number of turtles and the quality of their habitat cannot be in dispute given the conditions set out within the Renewable Energy Approval.
The ERT resumes on Thursday, Nov. 12, 10 a.m. at the Essroc Centre, Wellington.

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