Kinder Morgan's Anti-Spawning Affront

Kinder Morgan was caught doing construction on the Trans Mountain Expansion Project prior to fulfilling pre-construction conditions and achieving NEB approval of the detailed route of the project. This violates both the NEB Certificate and the BC Environmental Assessment Certificate for the project. The construction work involved placing snow fence into streams to prevent trout and salmon from spawning where Kinder Morgan plan to install the new pipeline. Fish populations affected include a red-listed Chinook run. After the work was brought to the attention of the NEB by a private citizen, the NEB ordered the work to stop. Kinder Morgan responded by applying for "relief" from section 31 of the National Energy Board Act so as to be allowed to continue installing these unproven spawning deterrents in streams along the proposed pipeline route.

What follows is WaterWealth's response to Kinder Morgan's request for relief.
(Formatted as the original document)


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National Energy Board
Suite 210
517 10th Avenue South
Calgary Alberta T2R 0A8

October 2, 2017

Attention: Sheri Young, Secretary of the Board

Re:    Trans Mountain Pipeline ULC (Trans Mountain)
          Trans Mountain Expansion Project (TMEP)
          Board File OF-Fac-Oil-T260-2013-03
          Trans Mountain Request for Relief regarding Spawning Deterrent Matting

The National Energy Board (Board) Certificate OC-064 defines construction, apart from the Westridge Marine Terminal, as;

“Any in-field activity that may have an effect on the environment and that is necessary for installing, deactivating, reactivating or decommissioning, or preparing to install, deactivate, reactivate or decommission, any component of the Project. Construction activities include, clearing, mowing, grading, trenching, drilling, boring, and blasting. Construction activities do not include activities associated with routine surveying operations or data collection activities, such as geotechnical investigations (e.g., geophysical surveys, bore holes, and test pits), activities required to obtain integrity information on the reactivation pipeline segments, or operations and maintenance activities (to which NEB “Operations and Maintenance Activities on Pipelines under the National Energy Board Act – Requirements and Guidance Notes” apply).”

The BC Environmental Assessment Office (EAO) Certificate E17-01 Table of Conditions defines construction as;

“The phase of the Project during which physical alteration of land, vegetation or any other aspect of the natural environment, occurs. For the purposes of this Schedule B, Construction: (i) does not include any activities conducted solely for investigative purposes under a valid permit or authorization, and (ii) includes upgrading, repairing, replacing, or removing, any existing work or infrastructure.”

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As noted in the Board’s Letter of Direction Filing ID A86239 dated September 22, 2017, Section 31 of the National Energy Board Act (NEB Act) states that:

“Except as otherwise provided in this Act, no company shall begin the construction of a section or part of a pipeline unless

(a) the Board has by the issue of a certificate granted the company leave to construct the line;

(b) the company has complied with all applicable terms and conditions to which the certificate is subject;

(c) the plan, profile and book of reference of the section or part of the proposed line have been approved by the Board; and

(d) copies of the plan, profile and book of reference so approved, duly certified as such by the Secretary, have been deposited in the offices of the registrars of deeds for the districts or counties through which the section or part of the pipeline is to pass.”

Condition 10 d) of the EAO Certificate E17-01 reads;

“Construction of a particular spread, region, or work area must not proceed until all pre-construction conditions using this phased approach have been satisfied for that spread, region, or work area. Prior to commencing construction of the initial spread, region, or work area, all applicable conditions with more general pre-construction timing elements must also be satisfied."

It is clear that installation of spawning deterrents fits the definitions of construction under both Certificates. A reasonable person would expect that Trans Mountain knew or should have known that installing spawning deterrents on waterways on the proposed but still unapproved route of the TMEP was a violation of both the NEB Act and the EAO Certificate E17-01.

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Regrettably this non-compliance by Trans Mountain is not an isolated case, but is one more instance in a growing pattern that indicates a lack of respect for regulatory process. Other examples include;

• the Chilliwack Project Update flier that caused confusion in Chilliwack by stating just before the detailed route approval process for the TMEP got under way that “Other route locations are no longer under consideration”;
• the failure to adhere to the publication schedule filed with the NEB for NEB Act section 34 (b) notices once the detailed route approval process was underway; and,
• the quote by Kinder Morgan Canada President Ian Anderson in a Kinder Morgan press release May 25, 2017, just days before the Kinder Morgan Canada initial public offering, saying “our approvals are in hand, and we are now ready to commence construction activities this fall,” a statement that remains untrue to this date as approvals necessary to commence construction are still not in hand.

Disrespect for regulatory process is evident once again in Trans Mountain’s Request for Relief regarding Spawning Deterrent Matting, Filing ID A8357, (“Request for Relief”) from the opening paragraph where it assumes construction activity must occur according to Trans Mountain’s preferred schedule, saying that “Trans Mountain must install spawning deterrent matting ( ... ) in order to prevent adverse impacts to fish that may otherwise arise from Project construction activities scheduled to take place this winter.” Trans Mountain perhaps needs to be reminded that detailed route hearings are still to take place and the route of the TMEP must be approved before any construction activities can begin.

In the Request for Relief Trans Mountain remind the Board that the Board has the “authority to grant relief from specific conditions” however the WaterWealth Project (WaterWealth) respectfully submits that in this case for the board to reward Trans Mountain’s transgression with permission to continue would undermine the Board’s own authority and public confidence in the ability of the regulator to ensure that regulated companies are held accountable for non-compliance. Furthermore, Trans Mountain is asking to be allowed to continue installing spawning deterrents and carry on other associated construction activities on streams while the route of the TMEP has not been approved and may still change depending on outcomes of detailed route hearings for which at the time of this writing schedules have not yet been announced. This could result in fish spawning being interfered with in places where there was no need, and additional areas being subject to spawning deterrents or Fisheries Act authorizations at later dates.

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WaterWealth can find no evidence to support Trans Mountain’s assertions under “Rationale for the Use of Deterrents” in the Request for Relief. Snow fence deterrents do not appear in the Fisheries and Oceans Canada (DFO) “Measures to avoid causing harm to fish and fish habitat including aquatic species at risk”1 or any other DFO or provincial guidance documents or relevant literature that we are aware of. If this use of snow fence is indeed a “very effective tool to avoid potential serious harm to fishes” where is the monitoring documentation and data on its effectiveness and impacts? Or is Trans Mountain experimenting on fish populations that include DFO Wild Salmon Policy Red-listed Chinook runs at a time when fisheries are closed due to weak salmon returns and southern resident killer whales, whose diet consists almost entirely of Chinook salmon, are dying of malnutrition2?

Trans Mountain’s statements on their blog post of 12 September 2017 suggest that they are indeed experimenting with fish that spawn in streams along the proposed TMEP route. They describe the use of snow fence spawning deterrent as an “Innovative use of a well-known landscaping product”. The blog goes on to describe the technique as “a new approach” and “a relatively new science, without a body of supporting evidence for its success.” In response to the Board’s Information Request No. 35, Condition 43: Watercourse Crossing Inventory, Trans Mountain is only able to cite their own use of snow fence as a spawning deterrent. WaterWealth respectfully submits that the Board should not allow reliance on experimental techniques for avoiding harm to fish even when construction is approved on the TMEP.

Trans Mountain’s rationale for Request 1 in the Request for Relief is based on a presumption of detailed route approval, and an arbitrary timeline which is not the Board’s concern. Trans Mountain should not be threatening harm to fish if the Board does not expedite their request for retroactive permission to ignore the approval process for the TMEP. Particularly in light of the uncertainty over the long-term prospects of Fraser salmon the public expect that the Board and DFO would tell regulated companies like Trans Mountain how and when watercourse crossings will be made. The Board’s report on the Trans Mountain Expansion Project hearing OH-001-2014 on page 182 indicated that where isolated trenched crossings were proposed priority would be given to working within least-risk biological windows. WaterWealth submits that Trans Mountain should make its watercourse crossings in keeping with that priority, and where doing so may prove impractical should use directional drilling as is preferred under the decision pathway used by the B.C. Oil and Gas Commission.

1 http://www.dfo-mpo.gc.ca/pnw-ppe/measures-mesures/measures-mesures-eng.html
2 https://www.whaleresearch.com/j52

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WaterWealth agrees with Trans Mountain’s statement in the rationale for Request 2 in the Request for Relief that the “timing of acceptance or approval of all pre-construction conditions and approval of the PPBoR sheets associated with the crossings at issue is uncertain.” However, from that fact we submit that the rational and proper conclusion is that this uncertainty supports compliance with the requirements to not begin construction until all pre-construction conditions and relevant PPBoR sheets are approved. Only then should Trans Mountain undertake whatever construction methods minimize the TMEP’s impacts on fish.

In conclusion WaterWealth respectfully requests;

• that the Board determine whether Trans Mountain has complied with EAO Certificate E17-01 Condition 8 which requires prompt notification of EAO after the Certificate Holder determines that it has not complied with the Certificate;
• that the Board hold Trans Mountain accountable for this non-compliance with the NEB Act and refuse Trans Mountain’s Request for Relief; and,
• that the Board order Trans Mountain to promptly remove the snow fences that have been installed in streams to date so that fishes spawning now can do so unimpeded.

 

Sincerely,
Ian Stephen
Program Director
The WaterWealth Project

 

cc:
Hon. George Heyman, Minister of Environment and Climate Change Strategy
Hon. Doug Donaldson, Minister of Forests, Lands, Natural Resource Operations and Rural Development
Hon. Dominic LeBlanc, Minister of Fisheries, Oceans and the Canadian Coast Guard

 

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