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Application and Evidence, Part 1 of 2

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Application and Evidence, Part 1 of 2 ONTARIO ENERGY BOARD IN THE MATTER OF the Ontario Energy Board Act, 1998, S.O. 1998, c. 15 (Sched. B); AND IN THE MATTER OF an application by East Durham Wind, Inc. for an Order or Orders pursuant to Section 41(9) of the Electricity Act, 1998 (as amended) establishing the location of the applicant’s distribution facilities within certain road allowances owned by Grey County, all as set out in this application. APPLICATION EAST DURHAM WIND, INC. October 15, 2013 Exhibit A Tab 1 Schedule 1 Page 1 of 3 EXHIBIT LIST Exh. Tab Sch. Title A - ADMINISTRATIVE A 1 1 Exhibit List 2 1 Application 3 1 Summary of the Pre-Filed Evidence B - PRE-FILED EVIDENCE B 1 1 The Applicant 2 1 Project Description Appendix A - Map of Proposed Generation and Distribution Facilities Associated With the Project Appendix B - Correspondence from the Ministry of the Environment to East Durham dated May 14, 2013 3 1 Statutory Rights of Distributors Appendix A - OEB Decision and Order in EB-2010-0253 Appendix B - OEB Decision and Order in EB-2013-0031 4 1 Proposed Road Use Agreement Appendix A – Proposed Agreement Appendix B – Maps of Proposed Distribution System Location 5 1 Chronology of Events Appendix A – Minutes from November 24, 2009 County Council Meeting Appendix B – Minutes from February 7, 2012 County Council Meeting Appendix C – Minutes from July 17, 2012 County Planning and Community Development Committee Meeting Appendix D – Minutes from August 7, 2012 County Council Meeting Appendix E – County Wind Energy Summary Report dated March 19, 2013 36009-2015 16037903.5 Exhibit A Tab 1 Schedule 1 Page 2 of 3 Appendix F – Minutes from March 5, 2013 Council Meeting Appendix G – Minutes from July 2, 2013 Council Meeting Appendix H – Letter from County to Premier of Ontario dated July 5, 2013 Appendix I – Correspondence from East Durham to County dated October 25, 2012 Appendix J – Correspondence re November 19, 2012 Meeting between East Durham and County Appendix K – Minutes from January 16, 2013 Meeting between East Durham and County Appendix L – County Municipal Consultation Form Appendix M – Minutes from March 15, 2013 Meeting of East Durham and County Appendix N – Correspondence from East Durham to County dated April 8, 2013 and April 18, 2013 Appendix O – Correspondence from East Durham to County dated May 3, 2013 Appendix P – Correspondence from East Durham to County and County to East Durham dated May 6, 2013 Appendix Q – Correspondence from County to East Durham dated May 16, 2013 Appendix R – Correspondence from East Durham to County dated May 23, 2013 Appendix S – Correspondence from County to East Durham dated May 23, 2013 Appendix T – Correspondence from East Durham to County dated June 3, 2013 Appendix U – Correspondence from County to East Durham dated June 20, 2013 Appendix V – Correspondence between County and East Durham dated June 27, 2013 Appendix W – Correspondence from County to East Durham dated July 9, 36009-2015 16037903.5 Exhibit A Tab 1 Schedule 1 Page 3 of 3 2013 Appendix X – Correspondence from East Durham to County dated August 14, 2013 Appendix Y – Correspondence from County to East Durham dated August 26, 2013 Appendix Z – Correspondence from East Durham to County dated September 4, 2013 Appendix AA – Correspondence between East Durham and County dated September 9, 2013 Appendix BB – Correspondence between East Durham and County dated September 10, 2013 Appendix CC – Minutes from September 17, 2013 Meeting between East Durham and County Appendix DD – Correspondence between East Durham and County dated September 23, 2013 Appendix EE – Correspondence from East Durham to County dated September 26, 2013 Appendix FF – Correspondence from East Durham to County dated September 27, 2013 Appendix GG – Letter from East Durham to County dated September 30, 2013 Appendix HH – Letter from East Durham to County dated October 1, 2013 Appendix II – Letter from County counsel to East Durham counsel dated October 3, 2013 Appendix JJ – Correspondence from County counsel to East Durham counsel dated October 9, 2013 6 1 Proposed Location of Distribution System within Road Allowances Appendix A – List of Chosen Road Allowances Appendix B – Utility Placement Policy on Grey County Right-of-Ways 7 1 Potential Impacts 36009-2015 16037903.5 Exhibit A Tab 2 Schedule 1 Page 1 of 5 ONTARIO ENERGY BOARD IN THE MATTER OF the Ontario Energy Board Act, 1998, S.O. 1998, c. 15 (Sched. B); AND IN THE MATTER OF an application by East Durham Wind, Inc. for an Order or Orders pursuant to Section 41(9) of the Electricity Act, 1998 (as amended) establishing the location of the applicant’s distribution facilities within certain road allowances owned by Grey County, all as set out in this application. APPLICATION 1. East Durham Wind, Inc. (“East Durham” or the “Applicant”) is a corporation, headquartered in Toronto, that was formed pursuant to the laws of the Province of New Brunswick, and is a wholly owned subsidiary of NextEra Energy Canada, ULC (“NextEra”). East Durham is the entity that is developing and that will own and operate the generation and distribution assets associated with the East Durham Wind Energy Centre (the “Project”) in the Municipality of West Grey in Grey County (the “County”), Ontario. 2. The Applicant hereby applies to the Ontario Energy Board (the “Board”) pursuant to Section 41(9) of the Electricity Act, 1998, as amended (the “Electricity Act”) for an order or orders establishing the location of the Applicant’s distribution facilities within the public streets, highways and rights-of-way more particularly described in Exhibit B, Tab 6, Schedule 1, Appendix A owned by the County (collectively, the “Road Allowances”), all as set out in Exhibit B, Tab 6, Schedule 1 (Proposed Location of Distribution System Within Road Allowances). 3. The Project is expected to be approved for up to 16 wind turbines, 14 of which will be built (with 2 approved turbines available as alternates) (collectively, the “Generation 36009-2015 16008864.5 Exhibit A Tab 2 Schedule 1 Page 2 of 5 Facilities”). The Generation Facilities will have a total nameplate capacity of up to 23 MW. To convey the electricity generated by the Generation Facilities to the local distribution system, which is in turn connected to the IESO-controlled grid, the Applicant plans to own and operate certain distribution facilities. These facilities will include approximately 28.3 km of 34.5 kV distribution lines located on private property and municipal and county right-of-ways, which will convey electricity from each of the wind turbines to a transformer substation, from which an overhead 44 kV line will convey the electricity to Hydro One Networks Inc.’s distribution system (collectively, the “Distribution System”). 4. As the owner and operator of the Distribution System, East Durham is a “distributor” within the meaning of the Electricity Act and the Board’s decisions in EB-2010-0253 and EB-2013-0031. As a distributor, East Durham has chosen to locate a portion of its Distribution System (approximately 4 km) within the Road Allowances owned by the County pursuant to the statutory right of distributors under subsections 41(1) and 41(5) of the Electricity Act. These subsections, among other things, give distributors the right to construct and install structures, equipment and other distribution facilities over, under or on any public street or highway without the consent of the owner of, or any other person having an interest in, such public street or highway. 5. In accordance with Section 41(9) of the Electricity Act, East Durham, as the distributor, and the County, as the owner of the Road Allowances, are required only to agree on the exact location of the Distribution System within the Road Allowances, which location shall be determined by the Board in the event of a disagreement. 6. Notwithstanding its statutory rights, East Durham has sought, as is commonplace in Ontario, to negotiate an agreement with the County with respect to the location, construction, operation and maintenance of the Distribution System within the Road Allowances (the “Proposed Agreement”). 36009-2015 16008864.5 Exhibit A Tab 2 Schedule 1 Page 3 of 5 7. However, the County has not responded constructively in respect of the Proposed Agreement. Instead, the County has put forward, and then retracted, various forms of road use agreements that do not speak to the location of the Distribution System within the Road Allowances. Most recently, the County has put forward a draft template agreement that again does not address the location of the Distribution System, but that instead runs contrary to the rights of distributors under the Electricity Act. Under this draft template agreement, the County would retain the authority, in its sole discretion, to approve and modify the location of the Distribution System within the Road Allowances, even though section 41(9) requires the County and East Durham to agree to such location. The result of these events, which are described in further detail in Exhibit B, Tab 5, Schedule 1, is a fundamental inability of the parties to reach an agreement regarding the location of the Distribution System in the Road Allowances. 8. Because East Durham and the County cannot reach an agreement with respect to the location of the Distribution System within the Road Allowances, the Applicant requests that the Board issue an order or orders, pursuant to Section 41(9) of the Electricity Act, establishing the location of the Distribution System within the Road Allowances, all as set out in Exhibit B, Tab 6, Schedule 1. 9. East Durham requests that the Board expedite its hearing of this application in accordance with Sections 2.01 and 7.01 of the Board’s Rules of Practice and Procedure because (i) the only person directly affected by this application is the County as the sole owner of the Road Allowances, and (ii) East Durham anticipates receiving a REA for the Project by November 14, 2013, and its project schedule requires construction to commence shortly after receipt of its REA.
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