Environment

How has the NMA been accepted in rural Ontario?

Response to the Nutrient Management Act and regulations has been mixed. And many municipalities have done nothing to resolve the contradictions between their bylaws and provincial rules

by SAM BRADSHAW

Wayne J. Caldwell and Alicia Evans have completed their report entitled “Finding the Balance -- Evolving Provincial and Municipal Governance of Nutrient Management.” This interesting report documents municipal experience with nutrient management by-laws and the evolving provincial regulations under the Nutrient Management Act (NMA).

The act stipulates that where provincial regulations and local by-laws deal with the same subject matter, the provincial regulation shall prevail. Consequently, municipalities needed to evaluate the appropriateness of their local bylaws to avoid conflict.

In 2004, municipalities had significantly different views towards the legislation, ranging from those who readily amended their bylaws to be consistent with the regulation to those who were willing to challenge provincial authority in court. Further changes to the provincial regulations in September 2005 have meant that municipalities need to continue to consider the implications of Section 61(1) for their local by-laws.
All municipalities undergoing this transition were requested to complete a survey, and 72 per cent responded. As well, a number of individuals representing the municipalities, including chief building officials, planners, administrators and bylaw officers, were consulted.

Out of the 61 responses received:

• 47 per cent of municipalities indicated that they have done nothing with their original nutrient management by-law.
  
  
• 31 per cent have only reviewed their original nutrient management by-law since the application of the provincial regulation.
  
  
• 11 per cent indicated that they have either amended their original bylaw or passed a new one.
  
  
• 11 per cent of municipalities indicated that they have repealed their original by-law.

Thus, the survey shows that most of the municipalities have done nothing with their by-law or have only reviewed them since the implementation of the nutrient management regulation.

After speaking with municipal staff, it was determined that even though these bylaws were officially still in effect, many of them were described as being outdated and are no longer being used in the building permit process. In these cases, the building permit process for a livestock operation would rely primarily on approval from the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA).

Other municipalities whose original bylaws are still in effect or had only been reviewed are using their nutrient management bylaws as part of the building permit process. Some municipal officials indicated that they are applying sections of their bylaws that deal with different subject matter than the provincial regulation, whereas others noted that some sections of their bylaw may be in conflict with the provincial regulation. These municipalities said that their lawyers were still determining whether Section 61(1) of the legislation was applicable, and that their bylaws may either be amended or repealed in the future.
The municipalities that indicated that their bylaws had been amended have done so to be in accordance with the regulation. Some of these municipal bylaws were originally more restrictive than the regulation. For example, one municipal bylaw required 360 days of storage and had a cap at 600 Livestock Units (LU), but was amended so that there are no contradictions with the regulation. Some of these municipalities are still considering repealing their bylaws in the future.

According to municipal staff, the bylaws that were repealed were done so for two reasons. First, either the municipality’s lawyer or other agencies such as OMAFRA recommended that the municipality repeal their bylaw because it was more restrictive than, or different from, provincial regulations. They were advised that to avoid conflict with OMAFRA they should simply work under one set of rules.

Other municipalities felt that they had spent enough time and money trying to get the nutrient management bylaw in place and did not want to waste any more resources in trying to change it.

As mentioned above, the number of municipalities repealing their nutrient management bylaw is on the rise. Now that the province is regulating aspects of all new and expanding operations over five Total Nutrient Units (NU) and all operations over 300 NU, the need for local bylaws may be seen to be reduced.

Results

Of the 61 survey responses received, 84 per cent of municipalities indicated that since the implementation of the Nutrient Management Act and regulations, they have not passed any other bylaws that specifically target livestock facilities. However, 16 per cent indicated that, since this time, they have passed some other form of bylaw that specifically targets livestock facilities or relates to nutrient management.

Bylaws passed that target livestock facilities include one restricting livestock development in wellhead protection areas and one that requires a zoning change when an application for a large livestock facility is made.

The wellhead protection bylaw restricting livestock development in specific areas was the result of concerns over local soil conditions. This bylaw was taken both to court and to the Ontario Municipal Board OMB to deal with the issue of OMAFRA approval in these zones, as the farming community believes that the NMA supersedes the bylaw, but the municipality does not agree.

The other bylaw states that, when an application for a livestock operation over 300 NU is made, an intensive agricultural zone is required. This means that a zoning amendment must be made and the application must therefore go through a public process. This by-law was also appealed to the OMB, but by OMAFRA. Both cases are still undecided.

(Note: The court subsequently ruled in favour of the farmer in the first example and concluded the NMA does supersede the local bylaw.)

Of the 61 survey responses received, 47 per cent indicated that the NMA and regulation has been neither positively nor negatively received in the community (neutral). The next greatest percentage of municipalities (33 per cent) indicated that the NMA and regulation has been somewhat of a contentious issue in the community, whereas only 11 per cent of municipalities indicated that it has been somewhat positively received by the community. Of the remaining municipalities, five per cent indicated that the act and regulation has been a very contentious issue in the community, two per cent indicated that it has been positively received in the community, and two per cent were unsure of the community reaction.

So there has been a range of reactions. Farmers who were concerned with the varying bylaws across the province were initially pleased that the government was going to create one set of rules for all farmers. Farmers were also relieved that they would no longer have to deal with local politics affecting decisions around building applications.

As well, municipal staff indicated that the non-farm community was pleased that the provincial government was going to step in to regulate and monitor nutrient management across the province. However, many municipalities indicated that the farm community was very unhappy with the initial set of regulations and felt that they were too onerous and costly. Even now that the regulation has changed, the farm community is not entirely pleased with the outcome, as some believe that the regulation is still fairly heavy, while others believe that the regulation of nutrient management has been weakened.
Those municipalities that considered the issue as neutral did so either because the NMA has been a non-issue in the community or because there is a great variety of opinion on it.
Interviews with farm leaders from various organizations showed a mixed response to the transition from municipal to provincial regulation of nutrient management and identified a variety of issues. These issues include concerns over the involvement of the province and lack of local consideration, funding for the farmers and regulating of farmers in general.

Although lobbying by farm groups contributed to the development of the NMA, there were some farm leaders that never wanted the province to intervene. They believed that inconsistencies in the regulation of nutrient management through municipal bylaws across the province were good, since local environmental conditions varied.

According to these farm leaders, livestock agriculture should be limited in some areas and developed in others because environmental conditions are more sensitive in some places and are more acceptable for livestock in others. These farm leaders have therefore been consistently frustrated with the NMA and regulation, believing that it does very little to protect the environment, and they do not see a long-term future for it.

Even those farm leaders who did want provincial intervention to ensure consistency across the province were not pleased with how the legislation and regulation were developed.

Initially, the farm leaders were working very closely with OMAFRA to develop the legislation and regulation. However, after the Walkerton tragedy occurred, the government had to be perceived as taking control of the situation. Although this was a step backwards for nutrient management, many farm leaders say that the situation is better now with the new changes to the regulation.

Funding for the NM regulation was another issue identified by farm leaders. Initially, livestock operations had reservations about the added cost imposed by the regulations. Unlike other industries that can pass on the cost of regulations to the consumer, farmers must cover additional costs in order to remain competitive. Therefore, in the opinion of these farm leaders the government must be accountable for compensation for regulatory requirements.

Now that the NMA and regulation has been in effect for a few years, the additional costs added by the regulation have become the cost of doing business for new and expanding livestock operations.

The farm leaders also commented on the nutrient management funding program provided by the provincial government, noting that those farmers who were eligible for the funding program were pleased with the results as they could get up to 90 per cent of their costs of complying with the regulation covered.

However, only those existing operations over 300 NU were eligible for this program. If an existing operation of less than 300 NU decided that it wanted to comply voluntarily with the regulation, it had to do so with less funding (approximately 30 per cent of costs covered). However, the farm leaders did not object too much to this because they agreed that the funding should be provided to the larger operations that were required to comply with the regulation.

The farm leaders interviewed all agreed that regulating nutrient management may not be the most effective way to protect the environment. According to them, farmers are independent actors who have traditionally not been regulated and who tend to respond better to incentives and education rather than regulation. Therefore, the best way to protect the environment would be to encourage best management practices.

If you can prove to a farmer that a practice is beneficial for the environment, then they will tend to adopt that practice. Another farm leader suggested providing the end goal of environmental protection and allowing the farmer to develop strategies and innovate. BP

Sam Bradshaw is environmental specialist with Ontario Pork. BP