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Capstone Infrastructure Corporation Buffalo Atlee Wind Farm, AUC Decision 25100-D01-2021

Link to Decision Summarized

Wind – Facilities


In this decision, the AUC approved applications from Capstone Infrastructure Corporation (“Capstone”) filed on behalf of BA1 Wind GP Corp., BA2 Wind GP Corp., and BA3 Wind GP Corp. to construct and operate Buffalo Atlee Wind Farm 1 (“Buffalo Atlee 1”), Buffalo Atlee Wind Farm 2 (“Buffalo Atlee 2”), and Buffalo Atlee Wind Farm 3 (“Buffalo Atlee 3”) and to connect them to the FortisAlberta Inc. electric distribution system at three locations.

Introduction

This project was acquired by Capstone from MAXIM Power Corp.(“MAXIM”), who had received approval for Buffalo Atlee 1 and 3 but added Buffalo Atlee 2 as a third phase of the project and reduced the number of turbines at Buffalo Atlee 1 and 3. As there was no buildable area application for Buffalo Atlee 2 filed by either MAXIM or Capstone, the AUC considered its previous Approval 22755-D02-2018 expired and rescinded. In this proceeding, the AUC considered Capstone’s applications as new. This also gave Capstone an opportunity to further mitigate the environmental effects of the project that had been previously pointed out.

Interveners

The AUC received statements of intent to participate from Dustin Aebly; Danny Aebly; Special Area No. 2; Jenner Wind 1 GP Inc., on behalf of Jenner 1 LP (Jenner 1); and Jenner Wind LP (Jenner 1 and Jenner Wind LP are collectively referred to as the Jenner Entities). The Jenner Entities have an approved by not yet constructed Jenner Wind Power Project (Jenner 1) and two proposed Wind Power Projects (Jenner 2 and Jenner 3). Standing was granted to Dustin Aebly, Danny Aebly, and the Jenner Entities and the AUC held a written hearing to consider the applications. The AUC also granted Special Area No. 2 (the rural municipality governed by the Special Areas Board and within which the project would be located), full rights to participate in the hearing, but noted that it would not be eligible to make a local intervener costs claim for its participation.

Concerns of Special Area No. 2 and Adjacent Landowners and Occupants

Special Area No. 2 raised the concern that the project’s design does not meet the minimum setback requirements of Special Areas – 2, 3 and 4 Land Use Order Ministerial Order No. MSL:007/15 (the “Land Use Order”) and that since there is no written agreement with the affected landowner, the project would not receive a municipal development permit.

Although the AUC noted that it could consider Special Area No. 2’s statement, it did not file any evidence or argument in this proceeding for the AUC to review.

Dustin Aebly stated that Capstone did not follow the minimum 550-meter setback between turbines and the boundary of his properties as per the Land Use Order and that this would affect his cattle operations. Cattle grazing, decreased land values, noise pollution, groundwater, shadow flicker, and the effect on birds of prey that help control rodents were also on his list of concerns. Similarly, Danny Aebly is a landowner of adjacent lands, one of which is 200 to 300 meters directly south of Turbine T3 of Buffalo Atlee 2. He indicated that he did not consent to that location and that he is concerned about cattle grazing and property values.

The AUC noted that neither Dustin Aebly nor Danny Aebly filed evidence or argument to substantiate their respective concerns. Therefore, the AUC could not reasonably draw any conclusions or make any findings regarding the project’s adverse effects on their concerns.

In its response to Special Area No. 2, Capstone filed considerable argument demonstrating that Buffalo Atlee 1 is in compliance with the Land Use Order, the consent of Dustin and Danny Aebly is not required, and that in any event, having regard to Section 619 of the Municipal Government Act, and Borgel v Paintearth (Subdivision and Development Appeal Board), outstanding issues with the municipal planning process are not an impediment to their applications. The AUC stated that the issue regarding setbacks and consent is up to the Special Areas Board to decide, and the AUC does not have authority to enforce the setback or reduce its requirements.

Participant Involvement Program

Capstone retained LandSolutions LP to conduct the consultation process for the project. Their participant involvement program included information packages mailed to community stakeholders, phone calls with local residents and stakeholders, one-on-one meetings, and two public open houses.

The Jenner Entities claimed that Capstone failed to meaningfully and sufficiently engage with them regarding their concerns. Capstone replied that both the Jenner Entities and their parent company Potentia Renewables Inc. received all of the mailouts, and asserted that their involvement in the process was for financial gain.

The AUC was satisfied that Capstone met all applicable Rule 007 requirements for participant involvement. They were not persuaded by the Jenner Entities’ concerns and did not find that the fact Capstone was unable to resolve them is of concern.

Wake Effect

The Jenner Entities filed a wake loss study report prepared by Westwood Professional Services Inc. (“Westwood”). Westwood stated that it modeled the wake effect of the Buffalo Atlee Wind Farm on the Jenner 1 Project. Westwood noted that when Jenner 2 and Jenner 3 were not included, the Buffalo Atlee Wind Farm would produce a total deficit in the Jenner 1 annual energy production of 2,613.1 megawatt hours per year (MWh/yr), which represents approximately 0.5 per cent of the Jenner 1 total energy production. The Jenner Entities stated that the present value of the loss of revenue resulting from the deficit would be greater than $1.5 million over the lifetime of the Jenner 1 Project.

However, Capstone also stated that based on the predominant wind direction, the Buffalo Atlee Wind Farm would not be located upwind of the Jenner 1 Project. It submitted that if the AUC has the jurisdiction to consider wake effect, the Commission must consider that the Buffalo Atlee Wind Farm would be more adversely affected by wake from the Jenner Projects than the Jenner Projects would be by wake from the Buffalo Atlee Wind Farm. Capstone put forward evidence of a 1.7 per cent or 3,297 MWh/yr adverse wake effect impact on the Buffalo Atlee Wind Farm.

The AUC also stated that although they appreciate the parties’ respective submissions on legal rights associated with wake effect from other jurisdictions, there was at the time no regulatory requirement to address wake effect on adjacent wind projects in Canada. The Jenner Entities failed to establish that either a public interest associated with, or a legal right to protection from wake effects vis-à-vis proximate wind developers exists in Alberta. Accordingly, it was not necessary for the AUC to consider the evidence offered by the parties on the necessity for or the reasonability of the mitigation measures requested by the Jenner Entities, or whether symmetrical mitigation should be considered.

Noise

Capstone retained Golder Associates Ltd. (“Golder”) to perform a noise impact assessment (“NIA”) for the project. Golder predicted that the project would comply with Rule 012 and that there would be no low-frequency noise issues related to the project. The Jenner Entities retained RWDI Consulting Engineers and Scientists (“RWDI”) to review that same NIA. Dustin Aebly also expressed concerns about noise but did not provide any evidence or argument.

There was some significant back-and-forth regarding the fact that the NIA established that the permissible sound level was 40 decibels (within acceptable parameters) when in fact, it was measured at 40.3 decibels and rounded down to 40. There was a dwelling identified as R1 in the NIA that RWDI suggested may be in an area with too high a noise level. Capstone submitted that the Buffalo Atlee Wind Farm turbines would use special operating modes to mitigate high noise levels. As such, the following condition to approval was imposed:

  • The approval holder shall implement the required operating modes for the project turbines, as described in the project noise impact assessment, as of the date the project turbines commence operation.

The higher than assumed noise level at R1 lead to the following condition to approval being imposed for Buffalo Atlee 1:

  • BA1 Wind GP Corp. shall conduct a post-construction comprehensive sound level survey, including an evaluation of low-frequency noise, at Receptor R1. The post-construction comprehensive sound level survey must be conducted under representative conditions and in accordance with Rule 012: Noise Control. Capstone shall file a report with the AUC presenting the measurements and summarizing the results of the post-construction comprehensive sound level survey within one year after the Buffalo Atlee 1 Wind Farm commences operations.

The Jenner Entities stated that the higher noise levels of the Buffalo Atlee Project meant that their own noise parameters were greatly reduced. The AUC noted that that is simply a part of doing business.

Environmental Effects

AECOM Canada Ltd. (“AECOM”) was retained by Capstone to complete an environmental evaluation of the Buffalo Atlee Wind Farm. In a renewable energy referral report issued by Alberta Environment and Parks (“AEP”) on November 20, 2019, AECOM assessed that the project has an overall high risk for wildlife and wildlife habitat based on the project being situated on native grassland and the high occurrence of species at risk, their habitat features, and their dependence on native grassland.

On March 23, 2020, the AUC put this proceeding in abeyance to allow Capstone to mitigate these risks. AECOM subsequently prepared an amendment to their original evaluation proposing a revised layout for the project as well as additional fieldwork. As a result of the new layout, the direct effects to native grassland were reduced by 56 percent, would infringe on the setbacks of five fewer non-temporary wetlands, and that all infrastructure within setbacks for raptor species nests was removed. As a result, the project went from high risk to a moderate risk ranking.

The AUC was satisfied that the project’s potential effects on wildlife and wildlife habitat, including the risk associated with impacts to native grassland, will be adequately mitigated with the diligent implementation of Capstone’s various commitments and through the imposition of the conditions stipulated

Conclusion

Subject to the conditions outlined in the decision the AUC found that Capstone satisfied the requirements of rules 007 and 012, and approval of the project is in the public interest having regard to the social, economic, and other effects of the project, including its effect on the environment.

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