Protection…or workaround?

There has been a great deal of confusion about whether wind power projects can be located on Prime Agricultural land, and exactly what prime ag land is No wonder—the IESO is still clarifying statements, even as late as Thursday September 25th with the release of yet another Q& A document.

Here, we’ve provided readers with excerpts from the IESO recent document, the Provincial Policy Statement or PPS, and the AMO toolkit for municipalities.

Here’s what yesterday’s IESO release says [emphasis ours]:

4. Projects Proposed to be Located in Prime Agricultural Areas
   4.1
   How does the definition of Prime Agricultural Area link with municipal Official
   Plans?
   The IESO is proposing revisions to the definition of Prime Agricultural Area in the draft LT2 procurement documents to better align with the intent of the June 6, 2024, ministerial letter. The revised definition will reflect that while the Provincial Planning Statement, 2024 defines what could, in principle, constitute a Prime Agricultural Area, the boundaries of any particular Prime Agricultural Area are designated by the applicable municipality or Northern planning board’s Official Plan.
   
   4.2
   For projects proposed to be located in Prime Agricultural Areas, when does an
   Agricultural Impact Assessment need to be completed and what documentation is required to be submitted to the IESO as part of proposal submission?
   Per the June 6, 2024, ministerial letter, jointly issued by the Ministry of Energy and Electrification and
   the Ontario Ministry of Agriculture, Food and Agribusiness (OMAFA), and confirmed in the November 28, 2024 ministerial directive, the IESO was given the policy direction that Proponents wishing to participate in the IESO’s procurements will need to 1)Demonstrate municipal support to locate on lands subject to municipal land use authority; and, 2) Where the project is located in Prime Agricultural Areas and is not a ground-mounted solar project, complete an Agricultural Impact Assessment (AIA) to the satisfaction of the municipality.
   Note: ground-mounted solar projects are prohibited in Prime Agricultural Areas, consistent with the
   June 6 ministerial letter.
   An AIA includes three components that may be completed in two separate stages under the LT2 RFP
   and Contract. The two stages are: 1) AIA Component One Requirement: Proposal Submission Requirement
   The AIA Component One Requirement considers ways to avoid potential impacts and is completed as part of the site selection process. Confirmation that the Proponent has satisfied the AIA Component One Requirement is reflected in the required form of Municipal Support Confirmation. 2) AIA Components Two and Three Requirement: Contractual Requirement
   While a Proponent or Supplier may choose to complete the AIA Components Two and Three
   Requirement at any point, subject to individual business decisions, the AIA Components Two and Three Requirement is required to be completed by the Supplier and confirmed to be satisfactory to the applicable Local Municipality within 18-months of Contract execution. The Supplier will be required to confirm to the IESO that the AIA Components Two and Three Requirement have been completed and reviewed to the satisfaction of the Local Municipality via Exhibit T: Form of AIA Confirmation Certificate of the LT2 Contract.
   For further FAQs regarding AIA’s please see the LT2 RFP Agricultural Impact Assessment Q&A.

The Provincial Policy Statement or PPS says

2.6 Rural Lands in Municipalities

1. On rural lands located in municipalities, permitted uses are:
   a) the management or use of resources;
   b) resource-based recreational uses (including recreational dwellings not intended as
   permanent residences);
   c) residential development, including lot creation, where site conditions are suitable for
   the provision of appropriate sewage and water services;
   d) agricultural uses, agriculture-related uses, on-farm diversified uses and normal farm
   practices, in accordance with provincial standards;
   e) home occupations and home industries; f) cemeteries; and g) other rural land uses

AND

4.3.2 Permitted Uses

1. In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related
   uses and on-farm diversified uses based on provincial guidance.
   Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall
   not hinder, surrounding agricultural operations. Criteria for these uses may be based on
   provincial guidance or municipal approaches, as set out in municipal planning documents, which
   achieve the same objectives.
2. In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm
   practices shall be promoted and protected in accordance with provincial standards.

AND

4.3.5 Non-Agricultural Uses in Prime Agricultural Areas

1. Planning authorities may only permit non-agricultural uses in prime agricultural areas for:
   a) extraction of minerals, petroleum resources and mineral aggregate resources; or
   b) limited non-residential uses, provided that all of the following are demonstrated:
2. the land does not comprise a specialty crop area;
3. the proposed use complies with the minimum distance separation formulae;
4. there is an identified need within the planning horizon identified in the
   official plan as provided for in policy 2.1.3 for additional land to
   accommodate the proposed use; and
5. alternative locations have been evaluated, and
   i. there are no reasonable alternative locations which avoid prime
   agricultural areas; and
   ii. there are no reasonable alternative locations in prime agricultural areas
   with lower priority agricultural lands.
6. Impacts from any new or expanding non-agricultural uses on the agricultural system are to be
   avoided, or where avoidance is not possible, minimized and mitigated as determined through an
   agricultural impact assessment or equivalent analysis, based on provincial guidance

The Association of Municipalities of Ontario or AMO has done a detailed summary of requirements to help municipalities who must wad through proposals from seasoned power developers, and make sure everything has been done correctly, while ensuring that communities will be protected.

From the Municipal Energy Procurement Toolkit is this section on protection of Prime Agricultural Land:

Agricultural Protection
Under LT2, ground-mounted solar projects are prohibited in prime agricultural areas. All other
LT2 projects proposed in prime agricultural areas are required to submit the IESO’s Pre-AIA
Submission Filing Requirement to the satisfaction of the municipality. This document outlines
how a project developer considered alternative locations and arrived at their chosen project site.
In addition, if a contract is awarded to a project located in a prime agricultural area, an
Agricultural Impact Assessment (AIA) must be completed by the proponent, and to the
satisfaction of the host municipality within 18-months of the IESO contract having been offered.
The Ministry of Agriculture, Food and Agribusiness has issued draft guidance on how to
complete and review an AIA and is preparing additional guidance to support the LT2
procurement.
The IESO has provided guidance on AIAs and how they should be addressed under the
procurement process. In particular, municipalities should be aware that there is not a requirement
for an AIA to be submitted, reviewed, and approved by a municipality until 18 months after a
contract is issued. This means that a full AIA may not be available prior to a municipality making
an MRSPS decision. However, as part of the MRSPS process, developers must provide
alternative locations for the project prior to the MRSPS in case the original proposed site cannot
be approved under the AIA. The template MRSPS from the IESO includes a requirement for
municipalities to verify that these alternative locations have been identified.
Resources Available to Support Land Use Planning and Siting
Considerations

• Ontario Ministry of the Environment, Conservation and Parks
  o Renewable Energy Approvals
  o Technical Guide to Renewable Energy Approvals
• Ontario Ministry of Natural Resources
  o Renewable Energy Project Approval and Permit Requirements
• Independent Electricity Systems Operator
  o Agricultural Impact Assessment Questions and Answers
• Ministry of Energy and Electrification
  o Ministerial Directives Issued to the IESO for LT2

It’s important to read all these in detail, to know what municipalities should ask for before considering a Municipal Support Resolution.

REMARKS

IESO advises proponents that the municipal Official Plan or OP is the final authority on land use.  This is an indication of ignorance of planning principles and hierarchy of authorities.

The PPS 2024 clearly instructs municipal planners to amend their OPs to protect Prime Agricultural Land.  If a municipality’s OP conflicts with PPS 2024, the PPS will prevail in decision-making until the OP is updated.

When a proponent presents a project that is located in whole or part within a PAA they are required to prepare an AIA to the satisfaction of the municipality.

The first step in preparing an Agricultural Impact Assessment is to research alternative sites for turbines outside the PAA.