Completing a Natural Heritage Assessment without losing your mind

By Andrea McDowell

Environmental field work in support of an environmental assessment forms the bulk of the work required to gain regulatory approvals and permits for a new energy project. It’s also unpredictable, depending on factors such as terrain, results of preliminary field studies, ever-changing regulations and guidelines, and weather conditions. But take heart: there are steps that can be taken in the project planning stages to minimize delays and maximize the chance that your approvals will be received on time.

1.    Complete a thorough constraints study before beginning
Different kinds of habitats require different kinds of field studies at different times of year. Doing legwork to understand what features might be possible at your project site will allow you to work those restrictions into your schedule from the outset. While surprises can always arise later when biologists are on the ground—an endangered species found during botanical surveys, a sighting of a rare bird—a detailed constraints analysis will allow you to rule out many features in advance.

2.    Gain (or hire) a thorough understanding of all of the Natural Heritage Assessment guidelines in Ontario
Regulations can be misleading when it comes to Natural Heritage Assessments. The Renewable Energy Approvals regulation, for instance, states only that a “site investigation” must be done of all lands and waters within 120m of a planned project location. It would be easy to assume that detailed notes from a site investigation taking a single day would meet the requirement of the regulation. However, the Ministry of Natural Resources must be satisfied that the investigation conforms to their guidelines and protocols; and manuals detailing those guidelines and protocols run for thousands of printed pages.
The details buried in those printed pages can make or break your project schedule. It is imperative that whoever is planning your Natural Heritage work know what studies need to be done at what time of the year; if you don’t get your amphibian surveys underway by March or April, depending on where in the province you are, you will be waiting until next March or April to begin. Similarly, many studies can only be conducted under certain weather conditions—light or dark, above 8C or 20C, sunny or cloudy.

3.    Use pre-construction survey commitments to your advantage wherever possible
In some cases, it is possible to defer certain kinds of habitat usage surveys until after completion of the Environmental Assessment documents, if the habitat is treated as significant in the reports with all appropriate mitigation measures factored in. If the habitat turns out to be significant when later evaluated, the appropriate protections are already in place; if it’s not, those mitigation measures and other commitments no longer apply.
This process is well-developed with Renewable Energy Approval studies, but it is also worth trying with other EAs where waiting for the appropriate time for necessary studies may put a project at risk. This will depend on negotiations between the Ministry of Natural Resources and the biologists who will be undertaking the field studies.

4.    Beware turnover
Some government agencies have high rates of turnover thanks to a dependence on short-term contract staff. The regulator you are dealing with today may no longer be around when the reports are submitted for final approval. While it is tempting to accept if a regulator offers to cut you some slack on the timing restrictions of a particular study or the specific work involved, keep in mind that the final decision-maker may have a different perspective; if you end up needing to re-do some portion of your program, it can end up being more expensive and time-consuming than if you’d gone the long way around to start with. Know how much risk you are willing to assume with turnover rates at the agency you are dealing with, and add some buffer to your schedule in case you need to repeat a portion of your field work.

Natural Heritage Assessments and the associated field investigations can represent 80% of the effort and time required to complete and environmental assessment—a situation often frustrating for project proponents and designers, who are used to the more structured and predictable worlds of engineering. However, the risks and uncertainties—if accepted and planned for from the outset—can be successfully managed, allowing your project to be constructed on time.

Agency Consultation

By Andrea McDowell

Agency Consultation

Any consultation process has challenges that are unique to the stakeholder, and agency consultations are no different. While regulators are tasked with helping proponents structure field work programs and move their projects through the Environmental Assessment process, there are conflicting imperatives that can make this frustrating for all concerned.  Ultimately—as proponents find during the process—regulators do not prioritize project budgets or schedules. Their belief, fair or not, is that budgets and schedules are the concern of the proponent and it is up to the proponent to meet all regulatory requirements without budgetary exceedances or project delays. Complaints about regulatory delays affecting project viability will have very little impact. To effectively engage with agency representatives, it is imperative to understand their point of view.

1.    Politics

Regulators ultimately work for the Ministers in charge of their agencies, which means that they ultimately also work for the larger public. These loyalties are keenly felt by most civil servants. When a project or type of project becomes contentious, the potential political implications will make the agency very conservative.

Entire offices can be involved in responses to letters of complaint from the public, particularly regarding high-profile projects. Complaints from the proponent regarding time delays will be dealt with in a similar fashion. The preparation of letters, emails, briefing notes, and media lines is time consuming and, while staff are working on these, they’re not working on your project.
No civil servant ever wants to see their Minister be questioned in Parliament over a project they are working on, which tends to mean that certainty is prioritized over efficiency. Reasonably certain, particularly in high profile cases, will not be sufficient. If you can assure a regulator that you know exactly what is going on, understand the process and the reasons for it, and have fully considered the issues they are most concerned with, they are more likely to feel safe when signing their name to your project.

2.    Turnover

While the myth of the stable safe public service career is still alive and well, for most young civil servants this is no longer the case—in some Ministries more than others. It is possible for a front-line worker to spend a decade moving from one one-year contract to another, often resulting in changes in job title and description every April. Contract government workers often find the funding runs out for their employment around February or March and won’t be reinstated until May. If your main contact at a regulatory agency is a contract worker, it goes without saying that your project will be affected by this uncertainty. Some years, there will simply be no one on the job in late winter as the annual funding dries up and no new funding decisions have been made; progress will grind to a halt when an election is called; and the person you are consulting with today about the required structure of your field work program or hydrology analysis may not be the person evaluating the final work when it is done.

Try not to schedule crucial agency meetings or negotiations around year-end (April 1), as this is when staffing will be most severely affected. Avoid making agreements with regulators that are not likely to be approved of by his or her successor, if he or she is assigned to a different role and you are starting again with someone new.

Effective agency consultation is essential to gaining the approvals necessary for a successful project. The key to gaining regulatory support for a proposal is understanding the agency’s mandate and perspective.

Understanding Rural Community Dynamics: How to be a good neighbor

By Andrea McDowell

Rural communities are often tight knit with a strong sense of place identity and have a distinct culture. In these communities pressure from outsiders to change the status quo can result in the community banding together to fight in order to protect their values and ways of life. Wind power in rural communities can be seen as a push by governments to industrialize the rural landscape by outsiders who never become part of the community.

What is Place Identity?
Some rural communities develop a sense of self identity which may include more than an individual or family grouping, an identity that extends to all community members creating a communal identity. This identity appears to stem from a need to protect the community from outside disruptions such as loss of agricultural land to other types of land uses (such as wind development), urbanization, political agendas and policies, and as a way to protect rural values in the face of changing demographics and landscapes. 
It is important to understand rural dynamics, especially in a time where city centric policy is resulting in financial and political resources being allocated to address urban problems. Rural areas provide much of the requirements of life such as food and water, and most recently they contain vast tracts of land which are viewed as suitable for industries which have been forced out of larger cities. This changing social structure of rural communities may not be met with an adequate level of political or financial support.

How Place Identity Can Lead to Protectionist Networks
Communal identities are a form of insular networking which functions to protect ‘insiders’ and perceived community values and ways of life from external forces of change. Beggs, Hurlbert and Haines (1996) refer to this concept as community attachment, and Larsen (2004) describes this as Place Making.  Within these networks strong bonds occur and can lead to communities joining together for social change; in a case study of a resource dependent community in northern British Columbia Canada Larsen notes that the community members “… turned the act of place making into a tactic of resistance, using it to protest and, in some cases, defeat large-scale resource projects such as hydroelectric dams”. This bonding together of individuals over a place and an outside force which threatens that place can occur for many different reasons.  Harner (2001) examines how place identity is constructed through a relationship between landscapes and power relationships, and how these can be important in a time of political economic changes. The place identity either being created by or triggered by an exterior force and community support is required to protect the rural way of life. Larsen’s case study in British Columbia is based on this pretext, that the formation of protectionist networks is formed out of a sense of place and the need to protect that space from undesirable developments or actions.  Industrialization of rural landscapes can be a factor which may trigger community action through a strong sense of place identity and result in grass-roots movements to protect community values.

Wind Power Context
Wind power in Canada is a relatively new development in the rural landscape. In addition to the development of wind facilities in rural communities across the country rural communities are facing increased infrastructure demands as well as decreasing financial resources which can play a role into how wind developers are viewed by the community. It is important for wind developers to consider many factors when entering communities. 

As decisions on where to place wind developments are primarily resource based, it is difficult for many developers to choose communities which welcome such developments, and as is beginning to occur in some heavily developed areas of Ontario, communities which once welcomed wind developments are becoming fatigued with the sheer volume.

Below are some points which may help some developers, of even small projects, become better neighbours:

•    Understand the financial situation of your municipalities: It is important where possible to select communities which have the economic resources to handle all of the municipal approvals, inspections and consultations associated with permitting, constructing and operating a wind farm. Where this is not possible it would be a good gesture on the part of the developer to be prepared early on to provide support to the municipality to bring in third party consultants to assist in these items.

•    Participate in community events: Protectionist networks and place identity concentrate on ‘insiders’ and ‘outsiders’; it is therefore important that wind developers focus on integrating themselves into the communities that their projects will be a part of for 20 years or more. Examples of this include participation in summer and winter festivals, sponsoring sports teams, becoming members of local chamber of commerce,  and hiring local trades people to construct and operate the project.

•    Do some background research: Learn about the history of the community; you may never be considered a true insider, but learning about the roots of the community, how other developers may have upset community members, how other industries may have become insiders, etc. may help you to integrate and be good neighbours.

•    Operate in good faith: Be honest, up front and open with municipalities and all members of the community at every stage of the project.

•    Have a community liaison: If possible this should be someone who is already a community member who understands the development process, as well as the communities needs.

Sources:

Beggs, J. Hurlbert, S. & Haines, V. (1996). Community Attachment in a Rural Setting: A Refinement and Empirical Test of the Systemic Model. Rural Sociology, 61(3), 407-426.
Cloke, P. Milbourne, P. & Thomas C. (1997). Living Lives in Different Ways? Deprivation, Marginalization and Changing Lifestyles in Rural England. Transactions of the Institute of British Geographers, New Series, 22(2) 210-230.
Harner, J. (2001) Place Identity and Copper Mining in Sonora, Mexico. Annals of the Association of American Geographers, 91(4) 660-680.
Larsen, S. (2004). Place Identity in a Resource-Dependent Area of Northern British Columbia. Annals of the Association of American Geographers, 94(4), 944-960.

Archaeology and Cultural Heritage Assessments without panic

By Andrea McDowell

Given the focus put on Natural Heritage and Public Consultation in the Class EA and REA processes, it’s easy to let the archaeological and cultural heritage assessments slide. This can be dangerous, as weather restrictions are every bit as real for archaeology as for natural heritage; it’s easy for a last-minute change to a layout to derail a project if the archaeological study has not been properly planned. Following are a few things to keep in mind:

1. Plan on snow
It’s tempting to hope for good weather and plan your archaeological field surveys later in the fall or earlier in spring, but if Mother Nature has a long winter in mind, you could find your work and your project delayed by a season or three. Fields not only need to be clear of snow and crops, they need to be recently ploughed and weathered for at least a few weeks. Give yourself enough time to get the project location ploughed and weathered well before there is a chance of snow in the fall, or you could be waiting until April or May to get the field work done.

2.    Plan on layout changes
No matter how final your layout is today, there is always the possibility that it will be less final tomorrow. New noise receptors, new natural heritage information, new agency guidelines, new turbine model specs, geotechnical studies, and newly endangered species all have a way of shifting final turbine locations and roads by a few to a few hundred metres when you can least afford new field studies. Try to give yourself the space to move project components later when you need to by surveying a much larger area than you plan to use. If the budget allows it, you may want to consider having entire usable fields surveyed, as a single pass at the beginning over a large area is much less expensive than multiple smaller passes later on when project components shift.

3.    Plan on agency delays
Archaeological studies can take several months to review, revise, and receive confirmation letters for. Anticipate at least seven months between the submission of the report and receipt of the MTCS sign-off.

4.    Plan on a cultural heritage study
It’s tempting to push back against the requirement for a cultural heritage study, particularly if you are in a relatively undeveloped area with few apparent cultural heritage resources. However, cultural heritage studies typically cost less than $10,000, can be completed in a few weeks at any time of year, and take less time for agency review than archaeological studies do. They are typically the least troublesome part of any energy project approval application. Unless your project truly cannot afford the six weeks from contract signature to MTCS confirmation letter, consider completing the cultural heritage study before the MTCS requests it.

New Air Emission Performance Standards Proposed by Federal Government

A regulatory proposal for Mulit-Sector Air Pollutants Regulations was recently published in the Canada Gazette on June 7, 2014. The proposed regulations would apply to non-utility boilers and heaters, engines, and cement manufacturing.   These would be the first ever national air pollutant emission standards for major industries.

If passed, the proposed regulations may require your facility to be subjected to new air emissions performance standards (which may involve retrofitting existing equipment), testing requirements, reporting requirements, and in some cases, the requirement to install a continuous emissions monitoring (CEM) system. A list of facilities targeted by the proposed regulations is provided in Table 1.
The proposed regulations are available open for comment or objection until August 6, 2014. Information on how to provide comments or notice of objection is provided in the Canada Gazette.

Table 1 – Facilities Subject to Proposed Regulations

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Related Materials
Canada Gazette (http://www.gazette.gc.ca/gazette/home-accueil-eng.php)
Proposed Multi-Sector Air Pollutants Backgrounder (http://news.gc.ca/web/article-en.do?nid=853319)
Disclaimer: The information in this document should not be construed as legal or professional advice. ORTECH Consulting Inc. assumes no liability for any damages resulting from the use of this information by the reader.

Public Consultation—Making the MECP Happy

Dealing with the Ministry of Environment, Conservation and Parks (“MECP”), formerly Ministry of Environment and Climate Change (“MOECC”), Public consultation is an increasingly important part of environmental assessments and permitting in Ontario. And guidelines, even when they seem clearly described in documentation, are often shifting targets that make it hard for a proponent to know when they are done. Clearly, this is less important when the project is either not controversial or enjoys community support. However, a small but vocal minority of project opponents can make a project’s permitting phase much longer and much more expensive. Continuing public consultation until the local community is supportive of the project is often impossible; sometimes, no commitments except project withdrawal will make a community happy. What then?

1.    Engage as productively as possible with whoever will speak with you
Criticism—sometimes personal—is an inevitable part of public consultation for any controversial project. Unfortunately, from the perspective of government reviewers, it is not a sufficient reason to disengage. It is imperative to maintain a professional and respectful tone regardless of how the public treats the project team (although obviously, where laws are broken or if safety concerns are raised, involving security teams or the police may be appropriate). It is also imperative to keep ears open to the concerns underlying the invective, and try to provide relevant information and answer questions.
In addition, there will always be a brave few who are willing and able to speak with the project team about concerns and questions without personal attacks; find those people, and build relationships with them wherever possible.

2.    Go above and beyond, and be seen to go above and beyond
Technically, it may be enough to run one or two open houses with poster boards to fulfill legal requirements, but where there is considerable public concern about a project, this will be nowhere near enough to obtain project approval. You may need to consider extra meetings, or meetings in a different format (workshops, question-and-answer sessions, etc.). You may want smaller meetings with particular interest groups to air out their concerns more thoroughly. You may want to create a Community Liaison Council to give local community members an ongoing voice and role in the project. Consider other options, and be flexible within the constraints of your budget and timeline.

3.    Answer all questions promptly
Technically, it also may be sufficient to address concerns and questions in the Consultation Report or the Environmental Assessment Report, and not discuss with individual community members. However, this will increase anger in the community and in turn increase pressure on the not to approve the project.
Also, be sure to keep complete and accurate records of all consultation activities—emails, letters, phone calls, meetings, etc. Consider recording and transcribing public meetings in order to be able to demonstrate accurately and transparently what transpired later on. PDF all letters and emails, both incoming and outgoing, and file them so they can be easily found at a later date.

4.    Keep talking to the MECP about your consultation plans
If the MECP has ample opportunities to help you create or revise your consultation plan when problems first arise, they are far more likely to approve of what you’ve done later on. Keep talking to them. Warn them about issues or events that may lead the public to inundate them with complaints. Provide them with the project information they need to respond to complaints when they are received.

5.    Incorporate requested project changes wherever possible
It is tempting to treat public consultation like public relations, and make it a communications exercise where positive project messages are delivered to the community. While this is an important element of public consultation, it is in no way enough; from the perspective of government agencies, it is critical to listen to the community as well, and there is no better proof that you have listened than being able to point to changes to the project made as a result of public requests or information.

After the RFQ, What's Next?

By Andrea McDowell 

Before the RFP
The long-awaited Request for Qualifications (“RFQ”)  for the new Large Renewables Process (“LRP”) in Ontario is finally here, and developers are gearing up for their September 4th submissions.  The Ontario Power Authority  (“OPA”) then plans to notify qualified applicants by November 4th, and release the next steps in the process around November 4-11.

But wait! Those two months are best spent preparing for the next phase.

The RFQ document specifies timelines that will be allowed to developers between contract award and Commerical Operation Date (“COD”). Waterpower projects will receive eight years; on-shore wind receives four; and all other renewable project types receive three years to complete their projects through to operations. Under the initial Feed in Tariff (“FIT”) process, it took many developers three years just to submit their Renewable Energy Approval (“REA”)  Application to the Ministry of the Environment and Climate Change (“MOE”). Three or four years is not a lot of time to go through the entire process, receive an approval, wait out any appeals, construct the project and connect it to the grid. Any delays would be costly.

Fortunately, there is work that can be done prior to and during the Request for Proposals (“RFP”) process in order to streamline the projects and ensure that they proceed as efficiently as possible, once contracts are awarded. This work does not need to be extensive or time consuming, and can save a lot of time and money down the road.

1.    Public Consultation prep: What is your public consultation strategy? Who will you need to talk to? What local groups are likely to be for and against your project? Where do local politicians stand?
Do you have a policy in place for how you will interact with participants in your public consultation process? Is there a system to track and log your consultation and communication efforts?
Consultation is a priority issue for the Ontario government and the OPA for renewable projects going forward. You can get yourself ahead of the game by investing a little time and money now into properly structuring your consultation program and testing the waters.

2.    Noise and Odour Receptors: Since vacant lots will count as receptors, do you know where the property boundaries are? Have you identified where vacant lot receptors should be placed?
Finding out late in the game that a vacant lot noise or odour receptor will necessitate a change to your project layout could cause a delay of a year or more to your COD, if field work needs to be completed for the new design. The more you can do now to determine project layout constraints, the better position you will be in later.

3.    Natural Heritage: Are there any natural heritage features in the area known to be significant? If so, how will you incorporate them into your project design?
Most significant natural heritage features can be mitigated through the Environmental Impact Study, but not all. Significant wetlands and certain types of significant wildlife habitat often require changes to project layouts in order to ensure protection of the feature. While most of these will be uncovered during the Evaluation of Significance phase, knowledge of any known significant features will help you in your project planning process.

4.    Have you done a preliminary database review for Cultural Heritage, Archaeological, or Radiocommunications resources?
While cultural heritage and archaeological resources do not often require layout changes, mitigation measures can alter your schedule and construction costs. If it is possible to identify known issues in advance, you can incorporate that into your project planning.
Radiocommunications infrastructure, while it is not a required part of the REA process as it is under federal jurisdiction, can have a significant impact on project costs and layout if not properly accounted for. A database search will allow you to identify towers and pathways fairly early in the process and avoid unworkable layouts.

5.    What is your planned schedule? How does it compare with the experience of other developers who have gone through this process? How much space do you have for surprises?
Surprises will happen. Significant habitats will be found where you least want them; there will be a blizzard on the day of your final public meeting; your archaeological field work will be flooded out and need to wait until spring. Some leeway in the schedule to protect your COD and accommodate the unpredictable is your best bet to ensuring a successful REA process.

A year can go by in the blink of an eye when developing a renewable project, particularly when dealing with seasonal field work requirements and weather conditions. Any cost-effective work done now to better define the project and the eventual scope of work after contract award will be money well spent.

Your Facility may be selected for Environmental Inspection

Warning: Your Facility may be selected for Environmental Inspection

Based on recent correspondence from industry, it appears that the Ministry of the Environment and Climate Change (MOECC) may be conducting inspections of facilities included in their 2013 targeted  sectors. You have received this newsletter since, based on publicly available information, ORTECH has determined that your company may fall into one of these sectors.

A list of the 2013 target sectors from Schedule 5 of O. Reg. 419/05 is provided in Table 1 below.

The MOECC Environmental Officer will check to see if your facility has prepared an updated Emission Summary and Dispersion Modelling (ESDM) report that shows that your facility is in compliance with the new air emission standards that began to apply as of February 1, 2013. This report was to be prepared by that date.

What you need to know:

• Schedule 5 target sectors are subject to new air emission standards as of February 1, 2013
• Whether or not a facility falls into a Schedule 5 target sector depends on its North American Industry Classification System (NAICS) code
• The MOECC may have an incorrect NAICS code for your facility during their inspection – know your NAICS code beforehand so you can be sure that your facility is actually in a target sector (see link below for a list of NAICS codes and their description from Statistics Canada)
• An updated ESDM report assessing compliance with the new standards was to be prepared and kept on file as of February 1, 2013
• The ESDM report will need to be updated annual by March 31 of each year, beginning in 20134
• Your existing Certificate of Approval (CofA) or Environmental Compliance Approval (ECA) remains valid unless it has become out of date due to source changes.

Please contact Terry Lam at tlam@ortech.ca , or 905-822-4120 Ext. 223, if you would like more information on this subject.

Table 1 – 2013 Target Sectors (O. Reg. 419/05 Schedule 5)

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Some Useful Links:

• North American Industry Classification System (NAICS) Canada 2012 (Statistics Canada)
• ORTECH eNewsletter, March 2012: O.Reg. 419/05 Implementation of Newer Standards  (ORTECH)
• What to Expect when an Environmental Officer Inspects your Facility (MOE)

Disclaimer: The information in this document should not be construed as legal or professional advice. ORTECH Consulting Inc. assumes no liability for any damages resulting from the use of this information by the reader.

Ontario’s Dispersion Models Updates

Some of you may have already received pre-notification of the Ministry of Environment, Conservation and Parks (“MECP”), formerly Ministry of Environment and Climate Change (“MOECC”) (available at: http://www.ontario.ca/document/pre-notification-updates-ontarios-air-dispersion-models) ‘s intent to update Ontario’s Dispersion Models.  

We’ve been getting questions about how this may affect our clients. Although no formal notice has yet given by the MECP (and so we can’t yet say exactly what the implementation will look like), based on the pre-notice, the MECP will be adopting new model versions in October 2015. Accordingly, you may wish to follow developments on this front if you will be preparing an Emissions Summary and Dispersion Modelling ("ESDM") report or Environmental Compliance Approval ("ECA") Application with a planned submission date after October 2015.

Any questions, please contact: