Canada: Ontario Amends Renewable Energy Approval Regulation

The Ontario government has published amendments to Ontario Regulation 359/09 that created and governs the Renewable Energy Approval (REA) and that applies to most renewable energy developments in the province.

Following its initial year of application, the Ontario Ministry of Environment (MOE) concluded that certain aspects of the REA process required additional clarity and detail. As a result, the MOE posted proposed amendments to provisions of the REA regulation on the Environmental Registry in the fall of 2010. The Ministry received comments regarding the proposed amendments and has made changes to the originally posted proposal. The final amendments were filed on December 20, 2010 as Ontario Regulation 521/10. The amendments came into force on January 1, 2011.

One of the more notable changes relates to noise receptors and setback requirements for wind facilities. The changes set a higher threshold for defining structures as a dwelling. The term "overnight accommodation" in the definition of noise receptors has been replaced with a definition of "dwelling" based on the definition in the Building Code. The definition of "dwelling" was also modified by replacing the words "intended to be used" with "capable of being used".

Another change related to set back requirements. The 550 metre wind turbine setback in the original regulation required proponents to consider all noise receptors at the time of construction and did not contemplate changes of conditions between the time of approval and time of construction. This created uncertainty for developers as they could not rely upon an approval as compliance with the setback requirement at the eventual time of construction. This concern has been addressed by the amendments which make it clear that developers are to consider noise impacts to surrounding receptors that existed as of the date the location of the facility is made public. In a continuing MOE trend to assess cumulative effects, the amended regulation will also require proponents to consider all existing and publicly known projects in the area when complying with the noise setback requirements and creating a site plan.

Other changes that have been made to the REA include:

Public Notification of Meetings – The REA originally required notice of public meetings 30 days prior to the first meeting. The amendments clarify the requirement that public notice must be made 30 days prior to the first public meeting and 60 days prior to the final public meeting. This allows for additional consultation where necessary and is intended to avoid the need for notice of all public meetings to be made at the very start of the process. The Ministry also extended the notice period for the final public meeting from 30 days to 60 days. The 60 day period coincides with the date when draft reports must be made available to the public prior to the final public meeting and is hoped to enhance public engagement.

Public Notification of Renewable Energy Projects – The initial REA process required written notice of a project to all landowners within 120 metres of the project location. Notification requirements have been amended to require written notice to all adjacent landowners in addition to those within 120 metres of the project location. This applies to all renewable energy projects. The Ministry also extended the 120 metres distance to 550 metres in the case of Class 3, 4, or 5 wind energy projects. 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.

Public Notification of an Application Being Made to the Director – The original version of the REA regulation was not explicit in requiring final documentation submitted to the Ministry to be made public (although it was encouraged). This allowed concerns about transparency to gain credence with stakeholders. The amended REA requires proponents to post all documents that accompany an REA application on the proponent's website, where one exists. Apparently in response to comments received by the MOE, the amended REA requires the proponent to provide public notice of their application being accepted for review by the Ministry. Within 10 days of the application being posted on the EBR by the Ministry the proponent is required to publish a newspaper notice. The notice must include certain proscribed project information. This rule does not apply to Class 2 wind facilities or to bio-energy facilities located at a farm operation.

Municipal Consultation – 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 stated intent of the regulation was to give municipalities an early opportunity to learn about the project, it proved difficult for municipalities to be meaningfully engaged without an explicit requirement to be provided with additional project detail as certain proponents were apparently not always keeping municipalities abreast developments as was intended to be the case. Proponents are now required 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. The requirement to provide the municipal consultation form 90 days prior to the final public meeting has been removed to avoid unnecessary duplication.

Wind Turbine Specifications Report – The original REA regulation required a wind turbine specification report for Class 3, 4 and 5 wind projects. Regulation 521/10 requires that the specification report must include acoustic emissions data in accordance with Canadian Standards Association (CSA) standards. The Ministry has also added the terms "measurement uncertainty value" and "tonality" to the specification report requirements.

Director Discretion – 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 certain proponents not technically meeting the requirements where they were responding to public concerns. The amending regulation provides 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. Regulation 521/10 differed from the originally proposed amendments in that it clarifies 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 (notices of the proposal) with the flexibility to use the amended regulatory requirements for applications. Proponents may 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 undertaken to date.

These transition provisions apply to Part IV of the regulation (where renewable energy approval requirements where identified) and to the amendments related to the definition of vacant lots and woodlands.

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