Friends of Ecological Reserves
Direct Evidence Report
Contents

EXECUTIVE SUMMARY

The Friends of Ecological Reserves (FER) is a small non-government organization (NGO), that through volunteer efforts, supports Ecological Reserves (ERs) and BC Parks staff who manage ERs. FER was formed 34 years ago with goals to maintain and enhance ERs so that they meet their intended legislated purposes as defined under the Ecological Reserves Act of BC2. Those purposes are to serve as natural area benchmarks for research, education, and monitoring for the benefit of British Columbians, government agencies, scientists and First Nations while protecting high value ecosystems and species.

There are 19 marine ERs along the shipping route that the tankers and escort tugs follow. These ERs, as well as the areas between them, will be affected by the TMX project and the 600+ per cent increase in diluted bitumen (dilbit) transportation in coastal waters. It was stated in the earlier hearings that dilbit export will continue for the next 30 years, likely to the year 2048+. Long-term monitoring in ERs should be continued and supported to help inform pre-oil spill baseline conditions.

When the Trans Mountain Pipeline Expansion (TMX) is completed, there will be 40 loaded Aframax tankers and their escort tugs per month traversing the Salish Sea and the Strait of Juan de Fuca and 40 empty Aframax tanks coming to the Westridge Terminal. This means their will be 160 tankers and escort tugs per month (1920/year) related to the TMX project. There is an expectation that shipping through Vancouver as well as through the US ports in Puget Sound, will also increase. The probability of an oil spill over the life of the project is not nil.

The Board of Friends of Ecological Reserves was an intervenor in the 2014-2016 NEB Kinder Morgan/TMX Hearings. Our Evidence and links to reports, Information Requests and dialogue with the Agencies and TMX are included in Table 1-1 at the end of this opening statement. At that time, we focused entirely on the marine ecosystems and mitigation measures. We are pleased that these reconsideration hearing were mandated by the Federal Court of Appeal (FCA) as many of the earlier information requests, in our estimation were not adequately addressed.

We were not successful in influencing the NEB Board members at that initial hearing, to adopt any of the dozen Board of FER proposed mitigation measures. Now that the Federal Court of Appeal (FCA) has ruled that the marine waters are in scope for the TMX project, we hope for a different outcome from this new NEB Reconsideration Hearings Board.

Permit Conditions to Establish Financial Obligation and Improve Long-term Collaboration on Marine Research and Monitoring on TMX and Oil Exporters

We seek the inclusion of TMX permit condition to establish a financial obligation on TMX to support long-term research and monitoring to improve understanding of dilbit in the marine environment. TMX and the oil exporters who use the pipeline, bring risk over the life of their project. A long-term obligation to fund environmental research, improvements in spill modeling, toxicity, monitoring and recovery/restoration options is a legitimate cost of doing business and we believe this should be a new permit condition.

1 http://ecoreserves.bc.ca
2 http://www.bclaws.ca/civix/document/id/complete/statreg/96103_01

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Friends of Ecological Reserves Contents Direct Evidence Report

We do not support the current model for marine research as it has largely placed a financial burden on the Federal Agencies/Universities and the Canadian public. With changes in governments and budgeting cycles, it is, over the long term, an unstable unpredictable funding model. TMX does support research now but it is discretionary. TMX selects the topic, scope, budget duration of research, vets the findings and decides whether the findings are proprietary. Our concept for long term research and monitoring is to help understand how to make incremental improvements in practices.

We seek from NEB, support for TMX permit conditions to create a formal and multi-stake holder collaboration (a forum) on long term research and monitoring of marine ecosystems along the lines of the Habitat Conservation Trust Foundation (HCTF).3 A Marine Conservation Trust Foundation (MCTF) would have an oversight board with members from Federal, Provincial, State, First Nation governments, TMX, and the Non-governmental Organizations (NGO) communities. This forum would have no single agency control the research and monitoring agenda and there would be no discretion on disclosure or vetting of findings. We hope for a future where research priorities are mutually agreed on between stakeholders, and participation in marine projects are proposal driven and awarded against strategic priorities. We provided an organization chart for such a research and monitoring forum in our original Evidence Report filed on May 28, 2015 page 90.

Western Canadian Oil Producers expect an increase in netbacks of approximately $73.5 billion over the first 20 years of the Project’s operations as was stated in their evidence. A Marine Conservation Trust Foundation of $500 million Endowment as a permit condition is an insurance policy taken out on behalf of the public for research and monitoring. A $500 million Endowment is 6/100th of 1% of the netbacks that the Western Oil Producers identified that they stand to gain over the first 20 years of the project. This would produce a program with a similar budget scope to HCTF and similar in size to what Alaskans spent post-spill annually, 25 years after the Exxon Valdez oil spill. (March 24, 1989).4

Permit Conditions for Mitigation Measures

We commend Federal Court of Appeal for its decision to quash the TMX permit so that the marine concerns can be more fully addressed. Canadians now own the TMX project and current practices of all Federal Agencies are in scope and under review, as well as new evidence from TMX and intervenors.

The NEB’s first and second information requests of Federal Agencies and TMX, compelled greater disclosure, greater transparency on government policy to a degree not possible without this reconsideration hearing. Significant new evidence has been filed on species at risk and shipping impacts in general, and an array of mitigation options have been provided.

We reviewed the evidence and conclude that TMX can today mitigate some of its environmental impact through a change in its current shipping practices. The new evidence on noise in the marine environment by Aframax tankers and the escort tugs is now better understood and TMX can choose to include ship contract clauses that TMX vessels do not exceed 7 knots when in SRKW critical habitat. This reduced speed mitigates acoustic noise, Green House Gas (GHG) emissions and lowers

3 https://hctf.ca/ Funded by a surcharge on hunting and fishing licenses. Allocates funding to fish and wildlife project province wide. HCTF manages of 10 million/year program.
4 http://www.evostc.state.ak.us/ Exxon Valdez Oil Spill Trust Council

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Figure 0-3: Lateral Displacement of Current shipping Lanes

Lateral displacement of shipping lanes in these hearings has only been contemplated for Southern Resident Killer Whales. However where possible, it will benefit many other fragile ecosystems such as of estuaries, eel grass beds, forage fish spawning areas, marine bird breeding, foraging, migrating and overwintering habitat, marine mammal haul-out and pupping colonies, scattered throughout the region, that merit more attention and planning for protection. It is a mitigation strategy that needs to be more fully implemented and coordinated between the Federal Agencies.

Better Descriptions and Information on the Location of High Use Areas as Well as Critical Habitat

We reviewed the evidence provided on species listed under the Species at Risk Act (SARA) (Topic 2). We also reviewed the evidence provided on marine birds (Topic 4) at the same time. We conclude there is a need for better long term baseline monitoring, research and disclosure of the occurrence and population fluctuations of this natural capital. Reviewing the agencies’ evidence, we find there is a need for a more accurate description and location of high use areas as well as critical habitat. Federal Agencies lack knowledge about the toxicity of dilbit and impacts on SARA-listed as well as other species, and do not have clear recovery plans even in the absence of a dilbit or any other oil spill.

We reviewed the spill response plans of Western Canada Marine Response Corporation (WCMRC)6 and failed to find any response strategies on their website to protect sensitive areas such as the habitat of species at risk in ERs and other ecologically sensitive areas. If the NEB does place permit conditions and establish a Marine Conservation Trust Foundation (MCTF), then it is more likely that

6 http://wcmrc.com/
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Agencies and First Nations and NGOs together will be able to provide more consistent environmental baselines.

Adopt the Economic Exclusion Zone (EEZ)

Southern Resident Killer Whales (Topic 3) and their the survivability has been researched extensively since the last NEB report was written. Since these marine mammals are an important component of the marine ecosystems around southern British Columbia’s 19 Ecological Reserves, we examined the evidence and came to the conclusion that critical habitat of SRKW whales extends beyond the 12 nautical miles imposed as the limits of these hearings. SRKW habitat goes well out to the 200 nautical mile area off southwestern Vancouver Island and dilbit tankers traverse waters listed as critical habitat.

We supported the motion to expand the area covered by these hearing to include the EEZ. We seek additional clarification of the rationale for exclusion of the EEZ from the NEB panel and the Federal Agencies, and hope to get understanding of this rationale within the time frame of this hearing. We do not see any great burden on TMX or the Federal Government from inclusion of the EEZ should it be accepted. We do see legal challenges from its omission, and delays that could have been avoided.

Marine Oil Spills (Topic) 5 and Marine Safety, Navigation, and Disturbance (Topic 6)

We believe a fundamental principle for this project is that the risk-bringer “TMX” and Oil Producers who use the pipeline for export, bear long term responsibility to learn how to manage their product when spilled into the natural environment. There is much room to learn how to better model an oil spill, predict and plan recovery, describe where and how to restore or enhance alternate habitats since if damaged, some marine ecosystems may not fully recover. We have concluded that the Federal Agencies should not carry this load largely alone. The NEB can and should change the role of TMX with regard to long-term research, monitoring and restoration. It needs to shift from voluntary and discretionary as it is now, to mandatory and formally structured.

The WCMRC certificate expires on September 1, 2020 at a time when the TMX project is expected to be fully built and the 600% increase in dilbit transport becomes a reality. Western Canada Marine Resources Corporate is a subsidiary of KM, the parent company who sold the pipeline to the Canadian government. We conclude in our review of their spill plans and their equipment on hand, that they are unprepared for a major dilbit spill. We also find WCMRC does not know where important and sensitive environmental values are located and have no response strategies for them. WCMRC likely meets the 23-year old TC Response Organization (RO) standards for readiness for a spill up to 10,000 tons. However, an Aframax tanker holds over 100,000 tonnes and therefore WCMRC would only need to have capacity for recovery of 10% of a TMX Aframax tanker. This level of performance is inadequate. Canada wishes to claims it has a world class response program. The US requires a RO to have capacity to deal with 100% discharge of any tanker’s contents. Dilbit is also different from other oils as it emulsifies relatively quickly so a speedy response with adequate equipment needs to be part of future RO requirements.

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