PARAGRAPH 35(2)(b) FISHERIES ACT AUTHORIZATION

Transcription

1 Fisheries and Oceans Canada Pêches et Océans Canada DFO File No.: 17-HPAC Authorization issued to: PARAGRAPH 35(2)(b) FISHERIES ACT AUTHORIZATION Trans Mountain Pipeline ULC (hereafter referred to as the Proponent ) Attention to: David Safari, VP Execution TMEP Trans Mountain Pipeline L.P., by its general partner Trans Mountain Pipeline ULC Avenue SW., Suite 2700, Calgary, AB T2P 5J2 Canada Location of Proposed Project Nearest community (city, town, village): Burnaby Municipality, district, township, county: Metro Vancouver Province: British Columbia Name of watercourse, waterbody: Burrard Inlet Longitude and latitude, UTM Coordinates: 49 o N and 122 o W Description of Proposed Project The proposed project described here-in involves construction of the Westridge Marine Terminal Expansion in Burnaby, B.C., which is one component of the larger Trans Mountain Expansion Project. Expansion of the Westridge Marine Terminal will increase the berthing capacity of the existing terminal from one berth to three vessel berths. The proposed project, of which the authorized works, undertakings or activities are a part involves: Land-based site preparation, including clearing of marine riparian vegetation; Installation of a bulkhead wall, which will be constructed through excavation of existing shoreline riprap, linear installation of circular sheet-pile cells to form the bulkhead wall, and infilling of the shoreline area behind the bulkhead wall to accommodate new onshore infrastructure; Installation of permanent piles for the construction of three new loading berths, access trestle, utility dock, and foam water supply pump house platform; Placement of concrete anchor blocks to secure marine containment booms; Decommissioning and removal of the existing small utility dock; Installation of temporary template piles to support the placement and installation of permanent piles, and installation of temporary working piles to support a marine construction office and foreshore construction; Marine riparian clearing for construction of the marine construction office; Placement of temporary marine anchors for securing the marine construction safety boom, and installation of concrete anchor blocks to anchor the turbidity curtain;

2 - 2 - DFO File No.: 17-HPAC Excavation of additional rip-rap within an area extending 5 m seaward of the bulkhead wall for the installation of sheet pile cells, followed by replacement of the excavated rip-rap over the same area; Installation of surface water runoff outfall pipes and rip-rap placement to support and armour the outfall pipes; and Construction and operation of marine water intakes which will be enclosed within a fish screen, along with excavation and placement of rip-rap beneath footprint of fish screen. Description of Authorized works, undertakings or activities The works, undertakings, or activities associated with the proposed project that are subject of this Authorization are: Installation of an approximately 363 m long bulkhead wall constructed via: o excavation of existing shoreline rip-rap and foreshore substrates; o installation of circular sheet pile cells to form the wall; and o in-filling within the circular sheet pile cells and backfilling of the area between the existing shoreline at the terminal and the bulkhead wall. Installation of permanent piles for the construction of three new loading berths, an access trestle, a utility dock, and a foam water supply pump house platform; Installation of working piles in the upper intertidal zone to support a marine construction office; and Installation of a surface water run-off outfall at the western end of the terminal foreshore expansion within the upper intertidal zone. The serious harm to fish likely to result from the proposed works, undertakings, or activities, and covered by this Authorization (also see Schedule B, Figure 1) is: Destruction of 4,196 m 2 of intertidal rocky habitat from installation of the bulkhead wall and infilling behind the bulkhead wall to the shoreline; Destruction of 1,266 m 2 of subtidal rocky habitat from infilling behind the bulkhead wall to the shoreline; Destruction of 455 m 2 subtidal soft-sediment habitat from installation of permanent piles; Permanent alteration of 217 m 2 of intertidal rocky habitat and 328 m 2 of subtidal rocky habitat to soft sediment habitat from excavation of riprap prior to installation of the bulkhead wall; Permanent alteration of 3 m 2 of intertidal habitat from the installation of working piles to support the marine construction office; and Permanent alteration of 113 m 2 of intertidal mixed substrate habitat from installation of a surface water run-off outfall pipe at the western end of the terminal foreshore expansion.

3 - 3 - DFO File No.: 17-HPAC General Considerations If information contained in the documents listed in Schedule A is in conflict with the Conditions of the Authorization, the Conditions of Authorization shall prevail over the information in the aforementioned documents. Unless otherwise specified, all correspondence provided to DFO in relation to this Authorization shall be submitted via to ReferralsPacific@dfo-mpo.gc.ca or by mail to: Triage & Planning Unit Fisheries Protection Program Ecosystem Management Branch Fisheries and Oceans Canada Burrard Street Vancouver, British Columbia V6C 3S4 Conditions of Authorization The above described works, undertakings or activities must be carried on in accordance with the following conditions: 1. Conditions that relate to the period during which the works, undertakings or activities can be carried on: The works, undertakings or activities are authorized to be carried on during the following period: From: Date of issuance To: December 31, 2020 If the Proponent cannot complete the works, undertakings or activities during this period, the Proponent must notify Fisheries and Oceans Canada (DFO) 30 days in advance of the expiration of the above time period. The periods during which other conditions of this Authorization must be complied with are provided in their respective sections below. The proponent must notify DFO 30 days in advance of any relevant expiration dates if a given condition cannot be met within the set timeframe. 2. Conditions that relate to measures and standards to avoid and mitigate impacts to fish and fish habitat: 2.1 The Proponent shall ensure that the location and design of the works, undertakings or activities are consistent with the information included in the documents titled, Trans Mountain Expansion Project Westridge Marine Terminal Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act, prepared for Kinder Morgan Canada Inc. by Stantec Consulting Ltd., and dated February 1, 2017 (hereafter the Application ) and Addendum to Westridge

4 - 4 - DFO File No.: 17-HPAC Marine Terminal Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act, prepared for Kinder Morgan Canada Inc. by Stantec Consulting Ltd., and dated June 16, 2017 (hereafter the Addendum ), and other information and documentation included in Schedule A of this Authorization. 2.2 The Proponent shall implement the measures and standards described below and those included in the documents identified in Schedule A to avoid or mitigate impacts to fish and fish habitat: Effective sediment and erosion control measures (e.g., a turbidity curtain, etc.) shall be implemented before starting construction and shall be maintained during construction activities, as appropriate, to avoid the deposit and dispersion of sediment into the marine environment Water intakes of any pumps shall be designed and screened in accordance with specifications outlined in the Addendum, Fisheries and Oceans Canada's Freshwater Intake End-of-Pipe Fish Screen Guidelines (Fisheries and Oceans Canada 1995), and Fisheries and Oceans Canada s Guidelines for Minimizing Entrainment and Impingement of Aquatic Organisms at Marine Intakes in British Columbia (Fisheries and Oceans Canada 1991) Fish salvage and relocation shall be conducted, as appropriate, prior to the start of construction activities so as to avoid and minimize adverse impacts to fish Disturbed riparian areas shall be replanted as appropriate, with native non-invasive species of vegetation Temporary structures installed below the high-water mark shall be decommissioned and removed when they are no longer being used for construction purposes All nearshore in-water Project construction activities (within a 50-m horizontal distance seaward of the higher high water large tide level) at the Westridge Marine Terminal shall only be carried out during a work timing window from August 16 to March 15 each year, as described in the Memo from Trans Mountain Pipeline ULC to DFO, dated August 3, 2017 (Schedule A). This work timing window will allow additional time beyond the Burrard Inlet least risk timing window (August 16 February 28) for the Proponent to conduct the works, undertakings or activities authorized here-in, while avoiding periods of spawning by herring, higher local abundance of finfish and invertebrates, and the timing and/or location of their sensitive life processes (e.g., out-migrating juvenile salmon) In-water construction activities must cease if any marine mammal is observed adjacent to or within the project area such that there is risk of direct physical harm to the marine mammal. Construction activities may only resume once the marine mammal has been confirmed to have left the immediate area or has not been sighted for 30 minutes A vibratory hammer will be used for pile driving where practical and feasible, and all in-water pile driving activities will be monitored via hydrophone to ensure underwater peak pressures do not result in adverse impacts to fish. Appropriate mitigation measures (e.g., bubble-curtains) shall be implemented during pile driving activities to avoid adverse impacts to fish The following measures specifically relate to impact pile driving activities:

5 - 5 - DFO File No.: 17-HPAC To avoid death of fish, mitigation measures (e.g., bubble curtain around the full wetted length of the pile, fish exclusion, etc.) must be implemented Monitoring via underwater noise recordings must be conducted continuously and within 10 meters of the pile being driven to verify that underwater sounds do not exceed the 30 kpa (209.5 db re: 1 μpa) threshold for injury to finfish Outside of the least risk windows for Burrard Inlet (August 16 February 28), a more conservative underwater sound threshold of 22.5 kpa (207 db re: 1 μpa) will be adhered to, and monitored, to prevent injury to finfish. If sound levels exceed this threshold, or a fish kill is observed despite mitigation measures being in place, pile driving activities are to cease immediately and mitigation methods are to be reviewed and modified in consultation with DFO Upon commencement of pile driving, or recommencement after a delay of 30 minutes or more, pile installation shall ramp-up by starting with less frequent impact strikes of lower force. This ramp-up period is designed to enable any fish that may be in the area time to leave the area prior to the generation of peak pressure and noise levels for pile installation Prior to commencement of pile driving, or recommencement after a delay of 30 minutes or more, visual monitoring must be conducted to determine if marine mammals are present within an exclusion zone of 1 km (except for harbor seals, which will have an exclusion zone of 150 m) Work may only commence if marine mammals and harbor seals are not observed in their respective exclusion zones for 30 minutes Exclusion zones must be monitored continuously during impact pile driving. If a marine mammal or marine mammals are observed within their respective exclusion zone, pile driving activities must cease until all marine mammals leave their respective exclusion zone or they have not been sighted for 30 minutes within their respective exclusion zone If underwater noise recordings reveal that the threshold of 160 db is exceeded at the1 km exclusion zone boundary, the exclusion zone radius must be widened to a new outer limit, where sound recordings demonstrate that the 160 db threshold is not exceeded. Conditions to will need to be complied with within this new exclusion zone Pile driving may only be carried out during daylight hours to enable effective visual monitoring of marine mammal exclusion zones A turbidity curtain must be used to isolate the work area during the excavation of riprap in order to contain marine sediment suspended in the water column and limit the extent of sediment dispersion. During severe weather conditions (e.g., > 70 km/h winds, or fog), works, undertakings or activities that may affect the effectiveness of the turbidity curtain must be suspended If the monitoring measures required in Condition 3 below indicate that the measures and standards to avoid and mitigate impacts to fish and fish habitat are not effective, the Proponent must identify and implement contingency measures to avoid or limit residual effects on fish and fish habitat to the serious harm authorized here-in.

6 - 6 - DFO File No.: 17-HPAC In the event that monitoring indicates that the contingency measures implemented by the Proponent are not effective at preventing serious harm beyond that authorized in this Authorization, the Proponent must provide a report to DFO (refer to Condition 3 for reporting requirements) and the Trans Mountain Expansion Project (TMX) Indigenous Advisory and Monitoring Committee (the IAMC), which details the outstanding issues affecting fish and fish habitat, reasons for failure of the measures implemented, and any potential alternate solutions to address outstanding issues. 3. Conditions that relate to monitoring and reporting of the measures and standards to mitigate or avoid impacts to fish and fish habitat: 3.1 A qualified environmental professional must be on-site during the carrying on of in-water works, undertakings and activities, and shall monitor the works, undertakings or activities on a systematic and on-going basis to ensure that the standards and avoidance measures to avoid impacts to fish and fish habitat are effective, and that unauthorized impacts to fish and fish habitat are avoided. 3.2 The Proponent shall monitor the avoidance and mitigation measures referred to in Condition 2 of this Authorization and submit monthly construction monitoring reports to DFO for the duration of the works, undertakings or activities. The construction monitoring reports must indicate whether the measures and standards to avoid and mitigate impacts to fish and fish habitat were conducted according to the conditions of this Authorization. This shall be done, by providing: A concise summary of the works, undertakings or activities carried out during that reporting period Commentary on the works, undertakings or activities, and the work area from an environmental perspective (e.g., fish and marine mammal observations, weather, tides, water quality, etc.), Dated photographs, underwater noise measurements, and inspection reports to demonstrate whether the mitigation measures and standards described in Condition 2 are effectively being implemented and functioning to limit the serious harm to fish to what is covered by this Authorization Photographic documentation and a succinct summary of any environmental issues (e.g., potential non-compliance events) or impacts that arose or occurred in relation to fish and fish habitat, and details of any contingency measures that were taken to prevent impacts greater than those covered by this Authorization in the event that mitigation measures did not function as intended A summary of compliance with relevant Environmental Protection Plans (EPPs) pertaining to fish and fish habitat A table summarizing unforeseen issues with respect to fish and fish habitat that remain outstanding and must be addressed (i.e., those without on-the-spot solutions or those requiring follow-up to ensure corrective measures are being taken), proposed/planned mitigation measures, priority and anticipated dates of implementation and/or completion. 3.3 The Proponent shall provide a post-construction monitoring report to DFO within 90 days of completion of the works, undertakings and activities and indicate whether the works,

7 - 7 - DFO File No.: 17-HPAC undertakings and activities were conducted according to the conditions of this Authorization by providing as-built drawings, dated photographs, and a summary of the completed works, undertakings or activities (including any issues that arose pertaining to fish and fish habitat and how these issues were addressed). 3.4 If monitoring indicates that works, undertakings, or activities will result or are resulting in unauthorized serious harm to fish, the Proponent has a duty to notify DFO immediately. The Proponent will report any unauthorized serious harm to DFO s Observe, Record, and Report line ( ). 3.5 All monitoring reports are to be submitted to ReferralsPacific@dfo-mpo.gc.ca, referencing DFO file: 17-HPAC Conditions that relate to offsetting: 4.1 In order to offset the serious harm to fish resulting from the authorized works, undertakings and activities authorized by this Authorization, the Proponent shall construct 9,011 m 2 of intertidal and subtidal rocky reef habitat in Burrard Inlet, as described in the Proponent s Offsetting Plan (Section 8.0 of the Application), and in accordance with the specifications included in Schedule B (Figure 2) of this Authorization. The implementation of all fish and fish habitat offsetting measures shall be completed by March 1, In the event where the Proponent fails to implement the offsetting plan required to be implemented as a condition of this Authorization, DFO may draw upon funds set aside by the Proponent through the irrevocable standby letter of credit (No. S203883, issued by The Toronto-Dominion Bank) provided as part of the application for this Authorization, to cover the costs of implementing measures to offset serious harm to fish resulting from the serious harm authorized here-in. 4.3 To assess the effectiveness of offsetting measures, the Proponent shall identify to DFO s satisfaction, reference sites in Burrard Inlet with similar substrate, grade, depth, and algal species, as the proposed rock reef complexes. Reference sites will be used to establish productivity targets (accounting for seasonal and inter-annual variation) and will include metrics such as species composition, species richness, relative abundance and percent cover as appropriate to evaluate whether offsetting measures are functioning as intended. Indicator species will be identified representative of benthic invertebrate, algal and finfish communities to allow for comparisons with reference sites. The criteria for assessing the effectiveness of offsetting will be developed no later than March 1, 2018, and the appropriateness of the selected reference sites and criteria for assessing effectiveness of offsetting must be agreed to in consultation with DFO. 4.4 The offsetting measures will be considered successful if, by year six of the monitoring program algal species composition and relative abundance (percent cover) and fish species composition are comparable to selected reference sites, and invertebrate and finfish species relative abundance (percent cover or density) and richness (number of unique taxa in the survey area) increase over time. 4.5 If during any reporting period identified in Condition 5.2.2, monitoring of the effectiveness of offsetting measures indicates that the offsetting measures are deficient, the Proponent shall undertake remedial measures at the earliest time feasible to correct any deficiencies in the offsetting measures, and ensure impacts to fish and fish habitat are mitigated or avoided.

8 - 8 - DFO File No.: 17-HPAC If the results of monitoring activities required in Condition 5 indicate that the offsetting measures are not functioning according to Condition 4.4, the Proponent shall give written notice to DFO, and implement the contingency measures identified within the Offsetting Plan. In consultation with DFO, contingency measures shall meet the following requirements: The Proponent will determine the reason for failure(s) and develop and implement a contingency plan to address the failure(s) within one calendar year to bring offsetting measures to a level consistent with the standard stated in Conditions 4.3 and 4.4, or as deemed appropriate by DFO The contingency plan(s) (including any associated monitoring measures) to address deficiencies in offsetting measures shall be submitted to DFO, and the IAMC as defined in Condition 6.1, for review, and approval by DFO at least 120 days prior to implementation of the contingency plan(s) Following implementation of the contingency plan(s), the Proponent will monitor the contingency offsetting measures constructed and/or implemented in accordance with standards stated in Condition 5 below. 4.7 The Proponent shall not carry on any works, undertakings or activities that will adversely disturb or impact the offsetting measures. 5. Conditions that relate to monitoring and reporting of offsetting measures (described above in Condition 4): 5.1 The Proponent shall conduct monitoring of the offsetting measures in accordance with the monitoring and reporting measures and/or programs described in Section of the Application unless alternate requirements are specified within the conditions of this Authorization. In the latter case, the requirements specified within the conditions of this Authorization shall be implemented (e.g., a 10-year effectiveness monitoring program schedule must be implemented per Condition below). 5.2 The Proponent shall report to DFO that the offsetting works were conducted according to the conditions of this Authorization by providing: A post-construction monitoring report to DFO within 90 days of completion of offsetting measures indicating whether the works were conducted according to the conditions of the Authorization. The post-construction monitoring report must include: As-built drawings of the completed offsetting measures and stability assessment of the offsets as described in the Offsetting Plan; A summary of the as-built condition of the offsetting measures; Dated photographs of the completed offsetting measures; and A summary of the effectiveness of mitigation measures and standards implemented in accordance with the Construction Compliance Monitoring Program described in Section of the Application Monitoring activities conducted as part of the Habitat Effectiveness Monitoring Program (described in Section of the Application) must occur seasonally during the summer and winter months to document seasonal changes in the effectiveness and functioning of the offsetting, and an effectiveness monitoring report

9 - 9 - DFO File No.: 17-HPAC will be submitted 1, 2, 4, 6, 8, and 10 years following the completion of construction of the offsetting measures. Each report must include: Geo-referenced photographs of the offsetting measures; An assessment of the success of the rock reef complexes consistent with the standards and/or criteria stated in Conditions 4.3 and 4.4 of this Authorization; Observations during surveys of the presence of marine birds and marine mammals within the vicinity of the offsetting; Measurements of environmental variables during surveys, including ambient temperature and water quality metrics (i.e., temperature, salinity and turbidity) in surface waters and at the depth of the offsetting measures; and Any concerns regarding the functioning of the offsetting measures and a description of any remedial measures implemented and their effectiveness. 5.3 All effectiveness monitoring reports are to be submitted no later than December 31 st of each year referenced in Condition to ReferralsPacific@dfo-mpo.gc.ca, referencing DFO file: 17-HPAC Conditions that relate to reporting and engagement with the IAMC: 6.1 In recognition of the high importance of the health of the Fraser River, Burrard Inlet, and the Salish Sea, and their salmon fisheries, to Indigenous communities for subsistence and cultural reasons, monitoring reports submitted to DFO under Conditions , 3, and/or 5 of this Authorization shall be shared concurrently by the Proponent with the IAMC and DFO. 6.2 If the IAMC communicates concerns to DFO or to the Proponent related to the content of the monitoring reports (e.g., monitoring criteria, measures of success, etc.), the Proponent shall, at the request of DFO and, in a timely manner, meet with DFO and the IAMC to discuss the concerns. 6.3 If monitoring activities and/or reports indicate non-compliance with any conditions of this Authorization and/or the provisions of the Fisheries Act, the Proponent must identify the reasons for non-compliance, remedial actions or measures taken or to be taken, a timeline for their implementation and the effectiveness of any implemented remedial measures. This information shall be provided in a report to DFO and the IAMC concurrently, and in a timely manner.

10 -10- DFO File No.: l7-hpac Authorization No.: 1 7-HPAC Authorization Limitations and Application Conditions The Proponent is solely responsible for plans and specifications relating to this Authorization and for all design, safety and workmanship aspects of all the works associated with this Authorization. The holder of this Authorization is hereby authorized under the authority of paragraph35(2)(b) of the Fisheries lcl. R.S.C., 1985, c. F-14 to carry on the works, undertakings and/or activities that are likely to result in serious harm to fish as described herein. This Authorizationdoes not purport to release the Proponent from any obligation to obtain permission from or to comply with the requirements of any other regulatory agencies. This Authonzafion does not permit the deposit of a deleterious substance in water frequented by fish. Subsection 36(3) of the Fisheries Act prohibits the deposit of any deleterious substances into waters frequented by fish unless authorized by regulations made by Govemor in Council. This Authonzation does not permit the killing, harming, capturing or taking of individuals of any species listed under the Species at Risk Acf, S.C. 2002, c. 29 (SARA) (section 32 of the SARA), or the damage or destruction of the residences of individuals of such species (section 33 of the SARA) or the destruction of critical habitat of any such species (section 58 of the SARA). The failure to comply with any condition of this Authorization constitutes an offence under paragraph a0(3)(a) of the Fisheries Act and may result in charges being laid under the Fisheries Act. This Authonzation must be held on site and work crews must be made familiar with the conditions attached. This Authonzation cannot be transferred or assigned to another party.lf the works, undertakings or activities authorized to be conducted pursuant to this Authorization are expected to be sold or transferred, or other circumstances arise that are expected to result in a new Proponent taking over the works, undertakings or activities, the Proponent named in this Authorization shall advise DFO in advance. sep 0 I 2017 Date of Issuance: Approved by Rebecca Reid Regional Director General Pacific Region Fisheries and Oceans Canada

11 DFO File No.: 17-HPAC Schedule A - Reference Documents Application Form for Paragraph 35(2)(b) Fisheries Act Authorization (Normal Circumstances), signed by Mr. David Safari of Trans Mountain Pipeline ULC, and dated February 6, Trans Mountain Expansion Project - Westridge Marine Terminal Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act, prepared for Trans Mountain Kinder Morgan Canada Inc. by Stantec Consulting Ltd., and dated February 1, KMC Document # TW-WT02-STE- RPT-0003 R0. Addendum to Westridge Marine Terminal Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act, prepared for Trans Mountain Kinder Morgan Canada Inc. by Stantec Consulting Ltd., and dated June 16, KMC Document # TW-WT02-STE-RPT-0003 R0. Memo from Trans Mountain Pipeline ULC to Fisheries and Oceans Canada, with the subject: Information Requests Regarding the Westridge Marine Terminal Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act., addressed to Alston Bonamis of Fisheries and Oceans Canada, and dated March 31, KMC Document # TW-WT00-EV-MEM-0001 R0. Memo from Trans Mountain Pipeline ULC to Fisheries and Oceans Canada, with the subject: Response to requests for information regarding the Addendum to the Westridge Marine Terminal Application for Authorization under Paragraph 35(2)(b) of the Fisheries Act, addressed to Alston Bonamis of Fisheries and Oceans Canada, and dated August 3, KMC Document # TW-WT00-EV-MEM

12 DFO File No.: 17-HPAC Schedule B Figures Figure 1: Summary of the potential serious harm to fish from the footprints of the proposed works, undertakings or activities authorized.

13 DFO File No.: 17-HPAC Figure 2: Design of the proposed rock-reef complex offsetting measure (please reference Appendix C Rock-reef Complex Conceptual Designs, in the Application for more detailed drawings)