Facilities – Amendment Application – Environment – Species at Risk, Wildlife Act
In this decision, the AUC considered applications from C&B Alberta Solar Development ULC (“CBA”) to amend the previously-approved Tilley Solar Power Plant design, extend the construction completion date of the power plant, transfer ownership of the power plant to CS Tilley Solar GP Inc. and connect the power plant to the FortisAlberta Inc. electric distribution system (“Amended Project”). The AUC found that approval of the proposed amendment was not in the public interest. Having denied the application for amendment, it did not find it necessary to determine the remainder of the applications.
Background
CBA was granted approval to construct and operate the Tilley Solar Power Plant (“Power Plant”) in the Brooks area, pursuant to Approval 22297-D02-2017.
CBA applied for approval of the Amended Project. An updated wildlife renewable energy referral report from Alberta Environment and Parks Wildlife Management (“AEP”) was not included in the application. The AUC considered this a major deficiency, put the application in abeyance, and granted an interim extension of the approval until a final decision was issued.
CBA subsequently filed a letter from AEP, in which AEP advised of an amendment to its original referral report for the power plant.
Legislative Scheme
The AUC considered the applications under sections 11, 18, 19 and 23 of the Hydro and Electric Energy Act (“HEEA”) and section 17 of the Alberta Utilities Commission Act (“AUC Act”). In accordance with section 17 of the AUC Act, the AUC noted it must assess whether approval of the applications is in the public interest, having regard to the social, economic and environmental effects of the proposed power plant with the changes proposed in the amendment application.
While the AUC is responsible for approving the construction and operation of solar power plants under the HEEA, AEP is responsible for the overall management and regulation of wildlife in Alberta. The AUC’s Rule 007 requires applicants for solar power plant approvals to file a referral report signed by an AEP wildlife biologist.
When assessing the environmental impacts of a project, the AUC considers an applicant’s adherence to AEP’s Wildlife Directive for Alberta Solar Energy Projects and other related AEP guidelines or standards, as well as AEP’s assessment of the project’s environmental impacts as reflected in referral reports.
Power Plant Amendment Application
CBA requested approval to reduce the total generating capability of the facility from 24 megawatts (“MW”) to 21 MW and vary the design and equipment of the power plant. The proposed changes would occur within the previously-approved site boundary.
In the original AEP referral report for the power plant, dated December 20, 2016, and filed by CBA in this proceeding, AEP ranked the project as an overall moderate risk to wildlife and wildlife habitat on the basis that the project was proposed to be partially sited (11.22 hectares) on native grasslands and located 430 metres from the Tilley B Reservoir. AEP also considered the mitigation measures proposed by CBA.
CBA retained Stantec Consulting Ltd. to conduct wildlife surveys for the original and amended projects. Between April and October 2016, Stantec conducted pre-construction wildlife surveys that were provided to AEP and informed the original referral report. However, to ensure that “data adequately defines the risk of the [amended] project for wildlife,” surveys are only considered current within two years of the last survey date. AEP requires that surveys be maintained as current until construction is complete. In the original referral report, AEP also stipulated that “[i]f a species of management concern is identified, AEP requires that areas immediately adjacent to key wildlife habitats be avoided by appropriate setbacks as outlined in the Recommended Land Use Guidelines for Protection of Selected Wildlife Species and Habitat within Grassland and Parkland Natural Regions of Alberta.”
Stantec updated its wildlife surveys between April and June 2019. The surveys identified two ferruginous hawk nests near the amended project – one located approximately 290 metres and another 1,345 metres from the project. In June 2019, Stantec provided the results of the updated surveys to AEP.
On November 15, 2019, AEP issued an updated referral report for the amended project based on the new surveys conducted by Stantec. In its updated referral report, AEP identified a number of concerns and assessed the amended project as a high risk to wildlife and wildlife habitat:
AEP-WM has reviewed the changes detailed in the Project Update and concludes that the overall Project risk to wildlife has changed from the moderate risk ranking, as described in the Referral Report to a high risk.
The updated referral report referenced the new ferruginous hawk nest located 290 metres from the amended project area. Ferruginous hawks are listed as an endangered species under the Alberta Wildlife Act and as a threatened species under the federal Species at Risk Act.
CBA committed to implementing all mitigation measures recommended by AEP in its updated referral report.
In the updated referral report, AEP determined that the amended project, as proposed, represented a significant infringement of a setback specific to an endangered species. In addition, in correspondence between AEP and CBA, AEP stated that the proposed infringement of the setback from the nest of an endangered species is a significant risk.
AUC Findings
The AUC found that the amended project posed a significant risk to wildlife and wildlife habitat: it was partially sited on native grasslands, was in close proximity to the Tilley B Reservoir, and also infringed, for 710 metres, into the 1,000 metre setback of an active ferruginous hawk nest. In its updated referral report, AEP stated that the active ferruginous hawk nest is an important wildlife feature, as ferruginous hawks are listed as endangered under the Alberta Wildlife Act and as a threatened species under the federal Species at Risk Act. Furthermore, active ferruginous hawk nests are protected from disturbance under Alberta’s Wildlife Act, and Standard 100.1.5 of the Wildlife Directive for Alberta Solar Energy Projects requires a setback of at least 1,000 metres from active nest sites.
The AUC acknowledged CBA’s proposed mitigation and monitoring plans to reduce impacts to the nest, and in particular, CBA’s commitment to “[twice-weekly] nest checks during project construction until June 10, 2020, or until the nest becomes active”.
The AUC was not satisfied, however, that the proposed alternative mitigation and monitoring plans would adequately mitigate the specific risks to the nest site and wildlife habitat a
ssociated with the amended project.
Even if CBA implemented its suggested mitigation strategies and, in so doing, was successful in not disturbing the nest during the construction of the amended project, the AUC considers the potential impact on wildlife habitat located within the 1,000-metre setback to be unacceptably high.
Based on the evidence before it, the AUC found that CBA’s proposed mitigation plan could not adequately mitigate the specific risks associated with the amended project. In reaching this determination, the AUC relied on AEP’s decision to revise the overall project risk from a moderate risk ranking in the original referral report to a high risk ranking in the updated referral report, following consideration of the project amendment, which identified a new ferruginous hawk nest located 290 metres from the power plant.
The AUC was not satisfied that approval of the amendment was in the public interest and therefore denied this application.
The AUC’s denial was without prejudice to any future application in which CBA proposes to construct and operate the power plant in a location where the environmental effects are reduced or can be adequately mitigated by measures proposed by CBA in consultation with AEP.
Time Extension, Ownership Transfer and Interconnection Applications
CBA applied for approval to extend the construction completion date of the Power Plant from March 31, 2019, to March 31, 2021. CBA also sought to transfer the approval for the Tilley Solar Power Plant to CS Tilley Solar GP Inc., a wholly-owned subsidiary of CBA. Lastly, CBA requested approval to connect the power plant to FortisAlberta Inc.’s 25-kilovolt distribution system.
AUC Findings
The current power plant approval included a condition that power plant construction must be completed by March 31, 2019. On March 28, 2019, the AUC granted an interim extension of that condition of approval until a final decision on the applications was reached. Because the AUC made a final decision not to approve the amended project proposed by CBA, the interim time extension also expired without construction having commenced. As a result, the construction completion date deadline expired without compliance, and the existing power plant approval was therefore considered to have expired and will be rescinded by the AUC.
Given the above findings, the AUC considered that it was unnecessary to determine the applications for the time extension, ownership transfer and connection order associated with the amended project.
Decision
The AUC found that approval of the amendment application was not in the public interest. The AUC denied the amendment application and consequently did not determine the associated applications for time extension, ownership transfer and the connection order.
