June 2002

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

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In the recently released report from Part II of the Walkerton Inquiry, the Commission has adopted many of the recommendations of the Alert/Sierra Club coalition which were designed in consultation with hydrogeologists to protect water supplies from manure contamination. The question remains, will the eventual regulations passed under the new Nutrient Management Act go far enough to protect drinking water supplies?

The coalition’s position was that present regulatory controls do not adequately consider or address the risk of surface and groundwater contamination and potential implications for human health. It recommended that manure management regulations should be risk-based, recognizing the variable vulnerability of surface and groundwater resources dependent upon watershed conditions and the nature of the proposed development. The coalition also advised that implementation of this risk-based approach to water resource management would necessitate a comprehensive aquifer mapping and vulnerability assessment program with continuing monitoring.

The Commissioner agreed with the coalition’s position, and the main recommendation was that every large or intensive farm (which has not been defined yet), and every smaller farm in an area designated as sensitive or high risk, be required to develop a water protection plan that is consistent with the local watershed-based source protection plan (once the latter becomes available); that is binding on the farm’s activities; that is approved by, and filed with, the Ministry of the Environment; and that will have the status of regulation. The Commissioner also recommended that the water protection plan should include a hydrogeological assessment of the farm’s operation which is vital in the protection of groundwater supplies because such an assessment may include a consideration of climatic, soil, geological and hydrogeological factors relevant to the absorption capacity of the soil and watershed.

The new Nutrient Management Act was noted by the Commissioner to have some potential deficiencies, many of which had been pointed out by the coalition. These included the fact that nutrient management planning does not necessarily entail a consideration of the presence of microbes such as bacteria, protozoa and viruses, or of other non-nutrient constituents of manure; nutrient management plans do not necessarily take into consideration watershed-specific information; nutrient management planning in the past has focused more on maximizing crop yield than on protecting water resources; and the Nutrient Management Act does not provide for enforcement by members of the public. It was noted by the Commissioner that the Act’s effectiveness will depend on the development of appropriate regulations.

It is impossible to predict what regulations may be passed under the Nutrient Management Act. However, the Commissioner’s view was that the Act as it currently stands would give the Province the authority to develop the farm water protection planning system that he recommended. If the Province follows the recommendations of the Commissioner when drafting the regulations, the tools will then exist for drinking water supplies in the future to be better protected from the effects of manure.