1. Proposed REGULATIONS UNDER THE GREEN ENERGY AND GREEN ECONOMY ACT, 2009

RÉGLEMENTATION PROPOSÉE EN VERTU DE LA LOI DE 2009 SUR L’ÉNERGIE VERTE ET L’ÉCONOMIE VERTE

Agriculture and Rural Affairs Committee and Planning and Environment Committee recommendation

That Council endorse the staff comments on the proposed regulation for Renewable Energy approvals under the Environmental Protection Act as outlined in Document 1.

Recommandation DU Comité de l’agriculture et des affaires rurales et

Comité de l’urbanisme et de l’environnement

Que le Conseil avalise les commentaires du personnel sur la réglementation proposée en matière d’approbations d’énergie renouvelable en vertu de la Loi sur la protection de l’environnement tel qu’il est indiqué dans le document 1.

Documentation

1. Deputy City Manager’s report, Infrastructure Services and Community Sustainability dated 30 July 2009 (ACS2009-ICS-CSS-0030).

Report to/Rapport au :

Planning and Environment Committee

Comité de l'urbanisme et de l'environnement

and

Agriculture and Rural Affairs Committee

Comité de l'agriculture et des questions rurales

and Council / et au Conseil

30 July 2009 / le 30 juillet 2009

Submitted by/Soumis par : Nancy Schepers, Deputy City Manager

Directrice municipale adjointe

Infrastructure Services and Community Sustainability

Services d’infrastructure et Viabilité des collectivités

Contact/Personne-ressource: Michael Murr, Acting Director/Directeur intérimaire, Community and Sustainability Services/Services de viabilité et des collectivités

(613) 580-2424, 25195 michael.murr@ottawa.ca

City Wide/à l'échelle de la Ville

Ref N°: ACS2009-ICS-CSS-0030

SUBJECT:	Proposed REGULATIONS UNDER THE GREEN ENERGY AND GREEN ECONOMY ACT, 2009
OBJET :	RÉGLEMENTATION PROPOSÉE EN VERTU DE LA LOI DE 2009 SUR L’ÉNERGIE VERTE ET L’ÉCONOMIE VERTE

REPORT RECOMMENDATION

That Planning and Environment Committee and Agriculture and Rural Affairs Committee recommend that Council endorse the staff comments on the proposed regulation for Renewable Energy approvals under the Environmental Protection Act as outlined in Document 1.

RECOMMANDATION DU RAPPORT

Que le Comité de l’urbanisme et de l’environnement ainsi que le Comité de l’agriculture et des affaires rurales recommandent au Conseil municipal d’avaliser les commentaires du personnel sur la réglementation proposée en matière d’approbations d’énergie renouvelable en vertu de la Loi sur la protection de l’environnement tel qu’il est indiqué dans le document 1.

BACKGROUND

Bill 150 - Green Energy and Green Economy Act, 2009 received Royal Assent from the Province of Ontario on May 14, 2009. The GEA is enabling legislation designed to facilitate development and distribution of renewable energy, and assist in creating a culture of energy conservation.

Council first considered Bill 150 in April 2009 and provided its comments on the then draft legislation in response to the posting of Bill 150 on the Provincial Environmental Registry (ACS2009-ICS-CSS-0023). The version that received Royal Assent is very similar to the original proposed Bill and continues to remove control and approval of renewable energy projects from the Planning Act and municipal approval procedures.

The Act will come into force through proclamation and relies on a number of regulations. These regulations deal with such matters as the provincial approval process for renewable energy installations and standards/requirements related to renewable energy projects. A draft regulatory framework has since been posted on the environmental registry http://www.ene.gov.on.ca/envision/env_reg/er/documents/2009/010-6516.pdf).

The proposed regulation describes a process for obtaining a Renewable Energy Approval from the Ministry of Environment under the Environmental Protection Act, outlines the types of projects which require approval, and provides some standards and requirements related to different types of renewable energy projects. Major points include:

• requirements for setbacks for larger wind turbine projects based on sound levels (minimum of 550 metres with increased distance based on the number of turbines and a noise limit of 40dBA)
• requirements to protect natural heritage features based on 120 metre buffers or alternative setbacks established through environmental studies
• consultation requirements (public and municipal) are defined to ensure that community and municipal concerns are heard
• emissions and noise requirements for different types of projects including biogas facilities are specified
• thresholds for wind and energy projects which will require renewable energy approvals under the EPA are defined. Wind projects under 3kW and 102 dBA sound rating, and solar projects under 10 kW will not be a subject to the Renewable Energy Approvals process (so as noted in the staff comment, there is still some uncertainty surrounding future approvals/standards for these smaller renewable energy installations).

The regulations were released in June 9, 2009 with a deadline of July 23, 2009 for comment on the environmental registry.

DISCUSSION

The proposed regulations were circulated amongst appropriate staff including planning, natural systems, waste management, health, bylaw, and design and construction. Due to the time limitations involved in the environmental registry posting, staff submitted comments by the deadline of July 23, 2009 to ensure that questions or concerns identified based on the staff review were considered by the Province. When submitting the comments, it was noted that they would be subsequently taken to Committee and Council for endorsement and/or modification.

The comments are included as Document 1 and the main issues are summarized below:

• The most contentious issue emerging from the regulations to date involve setbacks from Wind Turbines and the issue of health effects. This issue has already been discussed at Agriculture and Rural Affairs Committee (ACS2009-CCS-ARA-0005-Health Impacts of Wind Turbines) and the resulting motion was included in the EBR comments as a response to the question of wind turbine setbacks.
• The draft regulation provides an indication of matters, primarily of a site planning nature, on which proponents will be required to consult with municipalities. Staff have recommended that this list be broadened to include information related to existing and future land use planning, natural heritage features, and other general planning concerns such as heritage resources, as well as consultation on smaller installations which could raise municipal issues in an urban environment. Staff have also indicated that there is still no clear enforcement mechanism being proposed for site planning conditions associated with an approval.
• The regulations are silent on proposed measures to ensure that some protection is provided for agricultural lands. The recently adopted Official Plan did have some wording around ensuring that productive land is not lost unnecessarily and this has been conveyed through the comments on the draft regulation. It is staff's understanding that the Province is looking at measures to protect some types of agricultural land through the green energy procurement process (e.g. they would not enter into agreements with proponents with projects on specialty cropland and other prime agricultural land) rather than attempt to specify these requirements in the regulation.
• Some setbacks are based on existing receptors such as a house (with a much smaller minimum lot-line setback of 125m.). Staff have commented that setbacks also need to account for vacant properties, which have development designations such as a vacant rural estate lot or designated village boundary. Existing Ministry of Environment Noise Guidelines for Wind Farms do account for vacant lots so the proposed regulation should clearly indicate that these will be carried forward.
• The proposed regulations indicate that wind turbines smaller than 3kW, or ground mounted solar arrays smaller than 10kW, would not require a Renewable Energy Approval under the Environmental Protection Act. This means that there are still regulations to come to address these smaller installations, as they still require some standards related to setbacks and potential property impacts in the urban environment.

There are other comments that are more questions of clarification. In addition, some components of the regulation consist of technical standards and procedures that are currently in place in other processes under the Environment Protection Act.

ENVIRONMENTAL IMPLICATIONS

Renewable energy installations support the City's goal of environmental sustainability and help achieve a number of City objectives including greenhouse gas reduction targets. Encouraging energy self-sufficiency was also one of the strategic priorities for 2009-2010 approved by Planning and Environment Committee (PEC) on March 10, 2009 (ACS2009-ICS-DCM-0001). However, it is also important to ensure that the approvals process recognizes and mitigates potential environmental and community impacts associated with renewable energy projects.

RURAL IMPLICATIONS

Many of the larger renewable energy projects are likely to occur in the rural area. Concerns have been expressed over potential health impact of wind turbines. This issue has been discussed at ARAC and Council. It will be important to continue to follow development of the Renewable Energy Approvals process to ensure that municipalities have a role to play in individual renewable energy projects and that there is an opportunity to discuss and address community impacts in the rural area.

CONSULTATION

The City has not completed public consultation on the proposed regulation but the Province has solicited public comments through the Environmental Registry Posting and held a public information session in Ottawa on June 15, 2009 shortly after the proposed regulation was released. Most of the discussion at this session revolved around the issue of wind turbines and health impacts as has been discussed at ARAC and addressed in the Council motion referred to previously.

LEGAL/RISK MANAGEMENT IMPLICATIONS

There are no legal/risk management impediments to implementing the recommendation in this report.

FINANCIAL IMPLICATIONS

There are no direct financial implications associated with this report.

SUPPORTING DOCUMENTATION

Document 1 Staff Comments submitted to Environmental Registry

DISPOSITION

Environmental Sustainability staff will convey the Council action to the Ministry of Environment as a follow-up to the staff comments on the Environmental Registry Posting.

STAFF COMMENTS SUBMITTED

TO ENVIRONMENTAL REGISTRY DOCUMENT 1

Delivered by fax (July 23) and mail

23 July 2009

Marcia Wallace

Manager

Ministry of Environment

Environmental Programs Division

Program Planning and Implementation Branch

55 St.Clair Avenue West]

Floor 7

Toronto, ON M4V 2Y7

Dear Ms. Wallace:

Re: EBR posting 01-6516 - Green Energy Act regulations

The Proposed Content for the Renewable Energy Approval Regulation under the Environmental Protection Act has now been reviewed by City of Ottawa staff and we submit the following comments. It should be noted that timing of the posting did not allow for a formal report to, and resolution from, City Council and this will be done and the results conveyed by early September. In some cases, Council has considered specific components through other motions and discussion and where there has been some Council action already, these have been identified in the comments:

Comments

• The list provided of matters to be included in municipal consultation include many of the standard site plan type of concerns. However, proponents should also consult with municipalities to ensure they have the information required to meet standards and guidelines included elsewhere in the proposed regulation including the natural heritage system, cultural and archeologically resources, and approved development areas and designations. Proponents should also consult with municipalities to ascertain surrounding development proposals and zoning to ensure that approved and planned development will not impact on the function and capability of a planned system (e.g. rooftop solar installation)

In addition, it is suggested that some types of smaller wind power projects (>3kW but with a sound rating of <102dBA), and roof or wall mounted solar would not require consultation with the municipality. However, there may be municipal concerns or information that is relevant to these types of projects (e.g. heritage designations, adjacent development approvals) so municipal consultation should still be required in these circumstances.

The mechanisms, roles and responsibilities for enforcing site plan type provisions and approval conditions related to Provincial renewable energy permits is also unclear.

• With respect to setbacks for Wind turbine projects, Ottawa City Council passed the following motion on July 8, 2009:

That Council direct the Ottawa Public Health Department to request a comprehensive review of the available peer-reviewed medical literature regarding wind turbine related health issues, in particular from Northern European countries, coordinated by the Province of Ontario and that the Medical Officer of Health report back to Agriculture and Rural Affairs Committee within 6 months.

This work should inform the setback standards provided in the proposed regulation.

• Noise setbacks are related to receptors such as existing dwellings while other setbacks are associated with property lines. However, the regulations should ensure that any renewable energy installation does not hinder future development in approved, but currently vacant development areas. Approved village boundaries with development designations and vacant rural residential lots are two examples of situations where any setback standards should account for property or designation area boundaries, not simply existing built receptors.

• The regulations are silent on any measures to account for, or protect, prime agricultural lands. The existing Provincial Policy Statement, while indicating that renewable energy systems are to be permitted in prime agricultural areas, state that they should be designed and constructed to minimize impacts on agricultural operations. This has been lost in the proposed regulation. For example, City Council recently adopted proposed Official Plan policies which stated that:

“where the proposed facility would result in a significant reduction in useable land within the Agricultural Resource designation, that alternative locations of lower agricultural capability that provide comparable requirements for the renewable energy installation, such as proximity to a transmission connection point, feasible landscape conditions, and minimal community and environmental impact, have been considered. The proponent must also indicate how the design and construction of the facility will mitigate any potential impacts on remaining or adjacent agricultural operations, and include a plan to rehabilitate the site to agricultural use upon conclusion of the use of the facility for power generation.”

Given that the Green Energy act will supercede the above policy, the Renewable Energy Approval Process should include some similar provisions that ensure that efforts are made to minimize the potential impact on productive farmland. It is our understanding that protection of some types of agricultural land may be a part of the procurement process under the FIT program.

· It is noted that ground mounted solar energy projects of 10 kW or less will not be subject to a Renewable Energy Approval. Similarly, micro wind-turbines of 3 kW or less are exempt. Given that there are still some standards needed, such as property setbacks, for these types of facilities, it is assumed that there will be a subsequent regulation released which addresses these types of facilities. There has been a prior consultation on smaller projects but it was limited to wall and roof-mounted solar and geothermal projects. Given that zoning bylaws will no longer apply, what mechanism is proposed to address any appropriate setbacks and property location for these types of installations?

• As presently written, the regulations would not require any assessment of noise impacts from projects on natural heritage features, provided that they maintain setbacks of at least 120 m. Although this is probably reasonable for non-wind generation facilities, it may not capture potential impacts from wind turbine projects.

Part III of the regulation proposes that information on bird and bat habitat and site sensitivity must be collected for land-based wind turbine projects, “as part of the Environmental Impact Assessment on natural heritage (see Part III, section 5).” However, according to Part III, no Environmental Impact Assessment is actually required for the project if the project maintains at least 120 m setbacks from natural heritage features. So, in fact, this section doesn’t appear to provide any additional requirement above that in Part III, section 5. This section could be fixed by deleting the clause, “as part of the Environmental Impact Assessment on natural heritage.”

· Staff note the provisions related to Non-Farm Thermal Treatment of Mixed biomass and have no concerns with the actual provisions suggested. However, it is not clear in the use of the term “mixed-use biomass” whether this applies to use of solid non-hazardous waste or municipal garbage (as being pursued by, for example, the Plasco Energy group). This requires clarification.

Thank you for the opportunity to comment and if you have any questions, please feel free to contact me at 613-580-2424, ext. 21447

David Miller
A/ Program Manager, Environmental Sustainability
Community Sustainability Dept.
City of Ottawa

cc:	Michael Murr, A/Director, Community Sustainability Dept. Derrick Moodie, Manager, Development Approvals