03750 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 3 4 5 6 RED RIVER FLOODWAY EXPANSION PROJECT 7 8 9 10 11 ================================================= 12 Thursday, March 10, 2005 13 Delta Hotel, 350 St. Mary Avenue 14 Winnipeg, Manitoba 15 ================================================= 16 17 Volume 16 18 19 20 21 22 23 24 25 03751 1 Appearances: 2 Clean Environment Commission: 3 Mr. Terry Sargeant - Chairman 4 Mr. Barrie Webster - Member 5 Mr. Wayne Motheral - Member 6 Mr. Doug Abra - Counsel 7 Mr. Dave Farlinger - Technical consultant 8 Ms. Cathy Johnson - Secretary to Commission 9 Ms. Joyce Mueller - Secretary 10 Manitoba Conservation: 11 Mr. Trent Hreno - Chair, Project Admin Team 12 Mr. Bruce Webb - Chair, Tech Advisory 13 Mr. Stewart Pierce - Counsel 14 Manitoba Floodway Authority 15 Mr. Rick Handlon - Counsel 16 MR. B. Schwartz - Counsel 17 Mr. Jim Thomson 18 Mr. Doug McNeil 19 Mr. Doug Peterson 20 Mr. Cam Osler - Intergroup Consulting 21 Mr. John Osler - Intergroup Consulting 22 Mr. David Morgan - TetrES Consulting 23 Mr. George Rempel - TetrES Consulting 24 Mr. Robert Sinclair - KGS 25 Ms. Marci Friedman-Hamm - KGS 03752 1 Participants: 2 Mr. Bob Starr - Ritchot Concerned Citizens 3 Mr. Bob Bodnaruk - RM of Springfield 4 Mr. Steve Strang - RM of St. Clements 5 Mr. Orvel Currie - Counsel to Municipalities 6 Mr. Doug Chorney - Flood Protection North 7 Mr. Kerry McLuhan - Flood Protection North 8 Mr. Rob Loudfoot - 768 Association 9 Mr. Y. Shumuk - 768 Association 10 Paul Clifton - Paul Clifton 11 Mr. Jeff Frank - Rivers West 12 Gaile Whelan Enns - Manitoba Wildlands 13 Earl Stevenson - Peguis Indian Band 14 Mr. Jake Buhler - Cooks Creek Conservation 15 Mr. Lloyd Crooks - Cooks Creek Conservation 16 Mr. Jon Stefanson - Cooks Creek Conservation 17 Mr. Daryl Chicoine - Counsel 18 19 20 21 22 23 24 25 03753 1 INDEX OF PROCEEDINGS 2 3 4 5 6 Closing statements MFA 3758 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 03754 1 2 3 4 5 INDEX OF EXHIBITS 6 7 132: Legal brief: MFA 3888 8 133: Summary statements: MFA 3888 9 134: Submission: Potential licensing 3888 10 conditions and other possible CEC 11 recommendations 12 13 14 15 16 17 18 19 20 21 22 23 24 25 03755 1 2 3 4 5 6 INDEX OF UNDERTAKINGS 7 8 9 NO UNDERTAKINGS GIVEN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 03756 1 Thursday, March 10, 2005 2 Upon commencing at 9:00 a.m. 3 4 5 6 7 THE CHAIRMAN: Could we come to order, 8 please. It's a good thing this is our last day. 9 I'd hate to have this as a precedent, starting 10 10 or 12 minutes late. I got so excited this being 11 the last day of hearings that I had forgotten my 12 material in the room. But I'll cover it up by 13 saying I allowed a few minutes more because of the 14 traffic conditions out there. 15 So here we are at the end of the road, 16 almost. This morning, we hear closing comments 17 from the proponent, the Manitoba Floodway 18 Authority. So, gentlemen, proceed. 19 MR. HANDLON: Mr. Chairman, if I could 20 just outline the format for this morning. 21 Initially, firstly, Mr. Schwartz will review the 22 legal brief. As you recall, we provided a draft 23 of the legal brief earlier this week. We have it 24 in final form and a number of bound copies were 25 left with the Commission as well as for the 03757 1 participants. And it's essentially the same as 2 the draft legal brief. There's some minor 3 revisions and additions. But in addition, you'll 4 see all of the appendices that were referenced in 5 the text. 6 After Mr. Schwartz's presentation, 7 Mr. McNeil will give a PowerPoint presentation 8 which will give a review of a summarization of the 9 evidence and relevant issues. Then Mr. Schwartz 10 will speak to another document, a separate 11 document that we have provided. And it's entitled 12 "MFA Submission on Potential Licensing Conditions 13 and Other Possible CEC Recommendations" and it's a 14 separate document that he will speak to. 15 And then finally, Mr. Jim Thomson will 16 give some brief concluding remarks including 17 acknowledgments. 18 THE CHAIRMAN: Thank you. 19 Mr. Schwartz? 20 MR. SCHWARTZ: Good morning, 21 Mr. Chairman, members of the panel and good 22 morning to everyone here. 23 Mr. Chairman, you asked my friend 24 Mr. Currie the other day what are we to take of 25 this in terms of this large document. I just want 03758 1 to assure you that the appendices are to document 2 and verify what we argue in the brief. The brief 3 can be read and understood on its own. It's not 4 necessary except to the extent that you find it 5 useful to delve through all the appendices and so 6 on. They are substantiation documentation and 7 reference. And I will try to distill, as best I 8 can, the key points from the brief. 9 I realize that as one gets to the end 10 of the road, finding the exit sign becomes more 11 and more appealing. 12 THE CHAIRMAN: Just don't take the 13 wrong exit. 14 MR. SCHWARTZ: Yes. I can speak to 15 that from experience. 16 The subject of some of the legal 17 issues here have arisen persistently throughout 18 these proceedings. What is this concept of 19 baseline. If there is such a concept, even though 20 it's not spelled out in the Environment Act, where 21 does it come from? In looking at a baseline, does 22 the baseline stop today or does it continue to 23 evolve into the future? And what's all this about 24 cumulative effects? Is that some special exotic 25 doctrine which adds a whole other dimension to an 03759 1 evaluation? 2 So what I'll try to do is go right 3 back to the basic principles here and explain the 4 origin and what I think is the underlying 5 simplicity actually of the concepts involved here. 6 You won't find cumulative effects, 7 baseline and other concepts spelled out expressly 8 in the Environment Act. A lot of the terminology 9 here has its origins in the federal statute, the 10 Canadian Environmental Assessment Act. Why is 11 that of such relevance in these proceedings? 12 Ultimately, the terms of reference for the EIS and 13 the terms of reference for this panel in this 14 hearing come from the Minister of Conservation 15 exercising his authority under the Environment 16 Act. That's spelled out at paragraph 5 of our 17 brief. 18 In this case, as it's becoming 19 increasingly common practice when there are 20 federal as well as provincial issues, the federal 21 government and the province agreed to a 22 cooperative assessment process. It was thought it 23 would expedite and streamline matters and 24 contribute to common understanding if the EIS 25 could contribute to the federal screening as well 03760 1 as this process. 2 For that reason, a joint 3 federal/provincial committee was set up, the PAT, 4 Project Advisory Team, and the Minister authorized 5 that joint committee to work out the terms of 6 reference for the EIS. As you would expect, with 7 both federal and provincial officials involved 8 with a view to the fact that there's going to be a 9 federal screening which is going to take into 10 account the findings of this panel, the guidelines 11 expressly built in the core principle of the 12 federal statute which is stated in section 16. If 13 there is one absolutely core principle of the 14 Canadian Environment Assessment Act, and I believe 15 there actually is that one absolutely fundamental 16 principle, it's that assessment is based on 17 avoiding likely significant adverse effects. 18 The idea that in moving forward, you 19 do not leave behind significant residual likely 20 harm to the environment is the acid test under the 21 Canadian Environmental Assessment Act. That test 22 won't always be met by projects but if it's not, 23 then extra levels of review and scrutiny have to 24 take place. A decision has to go upstairs for 25 even more careful review and scrutiny. There may 03761 1 have to be a federal panel, there may have to be a 2 federal mediation, but a crucial trigger point, 3 does a project leave behind after mitigation 4 significant residual adverse effects? In the 5 course of going forward, have we added some harm 6 to the environment that didn't exist before? 7 In terms of reference for this panel, 8 we're going to talk about them in our closing 9 document when we make our suggestions as to what 10 might be appropriate licensing conditions and what 11 might be more general recommendations, identifies 12 two bullet points. Both of them are taken 13 directly out of section 16 of the Canadian 14 Environmental Assessment Act, that core principle, 15 avoiding significant adverse effects, adaptive 16 management. The other key principle referred to 17 in your terms of reference is the Sustainable 18 Development Act. And in this closing document, 19 we'll talk about the difference in approach 20 between a very specific focused and to some extent 21 objective standard in section 16 of the Canadian 22 Environmental Assessment Act and a much broader, 23 more discretionary, more subjective standards in 24 the Sustainable Development Guidelines. 25 But there's very serious consequences 03762 1 to this process if MFA has not succeeded in 2 persuading you and federal regulators that the 3 section 16 tests have been met. And certainly, 4 the effort of the MFA and I would suggest the 5 achievement has been to demonstrate that that 6 standard has been met. 7 In looking at where cumulative 8 effects, baseline and so on and so forth are 9 explained in the Canadian Statute, the Canadian 10 Environmental Assessment Act, it's useful to look, 11 it's at page 7 of the brief, the text of section 12 16 itself, that core section. And what it talks 13 about is that every screening or comprehensive 14 study, every mediation or assessment, any kind of 15 environmental assessment includes a consideration 16 of the environmental effects of the project. 17 That's the focus. It's the effects of the 18 project. How has a project changed the world as 19 it would otherwise be? 20 Cumulative effects is not an exotic 21 doctrine, it's not a different kind of assessment, 22 it's something that any rational assessment of the 23 effects of the project would logically do anyway. 24 Cumulative effects are defined as cumulative 25 environmental effects that are likely to result 03763 1 from the project. It's not the aggregate effect 2 of some other project, existing conditions, a new 3 project, it's the extent to which this project 4 makes the world different. But the way in which 5 this project makes the world different can depend 6 on what's there already and what's going to happen 7 otherwise. 8 If you're introducing chemical A into 9 the environment, that's the project or one of its 10 effects, and that's benign, you haven't really 11 done your job if you haven't thought how might it 12 interact with other chemicals in the environment. 13 If chemical B is already in the environment and 14 you combine A and B and it's toxic, an effect of 15 the project by introducing chemical A is you've 16 got a serious adverse effect. Chemical A is not 17 responsible for chemical B being there. But to 18 determine what the effects are of chemical A, you 19 have to consider what's in the environment already 20 and what would evolve in the environment absent 21 this project. 22 The example we give in the brief at 23 paragraph 18 is consider filling a channel with 24 water. Maybe a 10 metre high channel and there's 25 five metres of water in it already, you add 03764 1 another three metres, what are the effects of 2 doing that? Well, you haven't made the channel 3 impassible. It's already impassible, there's 4 already five metres of water there. You don't 5 task that additional project with making the 6 channel impassible, it was impassible anyway. 7 Now suppose the next project adds 8 another three feet of water. Well, the effects of 9 adding that three feet of water, its effect in 10 combination with what's there already is very 11 different from adding the first three metres of 12 water. Now you've got 11 metres of water in a 10 13 metre deep channel, you've got overflow, you've 14 got very serious adverse effects. 15 The question is always what is the 16 effect of this project? How does it make the 17 world different? And you're not doing your job as 18 a proponent or as an assessment body unless you 19 consider all the relevant and significant effects 20 of the project and you can't do that without 21 looking at context and interactions. But once 22 again, it's the effect of the project, not the 23 aggregate effects of things that would happen 24 anyway plus the project, not the effects of 25 natural or artificially created circumstances that 03765 1 would have occurred anyway. 2 The definitions throughout the 3 Canadian Act keep calling our attention to the 4 necessity of looking at how the project changes 5 the world. It's what the causal implications are 6 of the project. 7 The definition of environmental 8 assessment, this is discussed at paragraph 10 of 9 our brief, is an environmental assessment, means 10 in respect of a project, an assessment of the 11 environmental effects of the project. What is an 12 environmental effect? Here is what the Canadian 13 Environmental Assessment Act tells us, page 6 of 14 the brief still in paragraph 10. Environmental 15 effect means, in respect of a project, any change 16 that the project may cause in the environment. 17 That's why the Canadian Environmental 18 Act Practitioner's Guide naturally talks about the 19 incremental effects. If you're talking about 20 causation produced by a project, you're asking how 21 the project makes a difference. How is the world 22 different because of this project? 23 The larger philosophy of the Canadian 24 Environmental Assessment Act fits entirely with 25 this notion that we're looking at how this project 03766 1 changes the world. It's a planning tool, it's not 2 an assessment tool. Paragraph 13 of the brief 3 says that the purposes of the Canadian 4 Environmental Assessment Act -- this is what the 5 Act says of itself, section 4 of the Canadian 6 Environmental Assessment Act -- to ensure that 7 projects are considered in a careful manner before 8 federal authorities take action, in order to 9 ensure that such projects do not cause significant 10 adverse effects. 11 The case law, and I can speak to any 12 of it if you wish, but without going into great 13 detail, judges who have interpreted the Canadian 14 Environmental Assessment Act in contested cases 15 have repeatedly adopted and endorsed this 16 principle that the Canadian Environmental 17 Assessment Act is a planning tool, it's not a 18 retrospectively looking assessment tool of what 19 projects have been carried out already. 20 Paragraph 27, for example, Justice 21 Dawson of the Federal Court concludes by saying 22 "Environmental assessment is a 23 decision-making planning tool rather 24 than a project impact assessment 25 tool." 03767 1 Now does that mean that in any way, 2 one can be irresponsibly indifferent to what's 3 happened already or what the impacts are of 4 existing projects? Of course not. In order to 5 understand what the causal effect is of a project, 6 in order to determine whether they are 7 significant, one has to describe and understand 8 existing conditions to the extent necessary to 9 figure out how this project is going to change the 10 world and whether that's going to be changed for 11 the better or the worse in various environmental 12 dimensions. But to describe and to understand is 13 in a context and the context is what do you have 14 to describe and understand in order to figure out 15 how this project makes a difference. 16 More study is always possible, more 17 description is always possible. But the question 18 is what's reasonably necessary by way of study and 19 description in order to understand the impact of 20 this project. 21 If there is no possible way a project 22 can actually make a difference in a particular 23 dimension, then the duty to describe that 24 dimension is obviously less than it is making a 25 difference and then it's very important to 03768 1 understand in detail what the existing condition 2 is. 3 There are only a few changes, very 4 small number of changes to the brief since we 5 circulated it in draft form at the beginning of 6 the week. We did that to ensure that participants 7 who are making their closing remarks in the middle 8 of the week would have an opportunity to see what 9 we were going to have to say before we said it. 10 One tweak, it's in paragraph 30, is 11 that I have noted that the Canadian Environmental 12 Assessment Act tells us that project can consist 13 of a modification. When you've got an existing 14 facility and you're modifying it, what has to be 15 assessed, the project that has to be assessed is 16 the modification. It's not the entire project. 17 Can you be indifferent to what the impact is in 18 the existing project? Well, of course you can't 19 because how would you know what the impact of the 20 change is unless you've done the study that's 21 reasonably sufficient to determine the causal 22 implications of the new project and to determine 23 its significance. 24 The other change I've noted since 25 drafting the brief is in paragraph 31. I want to 03769 1 take a bit of time about this. And the point of 2 that paragraph is people seem to be agreeing with 3 us. Federal partners in this process, even some 4 of the participants who have concerns about the 5 substance of the project or concerns about the 6 process. When it comes down to it, on close 7 examination, there actually seems to be pretty 8 close to a consensus about all these concepts. 9 Tab 5 of our authorities might be one 10 of the tabs that you might wish to look at more 11 closely. I know the Chair has asked a number of 12 times about how federal officials are viewing the 13 way the provincial assessment has taken place. 14 Now that the federal government has given its 15 opinion to date, MFA felt free to put on the 16 public record all the correspondence. It's on the 17 public registry now. 18 In tab 5, the first letter is a 19 response from Mr. Ernie Gilroy to Ms. Cecile 20 Cleroux, a senior official in the Federal 21 Government at Infrastructure Canada. After that 22 letter, there is a letter dated February 16th, 23 2005. There is a chart at appendix A to 24 Mr. Gilroy's letter and then there's a letter 25 dated February 16, 2005. That's from Ms. Cleroux 03770 1 to Mr. Gilroy. 2 At the bottom of page 2 of that 3 document, here is what Ms. Cleroux writes in light 4 of the deliberation on this provincial 5 correspondence by federal officials. It's right 6 at the bottom of the page. 7 "The EIS guidelines," 8 according to Ms. Cleroux's letter, 9 "requested information on the existing 10 environmental setting for the project, 11 that is, the environmental conditions 12 with the existing floodway in place. 13 The existing environmental setting 14 provides an appropriate baseline for 15 comparing the potential effects of the 16 proposed expansion. Reference to 17 environmental conditions that may have 18 existed prior to construction of the 19 floodway during the 1960s is not 20 considered appropriate as the baseline 21 for comparative purposes in this 22 screening." 23 My friend Mr. Currie yesterday 24 introduced a substantial number of case law. All 25 of that case law, as best we can interpret, is 03771 1 entirely consistent with the position that MFA has 2 taken throughout. That case law emphasizes that 3 you have to take into account cumulative effects 4 in the sense of understanding the effects of the 5 project, means understanding all of the effects 6 which means looking at things like synergies with 7 existing conditions or other events that may 8 occur. That case law is very clear about the fact 9 that environmental assessment statutes don't have 10 retroactive effects and don't have retrospective 11 effects. They are forward looking planning tools. 12 They don't change the rule of the game after 13 decisions have already been made and projects are 14 already in place. They don't go backwards and 15 retroactively or retrospectively make something 16 non-compliant in light of changes in the standards 17 and the procedures that apply to assessment. 18 Projects and decisions have to be made in light of 19 the law that exists at the time and the 20 information at the time. And as the law changes 21 on a go-forward basis, standards may become more 22 demanding, processes may become more exacting but 23 one does environmental assessments on a go-forward 24 basis. So we have no difficulty with any of the 25 case law introduced by Mr. Currie. 03772 1 At both the federal and provincial 2 level, it appears to affirm and in no way 3 contradict any of the contentions that we have 4 made throughout. At tab 6 of our material, there 5 is excerpts from the cross-examination that 6 Mr. John Osler did on March 3, 2005 of Mr. Wayne 7 Clifton. The last page of that exchange, 8 "MR. J. OSLER: The project is the 9 expansion of this ash lagoon, the 10 project is the expansion? 11 MR. W. CLIFTON: Yeah, starting from 12 today's baseline." 13 There is a consensus in the case law 14 in the federal government's own interpretation of 15 its guideline, in the correspondence as best we 16 can interpret it to date, in the terms of 17 reference for the EIS, in the way the EIS has been 18 carried out, in the case law interpreting the 19 relevant principles on the approach that has been 20 taken here. 21 The terms of reference of the EIS 22 include section 5.3.3. And 5.3.3 very clearly 23 talks about asking about the difference between 24 operations under the expansion and operations 25 under the status quo, about the effect about river 03773 1 flows and levels after the expansion in place and 2 under the status quo. That's tab 4. Sorry, those 3 are the terms of reference for this panel, not the 4 terms of reference to the EIS. It's tab 3, the 5 guidelines, 5.3.3. It's at page 9 of tab 3, 6 guidelines for the preparation of the 7 Environmental Impact Statement. 8 The Environmental Impact Statement 9 shall describe how the floodway, Red River channel 10 and related infrastructure would be operated and 11 maintained under all operating conditions. Any 12 differences in operating rules between the 13 existing expanded floodway should be discussed. A 14 discussion of river flows and levels with and 15 without the expanded project in place shall be 16 provided. And so it continues. 17 Another point that has arisen is this 18 notion of the evolving baseline. One kind of 19 discussion that tends to take place, and it's 20 obviously of great interest to many participants 21 here because there is this position that some 22 people adopt that the assessment in this case 23 should go all the way back to pre-project 24 conditions. And the position of MFA, which we 25 believe is consistent with all these other 03774 1 sources, is that the expansion has to be evaluated 2 in terms of how it changes the world, not in terms 3 of the aggregative effect of all the artificial 4 activity that's taken place to date. 5 So some of the debate is between the 6 past and the present but there's another issue 7 which is the present versus the future. What if 8 there's going to be natural changes in the 9 environment anyway? What if other projects are 10 going to take place, other activities are going to 11 take place? Does the baseline evolve or is this 12 project responsible for other changes that are 13 caused by other projects or other changes that are 14 caused by natural occurring changes in the 15 environment? 16 And that's one of the points that the 17 brief speaks to. It starts at paragraph 32, 18 evolution of baseline conditions. 19 In preparing for today, I found that 20 useful confirmation that the baseline does evolve 21 can be found in the report of the Clean 22 Environment Commission's panel in the Wuskwatim 23 hearings. 24 Appendix E, I can provide copies 25 afterwards but I believe Mr. Sargeant was a 03775 1 participant in the Wuskwatim panel. The glossary 2 provided there defines baseline environment in the 3 following way. This is page 140 of the Wuskwatim 4 final report. The baseline environment is a 5 description of the environmental, social and 6 economic conditions at and surrounding proposed 7 action. The baseline is dynamic and will evolve. 8 Baseline changes may evolve as a result of natural 9 variations as well as human-caused conditions. 10 And it goes on to discuss how an EIS will take 11 into account as the evolving baseline, changes 12 that result from natural processes as well as 13 changes that evolve from other projects. 14 The Canadian Environmental Assessment 15 Act is very clear about having to look at the 16 difference between what the world would look like 17 in the future in light of existing projects that 18 are likely to happen. It may not be explicit 19 about the fact that the baseline evolves as well 20 as a result of natural changes, but that is the 21 only logical way of approaching the issue. If 22 environmental assessment is always about asking 23 what the causal implications are of the project, 24 what is the effect of the project, you can't task 25 the project with changes that would have occurred 03776 1 anyway either through artificial changes, and this 2 is very clear from the Canadian Environmental 3 Assessment Act, or through natural changes. 4 If erosion is going to take place 5 anyway and the project doesn't increase that, you 6 can't blame the project for naturally occurring 7 processes that are going to take place anyway. 8 But if the project makes that worse, if it 9 accelerates the erosion and especially if that 10 acceleration produces damage that wouldn't have 11 occurred anyway, that is a legitimate criticism of 12 the project. It's legitimate at that point to say 13 this project has made a difference. It's made a 14 difference for the worse. The magnitude of that 15 harm has to be understood in the context of 16 conditions that would have occurred anyway but you 17 can't blame the project for the effect to which it 18 builds on other effects and makes a negative 19 impact. 20 In the Wuskwatim panel report, in 21 fact, the panel in its licensing conditions, 22 repeatedly and expressly referred to the concept 23 of evolving baseline conditions. Page 123 of the 24 Wuskwatim final report says that the environmental 25 protection plan should document evolving baseline 03777 1 conditions. Page 125, licence stipulation that 2 the EPP should document evolving baseline 3 conditions. 4 Earlier in the report, the panel 5 discusses the fact that NCN and Hydro had 6 expressly put forward this doctrine of the 7 evolving baseline and the CEC says that the CEC 8 does appreciate that position. And in fact, the 9 CEC did, in its glossary, very expressly adopt 10 that position as well as adopting it in its actual 11 conditions that it proposed to be attached to 12 licences. 13 But if I may, we are getting into all 14 this jargon baseline, cumulative effects, evolving 15 baseline. These are not separate and distinct 16 concepts, they are not stand-alone doctrines, they 17 are not exotic, they all follow I think from one 18 fairly simple and straightforward concept. 19 Under section 16 of the Canadian 20 Environmental Assessment Act, the key question is 21 what difference does this project make to the 22 world? And if that in some significant 23 environmental dimension is a change for the worse, 24 that's something we're very concerned about and 25 proponents should do their best to avoid that. 03778 1 And if they haven't, and an ultimate balancing act 2 has to take place, then even more careful scrutiny 3 has to take place. You have to have a federal 4 panel or mediation. And an even higher level of 5 decision makers have to make that choice about 6 whether some residual damage to the environment 7 can be justified by other concerns. 8 The idea of causation, and that you 9 are always focusing on what the project does, 10 explains and guides all these other concepts. I 11 don't think that once the core concept is clear 12 these other things are variant, different, they 13 are just natural, logical consequences of that one 14 simple basic idea. 15 At page 12 of our brief, we talk about 16 the Sustainable Development Guidelines. 17 The terms of reference for the panel 18 in this case, which are reproduced on the first 19 page of our closing document, the one that's going 20 to speak to licensing recommendations, quotes the 21 terms of reference for this panel in full. The 22 first bullets talk about the standards set out in 23 the Canadian Environmental Assessment Act. Again, 24 I'm looking at this document that we just tabled 25 this morning. It will be the last document we 03779 1 speak to. It's labeled "MFA Submission on 2 Potential Licensing Conditions and Other Possible 3 CEC Recommendations." It looks like this. I am 4 just referring to it because it quotes in full the 5 terms of reference for this panel. 6 The EIS was no different. The EIS, 7 the guidelines for the EIS called upon the 8 proponent to ensure that the EIS itself will take 9 into account the sustainable development 10 guidelines and principles. Those are contained in 11 the Sustainable Development Act. 12 Chapter 10 of the Environmental Impact 13 Statement in fact does, in detail, go through the 14 potential impacts of the project and does compare 15 them to the requirements of the sustainable 16 development guidelines. 17 A point that's made in the brief 18 addresses the contention that was made by a 19 witness for one participant that somehow licensing 20 the expansion, approving the expansion would be 21 licensing an addition or an increment to the 22 project of the existing project which is 23 non-compliant with policy, non-compliant with the 24 sustainable development guidelines. And with 25 respect, I don't think that's the appropriate way 03780 1 of looking at the issue. 2 One can and should take the 3 sustainable environment guidelines and principles 4 seriously. As a matter of law, we have to. The 5 terms of reference under the authority of the 6 Minister says that the EIS has to consider it. 7 The terms of this reference for this panel says 8 that they must be considered. It's no question 9 that they have to be taken seriously. But it is 10 misguided to speak in terms of the status quo 11 being non-compliant with policy. 12 What are the Sustainable Development 13 Guidelines? They are ways of thinking, 14 deliberating and planning. They are important 15 factors that government decision-makers take into 16 account on a go-forward basis as they decide how 17 to deal with the world that is presented to them 18 and how they make it better. 19 States of affair are not compliant or 20 non-compliant with the policy. The way 21 decision-makers think about existing states of 22 affair and plan for the future can be compliant or 23 not compliant with policies. 24 Nature is not compliant with the 25 sustainable development guidelines. Nature keeps 03781 1 flooding the Red River Valley. Even after this 2 project is built, there will still be natural 3 flooding in Winnipeg beyond 1 in 700 and natural 4 flooding upstream more frequently than that. 5 So the question is -- well, before 6 saying that. As with statutory changes of all 7 kinds, the sustainable development guidelines are 8 not retroactive, they are not retrospective. As 9 with all statutes, you interpret and apply them on 10 a go-forward basis. 11 Now the broad principles involved here 12 include principle number 6. And principle number 13 6 of the sustainable development guidelines say 14 that one should consider the extent to which one 15 can rehabilitate and reclaim the environment. The 16 entire text of the principles and guidelines by 17 the way are reproduced in chapter 10 of the 18 Environmental Impact Statement. When the 19 statement goes through and explains in detail the 20 extent to which the project is or is not 21 compatible with these guidelines and principles, 22 it quotes in full the particular provisions of the 23 guidelines and principles that are contained in 24 the Sustainable Development Act and in the Water 25 Stewardship policies that also must be taken into 03782 1 account. 2 At page 10-4 of the Environmental 3 Impact Statement, the title "Rehabilitation and 4 Reclamation" is quoted from the Sustainable 5 Development Guidelines. And it says, 6 "Manitobans should endeavour to repair 7 damage to or degradation of the 8 environment and consider the need for 9 rehabilitation and reclamation in 10 future decisions and actions." 11 And as we said before, and as MFA has 12 taken very seriously in its planning, in the 13 course of carrying out this particular project, 14 it's reasonable to ask have opportunities been 15 identified, and where reasonably feasible, have 16 opportunities been taken advantage of to remedy 17 some of the impacts of the existing floodway? 18 Obviously the whole purpose of the project is to 19 make the floodway better, is to provide much more 20 flood protection, entirely consistent with the 21 Sustainable Development Principles. 22 But as Mr. McNeil will speak to you, 23 and I will visit again in the closing comments, 24 there are many ways in which it was found feasible 25 and practical to improve on some of the existing 03783 1 conditions in the floodway. Better erosion 2 protection, better transportation over the 3 channel, improved drop structures. To the extent 4 that was found to be scientifically and 5 economically feasible in the context of these 6 projects, those steps were done. 7 I would caution, however, and I'm 8 going to visit this point in more detail when I 9 make my closing remarks, that the Sustainable 10 Development Guidelines and Principles are a 11 different kind of norm than you'd find in section 12 16 of the CEAA. CEAA is a very focused, specific 13 legal standard. Focus is on the project itself, 14 the effect of the project itself and tests it 15 against a fairly well-defined and narrow but 16 nonetheless crucial standard. Have you made the 17 world worse in some significant environmental 18 respect? 19 You can evaluate that with a 20 reasonable measure of objectivity. Now judgment 21 is always involved and the case law says this. 22 It's the last point in our legal brief. When the 23 courts review how environmental assessment is 24 done, they say there is some judgment involved in 25 issues like scoping and that some deference will 03784 1 be played to responsible authorities who have to 2 make these kinds of judgment decisions. 3 Nonetheless, deciding whether a 4 project has had residual significant adverse 5 effects is much less of a contentious objective 6 policy matter than are addressing the very broad 7 principles and guidelines of the Sustainable 8 Development Act. 9 If you go through them and read them, 10 they are extremely broad and general in their 11 statement. They are not formulas. They are not 12 precise guidelines. Applying them necessarily 13 involves balancing. First principle; when you 14 make economic decisions, you take into account 15 environmental consequences. Second principle of 16 the environmental assessment principles; when you 17 make environmental decisions, you take into 18 account economic considerations. There's always 19 balancing of different considerations. 20 The question, therefore, has to be 21 within the constraints that's presented to a 22 proponent like MFA, have they paid reasonable 23 attention to these principles and guidelines? Is 24 the decision they made reasonable in light of 25 these guidelines and the fact that they are 03785 1 operating under constraints, economic constraints, 2 technological constraints? 3 You see this throughout the hearings. 4 Some people would be happier if there was more 5 deepening than widening. Other people have the 6 opposite position. People who have proposed more 7 ambitious measures, like Mr. Wayne Clifton, also 8 acknowledged that those measures seem to be 9 prohibitively expensive at this time. 10 It wouldn't be appropriate, and this 11 will be the burden I take up in my closing 12 remarks, for this panel to take its licensing 13 conditions, a particular position on how you can 14 feed these very broad and general principles into 15 the hopper with this panel with all due respect 16 deciding this is the right decision and that MFA 17 simply hasn't arrived at the same conclusion as 18 this panel might and, therefore, is wrong. It's a 19 test of whether MFA has acted reasonably in taking 20 these considerations into account in all the 21 circumstances, not the kind of precise, exacting, 22 demanding, more objectively verifiable standard 23 that you will find in the Canadian Environmental 24 Assessment Act. 25 So subject to any questions that this 03786 1 panel have, and I would be very happy to answer 2 them. In my closing comments, I'll go back to 3 this difference between the CEAA and the 4 Sustainable Development Guidelines in the context 5 of discussing licensing conditions. If I could 6 just have one minute to consult my colleague, I 7 just want to check whether I overlooked anything 8 or misstated anything? Thank you very much, 9 Mr. Chairman. 10 THE CHAIRMAN: Thank you, 11 Mr. Schwartz. I do have two or three questions, 12 perhaps more, I'm not certain yet. 13 I'd just like to turn I guess to your 14 comments on cumulative effects and ask you to 15 explain for me. The way I hear your definition of 16 cumulative effects, it doesn't mean much, 17 cumulative effects don't really mean anything. 18 But when I look at the EIS guidelines on page 5 of 19 the EIS guidelines, and this is standard language, 20 it says, 21 "Cumulative environmental effects of 22 the project that are likely to result 23 from the project when its effects are 24 considered in combination with the 25 effects of other projects." 03787 1 What does "in combination" mean to you or to -- 2 MR. SCHWARTZ: I'll take 3 responsibility for not explaining myself clearly 4 if I did not. I by no means think that cumulative 5 effects isn't very important, doesn't say 6 anything. I just think that it's a natural, a 7 logical part in doing your job properly in 8 determining all the effects of a project. You 9 haven't determined all the effects of the project 10 unless you've considered things like synergies 11 with existing conditions. That's a cumulative 12 effect. 13 How is this project different? How 14 are its impacts different because of the way it 15 interacts with what's there already or other 16 things that are going to be there? The point 17 isn't that it's not important to consider 18 cumulative effects. My point was a more modest 19 one. Even if you were not expressly told that 20 there is a cumulative effects doctrine, you should 21 be thinking about cumulative effects anyway 22 because you haven't, in effect, assessed all the 23 significant effects of the project unless you've 24 taken into account synergies and interactions. If 25 you've been naive to the fact that there's 03788 1 chemical B there when you introduce chemical A, 2 you have not assessed all the effects of the 3 project. 4 If you're just saying I'm just putting 5 another three metres of water in the channel, you 6 don't consider that's the three metres that 7 results in overflow, you haven't done your job in 8 assessing all the effects of the project. If the 9 straw breaks the camel's back, that straw is 10 responsible. 11 THE CHAIRMAN: I completely agree with 12 that thinking. But you know, in paragraph 17 of 13 your brief, you say that cumulative effects are 14 one subcategory of the incremental effects of the 15 project. And you say cumulative effects are not 16 simply the effects of the project plus the effects 17 of earlier or later projects. A project is not 18 responsible for the aggregate effect of everything 19 that comes before or after it. But you just 20 admitted that it is responsible for that final 21 straw. 22 MR. SCHWARTZ: It's responsible for 23 what difference it makes. The question is what is 24 the causal implication of adding the straw. If 25 the camel has got the flu and you add the straw, 03789 1 the camel has got the flu anyway. You can't blame 2 the straw. If the camel is suffering because the 3 load is too heavy, and the straw doesn't make any 4 difference, you can't blame the straw. But if the 5 straw makes a causal difference, it's that final 6 straw that breaks the camel's back, it does have a 7 significant causal impact, then you blame the 8 straw. And the people who are thinking of putting 9 on the straw better not put on the straw or they'd 10 better find a way to mitigate the damage or take 11 some of the existing load off the camel. 12 So no, the project is not responsible 13 for everything that aggregate has happened to the 14 environment. It's responsible for the way it has 15 changed the environment. And you don't know that 16 unless you've looked at existing conditions and 17 you don't know that unless you look at other 18 things. 19 So aggregate is different from asking 20 what the effect of this project is in combination 21 of things. Aggregate doesn't look adequately at 22 the concept of causation. You've got to figure 23 out what you can attribute causally to the 24 project. 25 THE CHAIRMAN: Okay, thank you. I'd 03790 1 like to move on to paragraph 27 in your brief and 2 you are citing from the Hamilton Wentworth case. 3 And the last line says, or the last couple of 4 lines. 5 "Characterized environmental 6 assessment as a decision-making 7 planning tool rather than as a project 8 impact assessment tool." 9 What does that mean? 10 MR. SCHWARTZ: When an environmental 11 assessment looks at existing conditions it's doing 12 so for a purpose, not to assess did this past 13 project have significant adverse effects as an end 14 in itself. That project has been done already. 15 It should have been assessed at the time or maybe 16 it didn't have to be assessed at the time because 17 the law didn't require it at the time. 18 As a planning tool, as a go-forward 19 tool, the reason you're looking at existing 20 conditions is not to assess them as such, it's to 21 understand and describe them to the extent 22 necessary to know how this project is going to 23 change the world. That's the intent there, to say 24 that on a go-forward basis, you ask yourself under 25 the laws that now exist, what is the causal 03791 1 implications of this project, not doing your job 2 in that respect, if you haven't understood 3 existing conditions to the extent necessary to 4 determine that causation and to determine the 5 significance of that causation. Again, cumulative 6 effects is part of that idea. You haven't 7 determined all the effects unless you have 8 considered interactions. But you don't go 9 backwards and assess rather than describe things 10 that have happened already. 11 THE CHAIRMAN: But this sentence seems 12 to imply that environmental assessment is not a 13 project impact assessment tool. 14 MR. SCHWARTZ: I understand. You 15 know, that actually is ambiguous. It would give 16 you the sense that we're not talking about -- 17 THE CHAIRMAN: I mean if we accepted 18 this premise, then we've wasted our time the last 19 four weeks, we don't need -- 20 MR. SCHWARTZ: You know, you are 21 right. The way that is phrased, it could give you 22 the impression that we are not assessing the 23 impact of this project. 24 THE CHAIRMAN: Exactly. 25 MR. SCHWARTZ: That's not what Justice 03792 1 Dawson means to say. What she's talking about is 2 we are not assessing projects that are taking 3 place already, she's certainly not saying we're 4 not assessing the impact of the project that's 5 under consideration. 6 THE CHAIRMAN: The way this sentence 7 is used here, it gives that implication, that we 8 don't need impact assessment in Manitoba or 9 anywhere. 10 MR. SCHWARTZ: Absolutely, yeah, 11 you're right. If we were taking that position, 12 we'd certainly be wasting your time and the 13 taxpayer's time. There's no question -- 14 THE CHAIRMAN: I'd be out of a job and 15 that would be drastic. 16 MR. SCHWARTZ: Absolutely. 17 MR. MOTHERAL: Would it not be better 18 stated as the project assessment tool, and as a 19 result, it becomes a decision-making planning 20 tool? 21 MR. SCHWARTZ: That's a fair 22 formulation. 23 MR. MOTHERAL: Yes. 24 THE CHAIRMAN: Now I'm looking at your 25 draft and it's paragraph 57, I guess it's 58 in 03793 1 your new version. And the last sentence. 2 "Sustainable development principles 3 and guidelines do not necessarily rule 4 out projects that have adverse effects 5 if the overall benefits outweigh 6 them." 7 Could you just elaborate a little, please? 8 MR. SCHWARTZ: Yes. The Canadian 9 Environmental Assessment Act itself has as its 10 core standard, its acid test, significant adverse 11 effects. The Canadian Environmental Assessment 12 Act also in its preamble adopts a principle of 13 sustainable development. 14 So here is a way of testing the 15 proposition I've just put forward. If a project 16 is found to have significant, unmitigated adverse 17 effects, does the CEAA, which itself accepts 18 sustainable development so you can never do it, 19 and the answer is no, it doesn't say that. What 20 the Canadian Environmental Assessment Act says is 21 sometimes we have very hard decisions to make and 22 they have to be made with extra care and scrutiny. 23 If after your mitigation measures you 24 discover that a project still has significant 25 adverse effects, you may be able to go ahead with 03794 1 it because despite reasonable efforts, despite 2 feasible efforts to mitigate and avoid it, it 3 can't be done feasibly. And some kind of social 4 good, could be health good, could be economic 5 development, it could be a variety of goods, 6 ultimately outweighs the fact that in at least one 7 dimension, there is some harm to the environment. 8 If we go back to the floodway, it 9 saved $8 billion, according to the evidence, in 10 damage to Manitoba since it was put in place. Did 11 it cause some adverse effects? Certainly, and 12 these are described in the Environmental Impact 13 Statement. Chapter 8 talks about all the ways in 14 which artificial upstream flooding has had 15 significant effects. 16 If we had to do it over again, is it 17 necessarily wrong that the floodway would have 18 been built even if people had realized at the 19 time, and may not have fully appreciated it until 20 about 1970, that it was going to involve 21 artificial upstream flooding, the same decision 22 might have been made. 23 Now certainly, in light of the CEAA, 24 before that decision is made, people would have 25 had to focus very clearly on whether they wanted 03795 1 to go ahead notwithstanding there might be 2 residual adverse effects in that respect. 3 But in the context of this expansion, 4 it's the position of MFA that we don't want any 5 likely significant adverse effects at all. But 6 what I'm saying is given these broad principles of 7 sustainable development, it would be less than 8 realistic to deny that there's going to be some 9 circumstances in which the standard of no 10 significant adverse effects in any dimension 11 simply can't be achieved. 12 Emergency measures frequently are 13 going to involve disruption, may involve adverse 14 effects. Hopefully this expansion, that's our 15 intention, isn't going to involve any but you can 16 understand circumstances where they might. You 17 quarantine people, people quarantined are going to 18 sustain adverse effects. You may be doing that 19 for a greater good. 20 So the point is certainly not that 21 significant adverse effects is okay. The two 22 bullets in the terms of reference in the EIS are 23 asking us to try our best and, in fact, achieve 24 the standard, if we at all can, of no significant 25 adverse effects. Certainly it's MFA's position 03796 1 that's been achieved with the expansion. 2 I really wanted to make the point 3 because there's been a lot of criticism of the 4 status quo, that it's not a self-evident 5 proposition that if we had to do it over again, 6 maybe it would have been somewhat better but it's 7 still possible that there would have been no 8 achievable way of doing the existing floodway 9 without significant adverse effects. 10 THE CHAIRMAN: Thank you. In the last 11 two paragraphs of your brief, which in the revised 12 version are 66 and 67, you note in paragraph 66 13 that courts will generally give deference to lower 14 decision-making bodies. And then in 66, or 67 in 15 your revised brief, you talk about the MFA having 16 retained independent expert consultants, et 17 cetera. To me, it sounds like you're asking us to 18 give deference to your experts but in fact, the 19 intention of judicial deference is to give 20 deference to a lower decision-making body. 21 MR. SCHWARTZ: I agree with your 22 conclusion but that wasn't my intention. In fact 23 I don't say that. The reason I say that is that I 24 don't intend to say that. There's a difference 25 between your role and that of the courts. The CEC 03797 1 is here to provide a searching and rigorous 2 examination. In the statute, it says that you can 3 retain expert advice. People are appointed to 4 this panel partly because they have expert advice. 5 Courts exist to people who are lawyers, may be 6 appointed for some other reasons as well, but 7 that's where their expertise lie. No question 8 that a reasonable government appointing people to 9 a panel such as yours would include people who 10 have technical expertise and there's no question 11 this panel does. 12 One of the reasons I raised the point 13 is the federal screeners are going to be reading 14 your report. There have been, at times, 15 aspersions cast on the integrity, the competence 16 and the thoroughness of the technical experts that 17 have been retained here. It would not be 18 inappropriate for this body to record what its 19 impressions are after reading the material, after 20 seeing these experts subjected to 21 cross-examination, for the benefit of federal 22 screeners, for the benefit of any courts that may 23 be considering what, based on the evidence, based 24 on the track record, based on how they responded 25 to cross-examination, based on the knowledge and 03798 1 measure of integrity you believe they showed, what 2 your impressions are in that respect. So that 3 there is a record and documentation in that 4 regard. 5 There is a saying that if the facts 6 speak for themselves, don't interrupt them. I 7 think the performance, throughout the EIS and 8 through this process, of the experts retained by 9 MFA who were, I believe, unquestionably allowed to 10 freely arrive at their own conclusions and report 11 them does speak for itself. I guess it doesn't 12 speak for itself in the sense that that federal 13 screeners in subsequent courts aren't going to 14 have the opportunity you've had to thoroughly 15 examine, scrutinize and see the performance of 16 those experts and it would not be remiss, if I can 17 understate it, if your impressions were duly 18 recorded in your report. 19 THE CHAIRMAN: In your presentation 20 this morning, Professor Schwartz, you noted or 21 made some reference to some of the comments made 22 in the Wuskwatim report. I would also note that 23 in the Wuskwatim report, we had a section 24 specifically entitled "Improving the process." 25 And we noted that in particular, that the 03799 1 Wuskwatim review was the first time that a major 2 project in Manitoba had been reviewed under the 3 current Environment Act. And we went on to say, 4 and I quote, 5 "Accordingly, the Commission believes 6 that there are opportunities for 7 improvement by both Manitoba 8 Conservation and the proponent in 9 terms of approach, methodology and 10 best practices." 11 And we also go on a little later to 12 say, 13 "The Commission believes that 14 requiring higher standards of 15 performance would enhance the practice 16 of environmental assessment in 17 Manitoba and make it more transparent 18 for Manitobans." 19 And I guess what we were looking for 20 at that time, and what we will continue to look 21 for, is environmental assessments that go beyond 22 meeting minimum legal standards. 23 And in fairness, this report came out 24 after the floodway EIS was filed. I'm not really 25 looking for a response, I just wanted to put that 03800 1 on the table to note that you can take some things 2 out of our Wuskwatim report that may apply here 3 but there are other things in the Wuskwatim report 4 that also will apply to our overall review of 5 Environmental Impact Statements. 6 MR. SCHWARTZ: I think your comment 7 that there are other things in the Wuskwatim 8 report is certainly appropriate. Just on the 9 question minimal legal standards, because I'm 10 going to revisit it again in the context of the 11 Environmental Assessment Guidelines, this is a 12 situation, and perhaps it's one of the pioneering 13 situations in which terms of reference and for 14 both the panel and the EIS have asked a proponent 15 to take into account the sustainable development 16 guidelines which certainly invite more searching, 17 more demanding thinking by the proponent than we 18 would have under the do no harm concept under the 19 Canadian Environmental Assessment Act. 20 In my closing remarks though, and 21 perhaps to some extent already, I want to caution 22 that it is appropriate not to go overboard about 23 that. That, yeah, you expect the proponent to 24 take into account these considerations. But it 25 wouldn't be appropriate in the context of an 03801 1 environmental panel to supplant in the context of 2 an environmental assessment all the kinds of very 3 difficult policy judgments that are involved in 4 deciding which project, which sequence and which 5 priority. 6 But I certainly think that this 7 project, I don't mean to suggest you were 8 suggesting otherwise, this assessment and this 9 process is taking into account the Sustainable 10 Development Guidelines and the Water Policy 11 Guidelines which go beyond, in many important 12 respects, the do no harm standards of CEAA. 13 THE CHAIRMAN: That's your opinion. 14 MR. SCHWARTZ: Pardon? 15 THE CHAIRMAN: That's your opinion 16 that it does that. We'll review that over the 17 next days and weeks. 18 MR. SCHWARTZ: Yes, that's right. 19 THE CHAIRMAN: Thank you. Any 20 questions, Barrie? 21 MR. WEBSTER: Yes. Mr. Schwartz, you 22 have indicated that the CEAA says that the 23 assessment is based on avoiding specific 24 significant adverse effects? 25 MR. SCHWARTZ: Commissioner Webster, 03802 1 which paragraph are you looking at? 2 MR. WEBSTER: I wrote a quote down 3 from what you said, in quoting something out of 4 your document, without going back to where it was. 5 MR. SCHWARTZ: Okay. 6 MR. WEBSTER: Now, clearly, we have 7 heard in the course of this set of hearings that 8 people's lives have been affected, that resources 9 have been impacted, and both of those arguably 10 could be associated with the existing floodway 11 rather than the expanded floodway? 12 Now, isn't it the fact that the 13 project which you so carefully have defined to us 14 as being what it is, that the way it's been 15 defined is the problem. In fact, that it's been 16 defined in such a way that those problems that we 17 have heard of, the things that we need to fix are 18 essentially, in your opinion, outside the scope of 19 what we should be considering? Isn't that the 20 problem? 21 MR. SCHWARTZ: For the purposes of the 22 test of significant adverse effects and all the 23 implications that's triggered, the terms, the 24 guidelines for the EIS and your terms of reference 25 incorporate the section 16 of the Canadian 03803 1 Environmental Assessment Act, which asks about the 2 incremental effect of the project. The 3 sustainable development guidelines that we were 4 quoting invite consideration of other 5 considerations like reclamation and 6 rehabilitation. 7 My submission was, and as Mr. Chairman 8 Sargeant says, it's for the panel to provide its 9 authoritative opinion on that, but certainly the 10 submission that I would make is those issues have 11 been seriously considered. And to the extent 12 that, in the judgment of the environmental 13 consultants and MFA working with the constraints 14 they have, they have made efforts that were 15 reasonable to try and identify ways in which the 16 world as it exists could be, and would have 17 existed anyway, could be made better in the 18 context of constructing this project, better 19 transportation across the channels, improved 20 erosion control, better flood protection for 21 people in Winnipeg and the immediate area, better 22 flood protection for people upstream. 23 Measures were proposed that would have 24 been more ambitious in that respect, at least they 25 were put to the table, sealing the floodway, 03804 1 repairing breaches to the aquifer. 2 The expert evidence that was provided 3 is those were considered and they were considered, 4 I would suggest, by people who are expert in the 5 area and did have an open mind to them, and found 6 to not be feasible at this time for scientific 7 reasons or for cost reasons. 8 But I don't think it would be a fair 9 characterization of what MFA has done, let alone 10 what MFA thinks, to suggest that MFA has not tried 11 to take into account ways in which effects that 12 would have continued anyway can be ameliorated. 13 There are limits, though, to what MFA 14 can do in that respect. MFA wasn't given an extra 15 half a billion dollars to put in pumps and 16 eliminate artificial flooding to one in 700. MFA 17 would not be opposed to that. But Federal and 18 Provincial Governments aren't likely going to 19 provide that half a billion dollars at this time. 20 MFA certainly considered, are we doing things that 21 are going to preclude even more ambitious 22 improvements later? And the submission of MFA on 23 a number of issues is, yeah, we've thought about 24 that and we're not. We're not addressing 25 recreational uses now, but we're not doing 03805 1 anything to make it more expensive and more 2 difficult to do that later. We're not doing 3 things -- if sealing the floodway is not feasible 4 now, expanding the floodway doesn't change the 5 fact that maybe at some other time a technology 6 will come up that would make that feasible. MFA 7 is doing, in its submission, the best it can with 8 the best expert advice it can get, with the 9 resources it has at this time, including with 10 respect to addressing principle 6 of the 11 sustainable development guidelines which is 12 rehabilitation and reclamation. 13 But even with respect to Winnipeg 14 there are limits to what MFA could do. MFA wasn't 15 given the resources to go beyond flood protection 16 of past 1 in 700. There's a limit to what MFA can 17 do with resources, and limits imposed by nature 18 and technological means available. 19 The fact that it hasn't done more is a 20 matter of indifference. It's not a matter of not 21 listening and it is not a matter of not caring. 22 Very significant upstream effects are fully 23 documented in chapter 8 of the EIS. There's no 24 punches pulled about some of the impacts of '97. 25 The trauma is recorded. As Mr. Cam Osler said in 03806 1 his evidence, people in fact have more difficulty 2 getting over the trauma when they are artificially 3 flooded, knowing that it was a human decision, 4 rather than natural flooding. These are not 5 things that the province or MFA were different to. 6 MFA has done, in our submission, the 7 best they can and the decisions they arrived at, 8 we submit, are reasonable in the context of those 9 principles, including principle 6. 10 MR. WEBSTER: I think the observation 11 that I make on that is that you excluded 12 discussion of summer operation, for instance, and 13 that's quite explicit. And that's where a lot of 14 the problems come in, in terms of upstream. 15 MR. SCHWARTZ: Sir, are you talking 16 about emergency or non-emergency summer 17 operations? 18 MR. WEBSTER: I'm talking about summer 19 operations that create artificial flooding, 20 whichever those are. 21 MR. SCHWARTZ: Well, the submission 22 again is not that MFA is indifferent to that or 23 dismissive of that. The submission is that this 24 expansion is not going to make emergency 25 operations in the summer more likely. In fact, it 03807 1 will make it less likely over the next five years, 2 except in 2005, in the very, very early stages 3 when bridges are being built. 4 It is not the intention of MFA, 5 despite the fact that there's going to be a lot of 6 damage caused, to operate in the summer even in 7 emergency situations. 8 Over the next five years, the 9 expectation by MFA is that there will be more 10 study done, building on the KGS study of 2003, on 11 implications of summer operations that will 12 provide more information, more study, more insight 13 into the impacts of both summer emergency 14 operation and summer recreational operation. 15 And although those factors can be 16 taken into account on a go-forward basis in 17 deciding in the future when and how to exercise 18 the discretion, and the more constraint discretion 19 that now exists with emergency operations, and 20 whether any fresh proposals should be made to 21 operate for non-emergency purposes. 22 THE CHAIRMAN: I have one more 23 question, and I think it's something that we have 24 wrestled with quite a bit, and I think many of the 25 people who have participated over the last four 03808 1 weeks have wrestled with is how we separate the 2 expansion from the new project. I mean, you are 3 asking us to consider just this project -- not the 4 new project, the new facility which will emerge 5 after this project is done. Now, we're being 6 asked to look at just this project. But in the 7 end there's going to be a new facility and how do 8 we separate that out? I mean, we are asked to 9 comment on and provide direction on the operation 10 of the new facility, but can we license the 11 project, the incremental effect, but not license 12 the old floodway? I mean, it's a bid absurd, but 13 how do we do that? 14 MR. SCHWARTZ: Conceptually, it's 15 certainly easy to understand why people wrestle 16 with this because there's not a sharp physical 17 separation between the new and the old, it's 18 integrated in the old. It's not like there's 19 another storey in a building and you say that's 20 new and that's old. 21 Conceptually, what is being assessed, 22 what is being licensed is the floodway, what's 23 being assessed is the incremental effects of the 24 expansion. 25 Licensing the expanded floodway 03809 1 doesn't mean we're going backwards in time and 2 saying everything that was done before was ideal 3 or proper or just. The principle of environmental 4 assessment is done on a go-forward basis, these 5 statutes aren't retrospective and retroactive. 6 The symbolic meaning people should not be taking 7 from licensing the new floodway is that this body 8 has gone back in time and said everything that 9 happened in the past is copasetic, or this body is 10 saying things couldn't have been done better in 11 the past. This body has a mandate to assess, for 12 the purposes of section 16, give its opinion about 13 the assessment of whether this project has 14 incremental adverse effects. 15 Functionally, I think one has to look 16 at each issue. And for groundwater effects, I 17 think the point has been repeatedly made, and MFA 18 fully accepts and endorses it that we have to make 19 sure there is enough monitoring to know on a 20 go-forward basis what the incremental effects of 21 the floodway are. MFA in its own self-interest 22 doesn't want to be blamed for impacts that would 23 have been taking place anyway, but certainly in 24 the public interest MFA wants as much information 25 as possible. 03810 1 Where there are borderline questions 2 and it's not possible in practice to separate the 3 new and old effects, for example, groundwater 4 contamination, it's my understanding that, from 5 the early evidence offered, that MFA would take 6 responsibility. It wouldn't say to somebody, 7 well, it's too hard for you to prove that this is 8 a new rather than old effect. MFA is saying we 9 will take responsibility for that. 10 But with many impacts, the fact that 11 there's no incremental effect is reasonably clear. 12 There will continue to be artificial flooding, but 13 I would suggest it's scientifically demonstrable 14 that there will be less artificial flooding after 15 the expansion than there was before, so there's no 16 physical pathway by which there is more upstream 17 flooding after as a result of this project than 18 there was before. 19 THE CHAIRMAN: Yesterday, Mr. Currie 20 gave us a case, I believe it was an Alberta 21 Environmental Appeal Board case, wherein it was 22 decided or ruled that you couldn't separate the 23 expansion from the original project, and that the 24 effects assessment in that case should look at the 25 entire project. 03811 1 You said earlier in your presentation 2 that you felt that the case law Mr. Currie gave us 3 was completely compatible with your argument, or 4 your submission. 5 MR. SCHWARTZ: What I believe the case 6 said -- I don't have Mr. Currie's brief with me -- 7 is we're going to license a facility period. What 8 it says for the purposes of environmental 9 assessment is, we assess the incremental impact of 10 the change in the facility, and we have to look at 11 things like synergies and antagonistic effects. I 12 believe those are the words used in the case you 13 are speaking about, Mr. Chairman, which is 14 precisely cumulative effects. 15 If you look at what already is and 16 what's going to happen is adding, making this 17 alteration, in combination with what's already 18 there, is it going to have synergist effects or 19 antagonistic effects which are worse or better 20 than you would have otherwise? 21 THE CHAIRMAN: Thank you. I have no 22 further questions at this time. I think we'll 23 take a short break, perhaps just 10 minutes right 24 now, and come back and have the final comments, 25 presentations. 03812 1 2 (Proceedings adjourned at 10:22 a.m. 3 and reconvened at 10:39 a.m.) 4 THE CHAIRMAN: Perhaps we can come 5 back to order. Mr. McNeil, are you up next? 6 MR. MCNEIL: Yes, I am, Mr. Chair. 7 Well, good morning, Mr. Chair, 8 Commissioners, advisors and staff of the CEC, 9 general public, elected officials, my own EIS team 10 and other people. For the next 40, 45 minutes or 11 so, I'm going to go through -- 12 13 (OFF THE RECORD DISCUSSION) 14 15 MR. MCNEIL: So my presentation this 16 morning, Mr. Chair and Commissioners, is I'm going 17 to go over the key summary statements about this 18 project. 19 You'll recall that on February 15th, 20 in our opening presentation, that I presented 21 these summary statements. I think they are 22 important, I think they are worth repeating, and 23 they are directly applicable to a lot of the major 24 topics and issues of this project that we've heard 25 about through the public hearing. 03813 1 First, the Floodway Expansion Project 2 is first and foremost a measure to prevent 3 potential environmental disasters. The primary 4 reason, as you have heard throughout these 5 hearings and as you've heard this morning, for 6 expansion of this project is to reduce the 7 frequency and severity of flood disasters. This 8 increased protection would reduce the accompanying 9 human injury, suffering, and even potential loss 10 of life. 11 Time is of the essence in proceeding 12 with this project. Delay in completing the 13 proposed expansion exposes Manitoba to grave and 14 avoidable risks. It's not a question of if a 15 severe flood will occur, but when. 16 One year's delay could result in a 17 catastrophic loss to Manitoba. The average annual 18 risk of damage from a flood exceeding the capacity 19 of the existing floodway is $75 million. A one 20 year delay in the construction of the Floodway 21 Expansion is $30 million. 22 Floodway Expansion will reduce the 23 risk of flood damage in Winnipeg from 37 per cent, 24 38, 39, they are all very close, to 7 per cent 25 over the next 50 years. That's an 80 per cent 03814 1 reduction. 2 To proceed now would not represent 3 undue haste, but rather through this rigorous 4 process that started over six years ago, we should 5 be proceeding. 6 The current design is a product of an 7 extensive process of public consultation. To 8 maximize the benefit of public input, while 9 avoiding delays, MFA adopted a proactive program 10 of public consultation. 11 There have been four rounds of public 12 meetings commencing in January of 2004. We also 13 met with non-governmental environmental groups, 14 municipalities, and other interested parties. 15 Public input has in fact resulted in a number of 16 major improvements to the project design, such as 17 the changes to the Seine River siphon inlet, 18 widening instead of deepening, drainage and drop 19 structure improvements, and the list goes on. 20 We have always been open to hearing 21 legitimate concerns and criticisms of the project, 22 and we are also committed to ongoing public 23 consultation beyond the environmental licensing 24 and approval processes. 25 The project has been chosen and 03815 1 designed with a view to achieving the productive 2 use of limited resources and within a context of 3 achieving regional fairness. Public authorities 4 are the source of funding for the project, and 5 choices must always be made in light of the fact 6 that there will always be more demand for public 7 funds than supply. 8 Money spent on one kind of flood 9 protection may not be available for another. And 10 flood protection projects compete with other 11 demands such as health care and education. The 12 choice among possible flood protection measures 13 has also been guided by a desire to treat all 14 regions and residents fairly. The Floodway 15 Expansion Project has been guided by a concern 16 that expenditures should have a positive return on 17 that investment. It might be possible to continue 18 the floodway all the way to Lake Winnipeg or start 19 it further south at Ste. Agathe or modify the 20 entrance lip to the floodway, but through these 21 hearings and through our documentation we have 22 demonstrated that the cost would greatly outweigh 23 those benefits. 24 Floodway expansion might cause minimal 25 increased water levels on rare occasions north of 03816 1 Lockport, and these will be fully mitigated by 2 protection measures as well as, if necessary, 3 compensation. 4 Residents in Winnipeg will certainly 5 benefit from greatly increased flood protection as 6 a result of this project. But the project itself 7 will reduce the frequency and severity of 8 flooding, including artificial flooding south of 9 Winnipeg, over and above the existing floodway. 10 Residents of all of Manitoba will benefit from 11 Winnipeg's ability to continue to operate 12 unimpaired, which frees up resources and attention 13 that can be devoted to assisting those in other 14 areas; for example, those who are evacuated from 15 flood zones and those who require temporary flood 16 protection measures and assistance to work on 17 those. 18 A major aim of the project has been to 19 ensure that the expansion achieves its positive 20 aims without causing significant adverse effects 21 on the environment. Provincial and federal 22 regulatory standards must be satisfied to proceed 23 with this project. And the EIS has been created 24 by experienced, independent, and expert 25 specialists in environmental assessment and MFA 03817 1 has adopted their conclusions. 2 We have never interfered with the 3 professional judgment of our environmental 4 consultants, and we have not directed their 5 conclusions nor challenged any conclusion they 6 have reached. 7 The Floodway Authority has adapted its 8 project design to ensure that the concerns raised 9 by environmental consultants have all been 10 addressed. And we have accepted the independent 11 and expert judgment of our environmental 12 consultants on all issues related to significance 13 and related to likelihood. 14 We have consistently sought to create 15 and adapt the project design so that a reasonable 16 and informed person can be confident that there 17 are not likely to be significant unmitigated 18 adverse effects as a result of this project. 19 We have also provided some extra 20 safeguards against adverse effects that are 21 unlikely or unanticipated or unpredictable, and we 22 have provided an environmental mitigation fund for 23 that purpose. 24 We respectfully submit that in light 25 of all the technical studies and public input, 03818 1 that we had been able to craft a design that is 2 fully compatible with the federal standards under 3 the Canadian Environmental Assessment Act, as well 4 as the provincial standards under the Environment 5 Act. 6 Now, I'd like to move into an area of 7 the major topics around this project that we have 8 presented and we have also heard through these 9 public hearings over the last three and a half 10 weeks. And those topics are flooding in general, 11 more specifically artificial flooding, 12 groundwater, drainage, recreation, the City of 13 Winnipeg projects, ice jams and public 14 consultation. 15 When we looked at flooding for this 16 situation, the existing floodway, the expanded 17 floodway, we looked at four distinct flood events. 18 The 1 in 90 year return frequency flood event 19 represents the event that with the existing 20 floodway you would not go above the state of 21 nature upstream of the city. The 120 year event 22 represents a flood that you would not go above the 23 state of nature with the expanded floodway. The 24 225 year event is the capacity of the existing 25 floodway, albeit not to a secure situation. And 03819 1 the 1 in 700 year event is the designed event for 2 the expanded floodway that is a secure project, 3 and protection. 4 What I'm going to do now, and bear 5 with me, I have a few graphs that I'd like to go 6 through, not all of them have you seen in these 7 proceedings, but they are certainly all in 8 evidence that has been submitted as part of this 9 project. 10 This particular graph represents the 11 area downstream of Lockport. So on the right-hand 12 side of the graph is right around the St. Andrew's 13 lock and dam; left-hand side of the graph is 14 Breezy Point. On the vertical axis is elevation 15 in feet above sea level, and on the horizontal 16 axis is the distance, starting at zero at Lockport 17 going to 16 miles to Breezy Point. 18 What we're showing in the brown line 19 that varies in elevation, and I'll call it a very 20 technical term, the squiggly line, is the 21 approximate prairie level or ground elevation at 22 top of bank. We have three other lines on here 23 with two shades of colour. We have a red, and 24 it's hard to see a pink line very close to it, we 25 have two shades of a blue line, and we have two 03820 1 shades of a green line. And these are three 2 different water surface profiles of three 3 different flood events. We have the 1997 flood in 4 red, we have the 225 year flood in blue, and the 5 700 year flood in green. 6 What we're trying to demonstrate here 7 is that with this project, with the expansion, 8 what effect does that have on water levels 9 downstream of the outlet? And basically the 1997 10 flood, if there was a repeat of it, the expanded 11 floodway would create a water level that you 12 probably couldn't even measure. We're indicating 13 here from the models .05 of a foot higher. With 14 the 225 year event, the expanded floodway would 15 increase that water level from the existing 16 floodway by as much as .3 of a foot. And the 17 major difference, or the maximum difference for 18 the 700 year flood, the expanded floodway would 19 create at Lockport almost a foot higher water 20 level over the existing floodway. By the way, 21 that diminishes to about .4 of a foot at Selkirk 22 and .1 of a foot at Breezy Point. 23 We have recently concluded LIDAR 24 surveys in the region to the north and west of 25 Winnipeg. You saw a graph yesterday that 03821 1 indicated the 1826 flood was believed to have 2 broken out to the northwest, and then get back 3 into Lake Winnipeg in the Netley Creek area. 4 Through topographic surveys and 5 through this LIDAR survey -- and by the way, LIDAR 6 stands for light detection and ranging. It's a 7 radar, it's done by helicopter, it's very 8 accurate. And through that we were able to 9 determine that, yes -- oh, in addition to using 10 the MIKE 11 hydraulic model, we were able to 11 determine that historically for a large flood of 12 the magnitude of 1826, that water does break out 13 of the Red River bank somewhere in the vicinity of 14 Scotia Street and heads off to the northwest and 15 gets back to Lake Winnipeg. But what the results 16 of that analysis have shown is that it's not much 17 water compared to what the river still carries 18 through. 19 What does that mean? It means that 20 the natural water level for the 700 year flood is 21 still higher than the 700 year flood level with 22 the expanded or the existing floodways. 23 So if our floodway project has an 24 impact, a one foot increase of water level, that's 25 a direct impact as a result of this project. But 03822 1 it's below natural. So the Red River Floodway Act 2 would not apply in that instance. And that's why 3 the Floodway Authority has indicated that we will 4 ensure that those properties that are affected as 5 a direct result of this project will be mitigated 6 and, if necessary, compensated. 7 And please, Commissioners, I'm going 8 through a lot of detail in some of these slides. 9 If you wish to stop me now, I'm welcome to it. 10 My next slide is the natural rating 11 curve, or the rating curve rather, and the rule 12 curve as we call it for both the existing and the 13 expanded floodway. And this curve is very 14 important. And there is a lot of information on 15 this curve, so it's going to take me a few minutes 16 to go through it all. 17 Let me just explain, first of all, 18 what we're showing here. So the title is Red 19 River discharge at James Avenue under natural 20 conditions -- or rather, sorry, that's a 21 description of the X axis. And at the top we have 22 cubic feet per second, and at the bottom we have 23 cubic metres per second. And on the vertical 24 axis, we have elevation. And on the left-hand 25 side, it's in metres above sea level. And on the 03823 1 right-hand side, it's in feet above sea level. 2 And what this demonstrates is what the water level 3 would be at the inlet control structure just 4 upstream of it, for both the natural state, i.e. 5 no flood protection infrastructure exists, no 6 floodway, no primary dykes in the city, no 7 Shellmouth dam and reservoir, and no Portage 8 Diversion. And it also shows what the water 9 levels would be when you use the existing and the 10 expanded floodways. 11 So first of all, on the first segment 12 of the rating curve, under Rule 1 of the operating 13 rules, or the program of operation for the 14 floodway, the water level upstream of the inlet 15 control structure with the use of the gates would 16 follow the natural curve. And what that means is 17 that as the water is being split between the 18 floodway and the Red River through Winnipeg, the 19 gates are operated in such a way that all the 20 benefit is to Winnipeg, i.e., a lower water level, 21 but that we are maintaining the water level on the 22 upstream side to what the natural level would be. 23 You can do that only so long, or for 24 certain sized floods. And for a 1 in 90 year 25 flood, then you have to switch to Rule 2. You 03824 1 have to raise the gates, you artificially flood 2 their area upstream, and you maintain a water 3 level in the city two feet below the primary dykes 4 or 24.5 feet James Avenue. 5 In 1997, it was a 100 year flood, and 6 the natural, the knee in the curve to go from 7 natural to artificial is the 90 year flood. So 8 the province operated the floodway in such a way 9 that there was two feet of artificial flooding 10 right at the inlet control structure at the peak 11 of the '97 flood. 12 If we had gotten a bigger flood in 13 1997, then the floodway would be operated in such 14 a way that the water level upstream would continue 15 to rise. It would rise to approximately 772 and a 16 half feet above sea level for a 120 year event. 17 And then you would get, eventually, if the flood 18 was big enough, as big as a 225 year event, you 19 would reach this elevation of 778 feet above sea 20 level. 21 At that point you reach the top of 22 Rule 2 and the start of Rule 3. The rules state 23 that if a flood is bigger than a 225 year flood 24 and if you were to continue raising the gates, you 25 would end up with water levels that exceed the 03825 1 778. And the Rule 3 states you can't allow that 2 because you could get to a point where you would 3 overwhelm the capacity of the inlet control 4 structure, and the West Dyke, have overtopping of 5 those structures, damage to those structures, and 6 catastrophic and uncontrolled flooding in the City 7 of Winnipeg. 8 How do you deal with all this extra 9 water then? You start lowering the gates. You 10 maintain that water level upstream at 778 so you 11 don't have damage to your flood control 12 infrastructure. And one of the biggest reasons is 13 if -- you don't get over into this situation, but 14 you want to be able to retain control of the flood 15 on the receding limb of the hydrograph. So when 16 the water level starts to lower again, you then 17 can get control because you haven't lost your 18 facility. 19 What happens in Winnipeg is you get 20 controlled flooding. But we know where the water 21 goes, we have topographic data, there is a flood 22 control manual, and there would have to be planned 23 evacuation if that event was forecast. 24 The reason this part of the graph goes 25 off in a dotted area is you get to a point, if the 03826 1 flood is big enough, that you just can't get 2 enough water through the inlet control structure 3 to maintain at 778. So then there would be the 4 uncontrolled rise of the water level upstream of 5 the city. And with the current floodway, that 6 would be for a flood in and around 700 year or 7 greater. 8 Now let's talk about the expanded 9 floodway. The blue line now represents the curve 10 and the elevations that would be followed as 11 floods increase from the 120 year up to the 700 12 year. So with the expanded floodway, you have 13 more capacity in the expanded channel, you can 14 therefore maintain natural from the 90 year to the 15 120 year flood. But once you get to the 120 year 16 flood, in order to protect Winnipeg and keep the 17 water level in the city two feet below the primary 18 dykes for any flood bigger than the 120 year, you 19 therefore then have to keep raising the gates, and 20 then you start into artificial flooding upstream. 21 And that's what the blue curve follows here. 22 Now, the design of the Floodway 23 Expansion Project is for a 700 year capacity, 24 firm, secure, capacity. After that point, 25 similarly with the existing floodway at the 225 03827 1 year, with the expanded floodway we reach the 2 capacity of the floodway, and with a bigger flood 3 the gates would have to be lowered and there would 4 be controlled flooding in Winnipeg. It's 5 estimated, and we don't show a return period here, 6 but the point at which you can't send any more 7 water to the city and the water levels would rise 8 above 778 with the expanded floodway is estimated 9 to be somewhere between a 1,200 and 1,500 year 10 flood event. 11 THE CHAIRMAN: Just remind me what the 12 elevation is of the top of the primary dykes in 13 the city? 14 MR. MCNEIL: They vary of course 15 because they follow the slope of the river. They 16 were built originally to 26.5 in 1950, James 17 Avenue, and they have been increased through 18 temporary measures in the 1956 and '66 floods. 19 And in 1980, the legislation required that the 20 primary dykes after that point be built to 27.8. 21 But they are not all at that. It varies 22 throughout the city. 23 THE CHAIRMAN: What's that elevation, 24 what's 227.8 above sea level? 25 MR. MCNEIL: Well, about 755 or 03828 1 thereabouts. 2 THE CHAIRMAN: It is about 755, 3 thanks. 4 MR. MCNEIL: 727.57 is 0 James, so 5 727.57 feet above sea level is James 0, and 6 generally is normal river ice level, and then add 7 the 27.83 feet actually for the flood protection 8 level. 9 THE CHAIRMAN: Thank you. 10 MR. MCNEIL: But the primary dykes 11 were originally built to 26.5 feet. 12 I want to just point out a couple more 13 things before we leave this graph. I've got two 14 horizontal lines. I've got a solid blue or purple 15 line, and it's at approximately 768 feet above sea 16 level. And this is the elevation to which people 17 were required to build their dykes to, or flood 18 protection to in the valley following the 1979 19 flood. So '79 flood, peak water level at the 20 inlet control structure plus two feet is 21 767.4 feet. 22 And that's exactly why the Turnbull 23 Drive Dyke, the association is called the 768 24 Association. They have built that dyke around 25 Turnbull and Red River Drive to meet this flood 03829 1 protection criterion. 2 So they had that flood protection and 3 it was sufficient until the 1997 flood hit. And 4 the 1997 flood peak level was 771 and a half feet 5 above sea level. And following the flood, and 6 this is where the $110 million went into, the 7 province and the federal government had a program 8 to increase the flood protection of properties 9 south of the city, primarily. If you were 10 eligible north of the city, you could also access 11 those funds, but the funding went primarily to the 12 south of the city. You are required to build at 13 the inlet control structure to 773 and a half 14 feet. So they got an increase of approximately 15 six feet in flood protection. 16 So that's what this black arrow shows, 17 is that with that $110 million, they got their 18 protection increased to this point. With the 19 floodway expansion, they also get additional 20 protection. So at the 225 year event, instead of 21 a 778 water level, they would see approximately 22 776 feet. And they are sitting at almost 774. So 23 it's reasonable to expect for that rare event, 24 that additional protection in the form of sandbags 25 or earth fill could be placed on the ring dykes, 03830 1 the community ring dykes, the individual ring 2 dykes and the mounds in the valley to protect to 3 the 225 year event. 4 And I think you've heard too that a 5 lot of people actually raised their flood 6 protection to higher levels permanently. 7 Now in the 700 year event, it gets a 8 little bit more dicey. You've got about four and 9 a half feet of water above your flood protection 10 level. If you want at least two feet of 11 freeboard, then you're looking at six and a half 12 foot high sandbag dyke. So a recent study at the 13 University of Manitoba that was funded from the 14 Federal/Provincial flood proofing program, they 15 determined that six, six and a half foot dyke is a 16 safe temporary measure. In the valley and in the 17 city, you saw dykes of 12 feet which were 18 literally scary. 19 So for these rare events then, the 20 people of the valley do have better protection as 21 a result of both the flood proofing program and as 22 a result of the expansion project. 23 Now, this situation is right at the 24 inlet. It gets better as you move south. 25 What I'm going to do is, I'm going to 03831 1 go through these graphs fairly quickly. They are 2 not as busy. But, again, we have elevation on the 3 vertical axis and distance from the inlet 4 structure at the left to Emerson, Manitoba, the 5 U.S. border on the right. What we're showing is 6 the brown squiggly line is again top of bank or 7 average prairie ground elevation, and the red line 8 in this instance is the expanded floodway water 9 surface elevation for the -- oh, you know what, I 10 missed one. Here we go -- for the 90 year event, 11 same graph, I'm going to show it to you four times 12 for the four different flood levels. 13 So here we see with the 90 year event, 14 which is just below the actual 1997, the red line 15 represents the water surface from Emerson on the 16 right all the way to the inlet control structure. 17 And for this event, it's coincident for both the 18 existing and expanded floodway. In other words, 19 at this level of flood, the expanded floodway 20 doesn't provide any benefits. And it's partly 21 related to how, the fact that we're still in Rule 22 1. The little ticks or blue lines that you see 23 throughout this graph are the flood protection 24 levels for various locations in the valley, that 25 are a requirement now as a result of the 1997 03832 1 flood. So those little ticks would be at least 2 two feet above the 1997 water profile in the 3 valley. Some are higher because they are actually 4 not right along the main channel. This, for 5 instance, would be Brunkild, Manitoba or Avonlea 6 Corner. It's a little further west. But in 7 general, everybody is in better shape as a result 8 of the program since the 1997 flood for a 90 or 9 for a 100 year event. 10 Let's look at the 120 year event. 11 Again, the existing and expanded floodway follow 12 the red line from Emerson to Ste. Agathe. But 13 then that's where we see a separation. The 14 existing floodway would cause higher water levels 15 because we're now just reaching the -- we're into 16 Rule 2. The expanded floodway is still at the top 17 of Rule 1. And because of the capacity of the 18 floodway, you would see a difference in a water 19 level, a lower water level in this reach. 20 And I'm going to show you a little 21 later the differences with the artificial 22 flooding. This is actually showing existing 23 floodway in the blue versus expanded floodway, but 24 part of this is artificial flooding. 25 Go to the next slide, 225 year event. 03833 1 Again, existing floodway in blue and expanded 2 floodway in red. And actually on the previous 3 slide, you see that with the protection to the 100 4 year event, that it was afforded the valley, and 5 with the expanded floodway then they have more 6 freeboard available to them. 7 Now, with the 225 year event, both the 8 existing and the expanded floodways will be above 9 the protection in the reach from Aubigny to the 10 inlet control structure. But for that event, 11 temporary measures could quite readily be put up 12 to protect with the expanded floodway to save 13 those communities. 14 And now with the 700 year event, the 15 water surface profile is coincident for both the 16 expanded and the existing floodways, because we 17 control the elevation to 778 at the inlet. What 18 those previous graphs show you is the limit of the 19 influence of the floodway on water levels, 20 basically, and that ends right around Ste. Agathe. 21 Okay. Let's talk about artificial 22 flooding. There is two components, spring 23 operation and non-spring or typically summer 24 operation. You have heard that artificial 25 flooding goes all the way to Emerson. That's just 03834 1 not true. Through all our computer analysis, we 2 have demonstrated that the limit of artificial 3 flooding is at Ste. Agathe for the 700 year flood. 4 It creeps closer to Winnipeg for the smaller 5 events, but we're talking about 700 years because 6 that's the design flood that we're aiming for with 7 the Floodway Expansion Project. 8 All the other flooding south of Ste. 9 Agathe, and if you want to be conservative, south 10 of Aubigny, is natural flooding for that event. 11 And as you saw, and maybe I'll just go back there 12 for a minute, even with a 700 year event between 13 Aubigny and Emerson, because of that $110 million 14 spent in the valley, most of those communities and 15 individual houses are certainly in much better 16 shape today than pre 1997, because the water 17 surface profile doesn't change a whole lot for all 18 those big floods in the valley. And so some of 19 them may have to be topped up like at Letellier 20 and possibly at Aubigny, but for most part they 21 are in good shape because of that program. So 22 even though the program was aimed at protecting 23 people to '97 plus two, because of the water 24 surface profile for bigger floods in the valley 25 south of Aubigny, they are actually afforded 03835 1 higher levels of protection. And I think that's 2 important to keep in mind. 3 So, as I mentioned, artificial 4 flooding for the 700 year event occurs between the 5 inlet and Ste. Agathe. It's not insignificant 6 right at the inlet, it's 1.7 metres, but that 7 diminishes to 0.9 metres at St. Adolphe and 0.5 8 metres at Ste. Agathe. Again, no artificial 9 flooding south of Aubigny. 10 Now, people have talked about 11 alterations to the project to try to prevent 12 artificial flooding. 13 THE CHAIRMAN: Could I just interrupt 14 for a second? And perhaps you might go back one 15 slide? I think earlier in testimony when somebody 16 asked about the length, or the upstream length of 17 artificial flooding in a 700 year flood, you said 18 it would go to Morris. Today you're saying 19 Aubigny. 20 MR. MCNEIL: Actually, I guess my 21 answer was in relation to why did the study area 22 for the EIS only go to Morris? 23 THE CHAIRMAN: Okay. 24 MR. MCNEIL: So people have suggested 25 alterations to the Floodway Expansion Project to 03836 1 try to eliminate or reduce artificial flooding 2 upstream of the inlet control structure. And in 3 answer to those questions, we have indicated that 4 it's not economical, and in some cases, certainly 5 not practical to eliminate artificial flooding. 6 For those people that already have a 7 ring dyke around their house that may reach the 8 top of their windows on their main floor, or maybe 9 even their eaves, can you imagine adding six or 10 seven feet to that? Is that practical? I'm not 11 saying it can't be done in the future. Certainly, 12 a lot of these things can be done in the future, 13 and the project doesn't preclude them. But it was 14 suggested to expand the floodway at a cost of 15 $500 million of additional cost to the already 665 16 to eliminate that artificial flooding. That would 17 require channel deepening, which is against our 18 principle now to have zero tolerance to impacts to 19 groundwater downstream. 20 Since it doesn't seem practical or 21 economical to take a physical, or to use physical 22 means to reduce or eliminate artificial flooding, 23 the province has taken the responsibility for that 24 future artificial flooding by passing the Red 25 River Floodway Act. And yes, it's not yet 03837 1 proclaimed. The province is working on the 2 regulations. 3 The Red River Floodway Act is seen as 4 an insurance policy. We don't know when the 5 artificial flooding will occur, and it's 6 infrequent and an unpredictable event. But the 7 Red River Floodway Act will provide residents with 8 full compensation. Property and land damage, as 9 well as economic losses will be covered. There is 10 no deductible, as compared to private insurance, 11 and no annual premium. And it's paid on proof of 12 loss rather than proof of repair. 13 So your recommendations as a panel on 14 this matter of the Red River Floodway Act could be 15 important to the government for the development of 16 those regulations. 17 So with artificial flooding 18 non-spring, this is not part of the baseline -- or 19 sorry, I've done that a couple of times, haven't 20 I -- this is part of the baseline, as it would 21 occur without the project. As Professor Schwartz 22 indicated earlier, there is nothing that we are 23 doing with this project to enhance non-spring 24 flooding and nothing about non-spring flooding 25 will take away from the project itself. 03838 1 There has been work suggested to 2 reduce artificial flooding, such as lowering the 3 lip or again deepening the channel. And I think 4 it was demonstrated yesterday that these aren't 5 deemed to be cost effective as compared to buying 6 out market gardeners and/or providing 7 compensation. 8 Artificial flooding in the non-spring 9 situation is very unlikely to occur during the 10 Floodway Expansion Project. And that is because 11 the costs of delay of floodway expansion will 12 likely exceed the benefits of that emergency 13 non-spring operation. However, expansion 14 construction scheduled to start in mid-July could 15 allow for, if there was a necessity under Rule 4, 16 that operation to occur in June or July of this 17 year. So we're really, in the next few years, 18 we're really only talking about rule 4 possibly 19 being used in early summer of this year. 20 Your recommendation on this matter 21 could be important to government in relation to 22 the studies that it has already been indicated 23 will be undertaken, such as those related to 24 riverbank, fish passage, road access and wildlife. 25 So I'm finished with the flooding 03839 1 section now. I'm going to move on to groundwater. 2 These next few sections aren't as long as the 3 flooding section. 4 So this project in the EIS is 5 determined that there will be no adverse effects 6 on groundwater from the expansion project. And 7 there's been a lot of discussion on the analysis, 8 on the monitoring, on the modeling and whatnot. 9 And Manitoba Floodway Authority has a zero 10 tolerance approach on the impact to groundwater 11 quality. We have demonstrated this in some of the 12 design changes that we have already incorporated 13 into the project. For example, reinstating the 14 eroded areas of the low flow channel, and then 15 placing riprap in those erodible areas to prevent 16 that erosion in the future, and widening instead 17 of deepening. 18 We're going to conduct water quality 19 monitoring. In fact, some of it starts on Monday. 20 We have backup mitigation plans, and we've got the 21 environmental mitigation fund. And we have 22 mentioned that that's an $11 million line item at 23 this point in time in the budget, and if it needs 24 to be increased, it will. 25 So the expansion project will address 03840 1 the groundwater quality concerns that exist today 2 and we're going to improve on that current 3 situation. We're going to reduce potential water 4 intrusion in areas of sensitivity. We're going to 5 provide greater monitoring and testing of water 6 quality. And we're going to have the ability to 7 remove surface water from the aquifer if intrusion 8 occurs. And you heard some discussion about the 9 sentinel wells that can be used for monitoring but 10 also can be used for removing water. 11 We're doing detailed monitoring and 12 testing during flood events. And you know that 13 the floodway, you've heard this before, two out of 14 every three years the floodway is used in the 15 spring. So while we're doing our monitoring 16 program, there is a good chance that there will be 17 water in the floodway. And as mentioned 18 previously, we are developing our mitigation 19 protocols and we've got our environmental 20 mitigation fund in case we need it. 21 The project monitoring that we are 22 undertaking is going to compliment the regional 23 groundwater study that the Minister announced last 24 month, and we'll be working with the other 25 provincial offices on that study. 03841 1 A lot of talk lately about the health 2 risk model from some of the experts, and as 3 demonstrated yesterday or the day before, a health 4 risk model looks at all the sources and the 5 pathways and the receptors. And there are a lot 6 of sources with associated pathways. But what we 7 looked at, what we are concerned about is the 8 source of water in the floodway and the pathway to 9 the well system. And our groundwater mitigation 10 plan will deal with that pathway. 11 Now, what's interesting and what 12 struck me when I was reviewing my slides is that 13 each one of these other sources actually can occur 14 in our source, but that's not where we're getting 15 at here. What we're getting at is that that 16 groundwater system has a potential for sources 17 that are near and far from the floodway, gravel 18 pits up on Garven Road, lagoons out miles east of 19 the floodway, agriculture and land drainage east 20 and far east of the floodway, and the Red River 21 west of the floodway. These are all sources that 22 could find pathways into the groundwater system. 23 Moving on to drainage. Because of 24 widening, we have to replace most of the drainage 25 drop structures on the east side of the floodway, 03842 1 and we're going to improve those structures to the 2 current standard, the 1 percent standard. And by 3 the way, that 1 per cent standard is greater than 4 anyplace else in the province for drainage. You 5 heard some of the experts indicate it's generally 6 10 per cent, and we're doing it based on today's 7 hydrology. 8 Because we're going to design the 9 drains to the 2 per cent standard within our 10 right-of-way leading up to these drop structures, 11 it requires an automatic lowering of the inlet 12 weir to those drop structures, and that's an 13 improvement. 14 You have heard some sustainable 15 development proposals for lowering these weirs 16 further, or at least making provision for that. 17 You have also heard that additional structures 18 should be placed on the floodway to deal with 19 drainage. We are committed to reviewing these 20 proposals during detailed design with the 21 stakeholders. 22 On recreation, the project deals with 23 existing authorized recreation. And, for example, 24 the design and construction of this project will 25 avoid impacting on the existing Spring Hill ski 03843 1 hill operation. We moved the floodway to the 2 opposite side to avoid constructing in the 3 vicinity of the Spring Hill ski hill, and we will 4 ensure that construction doesn't interrupt their 5 operation. Another one, maybe a little less 6 significant, is we're going to avoid disrupting 7 the current authorized activity of Lockport 8 Children's Festival. 9 What's not part of the project is the 10 new opportunities, and you have heard a lot about 11 that. But the project will not preclude these 12 potential concepts from being planned, designed 13 and implemented in the future. However, we're not 14 going to authorize any proposals that would have a 15 significant adverse effect on the environment. We 16 agree with the proponents that concepts should be 17 and will be properly planned and implemented, but 18 it doesn't necessarily have to be the 19 implementation this year. As I have indicated 20 previously, I see the trail development 21 specifically as a landscaping item, and a 22 landscaping item comes at the end of the project. 23 A recreation plan will be developed 24 with the stakeholders over the next several 25 months. And our next step, as we've indicated, 03844 1 will be to establish a working group with all the 2 stakeholders and we will be leading that. 3 City of Winnipeg projects. City 4 engineers made a presentation and they agreed that 5 they can protect the city with temporary measures 6 against the one in 700 year flood backwater from 7 the outlet; albeit, temporary measures are more 8 risky than permanent works, and as a result we are 9 committed to continuing discussions with the city 10 regarding an infrastructure upgrading program for 11 their primary dykes and their sewer related works. 12 Ice jams. The analyses undertaken by 13 MFA's consultants and reviewed by your independent 14 expert demonstrate that the existing and expanded 15 floodways have no impact on ice jamming. 16 And my last slide, public 17 consultation. We have talked about groundwater 18 committees, meaning that at each of the bridge 19 sites, we want to have involved the residents in 20 the local area so that they are aware and can 21 provide us with input with respect to dewatering 22 at the bridge sites. There may be other locations 23 like the city's aqueducts. But, overall, we want 24 a publicly liaison committee for the entire 25 project. And we're going to have to get going on 03845 1 that committee soon. As we work through some of 2 the issues related to groundwater monitoring, we 3 want to continue and have regular meetings with 4 the municipal representatives throughout this 5 project. 6 We also envision public meetings and 7 open houses as we carry on with the design and 8 construction of this project. And we will 9 maintain our website so that people can be 10 updated, as they wish, from the comfort of their 11 home about aspects of this project. We will 12 continue with our 1-800 number for our rural 13 people to phone in and leave messages, and you can 14 expect that we will also carry on with other 15 documentation like news releases. 16 Thank you very much. 17 THE CHAIRMAN: Thank you, Mr. McNeil. 18 I have one question, and I think it's a classic 19 better late than never question. You talk, and 20 we've heard this a number of times through the 21 last few weeks about this $75 million annual risk 22 of damage from flooding. Just what does that 23 mean? Is that an actual cost to the economy or is 24 that just sort of the aggregate risk that would 25 happen if we didn't have -- 03846 1 MR. MCNEIL: Yeah. It's based on 2 looking at and predicting all the floods that 3 would occur over the next 50 years, and then 4 looking at the damages as a result of those floods 5 and then bringing it to an annualized value. Now, 6 as you know, if any one of those big floods that 7 exceeded the capacity of the flood protection 8 system was to occur, without the expansion, that 9 the immediate cost would be in the billions of 10 dollars. So this is an average annual cost of all 11 the damages that could occur over the next 50 12 years. 13 THE CHAIRMAN: And just sort of a 14 final comment on your last slide in and the 15 publicly liaison committee. I think just from 16 what we've heard here the last few weeks, I would 17 hope that, without making the main committee 18 itself unwieldy, I would hope that there's a 19 possibility for as broad a base of public 20 participation as possible. 21 MR. MCNEIL: That's what we're hoping 22 for, Mr. Chair. We haven't looked at the details 23 of that committee yet. There is several 24 municipalities, you know, from Macdonald and 25 Morris and Ritchot and Tache and St. Clements, et 03847 1 cetera, that we will be drawing from. And I'm 2 hoping that possibly, and maybe partly through the 3 association of Manitoba municipalities, that we 4 get representatives for regions rather than from 5 maybe each municipality, so that it doesn't become 6 unwieldy. But we haven't worked out those details 7 yet. 8 THE CHAIRMAN: I think we also need 9 participation, or you need participation from the 10 general public. I mean, we heard quite a few 11 complaints about the fact that there was no public 12 involvement in the review of the operating rules, 13 although there clearly was municipal 14 participation. 15 MR. MCNEIL: Yeah, and that was by 16 Manitoba Water Stewardship. 17 THE CHAIRMAN: I realize that. 18 Barrie. 19 MR. WEBSTER: Mr. McNeil, you have 20 mentioned the LIDAR survey of the flood channel 21 relating to 1826. We never actually seen anything 22 on that other than the map that was presented to 23 us by Mr. Jonasson. I wondered if you had some 24 material on that that you could let us have? 25 MR. MCNEIL: I believe I can. I 03848 1 believe Manitoba Water Stewardship is just 2 refining the information to put it in letter 3 report format, and we could submit that to you, 4 yes. 5 MR. WEBSTER: We would appreciate it. 6 The other question is, what I wanted to ask about 7 was something that the Chairman asked you about, 8 and that is I wondered what measures you were 9 going to take to try to enhance harmony in your 10 interaction with the rural municipalities and the 11 rural people in general? Because we got a number 12 of comments from people in that area that 13 indicated there are some things there that could 14 be improved. 15 MR. MCNEIL: Do you have any specific 16 examples? 17 MR. WEBSTER: Oh, I could give you a 18 number from the different briefs that were made, 19 and I presume you will have heard those comments, 20 in terms of the dissatisfaction with the way in 21 which they had been interacted with. And I 22 wondered in fact if you had plans to address those 23 issues? 24 MR. MCNEIL: Yeah, and I think the 25 easiest way is to hold more public meetings and 03849 1 open houses to hear those concerns. 2 MR. WEBSTER: Okay. 3 THE CHAIRMAN: Wayne. 4 MR. MOTHERAL: Yes, if I may, 5 Mr. Chairman. I was very pleased when I heard a 6 few comments here, and I am enlightened when you 7 mentioned zero tolerance of groundwater. And that 8 was certainly an issue that has been brought 9 forward many times here. I was also enlightened 10 that you keep with public consultation, that's a 11 very, very important matter in this. We have to 12 include everybody in this, because it's been 13 mentioned several times that we're all in this 14 together. And certainly keep that in mind all the 15 time, that you keep public consultation and keep 16 municipal consultation, very, very important. So 17 that's a few positive comments about the 18 statements. Thank you. 19 THE CHAIRMAN: I have one final 20 question. And you mentioned possible 21 compensation, or compensation for possible 22 flooding on the north end of the river that 23 wouldn't be covered by the Red River Floodway Act 24 but would be covered by the Authority? 25 MR. MCNEIL: Correct. 03850 1 THE CHAIRMAN: Would that be based on 2 similar terms of the Red River Floodway Act, that 3 is 100 per cent, and on loss rather than repair? 4 MR. MCNEIL: I can't answer that at 5 this point in time because we haven't worked out 6 the details. 7 THE CHAIRMAN: Okay. Thank you. I 8 think that's all of our questions. Thank you, 9 Mr. McNeil. 10 MR. MCNEIL: Thank you. 11 THE CHAIRMAN: Who is up next, 12 Mr. Schwartz? 13 MR. SCHWARTZ: Thank you, 14 Mr. Chairman. 15 THE CHAIRMAN: You're going to tell us 16 how to write our report now. 17 MR. SCHWARTZ: That's brutally 18 accurate, sir. But before I do that, I have this 19 sense perhaps that -- I was doing my best to 20 answer one of the questions from Commissioner 21 Webster about emergency and non-emergency summer 22 operations, and perhaps I wasn't addressing the 23 kind of points that you were concerned about. 24 THE CHAIRMAN: I think you had 25 answered it. 03851 1 MR. WEBSTER: I think you've probably 2 gone as far as I can expect you to go under the 3 circumstances. 4 MR. SCHWARTZ: Okay. If I may, 5 Mr. Chairman, perhaps it would be useful, because 6 I know there is, particularly summer operating 7 Rule 4 has created a fair amount of concern. 8 In tab 5, the exchange of 9 correspondence between MFA and the federal 10 officials, at page 2 there is a substantial 11 discussion of the origins of Rule 4 and some of 12 the reasoning behind it, and the question of the 13 extent to which the Environmental Impact Statement 14 actually has looked at the impact of summer 15 operations, non-spring operations we're calling 16 them. 17 Just to highlight the points that are 18 addressed here. I have already addressed the 19 point that MFA has urged on you repeatedly, which 20 is that the expansion is not intended to make 21 summer operations of any source more likely, will 22 not have any exacerbating effect on the impact of 23 summer operations to the extent they take place, 24 in fact, will result in far fewer summer 25 operations in all probability over the next -- 03852 1 well, not in all probability, but likely there 2 will be fewer summer operations over the next five 3 years. The answer is, we don't know how many 4 there would have been anyway. It could be weather 5 conditions would have been that, they never 6 actually needed to do that. But certainly while 7 the floodway is under construction, there is no 8 intention of doing that. 9 The reason for adopting Rule 4, and 10 Mr. Bowering spoke to this, and Mr. Carson I 11 believe has spoken to this as well, was not to 12 make summer emergency operations any more likely. 13 In fact, it was to provide more transparency and 14 clarity about what the conditions were before an 15 emergency operation could take place. 16 The second last paragraph on page 2, 17 at your suggestion, Mr. Gilroy writes, the 18 province move promptly to adopt Rule 4. That was 19 at the suggestion of the Federal Government, to 20 make sure that the baseline was better specified 21 and there was more clarity about what the baseline 22 was. 23 It set out fixed, objective, 24 environmental conditions that must exist before 25 the Provincial Government can even consider 03853 1 operating the gates. These include defined water 2 level and rainfall conditions. If all of these 3 conditions are met, the province may then consider 4 a variety of factors, including the risk to public 5 health, and make a decision. They provide more 6 constraints than existed earlier, in the sense 7 that the discretion and the basis on which it was 8 being done hadn't been set out in writing. So the 9 effort here was not to make it more frequent, it 10 wasn't to loosen any standards, it was actually to 11 try to make it more transparent and more 12 disciplined. 13 I realize there might have been some 14 confusion the way the information was originally 15 introduced by us. It might have come out as this 16 is a number of times that there would have been 17 emergency operations, rather these are the 18 absolute maximum number of times it could have 19 even been considered. But that was the intent of 20 producing those figures, 16 out of 36 years. 21 Looking ahead, the rules are in place, 22 there won't be summer operations in all 23 probability in at least four out of the five 24 coming years. 25 Another question that arose that was 03854 1 addressed in this letter, and it might be useful, 2 is appendix A, which goes through and lists, I 3 think it's 45 or 46 places in the Environmental 4 Impact Statement, in the response to 5 interrogatories and other places where the issue 6 of describing the impacts of non-spring operations 7 have been addressed by MFA. 8 So I hope that might be useful in 9 providing some context and explanation what the 10 intent was behind Rule 4. 11 We'll be coming back to emergency 12 rules of operation, which include Rule 4, and 13 non-emergency operation of the floodway in the 14 course of doing what Chairman Sargeant described 15 with such distressing accuracy. 16 So the submission with respect to 17 potential licensing conditions and other possible 18 CEC recommendations goes back to the terms of 19 reference for the panel, and begins by dealing 20 with the theme which I began to discuss during my 21 initial presentation. 22 You had been given two rather distinct 23 kinds of norms to deal with in the course of 24 considering the evidence and making your comments 25 and recommendations. The Environment Act norms 03855 1 are taken directly out of the Canadian 2 Environmental Assessment Act. This is a legal 3 standard. The statute provides clear direction on 4 issues such as, is it the modification or 5 everything? Well, the Canadian Environmental 6 Assessment Act actually tells you in statutory 7 language that the project is the modification. 8 And it wouldn't be consistent with that statutory 9 scheme, let alone best practices, to define the 10 project differently than it actually was in that 11 respect. 12 The standard is a clear-cut direction 13 to avoid, wherever reasonably possible, 14 significant adverse effects, and if that can't be 15 done, to have a higher level of scrutiny and a 16 higher level of decision-making before this very 17 serious decision is made to go ahead in the face 18 of the fact that there are residual adverse 19 effects and these are likely and significant. 20 There is a different kind of norm, at 21 least that's our submission, when you're dealin