Click here to view the official government decision, along with background materials.

On September 24, 2009 O. Reg. 359/09, (Renewable Energy Approvals under Part V.0.1) made under the Environmental Protection Act, came into force along with the amendments to O. Reg. 116/01 (Electricity Projects), O. Reg. 101/07 (Waste Management and Regulation 334 (General) km, under the Environmental Assessment Act, and O. Reg 681/94 (Classification of Proposals for Instruments) and O. Reg 73/94 (General) under the Environmental Bill of Rights, 1993.

The new regulation and regulatory amendments were the subject of the Regulatory Proposal made to the Registry on June 9, 2009. At the same time, the Bill 150 (Green Energy and Green Economy Act) legislative amendments to the Environmental Protection Act, the Ontario Water Resources Act, and the Planning Act also came into force. Together, these changes offer an improved 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.

As there has been considerable interest in this initiative, the Ministry has currently made available for public access the complete public record of the EBR comments received through the Ministry’s regional, district and area offices.

As per the Freedom of Information and Protection of Privacy Act (FIPPA), certain categories of information, such as personal and business confidential information, have been blacked out.

The public have the option of viewing the comments in either hardcopy or electronic format at the regional, district and area offices and CD copies of the EBR comments are available, upon request.

The new Renewable Energy Approval (REA) process will 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 issues and concerns 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).

Shortly after the new Renewable Energy Approval regulation was brought into force an administrative amendment was made to clarify the transition provisions for certain projects. The substance of the amendment had been discussed in the initial proposal and was the subject of stakeholder comments that were received and considered by the ministry.

Requirements for a Renewable Energy Approval

Regardless of the renewable energy source used to generate electricity, most applications for an REA will require a core set of reports: a project description report, a construction plan report, a design and operations report, a decommissioning plan report and a consultation plan report. Additional documents will be required depending on the project location, equipment or technology being used to generate electricity. Requirements for technical reports are identified for each type of renewable energy generation facility; see Table 1 in Regulation 359/09. Drafts of these documents, among others, must be made available to the public by the applicant at least 60 days prior to the date of their final public consultation meeting, which must occur prior to submission of an application for an REA.

Under the REA Regulation, different types of renewable energy generation facilities are categorized by class. Each class of project has unique requirements.
Wind Energy Facilities

A wind turbine located on land, with a nameplate capacity less than or equal to 3 kW of power does not require an REA. These turbines can generate enough energy to power your dishwasher and fridge. Wind facilities, on land, generating more than 3 kW but less than 50 kW require an REA, however, the requirements are scaled down to reflect the low impact nature of the facility. There are no minimum setback requirements. These facilities are sometimes called “small wind” and could support from 2 to 38 households, or supplement a small commercial operation.

Wind facilities generating 50 kW and over require an REA and need to meet noise requirements and/or setbacks depending on the sound power level (a measure of a turbine’s “loudness”) of the turbines used. These facilities could supplement larger scale industrial needs or more households than “small wind” facilities. Most wind facilities with wind turbines over 50 kW must meet a minimum 550 metre setback from residences and other noise receptors. Where ambient noise resulting from road traffic exceeds 40 dBA, a noise study can be done to determine the appropriate setback. Noise setbacks will not apply to participating receptors where some part of the facility (e.g. turbine, road, transmission lines) is located on their property through a written agreement. Where the sound power level of the turbine is less than 102 dBA (decibels), the 550 metre setback does not apply, and the project will be evaluated on a site-specific basis.

Large scale turbines must meet a setback equal to the height of the wind turbine, excluding the length of any blades (approx. 80m) from property lines, except where the land owner enters into an agreement with the applicant to permit the turbine to be located closer to the property line. The property setback can also be reduced to the length of any blades of the turbine, plus 10 metres (approx. 50m) the applicant submits a report as part of an application for an REA that demonstrates to the Director that the proposed location of the wind turbine will not result in adverse impacts on nearby business, infrastructure, properties or land use activities and that appropriate preventative measures are in place (e.g. mechanical controls). For Class 3, 4 and 5 wind facilities the setback from roads and railways is set at blade length plus 10 metres, measured from the edge of the rights of way.

There are special rules for wind facilities that include turbines in contact with surface water, other than wetlands. These facilities require an REA and are required to submit an off-shore wind facility report as part of the application. The Ministry of the Environment and the Ministry of Natural Resources continue to work on a coordinated approach to off-shore wind facilities which would include province-wide minimum separation distance standards for noise.

Solar Energy Facilities

A solar photovoltaic panel or device that generates electricity is covered by the REA Regulation. Roof-top or wall-mounted solar facilities of any size are exempt from the obligation to obtain an REA and all other certificates of approval and permits issues by the Ministry. Most facilities mounted on buildings, however, may require a municipal building permit.

Small scale ground mounted solar panels less than or equal to 10 kW do not require an REA or certificates of approval or permits issues by the Ministry. These are typically found at hardware and outdoor stores. Ground mounted solar facilities over 10 kW require an REA and also require technical assessments (e.g. noise study). The average power requirement of 5 to 10 mid-sized homes is 10 kW. As part of their application for an REA, solar project applicants have to submit a noise study demonstrating they can meet a noise limit of 40 dBA at nearby residences and other noise receptors. This noise study assesses the potential noise at nearby residences and other noise receptors due to sound emitted by the solar facility’s electrical equipment (e.g. inverters, transformers).

The Regulation does not contain provisions for ground mounted solar energy facilities based on soil classification (e.g. prime agricultural land). A directive issued by the Minister of Energy and Infrastructure to the Ontario Power Authority (OPA) for the Feed-in Tariff program instructs the OPA not to enter into contracts for ground-mounted solar photovoltaic facilities located on certain classes of prime agricultural lands and specialty crop lands. For more information, please review the Ontario Power Authority’s FIT Directive.

Bio-Energy Facilities

Most renewable energy generation facilities that generate electricity through thermal treatment, anaerobic digestion, biofuel combustion (e.g. biodiesel), and biogas require an REA. The definition of biomass, biogas and biofuel used in the REA Regulation can be found in recent amendments to Regulation 160/99 under the Electricity Act, 1998 which came into force on September 9, 2009. Anaerobic Digestion facilities that are located on a farm and are already subject to an approved Nutrient Management Strategy under the Nutrient Management Act, 2002 and would not have required a waste certificate of approval prior to the Regulation coming into force are exempt from obtaining an REA.

The requirements that must be met to obtain an REA vary depending on the project location (e.g. on a farm), feedstock material and size (e.g. greater or less than 500 kW). Most farm-based anaerobic digestion facilities have to meet a setback of 250 metres from residences and other receptors. In some cases, projects can meet a set of best management practices to mitigate impacts to reduce a setback to 125 metres. Large industrial projects will have to submit reports identifying technology specific reports (e.g. noise and contaminant discharges) associated with the operation of the facility. A complete submission for this type of large project will also include plans for mitigating impacts.
The Ministry of the Environment continues to work with the Ministries of Agriculture, Food and Rural Affairs, and Energy and Infrastructure to find ways to further harmonize requirements to facilitate the timely consideration of bio-energy projects as part of Ontario’s transition from coal power generation to renewable sources, including bio-energy.

Water Power Facilities

Water power facilities do not require an REA, these projects continue to require relevant environmental assessment and approvals processes under the Ministries of the Environment and Natural Resources.

The approach to the environmental review of water power projects was streamlined in 2008 with the introduction of the Class Environmental Assessment for Water Power Projects (October, 2008). Water power projects are unique by comparison to other types of renewable energy generation facilities as they have very site specific engineering considerations and the project timelines are different from wind, solar and bio-energy projects. The current rules for water power projects are customized with clear requirements for considering environmental impacts and working with communities to design better projects in cooperation with government.

The Ministries of Environment and Natural Resources in consultation with the Federal Government will continue to work with the water power sector to align approval processes and where appropriate, reduce the regulatory burden and further streamline approvals processes.

Mandatory Consultation Requirements

Applications for most renewable energy projects will document what was learned through public consultation including how the project was changed in light of this information. Consultation begins with a notice of the proposal to engage in a project. Consultation is a mandatory requirement for most projects seeking an REA. Small scale wind projects (generating less than 50 kW) are not subject to the public meetings or municipal consultation requirements of the Regulation.

The proponent must notify landowners within 120 metres of the proposed project location and must also place a notice in a local newspaper. It is expected that this will be done at an early stage of project planning. Proponents must hold a minimum of two community consultation meetings in each local municipality or near the project location if the proposed location is in an unorganized territory.

• The first public consultation meeting must take place early in the project planning stage.
  
• At least 60 days before the final public consultation meeting (which must occur before an REA application is made), the applicant must make available for public review any studies related to the project.
  
• A second public consultation meeting (or if there are more than 2 meetings, the final meeting) is required once the applicant has gathered all of the information needed to make an application for an REA.

While these are the minimum requirements set out in the REA Regulation, in practice applicants are encouraged to hold additional meetings with the local community, where appropriate, throughout the project design and study period. These additional meetings may help the community understand the requirements set out under the Regulation, how they are being met, how potential impacts and negative environmental effects will be mitigated, and to raise awareness about the benefits of the project.

Consultation with the municipality (or municipalities) is required for most renewable energy projects and must begin at least 90 days prior to the date of the final public consultation meeting (which must occur before the applicant submits an REA application). The Ministry of the Environment provides applicants with a form to document municipal feedback on matters related to municipal services and local infrastructure.

Aboriginal consultation is a regulatory requirement for those applying for an REA for most renewable energy projects. The nature of the consultation will vary depending on the project. The applicant must contact the Director in the Ministry of the Environment for a list of Aboriginal communities that must be notified about the proposed project. It is anticipated that a number of Ministries will work together to provide a list of communities that may have Aboriginal or treaty rights that may be adversely affected or otherwise might be interested in any effects of the proposed project.

The applicant is then encouraged to draw up and carry out an Aboriginal Consultation Plan. This includes giving notice and project information to Aboriginal communities early in the planning stages and making best efforts to meet with them. The proponent must document the results of all consultation it conducts as part of the consultation report. This documentation is also required to identify any information provided by the community and whether and how the proposal was altered in response to them.

The Renewable Energy Approval is a prescribed instrument under the Environmental Bill of Rights and when the Ministry undertakes a review of an application a proposal notice will be posted for public comment on the Environmental Registry.

Natural Features Requirements

Applicants are required to meet minimum setbacks from the natural features (e.g. wetlands, woodlands) identified in the REA Regulation. Applicants must undertake a natural heritage assessment including a records review, site investigation and an evaluation of significance or provincial significance of each natural feature identified. The natural heritage assessment is conducted using current procedures and criteria which rely on local knowledge, existing databases and Ministry of Natural Resources documents. Should the applicant wish to locate any part of the project location within these minimum setbacks (or within the feature itself if it is not prohibited), an Environmental Impact Study Report must be prepared. The project location is the area in which the project will be engaged. As part of a complete submission the applicant will include the natural heritage assessment, written confirmation from the Ministry of Natural Resources that the assessment was conducted in accordance with the procedures and criteria established by that Ministry and written comments about the project, if any, from that Ministry.

Water Setback Requirements

As a general rule, the project location for a renewable energy generation facility that requires a renewable energy approval (exception for small wind facilities) must meet a setback of 120 metres from all water bodies such as lakes, permanent and intermittent streams and seepage areas (including springs). This minimum setback increases to 300 metres for trout lakes that have been identified as at or over development capacity by the Ministry of Natural Resources.

If the applicant wishes to locate equipment or systems within the 120 metres setback, a water report must be prepared and accompany the application. Certain specified types of renewable energy generation facilities (e.g. roads, docks, transmission lines) may be allowed within 30 metres of a water body or within the water body itself. In the case of an offshore wind facility the generation equipment (wind turbines) may be allowed within a water body and in the case of a thermal treatment facility, the generation equipment may be allowed within the 30 metre setback or within the water body.

Provincial Policy Plans

Where certain existing natural heritage and/or water protections in the Oak Ridges Moraine Conservation Plan, the Greenbelt Plan or the Lake Simcoe Protection Plan exceed the province-wide requirements for an REA, location specific requirements as identified in the Renewable Energy Approval Regulation must also be met. Should a project be located in the area of the Niagara Escarpment Plan and a development permit is required by the Niagara Escarpment Commission, this permit must be obtained first and accompany the application for an REA. The REA application must be consistent with the conditions of the Niagara Escarpment Commission development permit.

Archaeological Assessment and Heritage Assessment

Subject to several exceptions, applicants will have to include a self-assessment of the potential impacts of the project on archaeological resources, heritage resources, and protected properties. A complete application will include summaries of these self assessments. Assessments are to be done in accordance with guidance documents from the Ministry of Culture. Should the self assessment reveal the potential for an impact, the applicant must submit a report evaluating the impact of the project on the resource and propose measures to avoid, eliminate, or mitigate the impact. Where applicable, the impact report and the self assessments are to be included in the application, along with comments from the Ministry of Culture.

These requirements do not apply to small wind facilities under 50 kW, as well as thermal treatment and anaerobic digestion facilities located on farms. For these projects, heritage and archaeological assessments will be required where the property is protected under the Ontario Heritage Act, is within 250 metres of an archaeological resource, or is in an area that has been identified in a municipal archaeological plan. Applicants can determine if their proposed project is on one of these protected properties by contacting the Ministry of Culture and the clerk of each municipality in which the project is proposed.

Third Party Hearing

A third party (i.e. someone other than the applicant) can request a hearing before the Environmental Review Tribunal (ERT) in respect of the Director’s decision to issue or renew an REA. In order to do so, the new EPA Regulation requires the third party to make the request to the ERT within 15 days of the issuing Director’s decision being posted on the Environmental Bill of Rights Registry. The amendments to the Environmental Protection Act passed in May, 2009 created a new opportunity for a hearing before the ERT. The grounds for a hearing are whether engaging in the project in accordance with the REA will cause “serious harm to human health, or serious and irreversible harm to plant life, animal life, or the natural environment.” If, after reviewing the decision of the Director the ERT finds this to be the case, they have the power to revoke or amend the REA.

The Renewable Energy Approval Regulation sets a 6 month time limit for these third party hearings. Failure to make a decision within the 6 months would result in the Director’s decision being deemed to be confirmed. However, where there is all-party agreement for mediation, where a judicial review has been commenced in respect of the hearing, or where it is the opinion of the ERT that the adjournment is needed in order to secure a fair and just determination of the proceedings on its merits, these periods of time will not be included in the 6 month calculation.

The ERT has existing Rules and Procedures which allow for the dismissal of vexatious or frivolous hearings.

Transition of Renewable Energy Generation Projects in the Approvals Process

Those projects that have received all their required provincial approvals (Certificates of Approval, Permits to Take Water) from the Ministry of the Environment will not require an REA, whether built today or about to be constructed. Should an amendment be required in respect of a project, an application for the amendment to the provincial approval is made rather than an application for an REA.

If the project was subject to a screening process under an Environmental Assessment Act, prior to the introduction of the REA, and the proponent had an agreement with the Ontario Power Authority (OPA) before September 24, 2009, the proponent will be required to complete the EA process and obtain all necessary Certificates of Approval and permits and will not require an REA. For large wind facilities, the turbines must conform to the noise, property and road setback requirements that are required as part of an REA Regulation. These projects will not be subject to the Renewable Energy Approval appeal process.

If projects were not subject to EA requirements prior to the introduction of the REA process and have an OPA contract and the project was not prohibited by a zoning by-law or order under Part V of the Planning Act before September 24, 2009, they will be required to apply for Certificates of Approval and will not require an REA. This would most likely apply to solar or small scale bio-energy projects. These projects will also be subject to the current leave to appeal process, not the Renewable Energy Approval appeal process.

Comment(s) Received on the Proposal: 1264

Public Consultation on the proposal for this decision was provided for 45 Days, from June 09, 2009 to July 24, 2009.

As a result of public consultation on the proposal, the Ministry received a total of 1264 comments: 553 comments were received in writing and 711 were received online.

Additionally, a copy of all comments are available for public viewing by contacting the Contact person listed in this notice.

Effect(s) of Consultation on this Decision:

On June 9, 2009, the “Proposed Ministry of the Environment Regulations to Implement the Green Energy and Green Economy Act, 2009” (the Regulations), was posted to the Environmental Registry for a 45 day public review and comment period ending on July 24, 2009.

The Ministry held Public Information Sessions in six cities across Ontario in June, 2009 to provide an overview of the Environmental Registry posting and an opportunity for participants to ask questions of government representatives. A dedicated toll-free phone number was also set up to make it easier for Ontarians and interested stakeholders to call should they have further questions. All comments received during the comment period, whether by email, regular mail or the EBR website were considered part of the decision-making process by the Ministry of the Environment.

Approximately 1,300 comments representing varied and diverse views were received from the public, community groups, ratepayer associations, environmental public interest groups, proponents, municipalities, associations representing various interests and other interested stakeholders. The majority of the comments received related to wind turbine facilities, although there were comments made on all types of renewable energy facilities.

The following details the predominant issues that were raised and how public participation influenced decision-making on the proposal for the various Regulations.

• The EBR proposal notice contained a matrix approach to noise setbacks that proposed a mandatory minimum 550 metre setback for wind turbines. It was also proposed that a noise study could be completed based on a 40 dBA noise limit at the point of reception to site turbines closer than the proposed matrix, however under no circumstances could wind turbines be sited closer than 550 metres.

• The largest number of comments received on the EBR proposal notice focussed on this issue. Community groups, ratepayer associations, industry stakeholders and the public all raised concerns about the potential for negative health impacts associated with the noise from wind turbines. Many included references to studies, reports and surveys from Ontario and other jurisdictions. Proponents, some municipalities, some environmental groups, landowners who want to host turbines and some members of the public argued that the 550 metre setback was too restrictive and would unnecessarily restrict a clean, green form of renewable energy development in Ontario. Others, particularly members of the public and community groups, argued that the 550 metres was not a sufficient setback distance.

  The Ministry of the Environment reviewed all of these submissions and the documents they referred to and considered this issue carefully. It was determined that the 40 dBA level, for noise that the MOE 2008 Noise Guidelines for Wind Turbines is based on is scientifically sound and supported by a transparent and peer-reviewed process. By extension, the province has retained the 550 metre minimum setback, which is based on a conservative use of the model outlined in the 2008 Noise Guidelines for Wind Turbines and is considered to be protective of human health and the environment. The rules governing renewable energy projects will be reviewed and changes will be considered as new science becomes available, as with all environmental standards set by the Ministry of the Environment. For example, going forward, the Ministry of the Environment will develop the science to monitor and measure low frequency noise, as currently there are no established and accepted protocols. In the future, wind farm operators may be required, through conditions of the Renewable Energy Approval, to monitor and address perceptible low frequency noise once acceptable protocols for doing so have been established.

  The ministry also received substantive feedback describing situations where the ambient noise measured at residences and other points of reception located near highways was already above 40 dBA as a result of road traffic. As a result, the ministry introduced an exception from the 550 metre minimum noise setback where the applicant could demonstrate that the ambient noise resulting from road traffic exceeds 40 dBA. In these cases, a noise study can be done to determine the appropriate setback where the ambient noise from road traffic would become the new site-specific noise limit for that particular residence or noise receptor.

• Comments on the proposed property setbacks for wind projects were varied, ranging from support for the proposed setback of a distance equal to or more than the turbine hub height plus blade length (approximately 125 metres) and comments indicating support for a maximum property setback of blade plus 10 metres. Comments in support of and against the proposed setbacks were received from the public, community organizations, environmental groups, municipalities, proponents, associations representing various interests and other interested stakeholders.

  In response to these comments, the Ministry of the Environment engaged in a third party peer review of the wind industry’s report that recommends to municipalities a setback of blade plus 10 metres from property lines and roadways. This review did raise questions about a generic application of a province-wide blade plus 10 metre setback, but did find strong support for a less conservative approach than the province originally proposed. As a result, the requirement for turbines to meet a property setback was moved to turbine hub height (approximately 80 metres) with a provision to allow the setback to be reduced to a minimum of blade length plus 10 metres, provided the applicant submits a report as part of an application for an REA that demonstrates to the Director that the proposed location of the wind turbine will not result in adverse impacts on nearby business, infrastructure, properties or land use activities and that appropriate preventative measures are in place (e.g. mechanical controls). Property setbacks do not apply to participating landowners, where the land owner enters into an agreement with the applicant to permit the turbine to be located closer to the property line. For Class 3, 4 and 5 wind facilities the setback from roads and railways was set at blade length plus 10 metres, measured from the edge of the rights of way.

  The EBR proposal notice defined small scale wind turbines as those with a name plate capacity greater than 3 kW with a sound power level rating of less than 102 dBA, proposing that these facilities would not be required to conform to technical requirements proposed for larger wind turbines. A number of comments were received from the public and wind turbine developers arguing that this would be an overly onerous process acting as a disincentive to what is an emerging and relatively low impact form of renewable energy generation.

  In response to these concerns and recognizing that a facility with less than 102 dBA could in fact have large turbines, a new category for small scale wind projects has been created (those between 3 kW and 50 kW) to which streamlined requirements will apply. Noise, natural heritage and water setbacks do not apply to these facilities. Some of these types of projects do not have “blades” and could be roof or wall mounted and therefore each application will be assessed on a site-specific basis.

• Numerous comments were received regarding the rules for transition projects, particularly wind energy projects, currently at various stages of provincial and municipal approvals prior to the new Regulation coming into effect. Comments from the public indicated that these wind energy projects should be required to conform to the proposed 550 metre setback for wind turbines. Those with an interest in these projects, including proponents, land owners and some municipalities recommended that these facilities be allowed to continue with the current requirements under the MOE 2008 Noise Guidelines for Wind Turbines.

  Where projects are significantly advanced in the approval process and have contracts in place with the Ontario Power Authority, efforts have been made to allow them to continue with and complete the previous process. The wind turbine facility requirements for noise, property and road/railway setbacks apply to facilities that have not yet received a certificate of approval under section 9 of the EPA given the need to protect the environment and ensure new projects meet standards based on science, as well as recognizing that the Green Energy initiative represents a significant policy change in how wind turbines are regulated in Ontario.

• Requirements for consultation were outlined in the EBR proposal, including public notice and public meetings, municipal consultation on matters related to servicing and infrastructure and Aboriginal consultation. Comments on the posting from the public emphasized the need to notify members of the public by registered mail. Municipalities indicated that consultation should happen early enough for the analysis and work to be done by municipal staff.

  In response to these comments, the Regulation sets out project and meeting notice requirements. Most applicants must distribute a notice of the proposal to engage in the project 30 days prior to the final public consultation meeting. This notice is anticipated to describe the project and include a map of the project location. Most projects will require mandatory public meetings. Where consultation requirements apply, a notice of a meeting must be distributed 30 days prior to the first public meeting. Notices must be given to all assessed owners of land within 120 metres of a proposed project location. Notices must also be given in the local newspaper on at least 2 separate days, to every Aboriginal community identified by the province, to local municipalities and Local Services or planning boards within the proposed project location. The Niagara Escarpment Commission must also be given notices if applicable. Reports supporting the application for approval must be made available 60 days prior to the final public consultation meeting, on the proponent’s website, if the proponent has a website, and in paper copy for public viewing in both the municipality and Aboriginal community if that community agrees. Municipal consultation must begin 90 days prior to the final public meeting, and use a form provided by the Director at the Ministry of the Environment.

• The EBR proposal notice contained a chart with proposed setbacks for “significant” natural features and water features that generally proposed a 120 metres setback. An applicant can study the negative environmental effects associated with moving the project location closer to the feature, where it has been demonstrated that mitigation measures can be implemented to address potential negative environmental effects. Comments on the posting indicated that no wind turbine development should be allowed in important bird areas and renewable energy projects should not occur in significant natural heritage features with appropriate setback distances at the discretion of the approving Director. Comments also indicated that development should not be permitted within locally, regionally and provincially significant natural heritage features and proponents should be required to assess and identify locally, regionally and provincially significant natural heritage features within 120 metres of proposed projects. Comments also indicated that consultation with Conservation Authorities should be required. These comments were primarily submitted by the public.

  In response to these comments, the definitions for natural features, that a project location must be setback from, are set out in Regulation. The applicant, as part of the records review, must ensure that federal, provincial and municipal records, including those of Conservation Authorities and the Niagara Escarpment Commission, where the project location is situated within areas of jurisdiction of these bodies are reviewed. Further the applicant must follow criteria and procedures for identifying features and their boundaries during the site investigation. Where a feature is not identified in the records today or its significance is unknown, evaluation criteria or procedures will be set out for proponents to work with the Ministry of Natural Resources to identify features and determine significance.

• It was argued in the comments received from a variety of stakeholders that requirements should be appropriate to the scale and nature of the facility and include site-specific criteria. Comments submitted primarily from the public indicated that renewable energy projects should not be subject to requirements that are more onerous than any other form of development. Comments primarily from proponents and industry associations also noted the need to streamline approvals between ministries and harmonize approvals with the federal government.

  In response to these comments, the requirements associated with reports and assessments were consolidated into a group of core reports common to all types of undertakings. Requirements for assessments were identified based on site-specific considerations and the type of project. This also included the requirement that if existing provincial plans (e.g. Oak Ridges Moraine Conservation Plan, the Greenbelt Plan or the Lake Simcoe Protection Plan) are more onerous than the provincial requirements set for an REA, the additional location specific requirements must be met. As well, projects located in the area of the Niagara Escarpment Plan must obtain their development permit prior to submitting an application for an REA, if such a permit is required to engage in the project, and that application must be consistent with the conditions of the Niagara Escarpment development permit.

  The Ministry of the Environment is committed to offering pre-submission meetings and facilitating coordination across government. Guidance materials will provide information on this voluntary part of the process. The Regulation does not address pre-submission consultation. The Renewable Energy Facilitation Office will also provide guidance on the lifecycle requirements of a project where appropriate.

• The EBR proposal notice indicated that solar facilities greater than 10 kW would be required to obtain an REA but with limited technical requirements. It was also proposed that additional financial assurance would be required for ground mounted solar facilities as part of decommissioning. Comments from both the solar industry and the public argued that roof top and wall mounted solar projects should be exempt from obtaining an REA. Seen as a building installation similar to a heating, ventilating and air conditioning unit, the REA requirements proposed were seen as too onerous and a disincentive to the growth of a rooftop solar alternative for industrial and residential use in Ontario. Municipalities, landowners and industry raised concerns that the financial assurance requirements were not based in science and would create an overwhelming financial barrier for solar projects.

  In response to these comments, the Ministry the Environment engaged with the sector to better understand the technology and its environmental implications and the Ministry of Municipal Affairs and Housing to understand what is covered by the Ontario Building Code. As a result of these discussions, rooftop solar will not require an REA or other approval or permit issued by the Ministry of the Environment. The Ministry of the Environment also initiated a third party peer review of the need for financial assurance related to solar facilities. This study revealed no significant risk given the nature of solar panel construction today, the high market value of the panels, the strong recycling market for damaged panel material and the fact that the manufacturer’s warranty for solar panels exceeds the 20 year contract these projects would be getting from the Ontario Power Authority. Based on this study and as a result of the comments received on the EBR proposal notice, no specific requirement for financial assurance is required for ground mounted solar facilities over 10 kW requiring an REA, however they must submit a decommissioning plan with their application. The Ministry of the Environment retains the ability to issue financial assurance on a site specific basis on any project issued an approval under the Environmental Protection Act, including those issued an REA.

• It was proposed that water power facilities other than kinetic power generation and hydro dams with a head of less than 2 metres will require an REA. The posting proposed that natural heritage and water requirements will not apply and be replaced with technical requirements and Ministry of Natural Resources approvals. It was also proposed that facilities greater than 200 MW will also require an individual Environmental Assessment as part of their REA application. Comments received, primarily from municipalities and proponents, indicated great concern that the proposed REA process would add additional burden rather than improve the approval processes.

  In response to these comments and in depth discussions with consultants and technicians that are involved in the design, construction and approval of water power projects today, all water power projects will be exempt from the requirement to obtain an REA. It has been determined that water power projects are unique in their engineering and site-specific design and are already regulated within a streamlined approval system under the Class Environmental Assessment for Water Power Projects, 2008. Water power projects will rely on the existing rules under the Environmental Assessment Act and the Ministry of Natural Resources and Ministry of Environment existing permits and approvals. The Ministry of the Environment and the Ministry of Natural Resources will continue to explore how to streamline approvals for this sector, given its complexity and unique approval situation today.

• Comments on the posting indicated that the nine month hearing timeline for the ERT to render a decision in respect of a hearing initiated by a third-party was too long. These comments were submitted by community organizations, the public and industry associations. Comments also indicated that appeals made by unsubstantiated third parties and appeals that are frivolous and vexatious should not be considered by the ERT. These comments were submitted primarily by the public.

  In response to these comments, the timeline for the ERT appeal was shortened to six months. Provisions were, however, also included to allow the ERT to adjourn a hearing, if it is determined to be necessary to secure a fair hearing. This period, among others, would not count towards the six month timeline. This compromise approach offers certainty to project developers, while ensuring that fair and just decisions can be made by the ERT.

  Click here to view the official government decision, along with background materials.