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December 01, 2010

Protecting Lake Simcoe: When a Strategy Imposes Legal Limits

Outside of the Great Lakes, Lake Simcoe is the largest lake in southern Ontario. Eight municipalities obtain their drinking water from Lake Simcoe. The Lake Simcoe watershed contains numerous provincially significant wetlands, woodlands, and productive agricultural areas.

Significant impacts have been observed on the water quality in Lake Simcoe, due to human activities. Phosphorus is one of the more significant challenges to Lake Simcoe. While phosphorus is naturally occurring in Lake Simcoe, by the 1980s, phosphorus levels had become unnaturally high due to human activities.1

A high phosphorus load causes abundant growth of plants and algae that then die and decompose, creating an oxygen shortage in the lake which, in turn, affects the fish population.2

Because of these impacts and the ecological importance of Lake Simcoe, the lake has been the target of environmental protection and improvement efforts from the early 1980s.

In December 2008, the Ontario Government enacted the Lake Simcoe Protection Act (LSPA).3 TheLSPA was another step in a long process to protect and restore the health of the Lake Simcoe watershed.

This process moved another step forward with the creation and approval of the Lake Simcoe Protection Plan (LSPP) in 2009.4 Though it is not legislation or a regulation, the LSPP has some enforceability. The LSPA contains provisions that allow for sections of the LSPP to be deemed as ‘designated policies,’ which have the force of law and must be followed.5 Under the LSPP, approximately 48 sections have been deemed designated policies. Designated policies include:

  • requiring environmental assessments for the expansion or establishment of a new settlement area, if it will require increasing the capacity of existing sewage treatment plants or establishing new sewage treatment plants;6
  • restrictions on building new municipal sewage treatment plants;7
  • requiring applications to expand or establish a major recreational use to include a recreation water use plan;8
  • prohibiting development or alteration of vegetation protected zones outside existing settlement areas;9 and
  • requiring amendments to municipal official plans to make them consistent with the LSPP.10

The LSPA also allows for sections of the LSPP to be designated as “have regard to”.11 This would require the relevant authority to consider the LSPP and ensure that decisions are consistent with the LSPP.

In February of this year, the Ministry of the Environment (MOE) released three proposals under the LSPP. Each proposal targets a different area under the LSPP and would aid in the implementation of the LSPP. The three proposals are a Phosphorus Reduction Strategy (PRS), a feasibility study for water quality trading, and a discussion paper on a shoreline protection regulation.12 To date, only the PRS has been finalized.

The PRS was finalized on July 7, 2010.13 The PRS was created as a mechanism to achieve the reduction in phosphorus loading required under the LSPP – 44 tonnes per year or approximately 40% of current average loadings.

The PRS is required under the LSPP.14 The PRS is not a legal document. The PRS is a review of the sources and quantities of phosphorus in Lake Simcoe. This is not to say that the PRS does not have legal implications. How? The PRS is one of the strategies for determining if the LSPP is adequate. If it is not, the PRS suggests changes to the LSPP to provide for lower phosphorus loading.

The PRS divides phosphorus sources by sectors, and then sets sector-specific targets based on the proportion of current phosphorus loading. These targets can be made legally binding through their incorporation in the LSPP as designated policies. This can be seen with the current version of the PRS. The PRS alters a designated policy provision in the LSPP to require loading limits under Certificates of Approval for sewage treatment plants (STPs) to be lowered in five years or the next time the STP expands, whichever occurs first. The PRS sets ‘targets’ for STPs to meet between now and 2015. In 2015, these targets will convert to legal limits, and Certificates of Approval will be amended.

Under the current PRS, STPs are the only sector that will be legally affected. For all other sources of loading, the PRS provides only suggested actions – provisions that are neither legally binding nor require authorities to ‘have regard to.’ However, the PRS is reviewed every five years. During this review, it will be determined if targets should be lowered or if sectors should be held accountable through imposing legal limits or reductions.

The PRS also allows for the creation of a water quality trading system. In essence, this is a proposal to implement a system normally associated with air emissions in the context of a water shed. The plan is similar to an emissions trading system, a popular option for regulating air emissions, such as greenhouse gases and sulphur dioxide.

Under a water quality trading system (as with emissions trading systems), pollutants are commodities. If a discharger can reduce its pollutant output, the reduction can be sold as a credit to regulated dischargers who are unable to meet their regulated output levels. For example, STPs could reduce their phosphorus loading to meet the legal limits by paying for farmers to implement practices that will reduce phosphorus loading from their fields. This is generally less expensive for the exceeding discharger than to install new equipment or processes to reduce their own output.

Over time, the buying and selling of credits can result in a net reduction in the pollutants being released. A similar system is already in place in Ontario under the South Nation Total Phosphorus Management Program.

Implementing water quality trading would require new regulations and some amendments to the LSPP. It is worth noting that the Ontario Water Resources Act already contains provisions (though not yet proclaimed in force) to allow for regulations establishing and governing water quality trading.15 It is unlikely, however, that STPs will be buying credits any time in the near future. On July 7, 2010, the MOE announced that it will evaluate a number of issues raised in meetings with the public and key stakeholders, as well as by the Lake Simcoe Science Committee and the Lake Simcoe Coordinating Committee, before deciding whether to move ahead with water quality trading. Additionally, the MOE has not yet committed to implementing water quality trading. The MOE’s decision will depend on the outcome of further consultations.16

For now, it is important for all sectors responsible for phosphorus discharges to Lake Simcoe to be aware that they cannot simply look to the Environmental Protection Act or the Ontario Water Resources Act to determine their legal responsibilities. Instead, for those parties located within the Lake Simcoe watershed, there is another, potentially more stringent, layer of legal obligations imposed.

FOOTNOTES
  1. Lake Simcoe Region Conservation Authority Report on the Phosphorus Loads to Lake Simcoe, 2004-2007. Available at:http://www.lsrca.on.ca/pdf/reports/phosphorus_2004_2007.pdf
  2. Ibid. at p. 2.
  3. S.O. 2008, c. 23 [LSPA].
  4. Available at:http://www.ene.gov.on.ca/environment/en/local/lake_simcoe_protection/index.htm
  5. Supra note 3 at s. 5(4), 6(1), 6(9), 9.
  6. Policy 4.1-DP.
  7. Policy 4.3-DP.
  8. Policy 5.6-DP.
  9. Policy 6.1-DP.
  10. Policy, 6.13-DP, 6.38-DP, 8.4-DP.
  11. Supra note 3 at s. 6(1), 6(7), 6(9).
  12. Phosphorus Reduction Strategy EBR #010-8986. Water quality trading feasibility study EBR #010-8989. Discussion Paper on the Shoreline Regulation EBR #010-9107.
  13. MOE, Lake Simcoe Phosphorus Reduction Strategy (June 2010) available online:http://www.ene.gov.on.ca/publications/7633e.pdf
  14. Policy 4.24-SA.
  15. R.S.O. 1990, c. O.40 at s. 75(1.7).
  16. EBR Registry #010-8989.

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