December 18, NEB File No.: OF-Fac-Gas-N ECCC File No.: /6187

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1 Environmental Protection Operations Directorate (EPOD) Environmental Stewardship Branch Environment and Climate Change Canada 351 St. Joseph Blvd. Gatineau, Quebec, K1H 0H3 December 18, 2015 Sheri Young Secretary of the Board National Energy Board 517 Tenth Avenue SW Calgary, AB T2R 0A8 NEB File No.: OF-Fac-Gas-N ECCC File No.: /6187 Dear Ms. Young: RE: Hearing Order GH NOVA Gas Transmission Ltd NGTL System Expansion Project Environment and Climate Change Canada (ECCC), a Commenter in the National Energy Board (NEB) review of the NOVA Gas Transmission Ltd. (the Proponent) 2017 NGTL System Expansion Project (the Project), provides this Letter of Comment as per Hearing Order GH , Procedural Update No.2, issued November 17, This letter includes advice and recommendations related to species at risk, migratory birds, as well as information regarding ECCC s role in emergency response and management of pipeline accidents or malfunctions. This letter also contains ECCC s response to an information request (IR) issued by the NEB on October 21, ECCC s review focused on portions of the Project Application, Environmental and Socioeconomic Assessment (ESA), as well as various intervenors Information Requests that were related to ECCC s mandate including; the protection of migratory birds as identified under the Migratory Birds Convention Act (MCBA), the protection of species at risk as identified under the federal Species at Risk Act (SARA), and the conservation of wetlands that provide habitat for numerous species of migratory birds. Additional information regarding ECCC s mandate is found in Attachments A and B. Expert Advice and Recommendations: ECCC provides the following advice and recommendations with respect to our mandated responsibilities regarding the environmental effects of the Project: Boreal Caribou Habitat The Boundary Lake section of the pipeline will intersect critical habitat for the Chinchaga caribou herd and the Pelican Lake section will intersect critical habitat for the East Side (ESAR) and West Side Athabasca River (WSAR) herds.

2 ECCC recognizes within Table : Mitigation for Wildlife and Wildlife Habitat (ESA Section 7, Exhibit B2-14), the Proponent s commitment to minimize clearing requirements within caribou range by narrowing the width of the pipeline right-of-way to the extent practical by utilizing shared workspace, avoid clearing large-diameter trees on the edge of the right-of-way and minimize extra temporary workspace; where practical, locate temporary yards, camps and lay-downs outside of caribou range; prepare a Caribou Habitat Restoration and Offset Measures Plan (CHROMP) for the Project and to Implement measures listed in Habitat Loss/Alteration, Access Management/Line-of-Sight and Barriers/Filters to Wildlife Movement. ECCC requests the opportunity to review and comment on the Caribou Habitat Restoration and Offset Measures Plan. ECCC recommends that offsetting measures occur within each of the project affected caribou ranges. ECCC recommends that offset ratios be vigorous and functionally additive. Because restoration and offsetting activities are limited by their success in implementation, effectiveness and delay (lag); offsets ratios must be designed to ensure that critical habitat is effectively protected. ECCC recommends a 4 hectare offset for every 1 hectare of critical habitat destroyed. In Table : Residual Effects for Wildlife and Wildlife Habitat (ESA Section 7, Exhibit B2-14) and in Table : Cumulative Effects for Wildlife and Wildlife Habitat (ESA Section 7, Exhibit B2-14), the Proponent states that the Project effects and contribution to cumulative effects, respectively, on boreal caribou in the Chinchaga, ESAR and WSAR ranges are not significant. ECCC disagrees with this assessment. The Project will destroy critical habitat. It is ECCC s position that the Project s contribution to direct and indirect effects on caribou is additive and significant, and the additive cumulative effects of this Project with other past, proposed and reasonably foreseeable activities is significant. Each of these caribou ranges are considerably below the 65% undisturbed habitat threshold required for recovery and survival. The Chinchaga, ESAR and WSAR ranges are 76, 81 and 69% disturbed, respectively, and are deemed unsustainable (Recovery Strategy for the Woodland Caribou, Boreal Population, ). All remaining habitat for these ranges is considered critical habitat until otherwise identified in a provincial range plan. No range plans have been released to date. The Project will remove critical habitat and there will be a considerable time lag before this habitat can be restored. ECCC considers any direct or indirect destruction of boreal caribou critical habitat significant and recommends that the ESA be amended to reflect this. The Proponent s response to NEB IR 1.13 (Exhibit B8-01) does not address these concerns. Migratory Birds The Proponent has stated throughout the ESA that The migratory bird nesting period occurs between May 1 and August 10. The current construction schedule avoids activities within this period. In the event that there are schedule changes and construction activities are planned during the migratory bird nesting period, NGTL will consult with ECCC. (e.g., Construction Scheduling) ECCC would like to clarify the Proponent s statement by stating that modelled nest record data identifies a high risk of encountering nesting birds between May 1 and August 10 in the Project area. Outside of these dates, there is a moderate to low risk. If an individual has knowledge of an active nest, at any time of the year, it must be protected with a species appropriate buffer until the young have fledged. Please consult 1 Environment Canada Recovery Strategy for the Woodland Caribou (Rangifer tarandus caribou), Boreal population, in Canada. Species at Risk Act Recovery Strategy Series. Environment Canada, Ottawa, ON. xi pp. 2

3 Environment Canada s web page at: for general guidance on avoidance of incidental take of migratory birds and the linked fact sheet Planning Ahead to Reduce the Risk of Detrimental Effects to Migratory Birds, and their Nests and Eggs. Western Toad (SARA Special Concern) ECCC advises that the Proponent implement the commitments proposed in Table : Mitigation for Wildlife and Wildlife Habitat (ESA Section 7, Exhibit B2-14). Namely, that in the event a Canadian toad or western toad breeding pond is discovered, the Proponent will: o discuss appropriate mitigation with Alberta Environment and Parks; o not mow/brush vegetation within wetland riparian (fringe) areas during operation; o obtain the appropriate permit in the event that amphibians may need to be moved off the construction footprint during construction; and o if an amphibian salvage from a breeding pond is required, contact the appropriate regulatory agency for permitting requirements and discuss the salvage plan with Alberta Environment and Parks prior to this activity. NEB s Request to a Federal Authority This letter confirms ECCC s receipt of the NEB s IR pursuant to Section 20(a) of the Canadian Environmental Assessment Act, 2012 dated October 21, The NEB requested: confirmation that the contents of the Recovery Strategy for the Woodland Caribou are current and accurate; any additional information with respect to the Chinchaga, ESAR and WSAR caribou ranges that has been accumulated by ECCC subsequent to the Strategy s publication; and any additional information regarding species other than caribou that have been identified pursuant to the Species at Risk Act. The Recovery Strategy for Woodland Caribou, Boreal Population (the Strategy) was published October 5, 2012 and remains valid. ECCC has not accumulated new information regarding the Chinchaga, ESAR and WSAR caribou ranges since the publication of the Strategy. Range plans for the Chinchaga, ESAR and WSAR have not yet been completed. Range plans are the responsibilities of the provinces and the NEB is advised to contact the Province of Alberta (Alberta Environment and Parks) in this regard. In previous sections of this letter, ECCC provides comments with respect to woodland caribou and western toad. Project construction is proposed to take place during the winter and as such will not affect active nests of any SARA-listed migratory bird species. No critical habitat has been identified for SARA listed migratory bird species, nor for plants, mammals other than caribou, nor herptiles in the Project area at the timing of this letter. Closing Comments The foregoing comments are intended to provide expert advice to decision-makers and information on federal legislative requirements to the Proponent but are not an acknowledgement, permission, approval, authorization, or release of liability related to any requirements to comply with federal or provincial statutes and regulations. Responsibility for achieving regulatory compliance and cost effective risk and liability reduction lies solely with the Project Proponent. 3

4 I trust these comments will assist the NEB in the review of the 2017 NGTL System Expansion Project. lf you have any questions or require clarification, please contact Matthew Boeckner by phone at (780) or by at Mary Executive Director, En mental Assessment Division cc: Susanne Forbrich, Regional Director, EPOD PNR, ECCC Matthew Boeckner, EA Coordinator, EPOD PNR, ECCC 4

5 Attachment A: Relevant Sections of ECCC s Mandate Attachment B: ECCC s Support Services for Pipeline Accidents and Malfunctions 5

6 Attachment A Relevant Sections of ECCC s Mandate 1. Species at Risk SARA is directed towards preventing wildlife species from becoming extinct or lost from the wild, helping in the recovery of species that are at risk as a result of human activities, and promoting stewardship. SARA prohibits the killing, harming or harassing of listed species; the damage and destruction of their residences; and the destruction of critical habitat. The prohibitions apply to all Threatened, Endangered and Extirpated species listed on Schedule 1 of SARA on federal lands. The prohibitions apply only to migratory birds (under the MBCA) and aquatic species (under the Fisheries Act) on lands that are not federal lands, unless an Order is made pursuant to SARA. Subsection 79(2) of SARA requires that, where a federal environmental assessment is being carried out in relation to a project that may affect a listed wildlife species or its critical habitat, the person responsible for ensuring the assessment is conducted must identify potential adverse effects on the listed wildlife species and its critical habitat; and if the project is carried out: ensure that measures are taken to avoid or lessen those adverse effects and to monitor them, and ensure that such measures are consistent with any applicable recovery strategy and action plans. Critical habitat as identified under SARA is that habitat necessary for the survival or recovery of a species and has been identified for Boreal Woodland Caribou in the Recovery Strategy. Section 58 of SARA prohibits the destruction of any part of the critical habitat of any listed endangered or threatened species on federal lands, and any listed aquatic species or migratory birds anywhere in Canada. The intent is for provinces and territories to provide effective protection for those portions of critical habitat that occur on non-federal lands. If there are situations where critical habitat is considered/determined to be not effectively protected, SARA (ss. 61(4)) requires that the Minister of the Environment recommend to the Governor in Council an order protecting that habitat. 2. Migratory Birds Section 6 of the MBR prohibits the disturbance, destruction, or taking of a nest, egg or nest shelter of a migratory bird. Possession of a migratory bird, nest or egg without lawful excuse is also prohibited. Section 5.1 of the Act prohibits the deposition of substances harmful to migratory birds in waters or areas frequented by migratory birds or in a place from which the substance may enter such waters or such an area. Regulations pursuant to the MBCA provide for the conservation of migratory birds and the protection of their nests and eggs. Section 5 of the Migratory Bird Regulations (MBR) prohibits the hunting of a migratory bird except under authority of a permit, where hunt means chase, pursue, worry, follow after or on the trail of, lie in wait for, or attempt in any manner to capture, kill, injure or harass a migratory bird, whether or not the migratory bird is captured, killed or injured. 3. Wetlands The Federal Policy on Wetland Conservation promotes the wise use of wetlands. The objective of the Policy is to promote the conservation of Canada s wetlands to sustain their ecological and socio-economic functions, now and into the future. The Policy goals promote the maintenance of the functions and values derived from wetlands throughout Canada, recognition of wetland 6

7 functions in resource planning and economic decisions, enhancement and rehabilitation of wetlands in areas where continuing loss or degradation of wetlands or their functions have reached critical levels, and utilization of wetlands in a manner that enhances prospects for their sustained and productive use by future generations. 4. Emergency Response and Management A pipeline accident or malfunction causing a spill could result in the release of deleterious substances to receiving waters. The responsibility for the administration (including the enforcement) of the pollution prevention provisions of the Fisheries Act (including subsection 36(3)) has been assigned to the Federal Minister of the Environment and Climate Change. Subsection 36(3) of the Fisheries Act specifies that, unless authorized by federal regulation, no person shall deposit or permit the deposit of deleterious substances of any type in water frequented by fish, or in any place under any conditions where the deleterious substance, or any other deleterious substance that results from the deposit of the deleterious substance, may enter any such water. In general, any substance with a potentially harmful chemical, physical or biological effect on fish or fish habitat may be considered deleterious. The act of depositing a deleterious substance should be considered a violation of the Fisheries Act, regardless of whether the water itself is made deleterious by the deposit. Subsection 36(3) of the Fisheries Act makes no allowance for a mixing or dilution zone. Through legislation, such as the Department of the Environment Act, Canadian Environmental Assessment Act, 2012 (CEAA 2012), the Fisheries Act, and the MBCA and, subject to various interagency agreements, ECCC is mandated to see that the environment is appropriately protected in the event of an environmental emergency. Additional information on the scientific advice and support that ECCC s Environmental Emergencies Program can provide to Lead Agencies in the event of a pipeline accident or malfunction is in the attached document ECCC s Support Services for Pipeline Accidents and Malfunctions. 7

8 Attachment B ECCC s Support Services for Pipeline Accidents and Malfunctions In the event of an environmental emergency, ECCC s Environmental Emergencies Program efforts are aimed at reducing the consequence to the environment and human life or health. In addition to the Department of the Environment Act, the key Acts that govern ECCC s role in environmental emergencies and that allow it to deliver its mandate are listed below: Canadian Environmental Protection Act, 1999 Fisheries Act Pollution Prevention Provisions Migratory Birds Convention Act, 1994 Environmental emergencies (such as spills and other pollution incidents) need strong leadership, clear communication and decision-making processes, as well as role clarity for their successful management and quick resolution. For these reasons, ECCC employs the concept of Lead Agency and Resource Agency. The Lead Agency is generally described as the governmental authority that regulates or has legislative authority over the management of an incident. The Lead Agency model helps all agencies involved in response efforts to organize their actions in a coordinated fashion. The concept is flexible and adaptable according to the source of pollution, the circumstances of the incident and the capacity of the different agencies involved to assume this function. It should be noted that the Lead Agency can change during the course of an incident. Regardless of which government department assumes the role of Lead Agency, ECCC will assume the role of Resource Agency and provide its scientific and technical expert support services to all partners that have requested it and where ECCC s support can enhance the protection of the environment. For cross-jurisdictional pipeline incidents in Canada, the Lead Agency is the National Energy Board (NEB). ECCC fulfills its Resource Agency role supporting Lead Agencies from its National Environmental Emergencies Centre (NEEC) located in Montreal, Quebec. NEEC personnel are available 24 hours a day, 7 days a week to provide to responders and other implicated agencies scientific and technical advice such as: spilled material properties, fate and behaviour analysis, hydrologic spill trajectory modelling, atmospheric transport and dispersion modeling, spill clean-up priorities and spill countermeasures (including spill treating agents); meteorological, sea-state and ice forecasts and warnings; scientific support team with personnel trained in emergency response and utilizing specialized equipment (portable instruments and mobile laboratories); identification of environmental sensitivities, areas and priorities; deterrence strategies to keep migratory birds from becoming oiled, and determining appropriate response for the humane treatment of captured birds and species at risk ; priority assessment for shoreline protection and cleanup using the Shoreline Cleanup and Assessment Technique (SCAT); evaluation of spill countermeasures, containment, recovery, treatment and disposal techniques; and post-emergency analyses and providing advice on ecosystem recovery objectives. NEEC personnel typically provide scientific and technical advice to lead agencies via telephone; however, they can also travel to incident scenes and provide their services on-site when: the Lead Agency or any other organization having authority requests NEEC s presence onsite; 8

9 remotely available information does not allow NEEC personnel to determine and monitor if the environment is being adequately protected; coordination and delivery of ECCC s services would be enhanced by NEEC s on-site response presence; or on-site response would fulfill specific training needs for NEEC personnel. In fulfilling this advisory role, NEEC personnel work closely with scientists from other ECCC programs and branches such as the Canadian Wildlife Service and the Meteorological Service of Canada. They also collaborate with personnel from key partners such as the Canadian Coast Guard, Transport Canada, Health Canada, Public Safety Canada, Fisheries and Oceans Canada, and provincial/territorial departments of environment. NEEC S Environmental Emergencies Officers (EEO) are designated as enforcement officers with limited enforcement powers and limited Peace Officer powers specific to CEPA, 1999, and also as Inspectors under the Fisheries Act. If the responsible party fails to take appropriate actions as required by these Acts, EEOs have the authority to direct the person to take those measures, or to take the remedial measures so that the environment is appropriately protected and adverse effects of an environmental emergency are mitigated, if required. If a pipeline incident results in a spill into a marine environment, ECCC can play a front-line role in the early detection of such spills through aerial surveillance and satellite imagery (a collaborative program between ECCC and Transport Canada), thus enabling a more rapid and effective incident response effort. During the response to an environmental emergency requiring multi-agency cooperation, an Environmental Emergencies Science Table (Science Table) can be convened by NEEC to provide response advice to the Lead Agency. The Science Table is not a spill response organization in that it does not involve hands-on spill clean-up operations, nor does it own or maintain clean-up equipment; rather, it is an advisory mechanism that brings together relevant scientific and technical experts in the field of environmental protection in the event of an environmental emergency response. The participants to any given Science Table can be comprised of representatives from all levels of government, Aboriginal representatives, local communities, industries, environmental nongovernment organizations, and academic institutions, provided that they have relevant scientific and technical expertise or jurisdiction over the response effort. ECCC can convene and chair the Science Table when requested by the Lead Agency and when at least one of the following criteria is met: the environmental emergency is major in terms of impacts/potential impacts on the environment and/or complexity/severity; the incident has an international or cross-jurisdictional component; or the need to coordinate information impedes the Lead Agency from fulfilling its response monitoring role. The Science Table brings the necessary expertise together specific to the incident at hand, develops a consensus on protection and clean-up priorities, adapts the scale of response to a particular environmental emergency, and provides a forum for rapidly moving information to minimize damage to human life or health, or the environment; all while maximizing the use of limited response resources. These discussions can occur on-site, or by telephone or videoconference. 9

10 The Science Table then supplies the Lead Agency with consolidated scientific and technical advice pertaining to environmental concerns, priorities and strategies, thus enabling and optimizing the environmental response. It is a flexible process and is designed to work in emergency management structures such as the Incident Command System. 10