Outline of Current Requirements

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Outline of Current Requirements

Author:	OMAFRA Staff
Creation Date:	15 February 2006
Last Reviewed:	03 December 2007

The information contained in this document is derived from the Nutrient Management Act, 2002 and O. Reg 267/03 as amended. Every effort has been made to make it as accurate as possible, but it is not authoritative. Please refer to www.e-laws.gov.on.ca or the official volumes printed by Publications Ontario for the authoritative text of the act.

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

(Effective September 29, 2005)

1.0 Amendments to Ontario Regulation 267/03
2.0 Adverse Effect Rules for All Farms
3.0 Amendment to the Building Code
4.0 Additional Information
- 4.1 Contents of a Provincial Nutrient Management Strategy and Nutrient Management Plan
- 4.2 How Will a Municipality Know if a NMS has been Approved?
5.0 Summary Chart for Phased-In Farms

1.0 Amendments to Ontario Regulation 267/03

Farm operations subject to the regulation include:

any agricultural operation that was considered "new" under the regulation because the owner had not carried out the operation on the land at any time before September 30, 2003 and had submitted an application for a building permit for a building or structure that is used to house farm animals between the period of September 30, 2003 and December 31, 2005;
any livestock operation generating 300 Nutrient Units (NU)¹ or more, or that is expanding to that size, whether or not any building permit is required;
any livestock operation generating more than 5 NU that does any of the following on or after December 31, 2005;
- applies for a building permit to house farm animals or store manure;
- constructs an earthen manure storage; or
- constructs or causes to be constructed any building or structure that is used to house farm animals or to store manure that would require a building permit if the farm was not located in a territory without municipal organization.

For more details on farm operations subject to the regulation, see chart in Section 5.0.

1.1 How This Impacts Municipalities

Under the amended regulation, farms that apply for a building permit to undertake the construction of buildings that house farm animals or any manure storages are required to have a Nutrient Management Strategy (NMS) that is approved by OMAFRA. Farms that construct earthen manure storages are also required to have an approved NMS, even though the earthen storages do not require a building permit. In addition, all farm units that are within 100 meters of a municipal well and are required to have an NMS must have their NMS approved by OMAFRA.

When approval of an NMS is granted to an operation, two documents are provided to the producer: 1) the Approval Document; and 2) the Record of Approval, which is an abbreviated version of the approval letter. The Approval Document is the legal document signed by a Director that details who is receiving the approval, the conditions of the approval, and the process for an appeal to the Environmental Review Tribunal should this be required. The Record of Approval is a document designed to provide pertinent information without going into the legality of the approval. Each producer will need to show his or her complete Record of Approval to the municipality in support of his or her building permit application.

1.2 Operations Not Constructing Livestock Housing or Manure Storages

Livestock operations generating 300 NU or more that are not constructing livestock housing or manure storages, and are not located within 100 meters of a municipal well must:

register their agricultural operations with the Province;
manage prescribed materials in accordance with a NMS prepared by a certified person (this includes farmers only if they are certified);
land apply nutrients in accordance with a Nutrient Management Plan (NMP) prepared by a certified person (this includes farmers only if they are certified); and
review and update the NMS/Ps annually.

1.3 Operations Constructing Livestock Housing or Manure Storages

Farms that generate more than 5 NU and apply for a building permit to construct livestock housing or a manure storage, or construct an earthen manure storage, are required to have an approved NMS. The NMS must be prepared by a certified person. In unorganized municipalities where there may be no building permit requirements, a NMS must still be prepared and kept on the farm.

The NMS addresses the generation, storage and destination of the manure produced within the farm unit. The NMS also includes items such as a written description of the farm unit, details of the manure storage system(s), properties included in the farm unit, properties to which manure is transferred, and a contingency plan. Once a NMS has received approval, a Record of Approval will be issued to the producer. The producer will in turn provide the Chief Building Official with the complete Record of Approval. This document provides sufficient information to confirm that the structure for which a building permit is being sought and the management of nutrients at the farm meet the requirements of the regulation as outlined in the approved NMS.

1.4 Operations Receiving Non-Agricultural Source Materials

Non-Agricultural Source Materials (NASM) includes sewage biosolids, pulp and paper biosolids, and any other material that is not from an agricultural source and is intended to be land applied as a nutrient.

Farms generating 300 NU or more that apply NASM currently require an approved NMP, as do farms located within 100 metres of a municipal well that land apply NASM.

Until January 1, 2007, a transition period exists for operations generating more than 5 NU but less than 300 NU, and are not located within 100 meters of a municipal well. When these operations have been phased-in under O. Reg. 267/03, and apply NASM, they are exempt from the requirement to have an NMP, provided that a Certificate of Approval or a provisional Certificate of Approval for the application of the NASM has been issued under the Environmental Protection Act (EPA). Additionally, OMAFRA must be informed of the Certificate of Approval and the site location of the intended NASM application. As of January 1, 2007, all phased-in operations that land apply NASM will require an NMP approved by OMAFRA.

1.5 Operations Required to Develop a Nutrient Management Strategy or Plan

For an overview of the type of operations required to develop a NMS and NMP's, refer to the summary chart in Section 5.0.

1.6 Regulatory Requirements Affecting All Farms

All farms in Ontario are prohibited from:

applying NASM closer than 20 metres to the top of the nearest bank of surface water;
applying sewage biosolids between December 1 and March 31 or at any other time when the ground is frozen or snow covered; and
using high trajectory guns for the land application of manure or NASM, except if the material being applied is more than 99% water by weight.

¹ 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.

2.0 Adverse Effect Rules for All Farms

Both the Nutrient Management Act (NMA) and the Environmental Protection Act (EPA) contain provisions that address adverse effect. The NMA provides authority for Provincial Officers to issue preventative measures orders to prevent the occurrence or reoccurrence of an adverse effect. In addition, there are specific requirements under the EPA for employees of municipalities or other public authorities to report a spill they become aware of to the Ministry of the Environment (MOE). However, it is important to note that anyone can report concerns that they have about a potential adverse effect on any farm to provincial authorities. An adverse effect under the NMA includes any one of the following:

impairment of the quality of the natural environment for any use that can be made of it;
injury or damage to property or to plant or animal life;
harm or material discomfort to any person;
an adverse effect on the health of any person;
impairment of the safety of any person;
rendering any property or plant or animal life unfit for human use; or
interference with the normal conduct of business.

NOTE: Different pieces of legislation may describe adverse effect differently.

The adverse effect provisions under the NMA and EPA, and other provisions under the Ontario Water Resources Act, apply to all farms, whether or not they are phased-in under the NMA.

All farms are encouraged to follow beneficial management practices for economic reasons, and to exercise due diligence to minimize the potential of an adverse effect occurring. (Due diligence means taking reasonable steps to prevent causing harm to others or the environment.)

3.0 Amendment to the Building Code

An amendment to the Building Code Act that deals with "applicable law" was filed on June 24, 2005. It stipulates that section 11.1 of O. Reg. 267/03 is to be considered applicable law with respect to a proposed building or structure to house farm animals or store nutrients if that regulation requires the preparation and approval of a nutrient management strategy before construction of the proposed building or structure.

NMA O. Reg. 267/03, as amended

Construction of buildings or structures

11.1 If this Regulation requires a person who owns or controls an agricultural operation to have a nutrient management strategy for carrying out the operation, no person shall construct a building or structure on a farm unit on which the operation is carried out, where the building or structure is used to house farm animals or store nutrients, unless the nutrient management strategy has been prepared and, if applicable, approved, in accordance with this Regulation. O. Reg. 447/03, s.5.

In addition to the requirement for a NMS, O. Reg. 267/03, as amended, provides specific direction for the siting and construction of nutrient storage facilities, and anyone proposing to construct either of these must abide by these standards.

4.0 Additional Information

4.1 Content of a Provincial Nutrient Management Strategy and Nutrient Management Plan

Each municipality may have its own municipally-specific definitions for the terms Nutrient Management Strategy (NMS) and Nutrient Management Plan (NMP) in cases where related bylaws exist. The following defines and identifies the required contents for each of these terms, in accordance with O. Reg 267/03, as amended, and the associated Nutrient Management Protocol, dated August 12, 2005.

A "Nutrient Management Strategy" describes the generation, storage and destination of prescribed materials. As per Part 5 of the Nutrient Management Protocol, the required content of a NMS includes:

farm unit information and identifier number;
a description of the operation;
a Farm Unit Declaration Form, detailing property information such as geographic location and stating if the property is a manure generator and/or receiver;
Broker or Nutrient Transfer Agreements;
a Farm Unit sketch;
a list of the type of prescribed materials generated or received;
an analysis of nutrient content or nutrient values of those prescribed materials;
destinations for nutrients generated;
storage information, such as annual amount stored , number of days of storage available, and amount remaining, including storage sizing calculation;
a Contingency Plan;
a sign-off form; and
where prescribed materials are to be land applied as part of the NMS, a demonstration of adequate land base to provide assurance that these materials can be managed within the amount of land available.

A "Nutrient Management Plan" describes the management of the nutrients that are received or applied on the land. As per Part 7 of the Nutrient Management Protocol, the required content of a NMP includes site specific information on:

nutrients, including types generated, used and received, if applicable;
nutrient application rates, methods and timing, including fertilizer and prescribed materials;
land base and Farm Units, including demonstration of adequate land base for land application;
cropping practices, including crop rotations and yields; and
field information, including field sketches, soil information, sensitive features and application setbacks from surface waters (as defined under O. Reg. 267/03, as amended).

4.2 How Will a Municipality Know if a NMS has been Approved?

Once a NMS is approved, OMAFRA will issue both an Approval Document and a Record of Approval. The Approval Document is the legal approval granted by the Province to the producer and is not necessarily required to be shown or made public. The Record of Approval, on the other hand, provides pertinent information without going into the legal language of the formal Approval Document. The Record of Approval is designed to be provided to various public agencies such as insurance companies, lending institutions, conservation authorities and municipalities to demonstrate approval under the Nutrient Management Act, 2002.

The completed Record of Approval provides details about the operation, including the operation's identification number, the location of properties included in the farm unit, and farmstead sketches that show items such as setbacks of proposed facilities from wells, tile inlets and surface water. Pertinent details about the proposed facilities for housing farm animals and manure storage are also provided. The information in the Record of Approval provides the information that a municipal Building Official may use to assess compliance with applicable law for O. Reg. 267/03, as amended, prior to issuing a building permit.

Please note that the Record of Approval will not contain Minimum Distance Separation (MDSII) calculations as this is not a requirement of the NMA or Regulation. MDSII is something the applicant should review with the municipality prior to obtaining a building permit to ensure that municipally regulated setback distances are met.

5.0 Summary Chart for Phased-In Farms

The following chart provides an overview of the requirements for phased-in farms.

The Nutrient Management Act and its Application - Nutrient Management Act, 2002 (NMA) and O. Reg. 267/03, as amended by O. Reg. 394/07

Farms Phased-In (No Construction)

Previously phased-in*, or
Expanding => 300 Nutrient Units (NU), but no building permit required by law.

What Must They Do?

Get an approved Nutrient Management Strategy (NMS)*** if phased-in as above and any part of farm unit is within 100 metres of municipal well or NMS*** on file at farm and farm registered with OMAFRA for all others, and
Manage manure and other nutrients (e.g., run-off and washwater) according to NMS (including construction and siting).

A. Above farms require a Nutrient Management Plan (NMP) *** on file at farm if nutrients are applied to land in the farm unit and one or more of the following conditions are met:

1. Livestock numbers => 300 NU annually, or
2. Any part of the farm unit used for the operation is within 100 metres of a municipal well.

B. Above farms requires an approved NMP*** if Non-Agricultural Source Material (NASM) is land applied unless they qualify for an exemption until December 31, 2008 by meeting the conditions below:

1. Livestock numbers less than 300 NU, and
2. The farm unit for the operations is not within 100 metres of a municipal well, and
3. There is an Organic Site Certificate of Approval (C of A) issued by MOE, and OMAFRA is notified of the C of A.

Note: if required to have a NMP, it must be kept on file at the farm. The operation(s) must be managed in accordance with the NMP. Land application requirements in O. Reg. 267/03 must also be followed.

Farms Phased-In (With Construction)

> 5 NU and any building permit** for livestock barn and/or manure storage facility****
> 5 NU and construction of earthen storage, or
Construction of a mixed anaerobic digestion facility.

What Must They Do?

Get an approved NMS*** (Record of Approval provided by OMAFRA)
Adhere to construction and siting requirements, and
Manage manure and other nutrients (e.g., run-off and washwater) according to NMS (including construction and siting).

A. Above farms require a Nutrient Management Plan (NMP) *** on file at farm if nutrients are applied to land in the farm unit and one or more of the following conditions are met:

1. Livestock numbers => 300 NU annually, or
2. Any part of the farm unit used for the operation is within 100 metres of a municipal well.

B. Above farms requires an approved NMP*** if Non-Agricultural Source Material (NASM) is land applied unless they qualify for an exemption until December 31, 2008 by meeting the conditions below:

Recordkeeping and Renewal

Operator shall update NMS and/or NMP annually as necessary to accurately reflect anticipated operation of the farm for the following year. Renew NMS every five years, or earlier, if there is a change in ownership, construction of an earthen storage; or a building permit is sought for a livestock housing/manure storage facility. Renew NMP if required every five years or earlier if applying NASM and current NMP does not address NASM application.

Notes:

* Applies to existing operations with 300 NU or greater, any phased-in farm unit that had a change in ownership or control and agricultural operations that were considered "new" under the regulation because the owner had not carried out the operation on the land at any time before September 30, 2003 and had submitted an application for a building permit for a building or structure that is used to house farm animals between the period of September 30, 2003 and December 31, 2005.
** In unorganized territiories if > 5 NU, require NMS for new/expanding livestock barns and manure storage facilities, even though there is no building permit required (NMS kept on file and agricultural operation is registered according to Part 8 of NM Protocol)
*** Any NMS/P prepared as a requirement of the NMA must be prepared by a certified person as per the NMA.
**** A permanent nutrient storage facility used solely as part of a vegetated filter strip system does not require NMS prior to construction but must meet requirements of Part IX.2 of regulations (e.g. engineering, construction, maintenance, operation, written records, etc).

Everyone is Required to:

Manage nutrients to reduce the risk of an adverse effect
Apply material from mixed anaerobic digestion (AD) facilities, if any, to land according to land application standards for agricultural source materials under Part VI of O.Reg. 267/03, without exceeding the limits for Nitrogen and Phosphorus, and
Keep engineering, construction, maintenance and operations records and manage vegetated filter strip systems for runoff in accordance with Part IX.2 of O.Reg. 267/03.

No Person Shall:

Spread sewage biosolids between December 1 and March 31 or when the ground is frozen or snow-covered;
Apply NASM, such as biosolids, within 20 metres of top of bank of surface water; or
Use high trajectory guns to spread nutrients, except if it is very dilute material (greater than 99 per cent water by weight).

Symbols:

">" greater than
"<" less than
"=>" equal to or greater than
"=<" equal to or less than

Note: This document is only a guideline, and is published as a service for Ontario farms and agricultural operations only. For further and detailed information, please consult the Nutrient Management Act, 2002 (NMA) and O. Reg. 267/03, as amended by O. Reg. 394/07 before taking any decisions about your farm unit/agricultural operation where nutrients are concerned, and that if a discrepancy arises between the flowchart and the legislation, the latter prevails.

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