Conditions and Recommendations Overview – Trans Mountain Expansion Project Reconsideration Report

Plan for marine spill prevention and response commitments

Trans Mountain must file with the NEB, within 6 months from the issuance date of the Certificate, a plan describing how it will ensure that it will meet the requirements of Condition 133 regarding marine spill prevention and response. The plan must be prepared in consultation with Transport Canada, the Canadian Coast Guard, the Pacific Pilotage Authority, Vancouver Fraser Port Authority, British Columbia Coast Pilots, Western Canada Marine Response Corporation, Fisheries and Oceans Canada and the Province of British Columbia, and must identify any issues or concerns raised and how Trans Mountain has addressed or responded to them.

Trans Mountain must provide the plan to the above-mentioned parties at the same time as it is filed with the NEB.

Marine Public Outreach Program

The Board has converted this condition into a recommendation (see Recommendation 12).

Marine Mammal Protection Program

Trans Mountain must file with the NEB, at least 3 months prior to commencing operations, a Marine Mammal Protection Program that focuses on mitigating effects from the Project and associated cumulative effects, and on fulfilling Trans Mountain’s commitments as a terminal operator with regard to Project-related marine shipping. The program must include:

1. the goals and objectives of the program, including a discussion on how they align with the objectives of applicable Fisheries and Oceans marine mammal Recovery Strategies and Action Plans;
2. a summary of the issues related to marine mammals from the Project and from Project-related marine vessels;
3. a summary of the initiatives that Trans Mountain has supported or undertaken to-date, including the goals of each initiative and how they relate to the goals and objectives of the program;
4. a discussion of the outcomes or progress updates of the initiatives identified in c), and how these outcomes have met or are contributing to the objectives of the program;
5. any other initiatives that Trans Mountain intends to undertake or support in the future that are relevant to the program; and
6. a description of how Trans Mountain has taken available and applicable Indigenous traditional land use and traditional ecological knowledge into consideration in developing the program, including demonstration that those Indigenous persons and groups that provided Indigenous traditional land use information and traditional ecological knowledge, as reported during the OH-001-2014 proceeding, MH-052-2018 Reconsideration proceeding and/or pursuant to Condition 97, had the opportunity to review and comment on the information.

Confirmation of marine spill prevention and response commitments

Trans Mountain must file with the NEB, at least 3 months prior to loading the first tanker at the Westridge Marine Terminal with oil transported by the Project, confirmation, signed by an officer of the company that:

1. Trans Mountain has included in its Vessel Acceptance Standard and Westridge Marine Terminal Regulations and Operations Guide a requirement for tankers nominated to load at the Westridge Marine Terminal to have a suitable arrangement for the proposed enhanced tug escort between the Westridge Marine Terminal and Bouy J prior to departure. The tug escort should be suitable for foreseeable meteorological and ocean conditions and be based on tanker and cargo size; and
2. an enhanced marine oil spill response regime is in place that is capable of:
   1. delivering 20,000 tonnes of capacity within 36 hours of notification, with dedicated resources staged within the study area; and
   2. initiating a response within 2 hours for spills in Vancouver Harbour, and within 6 hours for the remainder of the Salish Sea shipping route to the 12-nautical-mile territorial sea limit.

Updated Vessel Acceptance Standard and Westridge Marine Terminal Regulations and Operations Guide

Trans Mountain must file with the NEB, at least 3 months prior to loading the first tanker at the Westridge Marine Terminal with oil transported by the Project, and thereafter on or before 31 January of each of the first five years after commencing operations, an updated Vessel Acceptance Standard and Westridge Marine Terminal regulations and Operations Guide, and a summary of any revisions made to each.

Ongoing confirmation of marine spill prevention and response commitments

Trans Mountain must file with the NEB, on or before 31 January of each year after commencing operations, confirmation, signed by an officer of the company, that it is continuing to meet the requirements of Condition 133 regarding Trans Mountain’s marine spill prevention and response commitments.

Trans Mountain must provide each filing to Transport Canada, the Canadian Coast Guard, the Pacific Pilotage Authority, Vancouver Fraser Port Authority, British Columbia Coast Pilots, Western Canada Marine Response Corporation, Fisheries and Oceans Canada and the Province of British Columbia at the same time as it is filed with the NEB. If a particular party mentioned above requests that it not be provided the annual filing, Trans Mountain may cease providing it to that party.

Post-construction environmental monitoring reports

No changes to Condition 151 were recommended as a result of the Reconsideration process.

The Governor in Council should develop and implement a regional cumulative effects management plan. This plan should assess the overall environmental state of, and cumulative effects on, the Salish Sea (including the Strait of Juan de Fuca and out to the 12-nautical-mile territorial sea limit), and should include a long-term strategy for managing those cumulative effects. It should also be used to inform the consideration of future proposed projects. This plan should include, but not be limited to:

1. consideration of the many impacts on the Salish Sea, including contamination from point and diffuse land-based sources, the multiple impacts on salmon and other fish stocks, and the impacts from all vessel traffic;
2. incorporation of the work the federal authorities are already planning in the area, such as under the Coastal Environmental Baseline Program and the Cumulative Effects of Marine Shipping initiative (including its regional cumulative effects assessment);
3. development of short-, medium-, and long-term targets for addressing cumulative effects, including consideration of the feasibility of reducing total underwater noise, strike/collision risk of vessels with marine species, and key contaminant levels over time, and feasible and effective measures for achieving those targets; and
4. monitoring to help determine the extent of cumulative effects, the success of measures to manage those effects, and progress towards meeting targets.

The GIC should consider whether a regional study pursuant to sections 73 or 74 of CEAA 2012 should be undertaken as part of the cumulative effects management plan, and include in its public reporting a rationale on whether this would be advantageous. The plan should be developed and implemented in consultation with Indigenous peoples, other marine users, the Province of British Columbia and local governments, Vancouver Fraser Port Authority (VFPA), and other relevant stakeholders.

The Governor in Council should report publicly, on an annual basis, on the oversight, progress, and status of initiatives and measures to address cumulative effects on, and to support the health of, the Salish Sea (including the Strait of Juan de Fuca and out to the 12-nautical-mile territorial sea limit), including but not limited to:

1. progress on addressing Recommendation 1 above, including monitoring results and progress towards meeting targets;
2. the Ocean Protection Plan, the Whales Initiative, and any other relevant commitments made by federal authorities during the Board’s MH-052-2018 Reconsideration hearing;
3. relevant initiatives and measures being undertaken by others, such as the marine shipping measures of the Enhancing Cetacean Habitat and Observation Program (ECHO) Program, for the duration such initiatives or measures are undertaken;
4. species status updates for Species at Risk Act -listed species, including any relevant measures proposed in recovery documents under the Species at Risk Act ;
5. progress on addressing Recommendations 3 through 16 below, including results of monitoring to determine the effectiveness of measures and any adaptive management as part of a follow-up program; and
6. consultation activities related to these initiatives and measures, including with Indigenous peoples, other marine users, the Province of British Columbia and local governments, VFPA, and other relevant stakeholders.

The public reporting should include an explanation of how these various initiatives and measures work together, the identification of any notable gaps, and plans for how those gaps will be addressed.

The Governor in Council should develop and implement, with support from industry, a marine bird monitoring and protection program to better understand impacts of all vessel use within the Salish Sea on marine bird species, including species at-risk, and, if adverse effects are found, implement mitigation from those impacts. This program should include adaptive management measures by the Government of Canada where warranted by monitoring results, to avoid or reduce marine bird mortality and sensory disturbance.

This program should be developed and implemented in consultation with relevant marine shipping stakeholders and Indigenous peoples.

The Governor in Council should expedite the work in completing the feasibility study for establishing a Southern Strait of Georgia National Marine Conservation Area Reserve, publicly report on the outcomes of that study, and (if considered feasible) proceed to establish it. Its potential establishment should include consideration of other initiatives under the Oceans Protection Plan, such as the Ports Modernization Review and the National Anchorage Strategy. This work should be done in consultation with potentially affected Indigenous and coastal communities and with relevant marine shipping stakeholders including Transport Canada, Canadian Coast Guard and the VFPA.

The Governor in Council should develop an Offset Program to offset both the increased underwater noise and the increased strike risk posed to Species at Risk Act -listed marine mammal and fish species (including Southern resident killer whale) due to Project-related marine shipping, at each relevant section of the marine shipping route (i.e., Strait of Georgia, Boundary Pass, Haro Strait, Strait of Juan de Fuca, and out to the 12-nautical-mile territorial sea limit), and at the relevant times of year. Each offset measure should apply to all appropriate vessels for that measure (i.e., not limited to Project-related vessels), to be determined on a case-by-case basis according to the type of measure and the type(s) of vessels it is targeted at.

The Offset Program should be developed and implemented in consultation with Indigenous peoples, other marine users, the Province of British Columbia and local governments, VFPA, and other relevant stakeholders. The Offset Program should include any further research and data collection that is necessary to successfully undertake it, including consideration of whether further information on the number of vessel strikes on marine mammals can be gathered. There should be periodic public reporting that provides, at the appropriate times, the information necessary to demonstrate a robust Offset Program. This should include measured or estimated underwater noise and strike risk due to Project-related marine shipping, and the extent over time to which that additional noise and strike risk has been offset in each section of the route, including the monitoring/modelling used to demonstrate that.

As part of the Offset Program in Recommendation 5, the Governor in Council should further consider each of the following specific measures, each applicable to all appropriate vessels (i.e., not limited to Project-related vessels), and publicly report on the feasibility and likely effectiveness of each (including consideration of navigational safety, international coordination and socio-economic effects):

1. Slowdowns in each section of the marine shipping route (i.e., Strait of Georgia, Boundary Pass, Haro Strait, Strait of Juan de Fuca , and out to the 12-nautical-mile territorial sea limit).
2. Potential limits on the activities of whale watching boats (such as the number of boats and/or their time on water, and other potential ways to limit their impacts).
3. Noise reduction efforts for regularly operating ferries in the area, and an accelerated schedule for implementation.
4. Identification of specific foraging, congregation and migration areas of Species At Risk Act -listed species (including Humpback, Grey, Fin and killer whales, as well as Basking shark and Leatherback sea turtle) and consideration of mitigations in those areas (including Swiftsure Bank).
5. Further incentives and requirements for quiet vessel design and refits to address underwater noise over the long term, including maximal participation in relevant initiatives and committees of the International Maritime Organization.

Consideration of the above measures should include consultation with Indigenous peoples, other marine users, the Province of British Columbia and local governments, VFPA, and other relevant stakeholders.

The Governor in Council should review and update federal marine shipping oil spill response requirements. This review should include consideration of the following:

1. updating the 1995 Response Organization Standards;
2. response planning methodologies;
3. response planning for Species At Risk Act -listed species, including marine mammals;
4. how completed and ongoing research related to oil fate and behaviour and response methods and technology will be considered in response planning, procedures, and equipment;
5. salvage requirements;
6. public reporting by response organizations to promote transparency of information;
7. inclusion of Indigenous peoples and local communities in response planning; and
8. a requirement for additional response resources on all ocean-going vessels.

The Governor in Council should develop a regulatory framework for making enhanced tug escort mandatory in the Salish Sea for Project-related tankers. The framework should include oversight and enforcement mechanisms. Mandatory enhanced tug escort should also be considered for other vessels as appropriate.

The Governor in Council should, in conjunction with relevant United States regulatory authorities, consider the need for a Canada/United States Transboundary Vessel Traffic Risk Assessment.

The Governor in Council should actively support the development and implementation of greenhouse gas reduction measures related to marine shipping that would align with the final International Maritime Organization Strategy by year 2023 for reducing greenhouse gas emissions. These measures could include, but not be limited to:

1. facilitating the use of low-carbon alternate fuels (such as liquefied natural gas) for marine vessels by developing any necessary marine safety regulatory framework, training programs, and bunkering infrastructure requirements;
2. use of energy efficient technologies, such as engine and propulsion upgrades and hull modifications; and
3. market-based measures, such as providing economic incentives for industry investment in the development and use of energy efficient technologies, and offsetting any increases in ship emissions.

In implementing the measures, the Governor in Council could also consider a mechanism to establish and monitor such reductions and to develop regulations under an appropriate legislation.

The Governor in Council should, in conjunction with Transport Canada and the Canadian Coast Guard, facilitate opportunities, as appropriate, to engage and seek feedback from the Indigenous Advisory and Monitoring Committee on the marine safety system, including on the marine inspections and enforcement regime; in addition to identifying engagement opportunities for Project-related marine shipping activities that intersect with Canadian Coast Guard operational programs.

The Governor in Council should, in conjunction with the Pacific Pilotage Authority and Transport Canada, continue engagement and awareness activities targeting coastal Indigenous communities, recreational boaters, fishing vessel operators, and operators of small vessels with respect to safety of navigation and prevention of collisions with larger vessels. This should include incorporating the resources and information that Trans Mountain has already provided or will provide to the Pacific Pilotage Authority, such as applicable information on Project-related vessel timing and scheduling.

The Governor in Council should, in order to enhance the safety of all sizes of marine vessels, accelerate the development and implementation of the Enhanced Maritime Situational Awareness initiative and the proposed extension of the Automatic Identification System to smaller passenger vessels.

In order to foster a more rapid development and employment of new oil recovery technologies, the Governor in Council should administratively combine its current initiatives and investigate the use of new paths for the delivery of government grants and contributions in order to provide financial incentives to promote innovation in such developments.

The Governor in Council, in conjunction with Transport Canada, should review the federal marine oil spill compensation regimes with regards to compensation for non-use values, for Indigenous and non-Indigenous communities, including any non-coastal communities that may be impacted as a result of a marine oil spill.

The Governor in Council, in conjunction with VFPA, should develop a formal complaint resolution program that gathers community feedback, brings together diverse community stakeholders to facilitate discussions about port-related impacts, and resolves complaints about marine vessels docked at the VFPA managed anchorages.