Samsung Renewable Energy Inc., Permit for activities with conditions to achieve overall benefit to the species – ESA s.17(2)(c)
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 for which the permit is sought is an animal.
The 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.
On June 11, 2012 the Minister of Natural Resources issued an overall benefit permit to Samsung Renewable Energy Inc under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) with respect to Bobolink and Eastern Meadowlark by in order to construct and operate a wind facility and solar facility in the County of Haldimand, Ontario.
Reasonable alternatives to the proposal were considered, including alternatives that would not adversely affect the species. Alternatives considered included:
• Alternative wind and solar facility layouts;
• Reduction of the size/scale of the project to eliminate or reduce adverse impacts to the habitats of Bobolink and Eastern Meadowlark.
The best alternative, which was adopted, consists of minimizing the amount of habitat being impacted through:
• Locating project infrastructure outside of Bobolink and Eastern Meadowlark habitats wherever feasible;
• Restricting disturbances to the edge of habitat patches where infrastructure is proposed within habitat;
• Minimizing the extent of the area within habitats directly impacted by construction activities.
This alternative also avoids direct adverse affects to individual Bobolink and Eastern Meadowlark and allows Samsung Renewable Energy Inc to address/meet the requirements of other applicable legislation including the Ministry of Environment’s renewable energy approval under the Environmental Protection Act.
The permit requires Samsung Renewable Energy Inc. to undertake a number of measures to minimize adverse effects for individual members of Bobolink and Eastern Meadowlark, including:
- Avoid commencing construction during the breeding season of Bobolink and Eastern Meadowlark to the extent feasible. In the event that construction activities must occur during the breeding season, Samsung shall survey for the presence of members of Bobolink and Eastern Meadowlark or their nests in a manner approved by the MNR. If the survey indicates that a member of either species or their nest is present within the project site, construction activities shall stop until the end of the breeding season.
- Parts of project sites impacted by temporary construction activities, where hay or grassland existed prior to the commencement of construction activities will be rehabilitated and reseeded using native species.
- Monitoring of vegetation in rehabilitated and reseeded areas shall occur during the growing period in each of the 2 years following reseeding.
The permit requires Samsung Renewable Energy Inc. to undertake a number of actions to achieve an overall benefit to Bobolink and Eastern Meadowlark, within a reasonable time, including:
• Create or enhance areas of land approved by MNR, and totaling not less than 78 hectares, into high quality breeding and foraging habitat for Bobolink and Eastern Meadowlark prior to the completion of construction activities.
- Habitat Enhancement Sites shall be managed as hayfield and shall not be harvested between May 1 and August 1 of any year, and be comprised of the seed mixtures for hay as specified in the permit.
- If crop rotation is necessary, the Habitat Enhancement Sites shall be maintained as hayfield for at least 5 consecutive years out of every 7.
• Undertake a research project that will investigate the behaviour of the Bobolink and Eastern Meadowlark in proximity to solar farms and wind turbines in Ontario.
- Research shall include collecting scientific data on the impact of solar farms and wind turbines on the Species’ nest locations, as well as mating, nesting and feeding behaviors;
- Methodologies shall be developed in conjunction with the MNR;
- Research will start within 3 years of the conclusion of construction activities, and occur for 3 consecutive years. The final report shall be submitted for publication to a peer-reviewed scientific journal or otherwise made available to the public in a manner that is approved by the MNR.
In addition, the permit requires Samsung Renewal Energy Inc. to:
• Conduct surveys for Bobolink and Eastern Meadowlark at all Habitat Enhancement Sites, for 5 consecutive years immediately following their creation or enhancement.
MNR’s commitment to support Government of Ontario initiatives to conserve energy, and water in its own operations, and wisely use our air and land resources to generate environmental, health and economic benefits was considered in the context of this proposal.
Public consultation on the proposal for this ESA permit was provided for 31 days, from March 15, 2012 to April 16, 2012. Forty-seven (47) comments were received in response to this Environmental Registry notice. Analysis of the comments identified that:
• Approximately half of the comments did not relate to the issuance of the ESA permit
• One comment was of mixed opinion, and one comment was neutral
• One of the comments outlined why the commenter believed the tests of Overall Benefit permits had not been met
• Some comments mentioned a lack of protection for the species, often with comments regarding the lack of science about the impacts of wind turbines on the species in question.
MNR District staff reviewed the comments and determined that none of the comments provided information that would substantially change the overall benefit plan or other components of the ESA permit. Many comments were already addressed by the detailed conditions that have recently been negotiated and included in the permit.
Individuals who wish to view additional information on this overall benefit permit may visit the MNR Species at Risk website, where information about this permit will be updated periodically.
The proposal to construct and operate a wind facility and solar facility has the potential to adversely affect Bobolink and Eastern Meadowlark and their habitat. The proposed permit conditions would provide benefits that exceed the adverse effects on Bobolink and Eastern Meadowlark.
Bobolink and Eastern Meadowlark are listed on the Species at Risk in Ontario (SARO) List, in Ontario Regulation 230/08 of the ESA, as Threatened.
Subsection 9(1) of the ESA provides for the protection of endangered, threatened (and extirpated) species on the SARO List.
Habitat protection under the ESA applies to Bobolink and Eastern Meadowlark (subsection 10(1)).
The ESA allows some activities to proceed under a clause 17(2)(c) permit with specific conditions if: avoidance and reasonable alternatives have been considered; adverse effects will be minimized; and an overall benefit will be achieved for the species in Ontario. Providing an overall benefit to a protected species under the ESA involves undertaking actions to improve circumstances for the species in Ontario. Overall benefit is more than ‘no net loss’ or an exchange of ‘like for like’. Overall benefit is grounded in the protection and recovery of the species at risk and must include more than mitigation measures or “replacing” what is lost.
The Minister may issue a permit under clause 17(2)(c) of the ESA that authorizes a 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:
(i) an overall benefit to the species will be achieved within a reasonable time through the conditions of the permit;
(ii) reasonable alternatives have been considered, including alternatives that would not negatively affect the species, and the best alternative has been adopted; and,
(iii) reasonable steps to minimize negative effects on individual members of the species are required by conditions of the permit.
Samsung Renewable Energy Inc. has applied to the Ministry of Environment for a Renewable Energy Approval under O.Reg 359/09 of the Environmental Protection Act to construct and operate a wind and solar facility in the County of Haldimand. The project is in response to the Government of Ontario’s initiative to promote the development of renewable energy in the province. The project consists of a 148.6 MW (nameplate capacity) wind project, a 100 MW (nameplate capacity) solar photovoltaic project located on privately owned and Ontario realty Corporation managed lands and a transmission line to convey electricity to the existing power grid. Specifically the project will consist of 67 wind turbines and 425,000 photovoltaic solar panels. The wind component of the project is classified as a Class 4 Wind Facility and the solar component of the project is classified as a Class 3 Solar Photovoltaic Facility. It has been confirmed that Bobolink and Eastern Meadowlark occur within the project area. The targeted start date for construction is October 2012.
Samsung Renewable Energy Inc. has been in discussion with MNR staff about reasonable alternatives and has adjusted their proposal by avoiding sensitive habitat for Bobolink and Eastern Meadowlark by strategically placing wind turbines and solar panels in locations where they will have the least impact. Samsung Renewable Energy Inc. has submitted a proposal in relation to an overall benefit permit under clause 17(2)(c) of the ESA to remove habitat for the purpose of developing wind and solar facilities.
Reasonable alternatives are being considered, including ones that would not adversely affect the species, and may include:
- Not undertaking the project;
- Relocating the project to avoid species and their habitat;
- Adjusting timelines to eliminate impact to Bobolink and Eastern Meadowlark;
- Using alternate methods, equipment, designs, etc. for carrying out the proposed activity.
Potential approaches to minimize adverse effects on individual members of Bobolink and Meadowlark may include:
- Conducting vegetation removal and construction activities outside of the breeding bird season when Bobolink and Eastern Meadowlark would not occur on site (i.e. August 1 to May 1);
- Ensuring that a construction inspector monitors the installation of access roads, turning radii, crane pads and the infrastructure for solar panels
- Minimizing the width of access roads, turning radii and size of crane pads;
- Relocating access roads to lower quality habitat by constructing access roads adjacent to existing hedgerows or the edges of fields, wherever possible;
- Restoring areas temporarily disturbed by initial construction activities to high quality grassland habitat;
- Training for on-site workers, design team and consultants to raise awareness about Bobolink and avoiding impacts.
Potential approaches to achieve an overall benefit for Bobolink and Meadowlark may include:
- Obtaining land to replace any habitat that will be lost for the construction and operation of the solar facility and wind facility at a replacement ratio of 1:1;
- Reducing knowledge gaps by implementing a research project relevant to the species and its use of habitat in the landscape that includes wind and solar facilities.
Please note that the posting of this proposal on the Environmental Registry does not imply that a permit will be approved; a permit may only be issued where the legal requirements set out in clause 17(2)(c) of the ESA have been satisfied.
The following web-links provide additional information.
MNR’s Species at Risk website
Endangered Species Act, 2007
Species at Risk in Ontario (SARO) List, Ontario Regulation 230/08
General regulations and species-specific habitat regulations under the ESA, Ontario Regulation 242/08
Additional information about this permit may be found on the MNR Species at Risk website, which will be updated periodically.