Facilities – Solar Generation
In this decision, the AUC approved an application from Solar Krafte Utilities Inc. (“Solar Krafte”) to construct and operate a power plant designated as the Strathmore Solar Project, and to connect the proposed power plant to the Alberta Interconnected Electric System (collectively, “the Project”).
Application Details
The Project will have a total generating capability of 40.5 MW and will connect to Fortis’ distribution system via AltaLink Management Ltd.’s Strathmore 151S Substation, located directly north of the project boundary. Solar Krafte included in its application a participant involvement program (“PIP”), a noise impact assessment (”NIA”), a solar glare hazard analysis report, an environmental protection plan (“EPP”) including mitigations, and a letter from Alberta Environment and Parks (“AEP”) Wildlife Management.
Sur-Reply Argument – Procedural Issues
Cyber Investments Ltd. (“Cyber”) opposed the project and argued that Solar Krafte had deliberately split its case in argument to deny Cyber the opportunity to respond to material aspects of its case. The AUC acknowledged that Solar Krafte introduced new evidence in its reply argument. The AUC noted it did not support this practice as it could lead to procedural unfairness. However, the AUC found that any prejudice associated with the introduction of the new evidence was largely mitigated by the filing of Cyber’s sur-reply.
Material Issues
Inclusion of Capital Power and Procedural Fairness
Despite a request from Cyber, the AUC did not incorporate additional process steps to reflect the conditional sale of the project by Solar Krafte to Capital Power. The AUC did provide Cyber the opportunity to file a submission that detailed its concerns with Capital Power being added as an applicant. Regarding procedural fairness, Cyber raised concerns regarding its inability to ask information requests of Solar Krafte and Capital Power.
The AUC was not persuaded that the addition of Capital Power as an applicant changed the project scope or the facilities approvals being requested. In the AUC’s view, Cyber failed to demonstrate that the decision to add Capital Power as an applicant and proceed with its consideration of the project without allowing further information requests prejudiced Cyber’s participation in the proceeding.
Consultation
The AUC found that Solar Krafte’s consultation methods had presented opportunities for potentially affected stakeholders, including Cyber, to understand the nature of the application. Further, the information requests Cyber asked of Solar Krafte were focused on Cyber’s areas of concern and were issued by Cyber’s legal counsel. The AUC considered that Cyber was able to understand the nature of the application enough to identify its specific areas of concern. While Solar Krafte was ultimately unable to address or resolve Cyber’s concerns, the AUC was satisfied that Solar Krafte’s participant involvement program achieved the purpose of consultation.
Municipal Land Development
Cyber purchased its lands adjacent to the project lands in 2005. Cyber submitted that it intended to develop its lands as a mixed-use development with both residential and commercial components, which it had called the Legacy Creek Development Concept (“Legacy Creek”).
The lands the Strathmore Solar Project would be sited on are owned by the Town of Strathmore (the “Town”). In March 2018, Solar Krafte and the Town agreed to a long-term lease for the lands, with the intent of Solar Krafte to develop a solar farm on the lands. The Town’s current municipal development plan (MDP-2014) showed a mix of highway commercial, residential, and industrial land uses for the subject lands. Under the current land use bylaw (“LUB”), the existing land use in the area was a mix of designations.
Cyber raised concerns that the proposed project would be inconsistent with the MDP-2014 and that construction of the project would impact its ability to develop its proposed Legacy Creek development.
The AUC took note of Cyber’s correspondences with the Town which stated that Cyber, a private landowner, could have applied to the Town to amend the current zoning of its lands to allow for it to proceed with its Legacy Creek development, as doing to would be in line with the MDP-2014. The AUC was not convinced that the prospect of a future zoning amendment would negate the uses of the Town’s land as designated.
The AUC found that the Project was consistent with the existing land use zoning bylaws and is supported by the Town.
AUC Findings on Development Impacts
The AUC noted that Section 619 of the Municipal Government Act provides guidance on how to resolve conflicts between municipal approvals and those issued by various provincial regulators including the AUC. Section 619 states:
619(1) A licence, permit, approval or other authorization granted by the NRCB, ERCB, AER, AEUB or AUC prevails, in accordance with this section, over any statutory plan, land use bylaw, subdivision decision or development decision by a subdivision authority, development authority, subdivision and development appeal board, or the Municipal Government Board or any other authorization under this Part.
The AUC stated that section 619 recognizes the need for consistent regulation of utility facility projects, including power plants, across the province. While the provision provides that an approval of the AUC will prevail over a conflicting municipal planning instrument, it does not prohibit, or otherwise prevent, the AUC from having regard for such instruments when deciding on an application.
The AUC disagreed with Cyber’s contention that considering a project’s compliance, or non-compliance, with municipal planning requirements results in improper sub-delegation. Rather, consideration of whether a project complies with municipal planning instruments is one of a number of factors that the AUC may consider, on a case by case basis, when assessing whether approval of a project is in the public interest. However, the AUC is not obliged to question or consider the adequacy of the Town’s municipal development application process or how it considered the Project when it approved the development permit.
Property Valuation
Cyber raised concerns that the Project would negatively affect the value of its lands. The AUC found the property value evidence relied upon by Cyber was of limited value because it had been predicated on an uncertain development scenario. The property value estimated relied upon was premised upon several contingent events not under Cyber’s control.
Given the speculative nature of Cyber’s Legacy Creek development, the AUC was not persuaded to consider Cyber‘s future development plans when assessing valuation impacts. Therefore, the AUC was not convinced that it should deny the application based on a potential impact on the future value of Cyber’s lands.
Additional Issues
Irrigation
Regarding irrigation, the AUC noted Cyber’s general concerns regarding its ability to access water from the nearby irrigation system. The AUC further noted the concerns that approval and construction of the Project could result in incremental irrigation costs for Cyber as a result of routing limitations for the irrigation services associated with the Project.
While Cyber had yet to formalize an agreement with Western Irrigation District (“WID“) for irrigation services, the evidence before the AUC was that such an agreement remains possible. The parties were in agreement that there would be an incremental cost if Cyber’s lands would be serviced from water lines along the southern boundary of the Project. The agreement between Solar Krafte and WID would require Solar Krafte to be responsible for these incremental costs. As such, the AUC finds that this agreement would mitigate Cyber’s concerns regarding irrigation water access to an acceptable degree.
Stormwater Runoff and Drainage
Regarding stormwater runoff and drainage concerns raised by Cyber, the AUC acknowledged that the proposed project features could have a potential drainage impact.
Consequently, the AUC imposed a condition on the approval. The condition provided Capital Power with two alternatives but required that Capital Power develop and finalize a site servicing plan and a drainage and stormwater management plan in consultation with the Town before commencing construction.
Emergency Response
Cyber raised concerns that Solar Krafte did not have a finalized site-specific emergency response plan for the Project and had not addressed its fire-related concerns during the consultation. The AUC found no persuasive evidence that the proposed Project would likely result in increased fire risk or an increase in other safety risks for Cyber’s attendees or any other stakeholder in the area. In response to concerns raised by Cyber, the AUC did impose a condition that required Solar Krafte to develop and implement a site-specific emergency response plan for the Project.
Reclamation and Abandonment
Cyber raised concern that any failure by Solar Krafte to reclaim the Project land would have a direct impact on Cyber and its investment in that land.
The AUC noted that there were no requirements or authority for it to require reclamation deposits from power plant approval holders. The AUC considered several factors when assessing potential reclamation liability as part of its overall public interest assessment of a Project.
Solar Kraft committed to meet the AEP Conservation and Reclamation Directive for Renewable Energy Operations and to restore the Project site to substantially the same condition as it was at the commencement date of the lease. The AUC accepted these commitments and found they satisfied concerns regarding reclamation.
Solar Glare, Noise and Visual Impact
Cyber raised concerns regarding solar glare, noise, and visual impacts. Regarding noise issues, the AUC relied on the submitted NIA in accepting that the Project would comply with Rule 012. The AUC considered that the noise contribution from the Project would be minor.
Notwithstanding the prediction of zero glare impact, the AUC wanted to ensure that any glare associated with the Project would be addressed by Capital Power in a timely manner. As a result, the AUC imposed further conditions on the approval requiring Capital Power to take specific measures to minimize glare. The conditions further required Capital Power to file a report detailing complaints and concerns it would be made aware of regarding solar glare during the first year of operation.
Concerning visual impacts to Cyber, the AUC stated that it was too early for visual mitigation to be installed, and did not find it necessary to condition its approval on the installation of mitigative landscaping features.
Overall AUC Findings
For the reasons noted, the AUC found that subject to the imposed conditions, the approval of the Project would be in the public interest.
