Anti-Spawning Affront Post 3

So this happened: "Hiccup clears for Canada's TransMountain pipeline. Regulator declares a challenge moot after pipeline planners pulled a request for relief."
(United Press International, Home/Energy News)

However Trans Mountain's withdrawal of their request for relief from NEB Act section 31 does nothing to allay concerns about the impact of their unproven and unauthorized use of snow fence as an anti-spawning measure for already at risk trout and salmon populations. On the contrary, this move by the NEB heightens concerns that harm to fish eggs and young may occur.

What follows is WaterWealth's letter in response to the NEB. (Formatted as the original document)


"Our Wealth is in Our Water – Let’s Protect It"

13 October 2017

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

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 03
          NEB Letter Filing ID A86798-1


In a letter to Trans Mountain, Filing ID A86798-1 (Board Letter) the National Energy Board (NEB or the Board) acknowledged receipt of written comments from Ms. Robyn Allan (dated 29 September 2017), Pro Information Pro Environment United People Network (dated 2 October 2017), Salmon River Enhancement Society (dated 3 October 2017), and the WaterWealth Project (dated 2 October 2017 and 9 October 2017) regarding Trans Mountain’s request for relief from the requirements of subsection 31(b)-(d) of the National Energy Board Act. The Board expressed the view that Trans Mountain's withdrawal of its request, coupled with action by the Board's compliance and enforcement staff, renders the request and related written comments moot.

The WaterWealth Project (WaterWealth) asks the Board to reconsider WaterWealth’s letter of 9 October 2017, Filing ID A86675, as that letter was a response to Trans Mountain’s withdrawal of its request for relief and so could not be rendered moot by the withdrawal of the request for relief. Further, there has been no documentation of NEB compliance and enforcement action in Regdocs for the Trans Mountain Expansion Project subsequent to Trans Mountain’s withdrawal of its request and the Board Letter declaring comments on the matter moot. [Web Version Note: there should have been a "prior to" in there. damn.]

The Board Letter says that NEB compliance and enforcement staff have communicated to Trans Mountain via a Notice of Non-Compliance (NNC) that the installation of spawning deterrents prior to approval of relevant conditions for commencement of construction and approval of relevant plans, profiles and books of reference was in non-compliance with Certificate OC-064 and Section 31 (b) through (d) of the NEB Act.


The WaterWealth Project


"Our Wealth is in Our Water – Let’s Protect It"


The Board Letter goes on to say that the corresponding Inspection Report notes that the removal of the installed spawning deterrents while target fish remain actively spawning within the relevant systems has the potential to result in greater environmental harm and Trans Mountain should monitor, maintain and remove the previously installed spawning deterrents according to the measures and timing provided in Trans Mountain’s response to the NNC and reiterated in Appendix A of its subsequent filing dated 29 September 2017 (A5U6J2).

It is not explained how the determination was made that removing the deterrents has the potential to result in greater environmental harm, but we know that the Board has relied extensively on Trans Mountain self assessing potential harm to fish in watercourse crossings. The conflict of interest in such self assessments is clear and erodes public confidence in regulatory oversight. Earlier this month the Province of B.C. announced a review of its professional reliance system. Minister of Environment and Climate Change Strategy George Heyman said “Reviewing the professional reliance model is a top priority for this government because the public must be assured that we have a strong transparent process in place that upholds the highest environmental standards.” and that “Actions flowing from this review will help restore public confidence in government’s oversight, to ensure the public interest is protected when it comes to resource management.”1

Allowing Trans Mountain to leave the deterrents in place to be removed on Trans Mountain’s original schedule for removal is precisely one of the concerns raised in The WaterWealth Project’s letter of 9 October 2017. It seems reasonable to expect that Trans Mountain will subsequently argue that the deterrents were in place through the active spawning period and so, although this method of spawning deterrent is, in the words of Trans Mountain fisheries biologist Calum Bonnington, “without a body of supporting evidence for its success,” Trans Mountain may be expected to argue that it is safe to make those watercourse crossings outside of the least risk biological window.

The Board Letter says that “Public safety and the protection of the environment is of paramount importance to the NEB.” But if watercourse crossings are made prior to the least risk biological windows, based on an assumption that Trans Mountain’s unproven spawning deterrent method was effective, risk to fish will be increased. Risk will be increased because there may be fish eggs and/or alevin in substrate within the areas to be dewatered and also because sediment may be deposited downstream of the isolated crossings, where fish eggs and/or alevin are likely to be present.

An alternative would be for Trans Mountain to make those watercourse crossings by isolated trenched pipeline construction methods within the least risk biological window as Trans Mountain indicated they would in Trans Mountain Expansion Project Application Volume 5C Part 2, 6.1.2 Fish-


The WaterWealth Project


"Our Wealth is in Our Water – Let’s Protect It"


Bearing Watercourses, Wetlands and Non-Classified Drainages. Or if Trans Mountain lacks confidence in their ability to manage sediment due to flows found during the least risk biological window they have the option of making those crossing using trenchless methods.

The implications of Trans Mountain’s non-compliance extend far beyond the watercourses where the spawning deterrents were placed. The Memorandum of Understanding to advance measures to benefit the recovery of the Southern Resident Killer Whale through Trans Mountain Expansion Project Conditions, to which the Board is a participant, recognizes the need for mitigation for this endangered killer whale community, which coincidentally lost a 2 year old, J52 (aka Sonic), to malnutrition within days of Trans Mountain’s spawning deterrent blog post being published. Most of the southern resident killer whales’ diet is Chinook, and most of those Chinook are Fraser Chinook which are among the fish that spawn in the watercourses where Trans Mountain placed spawning deterrents.

The September 30 2013 Final Report2 prepared by The Independent Advisory Panel of the Southern BC Chinook Salmon Science Workshop under “Trends in SBC Chinook Abundance and Productivity” said that Fraser and Thompson Rivers stocks with stream life-history types constitute 12 of the 13 conservation units with more than a 50% decrease over the most recent (at that time) three generations (about 12 years). This report also said that Swift Creek, one of the streams Trans Mountain placed spawning deterrents in, was unique within its conservation unit in showing "an almost continuous decline" over the period 1995 to 2012.

Given the gravity of and public interest in the issue of these spawning deterrents, for the benefit of those who have written to the Board on this issue and the public, WaterWealth respectfully requests:

1. That the Board make public the Inspection Report referred to on page two, paragraph one of the Board Letter.

2. That the Board explain how it was determined that removal of the deterrents prior to Trans Mountain’s preferred times would have the potential to result in greater environmental harm.

3. That if the determination regarding the timing of removal of the spawning deterrents was based on Trans Mountain self-assessments the Board reconsider and make that determination based on independent expert advice. As an independent expert that might be acceptable to both Trans Mountain Expansion Project proponent and opponents WaterWealth suggests the Vancouver office of ESSA Technologies Ltd.


The WaterWealth Project


"Our Wealth is in Our Water – Let’s Protect It"


4. That the Board explain how it intends to ensure that Trans Mountain does not reap the benefit of non-compliance, as it would by watercourse crossing timings made possible through any claims that the spawning deterrents can be relied upon to have been effective despite Trans Mountain fisheries biologist Bonnington’s statement that there is not a body of supporting evidence for the success of the spawning deterrent method employed by Trans Mountain, and by any assumption that isolated crossing can be made outside of least risk biological windows without harm to downstream redds.


Ian Stephen
Program Director,
The WaterWealth Project


accessed 13 September 2017

accessed 13 September 2017


The WaterWealth Project



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