EDP Renewables SH Project GP Ltd. · 2019-12-20 · Decision on Request for Review and Variance of...

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Decision 24819-D01-2019 EDP Renewables SH Project GP Ltd. Decision on Request for Review and Variance of AUC Decision 22665-D01-2018 Sharp Hills Wind Project December 20, 2019

Transcript of EDP Renewables SH Project GP Ltd. · 2019-12-20 · Decision on Request for Review and Variance of...

Page 1: EDP Renewables SH Project GP Ltd. · 2019-12-20 · Decision on Request for Review and Variance of AUC Decision 22665-D01-2018 Sharp Hills Wind Project EDP Renewables SH Project GP

Decision 24819-D01-2019

EDP Renewables SH Project GP Ltd. Decision on Request for Review and Variance of AUC Decision 22665-D01-2018 Sharp Hills Wind Project December 20, 2019

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Alberta Utilities Commission Decision 24819-D01-2019 EDP Renewables SH Project GP Ltd. Decision on Request for Review and Variance of AUC Decision 22665-D01-2018 Sharp Hills Wind Project Proceeding 24819 Applications 24819-A001 and 24819-A002 December 20, 2019 Published by the:

Alberta Utilities Commission Eau Claire Tower 1400, 600 Third Avenue S.W. Calgary, Alberta T2P 0G5 Telephone: 310-4AUC (310-4282) in Alberta 1-833-511-4AUC (1-833-511-4282) outside Alberta Email: [email protected] Website: www.auc.ab.ca

The Commission may, within 30 days of the date of this decision and without notice, correct typographical, spelling and calculation errors and other similar types of errors and post the corrected decision on its website.

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Decision 24819-D01-2019 (December 20, 2019) i

Contents

1 Decision .................................................................................................................................. 1

2 Introduction ........................................................................................................................... 1

3 Background ........................................................................................................................... 2

4 The Commission’s review process ....................................................................................... 3

5 Grounds for review and hearing panel findings ................................................................ 5 5.1 Views of EDP ................................................................................................................. 6 5.2 Views of the Clearview Group ....................................................................................... 7 5.3 Review panel findings .................................................................................................... 8

6 Variance ................................................................................................................................. 9 6.1 Introduction .................................................................................................................... 9 6.2 Views of EDP ............................................................................................................... 10 6.3 Views of the Clearview Group ..................................................................................... 12 6.4 Review panel findings .................................................................................................. 13

7 Decision ................................................................................................................................ 15

Appendix 1 – Proceeding participants ...................................................................................... 17

Appendix 2 – Ruling on whether the Commission will consider the late-filed review application, dated September 4, 2019 ............................................................ 18

Appendix 3 – Ruling on standing on the review and variance application, dated September 4, 2019 ............................................................................................ 19

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Decision 24819-D01-2019 (December 20, 2019) 1

Alberta Utilities Commission Calgary, Alberta EDP Renewables SH Project GP Ltd. Decision on Request for Review and Variance Decision 24819-D01-2019 of AUC Decision 22665-D01-2018 Proceeding 24819 Sharp Hills Wind Project Applications 24819-A001 and 24819-A002

1 Decision

1. In this decision, the Alberta Utilities Commission considers whether to grant an application filed by EDP Renewables SH Project GP Ltd. for a review and variance of a condition of approval set out in Decision 22665-D01-2018,1 and for a variance of the corresponding condition contained in Power Plant Approval 22665-D02-2018.2

2. The Commission has decided to grant the review application and vary the condition for the reasons set out below.

2 Introduction

3. On March 8, 2019, EDP Renewables SH Project GP Ltd. (EDP) filed the following applications in Proceeding 24401:3

(i) An application for approval of amendments to Approval 22665-D02-2018 (the Approval) and Permit and Licence 22665-D03-2018 authorizing the construction and operation of the Sharp Hills Wind Project; and

(ii) An application (the review application) for review and variance of a condition of approval set out in Decision 22665-D01-2018 (the Decision) and a variance of the corresponding condition (Condition 20) in the Approval, together with a request for permission to file the review application outside of the 60-day time limit established in Rule 016: Review of Commission Decisions.

4. The Commission issued notice of the applications on April 17, 2019. In a subsequent letter,4 the Commission determined that it would hear the applications separately, and created this proceeding, Proceeding 24819, to consider the review application. Because the two proceedings deal with the same project, have been processed according to similar timelines and were considered by a common Commission panel, the Commission has released this decision concurrently with its decision on EDP’s power plant amendment application, Decision 24401-D01-2019.

1 Decision 22665-D01-2018: EDP Renewables SH Project GP Ltd. – Sharp Hills Wind Project,

Proceeding 22665, Applications 22665-A001 to 22665-A004, September 21, 2018. 2 Power Plant Approval 22665-D02-2018, EDP Renewables SH Project GP Ltd. – Sharp Hills Wind Project

Proceeding 22665, Applications 22665-A001 and 22665-A002. 3 Proceeding 24401: Sharp Hills Wind Project Amendments, Applications 24401-A001 and 24401-A002. 4 Exhibit 24401-X0048, AUC letter to registered parties -Separation of applications for amendment and review

and variance.

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5. As a preliminary matter, the Commission ruled in a letter dated September 4, 2019, that it would exercise its discretion to accept the review application notwithstanding that it had been filed outside of the 60-day time limit established in Rule 016.5 The Commission also determined that it would combine the two stages of the review and variance process, as it was likely that there would be some commonality of evidence and submissions on the preliminary and substantive questions.

6. The Commission received a statement of intent to participate in the review proceeding from the Clearview Group. The Commission determined in a ruling dated September 4, 2019, that the Clearview Group did not satisfy the standing test with respect to the review application.6 However, the Commission granted the Clearview Group participation rights on the basis that it had relevant information that could assist the Commission in deciding the review application.

7. The Commission established a process for the review proceeding allowing each party to file submissions addressing both stages of the review application, followed by reply submissions by EDP. The Commission considers that the record for this proceeding closed on October 15, 2019, the date on which reply submissions were due.

8. In this decision, the members of the Commission panel who authored the Decision will be referred to as the “hearing panel” and the members of the Commission panel considering the review application will be referred to as the “review panel.”

9. In reaching its determinations, the review panel has reviewed the pertinent portions of the Decision, the Approval and relevant materials comprising the record of this proceeding and of Proceeding 22665. Accordingly, references in this decision to specific parts of a proceeding record are intended to assist the reader in understanding the review panel’s reasoning relating to a particular matter and should not be taken as an indication that the review panel did not consider all relevant portions of the several records with respect to the matter.

3 Background

10. In the Decision, issued on September 21, 2018, the hearing panel granted approval to EDP to construct and operate the Sharp Hills Wind Farm and the Sedalia 363S Substation, subject to certain conditions. EDP seeks review and variance of one specific condition stipulating the methodology of a construction and post-construction wildlife-monitoring program for sharp-tailed grouse, including grouse chicks.

11. The hearing panel’s findings with respect to sharp-tailed grouse monitoring are located at paragraph 246 of the Decision:

Given the number of leks and associated sharp-tailed grouse habitat in the project area, the Commission finds there is a need for project-specific monitoring of sharp-tailed grouse. Accordingly, the Commission will include the conditions set out below as part of the project’s approval, to address its potential impacts on birds, including sharp-tailed grouse.

5 Exhibit 24819-X0049, AUC Ruling – Consideration of late filed review application. 6 Exhibit 24819-X0050, AUC Ruling – Standing on review and variance application.

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12. The conditions referred to in paragraph 246 include Condition 20, which is the subject of this review application. Condition 20 is located at paragraph 546 of the Decision and is repeated in the Approval. It reads as follows:

EDP shall complete four years of monitoring (one year during construction and the first three years of operation) during the sharp-tailed grouse lek season assessing the effects of construction and operation of the project on the lek use, nesting success/productivity, and chick survival rates at each of the sharp-tailed grouse lek sites and surrounding nesting habitat present in the project area. The data collected shall be analyzed and presented in an interim report at the end of two years and a final report at the end of the monitoring period. Both reports shall be submitted to the Commission and AEP. If, following its review of the interim report and/or the final report, AEP determines that the project has had an adverse effect on sharp-tailed grouse breeding and survival in the project area, then the Commission directs EDP to consult with AEP about any additional project mitigation measures that may be required.

13. In its review application, EDP requested that the review panel vary the Decision by replacing Condition 20 in the Decision and in the Approval with an alternative condition that it proposed.

4 The Commission’s review process

14. The Commission’s authority to review its own decisions is discretionary and is found in Section 10 of the Alberta Utilities Commission Act. That act authorizes the Commission to make rules governing its review process and the Commission established Rule 016 under that authority. Rule 016 sets out the process for considering an application for review.

15. The review process has two stages. In the first stage, a review panel must decide whether there are grounds to review the original decision. This is sometimes referred to as the “preliminary question.” If the review panel decides that there are grounds to review the decision, it moves to the second stage of the review process where the Commission holds a hearing or other proceeding to decide whether to confirm, vary, or rescind the original decision.

13. In this decision, given the nature of the errors alleged, the review panel has decided both the preliminary question and the variance question.

14. Section 4(d) of Rule 016 requires an applicant to set out in its application the grounds it is relying on which may include the following:

(i) The Commission made an error of fact, law or jurisdiction made by the hearing panel;

(ii) Previously unavailable facts material to the decision, which existed prior to the issuance of the decision in the original proceeding but were not previously placed in evidence or identified in the proceeding and could not have been discovered at the time by the review applicant by exercising reasonable diligence;

(iii) Changed circumstances material to the decision, which occurred since its issuance.

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(iv) For a decision on an application for a hydro project, power plant, transmission line or gas utility pipeline:

a. The decision was made without a hearing or other proceeding, or

b. A hearing was held and notice was not given to the person.

15. Section 6(3) describes the circumstances in which the Commission may grant a review as follows:

6(3) The Commission may grant an application for review of a decision, in whole or in part, where it determines, for an application for review pursuant to subsections 4(d)(i), (ii) or (iii), that the review applicant has demonstrated:

(a) In the case of an application under subsection 4(d)(i), the existence of an

error of fact, law or jurisdiction is either apparent on the face of the decision or otherwise exists on a balance of probabilities that could lead the Commission to materially vary or rescind the decision.

(b) In the case of an application under subsections 4(d)(ii) or 4(d)(iii),

respectively, the existence of:

(i) Previously unavailable facts material to the decision, which existed prior to the issuance of the decision in the original proceeding but were not previously placed in evidence or identified in the proceeding and could not have been discovered at the time by the review applicant by exercising reasonable diligence; or

(ii) Changed circumstances material to the decision, which occurred since

its issuance

that could lead the Commission to materially vary or rescind the decision,

or (c) For an application for review pursuant to subsection 4(d)(iv), the review

applicant has shown that the decision on the initial application may directly and adversely affect the review applicant’s rights.

16. In its review application, EDP relied on sections 4(d)(ii) and 6(3)(b)(i) of Rule 016, which refer to previously unavailable material facts as a basis for a review of the Decision and Condition 20. Given this, the review panel permitted both EDP and the Clearview Group to file material on the record of this review application that was not on the record of the original proceeding and available to the hearing panel. This is consistent with how the Commission has considered review and variance applications of this nature.7

7 See for example: Decision 23203-D01-2018: MCL Development Corp. and Horse Creek Water Services Inc.,

Decision on Preliminary Question, Application for Review of Horse Creek Water Services Inc. General Rate Application, Proceeding 23203, Applications 23203-A001 and 23203-A002, May 22, 2018; Decision 21030-D01-2016, Decision on Review Application of the Métis Nation of Alberta of the

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17. In Decision 2012-124,8 the Commission addressed the role of a review panel and concluded that it should apply the following principles to its consideration of the review applications before it:

• First, decisions of the Commission are intended to be final; the Commission’s rules recognize that a review should only be granted in those limited circumstances described in Rule 016.

• Second, the review process is not intended to provide a second opportunity for parties with notice of the application to express concerns about the application that they chose not to raise in the original proceeding.

• Third, the review panel’s task is not to retry the … application based upon its own interpretation of the evidence nor is it to second guess the weight assigned by the hearing panel to various pieces of evidence. Findings of fact and inferences of fact made by the hearing panel are entitled to considerable deference, absent an obvious or palpable error.9

18. These principles have been endorsed by the Commission in many subsequent decisions. The review panel has reviewed these principles, finds them to be appropriate in the circumstances of this review proceeding and has applied them in its consideration of the relevant evidence and argument.

5 Grounds for review and hearing panel findings

19. In its review application, EDP asserted the existence of previously unavailable facts material to the Decision, not previously in evidence that could not have been discovered by EDP through the exercise of reasonable diligence, that could lead the Commission to materially vary or rescind the condition. In its submissions, these previously unavailable facts were discussed under four broad headings as follows:

(i) Condition 20 would require disproportionate effort and unreasonable cost relative to the value of the information obtained (more specific submissions were offered concerning grouse disturbance, the cost of acquiring land access to give effect to the condition, and that Condition 20 is an unprecedented requirement in North America);

(ii) Condition 20 would result in poor study design and not meaningfully inform future impact assessments;

(iii) Insufficient consultation between the AUC and Alberta Environment and Parks (AEP) prior to the imposition of Condition 20; and

(iv) Condition 20’s objectives can be achieved in a more appropriate way.

Standing Ruling for the Fort McMurray West 500-kV Transmission Project, Proceeding 21030, Applications 21030-A001 to 21030-A015, April 21, 2016.

8 Decision 2012-124: AltaLink Management Ltd. and EPCOR Distribution & Transmission Inc., Decision on Request for Review and Variance of Decision 2011-436 Heartland Transmission Project, Proceeding 1592, Applications 1607924-1, 1607942-1, 1607994-1, 1608030-1, 1608033-1, May 14, 2012.

9 Decision 2012-124, paragraph 31.

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20. EDP submitted that these grounds support a finding that previously unavailable facts warrant that Condition 20 be varied pursuant to sections 4(d)(ii) and 6(3)(b)(i) of Rule 016.10

21. The review panel has considered the basis for a review and variance in the sections below.

5.1 Views of EDP 22. In raising ground 4(d)(ii) in its review application, EDP submitted that the implications and consequential impacts of the requirements imposed by Condition 20 were not placed in evidence in the original proceeding and that EDP could not have discovered these implications and impacts by exercising reasonable diligence in the circumstances. EDP submitted that had evidence been provided on these matters in the original proceeding it would have led the hearing panel to materially vary Condition 20 by replacing it with an alternative condition.

23. EDP stated that Condition 20 resulted from a general recommendation raised by the Clearview Group in favour of long-term follow-up research, and that no evidence guided the hearing panel with respect to an appropriate methodology or study design.11 EDP submitted that it was unclear whether the hearing panel had sufficient evidence about the relative costs and benefits of Condition 20.12

24. EDP submitted that no individual wind power project in North America has been directed to conduct the type of chick survival monitoring and nesting success research stipulated in Condition 20. To EDP’s knowledge, all comparable studies on the effects of wind energy development on grouse species have been conducted with the participation and funding of multiple organizations due to the significant cost associated with the research.13 In EDP’s view, requiring it to bear the sole financial burden for this research is unprecedented and unreasonable.14

25. EDP estimated the cost to implement Condition 20 over four years to be $1 million. It broke down the yearly cost to $150,000 for the capture program, $40,000 for nest monitoring, $40,000 for brood monitoring and $20,000 for analysis and reporting.15 While EDP acknowledged that it may be possible to reduce the cost of compliance by collaborating with other researchers or public agencies, it maintained that it was unclear that such support could be obtained, or whether it would be permissible from the Commission’s perspective.16

26. EDP stated that in order to comply with Condition 20, it would have to capture, tag and track grouse. Capture would entail using nets and traps, thereby causing disturbance to grouse

10 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF pages 9-14. 11 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF page 5. 12 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF pages 9-10. 13 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF page 10. 14 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF page 10. 15 Exhibit 24819-X0054, Appendix B-WEST Report regarding Condition 20 Variance Request, PDF page 7. 16 Exhibit 24819-X0053, Appendix A-EDPR Submissions in support of Review and Variance, PDF page 9.

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and potentially disrupting activity at the leks from which grouse would be captured.17 Individual birds would be tagged with a solar-powered telemetry tracking unit, which would remain attached to the grouse for the four-year duration of the monitoring program.18 Through the tracking data, nests would be located and would have to be disturbed to determine clutch size and stage of incubation. A subsequent visit to nesting sites would be required to determine nesting success. EDP expressed that it was unclear whether AEP would grant research permits for such an effort.19

27. EDP noted that nesting sites could be located on land outside of the project area, and stated that it was questionable whether EDP could obtain necessary access to non-project lands. Retrieving the trackers could also prove challenging in the event of grouse mortality outside of the project area.20

28. EDP submitted that the quality of information that would be gathered did not warrant the potential disturbance to individual grouse captured for this research. EDP submitted that the study would be inadequate to assess potential project impacts in the absence of baseline data on sharp-tailed grouse nest success and chick survival or the development of a control site. EDP stated that securing access to an adequate control site would have unreasonable cost implications.21

29. In EDP’s view, long-term lek monitoring would be a more appropriate condition for the project. EDP stated that lek monitoring has been proven as an adequate monitoring method to understand the overall effects of wind power projects, and that lek success is an appropriate proxy for nest success and chick survival. EDP proposed an alternative condition that it submitted would achieve the purpose of Condition 20 and enable the implementation of mitigation measures, while also ensuring that the financial viability of the project is not unduly prejudiced. EDP proposed the alternative condition language quoted at paragraph 44 below.

5.2 Views of the Clearview Group 30. The Clearview Group submitted that EDP failed to satisfy the test for review and variance outlined in Rule 016 as the information cited in support of its application was previously available and could have been discovered during the original proceeding by exercising reasonable diligence.22

31. The Clearview Group referred to the evidence of Cliff Wallis, its environmental consultant, filed in the original proceeding. Mr. Wallis cited the Proett study, a 2017 study23 which found that the probability of an individual sharp-tailed grouse chick surviving to 42 days decreased by 50 per cent when there were 10 or more wind energy turbines located with 2.1 kilometres of its nest. Relying on this study, Mr. Wallis recommended that chick survival 17 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF pages 10-11. 18 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF pages 10-11. 19 Exhibit 24819-X0053, Appendix A-EDPR Submissions in support of Review and Variance, PDF page 7. 20 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF page 11. 21 Exhibit 24819-X0053, Appendix A-EDPR Submissions in support of Review and Variance, PDF page 10. 22 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 4. 23 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 22.

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monitoring be included as a condition should the project be approved.24 The Clearview Group argued that EDP’s reply evidence in the original proceeding took the position that the monitoring recommended by Mr. Wallis was not necessary, but did not cite cost or study design in support. In the Clearview Group’s view, EDP failed to explain why it was unable to lead such evidence in the original proceeding.25

32. Mr. Wallis also filed evidence with respect to the review application. Mr. Wallis stated that EDP’s cost estimate of $1 million to implement Condition 20 seemed unreasonable. He maintained that it was highly unlikely that the costs of the monitoring required by Condition 20 would be prohibitive, and stated that EDP was not prevented from utilizing a more cost-effective approach. By way of example, Mr. Wallis again referred to the Proett study and noted that other previous chick survival studies, including some involving a greater breadth of data collection, had successfully relied only on government agency funds, foundation grants or NGO [non-governmental organization] support.26

33. Commenting on EDP’s submission that Condition 20 would result in a poor study design, Mr. Wallis stated that lek monitoring only addresses one aspect of the impacts of the project on sharp-tailed grouse, and that more specific linkages may be found with a chick survival study throughout the broader breeding complex.27 He emphasized that researchers have noted the importance of monitoring chick survival, which is a strong driver of population change for many bird species.28 Additionally, Mr. Wallis submitted that because monitoring techniques continue to evolve, there is no reason to believe that the monitoring required by Condition 20 cannot be completed in a safe and humane way.29

34. Mr. Wallis also addressed EDP’s submission that Condition 20 is unprecedented. He stated that regardless of whether Condition 20 is without precedent, it is nevertheless necessary based on the location of the project in an important sharp-tailed grouse breeding complex. He noted that it is not unusual for unprecedented conditions to arise from the regulatory process.30

5.3 Review panel findings 35. At paragraph 3 of its review application, EDP submitted that previously unavailable facts regarding the practical effect of Condition 20 are material to the Decision, and had these facts been identified in the original proceeding it is likely that the hearing panel would not have imposed Condition 20 in its current form.

36. The review panel finds that EDP has provided evidence on the methodology required to give effect to Condition 20 that could lead the Commission to materially vary its findings on the appropriate means by which to monitor the impact of the project on sharp-tailed grouse populations and nesting success. In particular, the review panel is persuaded that new information demonstrating the potential for compliance with Condition 20 to result in

24 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF pages 2-3. 25 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 5. 26 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 19. 27 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF pages 19-20. 28 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 9. 29 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 18. 30 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 21.

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disturbance to grouse and lekking activity, and negative impacts on chick survival, warrants that Condition 20 be revisited.

37. Turning to whether the evidence on the methodology required to give effect to Condition 20 could have been discovered by EDP through the exercise of reasonable diligence, the review panel notes that while Mr. Wallis made a recommendation in the original proceeding that sharp-tailed grouse chick survival monitoring be included as a condition should the project be approved,31 the record supports the submission of EDP that that there was no evidence before the hearing panel recommending a particular methodology or study design for such monitoring. Nor was there evidence with respect to whether monitoring needed to be carried out at nesting sites to be effective. Accordingly, the review panel disagrees with the argument of the Clearview Group, that evidence with respect to the implications and consequences of adopting a chick survival monitoring program was previously available and could have been discovered by EDP during the original proceeding by exercising reasonable diligence.

38. Given that a particular study methodology recommendation was not before the hearing panel, EDP could not have anticipated the need to advance evidence specific to the condition ultimately imposed, including the evidence advanced in the review proceeding relating to the shortcomings of chick and nest monitoring in the absence of pre-construction baseline data, the disturbance to grouse and lekking activity, and negative impacts on chick survival and the suitability of lek counts as a reasonable proxy for the purpose of assessing population changes. The review panel is satisfied that had this information been put before the hearing panel at the time of the original proceeding, it could have led the hearing panel to materially vary Condition 20. Accordingly, EDP’s request for review on this ground is allowed.

39. Given this finding it is unnecessary for the review panel to consider the other arguments advanced by EDP in support of its application. Having met the first stage of the review and variance application, the Commission will proceed to the second stage analysis of deciding whether to confirm, vary or rescind Condition 20.

6 Variance

6.1 Introduction 40. EDP submitted that 0.2 per cent of the project footprint overlaps with Alberta Environment and Parks’ recommended 500-metre setback from sharp-tailed grouse leks. The project infrastructure within the setback consists of belowground and overhead collector cables and a portion of one access road. No turbines are sited within 500 metres of leks.32

41. In the referral report filed by EDP in the original proceeding, AEP assessed the project’s risk to sharp-tailed grouse as moderate due to the presence of 17 sharp-tailed grouse leks recorded in the project area during 2016 and 2017 lek surveys. Given the number of leks and associated sharp-tailed grouse habitat in the project area, the Commission found there was a need for project-specific monitoring of sharp-tailed grouse.

31 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF pages 2-3. 32 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF page 3.

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42. Condition 20 of the approval, as approved by the Commission in the Decision, states as follows:

EDP shall complete four years of monitoring (one year during construction and the first three years of operation) during the sharp-tailed grouse lek season assessing the effects of construction and operation of the project on the lek use, nesting success/productivity, and chick survival rates at each of the sharp-tailed grouse lek sites and surrounding nesting habitat present in the project area. The data collected shall be analyzed and presented in an interim report at the end of two years and a final report at the end of the monitoring period. Both reports shall be submitted to the Commission and AEP. If, following its review of the interim report and/or the final report, AEP determines that the project has had an adverse effect on sharp-tailed grouse breeding and survival in the project area, then the Commission directs EDP to consult with AEP about any additional project mitigation measures that may be required.

43. EDP requested a variance to replace Condition 20 with an alternative condition that would grant EDP the option to either carry out a study on lek-attendance at leks located on land under EDP’s control, or make a financial contribution to a program to support grouse habitat protection. The Clearview Group submitted that Condition 20 is reasonable and should be maintained, but proposed a minor modification to Condition 20 to address EDP’s concerns.

6.2 Views of EDP 44. EDP submitted that the objective of Condition 20 can be achieved in a more appropriate way and proposed that the condition be varied as follows:

EDP shall study the effects of the Project on sharp-tailed grouse peak lek attendance (lek counts). A before-and-after-development and a control-impact study design shall be used to evaluate whether the Project is associated with reduced number of sharp-tailed grouse attending leks located near the facility, relative to those located farther from the Project. Lek counts shall occur at leks within 4 kilometers of installed wind turbines and which are located on land under EDP control. Lek counts will occur for one year during construction and the first three years starting the year after Project commercial operation. Alternatively, in lieu of this research program, EDP shall contribute $200,000 CAD to implement a compensatory mitigation off-set program to support sharp tailed grouse habitat protection.33

45. EDP submitted that long-term lek monitoring is an appropriate condition because it has been proven to be an adequate method for understanding the overall effects of wind power projects on sharp-tailed grouse populations. Lek monitoring studies in North America have demonstrated that lek success is an appropriate proxy for nest success and chick survival.34 EDP stated that it has collected pre-construction data on lek use and attendance which can be compared to data after construction of the project.

33 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF page 3. 34 Exhibit 24819-X0003, EDPR SHWP- Application to vary Condition 20 of Approval 22665-D02-2018

08MAR2019, PDF page 13.

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46. EDP submitted that its proposed condition achieves the purpose of the original condition, enables the implementation of mitigation measures to protect sharp-tailed grouse if required and does not unduly prejudice the financial viability of the project.

47. EDP determined that the cost of compliance with its proposed condition would be approximately $200,000 ($50,000 per year for four years);35 lek monitoring is expected to cost $40,000 per year and the analysis, $10,000 per year. In response to an information request, EDP clarified that of the 17 active sharp-tailed grouse leks observed in the project area, 16 of the leks are located within four kilometres of project turbines and three of these are located on land upon which EDP has lease agreements with landowners. 36 EDP clarified that the four-kilometre distance specified in its proposed condition is based on studies indicating that the majority of sharp-tailed grouse nesting and brooding occurs within 1.3 to 3.5 kilometres of leks. It confirmed that its proposed condition would only result in the monitoring of the three leks on land under EDP’s control.37

48. EDP retained Western EcoSystems Technology (WEST) to review its proposed condition and the Clearview Group evidence. WEST stated that a long-term, before-after-control-impact study is necessary to determine adverse effects on local sharp-tailed grouse caused by the project. It submitted that baseline (pre-construction) information has been collected on the number of individuals attending the 17 active leks within the project area, however, information relative to population fitness parameters, such as sharp-tailed grouse nesting and, brood success and chick and adult survival rates, has not been collected and construction is expected to begin prior to the 2020 breeding season. Accordingly, WEST explained that only inferences on population fitness parameters relative to wind turbines could be drawn as part of a post-development study.38

49. WEST submitted that annual lek counts satisfy the purpose of Condition 20, are commonly used to index trends in grouse populations and are useful to document population level responses to disturbances. While lek counts do not allow for the estimation of specific fitness parameters such as nesting and brood success, and chick and adult survival rates, they can be used to evaluate changes in the population, which are direct results of changes in fitness parameters leading to population growth or decline.39 WEST submitted that the purpose of Condition 20 is to determine whether the project is causing an impact to sharp-tailed grouse populations and that a chick survival rate study is not necessary to answer this question.40 It confirmed that land access for lek monitoring is preferred but not necessary, as lek surveys can be conducted aerially or from public roads.41

50. WEST disagreed with Mr. Wallis that the most appropriate methodology for monitoring chick survival would be similar to that used in Proett (2017), which involved methodology (e.g., capturing and radio-marking individual grouse) more suitable for determining brood success/survival. WEST stated that Condition 20 specifically refers to chick survival, and that 35 Exhibit 24819-X0053, Appendix A-EDPR Submissions in support of Review and Variance, PDF page 10. 36 Exhibit 24819-X0056, EDPR Response to AUC IR 1, PDF pages 2-3. 37 Exhibit 24819-X0056, EDPR Response to AUC IR 1, PDF pages 2-3. 38 Exhibit 24819-X0054, Appendix B-WEST Report regarding Condition 20 Variance Request, PDF page 3. 39 Exhibit 24819-X0054, Appendix B-WEST Report regarding Condition 20 Variance Request, PDF page 3. 40 Exhibit 24819-X0060, Sharp Hills Wind Project – Review of Evidence Provided by Mr. Cliff Wallis

October 2019, PDF page 2. 41 Exhibit 24819-X0054, Appendix B-WEST Report regarding Condition 20 Variance Request, PDF page 8.

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there are growing concerns that capturing, handling and marking chicks may negatively bias chick survival. It stated that in one study, the death of eight out of 308 chicks was caused by a transmitter, and that an additional 32 chicks died one day after capture.42 Additionally, because chick survival is likely to be negatively biased, an adequate control site using similar capture and handling techniques but without turbines would be necessary to evaluate the effects of the project on chick survival. WEST added that the Proett (2017) methodology is sufficient for evaluating brood success/survival (i.e., the probability that a female raised at least one chick), but not chick survival.43

51. EDP clarified that in proposing to implement a compensatory mitigation off-set program in lieu of a study, it was not proposing to create a sharp-tailed grouse habitat restoration program but contemplating contributing funds to primarily protect habitat through a conservation easement or similar legal agreement. The proposal to contribute funding to support sharp-tailed grouse populations would require additional analysis and consultation with interested parties, with the Alberta Conservation Association being a likely interested party.44

6.3 Views of the Clearview Group 52. The Clearview Group expressed support for maintaining Condition 20, stating that the current study requirements are appropriate, and that EDP’s proposed changes are unwarranted.

53. Mr. Wallis stated that a sharp-tailed grouse breeding area is vulnerable to human disturbances, and emphasized the importance of monitoring chick survival because it is a strong driver of population change.45

54. Mr. Wallis noted that the only study in evidence that was specifically conducted on sharp-tailed grouse was Proett (2017), which found no influence of wind turbines or roads on nest site selection or nest survival, but concluded that chick survival was negatively impacted to a significant degree. Mr. Wallis added that further research is required to determine if this impact applies on a wider scale or was only applicable to that specific study area. Mr. Wallis also noted that the limited research addressing the impacts of wind power projects on sharp-tailed grouse indicates the need for further investigation for projects sited in sensitive areas to acquire a better understanding of how sensitive populations are impacted by such projects.46

55. Mr. Wallis maintained that Condition 20 is reasonable and capable of being fully undertaken in a manner that is safe for sharp-tailed grouse, cost-effective, and that would provide additional evidence on the effect of developments such as the project on sharp-tailed grouse in Alberta.47 In the event that the Commission decided to vary Condition 20, Mr. Wallis disagreed with the alternative suggested by EDP and proposed a different variation:

Subject to approval from AEP, EDP shall complete four years of monitoring (one year during construction and the first three years of operation) during the Sharp-tailed Grouse lek season assessing the effects of construction and operation of the project on the use of each lek as well as on nesting success/productivity and chick survival rates on the

42 Exhibit 24819-X0054, Appendix B-WEST Report regarding Condition 20 Variance Request, PDF page 11. 43 Exhibit 24819-X0054, Appendix B-WEST Report regarding Condition 20 Variance Request, PDF pages 11-12. 44 Exhibit 24819-X0056, EDPR Response to AUC IR 1, PDF pages 3-4. 45 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF pages 9, 15. 46 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 20. 47 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 19.

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breeding complex. The data collected shall be analyzed and presented in an interim report at the end of two years and a final report at the end of the monitoring period. Both reports shall be submitted to the Commission and AEP. If, following its review of the interim report and/or the final report, AEP determines that the project has had an adverse effect on Sharptailed Grouse breeding and survival in the project area, then the Commission directs EDP to consult with AEP about any additional project mitigation measures that may be required.48

56. Mr. Wallis submitted that his proposed variation would reasonably achieve the intent of the original condition and still require monitoring of each lek, but potentially allow for a chick survival study on a sample of leks both close to and remote from turbines.49 Because not all leks would require chick survival monitoring, Mr. Wallis submitted that this variation could alleviate some of EDP’s concerns with costs.50

57. In response to EDP’s proposal to contribute $200,000 to a compensatory mitigation off-set program for sharp-tailed grouse habitat protection in lieu of conducting a research program, Mr. Wallis submitted that there is no indication that EDP has the capacity to successfully deliver meaningful habitat restoration for sharp-tailed grouse. Mr. Wallis stated that the complexity associated with the creation of a restoration plan has not been established and could be less practical and more complex than simply meeting Condition 20.51

58. The Clearview Group submitted that EDP’s alternative proposal of a payment to implement a “compensatory mitigation off-set program” demonstrates that the variance request is financially focused and has little to do with the design of a monitoring program.52

6.4 Review panel findings 59. As stated in the Decision, the purpose of Condition 20 of Approval 22665-D02-2018 is to monitor the project’s impacts on the local sharp-tailed grouse population. Decision 22665-D01-2018 and Condition 20 make specific reference to the monitoring of lek use, as well as nesting and breeding. The intent of the condition is for EDP to conduct a monitoring program and to work with AEP to implement any additional mitigation, monitoring and compensation measures that may be required.

60. The review panel finds that Condition 20 was too prescriptive in the absence of evidence on the methodology required to satisfy the condition and the related impacts. In particular, the review panel notes the lack of information on the potential health impacts of compliance with the condition on the species it was intended to protect. The review panel acknowledges the evidence of Mr. Wallis that because monitoring techniques continue to evolve, there is no reason to believe that the monitoring required by Condition 20 cannot be completed in a safe and humane way. However, no specific techniques other than those utilized in the Proett study were identified by Mr. Wallis or discussed in sufficient detail to address the concern identified.

61. Further, the review panel agrees with EDP that the post-construction population fitness parameter data gathered (e.g., chick survival rate, brood success) would be less effective for 48 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 4. 49 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 21. 50 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 28. 51 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 30. 52 Exhibit 24819-X0058, Submissions of the Clearview Group, PDF page 6.

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assessing the effects of the project on sharp-tailed grouse populations in the absence of having the same pre-construction baseline data for comparison. Additionally, based on the available evidence the review panel is satisfied that lek counts are a reasonable proxy for other population fitness parameters for the purpose of assessing changes to local sharp-tailed grouse populations, and that a chick survival rate study is not necessary to determine whether the project is affecting local populations. For all these reasons, the review panel is satisfied that Condition 20 should be varied.

62. Both EDP and the Clearview Group proposed alternatives to the condition. The review panel shares EDP’s view that long-term lek monitoring is an appropriate approach to address the intended purpose of Condition 20. This approach would balance the collection of data and the disturbance of sharp-tailed grouse in determining whether the project has an impact on the local sharp-tailed grouse population. Should AEP have concerns with respect to sharp-tailed grouse that arise as a result of EDP reporting that was committed to under the renewable energy referral report and the post-construction and monitoring plan,53 it can direct additional mitigation measures or monitoring requirements.

63. However, the review panel does not agree with the number of leks to be monitored under EDP’s proposal, and finds that the monitoring of the three leks on project-controlled land is not sufficient to assess the project’s impact on the local sharp-tailed grouse population in light of the number of leks and associated sharp-tailed grouse habitat in the project area. During its pre-construction surveys in 2016 and 2017, EDP identified 17 leks in the project area and collected data on lek use and attendance.54,55 Sixteen of the 17 leks identified in the 2016 and 2017 surveys are located within four kilometres of a proposed turbine.56 The review panel accepts EDP’s rationale for specifying a distance of four kilometres from installed turbines as being sufficient to assess impacts on nesting and brooding habitats, and finds that efforts should be made to monitor the 16 known leks located within that distance. The review panel is not persuaded that the absence of lease agreements for lands on which 13 of these 16 leks are located is prohibitive of the surveys required by this decision. It was Mr. Wallis’s evidence that the use of land agents is not mandatory and that, where necessary, EDP can request access from the landowner to conduct surveys. Notably, baseline (pre-construction) information was collected on the number of individuals attending the 17 active leks within the project area,57 and in this proceeding, WEST confirmed that land access for lek monitoring is preferred but not necessary, as lek surveys can be conducted aerially or from public roads.

64. The review panel agrees with the Clearview Group that EDP’s alternate approach to provide compensation in lieu of monitoring is insufficient to meet the objectives of Condition 20. In the circumstances of the project, the review panel does not consider that providing compensation is a meaningful proxy for monitoring sharp-tailed grouse populations. Monitoring is an important tool in facilitating the mitigation of adverse effects on the species.

53 Decision 22665-D01-2018: EDP Renewables SH Project GP Ltd. – Sharp Hills Wind Project,

Proceeding 22665, Applications 22665-A001 to 22665-A004, September 21, 2018, paragraph 220. 54 Exhibit 24819-X0054, Appendix B-WEST Report regarding Condition 20 Variance Request, PDF page 3;

Exhibit 24819-X0053, Appendix A-EDPR Submissions in support of Review and Variance, PDF page 12. 55 Exhibit 22665-X0007 Attachment 9 – Environmental Evaluation, Table 12, PDF page 48 and

Exhibit 22665-X0058.01, Attachment 7 – Environmental Evaluation, Table 6, PDF page 36. 56 Exhibit 24819-X0056, EDPR Response to AUC IR 1, PDF page 2. 57 Exhibit 24819-X0054, Appendix B-WEST Report regarding Condition 20 Variance Request, PDF page 3.

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7 Decision

65. The review panel hereby varies the Decision and the Approval by deleting Condition 20 in its entirety and replacing it with a modified version of the alternative proposed by EDP. Condition 20 is varied as follows:

EDP shall study the effects of the project on sharp-tailed grouse peak lek attendance (lek counts). A before-and-after-development and a control-impact study design shall be used to evaluate whether the project is associated with a reduced number of sharp-tailed grouse attending leks located near the facility, relative to those located farther from the project. Lek counts shall occur on a best efforts basis at the 16 leks located within four kilometres of installed wind turbines as referred to in paragraph 63. Lek counts will occur for one year during construction and the first three years of operation. The data collected shall be analyzed and presented in an interim report at the end of two years and a final report at the end of the monitoring period. Both reports shall be submitted to the Commission and to AEP. If, following its review of the interim report and/or the final report the Commission determines that the project has had an adverse effect on sharp-tailed grouse populations in the project area (i.e., lek counts), the Commission will direct EDP to propose to the Commission proportional mitigation measures and/or compensatory off-sets that may be required to address these effects.

66. The power plant approval is issued in Decision 24401-D01-2019 as Power Plant Approval 24401-D02-2019 – December 20, 2019.

Dated on December 20, 2019. Alberta Utilities Commission (original signed by) Carolyn Hutniak Panel Chair (original signed by) Anne Michaud Vice-Chair (original signed by)

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Neil Jamieson Commission Member

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Appendix 1 – Proceeding participants

Name of organization (abbreviation) Company name of counsel or representative

EDP Renewables Canada Ltd.

T.L. Oleniuk Clearview Group

G. Fitch

Alberta Utilities Commission Commission panel Carolyn Hutniak, Panel Chair Anne Michaud, Vice-Chair Neil Jamieson, Commission Member Commission staff

M. Anderson (Commission counsel) R. Watson (Commission counsel) V. Choy K. Wen A. Drolet

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Appendix 2 – Ruling on whether the Commission will consider the late-filed review application, dated September 4, 2019

Appendix 2 - AUC ruling dated 2019-09

(consists of 3 pages)

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Appendix 3 – Ruling on standing on the review and variance application, dated September 4, 2019

Appendix 3 - AUC ruling dated 2019-09

(consists of 4 pages)

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September 4, 2019

To: Parties currently registered on Proceeding 24819

EDP Renewables SH Project GP Ltd. Sharp Hills Wind Project Review and Variance Proceeding 24819 Applications 24819-A001 and 24819-A002

Ruling on whether the Commission will consider the late-filed review application

1. EDP Renewables SH Project GP Ltd. filed applications in Proceeding 24401 for:

i. Approval of amendments to the Sharp Hills Wind Farm and Sedalia 363S Substation; and

ii. Review and variance (R & V) of Condition 20 in Approval 22665-D02-2018,1 and theAlberta Utilities Commission’s consideration of the R & V application outside of the60-day time limit.

2. EDP originally filed both applications in a single proceeding. However, as noted inthe Commission’s recent correspondence,2 the Commission will be considering the amendmentand R & V applications separately. Proceeding 24819 has been created to consider the R & Vapplication.

3. The Commission issued a notice of applications for the original combinedproceeding (Proceeding 24401), and received submissions from the Clearview Group,Larry and Lorretta Oxamitny and the Bar X Ranch, all of whom indicated that they were partof the Clearview Group, and from Viola Olsen. Among other things, the Clearview Groupsubmitted that the Commission should reject the application for a review of Condition 20because the application was submitted outside of the 60-day deadline provided for inRule 016: Review and Variance of Commission Decisions.

4. As a preliminary matter, the Commission must decide whether it will exercise itsdiscretion to consider the late-filed R & V application. The Commission has authorized meto communicate its ruling.

1 Power Plant Approval 22665-D02-2018, Proceeding 22665, Applications 22665-A001 and 22665-A002, September 21, 2018.

2 Exhibit 24819-X0048, AUC letter to registered parties - Separation of applications for amendment and review and variance.

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Legislative background

5. The Commission’s authority to review and vary its decisions is found in Section 10 of theAlberta Utilities Commission Act, which states:

10(1) The Commission may in accordance with the rules made under subsection (2) review any decision or order made by it under this Act or any other enactment and after the review may confirm, rescind or vary the decision or order.

6. Section 10 also states that the Commission may make rules respecting the review of itsown decisions. The Commission established Rule 016 in accordance with this authority.Section 3(3) of Rule 016 states:

(3) An application for review of a decision must be filed within 60 days of the issuanceof the decision, unless otherwise authorized by the Commission.

7. Section 2 of Rule 016 states that “[n]otwithstanding sections 3 to 6 of this rule, theCommission may review a decision, in whole or in part, on its own motion at any time.” InDecision 2010-542,3 the Commission described the factors it may consider when deciding toreview one of its decisions under this section:

When considering whether to review one of its decisions pursuant to section 2 of Rule 016, the Commission may consider a number of factors including: the effectiveness of the original notice, the amount of time that has elapsed since the decision was issued, the nature of the interest that is affected by the decision, the nature of the concern or issue raised and the potential prejudice to the applicant and other interested parties. This list is not exhaustive as each determination must be made on a case by case basis taking into account the specific facts presented to the Commission.

8. Section 23(2) of the Alberta Utilities Commission Act provides that if a Commission rulerequires that an act, matter or thing be done within a specified time, the Commission may extendthe time when circumstances so require. Section 23 makes it clear that the Commission can makesuch an extension with or without notice.

Ruling

9. The Commission set the 60-day time limit for review submissions prescribed bySection 3 of Rule 016 to provide clear parameters for bringing into question a Commissiondecision, and to preserve the principle of finality.4

10. The Commission maintains the view that finality is an important principle inadministrative decision-making because it provides certainty to parties who participated in theproceeding and those that are affected by the decision. It also continues to be of the view that itshould exercise its discretion to consider review applications outside of the permitted time periodonly in exceptional circumstances.

3 Decision 2010-542: Lavesta Area Group Decision on an Application to Review and Vary AUC Decision 2009-151, Application 1606210, November 25, 2010.

4 Decision 2010-542.

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11. In this case, EDP requested that the Commission review a specific conditionwithin Approval 22665-D02-2018, pertaining to the methodology of a construction andpost-construction wildlife-monitoring program for sharp-tailed grouse. EDP explained that thetechnical nature of the condition is such that it required time to assess whether the conditioncould be complied with in its current form. This involved analyzing the resources and proceduresnecessary for compliance, which could not be completed within the 60-day time limit.

12. The Commission has considered the particular circumstances before it, including thenature of the original condition, the stated reasons offered for the delay as well as the limitedscope of the request for review. In this case, EDP is not challenging the finality of theCommission’s decision to issue the approval, nor is it challenging the underlying necessity of theproject and species-specific wildlife-monitoring programs, but rather, the nature and scope ofone such program. Moreover, the condition pertains to monitoring requirements during theproject’s construction and the first three years of operation, and construction of the project hasnot yet commenced. The Commission considers that, in these particular circumstances, a limitedreview of this specific condition does not violate or otherwise detract from the principle offinality in its decisions.

13. The Commission also observes that the review of Condition 20 will take place in parallelwith the Commission’s consideration of EDP’s application to amend the Sharp Hills Wind Farmand Sedalia 363S Substation. In these circumstances, any delay in the implementation of themonitoring program attributable to considering the R & V application outside of the timeframespecified in Rule 016 is unlikely to result in prejudice to interested parties.

14. The Commission will therefore exercise its discretion to consider EDP’s R & Vapplication, notwithstanding that it was filed after the 60-day deadline in Rule 016.

15. The Commission has established a two-stage process for R & V applications, as set out inRule 016. First, the Commission determines the preliminary question of whether the decision inquestion should be reviewed. If the Commission finds that the decision should be reviewed, aproceeding on the merits of the arguments for a variance of the decision is initiated. TheCommission retains the discretion under Rule 016 to combine both stages where in its opinion itis reasonable to do so.

16. In this proceeding the Commission considers that it is reasonable to combine the twostages of the R &V application process as there is likely to be some commonality of evidenceand submissions relied on with respect to the preliminary question and the substantive questionon the merits. Upon completion of the process to be established for this proceeding, theCommission will determine the preliminary question of whether Condition 20 should bereviewed and will also assess the merits of the proposed variance at that time, should it decide toreview Condition 20.

17. If you have any additional questions please contact the undersigned at 403-592-4385 orby email at [email protected].

Yours truly,

Kim Macnab Commission Counsel

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September 4, 2019

To: Parties currently registered on Proceeding 24819

EDP Renewables SH Project GP Ltd. Sharp Hills Wind Project Review and Variance Proceeding 24819 Applications 24819-A001 and 24819-A002

Ruling – standing on the review and variance application

Background

1. EDP Renewables SH Project GP Ltd. filed applications in Proceeding 24401 for:

i. Approval of amendments to the Sharp Hills Wind Farm and Sedalia 363S Substation; and

ii. Review and variance (R & V) of Condition 20 in Approval 22665-D02-20181 and theAlberta Utilities Commission’s consideration of the R & V application outside of the60-day time limit.

2. EDP originally filed both applications in a single proceeding. However, as noted in theCommission’s recent correspondence,2 the Commission will consider the amendment and R & Vapplications separately. Proceeding 24819 has been created to consider the R & V application.

3. In this ruling, the Commission decides whether to hold a hearing for the R & Vapplication.

4. The Commission must hold a hearing if persons who have filed a statement of intent toparticipate (SIP) have demonstrated that they have rights that may be “directly and adverselyaffected” by the Commission’s decision. Such a person is said to have standing and mayparticipate fully in the hearing, including giving evidence, questioning of witnesses, andproviding argument.

5. The Commission issued a notice of applications for the original combined proceeding(Proceeding 24401), and received SIPs from the Clearview Group, Larry and Lorretta Oxamitnyand the Bar X Ranch, all of whom indicated that they were part of the Clearview Group, andfrom Viola Olsen. The Clearview Group requested standing in relation to both the amendmentand R & V applications.

1 Power Plant Approval 22665-D02-2018, Proceeding 22665, Applications 22665-A001 and 22665-A002, September 21, 2018.

2 Exhibit 24819-X0048, AUC letter to registered parties - Separation of applications for amendment and review and variance.

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6. On June 24, 2019, the Commission issued a letter3 requesting comments from theClearview Group and from EDP on: the Clearview Group’s and Ms. Olsen’s standing in both theamendment and R & V applications; and whether the Commission should exercise its discretionto consider the late-filed R & V application. Both the Clearview Group and EDP filedsubmissions. The Commission also requested that Ms. Olsen confirm whether she intended toparticipate as part of the Clearview Group, or on her own behalf. As no response was receivedfrom Ms. Olsen, the Commission must assume that her intervention is separate from theClearview Group.

7. The Commission has authorized me to communicate its decision on standing.

Ruling

8. As described in detail in the Commission’s June 24, 2019 letter, the Commission assesseswhether a person has standing based on a two-part test. The first part of the test is legal: a personmust demonstrate that the right being asserted is recognized by law. The second part of the test isfactual: a person must provide enough information to show that the Commission’s decision onthe application may “directly and adversely affect” the person’s right, claim or interest.

9. In this proceeding, the Commission is considering both stages 1 and 2 of an R & Vapplication by EDP regarding a specific condition which, in Proceeding 22665, was the subjectof evidence from both the Clearview Group and EDP. More specifically, the R & V applicationrequests changes to Condition 20 of Approval 22665-D02-2018, on grounds that Condition 20was based on insufficient evidence and there are previously unavailable facts regarding the costand effectiveness of the condition, which demonstrate that it is unduly prejudicial to EDP.

10. The Clearview Group’s submissions on standing for the R & V application appear to relyprimarily on the fact that it was granted standing in the original proceeding for approval of theSharp Hills Wind Farm (Proceeding 22665). As noted in the Commission’s June 24th letter, areview application is not an opportunity to re-litigate the original proceeding. While theCommission notes that the Clearview Group members hold legally recognized interests asrequired under the first part of the standing test, the Commission must assess whether theClearview Group has met the second part of the standing test, keeping in mind that, incomparison to the original proceeding, the scope of this proceeding is limited.

11. The Commission is not convinced that the Clearview Group has provided anyinformation demonstrating how the changes proposed to Condition 20 may have a direct andadverse effect on any of its members’ asserted rights, in this case, their interests in land.Accordingly, the Commission finds that the Clearview Group has not met the second, factualpart of the standing test and denies standing to the Clearview Group with respect to the R & Vapplication.

3 Exhibit 24401-X0039, AUC letter - request for comments.

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12. The Commission nonetheless has the authority to control its own process and may allowparties to participate in proceedings without granting standing to such parties.4 That is, theCommission may allow a person who has not demonstrated a potential direct and adverse effecton their rights to nevertheless participate in a proceeding.

13. In making its decision whether to grant such participation rights, the Commission takesinto account whether the person or group requesting participation has relevant information thatmay assist the Commission in carrying out its duties or functions. In this case, the Commissionnotes that in Proceeding 22665, the Clearview Group raised concerns and tendered evidencedirectly related to the subject matter of the R & V application. Further, the Commissionconsiders that the Clearview Group has information that may be useful in deciding the R & Vapplication. Accordingly, in these particular circumstances, the Commission will exercise itsdiscretion to grant participation rights to the group. The R & V application will be considered byway of a written hearing process and the Clearview Group will be entitled to make submissionsas set out in the process schedule below.

14. In her SIP, Ms. Olsen did not raise any concerns specific to sharp-tailed grouse or withCondition 20 of the original approval and EDP’s proposed variance. The Commission finds thatMs. Olsen has not demonstrated that she meets the second, factual part of the standing test,because she provided no information indicating that her legal rights may be directly andadversely affected by the Commission’s decision on the requested change to Condition 20. Norhas she identified that she has information that may be useful in deciding the R & V applicationor confirmed whether she is participating as part of the Clearview Group. The Commissiondenies standing and participation rights to Ms. Olsen with respect to the R & V application.

Costs

15. The Commission has broad discretion under Section 21(1) of the Alberta UtilitiesCommission Act to decide whether, and to whom, to award costs. As noted by theAlberta Court of Appeal in ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission),“nothing in either Section 21(2) or Section 22 derogates from the Commission’s generaldiscretion under Section 21(1) to issue costs orders relating to those appearing in proceedingsbefore it, whether as applicants or interveners.”5

16. Given the Commission’s findings above with respect to the potential relevance of theClearview Group’s evidence in this proceeding, the Commission considers it appropriate toallow the Clearview Group eligibility for cost recovery in accordance with the considerationsoutlined in Section 7 of Rule 009: Rules on Local Intervener Costs.

17. The Commission emphasizes that eligibility to claim costs does not guarantee recovery ofthose costs. Any claims for costs must be filed after this proceeding is concluded, in accordancewith Rule 009, and more specifically, Section 5.A of Rule 009. Cost recovery is subject to theCommission assessing the value of parties’ contribution to the proceeding, and in accordancewith the guidance provided in Section 7 of Rule 009, the Commission may consider whether anintervener submitted evidence and argument on issues that were not relevant to the proceeding.

4 Alberta Utilities Commission Act, SA 2007, c A-37.2; Canada (Combines Investigation Act Director of Investigation & Research) v Newfoundland Public Telephone Co, [1987] 2 SCR 466; Society of Composers, Authors and Music Publishers of Canada v Canada (Copyright Board), [1993] FCJ 137.

5 ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2014 ABCA 397 at paragraph 95.

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18. The Commission has set out the following process for its consideration of the combinedstages 1 and 2 of the R & V application:

Process step Date EDP submissions on both stages of the R & V application September 23, 2019 Clearview Group submissions on both stages of the R & V application October 7, 2019 EDP reply submissions October 15, 2019

19. If you have any additional questions please contact the undersigned at 403-592-4385 orby email at [email protected].

Yours truly,

Kim Macnab Commission Counsel