MNR not complying with their own Bald Eagle Management Guidelines

Continuing on from the article How the MNR and Wind Developers destroy eagle nests, Here are some examples of how the MNR does not follow their own regulations from the NextEra Adelaide ERT cross-examination of the MNR’s Joseph Halloran. Do we need to CLEAN HOUSE at the MNR??

DSCF4761Ms. Wrightman – “MNR’s Bald Eagle Management Guidelines: Rate of Development:  Development if it is to occur should only be allowed to approach the upper limit slowly over a period of years.  Sudden, large-scale development should be prevented if possible,” (this is development around an eagle nest). Is the construction of a substation, slow, phased-in development?

Mr. Halloran – Sorry, I’m just trying to get the context of….

Mr. Vanderbent (ERT Chair)-  in fairness to the witness….

Mr. Halloran – I’m sorry, can you refer me to the question?

Ms. Wrightman – Is the construction of a substation a slow, phased-in development? Does the MNR consider it that?

Mr. Halloran – I’m not too sure if the MNR considers it that. All I can tell you is that the substation where it is proposed to be built is allowed under these guidelines.

Mr. Vanderbent (ERT Chair) – I’m sorry, could you repeat your last statement again.

Mr. Halloran – Sure, I’m not too sure what MNR stance is on the substation, whether or not this is large-scale development in regards to the sub-station, however I can say that the location of the substation proposed for the Adelaide wind facility is as per these guidelines. It does meet the guidelines.

Ms. Wrightman – A substation for 221 turbines, do you think that’s large-scale development?

Mr. Halloran – Potentially.

Ms. Wrightman – So, does the MNR approval or guidelines, or however you approve these things, does it consider the rate of development? Is that something you consider when you are, in your position?

Mr. Halloran – I think in this situation as they are able to keep the infrastructure greater than 400m, that’s what we considered at this point, because that is what is allowed under these guidelines.

Ms. Wrightman – Sorry – do you consider the speed of construction – is it slow, phased-in? Does the MNR consider the speed?

Mr. Halloran – I don’t think we considered the speed in this instance. Once again it’s because the guidelines is that they’re outside 400m, that is acceptable, as per the guidelines.

Ms. Wrightman – 400 – 800m is still the tertiary zone, right?

Mr. Halloran – That’s right. All the infrastructure’s located outside – for the Adelaide project outside 400m.

Ms. Wrightman – 405 m?!

 

[*NOTE: the minutes from the NextEra Bornish Community Liaison meeting state this:

Is the substation 187metres away from the nest or is it 400m away?
The permanent substation will be located at least 400m away from the eagle nest. However, the temporary construction disturbance area around the substation is 200m away from the eagle nest.]

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There is no map or diagram of where the construction ends for the Adelaide project. The MNR did not demand solid information on where the construction will happen, and how it will stay more than 400m away from the nest. The last the public knew, the nest sits 187m from the substation area -this was in NextEra’s NHA reports. At the ERT hearing NextEra now says it is roughly 405m (??) from the nest, as the minimum distance it must be is 400m. But… this is all just heresay – nothing is in writing.]

eagle nest Bornish mapMs. Wrightman – Do you have a map that shows this 405m exactly to the nest to the substation?

Mr. Halloran – I don’t believe there’s any in my documents.

Ms. Wrightman – So, are we dealing with just a number pulled out of the hat that the public has never seen? That the MNR really doesn’t have documents to prove?

Mr. Halloran – I do have some e-mails on record that have some estimates; however, I think, MNR is putting within these documents and I think the REA that the documents must be followed and the infrastructure is to be outside the 400m.

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From the MNR Bald Eagle Guideline: “Breeding habitat including all potential occupied breeding areas, alternate nests and infrequently used areas should be considered essential habitat.” The MNR is not protecting this essential habitat.

eagle nestMs. Wrightman – How is the infrequently used habitat being protected by the MNR?

Mr. Halloran – I think we’re – I’m not too sure how to answer that one. All I can tell you is that due to the location of the nest and the nesting area, we’ve provided all the requirements for the nest and, I think that’s all I can say on that.

Ms. Wrightman – Is the MNR aware of where these breeding areas, alternate nests, infrequently used areas are?

Mr. Halloran – For…

Ms. Wrightman – For this bald eagle nest.

Mr. Halloran – For this bald eagle nest, umm, we do have some new information with regards to biannual study conducted to assess where some of the fly patterns are.

Ms. Wrightman – Is that available to the public?

Mr. Halloran – I believe that document says, as I said before, we’re reviewing it now.

Ms. Wrightman – So how will you be implementing to protect those areas?

Mr. Halloran – We’re doing that by protecting the actual nest itself.

Ms. Wrightman – Is it not fair to say that this paragraph says that you should be protecting those areas as well?

Mr. Halloran – I think just to answer that one in discussion with my colleagues, in the use of these guidelines it was decided we would use the protection in regards to section 3.2.2 to protect the nest in this instance.

Ms. Wrightman – So can you pick and choose which guidelines you want to use?

Mr. Halloran – I believe that’s just based on our colleagues who have previous experience in utilizing this guidance and how it’s been used previously.

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From the MNR Bald Eagle Management Guidelines: “Essential habitat shall be contiguous unless feeding areas or other essential habitat components are relatively far removed from the nesting area.” The MNR does not even recognize this part of the guidelines.

2013 MLWAG mapMs. Wrightman –With all the hundreds of turbines being proposed in the area including the Adelaide one’s, how is the MNR ensuring that the habitat is being kept contiguous?

Mr. Halloran – I think the habitat is, uh, I don’t know how to answer that one.

Mr. Vanderbent (ERT Chair) – I’m sorry…

Mr. Halloran – I just don’t know how to answer that one, can you explain that question to me, please?

Ms. Wrightman – If you chop it up with all these wind turbines, and hundreds, we’re talking over 250 turbines, I believe within Middlesex and Lambton Counties around this nest, how are you keeping that habitat contiguous? If they can’t fly, I mean the reason, I believe, they, or I was told by Nextera that they moved the nest in Haldimand was because they didn’t want to have the eagles killed, struck by the wind turbines. So now you have all these turbines. You’ve basically destroyed that habitat around there because they could get killed. So, how’s the MNR monitoring the area and keeping it contiguous without having all these turbines all up?

Mr. Halloran – MNR’s not monitoring that area.

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Ms. Wrightman – So, with this one eagle death (Norfolk Cty, 2009) that you’re slightly aware of, is it fair to say that by allowing this one eagle to be killed in Norfolk Cty. that the threshold or the harvest rate is loosely set at at least one eagle per wind development since there was no fine or jail time involved in this?

Ms. Clements (MOE lawyer) – I think this witness has already answered a question about harvest rates and whether there is a harvest rate and he said he is not aware of one.

Ms. Wrightman – Well I’m going a step further.

Mr. Vanderbent (ERT Chair) – I think that’s the answer that you got. I think in fairness to the witness, I mean a harvest rate is – refers to licensing people so that they can go out and shoot a species. And then we have the regulation that governs mortality issues related to the operation of the wind turbine, turbines and they are separate things. So by combining them you kind of confuse the question I think.

Ms. Wrightman – I can separate it. You want to talk about thresholds.

Mr. Vanderbent (ERT Chair) – Yes, I think that would be a clearer question.

Ms. Wrightman – OK, alright, so I’ll change the word there. Is it fair to say that by allowing one eagle to be killed in Norfolk by a wind turbine that the “threshold rate” is loosely set at,  at least one eagle per wind development since there wasn’t any fine or jail time involved?

Hallo – In regards to the threshold I’ll refer you to the actual thresholds in the guidelines. So the Bird Habitat Guidelines, Wind Power Projects is on Tab # 3. So if you go to pg. 11, Sec. 4.1, Mortality Thresholds, there’s some bullet points there. So if bird mortality is considered by this guideline to be significant when a threshold of annual bird mortality exceeds 14 birds/turbine/year individual turbines, or turbine groups  0.2 raptors/turbine/year all raptors across the wind project, or 0.1 raptors/turbine/year provincially tracked raptors across the the wind power project, or 2 raptors/wind project if the project is less than 10 turbines.

Ms. Wrightman – So where would the bald eagle fit in there?

Mr. Halloran –  It would fit underneath the raptors.

Ms. Wrightman – The first, second or third raptor point?

Mr. Halloran – I believe –  it’s my understanding that bald eagles are provincially tracked raptors, but to be honest, I’m not confident on that one. I probably should look into that. So, it would fall into one of those two. In any case, 0.2 is for all raptors.

Ms. Wrightman – Are bald eagles allowed to be killed by any other means in Ontario – the MNR allow for any other?

Mr. Halloran – Umm, not that I’m aware of.

Ms. Wrightman – Does the MNR monitor the eagle population in Ontario?

Mr. Halloran – The MNR does not.

Ms. Wrightman – Does Bird Studies Canada monitor anymore?

Mr. Halloran – I believe so, yes.

Ms. Wrightman – Do they still?

Mr. Halloran – I’m not too sure to be honest.

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… and this, again no databases or monitoring. Really, or government has no clue as to what the destruction is.

Ms. Wrightman – So how does the MNR monitor the cumulative impact of habitat destruction and nest removal? I mean you have counts on deaths, but do you have counts on nest removal?

Mr. Halloran – Um, no, I’m not aware of any type of count, per se, or database of nests removed.

Ms. Wrightman – Do you have a count of the amount of habitat that’s been destroyed – bob-o-link habitat, bald eagle, barn swallow, whatever – snapping turtle?

Mr. Halloran – Um, I’m not sure we have any type of figures related to that.

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eaglesMs. Wrightman – I’m looking at paragraph #7. Did anyone from Nextera or the MNR monitor the fate of that particular pair of eagles whose nest was removed?

Mr. Halloran – So it’s my understanding that particular pair weren’t monitored or tracked in any way.

Ms. Wrightman – So does the MNR know where they ended up?

Mr. Halloran – Uh, not that I’m aware of.

Ms. Wrightman –  And paragraph 8,  it says the MNR voluntarily posted a notice on the Environmental Registry to inform the public that a permit related to the Summerhaven wind energy centre proposed by Nextera – yada, yada, yada – Ok so they voluntarily posted this permit, does the MNR usually not bother telling local residents and First Nations when they’re going to remove an eagle nest or some other species?

Mr. Halloran – Um, so in this instance there wasn’t a requirement to post anything on the Environmental Registry, however they voluntarily did it as I said. Uh, in regards to communicating that to the public in other formats, to be honest I haven’t dealt with any type of authorization other than fish and wildlife conservation act so I can’t say what MNR would do, they may contact, other than the proponent.

Ms. Wrightman – So the only person they have to contact is, in this case, Nextera energy?!

Mr. Halloran – Uh, my background on – if they are required to talk to the public or First Nations, I honestly don’t know if there is a requirement to do that.

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Ms. Wrightman – After 3 years after the construction of the project, the Adelaide wind project and the bald eagle nest, for example, who monitors the survival of the eagles in relation to these turbines after 3 years?

Mr. Halloran – after 3 years, the bald eagle? – so if they monitoring for 3 years and there were no effects noticed, then there is no requirement to monitor further.

Ms. Wrightman – So if an eagle is killed and is on the ground there, nobody will be looking for it after 3 years?

Mr. Halloran – After 3 years if all the monitoring commitments have been adhered to prior to that; yes, there will be no requirement for us in regards to monitoring.

Ms. Wrightman – Is that?… so we have projects that have been up for 3 years, is there any monitoring done around those projects?

Mr. Halloran – Uh, there may be, it would be specific to the projects in regards to…

Chair – I’m going to interject here for – I mean the questions are to be for the assistance of the tribunal and so if you just refer to projects generally, um, it’s a bit difficult to understand what that – what the impact of that might be.

Ms. Wrightman – I’m trying…

Chair – If you could be a bit more specific is all I’m saying with the question.

Ms. Wrightman– All right, what I’m specifically saying is: 3 years past this Adelaide project you’ll be in the same place as other projects that are up and running now. If they’re killing eagles, does anybody know; and, will we know about the Adelaide project in 3 years time if they’ll be killing eagles? Is anybody monitoring past that and he (Halloran) said, “No”, right?

Mr. Halloran – Yeah, if all the commitments have been met, and there was no requirement to monitor after 3 years, then there’s no requirement for that proposed monitoring.

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bald eagle permit1_FotorMs. Wrightman- …and this is the authorization to destroy, take, possess nests, eggs from the MNR. What is the likelihood that one of these would be – could be made up for the Adelaide project?

Mr. Sternberg (NextEra lawyer) – I have, excuse me sir, chair, I have really endeavoured not to interfere with the examination – but I have to object to the question. The only evidence before you from a number of witnesses so far is that there is no intention to remove the nest. The certainly has been no application has been made to remove the nest. In fact the evidence is that many efforts have been made to ensure the nest is and the eagles are protected. So the questions improper because the basis – the question is predicated on the opposite scenario: she’s saying what’s the likelihood of the application or the application won’t be allowed. Well there is no application, so there’s no basis for the question. That’s entirely contrary to all the evidence of the witnesses.

Mr. Vanderbent (ERT Chair) –  it may be a difficult question to answer because your asking the person to gaze into the future to determine people’s behaviour, so I’m not sure how much that is going to assist the Tribunal in terms of the test we have before us.

Ms. Wrightman – Would the Tribunal ever be in a position to see one of these happen – one of these destroy, take, possess papers – or is that always going to happen after the hearings done?

Mr. Vanderbent (ERT Chair) – Well the tribunal’s not in a position to answer any of your questions. You’re into a cross-examination of this witness. The evidence is clear in this case that the REA, there was a renewable energy approval issued, it was stated in the witness statement. And if there is a permit that applied for subsequent to that then the MNR would make a decision on that.

I just don’t – I think you’ve covered this territory pretty thoroughly in cross-examination before.

Ms. Wrightman –  Right – OK.

Mr. Vanderbent (ERT Chair) – I note it’s now an hour, eleven thirty so I’m looking for you to cover whatever areas…

Ms. Wrightman – Yeah, I got like one more question – I’ll be quick. Can you explain how this destroy permit makes the action of removing a bald eagle nest legal? That’s my last question.

Mr. Vanderbent (ERT Chair) – The difficulty with that question is that, I think you’re asking for a legal opinion from this witness who has – to the extent he’s talking about the process he’s describing what the regulatory process is, so I’m not sure – we already know what the regulatory process is, you apply for a permit and the MNR can grant it so I just don’t know what your question is about, that’s all.

Ms. Wrightman – OK, well we’ll just wait and see what happens with the nest.

16 thoughts on “MNR not complying with their own Bald Eagle Management Guidelines

  1. As we know, where gov’t ministries and policies meet, there is always a double standard (even a triple one). If you are a corporation with a FIT contract, ministries will, as a matter of course, use a double or triple standard to apply their rules. Bald eagle? No problem, kill it. I want to build a house on my land. Water snake? Sorry, no can build, the little bugger has to be protected. If you are a municipality: yes, no, maybe.

  2. Thank-you, Ms. Wrightman, for helping us to truly know that you are dealing with people who live in fear and are ignorant, evasive and arrogant – who, most frighteningly, seem not to respect eagles,or any other sentient beings who get in what they have decided is “their” way – or the way of their lords and masters.

    You, on the other hand, acquit yourself beautifully,with the integrity of a clear mind and caring heart, along with a breadth of knowledge and critical thinking which is simply stunning. And you accomplish this with a level of respect that must be, for most of the people you are dealing with, unheard of.

    You are AWESOME. Rampage of appreciation coming your way, Ms. Wrightman.

  3. The ERT Chair. said the MNR and that’s that.
    Nothing said that eagles are migratory birds and in the legal opinion of Mr.Jerry DeMarco this should come under the Canadian Wildlife Service.
    Ontario can do as it pleases.

  4. Master Resource, Jan.7,2014
    “Speaking Truth to Wind Power (Recent IER Panel on the Hill)”
    Use link to view “Flora’s Wagon of Fools” powered by wind and painted in 1640 by Hendrick Gerritsz Pot Heras.

  5. The Lawyers Weekly, June 19, 2009 Issue
    “Under Bill C-16, J.D. Irving would have been assessed an initial fine of at least $100,000 for a summary conviction offence,plus additional penalties for any aggravating factons. plus the possibilty of an additional payment order to a conservation fund.”
    http://www.lawyersweekly.ca/index.php?section=main
    Use the Archives > “Getting tough on polluters”
    Federal Bill C-16, Environmental Enforcemnt Act received Roylal Assent June 18, 2009

  6. The ERT, lawyers and Bird Studies Canada know that migratory birds are subject to federal jurisdiction.
    Yet, this charade goes on because the general public is kept in the dark about this issue.
    Maybe Esther showed video of an event that did not have federal permission to take place?

  7. Did President Obama recently decide wind turbine facilities are permitted to kill eagles; and how would this affect the Migratory Birds Convention Act, 1994 that was in place when the nest was removed, and now?

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