Review of the Class Environmental Assessment for Waterpower Projects Ontario Waterpower Association

Transcription

1 Ministry of the Environment Review of the Class Environmental Assessment for Waterpower Projects Ontario Waterpower Association Review prepared pursuant to subsection 7(1) of the Environmental Assessment Act, R.S.O Province of Ontario by the Ministry of the Environment, Environmental Assessment and Approvals Branch

2 Public Record Locations NEED MORE INFORMATION? You can view the public record for this Class Environmental Assessment during normal business hours at the following ministry office: Environmental Assessment and Approvals Branch 2 St. Clair Avenue West, Floor 12A Toronto ON M4V 1L5 Please call or The Review and Notice of Completion are available at the following locations: Ministry of the Environment Central Region 5775 Yonge Street, 8 th Floor North York, ON M2M 4J Ministry of the Environment Southwestern Region 659 Exeter Road London, ON N6E 1L Ministry of the Environment West Central Region 12 th Fl., 119 King Street West Hamilton, ON L8N 3Z Ministry of the Environment Eastern Region 133 Dalton Avenue Kingston, ON K7L 4X Ministry of the Environment Northern Region 435 James Street South Thunder Bay, ON P7C 5G Additional copies of this Notice, the Review and the Class Environmental Assessment are also available for public review at the Ontario Waterpower Association Office, 380 Armour Road, Suite 210, Peterborough, ON K9H 7L / Electronic copies of the Class Environmental Assessment may also be downloaded from Ontario Waterpower Association s web site, This Review is subject to the provisions of Ontario Regulation 616/98 which sets out a deadline for the completion of this document. The deadline for the completion of the Review was April 18, This paragraph and the giving of the Notice of Completion are the notices required by subsection 7(3) of the Environmental Assessment Act. The Review documents the ministry s evaluation of the Class Environmental Assessment and takes the comments of the government agencies, the public and Aboriginal communities into consideration.

3 Table of Contents Executive Summary Environmental Assessment Process Terms of Reference Class Environmental Assessment Ministry Review The Proposed Class Environmental Assessment Description Evaluation of the Class Environmental Assessment The Class of Undertakings Reasons for Using a Class Environmental Assessment Similarities and Differences Among Undertakings Environmental Effects of Undertakings in the Class Mitigation of Adverse Environmental Effects Consultation Process During Project Planning Methods for Evaluating and Determining Final Designs Commitments Results of the Ministry Review Conformance with ToR and EAA Ministry Analysis Consultation During the Preparation of the Class EA Conclusion Consultation During the Formal Review of the Class EA Comments Received Conclusion Summary of the Ministry Review Summary of Proposed Conditions of Approval What Happens Now? Modifying or Amending the Class Environmental Assessment List of Tables Table 1 Table 2 List of Appendices Appendix A Appendix B Appendix C Public and Other Comment Summary Table Government Review Team Comment Summary Table Environmental Assessment Act Requirements Submissions Received During the First Inspection Period Supplemental Information

4 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Executive Summary WHO WHAT Ontario Waterpower Association (OWA) Ministry Review of an Environmental Assessment (EA) for the proposed Waterpower Class EA which will cover waterpower projects which are subject to the environmental screening requirements of Ontario Regulation 116/01 including: projects associated with existing waterpower infrastructure; new waterpower projects (under 200 megawatts) on managed river systems; and, new waterpower projects (under 200 megawatts) on unmanaged systems. WHEN Class EA Submitted: October 22, 2007 First Inspection Period: October 22 to December 14, 2007 Revised Class EA Submitted: March 28, 2008 Second Inspection Period: May 2 to June 6, 2008 WHERE WHY CONCLUSIONS The proposed Class EA will apply to waterpower projects across Ontario. To provide a single Class EA process whereby environmental impacts and benefits of waterpower projects are considered before irreversible decisions are made, providing direction: to ensure impacts and benefits of waterpower projects are considered in a consistent manner; to provide a framework to address and respond to input from the public, Aboriginal communities and government; and, to streamline the environmental approvals processes that are relevant to waterpower projects. Based on the ministry Review of the EA, the Ministry of the Environment has concluded that the Class EA has been carried out in accordance with Section 13(1) of the Environmental Assessment Act. Further discussion and conditions of approval are proposed to ensure that final government agency concerns and requests for clarification are incorporated into the Class EA. May

5 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review 1.0 Environmental Assessment Process Environmental Assessment (EA) is a proponent-driven planning process designed to incorporate the consideration of the environment into decision-making by assessing the effects of an undertaking on the environment. In Ontario, the Environmental Assessment Act (EAA) sets out the requirements for the preparation and review of an EA. For those proponents and undertakings subject the EAA, approval under the EAA is required before the undertaking can proceed. A Class EA submitted for approval under the EAA differs from a project-specific EA. The Class EA is unique because it receives approval for a planning process for an entire class of projects. This allows each project in the class to be carried out in accordance with the requirements and planning process set out in the Class EA. Once the Class EA is approved, the proponent does not need to apply for approval under the EAA for each individual project provided they follow the procedures in the Class EA. EA Process ToR Approval Class EA Preparation Class EA Submission First Inspection Period Ministry Review Second Inspection Period Minister s Decision Cabinet Approval When following an approved Class EA, proponents of individual projects within the class of undertakings address a wide range of potential effects on the natural, social, cultural and economic environments to ensure the protection, conservation and wise management of the environment. A Class EA provides the framework for a proponent to determine, on the basis of the environmental effects, if an undertaking should proceed, and if so, how environmental effects can be managed. Class EAs identify specific categories and sub-categories of undertakings to which the Class EA would apply, and provides a planning process for evaluating the environmental effects of each individual undertaking. The Class EA may require proponents to consider actions to prevent, change, mitigate or remedy potential environmental effects. When preparing a Class EA, the proponent must consult with interested stakeholders including government agencies, public, non-governmental organisations as well as Aboriginal communities and organisations. Once the Class EA is approved, the proponent is required to monitor implementation and effectiveness of the Class EA to demonstrate compliance with standards, regulations and the EAA approval. May

6 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review 1.1 Terms of Reference Preparing a Class EA is a two-step application to the Minister of the Environment. The first step requires the proponent to prepare and submit a Terms of Reference (ToR) to the Ministry of the Environment (MOE) for review and approval. The ToR is the work plan or framework for how the Class EA will be prepared. On November 4, 2005 the Minister approved the Ontario Waterpower Association Class Environmental Assessment for Waterpower Projects ToR. The ToR set out how the OWA would carry out the process of developing the Class EA and how they would consult with the public. The ToR also establishes the scope and purpose for the Class EA and outlines the content of the Class EA using the requirements of the EAA and MOE standards for all Class EAs as the basis. 1.2 Class Environmental Assessment Once the ToR is approved by the Minister, the proponent can proceed to the second step of the EA process and prepare the Class EA. The Class EA must be prepared in accordance with the approved ToR and the requirements of the EAA. Once the proponent has prepared the Class EA, including consultation, the Class EA is submitted to the MOE for review and approval. On October 22, 2007 the OWA submitted the Class EA to the MOE for approval. The Class EA was made available for public inspection and comment for a seven-week period which ended on December 14, During this inspection period various comments were submitted, predominantly by government agencies. The comments were mainly suggestions for improvement in the following areas: clarifications and typographical errors; improvements to the flow of the planning process; and coordination and increased direction with respect to the relationship of the Class EA to other legislative approvals processes and the mandate of other agencies. Additional time was then provided in order to allow the OWA to hold discussions and respond to these comments by revising the proposed Class EA. The OWA provided MOE with a revised Class EA on March 28, Ministry Review The EAA requires the MOE to prepare a review of the Class EA, known simply as the ministry Review. The Review is the MOE s evaluation of the Class EA. The purpose of the Review is to determine if the Class EA has been prepared in accordance with the approved ToR and therefore meets the requirements of the EAA. The proposed Class EA submitted on October 22, 2007 was circulated for review to a Government Review Team (GRT). The GRT includes federal and provincial agencies. MOE staff, with input from the GRT, evaluate the technical merits of the proposed May

7 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Class EA, including the range of issues that may arise when implementing projects using the Class EA, as well as the methods the proponent proposes to use in order to address these issues. In addition, the Review must determine how well the proponent has consulted with others and ensure that the proponent has provided clear and complete documentation of such consultations. For the proposed Class EA, the public, as well as Aboriginal communities and organisations were also notified of the opportunity to review the Class EA and submit their comments to the MOE. The Review may also indicate what, if any, issues are outstanding and may propose conditions or other mechanisms to address the issues. Following completion of the Review, the MOE provides for a second inspection period, which provides another opportunity for interested parties to see how their comments and concerns with the proposed Class EA were addressed. During the second inspection period, anyone can submit comments about the Class EA and the Review. In addition, anyone can request that the Minister refer the Class EA, or any particular matter relating to the Class EA, to the Environmental Review Tribunal for a hearing if they believe that there are significant outstanding environmental effects that the EA has not addressed. Requests for a hearing can only be made during this second inspection period. The Minister will consider all requests and determine if a hearing is necessary. The Minister considers the conclusion of the Review when making a decision; the Review itself is not the Class EA decision-making mechanism. The Minister s decision will be made following the end of the five-week inspection period. The Minister s decision is subject to the approval of the Lieutenant Governor in Council. May

8 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review The Proposed Class Environmental Assessment 1.4 Description The OWA is an organization representing more than 95 percent of Ontario s waterpower generators and a number of associated firms. The OWA is seeking EAA approval for the class of undertakings which includes all waterpower projects planned in Ontario which are subject to the Environmental Screening Process requirements of the Electricity Projects Regulation, Ontario Regulation 116/01. The Class EA would apply to all proponents of waterpower projects which fall within the class regardless of affiliation with the OWA. Figure 1 provides the location of all waterpower projects currently operating in Ontario. The EAA applies predominantly to public sector proponents. However, in 2001 the MOE extended the EAA requirements to the private sector for electricity undertakings through Ontario Regulation 116/01. This regulation and the associated Guide to Environmental Assessment Requirements for Electricity Projects outline a proponentled process for determining and addressing the EAA requirements and the environmental implications of electricity projects including waterpower. The Guide is similar to a Class EA and provides a consistent process for all projects which fall within defined categories. With respect to waterpower projects, the Guide identifies how the EAA applies in the following manner: Exemption from the EAA for minor modifications to facilities that did not require EAA approval to construct and the total change since construction is less than 25 percent of the name-plate capacity; Environmental Screening Process for all new developments under 200 Megawatts (MW); Environmental Screening Process for any significant modifications (i.e. increase in name-plate capacity of 25 percent or more) of a facility if still under 200 MW after the modification; Environmental Screening Process for any minor modification of a facility with a capacity of 200 MW or more before the modification; Individual EA for new developments greater than 200 MW; Individual EA for any significant modification of existing facilities if over 200 MW after the modification; and, Individual EA for significant modification to facilities with a capacity of 200 MW or greater before the modification. The Electricity Projects Regulation anticipates the development of sector specific Class EAs to replace the generic Environmental Screening Process (section 8). This Class EA will apply to all waterpower projects for which the Environmental Screening Process requirements of the Guide would have applied. Should this Class EA be approved, proponents would be prohibited from using the Environmental Screening Process. The May

9 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review requirements for projects which are exempt or which require an individual EA will not change. These EAA requirements are complicated by the fact that Ontario Power Generation has its own Class EA for Modifications to Hydroelectric Projects, which is scheduled to expire on August 19, Ontario Power Generation will then join the rest of the waterpower industry in following the requirements of the proposed Class EA. 1.5 Evaluation of the Class Environmental Assessment The Class of Undertakings The class of undertakings proposed to be covered by the Class EA is defined in the ToR and includes the activities subject to the Environmental Screening Process requirements of the Guide related to the planning, designing, establishing, constructing, operating, changing, expanding and retiring of new and existing waterpower facilities. Projects which are specifically exempt under the Guide continue to be exempt, and those requiring an individual EA are not included in the class of undertakings to which the Class EA applies. More specifically, the Class EA provides for three categories of waterpower projects. These include: Projects associated with existing infrastructure. These are new waterpower projects, expansions, modifications or redevelopments and are proposed at, near or around existing facilities or water management infrastructure. New projects on managed river systems. These are new projects on waterways that are already subject to water level and/or flow regulation. New projects on unmanaged river systems. These are new projects on river systems which are not already subject to water level and flow regulation. Conclusion: The OWA has provided a clear description of the waterpower class of undertakings Reasons for Using a Class Environmental Assessment The Class EA outlines a number of reasons for the development of a Class EA for waterpower projects including the following as described in section 1.4 of the Class EA: The waterpower projects included in the Class EA are identical to those already included in the existing approved EA regulatory framework for electricity projects. This Class EA builds on that framework and deals specifically with waterpower. May

10 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Ontario Power Generation has successfully applied an approved Class EA for Modifications to Hydroelectric Facilities for more than 20 years. This Class EA specifically includes modification projects; The Class EA has, as a first level screen, sorted projects based on the overall environmental context in which they occur and the known range of waterpower potential in Ontario; The Class EA includes environmental evaluation and reporting processes for all projects subject to the class and builds on the provisions of the Electricity Projects Regulation and Environmental Screening Process in the Guide; and, The Class EA incorporates a best management approach in terms of public involvement, Aboriginal community engagement, and project design, allowing for flexibility in adapting to and adopting new and better information. The OWA notes that this Class EA is designed to ensure that proponents of waterpower projects consistently take into account the potential effects that their proposals will have on the environment. The process that is identified in the Class EA will allow proponents to identify potential environmental effects and public, agency and Aboriginal concerns, along with the preferred means of addressing them. Conclusion: The OWA has provided acceptable rationale for the development of the Class EA and the MOE is satisfied that it improves upon the Environmental Screening Process in a number of aspects including requiring the development of an Environmental Report for all projects, recommending early coordination with government agencies, and providing a best management approach for public and Aboriginal community involvement Similarities and Differences Among Undertakings The Class EA identifies that waterpower projects have been developed in Ontario for well over a century. During that time, the basis for the production of electrical energy from falling water has not changed. The similarities between projects are that they all involve the generation of electricity through either the use of the natural drop or head of the river and/or involve building a dam to raise the water level and provide the drop needed to create a driving force. Water at the higher level is then carried to a turbine which, when connected to a generator and set in motion, rotates to produce electricity. General similarities in environmental effects of the class of undertakings are discussed in the Class EA. The project types can also differ in two fundamental manners. The first is that projects covered by the Class EA can range from those which modify existing infrastructure to those which are new facilities where none existed before. The second is that projects may occur in different environmental settings, characterized by whether the river system is managed or unmanaged. Managed and unmanaged waterways are defined in the May

11 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Class EA based on whether other water management infrastructure (dams, diversions, weirs, etc.) and/or waterpower facilities exist and/or for which a human-made water management regime (i.e. levels and flows) has been established. Projects may differ based on site specific considerations, including but not limited to matters such as aquatic and riparian ecosystems, cultural heritage resources and community and public interest. Conclusion: The OWA has provided a sufficient description of the nature of similarities and differences to be expected in undertakings in the Class EA Environmental Effects of Undertakings in the Class The Class EA identifies that the environmental effects of undertakings in the class will vary from project to project based on the environmental context in which they occur. For example, effects could most commonly relate to fish and fish habitat, water level/flow management and aquatic ecology, interests of riparian owners, and interests of water users and water related natural resource uses. Based on these categories, the Class EA provides direction to proponents through the use of a potential effects evaluation matrix on how they can identify the site specific potential positive and negative effects of a project. Furthermore, the planning process in the Class EA requires that the proponent clearly describe the existing environment and evaluate the potential environmental effects of the undertaking. Conclusion: The Class EA provides a clear description of the expected range of environmental effects that may result from proceeding with undertakings in the class Mitigation of Adverse Environmental Effects As required by the EAA, the Class EA must include a description of measures that could be taken to mitigate against adverse effects that may result from proceeding with undertakings in the class. Generally speaking, these mitigation measures can seek to do a number of things including reducing the magnitude or duration of an impact and restoring the environment following construction to a pre-construction state. When reviewing the updated Class EA, and in particular section 4.3.2, the MOE found that it directed users to a range of mitigation related resource materials rather than directly outlining any types of measures that could be used. While the reference to these documents is valuable, to ensure the requirements of the EAA were met, the OWA was asked to include additional information on examples of types of mitigation measures that are available to proponents. Accordingly, prior to publication of this Review, the OWA updated the Class EA to further describe mitigation measures. The Class EA now includes a new Appendix which provides a suite of approaches to mitigate effects associated with waterpower May

12 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review projects. The OWA notes that these mitigation measures will continue to evolve over time, and has committed to providing users of the Class EA access to the best available information on mitigation measures. Conclusion: The Class EA identifies and recognizes the importance of mitigating negative environmental effects and provides examples of measures which could be used to mitigate against adverse effects from projects proceeding under the class Consultation Process During Project Planning A range of consultation activities are specified in the Class EA including mandatory requirements such as Notices of Commencement and Completion as well as optional activities such as project newsletters and websites. The Class EA provides a clear description of the processes which proponents may use to consult with the public, Aboriginal communities and agencies who may be affected by the undertaking. The process provided allows flexibility for proponents to increase the level of public consultation undertaken when and as necessary. Conclusion: The Class EA provides an appropriate framework for proponents to use to ensure that adequate consultation takes place with the public, Aboriginal communities and agencies Methods for Evaluating and Determining Final Designs When read in its entirety, the Class EA provides a clear planning process and framework for the identification and evaluation of the final design of proposed undertakings including progressive phases of environmental evaluation as follows: conceptualization, definition, assessment, documentation and implementation. In addition, the MOE is satisfied that an Environmental Report must be produced for each individual project that describes how changes to the original proposal, if any resulted from the environmental evaluation and/or consultation and engagement processes. Also required is a list of all planned avoidance, prevention, mitigation and impact management measures for the project. Conclusion: The Class EA provides a clear description of the process to be used to evaluate a proposed undertaking and determine final designs. The process includes measures to consult with the public, Aboriginal communities and government agencies, methods for evaluating effects and methods to avoid, prevent and mitigate against these effects as well as requirements for documentation of the final results and design of the project. May

13 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Commitments As part of the Class EA, the OWA has made a number of commitments including those discussed below: The OWA has committed to continually updating the resource materials provided in Appendix B of the Class EA, providing up-to-date reference materials related to cultural heritage, federal-provincial coordination, mitigation measures and other matters. The OWA has committed to seek appropriate amendments to the Class EA should the Electricity Projects Regulation be amended to ensure future consistency. The OWA has committed to working with the Ministry of Culture to develop guidelines which would accompany the Class EA and provide direction to proponents on assessing and considering impacts to archaeological and cultural heritage features. May

14 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Figure 1: Waterpower facilities in Ontario. This figure identifies the locations of waterpower facilities across the province, noting that the majority of the facilities are found in the southern half of Ontario. May

15 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review 3.0 Results of the Ministry Review The Review provides the analysis of the Class EA. The Review is not intended to summarize the Class EA, nor present the information found in the Class EA. For information on the planning process proposed by the OWA, refer to the proposed Class EA. The Class EA and supporting documentation outlines how proponents of individual projects subject to the class may proceed through the planning process to address the requirements of the EAA. As noted earlier, the Review does not make a decision about the proposed Class EA. That is the decision of the Minister. Any conditions of EAA approval referred to in this document are only suggested to be imposed as a means of addressing outstanding issues in the event that the Minister decides to approve the Class EA. 3.1 Conformance with ToR and EAA Ministry Analysis The purpose of the ministry Review is to determine whether: The Class EA has met the requirements of the ToR and the EAA. There are any outstanding issues with the Class EA. The Class EA will provide for a clear and transparent planning process. MOE coordinated an analysis of the Class EA with the GRT that, in part, looked at whether the requirements of the ToR and EAA have been met. In addition to the basic required contents of all Class EAs, the ToR identified the Class EA would address additional matters including identification of opportunities to improve the coordination of EA-related project approval requirements and eliminate duplication of effort, build on and improve upon the standards in the Guide, and recognize the distinct interests and potential involvement of Aboriginal communities in waterpower projects. The MOE concludes that the Class EA followed the framework set out in the ToR, addressed the commitments made in the ToR and demonstrated how the required components of the EAA have been met. Appendix A summarizes the MOE's analysis and identifies how the Class EA meets the requirements of the EAA and the ToR. Must Haves in the Class EA: The Class EA must be prepared in accordance with the approved ToR. The Class EA must include all the basic EAA information requirements. The Class EA must demonstrate all the additional commitments in the ToR were met, including the consultation process. May

16 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Consultation During the Preparation of the Class EA One of the key requirements of the EAA is consultation completed during the preparation of the Class EA. This consultation is the responsibility of the proponent and must be carried out prior to the submission of the Class EA and in accordance with the consultation plan outlined in the ToR. This plan included the development of comprehensive internal and external stakeholder lists, each of which were provided information at key stages during the preparation of the Class EA and direct consultation with GRT members. Included with the submission of the Class EA was a Consultation Record, documenting the consultation undertaken by the OWA with the public, GRT and Aboriginal communities and organizations. The the level and type of consultation that occurred during the preparation of this Class EA and the OWA was responsive to addressing concerns and incorporated many suggestions for improvement. Section 13.1 of the EAA states: When preparing proposed terms of reference and a proposed class environmental assessment, the applicant shall consult with such persons as may be interested. The Class EA must also include a process to be used by the proponents to consult with the public and persons who may be affected by the undertaking. As outlined in section 2.2.5, the the approach proposed as described in the Class EA itself. Government Review Team The GRT consisted of representatives from provincial ministries including but not limited to Ministry of Natural Resources (MNR), Ministry of Culture (MCL), and federal departments including Fisheries and Oceans Canada, Environment Canada and the Canadian Environmental Assessment Agency. The GRT was provided the opportunity to comment on the ToR, a discussion paper, as well as the draft and final Class EA. An interactive web-cast was held for all GRT members and the OWA convened numerous individual discussions with agencies to discuss specific issues. Public Consultation The OWA completed a consultation program to ensure that interested persons, groups, organizations, agencies, and any other party that may have an interest in the Class EA had the opportunity to comment and provide input into throughout its development. Throughout the preparation of the ToR and the Class EA, the OWA sought to ensure that those with an interest in waterpower were provided the opportunity to participate. In that regard, the OWA differentiated audiences based on their expected interests to ensure broad notification of those with potential interests and focussed engagement with those who wished to participate more actively. A wide variety of consultation May

17 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review techniques were utilized including individual meetings, news releases, web-casts, public information sessions, newspaper notifications and through the OWA web site. Public The OWA attempted to seek broader public input during the preparation of the Class EA. The following efforts were employed in this regard: Open houses were held during the development of the Class EA at four locations across the Province. Advertisements of the Open Houses were published in the local newspapers in advance. News release announcing commencement of the comment period for the draft Class EA was provided to all OWA members, government contacts, print and radio media and other organizations. The OWA maintained a web site containing information related to the development of the Class EA including public notices, news releases, documents including draft and final versions of the ToR and the Class EA, and associated supporting material. Waterpower Industry Through the OWA, the waterpower industry was consulted with at many points including direct mailings and through notification and information sessions at OWA Annual General Meetings. OWA members were provided a draft of the Class EA for review, were presented the opportunity to discuss the draft through a web-cast, and were notified of all Public Information Sessions and dates. They were invited to attend afternoon sessions of the Public Information Sessions, and were provided news releases on the Class EA and contacted with a special edition of the OWA quarterly newspaper. The OWA also sought input from a range of broad interests including organizations with mandates related to governance, water resource management and use, waterpower and electricity and the environment such as Hydro One Networks, Ontario Power Generation and the Association of Power Producers of Ontario. All organizations were provided notice of the Public Information Sessions, and the opportunity to review the draft and final Class EA. Aboriginal Community Consultation In addition to consultation with the broader public, Aboriginal communities were consulted in recognition of the unique interests of Aboriginal people in waterpower projects. Given the application of the Class EA to waterpower projects across the province, the OWA sought input from Aboriginal organizations, Tribal Aboriginal rights stem from practices, customs or traditions which are integral to the distinctive culture of the Aboriginal community claiming the right. Treaty rights stem from the signing of treaties by Aboriginal peoples with the Crown. Aboriginal rights and treaty rights are protected by section 35 of the Constitution Act, May

18 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Councils and approximately 40 individual Aboriginal communities (who are included on the OWA s general distribution list for waterpower related initiatives). The OWA employed the following efforts to solicit advice and input: Direct notification of approval of the ToR; Direct notice to key contacts, Chiefs of Ontario and Political Territorial Organizations providing advance notice of the intent to seek input on the draft Class EA; Direct mailing to the Chiefs of Ontario, Political Territorial Organizations and all Tribal Councils advising of the intent to provide Aboriginal organizations with an early opportunity to provide input and advice; A web-teleconference for the above Aboriginal organizations; and, The provision of all communication materials (e.g. news releases, newsletters) directly to the above Aboriginal organizations. The OWA also contacted the Ministry of Aboriginal Affairs and Indian and Northern Affairs Canada Conclusion Overall, the Class EA has satisfied the requirements of the ToR and is consistent with other MOE expectations for Class EA documents including the draft Code of Practice: Preparing, Reviewing and Using Class Environmental Assessments in Ontario. The Record of Consultation submitted in support of the Class EA documents the consultation methods utilized by the OWA to engage the GRT, the general public, interested stakeholders and Aboriginal communities during the development of the Class EA, setting out the issues and concerns raised and how they were addressed. The MOE is satisfied that the OWA provided sufficient opportunities for participation and input during the preparation of the Class EA. 3.2 Consultation During the Formal Review of the Class EA Comments Received Following notification by the OWA that it had submitted the proposed Class EA to the MOE for review, comments were received from the waterpower industry and the Ontario Federation of Anglers and Hunters. The OWA s responses and the MOE s evaluation can be found in Table 1. The MOE is satisfied that the OWA has adequately addressed all comments through revisions to the Class EA and responses. No other opposition or concerns have been raised by the public. May

19 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Members of the waterpower industry also submitted comments expressing support for the Class EA. Comments submitted by members of the industry and the OWAs responses are found in Table 1. The MOE also sought input from Ontario s Aboriginal communities, the Chiefs of Ontario, and sent notices to 134 First Nations providing a brief description of the Class EA and how they could get involved; however, no comments were received. To date, there has been no opposition or concerns raised by any Aboriginal communities. Further notices and requests for input will be provided about the opportunity to participate in the second inspection period. The Class EA was circulated by MOE directly to the GRT during the formal review period. Most government agencies contacted provided general comments about the overall Class EA, while the MNR, MCL and MOE provided detailed recommendations and requested specific modifications to the Class EA. The formal government agency submissions are provided in Appendix B. The MOE asked the OWA to respond to each of the points made in the formal comments. A summary of the GRT s comments, the OWA s responses, and the MOE s evaluation is provided in Table 2. In addition, the consultation record for this Class EA, which is available in the MOE public record file and through the OWA, includes full documentation about these post-submission consultations. In general, the MOE, in consultation with the GRT was satisfied with the evaluation process and public and agency consultation format proposed in the Class EA. Many of the comments provided by the GRT were minor and editorial in nature. For example, there were several requests to change and clarify terminology and update references. However, as noted above, several reviewers requested more substantive changes to the Class EA including suggestions to include additional direction with respect to cultural heritage resources; to require that the MNR s Class EA for Provincial Parks and Conservation Reserves apply instead of this Class EA for waterpower projects in provincial parks; process related changes; and modifications to wording to ensure consistency with the Electricity Projects Regulation. Following the first inspection period and prior to completion of the Review, the OWA agreed to work directly with MOE, MCL and MNR in an effort to resolve these concerns. This is discussed more fully in section Meetings and discussions occurred in January and February Thereafter, the OWA provided additional information and submitted an updated and revised Class EA on March 28, 2008 reflecting how the comments raised were addressed. May

20 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Key Issues Cultural Heritage Considerations The MCL provided detailed comments on a number of issues, given the potential for impacts to heritage matters from projects proceeding within the class of undertakings. In general, as waterpower projects are located on watercourses, there is a potential for heritage impacts from any waterpower project. MCL s comments and concerns focussed in particular on the direction provided to proponents using the Class EA about how to identify and assess potential heritage significance. MCL s position is that the Class EA should provide more detailed advice and guidance where there are potential impacts to archaeology and cultural heritage. This is due to the fact that there are limited legislative tools in Ontario to ensure the protection of cultural heritage resources. There are a number of sections of the Class EA which provide general reference to the importance of these issues but the direction provided is not sufficient to satisfy MCL s concerns. In this respect, it is noted that MNR s Class EA for Provincial Parks and Conservation Reserves includes an accompanying Cultural Heritage Technical Guideline developed by MNR and MCL providing direction on how to identify and assess cultural heritage resources and develop mitigation measures. This document was prepared as a result of a condition of approval for MNR s Class EA. Such a document has not yet been prepared to support the Waterpower Class EA. The OWA, MOE and MCL met and discussed these matters more fully and it was the OWA s position that the Class EA provides the appropriate direction to proponents to the resources needed to assess cultural heritage impacts, and that including detailed or prescriptive requirements and methodologies in the Class EA itself was not appropriate. Based on this, the OWA undertook revisions to the Class EA to provide some further direction and clarification. On April 14, 2008, the MCL provided MOE with a written response to the OWA s updated Class EA. This was done by MCL in an effort to keep working towards a resolution of MCL s request for revisions to the Class EA. These comments, which include detailed rationale to support their recommendations, are in Appendix C. The MOE has recommended that further discussions proceed in parallel with the public review period so that a mutually-acceptable solution can be reached on matters such as the extent to which the Class EA includes specific cultural heritage direction and how the OWA and MCL should work together to develop guidance documentation on cultural heritage matters. The MOE will be participating in these discussions to determine whether conditions of approval are warranted to set out further direction in the Class EA, or if there are alternatives outside of the Class EA process to satisfy MCL that the planning process will adequately protect cultural heritage resources. For example, it is possible that the OWA and MCL will pursue a memorandum of understanding to set out a framework for development of a separate guidance document that will accompany, but not be directly part of the Class EA. May

21 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Applicability of the Waterpower Class EA in Provincial Parks and Conservation Reserves MNR provided detailed comments on the Class EA due to the relationship between their mandate and waterpower projects. The MNR is responsible for the issuance of permits and approvals without which a waterpower project could not proceed. The majority of MNR s concerns have been successfully resolved through discussions as outlined in Table 2. However, there are a few items which MNR is expected to have additional comment on, and MNR will also be given a final opportunity to respond to the OWA s responses and revisions to the Class EA. One item to note relates to waterpower development in provincial parks or conservation reserves. Waterpower project development in provincial parks and conservation reserves can only occur under the four exceptions stated in the Provincial Parks and Conservation Reserves Act (i.e. for park or conservation reserve purposes; for use within communities that are not connected to the IESO-controlled grid; to operate, maintain, improve, rebuild or alter an existing facility; or where a commitment was made to construct a facility on land that has subsequently been regulated as either a provincial park or conservation reserve and subject to approval of the Minister of Natural Resources). MNR is agreeable to using the Class EA provided that the following changes are made: The Provincial Parks and Conservation Reserves Act needs to be referenced consistently throughout the document so that the planning and management principles from the Act are considered for every waterpower project proposed and undertaken in a protected area. The Class EA for Provincial Parks and Conservation Reserves is properly referenced within appropriate sections of the document, when considering the development of waterpower projects within protected areas. Sections of the Class EA which refer only to the Class EA for Resource Stewardship and Facility Development will be updated. MOE will work with MNR and the OWA to develop a condition of approval to reflect the above recommendations. Consistency with the Guide and Coordination with Other Legislative Requirements Concerns were expressed by several agencies with respect to consistency of the Class EA with the Guide. For example, the MNR and MOE identified that the Guide uses the term net effects to define the negative environmental effects that remain after mitigation, while the Class EA used the term residual effects. Accordingly, the Class EA was revised to use the term net effects. The majority of the matters related to consistency have been addressed by the OWA. May

22 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review Other concerns raised relate to direction provided in the Class EA with respect to coordination of waterpower projects and transmission facilities as discussed in sections 3.1.1, 3.3 and of the Class EA. The MOE is interested in ensuring that proponents of waterpower projects and associated transmission facilities clearly understand their EAA obligations and requirements, and that the text in the Class EA is consistent with the Electricity Projects Regulation. Comments in this regard were submitted to the OWA by the MOE during the review period. One matter which will require continued discussions between the MOE and the OWA relates to transmission associated with generation, that is where a transmission line transmits electricity at the facility or from the facility to the Independent Electricity System Operator-controlled grid. Currently, the Class EA identifies that where transmission is associated with a waterpower project, the transmission component is to be evaluated using the Class EA process. The MOE supports this in principle and prefers that projects be evaluated as a whole, using one process. However, the Electricity Projects Regulation currently requires that transmission associated with generation be assessed through the Environmental Screening Process. At the time the Electricity Projects Regulation was developed, there were no other Class EAs in place which were applicable to transmission associated with generation as the minor transmission facilities Class EA did not contemplate assessment of associated generation projects. Accordingly, the MOE has a number of options available to address this situation. These include: amending the Electricity Projects Regulation to address this conflict; a condition of approval which will revise all references in the Class EA which allow proponents of generation facilities with transmission components being able to use the Class EA for the transmission component; and at such a time as the Electricity Projects Regulation is amended, the OWA would then be able to amend the Class EA to reflect the changes. Requirements of the Planning Process Concerns were expressed by several members of the GRT with respect to the planning processes proposed in the Class EA. In consultation with the MOE, MCL and MNR, the OWA has made significant progress and has updated the Class EA to reflect comments received and as a result, the Class EA now provides a clearer and more focussed planning process. The following highlights two of the significant process related concerns raised and how they have been addressed. The Class EA includes a Potential Effects Identification Matrix as part of the planning process. The matrix is intended to provide guidance to proponents in assessing the relevance of potential impacts and benefits under individual criteria and for the project as a whole. Concerns were raised regarding how the matrix was to be used, criteria May

23 Ontario Waterpower Association Waterpower Class Environmental Assessment Environmental Assessment Review within the matrix itself, and most significantly, suggesting that the matrix be used to determine the level of analysis for the proposed undertaking. The MCL expressed concern that the matrix would lead to an inappropriate assessment of potential effects on cultural heritage resources given the structure of the matrix. In response, the OWA included additional wording in the Class EA to note that, where projects are in areas of archaeological potential or may affect a known or suspected cultural resource, further studies by qualified heritage consultants are warranted. Additional comments and recommendations submitted by MCL with respect to this matter are included in Appendix C. The MNR as well as the MOE Northern Region office expressed concern with how projects are categorized in the Class EA. As currently proposed by the OWA, the Class EA provides predetermined categories for projects based on their environmental context and provides a consistent approach to evaluation, impact management and documentation regardless of project-specific circumstances. The only variables relate to the minimum consultation/notification requirements within each category. The MNR and MOE suggested that the Class EA avoid predetermining the categorization and assign an appropriate category for a project following a cursory review of the potential environmental effects and the degree of expected public and/or Aboriginal interests. In this situation, an evaluation tool such as the matrix would be used to scope the project and determine if a more or less detailed assessment could be undertaken. The OWA s response to MOE and MNR s suggestion was that the approach utilized in the Class EA requires an Environmental Report to be prepared for all projects regardless of category and provides proponents with flexibility to respond to the circumstances at hand through additional analysis or consultation where warranted. Additional clarification and modifications to the matrix and its use have been provided in the updated Class EA, and the MNR and MOE have agreed that the OWA s approach is acceptable given the flexibility and clarification provided by the Class EA to appropriately manage project complexities and significant public, agency and Aboriginal community interest Conclusion The MOE is satisfied that the OWA has responded to all public and non-governmental agency comments by describing how the Class EA has the scope and flexibility to address the range of issues which may be associated with the class of undertakings. With respect to comments submitted by the GRT, the OWA has substantially addressed the concerns raised through its responses and revisions to the Class EA. Further discussions with the MNR, MCL and MOE are required to sort out the issues discussed above and other minor items as identified in Table 2. May