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HomeMy WebLinkAboutPSD-109-03 i~ {, ...p;!t. Cl~-!lJgton REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE GP9.-314--03 LI! Date: Monday, September 22, 2003 Report #: PSD-109 -03 File #: PLN 28.7 By-law #: Subject: BILL 81 NUTRIENT MANAGEMENT ACT, 2002 RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-1 09-03 be received; 2. THAT Durham Region is requested to form the local advisory committee as set out in the Nutrient Management Act (2002) regulations; and 3. THAT all interested parties listed in this report, Region of Durham, other local municipalities in Durham Region and any delegations be advised of Council's decision. Submitted by: D i ~. Crome, M.C.I.P., R.P.P. Director of Planning Services Reviewed bY:O~ ~ Franklin Wu, Chief Administrative Officer Anthony Canella, C.E.T. Director of Engineering Services FL *DJC*sh CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1 C 3A6 T (905)623- 3379 F (905)623-0830 667 ..1 ,-' REPORT NO.: PSD-109-03 PAGE 2 1.0 BACKGROUND 1.1 The Province of Ontario has passed the Nutrient Management Act (2002) and released the regulations June 30, 2003. The Act was developed by the Ministry of Agriculture and Food (OMAF) and the Ministry of Environment (MOE) in consultation with local governments and the agricultural industry. The Act provides new standards for all land- applied materials containing nutrients. This includes those nutrients used and generated by the agricultural industry including livestock manure, and commercial fertilizers, as well as municipal biosolids, septage, industrial pulp and paper sludge. 1.2 The legislation and regulations set out a framework that will allow for the establishment of province-wide standards for the collection, storage, handling, transportation and application of nutrients on land. In the past, the land application of these materials has been governed by an array of legislative and regulatory provisions, guidelines, voluntary best management practices and a patchwork of Municipal by-laws. Eventually, all land- applied materials containing nutrients will be managed according to a Nutrient Management Strategy and Plan. The Nutrient Management Strategy and Plan is intended to be a science-based tool that will identify how manure, commercial fertilizers, other nutrients and existing soil fertility are effectively managed in an environmentally responsible manner. The preparation of a Nutrient Management Plan (NMP) will be mandatory for all agricultural operations and other businesses that apply nutrients to the land. A Nutrient Management Strategy (NMS) will be mandatory for all generators of nutrients. The need for NMP's and NMS's is being phased in. a) As of September 30, 2003 all new livestock farms and those expanding into and within the large category (300 nutrient units or more) are required to have an approved Nutrient Management Plan. b) For existing large livestock farms (300 nutrient units or more) the implementation date is 2005 c) For other farms (less than 300 nutrient units) the implementation date will be 2008 at the earliest, depending on recommendations from a Provincial Advisory Committee and the availability of cost-shared funding. 1.3 A Provincial Advisory Committee has been set-up to provide recommendations to the government regarding specific nutrient management issues. The Committee includes farmers, environmental scientists, municipal representatives and others. Issues the will be referred to this Committee for consideration and recommendation include: a) The implementation date for other farms of less than 300 nutrient units; b) The siting and construction of nutrient storage facilities, as well as manure handling and application near municipal wells; c) Seasonal outdoor feeding areas; d) Decommissioning of manure storage facilities; e) Nutrient application on tile-drained lands and shallow soils; f) Odour-related setbacks and standards; and g) Winter spreading for nutrients from the pulp and paper sector. 668 " ,.' REPORT NO.: PSD-109-03 PAGE 3 1.4 The first point of contact for on-farm nutrient management issues, including monitoring is the Ministry of Agriculture and Food. The ultimate authority to ensure compliance with the regulations through investigations and enforcement is the Ministry of Environment. 2.0 MUNICIPAL ROLE (BUILDING OFFICIALS AND PLANNERS) There will be numerous transition issues, and municipal staff (especially building officials) will need time to prepare for the changes. The intervening three months (June through Sept) were to allow ministry staff time to deliver training to municipal planners and building officials. Training was offered during the month of September and members of the Clarington staff (both Planning Services and Engineering Services-Building) have received training. As of September 30, 2003 applications for new or expanded barn structures on agriculturally zoned property will be scrutinized to ensure that they meet the setback distances and requirements of the Nutrient Management Act. At this point in time, Clarington Building Officials do not anticipate major delays in their ability to issue building permits for agricultural buildings or additions; the Nutrient Management Act regulations coming into force address larger operations than are typically found in Clarington. However, for larger operations, applications will not be considered complete until the applicant has an OMAF approved Nutrient Management Plan in place, this may delay the issuance of a Building permit. As the other regulations are phased in (2005-2008) they will become more applicable to the size of operations typically located in Clarington. 3.0 ROLE OF LOCAL ADVISORY COMMITTEE For farmers and the community at large, there are many benefits to having a local advisory committee. It can playa role in education and awareness-building, as well as conflict resolution (limited to mediation of non-regulatory or compliance issues) (attachment 1). The committees must be established according to the rules set out in the regulation, one of which is that the majority of membership must be representative of the agriculture industry in the community. Training is to be provided to the committee by the Ministry to assist in the areas of dispute resolution, nutrient unit calculation, and education. The Act's regulations (attachment 2) propose that municipalities could set up local advisory committees to address nutrient management issues in the community. There are at least 3 possible scenarios for a local advisory committee. Scenario A: The municipality and region could choose to not have a committee. Local disputes would then either be unresolved or could escalate and become a violation of the Act or some type of civil disobedience. Disputes could be referred to the provincial advisory 669 .0. " REPORT NO.: PSD.109-03 PAGE 4 committee or Ministries and may not be resolved in a timely manner and without local context or perspective when being acted upon. Scenario B: The municipality could form a local advisory committee. This would require additional staff time and training. In addition, there may not be a large enough pool of farmers within the municipal boundaries that are both willing to serve on such a committee and have the necessary expertise (across a number of agricultural types). The probability of a farmer on the committee being in a conflict of interest would be much higher. Scenario C: Durham Region could form a local advisory committee. Durham Region has taken a lead role in commenting on the Nutrient Management Act and the subsequent regulations through the Durham Agricultural Advisory Committee (DAAC). The Region has a much larger agricultural community to draw upon for members. The Clarington Agricultural Advisory Committee (CAAC) is recommending that the Region continue to lead on the Nutrient Management issue and form the local advisory committee. CAAC have suggested that the Regional committee draw upon each municipality affected for 2-3 members and have suggested that 2 members from the CAAC and 1 non-farmer for Clarington. The CAAC believe having a regional committee will provide the necessary breadth of experience and an arms-length perspective that would best seNe the interests of residents and farmers. 4.0 Conclusions: We commend the Province for preparing this legislation. The underlying intent to regulate the land application of nutrients is required to ensure the environmental health and all residents of Ontario. Attachments: Attachment 1 - Local Advisory Committees, Information Sheets Attachment 2 - Local Advisory Committees, Regulations from Nutrient Management Act List of interested parties to be advised of Council's decision: Arnot Wotten, Chair Clarington Agricultural Advisory Committee 670 " ATTACHMENT 1 Local Advisory Committees Nutrient Management Act Regulation July 2003 LOCAL ADVISORY COMMITTEES- MEDIATION, EDUCATION, AND CONSULTATION Like many communities across Ontario, your municipal, county or regional government may already have a local advisory committee in place. A product of local nutrient management by-laws, these committees give farmers and other community members an opportunity to resolve some problems at the community level - without the need of provincial authorities. Some of the issues that local advisory committees can address are neighbour disputes, and concerns regarding the timing of nutrient application. Now, municipalities interested in forming a local advisory committee can look to the Nutrient Management Act's regulation and protocols for a model. The new legislation enables local advisory committees to be involved in: . mediation and conflict resolution . nutrient management education, and . consultation with the municipality. The regulation and protocols also address the membership of the local advisory committee, in that the majority of members of a local advisory committee must be farmers or farm representatives. The committee must also have at least one non-farmer and a representative from the local municipality (either staff or council member). MEDIATION Mediation and conflict resolution will most likely be the primary focus of a local advisory committee. You can look up the regulation and protocol for a model to conduct mediation, but here's a brief outline of the process. The mediation process begins in one of two ways: . complaints received by the municipality, or . incident reports received by the Ministry of the Environment (MOE) or matters reported to the Ontario Ministry of Agriculture and Food (OMAF). 671 .' Complaints Received by the Municipality The local municipality may receive written complaints regarding a nutrient management issue. Once the complaint has been checked to make sure that it does not involve a violation of the Nutrient Management Act or other legislation, it's sent to the chair of the local advisory committee. Complaints Received by the Ministry of the Environment Written incident reports involving nutrient management may also be filed with the MaE. When the ministry receives such a report, staff may choose to investigate the matter themselves or refer it to the local advisory committee. If the incident does not involve a violation of the Nutrient Management Act or other legislation, the province can refer the matter to a local advisory committee. The ministry can also refer matters that may involve a violation of the Act, where the violation is something that would not have an environmental impact and would be more appropriately handled by the local advisory committee. These violations are very often issues between neighbours. They could also be minor violations, such as a small deviation from a nutrient management plan or other administrative failing. If the province determines that a matter should be referred to the local advisory committee, the ministry must ensure that the person who complained does not object to having the committee involved. After permission has been obtained from that person, the matter is sent to the committee chair. Mediation Process at the Committee Level 1. After the committee receives the complaint or report, the chair will form a panel to conduct the mediation. 2. A panel of three people who have knowledge of both nutrient management and the mediation process will conduct mediations. . Where one of the committee members is involved in the same or a similar type of farming as the farm involved in the complaint, they should be included on the panel. . The panel should also look to OMAF for information related to nutrient management practices and farm operations. 3. If, after investigating the matter, the panel finds no basis for the complaint or report, they will end the mediation. 4. If they find a basis for the complaint or report, they will meet with the farmer and the person who made the complaint to attempt to reach a resolution of 2 672 .' the matter. The panel will provide recommendations to the parties that could resolve the dispute. 5. If either of the parties is not satisfied by the outcome of the mediation, they may pursue other options - including contacting the municipality directly, or pursuing a hearing with the Normal Farm Practices Protection Board. Confidentiality and When to Stop Mediation Mediations are confidential and information disclosed during mediations cannot be used to prosecute individuals. To protect the confidential nature of the process, the panel must stop mediation if it appears that the matter they're investigating is more serious than originally thought. If mediation uncovers a larger problem, it may become necessary to notify the MOE. The protocols detail the stop-mediation procedure in such a case. EDUCATION AND CONSULTATION A local advisory committee can and should also playa role in public education and advising the municipality. The committee's educction role is largely related to its ability to further an appreciation and understanding of agnculture's contribution to the community. A local council may have specific questions about nutrient management in its municipality. A local advisory committee is permitted to provide input to council on issues such as building permits and site plan issues. However, the committee is not permitted to evaluate nutrient management plans or strategies. FORMING A COMMITTEE IN YOUR MUNICIPALITY Local advisory committees are established at the municipal level. If your municipality does not have a local adviSOry committee, contact your municipality to encourage them to establish one. Let your municipality know that you support the idea that some issues can and should be resolved at a municipal level. Show your support by volunteering to become a committee member, and encouraging others to do the same. If your municipality aiready has a local advisory committee, and you would like to participate in the process, contact your municipality to see what's possible. Encourage your municipality to continue its current local advisory committee under the Nutrient Management Act. 3 673 " Customizing Your Committee Local advisory committees are designed as a tool to deal with local issues. That's why there's some flexibility to accommodate circumstances in your municipality. As long as your committee follows basic requirements with respect to committee composition and procedures, there's room to develop and customize your committee to maximize its effectiveness. If your municipality expresses an interest in establishing a local advisory committee, and you're interested in becoming a member, you can request special training, which will be made available over the next two years. FOR MORE INFORMATION More information on the Nutrient Management Act is available by calling toll-free 1-866- 242-4460, or on the OMAF website www.omaf.qov.on.ca under the Nutrient Management button. 4 674 ,>, ATTACHMENT l, PART XII LOCAL ADVISORY COMMITTEES Definitions 115. In this Part, "committee" means a local advisory committee. Establishment of committees 116. (I) A council of a municipality may, by by-law, establish a committee to address nutrient management issues in the municipality. (2) The council shall appoint the members of the committee who shall consist of not fewer than five persons. (3) The members of the committee shall be residents of the municipality and the council shall ensure that they have knowledge of nutrient management practices. (4) A majority of the members of the committee shall be persons who are farmers or who represent an agricultural operation located in the municipality. (5) At least one member of the committee shall be a person who is not a farmer or a representative of an agricultural operation. (6) At least one member of the committee shall be a member of the councilor an employee of the municipality. Operation of committees 117. (I) The council of the municipality that establishes a committee shall appoint a chair and one or more vice-chairs from among the members of the committee, (2) The committee shall adopt rules of procedure to facilitate its activities and the rules must be consistent with the Local Advisory Committee Protocol. (3) The members of the committee shall follow the rules of procedure that apply to the activities of the committee. Mediation 6/5 ,.. ~, 118. (1) A member of a committee may mediate disputes in connection with the following matters that involve the management of materials containing nutrients on lands if the council of the municipality that established the committee is satisfied that the member has knowledge of mediation practices: 1. Matters that a resident of the municipality reports to the municipality and that do not amount to a contravention of the Act, the Environmental Protection Act, the Ontario Water Resources Act or the Safe Drinking Water Act, 2002. 2. Matters that are reported to the Minister of Agriculture and Food or the Minister of the Environment and that either of those Ministers refers to the committee. (2) The Minister of Agriculture and Food and the Minister of the Environment may delegate, to persons whom they authorize, their power under paragraph 2 of subsection (1) to refer matters to a committee. (3) The Minister of Agriculture and Food, the Minister of the Environment and their authorized delegates may use their statutory discretion when referring matters to a committee. (4) If a member of a committee who is assigned to mediate a matter in dispute under this section has, either on his or her own behalf or while acting for, by, with or through another, has a pecuniary interest in the matter, whether direct or indirect as described in section 2 of the Municipal Conflict of Interest Act, the member, (a) shall, before beginning to mediate the dispute, disclose to all parties the interest and the general nature of it; and (b) shall not proceed to mediate any question in respect of the matter unless all parties agree to having the mediation proceed. (5) If a Director or a provincial officer advises a member of a committee who is mediating a matter in dispute under this section that the matter involves a contravention of the Act, the Environmental Protection Act, the Ontario Water Resources Act or the Safe Drinking Water Act, 2002, the member shall suspend the mediation until the alleged contraventions have been dealt with in accordance with the applicable legislation. (6) Subject to the requirements of the Municipal Freedom of Information and Protection of Privacy Act and other applicable legislation, a member of a committee whQ conducts a mediation under this section shall do so on a confidential basis. 676 , (7) A member of a committee who acts as a mediator of a dispute under this section shall not provide advice that might be regarded as legal advice to any of the parties to the dispute or their representatives. (8) The outcome of a mediation of a dispute under this section does not relieve any of the parties to the dispute of the responsibility to comply with the requirements of any Act that governs the management of materials containing nutrients. Education 119. A committee or its members may engage in activities designed to educate people about matters related to the management of materials containing nutrients and for that purpose may consult with representatives of the Ministry of Agriculture and Food and the Ministry of the Environment regarding the presentation and content of educational seminars. Consultation 120. (1) In carrying out its powers or duties, subject to subsection (2), a committee or its members may consult with representatives of the municipality that established the committee with respect to issues relatcd to the management of materials containing nutrients, including site plan or building permit issues. (2) A committee or its members shall not participate in any way in evaluating, approving or endorsing nutrient management strategies or nutrient managcment plans. Reports to clerk of municipality 121. The by-law of the municipality that establishes a committee may require the chair of the committec to provide reports about the committee's activities to the clerk of the municipality allhe times that the by-law specifies. 677