In 2009, the Ontario government passed the Green Energy and Green Economy Act, 2009, which introduced a new Renewable Energy Approval (REA) process for wind, solar and other renewable energy facilities. Fraser Milner Casgrain LLP (FMC) previously published newsletters summarizing these developments found here.
Recently, the Ministry of the Environment ("MOE") posted proposed amendments to the Renewable Energy Approvals Regulation (O. Reg. 359/09) ("Regulation") which can be found on the Environmental Registry. Stakeholders interested in providing feedback to the MOE about these changes may submit their comments here, prior to November 21, 2010. Comments received prior to this date will be considered by the MOE.
The following is a brief summary of the proposed changes:
Definition of Noise and Odour Receptors
The MOE proposes a change to the definition of noise and odour receptors. This change will impact setbacks for wind turbines and other renewable energy facilities.
Currently, the definitions of noise and odour receptors include buildings or structures used for overnight accommodations. Changes to the Regulation will exclude buildings of intermittent use, like hunting or trapping cabins, which were never intended to be caught by the Regulation for the purpose of measuring setbacks. The Ministry is proposing that the term "dwelling" replace "overnight accommodation." The term "dwelling" is defined in the draft Regulation as "one or more inhabitable rooms used or intended to be used as a residence by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities." This change will make it easier to meet the setback requirements, especially in rural Ontario.
Noise Receptor Setback Prohibitions
An area of uncertainty in the approvals process occurs after a proposal has been submitted and a new construction, meeting the definition of a noise receptor, is established within the minimum setback required by the Regulation. Buildings are identified by proponents early in the process, after having completed studies and consultations required as part of the application process. Buildings which are constructed later present a problem, since the Regulation does not provide an answer to the question of whether they must be included as part of the application.
The proposed changes to the Regulation would remedy this problem, by requiring proponents to consider only those buildings which meet the definition of noise receptors existing at the time of application. Once submitted, any future buildings would not have to be considered for the purposes of complying with the setback requirements.
Measuring Setbacks on Vacant Lots
Under the current Regulation, the center of the vacant lot is used as the measuring point for the future location of buildings. However, buildings are normally constructed near roads or at points of access to municipal services. For that reason, the proposed changes require that the setbacks on vacant lots be measured from the base of the wind turbine, to the location of the vacant lot where a building would normally be located on the property. This change could actually increase the level of uncertainty faced by proponents, especially with respect to large parcels of land.
Noise Setback Matrix
Under the proposed changes to the Regulation, proponents will now have to consider nearby wind facilities with sound power levels equal to, or greater than, 102 dBA within a three‐kilometre radius of a noise receptor when deploying new wind turbines. Under the current regulation, proponents are not required to consider nearby wind facilities, unless they have submitted an application for REA or a Certificate of Approval. Changes to the Regulation will require proponents to consider wind turbines being built concurrently following: (i) an application for an REA; (ii) 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, (iii) a notice of completion published in accordance with O.Reg.116/01. This change is significant for proponents who are building wind facilities in areas where several projects are being contemplated, because this proposed change may increase the required setback.
The Regulation mandates that consultation take place with any owner of land within 120 metres from the location of the project. In addition to this, the proposed changes to s. 15 of the Regulation add the requirement that consultation must now take place with every abutting land owner, even if they are more than 120 metres removed.
The proposed changes to the Regulation would also require that 30 days prior to the first public meeting (required by s. 16), a draft project description be posted on a proponent's website, if the proponent has one. Further, this draft must be made available and distributed to the public in each municipality within 25 kilometres of the project, and to aboriginal communities which may be impacted by the project.
Protected Properties, Archaeological and Heritage Resources
Section 19 will be amended to require proponents to submit additional documentation demonstrating how they determined that the project location was not on property that has been designated for protection under the Ontario Heritage Act. The specific language of this change requires a "written summary of the matters addressed in determining whether the project location is on such a property." It seems to us that this change could lead to some uncertainty, depending on how stringent the MOE will consider the actions of proponents in determining these issues.
If the project is on protected property, s. 19 will now require a proponent to obtain written confirmation from the municipality, Ministry of Culture and/or the Ontario Heritage Trust, depending on why the property has been subject to protection under the Ontario Heritage Act. This additional requirement will provide the government confirmation of the proponent's conclusion that the project will not harm the protected property.
Section 21 will also be amended to include a similar requirement for a written summary of how the proponent determined that the characteristics of the project location do not require completion of an archaeological assessment.
Bird and Bat Monitoring Plan
For the purposes of the Regulation, wind facilities are given a class designation. Class 3 wind facilities have a nameplate capacity greater than 50 kW but less than 102 dBA of sound power. A class 4 facility has a nameplate capacity greater than 50 kW (similar to a class 3 facility) but has greater than 102 dBA of sound power. A class 5 facility has direct contact with surface water.
Proponents of class 3, 4 and 5 wind facilities will now be required to complete an environmental effects monitoring plan for birds, bats and other species identified in the guidance established by the Ministry of Natural Resources ("MNR"), and submitted to MNR for confirmation. This new requirement is in addition to other environmental related requirements in the Regulation. For example, s. 25(3) mandates proponents to provide a report of searches and analysis to MNR of the impact of the project to "natural features," which are areas of natural and scientific interest like wetlands, wildlife and woodland areas.
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