Intervenor: vol. 27, no. 3 - 4, July - December 2002

Responding to the Ontario Government's Stage 1 Proposals under the Nutrient Management Act

In October, 2002, CELA made submissions regarding the first stage of a three stage roll-out of regulations under the Nutrient Management Act. In the brief entitled, Comments by CELA re: Proposed Stage 1 Draft Nutrient Management Regulations under the Nutrient Management Act, (see Related Information, below), CELA expressed concern that it was difficult to effectively review the Stage 1 regulation in isolation from other initiatives expected to follow. As was stressed by Justice O'Connor at the Walkerton Inquiry, there must be an overall water policy for Ontario, and that policy must be implemented with multi-barrier protection beginning with source protection. The Nutrient Management Act and its regulations will be integral to the success or failure of the measures taken by the Ontario government to better protect our waters.

CELA remains concerned as to whether the Nutrient Management Act regulations will be integrated with source protection. However, CELA supported the initiative to enact the Nutrient Management Act regulations and agreed with the necessity to require Nutrient Management Plans and Strategies (Plans). CELA also supported the proposed contents of the Plans insofar as the Stage 1 proposed regulation has outlined these requirements. CELA also agreed generally with the approach to phase in the requirements and to categorize the farms as proposed.

In its brief, CELA agreed with the rationale to arrive at a definition of nutrient units that also covers non-animal sources. However, CELA was concerned that a provision should be made for determining limiting factors based on constituents other than phosphorous or nitrogen.

Under the proposed regulation provided the MOE may establish protocols to set out standards such as: applicable limiting factors; separation distances from watercourses; minimum depth to groundwater or bedrock; prevention of flows to tiles; restriction on winter application; and, other relevant standards. What was not clear, however, is how these standards will take into account local soil, geology, sub-surface and hydrogeology conditions, and other issues of susceptibility that vary from place to place.

On the other hand, CELA does encourage consistent standards for the province as a whole. CELA recommended that Justice O'Connor's recommendation for the development of Watershed Source Protection Plans and for approval of individual farm plans, consistent with those Source Protection Plans, would be the best way to deal with local variation and to recognize and protect water sources against impacts from farming operations. In the course of developing these Plans, public input should be sought. Furthermore, sensitive and high-risk lands should be designated as contemplated in the Walkerton Inquiry recommendations.

Biosolids are to be dealt with in the Stage 2 Nutrient Management Act regulations. In the CELA submission, CELA emphasized that Certificates of Approval for biosolids application must be consistent with Watershed Based Source Protection Plans as called for in the Part II Report of the Walkerton Inquiry. Accordingly, we stressed in our brief that the province must initiate the development of the Watershed Based Source Protection Plans as soon as possible so that the framework for individual decisions in the watershed is in place before those decisions are made.

Public comment and participation will be dealt with in Stage 3 of the process. CELA recommended to the government that the approvals mandated by the Nutrient Management Act regulations be classified and designated under the EBR in order to allow the public participation rights accorded by the EBR. CELA further requested that there be public access to the databases that are to be established regarding nutrient application.

CELA asked that the government outline its timeframe and process for developing the Watershed Source Protection Plans. The concern is to obtain assurance that the Walkerton Inquiry recommendation relating to all large or intensive farms and all farms in areas designated as sensitive or high-risk by the applicable Watershed Source Protection Plan develop binding individual water protection plans consistent with the Source Protection Plan.

Since CELA's Stage 1 submissions were made, the government introduced and passed the SWDA and appointed an advisory committee to draft a framework for source protection. Theresa McClenaghan was appointed to that advisory committee on behalf of CELA. Finally, the government has also initiated consultation on the Stage 2 Nutrient Management Act regulations and CELA will be reviewing and commenting on them with the foregoing concerns in mind.

Theresa McClenaghan is a CELA lawyer.