Regulatory Law Chambers logo

Trans Mountain Pipeline ULC Variance Application to Construct and Operate the Coldwater West Alternative Route, CER Reasons for Decision MH-032-2021

Link to Decision Summarized

TMEP Route Alternative

On July 19, 2021, the CER approved the variance application from Trans Mountain Pipeline ULC (“Trans Mountain”) to construct and operate the Coldwater West Alternative Route (the “West Alternative”) in the Coldwater Valley of British Columbia, with reasons to follow. The West Alternative was proposed as an accommodation measure and was essentially unopposed. The CER also considered Trans Mountain’s submissions regarding the West Alternative being a critical path construction priority, as well as Coldwater Indian Band’s (“Coldwater”) request for a timely decision.

Expected Benefits and Burdens of the West Alternative Compared to the East Route

The CER considered the following benefits and burdens of the West Alternative compared with those associated with the previously approved East Route.

The CER expects the West Alternative to include the following benefits:

  • relatively lower risk to the aquifer underlying the Reserve, and Coldwater’s groundwater supply;

  • avoids known heritage sites of importance to Coldwater;

  • avoids impacts on traditional land use values, including places of great spiritual importance, that Coldwater members use on a daily basis;

  • less greenfield disturbance (4 km versus 10 km);

  • longer length paralleling existing linear infrastructure (14.37 km versus 7.55 km); and

  • avoids crossing two creeks (Kwinshatin and Skuagam) of spiritual and cultural value to Coldwater.

The CER expects the West Alternative to include the following burdens:

  • 2.85 km longer in length (18.31 km versus 15.46 km), which results in a marginally higher overall risk of a spill;

  • higher residual environmental effects for a number of valued environmental components as a result of a larger total area of right-of-way and workspace, including a larger riparian disturbance area, overlap with Species at Risk Act critical habitat, and wetlands; and

  • requires two crossings of the Coldwater River.

The CER gave significant weight to the evidence that the West Alternative would pose less risk to Coldwater’s groundwater supply than the East Route. The CER also gave weight to Coldwater’s strong preference for the West Alternative, as well as the support for Coldwater’s preference from other potentially affected Indigenous peoples and the lack of opposition from affected landowners. Lastly, the CER considered the mitigation measures Trans Mountain is required to implement and concluded the West Alternative could be constructed safely and in a manner consistent with environmental protection.

Consultation with Indigenous Peoples

As part of the CER’s hearing process, 25 Indigenous peoples or organizations were served with a Notice of Hearing. Coldwater, the Métis Nation British Columbia, the Nooaitch Indian Band, and the Siska Indian Band were granted intervenor status. The Cook’s Ferry Indian Band, the Natural Resources Management Division of Nooaitch Indian Band and the Spuzzum First Nation were granted commenter status as requested.

The CER determined that Trans Mountain had sufficiently consulted with affected Indigenous peoples. Further, it determined that between the CER’s hearing process and participation opportunities for Indigenous peoples and the Government of Canada’s consultation with Indigenous people coordinated by the CER, there had been adequate consultation and accommodation for the purposes of this decision. In coming to this conclusion, the CER interpreted its responsibilities consistent with the Constitution Act, 1982, including Section 35, which recognizes and affirms the existing Indigenous and Treaty rights of Indigenous peoples.

Land Matters and Facility

The CER acknowledged that the West Alternative parallels more existing linear infrastructure than the East Route. The CER found that Trans Mountain’s anticipated requirements for permanent and temporary land rights are appropriate to allow for the construction and operation of the West Alternative in a safe and efficient manner. Trans Mountain was also found to have anticipated requirements for land rights, and the process for the acquisition of these land rights is acceptable and will meet the requirements of the Canadian Energy Regulator Act (including sections 321 to 323) and provincial and local permitting authorities as applicable.

The CER determined that Trans Mountain’s pipeline design complies with CSA Z662 requirements and is consistent with the design that was approved in the Reconsideration Report.

Risk Assessment

Regarding third-party damage threats, Trans Mountain identified 14 100-meter long segments exceeding the risk threshold due to third-party damage concerns. These segments are in areas where the West Alternative passes through areas with more third-party activity, including certain agricultural and low-density residential areas near the Coldwater River. The CER recognized deeper burial and buried marker tape, proposed by Trans Mountain as acceptable third-party damage risk reduction measures.

Regarding natural hazards, the CER determined that hazards will be mitigated to acceptable levels through its trenchless crossings of the Coldwater River. The CER found that Trans Mountain’s risk assessment with respect to the Coldwater aquifer suggested a conservative approach in accounting for uncertainties.

In comparing the risk of the West Alternative to the East Route, the CER concluded that the slightly higher risk of the West Alternative is mostly attributable to the increased length (18.31 kilometers versus 15.46 km). The CER acknowledged that Coldwater and its consultant BC Groundwater Consulting Services Ltd. (“BC Groundwater”) were satisfied that the West Alternative avoids all impacts to the Coldwater aquifer, its community’s sole source of drinking water. On a balance of risk, the CER concluded that the West Alternative is favourable to the East Route in minimizing impacts to the Coldwater aquifer in particular while maintaining overall risk to levels similar to the East Route.

Environmental and Socio-Economic Issues

In considering environmental and socio-economic issues, the CER considered the impact of the West Alternative to Coldwater’s drinking water source, groundwater concerns, fish and fish habitat, other wildlife and habitat disturbance, traditional land use, and occupancy and heritage resources.

The CER noted that no environmental and social effects are raised by the West Alternative that had not already been considered for other parts of the Trans Mountain Expansion Project (“TMEP”). The CER determined that mitigation measures described in the West Alternative variance application and under existing Certificate conditions are appropriate.

Compliance Oversight

Throughout the lifecycle of an approved project, the CER holds the pipeline company accountable for meeting its regulatory requirements in order to keep its pipelines and facilities safe and secure and protect people, property, and the environment.

The CER noted that there are 156 conditions applicable to the TMEP, of which 142 are applicable to Certificate OC-065. As set out in Order AO-008-OC-065, all conditions applicable to this Certificate, excluding Certificate Condition 39, apply to the West Alternative.

To increase transparency related to the West Variance, the CER required Trans Mountain to provide a commitments table setting out all of its commitments made during the MH-032-2021 proceeding and then incorporate these commitments into its Certificate Condition 6 recurring filings (Condition 2). Further, Trans Mountain is required to maintain at its construction office(s) a copy of this Order and any filings submitted to the CER under this Order (Condition 3).

The CER determined that certain existing Certificate conditions may require an update due to the West Variance. Accordingly, the CER imposed Condition 4, requiring that Trans Mountain update or justify why no update is required to conditions 50, 95 and 98.

Related Posts

New Edition of Directive 065, AER Bulletin 2023-12

New Edition of Directive 065, AER Bulletin 2023-12

Link to Bulletin Summarized Oil and Gas - Applications The AER released a new edition of Directive 065: Resources Applications for Oil and Gas Reservoirs (“Directive 065”). The new edition includes...