On August 30, 2018 the Federal Court of Appeal issued a ruling quashing the approval of Kinder Morgan's Trans Mountain Expansion Project. A half hour later Kinder Morgan shareholders voted almost unanimously to sell the 65-year old Trans Mountain system to the federal government for $4.5-billion dollars.

In 2007 Kinder Morgan reported the value of the existing system as $550 million. The federal purchase was also to include the permits, work to date, and shipping commitments for the Expansion Project. With Project approval gone, it is uncertain now whether that $4.5-billion buys anything more than a geriatric pipeline with all of its liabilities, and a pile of incomplete construction plans. The twinning project had not even completed pre-construction NEB conditions and route approvals.

The unanimous decision by the Court was a rebuke to federal governments, former and current. The NEB process was described as so flawed on multiple points that the Board's recommendation report did not meet the definition of a "report". The Court found that the Governor in Council erred in depending on the NEB report and failed in its own diligence in making the decision approving the Project.

In response to arguments by Tsleil-Waututh Nation; Squamish Nation; Musqueam Indian Band; Coldwater Indian Band; Aitchelitz, Skowkale, Shxwá:y Village, Soowahlie, Squiala, Tzeachten, Yakweakwioose, Skwah, & Ts’elxwéyeqw Tribe; Upper Nicola Band; and Stk’emlupsemc Te Secwepemc, the Court said that government failed to respond to concerns in a meaningful way and "did not appear to give any consideration to reasonable mitigation or accommodation measures".

Raincoast Conservation Foundation and Living Oceans Society, represented by Ecojustice, argued among other things that the NEB and Governor in Council failed to uphold the Species at Risk Act with respect to endangered Southern Resident orcas. The Court agreed, finding that the NEB unjustifiably excluded Project-related marine shipping from the Project’s description and failed to apply the Species at Risk Act to its consideration of the effects of Project-related marine shipping on the Southern Resident whales.

The result of NEB and federal government failures is that the Governor in Council approval of the project and the Certificate of Public Necessity and Convenience for the Project were quashed.

WaterWealth's Role

WaterWealth has been engaged on the Project since our launch in March 2013. We were an intervenor in the initial NEB hearing, from our application to participate in February 2014 to the close of the hearing in February 2016. In 2015 WaterWealth led community opposition to Kinder Morgan's offer of $800,000 to the City. We filed a motion asking the NEB to stop Kinder Morgan from making such offers to hearing participants while the hearings were under way, arguing that cash offers to participants cast doubt over the integrity of the process. (NEB turned that motion down.) When the City did make a deal with Kinder Morgan after the NEB hearing, they settled on $1.2-million. Not a bad bonus for taking an ethical position during the hearing. Late 2016, with federal and provincial Project approvals imminent, our work turned from arguing that the Project should not proceed, to arguing that if the project is built it should not be built along the old pipeline route across Chilliwack.

Risks could be eliminated from City of Chilliwack and Yarrow Waterworks water sources, residential neighbourhoods, schools, and some of the region's most valued recreational and ecological areas by changing the pipeline route to follow Highway 1 between points east and west where it crosses the highway already.

Residents of Chilliwack engaged on the issue like no other community. Not even Burnaby, with its very vocal opposition to the project and nearly three times Chilliwack's population, matched Chilliwack for the number of statements filed with the NEB. One of the NEB Panel said during the segment 6.3 realignment hearing that the level of engagement by Chilliwack residents was why that realignment got a full hearing when realignments are usually just a paper exercise.

While the realignment Kinder Morgan put forward demanded opposition for the risks it imposed on the community, it was also a very welcome practice run. An opportunity for WaterWealth's Program Director to see how these hearings were being conducted, to gather information, and to get some experience at being cross-examined and conducting cross-examination. With the end goal of changing the entire route across Chilliwack, the outcome of the 1.8 km realignment segment 6.3 didn't really matter. Indeed, the outcome of the realignment hearing was almost certainly pre-determined, given that the Board had before it Kinder Morgan's original route, which had proven impossible to construct, or Kinder Morgan's proposed alternative. Given a choice of impossible or bad, it seemed likely the NEB would rule in favour of bad, and that they did.

Practice over, the main event was the detailed route hearings for the whole of segment 6. But despite participation as an intervenor in the initial NEB hearing and in the realignment hearing, WaterWealth was excluded from the detailed route hearings! Often when the NEB reject an intervenor application they allow the lesser participation as a commenter. Our application did not even get that! This led to a flurry of activity geared to setting up other options, and fortunately we were subsequently accepted by the NEB as an intervenor in the City of Chilliwack's hearing. We took that, fingers crossed that the City would see it through to the end. If the City dropped out at any point, the hearing would end and our participation in the regulatory process would end with it.

The segment 6 hearings were initially to be in two phases, but at Kinder Morgan's request the whole works got moved to the timeline of Phase 2. On that timeline Kinder Morgan filed their written evidence August 23. (Coincidentally our Program Director's birthday. Kinder Morgan's evidence made a welcome present!)

Our written evidence was due September 13, however, with the Project approvals nullified August 30 it seemed the detailed route hearings must stop. We waited for word from the Board.

A lawyer for a late hearing in segment 2 in Alberta wrote the Board saying;

"As the Order in Council approving the TMEP and directing the Board to issue a Certificate of Public Convenience and Necessity has been quashed, there is no longer any basis on which to proceed with Trans Mountain's Application for approval of its detailed route."

Kinder Morgan wrote regarding the same hearing (but apparently only that hearing) saying in part;

"We are writing on behalf of Trans Mountain to request that the Board suspend all remaining steps in the above noted proceeding in light of yesterday's ruling from the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada"

After what felt like an eternity (but was actually just the next day), the Board posted to its website a notice that read in part;

"Ongoing processes directly related to the Trans Mountain Expansion project, including consideration of condition compliance filings, Right of Entry applications and detailed route hearing processes, will cease."

As a hearing participant we assume we'll receive something further from the NEB confirming that our hearing is off, but it seems there is no doubt that is the case. At least for now.

What's Next

Since the court decision, the federal government has been talking tough about getting the pipeline built. A shame they don't care as strongly about protecting communities' drinking water sources! The Project is in a shambles now though, with multiple hearings cut off part way through, none of segment 6 and parts of other route segments including the Fraser River crossing and reroute of the old pipeline into the Burnaby tunnel not approved. And the very complex issues raised in the court decision to grapple with.

Hawkish statements by Trudeau and his Ministers may be shooting themselves in the foot with regard to future litigation. How can they argue they went back and engaged in meaningful consultation with First Nations when they've already declared in no uncertain terms their predetermined outcome? That is just the sort of approach the courts just threw back at them! (Check out Walking Eagle News for a humorous take on that!)

Estimates of how long it will take the Project to get back to the stage it was at the day before the court decision range from months to years to never. WaterWealth's pipeline plan takes two routes looking forward.

First, in Chilliwack we still have the 65 year old pipeline sitting over our drinking water and running through residential neighbourhoods within mere metres of peoples' back decks, across schools, and where it threatens regionally significant salmon habitat areas and the Great Blue Heron Nature Reserve.

The existing pipeline started in 1953 as a 150,000 barrel per day (bpd) line. Over the years its throughput has been increased to 300,000 bpd, with no upgrade of the pipe itself in our area. (With the twinning, throughput of the old pipe was to be increased yet again, to 350,000 bpd.) The threshold of detection for leaks is, according to Kinder Morgan, in the range of 2 to 5% of pipeline flow. 5% would be 99,375 litres per hour that could leak undetected.

One of the very troubling components of the diluted bitmen shipped from Alberta through that pipeline is benzene -- water soluble, toxic, carcinogenic, mutagenic -- which may be present in concentrations up to at least 0.7% according to industry documents we've seen. 0.7% of 99,375 litres per hour is 696 litres per hour of benzene that could be released.

The Canadian limit for benzene in drinking water is 0.005 ppm. An undetected 5% leak from the old pipe into our "protected" groundwater zone or upstream of Yarrow Waterworks wells could contaminate 139,200,000,000 litres of water per hour to the drinking water limit of 0.005 ppm!

Of course that wouldn't really happen. There wouldn't be that much water to contaminate.

"Do not operate school buses, or any vehicles, mechanical equipment, cellular phones, electronic devices or any item that could create a spark near a suspected release."

Kinder Morgan Canada, "Pipeline Emergency Response Guidelines for Schools" (pdf)

At the Kalamazoo spill in Michigan, 320 people reported symptoms of benzene exposure from the air, with readings as high as 3,000 ppb benzene. Benzene is also volatile, with the potential for fire or explosion. Were a significant leak to happen in the residential areas where the pipeline runs as little as 8 metres from homes, people and pets would certainly be affected, and ignition could occur from sources such as appliance pilot lights or backyard barbeques.

A diluted bitumen spill in our community could be disastrous for all of us, our homes, businesses, schools and hospital.

The old pipeline has had hundreds of repairs in more remote areas in recent years, but only a few in inhabited areas. At time of writing there is a location in Yarrow where the company knew the pipeline was exposed since 2010 but they never reported it to the NEB until now. 2010 regulations did not require them to report it, and when they filed an Operations and Maintenance notice for the repair work on this one they told the NEB that they do not intend to report other "historical" exposures either.

There is little doubt that repairs are needed or will be before long where the pipeline runs through residential areas, wooded areas, and under streams in our community. Those repairs will be difficult and costly, particularly in the residential neighbourhoods, due to difficulty accessing them.

So, with our own government now owning the pipeline, we will be pushing for the old pipeline to be replaced instead of just putting bandaids on to keep it running in locations where spill impacts would be worst. A new segment of pipe alongside Highway 1 would pose little or no danger to schools and residential areas, and no danger to community drinking water sources or areas of exceptional ecological value such as Peach Creek, Browne Creek Wetlands, and the Heron Reserve.

Secondly, the Expansion Project may rise from the dead to add 590,000 barrels per day additional risk to our community, 50,000 barrels per day of that going through the old pipe. If the expansion does return, and if whatever process it returns with has any integrity, we will once again find ourselves faced with detailed route hearings.

In case the existing pipeline is not being relocated by that time, we'll continue from experience gained to date and Kinder Morgan's written evidence filed just before the project stopped, to prepare the best case we can for those detailed route hearings. Those preparations can be tucked away and updated until and unless we receive some proof that the Project is really gone for good.

Meanwhile, it is very exciting after nearly 6 years on this file and the very intense focus of the past 2 years, to finally be able to engage more fully on other priorities! In particular we'll be turning more attention to our streamkeeping program, and returning to BC's Water Sustainability Act (WSA).

On the WSA file, an issue became apparent when Kinder Morgan put snow fence into seven streams to block spawning. They claimed that they can do that without having to ask any level of government's permission or forgiveness. After considerable public pressure the Oil and Gas Commission finally fined Kinder Morgan a whopping $230 for one of those installations. But why only one? The only difference we're aware of was that the one installation used rebar in addition to rocks to hold the snow fence in place. The absence of any consequence for the other six seems to support Kinder Morgan's assertion of being able to block spawning wherever and whenever they want without having to justify it or be accountable for it to anyone, so long as they don't use rebar it seems. And of course if they can do it so can anyone else. With wild salmon struggling and that affecting everything that relies on wild salmon -- such as the endangered orcas that were part of why the pipeline approval was quashed -- this gaping hole in our environmental protections cannot be allowed to remain.

Of course along with the hard issues we'll be looking for fun ways to help people experience and appreciate the physical, spiritual, cultural and ecological wealth that is in our shared home waters!

Along that vein, a couple of events by others we'll be participating in this month are:

- A bike tour of Camp and Hope Sloughs on September 15, 10 am to 2 pm, with SOS Save Our Slough, Watershed Watch and others. Family friendly, various routes, BBQ finish, start/finish at the Scouts Hall, 47130 Hope River Rd, Chilliwack.

- The Chilliwack Vedder River Cleanup Society's BC Rivers Day - River Cleanup September 23, 8:30 am to 1:30 pm. Lunch, prizes, always a great time! At the Chilliwack Fish & Game Clubhouse, 48685 Chilliwack Lake Road. Look for salmon spawning in the stream there!

If you're around Chilliwack on those dates, come out and join in!

Our Wealth is in Our Water, Let's Protect It!

Might we be forgiven for thinking on January 18 when the Chairperson declared the Chilliwack Realignment hearing adjourned, that all that was left was to wait for the NEB Panel's decision?

There was still one NEB information request that Kinder Morgan were to respond to on February 2, but it was regarding electrical issues around the BC Hydro towers. The pipeline routes in play are the one the old pipeline is already on and another BC Hydro said is acceptable in a letter included with Kinder Morgan's realignment application. There wouldn't be anything too significant in that February 2 filing, right?

Wrong. (jump to March 8 update)

Canadians are generous in disaster response. Domestically an outstanding example is the $189-million in private donations to the Canadian Red Cross for Fort McMurray wildfire relief. Along with $104-million from the federal government and $30-million from the Alberta government, Fort McMurray wildfire relief was the largest response to a disaster in Canadian history. It is interesting to note that the greatest contribution came from private sources rather than from government.

Of course the first principle of risk control is to eliminate the risk if possible. What if we could support disaster prevention instead of disaster response?

Let's Not Double-Down on the
Greatest Single Threat to Chilliwack's Water Supply

Places we love, assets our community depends on,
match places of compounding risks to the pipeline.

Let's change the route!

Kinder Morgan want to twin their Trans Mountain pipeline. Whether you think the new pipeline should be built or not, the fact is that the existing route is not a gamble Chilliwack can afford.

Trans Mountain runs near and even across several schools in Chilliwack. It crosses two salmon enhancement areas, the Vedder Rotary Trail, and the Vedder River just upstream of the Great Blue Heron Reserve, all while running along the Vedder Mountain Fault and crossing a zone of very high liquefaction susceptibility. Worst of all, it lies on top of and even in the aquifer all of us in our homes, businesses, schools and hospital get our water from.

Let's not double down on this gamble with our water supply by adding yet another heavy oil pipeline across the aquifer. Instead let's remove the threat of oil spill from our community's water supply certainly and permanently by moving the pipelines off of the aquifer!

Read on for more info, or if you want to take action now - click here to go to the petition!

Old Pipe Reaching End of Life? Not According to Kinder Morgan.

The existing 63 year old pipeline has had 82 spills so far according to Kinder Morgan. In 2013 two spills occurred near the Coquilhalla Summit. They were not detected by pipeline safety systems or by in-line test equipment. Subsequently Kinder Morgan reviewed all of their in-line test data and have dug up the pipeline in many, perhaps hundreds of places for inspection and repair. Residents of Chilliwack who went to see the spill locations in 2013 found not two repair sites, but many. Excavations were found over the summit and all down the Coquihalla Canyon. We don't know how many repairs have been done or need to be done, but from one freedom of information request document we do know that 119 locations that met the dig criteria were identified in the Darfield to Hargrieves section of the pipeline, a length of only 279 km. Almost one for every two kilometres of pipeline!

Oddly, no repairs have been done where the pipeline crosses the aquifers and populated areas through Chilliwack. That the old pipe has not leaked into the aquifer yet is really just luck, and Kinder Morgan has no intentions to take that 63 year old pipe out of service. Compare that to the Enbridge Line 6B (pictured) that was 41 years old when it spilled three million litres of diluted bitumen into Talmadge Creek and the Kalamazoo River. Enbridge completely replaced that pipeline after the spill and in a July 2016 consent decree signed by Enbridge and the US government in settlement of that spill Enbridge agreed to also replace their now 48 year old Line 3 pipeline.

Won't the New Pipeline be Safer?
Don't bet your community's well being on it!

To cite just one example, in 2015 a Nexen owned double-walled pipeline less than a year old leaked for a month in Northern Alberta. Five million litres spilled and pipeline safety systems did not detect it. Like Kinder Morgan's 2013 spills, the 2015 Nexen spill was discovered by someone on the ground who happened across the spill.

Why put even a new pipeline across the aquifer when they could just go around it?

Chilliwack Jobs at Risk

The City of Chilliwack letter of comment to the National Energy Board (NEB) said "Once contaminated, it is unlikely that the aquifer could be remediated adequately to use for drinking water purposes again."  What would Chilliwack businesses do if they suddenly had no water? What would our hospital do? Farms, coffee shops, restaurants, craft breweries...large brewery!

Molson's press release when they announced that they are moving their brewery to Chilliwack said “Our brewers are delighted with the quality of water in Chilliwack, a key ingredient to producing our great beers and ciders."  Would Molson still be coming to town if the aquifer suffered an oil spill? Perhaps they could sell a "Bitumen Dark" novelty item instead of beer. 

Chilliwack jobs will be at risk if we do not change the route. 

National Energy Board Fail

On May 19th, 2016 the NEB issued a report recommending approval of Kinder Morgan's Trans Mountain Expansion project. That despite acknowledging the compounding risks found in the Chilliwack section of the pipeline route and continued uncertainties of project details.

WaterWealth's Campaign Director Ian Stephen participated personally in the NEB hearing as a commenter. Points raised in Stephen's letter of comment, based in part on a document from the Washington State Energy Facility Site Evaluation Council that stated that the Vedder Mountain and Sumas faults are indeed active faults, received mention in a paragraph of the NEB report that read;

"In a letter of comment, Ian Stephen questioned Trans Mountain’s assertion that no historical earthquakes have occurred near Vedder Mountain Fault or Sumas Fault. He also recommended a route change due to the potential for compounding risks where the Vedder Mountain and Sumas Faults are in proximity to each other, based on the increased risk of liquefaction, flooding, and earthquake-triggered river bank activity."

Those faults were two of four that received particular mention from Natural Resources Canada in the NEB hearings, and at the time of the NEB report Kinder Morgan was still carrying out investigation of the risks, and potential for compounding risks, posed by these faults. Kinder Morgan haven't even finished their analysis and design, yet the NEB already recommended the project get the go-ahead!

The NEB's recommendations for the new pipeline did include requirements for groundwater monitoring. However we who live in Chilliwack, who drink that groundwater, who fish the Vedder River and eat locally grown produce cannot be satisfied with simply being notified when the water becomes contaminated. We must demand that the water not be contaminated in the first place!

The NEB has failed to protect our interests, but we can still fix this!

Certainly and Permanently Remove the Threat of Oil Spill from the Water Supply

If the project is approved, the only way to certainly and permanently remove the threat of oil spill from the water supply our community depends on is to change the pipeline route. The pipeline already runs alongside and even under the Trans Canada Highway from Hope to Chilliwack. It crosses the highway again west of Chilliwack before going up Sumas Mountain. If the expansion project receives federal approval Kinder Morgan/Trans Mountain have to dig a new trench to put the new pipe in anyway. If they were to dig that trench along the highway they could decommission the old pipeline where it lies over the aquifer, run two pipes in the new trench across Chilliwack and connect to the old pipeline where it already crosses the highway east and west of the aquifer.

Benefits of a route along the highway:

• The pipeline would be removed from Vedder Middle School, Watson Elementary, and John Calvin Christian Elementary School.
• The pipeline would be removed from Peach Creek and Browne Creek Wetlands salmon enhancement areas, the Vedder River, and the Great Blue Heron Reserve.
• The pipeline would be moved away from the Vedder Mountain Fault, and the zone of very high liquefaction susceptibility at its present Vedder River crossing location.
• In the event of a spill in the section along the highway, valves on culverts where streams pass under the highway could be closed to use the highway itself as containment to keep oil from reaching the Fraser River.
• In the event of a spill at the new crossing on Vedder Canal, spill containment and cleanup techniques would be much more effective than on the fast, turbulent water of the present crossing location on Vedder River.
• Most importantly for our community, the pipeline would no longer threaten the water supply. It would cross only the bottom tip of the aquifer, 'downstream' as the aquifer flows and far from city wells.

We All Need to Pull Together on This. Here's How We Begin!

While the National Energy Board failed to protect our community from the threat of oil spill into our water supply, they left the door open to route changes like the one proposed by WaterWealth. The NEB report said “The Board notes that the detailed route for the Project has not been finalized,” and that “The Board is of the view that the opportunity exists for detailed route alignments that may further minimize impacts to those directly affected.”

It is up to us to make this route change a reality! Following the NEB report, the federal government appointed a Ministerial Panel to hear from people along the pipeline route. WaterWealth presented to the Ministerial Panel at an NGO Roundtable on 26 July 2016, outlining the risks in this part of the pipeline and asking the Ministerial Panel and the federal government to correct the NEB's failure to protect our community's water supply.

That presentation is now available in video.

The Ministerial Panel will continue to gather feedback until September 30 to help inform the federal government's decision in December. If each of us in Chilliwack speak up and get these pipelines removed from over the aquifer we can rest assured that oil spill will not steal from our children and grandchildren the drinking water that we have always enjoyed -- some of the best in the world.

Please take a few minutes today
to provide your thoughts to the Ministerial Panel
through their on-line questionnaire or by email. 

The Ministerial Panel is just the beginning. To stay in the loop as this work progresses, you can join our email list, 'like' WaterWealth on Facebook, and/or follow @Water_Wealth on Twitter. 

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