Highlights

Municipalities and Changes to O. Reg. 267/03 as amended to O. Reg. 511/05
Nutrient Management Act, 2002

(Effective September 29, 2005)

1. The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) and the Ministry of the Environment (MOE) are committed to maintaining the Province's priority standards for the protection of surface water and groundwater.

Measures through the Nutrient Management Act, 2002 (NMA), O. Reg. 267/03 and its Protocols that support this commitment to water protection include:

• banning high trajectory irrigation guns from spreading non agricultural source material or manure unless the material contains more than 99% water;
• design and construction standards for manure storages;
• nutrient application setbacks from wells and surface water;
• restrictions on winter spreading of prescribed materials; and
• requirements for such things as vegetated buffer zones along surface water.

In conjunction with these measures, MOE has developed a NMA compliance and enforcement program, and is carrying out farm-based inspections on both a planned basis and in response to complaints.

Over time, the regulation will be subject to development and implementation of additional science-based standards, as supported by ongoing research in the area of nutrient management.

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2. Recent amendments to O. Reg. 267/03 lighten the load of regulations on the farm community without compromising the Government's commitment to safe, clean drinking water.

Simplifying the regulations and streamlining the requirements for farmers by allowing more flexibility in the design of a Nutrient Management Strategy (NMS)¹ and a Nutrient Management Plan (NMP)² helps to ensure agricultural sustainability without compromising Ontarians' drinking water sources. With the recent amendments, NMS/Ps meet the purposes of the legislation, including the avoidance of adverse effects on the environment, while providing some flexibility in the process.

The requirement for an approved NMS applies to those agricultural operations that have applied for a building permit for the construction of a structure used to house farm animals or store manure; that are constructing a permanent nutrient storage facility made of earth; and to those agricultural operations that are located within 100 metres of a municipal well. This approval requirement is not applicable to NMS that are prepared as a result of the five year renewal cycle or for those existing farms that generate 300 or more nutrient units. Registration of the agricultural operation is required when an NMS does not require approval. Review procedures that require prescribed materials to be managed responsibly are being instituted, and enforceable conditions can be placed on these NMS approvals where appropriate.

The requirement to have a Nutrient Management Plan depends on criteria such as earlier phase-in, proximity to municipal wells and the type of nutrients (e.g., NASM) generated or received. Depending on the criteria, Plans must follow specific processes for preparation, and are subject to approval if NASM is being land applied and an NMP is required. (Note: NMP approval is only required when NASM is being applied to a phased in farm. All Plans and Strategies must be available on the farm for inspection purposes as required. If that is not possible, the documents must be kept in an area that is accessible on a 24-hour-a-day basis.

With regards to Nutrient Management Strategies, OMAFRA will provide a Record of Approval for an approved NMS, which the producer can then submit to the municipality to support the building permit application. This Record of Approval will provide sufficient information for the municipality to be assured that adequate manure storage options and land base are available to the producer. Upcoming legislation, including the proposed Clean Water Act, may be able to further clarify roles for the Province and local municipal governments as they relate to nutrient management and NMS/Ps.

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3. OMAFRA is committed to working closely with municipalities to address any questions in the area of nutrient management.

Since the emergence of nutrient management as an issue, the Province and a number of municipalities have worked together to address the concerns of our citizens. One of the objectives of the Nutrient Management Act, 2002, is to provide a single standardized regulatory framework for nutrient management across the province. This legislation can work in concert with the proposed Clean Water Act to safeguard the drinking water of Ontarians.

With the most recent changes to O. Reg 267/03, along with the proposal to update the regulation to include the application of science-based nutrient management standards for all Ontario farms, the Province continues to address earlier concerns that resulted in the development of many local-level nutrient management bylaws. The amendments that took effect September 29, 2005, ensure that as farms change and grow, there will be sufficient and secure storage to properly manage manure, runoff and washwater.

OMAFRA values the partnership that has been forged with municipalities and looks forward to continuing to work with them in supporting the ongoing development of a sustainable and environmentally responsible agricultural sector. The Province will provide nutrient management information, data and resources where appropriate to assist municipalities in protecting water resources.

Section 61 of the Nutrient Management Act, 2002 has not been affected by the changes to the regulation and continues to apply. This section of the legislation speaks to the issue of "same subject matter" and municipal bylaws. The Act states that O. Reg. 267/03 supersedes any municipal bylaw, or provision in a municipal bylaw, if the bylaw or provision addresses the same subject-matter as the regulation. Changes to the regulation may affect how this section of the legislation impacts any municipal bylaws for nutrient or livestock management. Municipalities will need to determine if their existing bylaws continue to be necessary in light of these regulatory changes, and in light of Section 61 of the Act.

On March 1, 2005, the new Provincial Policy Statement under the Planning Act came into effect. The Provincial Policy Statement gives guidance to municipalities on land use planning matters of provincial interest. The Planning Act requires that decisions made by municipalities on land use planning matters "be consistent with" the Provincial Policy Statement. The Provincial Policy Statement provides for specific policies related to agriculture and states that "in prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards."

Municipalities should be consistent with this policy when developing land use policies, such as official plans and comprehensive zoning bylaws. For more information on the Provincial Policy Statement, municipalities should contact the Ministry of Municipal Affairs and Housing.

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4. Together, nutrient management legislation and the proposed Clean Water Act provide a comprehensive risk-based approach for nutrient management on all farms across the province.

The Province is making great strides to ensure all Ontario farms have both the guidance and the obligation to manage nutrients responsibly. O. Reg. 267/03, along with the proposal to include further science-based nutrient management standards in the regulation, and a commitment to source water protection via the proposed Clean Water Act, provides an all-encompassing approach that is intended to assure effective nutrient management for all farm operations across the province.

The NMA amended the Farming and Food Production Protection Act so that it now states that a practice that is inconsistent with a regulation made under the Nutrient Management Act, 2002 is not a normal farm practice.

5. Recent amendments to the Building Code require the Chief Building Official to ensure the approval of a NMS before any construction of livestock housing or manure storages.

A building permit cannot be issued for the construction of a building to house farm animals or store nutrients if a farm operation generates more than 5 Nutrient Units (NU)³, unless a NMS has first been approved by OMAFRA. The Province will provide the farm operator with a Record of Approval for the NMS, and this approval will then be submitted to the municipality.

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6. Recent changes to O. Reg. 267/03 under the Nutrient Management Act, 2002 will increase the number of operations phased-in under the regulation and, therefore, the number of operations required to prepare Nutrient Management Strategies or Plans.

Over the last 10 years, the number of farms practicing nutrient management has steadily increased. Although a significant number of farms already follow nutrient management principles, amendments to the O. Reg. 267/03 increase the number of operations where this is required by regulation.

Amendments to O. Reg. 267/03 require all operations that generate more than 5 NU and need a building permit for housing farm animals or manure storage (including storage in a facility made of earth) to have a Nutrient Management Strategy prepared by a certified individual and approved by the Province. Farms in unorganized townships where building permits are not necessary are still subject to the Regulation, and if they construct housing for farm animals or manure storage, a NMS is still required.

A NMP outlines how materials containing nutrients are to be applied to agricultural land. Farms that generate 300 NU or more, or expand to that size, but are not building, are required to have both a NMS and a NMP and to register their operation with OMAFRA. All NMS/Ps must be prepared by a certified person, unless they are a voluntary undertaking not required by the regulation. Plans must be followed, kept on farm for recordkeeping and inspection purposes, and must be reviewed and updated annually. With the amended regulation, operations now proposing to construct housing for farm animals or manure storage where any part of the farm unit is within 100 metres of a municipal well are also required to develop and implement a NMP.

Assurance of environmentally sound management is paramount, whether or not the nutrients are generated on the farm. Nutrients may also be brought into the operation and may include compost, commercial fertilizer or NASM, such as sewage biosolids, pulp and paper biosolids, and food industry by-products. All these materials have nutrient value for land application.

When a Strategy is required by the Regulation, Plan approvals (if required), are required at the same time. However, when the operation generates less than 300 NU annually, and is not within 100 metres of a municipal well, the requirement for the Plan may be delayed. If an operation is generating less than 300 NU annually and is not within 100 metres of a municipal well it must have a Plan on the date it first receives NASM. However, there is a temporary exemption for the NMP requirement on farms that apply NASM if they generate less than 300 NU and are more than 100 metres from a municipal well. If these farms have a valid Site Certificate of Approval issued by MOE and notify OMAFRA of the approval, they will not need to provide a Plan until January 1, 2007. Operations that require a NMS and are land applying NASM without a Certificate of Approval from MOE also require a NMP that in this case must be approved by OMAFRA.

It is now a requirement for farms subject to the regulation that all Plan preparers be certified (including farmers themselves, if they choose to prepare their own Strategy or Plan), and for NMPs to be implemented and updated annually in accordance with standards in O. Reg. 267/03. The economic and operational benefits of sound nutrient management, combined with an active inspection program, will provide assurance that NMPs are being properly developed and followed.

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7. All NMS/Ps must be prepared by a person certified by OMAFRA. This includes farmers preparing their own NMS/Ps.

Training and certification for farmers and consultants includes taking part in comprehensive courses to ensure that they have the knowledge and skills to develop NMS/Ps for agricultural operations. Consultants must also pass an exam and prepare a number of Strategies and Plans that are reviewed by OMAFRA as part of their certification requirements. The list of recommended skills and knowledge that consultants are expected to have are outlined in a "Core Competencies" document. Consultants are also expected to follow recommended Performance Guidelines intended to provide a consistent set of value-added principles that reflect "best management practices" for the industry.

Certification or licencing is also required for individuals who conduct specific practices such as the business of providing custom land application services, individuals who act as brokers, and individuals who prepare NMSs for non-agricultural operations (e.g., Sewage Treatment Plants, food processing operations) that land apply on agricultural land.

8. The strengthening of a comprehensive nutrient management regulation protects municipal water resources without the need for municipal bylaws pertaining to nutrient management.

For a NMS to be approved, an operation must demonstrate that manure can be appropriately managed. Where land application is planned, an adequate land base for the lands receiving prescribed materials must be demonstrated within the Strategy. When farm operations generate 300 NU or more of manure, a NMP must also be prepared and implemented. Where municipal wells lie within 100 metres of the farm unit and a Strategy is required due to building housing for farm animals or manure storage, a Plan is also required. If NASM is being land applied, an approved NMP is required unless the exemption noted above under point 6 applies. The Province believes these efforts will protect drinking water sources.

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9. The Ministry of the Environment (MOE) has developed a compliance and enforcement program that is integrated with other Provincial and Federal environmental legislation. MOE will carry out inspections on farms across the province to ensure NMS/Ps are followed.

Under the NMA, employees of both OMAFRA and the MOE can be appointed as Provincial Officers for the purposes of the NMA and the regulations under the NMA or any part of the NMA and regulations. They use outreach, education and enforcement tools to address non-compliance issues in order to protect the environment and enforce the NMA, and they have the authority to enter and inspect any farm or other operation (e.g., Sewage Treatment Plant) regulated under the NMA in the province. These inspections - conducted both proactively and in response to complaints and/or incidents - can include inspection of generating and storage facilities, broker operations, vehicles, transfer systems and land application sites. MOE staff takes a cooperative and progressive approach in working with producers to ensure compliance.

10. Agricultural operations must manage nutrients in compliance with all relevant legislation.

All farms must continue to manage their operations in compliance with all relevant legislation. There are a number of pieces of legislation in addition to the NMA that protect the environment and may impact on agricultural operations (e.g., Environmental Protection Act, Ontario Water Resources Act, Fisheries Act, etc.).

11. The Nutrient Management Science-Based Standards Committee will provide advice on risk-based standards to be applied to all farms.

The Nutrient Management Science-Based Standards Committee comprises six independent experts from diverse fields, including agriculture, hydrogeology, land use planning, risk management, and risk assessment. This Committee will advise the Ministers of Agriculture, Food and Rural Affairs and the Environment on a list of risk-based nutrient management standards that should be considered for application to all farms on the basis of risk. The list would take into account the relative risk of agricultural activity on water resources, including the geographic, environmental and health risks. This risk-based approach would also assess the type of farming activity and the type of nutrient applied, including agricultural material, NASM and commercial fertilizers.

If implemented, these standards could provide a simpler and cost-effective means of addressing nutrient management concerns on all farms on the basis of risk. The committee is expected to report on its findings and provide recommendations as early as the summer of 2006. Any recommended standards will be subject to posting on the Environmental Bill of Rights (EBR) and public consultation prior to being considered by the government.

The Province and the Committee are focused on the continuous improvement of standards, based on the most up-to-date scientific research available to meet the purposes of the NMA, which are "to provide for the management of materials containing nutrients in ways that will enhance the protection of the natural environment and provide a sustainable future for agricultural operations and rural development."

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12. The Government is funding a competitive research program to further evaluate and develop nutrient management standards and to ensure the continuous improvement of land application standards.

To ensure that future government decisions regarding land application standards are based on the most up-to-date scientific research available, the Government is investing up to $1 million per year for the next three years in a long-range joint research project related to nutrient management practices and their impact on the environment. This program is being coordinated by the University of Guelph and brings together the best expertise from that university and others. Professor Ivan O'Halloran of Ridgetown College, the University of Guelph, has been named research coordinator.

¹ A Nutrient Management Strategy is prepared for a generator (e.g., livestock farmer, municipal sewage treatment plant, pulp and paper processor) of prescribed materials to ensure the prescribed materials generated are appropriately managed and stored.

² A Nutrient Management Plan is prepared for an operation that land applies prescribed materials. The plan details site-specific characteristics of the lands receiving prescribed materials, and includes such information as cropping information, soil types, application methods and timing.

³ One nutrient unit is equal to the amount of nutrients that give the fertilizer replacement value of the lower of 43 kilograms of nitrogen or 55 kilograms of phosphate as nutrient. One NU is equivalent to one beef cow.

Related Links

• E-laws Web Site

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