Terri-Lee Oleniuk, Jeremy Barretto
Feb 2, 2017
On January 27, 2017, Alberta Environment and Parks (AEP) released its long-anticipated Wildlife Directive for Alberta Wind Energy Projects (Directive), effective that day. The Directive updates the 2011 Wildlife Guideline for Alberta Wind Energy Projects (2011 Guidelines) and includes a summary of potential wildlife issues associated with wind energy developments in Alberta. It also sets standards and best management practices for minimizing impacts to wildlife and wildlife habitat during the siting, construction and operation of wind energy projects.
Significant aspects of the Directive [PDF] for wind energy developers include: enhanced environmental and post-construction standards; potential project-specific alternative mitigation through AEP; a grandfathering administrative procedure [PDF] applying the 2011 Guidelines to certain projects; and, standard [PDF] and buildable area [PDF] checklists to confirm the satisfaction of AEP requirements in the Alberta Utilities Commission (AUC) application process.
Our previous updates have detailed the Alberta government’s Climate Leadership Plan, which includes a carbon tax and a target that renewable energy sources comprise at least 30% of Alberta’s electricity production by 2030 (among other policies). The Directive recognizes that wind power is one of the fastest-growing industries in the world. Wind energy projects will likely obtain government incentives in the Alberta Electric System Operator’s first Renewable Electricity Program competition. These projects will need to satisfy AEP and AUC regulatory requirements.
Environmental standards, best management practices and alternative mitigation
The environmental requirements in the Directive are more prescriptive than the 2011 Guidelines. The Directive contains 46 standards and 19 best management practices covering wind project development stages, from site planning and selection to construction and operation. There are specific wildlife zones identified in the Directive where wind energy projects are either prohibited or sited to minimize their impact. Setbacks from environmental features such as valley breaks, waterbodies, wildlife and wildlife habitat are set out in the Directive. In our experience, such setbacks can have a material impact on the siting of wind energy projects and should be considered early in the project planning process in consultation with AEP.
Both the 2011 Guidelines and the Directive require wildlife and vegetation surveys to be conducted pre-construction during certain migration and breeding seasons. In addition, the Directive states that all required pre-construction wildlife surveys must be conducted for a minimum of one year and are considered current within two years of the last survey date.
Under the Directive, proponents must conduct post-construction monitoring surveys annually for a minimum of three years after the wind energy project is in operation. The 2011 Guidelines required a minimum of one year of post-construction surveys, with more than one year of surveys recommended by AEP in most cases.
The Directive includes flexibility through consultations between the proponent and AEP, which may address the prescriptive nature of many of the standards:
“It is recognized that each project is unique and may require an adaptive approach; therefore, this document does not preclude alternative mitigative discussions between AEP Wildlife Biologists and the wind energy developers.”
Proponents should engage with AEP wildlife biologists early in the planning process and explore potential alternative mitigation as appropriate.
Grandfathering administrative procedure
The Grandfathering Administrative Procedure [PDF] sets out which projects initiated prior to the release of the Directive on January 27, 2017 may proceed under the 2011 Guidelines. This grandfathering procedure may apply to projects that have:
applied for or received AUC approval; or
- initiated pre-construction wildlife surveys or have a record of meetings with AEP, but have not applied to the AUC (2011 Guidelines would apply to pre-construction activities only).
Proponents may choose to apply requirements included in the 2017 Directive, even if the 2011 Guidelines may apply to the project under the grandfathering procedure. For example, proponents may choose to apply the 2017 Directive in response to stakeholder feedback.
The roles of AEP and the AUC
Recommendations from AEP wildlife biologists are based on the legislative authority of the Alberta Wildlife Act, RSA 2000 c W-10. However, the AUC has jurisdiction over the approval of wind power plans under the Hydro and Electric Energy Act, RSA 2000 c H-16. AUC Rule 007 [PDF] contains the AUC’s application requirements for wind power plants and states that the AUC requires “sign-off” from AEP addressing the environmental aspects of the project prior to processing any new wind power plant applications.
AEP notes that the proponent is responsible for ensuring that environmental concerns are addressed in AUC applications and that AEP directives are followed. The Directive is intended to assist industry to mitigate any adverse effects and “inform wind energy developers and the [AUC] of potential wildlife issues and AEP expectations to avoid and minimize wildlife impacts.” In support of the Directive, AEP published checklists for standard [PDF] and buildable area [PDF] wind power plant applications to the AUC, which applicants can use to ensure that all necessary wildlife information is included. The appropriate checklist must be completed and authorized by a representative of the applicant before AEP will issue a final referral letter for the project. AEP will inform proponents and the AUC of potential wildlife issues and its wildlife biologists are available to discuss alternative mitigation with proponents.
Going forward, we anticipate further evolution in the relationship between AEP and the AUC for the regulatory review of wind projects. If you have any questions don’t hesitate to contact the regulatory lawyers in our Alberta renewable energy group: Martin Ignasiak, Terri-Lee Oleniuk, Jeremy Barretto and Jessica Kennedy.