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Renewable Energy Approvals regulations amended again

The Ontario Ministry of the Environment has made more amendments to O. Reg. 359/09, the Renewable Energy Approvals Regulation. As a result of concerns raised during the last round of amendments (July 1), these amendments focus on:

  • Re-issuance of draft site plans to reflect changes to the location of wind turbines, without having to consider new noise receptors;
  • Limiting “stopping the clock” for judicial review, and
  • Natural Heritage Amendments

Re-issuance of draft site plans to reflect changes to the location of wind turbines

As proposed, 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.
  •  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.

“Stopping the clock” for judicial review

O. Reg. 359/09 has been amended to remove the ERT’s ability to stop the clock by granting an adjournment pending 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.

Natural Heritage Amendments

On this highly contentious issue, 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
  • 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 an environmental impact study under 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.
  • 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.

The amending regulation was filed with the Registrar of Regulations as Ontario Regulation (O. Reg. 333/12) on November 2, 2012. The regulatory amendments come into force on November 2, 2012.

 

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