MNR Approvals for Greening the Grid
In September 2009, the Ministry of Natural Resources (MNR) published a document that outlines its requirements for approving renewable energy projects. The Approval and Permitting Requirements Document for Renewable Energy Projects (“Requirements Document”) was released the same day that O. Reg. 359/09, the Ministry of the Environment’s (MOE’s) Renewable Energy Approval (REA) Regulation under the Environmental Protection Act, came into force. These initiatives constitute two of the major components involved in implementing the green energy vision embodied by the Green Energy and Green Economy Act, 2009.
MNR is responsible for managing Ontario’s fisheries, wildlife, aggregate resources, provincial parks and Crown lands. Accordingly, MNR issues various permits, licences, authorizations and approvals for activities on Crown and private lands. Renewable energy projects may require MNR-issued permits pursuant to various statutes, including the Public Lands Act, the Endangered Species Act, 2007', the Fish and Wildlife Conservation Act, 1997, the Provincial Parks and Conservation Reserves Act, 2006, and the Conservation Authorities Act.
The goal of the Requirements Document is to provide clarity and guidance as to which activities must be undertaken, and what information is required, for MNR to grant permission for a renewable energy testing or generating facility on Crown or private land. The document emphasizes that other regulatory bodies, such as conservation authorities, municipalities or federal agencies, may have specific requirements that must also be considered.
Once an applicant has met all the requirements outlined in the REA Regulation and the Requirements Document, they may submit a complete application to the government for review.
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Renewable Energy Testing Projects Proposed on Crown Land
In order to determine the viability of a particular location, project developers may need to undertake testing activities (such as measuring wind speed, for example). While an REA from MOE is not required to conducts tests, several MNR requirements exist. Where construction is required to gain access to the proposed testing site, the requirements are similar to those that would be imposed by MOE for a renewable energy project. There may also be additional location or project-specific approvals required depending, for example, if the testing is to be done in a provincial park, a conservation reserve, or in the Far North. For testing projects that do not require construction to gain access, the obligations are less onerous due to the reduced potential impact on the environment.
Renewable Energy Projects
For renewable energy projects, most of the requirements are set forth in the REA Regulation. In addition, several MNR requirements relate to the natural environment. These are summarized below.
Site Investigation Report
Under the REA Regulation, proponents are required to assess the natural heritage features (air, land and water) within 120 metres of a proposed project. While the regulation requires the proponent to provide general information about nearby natural features, MNR requires additional information regarding: fish and fish habitat; rare vegetation; protected species and habitat; wildlife and their habitat; mineral aggregate resources; petroleum resources; Crown forest resources and hazard lands (i.e., lands that are subject to natural hazards, such as flooding). Various MNR permits and approvals may be required based on the information submitted.
Endangered Species Act, 2007 Requirements
Where a species or habitat that is protected under the Endangered Species Act, 2007 (ESA) is present in the proposed project area, a proponent must assess the potential impacts of all aspects (construction, operation, decommissioning) of the project on the species or habitat. If the proponent determines that the project will not have a negative impact, they must provide sufficient documentation to support that conclusion. Where, however, there are potential negative impacts that are prohibited by the ESA, the proponent must determine whether the project can be modified, and “all reasonable alternatives to the proposed activity must be considered, including alternatives that would not negatively affect the species.” If no modification can be made to avoid the negative impacts, authorization from MNR under the ESA will be required.
Fish and Wildlife Authorizations
Under the Fish and Wildlife Conservation Act, 1997, authorization must be obtained from MNR if the construction or operation of a project will destroy bird nests or eggs, beaver dams, black bear dens or interfere with black bears in their dens.
Additional Location or Project-specific Requirements
Similar to the requirements for a testing project, there may be additional location-specific approvals required. For example, if a proponent is proposing to construct a project in a natural hazard land, permission from the local conservation authority may be required. For off-shore wind facilities, the REA Regulation requirements are supplemented by further MNR requirements relating to fisheries, shipping channels, and coastline erosion. Finally, facilities proposed for provincial parks or conservation areas may be constructed under defined circumstances.
Projects that do not Require an REA
Small-scale solar and wind facilities do not require an REA. If such a project also does not require the disposition of Crown land, very few requirements apply. The only requirement is where the project has the potential to negatively affect protected species or habitat. In this case, an assessment must be conducted to determine whether the ESA requirements outlined above apply. Where a disposition of Crown land is required, a project proponent must file a project description, a site plan, a decommissioning plan and documentation of any relevant Aboriginal consultation. As well, an assessment must be conducted under the ESA.
ECO Comment
In general, the ECO supports the increased development of renewable energy projects and anticipates that these will play an important role in both moving the province’s energy mix away from fossil fuels and helping to build a more resilient energy infrastructure. Accordingly, the ECO supports MNR’s efforts to consolidate its requirements into one guidance document; this will help to clarify the ministry’s requirements for project developers and, it is hoped, help to streamline the overall approvals process. A specific concern, however, relates to EBR rights and transparency regarding some approvals that may be granted by MNR for renewable energy projects. A proposal for a renewable energy approval is a classified instrument for the purposes of the EBR. Accordingly, all applications for renewable energy approvals will be posted by MOE as proposal notices on the Environmental Registry for public notice and comment. Unfortunately, certain other required permits and approvals issued by MNR, which may or may not form a mandatory part of a complete submission for an REA, are not required to be posted on the Environmental Registry. In order to ensure the success and future viability of renewable energy projects, all efforts must be made to keep the public fully informed of proposed developments.
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| This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2010. "MNR Approvals for Greening the Grid." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. 21-24.
