Posted by Ian Stephen(Water Wealth)
January 26, 2018 · Flag

Happy New Year!

December and January have been consumed with preparation for and participation in the Chilliwack realignment hearing for Kinder Morgan’s Trans Mountain Expansion Project. There really are other issues! Fracking dams in the North, WSA regulations, wild salmon, Site C, and monitoring local waterways are some of the other things WaterWealth had varying levels of engagement in through 2017. Others like Vedder River gravel mining and water bottling we follow with interest as others take those on.

Below is an update on the realignment hearing. By necessity it only touches on some key points of what went on in the hearing. Full transcripts are available on the NEB website.

Realignment Context

The realignment is for just one small but critical part of the Expansion Project route across Chilliwack. Starting near Watson Elementary School and running 1.8 km to the west, this portion of the project, known as sub-segment 6.3, is the portion closest to City of Chilliwack drinking water wells.

In 2015 Kinder Morgan chose to pursue a route north of Watson Elementary, along the BC Hydro right-of-way between sets of 500 kV power lines. At the time Kinder Morgan told the Province of B.C. that the old Trans Mountain route was “along the northern limits of the capture zone of existing City of Chilliwack municipal wells” and that available modelling “suggests this local well capture does not extend as far as the proposed pipeline corridor [toward the north side of the BC Hydro right-of-way].” Note the use of the term "capture zone" in that quote. You'll sometimes see the word "aquifer" used in place of capture zone. The distinction is critical to separating information from disinformation.

Running a steel pipeline underneath and parallel to 500 kV power lines turned out to have unsurmountable technical issues (surprise!) and as a result Kinder Morgan’s route across sub-segment 6.3 is not viable. Kinder Morgan chose to apply for a realignment to run the new pipeline alongside their old pipeline instead. Unfortunately that would mean that rather than run along the BC Hydro corridor the new pipeline would cross Watson Elementary School, run through back yards of residential areas, and run much closer to four city wells.

Opposition

In a process that began with Kinder Morgan’s realignment application in March 2017 and concluded with oral hearings last week in the Coast Hotel in Chilliwack, Kinder Morgan’s route change has been vehemently opposed by the City of Chilliwack, WaterWealth, and Chilliwack residents, primarily because of the risk to city wells.

Also appearing in the hearing was the S’ólh Téméxw Stewardship Alliance (STSA), representing 13 Stó:lō First Nations. The STSA did not take a position on the realignment, but said that Kinder Morgan had not sought traditional ecological knowledge for the realignment or for the project overall, and had not provided information that would allow STSA to evaluate the realignment.

The STSA’s point was made very strongly when lawyer Jean Teillet asked Trans Mountain’s Senior Field Advisor for Aboriginal Engagement Phil Symington whether he had heard of Stó:lō Connect, the web portal government and industry use to communicate with the People of the River Referrals Office. Kinder Morgan had been asked all along to communicate with Stó:lō via Stó:lō Connect. Mr Symington responded “I am aware of Stó:lō Connect. I am not technically - I don’t have the technical expertise to utilize Stó:lō Connect.”

It certainly seems reasonable to expect, on a $7.4-billion project where Indigenous Rights and Title across unceded, untreatied territories is a key component, if the Senior Field Advisor for Aboriginal Engagement lacks the technical expertise to use a web portal the company could offer some training or perhaps an assistant. The STSA asked the NEB to hold the company accountable for effective communication.

On the evening of January 15th, STSA hosted a dinner and ceremony to provide oral traditional evidence. Surprisingly, this was the first time the NEB has heard oral traditional evidence in this manner rather than in the quasi-judicial hearing setting. The gears of reconciliation turn slowly.

WaterWealth Program Director Ian Stephen was surprised and honoured to be called to witness the event. Speakers Mark Point, Ernie Victor, Shane James, and Sonny McHalsie spoke of worldview and culture, creation through to future, relations and responsibilities. It was an important and much appreciated opportunity for the non-Stó:lō people present to learn of things many of us never have opportunity to hear. It was clear there is strong potential for cooperation and for opposition, and by their actions the company may influence how that plays out.

Hearing Days 2-4

Following days saw the lawyer for the City of Chilliwack and WaterWealth’s Program Director cross-examine Kinder Morgan’s evidence. City questions centred on technical matters. Olga Rivkin, lawyer for the City, pointed out that the extent of City well capture zones have never been definitively determined by anyone. Ms. Rivkin also made plain that Kinder Morgan had done no studies of their own on the aquifer, or comparative scientific analysis of the route options in segment 6.3, but had relied entirely on past work by others,works that were never intended to determine risks from the Trans Mountain Expansion Project. Kinder Morgan’s own explanation of the BC Hydro route being safer for City wells in 2015 was contrasted to their claims now that the route closer to the wells is safe.

Ian Stephen for WaterWealth highlighted the difficult access in residential areas of the realignment, not only for construction but perhaps more importantly for maintenance and particularly in the event of emergency in those areas.

Kinder Morgan’s response to an earlier WaterWealth information request about emergency access was brought up. In that response Kinder Morgan had said that “Permanent structures may also have to be removed if required.” to reach a spill site in the residential neighbourhoods. Stephen asked in cross-examination whether "permanent structures" referred to homes. Senior Director of the Trans Mountain Expansion Project, Greg Toth, replied “We are referring to fences and gates and things, yard fixtures, things of that nature”, an answer that did not satisfy Stephen as earlier in the paragraph in Kinder Morgan’s written reply fences and things of that nature were already mentioned as non-permanent structures.

Stephen’s cross-examination culminated with maps from Kinder Morgan’s realignment application and a statement from a Kinder Morgan reply to an NEB information request that spoke of parts of the Trans Mountain system already twinned with pipes 4 to 6 metres apart. Together these demonstrated that not only is there room to put the new Trans Mountain pipeline in the BC Hydro right-of-way alignment acceptable to BC Hydro, but that both Trans Mountain pipelines could fit. Were two pipes to be installed along that alignment the old pipeline could be decommissioned through the difficult to access residential areas. That would prevent future disruption of those neighbourhoods for inevitable maintenance, replace the part of the now 65-year old existing Trans Mountain pipeline where it is closest to City wells, and place both pipelines further from City wells than the realignment route Trans Mountain is asking for.

Kinder Morgan of course had the opportunity to cross-examine as well. They had no questions for the S’ólh Téméxw Stewardship Alliance. Questions to the City seemed to try to suggest City approval of Kinder Morgan's preferred route, or to attempt to create confusion around the City's choices. Deputy Director of Engineering Rod Sanderson handled questions on that and other topics smoothly, very knowledgeably pointing out the context of quotes Kinder Morgan's lawyer tried to use to their advantage, and speaking of the City's responsibilities to residents to provide clean, safe water to homes and businesses. (Hear the Mr Sanderson give the City's opening statement here.) Questions to WaterWealth seemed to seek agreement on Kinder Morgan's proposed mitigations in the realignment, mitigations Stephen questioned the validity of. Stephen also spoke in opening remarks of WaterWealth's involvement in Water Sustainability Act (WSA) processes and why, contrary to Kinder Morgan's arguments around pumping limitations constraining the extent of capture zones, the WSA cannot be relied upon to provide any protection from the pipeline.

Final Arguments

Final arguments restated each participant's position. Kinder Morgan argued that they have committed to mitigation measures that make risks of their choice of route as low as reasonably practical. The City argued that Kinder Morgan based their conclusions and request to the Board on conjecture, extrapolation, and groundwater models comparable to cartoons. The STSA informed the board of a years-long litany of Kinder Morgan failures to communicate and asked the NEB to intervene. WaterWealth's final argument was brief. It spoke of Kinder Morgan's series of bad route choices in Chilliwack, the many uncertainties regarding spill risks and response, and said that the consequences of those poor choices and uncertainties should not be borne by the community. WaterWealth closed its argument with:

"WaterWealth submits that the choice before the Panel now is simple. In Segment 6.3, the Panel have a choice of two constructible routes. By the choice between those routes, the Panel can make this community safer or not."

What's Next

Now we wait. The oral hearing concluded on Thursday, January 18. The NEB Panel can take up to 12 weeks to issue their decision.

If the NEB approve Kinder Morgan's realignment application, the realignment will go to the Governor in Council (Prime Minister & Cabinet) for approval. WaterWealth will write to, and encourage the community to write to, federal decision makers to reject the realignment for the safety and well-being of our community. If the Governor in Council approve the realignment, then we can move on to detailed route hearings for all of segment 6, from Rosedale to Abbotsford. If the Governor in Council reject the realignment, Kinder Morgan would have to re-think their route across subsegment 6.3. Most likely they would submit a section 21 application to realign the route to the south side of the BC Hydro right-of-way, 8 metres outside the 230 kV powerlines where BC Hydro has agreed the pipeline could go. A little more on that section 21 in the next paragraph.

If the NEB reject Kinder Morgan's realignment application, the Trans Mountain Expansion Project will be left without a route across sub-segment 6.3. Assuming Kinder Morgan choose to continue to pursue what is generally the 1953 pipeline route across Chilliwack, probably the only option in sub-segment 6.3 would be the alignment along the south side of the BC Hydro right-of-way. Kinder Morgan would have to submit another section 21 application for the 605 metres of that alignment that is outside of the general corridor that was included in the original project approval hearings. That section 21 application would likely not result in a full hearing but would have a period for written public comment. That is likely as good a route as can be found in sub-segment 6.3, so WaterWealth may not oppose that application but may instead submit comments making clear that there are problems with the route across Chilliwack overall that have yet to be heard, and requesting conditions aimed at maximizing safety of residents and the City water supply if the Board approve that new section 21 application.

...Continued in Part two