Pipelines – Detailed Route Hearings
The background of this proceeding is set out in this newsletter in Trans Mountain Pipeline ULC Detailed Route Hearing MH-010-2020 – Chilliwack School District, District Parent Advisory Council, and City of Chilliwack.
Detailed Route Hearing MH-026-2020
On 16 September 2020, the CER received statements of opposition (“SOO(s)”) from Chilliwack seeking to resume its 2017/2018 detailed route hearing (MH-020-2018). SOOs were also filed and later withdrawn by Indigenous groups.
On 31 January 2020, the CER issued a Procedural Direction explaining that there are a number of instances where the geographical focus of one detailed route hearing overlaps with that of one or more other hearings. This Detailed Route Hearing MH-026-2020 relates to all tracts of land in Segments 6.2, 6.3, and 6.4, except Tracts 2307, 2352, 2410, and 2438 (the “Lands”). No decisions are being made in respect of these tracts in this Letter Decision as these lands are the subject of Detailed Route Hearings MH-010-2020, MH-011-2020, MH-013-2020, and MH-015-2020, respectively. These five hearings are referred to collectively as the “Chilliwack-Area Hearings”. The CER’s Letter Decisions for all Chilliwack-Area Hearings are related; they collectively decide the detailed route, methods of construction, and timing of construction for the Chilliwack area and are therefore being released concurrently.
As Chilliwack was resuming its 2017/18 detailed route hearing (MH-020-2018), the CER decided that it would bring forward and adopt the entirety of that previous record.
Overview of the Proposed Route on the Lands
The figure below shows Trans Mountain’s proposed route (in red); alternate routes proposed by Chilliwack (in navy blue) and the WaterWealth Project (in green); and locations of properties:
How Does the Chilliwack Realignment Relate to this Proceeding?
The CER noted that it is not reviewing the NEB’s Realignment Report and subsequent GIC- approved variance of the Certificate. A detailed route proceeding is not a review of a Certificate or variance decision. However, some topics that were considered for the purpose of approving the general corridor of the Trans Mountain Expansion Project (“TMEP”) (or realignment of that corridor) may also be relevant to the consideration of the proposed detailed route. Accordingly, all matters that were considered for the purpose of approving the general corridor (or realignment) are not necessarily out of scope for this detailed route hearing.
Was Trans Mountain’s Notice to Chilliwack Sufficient?
Chilliwack was concerned that the notice regarding the Lands to be acquired issued to it by Trans Mountain did not meet the requirements of section 34(1)(a) of the National Energy Board Act (“NEB Act”), which was still in effect at the time of notices being issued. Chilliwack and Trans Mountain disagreed on whether Chilliwack was the owner of the Charter Lands as per section 35 of the Community Charter and, therefore, if it was entitled to individual notice for those Charter Lands.
Trans Mountain’s proposed form and method of notice had been approved by the NEB. It included an indication that it would notify registered owners in so far as they can be ascertained. The CER determined that to comply with paragraph 34(1)(a), performing searches of the public registry is a reasonable and reliable method for ascertaining the owners of lands. These steps had been taken by Trans Mountain in notifying registered owners of land.
The CER noted that section 34 notice requirements serve to enable those whose interests in lands may be impacted to take steps to protect their interests by participating in the detailed route approval process. The CER found that the notice provided to Chilliwack by Trans Mountain achieved this objective. Further, the CER noted that Chilliwack had the opportunity throughout the hearing process to present its case regarding both its registered ownership and Charter Land interests. Chilliwack chose to limit its participation to general descriptions of the impacts on its interests rather than providing specific information to describe these potential impacts. The CER found that this was not attributable to a lack of notice, information, or opportunity but was a choice that Chilliwack made. Chilliwack suffered no prejudice in its ability to participate, and the process was procedurally fair.
Accordingly, the CER found that Trans Mountain had met the notice requirements of section 34 and that Chilliwack had not suffered prejudice in its ability to fully participate in the fair process.
Is Trans Mountain’s Proposed Route the Best Possible Route?
(a) What is the risk to the Sardis-Vedder Aquifer and associated water wells?
The Chilliwack Realignment hearing included detailed consideration of risks to the Sardis-Vedder Aquifer (the “Aquifer”) and Chilliwack water wells for the purpose of approving the corridor. That hearing included consideration of risks to the Sardis-Vedder Aquifer and Chilliwack water wells. In that hearing, the NEB found that for leaked or spilled oil to reach the wells a series of events had to occur. It concluded that the probability of this series occurring was not zero but minimal. The Aquifer supplies water to 98 percent of all schools and family homes in the district. This issue had been brought up and considered by the NEB. Because the Aquifer supplies water to 98 percent of schools and homes in the district, District Parent Advisory Council submitted that the TMEP should be routed away from the Aquifer and wells in the area.
With regard to the Sardis-Vedder Aquifer, the CER noted that the Chilliwack Realignment hearing considered in detail the risk that the Approved Corridor (and thus of Trans Mountain’s proposed route) posed to the Aquifer and Chilliwack’s water wells. The Realignment Report concluded that the risk to Chilliwack’s wells is minimal, but not zero. The CER agreed. It rejected the suggestion that Trans Mountain install a trench liner, finding that it would likely introduce pipeline integrity challenges and that the TMEP leak detection system made a trench liner unnecessary.
(b) What are the potential effects on the Vedder River and adjacent ecosystems?
Concerns were raised regarding impacts on the Browne Creek Wetlands, just south of the Vedder River. Chilliwack requests a reconsideration of the route to move the pipeline away from this important and sensitive natural feature. Participants also raised concerns about risks from a pipeline spill to downstream environmental features.
The CER found that the trenchless crossing proposed by Trans Mountain is expected to avoid most adverse effects on the Vedder River and adjacent Peach Creek because it will pass beneath them. It found that the remaining effects on the surrounding environment and ecosystems will be temporary or be sufficiently and effectively addressed by Trans Mountains mitigation measures.
(c) What are potential effects on municipal infrastructure, schools, and residential areas?
Chilliwack was concerned that the route would affect municipal lands needed for infrastructure purposes and that Trans Mountain had not sought information from Chilliwack about any future infrastructure. Further concerns were raised by participants regarding impacts on schools and residences by the route and future maintenance.
The CER noted that the proposed route could impact future municipal infrastructure and could result in inconveniences to Chilliwack. However, it found that Chilliwack did not submit evidence to describe future infrastructure plans or what the impact of the proposed route would be. Similarly, the CER noted the Chilliwack had provided very little information or evidence on the impacts to its Charter Lands or utilities. Accordingly, the CER agreed with Trans Mountain that, since the TMEP would be installed within the TMPL easement, potential impacts on future municipal infrastructure will change marginally with the TMEP’s installation. The CER noted its expectation of Trans Mountain to continue working with Chilliwack, as required by project conditions, to address future concerns.
The CER agreed with the findings of the Chilliwack Realignment hearing, that mitigation measures including scheduling construction activities on certain lands between the months of July and August to avoid impacts on schools, restricting access to the construction zone by fencing the entire construction area and implementing traffic management plans, proposed by Trans Mountain sufficiently addresses potential safety concerns associated with the proposed route through the Vedder Middle and residential areas within the Lands.
The CER repeated the NEB’s recommendation from the Realignment Report that determined it to be acceptable to revert to the first criterion. Additionally, routing through a highly-populated area is a complex and complicated constraint mapping activity that involves weighing the interests and concerns of various stakeholders. The CER found it appropriate that Trans Mountain considered site-specific factors and its own routing guidelines in applying the routing criteria. It found that Trans Mountain had appropriately applied its routing criteria in the flexible manner required, the application of the criteria was sufficiently justified, and that site-specific criteria were considered.
(d) Considering Chilliwack’s Alternate Routes, is Trans Mountain’s Proposed route the Best Possible Detailed Route?
Chilliwack proposed routing the TMEP north of the Approved Corridor and either routing along Highway 1 or one of a number of other highway options. Chilliwack submitted that this would better protect the Sardis-Vedder Aquifer, Chilliwack’s wells and that it would avoid crossing several municipal roads and conflicts with existing utilities.
Trans Mountain disagreed with the statement that the alternative would overlap with existing infrastructure in fewer locations. Trans Mountain also argued that Chilliwack’s alternate routes are unfeasible from an engineering and constructability perspective. It argued that the routes required consent from other parties such as Telus and BC Hydro that was very unlikely to be provided. Further, the routes intersect with other infrastructure in a way that does not allow enough space to safely and efficiently construct the pipeline. The alternative routes further conflicted with other infrastructure and construction guidelines in a manner that would make construction unfeasible in some sections.
The CER found that the routes proposed by Chilliwack would effectively eliminate risks to the Chilliwack’s water wells and that they would avoid certain municipal infrastructure and associated inconvenience. However, the CER determined that the issues associated with the alternate routes, particularly the feasibility issues resulting from their intersection with the BC Hydro power lines, TELUS fiber optic cables, and Ministry of Transportation and Infrastructure lands, outweighed the potential benefits.
Further, the CER agreed with Trans Mountain that the routes proposed by Chilliwack pose space constraints to the extent that would make constructing the pipeline in the area difficult to impossible without posing a risk to the intersecting infrastructure. Chilliwack’s proposed routes would further contradict Trans Mountain’s routing criteria by increasing land fragmentation.
Considering WaterWealth’s Alternate Route, is Trans Mountain’s Proposed Route the Best Possible Detailed Route?
WaterWealth proposed an alternate route that would run northwest of the proposed TMEP. Similar to submissions of Chilliwack, WaterWealth argued that its proposed route better protects Chilliwack’s water wells. It further argued that its route is better than Trans Mountain’s route for constructability and environmental, cultural, and socio-economic suitability. The alternate route would be slightly shorter, better avoids areas of significant environmental and cultural value and better minimizes routing through areas of extensive urban development. Additionally, this alternate route would avoid the Vedder River and adjacent ecosystems.
Trans Mountain argued that this route does not align with its routing criteria for various reasons, including that it does not parallel existing infrastructure for most of the route, would cause construction delays of at least two years and increase land use fragmentation, the use of previously undisturbed lands, the use of unencumbered lands. Further, the route would be unfeasible as it is not supported by Chilliwack, creates conflicts with infrastructures, does not allow for enough space to safely construct the pipeline, and relies on an unfeasible crossing of the Trans-Canada Highway.
While WaterWealth’s route would avoid or even eliminate residual risks of the pipeline to the environment and Chilliwack’s water wells, the CER found that Trans Mountain’s route was again superior considering routing criteria, the feasibility of construction land fragmentation and potential delay.
Are Trans Mountain’s Proposed Methods of Constructing the Pipeline the Most Appropriate?
Trans Mountain proposed to use open-trench and trenchless construction methodologies on different portions of the Lands to minimize disruption to landowners and environmental impact. The CER was satisfied that this approach and the proposal to limit ditch trenching for open-trench construction to the dry season minimizes potential effects on the surrounding environment and ecosystems. The CER further concluded that plans and measures committed to by Trans Mountain would appropriately minimize impacts on homes in this densely populated area of the Lands.
The CER found that Trans Mountain’s proposal to limit ditch trenching for open-trench construction to the dry season minimizes potential effects on the Browne Creek Wetlands. Further, the trenchless crossings of the Vedder River, Dunville Creek, and Peach Creek minimize impacts on these features and associated ecosystems.
Trans Mountain’s commitments to develop site-specific construction execution plans before starting construction activities in Segment 6.3, and to construct the pipeline based on a Heavily Restricted Construction Footprint model, appropriately minimize impacts on homes in this densely populated area of the Lands.
Considering Chilliwack’s concern that it had not been given enough information on the proposed methods of construction and that approval of them was premature, the CER stated that enough information was contained in Trans Mountain’s evidence to enable parties to understand the proposed methods of construction. Further, Chilliwack had had multiple opportunities to request more information from Trans Mountain, yet Chilliwack had limited its question to verifying its own belief that notice and information provided were not enough.
Is Trans Mountain’s Proposed Timing of Constructing the Pipeline the Most Appropriate?
The CER found that Trans Mountain provided enough evidence to allow Chilliwack to predict and present evidence of the potential impacts on its municipal operations and planning during the proposed timing window. Chilliwack had provided little evidence of its own operational planning, potential plans, variable or other information that would help the CER in determining how the proposed timing of construction impacts Chilliwack’s concerns.
Preparatory evidence was submitted to possibly be completed by Q1 2021, and that construction for the Charter Lands is scheduled for Q3 2021. This was within the broader timeframe for construction presented by Trans Mountain in its earlier evidence.
The CER finds that Trans Mountain’s proposed timing of constructing the TMEP on the Lands is the most appropriate and reminded both parties of their respective roles in using the technical working groups to meaningfully address the timing of construction going forward.
The CER decided that Trans Mountain’s proposed route is the best possible detailed route on the Lands, and the proposed methods and timing of constructing the pipeline are the most appropriate, subject to the commitments made by Trans Mountain and ongoing compliance with the Certificate OC-065 conditions.