Early Access to Land for Environmental Studies on Transmission Projects

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.