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.

Farm group calls for turbine halt: London Free Press

The Ontario Federation of Agriculture has withdrawn its support for wind turbines in Ontario. The OFA says that the issue has pitted neighbour against neighbour, and it has asked the provincial government to suspend further development. Read the article at: Farm group calls for turbine halt London News London Free Press.

Court declines to order Ontario's Chief Medical Officer of Health to be cross-examined in wind farm case

On September 12, 2011, Shawn and Trisha Drennan commenced an application against a number of parties connected to Ontario wind farms (see Notice of Application).  They allege that they are facing a pending windfarm of upwards of 150 turbines (Kingsbridge II) in which one of the turbines will be as close as 650 metres from their home.  Their goal in the application is to obtain a declaration that they are not bound by non-disclosure clauses contained in buy-out agreements of properties to be used as a site for the wind turbines.  Their position is that they own property in the proximity of the planned wind farm and that their efforts to gather “key health information” in order to halt the process have been impeded by these clauses.   They claim that the clauses contravene the public interest as they conceal “serious public health and safety concerns” by private contract. 

The Drennans brought a motion to compel Dr. King, the Chief Medical Officer of Health for the province of Ontario, to be cross-examined as part of the overall application.  They are seeking evidence about the adverse health effects associated with living in close proximity to a wind farm “in anticipation of an appeal of the project’s approval to the Environmental Review Tribunal” (hereinafter referred to as the ERT).   They say they need the data for an expert’s report, which they claim would have to be prepared.  During the hearing of the motion on November 4, 2011, counsel for the Drennans provided two grounds for which Dr. King should be examined as part of the application:

1)      In her role as chief medical officer of Ontario, Dr. King can provide “valuable evidence with respect to the effect” of the non-disclosure clauses; and

2)      In her report, the doctor makes reference to a report being prepared by the Ministry of the Environment.  The second purpose for summoning her to give evidence was apparently to ask if the report is available now and if so, to get a copy of it from her. 

Master Joan Haberman, who heard the motion, found that the Drennans failed to meet their onus of providing a reasonable evidentiary record on which she could conclude that Dr. King "probably has any information in the nature of that sought from her or that relates to any of the matters that arise on the pending application."  She dismissed the motion and asked the parties to deliver submissions on costs.

Read the decision at: Drennan et al v. 2270573 Ont. Inc. et al.

Ontario family sues wind farm over health effects

An Ontario couple, Lisa and Michel Michaud, of Thamesville, Ontario has filed a statement of claim in the Ontario Superior Court of Justice alleging that the Kent Breeze wind farm operation has caused them to experience nausea, sleep disruptions and vertigo in their home.  Kent Breeze has not yet filed a statement of defence.  The closest of the Kent Breeze wind turbines to the Michaud home is 1,146 metres away.  The defendants in the lawsuit are Kent Breeze Corporation, MacLeod Windmill Project and Suncor Energy Services. 

The Michauds allege that adverse health effects of the wind project began as soon as it started operations earlier this year.  The Michauds purchased their property in 2005. 

A press conference was held in Toronto to announce the lawsuit.

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.

Environmental Bill of Rights Registry: Permit to "kill, harm and harass"

Gilead Power Corporation has applied for a permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) to kill, harm and harass Blanding’s Turtle and Whip-poor-will as well as damage and destroy the habitat of Whip-poor-will for the purpose of the development and operation of Ostrander Point Wind Energy Park in the Township of South Marysburgh.  The proposed Ostrander Point Wind Energy Park would consist of 9 wind turbines, up to 22.5 MW installed capacity, and is expected to produce enough electricity for approximately 6,000 homes. The project is proposed on 324 hectares of Crown land, along the shores of Lake Ontario, in Prince Edward County.

Read the full notice on the Environmental Bill of Rights Registry at: Information Notice.

Hanna challenge to Ontario setbacks for wind turbines dismissed by Divisional Court

In a decision released late last week, the Ontario Divisional Court has rejected a challenge by Ian Hanna of the Ministry of the Environment's minimum setbacks for wind energy projects.  The application for judicial review challenged the promulgation of sections 35, 53, 54 and 55 of O. Reg. 359/09 made under Part V.0.1 of the Environmental Protection Act (“the EPA”). The title of the regulation is the “Renewable Energy Approvals Regulation.” The affected sections in the regulation prescribe minimum setback requirements for wind energy facilities and require that they conform to the Ministry of the Environment’s published “Noise Guidelines for Wind Farms.” The regulation came into effect on October 1, 2009, following a period of public consultation ending July 24, 2009.

Section 11 of the Environmental Bill of Rights, S.O 1993, c. 28 (the “EBR”) requires the Minister of the Environment to “take every reasonable step to ensure that the ministry statement of environmental values (the “SEV”) is considered whenever decisions that might significantly affect the environment are made in the ministry.”  Hanna submitted that s. 11 of the EBR establishes a condition precedent for the decision by the minister to recommend promulgation of the regulation, and a breach of that condition renders his decision, and the regulation, ultra vires (or outside the authority of the minister).  In particular, the ministry’s statement of environmental values sets out principles the ministry will apply in developing Acts, regulations and policies. One of those principles is that “the ministry uses a precautionary science-based approach in its decision making to protect human health and the environment.”  Hanna contended that the minister failed to consider that “precautionary principle.”

In the end, the three-member panel of the Divisional Court found that the minister did comply with the process mandated by the EBR when he prescribed a setback requirement of 550 metres:

There was a full public consultation and a consideration of the views of interested parties. The ministerial review included science-based evidence, such as reports of the World Health Organization and the opinions of acoustical engineering experts. Cognizant of the possible health concerns the minister decided the minimum 550 metre setback was adequate. He made that decision knowing the adequacy of the minimum setback could be challenged in any particular case before a specialized tribunal.  In the context of the broad policy issues at play, the alternative protections provided by the Environmental Review Tribunal and the absence of clear evidence the 550 metre setback requirement is necessarily insufficient we find that the minister did comply with the requirement in s. 11 of the EBR, notwithstanding the “precautionary principle” in the statement of environmental values. The precautionary principle does not preclude the decision that was taken by the minister.

Read the decision at: Hanna v. AGO.

City of Thunder Bay fighting with wind developer over location for leased wind farm lands

The City of Thunder Bay entered into an option agreement with Horizon Legacy Energy Corp. for the construction of a wind farm on city property.  Although the option included a copy of the lease, it did not specify the exact location of the farm.  That was to be worked out between the City and the company.  The City had the ultimate power to make the decision, but after City Council turned down the location that had been put forward by the company and endorsed by a City committee, the company commenced a legal action to require that the City comply with the option and locate the farm as requested.

The City brought a motion to the Court asking that the court action be thrown out in favour of arbitration.  Under the lease, which the City signed, disputes were supposed to be resolved through arbitration and not in the Courts.  However, the Court found that this was not an issue about the lease; it was an issue about the option, which did not include an arbitration clause.  On that basis, the Court did not determine the issue of whether the lease could actually be a lease at common law if the location of the leased premises was not defined.

Read the decision at: Horizon Legacy Energy Corporation, et al v. The Corporation of the City of Thunder Bay.

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.

Red Lily Wind Farm - Court Decision denying injunction

In a previous post, I wrote about a Saskatchewan landowner who may face a costs order as a result of a failed application for an injunction to prevent the Red Lily Wind Farm project from moving forward.  The decision denying the injunction is now available to read at: McKinnon v. Martin no. 122 (Rural Municipality). 

The Court rejected outright the evidence of the expert witness put forward by those seeking the injunction:

If Dr. Nissenbaum could be considered an expert to provide opinion evidence on the issue surrounding the granting of the injunction, there are two further reasons to reject his evidence. The first is that he has assumed the role of advocate. A review of his affidavit No. 2 especially shows that he does not take an objective approach to the issues at hand. He passionately believes in the harmful health effects of wind turbines from his own survey on the Mars Hill project and has made that the basis for his foray into an area that he has little real knowledge of. It is clear from the content and tone of his second affidavit that he has no objectivity in respect of the issues. Secondly, in addition to the leaps of logic that were contained in para. 17 of both affidavits, he makes bold, unsupported statements on issues critical to the injunction.

Having rejected the evidence of the plaintiff's expert in favour of the project proponent's expert, the Court found that the test for an injunction had not been satisfied. 

"Lawyers called to help in green energy battle": Law Times

Read the article by Daryl-Lynn Carlson on green energy development and Ontario landowners at: Law Times News.  I was one of the lawyers interviewed for the article.

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

Wind Farm may seek $450,000 costs from landowner over ex parte injunction

On August 25, the Court of Queen's Bench in Saskatoon granted an interim injunction stopping further construction on the Red Lily Wind Farm.  David McKinnon, a landowner within the Red Lily project area, applied for the injunction on an ex parte basis (i.e. without the presence of the other parties, including the wind farm owner and the local municipalities).  A week later, on September 1, the Court overturned the injunction after hearing from all parties. 

In order to obtain the injunction, McKinnon had to undertake to pay damages if the injunction was found to be unnecessary and damages were caused.  Red Lily Wind Farm claims that the cost of the construction delay was $74,000 per day for 6 days, totalling nearly $450,000.  The company says it is considering seeking to recover the damages from McKinnon.

Read the story at: world-spectator.com.

Application for judicial review of wind turbine setbacks before Ontario Divisional Court

Ian Hanna has made an application to the Ontario Divisional Court challenging the validity of wind turbine setback regulations made under the Environmental Protection Act.  The setbacks relate to the Ministry of the Environment (MOE) Noise Guidelines for Wind Farms, and were prescribed on October 1, 2009 following a period of public consultation.

In the application, the applicant will argue that the regulation was not properly adopted. Section 11 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 requires the Minister of the Environment to “take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry”.  In the Statement of Environmental Values (“SEV”), the Ministry sets out principles it will apply in developing Acts, regulations and policies. Ten bullets follow, one of which is “The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment”.  The applicant will argue that the provisions under challenge do not comply with the precautionary principle. The affidavits in support of his position set out concerns about the adverse health effects of wind turbines and the uncertainty surrounding this issue. They are meant to show the government’s lack of compliance with the precautionary principle, as established in the SEV and in international law and the common law.

A recent interlocutory decision (i.e. a decision made during the course of the proceedings rather than a final decision at the end of the proceedings) concerning the admissibility of expert evidence to be submitted by the applicant is available at : Hanna v. Attorney-General for Ontario.

Nova Scotia - Nuttby Mountain wind turbines arrive

CBC News - Nova Scotia - Nuttby Mountain wind turbines arrive

Nova Scotia Power's plan to generate power from five new wind farms by the end of 2010 took a step forward this week at the 45-megawatt farm under construction on Nuttby Mountain, near Truro.  Read the CBC News article at the link above.

Wind Farm vs. Wind Farm in Alberta

The Alberta Court of Appeal has refused to grant leave to a wind farm developer to appeal a decision of the Pincher Creek Subdivision and Development Appeal Board made in favour of a competitor.  Heritage Wind Farm Development Inc. wanted to challenge development permits granted to Oldman 2 Wind Farm Ltd.  The Municipal District of Pincher Creek had allowed a land use by-law variance for several of Oldman's proposed wind turbines on the basis that the development would not "unduly interfere with the amenities of the neighbourhood" or, "materially interfere with or affect the use, enjoyment or value of neighbouring parcels of land".  Heritage had plans to install its own wind farm on properties adjacent to the Oldman properties. 

Heritage submitted to the Board a report by Garrad Hassan Canada Inc. (Report). The Report identified two possible adverse effects on Heritage from the proximity of OM2's turbines to adjoining land Heritage leased for the purposes of its own wind farm: the proximity could cause increased fatigue loads and mechanical wear to the Heritage’s turbines and reduce their energy generating capacity. The Board’s minutes outlined the extensive evidence it heard, noting that OM2's decision about where to place its turbines was affected by many matters, including the location of raptor nests and irrigation pivots.

After hearing the arguments made by Heritage, the Court of Appeal found that the test for leave to appeal the Board's decision had not been met.  Leave could be granted on a question of law or jurisdiction if it was of sufficient importance and if the proposed appeal had a reasonable chance of success. 



Read the decision at: Heritage Wind Farm v. Pincher Creek.

Nova Scotia Utility and Review Board turns down appeals of wind farm approvals

The NS Utility and Review Board has dismissed appeals by Eco Awareness Society and Helen and Donald Brown from a decision of the County of Antigonish allowing the re-zoning of 14 areas on 9 properties to allow for the construction of 14 wind turbines by Shear Wind Inc.  The appeals were dismissed because the Board determined that the appellants were not "aggrieved persons" as was required to have standing to appeal the decisions under the applicable legislation.  A person must have "standing" to participate in a particular matter before a decision-making body such as a court or a tribunal.  "Standing" may depend on a person's direct or indirect connection to the matters in issue, and in some cases includes a connection based on the public interest.

In this case, the Board concluded:

For the reasons outlined above, the Board finds that the Appellants have not shown, on the balance of probabilities, that the rezoning (or any future development falling within the scope of the proposed rezoning) will adversely affect the value or reasonable enjoyment of Mr. and Mrs. Brown's properties (or the properties of a majority of members of the Eco Awareness Society), or cause or threaten any form of harm prejudicial to their interests (or the interests of a majority of members of the Eco Awareness Society). Further, the Society has not shown, on the balance of probabilities, that it is an incorporated organization, the objects of which include promoting or protecting the quality of life of persons residing in the neighbourhood affected by the council's decision, or features, structures or sites of the community affected by the council's decision, having significant cultural, architectural or recreational value.

Read the decision at: Re Eco Awareness Society.

Construction underway on Manitoba's largest wind farm

CBC News - Manitoba - Construction underway on wind farm

An official groundbreaking for a wind farm near St. Joseph, MB was held on Thursday. The project proponent, Pattern Energy of San Francisco, expects the first turbines to be in operation by the end of this year. Read the CBC News story at the link above.

My original post about this project is at: Deal Struck to Build $345 million wind farm.