6. Regulatory Process

For developers interested in developing a renewable energy project in Ontario, obtaining an electricity contract is only one step in the process of having a renewable energy project connected to the grid. A renewable energy project cannot be constructed until it meets applicable regulatory requirements.

Ontario’s renewable energy project approval processes are designed to engage local communities, while being protective of human health and the environment.

This section discusses various regulatory requirements that can apply to a project, with particular attention paid to phases of the regulatory process that involve municipalities.


The following is a summary of the content covered in the Regulatory Process section:

Section Title
6.1 INTRODUCTION AND REGULATORY PROCESSES FOR RENEWABLE ENERGY PROJECTS
6.2 CONSULTATION AND THE ENVIRONMENTAL APPROVAL PROCESS

  • This section describes how municipal consultation has been incorporated into the various regulatory approval processes, including the REA and Class Environmental Assessment (EA).
6.3 THE RENEWABLE ENERGY APPROVAL (REA) PROCESS

  • This section provides an overview of the REA process, including information on the requirements for large wind energy projects under the REA; background on when an REA is required; municipal consultation requirements; measures taken to protect natural heritage, protected properties and archaeological and heritage resources; and the REA decision and appeal processes.

Contents:

  • Large Wind Energy Projects
  • Is a Renewable Energy Approval (REA) Required?
  • Consultation Requirement under REA
  • REA posting on the Environmental Bill of Rights Registry (EBR)
  • REA and Protection of Natural Heritage, Protected Properties, and Archaeological and Heritage Resources
  • REA Decision
  • REA Appeals
6.4 ENVIRONMENTAL ACTIVITY AND SECTOR REGISTRY (EASR)

  • This section describes the EASR – a public, web-based self-registration system – that is an alternative regulatory process for eligible renewable energy projects.
6.5 ENVIRONMENTAL ASSESSMENT FOR WATERPOWER PROJECTS

  • This section describes the Class Environmental Assessment (EA) process for waterpower projects.

Contents:

  • Formal Consultation Requirements under the Class EA
  • Notification Requirements under the Class EA
  • Class EA and Protection of Natural Heritage and Archaeological and Cultural Heritage Resources
  • Class EA Decision and Evaluation
6.6 APPROVALS AND PERMITS ADMINISTERED BY THE MINISTRY OF NATURAL RESOURCES AND FORESTRY (MNRF)

  • This section outlines the approvals and permits administered by the MNRF that may apply to renewable energy projects.

Contents:

  • The APRD: Approval and Permitting Requirements Document
  • Endangered Species Act, 2007 (ESA)
  • Access to Crown Lands
6.7 MINISTRY OF TRANSPORTATION (MTO) APPROVAL

  • The section provides MTO resources for developers and municipalities with local renewable energy projects located within, or adjacent to, provincial highways and/or within an MTO permit control area.
6.8 NUTRIENT MANAGEMENT ACT, 2002

  • This section offers information to developers of certain on-farm anaerobic digestion (AD) facilities that are regulated under the Nutrient Management Act, 2002, rather than the REA process.
6.9 FEDERAL REQUIREMENTS

  • This section identifies approvals, authorizations and permits from federal government ministries and agencies that may be required in addition to provincial and municipal approvals. It also discusses the regulation of wind energy projects with respect to federal aviation requirements.

Contents:

  • Wind Energy Projects and Federal Aviation Requirements
6.10 PLANNING ACT, 1990

  • Section 6.10 describes the Green Energy Act, 2009 (GEA)’s exemption of renewable energy projects from the application of the Planning Act, 1990.

Contents:

  • Municipalities and Priority Renewable Projects
6.11 MUNICIPAL-SPECIFIC REGULATORY MATTERS

  • This section identifies some of the municipal codes and by-laws that renewable energy projects may be subject to including: building permit applications; drainage reassessments and/or engineering studies; tree cutting permits; and municipal land and road access permits.

Contents:

  • Building Permits
  • Municipal Drains
  • Additional Municipal Permits and Agreements
  • This section also presents information on the property tax treatment of renewable energy projects in Ontario, as well as information on neighbouring property values.
6.12 TRANSMISSION/DISTRIBUTION LINES AND GRID CONNECTION

  • This section outlines the regulations surrounding transmission or distribution lines associated with renewable energy projects; the requirement for large projects to acquire an electricity generator licence from the Ontario Energy Board (OEB); and the Electrical Safety Authority’s (ESA) mandatory inspection of all systems that generate electricity.

Contents:

  • Transmission and Distribution Lines Associated with Renewable Energy Projects
  • Grid Connection Requirements
  • Electricity Generator License
  • Electricial Safety Authority (ESA)

6.1. INTRODUCTION TO REGULATORY PROCESSES FOR RENEWABLE ENERGY PROJECTS

Typically, after a developer receives an electricity contract for their proposed renewable energy project, they begin designing the project to meet applicable regulatory requirements. Developers cannot start construction until they have obtained the required regulatory approvals and any other necessary permits.

Renewable energy projects can be subject to a variety of approvals and permits, depending on project type and size. It is the project developer’s responsibility to ensure that their project meets all regulatory requirements. Depending on how natural and cultural environments could be affected, a developer may require approvals from a number of bodies at the federal, provincial and municipal levels.

While requirements vary by project, approval processes for large projects involve rigorous assessment of the project’s potential impact on human health, safety, the natural environment, cultural heritage resources, and the surrounding community and infrastructure. Most regulatory approvals also require developers to reach out to municipalities early and often in the development process and to discuss their projects with municipal staff and/or councils.

The timelines required for regulatory approvals can vary depending on project size, complexity and other factors.

The Renewable Energy Facilitation Office (REFO) can help you find information about renewable energy projects being developed in your community.

As well, the Ministry of the Environment and Climate Change (MOECC) has posted on its website a list of renewable energy projects that have submitted an REA application. This list includes: projects that have obtained REA approval; projects under technical review; projects returned as incomplete or withdrawn; and projects currently being screened for completeness.

Renewable energy projects may be subject to the following approvals:

6.2. CONSULTATION AND THE ENVIRONMENTAL APPROVAL PROCESS

Under the REA and Class EA processes, municipalities are key stakeholders. Project developers must engage in municipal consultation with regard to proposed projects (as well as Aboriginal and public consultation) . Under the REA process, developers are required to document their consultation activities and submit the documentation as part of their complete REA application. This includes a Municipal Consultation Form which allows municipalities to formally document any concerns municipalities may have related to a project. Similarly, the Class EA process requires the preparation of an Environmental Report, which will include a summary of public and agency concerns, and how they have been considered.

The province encourages developers to reach out to municipalities early and often in the development process (beyond the mandatory consultation) and to discuss their projects with municipal staff and/or councils (both upper and lower tier in two-tier municipal structures). This allows municipalities to be fully informed about planned projects, which is helpful, as often municipalities get questions from the public about what a developer is up to, or what stage a proposed project is at.

Ontario strongly encourages municipalities to engage in constructive dialogue with developers, and ensure local interests and concerns are considered in the regulatory approval process for a particular project. As well, municipalities should explore the possibility of entering into various agreements with developers. These agreements could clarify expectations and responsibilities around costs as well as identify benefits of renewable energy projects for the municipality. While agreements of this nature are not required for the developer to receive an approval, the developer may include details about such an agreement in its REA submission.

Consultation requirements under environmental approval processes are mandatory requirements that are independent from other programs. For example, regulatory requirements for community and municipal consultation are distinct from community engagement assessments for projects applying under the LRP program.

6.3. THE RENEWABLE ENERGY APPROVAL (REA) PROCESS

The REA is an approval process administered by MOECC that applies province-wide standards, transparency, and mandatory Aboriginal, public and municipal consultation to most large wind, solar and bioenergy projects developed in Ontario. The REA regulation (Ontario Regulation 359/09) provides clear, consistent rules and standardized technical requirements. MOECC’s Technical Guide for Renewable Energy Approvals provides detailed information on the REA.

The REA process is designed to engage local communities while protecting human health and the environment. It is the developer’s responsibility to meet all the necessary regulatory requirements to obtain approval.

Certain projects may not require REA approvals due to their characteristics or size. Most microFIT projects (10 kW and smaller) do not require an REA; however, other permits and approvals may be required.

Small ground-mounted solar projects (larger than 10 kW, and up to and including 500 kW) may be exempt from the REA if they qualify for a streamlined self-registry process. For more information, see Section 6.3.

Some earlier renewable energy projects, developed prior to passage of the Green Energy Act, 2009, may have been subject to Environmental Screening and/or Environmental Compliance Approval instead of the REA.

Anaerobic digestion (AD) facilities located on a farm may seek approval under Ontario Regulation 267/03 as a “Regulated Mixed Anaerobic Digestion Facility” instead of being regulated under the REA.

The REA is not applicable to waterpower projects. Most waterpower projects are subject to the Waterpower Class EA process and federal permits.

On August 4, 2015, MOECC proposed amendments to the REA regulation and updates to the Noise Guidelines for Wind Farms in order to reflect new manufacturing standards and advancements in renewable energy technology. For more information on the proposed REA amendments (EBR Registry Number: 012-4493) and changes to the Noise Guidelines for Wind Farms (EBR Registry Number: 012-4601) please refer to the Environmental Registry website.

Large Wind Energy Projects

The REA process has specific requirements that must be met by large wind energy projects, in order to ensure protection of Ontario residents.

These requirements include:

  • stringent noise limits that are based on a 40 decibel (dB) noise guideline, as recommended by the World Health Organization to be protective of human health
  • minimum noise setbacks for wind projects — at least 550 metres from neighbouring homes and other buildings
  • setbacks from property lines, public roads and railways and some natural heritage features

Under the REA regulation, wind energy project developers are also required to notify Transport Canada and NAV Canada about their proposed projects.

Transport Canada has regulations and standards in place to ensure that tall structures – such as wind turbines, cell towers, smokestacks or silos – are marked and lit to be visually detected and avoided by pilots of aircraft.

Additionally, applicants with proposed wind facilities must contact Environment Canada to assess potential interference with weather radar signals and their ability to detect severe weather conditions.

Is a Renewable Energy Approval (REA) Required?

The following chart outlines which renewable energy facilities require an REA and which are exempt due to size or because they are regulated by other means. The facilities are presented based on renewable energy technology.

WIND
FACILITY DESCRIPTION REA REQUIRED? COMMENTS
Wind facilities (Class 1) with an electricity generation capacity less than or equal to three kW. NO
  • These facilities are typically purchased at hardware and outdoor stores.
    Wind turbines mounted on buildings may require building permits. For more information, contact the local municipal building department.
  • The microFIT program includes restrictions on siting of these turbines in residential areas.
Wind facilities (Class 2) greater than three kW but less than 50 kW have fewer pre-submission requirements and do not need to meet the noise, property and road/rail setbacks. YES
(streamlined)
  • These facilities are required to adhere to a streamlined set of requirements to comply with provincial noise limits.
  • The structures supporting these turbines require municipal building permits under the Building Code Act, 1992.
Wind facilities (Class 3) equal to or greater than 50 kW with a sound power level less than 102 dBA have to meet property and road/rail setbacks. YES
  • These facilities must meet additional requirements for proximity to water, natural heritage and cultural heritage, depending on the location of the project.
  • In addition to the requirements above, the structures supporting Class 3 or 4 wind turbines require municipal building permits under the Building Code Act, 1992.
Wind facilities (Class 4) equal to or greater than 50 kW with a sound power level greater than or equal to 102 dBA must meet property and road/rail setbacks and are also subject to minimum noise setbacks. YES
SOLAR
FACILITY DESCRIPTION REA REQUIRED? COMMENTS
Ground-mounted solar facilities less than or equal to 10 kW (Class 1). NO
  • These facilities may require municipal building permits.
  • The microFIT program includes restrictions on these facilities in residential areas.
Rooftop and wall-mounted solar of any size (Class 2). NO
  • Attaching solar panels to buildings may require municipal building permits.
Ground-mounted solar facilities (Class 3) with an electricity generation capacity greater than 10 kW, except for certain eligible facilities 500 kW and smaller that participate in a self-registry process. YES
(facilities 500 kW and below may qualify for self-registry)
  • These facilities are eligible to register in the streamlined EASR rather than obtain a REA. Ontario Regulation 350/12 sets out the eligibility and operating criteria that solar facilities must meet in order to qualify for the EASR.
  • These facilities may require municipal building permits.
BIOENERGY
FACILITY DESCRIPTION REA REQUIRED? COMMENTS
Anaerobic digestion (AD), biofuel, biogas or thermal treatment facilities. YES
  • These facilities must abide by setback distances identified in minimum distance separations, which municipalities use when issuing building permits for construction.
  • Owners/operators of these facilities must also manage materials according to an approved Nutrient Management Strategy.
Regulated mixed anaerobic digestion facilities and anaerobic digestion facilities processing non-regulated waste on a farm are subject to the Nutrient Management Act. NO
WATER
FACILITY DESCRIPTION REA REQUIRED? COMMENTS
All waterpower facilities. NO
  • Waterpower facilities are subject to requirements of the Environmental Assessment Act (e.g., Waterpower Class EA or an Individual EA for projects 200 MW or larger) and required MOECC and MNRF permits and approvals.

Presented below is key information municipalities should know about the REA process, including:

  • the importance of consultation for municipalities
  • formal consultation requirements the protection of natural heritage features and archaeological and heritage resources under the REA process
  • the REA decision
  • appealing REA decisions

Consultation Requirements under REA

The REA process includes mandatory requirements for municipal, Aboriginal and public consultation.

The graphic below shows the municipal consultation steps a developer must carry out and the associated timelines that are requirements of the REA. The timelines below do not cover all project development activities, such as the time required to conduct environmental studies.

REA Timelines (follow link for description)

Note that while every effort is made to issue a decision on REA applications within the six month service standard, it is not a guarantee and often takes longer. MOECC will not issue a decision on an REA until all outstanding issues are addressed.

Under the REA process, developers must include a Consultation Report in their REA application submission.

While consultation includes a number of formal steps, municipal consultation can occur at any point in the process before the developer finalizes its REA application. Consultation can take place through letters, phone calls, emails, meetings, and other means. Opportunities for a municipality to comment on a project are not limited to those options set out in the Municipal Consultation Form (described below). Developers must document all comments, and their responses to these comments, in the Consultation Report.

Notification Requirements

As part of the REA process, developers must meet mandatory notification requirements to ensure that municipalities and the public are aware of their project plans. The REA notification requirements specify that, if applicable to the type of project:

  • Notification of the project must be published in local newspapers and provided to local municipalities, roads boards, planning boards and service boards.
  • Notification of the first public information meeting 30 days in advance of the meeting being held.
  • REA reports will be available for public review at least 60 days in advance of the final public information meeting and available for municipal review at least 90 days in advance of the final public information meeting.;
  • Notification of the final public information meeting 60 days in advance of the meeting being held.
  • Notification of submission of the REA application must be published in local newspapers within 10 days of the notice being posted on the EBR Registry.

Developers are also required to provide notification to a number of other people/organizations, including surrounding land owners, Aboriginal communities, oil or natural gas pipeline companies, Transport Canada, NAV Canada and Environment Canada, among others. In some cases, developers may approach municipalities for assistance in determining the appropriate contacts (for example, oil and pipeline companies in the area).

Developer’s efforts to gain community support and address public concerns, such as odour and noise, are assessed through the public consultation process. The municipality is responsible for providing comments specifically related to servicing and infrastructure, safety aspects or other technical issues the developer should consider regarding the proposed project.

Public Meetings Required Under REA Process

Under the REA process, developers must hold a minimum of two public meetings to provide the general public with information about their project and to gather feedback to be considered in the final project design.

Municipal officials are encouraged to attend these public meetings to learn more about local projects and to provide input on considerations that are not part of the formal municipal consultation process.

First Public Meeting

At the first public meeting the developer officially introduces themselves and the project and makes a draft of the Project Description Report (PDR) available. The developer discusses how the project would proceed through the regulatory process, as well as the expected timing of the studies and for the overall project. At this time, the developer also solicits comments on the components of the project, including the design that has been determined to date.

Public meetings are not required for small projects, such as Class 1 and 2 thermal treatment, anaerobic digesters and small wind projects. Developers must still provide draft reports for Class 1 and 2 thermal treatment and anaerobic digesters to:

  • each municipality in which a project is located
  • Aboriginal communities on the list obtained from the MOECC the Niagara Escarpment Commission, if applicable

Small wind projects must send a draft Project Description Report to each municipality in which the project is located.

The developer must provide the reports at least 30 days before it submits an REA application to MOECC.

Municipal/Local Authority Consultation

Developers are encouraged to contact municipal staff early and often in the development process to inform the municipality about the project and to gather feedback.

Developers may also contact municipal staff to gather information about the project location. Typically, they will be seeking information on natural features, protected heritage properties or other known cultural heritage resources at the project location.

The Municipal Consultation Form is a formal way for municipalities to ensure that municipal impacts and local community needs are taken into account by the project developer at the project design stage.

Developers must provide a Municipal Consultation Form to the clerk of each municipality in which a project is located. The developer must submit this form at least 30 days before the first public meeting. The input received through this form and all consultation is a vital part of the decision-making process to issue an REA, as it plays a critical role in informing ministry decisions and may lead to placing conditions on an approval.

The Municipal Consultation Form is available online.

The Municipal Consultation Form solicits broad municipal comments and may include:

  • infrastructure and servicing, including road access, traffic management, municipal service connections, and landscaping design
  • emergency management procedures and safety protocols
  • easements or restrictive covenants associated with the project location
  • potential construction issues, including rehabilitation of temporarily disturbed areas and local infrastructure that could be damaged by construction, fire hydrants, connections to existing drainage, waterworks, sewers, and gas and utility lines
  • building Code permits and licences
  • any known issues with respect to significant natural features and water bodies
  • protected properties, archaeological resources or heritage resources that may be relevant

The Municipal Consultation Form process is meant to enhance communication between developers and municipalities. It is not intended to limit ongoing discussions. The earlier information may be raised, the more likely a developer will be able to effectively address any concerns. The developer should submit the completed municipal consultation form to MOECC with its REA application, along with an explanation of how it has considered municipal comments in its project design.

In cases where discussions between a municipality and a developer reach an impasse, and the developer is unable to obtain a completed Municipal Consultation Form, if a developer is able to demonstrate evidence of trying to receive a completed Municipal Consultation Form from a municipality with no success, the developer may submit an REA application without it. MOECC assesses the content and quality of municipal consultation. If a municipality raised concerns and the developer did not address them in the project design, MOECC may ask the developer for clarification about how the concern was considered. MOECC may also contact the municipality directly in certain cases.

If MOECC determines a developer did not meet the consultation requirements, MOECC has the authority to return the application until the requirements are met or to issue conditions of approval.

Aboriginal Consultation under the REA

Project developers must consult with Aboriginal communities that have been identified by MOECC. For more information on REA Aboriginal Consultation requirements, see MOECC’s Aboriginal Consultation Guide.

Final Public Meeting

At least 90 days before the final public meeting, the developer must provide to the municipality a copy of all draft reports (except the Consultation Report and written confirmation, and comment letters from MNRF and MTCS with respect to natural and cultural heritage). In addition, 60 days before the final public meeting the developer must make all draft reports available to the public.

The purpose of the final public meeting is for the developer to demonstrate that it has considered municipal, Aboriginal and public comments and feedback, and to give the public another opportunity to review the documents and share their thoughts.

REA Posting on the Environmental Bill of Rights Registry

Once MOECC deems an REA application complete, MOECC posts a notice of the project on the EBR Registry for a minimum 30-day public review and comment period. During this period, persons, including municipalities, can provide additional comments and feedback through the EBR Registry. MOECC considers these comments as part of its technical review of the REA submission.

The developer must publish a notice of its application in a local newspaper and it must post all application materials on its website within 10 days of the REA application notice being posted on the EBR. The application must remain on the developer’s website until MOECC issues its decision.

REA and Protection of Natural Heritage, Protected Properties, and Archaeological and Heritage Resources

Under the REA, significant natural heritage features, archaeological and heritage resources are protected.

Developers must determine if a proposed project is located on or abutting a property protected under the Ontario Heritage Act, 1990 (OHA); assess whether a project may impact archaeological and heritage resources; and identify significant natural heritage features near a project.

In addition to REA requirements, where species or habitats protected under the Endangered Species Act, 2007 are present on or near a proposed project site, developers must also assess the potential effects of all aspects of the renewable energy project on the species and/or habitat. Developers may need permits from MNRF for actions that could adversely affect these species and/or their protected habitats.

Municipalities may be contacted by developers and/or their consultants as they investigate these resources, features and species in relation to their projects, and prepare reports in support of the REA application.

Natural Heritage Features & Water Bodies

Natural heritage features, such as provincially significant wetlands and provincially significant areas of natural and scientific interest, as well as water bodies, are protected under the REA. The REA also contains strict protections that apply to projects located within the Niagara Escarpment Plan, Oak Ridges Moraine Conservation Plan and Greenbelt Plan areas.

Developers must identify significant natural heritage features at, and near, the project location and ensure conformity with the REA requirements for setbacks and mitigation around these features. As part of this process, developers are required to carry out a records review. As a result, municipalities can expect to be engaged by developers and consultants during the natural heritage assessment process.

MNRF reviews natural heritage assessments prepared by REA applicants. If MNRF confirms that a project has prepared the natural heritage assessment following provincial guidelines, MNRF will issue a confirmation letter to the developer.

Protected Properties, Archaeological and Heritage Resources

Protected Properties, archaeological, and heritage resources are also protected under the REA. Developers may contact a municipality to confirm whether the project is located on a property protected by that municipality under the OHA. Municipalities must approve any proposed alterations to properties they have designated under Part IV or Part V of the OHA, or that are subject to a Notice of Intention to Designate, as well as any properties that are subject to a municipal easement agreement. Developers must submit the municipality’s written authorization as part of their REA application.

Developers for projects in prescribed classes must also verify with the municipality whether the project is in an area identified in a Municipal Archaeological Management Plan. Municipalities should therefore try to have up-to-date Archaeological Management Plans in place.

Developers that choose to self-assess for potential archaeological and heritage resources may contact municipal staff for background information in order to fill out self-assessment checklists on the MTCS website.

Municipalities may also be contacted by developers’ consultants for information as part of background research for full archaeological assessments or heritage assessment reports.

MTCS reviews archaeological assessments and heritage assessments prepared for projects seeking an REA. Once MTCS confirms that a report meets the requirements of the REA and other licensing requirements, MTCS issues a letter to the consultant who prepared the report, with a copy to the developer.

Transmission and Distribution Lines

Any transmission or distribution line 50 kilometres (km) or less that is needed to connect the project is considered part of the renewable energy generation facility for purposes of the REA approval process.

Renewable energy projects often involve transmission or distribution connections or upgrades along municipal road allowances as part of the project. Municipalities may have concerns or preferences about the placement or location of new transmission or distribution lines within these road allowances. For example, a proposed new line could have impacts on other existing or planned infrastructure in the road allowance or impact use or maintenance activities for the road itself.

Both the proponent and the municipality should work to clarify expectations at an early stage in project planning. The Municipal Consultation Form is a formal way for municipalities to comment on this issue and any others related to the transmission or distribution lines proposed as part of a project.

In some cases, connection of the facility to distribution lines will require the local distribution company (LDC) to enhance existing distribution lines or build new ones. Distribution system planning is conducted in a process separate from the REA process. Lines built by the LDC to upgrade service within their service area are not considered part of the renewable energy generation facility, and an REA is not required for these distribution lines. Similarly, upgrades undertaken by a transmitter in their service area to accommodate new connections will not be considered part of the renewable energy project. Please refer to MOECC’s Technical Guide for Renewable Energy Approvals for a more detailed description of the lines that are subject to the REA.

REA Decision

Once MOECC has completed its technical review, it will issue a decision on the REA application. Notice of MOECC’s decision is posted on the EBR, along with a summary of MOECC’s comments and any conditions that may apply to the project.

REA Appeals

Under Ontario’s Environmental Protection Act, anyone, including a municipality, may notify the Director and the Environmental Review Tribunal (ERT) that they wish to appeal MOECC’s decision regarding an REA. The appeal, which must be in writing, must be made within 15 days of the issuance of the REA decision. The Notice of Appeal must set out:

  1. A description of how the renewable energy project will cause:
    1. serious harm to human health, or
    2. serious and irreversible harm to plant life, animal life, or the natural environment; and
  2. The relief sought.

The ERT has six months to render its decision on an REA appeal. The counting of the six-month period begins on the day the Notice of Appeal is served.

Details on the appeal process are provided in A Guide to Appeals Regarding Renewable Energy Approvals under Section 142.1 of the Environmental Protection Act, released by the ERT.

6.4. ENVIRONMENTAL ACTIVITY AND SECTOR REGISTRY (EASR)

MOECC has included certain types of renewable energy projects, such as eligible small-scale solar (projects greater than 10 kW, and up to and including 500 kW), on the EASR, as per Ontario Regulation 350/12.

The EASR is a public, web-based, self-registration system. Persons engaging in the prescribed activity are required to register with MOECC and meet project-specific eligibility and operating requirements.

MOECC has produced a guide outlining the EASR registration and approval process for ground-mounted solar facilities.

6.5. ENVIRONMENTAL ASSESSMENT FOR WATERPOWER PROJECTS

Waterpower projects are regulated under Ontario Regulation 116/01 of the Environmental Assessment Act, 1990. Waterpower projects were not included in the REA process when it was launched in 2009.

Waterpower projects with a generation capacity of 200 MW or larger automatically require an Individual EA. Waterpower projects with a generation capacity of less than 200 MW may meet their Environmental Assessment Act requirements by following the Ontario Waterpower Association’s (OWA) “Class Environmental Assessment for Waterpower Projects,” which was approved by MOECC.

The Environmental Assessment Act formally recognizes the Class EA process for projects that are carried out routinely and have predictable environmental effects that can be readily managed.

All Class EAs have a mechanism where the MOECC Minister may order that, if warranted, an Individual EA be carried out for a particular project, which is a more rigorous assessment. An Individual EA studies the potential environmental effects, positive or negative, of an individual project proposal. This is referred to as a “Part II Order” or “bump-up” request. Any interested person may request the MOECC Minister or delegate to order that a Class EA project be bumped up to an Individual EA by making a Part II Order.

The Class EA acts as a planning, evaluation and consultation framework that facilitates the design process. It requires developers to consider the potential effects to the environment of a proposed project and the significance of these effects using the best information available in order to make an informed decision about how or whether a project should proceed.

Common issues identified through the Class EA process that require mitigation are: fish and fish habitat; water levels and flows; and competing or complementary interests of nearby land owners, water users, and water-related natural resource users. For many projects there is also a potential for increases in mercury levels within fish that could negatively affect fish consumption recommendations for a time after facility establishment.

The OWA’s website provides more information about the Class EA.

The Class EA is the key process for waterpower development for projects smaller than 200 MW, though additional permits and approvals are also required from MNRF and the federal government.

Since most riverbeds are Crown land, developers of waterpower projects will generally be subject to MNRF’s Crown land site access process, which is aligned with the IESO’s energy procurement programs. For further information consult MNRF’s website.

Formal Consultation Requirements under the Class EA

Consultation is a mandatory feature of the Class EA. The type and content of consultation depends on the project, but developers are expected to consult with local municipalities as key agencies. Generally, notification and consultation is required at the initial planning stage, at points during the Class EA process, and at completion of the Class EA documentation. In addition, developers must engage Aboriginal communities that may have an interest in the project.

Notification Requirements under the Class EA

At the outset of the project, the developer must provide a Notice of Commencement to local municipalities and other key parties. Developers should reference the Waterpower Class EA on the OWA website for specific details on the required content of this notice.

Class EA and Protection of Natural Heritage and Archaeological and Cultural Heritage Resources

Like the REA, the Class EA protects natural heritage features and “cultural heritage resources” – a broad term that refers to archaeological resources, areas of archaeological potential, built heritage resources, cultural heritage landscapes and marine archaeological sites.

Since waterpower projects may occur in areas of the province without municipal organization, the OWA states there may be fewer cultural heritage resources that have previously been identified. Please refer to the Class EA for more information.

Developers must identify potential cultural heritage resources and attempt to address possible effects on them through the appropriate technical studies. Examples of property with archaeological potential include proximity to (i.e., within 250 metres) archaeological sites reported to MTCS or to a water source such as a lake, river or stream. Examples of potential built heritage resources or cultural heritage landscapes include: existing infrastructure that is more than 40 years old; locations within a designated Canadian Heritage River Watershed; or if there is Aboriginal or local knowledge suggesting that the project area has a special association with a community, person or historical event.

Class EA Decision and Evaluation

Because the Class EA process is developer-driven, it does not result in an “approval” from MOECC. Instead, when developers indicate to the public and the reviewing agencies that they have completed their Class EA, they submit a Notice of Completion to MOECC. Developers must also send a copy of the Notice of Completion to the parties who received a Notice of Commencement and the notice is posted on the EBR Registry.

After the 30-day mandatory comment period, if MOECC does not receive any Part II Order (i.e., “bump-up”) requests to elevate the project to an Individual EA, MOECC considers all possible concerns addressed and the developer files a Statement of Completion with: the MOECC Regional EA Coordinator; the Director of MOECC’s Environmental Approvals Access and Service Integration Branch; the District MNRF Office; and the OWA. After that, the developer must obtain the necessary permits and approvals. The individual EA itself does not confer any approvals.

If there are elevation requests, MOECC conducts a thorough review of the requests and the developer is expected to respond to the concerns outlined in the requests. If MOECC determines that an Individual EA is warranted, the developer will have to conduct additional studies and consultation to address any outstanding concerns.

6.6. APPROVALS & PERMITS ADMINISTERED BY THE MINISTRY OF NATURAL RESOURCES AND FORESTRY (MNRF)

MNRF has a variety of approval and permitting requirements that may apply to a renewable energy project, depending on its location and potential impacts. Below are some of the approvals and permits administered by MNRF that work together with the REA process, and may be applicable to renewable energy projects.

The APRD: Approval and Permitting Requirements Document

The Approval and Permitting Requirements Document (APRD) outlines regulatory requirements administered by MNRF that could impact a renewable energy project. Approvals or permits may be required under various statutes, including the:

  • Public Lands Act
  • Lakes and Rivers Improvement Act
  • Endangered Species Act
  • Fish and Wildlife Conservation Act

MNRF also administers the Conservation Authorities Act. Permission of the local conservation authority may be required for development or other activities in:

  • river and stream valleys
  • the Great Lakes and shorelines of large inland lakes
  • hazardous lands (such as unstable valley slopes)
  • watercourses and wetlands

Endangered Species Act, 2007

The Endangered Species Act, 2007 protects Ontario’s species-at-risk and their habitats and is administered by MNRF. Where protected species or habitats are present, the developer must assess the potential effects of all aspects of the renewable energy project (for example, construction, operation, and retiring) on the species and/or habitat. This analysis must include the assessment of any potential off-site effects resulting from the proposed activity.

Developers may need permits from MNRF for actions that could adversely affect species-at-risk and/or their protected habitats. As a result, to avoid project delay, developers should consult with MNRF early in the planning and design processes. Through discussions with MNRF, the parties may determine that the developer is required to make changes to the proposed activity mitigation or avoidance measures, such as timing restrictions. Information about Endangered Species Act permits can be found online.

Certain eligible activities that will impact species at risk or their habitat can proceed without a permit, provided the developer follows the rules for exemptions outlined in Ontario Regulation 242/08. These rules vary depending on the activity and the regulatory provision. They may include, but are not limited to:

  • registering the activity with MNRF
  • implementing steps to minimize the adverse effects of the activity on the species identified and the species’ habitat
  • preparing a mitigation plan
  • monitoring the effects that the activity has on the species, the effectiveness of the measures taken to minimize the adverse effects, and the effectiveness of the mitigation plan
  • reporting on species observations; measures taken to minimize adverse effects; implementation of the mitigation plans; and, monitoring information collected

Information about activities that are eligible for regulatory exemptions can be found at http://www.ontario.ca/environment-and-energy/endangered-species-permits-and-authorizations

The following are resource materials regarding the Endangered Species Act requirements and the permitting process:

Access to Crown Lands

Provincial Crown lands in Ontario are managed by MNRF under the authority of the Public Lands Act. Given that 85 per cent of Ontario’s land mass is Crown land, many renewable energy developers and communities may require access to Crown land for their proposed projects. Those interested in pursuing such opportunities should review the relevant MNRF’s Renewable Energy on Crown Land Policy and related Crown land procedural direction for site access. Developers should review information related to the specific IESO energy procurement program(s) they are considering. This information can be found at MNRF’s renewable energy webpage.

Municipalities that are aware of projects that developers may be proposing for Crown Land can also direct developers to MNRF’s renewable energy webpage, as noted above.

Once granted Crown land site access, proponents must still seek all necessary regulatory approvals for their proposed project. Following successful completion of the regulatory approval process, proponents must then apply for Crown land tenure for their project.

6.7. MINISTRY OF TRANSPORTATION (MTO) APPROVAL

Renewable energy projects may also be subject to MTO requirements. For projects located within, or adjacent to, a provincial highway, and/or within an MTO permit control area, developers must obtain the appropriate permits. MTO’s website provides information about these requirements.

Municipalities can direct developers to an MTO regional office for further information or assistance if they are aware of local projects that may be subject to MTO requirements.

6.8. NUTRIENT MANAGEMENT ACT, 2002

Developers of certain on-farm anaerobic digestion facilities may elect to be regulated under the Nutrient Management Regulation (Ontario Regulation 267/03), enacted under the Nutrient Management Act, 2002, rather than the REA. In order to satisfy the “on-farm” designation, biogas systems must be a Regulated Mixed Anaerobic Digestion Facility as outlined in the Regulation, including the requirement to be located on an eligible farm unit where an agricultural operation is carried out. The regulation allows qualifying facilities to accept up to 50 per cent (by volume) off-farm feedstocks.

In such cases, before issuing a building permit for a biogas system, the municipality must confirm that an approved Nutrient Management Strategy is in place for the anaerobic digestion facility and that the Nutrient Management Strategy includes the biogas system.

The Regulated Mixed Anaerobic Digestion Facility Rules are available on the Ontario Ministry of Agriculture and Food’s (OMAFRA) website.

OMAFRA has also created a webpage describing the requirements of the Nutrient Management Regulation (Ontario Regulation 267/03) for designing and operating an on-farm Regulated Mixed Anaerobic Digestion Facility.

6.9. FEDERAL REQUIREMENTS

In addition to provincial and municipal approvals, developers may need approvals, authorizations, and permits from federal ministries or agencies. Federal requirements may range from simple notification to extensive approvals.

In all cases, it is the responsibility of the project developer to ensure federal regulatory requirements are met.

Federal approvals were required for certain types of renewable energy projects prior to changes that came into effect with the passing of the Canadian Environmental Assessment Act, 2012. Prior to the changes:

  • Projects on First Nations reserves or other federal land could be subject to a federal approval and, if a portion of the project (including ancillary connection facilities) extends beyond such land, the project could also be subject to the REA.
  • Projects that obtained federal funding could be subject to a federal approval in addition to a provincial approval.
  • Certain renewable energy projects could also be subject to a Federal Environmental Screening instead of, or in addition to, the REA.

However, following the enactment of the Canadian Environmental Assessment Act, only “designated projects” may now require federal environmental assessment – this includes waterpower projects larger than 200 MW.

The Canadian Environmental Assessment Act website provides general information on the act and its regulations.

Some projects that require federal environmental assessment, such as waterpower projects, may also require provincial approval.

Some projects only require federal approval, such as a project wholly located on federal land; for example, an Indian reserve.

Regardless of whether a project requires a federal environmental assessment, the developer may also need to contact or work with federal bodies, including, for example:

  • Royal Canadian Mounted Police for wind facilities
  • Radio Advisory Board of Canada for wind facilities
  • Transport Canada and NAV Canada for wind turbine towers and for compliance with aviation requirements
  • Fisheries and Oceans Canada for projects in or near water that may impact fisheries
  • Environment Canada for projects that may impact migratory birds, and to assess potential for projects to interfere with weather radar signals and their ability to detect severe weather conditions
  • Parks Canada for projects near historic sites or national parks
  • Canadian Environmental Assessment Agency for projects on federal lands
  • Indigenous and Northern Affairs Canada (INAC) for projects on reserve land or projects with INAC funding

Wind Energy Projects and Federal Aviation Requirements

Municipalities concerned about potential impact of wind energy projects on municipal airports should contact Transport Canada (with regard to lighting and marking of structures) and NAV Canada (with regard to air navigation and radar systems), as they are the governing bodies for aeronautics under the Aeronautics Act, 1985 and Canadian Aviation Regulations.

Transport Canada has regulations and standards in place to ensure that tall structures – such as wind turbines, cell towers, smokestacks or silos – are marked and lit to be visually detected and avoided by pilots of aircraft. Transport Canada can also enact federal airport zoning regulations to protect the present operations of an airport and help ensure that potential and future development surrounding the airport remains compatible with the safe operation of aircraft and of the airport itself.

The types of restrictions and/or prohibitions contained in a zoning regulation may range from limiting the height of structures to prohibiting specified land uses to prohibiting facilities that may interfere with signals or communications to/from aircraft. Airport zoning regulations are only applicable to certified aerodromes. For more information on Transport Canada requirements, see “Aviation: Land Use in the Vicinity of Aerodromes” on the Transport Canada website.

NAV Canada may notify wind energy project proponents of any potential disturbances to the air navigation and/or radar systems. In some cases, NAV Canada may request the movement of turbines and/or require the airport to alter instrument approaches if there is the potential to affect these systems.

6.10. PLANNING ACT, 1990

Following the passage of the Green Energy Act, 2009 (GEA), renewable energy projects became subject to province-wide standards under the REA process and were generally exempted from the Planning Act, 1990. The exemption from the Planning Act means that the following local planning instruments do not apply to, or affect, renewable energy projects:

  • official plans
  • demolition control by-laws
  • by-laws or orders passed under Part V of the Planning Act, including zoning, site plan, holding and interim control by-laws development permit system by-laws

Site plans and other agreements relating to renewable energy projects under the Renewable Energy Supply and the Renewable Energy Standard Offer Program that preceded the enactment of the GEA are not affected by the changes to the application of the Planning Act. In addition, renewable energy projects that propose the creation of new lots, or require land leases longer than 50 years, continue to be subject to the land division process under the Planning Act.

Municipalities hold broad powers under the Municipal Act, 2001 to pass by-laws to ensure the health and safety of local communities, as long as the by-laws do not come into conflict with any provincial or federal act, regulation, or other instrument of a legislative nature. However, as renewable energy projects are exempt from most land use planning instruments under the Planning Act, including zoning by-laws, municipalities cannot use their broad powers under the Municipal Act, 2001 to restrict the use of land for such projects.

Municipalities are authorized to pass by-laws for property standards under the Building Code Act, 1992. Municipalities also pass by-laws for matters such as noise, odour, vibration, site alteration, tree protection and outdoor illumination, through the Municipal Act, 2001 and the City of Toronto Act, 2006, for example. Application of these by-law powers is limited for certain types of renewable energy projects set out in regulations, including roof and wall-mounted solar projects and ground source heat pumps.

Municipalities and Priority Renewable Projects

Under Ontario Regulation 15/10, the following renewable energy projects and sources are designated priority projects:

  • roof or wall mounted solar photovoltaic (PV) systems
  • roof or wall mounted solar thermal systems that heat air
  • roof or wall mounted solar thermal water systems that heat water
  • ground-source heat pumps

For these designated priority projects, most municipal by-laws that would prevent or restrict such projects or sources do not apply. However, certain local and provincial restrictions related to health, safety, heritage and the environment continue to be in effect. For example, local by-laws preserving trees or cultural heritage properties apply to designated priority projects, as do a number of provincial laws, such as the Building Code Act, 1992 and the Endangered Species Act, 2007.

6.11. MUNICIPAL-SPECIFIC REGULATORY MATTERS

Renewable energy projects may be subject to Ontario’s Building Code, which is enforced by municipalities. Projects may also be subject to municipal by-laws. The property tax treatment of renewable energy projects is also discussed in this section, and information is presented on the effect of renewable energy projects on neighbouring property values.

Building Permits

Municipalities are responsible for reviewing building permit applications and for issuing building permits. Developers should check with their local municipal building department.

Wind energy project developers may also seek building permit information from municipalities with respect to proposed buildings in the vicinity of their planned wind project. This information will help project developers to ensure that wind energy projects meet minimum noise setback requirements from neighbouring homes and other buildings.

Renewable energy projects may require building permits under the Building Code, including:

  • structures that support a wind turbine generator having a rated output of more than three kW
  • solar panels or wind turbines mounted on buildings

Municipalities are also entitled to charge building permit fees under the Building Code Act, 1992. The amount of these fees may not exceed the cost to the municipality to administer and enforce the Building Code Act and the Building Code. The Building Code sets out what renewable projects can be subject to a building permit.

If a project requires an REA, developers must obtain the REA before a building permit will be issued under the Building Code.

Developers and municipalities should work together prior to the granting of an REA to address any issues that may delay issuing a building permit.

Municipal Drains

If a renewable energy project impacts the flow of a drainage works regulated under the Drainage Act, 1990, a drainage reassessment or engineering study may be required.

Developers should get in touch with the local municipality and/or OMAFRA for further information.

Additional Municipal Permits and Agreements

Renewable energy projects may be subject to other municipal permit requirements, including tree cutting permits, permits allowing the use of municipal land and road access permits. As well, municipalities may require developers to enter into agreements relating to municipally-provided services, such as emergency response, sewer and water, and garbage collection.

Developers are expected to take responsibility for the costs of project development. Municipalities have statutory authority that may allow them to charge developers for certain types of costs, similar to fees charged for other types of development. For example, the Municipal Act, 2001 (and the City of Toronto Act, 2006) may provide authority to levy charges for costs impacting municipal infrastructure, such as road cuts, road access, occupancy permits, emergency response, sewer, water and waste collection.

Municipalities can also recover from developers growth-related capital costs under the authority of the Development Charges Act, 1997, to the extent the renewable energy development gives rise to increased needs for eligible services.

Property Taxes

Ontario’s Ministry of Finance sets the rules governing the property tax treatment of renewable energy installations under the Assessment Act, 1990 and in Ontario Regulation 282/98 under the act.

The following rules apply to facilities that generate electricity using solar energy, wind energy or anaerobic digestion of organic matter:

  • Machinery and Equipment – The machinery and equipment used in the generation of electricity is exempt from property taxes (for example, the panels used in solar generation and the turbines and blades used in generation from wind).
  • Wind Turbine Towers – Wind turbine towers are assessed based on a regulated methodology. Prior to 2014, each tower was assessed at $40,000 per MW of the installed capacity of the generator attached to the tower. This amount is being increased to $43,986 per MW for the 2016 taxation year and is being phased in during 2014 and 2015. The amount will be updated with every four-year reassessment, beginning in 2017.
  • Rooftop Installations – The assessment and tax classification of property does not change because of the addition of a renewable energy installation on the rooftop of a building.
  • Ground Installations – The property tax treatment of property with a ground installation depends on the size and location of the facility and who is conducting the generation, as outlined below.
  • Generation as an Ancillary Activity, Not by a Corporate Power Producer – For energy generated by a person not ordinarily in the business of electricity generation, transmission, or distribution, and where the generation is ancillary to another activity on the same property, the following rules apply:
    • Small-size ground installations (generation capacity of up to 10 kW) do not result in an increase in assessment or a change in tax classification.
    • Medium-size ground installations (generation capacity of over 10 kW up to and including 500 kW) are taxed based on the surrounding land use (for example, residential, farm, multi-residential and commercial).
    • Large-size ground installations (generation capacity of over 500 kW) are taxed based on the surrounding land use for the proportion of assessment up to 500 kW, and at the industrial rate for the proportion over 500 kW.
  • On-Farm Anaerobic Digestion (AD) – AD facilities located on a farm and operated by the farmer are taxed at the farm rate.
  • Generation by Corporate Power Producer – Ground-based generation facilities operated by entities whose primary business is the generation, transmission, or distribution of electricity are taxed at the industrial rate.
  • microFIT installations – Renewable energy installations up to 10kW do not affect the property’s assessment.

Renewable Energy Projects and Neighbouring Property Values

Municipalities may receive questions or comments from residents about the potential impact to their property value from a wind project or other large renewable energy project on property that adjoins their property.

The Municipal Property Assessment Corporation (MPAC) collects data to identify properties near wind energy projects and analyzes the sales of those properties to see if their proximity to a wind turbine has any resulting impact on value.

A 2014 MPAC assessment of properties located close to wind turbines concluded that the properties were equitably assessed, with no statistically significant impact on sale prices of residential properties in these market areas. More information is available on MPAC’s website.

6.12. TRANSMISSION/DISTRIBUTION LINES AND GRID CONNECTION

Transmission and Distribution Lines Associated with Renewable Energy Projects

Building new transmission or distribution lines may be required in order for large renewable energy projects to deliver electricity to the Ontario grid.

Any transmission or distribution line which is 50 kilometers or less is considered part of the renewable energy generation facility for the purposes of the REA approval process.

Project developers will also generally require Leave to Construct approval from the OEB prior to beginning construction on a transmission line that is part of a renewable energy project. As part of the application process for Leave to Construct, a Notice of Public Hearing will be published in newspapers, posted on the OEB website or provided to certain individuals. The OEB will examine evidence via oral or written public hearings, and render and communicate its decision to all affected parties. The public can participate in the Leave to Construct decision-making process by providing written comments to the OEB or by acting as an intervenor.

On an electricity transmission project, the OEB examines the effect on consumers with respect to prices, reliability and quality of electricity service. The OEB does not have authority to review or approve environmental issues related to electricity transmission as part of its mandate. These matters are addressed through the REA by the MOECC.

The Electricity Act, 1998 confers certain rights and obligations on distributors or transmitters of electricity. Previous OEB decisions have found that proponents of renewable energy projects with connection lines are considered to be distributors or transmitters as defined in the Electricity Act. For example, if project developers and landowners (which can include municipalities) are not able to come to an agreement regarding the use of land for transmission or distribution corridors, the developer may ask the OEB for permission to expropriate land. In this case, the OEB will examine evidence via oral or written public hearings, and render and communicate its decision to all affected parties. The OEB will consider the public interest when making any order under the Ontario Energy Board Act that authorizes project developers to expropriate land for transmission or distribution lines.

The OEB website includes further information on OEB’s process.

Grid Connection Requirements

Transmission and distribution systems have technical limits regarding the amount of electricity that can safely and reliably flow through the electrical grid. Renewable energy projects that apply for connection in certain parts of the province may not be able to connect due to the limited capacity of the transmission and/or distribution system to accommodate the generation project.

A project can either be transmission-connected or distribution-connected. During FIT or LRP program application assessment, the IESO will assess connection availability at the proposed connection point.

Screening for grid capacity during the FIT or LRP application assessment does not ensure ability to connect the project. If a project receives a FIT or LRP contract, the project would then be subject to one or more grid impact assessments that may be required by the system operator, transmitter or LDC. LDCs and/or transmitters may also need to seek additional approvals for changes to their existing systems associated with grid connection. These approvals have associated timelines, which can affect the project.

Project developers are encouraged to consult with the applicable LDC or transmitter prior to submitting a FIT or LRP application.

Electricity Generator License

A licence from the OEB is required to generate electricity for larger projects with a generation capacity of over 500 kW. For more information, see the OEB website.

Electrical Safety Authority

Inspection by the ESA is required for all systems that generate electricity. For more information call the ESA at 1-877-ESA-SAFE, or see the ESA website.