National Energy Board Hearing Order MH-3-2008
Enbridge Pipelines Inc. Alberta Clipper Pipeline Project Detailed Route Hearing
Written Argument of Lyle Denton & Florence Denton, and John Denton & Louis Denton
Enbridge’s proposed route south of Regina is not the best possible detailed route for the Alberta
Clipper pipeline. It is not the best possible detailed route for the short-term, and it is not the best-possible detailed route for the long-term. Regina is a city of some 205,000 residents that has experienced a relative economic boom in the recent past, and its future continues to look bright. 1 Lyle Denton and Florence Denton, and John Denton and Louis Denton are landowners
on the edge of the city. Lyle and Florence have developed land in the past, and both families
envision the development of South Regina lands in the future. The location of a major
international energy pipeline corridor on their properties, however, will have significant and
lasting negative effects on their ability to develop their lands as part of the future development of
the City of Regina and surrounding municipality. They ask the Board to find that the route
proposed by Enbridge for the Alberta Clipper pipeline is not the best possible detailed route.
There are better alternatives further to the south which do not change the nature of the pipeline
project, but which do protect the future interests of affected landowners and the broader Regina-
area community.
When it originally planned for the Alberta Clipper pipeline, Enbridge turned its mind to its
existing mainline route that runs through the north end of the city. This route was unsuitable
because of the congestion in the area, and so Enbridge looked at alternative routes to the north of
1 Exhibit C-6-19c – Denton Written Information, Ex. 18. - 2 - the city limits. These routes, however, were also rejected by Enbridge because, in part, there were landowner concerns in that area about proximity of the route to “homes and acreages”. 2
Those landowners suggested that Enbridge look at the Alliance pipeline route to the south of
Regina.3
And so Enbridge shifted its focus south of Regina. However, what Enbridge did not do is to look
at the route following established National Energy Board-regulated corridors (Alliance and
Spectra) close to the hamlet of Rowatt that is proposed by the Dentons in this proceeding as the
best possible detailed route for the Alberta Clipper pipeline (Alternate Route 1). When Enbridge
looked at possible routes to the south of Regina, there is no indication that this more southerly
route was ever considered. That is not surprising, since Enbridge had settled upon its currently
proposed route south of Regina in April, 2007, before it had consulted with landowners south of
Regina. 4 When it did consult in May, 2007 at an open house in Grand Coulee, Lyle Denton told
Enbridge directly about his concerns for future urbanized development of the lands south of
Regina through which Enbridge proposed to route its pipeline. 5 His concerns obviously did not
convince Enbridge that it had made the wrong choice. Enbridge applied for its Certificate of
Public Convenience and Necessity later that month.
Nor did these concerns convince Enbridge when Lyle Denton expressed them again in a June,
2007 meeting with Enbridge representatives. 6 Country residential development had been an issue for Enbridge and affected landowners north of Regina, further from the city limits than the
Dentons’ lands, but was not an issue for Enbridge to the south of Regina. 7 It is submitted that
2 Enbridge Certificate Application, Section 6.2.6(d); Transcript, Vol. 1, paras. 480-481. 3 Ibid . 4 Transcript, Vol. 1, paras. 636-639. 5 Transcript, Vol. 2, para. 1506. 6 Transcript, Vol. 2, para. 1507, 1510. 7 Transcript, Vol. 1, para. 483; Transcript, Vol. 2, paras. 1346-1347. - 3 - this discrepancy reflects deficiencies in the decision-making process that led to the choice of the route proposed by Enbridge that should be considered by the Board when judging whether the proposed route is the best possible detailed route.
There is evidence from Enbridge that the development plans of the City of Regina and the RM of
Sherwood formed part of the analysis by Enbridge of its proposed route from the time it was identified in late 2006 – early 2007. However, the evidence provided is problematic. There is nothing in the written record of the OH-4-2007 Certificate proceeding that specifies that these development plans were part of the routing analysis. What is offered by Enbridge now in this proceeding is the evidence of Tim Cheesman, a well-qualified land use planning and management consultant. Mr. Cheesman testified that he was not consulted by Enbridge until
February, 2009 8, and says only that he was working for other clients dealing with land
development proposals along the proposed Alberta Clipper pipeline route. 9 This evidence, it is
submitted, is not evidence that Enbridge undertook the necessary review and analysis of future
development planning in the Regina-area as part of its choice of the proposed route south of
Regina.
By contrast, Karl Gilmore, who was directly involved in the Enbridge route selection process,
confirmed that no potential for commercial or residential development in South Regina was
identified by Enbridge because the land was currently zoned agricultural. 10 Yet, in May and
June, 2007, Lyle Denton had advised Enbridge of this potential. 11 Also, the Regina
Development Plan has since 2004 indicated the potential long-term residential development of
lands through which Enbridge has proposed to route the Alberta Clipper pipeline (Sections 36-
8 Transcript, Vol. 1, para. 671. 9 Transcript, Vol. 1, para. 735-741. 10 Transcript, Vol. 1, paras. 1001-1002. 11 Supra notes 5, 6. - 4 -
16-20 W2M and 31-16-19 W2M).12 Why wasn’t this recognized by Enbridge in its written reporting of its analysis of the proposed detailed route? It is submitted that it was not recognized because Enbridge looked only at the fact that the lands to the south of Regina were zoned agricultural, and did not sufficiently investigate their potential for future commercial and residential development. At no point subsequent to being advised by Lyle Denton of the development potential to the south of Regina did Enbridge modify its Certificate Application or
Environmental and Socio-Economic Assessment, or even acknowledge in its written submissions to the Board that concerns about future land development to the south of Regina had been expressed. 13
While it is true that the Dentons’ lands and other adjacent lands affected by the proposed route
are currently zoned agricultural, they have strong potential for future country residential and
other development in line with the strong development potential for South Regina. Residents in
the south part of Regina want to stay in the south.14 There is a sewage trunk line proposed for the southern edge of Regina that will facilitate development south of Highway 1. 15 Water
service for the Dentons’ area could be supplied through the Regina South Rural Water Pipeline. 16
There is a highway overpass interchange system planned for the intersection of Highway 1 and
Lewvan Drive just to the north of the Dentons’ properties that will also facilitate residential and commercial expansion to the south of Regina. 17 The Rowatt Flood Control project will increase the amount of land south of Regina, including the Dentons’ lands, available for development. 18
12 Exhibit C-6-19j – Denton Written Information, Ex. 49, Map 2; Transcript, Vol. 1, paras. 714-720. 13 Transcript, Vol. 1, paras. 512-516. 14 Transcript, Vol. 2, paras. 1267, 1855. 15 Transcript, Vol. 1, paras. 757-762; Transcript, Vol. 2, para. 1389. 16 Transcript, Vol. 2, paras. 1398-1402. 17 Exhibit C-6-33; Transcript, Vol. 1, paras. 800-805, 813, 815; Transcript, Vol. 2, paras. 1287, 1316-1317, 1771- 1772. 18 Transcript, Vol. 2, paras. 2969, 3085-3088 - 5 -
Add to that the Dentons’ previous successful experience with land development in the Harbour
Landing area and their expressed desire to create country residential properties on their own lands, and it is submitted that the potential for future development on the Denton lands within the life expectancy of the Enbridge Alberta Clipper pipeline is more than speculative. 19 Every
development project has to begin as a concept, and it is submitted that the Denton concept for
development demonstrates a strong potential based on the developing infrastructure in the area.
It is a potential that was expressed to Enbridge and one that should have led Enbridge to
examine, at the very least, the better detailed route for the pipeline along the Alliance and
Spectra corridors further to the south of Regina (corridors which had already been approved as
the best possible detailed route south of Regina for those pipelines by the Board). Now in this
proceeding the Board has the opportunity to review the better routes that exist to the south of the
proposed route.
It is submitted that international oil and gas pipeline corridors have negative impacts on the
future development potential of land and can lead to constraints on development or even a choice
by potential developers and municipal planners to avoid lands where such a corridor is located. 20
Mr. Cheesman described a pipeline corridor in the context of developments like Harbour
Landing not as a constraint but as an opportunity. 21 However, the Harbour Landing experience is that the green space created necessarily by the pipeline easement is a fenced-in coarse grassed area that can be used for nothing and is not accepted by the City of Regina as part of the required
19 Transcript, Vol. 2, para. 1270. 20 Transcript, Vol. 2, paras. 1478-1481, 1485-1486. 21 Transcript, Vol. 1, paras. 678-687. - 6 - municipal green space reserve for the development. 22 The easement is an empty scar across the
map.
There are existing encumbrances on the Dentons’ lands. There are the 10” TransGas pipelines,
and there are the SaskPower wood-frame transmission lines. 23 These are not major international
oil and gas pipeline corridors. It is expected that, if necessary, land development could take
place with these facilities in place. It may also be possible to relocate them to other parts of the
Denton properties. In any event, these are not major international oil and gas pipeline corridors,
they are not subject to the National Energy Board Act , the Pipeline Crossing Regulations or the
30 metre “safety zone”. The setbacks that are currently under discussion as part of the Draft
Sherwood-Regina Planning District Official Community Plan are subject to change during the public hearing process and may not ever apply to the existing facilities. It is submitted that the imposition of the proposed Alberta Clipper pipeline route adjacent to the existing encumbrances will increase the impact of the encumbrances exponentially. There is a real cumulative effect of adding an international pipeline corridor, whether or not Enbridge has included the effect in its own cumulative effects assessment.
This detailed route hearing was initiated by the Dentons, but it is as much about Regina as it is about the Dentons’ particular property. In the Dentons’ photograph showing the Living Tree
Memorial Site on the Lyle Denton and Florence Denton property, the City of Regina is clearly visible in the background. 24 Regina is the only major population centre affected by the entire
1,078 km Alberta Clipper route 25 , and the Board should take special care when considering an objection aimed at protecting the future development potential of the city and the surrounding
22 Transcript, Vol. 2, paras. 2550-2552. 23 Transcript, Vol. 2, paras. 1455, 1460, 2651, 2673-2682 24 Exhibit C-6-19j – Denton Written Information, Ex. 65. 25 Transcript, Vol. 1, paras. 663-664. - 7 -
RM. The Board should pay special attention to the preference expressed by the Mayor of
Regina, Pat Fiacco, to Enbridge’s President and CEO in his February 10, 2009 correspondence:
The general route map for the new pipeline shows it being located near Rowatt, considerably south of Regina. More detailed drawings of the planned route, however, indicate the new pipeline will be approximately 1.6 km south of Highway No. 1. While development south of Highway No. 1 is not immediate, the City of Regina would prefer a more southerly route for the Alberta Clipper Expansion Project so as not to constrain future growth in the region. 26
The Board should also pay special attention to the words of the city’s leading land developer over the past 40 years 27 :
… when that pipeline was built and planned for, and the TransCanada pipeline that is down in our Harbour Landing areas, everybody thought the city could never go to where they were putting it. And that’s the point I’m trying to make, if I can only make one point with you.
We developed – we were a partner in the Uplands in there and we did the McCarthy Park and the Lakewood and the Lake Ridge. …
We’ve had to cross that pipeline numerous times because the city has grown. It was an impediment. Enbridge and everybody were very helpful with dealing with us, but it was a real pain doing it, and to cross – and we’re only allowed to cross at major crossings.
And the rules are now with these pipelines from the big area, for a mile or so between crossings or whatever distance it is, you have to fence it on both sides, and we’re doing that in Wascana View right now. All of Harbour Landing with those two pipelines are going to be fenced across the buffer line going straight through your property.
We don’t get any credit for green space. You can’t plant a tree on it. You can’t do anything on it. You can just cross it with very special permission in a few spots and it’s just coarse grass.
And you can see that line, it just sticks up like a sore thumb, and I think that line and that map is the best evidence of what we’re
26 Exhibit C-6-22b. 27 Transcript, Vol. 2, para. 1826. - 8 -
trying to say from the Dentons’ side and me as a retired person that just wants to see our city not run into those problems again.
You have an opportunity today to move it one or two miles, and maybe 150 years from now that will be a line going through our city but it won’t be in the next – near future, and I can see us having a line going to the south through the Dentons’ line like that all the way across in a straight line, coarse grassed; you’re not able to use it for any activity.
You can only cross at certain crossings and then at a big expense. And I’m saying why? We’ve got all this land to the south that are hundreds of years away from development. Why are we taking the chance of developing or putting in a pipeline that may, at its best, be next to a residential development in 25 to 30 years or it may be much longer.
We don’t know. But why, when we have this opportunity, I wish there was a panel like you back when those things were done and that had the foresight to say “Hey, let’s move it” and that’s what I’m suggesting .28
Of course, Mr. Shepherd was referring to past decisions to route the Enbridge mainline and the
TransCanada mainline in locations that have long since been encroached upon by Regina’s
urbanized development. 29
It may be that Enbridge proposes to construct only the Alberta Clipper pipeline at this particular
time, but Regina’s past experience with pipelines suggests strongly that a new corridor is likely
to attract future pipelines as well. During the hearing, Enbridge’s witnesses were careful to
maintain the position taken in Enbridge’s written information regarding the “speculative future
pipeline or other utility routing along its proposed Alberta Clipper RoW.” 30 Mr. Paetz would not agree that in the future the proposed Alberta Clipper route would be a more likely route for future Enbridge pipelines running near Regina than other new routes, saying instead that both
28 Transcript, Vol. 2, paras. 3103-3111. 29 Exhibit C-6-35a; Exhibit C-6-35b. 30 Exhibit B-5b – Enbridge Written Information, para. 62. - 9 - would be possible. 31 In our submission, the Board should reject Enbridge’s constant attempts to minimize any future projection, whether it be related to residential development or to future pipelines, as speculative.
It is a fact that Enbridge’s mainline corridor is now home to five Enbridge pipelines. 32 It is a fact that Enbridge’s proposed form of grant of easement would provide the right to install “one or more pipelines” in the proposed Alberta Clipper corridor. 33 It is a fact that, while clause 21 of
the proposed grant provides that a landowner may withhold consent to a new pipeline, the same
clause provides that Enbridge may nevertheless seek a Right of Entry order from the Board to
allow it to install additional pipelines. 34 It is a fact that the proposed grant provides for the right to install pipelines to carry not only oil, but any hydrocarbon including natural gas. 35
We submit that it is not just possible, but likely that any future Enbridge pipeline routed in the vicinity of Regina (which is junction for Enbridge’s mainline) will be routed through the proposed Alberta Clipper corridor. The mainline route is no longer an option. If, however, the
“accepted industry principles and factors” that guided Enbridge in the selection of its existing mainline route for most of the Alberta Clipper pipeline outside of Regina are applied to future pipeline route selection, it is clear that, at least on a balance of probabilities, the proposed
Alberta Clipper corridor will become the new mainline junction for Enbridge.36 In fact, application of the industry principles would support the routing of pipelines adjacent to the
Alberta Clipper proposed route by other pipelines companies as well.
31 Transcript, Vol. 1, para. 908. 32 Transcript, Vol. 1, para. 855. 33 Enbridge Certificate Application, Appendix 4-3. 34 Enbridge Certificate Application, Appendix 4-3; Transcript, Vol. 1, paras. 902-903. 35 Enbridge Certificate Application, Appendix 4-3; Transcript, Vol. 1, paras. 909-922. 36 Exhibit B-5b – Enbridge Written Information, paras. 8, 16-17. - 10 -
Therefore, the restrictions on future development that will result from the installation and operation of the Alberta Clipper pipeline in the proposed corridor that were noted above, will be multiplied by the addition of any future oil or gas pipelines to the corridor. Enbridge did not conduct a cumulative effects assessment with respect to the interaction between the proposed routing of the Alberta Clipper pipeline and future pipelines in the same corridor. Again,
Enbridge says that the possibility of future pipeline construction in the same corridor is speculative. In our submission, the cumulative effects that will result from the proposed routing will be devastating to future land development for the Dentons, the RM of Sherwood and the
City of Regina, and the Board should draw an adverse inference from Enbridge’s failure to conduct the assessment.
It is not too late for the Board to make the right decision for the Dentons and for the City of
Regina and route the Alberta Clipper pipeline further to the south of the proposed route. The
Dentons have proposed three basic alternate routes, each of which is technically feasible and better than the Enbridge proposed route. 37 There is a trade-off. It is conceded that in accommodating future land development and possible expansion of the City of Regina, there is likely to be increased cost for the Alberta Clipper project in the near-term. By Enbridge’s calculations, the incremental costs of Alternate Routes 2 and 3 may be in the $2 to $3 million range. 38 Alternate Route 1, the best route, would increase costs by $6 to $7 million. The
question is whether or not an investment in the right routing choice now is justified in the long-
term.
37 Transcript, Vol. 1, para. 845. 38 Exhibit B-12k – Enbridge Reply Evidence, Appendix I. - 11 -
In our submission, such an investment in the long-term is justified. The Alberta Clipper pipeline can be expected to operate for at least 60 years, and probably much longer. 39 Enbridge obtains easement rights in perpetuity. 40 Enbridge has not designed its pipeline or its pipeline integrity program for the Alberta Clipper with any end-point in mind. 41 The costs incurred today in the
construction of the pipeline can be recovered over the expected long lifetime of the pipeline.
Also, the incremental costs of the Alternate Routes as calculated by Enbridge are a small fraction
of the $248.9 million contingency built into the Alberta Clipper pipeline budget. 42 That is not to say that costs should be incurred needlessly. However, there is a need here and the Board should require Enbridge and, in turn, its customers and the end users of the Alberta Clipper pipeline to make the investment necessary to protect the future interests of the landowners and populations affected by the pipeline. Enbridge was ready to make this investment for the benefit of Gretna- area landowners and made the investment for landowners north of Regina. 43 Landowners south of Regina are just as deserving of the investment.
At Gretna, Enbridge was prepared to increase the length of its pipeline. It was prepared to affect a number of new landowners who would not have been affected by the route originally proposed.
It was prepared to install over 2 km of “new” pipeline not adjacent or contiguous to existing rights-of-way. The Denton alternative routes 1, 2 and 3 will require in varying degrees these same changes to Enbridge’s currently proposed route, but it is submitted again that the investment in the protection of lands south of Regina for future development is worth the effort.
As of July, 2008 when Lyle Denton and Florence Denton filed their Statement of Opposition,
39 Transcript, Vol. 1, paras. 923-934. 40 Transcript, Vol. 1, paras. 935-936. 41 Transcript, Vol. 1, paras. 923-928. 42 Transcript, Vol. 1, paras. 951-955, 974-975. 43 Transcript, Vol. 1, paras. 976-979, 983-997; Exhibit C-6-34. - 12 -
Alternative Route 1 would have increased the total length of the 1,078 km Alberta Clipper pipeline by only about 2 km. 44
On the basis of these submissions and the evidence filed in this proceeding, the Dentons ask the Board to find that Enbridge’s proposed route is not the best possible detailed route for the Alberta Clipper pipeline.
The best possible detailed route for the Alberta Clipper pipeline is one that runs further south of
Regina, ideally along the existing Alliance and Spectra routes already regulated by the Board.
The best possible detailed route is one that honestly acknowledges the impact of major international hydrocarbon pipeline corridor on future land use and that recognizes and protects the future potential of the residents of the community through which the pipeline is proposed to be constructed. Each of the three alternative routes proposed by the Dentons is superior to the
Enbridge proposed route in this respect.
As Mr. Shepherd suggested, “ why not, when we have the opportunity for once, plan and make something that contemplates something good happening .” 45 The Dentons have well-placed faith in the potential for their lands and for the future development of the City of Regina and the RM of Sherwood. They ask the Board, in making a decision so important to the Regina-area and its people, to share in this faith and protect that potential.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
44 Transcript, Vol. 2, para. 1606. 45 Transcript, Vol. 2, para. 3072.