Regulatory Law Chambers logo

Hydro-Québec Application for the Hertel-New York Interconnection Power Line Project Under Section 248 of the Canadian Energy Regulator Act, OF-Fac-IPL-Q016-2022-01 01

Link to Decision Summarized

Facilities – Electricity

Application

Hydro-Québec (“HQ”) applied for a permit for a project designated as the Hertel-New York Interconnection Power Line, which involves building and operating an underground 400 kilovolt (“kV”) direct current (“DC”) transmission line approximately 58 kilometers (“km”) long, from the Hertel substation in La Prairie, Quebec to an interconnection point at the Canada-United States border (with New York State) under the Richelieu River. The proposed international power line will enable HQ to provide New England with up to 1250 megawatts (“MW”) of power at 400 kV DC (the “Project”).

Decision

The CER approved the application, with conditions, and issued electricity Permit EP-306.

Pertinent Issues

S 248 of the Canadian Energy Regulator Act (“CER Act“) provides that the CER must, subject to s 8 of the Impact Assessment Act, issue a permit on application, except where the Governor in Council (“GIC”) designates a proposed international power line (“IPL”) for certification pursuant to s 258 of the CER Act. The CER reviews a permit application, before determining whether to recommend designation to the GIC for assessment as a certificate or to issue the permit, in accordance with the criteria in s 257 for the CER Act.

The CER determined that no further process was required and, as a result, it did not recommend the GIC to designate the application for a certificate process. The CER was satisfied that the construction and operation of the Project will not have any unacceptable effects on other provinces, that the Project is not likely to cause significant adverse environmental effects and that consultation has been adequate.

The CER found that HQ’s program and public engagement efforts were appropriate for the scope and scale of the Project and that HQ has responded to the public concerns received through the provincial comment period, including proposing mitigation measures to address those concerns.

The CER found that there has been adequate consultation and accommodation, and that the effects of the Project on the rights of Indigenous Peoples are of low severity that can be effectively mitigated. The CER also found that the issuance of a permit under section 248 of the CER Act is consistent with section 35 of the Constitution Act, 1982 and the honour of the Crown.

The CER was of the view that the route selection and the criteria used to determine the route were acceptable and appropriate given the scope and scale of the Project.

Regarding the facilities’ design, the CER found that the Project makes use of sound engineering practices with respect to the structural design, layout, equipment selection, specifications and protection system.

HQ stated that the drilling site at the Canada-United States border crossover point is located in an environmentally sensitive area and that HQ plans to perform a horizontal directional drilling (“HDD”) to install the cable in order to avoid the environmentally sensitive area. The CER found that the clay deposit in the area is of high sensitivity to disturbance and vibration, and that it may pose a challenge to surface stability when disturbed. As a result, the CER imposed a condition, which requires HQ to file a geohazards assessment report that considers the geohazards associated with the proposed HDD installation. In addition, the CER imposed another condition, which requires HQ to file an execution and drilling fluid management plan that include the mitigation measures for the risks mentioned in the HDD feasibility report before the start of HDD activities.

The CER was of the opinion that the Project will not have a negative impact on the reliability of the bulk power system as long as some modifications are performed prior to operation. The CER imposed a condition requiring HQ to perform the necessary modifications to existing HQ system components to maintain reliability.

The CER was of view that the Project operation limits should be stated on the permit to require HQ to operate the IPL within the limits for which it was designed, which will also require HQ to apply to the CER to modify those limits, should HQ decide to operate the line in deviation from the line intended operation limits.

In making its determination on the economic feasibility of a proposed project and related facilities, the CER generally assesses the need for the project and the likelihood of the project being used at a reasonable level over its economic life. The CER concluded that the Project is responding to market needs and that there is currently adequate supply of electricity available to be delivered.

The CER found that HQ demonstrated that it has the ability to finance the construction and operation of the Project and that HQ has sufficient financial strength to finance the future abandonment of the Project. The estimated costs of the Project were $1.15 billion ($500 million for the construction of the transmission line and $650 million for work at the Hertel substation).

The CER found that the Project is not likely to cause significant environmental effects given: the nature and scope of the Project and the mitigation and avoidance measures proposed by HQ; the fact that 95% of the chosen route is on a public right-of-way along existing roads and highways; the recommendations made in the Quebec’s investigation and public hearing report regarding the Project; and the conditions imposed by the CER.

The CER identified that the construction, operation and maintenance of the Project may require an authorization pursuant to paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act. As a result, and pursuant to a memorandum of understanding (“MOU”) between the CER and Fisheries and Oceans Canada (“DFO”), the CER referred the Richelieu River crossing to the DFO with respect to the impacts on fish and fish habitat. According to the MOU, the DFO may transfer the file to the CER so that it can conduct a more in-depth analysis of the impacts on fish and fish habitat or conduct an assessment of impacts on fish and fish habitat under the Fisheries Act and the Species at Risk Act. Consequently, the CER asked the DFO to confirm whether one or more authorizations are required under paragraphs 34.4(2)(b) or 35(2)(b) of the Fisheries Act for some of the proposed work. The CER also imposed a condition requesting HQ to file with the CER a copy of the authorization(s) in line with paragraph 34.4(2)(b) and paragraph 35(2)(b) of the Fisheries Act or a letter of advice, if an authorization is not required.

The CER expressed an expectation that Project monitoring will encompass all environmental elements, including the effectiveness of wetland restoration since the Project is expected to cause a temporary loss of approximately 6.6 ha of wetlands, and a permanent loss of approximately 0.6 ha. The CER imposed conditions requiring HQ to file an environmental protection plan for the Project and conduct long-term monitoring until the affected areas are reclaimed.

Related Posts

Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8

Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8

Link to Decision Summarized Download Summary in PDF Administrative Law – Judicial Review v. Statutory Appeal Application Ummugulsum Yatar (“Ms. Yatar”) contested the denial of her insurance...