O.Reg. 267/03 under the Nutrient Management Act
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Introduction
The introduction of government-mandated nutrient management has been one of the most contentious issues faced by rural Ontarians in years. The Ministries of the Environment and Agriculture and Food have met with numerous farm organizations, municipalities and individuals across the province since consultation on a proposed legal and regulatory framework began in 2001. On September 30, 2003, the first regulation, O.Reg. 267/03, under the Nutrient Management Act, 2002 (NMA), came into force. The regulation, later amended, sets forth rules for farm operations of different sizes and is aimed at reducing the risk of nutrients entering surface or groundwater.
The NMA defines nutrients as materials that are applied to land for the purpose of improving crop growth. They include materials from agricultural sources such as manure and washwater, and from non-agricultural sources such as biosolids from sewage treatment plants and sludge from pulp and paper mills. The regulation defines the size of a farm operation in terms of nutrient units, based on the amount of manure that could be generated given the capacity of the farm to house livestock. One nutrient unit (NU) is the amount of manure equivalent to the commercial fertilizer replacement value of the lower of 43 kg of nitrogen or 55 kg of phosphate. This allows OMAF to compare, for example, hog farms with poultry farms. The regulation does not restrict the number of animals that a farm operation can have.
Based on farm size, O. Reg. 267/03 sets forth different rules for four NU categories of farm operations:
- 300 NU or more (e.g., at least 210 milking Holstein cows).
- 150 NU or more but less than 300 NU (e.g., at least 105 but less than 210 milking Holstein cows).
- More than 5 NU but less than 150 NU (e.g., more than 3 but less than 105 milking Holstein cows).
- 5 NU or less (e.g., 3 or fewer milking Holstein cows).
Nutrient management strategies and plans
As of September 2003, new livestock farms that are over 5 NU and existing livestock farms expanding to 300 NU or more were required to complete a nutrient management strategy (NMS) that includes information on its operation, how much nutrient is produced, how it will be stored, an analysis of its nutrient content, and where it will be used. A livestock farm that is required to have an NMS and that applies nutrients to agricultural land must also have a nutrient management plan (NMP) that includes information about the farm and its fields, an analysis of the nutrients to be applied, how much will be applied and at what rate, and how the nutrients will be stored. NMPs and NMSs for new livestock operations of 150 NU or more and existing livestock farms of 300 NU or more must be approved by OMAF. Large sewage treatment plants are required to comply by January 1, 2005, and existing agricultural operations of 300 NU or more by July 1, 2005. An implementation date of 2008 has been proposed for remaining livestock operations.
| How big is 300 Nutrient Units? |
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Farm operations requiring NMPs and/or NMSs are also required to comply with rules related to the application of nutrients, outdoor livestock housing systems, siting and construction of barns that contain manure storages, and sampling, analysis and quality of nutrients. These rules are intended to reduce the risk of nutrients entering surface or groundwater and wells, or of nutrients being over-applied to land. Factors such as depth to groundwater, type of soil, type of nutrient, slope of the land, and distance to wells and surface water must be documented in the NMP.
All farm operations, regardless of size, are banned from using high-trajectory application systems – spray guns – for non-agricultural source nutrients. All farm operations are also required to comply with new rules for spreading of biosolids.
Implications of the decision
One goal of the regulation was to provide consistent province-wide rules. However, according to OMAF, farms representing at least one-quarter of the manure produced on Ontario live- stock farms, or about 1,100 farms, will become regulated on July 1, 2005. The remaining 58,600 farms will remain subject to municipal bylaws, where they exist, until at least 2008. As a result, it may be difficult for the public to know what rules are being applied and by whom.
Regulated farms will have additional paperwork to prepare – NMSs/NMPs for large farms can be 100 pages long. In addition, soil and nutrient testing by accredited laboratories, which is required in some instances, may be a challenge to arrange in some areas. Due to restrictions related to soil type, depth to bedrock, setbacks and existing nutrient load, some farmers may not be able to apply nutrients on land previously used for that purpose. Some farmers may also be required to construct or upgrade their facilities or equipment.
Public participation and the EBR process
OMAF received more than 550 written submissions and staff heard 190 presentations on the proposal for this regulation. Farm groups were concerned about the cost of implementing these rules and availability of financial assistance, the complexity of the regulation, and technical issues such as the minimum depth to bedrock and winter spreading of nutrients. Environmental groups emphasized the need to protect the environment and suggested that farms should be treated like any other industry.
ECO Comment
Many potential sources of contaminants that degrade water quality – industry, sewage treatment plants, and septic systems – have been subject to legally enforceable rules for decades. However, manure, agricultural runoff and other materials containing nutrients such as biosolids are also known to degrade water and may contain pathogens such as E. coli. Biosolids are also known to contain metals that may be toxic to plants and animals.
The NMA is intended to manage nutrients, e.g., manure and biosolids, in ways that protect the natural environment. However, standards for metals apply only to non-agricultural source materials and standards for pathogens apply only to biosolids. Farmers are expected to apply nutrients to their land at a rate that meets the requirements of their crops without causing a build-up of nitrogen or phosphorous or the potential for runoff. This regulation requires farmers to test their soil and nutrients periodically to assist them in determining the most appropriate application rates. However, since the majority of the rules will not apply to most farms in Ontario, until at least 2008, this regulation does little to reduce degradation of water quality due to nutrient mismanagement.
In our 2002/2003 annual report, the ECO noted that key aspects of water quality protection have yet to be developed, including watershed-level protection of drinking water sources. This remains the case, and superimposing nutrient management plans onto watershed- based source protection plans will be a technical and political challenge.
In 2002 and 2003, the ECO urged OMAF to prescribe the NMA under the EBR, and to prescribe NMPs and NMSs for large farms and biosolids as instruments under the EBR so that they can be posted on the Registry and be subject to comment by the public. Neighbours, for example, are not able to verify that the location of wells and waterbodies on their properties are clearly identified on a farmer’s NMP, nor will they have a full understanding of the quantity and nature of the nutrients being applied in the vicinity of their wells.
Prescribing the NMA under the EBR would give farmers and the public the right to ask the government to consider modifications to the NMA and O. Reg. 267/03. In addition, the public, including farmers, are now not able to file applications for investigation requesting the government to investigate possible violations of the NMA or O. Reg. 267/03.
The ECO believes that OMAF and MOE, which assumed responsibility for the monitoring, compliance and enforcement aspects of the NMA in November 2003, should work together to ensure that the public participation rights established under the EBR are adapted.
O. Reg. 267/03 is a major step forward in nutrient management. It provides a comprehensive set of rules for managing nutrients, and has served as a vehicle for public discussion of agricultural practices in Ontario. It also gives farmers currently not covered by the regulation an indication of what may be expected of them in the future. However, the ECO believes that in the short and medium term this regulation will do little to allay the concerns of the public, especially in some rural areas. (For mininstry comments, see page 201.)
| Recommendation 8:
The ECO recommends that OMAF and MOE work together to ensure that the Nutrient Management Act is prescribed under the EBR and that nutrient management plans and nutrient management strategies for large farms and biosolids are classified as instruments under the EBR. |
| This is an article from the 2003/04 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2004. "The Nutrient Management Regulation." Choosing our Legacy, ECO Annual Report, 2003-04. Toronto, ON : Environmental Commissioner of Ontario. 74-78.
