The Renewable Energy Approval (REA) regulation (O. Reg. 359/09) is intended to support the Ontario Government’s Green Energy initiative to expand renewable energy generation, encourage energy conservation and promote the creation of clean energy jobs, while upholding our commitment to protecting the environment. The Renewable Energy Approval process is based on clearly communicated complete submission requirements, whereby proponents of renewable energy projects know in advance what studies and reports are expected of them in preparing a complete application for a Renewable Energy Approval.
On April 2, 2012, the Ministry of the Environment posted proposed regulatory amendments to O. Reg. 359/09 under the Environmental Protection Act (EPA) and to Regulation 334 under the Environmental Assessment Act (EAA) to streamline the regulatory process for renewable energy projects as part of the response to the Feed-In-Tariff review, and provide additional clarity (Environmental Registry posting # 011-5932). As a result of comments received during the consultation period as well as a thorough review and confirmation of over 120 natural heritage assessments by the Ministry of Natural Resources since the regulation came into force in 2009, additional regulatory amendments are being proposed for comment. Descriptions of the proposed regulatory amendments can be found below.
Re-issuance of draft site plans to reflect changes to the location of wind turbines
Currently, proponents of class 4 wind facilities may prepare and make available a draft site plan in respect of the project location. If they do so they are required to consider noise receptors that existed on the day before notice of that site plan is published. Any new noise receptors that come into existence after that time need not be considered.
In addition, in order to retain the ability not to consider new noise receptors that came into existence after the publication of the notice of the site plan, a proponent is required to submit an application within 6 months of the date that notice is published. However, the proponent has the option of requesting an extension from the Director if limited circumstances apply.
An amendment is being proposed that would give proponents 18 months to submit an application from the date the draft site plan is originally published but would eliminate the Director’s ability to grant an extension of the time within which an application must be submitted. A proponent would not have to consider new receptors for the purposes of the setback prohibitions after the initial notice of the draft site plan was published if the application is made within the 18 month period. This amendment would also permit the issuance of additional draft site plans within the 18 month period in response to issues that are raised during consultation or additional studies.
However, it is proposed that going forward, proponents would be required, in addition to giving notice, to make available, along with the draft site plan, a draft of their wind turbine noise assessment report in respect of the proposed turbine layout.
Limitation of the extent to which the commencement of an application for judicial review would have the effect of “stopping the clock” in respect of a third-party hearing
Currently, if the Environmental Review Tribunal (ERT) does not make a decision in respect of a third-party hearing within 6 months, the decision of the Director is deemed to be confirmed.
However certain periods of time do not count as part of that 6 month time period. One of these periods of time is when an adjournment has been granted by the ERT in respect of the commencement of an application for judicial review. If such an adjournment is granted by the ERT, the six-month clock for ERT decisions stops running until the judicial review is disposed of.
The Ministry is proposing to amend O. Reg. 359/09 to limit the extent to which the commencement of an application for judicial review would give rise to stopping the clock. This would aim to maintain the streamlined process originally intended for third party hearings in respect to renewable energy projects.
Proposed Natural Heritage Amendments
Through the Renewable Energy Approval process, proponents are required to address potential impacts to the natural environment, including significant natural features (e.g. provincially significant wetlands, significant woodlands, and significant wildlife habitat).
This requirement is implemented in O. Reg. 359/09 under the EPA through both a setback from significant natural features, and natural heritage assessment requirements related to natural feature evaluation and mitigation of potential environmental effects. Reports associated with these requirements are reviewed and confirmed by the Ministry of Natural Resources as part of the REA process.
Five amendments are being proposed to the natural feature protection and assessment sections of the REA regulation to reflect project insights, best practices, and lessons learned since the regulation came into force in 2009. These amendments are based on comments received during the consultation period, as well as meetings with those involved in the renewable energy process, and information received during previous consultation periods associated with Environmental Registry postings.
The amendments are supported by the review of over 120 natural heritage assessment reportsby the Ministry of Natural Resources.
- Reduce natural feature setbacks from 120 metres to 50 metres for the generation components of ground mount solar projects (e.g. panels).
Based on a review of project proposals and the limited operational and environmental impact once solar projects are installed, the proposed setback will continue to address any potential negative environmental effects.
- Reduce setbacks from 120 metres to 50 metres where there is an expansion of existing infrastructure (e.g. roads and transformer stations) or construction and installation of new transmission or distribution lines.
Based on a review of project proposals, and the limited operational impact of expanding infrastructure and installing lines, the proposed setback will continue to address any potential environmental effects.
- Remove consideration of valleylands as natural features in the regulation (no setback or assessment requirement).
Based on a review of project proposals, the continued protection of significant natural features and water bodies within valleylands, and the need for other permits or approvals by MNR and/or Conservation Authorities related to flooding and erosion, it was determined that these setbacks were duplicative of other requirements.
- Align REA regulation development prohibitions for provincially significant southern and provincially significant coastal wetlands with Provincial Policy Statement direction under the Planning Act for infrastructure by allowing new transmission and distribution lines, and changes to existing infrastructure (e.g. roads, transmission) in these natural features subject to the completion of an environmental impact study.
Development subject to the Planning Act is generally prohibited from locating within a provincially significant southern or provincially significant coastal wetland, similar to the prohibition for renewable energy projects in the REA regulation. However, infrastructure to support these developments is not subject to the prohibition provided environmental impacts are addressed through an environmental assessment. This amendment will provide the same level of protection by continuing to prohibit the primary generation components of a renewable energy project within provincially significant southern or provincially significant coastal wetlands, while also allowing for certain types of supporting infrastructure to be developed subject to the completion of an environmental impact study that addresses potential negative environmental effects.
- Administrative policies to clarify the site investigation and evaluation of significance requirements of the REA regulation by removing the requirement to identify the function, attributes and composition of a feature during the site investigation.
The amendment will focus the studies required during the site investigation stage of the project to identifying features and boundaries. Where a project is planned to be located inside of the setback based on the identified boundary a proponent will need to undertake an evaluation of significance which includes work to identify the function, attributes and composition of the feature.