Pipeline Hearings, Home Stretch

stick person opposes oil pipeline across drinking water sourceJanuary 12, 2016 WaterWealth filed its final argument in the certificate hearing for the Trans Mountain Expansion Project.

WaterWealth argued that;

- the project should not be approved;

- if it was approved the route across Chilliwack should be changed so that the pipeline passes no closer to City wells than the Trans Canada Highway, and;

- the existing pipeline, installed in 1952-1953, should also be moved to the new route, away from City drinking water sources.

The Project was approved. The route was not changed, other than a variance by Trans Mountain that actually made it worse. And WaterWealth has been embroiled in the Project ever since.

Trans Mountain's original project schedule had the new pipeline in operation by the end of 2017. When WaterWealth filed that final argument in January 2016 no one expected we'd still be fighting the issue through 2020!

The outcome of nearly 5 years work to change the pipeline route will be known this Fall.

At the beginning of the campaign to change the route we didn't actually know whether it was even possible to change the route after the Project was approved. We were just going to do it. Somehow.

Learning that detailed route hearings are a thing was a pleasant surprise!

rollercoasterb.jpgIt's been a bit of a roller coaster since. Two steps forward convincing people it's possible to change the route and a better route is possible, then one step back as Trans Mountain put out a flier saying "Other route locations are no longer under consideration," and many, seeing Trans Mountain as an authority, took that to mean the route was inalterable.

The first round of detailed route hearings started up and WaterWealth got a role in them, then there was uncertainty about whether the NEB would hear arguments for alternate routes. If we couldn't argue alternate routes, there would be little point participating.

Coldwater Indian Band and WaterWealth both pushed for clarity on alternate routes in Coldwater's hearing. Trans Mountain argued "alternatives outside the approved corridor are beyond the scope of this process.” WaterWealth argued that alternate routes should be in scope, citing replies we'd received from the federal Minister of Natural Resources (then James Carr, one of five Ministers of Natural Resources since the Project began). It was a relief when the NEB settled the question, with “Evidence of an alternative route outside of the approved corridor falls within the scope of Issue No. 1 in the List of Issues for all detailed route hearings.”

Yet in written evidence in the City of Chilliwack detailed route hearing Trans Mountain again argued "alternative routes outside this corridor are not within the scope of this detailed route hearing.”

Then the Project's federal approval got quashed by the courts.

Following the second federal approval of the Project, detailed route hearings were starting again and again the admissibility of alternate routes was somehow a question. The restart of regulatory processes came just before the National Energy Board was replaced by the Canada Energy Regulator (CER). Credible and varied sources were telling us the CER would not hear arguments of alternate routes. CER information sessions held in Chilliwack and Abbotsford did not clarify. Maybe the CER themselves were undecided?

There was also confusion about whether the realignment hearing that had taken place for the area around Watson Elementary School had already been the detailed route hearing for that area. WaterWealth was certain from NEB rulings in relation to that hearing that the detailed route hearing still had to take place, but wherever the confusion was arising from it was another hurdle to getting others to engage.

There was nothing to do but keep going. After the unhelpful info sessions, WaterWealth phoned the CER and sent a letter in the form of questions but also making the argument that the realignment hearing had not been a detailed route hearing and that alternate routes are part of the detailed route hearings that were coming.

It was another moment of great relief when the Hearing Orders were issued and confirmed that the realignment hearing had not been simultaneously a detailed route hearing, and that alternate routes are in scope at least for hearings that have location of the pipeline in their List of Issues.protect-our-groundwater_stickpersonc.jpg

The List of Issues in the NEB Act, and now in the CER Act, are;

  • location of the pipeline;
  • methods of construction, and;
  • timing of construction.

A significant difference following the change from NEB to CER was that hearings arising from the new round of Statements of Opposition (SOO) did not necessarily get all three things included in their List of Issues. In fact the only new hearing arising out of the 2019 round of SOOs anywhere from Edmonton to Burnaby that did get all three things in its List of Issues was a landowner in Chilliwack who WaterWealth helped compose their SOO.

WaterWealth also worked with the District Parent Advisory Council (DPAC) to compose their SOO, resulting in a hearing that got location and timing in the List of Issues. Not all SOO result in a hearing at all, and 72% of new hearings from the 2019 round only got one thing in their List of Issues so perhaps, as the Meatloaf song goes, two out of three ain't bad?

The hearings have been challenging. Trans Mountain's written evidence and supplimentary evidence were filed, then covid-19 disrupted the process. Several rounds of information requests followed, various motions including a successful one by WaterWealth to have affidavits (essentially, having parties swear that their evidence is true) restored to the hearings after the process changes for covid-19 had resulted in no step for that remaining.

Parties to hearings have filed their written evidence. Some of those:

A number of alternate routes have been raised, and areas of particular public safety and ecological concern identified among all the filings. In an encouraging move, the CER is having Trans Mountain produce maps showing all of those things in a consistent scale so they can be readily compared. The Hearing Orders had required some of that already in Trans Mountain's written evidence. But, for example, the 'detailed maps' filed by Trans Mountain in their evidence had omitted to indicate the locations of City wells near their proposed pipeline route.

Trans Mountain filed a motion asking for an extension on the deadline to produce the new maps, and comments on that motion have been filed by some parties. Likely the extension will be granted.

The next step will be Trans Mountain's reply evidence, then we move to the argument phase of the hearings. Some hearings will have written argument and reply argument. Some will use video conference. The schedule for that has not been issued yet. but it will probably be around the end of August or beginning of September.

Then we wait.

The CER will issue their decision within 12 weeks of the end of the argument phase. So by the end of this year we will know if all these years of effort have achieved the goal of protecting the City water supply and numerous high consequence and high value areas, such as Hopedale Slough in the Browne Creek Wetlands area seen below.

Looking at the 130 or so route hearings that have concluded on the Project so far, the company never loses. The closest perhaps was the one with Nestlé when the two companies came to an agreement at the last minute and went into the hearing together, asking the NEB to approve a minor change to take the pipeline slightly further away from Nestlé's wells in Hope. So whatever sort of prayer, magic, or luck you go by, please apply some toward a good outcome for our hearings in Chilliwack!

(There is so much more to the story than can fit in blog posts. Maybe a book some day?)


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commented 2020-07-17 22:11:24 -0700 · Flag
Epic struggle. Great work, great persistence, WaterWealth!