The ministry considered all comments received during the comment period in response to the posting. A description of the effect of consultation on this decision is outlined below.
Re-issuance of draft site plans to reflect changes to the location of wind turbines
Comments received on the proposed regulatory amendments related to draft site plans were mixed. The majority of the comments focused on the proposed extended timeline for application submission (from 6 to 18 months). Some comments indicated that 18 months was too long and that public review periods should be similarly extended, while others indicated that 18 months was not long enough and Director discretion should remain to allow extensions in specific circumstances. Comments were also received about the draft site plan requirements, specifically that if a new draft site plan is issued, new noise receptors should be taken into consideration, as well as suggestions on the content requirements for the draft site plan itself.
Consistent with the regulatory proposal, O. Reg. 359/09 has been amended to:
- Extend the time to submit an application from 6 months to up to 18 months and permit the issuance of multiple draft site plans within the 18 month period without having to consider new noise receptors since the issuance of the first draft site plan.
- Require proponents to give notice of each draft site plan and prepare and make available a draft wind turbine noise assessment report.
- Remove the Director’s ability to extend the time within which an application must be submitted.
In response to comments received, the regulation is being further amended to clarify the minimum requirements for the draft site plan. Sections 35, 54, 54.1 and 55 of O. Reg. 359/09 have been amended.
These amendments will provide flexibility for proponents to respond to issues raised by the public, municipalities and Aboriginal communities during consultation or as a result of project studies conducted in the course of preparing the REA application. Additionally, while proponents are not required to consider new noise receptors when re-issuing draft site plans for the purposes of the setback prohibitions (i.e. minimum 550 m noise setback), they must still comply with the ministry’s noise guidelines/limits. The amendments also provide greater public transparency through the notification and report availability requirements and removal of the Director discretion extension process.
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
Comments received ranged from support for the proposed amendment to opposition to restricting the appeal process. However, many of the opposing comments reflect a misunderstanding of the current REA/appeals process and/or the intent of the proposed amendment – they implied that consideration was being given to removing the “stop clock” provision entirely, mandating a time limit for the appeal (which already exists), or preventing the Environmental Review Tribunal (ERT) from staying the proceedings in all circumstances.
Consistent with the intent of the regulatory proposal, O. Reg. 359/09 has been amended to remove the ERT’s ability to stop the clock by granting an adjournment pending the resolution of an application for judicial review, and to restart the six-month “clock” for any proceedings that were adjourned for this reason.
The Divisional Court would retain the ability to stay proceedings and the ERT would retain the ability to adjourn proceedings (and extend the deadline) where the adjournment was on consent of the parties or necessary to secure a fair and just determination on the merits; and in each case the stay or adjournment would stop the clock.
Section 59 of O. Reg. 359/09 has been amended.
This amendment would aid in maintaining the streamlined process originally intended for third party hearings in respect to renewable energy projects.
Natural Heritage Amendments
Comments received with respect to the proposed natural heritage amendments were mixed, ranging from very supportive to strongly opposed.
With respect to the proposals related to reducing natural heritage setbacks from 120m to 50m for the construction, installation or expansion of a transmission or distribution line, or the expansion of an existing transformer station, distribution station or transportation system and solar facilities, supportive comments cited consistency with other setbacks and further suggested applying similar reduced setbacks to waterbodies and clarifying that the proposed setback applied to all ancillary components of a solar project. Opposing comments suggested current setback distances should be maintained or increased, and that the proposed reduction contradicted other setbacks and/or policies/legislation.
Several comments were received supporting the proposed amendment to remove consideration of valleylands as a natural feature. A number of comments opposing were also received, citing that valleylands should be fully and distinctly considered.
Supportive comments were received related to the removal of the prohibition for certain kinds of development within provincially significant southern and coastal wetlands, citing uniformity of rules with other types of projects. Opposing comments suggested potential contradictions with the goals of other policy/legislation and the need to maintain current or increase the level of protection for these features.
Supportive comments related to clarifying the site investigation requirements indicated there was no perceived reduction in environmental protection, while opposing comments indicated that that the current requirements should remain to ensure public understanding and in certain cases could be beneficial to ensure environmental protection.
Consistent with the regulatory proposal O. Reg. 359/09 has been amended to:
- Reduce the natural heritage setback from 120m to 50m for Class 3 solar facilities and for construction, installation or expansion of a transmission or distribution line, or expansion of an existing transformer station, distribution station or transportation system for renewable energy generation facilities subject to the regulation.
- Remove requirement to consider valleylands as a natural feature (i.e. removal of requirement to identify, assess, or setback )
- Allow for the construction, installation or expansion of a transmission or distribution line, or the expansion of an existing transformer station, distribution station or transportation system within provincially significant southern and provincially significant coastal wetlands, subject to the completion of an environmental impact study prepared in accordance MNR’s Natural Heritage Assessment Guide.
- Provide that the site investigation requirements are limited to the process of identifying and determining the type of natural features.
Additionally, as a result of comments received and consequential of the above mentioned amendments, O. Reg. 359/09 has been further amended to:
- Clarify that the reduced natural heritage setback (120m to 50m) applies to all parts of Class 3 solar facilities.
- Clarify that the construction, installation or expansion of a transmission or distribution line, or the expansion of an existing transformer station, distribution station or transportation system within provincially significant southern and provincially significant coastal wetlands will be permitted only if an environmental impact study report is prepared in accordance with MNR’s Natural Heritage Assessment Guide and explains why it is not reasonable for the project to be entirely outside the wetland.
- Align site investigation areas with reduced natural heritage setbacks.
Sections 1, 26, 27, 37, 38, 41 and 43 have been amended.
These amendments maintain environmental protection, while supporting the on-schedule construction of renewable energy projects. Reducing natural heritage setbacks aligns regulatory requirements for those activities with their limited operational and environmental impact and will continue to address any potential negative environmental effects. Natural heritage values within valleylands will retain consideration through protection of other significant natural features (e.g. woodlands, wildlife habitat) waterbody setbacks, and other permitting/approval requirements.