Peches et Oceans Canada. Directrice generale regionale Region du Pacifique Piece rue Burrard Vancouver (C.-B.) V6C 354

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1 Fisheries and Oceans Canada Peches et Oceans Canada Regional Director General Pacific Region Suite Burrard Street Vancouver, British Columbia V6C 354 Directrice generale regionale Region du Pacifique Piece rue Burrard Vancouver (C.-B.) V6C 354 SEP t Our file Notre reference 07 -HPAC-PA Ms. Jocelyne Beaudet, Panel Chair; Dr. David Levy, Panel Member; Dr. Douw Steyn, Panel Member; c/o Debra Myles, Panel Manager Canadian Environmental Assessment Agency 160 Elgin Street 22nd Floor Ottawa, Ontario KIA OH3 Dear Jocelyne Beaudet: Subject: Fisheries and Oceans Canada's Response to Information Requests from the Review Panel (DFO IR 15-18) for the Roberts BankTerminal2 Project Thank you for your July 17, 2017 letter addressed to Catherine Blewett, Deputy Minister of Fisheries and Oceans Canada. Please find attached Fisheries and Oceans Canada's (DFO) response to the four information requests that were included with your July 17th letter (i.e., DFO IR 15-18). DFO shared its draft response to DFO IR-17 with Environment and Climate Change Canada. Environment and Climate Change Canada had no further information to provide in relation to this response. If you, or anyone conducting work on your behalf, have questions regarding DFO's response <contact information removed> please contact Tessa Richardson at our Vancouver office by phone at or by at <Original signed by> Rebecca Reid Regional Director General Attachment: Fisheries and Oceans Canada's Response to DFO IR-15 to DFO IR-18from the Review Pane/for the Roberts Bank Terminal 2 Project Canada

2 Fisheries and Oceans Canada s Response to DFO IR-15 to DFO IR-18 from the Review Panel for the Roberts Bank Terminal 2 Project This document is provided in response to the July 17, 2017 letter addressed to Catherine Blewett, Deputy Minister of Fisheries and Oceans Canada (DFO) from the Panel Chair Jocelyne Beaudet, pertaining to the Roberts Bank Terminal 2 Project. The letter requests DFO to provide the Review Panel with the following information, by September 18, 2017: DFO IR-15 Context: In Volume 151, Number 9 of the Canada Gazette Part II, the Leatherback Sea Turtle was separated into an Atlantic and Pacific Population. Under Schedule 1 of the Species at Risk Act, the Leatherback Sea Turtle is listed as endangered. As stated by the Proponent in Section 6.4 of Appendix IR1-08-B of CEAR Doc#897, reptiles were considered to be extremely important to 19 out of 41 participants surveyed. However, in Appendix 8-A of the EIS, marine reptiles were not considered as a candidate component in the environmental assessment. Further information is required to determine whether the proposed Project and marine shipping associated with the Project have the potential to affect marine reptiles, such as the Leatherback Sea Turtle. Information Request: Describe the potential for marine reptiles such as the Pacific Population of the Leatherback Sea Turtle to be affected by the proposed Project or marine shipping associated with the Project, and describe the nature of those potential effects. DFO IR-15 Response The Pacific Population of Leatherback Sea Turtle (Dermochelys coriacea) is listed as endangered under Schedule 1 of the Species at Risk Act and occurs seasonally off coastal British Columbia. This large, highly migratory reptile makes foraging migrations from nesting sites in the Western and Eastern Pacific Ocean. Leatherback Sea Turtle sightings in British Columbia are infrequent. Spaven et al. (2009) compiled data from sightings, strandings and entanglements from 1931 to 2009 and identified a total of 126 unique Leatherback sighting records from the waters of British Columbia. Figure 1 depicts Leatherback Turtle sightings in Pacific Canadian waters from 1931 to 2005.

3 Figure 1: Leatherback Turtle sightings in Pacific Canadian waters from 1931 to 2005 As stated in DFO s Recovery Strategy for Leatherback Turtles (Dermochelys coriacea) in Pacific Canadian Waters, the Leatherback Sea Turtle is threatened with extinction by a long list of factors, including accidental capture, nesting beach habitat loss, killing of nesting females and harvest of eggs. Many of the threats are not present along the Pacific Coast of Canada. Off the Coast of British Columbia, threats have been identified as accidental capture and entanglement, collision with boats and ingestion of debris, although a lack of information on basic turtle biology and sightings makes it very difficult to assign risk to any particular threat. Recovery objectives are currently focused on obtaining fundamental baseline information on the basic biology and distribution of this species in Pacific Canadian waters, and the threats it faces. Since 2008, all incidents involving sick, injured, entangled, or dead Leatherback Sea Turtles within BC waters are reported through, verified, responded to and tracked by the DFO Pacific Marine Mammal Response Program. A potential interaction between the proposed Project or marine shipping associated with the Project and the Pacific Population of Leatherback Sea Turtle is collision with Project-related vessels. According to the Recovery Strategy, given the slow swimming of Leatherbacks and their Terminal 2 Project Page 2

4 habit of swimming just beneath the surface, and the often high speeds of vessels, these types of collisions could cause mortality. There is one record of a ship strike reported in BC, between a Leatherback and a slow-moving small recreational fishing vessel. Damage to the turtle and boat were considered negligible. It is unknown if collisions between Leatherbacks and large ships take place in BC waters, as operators of large vessels are not likely to feel the impact of a collision with a Leatherback Sea Turtle. However, according to Spaven et al. (2009), although mortality due to vessel collisions has been identified as a potential threat to leatherbacks throughout the world, there is little evidence suggesting collision events pose more than a minimal risk (TEWG 2007). References: Pacific Leatherback Turtle Recovery Team Recovery Strategy for Leatherback Turtles (Dermochelys coriacea) in Pacific Canadian Waters. Species at Risk Act Recovery Strategy Series. Fisheries and Oceans Canada, Vancouver, v + 41 pp. DFO Report on the Progress of Recovery Strategy Implementation for Leatherback Sea Turtles (Dermochelys coriacea) in Canadian Pacific Waters for the Period Species at Risk Act Recovery Strategy Report Series. Fisheries and Oceans Canada, Ottawa. v + 12 pp. Spaven, L.D., Ford, J.K.B, and Sbrocchi, C Occurrence of leatherback sea turtles (Dermochelys coriacea) off the Pacific Coast of Canada, Can. Tech. Rep. Fish. Aquat. Sci. 2858: vi + 32 p. Turtle Expert Working Group An Assessment of the Leatherback Turtle Population in the Atlantic Ocean. NOAA Technical Memorandum NMFSSEFSC-555, 116pp. DFO IR-16 Context: In Section of the EIS, the Proponent stated that authorized Indigenous groups can harvest crab for food, social and ceremonial or domestic purposes within each of the navigational closure areas subject to not using floats. Section stated that it was anticipated that crab harvesting for food, social and ceremonial or Indigenous domestic purposes would continue in the current navigational closure area and in an expanded navigational closure area during construction and operation of the proposed Project. Information is needed on the method(s) and effectiveness of fishing for crabs without using floats, as well as the identification and evaluation of safety concerns associated with crab harvesting in close proximity to container ships and support vessels. Information Request: Provide advice on the method(s) and effectiveness of fishing for crabs without using floats in the existing and expanded navigational closure areas shown in Figures 21-3 and Terminal 2 Project Page 3

5 Provide advice on the safety of crab harvesting (without floats) in the navigational closure areas in close proximity to container ships and support vessels. DFO IR-16 Response The Department of Fisheries & Oceans (DFO) delivers programs and services that support sustainable use and development of Canada's waterways and aquatic resources. The Vancouver Fraser Port Authority (VFPA) is responsible for maintaining safe navigation in the waters within its jurisdiction. Section 24 of the Fisheries Act states that seines, nets or other fishing apparatus shall not be set or used in such manner or in such place as to obstruct the navigation of boats and vessels and no boats or vessels shall destroy or wantonly injure in any way seines, nets or other fishing apparatus lawfully set. As stated in notice 9A of the Canadian Coast Guard s 2017 Notices to Mariners, Commercial crab fishing is closed in the existing Navigational Closure Area at Roberts Bank in order to maintain a safe approach for deep sea vessels, berthing tugs and ferries transiting in and out of Deltaport and Tsawwassen Ferry Terminal. Recreational crab floats and traps must remain at all times outside of the navigational closure area. For Aboriginal Food, Social and Ceremonial fisheries, traps may be set within the Navigational Closure Area; however, floating buoys must remain at all times outside of the navigational closure. Additionally, the Fishery (General) Regulations contain provisions outlining requirements for the identification of fishing gear. Section 27(1) states that it is prohibited for any person to set, operate or leave unattended in the water any fishing gear other than mobile gear or handlines unless the gear is marked in accordance with [the Regulations]. Section 27(2) requires the marking of all fishing gear in a manner that is readily visible from the water at all times without the necessity of raising the gear from the water. The Aboriginal Communal Fishing Licences Regulations contain a provision enabling the Minister of Fisheries and Oceans Canada to specify in a licence any condition respecting the method to be used to mark and identify vessels and fishing gear. As all fishers are required to use marked floats when fishing for crab, DFO has no information to provide on the methods and effectiveness of crab fishing without the use of floats. Safe navigation in the waters within VFPA s jurisdiction is within the purview of VFPA. VFPA has provided information on potential accidents or malfunctions in Section 30.0 of the Environmental Impact Statement. Terminal 2 Project Page 4

6 DFO IR-17 Context: The EIS, reported the predicted biomass of functional groups under the following scenarios: without Project; with Project; and with Project and onsite offsetting concepts. In Appendix 17-C of the EIS, the Proponent stated that productivity associated with onsite offsetting is the gross productivity for all functional groups associated with each onsite offsetting concept minus the underlying habitat productivity. Productivity calculations were based on values determined by the ecosystem model as described in Appendix 10-D of Appendix D, Habitat Productivity Memo, multiplied by the area of potential habitat constructed onsite (Table 17-C1). As reported in Appendix D of Appendix 10-D of the EIS, the method used to evaluate the productivity of habitat types for each offsetting concept was based on the without Project key run of the Roberts Bank ecosystem model, and relied upon eleven selected one hectare cells per habitat type. Habitats that were considered included intertidal marsh, sandy gravel beach, eelgrass transplant, mudflat and subtidal rock reef. Information Request: Provide advice about whether the proposed onsite offsetting concepts and method used to calculate offsetting measures for the proposed Project are suitable and scientifically defensible. Include advice about the selection of the without Project key run, as opposed to the with Project key run, to calculate the productivity of functional groups associated with each proposed offset concept. DFO IR-17 Response The following information relates to the method used to calculate offsetting measures for the proposed Project. Information relating to the proposed offsetting concepts is included in DFO s response to DFO IR-18 below. General Overview: Offsetting refers to measures taken to counterbalance impacts to environmental values associated with development projects. Offsetting is also referred to as compensation or mitigation, depending on the regulatory authority. Generally a quantitative analysis is conducted to determine the extent to which proposed offsetting will counter losses; this is usually referred to as equivalency analysis. A recent review of equivalency analysis in the context of the Fisheries Act is found in Clarke and Bradford (2014). The complexity of equivalence analysis depends on the scale of the impacts of the development project and the type of offsets that are potentially available. These factors influence the choice of equivalency metric. Equivalency metrics are common currencies used to describe both offset Terminal 2 Project Page 5

7 benefits and project effects and are used in equivalency analysis to determine the amount of offsetting required to counterbalance impacts (Bradford et al. 2016). In simple cases where habitat losses can be counterbalanced with in-kind or like-for-like habitat replacement, habitat area is a commonly used equivalency metric. However, for cases where offsetting is not similar to the impacted areas, or for when impacts are more diffuse and complex, equivalency metrics that are indicators for components of the ecosystem may be required. For the Fisheries Act, equivalency metrics that use fish abundance, biomass or production have been proposed (see Bradford et al. 2016). However, in many cases it is recognized that evaluating the impacts of development or offsetting for complex ecosystems where many fish species are present is not always feasible. In these cases metrics of lower trophic levels (i.e., invertebrates, secondary production ) may be used as a surrogate for the food production function that habitats provide. Indices of habitat quality may also be used as surrogates for the production potential of habitats lost or gained. For the Project, the Proponent uses biomass of 57 functional groups as an equivalency metric; these are then summed to a total biomass estimate. This is an unusual approach as most equivalency analyses focus on specific taxa or habitat feature of interest, chosen because of their relevance to conservation, cultural or harvest values. In most cases total biomass will be dominated by primary producers, which may or may not be a useful surrogate for taxa or functional groups of greatest interest. Primary production and total biomass may be useful as food web indicators, but would not be a suitable metric for offsetting measures designed to provide other forms of ecological benefit. For example, an increase in habitat complexity to provide shelter can increase the abundance of select species. This benefit may not be captured by an equivalency metric based on lower trophic levels. Given the complexity of the Roberts Bank ecosystem and the diverse array of ecological components of interest it seems likely that no single equivalency metric will emerge as universally appropriate for evaluating offsets, and it may be more useful to focus on a few key metrics (or functional groups). Minns, (2007) provides a general approach to equivalency analysis for fish habitats. Minns distinguishes habitats that are lost through development (direct impacts, i.e. infills) and those that are modified in ways that reduce their productivity. These losses are compared to projected gains resulting from offsets. If offsets consist of habitat modifications (e.g., creation of artificial reefs), the incremental increase in productivity should account for the loss of productivity of the habitats before they are modified. Although these elements are all incorporated into the modelling approach used by the Proponent to evaluate the effects of offsets, it is difficult to unpack the extent to which the offsets counterbalance the direct versus indirect effects of the Project. There may be utility in developing a more direct empirical approach to evaluating the benefits to offsets that could be contrasted with the modelling results. Baseline information on biota in the Project area, as well as monitoring results from existing compensation works could be used to describe the expected net gains from the offsetting measures. A few key indicators can Terminal 2 Project Page 6

8 simplify the presentation (e.g., biofilm for birds, invertebrates (secondary production), fish (indicator or focal species)). It should be feasible to describe the direct losses associated with the infill, and the direct gains associated with habitats created by the offsets. Using this approach the component with the greatest uncertainty, the large area of Roberts Bank where there may be a modification of productivity caused by changes in circulation is separated from the components where more direct measures of losses and gains can be obtained. The use of Ecopath to calculate offset benefits: The Proponent indicates that habitat is an emergent property of the Ecospace model, that is, they are not spatially predefined but are the product of environmental conditions and the environmental preferences of key functional groups. They use an elaborate approach to define habitat see below. However, a habitat map based on empirical data was presented in Appendix 10B, Figure 1. In Appendix 10C, Section of the Environmental Impact Statement (EIS), the authors compare model predictions for spatial distribution and abundance of 4 primary producers biofilm, brown algae, native eelgrass and tidal marsh to the empirical distribution of this habitat. If the Ecospace model is representative of the Roberts Bank system, it is unclear why the authors cannot simply map the production per functional group on to this map to get an estimate of production per functional group per habitat type. This would be a much simpler method than the one followed by the Proponent and questioned below. The method used by the Proponent is difficult to follow. The authors used the 4 primary producers noted above as indicator species for four of the five habitat types proposed for offsetting (mudflat bench-biofilm, subtidal reef-brown algae, eelgrass-native eelgrass and tidal marsh-tidal marsh (Appendix D of Appendix 10-D, Table D-2 of the EIS) to define habitat and habitat productivity post-hoc from the model results. There is some justification for this approach see Table 8 of CEAR Doc#547. However, the accuracy of the classification of biofilm (therefore mudflat bench) and tidal marsh had lower sensitivity values and therefore may be vulnerable to error in classification. It is not clear how the Sandy Gravel Beach habitat is defined - the Proponent states that only cells with < 10% maximum tidal marsh biomass were included for depths < 5 m. Is this a realistic proxy for this habitat? It is not clear how the Sandflats habitat is defined similar to above, mudflat habitat is defined as cells < 5 m with < 10% maximum value of eelgrass, tidal marsh and biofilm. Is this realistic? Is there overlap in cells defined by these processes? i.e., can one cell can define > 1 habitat? If so, what are the implications? Terminal 2 Project Page 7

9 The model area includes 5468 cells (100 * 100 m) and the authors elected to use a subset of these cells to define productivity based on a 99.8 threshold. It is not clear why a 99.8 threshold was used to balance between sample size and productivity values. The authors argue that using a higher or lower threshold would over/underestimate the productivity of the habitat in question, but there is no evidence provided to show that the highest productivity levels are to be expected in reality. Some sort of mean productivity over space would be more representative. For example, a range around the mean productivity could be used. The exceedance plots (see Appendix 10D-1, Appendix D of Appendix 10D of the EIS) are useful. Rocky reefs only 8 /11 cells were in the sub-tidal zone. DFO suggests that the Proponent limit the search for this group to the subtidal zone and calculate productivity for sub-tidal zone only. Habitat Food Webs: The authors constructed habitat specific food webs for each habitat, based on the diet compositions from the key run to estimate productivity per functional groups that occur in the habitat. The steps that they undertook are outlined briefly, but there is a lack of clarity. For example: It is not clear what diet compositions form the key run referred to on p.82 of Appendix D of Appendix 10-D of the EIS, since each Ecospace cell is essentially a separate Ecopath model, each with its own diet matrix. Is it the 11 cells per habitat type, all cells for a habitat type, or all cells for the whole area? Species that are associated with a given habitat were added to the food web. Given that Ecospace is a spatial model, why are these species not already part of this food web? The final food webs show these associated species as part of the habitat specific food web (Figures D-1 to D-6, Appendix D of Appendix 10D of the EIS). It is not clearly shown which species were added as associated species and which were part of the initial food web. Additional predators were added to the habitat specific food webs; however, this is not well documented. Increasing the detail of food webs at smaller, more specific scales makes sense in theory, but the method used is questionable. It also makes sense to explore what kind of food web each habitat type would support. However, the process here is neither well documented nor well justified. It is not clear how these food webs were quantified. The biomass of the habitat type (e.g., eelgrass) was used as the input parameter to create the food webs (note this is the biomass of the most productive (99.8 percentile) habitat). How were the biomasses of the other groups estimated? Using the basic Ecopath parameters from the key run (P/B, Q/B, etc.)? Were new balanced models created for each habitat type? Terminal 2 Project Page 8

10 It is not clear how the productivity of Sand Gravel Beach and Mudflat habitat food webs were derived since they do not have indicators species on which to base the food web. Did the authors simply use the biomass estimates for all primary producers in the 11 cells at the 99.8 percentile used? Finally, the benefits of the offsets may be overestimated by this approach as it assumes the productivity of the constructed habitats will be similar to relatively productive natural habitats of the same type because of use of the 99.8th percentile. Experience shows us that offset habitats often fall short of natural rates of productivity. Here justification for the choice of percentile could be supported with results from existing monitoring programs on compensation/offsetting habitats associated with previous developments in the area. In summary, the Ecopath model was one line of evidence to evaluate Project impacts (including offsets), other lines of evidence include the shorebird model, empirical field data and expert opinion. There is uncertainty about the use of the model to estimate the benefits of the offsets given the issues raised here, and the fact that the offsets comprise a very small fraction of the modelled area. As was the case for Project impacts, the analysis of offset benefits should also use other lines of evidence, particularly an empirical approach that takes advantage of existing surveys of compensation/offsetting works in the area to complement model results. Key Points: 1.1 The Proponent uses summed biomass of 57 EwE model functional groups for its offsetting equivalency analyses. However, given the complexity of the Roberts Bank ecosystem, it is likely that no single equivalency metric will be adequate. It may be better to focus on a few key metrics or functional groups, which include a range of trophic levels; using primary producers alone may not encompass all potential impacts. 1.2 It is not clear from the material presented by the Proponent the extent to which proposed offsets counterbalance the direct versus indirect effects of the Project. 1.3 In modelling the potential impacts of the Project, the EwE modelling approach was only one line of investigation. It is recommended that more than one approach also be used to assess offsetting, for example estimating the production per functional group per habitat type as a simpler method. 1.4 Evidence is needed that the choice of the 99.8 percentile to define productivity of habitats is justified, or whether, for example, use of mean productivity over space would be more representative. In addition, use of the 99.8 percentile approach may overestimate the benefits of offsetting because it assumes that the productivity of the offsetting habitats will be similar to productive habitats of the same type. Justification for this approach should include reference to existing monitoring programs on similar compensation habitats. Terminal 2 Project Page 9

11 1.5 The Proponent constructed habitat specific food webs for each offsetting concept to estimate productivity per offset concept and, in doing so, increased the detail of food webs beyond that included in the EwE model. While increasing the detail of food webs at smaller, more specific scales makes sense in theory, the method used is questionable and is neither well documented nor well justified. The following information relates to the selection of the without Project key run, as opposed to the with Project key run, to calculate the productivity of functional groups associated with each proposed offset concept. General Overview: Given the method used to calculate the productivity of functional groups associated with each proposed offset concept, the results should not be affected by whether the model with or without Project key run was used. The Proponent estimated the productivity of the offset habitat concepts from a subset of 5468 model spatial cells. This subset was selected using exceedance plots for each habitat type, where total average biomass was plotted against cumulative number of cells (see Figure D-7 below and in Appendix D of Appendix 10-D of the EIS). The Proponent selected the cells with a very high concentration (99.8 threshold) of total average biomass for each habitat type, which resulted in the selection of 11 cells with very high biomass density for each habitat concept. The biomass of the indicator species (primary producers) for each habitat was used as the base from which to estimate total potential biomass/productivity for each habitat. Since these estimates are based on the 99.8 percentile, this value is unlikely to be different in the with Project run, therefore the losses/gains from the offsetting concepts are unlikely to be different. Terminal 2 Project Page 10

12 Further, two of the indicator species for habitat types, native eelgrass and tidal marsh increased in the with Project model run. The table below provides the with and without Project estimates of biomass for the 4 primary producers that form the base of the food webs that the authors use to calculate productivity per habitat (see comments above on inadequacy of the method description). Note that the tidal marsh habitat is the largest proposed offsetting concept (15 ha). Table 17-C2 of Appendix 17-C of the EIS indicates that most of the net gain from offsetting will be gained from tidal marsh habitat. Therefore for overall loss/gain of productivity, the use of the without Project model will have minimal effect on the results. Primary Producer Biomass without Project (t) Biomass with Project (t) Marine biofilm brown algae native eelgrass tidal marsh Key Point: 2.1 Given the method used to calculate the productivity of functional groups associated with each proposed offset concept, the results should not be affected by whether the model with or without Project key run was used. Terminal 2 Project Page 11

13 References: Clarke, K.D. and Bradford, M.J A Review of Equivalency in Offsetting Policies. DFO Can. Sci. Advis. Sec. Res. Doc. 2014/109. v + 18 p. Bradford, M.J., Smokorowski, K.E. Clarke, K.D., Keatley, B.E. and Wong, M.C Equivalency metrics for the determination of offset requirements for the Fisheries Protection Program. DFO Can. Sci. Advis. Sec. Res. Doc. 2016/046. vi+32 p. Minns, CK Quantifying no net loss of productivity of fish habitats. Canadian Journal of Fisheries and Aquatic Sciences 54: DFO IR-18 Context: The spatial footprint of the proposed Project covers 186 hectare (Table 4-1 of the EIS) and the Coastal Geomorphology Technical Report (Appendix 9.5-A; Figure 110) showed a prediction of an additional 187 hectare of aquatic habitat outside and adjacent to the Project footprint that would be affected by geomorphologic processes. On-site habitat concepts designed to offset predicted decreases in the productive capacity of aquatic organisms cover 29 hectare (Table 17-C1) and include the construction of intertidal marsh, sandy gravel beach, mudflat, subtidal rock reef and eelgrass transplants (Appendices 17- A, 17-B and 17-C). Information Request: Provide advice on the efficacy of the proposed habitat offsetting concepts to offset predicted losses in productive capacity associated with the construction and operation of the proposed Project. DFO IR-18 Response The following includes Fisheries and Oceans Canada s (DFO) advice on the offsetting concepts proposed by Vancouver Fraser Port Authority (the Proponent) to offset predicted losses in productive capacity of fish habitat associated with the construction of the proposed Project. As part of its advice, DFO would like to provide information related to its offsetting requirements for Authorization under Paragraph 35(2)(b) of the Fisheries Act for works, undertakings or activities that result in serious harm to fish. Serious harm to fish is defined under the Fisheries Act as the death of fish or any permanent alteration to, or destruction of, fish habitat. Should the Project proceed, the Proponent is anticipated to submit an Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act for works, undertakings or activities that result in serious harm to fish. The Application for Authorization would be required to include an offsetting plan consistent with DFO s Fisheries Productivity Investment Policy: A Proponents Guide to Offsetting ( Offsetting Policy ). The objective of the Offsetting Policy is to Terminal 2 Project Page 12

14 maintain or enhance the ongoing productivity and sustainability of commercial, recreational and Aboriginal fisheries. The Offsetting Policy goes on to state that one of the approaches that can be used to achieve this is by ensuring that proponents of projects that cause serious harm to fish be required to offset that harm to maintain and enhance the productivity of the fishery. DFO, therefore, suggests that the Review Panel consider the guiding principles set out in DFO s Offsetting Policy in its consideration of whether the proposed offsetting plan is sufficient to offset predicted adverse effects to fish and fish habitat. Offsetting concepts presented in Section 17 of the Proponent s Environmental Impact Statement (EIS) are comprised of creation of intertidal marsh, sandy gravel beach, mudflat, subtidal rock reef and the transplant of eelgrass beds. These concepts are considered habitat enhancements (i.e. the physical manipulation of existing habitat to improve habitat function and productivity). The proposed enhancement concepts would all increase the value of habitat to fish provided they are focused in areas of lower relative value to fish. If successfully constructed and if they function as intended, these types of enhancement concepts could be used to reduce the adverse environmental effects of the Project (as per CEAA, 2012) for the fish species that benefit from these enhanced habitats. Such offsetting concepts could be included in the Proponent s offsetting plan for serious harm to fish; however, information provided by the Proponent in the EIS does not demonstrate how the proposed offsetting plan would be consistent with DFO s Offsetting Policy. When selecting offsetting measures for fisheries protection, proponents should select measures that meet the 4 principles of DFO s Offsetting Policy. These principles are: Principle 1: Offsetting measures must support fisheries management objectives or local restoration priorities; Principle 2: Benefits from offsetting measures must balance project impacts; Principle 3: Offsetting measures must provide additional benefits to the fishery; and Principle 4: Offsetting measures must generate self-sustaining benefits over the long term. Principle 1 indicates that offsets should be designed so they contribute to the objectives identified in fisheries management plans, where such plans exist. Where such objectives do not exist or where they do not describe restoration priorities, fisheries managers, Indigenous groups, local organizations and stakeholders may help to identify areas that require restoration or improvement. In situations where offsets are realized away from the project site, a robust rationale is required Terminal 2 Project Page 13

15 and should be communicated to potentially affected parties. Principle 2 indicates that any offsets for residual serious harm to fish would require an analysis of how those measures will offset the serious harm to fish. Offsets should be scaled such that they are proportional to the impacts caused by the Project. Offsets are more likely to successfully balance losses when they benefit the specific fish populations in the geographic areas that are affected by a proposed development project or activity. With an in-kind approach to offsetting, the habitat that is destroyed or permanently altered is replaced by the same quantity and quality of the same type of habitat, with additional habitat offsetting required to account for uncertainty and time lags. With this approach, balancing the losses to fish and fish habitat caused by a project with the benefits that result from offsetting measures is a straight-forward calculation. With an out-of-kind approach to offsetting, offsetting measures target the factors limiting productivity in a given area by means other than replacing what has been lost. It can be more complicated to measure and compare losses caused by the project with offsetting gains when an out-of-kind approach is adopted, but in some cases greater productivity gains may be achieved through this approach. Proponents should make all reasonable efforts to avoid time delays between the impacts and the functioning of the offsetting measures. When a time delay is unavoidable, the offset must make up for fisheries productivity that has been lost because of the delay. For example, measures may include building more habitat than would otherwise be necessary so that once the habitat becomes functional it will produce enough fish to make up for the productivity lost during the time lag. Principle 3 indicates that proposed offsets should provide additional benefits to fisheries productivity. This means that benefits to the fishery are caused by offset actions and not by other factors. Fisheries benefits that are being or will be provided by other programs or activities should not be considered offsets. Principle 4 suggests that offsets should strive to generate self-sustaining benefits to fisheries productivity. The offset benefits to the fisheries should last at least as long as the impacts from the development project. Recommendations: DFO recommends that the Proponent develop its offsetting plan consistent with the guiding principles of DFO s Offsetting Policy in order to offset predicted losses in productive capacity of fish habitat associated with the proposed Project. Accordingly, DFO presents the following for the Review Panel s consideration. Terminal 2 Project Page 14

16 1. Further engagement with Indigenous groups, local organizations and stakeholders may help to identify areas that require restoration or improvement. 2. Further description of how the benefits from proposed offsetting measures balance adverse effects to fish and fish habitat would aid DFO s understanding of the extent to which the proposed habitat offsetting concepts offset predicted losses. This description could include identification of whether offsets are replacing similar habitat to that being permanently altered or destroyed (i.e. in-kind approach to offsetting), or whether offsets are targeting other factors limiting productivity at Roberts Bank by means other than replacing what has been lost (i.e. out of kind approach to offsetting), as was requested in CEAR Doc#577 DFO IR-63. A table could also be presented that includes predicted fish habitat loss, the nature of the loss (i.e., direct or indirect; fish species and life stages affected) and the offset concept proposed to offset the impacted fish habitat (i.e., if it is in-kind or out-of-kind; fish species and life stages affected). 3. As stated in DFO s response to DFO IR-17, it is not clear from the material presented by the Proponent the extent to which the proposed offsets counterbalance the direct versus indirect effects of the Project. Presentation of the information in a manner that separates the indirect effects (i.e. areas predicted to be affected by changes to sedimentation and coastal processes) from the direct (i.e. Project footprint) effects on fish and fish habitat would aid in DFO s understanding of the certainty surrounding predicted effects. 4. The anticipated timing of construction of offsets relative to the anticipated impacts to fish and fish habitat is of interest to DFO in its assessment. Consistent with DFO s Offsetting Policy, and as stated in CEAR Doc#577 DFO IR-64, the amount of offsetting may need to be increased when there is a time lag between the impact and the time it takes for the offsetting measure to become functional. Additionally, the amount of offsetting may need to be increased in order to manage uncertainty resulting from the initial prediction of residual harm to fish, from the offsetting measures (potential for offsetting measures to fail), or from the overestimation of the benefits of a particular offsetting measure. 5. Provided there is some certainty in productivity gains predicted to result from the Project prior to offsetting, these benefits could be considered in the analysis of residual effects to fish and fish habitat. The time for predicted benefits to be realized would need to be considered when determining the amount of offsetting required to counterbalance the residual effects of the Project. DFO has previously provided comments on the sufficiency and technical merit of the ecosystem modelling approach used to identify these predicted productivity gains in CEAR Doc#577 and CEAR Doc#900. In response to the Panel s information request package 3 (CEAR Doc#984) the Proponent has provided further information, which DFO is reviewing. Terminal 2 Project Page 15

17 6. For the Review Panel s information, requirements for offset construction and effectiveness monitoring, contingency, and reporting may be set out as conditions of Fisheries Act authorizations. For the Fisheries Act, monitoring must be designed to confirm that the offsetting measures have been effective in counterbalancing the serious harm to fish and may identify the need for contingency measures should deficiencies be found. The offsetting plan should include clearly articulated measures of success that are linked to the objective of the offsets and that provide benchmarks for measuring progress, as well as a schedule that reflects the timeline, start and end dates for implementing the offsetting measures. Should the Project proceed, in order to manage uncertainty associated with predicted indirect effects of the Project (i.e. areas that are predicted to be affected by changes to sedimentation and coastal processes) on fish and fish habitat, a monitoring plan may be required to verify the predictions. The monitoring plan will likely need to be designed to monitor any changes to fish habitat types within the Local Assessment Area following Project construction, and to verify Proponent predictions of effects to fish habitat resulting from potential scour, deposition, accelerated tidal channel, wave shadow, wave scour and increased turbidity. This plan will likely include contingencies for additional mitigations or offsetting should monitoring reveal that adverse indirect effects are greater than predicted, or predicted productivity gains are not realized. 7. Alternate approaches to quantify the extent to which proposed offsetting will counter losses to fish and fish habitat associated with the Project are suggested in DFO s response to DFO IR-17. Without the additional information suggested in DFO s responses to DFO IR s 17 and 18, it would be premature for DFO to comment on whether the offsetting concepts proposed provide benefits proportional to the predicted losses caused by the Project. Terminal 2 Project Page 16