An Abundance of Optimism

If not for an abundance of optimism WaterWealth may not have engaged in regulatory processes for the Trans Mountain project. Certainly we were warned that it is impossible to win in these things. That view was borne out in recent developments around Browne Creek Wetlands.

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Our concerns and objections regarding Trans Mountain's plans in Browne Creek Wetlands were summarily dismissed by the Canada Energy Regulator (CER).

  • The CER are apparently content to let Trans Mountain redefine what "Browne Creek Wetlands" means -- for Trans Mountain's purposes not the place named Browne Creek Wetlands.
  • The fact that Trans Mountain's own geotechnical feasibility report found the Vedder River crossing (which starts in Browne Creek Wetlands floodplain) feasible only with a commitment to on-going gravel removal from the river while in fact gravel removal has not taken place there since 2016 did not prompt any response from the regulator.
  • Nor, apparently, does it matter that Trans Mountain had that report in hand before the route hearings but did not reveal it till long after.
  • As for the timing of the Vedder River crossing, our understanding from the hearing decision was that it would happen in summer. Trans Mountain wanted to proceed in January, and then in April, then their May construction schedule had us hoping they had decided to do it in summer. But no. Instead, for reasons known only to them, they're skipping past the summer timing and plan to do it in September and October. If Trans Mountain aren't out of Browne Creek Wetlands before fall rains, it could get ugly.
  • CER approved Trans Mountain's request for a variance on the hearing decision to allow them to clear brush, hand fell trees, and place geotextile and mats for the Browne Creek crossing before the August 1 to September 15 least risk window for fish. Trans Mountain said this was necessary for them to be able to do the in-stream work during the fish window, a commitment from the hearing repeated multiple times since.

As is often the case though, Trans Mountain managed to stumble even with the regulator making every effort to remove any barriers. The variance was granted to let them do that site preparation work, and then Trans Mountain didn't do it.

To give credit where due, that they did not get the work done may have been at least in part because of nesting birds their biologists found. Perhaps it helped that around the same time there was a lot of media attention about the Community Nest Finders Network finding nests near Bridal Falls that Trans Mountain's biologists missed.

Whatever the reasons, Trans Mountain only began brush cutting at Browne Creek August 11. As of August 15, a third of the way through the fish window, they've cut some grass and some blackberries (which are delicious right now btw). No trees had been cut in the area and no geotextile or mats were on site.

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Note: Camera was not set for DST. Actual time (partially cropped) was 16:17

From the CER letter of decision on the variance:

1. The Commission grants Trans Mountain’s request to commence the Site-Preparation Activities prior to the Least Risk Window.

2. The Commission authorizes Trans Mountain to conduct the Site-Preparation Activities commencing immediately upon issuance of this letter (10 June 2022) and modifies Trans Mountain's commitment as follows:

a) Proposed construction timing for Browne Creek and the Wetland will be inside the Least Risk Window (August 1 to September 15) and will avoid critical spawning/incubation periods for salmonids, including Salish Sucker (which have a spawning period of March 1 to July 1), and the breeding period for amphibians (February to late July).

b) Despite paragraph a), Trans Mountain may conduct the Site-Preparation Activities commencing immediately upon issuance of this letter (10 June 2022).

Interesting to note that they use "Browne Creek and the Wetland" instead of "Browne Creek Wetlands".

The key point in this is that the variance was required because site preparation had to be done before the fish window so that the in-stream work could be done within the fish window, timing Trans Mountain committed to in the hearing and again in the variance application. But two months after they were authorized, and a third of the way through the fish window, those site preparation activities are barely started.

It follows that if the rationale for their variance application was not a falsehood, Trans Mountain can't complete the in-stream work within the fish window this year. To protect species that use Browne Creek, and to protect any whiff of credibility still around the regulatory process and commitments arising from it, Trans Mountain should not start the in-stream work till the 2023 fish window. Ideally they'd leave the tree felling till after the August 17 close of the migratory bird nesting window too. (A mere 2 more working days from the time the photo above was taken anyway.)

Maybe that's their plan? (Haha, there's that abundance of optimism again.)

WaterWealth has filed a motion with the CER. The motion begins with a preliminary note reiterating our contention that "Browne Creek Wetlands" in the hearing decision meant the place named Browne Creek Wetlands, portions of which appeared labelled as "Browne Creek Wetlands" on five maps in Trans Mountain's supplementary evidence. It did not mean just the physical wetland feature along Browne Creek that appeared on one of those maps. Then on the matter at hand, the motion asks the CER to uphold the timing commitment, direct Trans Mountain to do the site prep work after this migratory bird nesting window and before the next, and to not start the in-stream work till the 2023 fish window.

In the conclusion of their letter of decision approving Trans Mountain's variance request, the CER said "In closing, the Commission reminds Trans Mountain that it must comply with all mitigation committed to in its request for relief dated 25 March 2022 and related filings, as well as in previously approved plans and commitments.

We'll see whether hearing commitments are worth the paper they're printed on.

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Great Blue Heron rests just downstream of Trans Mountain crossing

 

You can find WaterWealth's 15 August 2022 motion at https://apps.cer-rec.gc.ca/REGDOCS/Item/View/4257856

 

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published this page in Blog 2022-08-16 08:45:27 -0700