Chapter 8: Guidance for preparing the water assessment report and supplementary reporting on any addition mitigation

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1. Purpose

The purpose of this chapter is to describe the requirements under O. Reg. 359/09 for the water assessment (sections 29 - 31) and any mitigation measures in respect of negative environmental effects that will or are likely to occur (sections 39 and 40) required under O. Reg. 359/09). It should be noted that this guidance document covers all renewable energy generation facilities that require a Renewable Energy Approval (REA), except Class 2 (> 3 kW < 50 kW) wind facilities. Class 2 wind facilities require an REA but do not require a water assessment.

2. Key Deﬁnitions

Water Assessment Report

This guidance refers to the report described in subsections 30 (2) and 31 (4) of O. Reg. 359/09 as the “Water Assessment Report”.

Permanent Stream

A “permanent stream” is a stream that continually flows in an average year

Intermittent Stream

An “intermittent stream” is a natural or artificial channel, other than a dam, that carries water intermittently and does not have established vegetation within the bed of the channel, except vegetation dominated by plant communities that require or prefer the continuous presence of water or continuously saturated soil for their survival

Kettle Lake

A “kettle lake” is a depression formed by glacial action and permanently filled with water.

Lake Trout Lake

A “lake trout lake” is a lake that has been designated by the Ministry of Natural Resources and Forestry (MNRF) for lake trout management, as set out in records maintained by and available from MNRF.

Lake Simcoe Watershed

“Lake Simcoe watershed” has the same meaning as in the Lake Simcoe Protection Act, 2008.

Seepage Area

A “seepage area” is a site of emergence of ground water where the water table is present at the ground surface, including a spring.

Wetland

A “wetland” means land such as a swamp, marsh, bog or fen, other than land that is being used for agricultural purposes and no longer exhibits wetland characteristics, that:

Is seasonally or permanently covered by shallow water or has the water table close to or at the surface; and
Has hydric soils and vegetation dominated by hydrophytic or water-tolerant plants.

Wildlife Habitat

“Wildlife habitat” means an area where plants, animals and other organisms live or have the potential to live and find adequate amounts of food, water, shelter and space to sustain their population, including an area where a species concentrates at a vulnerable point in its annual or life cycle and an area that is important to a migratory or non- migratory species.

3. Regulation Requirements

The water assessment includes both records review and site investigation with the purpose of identifying and characterizing water bodies in the vicinity of the project location. A Water Assessment Report must be submitted as part of a complete REA application.

If the conclusion of the Water Assessment Report is that a proposed project location is within the setbacks described in subsections 39 (1) and 40 (1) of O. Reg. 359/09, then a supplementary report documenting any additional mitigation measures will be necessary for the project. This supplementary report (or section added to the Water Assessment Report) must be prepared in accordance with subsections 39 (2) and 40 (2) and must assess negative environmental effects that will or are likely to occur, identify mitigation measures, and describe how the Environmental Effects Monitoring Plan (EEMP) and Construction Plan Report address the effects. Furthermore, sections 44 and 45 of O. Reg. 359/09 describe additional setback requirements for projects that are proposed within the Oak Ridges Moraine Conservation Plan Area.

The following chart describes the report(s) required by O. Reg. 359/09 that deal specifically with issues pertaining to water quality and quantity and are submitted for review to the Ministry of the Environment and Climate Change(MOECC).

Required report as part of a complete REA application.

Applicants shall complete a Water Assessment Report, which includes:

A summary of records searched and results of analysis in accordance with subsection 30 (2).
A summary of any correction to the report prepared in (a) and the determinations made as a result of conducting a site investigation as described in subsection 31 (4).

Supplementary report required if encroaching on the setbacks described in subsections 39 (1) and 40 (1).

In accordance with subsections 39 (2) and 40 (2), applicants are required to prepare a supplementary report or section added to the Water Assessment Report above that includes:

Identification and assessment of negative environmental effects of the project that will or are likely to occur on the water body identified in the water assessment and land within 30 meters of the water body.
Mitigation measures of any effects mentioned in (a).
Description of how the EEMP addresses the effects mentioned in (a).
Description of how the Construction Plan Report addresses the effects mentioned in (a).

In the course of preparing a water assessment, any issues that have been identified that are ecologically relevant, such as impacts to plants, animals or ecosystems, must be referenced in the Water Assessment Report. If a supplementary report documenting any additional mitigation measures is required in respect of that water body, the information about plant, animal or ecosystems should be cross referenced in the supplementary report and submitted to the MOECC for review. Any information that would be collected about natural features during the water assessment or report(s) preparation stages (e.g. wildlife habitat) must be dealt with in detail in the Natural Heritage Assessment (NHA) Report and submitted for review to MNRF.

In accordance with O. Reg. 359/09, applicants are required to prepare separate reports for NHAs and water assessments. The MNRF will review NHAs and the MOECC will review water assessments.

In addition to the content of a supplementary report documenting any additional mitigation measures, if required, applicants must still describe negative environmental effects that will or are likely to occur related to surface and ground water in several of the required REA reports. These reports include the Project Description Report (PDR), the Construction Plan Report and the Design and Operations Report. Guidance on discussing impacts to water is provided in Chapters 4, 5, and 6, respectively.

Applicants are encouraged to initiate the water assessment as early as possible and consult with the MOECC’s Environmental Approvals Access and Service Integration Branch to determine the requirements.

The MOECC’s Environmental Approvals Access and Service Integration Branch will ensure that the appropriate MOECC District and Regional Offices are involved as well.

3.1. Potential Additional Requirements

place of a number of permits previously issued by the MOECC for such facilities, there are additional permits separate from the REA that could apply depending on the unique features of each proposal.

Applicants are encouraged to contact other agencies such as local conservation authorities, local MNRF Regional or District Offices and local Fisheries and Oceans Canada (DFO) Offices early in the process to identify any additional permit requirements and discuss project design requirements.

The contact information for local conservation authorities, local MNRF Regional or District Offices and DFO are available in Appendix 2 of this document.

Should there be any approvals, permits, or project design requirements under the Conservation Authorities Act, Fisheries Act, Species at Risk Act and/ or the Endangered Species Act, 2007, applicants should discuss these requirements both in the PDR and in the Water Assessment Report that would be submitted to the MOECC as part of a complete REA application. Further information about other potential additional permits can be found in Chapter 1 of this document.

3.1.1. Conservation Authorities Act

Renewable energy projects may require approval/ permission from the local conservation authority (where one has been established) under the Conservation Authorities Act. Through regulations made under s.28 of the Conservation Authorities Act and approved by the Minister of Natural Resources and Forestry that comply with O. Reg. 97/04, also made under the Conservation Authorities Act (content of conservation authorities regulations under subsection 28 (1): Development, Interference with wetlands, and Alterations to shorelines and Watercourses), conservation authorities are required to regulate development and activities in or adjacent to wetlands, river or stream valleys, watercourses, Great Lakes and large inland lakes, as well as shorelines and hazardous lands. Development as defined under the Conservation Authorities Act proposed in these areas may require permission from the local conservation authority to confirm that the control of flooding, erosion, dynamic beaches or pollution is not affected.

Conservation authorities also regulate the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream, watercourse or the changing or interfering in any way with a wetland. It is recommended that applicants contact local conservation authorities early in the water assessment and report(s) preparation process to arrange a site visit (where possible) to determine specific application requirements for such approvals/permissions.

Should applicants propose to construct facility components within an area within the regulatory limits of a conservation authority, pre-consultation with the appropriate local conservation authority is strongly recommended as early in the process as possible. Permits may be denied, approved, or approved with conditions. For example, local conservation authorities may not approve a proposal within regulated areas if in the opinion of the authority, an unacceptable flooding or erosion risk is created.

3.1.2. Fisheries Act

In Canada, fish habitat is regulated under the federal Fisheries Act and the Fisheries Protection Policy Statement. Fisheries and Oceans Canada (DFO) administers its Fisheries Protection Program and plays a pivotal role in the conservation and protection of fish habitat in Canada. The Fisheries and Pollution Prevention provisions of the federal Fisheries Act provide for the protection of fish habitat. The principal provision under section 35 (1) states that “no person shall carry on any work, undertaking or activity that results in habitatserious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, except those authorized under section 35 (2).” Serious harm to fish is defined under the Act as “the death of fish or any permanent alteration to, or destruction of, fish habitat”.

An applicant of a project which may impede fish passage, change water flow in a watercourse, impact fish habitat, or kill fish by means other than fishing, should contact a local conservation authority where one exists, or otherwise, should contact the local DFO Office to discuss requirements. Before they get too far in the project planning, applicants must make sure that they are clear as to which process they need to follow to be in compliance with the Fisheries Act. If they are required, applicants should note that authorizations under the Fisheries Act must be obtained from the appropriate federal authority.

The Fisheries Act has other provisions related to Fisheries Protection and Pollution Prevention, including those related to the prohibition of depositing deleterious substances into fish-bearing waters (section 36) and fish passage (found in several sections). Section 36 (3) of the Fisheries Act is administered by Environment Canada and specifies that, unless authorized by federal regulation, no person shall deposit or permit the deposit of deleterious substances of any type in water frequented by fish, or in any place under any conditions where the deleterious substance, or any other deleterious substance that results from the deposit of the deleterious substance, may enter any such water. Applicants should note that for renewable energy projects, authorizations cannot be obtained for depositing any deleterious substances into the water. Proponents should be aware of the most recent regulation, as changes occur from time to time.

3.1.3. Endangered Species Act, 2007

Applicants may also need to obtain permit (section 17 of the ESA) or use a regulatory exemption (sections 23.6, 23.13 or 23.20 of O. reg. 242/08) under the ESA if the project is likely to have an adverse impact on protected species or their habitat. Applicants should contact the appropriate local MNRF Regional or District Office, early in the process, to discuss any potential requirements for their projects under the ESA. Applicants should also consult the MNRF’s “Approval and Permitting Requirements Document for Renewable Energy Projects.”

4. Water Assessment Requirements

4.1. Water Body Deﬁnition

Under O. Reg. 359/09, a “water body” includes: a lake (including kettle lakes and lake trout lakes), a permanent stream, an intermittent stream and a seepage area but does not include:

Grassed waterways;
Temporary channels for surface drainage, such as furrows or shallow channels that can be tilled and driven through;
Rock chutes and spillways;
Roadside ditches that do not contain a permanent or intermittent stream;
Temporary pond areas that are normally farmed;
Dugout ponds; or
Artificial bodies of water intended for the storage, treatment or recirculation of runoff from farm animal yards, manure storage facilities and sites and outdoor confinement areas.

It should be noted that there may be situations when a water feature would be regulated under the Conservation Authorities Act (i.e. a permit from the local conservation authority would be required for development) but not meet the definition of water body under O. Reg. 359/09. Applicants are encouraged to contact their local conservation authority to ascertain any additional regulatory requirements.

4.2. Project Location and Water Body Boundaries

The development prohibitions and setbacks from natural features and water bodies established in O. Reg. 359/09 are measured from the boundary of the renewable energy project location. Project location means: “a part of land and all or part of any building or structure in, on or over which a person is engaging in or proposes to engage in the [renewable energy] project and any air space in which a person is engaging in or proposes to engage in the project”.

A renewable energy project includes activities associated with the construction, installation, use, operation, maintenance, changing or retiring of the renewable energy generation facility. Therefore, for the purposes of measuring the distance from the project location to a natural feature or a water body, a project location boundary is considered to be the outer limit where project activities (e.g. site preparation and construction) will occur or where infrastructure will be located (e.g. temporary structures, lay down areas, storage facilities, generation equipment, access roads, transmission lines less than 50 kilometres in length, etc.).

Measurement from the project location boundary to the feature should be made from the outer extent of the project location along a horizontal plane to the boundary of the natural feature or water body. As the renewable energy project location includes air space that the project occupies, the outer boundary of a project location may be above ground level. Schematic diagrams of this interpretation are presented in Chapter 1, Figures 1, 2, and 3.

The setbacks for lakes and streams, both permanent and intermittent, are required to be measured from the average annual high water mark. For the purposes of the REA applications, the average annual high water mark for streams means the usual or average level to which a body of water rises at its highest point and remains for sufficient time so as to change the characteristics of the land. In flowing waters this refers to the “active channel/bankfull level” which is often the one-to two-year flood flow return level. For inland lakes, it refers to those parts of the water body bed and banks that are frequently flooded by water so as to leave a mark on the land and where the natural vegetation changes from predominately aquatic vegetation to terrestrial vegetation (excepting water-tolerant species). For reservoirs (or controlled lakes) this refers to normal high operating levels (adapted from DFO, 2009). For projects within the Lake Simcoe watershed area, in determining the average annual high water mark, applicants should take into consideration the “Lake Simcoe shoreline” definition provided in the Lake Simcoe Protection Plan.

This approach is consistent with the definitions provided in the policies made under the Public Lands Act and the MNRF’s Natural Heritage Manual for Natural Heritage Policies of the Provincial Policy Statement 2005 publication, Second Edition.

4.3. Water Assessment Requirements

In accordance with section 29 of O. Reg. 359/09, a records review and a site investigation are required for all renewable energy generation facilities which require an REA, except Class 2 wind facilities.

4.3.1. Records Review

In a water body;
Within 120 metres of the average annual high water mark of a lake, other than a lake trout lake that is at or above development capacity;
Within 300 metres of the average annual high water mark of a lake trout lake that is at or above development capacity;
Within 120 metres of the average annual high water mark of a permanent or intermittent stream; and/or
Within 120 metres of a seepage area.

O. Reg. 359/09 requires the search and analysis of the records that relate to water bodies and that are maintained by:

The MNRF;
The Crown in right of Canada;
A conservation authority, if the project location is in the area of jurisdiction of the conservation authority;
Each local and upper-tier municipality in which any part of the project location is situated;
The planning board of an area of jurisdiction of a planning board in which the project location is situated;
The municipal planning authority of an area of jurisdiction of a municipal planning authority in which the project location is situated;
The local roads board of a local roads area in which the project location is situated;
The Local Services Board of a board area in which the project location is situated; and
The Niagara Escarpment Commission, if the project location is in the area of the Niagara Escarpment Plan.

In addition, the MOECC District and Regional Offices can provide relevant information. Appendix 2 contains contact information for the MOECC District and Regional Offices.

In accordance with subsection 30 (2) of O. Reg. 359/09, applicants must prepare a report that sets out a summary of the records that were searched and the results of the analysis.

4.3.2. Site Investigation

Applicants should note that this section provides a description of the site investigation requirements for the purposes of water bodies prior to the amendments to O. Reg. 359/09 which came in effect on January 1, 2011, as well as the requirements after the amendments which came in effect on January 1, 2011.

Water bodies identified in the records review must be investigated to confirm the presence, location and boundary of the feature. Section 31 of O. Reg. 359/09 requires that an investigation be conducted of the land and water located within 120 metres of the project location for the purpose of determining:

Whether the results of the records review are correct or require correction, and to identify any required corrections;
Whether any additional water bodies exist, other than those identified in the records review;
The boundaries, located within 120 metres of the project location, of any water body that was identified in the records review or the site investigation; and
The distance from the project location to the boundaries of any water body that was identified in the records review.

In accordance with subsection 31 (2) of O. Reg. 359/09, for lake trout lakes at or above development capacity that have been identified within 300 metres of the project location the investigation is required in respect of the land and water located between the project location and the lake trout lake that is at or above development capacity.

The investigation for a lake trout lake is conducted to determine:

The boundaries of any lake trout lake that is at or above development capacity, if:
- The lake was identified in the records review; and
- The boundaries are within 300 metres of the project location.
The distance from the project location to the boundaries of the lake trout lake that is at or above development capacity.

Identifying intermittent streams and seepage areas properly may require a careful site investigation conducted at an appropriate time of the year. Information related to identifying intermittent streams and seepage areas is provided below. Considering that conservation authorities and local MNRF Regional or District Offices have important knowledge about local watercourses, applicants are strongly encouraged to consult with the local conservation authority and local MNRF Regional or District Office on the issues related to identifying water bodies early in the process.

Site Investigation to Identify an Intermittent Stream

Walk and investigate carefully any drainage channels that exist upstream beyond the areas containing flowing water.
Preferably undertake this survey at a time of year when the water table is high, normally the spring.
Preferably undertake this survey at a time of year when the water table is high, normally the spring.
Streambed material that differs from the surface of the ground surrounding the stream, e.g. recent accumulations of silt, sand, cobble, or gravel in the streambed;
Ridges of sand or silt deposited roughly parallel to the stream on its flood plain;
Presence of seepage areas, springs, or a high water table near the stream channel;
Presence in or near the stream channel of wetland plants, attached algae, clam or mussel shells, crayfish chimneys or exoskeletons, or aquatic insect larvae;
Sediments deposited on top of plants or plant debris in the streambed;
Absence of leaf litter in the streambed;
Accumulations of debris, such as leaves, twigs or litter, on the upstream side of obstructions in the stream channel; and/or
Presence of hydric soils in the streambed.

Site Investigation to Identify a Seepage Area

Conduct site-scale topographic surveys, ground water or vegetation investigations.
Follow all watercourses to their sources.
Preferably undertake this survey at a time of year when the water table is high, normally the spring.
Identify areas with vegetation indicative of wet areas, i.e., areas where water table may be close to ground surface and are likely locations of seepage areas or springs.
Identify areas with red or rust coloured stains on the soil surface, i.e., areas which usually precipitate iron hydroxides indicating areas of ground water discharge.
Identify areas with red or rust coloured stains on the soil surface, i.e., areas which usually precipitate iron hydroxides indicating areas of ground water discharge.

Source: Oak Ridges Moraine Conservation Plan Technical Paper 12 – Hydrological Evaluations for Hydrologically Sensitive Features accessible here

In accordance with subsection 31 (4) of O. Reg. 359/09, the Water Assessment Report must present the findings of the site investigation and discuss:

A summary of any corrections to the records review; and
Information relating to each water body identified in the records review and in the site investigation, including:
- The type of water body;
- The plant and animal composition; and
- The ecosystem of the land and water investigated.

Applicants should note that the information related to plant and animal composition and the ecosystem of the land and water investigated may help to inform the NHA which considers negative environmental effects that will or is likely to occur to natural features (e.g. wildlife habitat).

In the Water Assessment Report, which would include the findings of the records review and site investigation, applicants are required to present a map showing:

All boundaries of water bodies located within 120 or 300 metres of the project location, depending on the type of water body;
The location and type of each water body identified in relation to the project location; and
All distances from any water body identified during the records review and site investigation that is within 120 or 300 metres of the project location.

Applicants must provide the following information in the Water Assessment Report:

A summary of methods used to make observations for the purposes of the site investigation
The name and qualifications of any person conducting the site investigation

Note that while a physical site investigation is generally required, O. Reg. 359/09 allows for an alternative site investigation where physical investigation cannot reasonably be completed due to physical or legal barriers to accessing land. Applicants should contact the MOECC’s Environmental Approvals Access and Service Integration Branch to discuss an alternative site investigation if they believe physical investigation is not reasonable.

If the site investigation was conducted by visiting the site the Water Assessment Report must contain the following information:

The dates and times of the beginning and completion of the site investigation;
The duration of the site investigation;
The weather conditions during the site investigation; and
Field notes kept by the person conducting the site investigation.

If applicants are conducting an alternative site investigation the Water Assessment Report must explain why it was not reasonable to conduct a physical site investigation and the dates of the generation of the data used in the alternative investigation of the site.

4.3.3 Baseline Information

As part of the water assessment, applicants may consider collecting baseline information which will be used in describing, assessing and monitoring negative environmental effects from their projects.

Applicants should note that depending upon the type of project and activity proposed and type of water body (e.g. a lake trout lake at or above development capacity versus a stream), the necessary baseline information would vary. A meeting with the MOECC’s Environmental Approvals Access and Service Integration Branch is generally encouraged to determine/finalize the scope and extent of baseline information for renewable energy projects. The MOECC’s Environmental Approvals Access and Service Integration Branch will ensure the participation of appropriate MOECC Regional or District Offices in these discussions. In addition, applicants are encouraged to consult with the local MNRF Regional or District Office and local conservation authority to determine if additional information exists to assist in addressing baseline information needs. Contact information for these offices is provided in Appendix 2.

Applicants may obtain water bodies information from the Natural Resources Canada’s (NRCan) topographic mapping databases. This information is available at the NRCan’s Centre for Topographic Information website.

Water Quality and Quantity

In collecting baseline information, applicants can access the MOECC’s Provincial Water Quality Monitoring Network to collect information on stream flow and water levels.

MNRF’s Surface Water Monitoring Centre in Peterborough also collects data from stream flow and precipitation gauges weekly for the Ontario Low Water Response Program. Lake Partner information can be found at the following MOECC website.

Source Protection Areas

Under the Clean Water Act, 2006, Assessment Reports for source protection areas (in areas generally covered by conservation authority boundaries) have been prepared outlining surface water vulnerability (including identification of intake protection zones), ground water vulnerability (including identification of wellhead protection areas, highly vulnerable aquifers, and significant ground water recharge areas), water budgets and water quantity stress assessments, and drinking water quality threat assessments. Proposed, draft and approved Assessment Reports can be useful reference materials in collecting baseline information in respect of vulnerable drinking water source protection areas. As Source Protection Plans are completed they are expected to contain area specific protection policies in each source protection area. Applicants must document whether they are within a vulnerable area identified in a ministry-approved Assessment Report and whether the Source Protection Plan identifies any policies that would be applicable to their proposed facility. The available Source Water Assessment Reports can be viewed at this website.

Average Annual High Water Mark

For projects proposed in an area under the jurisdiction of a conservation authority, local conservation authorities may have information to assist with determining the average annual high water mark for lakes and streams. For projects proposed to be located in areas outside the jurisdiction of a conservation authority, local MNRF Regional or District Offices may have useful information related to determining the average annual water mark for lakes and streams and measuring setbacks from seepage areas. The Water Survey of Canada may also have information in respect of water levels. This data is available here.

Applicants should note that this information may not be readily available and, as such, they may need to conduct studies to determine the average annual high water mark. For any questions specific to determining the average annual high water mark for lakes and streams and measuring setbacks from seepage areas, applicants may contact the MOECC’s Environmental Approvals Access and Service Integration Branch and the appropriate MOECC Regional Technical Support Team will be contacted for assistance.

Fish and Fisheries

Applicants may need to collect information related to cold water or warm water fisheries as well. This information may be used to assess negative effects to fisheries that could be resulting from any changes to water quality and/or water quantity.

Fish and fisheries information may be obtained from local conservation authorities or the DFO and may also be supplemented by local MNRF Regional or District Offices if more current information is available in the local MNRF Regional or District Office database. There are publicly available information sources, e.g. Land Information Ontario and Natural Heritage Information Centre, which could be immediately reviewed by applicants.

This information could also be used for other permit applications that would be submitted to other agencies including the conservation authorities and the DFO to fulfill the requirements under the Conservation Authorities Act and the federal Fisheries Act.

Soil, Drainage and Vegetation

The MNRF Regional or District Offices and local municipalities may have useful soil, drainage and vegetation information.

5. Supplementary Report Documenting Any Additional Mitigation Requirements

A water study is required when the construction, installation or expansion of a renewable energy generation facility is within setback distances set out in O. Reg. 359/09. The findings of this study will be documented in a supplementary report discussing any additional mitigation measures in respect to negative environmental effects that will or are likely to occur.

A supplementary report (or section added to the Water Assessment Report) documenting any additional mitigation measures must be prepared in accordance with subsections 39 (2) and 40 (2) of O. Reg. 359/09 and must include the identification and assessment of negative environmental effects that will or are likely to occur as a result of the project (e.g. site preparation, construction, maintenance, operation and decommissioning activities) on the water body and on the land within 30 metres of the water body. In addition to the identification and assessment of negative environmental effects that will or are likely to occur in the supplementary report, applicants must identify mitigation measures to address these effects and describe how the EEMP and Construction Plan Report (which are submitted as part of the REA application) address the effects.

5.1. Setbacks

There are two setback prohibitions in respect of water bodies in O. Reg. 359/09. They are found in section 39 and section 40.

5.1.1. Section 39

Subsection 39 (1) prohibits the construction, installation or expansion of a renewable energy generation facility in a project location that is in or within the 30 metres of the average annual high water mark of a lake, intermittent stream, permanent stream or seepage area. The provision is intended to protect direct impacts on shoreline vegetation.

However, this prohibition does not apply if, in addition to the preparation of a supplementary report documenting any additional mitigation measures, certain components of the renewable energy generation facility remain outside of the setbacks described above.

For example, for Class 3 or 4 wind facilities, turbines and transformer substations cannot be located within 30 meters of the average high water mark of a lake, or stream or 30 meters of a seepage area.

A wind turbine is defined to mean:

The structure that supports an electrical generator used to convert wind energy into electricity
The electrical and mechanical equipment, including electrical generators, used to convert wind energy into electricity
The base and foundation to which the structure that supports an electrical generator used to convert wind energy into electricity is attached.

This definition includes the tower, the blades, the base and foundation. Accordingly, the measurement of 30 metres distance from the water body to a wind turbine should be from the outer limit of a turbine, which is usually the tip of the blade.

For Class 3 solar facilities, solar photovoltaic modules or device and transformer stations must be located outside of the lake, stream or seepage area and cannot be located within 30 metres of them.

For anaerobic digestion facilities, the biomass storage areas, source separated organics storage areas, farm material storage areas, digestate storage tanks, generating units, flares, anaerobic digesters and transformer substations are not permitted to be installed, constructed or expanded in or within 30 metres of a lake, stream or seepage area.

For a thermal treatment facility no biomass storage areas or transformer substation are permitted to be constructed, installed or expanded in or within 30 metres of a lake, stream or seepage area.

Development of other facility components such as transmission/distribution lines and roads can be built within the water body or 30 metre setbacks; however, a supplementary report documenting any additional mitigation measures must be prepared in accordance with subsection 39 (2) of O. Reg. 359/09 and submitted for review.

Further, should facility components be proposed within 30 metres of a water body, pre-consultation with the appropriate conservation authority is strongly recommended as early in the process as possible to discuss any permitting issues with the proposed facility components. For example, local conservation authorities could not issue a development permit if the infrastructure crates an unacceptable flooding or erosion risk. For projects proposed in an area outside the jurisdiction of a conservation authority, applicants should contact local MNRF Regional or District Offices to discuss the matters related to flooding, erosion or other hazards. Applicants should note that the area under the regulatory jurisdiction of a conservation authority may extend beyond the area within 30 metres of a water body.

5.1.2. Section 40

Subsection 40 (1) of O. Reg. 359/09 prohibits the construction, installation or expansion of a renewable energy generation facility in a project location that is within:

120 metres of the average annual high water mark of a lake (other than a lake trout lake at or above development capacity), intermittent stream, permanent stream or seepage area; and
300 metres of the average annual high water mark of a lake trout lake at or above development capacity.

The provision is intended to protect the drainage area related to the water body. While water bodies like lakes, streams and seepage areas are subject to the 120 metre setback to protect drainage areas, a 300 metre setback applies for Lake Trout lakes at or above development capacity. Applicants should contact the local MNRF Regional or District Office to identify any Lake Trout lakes at or above development capacity within 300 metres of the project location. Development within the drainage area setbacks of 120 or 300 metres is permitted; however, only if a supplementary report documenting any additional mitigation measures is prepared in accordance with subsection 40 (2) of O. Reg. 359/09 and submitted as part of the REA application.

O. Reg. 359/09 includes specific requirements for the projects which would be proposed to be built within the Oak Ridges Moraine Conservation Plan Area. Within the Oak Ridges Moraine Conservation Plan Area, only transmission lines which are part of the renewable energy generation facility can be located in or within 30 metres of the water body. If this is proposed, a supplementary report documenting any additional mitigation measures must be prepared in accordance with subsection 44 (2) of O. Reg. 359/09 and submitted as part of the REA application. This supplementary report should identify and assess negative effects of the construction, installation or operation of the transmission line that will or are likely to occur on the water body and the area within 30 metres of the water body.

Table 2: Setback Requirements
Water body other than those in the Oak Ridges Moraine Conservation Plan Area	Prohibition on Facility Construction, Installation or Expansion	Exceptions to Prohibitions based on a Supplementary Report Documenting Any Additional Mitigation Measures
Any lake (including a kettle lake and a lake trout lake at or above development capacity), permanent or intermittent stream	In the lake or stream or within 30 metres of the average annual high water mark of the lake or stream	Only ancillary equipment (e.g. transmission line, road, bridge, and culvert) provided that a supplementary report documenting any additional mitigation measures satisfies the Director that an REA is appropriate. Does not include: Wind turbines that are part of Class 3 or 4 wind facilities; Solar photovoltaic panels that are part of Class 3 solar facilities; Biomass storage areas, source separated organics storage areas, farm material storage areas, digestate storage tanks, generating units, flares, anaerobic digesters; or Transformer substations.
Any lake (other than a lake trout lake at or above development capacity), permanent or intermittent stream	Within 120 metres of the average annual high water mark of the lake or stream	All components of a facility with a supplementary report documenting any additional mitigation measures that satisfies the Director that an REA is appropriate.
Lake trout lake that is at or above development capacity	Within 300 metres of the average annual high water mark of the lake	All components of a facility with a supplementary report documenting any additional mitigation measures that satisfies the Director that an REA is appropriate.
Seepage area	In the seepage area or within 30 metres of the seepage area	Only ancillary equipment (e.g. transmission line, road, bridge, and culvert) provided that a supplementary report documenting any additional mitigation measures satisfies the Director that an REA is appropriate. Does not include: Wind turbines that are part of Class 3 or 4 wind facilities; Solar photovoltaic panels that are part of Class 3 solar facilities; Biomass storage areas, source separated organics storage areas, farm material storage areas, digestate storage tanks, generating units, flares, anaerobic digesters; or Transformer substations.
Seepage area	Within 120 metres of the seepage area	All components of a facility with a supplementary report documenting any additional mitigation measures that satisfies the Director that a REA is appropriate.
Kettle lake, lake trout lake, permanent or intermittent stream	In the lake or stream or within 30 metres of the annual high water mark of the lake or stream	Only transmission lines provided that a supplementary report documenting any additional mitigation measures satisfies the Director that an REA is appropriate.
Kettle lake, permanent or intermittent stream (other than a water body and project location entirely or partially within a settlement area)	Within 120 metres of the average annual high water mark of the lake	All components of a facility with a supplementary report documenting any additional mitigation measures that satisfies the Director that an REA is appropriate.
Kettle lake that is also a Lake trout lake that is at or above development capacity (other than a water body and project location entirely or partially within a settlement area)	Within 300 metres of the average annual high water mark	All components of a facility with a supplementary report documenting any additional mitigation measures that satisfies the Director that an REA is appropriate.
Seepage area	In or within 30 metres of a seepage area	Only transmission lines provided that a supplementary report documenting any additional mitigation measures satisfies the Director that an REA is appropriate.
Seepage area (other than a water body and project location entirely or partially within a settlement area)	Within 120 metres of a seepage area	All components of a facility with a supplementary report documenting any additional mitigation measures that satisfies the Director that an REA is appropriate.

5.2. Addressing Negative Environmental Effects that Will or are Likely to Occur on Water Bodies

In accordance with O. Reg. 359/09, and as part of a supplementary report if encroaching on the setbacks described in subsections 39 (2) and 40 (2), applicants are required to:

Identify and assess negative environmental effects on the water body and on land within 30 metres of the water body that will or are likely to occur;
Identify mitigation measures in respect of negative environmental effects, such as planning, design and construction practices that will minimize and, where possible, improve or restore the health and diversity of the water body; and
Describe how the EEMP in the Design and Operation Report, and how the Construction Plan Report will address negative environmental effects on the water body that will or are likely to occur.

In the supplementary report, applicants should characterize and evaluate the nature of negative environmental effects that will or are likely to occur (in terms of likelihood, significance and duration) within the 120 or 300 metre setbacks and how those effects would affect the water body as well as the land within 30 metres of the water body. There may be cases where applicants need to consider effects on an area larger than the land within 30 metres of the water body depending on the likelihood, significance and duration of negative environmental effects within the 120 and 300 metre areas, as applicable. Applicants are encouraged to consult with the MOECC’s Environmental Approvals Access and Service Integration Branch, local conservation authority and local MNRF Regional or District Office in determining the need for expanding the area beyond the 30 metres.

In considering negative environmental effects from a proposed project to a water body and the land within 30 metres of the water body, applicants must examine negative environmental effects that will or are likely to occur when engaging in the project including the construction, operation and decommissioning of the facility.

Negative environmental effects on the water body that will or are likely to occur and the land within 30 metres of the water body should be discussed in the supplementary report, if encroaching on the setbacks described in subsections 39 (2) and 40 (2). This should include negative environmental effects that will or are likely to occur to water quality and quantity, to plant and animal compositions or ecosystems, as well as on the existing uses in the area should be assessed. Any information/assessment in respect of negative environmental effects that will or are likely to occur to plants, animals or ecosystems that would inform the work required under the NHA study should be included in the NHA Report which will be submitted to the MNRF.

In assessing potential effects of a proposed project on the environment, applicants should consider the information collected through records review and site investigation and the characteristics of the water body and proposed project activities.

5.2.1. Encroaching on Setbacks

A supplementary report documenting any additional mitigation measures if encroaching on the setbacks described in subsections 39 (2) and 40 (2) should include some or all of the following components, as applicable:

Describe the project and the characteristics of the environment within which the project is proposed including:

Any area that will be replaced with an impermeable surface;
Any area where soil compaction may occur;
Any area where vegetation will be removed;
Vegetative cover pre- and post-development;
Existing uses in the watershed, including but not limited to regulated water takings (under a PTTW), discharges, recreation, and contaminated sites;
Potential for any contamination;
Predicted use of water resources; and
Description and characterization of pre- and post- (predicted) development water regime.

Describe significant changes to the water regime that would be generated by the proposed project, including:

Increase/decrease in runoff (amount and rate);
Redirection of runoff;
Increase/decrease in sedimentation;
Changes in water quality (surface and ground water);
Change in water temperature;
Change in recharge capacity of the site; and
Water uses that will be part of the proposed development and associated impacts on base flow, surface storage, and the ground water table.

Examine the effect of the proposed project on the size, diversity, health, connectivity, functionality and resilience of the water body:

The level of effects that will or are likely to occur, including the spatial extent, magnitude, frequency and duration of likely adverse effects;
The extent and degree to which adjacent lands (the land within 30 metres of the water body) may be affected;
Whether the impacts are likely to result in combined impacts; and
Impacts that will or are likely to occur on specific water bodies and their functions.

Depending on the proposed activities and characteristics of the site, applicants may need to further describe the hydrologic function and sensitivity of ecosystem features for an effective assessment of negative environmental effects that will or are likely to occur. This could require:

Assessing the relationship of the feature to the hydrologic system and ecological linkages (in consideration of any potential effects to natural heritage features in the area).
Conducting fieldwork with a focus on the nature of the interaction between the ground water system and the surface water system and the associated sensitivity of the ecosystem within the spatial extent of the area of investigation.
Conducting sampling on the underlying aquifer(s), surface water bodies, and any ecological linkages to significant natural heritage features.
Conducting sampling (scale of the study) in the catchment area providing both base-flow and surface water input to the natural heritage features within and beyond the 120 metres setback in some cases.
Extrapolating the data to assess stress resulting from the proposed development.

It is strongly recommended that applicants make use of the information gathered for the purposes of documenting any additional mitigation measures, including but not limited to the information regarding the plants, animals, and ecosystems, to inform the work required under the NHA study for their projects.

Applicants are required to identify any action necessary to mitigate negative environmental effect on the water body and the land within 30 metres of the water body that may result from proposed project activities in the supplementary report. In addition to the description of negative environmental effects that will or are likely to occur, applicants are required to describe and document specific mitigation measures that will be implemented to minimize negative environmental effects and, where possible, improve or restore the health, diversity and size of the water body.

Table 3 presents a sample list of negative environmental effects that will or are likely to occur in respect of specific activities, such as site preparation, construction and operation, as well as potential mitigation measures to address such effects.

Table 3: Negative Environmental Effects and Mitigation Measures
Activity	Negative Environmental Effects	Mitigation Measures
Site Preparation Vegetation Removal Grading Installation of services and utilities (roads, storm water management activities)	Loss of vegetation resulting in increased water temperature Reduced bank stability and ability to trap sediment from upland areas Increased erosion, sedimentation and turbidity Increased inputs of nutrients and contaminants to water bodies Changes in natural drainage	Consult available guidance documents for Best Management Practices Maintain vegetative buffers Develop and implement an erosion and sediment control plan Control access and movement of equipment Schedule to minimize area and duration of soil exposure Minimize vegetation removal, changes in land contours and natural drainage Maintain streams (permanent and intermittent) and timing and quantity of flows Re-establish vegetation as soon as possible Identify any potential changes to hydrological regime and take measures to maintain existing regime
Construction Building construction Water crossings (roads) Paving Water taking	Increased erosion, sedimentation and turbidity Increased inputs of nutrients and contaminants to water bodies Potential contamination by oils, gasoline, grease and other materials Increase in impervious surfaces; increased surface runoff, reduced infiltration and ground water discharge Pollutants from road Loss of vegetation resulting in Increased water temperature Realignment of stream channel; changes in water velocity	Consult available guidance documents for Best Management Practices Maintain and provide vegetative buffers; control erosion, sedimentation and nutrient inputs through use of Best Management Practices Control water contamination through use of Best Management Practices Control quantity and quality of storm water discharge using Best Management Practices Minimize width of right of way Install adequate culverts and gravel base to maintain flow of surface water and shallow ground water Collect and treat road runoff Minimize area of paved surfaces; design roads without curbs, gutters and sidewalks to promote infiltration
Operation Water taking Discharge into the environment Accidental spills	Reduced ground water discharge; reduced stream base-flows; increased water temperature Increased inputs of nutrients and contaminants to water bodies; increased algal growth, reduced oxygen levels	Consult available guidance documents for Best Management Practices Control rate and timing of water pumping

In conducting the required studies in respect of identifying and assessing negative environmental effects that will or are likely to occur and proposing appropriate mitigation measures to address any such effects, applicants are encouraged to consult and take into consideration various MOECC technical guidance documents. The relevant MOECC technical guidance materials are accessible through the MOECC’s website.

Consideration of Negative Environmental Effects from Surface Run-off/Storm Water

If a water body exists within the setback distances prescribed under sections 39, 40, 44, and 45 of O. Reg. 359/09, negative environmental effects on the water body and the land within 30 metres of the water body that will or are likely to occur as a result of surface/ storm water runoff should also be described. If there is surface run-off and storm water considerations, applicants should consider using the MOECC’s storm water management manual: “Stormwater Management Planning and Design Manual” (2003, Publication #4329e) as guidance as well as any current applicable watershed and/or sub-watershed study for the area available from local conservation authorities.

Consideration of Negative Environment Effects from Water Taking Activities

If a water body exists within the setback distances prescribed under sections 39, 40, 44, and 45 of O. Reg. 359/09, any specific environmental effects on the water body and the land within 30 metres of the water body that will or is likely to occur as a result of a water taking activity should be discussed and documented in the supplementary report.

If there are proposed water taking activities, applicants should refer to the following MOECC technical guidance documents:

Permit To Take Water Manual, Publication #4932e; and
Guide to Permit To Take Water Application Form, Publication #5046e.

Depending on the nature of water taking activity being proposed, applicants may need to characterize the water body so that the potential for interference can be assessed. In order to clarify the study and baseline information needs for any proposed water taking activity, applicants are encouraged to contact the MOECC’s Environmental Approvals Access and Service Integration Branch and the appropriate MOECC Regional Technical Support Team will be contacted for assistance.

Detailed guidance in respect of the assessment of negative environmental effects from water taking activities that will or is likely to occur is provided in Chapters 5 and 6 of this guide.

Consideration of Negative Environmental Effects from Discharge into the Environment

If there are anticipated or proposed discharge activities, applicants should refer to the following MOECC guidance documents:

Blue Book - Water Management Policy Guidelines, Provincial Water Quality Objectives, 1994 Publication #5046e; and
Green Book - Deriving Receiving Water-based, Point Source Effluent Requirements for Ontario Waters, Publication #5046e.

For projects with discharge activity, applicants should characterize the discharged water and the receiving water for the specific parameters of concern. Applicants should note that the specific parameters of concern could vary based on the effluent and receiving water characteristics for each project. Accordingly, applicants are encouraged to contact the MOECC’s Environmental Approvals Access and Service Integration Branch and the appropriate MOECC Regional Technical Support Team will be contacted for assistance to determine these parameters that would be area specific and would apply to the effluent discharge in question. For MOECC contact information, applicants can refer to Appendix 2 in this guide.

Detailed guidance in respect of the assessment of negative environmental effects from a discharge activity that will or is likely to occur is provided in Chapter 5.

Applicants should also note that there are additional reporting requirements for certain types of bio-energy projects including anaerobic digestion and thermal treatment. The guidance for additional reporting requirements can be found in Chapter 9. For projects other than these bio-energy projects, applicants should also consider potential for any discharge into the environment (land, water and air), and take appropriate action to identify and assess negative environmental effects that will or are likely to result from a discharge activity and proposed appropriate mitigation.

Consideration of Negative Environmental Effects from Accidental Spills and Contaminants

Applicants should identify if there are any activities proposed in any of the project phases that could result in accidental spills of contaminants. For projects, for example, which will have a transformer station or converter/inverter component or digestate storage tanks that would be built as part of the project, applicants need to discuss measures they will be implementing to prevent spill, including spill containment and the amount of containment that would be provided.

In the supplementary report, if encroaching on setbacks described in subsections 39 (2) and 40 (2), applicants are expected to describe negative environmental effects associated with accidental spills and contaminants to the water body and the land within 30 metres of the water body. Any actions that would be taken in the event that a spill occurs should be discussed both in the Design and Operations Report and the supplementary report documenting any additional mitigation measures if encroaching on setbacks described in subsections 39 (2) and 40 (2). With respect to spills, applicants should refer to Part X (Spills) of the Environmental Protection Act. In case of a spill, applicants should notify the MOECC Regional and District Offices and take corrective action. The MOECC Regional and District Office contact information is presented in Appendix 2 of this guide.

5.3. Construction Plan Report and Environmental Effects Monitoring Plan

In accordance with O. Reg. 359/09, and as part of the supplementary report, if encroaching on setbacks described in subsections 39 (2) and 40 (2), applicants will also describe how the Construction Plan Report, prepared in accordance with Table 1 of O. Reg. 359/09, addresses negative environmental effects to each specific water body and the land within 30 metres of the water body. Further guidance on the Construction Plan Report is provided in Chapter 5.

In accordance with O. Reg. 359/09, and as part of the supplementary report documenting any additional mitigation measures if encroaching on setbacks described in subsections 39 (2) and 40 (2), applicants will also describe how the EEMP addresses negative environmental effects on the water body.

The EEMP will include a summary table of each monitoring action related to negative environmental effects that will or are likely to occur on the water bodies and the land within 30 metres of the water bodies. In preparing this summary table, applicants should refer to the findings of the Water Assessment Report and the supplementary report documenting any additional mitigation measures and develop the sections of the summary table with the specific details of the monitoring approach, such as methodology and rationale used in selecting appropriate mitigation measures to address negative environmental effects on water bodies.

As part of the EEMP required for the Design and Operations Report, Contingency Plans should also be prepared for any of the construction, operation or decommissioning phases of the project life cycle to minimize/mitigate negative environmental effects on water bodies that will or are likely to occur, and where possible, improve or restore the health, diversity and size of the water body. In preparation of the assessment and mitigation exercises, existing lake management, coastal management and shoreline management plans would become very useful references. Lake management plans can be accessed here. Additionally, fisheries and watershed management plans may be available through local conservation authorities.

If the project is not proposed to be located within prescribed setbacks, negative environmental effects that will or are likely to occur related to surface and storm water runoff, water taking, discharge into the environment, both land and water, and accidental spills should be considered within the PDR, Construction Plan Report and/or Design and Operations Report. The specific mitigation measures will be outlined in the Construction Plan Report, (e.g. Erosion and Sediment Control) and within the EEMP Report within the Design and Operations Report. Specific consideration of performance objectives for the EEMP are to be included. If the project is proposed to be located within prescribed setbacks, the supplementary report should include a description of mitigation measures. Applicants should ensure that information/assessment provided in the reports is consistent.

6. Areas With Additional Considerations

O. Reg. 359/09 includes additional requirements which are related to water bodies in specific areas including the Oak Ridges Moraine Conservation Plan area, the Lake Simcoe watershed area, and the Great Lakes. In fulfilling these requirements, applicants should have consideration of or refer to the following documents:

Oak Ridges Moraine Conservation Plan, available on the Ministry of Municipal Affairs and Housing website.
Lake Simcoe Protection Plan, Publication #6932e01, available on the MOECC website.
Great Lakes Charter – charter signed by the premiers of Ontario and Quebec and the governors of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin on February 11, 1985 and amended by the Great Lakes Charter Annex, dated June 18, 2001. The Great Lakes Charter can be found here.

6.1. Oak Ridges Moraine Conservation Plan Area

In addition to the prohibitions described above, section 46 of O. Reg. 359/09 prohibits the construction, installation or expansion of a part of a renewable energy generation facility to be used or operated, as a rapid infiltration basin or a rapid infiltration column. Under O. Reg. 359/09 “rapid infiltration basin” and “rapid infiltration column” have the same meanings as in subsection 47 (3) of O. Reg. 140/02 (Oak Ridges Moraine Conservation Plan) made under the Oak Ridges Moraine Conservation Act, 2001.

According to Oak Ridges Moraine Conservation Plan “rapid infiltration basin” means a basin or system of basins at or below surface grade that is constructed in porous soil and punctures through a relatively impermeable layer to gain access to more permeable sand or gravel, so as to rapidly infiltrate into the ground, at a single point or area of concentration, surface runoff collected from impervious surfaces.

Also “rapid infiltration column” means a column or system of columns at or below surface grade that is constructed in porous soil and punctures through a relatively impermeable layer to gain access to a more permeable sand or gravel layer, so as to rapidly infiltrate into the ground, at a single point or area of concentration, surface runoff collected from impervious surfaces.

6.2. Lake Simcoe Protection Area

If the project location is in the Lake Simcoe watershed, in the Design and Operations Report, applicants must describe:

That there is no alternative but to place the structure in this area and the area occupied by such structures is minimized.
The ecological function of the vegetation protection zone is maintained and,
Pervious materials and designs are used to the extent feasible.
How the project will:
- Maintain the natural contour of the shoreline by planting natural vegetation and bioengineering as mitigation strategies; and
- Use a vegetative riparian area in respect of water bodies, except where the land is and will continue to be used for agricultural purposes.

6.3. The Great Lakes

Applicants should note that in considering an REA application, the Director is required to ensure that Ontario’s obligations under the Great Lakes Charter with respect to the application are complied with. The “Great Lakes Charter” is the charter signed by the premiers of Ontario and Quebec and the governors of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin on February 11, 1985 and amended by the Great Lakes Charter Annex, dated June 18, 2001. This may require completing additional studies other than those required by O. Reg. 359/09.

In the assessment of negative environmental effects that will or are likely to occur and preparation of construction, design and operations and mitigation plans, it is recommended that consideration be given to the distinct natural features of the Great Lakes e.g., near-shore shunt, direct phosphorus runoff/discharge, spills, coastal habitat and species. Accordingly, existing Lake Management Plans, coastal management areas and shoreline management plans, if there is any for the project location, would become very useful references in collecting baseline information and developing mitigation measures, if necessary.

Updated: November 10, 2023

Published: January 12, 2016