Ministry of the Environment,…

Ministry of the Environment, Conservation and Parks
Species Conservation Policy Branch
300 Water Street
Floor 5N
Peterborough ON K9J 3C7

Attention: Public Input Coordinator
Re: 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper

Enbridge Inc. (“Enbridge” or the “Company”) is North America's premier energy infrastructure company with strategic business platforms that include an extensive network of crude oil, liquids and natural gas pipelines, regulated natural gas distribution utilities and renewable power generation. The Company safely delivers an average of 2.9 million barrels of crude oil each day through its Mainline and Express Pipeline; accounts for approximately 62% of U.S.-bound Canadian crude oil exports; and moves approximately 22% of all natural gas consumed in the U.S., serving key supply basins and demand markets. The Company's regulated utility, Enbridge Gas serves approximately 3.7 million retail customers in Ontario, Quebec, and New Brunswick. Enbridge also has interests in more than 1,700 MW of net renewable generating capacity in North America and Europe.

Enbridge is pleased to provide the Ministry Environment, Conservation and Parks (“MECP”) with comments on the 10th Year Review of Ontario’s Endangered Species Act Discussion Paper. Enbridge has reviewed the Discussion Paper and respectfully submits these comments for MECP’s review and consideration.

AREA OF FOCUS 2 – LISTING PROCESS AND PROTECTIONS FOR SPECIES AT RISK

There is not enough public notice before a new species is automatically listed on the Species at Risk in Ontario List;
In some cases, automatic species and habitat protections can contribute to high uncertainty and costly impacts to businesses and the public.

• Enbridge agrees with the above statements and would support longer timelines before a new species is listed on the Species at Risk in Ontario List. Longer timelines will allow for assessment of the potential impact of newly listed species on existing operational sites or in-flight projects and development of a monitoring/mitigation plan for the newly listed species, if required. In some circumstances, such as operating wind power facilities, protections for newly listed species could be costly and time-consuming to develop. Longer transition periods and consultation with the MECP on the required protections for newly listed species would be appropriate in these cases.

AREA OF FOCUS 4 – AUTHORIZATION PROCESSES

Authorization processes can create significant administrative burdens and delays, in particular for applicants filing numerous authorizations or registrations under the rules-in-regulations for routine activities.

• Enbridge agrees with this statement and would actively engage in an opportunity to create a letter of understanding or a conservation agreement with the MECP that would support routine construction, operation and maintenance activities with defined mitigation and conservation activities to fulfill the intention of the Ontario Endangered Species Act (the “Act” or the “ESA”). Enbridge currently holds a similar agreement with the Department of Fisheries and Oceans with respect to routine watercourse crossings, which has significantly streamlined the approval process, administrative activities and provided the scheduling certainty required for effective project execution.

• Where overall benefit activities are required, Enbridge would welcome additional authorization tools that are not tied to the specific activity or project location. Enbridge suggests that the MECP consider the concept of a conservation fund dedicated to species at risk or conservation banking which would enable a proponent to address species at risk requirements prior to the start of a project however Enbridge would like the opportunity to review any proposed plan. Such tools could add clarity to the process by creating known available options for overall benefits, and also create certainty on the timelines for obtaining permits. This would benefit construction projects that are subject to multiple approval and permitting processes. The establishment of a conservation fund could potentially allow for broad scale, multiyear overall benefit programs and could include a landscape approach to species and habitat protection. A landscape approach is typically beyond the scope or scale of beneficial activities in the current individual overall benefit project approach. A conservation fund also has the potential to save significant resources for both the proponent and the regulator by reducing the number of small, project specific overall benefit programs developed and reviewed.

The requirements that applicants must fulfill to obtain an authorization can be extensive, creating barriers to economic development (e.g., in some cases achieving an overall benefit to a species as required under a s. 17(2)(c) permit can be long, onerous, and unpredictable).

Enbridge agrees with this statement and has experienced significant delays in the authorization process leading to construction schedule impacts and considerable added costs, both to Enbridge and the ratepayers of Ontario. To improve the authorization process, Enbridge recommends the following be considered:

• A commitment from the MECP to engage in pre-consultation. This would involve meeting well in advance (1-2 years) prior to construction to review project timelines including when decisions are required in order to achieve a committed in service date established through a regulatory process, such as an Ontario Energy Board (OEB) Order. Regular discussions and understanding is needed to ensure the ESA and other regulatory requirements can be met. A commitment from both parties is needed in the early stages of a project.

• Identification by MECP of different mitigation strategies for linear projects to ensure mitigation is effective and consistent. Past permitting experiences have resulted in requested mitigation appropriate for contained site development, which when applied on a linear project is often ineffective, infeasible and costly. Enbridge welcomes the opportunity to share our experience and knowledge on typical pipeline construction activities and project timelines.

• Standardize, as much as possible, the mitigation measures applied for a specific species both within the district and across the province. Increased standardization will assist in streamlining the authorization process as well as the effectiveness of the implementation.

• Enbridge recommends that overall benefit projects are focused on the recommendations of the recovery strategies and/or government response statements, rather than being tied to a specific project and geographic location. It has been Enbridge’s experience that the selection and acceptance of overall benefit projects associated with authorizations has been subjective, where local initiatives have been championed over projects in other regions that may be of more immediate and/or greater benefit to the species of concern. Overall benefit projects would benefit from being implemented separately from pipeline construction projects, where they are not subject to the competing priorities, and timelines of pipeline construction. With these past experiences in mind, Enbridge may support in lieu activity-based requirements such as a conservation fund, or conservation banking as a way for both parties to agree on an overall benefit project that can proceed at a later date on its own schedule, not impacting the primary project.

• Enbridge recommends a one window approach, and a service standard or guarantee for review and approval of authorization requests. A one window approach would eliminate confusion around who to contact for status updates as the application passes through various offices for review (Local, Regional, Peterborough and Toronto).

• Enbridge recommends a service level agreement as currently there are no definitive timelines for reviews and approvals and Ministry response times can vary from one day for a simple question to months for an authorization. This adds significant uncertainty in the project planning process. The proponent needs assurance that the file is moving and remains on an agreed upon schedule.

The Act adds duplication and delay for activities that are subject to other legislative or regulatory frameworks, like forestry under Ontario’s Crown Forest Sustainability Act.

• Enbridge agrees with this statement and has experienced delays with respect to the federal Species at Risk Act (“SARA”) and the Fisheries Act in combination with the ESA for the protection of aquatic species at risk. In many cases a species listed under SARA is also listed under the ESA and requires both federal and provincial permitting and approvals. This creates duplication of time, effort, and cost and in some cases conflicting mitigation requirements, all resulting in significant project delays. The ability to exempt, defer to or harmonize the ESA applications and approvals with the SARA process would benefit all proponents navigating these processes.

• Consideration should be given to removing the requirements to receive a permit under s.17(2)d for projects that have been approved through another regulatory process such as the National Energy Board Act or the Ontario Energy Board Act and that have already considered the social or economic benefit of a project to Ontario. If such projects could be exempt from section 17(2)d, this would help to reduce uncertainties and duplication associated with review and approval timelines for projects that have regulatory approval and have been deemed to be a significant social or economic benefit to Ontario.

Are there other approaches to authorizations that could enable applicants to take a more strategic or collaborative approach to address impacts to species at risk?

• Enbridge would like to suggest a risk-based approach to defining and categorizing activities and the corresponding requirements, rather than outlining specific rules in regulation for species or activities. The risk-based approach could follow a similar approach to class environmental assessments where there is a standardized process for classes or groups of activities. This would be extremely beneficial for projects that are routinely carried out and have predicable environmental effects that can be readily managed, such as operations and maintenance activities on pipeline infrastructure.

To accommodate the diverse range of projects, it has long been recognized by many federal and provincial ministries as necessary to provide several levels of planning and decision making. We suggest that projects/activities can be better categorized to expedite planning and provide increased certainty with respect to requirements and schedule as we continue to invest in building Ontario. Categories can be as identified using pre-determined criteria, as currently done for many Environmental Assessments, including those described in Ministry of Natural Resources and Forestry's Class Environmental Assessment document to determine potential for impact.

An example that Enbridge routinely faces is installation of pipelines using trenchless techniques where records of Redside Dace exist. Trenchless techniques such as directional drilling have long been viewed as a routine construction practice with well-known and documented best practices and mitigation measures. When using the registration process (Notice of Activity), this activity should be viewed as low risk, and should be subject to the same requirements as activities undertaken for non-imminent threats to health and safety (i.e., Section 23.18 of Ontario Regulation 242/08), which includes the requirement to have an appropriate mitigation plan (i.e., a contingency plan for frac-outs), but does not require long term monitoring or a commitment to provide overall benefit.

We would be pleased to coordinate a meeting with the MECP to discuss these comments further. We appreciate the MECP’s main objectives of protecting and recovering Ontario’s species at risk and preserving and protecting our environment for future generations. Our comments were thoughtfully considered to balance the importance of protecting species at risk while ensuring that our project activities remain practical, feasible and cost-effective in their implementation. It remains Enbridge’s objective to safely and reliably deliver natural gas to our customers throughout Ontario, in a manner that respects the environment and communities in which we operate. If you have any questions or require additional information regarding this letter, please do not hesitate to contact Brad Lattanzi, Government Affairs Strategist (brad.lattanzi@enbridge.com).

Sincerely,

Michelle George
VP Engineering, Utilities & Power Operations