Trans Mountain Pipeline ULC Trans Mountain Expansion Project Application under §§ 52 and 58 of the National Energy Board Act NEB File # OF-Fac-Oil-T260-2013-03-02 Hearing Order OH-001-2014

U.S. Tribes (Swinomish, Tulalip, Suquamish, and Lummi) Information Request No. 1 to Trans Mountain

Table of Contents

1. General: Involvement and Consultation with United States’ Entities ...... 2

2. Consideration of U.S. Tribal Interests ...... 2

2.1 Effects Deemed Not Significant ...... 2

2.2 Additional U.S. Fisheries’ Studies ...... 3

2.3 Marine Traffic Survey ...... 4

2.4 Additional Marine Traffic Studies ...... 4

2.5 U.S. Tribal Treaty Rights ...... 5

2.6 Loss of Fishing Gear ...... 5

2.7 Future Traffic Trends ...... 6

2.8 TERMPOL 3.15...... 7

2.9 General Risk Analysis ...... 7

2.10 Mitigation Measures ...... 8

3. U.S. Involvement in Oil Spill Response ...... 8

4. Ecological Issues ...... 9

5. Spur Pipeline Expansion Plans ...... 9

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 1 1. General: Involvement and Consultation with United States’ Entities

Reference: A56025, Application Volume 8a: Marine Transportation.

Preamble: As Trans Mountain acknowledges at various places throughout the application, oil tankers and barges leaving the Westridge terminal must travel through U.S. waters. These waters are also U.S. tribal treaty-protected usual and accustomed fishing areas.

Request: a. Please identify any discussions, consultations, or meetings Trans Mountain had with U.S. federal government agencies, officials, or staff, including but not limited to the U.S. State Department, U.S. Coast Guard, and U.S. Environmental Protection Agency.

b. Please identify any discussions, consultations, or meetings Trans Mountain had with State of Washington government agencies, officials, or staff.

c. Please identify any discussions, consultations, or meetings Trans Mountain had with local or municipal U.S. government agencies, officials, or staff.

d. Please identify any discussions, consultations, or meeting Trans Mountain had with any U.S. tribes.

e. For each identified discussion, consultation, or meeting identified in a-d above, please provide an agenda, list of participants, and summary of the discussion, consultation, or meeting.

f. Please provide any public notice and/or public information and outreach Trans Mountain specifically directed at U.S. interests and concerns.

2. Consideration of U.S. Tribal Interests

2.1 Effects Deemed Not Significant

Reference: A56025, Application, Volume 8a, section 4.2 and Table 4.3.10.3.

A56023, Application, Volume 8c Part 1, TERMPOL 3.3, Fishery Resources Survey, p.16-18.

TCW Economics. 2008. Economic analysis of the non-treaty commercial and recreational fisheries in Washington State. December 2008. Sacramento, CA. With technical assistance from The Research Group, Corvallis, OR.

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 2 http://wdfw.wa.gov/publications/pub.php?id=00464.

Radtke, H.D. 2011. Washington State Commercial Fishing Industry Total Economic Contribution. Prepared for Seattle Marine Business Coalition. Hans D. Radtke, Ph.D., Natural Resource Economist, Yachats, OR, January 2011.

Preamble: The Application, at Volume 8a, 4.2.10, states that only Canadian First Nations have been consulted with respect to Traditional Marine Resource Use. U.S. tribal interests were assumed to be similar to Canadian First Nation interests, Application Volume 8a at 4.2.10.4, and expected to experience impacts deemed “not significant.” Application Volume 8a at 4.3.10.3. This is in spite of clear evidence that:

. Even in the absence of a major oil spill, shipping can impact fisheries via gear damage and loss, displacement from grounds, risk of collision, and other effects; . All of the increased ship traffic will pass through U.S. waters; . U.S. fisheries in Puget Sound may be more substantial, with more vessels, greater employment and higher economic value, than BC fisheries (TERMPOL 3.3, p. 16-17; TCW Economics, 2008; Radtke, 2011); and . Project documents acknowledge gaps in the data and research in progress, even for the BC Fisheries (TERMPOL 3.3 - Fishery Resources Survey, p. 17- 18; and Volume 8A, Table 4.3.10.3).

Request: a. Please identify all places in application where Trans Mountain considered impacts to U.S. tribes and U.S. tribal treaty-protected fishing rights.

b. As Trans Mountain did not complete a Traditional Marine Use Study (TMUS) for the U.S. tribes, please explain what data Trans Mountain used to inform its assessment of environmental effects and effects to the U.S. tribes rights and interests.

c. Please explain the grounds on which it can be determined that the project effects on U.S. fisheries are not significant, when no assessment of U.S. effects has been undertaken.

d. Please provide information concerning the size of exclusion zones around the marine vessels in transit through U.S. waters to and from the Westridge terminal.

2.2 Additional U.S. Fisheries’ Studies

Reference: A56025, Application, Volume 8a, Table 4.3.11.2.

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 3 Preamble: A substantial degree of reliance on current rules and safety practices does not provide a high degree of confidence that accidents will be avoided, especially considering incidents reported each year between fishing and transiting ships (USCG 2013). Fishing net issues comprise a common cause related to Vessel Traffic Center Actions. It should be noted that when collisions occur between large transiting ships and fishing vessels, catastrophic damage to the fishing vessels and loss of life are not uncommon.

Request: Please provide a date or time estimate when the studies and analyses needed to understand potential impacts on U.S. fisheries will be conducted and concluded.

2.3 Marine Traffic Survey

Reference: A56023, Application, Volume 8c Part 1, TERMPOL 3.2 Origin, Destination and Marine Traffic Volume Survey at 14.

Preamble: The reference states that “[f]ishing vessels less than 24 meters in length and not more than 150 tons gross are exempt from participating with VTS (Canadian Coast Guard, 2012). Therefore these vessels are not presented in this report.” A great many fishing vessels in Puget Sound are smaller than 150 tons, possibly comprising one of the most numerous vessel classes.

Request: Please provide an explanation for why the Marine Traffic Survey did not include the majority of tribal fishing vessels.

2.4 Additional Marine Traffic Studies

Reference: A56025, Application, Volume 8a, Table 4.3.10.3.

Preamble: Table 4.3.10.3 concerns Traditional Marine Resource Use Identified to Date by Participating Aboriginal Communities Within or in Proximity to the Marine RSA. Many entries indicate that fishing area proximity to, and crossing of, shipping lanes is unknown. Page 8A–363 states that “Trans Mountain continues to engage with Aboriginal communities and will continue to facilitate TMRU studies with interested communities. The results from ongoing TMRU studies will be provided to the NEB as completed.”

Request: Given the critical nature of the additional studies for navigation safety, please explain why Trans Mountain has not put the application on hold until these studies are completed and provided to the Board.

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 4 2.5 U.S. Tribal Treaty Rights

Reference: A56025, Application, Volume 8a, p. 363.

A56023, Application, Volume 8c Part 1, TERMPOL 3.2 and TERMPOL 3.3, p. 35.

Preamble: Page 8A-363 states that “Given the similar types of marine environments in Washington State and BC TMRU, [Traditional Marine Resource Use] is expected to be similar in U.S. and Canadian waters.”

A recently published U.S. Vessel Traffic Risk Assessment (VTRA 2010) found fishing vessels to be the most numerous category in U.S. waters of Puget Sound. In contrast, the TERMPOL documents estimate fishing vessel movements to be only 3% to 5% of the annual marine vessel movements in British Columbia coastal waters in 2013 (TERMPOL 3.2 and TERMPOL 3.3 p. 35). This may indicate higher levels of fishing vessel activity in U.S. waters, as it is known that hundreds of U.S. vessels fish Puget Sound.

Request: Considering the Treaty Rights of U.S. Tribes for continued access to their very substantial fishery and hunting resources, and the hundreds of vessels operating under these Rights, please provide a justification to support the assumption that Traditional Marine Resource use is similar in Washington State and British Columbia Waters.

2.6 Loss of Fishing Gear

Reference: Good, T., J. June, M. Etnier, G. Broadhurst, 2009. Derelict fishing nets in Puget Sound and the Northwest Straits: Patterns and threats to marine fauna. Marine Pollution Bulletin 60 (2010) 39–50.

NMFS. 2014a. NOAA Fisheries, Office of Protected Resources. Canary Rockfish (Sebastes pinniger). Last updated 2/14/2014. http://www.nmfs.noaa.gov/pr/species/fish/canaryrockfish.htm.

NMFS. 2014b. NOAA Fisheries, Office of Protected Resources. Yelloweye Rockfish (Sebastes ruberrimus). Last updated 2/14/2014. http://www.nmfs.noaa.gov/pr/species/fish/yelloweyerockfish.htm.

NMFS. 2014c. NOAA Fisheries, Office of Protected Resources. Bocaccio (Sebastes paucispinis). Last updated 2/14/2012. http://www.nmfs.noaa.gov/pr/species/fish/bocaccio.htm.

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 5 Northwest Straits Marine Conservation Initiative, 2014. www.derelictgear.org.

Preamble: Increases in vessel traffic in and near fishing areas often result in damage to, and loss of, fishing gear. This is especially true in areas like the Study Area, where static gear such as crab traps, shrimp traps, and salmon gillnets are very common. Such lost gear can continue fishing and damage valuable resources. Derelict gear in Puget Sound has been known to kill marine mammals as well as other species such as three species of rockfish protected under the Endangered Species Act (Good et al 2010; NMFS 2014 a,b,c). U.S. authorities have invested over $7 million in removing lost fishing gear during the past 13 years (Northwest Straits Marine Conservation Initiative, 2014).

Request: Please provide a list of measures being taken to address the potential for increased loss of fishing gear and resultant damage to marine resources arising from the project.

2.7 Future Traffic Trends

Reference: A56023, Application, Volume 8c Part 1, TERMPOL 3.2, Origin, Destination and Marine Traffic Volume Surveys;

A56029, Application, Volume 8c Part 2, TERMPOL 3.15.

Preamble: Local sources indicate that one current practice is for ships departing the Vancouver area in bad weather to be diverted through Rosario Strait, thereby spending more time in U.S. waters and fishing grounds. Cursory analysis of AIS data from Marine Cadastre1 indicate that for June and December 2011, two out of the seven Aframax vessels transiting inbound to Westridge terminal took Rosario Strait. However, the Origin, Destination and Marine Traffic Volume Surveys (V8C TERMPOL 3.2) state that all vessels transit Haro Strait, leading to the General Risk Analysis (V8C TERMPOL 3.15) assumption limiting risk modeling to Haro Strait only. As a result, no mitigation measures are presented for vessels navigating Rosario Strait.

V8C TERMPOL 3.2 Section 6 (p.42) recognizes that there is an inherent uncertainty in predicting future traffic trends given the necessary dependence upon international supply and demand. Given this uncertainty, sensitivity testing could assess the impact of greater than predicted future traffic levels (e.g. a +5%/+10% increase in traffic).

1 http://marinecadastre.gov.

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 6 Request: Please explain if the General Risk Analysis can show the sensitivity to alternative route transits for vessels anchoring and/or bunkering on route to/from the Westridge terminal (e.g. vessels taking Rosario Strait or deviating from the channel).

Please explain whether an agreement or Memorandum of Understanding exists between the Canadian Coast Guard and U.S. Coast Guard regarding navigational safety in the Puget Sound. Given that vessels must transit through U.S. waters to access the project site, please explain whether the proposed mitigation measures for Westridge bound vessels will be enforceable inside U.S. waters.

2.8 TERMPOL 3.15

Reference: A56029, Application, Volume 8c Part 2, TERMPOL 3.15.

Preamble: The questions seek to clarify the analysis in TERMPOL 3.15.

Request: a. Have causation probabilities been made geographically specific to the study area or are they generic (TERMPOL 3.15)?

b. Has any sensitivity testing been undertaken on the causation probabilities (TERMPOL 3.15)?

c. TERMPOL 3.15 effectiveness of risk mitigation measures. Have these been made geographically specific to the study area or are they generic probabilities?

d. No incident data specific to the project tanker traffic has been presented in the report. Have any near misses occurred (such as close navigational situations or mechanical failure) that could be extrapolated to estimate incident rates for the Westridge Terminal?

2.9 General Risk Analysis

Reference: A56023, Application, Volume 8c Part 1, TERMPOL 3.2, Origin, Destination and Marine Traffic Volume Surveys.

A56023, Application, Volume 8c Part 2, TERMPOL 3.15.

Preamble: The questions apply to the General Risk Analysis.

Request: Please explain whether the General Risk Analysis has taken into account collisions or groundings as a result of avoiding third party vessels. (Other

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 7 commercial vessels such as cargo vessels may be forced out of the shipping lanes and into the paths of smaller craft to maintain the required exclusion zone around tankers. There may be significant knock on effects of this mitigation measure that have not been properly accounted for.).

Please answer the following technical questions:

. Is the General Risk Analysis vessel traffic risk model deterministic or stochastic?

. Is the General Risk Analysis vessel traffic risk model a time domain geographic model?

. The General Risk Analysis vessel traffic risk model presents aggregated return periods for incidents and oil spills. Do geographically presented outputs (besides the segments) exist to identify particular areas at high risk, as opposed to segment averages, and are these available for dissemination?

2.10 Mitigation Measures

Reference: A56025, Application, Volume 8a, § 4.3.10.

Preamble: Section 4.3.10 presents the impacts of increased vessel traffic on traditional resource use and possible mitigation measures available. A considerable proportion of the mitigation measures apply, or are enforced, by the Canadian authorities. No mitigation is presented specifically for U.S. fisheries resources. Either mitigation applicable to U.S. fisheries is presented or residual risk upon U.S. fishermen is higher than Canadian fishermen and therefore the assessment of risk should be independently assessed.

Request: Please explain if the additional mitigation measures identified in the TERMPOL report will be implemented should the project be approved.

3. U.S. Involvement in Oil Spill Response

Reference: A56025, Application, Volume 8a: Marine Transportation, p. 58-59.

Preamble: Due to traffic patterns and marine conditions, a tanker oil spill would very likely affect U.S. waters.

Request: a. Please identify and provide support for an estimate of time required for a rescue tug stationed at Neah Bay to reach the Strait of Juan de Fuca.

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 8 b. Please identify and produce all scientific studies Trans Mountain has reviewed with respect to clean-up of spilled tar sands crude (diluted bitumen) in marine and freshwater environments.

c. Please identify the extent to which Trans Mountain will rely on U.S. and/or State of Washington resources to respond to and clean up any marine oil spill.

4. Ecological Issues

Reference: A56025, Application, Volume 8a, p. 99-110.

Preamble: The reference provides information on Marine Regional Study Areas.

Request: a. Please state Trans Mountain’s justification for excluding Puget Sound from Marine Regional Study Area, Application page 8a-99.

b. On page 8a-110, the Application states that oils will be removed prior to any bilge water release. Please identify and discuss steps that will be taken to ensure that exotic, non-native species will not be released into U.S. or Canadian waters.

5. Spur Pipeline Expansion Plans

Reference: A56025, Application, Volume 8a, Appendix D-1.

Preamble: Two spur pipelines currently cross the international border and supply four U.S. refineries. Plans to add new pumping stations, expand the spur pipelines, and/or increase the volume of oil through those spur pipelines could lead to increased refining in the U.S.

Request: a. Please identify all plans to add new pumping stations in the U.S., to expand the spur pipelines, and/or increase the volume of oil through the spur pipelines that currently cross the U.S./Canada border from the main Trans Mountain pipeline to four U.S. refineries in Washington State.

U.S. Tribes (Swinomish, Tulalip, Suquamish, Lummi) Information Request No. 1 to Trans Mountain May 12, 2014 Page 9