Early Access to Land for Environmental Studies on Transmission Projects

ERO number
019-1371
Notice type
Policy
Act
Ontario Energy Board Act, 1998
Posted by
Ministry of Energy, Northern Development and Mines
Transferred to
Ministry of Energy
Notice stage
Decision
Decision posted
Comment period
March 2, 2020 - April 30, 2020 (59 days) Closed
Last updated

This consultation was open from:
March 2, 2020
to April 30, 2020

Decision summary

The government has made changes to the Ontario Energy Board Act, 1998 to give the Ontario Energy Board the authority to grant, under specific circumstances, earlier access to land to electricity transmission project proponents for the purpose of conducting preliminary environmental studies prior to applying for Leave to Construct.

Decision details

Following consideration of comments received in response to this proposal, the government has passed changes to the existing access to land provision in the Ontario Energy Board Act (OEBA) as part of Bill 229, the Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020. The changes to the OEBA do the following:

  • Allow a proponent to apply to the Ontario Energy Board (OEB) for access to land once the proponent has an approved Terms of Reference for an Individual Environment Assessment or once the proponent has issued an initial notification in accordance with the “Class Environmental Assessment for Minor Transmission Facilities”
  • Clarify that proponents may seek the access to land to gather field data and conduct tests to facilitate the preparation of an environmental assessment and to determine the land required for the project.
  • \Asks the OEB to consider, in its review of an application, whether the proponent has made reasonable efforts to obtain consent from the landowner and whether the access to land is needed for the project. 

Comments received

Through the registry

2

By email

2

By mail

0
View comments submitted through the registry

Effects of consultation

ENDM received 4 comments and undertook additional discussions with interested stakeholders. The feedback we received has been incorporated in the following ways:

Allowing transmission proponents to apply for access to land earlier in the project development process so the proponent can conduct environmental studies before applying for Leave to Construct

Transmitters and a conservation authority were generally supportive of the earlier access to land to support a more robust Environmental Assessment and better-informed identification of a preferred route. 

The amendments allow a proponent to apply to the OEB for access to land once it has an approved Terms of Reference for an individual environmental assessment or has issued an initial notification that it has commenced a Class Environmental Assessment for Minor Transmission Facilities. 

Clarifying the purposes for which proponents can seek access and undertake activities on the land

Transmitters identified that they require access to land for both environmental studies and to undertake studies that support engineering work to identify a preferred route. Other stakeholders commented that activities should include both surface and sub-surface studies (for example hydrogeological and geotechnical studies) and that the length of access should be multi-year or seasonal.

The amendments clarify that proponents may seek access to gather field data and conduct tests to facilitate the preparation of an environmental assessment or any other permit or approval required for the proposed work and/or to determine the land required for the proposed work.

In reviewing an application, the OEB will consider whether the activities proposed by the proponent adhere to these purposes. The OEB may also consider whether the anticipated impacts of a particular activity and/or to a particular landowner or land use are reasonable in achieving these purposes. Any damages that result from the access may be compensated, as described further below.

Addressing landowner concerns

A number of stakeholders, including the conservation authority, expressed concern that the provision will allow OEB to grant access to public lands they administer, creating potential duplication and confusion with their existing approvals processes.

Agriculture stakeholders emphasized the importance of proponents adhering to health and safety and biosecurity requirements when accessing agricultural lands, as applicable to the nature of the agricultural operation.

Permitting and access schemes are designed to meet the particular needs of that landholder or administrator.  ENDM recognises that these issues are best addressed directly with the landholder/administrator and that this would also minimize the burden on the OEB proceeding.

The amendments address these comments in several ways. First, access can only be provided as a result of an application to the OEB. Formal Board oversight through an application and hearing provides an avenue for the OEB to consider whether the proponent’s proposed access is appropriate.

Landowners are given notice of any OEB hearing implicating their lands and can participate in the proceeding. 

The amendments ask to OEB to consider whether the proponent has taken reasonable steps to obtain access to lands from the landowner prior to applying for a decision.  This consideration is expected to prioritize direct agreements with landowners that are expected to account for landowners’ access requirements. This also prioritizes any existing approval or permitting processes undertaken by other bodies, such a provincial ministry, municipality or conservation authority, in respect of access to public lands.

If the OEB decides to grant access, the decision may also set conditions to be met by the transmitter. While these would be at the discretion of the OEB, they could include requirements related to providing notice of access and appropriate measures to mitigate the impact of access.

Damages

Agriculture stakeholders also commented that recourse should be available to landowners if day-to-day farming activities are disrupted.

Any damages resulting from access from entry onto land are required to be compensated by the transmitter. If damages arise and an agreement on the amount of compensation cannot be reached, this can be determined under processes set out in the Expropriations Act.

Balancing competing stakeholder interests on applications for early access to land.

ENDM heard from multiple stakeholders that access to land should be limited to a single transmitter with the exclusive right to develop a project.  There was concern that in the event that more than one proponent sought to build a facility, there could be requests for access from more than one entity to the same land. Concerns were raised that this could cause more significant impacts in a defined geographic area, as well as conflict with other users of public land.

As part of its consideration of whether entry on land is needed the OEB can consider whether the proponent is the most appropriate person to enter the land to conduct preliminary studies.

Supporting materials

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Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Energy Networks and Indigenous Policy Branch
Address

77 Grenville St., 6th Floor
Toronto, ON
M7A 2C1
Canada

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Original proposal

ERO number
019-1371
Notice type
Policy
Act
Ontario Energy Board Act, 1998
Posted by
Ministry of Energy, Northern Development and Mines
Proposal posted

Comment period

March 2, 2020 - April 30, 2020 (59 days)

Proposal details

As the regulator for electricity in Ontario, the Ontario Energy Board (OEB) evaluates applications from electricity transmission project proponents. This is in order to determine whether a proposed project is in the public interest. If so, the Board issues a Leave to Construct approval to the proponent.

Before applying for Leave to Construct, proponents of electricity transmission projects must complete project development and Environmental Assessment (EA) work in order to identify a preferred project route. The completion of environmental and other studies (for example, archaeological or wildlife and habitat studies) to support EA requires proponents to have access to land within their study area. This allows the proponent to gather better data to inform the identification of the optimal routing options for the project.

Electricity transmission project proponents can apply to the OEB for access to land to make surveys and examinations as necessary to fix the site of a proposed project.  Currently, these applications can only be made once the proponent has applied for Leave to Construct. ENDM proposes to create a mechanism allowing the OEB to grant earlier access to land to transmission project proponents for the purpose of conducting environmental studies to support more efficient and higher quality EA and project development. If approved, the mechanism is anticipated to:

  • Allow proponents to apply to the OEB for earlier access to land; and
  • Set out requirements proponents must meet when applying for early access to land;
  • It is intended that the OEB’s process for considering applications for early access to land will allow for input from affected landowners and that the OEB can attach conditions to a grant of access with which the proponent must comply.

This proposal will help to create a more streamlined, efficient EA process by reducing the logistical challenges faced by electricity transmission project proponents in gaining early access to land, while balancing proponent needs with the interests of landowners. The policy would, if approved, also increase the quality of environmental information used in EA work by facilitating direct field study. The environmental impact of these amendments is therefore expected to be positive.

Supporting materials

View materials in person

Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Energy Networks and Indigenous Policy Branch
Address

77 Grenville St., 6th Floor
Toronto, ON
M7A 2C1
Canada

Comment

Commenting is now closed.

This consultation was open from March 2, 2020
to April 30, 2020

Connect with us

Contact

Christopher Goode

Phone number
Office
Energy Networks and Indigenous Policy Branch
Address

77 Grenville St., 6th Floor
Toronto, ON
M7A 2C1
Canada