TMX Stakes Out Intent to Ignore Spawning Cycles

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There are three issues in the regulatory process for legitimizing whatever route choices a company makes in a pipeline project1:

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

In Chilliwack timing was a key issue at Browne Creek Wetlands, a significant ecological area that the City's proposed alternate routes completely abandoned as they rejoined Trans Mountain's route before Peach Creek. (Timing was also a key issue at Watson Elementary School, thanks to efforts of the District Parent Advisory Council2)

Trans Mountain's reply evidence to WaterWealth said:

"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);"

That was the summer timing approved by the Canada Energy Regulator (CER) in the hearing decision. [UPDATE: See "Bad News Update" at the bottom of this post.]

March 5 we got word that Trans Mountain workers were in Browne Creek Wetlands staking out the construction site. It should go without saying, but for the benefit of any Trans Mountain staff reading, March 5 is not summer.

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When the CER approved Trans Mountain's timing in Chilliwack, they wrote:

"Given that Trans Mountain plans to construct across the Browne Creek Wetlands (at the Vedder River crossing) in the summer, at which time the wetland is anticipated to be dry where the crossing occurs, and that no specific impacts or concerns regarding timing have been raised other than those discussed above, the Commission finds that, on a balance of probabilities, Trans Mountain’s proposed timing of construction on the Lands is the most appropriate in the circumstances." (emphasis added)

In October 2021 Trans Mountain first confirmed that they did not intend to abide by the CER approved timing. Instead they said they planned to do the work in Browne Creek Wetlands for the Vedder River crossing starting in January. January is not summer.

WaterWealth wrote to Chilliwack mayor and council, to City staff, and to the CER about Trans Mountain's intent to ignore the approved timing. Other than acknowledgements of receipt of those communications there has been no word from any of them since. Letters by another to our MP have similarly gone unanswered. Fortunately construction did not begin in January because Trans Mountain weren't ready, which is pretty typical for the project. . 

February 23 Trans Mountain told the CER "Construction preparation will commence mid-April and construction will commence early May," and they've asked for timing relief from one of the project's original NEB conditions to do it too. As of this writing the CER have not replied. Early May is not summer.

This matters for fish and amphibians who live and spawn in waters there, and for every other species that benefits from the interconnecting natural systems in this vital wetland habitat area, from invertebrates below to eagles above.

In the photo below, taken March 6, you see stakes marking out the work site. It is not summer. It's not even mid-April, the time they said construction preparation would commence in that Feb. 23 filing the CER haven't replied to yet.

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In the next image the thin blue line (no pun intended) indicates the main area marked by Trans Mountain's stakes. (Image taken from this online map) There were some stakes closer to Hopedale Slough as well, but this shows the main work space rectangle.

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The blue line on our map only extends down the old pipeline right-of-way to where it is crossed by a barbed wire fence. Between that and blackberry bushes we did not try to close the rectangle or follow the stakes to the point where the two right-of-ways fully merge. Hopedale Slough and Browne Creek are highlighted in light blue to illustrate how the workspace is almost ringed by these streams. They flow to the left in this image. The point where they join is very approximate as it is concealed by trees in map imagery.

The BC Habitat Wizard stream report for Hopedale Slough and for Browne Creek lists coastal cutthroat trout, coho salmon, largemouth bass, northern pikeminnow, prickly sculpin, pumpkinseed, redside shiner, Salish sucker, and threespine stickleback. Chum salmon also spawn there, as seen in this video. Hopedale Slough is listed as critical habitat for Salish sucker in the federal Recovery Strategy for Salish Sucker. Amphibians are found throughout the area. The Great Blue Heron Nature Reserve (a SARA species of special concern) is across Vedder River a short distance away.

It does appear the area staked out by Trans Mountain matches the work space approved in the hearings, as seen in the next image which is an excerpt from one of Trans Mountain's Condition 67 filings. (Click to see larger version in a new window.) There the green dashed line indicates the 1953 Trans Mountain pipeline, the blue and purple indicate the Expansion Project alignment.

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The area is part of a 15 acre piece of land that spans Vedder River and is described on BC Assessment as "Mixed (Vacant)". It is ALR land within the City of Chilliwack, zoned RS2 Public Use Reserve which allows a small list of principle uses including outdoor recreation and general agriculture. It does look like someone uses the land for grazing animals, though none have been seen there lately.

On March 6 the ground was saturated, with water pooling over much of the area. Canada geese, mallards, red winged blackbirds, and robins were present. Small fish could be seen jumping in the streams and signs of beaver activity are common.

If Trans Mountain's work in the area went perfectly it may not have major impacts on the streams and the wetland would recover over a period of years, though it looks like some beautiful mature trees would be lost. Of course as anyone who has been paying attention to the project knows, things do not go perfectly. Trans Mountain has had problems in many locations with sediment runoff during heavy rains, fuel and hydraulic fluid spills, 'frac out' of drilling fluids at trenchless crossings with salmon deaths in at least one instance, heavy equipment in Coquihalla River caught by rising water, a trenchless crossing failure in Coquitlam that may have been the cause of damage to Mary Hill Bypass, contractors removing trees outside of approved work space or cutting trees with live nests in them, and more.

Eggs and embryos of freshwater species require clean, well oxygenated water for their development. Water flow within the gravel stream bed is critical. The young hatching out need healthy, abundant invertebrate populations to feed on as they grow to their next phases of life. Coho young will spend up to two years in freshwater before making their way to the sea. Salish sucker live their entire lives in a small freshwater home range.

The summer timing approved for Browne Creek Wetlands doesn't just matter because the Commission of the Canada Energy Regulator is a court of record with powers, rights and privileges of a superior court, and its decisions should actually mean something to the companies it regulates. The summer timing matters because Browne Creek Wetlands is a very sensitive habitat area and a remnant of a habitat type that has been all but lost in the Fraser Valley since colonization.

At the time of this writing, five days shy of five months after WaterWealth questioned Trans Mountain's plans and Trans Mountain confirmed their intent to ignore the summer timing, having heard nothing from CER still, it is hard not to conclude that the decisions of the CER only matter as much as the company chooses. But the habitat matters. The species within it matter. Even if the company and its enablers choose not to think so.

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Some comments expanding on a couple of items from the beginning of this post

1 "three issues in the regulatory process for legitimizing whatever route choices a company makes in a pipeline project."

When the National Energy Board was the regulator all three of the routing issues -- location of the pipeline, methods of construction, timing of construction -- were within scope for all detailed route hearings. The National Energy Board took a lot of criticism. Enough that one of the reasons the government stated for replacing it was that the NEB had lost public confidence. And while NEB decisions did fall in line with the company's wishes almost without fail, it is worth noting that one of the NEB Panel did issue a dissenting opinion in at least one route hearing. During the Chilliwack realignment hearing for the pipeline segment that wound up in the elementary school that same Panel member also expressed interest in increasing public engagement in regulatory processes.

When the Canada Energy Regulator took over, all three of the issues were only within default scope of hearings that had already been under way. For hearings resulting from statements of opposition filed under the second federal approval of the project most only included one of the three issues. Only one new hearing had all three issues in scope. It is a small point of pride that WaterWealth helped compose that statement of opposition. Not that having all three issues in scope helped in that case. "The company takes what the company wants".

2 "Timing was also a key issue at Watson Elementary School, thanks to efforts of the District Parent Advisory Council."

Another statement of opposition that WaterWealth helped compose, the District Parent Advisory Council (DPAC) was one of only a few to be granted more than one issue in scope by the CER. DPAC was granted location of the pipeline and timing of construction. Timing matters at an elementary school for safe student access and use of school property. WaterWealth and DPAC collaborated in that hearing effort and won important concessions for safe routes to the property, and limits to the time the company would use the grounds as, particularly since covid, student access to outdoor areas of the school is important not only for physical activities but also for social development. (The school property also has City wells on it.)

After the hearings Trans Mountain filed lists of commitments arising from the hearings. In the list for the elementary school, commitments differed from the originals in ways that were subtle in wording but brazen in effect. WaterWealth worked with DPAC to file a complaint that compared the hearing record wording to the commitment list wording and explained why the differences were important. On September 27, 2021 Trans Mountain responded with a revised commitment list that restored the original meaning of the commitments with the exception of one mutually agreeable change -- that being to include the School District in engagement on construction-related concerns prior to construction.

Since then Trans Mountain filed right-of-entry applications for the elementary school property without informing DPAC per the "engagement on contruction-related concerns" commitment. And, as of Trans Mountain's March 2022 monthly Commitments Tracking Table filing, the commitment list still does not include the revisions they said they would do to restore the original meanings of the commitments. The CER, the body we are told oversees such projects, has made no comment on the commitment lists at all.

Bad News Update: Almost simultaneous to this blog post being published, a letter was received from the CER aligning with Trans Mountain's reduction of Browne Creek Wetlands to mean essentially the course of Browne Creek for the purposes of the timing commitment. So much for "at the Vedder River crossing" in the hearing decision. There is officially no timing protection with regard to the massive disruption posed by the drilling for the Hopedale/Vedder/Peach Creek crossing, equipment for which will span the area staked out between Browne Creek and Hopedale Slough.

2nd Update: This is unusual but the letter from the CER -- the one telling us in effect that their words in the hearing decision, "at the Vedder River crossing", didn't mean 'at the Vedder River crossing' but rather meant sort of 'over there' where Trans Mountain says it means -- that letter didn't appear in the public record for the project in Regdocs. At least not in the Regdocs inbox and not under "Other Correspondence" where WaterWealth's letters about the Browne Creek Wetlands timing issue appear.

So it is uploaded to WaterWealth's Google Drive, and here's a link for anyone who would like to read it themselves. Ignore the spelling of our Program Director's name. They got that wrong. And ignore the address they put for WaterWealth. WaterWealth hasn't been at that address since November 2015.

 


 

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published this page in Blog 2022-03-07 15:09:09 -0800