Divisional Court tells Municipality of West Grey to change by-laws and grant permits required for local wind farm

The applicant wind farm developer (NextEra Energy Canada ULC) sought judicial review of two municipal permitting by-laws that prevented it from proceeding with the construction of a project; in order to complete the development, the applicant said that it required permits from the Municipality of West Grey.  The Divisional Court hearing the application noted: "The application raises the question of when and how a municipal by-law or policy may frustrate the purpose of a provincial legislative instrument.  The factual backdrop for this legal question is the ongoing renewable energy revolution in Ontario that was ushered in by the Green Energy Act, S.O. 2009, c. 12.  This revolution has spawned much litigation, particularly around wind energy projects."

 

The applicant received the Renewable Energy Approval (REA) from the Ontario Ministry of the Environment for its 14-turbine project in January, 2014.  However, the applicant would also need "entrance permits" to connect access roads on private lands to the public highways within the municipality, as well as "oversize/overweight haulage permits" to allow for the conveyance of large and heavy project materials by truck along public highways.  The municipality declined to grant the required permits, in part on the basis of changes it had made to its by-laws.

 

The applicant argued to the Divisional Court that it holds a valid REA from the province and that, since the municpal by-laws are in direct conflict with the REA, the by-laws are inoperative to the extent of the conflict (under Section 14(1) of the Municipal Act, 2001).  The Court noted that a municipality can only exercise its powers by by-law, and the Municipal Act, 2001 provides that a by-law cannot frustrate the purpose of a provincial or federal Act, regulation or instrument. 

 

Based on the Court's interpretation of the REA, it found that the municipality's permitting by-laws did prevent the project from being built.  Therefore, the by-laws frustrated the purpose of the REA and must be held inoperable, but only to the extent of the conflict with the REA. 

 

However, the Divisional Court did not accept the applicant's alternative argument that the municipality had acted in bad faith in refusing to grant the required permits.  As the Court stated, "The Municipality is a democratic body accountable to its constituents.  It has a broad legislative discretion to enact by-laws governing issues that regulate daily life and the built infrastructure within its jurisdiction ... Council's call for a moratorium on wind energy projects in Ontario and its declaration that it is an "unwilling host" for such projects are not acts that, in and of themselves, support a finding of bad faith."

 

Read the decision at: East Durham Wind, Inc. v. The Municipality of West Grey.

Do Wind Energy Projects harm the soil? Do pipelines?

On an appeal of a Renewable Energy Approval (REA) for a 49-turbine wind farm, the Environmental Review Tribunal (ERT) considered whether the project would cause harm to soils.  The appellants in the case raised issues including harm to farm animals due to electro-magnetic fields and harm to farming practices.  Lay evidence and expert evidence was called on the issue of harm to soils, including evidence relating to the effect of pipeline projects on farm land and production.

The appellants argued that the soils to be affected by the installation of the wind turbines were unique soils particularly suited to potato farming.  Those soils would be permanently affected by the project, which would result in serious and irreversible harm to land (while other poorer lands were available to accommodate the project). 

The project proponent argued the opposite, putting forward evidence that the soils in question were not the only soils in Ontario well-suited to potato production and that soil restoration would be possible following the project.  The proponent's expert witness, Dr. Gregory Wall, suggested that the soil modification required for a wind turbine is not as drastic as for a pipeline, and testified that farmers, and pipeline companies, have been successfully remediating compacted soil for many years.  He said that on a recent pipeline project, he "expects these lands to return to original crop production levels within ten years," and says, "it is my understanding that landowners affected by pipeline construction are often compensated on this basis."  Dr. Wall also testified that with "major changes" in mitigation techniques, lands affected by pipeline projects are now experiencing "full yields" approximately two-years post-construction.

While Dr. Wall was qualified by the ERT as an expert in "soil science"; it's not clear that he was qualified to provide any opinion on compensation for crop loss (and whether that compensation is adequate).  One might also question the large discrepancy in his evidence about the time it takes to return farm land to full production following a pipeline project. 

The ERT found the amount of land to be affected by the proposed wind project to be relatively small in size, so that a relatively small amount of soil would be disturbed.  The ERT then found that the "amount of soil to be disturbed in order to construct and operate the Project is consistent with the scale of disturbance for roads, farm buildings and other facilities required in the normal use of agricultural lands."  However, the ERT noted that in a different project, it could be that a relatively small disturbance could be considered serious.

The ERT also accepted that the mitigation measures, if applied as described by expert witnesses for the parties responding to the appeals, will be successful in restoring the soils to productive agricultural use and are appropriate to the scale of soil disturbance that will result from the project.  Therefore, the appellants failed to establish that the project would cause serious and irreversible harm to soils.

Read the decision at: Bovaird v. MOE.

ERT dismisses Chatham Kent wind turbine appeal

The Environmental Review Tribunal (ERT) has dismissed an appeal by the Chatham Kent Wind Action Inc. of a Renewable Energy Approval (REA) of a 270 MW wind farm near Tilbury and Ridgetown, in the Municipality of Chatham-Kent, Ontario. 

 

Key findings were made by the ERT at paragraphs 63 and 64 in its decision:

 

[63] The Tribunal has the duty to apply the statutory test. The onus is on those challenging the REA to establish how engaging in the renewable energy project in accordance with the renewable energy approval will cause serious harm to human health. Although Mr. Erhard raises concerns with respect to the accuracy of noise prediction, evidence is needed to establish that the alleged inaccuracies with noise predictions will cause serious harm to human health. No evidence and no submissions were made to connect the alleged inaccuracies with respect to the noise predictions with harm to human health or the environment.

 

[64] In conclusion, the Tribunal finds that the Appellant, the participant and the presenter have not shown that engaging in the Project in accordance with the REA will cause serious harm to human health as required by s. 145.2.1(2)(a) of the ERT.  The Tribunal, therefore, dismisses the appeal.

 

Read the decision at: Chatham Kent Wind Action Inc. v. MOE.

Construction begins on controversial solar farm near Belmont, Ontario

Construction has now started on a controversial 448 acre solar farm located northwest of the Town of Belmont in Southwestern Ontario.  The farm will cover prime agricultural soils, but is not subject to the current restrictions on use of Class 1, 2 and 3 agricultural soils for large-scale solar projects.  The proponent, First Solar, obtained a contract from the Ontario Power Authority (OPA) under the former Renewable Energy Standard Offer Program (RESOP).  The new prohibition on use of prime agricultural land came into effect only with the new Feed-in Tariff (FIT) Program. 

While the project benefitted from the lack of protection for agricultural land under the old RESOP program, it also took advantage of the new changes to municipal authority brought in under the Green Energy Act.  Under the Green Energy Act legislation, municipalities have little or no ability to challenge the approval of renewable energy projects within their jurisdictions.

MOE moving more industries into Environmental Activity and Sector Registry

From the Environmental Bill of Rights Registry:

The Ministry of the Environment has recently implemented an Environmental Activity and Sector Registry (EASR) that allows businesses to register certain activities with the Ministry (rather than seeking an Environmental Compliance Approval, formerly known as a Certificate of Approval). The EASR is a public, web-based system where people engaging in selected activities will be required to register the activity and to meet eligibility and operating requirements set out in regulation, rather than seeking an approval through the normal application submission and review process. These requirements could be comprised of, but not limited to, design requirements, pollution control measures and best management practices. The Ministry will enforce compliance with the EASR regulation according to our compliance strategy, as it does for all its approvals today.

To date, activities relating to the following have been added to the registry: automotive refinishing (autobody shop spray booths), comfort heating systems and stand-by power systems. Registry requirements for these activities/sectors are described in Ontario Regulation 245/11 under the Environmental Protection Act.

As part of the Ministry’s ongoing work to implement a new environmental approvals program, additional activities and sectors are being evaluated for their potential inclusion on the EASR. This work involves comprehensive technical analysis and two periods of public consultation to ensure registry activities are developed in a transparent and science-based manner and that the resulting registry rules are protective of the environment.

To encourage localized generation from smaller, cleaner sources of electricity and community-based renewable energy facilities, the Ministry is proposing to allow specific small scale renewable energy projects to register on the EASR. The proposed EASR eligibility criteria for small scale renewable energy facilities are designed to eliminate potential impacts to the environment through facility design and siting restrictions.

Process for Developing Registry Regulations

When developing a regulation to include a new activity/sector on the EASR, the Ministry undertakes a comprehensive technical analysis and consultation process. This process contains the following steps:

1. Detailed scoping and technical assessment of activity/sector
   
   • Engineering analysis
   • Risk evaluation and modelling
   • Jurisdictional review
   • Evaluation of local concerns/complaints and past administrative non-compliance with requirement to obtain an approval
2. Development of draft registry requirements
   
3. Public consultation on a technical report describing draft requirements (the reports included in this posting)
   
4. Development of a draft regulation
   
5. Public consultation on a draft regulation
   
6. Finalizing of regulation and implementation

It is important to note that, while Steps 3 and 5 specifically provide for broad public input through comment on postings on the Environmental and Regulatory Registries, the Ministry is also engaging at various levels with relevant interested groups (industry, associations, Aboriginal organizations/communities and technical specialists).

The following technical reports summarize the proposed rationale for moving specific activities and sectors from the Renewable Energy Approvals (REA) process to the registration process.

1. Technical Report on Proposed Environmental Activity and Sector Registry (EASR) Requirements: Small Ground-Mounted Solar
2. Technical Report on Proposed Environmental Activity and Sector Registry (EASR) Requirements: On-Farm Anaerobic Digestion
3. Technical Report on Proposed Environmental Activity and Sector Registry (EASR) Requirements: Landfill Gas Electricity Generation

This proposal has been posted for a 45 day public review and comment period starting April 02, 2012. Comments or questions can be submitted by May 17, 2012 to:

Chris Goode
Senior Advisor
Ministry of the Environment
Environmental Programs Division
Modernization of Approvals Project
135 St. Clair Avenue West
Floor 4
Toronto Ontario  M4V 1P5
Phone: (416) 325-7893

Comments can be submitted on-line at: Comments.

All comments received prior to May 17, 2012 will be considered as part of the decision-making process by the Ministry of the Environment if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-5695.

MNR releases final version of Bats and Bat Habitats: Guidelines for Wind Power Projects

The Ontario Ministry of Natural Resources (MNR) has approved and released the final version of its Bats and Bat Habitats: Guidelines for Wind Power Projects.  A decision was made on July 29, 2011 to proceed with the proposal for the guidelines, following a period of public consultation during which 68 comments were received.  The online comments can be viewed at: comments. 

The MNR says that it has incorporated the following recommendations received during the consultation period into the guidelines:

• Enhanced protection for bat hibernacula habitat has been provided by increasing the significant wildlife habitat designation associated with hibernacula from 200m to 1000m. 
• Methodologies related to significant bat maternity roosts/colonies have been revised and coordinated with Ecological Land Classification.
• Monitoring methods for evaluating bat significant wildlife habitat and post-construction mortality monitoring have been revised to reflect public/industry comments and scientific recommendations.
• Data submission procedures related to the Wind Energy Bird and Bat Monitoring Database has been detailed.
• Ecological Effectiveness Monitoring Plan information requirements have been updated to reflect the Ministry of the Environment’s Renewable Energy Approval Regulation amendments of January 2011.

Renewable Energy Approval Fees in Ontario - Notice

Environmental Bill of Rights Registry Notice - Renewable Energy Approval Fees

The Ontario Ministry of the Environment has the ability to charge fees for Renewable Energy Approval applications under the Environmental Protection Act. These fees will be established through a Minister’s Order and are therefore exempt from public posting under the Environmental Bill of Rights, 1993. However, to ensure clarity and transparency for the regulated community and the general public and for consistency with the Ministry of Economic Development and Trade’s Business Registry and the Environmental Registry, the Ministry of the Environment is posting the fees and associated refunds for different classes of Renewable Energy Approvals on both Registries.

The Green Energy and Green Economy Act, 2009 was passed in the Legislature on May 14, 2009. The Act places priority on expanding Ontario’s use of clean and renewable sources of energy, including wind, water, solar, biomass and biogas power. As a key pillar in supporting the development of Ontario’s green economy, on September 24, 2009 the Ontario government introduced O. Reg. 359/09 (Renewable Energy Approvals under Part V.0.1 of the Environmental Protection Act. This regulation offers an approach to regulating renewable energy generation facilities that is based on transparency and clear, up-front provincial rules designed to ensure that the environment and human health are protected.

The Renewable Energy Approval simplifies the number and types of approvals required for new renewable energy projects, integrating environmental, health and safety matters previously dealt with by a number of provincial, municipal and proponent-driven processes into one process. Previous approvals processes had associated fees; e.g. the Ministry previously charged fees for Certificates of Approvals for renewable energy projects before the introduction of the Renewable Energy Approval in September 2009. In addition, the Renewable Energy Approval incorporates analysis of information that must be reviewed by other ministries (e.g. natural heritage assessments) and feedback from the mandatory municipal consultation requirements (e.g. site planning).

The Ministry has committed to a six month service guarantee for reviewing and providing a decision on complete applications. The six month service guarantee provides certainty for proponents, reduces proponents’ opportunity costs, and reduces Ministry approval times.

Purpose of the Notice:

The purpose of this notice is to ensure that industry and the public are made aware of the Renewable Energy Approval fees before they take effect on March 15, 2011.

The Ministry has the ability to charge fees for Renewable Energy Approval applications under the Environmental Protection Act. Section 179.1 of the Environmental Protection Act states that, “the Minister may establish and require a payment of fees in respect of any matter under this Act”. A Minister’s Order will be issued imposing the fees and associated refunds for different classes of Renewable Energy Approvals.

Who pays Renewable Energy Approval fees?

Only entities, companies or individuals, who want to engage in a renewable energy generation project, as defined in Section 47.3 of the Environmental Protection Act are subject to the Renewable Energy Approval and associated fees.

Some types of smaller renewable energy projects are not subject to the Renewable Energy Approval, or the fee. These projects include

• Roof-top and building mounted solar PV;
• Ground-mounted solar PV under 12 kilowatts;
• Wind turbines under 3 kilowatts;
• Regulated anaerobic digestion facilities;
• Farms with an approved Nutrient Management Strategy that would not have required a Certificate of Approval under the old approvals systems.

How were Renewable Energy Approval fees developed?

The fees have been set to help recover the province’s costs to manage the Renewable Energy Approval program while encouraging renewable energy development. The Renewable Energy Approval fee represents the estimated cost to the Ministry to review a Renewable Energy Approval application. The fees are based on staff time required to review the application for completeness and conduct a technical review associated with each class of Renewable Energy Approval.

The Renewable Energy Approval fees have attempted to balance cost-recovery with the development of the renewable energy sector by creating fee classes and capping the Renewable Energy Approval fee for small-scale and farm-based projects, including:

• Solar – Class 3 (solar PV installation 500 kilowatts or less);
• Wind – Class 2 (micro/small turbine, under 50 kilowatts);
• Anaerobic Digestion – Class 1 (on-farm, farm materials);
• Anaerobic Digestion – Class 2 (on-farm, ‘green bin’, biomass & farm materials);
• Thermal Treatment – Class 1 (on-farm, wood burning); and
• Thermal Treatment – Class 2 (on-farm, wood and biomass burning)

Renewable Energy Approval Fees:
 
The REA fees are based on the class of Renewable Energy Approval, as outlined in Ontario Regulation 359/09 (as amended by Ontario Regulation 521/10), and includes solar, wind and biomass electricity generating facilities. The proposed REA application review fees per class are:

Renewable Energy Approval Class and Associated Fees:

• Solar – Class 3 (Solar PV installation 500 kilowatts or less): $1,000
• Solar – Class 3 (Solar farm): $12,844
• Wind – Class 2 (Micro/small turbine, under 50kW): $1,000
• Wind – Class 3 (Medium sized turbine, over 50kW): $10,030
• Wind – Class 4 (On-shore commercial wind farm): $40,000
• Wind – Class 4 (On-shore wind farm over 50 MW): $56,458
• Wind – Class 5 (Off-shore commercial wind farm): $67,905
• Anaerobic Digestion – Class 1 (on-farm, farm materials): $1,000
• Anaerobic Digestion – Class 2 (on-farm, ‘green bin’ and biomass & farm materials): $1,000
• Anaerobic Digestion – Class 3 (Industrial facility): $27,896
• Biogas (Landfill gas): $22,266
• Biofuel (Liquids, bio-diesel): $22,266
• Thermal Treatment – Class 1 (Wood burning): $22,782
• Thermal Treatment – Class 1 (On-farm, wood burning): $1,000
• Thermal Treatment – Class 2 (On-farm, wood and biomass burning): $1,000
• Thermal Treatment – Class 3 (Commercial biomass burning): $26,311
• Administrative Changes: $300

Renewable Energy Approval Refunds

A Renewable Energy Approval applicant would be eligible to receive a partial refund if the Renewable Energy Approval application is not formally accepted for a technical review. If the application is returned to the applicant because it is considered incomplete, the application will be returned with a refund based on the Renewable Energy Approval class.

Refunds are not applicable to the following small and farm-based facilities as the cost to review an application for a technical review exceeds the Renewable Energy Approval fee:

• Solar – Class 3 (solar PV installation 500 kilowatts or less);
• Anaerobic Digestion – Class 1 (on-farm, farm materials);
• Anaerobic Digestion – Class 2 (on-farm, ‘green bin’, biomass & farm materials);
• Thermal Treatment – Class 1 (on-farm, wood burning); and
• Thermal Treatment – Class 2 (on-farm, wood and biomass burning)

Once a Renewable Energy Approval application is formally accepted for a technical review refunds will not be offered, even for withdrawn applications

Renewable Energy Approval Class and Associated Refunds

• Solar – Class 3 (Solar farm): $8,990
• Wind – Class 2 (Micro/small turbine, under 50kW): $380
• Wind – Class 3 (Medium sized turbine, over 50kW): $6,642
• Wind – Class 4 (On-shore commercial wind farm): $35,260
• Wind – Class 4 (On-shore wind farm over 50 MW): $49,390
• Wind – Class 5 (Off-shore commercial wind farm): $59,906
• Anaerobic Digestion – Class 3 (Industrial facility): $21,249
• Biogas (Landfill gas): $16,550
• Biofuel (Liquids, bio-diesel): $16,550
• Thermal Treatment – Class 1 (Wood burning): $18,575
• Thermal Treatment – Class 3 (Commercial biomass burning): $19,355 

Amendments to Renewable Energy Approvals in Ontario designed to bring clarity

Amendments to O.Reg. 359/09 (Renewable Energy Approvals)

As a key pillar in supporting the development of Ontario’s green economy, the Ontario government established O. Reg. 359/09 (Renewable Energy Approvals) under the Environmental Protection Act, on September 24, 2009. The regulation governs the approach to regulating renewable energy generation facilities based on transparency and clear, up-front provincial rules, while ensuring that the environmentt and human health are protected.

Since the regulation came into force, certain provisions of the regulation have been identified as needing further clarity or detail to bring them in line with the original intent of the regulation. The Ministry has made amendments to the regulation to strengthen and clarify those provisions.  The amending regulation was filed with the Registrar of Regulations as Ontario Regulation (O.Reg. 521/10) on December 20, 2010.  The regulatory amendments come into force on January 1, 2011.

Public Consultation on the proposal for this decision was provided for 45 Days, from October 07, 2010 to November 21, 2010.  As a result of public consultation on the proposal, the Ministry received a total of 285 comments: 24 comments were received in writing and 261 were received online.

The Ministry considered all comments received during the comment period in response to the posting and made the following revisions to the amendments originally posted in the proposal notice:

Vacant lots

Ontario Regulation 359/09 identified the centre of a vacant lot as a noise receptor for the purpose of determining setback distances for wind energy and other facilities. Since the implementation of the REA process and during the EBR consultation period the Ministry heard a mixed opinion on the best approach to this issue. This amendment changes this approach to make it consistent with the Ministry’s 2008 Noise Guidelines, requiring a consideration of the existing zoning by-law and typical building pattern in the area when determining a more likely location for a future noise receptor. This approach will also allow for consideration of existing municipal zoning permissions and the typical local building patterns.

Definition of noise receptor

Ontario Regulation 359/09 described a noise receptor as a location for “overnight accommodation”. This amendment changes the definition of noise receptors from “overnight accommodation” to “dwelling” to better match the originally intended interpretation of a noise receptor – locations where there is a residence with cooking, eating, living, sleeping and sanitary facilities. In response to comments received in the EBR consultation, the definition of “dwelling” was further modified by replacing the words “intended to be used” with “capable of being used”. The Ministry is also clarifying that a dwelling can be either a permanent or seasonal residence. This definition of dwelling is based on the definition in the Building Code and is premised upon the existence of the infrastructure needed to support someone living in a dwelling.

Setback prohibitions and cumulative noise assessment

The wind turbine setback prohibitions in Ontario Regulation 359/09 required proponents to consider all noise receptors at the time of construction. This approach did not reflect the fact that the surrounding conditions could change between the time of approval and time of construction. This amendment changes the time at which a proponent must consider noise impacts to surrounding noise receptors, requiring proponents to consider all noise receptors at the time they make their site plan public. Proponents then have 6 months to submit an application with the noise receptors defined in that site plan. In response to comments received, the Ministry is adding the ability of the Director to extend the expiry date of the site plan beyond the originally proposed 6 months if the proponent cannot submit an application due to circumstances outside his or her control. This requirement to consider all noise receptors at the time the site plan is made public also applies to existing projects that have made their site plan publicly available prior to the amendment coming into force.

The amended regulation also requires proponents to consider all existing and publicly known projects in the surrounding area when determining their site plan and complying with the noise setback requirements. Considering all publicly known projects in the area may require larger set backs in the noise modeling, and will ensure the Ministry can assess the cumulative impacts of the proposed project.

Public notification of meetings

Ontario Regulation 359/09 required notice of public meetings 30 days prior to the first meeting. This amendment clarifies that public notice must be made 30 days prior to the first public meeting and 60 days prior to the final public meeting. This is to allow for additional consultation where necessary and avoid the need for notice of all public meetings to be made at the very start of the process. In response to EBR comments received, the Ministry has also extended the notice period for the final public meeting from 30 days to 60 days. The 60 day period is consistent with when draft reports must be made available to the public prior to the final public meeting and will enhance public engagement.

Public notification of Renewable Energy Projects

Ontario Regulation 359/09 required written notice of a project to all landowners within 120 metres of the project location. This amendment changes the notification requirements, requiring written notice to all adjacent landowners in addition to those within 120m of the project location. This amendment applies to all renewable energy projects. In response to EBR comments and concerns about wind energy projects in particular, the Ministry has also extended the 120 metres distance to 550 metres in the case of Class 3, 4, or 5 wind energy projects to better align with the minimum setbacks from noise receptors. The extension to 550 metres does not apply to small wind or other types of renewable energy projects such as solar, and does not impact the minimum setback prohibition for Class 4 or 5 wind facilities of 550 metres from the base of a turbine to a noise receptor. These amendments will encourage increased transparency and enhanced public engagement.

Public notification of an application being made to the Director

Ontario Regulation 359/09 did not require final documentation submitted to the Ministry to be made public. This raised concerns about transparency and whether or not the proponent took into consideration the comments received during the consultation. This amendment requires proponents to post all documents that accompany a REA application on the proponent’s website, should they have one. In response to the EBR comments received, this amendment further requires the proponent to provide public notice of their application being accepted for review by the Ministry. Within 10 days of their application being posted on the EBR by the Ministry, the proponent must publish a newspaper notice. The notice must include project information, the website where final documents can be viewed, and a statement that members of the public can submit comments to the Director via the EBR. This amendment will ensure that the public is aware of an application being submitted and of the EBR comment period. This rule does not apply to Class 2 wind facilities or to bio-energy facilities located at a farm operation. These amendments will encourage increased transparency and enhanced public engagement.

Municipal consultation

Ontario Regulation 359/09 required that the Ministry’s municipal consultation form be provided to the municipality 90 days prior to the final public meeting, and draft reports be made available 60 days prior to the final public meeting. While the intent was to give municipalities an early opportunity to learn about the project, without the documentation it proved difficult for municipalities to be meaningfully engaged. This amendment requires proponents to provide a draft Project Description Report and the Ministry’s municipal consultation form to municipalities at least 30 days prior to the first public meeting. Draft reports (but not the confirmation letters from other ministries) must be provided to municipalities 90 days prior to the final meeting. In response to EBR comments the Ministry has removed the requirement to provide the municipal consultation form 90 days prior to the final public meeting to avoid unnecessary duplication. Municipal consultation is an important part of the REA process and these amendments will better ensure municipalities can make informed and timely comments on the project proposed.

Wind turbine specifications report

Ontario Regulation 359/09 requires a wind turbine specification report for Class 3, 4 and 5 wind projects. The amendment requires that the specification report must include acoustic emissions data in accordance with Canadian Standards Association (CSA) standards. As a result of EBR comments received, the Ministry has also added the terms “measurement uncertainty value” and “tonality” to the specification report requirements.

Director discretion

Ontario Regulation 359/09 sets out specific requirements a proponent of each type of renewable energy facility must meet prior to submitting a REA application. This had created the unintended consequence of proponents not technically meeting the requirements where they were responding to public concerns (e.g. changing the public meeting location to accommodate increased public interest). This regulation was proposed to provide discretion in prescribed instances to the Ministry of the Environment Director where the requirement was not necessary for adequate understanding of potential negative environmental effects or satisfactory consultation. In response to EBR comments received, the regulation has been changed to clarify that this discretion can only be exercised if the Director is of the opinion that it will not compromise an adequate understanding of the negative environmental effects of a project, or if it will improve public consultation.

Transition

The regulation provides proponents that have already issued a notice under section 15 of the regulation with the flexibility to use the amended regulatory requirements for applications. The EBR proposal notice proposed to have proponents declare whether they intend to use the amended requirements by submitting written notice within 60 days of this regulation coming into force. In response to EBR comments, this has been changed to allow proponents to identify if they have applied the amended requirements to their project in the publicly available documents at the time of REA application. This flexibility only applies to those that have already issued a notice so as to not unfairly impact project timelines and consultation done to date.

The EBR proposal notice indicated that these transition provisions would only apply to Part IV of the regulation (where renewable energy approval requirements where identified). In response to EBR comments, the Ministry has also clarified that the transition provisions apply to the amendments related to the definition of vacant lots and woodlands.

In addition to the concerns described above, the Ministry received a large number of submissions through the Environmental Registry that were not specifically related to the proposed amendments, but related to the Government’s position on green energy. The most common themes were related to general opposition to the Government’s green energy agenda and wind energy project development in particular. Some specific comments were related to perceived health impacts, setbacks, property values and loss of municipal decision-making authority.

The MOE Statement of Environmental Values was considered in the development of these regulatory amendments. The regulation takes an ecosystem approach and supports the principle of pollution prevention by facilitating the development of renewable energy generation which is a cleaner, less polluting source of electricity than fossil fuel-based generation. These amendments encourage increased transparency and enhanced public engagement. Amendments are in keeping with the principle of continuous improvement, as changes will strengthen and improve existing requirements.

Appeal of Wind Farm Approval in Chatham-Kent on the Environmental Registry

EBR Registry Number: 011-1039

Approval for a renewable energy project - EPA s.47.3(1)
Instrument Holder: Kent Breeze Corp. and MacLeod Windmill Project Inc.( Kent Breeze Wind Farms )
Instrument Issued by: Ministry of the Environment

 

Application for Appeal Initiated by:

Applicant Name:   Bill Wachsmuth

Decision under Appeal:
A Renewable Energy Approval issued to Kent Breeze Wind Farms, located in the Municipality of Chatham-Kent, for a Class 4 Wind facility consisting of eight wind turbine generators, each rated at 2.5 MW generating output capacity, with a total generation capacity of 20 MW.

 

Grounds for Appeal:
The Appellant is appealing the approval on the following grounds:

1. the lack of a Traffic Management Plan for the project, which was a condition of approval.

2. the proponent did not provide a plan for night lighting that will minimize the impacts on birds.

3. the turbines, which are not permitted to operate while under construction, should not be allowed to operate in foggy conditions once fully operational.

Read the Notice at: EBR Notice.

Ontario - Birds and Bird Habitats: Updated Guidelines for Wind Power Projects

The Green Energy Act 2009 (GEA) places a priority on expanding Ontario’s use of clean and renewable sources of energy, including wind power. A key element of the GEA is a new integrated approval process that establishes clear up-front requirements for most renewable energy projects. These requirements are outlined under the Ministry of the Environment’s (MOE) Renewable Energy Approval (REA) regulation (O.Reg. 359/09) and the Ministry of Natural Resource’s (MNR) Approval and Permitting Requirements Document (APRD).

The REA regulation describes the requirements for wind power projects related to significant natural features, including significant wildlife habitat. Birds are an important part of Ontario’s biodiversity. To provide further clarity and certainty on the renewable energy approval requirements for wind power, MNR has prepared updated Guidelines for application to both Crown and private lands.

The Guidelines address the new requirements of the REA regulation, incorporate new North American science and information and provide guidance on identifying and addressing potential negative effects on birds and bird habitats during the planning, construction and operation of wind power projects by:

focusing pre-construction monitoring on identification and evaluation of bird habitats to consider potential impacts of wind power development on birds and bird habitats;

identifying methods for evaluating the significance of candidate bird significant wildlife habitat and adopting a habitat setback approach, with assessment and monitoring based on proximity to significant habitat;

establishing of post construction bird mortality monitoring requirements for all onshore wind power projects, via an environmental effects monitoring plan; and

establishing a requirement for an additional two years of scoped monitoring when a threshold of bird mortality exceeds:

• 18 birds/ turbine/year;

• 0.2 raptors/turbine/year (all raptors);

• 0.1 raptors/turbine/year (raptors of provincial conservation concern); or

• 2 raptors/windpower project (<10 turbines).

This proposal has been posted for a 45 day public review and comment period starting November 05, 2010. If you have any questions, or would like to submit your comments, please do so by December 20, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to December 20, 2010 will be considered as part of the decision-making process by the Ministry of Natural Resources if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-0112.

All comments on this proposal must be directed to:

Kathleen Pitt
Program Officer
Ministry of Natural Resources
Policy Division
Renewable Energy Program
300 Water Street
Floor 5
Robinson Place South Tower
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5321
Fax: (705) 755-1206

Renewable Energy Approvals changes being proposed

Proposed Amendments to O.Reg. 359/09 (Renewable Energy Approvals)

Description of Regulation:


The Green Energy and Green Economy Act, 2009 was passed by the Legislature on May 14, 2009. The Act places priority on expanding Ontario’s use of clean and renewable sources of energy including wind, water, solar, biomass and biogas power. Developing these renewable resources is a cornerstone of Ontario’s future prosperity and the government’s plan to combat climate change and phase out coal. As a key pillar in supporting the development of Ontario’s green economy, the Ontario government made O. Reg. 359/09 (Renewable Energy Approvals) under the Environmental Protection Act, which came in to force on September 24, 2009. This regulation offers an approach to regulating renewable energy generation facilities that is based on transparency and clear, up-front provincial rules, while ensuring that the environment and human health are protected.

The Renewable Energy Approval (REA) process is intended to support the Green Energy initiative and the Ontario Government’s Climate Change Action Plan that will reduce greenhouse gas emissions, increase renewable energy generation and energy conservation, and create thousands of green jobs in Ontario. The REA integrates provincial review of the environmental matters that were previously addressed through the local land use planning process (e.g. zoning or site planning), the environmental assessment process and the environmental approvals process (e.g. Certificates of Approval, Permits to Take Water).

The Ministry of the Environment (MOE) is proposing to amend O.Reg.359/09 to provide additional clarity with respect to certain regulatory requirements for activities subject to the regulation. Proposed amendments will also strengthen some requirements in the regulation that have been identified through implementation of the regulation since coming into force.

The draft amended regulation is attached to this notice and plain language descriptions of the key proposed amendments can be found below. The summary descriptions below are for explanatory purposes and the attached regulation should be consulted for precise wording of proposed amendments.

Application Eligibility

An amendment is being proposed to the regulation to provide consistency with proposed amendments to the Environmental Protection Act in Schedule 7 of Bill 68 (Open for Business Act, 2010) which adds section 20.14, with respect to the submission and consideration of an application for an REA. This amendment is intended to provide greater flexibility to the Director in the processing of applications and reduce unnecessary burden where appropriate. For example, where previous activities or use of land at a proposed project location have already benefited from a planning and/or environmental regulatory process. The proposed changes are in respect of the requirements in Part IV of the regulation and do not impact Part V where setback prohibitions are located.

Proposed changes to the application eligibility provisions can be found in Section 12 of the attached draft regulation.

Definition of Noise Receptors

The definition of noise receptor is proposed to be amended to provide additional clarity as to what constitutes a noise receptor for the purposes for determining setbacks from noise receptors.

Locations that are considered noise receptors are currently defined in the regulation as the centre of buildings or structures used for overnight accommodation or those used as an educational facility, day nursery, or place of worship. Public or privately owned campsites or campgrounds are also included in the definition of noise receptors. In addition to existing buildings or structures, those that are planned for construction and have been issued a building permit under the Building Code Act are also considered to be noise receptors.

The goal of setbacks between wind turbines and noise receptors is to limit noise at buildings where long term residency is possible and likely to occur. Structures without servicing built to allow temporary or intermittent uses such as hunting, trapping or other similar uses are not intended to be considered noise receptors for the purposes of measuring setbacks.

To achieve the intended goal of noise setbacks, it is proposed that the definition of noise receptor be amended to replace the term “overnight accommodation” with the term “dwelling”. Dwelling is also proposed to be defined in the regulation to provide additional clarity as to what type of buildings or structures would be considered a noise receptor.

Proposed changes to the definition of noise receptors can be found in Section 1 of the attached draft regulation.

Vacant Lots

Setbacks in the regulation are also intended to protect future use of vacant land where that land is zoned to allow construction of potential noise receptors (e.g., a future residence). For the purposes of measuring setbacks from vacant lots in Sections 54 and 55 of the regulation, the potential future noise receptor is currently considered to be the centre of the vacant lot if no site plan approval or building permit has been issued. This approach is not entirely consistent with normal building practices on vacant lots in that a future building would normally be constructed near an existing road to facilitate access and servicing, rather than in the centre of the vacant lot.

It is therefore proposed that the identification of noise receptors on vacant lots be changed from the centre of the lot to a location where a building would normally be located having regard to the existing zoning by-laws and the typical building pattern in the area. This definition would be consistent with the Ministry’s Noise Guidelines for Wind Farms, dated October 2008. It is proposed that the 550 metre minimum setback would be measured from the base of the wind turbine to a location on the zoned vacant lot identified in the Renewable Energy Approval, having regard to the existing zoning by-laws and the typical building pattern in the area.

Proposed changes to the identification of noise receptors on vacant lots can be found in Sections 1, 54, 54.1 and 55 of the attached draft regulation.

Noise Receptor Setback Prohibitions

The identification of noise receptors for the purpose of measuring setbacks from proposed wind turbine locations would normally take place during the project planning phase. Identifying noise receptors is an important component of completing studies and consultations required as part of an application. However, the prohibition for minimum setbacks from noise receptors is currently tied to the date of construction of the project. This may result in uncertainty for proponents and the public in cases where a noise receptor is established within the minimum setback distance from a proposed project after the proponent has submitted an application but before construction has commenced.

It is proposed that the regulation be amended to confirm that the identification and consideration of noise receptors is required earlier in the planning stages of a project, and not at a later stage such as after an application has been submitted. Proposed amendments in sections 54 and 55 of the regulation would require proponents to consider only noise receptors that existed at the time of application. Any noise receptor that is established within the minimum setbacks of a project for which an application has already been submitted would not be considered for the purposes of complying with the setback prohibitions.

It is also proposed that proponents have the option to issue a draft site plan with the proposed location of wind turbines, and that consideration be given only to those noise receptors that existed at the time the draft site plan was issued. To ensure that proponents proceed with their projects in a timely manner, it is proposed that the draft site plan expire 6 months after its publication unless the proponent submits an application for an REA. The 6 month timeframe could not be extended and a site plan for the same project could not be republished. A proponent would also have to secure property rights or some other right to the land sufficient to construct the wind turbine before the draft site plan could be published.

These proposed amendments will provide additional certainty to proponents in planning wind projects, and provide clarity to the public regarding how noise receptors must be considered by wind project proponents.

Proposed changes to noise receptor setback prohibitions can be found in Sections 54, 54.1 and 55 of the attached draft regulation.

Noise Setback Matrix

Wind project proponents are required under Section 55 of the regulation to take other existing and proposed wind turbines into account when siting new turbines. Currently they must consider other wind turbines with sound power level equal to or greater than 102 dBA within a 3 km radius of a noise receptor that have: a) been constructed; b) obtained an REA or Certificate of Approval (C of A); or, c) have an application for an REA or C of A posted on the Environmental Registry. However, proponents are not required to consider other nearby wind facilities that are being planned concurrently unless they have submitted an application for an REA or C of A. This may result in uncertainty for wind project proponents who are assessing the combined noise from wind turbines in their project area during the project planning stage.

It is proposed that the regulation be amended to require proponents to also consider wind turbines with sound power level equal to or greater than 102 dBA within a 3 km radius of a noise receptor that are being planned but not yet approved and have been identified in any of the following: a) an application for an REA; b) a draft site plan that is published in accordance with a new section 54.1 if it is still valid and has not expired; or, c) a notice of completion published in accordance with O.Reg.116/01. This proposed amendment will provide additional clarity to proponents and the public regarding the requirements for wind project proponents to consider other wind turbines being planned concurrently in the same area.

Proposed changes to the noise matrix requirements can be found in Section 55 of the attached draft regulation.

Odour Receptors

To ensure consistency with the definition of noise receptors, it is proposed that the definition of odour receptors also be amended to replace the term “overnight accommodation” with the term “dwelling” to clarify what type of buildings or structures would be considered an odour receptor. The proposed definition of dwelling would continue to apply for the identification of odour receptors.

Similar to proposed changes regarding noise receptor setback prohibitions, it is proposed that the regulation be amended to confirm that the identification and consideration of odour receptors for the purpose of measuring setbacks is required earlier in the planning stages of a project, and not at a later stage such as after an application has been submitted. Proposed amendments would require proponents to consider only odour receptors that existed at the time of application.

Proposed changes to the definition of odour receptors can be found in Section 1 of the attached draft regulation. Proposed changes to the odour receptor setback prohibitions can be found in Sections 47, 48 and 51 of the attached draft regulation.

Notification Requirements

A number of amendments are proposed to clarify and strengthen the regulatory requirements regarding the distribution of notices of projects and public meetings in order to ensure that interested parties are made aware of proposed renewable energy projects and the occurrence of public meetings required under the regulation.

Proposed changes to notification requirements can be found in Section 15 of the attached draft regulation.

Consultation Requirements

A number of amendments are proposed to clarify and strengthen the regulatory requirements regarding mandatory consultations with the public, Aboriginal communities, municipalities and the Niagara Escarpment Commission. The amendments are related to broader circulation of draft reports by the proponent and availability to the public.

Proposed changes to consultation requirements can be found in Sections 16, 17, 18, and 32 of the attached draft regulation.

Protected Properties, Archaeological and Heritage Resources

The regulation currently requires consideration of whether a renewable energy project is on a protected property under Section 19, may or will have an impact on an archaeological or heritage resource under Section 20, or whether the characteristics of the project location require completion of an archaeological assessment under Section 21. Section 20 also requires that if a proponent determines that there is no possibility of impact on an archaeological or heritage resource then they must submit a written summary of how they came to that determination; however, Sections 19 and 21 currently do not require a written summary to be submitted in similar circumstances.

It is proposed that Section 19 be amended to include a requirement for a proponent to submit as part of their application a written summary demonstrating how they came to the determination that their project location was not on a protected property as described in the Table in Section 19. It is also proposed that Section 21 be amended to include a similar requirement for a written summary if a proponent determines that the characteristics of the project location do not require completion of an archaeological assessment. These proposed amendments mirror the requirement that currently exists in Section 20(2) with respect to consideration of archaeological and heritage resources. The purpose of the amendments is to ensure that proponents demonstrate how they have complied with the requirements in Sections 19 and 21.

Another proposed amendment to Section 19 would require a proponent to obtain written confirmation from the corresponding person or body listed in the Table of that section that it agrees with the proponent’s conclusion that, while the project location is on a protected property, the project will not impact it.

Proposed changes to archaeological and heritage resource requirements can be found in Sections 19 and 21 of the attached draft regulation.

Natural Heritage Assessment and Water Assessment

The regulation currently requires proponents to conduct a physical site investigation for the purposes of completing a natural heritage assessment under Section 24 and a water assessment under Section 29. The requirement to conduct a physical site investigation requires physical access to land within 120 metres of the project location; however, there may be instances where a proponent cannot reasonably access a parcel of land within 120 metres of the project location. It is proposed that this requirement be amended to require a physical site investigation where access is possible and an alternative site investigation where it is not possible despite all reasonable efforts.

Proposed changes to natural heritage assessment and water assessment requirements can be found in Sections 26, 27, 28, and 31 of the attached draft regulation.

Bird and Bat Monitoring Plan

It is proposed that the regulation be amended to include a requirement for proponents of Class 3, 4 and 5 wind facilities to complete an environmental effects monitoring plan for birds, bats and other species identified in guidance established by the Ministry of Natural Resources (MNR). This plan would be prepared in accordance with evaluation criteria or procedures established by the MNR and submitted to MNR along with the natural heritage assessment in order to obtain the confirmation from MNR required in Section 28 of the regulation.

Proposed changes to species monitoring plan requirements can be found in Sections 23.1 and 28 of the attached draft regulation.

Reporting Requirements

A number of amendments are proposed to the contents of reports listed in Table 1 of the regulation. The proposed changes seek to ensure that the Ministry is provided with complete and accurate information needed for the timely review of applications. Some changes are also intended to correct errors in the application of some reports in column 3.

Proposed changes to the reporting requirements can be found in Table 1 in the attached draft regulation.

Class 2 Wind Facilities

The regulatory requirements for Class 2 wind facilities (>3 kW and <50 kW) are less than the requirements for Class 3, 4 and 5 wind facilities. Currently, only a project description report (PDR) must be submitted to the Ministry as part of an application for an REA for a Class 2 wind facility. It is proposed that, in addition to the PDR, a Class 2 wind specifications report also be required as part of an application to provide the Ministry with additional technical information to review in consideration of the application. The report would include manufacturer’s specifications available, sound power level, and a site plan that identifies the location of noise receptors within a 1km radius from each turbine. This additional information will assist the Ministry in ensuring the proposed facility will comply with noise limits and standards. The proposed content of the Class 2 wind specifications report is a lesser level of detail than the wind specifications report required for a Class 3, 4 or 5 wind facility given the reduced size, complexity and potential environmental impact of small scale wind technologies.

Proposed changes to Class 2 wind facility requirements can be found in Table 1 of the attached draft regulation.

Solar Facilities

It is proposed that the name plate capacity thresholds for solar facilities be changed from 10 kW to 12 kW in order to allow small solar technologies with input name plate capacity greater than 10 kW but with output capacity of less than 10 kW to remain exempt from the requirement to obtain an REA. These small solar facilities are eligible for the government’s micro feed-in tariff (FIT) program because they have an output of less than 10 kW but due to inverter losses the name plate capacity of the panels is often in the order of approximately 11.4 kW. This inconsistency could result in microFIT-eligible small solar facilities having to obtain an REA which was not the intent of the regulation. The proposed amendment will ensure that small scale solar facilities continue to benefit from reduced regulatory burden.

Proposed changes to name-plate capacity of solar facilities can be found in Section 4 of the attached draft regulation.

Other Changes

The Ministry is proposing a number of other minor amendments, technical changes and grammatical corrections that are not described in detail in this notice. Please refer to the attached regulation for a list of all of the proposed amendments that are currently being contemplated by the Ministry.

Transition Provisions

Proposed amendments to Parts I, II, III and V of O.Reg.359/09 are proposed to take effect when the regulation in made and would apply to any project or proposed project for which an REA is required. Proposed amendments to Part IV and Table 1 will also take effect when the regulation is made; however, if a proponent has published a project proposal notice before the amendments take effect, the requirements in Part IV and Table 1 prior to being amended will continue to apply. This will ensure that a proponent that has begun work to satisfy the requirements of Part IV and Table 1 will not have to redo work to satisfy new proposed requirements in Part IV and Table 1. However, it is proposed that a proponent could notify the Director within 60 days of the regulation being made that they wish one or more of the new sections in Part IV and Table 1 to apply to their proposed project.

Proposed transition provisions for the regulatory amendments described in this proposal notice can be found in Section 11.1 of the attached draft regulation.

Purpose of Regulation:

The purpose of this posting is to inform the public and interested stakeholders of proposed amendments to Ontario Regulation 359/09 (Renewable Energy Approvals), and to solicit comments on the proposed amendments.

Other Information:

More information on the Renewable Energy Approval can be found at http://www.ene.gov.on.ca/en/business/green-energy.

Public Consultation:

This proposal has been posted for a 45 day public review and comment period starting October 07, 2010. If you have any questions, or would like to submit your comments, please do so by November 21, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to November 21, 2010 will be considered as part of the decision-making process by the Ministry of the Environment if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-0181.

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.

Other Public Consultation Opportunities:

Regulatory Impact Statement:

The proposed amendments will ease the overall regulatory burden for proponents of renewable energy projects subject to the regulation. The proposed changes will provide enhanced clarity with respect to the regulation’s requirements and therefore assist proponents in meeting the requirements. Some proposed amendments to the notification, consultation and reporting requirements may increase work for proponents but will contribute to more robust consultations and the submission of complete applications and therefore assist proponents meet the requirements of the REA process in a more timely manner.

Contact:


All comments on this proposal must be directed to:

Suchaet Bhardwaj
Senior Program Advisor
Ministry of the Environment
Environmental Programs Division
Program Planning and Implementation Branch
135 St. Clair Avenue West
Floor 4
Toronto Ontario
M4V 1P5
Phone: (416) 325-7893