DFO | Northwest Coast Energy News

Editorial: (II) Kitimat Council in chaos

Peter Ponter at Council — At the January 20 council meeting, Peter Ponter asks what happened to the District of Kitimat’s original motion on neutrality. (Robin Rowland/Northwest Coast Energy News)

The District of Kitimat Council is in chaos. We’re not referring to Monday’s chaotic meeting where often it was hard to figure out what Councillors were saying and where they were going.

We are referring to “Chaos” as it is defined in physics, “sensitive dependence on initial conditions,” known to most people as the “butterfly effect” (the exaggerated notion that a butterfly flapping its wings in one place could cause a storm in another place). Or we could suggest that Kitimat Council has a critical case of bad karma that is now coming back to haunt them.

How can you trust a council that doesn’t understand and follow its own motions?

District Council claims it is neutral on the Enbridge Northern Gateway project. That is wrong.

District Council decided, in violation of its own resolutions, to do absolutely nothing about the Northern Gateway Project until they have to. Doing nothing is not neutrality. Doing nothing is a default notion that actually tilts council in favour of the Enbridge Northern Gateway project. Doing nothing has meant that Council has become incapable of dealing with Gateway related issues within its own jurisdiction because they have no idea of what is going on.

A tale of two motions

So what were the initial conditions? As Peter Ponter pointed out in his presentation to Council Monday night, the original motion on neutrality called on Council to take an active part in the Joint Review proceedings.

As reported in the Kitimat Daily at the time, the motion from Councillor Rob Goffinet read:

”I move that the Mayor and Council of District of Kitimat go on record neither opposing nor supporting the Enbridge Pipeline Super Tanker Proposal and that we wish to, as a Mayor and Council, with our community, take part in the 1-2 year environmental assessment process and the Joint Review Panel to learn and understand whether this will be a beneficial project to Kitimat, the Northwest and British Columbia.

That motion was carried unanimously.

So then what happened? Nothing. The District of Kitimat did register as a government participant in the proceedings but did nothing to actually actively participate “to learn and understand whether this will be beneficial project to Kitimat….”

With the 2011 election over, the new council, sitting for the first time in 2012, was asked to reaffirm its position. At that time, Phil Germuth presented a motion that council survey the residents of Kitimat to find out what their position was on the Northern Gateway project. Our report here and Kitimat Daily’s report here.

At the time Councillor Mario Feldhoff said:

“The perfect time for the community to indicate whether they support is to reflect upon the JRP report. Do we agree with their submissions? Otherwise, our emotions are getting ahead of us and we may be perceive as being late in the game but, we may have, from my perspective, informed comment from the citizenry after they have had a chance to read a report from the JRP would be preferable in my opinion, in opposed to getting a sense of how people feel about things right now.”

So, in fact, there was not one neutrality motion as Council now maintains.

There were two separate motions, on two separate aspects of neutrality. The first called for council to remain neutral but to participate in the Joint Review Panel. The second called for council to survey the community on their feelings after the completion of the JRP.

The two motions did not, repeat not, cancel each other out. But that was, in effect, what happened. The council seems to have decided that Feldhoff’s comment was actually a motion, and that after that January 2012 meeting, they should do absolutely nothing but wait until the Joint Review Process was complete.

Every time after January 2012, when council was asked about anything, they said we are waiting for the Joint Review Process to be complete, even though council had unanimously passed a motion saying it would take part in the JRP. That is proof of Kitimat Council’s incompetence.

As we pointed in May 2012, after the introduction of the Omnibus bills, neutrality has never meant sitting on one’s ass and doing nothing. Neutral nations have always vigorously looked out for their own interests.

We will repeat that in the long history of regulatory hearings, public inquiries and even coroners inquests there have always been a role for neutral parties, represented by competent and properly instructed counsel, who vigorously look out for their client’s interests, without taking an advocacy position on a matter before the tribunal. The District of Kitimat could have, in fact, should have, actively participated and where necessary in the Joint Review and have its representatives ask tough questions of every side on all matters relevant to the District of Kitimat.

Participation didn’t happen, and, unfortunately, that is now all water under the Kitimat River Bridge.

A gift of prophecy

The bigger problem is that a majority on Kitimat council believes that it has the gift of prophecy, naively believing that the Joint Review Panel understands all mysteries and all knowledge. A majority of members on Kitimat council have blind faith, believing that the JRP can safely move pipelines across mountains.

With its gift of prophecy, Kitimat Council believes that all is right with the Joint Review Panel, that its 209 recommendations are gospel and thus council approves a vote question not about the Northern Gateway project but the Joint Review.

Faith is the operative word, for apart from dropping into listen from time to time, council did not participate in the proceedings in any way, and thus did not experience the many flaws in the Joint Review process that led some people to say as early as the middle of 2012 that the JRP had no credibility.

We’re already seeing the flaws in the blind faith in the JRP. As this site pointed out, the costs of the Kalamazoo cleanup now exceed the amount of money the JRP conditions call on Enbridge to set aside in case of a spill. A report by federal scientists show the Joint Review Panel erred in accepting Enbridge’s laboratory evidence that bitumen doesn’t sink.

There are already court challenges to the Joint Review Panel. (Update. A media count as of January 23 says there are now 10 court challenges to the JRP)

Most important for Kitimat, a challenge filed by the Haisla Nation which, among the many flaws it finds with the JRP report, says the JRP improperly concluded that a large spill is unlikely either from the pipeline itself, the terminal facilities or the oil tankers tasked with navigating B.C.’s coastal waters.

It doesn’t do much for the already strained relationship between the District of Kitimat and the Haisla Nation that Council continues its uncritical support of the JRP while the Haisla are challenging it in court. That the Haisla motion to the Federal Court of Appeal includes challenges to the procedural unfairness of the JRP proceedings.

The Gitxaala First Nation says Joint Review Panel ignored issues surrounding aboriginal rights and title.

A coalition of environmental groups have told the federal court there was not enough evidence before the JRP to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on the environment; one key part of the suit is the fact that the JRP refused to consider the federal humpback strategy for Douglas Channel.

Although it is unlikely that the courts will throw out the Joint Review findings before the April vote, it might just happen. At that point, a plebiscite question based on the JRP would look pretty silly.

Who runs the Kitimat River?

We now come to the long term consequences of a do nothing council. We have to ask if the District of Kitimat Council will become lame ducks, at least in some part of town, because they have stood by and, in their misplaced faith in the National Energy Board, ceded the right to decide what happens in Kitimat to the NEB?

According to a report in the Toronto Star, using the new rules under the omnibus bills, this week the National Energy Board approved expansion of the Enbridge Line 7 pipeline in southern Ontario, without a hearing and without notifying Hamilton, the municipality involved (the pipeline actually goes through Hamilton) because the municipality was not “affected in any way” by the project. Since the media got on to the story, Enbridge has kindly said to Hamilton “we have heard and understood it and assured them directly that we will include them in all future consultation and activity on this project.”

There was another decision by the National Energy Board in December, when it agreed with DFO that it would have jurisdiction on fish habitat, if there are pipelines along water bodies such as the Kitimat River. DFO has since clarified their position, which means we’re not going to see the absurd vision of NEB officials checking fishing licences in Radley Park.

There is already one pipeline along the west bank of the Kitimat River, Pacific Northern Gas. If the LNG projects go ahead, as well as more molecule traffic on the PNG pipeline there will be the Coastal Gas Link serving Shell and the Pacific Trails Pipeline serving Chevron and Apache. If it goes ahead, the Northern Gateway Pipeline will mean four pipelines along the west bank of the Kitimat River.

Four pipelines along the banks of the Kitimat River all under the benign eye of the National Energy Board in Calgary since they have “expertise” on pipelines and water courses.

The NEB has shown recently it doesn’t have much respect for municipalities. While the actual regulations under the DFO-NEB deal are likely to be unclear for some time, we know that what the NEB’s mandate is, to promote the oil and gas industry in this country, not to protect rivers and streams. So if the people of Kitimat, especially those who fish the Kitimat River or work in the Service Centre are in the way of what NEB bureaucrats in Calgary decide is best for us and those three, maybe four, pipelines, well too bad, eh? The NEB has the mandate to act in the national and public interest, not the residents of Kitimat.

Kitimat Council with its blind faith in the National Energy Board may very likely be a case of be careful what you wish for, sitting uselessly in the chambers at Northwest Community College while the NEB in Calgary carves up the District’s jurisdiction and does what it thinks is best for the oil patch.

Thus the Council deliberations become a sounding brass or a tinkling cymbal, meaning nothing.

DFO clarifies relationship with NEB on fisheries protection along pipeline routes

On January 16, Fisheries and Oceans issued a statement “clarifying” its role after signing an agreement with the National Energy Board on fisheries protection along pipeline routes, saying DFO “remains responsible for fisheries protection, including the issuance of Fisheries Act authorizations.”

Fisheries and Oceans signed the agreement with the National Energy Board in mid-December.

DFO says there is little difference between its agreement with the NEB and collaborative agreements with the provinces.

Fisheries and Oceans Canada has established a collaborative agreement with the National Energy Board that will help eliminate overlap and duplication during regulatory reviews while maintaining a strong regime to manage threats to fish and fish habitat.

Fisheries and Oceans Canada remains responsible for fisheries protection, including the issuance of Fisheries Act authorizations.

Our collaborative arrangement builds on the decades of training, experience and expertise of NEB biologists in assessing the potential environmental impacts of development projects, including regarding fish and fish habitat.

These arrangements will yield a number of benefits:
• Ensuring regulators focus on the greatest threats to fish and fish habitat;
• Making the best use of available resources; and
• More efficient approval processes.

The Policy and Operational Guidelines that are followed by DFO staff and anyone else involved in these matters are available on Fisheries and Oceans Canada’s website.

The National Energy Board is best placed to deliver regulatory review responsibilities under the Fisheries Act for activities relating to federally regulated energy infrastructure (such as pipelines).

The Memorandum of Understanding between Fisheries and Oceans Canada and the National Energy Board will enable the NEB to:
• Review proponent applications for impacts to fish and fish habitat;
• Assess appropriate measures to avoid and mitigate impacts to fish and fish habitat;
• Include measures to avoid and mitigate impacts as conditions of licences, orders or certificates issued by the NEB; and
• Assess the acceptability of proponent offsetting plans when authorization is required.

Over the years, DFO has established similar arrangements with some Provinces and with Conservation Authorities.
In all cases, the standards for fisheries protection are established by DFO and the Fisheries Act Authorizations continue to be done by DFO.

Two JRP conditions are already outdated, Cullen says

Skeena Bulkley Valley MP Nathan Cullen says at least two of the Northern Gateway Joint Review Panel’s 209 conditions may already be outdated.

In a news release January 15, 2013, Cullen said, “The requirement of $950 million in spill insurance was recently called into question as reports surfaced of cleanup costs at the sites of Enbridge’s 2010 Michigan spill surpassing $1.035 billion.”

The $1.035 billion figure was contained in Enbridge’s American arm, Enbridge Energy Partners, latest filing for the third quarter over 2013 with the US Securities and Exchange Commission.
Cullen went to say that, “The JRP’s order for Enbridge to carry out new research on the behaviour of diluted in bitumen in a marine environment has been questioned following the publication of an Environment Canada study confirming that diluted bitumen will sink in saltwater in high waves and where sediment is present.”

Cullen is referring to a study by Environment Canada Emergencies Science and Technology,Fisheries and Oceans Canada Centre for Offshore Oil, Gas and Energy Research and Natural Resoures Canada on bitumen that was completed in November and released this week.

The study found

. Like conventional crude oil, both diluted bitumen products floated on saltwater (free of sediment), even after evaporation and exposure to light and mixing with water;
. When fine sediments were suspended in the saltwater, high-energy wave action mixed the sediments with the diluted bitumen, causing the mixture to sink or be dispersed as floating tarballs;
(The use of the term “tarball” in this report follows convention in the literature and refers to the consistency of floating, heavily-weathered oil. It does not describe the chemical composition of the product.)
. Under conditions simulating breaking waves, where chemical dispersants have proven effective with conventional crude oils, a commercial chemical dispersant (Corexit 9500) had quite limited effectiveness in dispersing dilbit;
. Application of fine sediments to floating diluted bitumen was not effective in helping to disperse the products;
. The two diluted bitumen products display some of the same behaviours as conventional petroleum products (i.e. fuel oils and conventional crude oils), but also significant differences, notably for the rate and extent of evaporation.

Read the report:Properties, Composition and Marine Spill Behaviour, Fate and Transport of Two Diluted Bitumen Products from the Canadian Oil Sands (pdf)
The Joint Review Panel found that dilbit was “ no more likely to sink to the bottom than other
heavier oils”

The Panel acknowledges the variety of opinions from experts regarding the behavior and fate of oil spilled in aquatic environments. These experts generally agreed that the ultimate behavior and fate of the oil would depend on a number of factors, including the volume of oil spilled, the physical and chemical characteristics of the product, and the environmental conditions at the time.

The Panel finds that likely oil behaviour and potential response options can be predicted from knowledge of the type of oil spilled and its physical and chemical characteristics. Details of oil behaviour and response options cannot be specified until the actual circumstances of a spill are known.

The Panel is of the view that, if placed along a spectrum of: tendency to submerge; persistence; and recovery difficulty, dilbit would be on the higher end of the spectrum, similar to other heavy oil products.

The Panel accepts evidence from previous spills showing that, in response to circumstances at the time, the behaviour of heavier oils, including conventional oils and synthetic crudes, can be dynamic. Some oil floats, some sinks, and some is neutrally buoyant and subject to submergence and overwashing.

Although the project would transport different types of oil, the majority of the evidence presented during the hearing process focussed on whether dilbit is likely to sink when spilled in an aquatic environment. In light of this, the Panel has chosen to focus its views on dilbit. The Panel heard that the fate and behaviour of dilbit has not been studied as much as that of other oils.

Although there is some uncertainty regarding the behavior of dilbit spilled in water, the Panel finds that the weight of evidence indicates that dilbit is no more likely to sink to the bottom than other heavier oils with similar physical and chemical properties.

The Panel finds that dilbit is unlikely to sink due to natural weathering processes alone, within the time frame in which initial, on-water response may occur, or in the absence of sediment or other particulate matter interactions. The Panel finds that a dilbit spill is not likely to sink as a continuous layer that coats the seabed or riverbed.

“It hasn’t even been a month since the JRP released their 209 conditions, and it seems like we’re already seeing some of them become obsolete,” Cullen said.

“Throughout the review process, the JRP continually ignored the situation in Michigan as it unfolded before our eyes. They saw the spill caused by Enbridge’s negligence, which was worsened by Enbridge’s incompetence, and how it brought untold damage to the local ecosystem and cost over $1 billion US. But the 209 conditions didn’t reflect what we learned about Enbridge’s history or its culture, or what we’ve learned about diluted bitumen at all.”

The Joint Review process was set up to deliver a positive verdict, according to Cullen, regardless of what the real life case studies in Michigan had already shown. “To say that it won’t cost as much – if not more – to respond to a spill in a remote corner of northwestern BC during winter than it was in Michigan in the middle of July is ridiculous,” Cullen said.

“What’s even more astonishing is that we asked repeatedly for these studies on the behaviour of diluted bitumen in the marine environment to be part of the Joint Review Panel’s assessment. That the government waited until after the JRP had given its conditional yes to release these findings is not only appalling but also highly suspect.

Cullen says there are two key questions that the Harper government now must answer. “What kind of protection is the government providing when it lowballs on the insurance for oil spills? And what kind of oversight is it giving Canadians when the verdict is given before the evidence is released?”

DFO hands over fisheries protection along pipelines to the NEB

The Department of Fisheries and Oceans has handed responsibility for fish and fish habitat along pipeline routes over to the National Energy Board. The same agreement also gives the National Energy Board responsibility for dealing with First Nations fisheries if a pipeline or power line crosses their traditional territory.

DFO and NEB quietly announced a memorandum of agreement on December 16, 2013, that went largely unnoticed with the release three days later of the Joint Review Panel decision on Northern Gateway and the slow down in news coverage over the Christmas holidays.

Update January 16, 2013: DFO clarifies relationship with NEB on fisheries protection along pipeline routes

As of December 16, 2013, Enbridge no longer has to apply to DFO for permits to alter fish habitat along the Northern Gateway route. It was also on December 16 that Kinder Morgan filed its application with the NEB for the expansion of its pipeline from Alberta to Burnaby.

Fish and fish habitat along those pipeline is now the responsibility of the Alberta-based, energy friendly National Energy Board.

On its website, the NEB says

Applications submitted to the NEB shall be reviewed under the Fisheries Protection Provisions of the Fisheries Act to determine if impacts shall occur, and if an authorization will be required under the Fisheries Act. The NEB shall also become responsible to determine if proposed projects will impact aquatic species at risk and require permitting under the Species at Risk Act. If the NEB determines than an authorization or permit will be required, DFO shall be notified and will be responsible for issuing the authorization or permit.

This MOU better integrates the Government of Canada’s initiative to streamline application processes by eliminating the requirement for duplicate reviews.

In the “Guiding Principles” of the memorandum of understanding between DFO and NEB, the first provision is

The Parties will use the provisions of this MOU to support the Government of Canada’s regulatory process improvement objectives through coordination to:
Facilitate effective and efficient use of government resources in order that regulatory decisions are made in a timely manner by applying a one-project one-review approach;
Promote clarity and consistency of the regulatory decision making process; and
Ensure responsibilities for mitigation, monitoring and reporting, compliance and enforcement, follow-up monitoring, and Aboriginal consultation are addressed.

Protecting fisheries and fish habitat is only the third priority in the MOU

Conservation and protection of fish and fish habitat, and listed aquatic species at risk and their critical habitat, will be managed in accordance with DFO’s regulatory and policy frameworks for the application of the fisheries protection provisions of the Fisheries Act and SARA [Species at Risk Act] respectively.

The question most people on the northwest coast and along BC’s rivers will ask (whether or not they support or oppose pipeline projects): Just how much expertise, if any, in fisheries and fish habitat can be found in the Calgary offices of the National Energy Board?

According to the FAQ posted on the NEB website, it is now up to the NEB to determine whether a project impacts fisheries or species at risk.

How will the MOU affect authorizations under the Fisheries Act?

The NEB will assess a project application and determine if mitigation strategies are needed to reduce or prevent impacts to fish or fish habitat. If the project could result in serious harm for fish then the NEB will inform DFO that a Fisheries Act authorization under paragraph 35(2)(b) is likely to be required. DFO will review and issue an authorization when appropriate, prior to project construction. Authorizations issued by DFO would relate to those watercourses impacted, not the entire project.

How will the MOU affect permits under SARA?

The NEB will assess a project application for potential impacts to aquatic species at risk. If an impact to a SARA-listed aquatic species may occur, the NEB will inform DFO. DFO will review and issue a permit under SARA when appropriate, prior to project construction.

The NEB claims that the MOU will not affect environmental protection

Will this MOU reduce environmental protection?

No, the NEB has always considered impacts to fish and fish habitat and aquatic species at risk when making its decisions. The initial assessment of impacts of federally regulated pipeline and power line projects

Another potentially troubling aspect of the agreement is that it makes the National Energy Board the lead agency in dealing with First Nations.

when the Crown contemplates conduct that may adversely affect established or potential Aboriginal and treaty rights in relation to the issuance of authorizations under the Fisheries Act, and/or permits under SARA, the NEB application assessment process will be relied upon by DFO to the extent possible, to ensure Aboriginal groups are consulted as required, and where appropriate accommodated;

Canada’s First Nations have dealt with DFO for generations and by and large both sides understand each other’s aims, even if they don’t always agree. The NEB, however, at least as seen during the JRP hearings, often showed little understanding or respect for First Nations. That means that already troubled relationship between First Nations and the Crown over pipelines is going to get a lot more troubled.

The memorandum of understanding between DFO and MOU is yet another result of the Harper government’s omnibus bills, which have the aim of efficiently approving energy projects while downplaying environmental costs.

It also means that from now on there must be a much more careful reading of the 209 conditions imposed by the Joint Review Panel on Enbridge to see if those conditions are actually going to be rigorously enforced or if all Enbridge has to do is to file reports with the NEB.

It also appears that the new and highly restrictive NEB procedures that restrict input from all but those the NEB considers “directly affected’ by a project will also apply to their new responsibility for fisheries.

Joint Review Panel tells northwestern BC to bear the “burdens” of Northern Gateway for the good of Canada

Joint Review Panel cover — Cover of Volume 1 of the Joint Review Panel ruling on Northern Gateway

If you read both the 76 pages of Volume One of the Northern Gateway Joint Review decision and the 417 pages of Volume 2, a total of 493 pages, one word keeps reappearing. That word is “burden.”

The JRP panel asks “How did we weigh the balance of burdens, benefits, and risks?”

And it says:

Many people and parties commented on the economic benefits and burdens that could be brought about by the Enbridge Northern Gateway Project. In our view, opening Pacific Basin markets wouldbe important to the Canadian economy and society. Though difficult to measure, we found that the economic benefits of the project would likely outweigh any economic burdens.

The JRP notes:

The Province of British Columbia and many hearing participants argued that most of the project’s economic benefits would flow to Alberta, the rest of Canada, and foreign shareholders in oil and pipeline companies. They said British Columbia would bear too many of the environmental and economic burdens and risks compared to the benefits.

But, as the panel does throughout the ruling, it accepts, with little, if any, skepticism, Northern Gateway’s evidence and assertion:

Northern Gateway said about three-quarters of construction employment would occur in British Columbia, and the province would get the largest share of direct benefits from continuing operations.

It does touch on the “burdens” faced by the Aboriginal people of northern BC and others in the event of a catastrophic spill.

In the unlikely event of a large oil spill, we found that there would be significant adverse effects on lands, waters, or resources used by Aboriginal groups. We found that these adverse effects would not be permanent and widespread. We recognize that reduced or interrupted access to lands, waters, or resources used by Aboriginal groups, including for country foods, may result in disruptions in the ability of Aboriginal groups to practice their traditional activities. We recognize that such an event would place burdens and challenges on affected Aboriginal groups. We find that such interruptions would be temporary. We also recognize that, during recovery from a spill, users of lands, waters, or resources may experience disruptions and possible changes in access or use.

And the JRP goes on to say:

We recommend approval of the Enbridge Northern Gateway Project, subject to the 209 conditions set out in Volume 2 of our report. We have concluded that the project would be in the public interest. We find that the project’s potential benefits for Canada and Canadians outweigh the potential burdens and risks….

We are of the view that opening Pacific Basin markets is important to the Canadian economy and society. Societal and economic benefits can be expected from the project. We find that the environmental burdens associated with project construction and routine operation can generally be effectively mitigated. Some environmental burdens may not be fully mitigated in spite of reasonable best efforts and techniques…. We acknowledge that this project may require some people and local communities to adapt to temporary disruptions during construction.

As for the chance of a major oil spill, again the JRP talks about burdens:

The environmental, societal, and economic burdens of a large oil spill, while unlikely and not permanent, would be significant. Through our conditions we require Northern Gateway to implement appropriate and effective spill prevention measures and spill response capabilities, so that the likelihood and consequences of a large spill would be minimized.

It is our view that, after mitigation, the likelihood of significant adverse environmental effects resulting from project malfunctions or accidents is very low.

And concludes:

We find that Canadians will be better off with this project than without it.

In the Joint Review ruling is one fact. Northern British Columbia must bear the “burden” of the Northern Gateway project for the good of Alberta and the rest of Canada. The JRP accepts, without much questioning, Northern Gateway’s assurances that environmental disruptions during construction will be minimal and that the chances of a major spill from either a pipeline or a tanker are minimal.

Canadians as a whole may be better off with the Northern Gateway. Whether the people who live along the pipeline and tanker route will be better off is another question, one which the Joint Review Panel dismisses with casual disdain.

Cover of JRP ruling — Cover of Volume 2 of the Joint Review rulng on Northern Gateway

The politics of the Joint Review Panel

There are actually two Joint Review Panel reports.

One is political, one is regulatory. The political decision by the three member panel, two from Alberta and one from Ontario, is that the concerns of northwestern British Columbia are fully met by Enbridge Northern Gateway’s assurances. There is a second political decision, found throughout both volumes of the report, and the reader sees the Joint Review Panel has the notion that many parts of the environment have already been degraded by previous human activity, and that means the construction and operation of the Northern Gateway will have little consequence.

Here is where the Joint Review Panel is blind to its own bias. With its mandate to rule on the Canadian “public interest,” the panel makes the political determination that, in the Canadian public interest, northwestern BC must bear the “burden” of the project, while other political issues were not considered because, apparently those issues were outside the JRP’s mandate.

…some people asked us to consider the “downstream” emissions that could arise from upgrading, refining, and diluted bitumen use in China and elsewhere. These effects were outside our jurisdiction, and we did not consider them. We did consider emissions arising from construction activities, pipeline operations, and the engines of tankers in Canadian territorial waters.

During our hearings and in written submissions, many people urged us to include assessment of matters that were beyond the scope of the project and outside our mandate set out in the Joint Review Panel Agreement. These issues included both “upstream” oil development effects and “downstream” refining and use of the products shipped on the pipelines and tankers…Many people said the project would lead to increased greenhouse gas emissions and other environmental and social effects from oil sands development. We did not consider that there was a sufficiently direct connection between the project and any particular existing or proposed oil sands development or other oil production activities

If someone in Northwestern British Columbia favours the Northern Gateway project, if they believe (and many people do) what Enbridge Northern Gateway says about the economic benefits, then it is likely they will accept the burden and the further environmental degradation imposed by the Joint Review Panel on this region of British Columbia.

If, on other hand, for those who are opposed to the project, then the decision to impose the burden on this region is both unreasonable and undemocratic (since no one in northern BC, in the energy friendly east or the environmental west has been formally asked to accept or reject the project). For those opposed to the project, the idea that since the environment has already been disrupted by earlier industrial development, that Canadians can continue to degrade the environment with no consequence will only fuel opposition to the project.

As for the assertion that green house gas emissions were not part of the Joint Review Panel’s mandate, that is mendacious. The panel made a political decision on the role of the people of northwestern BC and the state of northwestern BC’s environment. The panel made a political decision to avoid ruling on the role of Northern Gateway in contributing to climate change or the larger world wide economic impact of pipelines and the bitumen sands.

Regulations

The Joint Review Panel is supposed to be a regulatory body and should be pipeline, terminal and tanker project go ahead after the expected court challenges from First Nations on rights, title and consultation and from the environmental groups, then those 209 conditions kick in.

While the Joint Review Panel largely accepts Enbridge Northern Gateway’s evidence with little questions, in some areas the panel does find flaws in what Northern Gateway planned. In a few instances, it actually accepts the recommendations from intervenors (many from First Nations, who while opposed to the project, successfully demanded route changes to through environmentally sensitive or culturally significant territory.)

When it comes to regulations, as opposed to politics, the Joint Review Panel has done its job and done it well. If all 209 conditions and the other suggestions found in the extensive second volume of the ruling are actually enforced then it is likely that the Northern Gateway will be the safe project that Enbridge says it will be and actually might meet BC Premier Christy Clark’s five conditions for heavy oil pipelines across BC and tankers off the BC coast.

But and there is a big but.

The question is, however, who is going to enforce the 209 conditions? In recent conversations on various social media, people who were quiet during the JRP hearings, have now come out in favour of the pipeline project. Read those comments and you will find that the vast majority of project supporters want those conditions strictly enforced. Long before the JRP findings and before Premier Christy Clark issued her five conditions, supporters of the Northern Gateway, speaking privately, often had their own list of a dozen or two dozen conditions for their support of the project.

The people of northwestern BC had already witnessed cuts to Fisheries and Oceans, Environment Canada and the Canadian Coast Guard in his region even before Stephen Harper got his majority government in May 2011.

Since the majority government Harper has cut millions of dollars from the budgets for environmental studies, monitoring and enforcement. The Joint Review Panel began its work under the stringent rules of the former Fisheries Act and the Navigable Waters Act, both of which were gutted in the Harper government’s omnibus bills. Government scientists have been muzzled and, if allowed to speak, can only speak through departmental spin doctors. The Joint Review Panel requires Enbridge Northern Gateway to file hundreds of reports on the progress of surveying, environmental studies, safety studies, construction plans and activities and project operations. What is going to happen to those reports? Will they be acted on, or just filed in a filing cabinet, perhaps posted on an obscure and hard to find location on the NEB website and then forgotten?

Will the National Energy Board have the staff and the expertise to enforce the 209 conditions? Will there be any staff left at Environment Canada, Transport Canada, Fisheries and Oceans and the Canadian Coast Guard where the conditions demand active participation by government agencies, or ongoing consultation between federal agencies and Northern Gateway? Will there actual be monitoring, participation and consultation between the project and the civil service, or will those activities amount to nothing more than meetings every six months or so, when reports are exchanged and then forgotten? Although Stephen Harper and his government say the Northern Gateway is a priority for the government, the bigger priority is a balanced budget and it is likely there will be more cuts in the coming federal budget, not enhancements to environmental protection for northwestern BC.

The opponents of the project might reluctantly agree to the 209 conditions if Harper government forces the project to go ahead. It will be up to the supporters to decide whether or not they will continue their support of Northern Gateway if the 209 conditions are nothing more than a few pages of Adobe PDF and nothing more.

“Conservatives’ hatred for science intentional part of their environmental policy,” Cullen says

Skeena Bulkley Valley MP and NDP House Leader, reacting to Northwest Coast Energy News exclusive story that the Northern Gateway Joint Review Panel has refused to consider a Fisheries and Oceans report on humpback whales says in a Facebook posting “Like many of you, I’ve come to see the Conservatives’ hatred for science as more than a passing tendency – it’s an intentional part of their environmental policy.”

Cullen has issued an open letter to Natural Resources Minister Joe Oliver and Fisheries Minister Gail Shea that says:

21 November 2013

Dear Ministers,

This is an open letter regarding the 21 October 2013 report, entitled Recovery Strategy for the North Pacific Humpback Whale (Megaptera novaeangliae) in Canada, from the Department of Fisheries and Oceans on a recovery strategy for humpback whales in Canada. As you are likely aware, it is part of the DFO’s mandate to help this species recover from a century of whaling that nearly drove the species into extinction. The report identified four areas of “critical habitat” for humpbacks, one of which is at the mouth of the Douglas Channel, the gateway from Kitimat to the Pacific Ocean. The report also identified vessel traffic and toxic spills as two of the greatest threats to the recovery of this species.

Thus, it was with shock and dismay I recently learned of the decision by the federal joint review panel for the Northern Gateway project to ignore the report as evidence in its ruling, as though vessel traffic and the potential for toxic spills were not two of the primary environmental concerns surrounding this proposal.

It is particularly stunning given that the report, submitted to the panel last week, was authored by a federal government agency, and yet the federal government is now saying it refuses to take into account its own information when ruling on this project. It begs the question of why we even have a federal government agency devoted to ensuring the health and viability of our fisheries and our waters when the research and recommendations they produce are ignored by the very same federal government.

The purpose of the joint review panel hearings is to weigh the available scientific evidence in determining whether this project will negatively impact habitat and endangered species. The purpose of the work of the DFO is to ensure that information is considered when the government is weighing projects which will impact habitat and endangered species. The decision by the JRP to ignore the DFO report is not only wasteful indifference; it’s a double-play failure and abrogation of the duty of both of your departments to protect endangered species and our natural environment.

I wish I could feign some measure of surprise on this matter. But like many Canadians, I have come to see this kind of negligence as not only a passing tendency of the Conservative government but as a very intentional aspect of the government’s resource and environmental policy.

When the government of Canada ignores its own science on endangered species protection, it’s no wonder why Canada has lost all credibility on environmental stewardship among both its own citizens and the international community.

Nathan Cullen

MP Skeena—Bulkley Valley

Copy of Nathan Cullen’s open letter on his website

JRP refuses to consider latest DFO findings on Humpback Whales

The Northern Gateway Joint Review Panel has refused to consider the latest findings from the Department of Fisheries and Ocean on humpback whale critical habitat on the coast of British Columbia, including areas of ocean that could be on the route of tankers carrying diluted bitumen from Kitimat.

On October 21, 2013, Fisheries and Oceans released a report called Recovery Strategy for the North Pacific Humpback Whale (Megaptera novaeangliae) in Canada. The DFO report notes that humpback whales are a species of “special concern” by the Committee on the Status of Endangered Wildlife in Canada.

It is DFO policy to assist the humpback whale population to recover from the century of whaling that almost drove the species to extinction. The report identified four areas of “critical habitat” for humpbacks. One critical habitat zone is Gil Island at the mouth of Douglas Channel.

DFO map of humpback habitat — DFO map of humpback sightings on the BC coast. (DFO)

Last week, on November 13, Smithers based environmental activist Josette Weir filed a notice of motion with the JRP requesting that the panel consider the DFO report as late evidence.

Weir acknowledged that the JRP proceedings closed on June 24, after final arguments in Terrace, but she noted that rules allow the Board to override the final closure. She argued that the humpback report fell within the JRP’s mandate since the DFO report is “is likely to assist the Panel.”

Weir noted in her motion that there was insufficient information before the JRP that would identify critical humpback habitat.

She argued:

Three of the four critical known habitats are on the proposed tanker routes, and the Recovery Strategy acknowledges that other areas have not been identified. Without such information, it is impossible to assess the potential effects of the marine transport of bitumen on this endangered species.Activities likely to destroy or degrade critical habitat include vessel traffic, toxic spills, overfishing, seismic exploration, sonar and pile driving (i.e., activities that cause acoustic disturbance at levels that may affect foraging or communication, or result in the displacement of whales).

The report clearly identifies vessel traffic and toxic spills, which are associated with the Project as potential causes for destruction or degradation of the Humpback Whales’ critical habitat.

Weir went on to argue that the JRP had “insufficient information to develop relevant protection measures” because the humpback studies are ongoing, “meaning their results will not be available before decision.”

The Panel must consider this significant risk to an endangered listed species for which no meaningful protection measure can be offered against the risks associated with the Project.

Weir also noted that “No similar submission has been made by others, but I cannot predict if others will not see fit to do so.”

The JRP didn’t take long to reject Weir’s request, replying the next day, November 14.

In its response, the JRP cited the amended Joint Review Panel Agreement, signed after the passage of of the Jobs, Growth and Long-term Prosperity Act, the Omnibus Bill C-38, that “provides that the Panel’s recommendation report is to be submitted to the Minister of Natural Resources by 31 December 2013.”

The JRP then told Weir it didn’t have jurisdiction over endangered species (even if those species inhabit the tanker route) saying:

The Panel notes that the Recovery Strategy has been released in accordance with the provisions of the Species At Risk Act, as part of a legislative scheme that operates independently of this joint review process.

It goes on to say: “In this case, the Panel also notes that the Recovery Strategy was not authored by or for Ms. Wier.”

Map of Gil Island — Humpback whale sightings at the Gil Island critical habitat. (DFO)

The executive summary of the DFO report noted:

Critical habitat for Humpback Whales in B.C. has been identified to the extent possible, based on the best available information. At present, there is insufficient information to identify other areas of critical habitat or to provide further details on the features and attributes present within the boundaries of identified critical habitat. Activities likely to destroy or degrade critical habitat include vessel traffic, toxic spills, overfishing, seismic exploration, sonar and pile driving (i.e., activities that cause acoustic disturbance at levels that may affect foraging or
communication, or result in the displacement of whales). A schedule of studies has been included to address uncertainties and provide further details on the critical habitat feature(s), as well as identify additional areas of critical habitat. It is anticipated that results from these studies will also assist in development of relevant protection measures for the critical habitat feature(s).

In the part of the report on the danger of toxic spills to humpbacks, the DFO report mentions that sinking of the BC ferry Queen of the North:

Toxic spills have occurred impacting marine habitat along the B.C. coast. For example, the Nestucca oil spill (1988) resulted in 875 tonnes of oil spilled in Gray’s Harbor, Washington. Oil slicks from this spill drifted into Canadian waters, including Humpback Whale habitat. In 2006, a tanker ruptured in Howe Sound, B.C. spilling approximately 50 tonnes of bunker fuel into coastal waters. In 2007, a barge carrying vehicles and forestry equipment sank near the Robson Bight-Michael Bigg Ecological Reserve within the critical habitat for Northern Resident Killer Whales, spilling an estimated 200 litres of fuel. The barge and equipment (including a 10,000L
diesel tank) were recovered without incident. When the Queen of the North sank on March 22, 2006, with 225,000 L of diesel fuel, 15,000 L of light oil, 3,200 L of hydraulic fluid, and 3,200 of stern tube oil, it did so on the tanker route to Kitimat, which is currently the subject of a pipeline and port proposal and within the current boundaries of Humpback Whale critical habitat

The DFO report also takes a crtical look at vessel strikes

In B.C. waters, Humpback Whales are the most common species of cetacean struck by vessels, as reported to the Marine Mammal Response Network. Between 2001 and 2008, there were 21 reports of vessel strikes involving Humpback Whales. Of these, 15 were witnessed collision events while the remaining 6 were of live individuals documented with fresh injuries consistent with recent blunt force trauma or propeller lacerations from a vessel strike.

Overall, vessel strikes can cause injuries ranging from scarring to direct mortality of individual whales. Some stranded Humpback Whales that showed no obvious external trauma, have been shown from necropsy to have internal injuries consistent with vessel strikes… It is unknown how many whales have died as a result of vessel strikes in B.C. waters. To date, only one reported dead Humpback Whale presented with evidence consistent with blunt force trauma and lacerations resulting from a vessel strike…

There are no confirmed reports of Humpback Whale collisions in B.C. waters attributed to shipping, cruise ship or ferry traffic. However, larger ships are far less likely to detect the physical impact of a collision than smaller vessels, and this could account for the lack of reported strikes. Collisions with large vessels may be more common than reported, especially in areas where larger vessel traffic is concentrated.

Despite the fact that collisions may only affect a small proportion of the overall Humpback Whale population, vessel strikes may be a cause for concern for some local and seasonal areas of high ship traffic.. In B.C., areas of high probability of humpback-vessel interaction include Johnstone Strait off northeast Vancouver Island, Juan de Fuca Strait off southwest Vancouver Island, Dixon Entrance and the “Inside Passage” off the northern B.C. mainland which include portions of two of the identified critical habitat areas..

The JRP also said

As the Panel has mentioned previously during the hearing, the later in the joint review process that new evidence is sought to be filed the greater the likelihood of the prejudice to parties. The Panel is of the view that permitting the Recovery Strategy to be filed at this late stage in the hearing process would be prejudicial to the joint review process.

Weir’s submission to the JRP did not mention an academic study published on September 11, 2013, that also identified Gil Island as critical humpback habitat.

DOCUMENTS:

DFO report on Humpback Recovery strategy (PDF)

Josette Weir notice of motion on Humpback Whales (PDF)

Panel Commission Ruling on Humpback Whales (PDF)

New Fisheries Regulations further gut habitat protection in Canada, study says

Population density — Blacked out fishery. A new study says that fisheries protection in Canada is now tied to economics, meaning areas with lower populations, like the BC northwest, get less fisheries protection. (Fisheries magazine)

New regulations under the Fisheries Act that was revised by the Harper government’s omnibus bills go even further in gutting protection for fish habitat in Canada, according to an analysis by scientists released Friday.

The changes to Canada’s fisheries legislation “have eviscerated” the ability to protect habitat for most of the country’s fish species, the scientists, John Post, at the University of Calgary and Jeffrey Hutchings of Dalhousie University say their new study.

The study says with the Conservative government’s emphasis on prioritizing economic importance over the habitat ecology is “contrary to responsible management practices for the protection of native fishes, the act now inadvertently prioritizes habitat protection for some nonnative species—even hatchery-produced hybrids.” The study says as long as those introduced or other species are part of what the new act and regulations define as “part of a fishery,” those fish are protected, while nearby native species, not part of a fishery, have no protection.

The same economic emphasis downgrades protection for sparsely inhabitated regions (which make up most of Canada) through what the scientists call:

NO HUMANS . NO FISHERY; NO FISHERY . NO PROTECTION; NO PROTECTION . NO STEWARDSHIP

The stipulation that fish be part of, or support, a fishery will have particularly egregious consequences for species that inhabit pristine or near-pristine habitat in Canada’s vast wilderness.

Under the revised FA, fish that inhabit lakes, rivers, and streams that are not regularly visited by humans do not warrant protection. Humans are necessary to render a fish part of a fishery. No humans, no fishery, and no fish habitat protection. This can only be interpreted as meaning that the vast majority of Canada’s freshwater fishes will be deemed to not warrant habitat protection under the revised FA, even if those species are considered part of a fishery elsewhere in their range.

The changes were “politically motivated,” unsupported by scientific advice – contrary to the policy of previous governments – and are inconsistent with ecosystem-based management, fisheries biologists Post and Hutchings say.

Their comprehensive assessment, in a peer-reviewed paper titled “Gutting Canada’s Fisheries Act: No Fishery, No Fish Habitat Protection,” is published in the November edition of Fisheries, a journal of the 10,000-member American Fisheries Society.

The 2012 omnibus bill redefined fish habitat to a fishery in this clause:

No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

The two authors interpret that as meaning, that while you may be forbidden from harming the fish, there are no barriers to harming fish habitat.

… it will no longer be illegal to harmfully alter or disrupt fish habitat. The revised act only renders it illegal to cause serious harm to fish that are part of a commercial, recreational, or Aboriginal fishery or to fish that support such a fishery. “Serious harm” is defined by the act as “the death of fish or any permanent alteration to, or destruction of, fish habitat” (Fisheries Act 2013). A legal opinion prepared for the Environmental Managers Association of British Columbia concluded that serious harm does not prohibit the disruption or temporary alteration of fish habitat, concluding that many situations prohibited under the previous legislation will no longer be covered by the revised act

The new regulations proclaimed in the Canada Gazette in April 2013.

“The biggest change is that habitat protection has been removed for all species other than those that have direct economic or cultural interests, through recreational, commercial and Aboriginal fisheries,” Post says.

Before, “there used to be a blanket habitat protection for all fish species,” he says. “Now there’s a projection just for species of economic importance which, from an ecological standpoint, makes no sense.”

The study goes on to say:

The near elimination of fish habitat protection represents a clear signal that protection of habitat—the single greatest factor responsible for the decline and loss of commercial and noncommercial species on land and in water —no longer merits explicit protection under Canadian fisheries management law.

And later:

The multitude of aquatic systems that do not support a fishery, coupled with the extensive distributions of many Canadian fishes, will mean that habitat protection will not be provided for most fish species in most places.

By applying the “no humans, no fishery” criterion, the Minister of Fisheries and Oceans will have an easy time expediting applications for fish habitat destruction resulting from all manner of development. The lack of foresight inherent in the “no humans, no fishery” stipulation is also manifest by the likelihood that aquatic systems that do not support a fishery today (e.g., much of Arctic and northern Canada) might well do so in the future. But investment in future fisheries requires investment in appropriate habitat protection today. How is a fishery to develop down the road if the habitat is already gone?

Although it is well known that the Harper government muzzles scientists from speaking to the media, that apparently doesn’t mean that there isn’t “chatter” (to use the intelligence term) among fisheries scientists themselves. As the study authors report:

based on personal communications with DFO scientists and divisional managers, it appears that scientists were not consulted at all. By all accounts, DFO scientists and managers were surprised by the degree and types of changes in the revised act. According to one very highly placed science director (in a confidential communication to one of the authors), he was unaware of the March 2012 provisions in the legislation until he heard of the government’s finalized revisions on a news broadcast.

The scientists also quote earlier studies that showed the old Fisheries Act was not unduly holding up development projects.

a key reason for revising the act—a perceived need to expedite or “streamline” environmental reviews (Canada Gazette 2013)—has been shown to lack an empirical basis. There was a perception among some politicians that the act needed to be changed because it was deemed unduly obtrusive and prevented any number of activities from occurring.

The analysis by the environmental group Ecojustice showed that between 2006 and 2011, only one proposal among thousands was denied by the DFO, and only 1.6% of 1,283 convictions under the FA between 2007 and 2011 pertained to the destruction of fish habitat.

Post and Hutchings go on to say:

These scientific analyses run counter to the political discourse, which argues that environmental reviews are unduly lengthy and are bad for economic growth. In fact, review times in Canada were found to be faster, under the previous Fisheries Act, than they were in the United States. The absence of a scientific basis for statutory change in this case is a telling example of how scientific advice can constructively assist decision makers before they revise legislation.

Proponent gets to gather the data

University of Calgary fisheries biologist John Post.
(Riley Brandt, University of Calgary)

Under the new regulations proclaimed in April, when an individual or company applies for an “application to undertake an activity that requires authorization by the Minister of Fisheries and Oceans” …”the primary—if not sole—responsibility for providing accurate information and data rests with the applicant, rather than with DFO habitat scientists and biologists.”

The proponent of a project has to identify whether or not “fish that are part of a commercial, recreational or Aboriginal fishery,” or “fish that support such a fishery,” at the location of the proposed work, will be the responsibility of the proponent/applicant to identify.

The two scientists say there is no way to ask what scientific standards, DFO’s or others will be applied in identifying fish that support a fishery.

There are also questions about who “will determine the scientific validity and appropriateness of each proponent’s assessment.” It could be, the paper says, the proponent themselves determining the validity of their own studies because:

There does not appear to be a requirement for the DFO to undertake an on-site inspection by DFO scientific staff to verify information provided by an applicant. This change in responsibility explains the 33% reduction in DFO staff responsible for habitat protection reported by various Canadian media in 2012. This reduction in staff can only diminish the scientific integrity and scientific credibility of DFO’s assessments of applications for the authorization of activities under 35(2)(b) of the FA that will result in the destruction of fish and fish habitat.

The study goes on to say:

The regulations confirm that the revised FA will not protect any particular species of fish. Rather, protection will be provided only to “fish that are part of a commercial, recreational or Aboriginal fishery” or “fish that support such a fishery.” This means, to take one of many examples, that Largemouth Bass (Micropterus salmoides) will be protected at a particular location if, and only if, those Largemouth Bass are considered to be part of a fishery at that location. Otherwise, Largemouth Bass will not be protected.

The scientists do acknowledge that:

It can be argued that there are positive elements to the FA revisions, such as (1) statutory recognition of the importance of recreational and Aboriginal fisheries, (2) provision for the establishment of regulations to control aquatic invasive species and prohibit their import, and (3) increased penalties and fines for contravention of the act.

They then add:

But, in our opinion, the negative consequences to Canada’s aquatic ecosystems generated by the revisions to the act outweigh these benefits, none of which actually required changes to the existing habitat protection provisions of the FA.

The scientists conclude the article by saying

Being the second largest country in the world, Canada is responsible for 20% of the globe’s fresh water, one third of its boreal forests and associated aquatic environment, and the world’s longest coastline. However, this geographical wealth comes with a responsibility to be internationally respected stewards of this vast environment. Politically motivated abrogation of the country’s national and international responsibilities to protect fish and fish habitat suggests to us that Canada might no longer be up to the task.

Special report: Clio Bay cleanup: Controversial, complicated and costly

Special report: Clio Bay cleanup: Controversial, complicated and costly

Log booming at Clio Bay — Log booming operations at Clio Bay, August 21, 2013. (Robin Rowland/Northwest Coast Energy News)

Chevron, the company operating the KM LNG project at Bish Cove and the Haisla Nation have proposed that marine clay from the Bish Cove construction site be used to cap more than 10,000 sunken and rotting logs in Clio Bay. Haisla Chief Counsellor Ellis Ross says he hopes that using clay to cover the logs will help remediate the environmentally degrading sections of the Bay. The proposal has brought heated controversy over the plan, both among residents of Kitimat and some members of the Haisla Nation, who say that Clio Bay is full of life and that the capping will cause irreparable damage.

An investigation by Northwest Coast Energy News shows that capping thousands of sunken logs is a lot more complicated and possibly costly than anyone has considered. It is also clear that many of the comments both supporting and opposing the Clio Bay project are based on guesses rather than the extensive scientific literature available on the subject.

Northwest Coast Energy News findings include:

In 1997, the Department of Fisheries and Oceans surveyed sunken log sites in Douglas Channel. The results, published in 2000, identified 52 sites just on Douglas Channel and the Gardner Canal that had various levels of enviromental degradation due to sunken logs. Clio Bay was not the list. The DFO scientists recomended followup studies that never happened.
Scientific studies show that degradation from sunken logs can vary greatly, even within one body of water, due to depth, currents, number of logs, and other factors. So one part of a bay can be vibrant and another part environmentally degraded due to low levels of dissolved oxygen and decaying organic material.
If KM LNG wasn’t paying for the remediation of Clio Bay, it could be very expensive. Capping sunken logs at a cove near Ketchikan, Alaska, that is the same size and shape as Clio Bay cost the US and Alaska governments and the companies involved $2,563,506 in 2000 US dollars. The total cost of the cleanup of the site which was also contaminated with pulp mill effluent was $3,964,000. The estimated cost of capping the logs in the Alaska project was $110 per cubic yard.
The Alaska project shows that a remediation project means while most of the logs in a bay or cove can be capped, in some parts of a water body, depending on currents, contamination and planned future use, the logs have to be removed and the area dredged.
Agencies such as the State of Alaska, the US Environmental Protection Agency and the US Army Corps of Engineers all recommend using “clean sand” for capping operations. Although “clay balls” have been used for capping in some cases, the US officials contacted say they had no record of large amounts of marine clay ever being used for capping. They also noted that every log capping project they were aware of happened in sites that had other forms of contamination such as pulp mill effluent.
Chevron only recently retained the environmental consulting firm Stantec to study Clio Bay. The Department of Fisheries and Oceans has told District of Kitimat Council it recently completed mapping of the seafloor at Clio Bay. The Alaska project was preceded by five years of monitoring and studies before capping and cleanup began.
A letter from Fisheries and Oceans to the District of Kitimat says that Clio Bay has been mapped and the department is planning to monitor any capping operations. However, it appears from the Department of Fisheries and Oceans website that the department has no current policies on remediation since the Conservative government passed two omnibus which weakened the country’s environmental laws. According to the website, new remediation policies are now being drafted. That means that although DFO will be monitoring the Clio Bay operation, it is uncertain what standards DFO will be using to supervise whatever happens in Clio Bay.

Northwest Coast Energy News is continuing its investigation of the sunken logs problem. Expect more stories in the days to come.

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Clio Bay: Haisla desire to clean up bay led to proposal to cap Clio with marine clay, Ross says

Special report: Clio Bay cleanup: Controversial, complicated and costly

Haisla First Nation Chief Counsellor Ellis Ross says the Haisla made the proposal to the KM LNG project, a partnership of Chevron and Apache, to use the marine clay to cover the thousands of logs at the bottom of Clio Bay after years frustration with the Department of Fisheries and Oceans and the BC provincial government, which for decades ignored requests for help in restoring almost fifty sunken log sites in Haisla traditional territory.

The problem is that remediation of the hundreds of sites on Canada’s west coast most containing tens of thousands of sunken logs has been so low on DFO’s priority list that even before the omnibus bills that gutted environmental protection in Canada, remediation of sunken log sites by DFO could be called no priority.

Now that the KM LNG has to depose of a total of about 3.5 million cubic metres of marine clay and possibly other materials from the Bish Cove site, suddenly log remediation went to high priority at DFO.

The controversy is rooted in the fact that although the leaders of the Haisla and the executives at Chevron knew about the idea of capping Clio Bay, people in the region, both many residents of Kitimat and some members of the Haisla were surprised when the project was announced in the latest KM LNG newsletter distributed to homes in the valley.

Chevron statement

In a statement sent to Northwest Coast Energy News Chevron spokesperson Gillian Robinson Ridell said:

The Clio Bay Restoration Project proposed by Chevron, is planned to get underway sometime in early 2014. The proposal is fully supported by the Federal Department of Fisheries and Oceans and the Haisla First Nation Council. The project has been put forward as the best option for removal of the marine clay that is being excavated from the Kitimat LNG site at Bish Cove. Chevron hired Stantec, an independent engineering and environmental consulting firm with extensive experience in many major habitat restoration projects that involve public safety and environmental conservation. The Haisla, along with Stantec’s local marine biologists, identified Clio Bay as a site that has undergone significant environmental degradation over years of accumulation of underwater wood debris caused by historic log-booming operations. The proposal put forward by the marine biologists was that restoration of the marine ecosystem in the Bay could be achieved if marine clay from Chevron’s facility site, was used to cover the woody debris at the bottom of the Bay. The process outlined by the project proposal is designed to restore the Clio Bay seafloor to its original soft substrate that could sustain a recovery of biological diversity.

Kitimat worried

Non-aboriginal residents of Kitimat are increasingly worried about being cut off from both Douglas Channel and the terrestrial back country by industrial development. These fears have been heightened by reports that say that Clio Bay could be closed to the public for “safety reasons” for as much as 16 months during the restoration project.

The fact that Clio is known both as a safe anchorage during bad weather and an easy to get to location for day trips from Kitimat has made those worries even more critical.

There is also a strong feeling in Kitimat that the residents were kept out of the loop when it came to the Clio Bay proposal.

In a letter to the District of Kitimat, DFO said:

Clio Bay has been used as a log handling site for decades which has resulted in areas of degraded habitat from accumulations of woody debris materials on the sea floor. The project intends to cap impacted areas with inert materials and restore soft substrate seafloor. The remediation of the seafloor is predicted to enhance natural biodiversity and improve the productivity of the local fishery for Dungeness crab. The project area does support a variety of life that will be impact and therefore the project will require authorization from Fisheries and Oceans Canada for the Harmful Alteration, Disruption or Destruction (HADD) of fish and fish habitat.

The letter avoids the controversy over the use of marine clay but saying “inert material” will be used. That can only increase the worries from residents who say that not only clay but sand, gravel and other overburden from Bish Cove and the upgrade of the Forest Service Road may be used in Clio Bay. (The use of “inert material” also gives DFO an out if it turns out the department concludes the usual practice of using sand is better. That, of course, leaves the question of what to do with the clay).

Although Ellis Ross has said he wants to see large numbers of halibut and cod return to Clio Bay, the DFO letter only mentions the Dungeness Crab.

DFO website cites pending changes after the passage of the omnibus bills.

Try to search “remediation” on the DFO site and the viewer is redirected to a page that cites the omnibus bills passed by the Conservative government and says

On June 29, 2012, the Fisheries Act was amended. Policy and regulations are now being developed to support the new fisheries protection provisions of the Act (which are not yet in force). The existing guidance and policies continue to apply. For more information, see Changes to the Fisheries Act.

On April 2nd, 2013 the Habitat Management Program’s name was changed to the Fisheries Protection Program.

So, despite what communications officers for DFO and the Harper government may say, there was no policy then and there is no policy now on remediation of log sites. Given Harper’s attitude that LNG and possibly bitumen export must proceed quickly with no environmental barriers, it is likely that environmental remediation will continue to be no priority—unless remediation becomes a problem that the energy giants have to solve and pay for.

Alaska studies

On the other hand, the State of Alaska and the United States Environmental Protection Agency spent a decade at a site near Ketchikan studying the environmental problems related to sunken logs at transfer sites

Those studies led Alaska to issue guidelines in 2002 with recommended practices for rehabilitating ocean log dump sites and for the studies that should precede any remediation project.

The Alaska studies also show that in Pacific northwest coast areas, the ecological effects of decades of log dumping, either accidental or deliberate, vary greatly depending on the topography of the region, the topography of the seabed, flow of rivers and currents as well as industrial uses along the shoreline.

The Alaska policy is based on studies and a remediation project at Ward Cove, which in many ways resembles Clio Bay, not far from Kitimat, near Ketchikan.

The Alaska policy follows guidelines from both the US Environmental Protection Agency and the US Army Corps of Engineers that recommend using thin layers of “clean sand” as the best practice method for capping contaminated sites. (The Army Corps of Engineers guidelines say that “clay balls” can be used to cap contaminated sites under some conditions. Both a spokesperson for the Corps of Engineers and officials at the Alaska Department of Environmental Conservation told Northwest Coast Energy News that they have no records or research on using marine clay on a large scale to cap a site.)

The EPA actually chose Sechelt, BC, based Construction Aggregates to provide the fine sand for the Ward Cove remediation project. The sand was loaded onto 10,000 tonne deck barges, hauled up the coast to Ward Cove, offloaded and stockpiled then transferred to derrick barges and carefully deposited on the sea bottom using modified clam shell buckets.

The EPA says

Nearly 25,000 tons of sand were placed at the Ward Cove site to cap about 27 acres of contaminated sediments and 3 other acres. In addition, about 3 acres of contaminated sediments were dredged in front of the main dock facility and 1 acre was dredged near the northeast corner of the cove. An additional 50 acres of contaminated sediments have been left to recover naturally.

A report by Integral Consulting, one of the firms involved at the project estimated that 17,800 cubic metres of sand were used at Ward Cove.

In contrast, to 17,800 cubic metres of sand used at Ward Cove, the Bish Cove project must dispose of about 1.2 million cubic metres of marine clay at sea (with another 1.2 million cubic metres slated for deposit in old quarries near Bees Creek).

Studies at Ward Cove began as far back as 1975. In 1990 Alaska placed Ward Cove on a list of “water-quality limited sites.” The studies intensified in 1995 after the main polluter of Ward Cove, the Ketchikan Paper Company, agreed in a consent degree on a remediation plan with the Environmental Protection Agency in 1995. After almost five years of intensive studies of the cove, the sand-capping and other remediation operations were conducted from November 2000 to March 2001. A major post-remediation study was carried out at Ward Cove in 2004 and again in 2009. The next one is slated for 2015.

Deaf ears at DFO

“We need to put pressure on the province or Canada to cleanup these sites. We’ve been trying to do this for the last 30 years. We got nowhere,” Ellis Ross says. “Before when we talked [to DFO] about getting those logs and cables cleaned up, it fell on deaf ears. They had no policy and no authority to hold these companies accountable. So we’re stuck, we’re stuck between a rock and hard place. How do we fix it?”

Ross says there has been one small pilot project using marine clay for capping which the Haisla’s advisers and Chevron believe can be scaled up for Clio Bay.

Douglas Channel studies

The one area around Kitimat that has been studied on a regular basis is Minette Bay. The first study occurred in 1951, before Alcan built the smelter and was used as a benchmark in future studies. In 1995 and 1996, DFO studied Minette Bay and came to the conclusion that because the water there was so stagnant, log dumping there had not contributed to low levels of dissolved oxygen although it said that it could not rule out “other deleterious effects on water quality and habitat`from log dumping.”

That DFO report also says that there were complaints about log dumping at Minette Bay as far back as 1975, which would tend to confirm what Ross says, that the Haisla have been complaining about environmentally degrading practices for about 30 years.

Ross told Northwest Coast Energy News that if the Clio Bay remediation project is successful, the next place for remediation should be Minette Bay.

A year after the Minette Bay study, DFO did a preliminary study of log transfer sites in Douglas Channel, with an aerial survey in March 1997 and on water studies in 1998. The DFO survey identified 52 locations with sunken logs on Douglas Channel as “potential study sites.” That list does not include Clio Bay. On water studies were done at the Dala River dump site at the head of the inlet on Kildala Arm, Weewanie Hotsprings, at the southwest corner of the cove, the Ochwe Bay log dump where the Paril River estuary opens into the Gardner Canal and the Collins Bay log dump also on the Gardner Canal.

In the introduction to its report, published in 2000, the DFO authors noted “the cumulative effect of several hundred sites located on BC coast is currently unknown.”

DFO list of sunken log sites on Douglas Channel (pdf)

Since there appears to have been no significant follow-up, that cumulative effect is still “unknown.”

In 2000 and 2001, Chris Picard, then with the University of Victoria, now Science Director for the Gitga’at First Nation did a comparison survey of Clio Bay and Eagle Bay under special funding for a “Coasts Under Stress” project funded by the federal government. Picard’s study found that Eagle Bay, where there had been no log dumping was in much better shape than Clio Bay. For example, Picard’s study says that “Dungeness crabs were observed five times more often in the unimpacted Clio Bay.”

Although low oxygen levels have been cited as a reason for capping Clio Bay, Picard’s study says that “near surface” oxygen levels “did not reliably distinguish Clio and Eagle Bay sediments.” While Clio Bay did show consistent low oxygen levels, Eagle Bay showed “considerable interseasonal variation” which is consistent with the much more intensive and ongoing studies of oxygen levels at Wards Cove.

Chevron’s surprise

It appears that Chevron was taken by surprise by the controversy over the Clio Bay restoration. Multiple sources at the District of the Kitimat have told Northwest Coast Energy News that in meetings with Chevron, the company officials seemed to be scrambling to find out more about Clio Bay.

This is borne out by the fact, in its communications with Northwest Coast Energy News, Chevron says its consulting firm, Stantec has cited just two studies, Chris Picard’s survey of Clio Bay and a 1991 overview of log-booming practices on the US and Canadian Pacfic coasts. So far, Chevron has not cited the more up-to-date and detailed studies of Ward Cove that were conducted from 1995 to 2005.

Chevron says that Stantec marine biologists are now conducting extensive field work using divers and Remote Operated Vehicle surveys to “observe and record all flora and fauna in the bay and its levels of abundance. Stantec’s observations echoed the previous studies which determined that the massive amount of wood has harmed Clio Bay’s habitat and ecosystem.”

In its statement to Northwest Coast Energy News, Chevron cited its work on Barrow Island, in Western Australia, where the Chevron Gordon LNG project is on the same island as a highly sensitive ecological reserve. Chevron says the Australian site was chosen only after a thorough assessment of the viability of other potential locations, and after the implementation of extensive mitigation measures, including a vigorous quarantine program for all equipment and materials brought on to the Barrow island site to prevent the introduction of potentially harmful alien species.

Reports in the Australian media seem to bare out Chevron’s position on environmental responsibility. Things seem to be working at Barrow Island.

Robinson went on to say:

Those same high environmental standards are being applied to the Kitimat LNG project and the proposed Clio Bay Restoration project. The proposed work would be carried out with a stringent DFO approved operational plan in place and would be overseen by qualified environmental specialists on-site.

The question that everyone in the Kitimat region must now ask is just how qualified are the environmental specialists hired by Chevron and given staff and budget cuts and pressure from the Prime Minister’s Office to downgrade environmental monitoring just how stringent will DFO be monitoring the Clio Bay remediation?

Alaska standardsIn the absence of comprehensive Canadian studies, the only benchmark available is that set by Alaska which calls for:Capping material, typically a clean sand, or silty to gravelly sand, is placed on top of problem sediments. The type of capping material that is appropriate is usually determined during the design phase of the project after a remediation technology has been selected. Capping material is usually brought to the site by barge and put in place using a variety of methods, depending on the selected remedial action alternative.

Thick Capping

Thick capping usually requires the placement of 18 to 36 inches of sand over the area. The goal of thick capping is to isolate the bark and wood debris and recreate benthic habitat that diverse benthic infauna would inhabit.

Thin Capping

Thin capping requires the placement of approximately 6 – 12 inches of sand on the project area. It is intended to enhance the bottom environment by creating new mini-environments, not necessarily to isolate the bark and wood debris. With thin capping, surface coverage is expected to vary spatially, providing variable areas of capped surface and amended surface sediment (where mixing between capping material and problem sediment occurs) as well as limited areas where no cap is evident.

Mounding

Mounding places small piles of sand or gravel dispersed over the waste material to create habitat that can be colonized by organisms. Mounding can be used where the substrate will not support capping.

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