Vol. 148, No. 26 — June 28, 2014

Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Yukon

Statutory authority

Fisheries Act

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Yukon has laws and regulations for managing wastewater effluent that provide controls equivalent in effect to those under the federal Wastewater Systems Effluent Regulations (WSER). The two levels of government have negotiated the proposed Agreement on the Equivalency of Laws Applicable to Wastewater Systems Located in Yukon (proposed equivalency agreement). The proposed equivalency agreement would allow the Governor in Council, through the proposed Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Yukon (proposed Order), to stand down the WSER for wastewater systems in Yukon subject to both federal (WSER) and provincial regulatory requirements and to stand down subsection 36(3) of the Fisheries Act for any deposit of effluent from the final discharge point of those systems that would have otherwise been regulated by the WSER. This would reduce regulatory duplication while still ensuring at least the same reduction of harmful substances deposited to Canadian surface water from wastewater effluent.

Background

Effluent from wastewater systems represents one of the largest sources of pollution, by volume, in Canadian waters. Negative impacts to aquatic ecosystems from harmful substances found in wastewater effluent have been documented domestically and internationally for over 25 years. In Canada, the management of wastewater is subject to shared jurisdiction, which has led to inconsistent regulatory regimes and varying levels of treatment across the country. Interested parties have consistently indicated the need for all levels of government to develop a harmonized approach to managing the wastewater sector in Canada.

To address this situation, the WSER were developed under the Fisheries Act and published in July 2012. The goal of the WSER is to set national baseline effluent quality standards achievable through secondary treatment or equivalent. The WSER deliver on a federal commitment in the Canadian Council of Ministers of the Environment Canada-wide Strategy for the Management of Municipal Wastewater Effluent (CCME Strategy). The CCME Strategy was developed under the auspices of the Canadian Council of Ministers of the Environment and endorsed in 2009. It represents a collective agreement to ensure that wastewater effluent is managed under a nationally harmonized framework that is protective of the environment and human health, and states that each jurisdiction will use its authority to achieve the goals committed to and set out in the CCME Strategy.

The WSER apply in respect of a wastewater system that deposits a deleterious substance prescribed in the WSER to surface water via the final discharge point, and is designed to collect, or actually collects, an average daily volume of influent of 100 m3 or more during a year.

As per a key commitment of the federal government in the CCME Strategy, the federal regulations (WSER) could be administered through bilateral agreements between the federal government and each of the provinces, and Yukon. These agreements would clarify roles and responsibilities of jurisdictions in administering the WSER, and set a precedent in the area of cooperative wastewater management in Canada. In 2012, subsequent to the implementation of the CCME Strategy, new provisions added to the Fisheries Act allow for the federal government to establish an equivalency agreement if provisions under the laws of a province/territory are found to be equivalent in effect to provisions of the federal regulations. When this is the case, the Governor in Council may, by Order, declare that provisions of the federal regulations and certain provisions of the Fisheries Act do not apply within that province/territory. The proposed equivalency agreement and proposed Order for the WSER have been developed for Yukon under these new provisions.

Objectives

The objectives of the proposed equivalency agreement and the proposed Order are to increase regulatory clarity and efficiency for the management of the wastewater sector in Yukon, and to reduce regulatory duplication in Yukon.

Description

The proposed Order has been developed under the Fisheries Act and would remove the application of the WSER for wastewater systems in Yukon that would otherwise be covered by both federal (WSER) and Yukon requirements and would remove the application of subsection 36(3) of the Fisheries Act with respect to deposits of effluent, that would have otherwise been regulated, from the final discharge point of those systems. The basis for the Order is the proposed equivalency agreement which provides that the laws of Yukon and the WSER are equivalent in effect with respect to these systems.

The proposed equivalency agreement has been developed under the Fisheries Act and would apply to wastewater systems covered by both federal (WSER) and territorial requirements. There are three wastewater systems in Yukon covered by both regulatory regimes.

Yukon’s current legal regime results in wastewater system performance that is equivalent in effect to that required by the WSER. All three systems are subject to mandatory requirements that are set out in licences issued by the Yukon Water Board and in the Yukon Waters Regulation, both of which are under the authority of the Yukon Waters Act. The Waters Act specifies that the Yukon Water Board may not include in a licence any conditions that are less stringent than the provisions of regulations made under subsection 36(5) of the Fisheries Act, where those regulations apply to those waters. Accordingly, all three wastewater systems must meet standards for concentrations of deleterious substances in effluent that are at least as stringent as those in the WSER. The WSER effluent quality standards are

Furthermore, the standards in the Yukon licences for CBOD and SS are maximum concentrations of 25 mg/L rather than average concentrations, meaning the standards are, on balance, more stringent than those in the WSER.

Subsection 7(1) of the Yukon Waters Act prohibits the deposit of waste to water or any place under conditions that it may enter water. “Waste” is defined in part in the Waters Act as “any substance that . . . would degrade or alter . . . the quality of the water to an extent that is detrimental to its use by people, by any animal, fish or plant . . . .”.

Monitoring and reporting requirements in the WSER are based on the size and type of wastewater system, with larger, continuously discharging systems required to monitor and report at higher frequencies. According to these criteria, two of the Yukon wastewater systems (intermittent dischargers) are required to report effluent quality annually, and one (continuous discharger) is required to report effluent quality quarterly. In Yukon, the licences are issued by the Yukon Water Board and include site-specific effluent monitoring frequencies, as well as reporting requirements. All three licences require the submission of annual summary reports containing effluent quality data as well as operational and other information. In addition to the annual summary reports, the Water Board licences require monthly reports for effluent quality data for the two larger systems.

Under the WSER, owners and operators are required to keep records of laboratory results and a copy of each report submitted for a period of five years. The Yukon Waters Regulation requires that each licensee maintain accurate and detailed books and records. Copies of records are kept on site at each facility indefinitely. The Yukon Water Board office also keeps all documentation related to a licence, including that related to the application, public consultations, amendments, etc., as well as submitted reports, indefinitely. Thus, Yukon’s wastewater system monitoring, reporting and record keeping requirements constitute assurance of performance that is equivalent to the WSER. Yukon’s compliance and enforcement provisions, along with the Yukon Waters Act inspector manual, also indicate compliance verification and enforcement that is equivalent to that in the Fisheries Act and the federal Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. As well, spills must be reported as soon as possible under section 133 of the Yukon Environment Act, and reasonable measures must be taken to mitigate such spills as well as to restore or rehabilitate the natural environment under section 135 of that Act.

Yukon and Canada would share information regarding the administration of the proposed equivalency agreement. Yukon would annually provide to Canada information on the administration and enforcement of the Yukon provisions applicable to wastewater systems, as well as written notification of any proposed and actual amendments to Yukon provisions relevant to wastewater systems. Canada would provide to Yukon information regarding proposed and actual amendments to the Fisheries Act, the WSER, or other relevant provisions. Yukon and Canada agree that the equivalency agreement would be evaluated and reviewed every five years. The agreement does not include a termination date, but either party to the agreement could terminate the agreement with at least six months’ written notice, or it could be terminated upon mutual consent. As per subsection 4.2(5) of the Fisheries Act, the Order would cease to have effect should the equivalency agreement be terminated. This agreement would also be terminated, and the WSER would apply again in Yukon, should the Governor in Council revoke the Order pursuant to subsection 4.2(3) of the Fisheries Act.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as none of the regulated parties are businesses, and therefore there is no change in administrative costs to businesses.

Small business lens

The small business lens does not apply to this proposal, as none of the regulated parties are businesses.

Consultation

Environment Canada has been consulting on various instruments for the management of wastewater since 2002 and feedback from stakeholders has consistently indicated that there is a need to improve wastewater management in Canada and a desire for all jurisdictions to work together.

Environment Canada held 26 one-day consultation sessions across the country between November 2007 and January 2008. The consultation sessions involved more than 500 participants from Aboriginal communities and organizations, municipalities and associated organizations, environmental non-governmental organizations, and federal departments and agencies. The objective of these sessions was to provide stakeholders and interested parties with detailed information and solicit input on Environment Canada’s Proposed Regulatory Framework for Wastewater and the proposed CCME Strategy. The administration of the WSER through bilateral agreements between the federal government and the provinces/Yukon in order to clarify roles and responsibilities of jurisdictions was part of these consultations.

Interested parties indicated support for the development and implementation of a harmonized approach to managing the wastewater sector in Canada. They expressed interest in the development of bilateral agreements between the two levels of government in order to minimize duplication and the regulatory burden on stakeholders.

The proposed WSER were published in the Canada Gazette, Part I, on March 20, 2010, for a 60-day public comment period. A total of 189 submissions were received and taken into consideration. Parties who submitted comments include each provincial and territorial government, municipalities and their organizations, Aboriginal communities and their organizations, federal departments, owners of private wastewater systems, consultants, environmental non-governmental organizations and the general public.

Comments received supported the administration of the WSER through bilateral agreements between the federal government and provinces/Yukon and indicated a desire to have the agreements put in place quickly.

Through publication of the WSER in the Canada Gazette, Part II, the Government of Canada reiterated its intention to establish bilateral agreements between the federal government and each of the provinces and Yukon to define the primary interface for administration of the WSER for owners and operators of wastewater systems.

Both the Yukon government and wastewater system owners and operators have expressed support for the proposed equivalency agreement and proposed Order for the WSER to reduce regulatory duplication in the sector.

Rationale

Regulatory clarity would be achieved since the standards for wastewater management in Yukon are equivalent in effect to the WSER, and only one regime would apply in Yukon. The result is streamlined wastewater effluent quality standards, reporting and compliance timelines for implementation. Reduced regulatory duplication and greater regulatory efficiency would be achieved through Yukon as the one-window regulator.

There would be slight cost savings for the federal government as it would no longer bear the costs of administration and enforcement for the WSER in Yukon. The three municipally owned wastewater systems covered by the proposed equivalency agreement (Whitehorse, Dawson, Haines Junction) would have slightly lower costs as well. Currently, owners and operators of the three wastewater systems must monitor effluent quality and submit required reports to Canada for the WSER according to the applicable schedule prescribed in the WSER. Reports are submitted through Environment Canada’s online reporting system. System owners and operators must also monitor effluent quality and report separately to Yukon in accordance with schedules determined in their respective Water Board licences. Reports are submitted to the Yukon Water Board through an online registry. The cost to the owners and operators of these systems would be reduced as they would report to one rather than two levels of government.

Implementation, enforcement and service standards

If approved by the Governor in Council, the proposed Order would be in place in the Yukon for the WSER. Yukon and Canada would share information regarding the administration of the equivalency agreement. Yukon would provide annually to Canada information and data on the administration and enforcement of the Yukon provisions applicable to wastewater systems. The information sharing would allow for the ongoing evaluation by Canada of the Yukon provisions applicable to wastewater systems. The information would also provide Canada with required information in relation to Environment Canada’s performance measurement and evaluation, Canada’s Federal Sustainable Development Strategy, Environment Canada’s Departmental Performance Reports, and the Annual Report to Parliament on the Administration and Enforcement of the Fish Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. The information includes the percentage of regulatees reporting on time, compliance status with effluent quality standards, the reductions in loading of CBOD and SS over time, and activities and actions undertaken by the Yukon government in relation to compliance verification and enforcement.

In addition, Yukon would provide to Canada written notification of any proposed and actual amendments to Yukon provisions relevant to wastewater systems, and Canada would provide to Yukon information regarding proposed and actual amendments to the Fisheries Act, the WSER, or other relevant provisions.

Yukon and Canada also agree that the agreement would be evaluated every five years, to ensure continued effectiveness and relevance.

Contacts

James Arnott
Manager
Wastewater Program
Environment Canada
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Telephone: 819-420-7725
Email: james.arnott@ec.gc.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation
Environment Canada
10 Wellington Street, Room 2501
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-7651
Email: ravd.darv@ec.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 4.2(1) (see footnote a) of the Fisheries Act (see footnote b), proposes to make the annexed Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Yukon.

Interested persons may make representations concerning the proposed order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to James Arnott, Wastewater Program, Department of the Environment, 351 Saint-Joseph Boulevard, Gatineau, Quebec K1A 0H3 (fax: 819-420-7382; email: ww-eu@ec.gc.ca).

Ottawa, June 17, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

ORDER DECLARING THAT THE WASTEWATER SYSTEMS EFFLUENT REGULATIONS DO NOT APPLY IN YUKON

DECLARATION

Definitions

1. For the purposes of sections 2 and 3, “effluent”, “final discharge point” and “wastewater system” have the same meanings as in section 1 of the Wastewater Systems Effluent Regulations.

Non-application — Regulations

2. The Wastewater Systems Effluent Regulations, made under subsection 36(5) of the Fisheries Act, do not apply in respect of a wastewater system in Yukon that would otherwise have been subject to those regulations and that is subject to the Waters Act, S.Y. 2003, c. 19; 2007, c. 6 and the Waters Regulation, Yukon O.I.C. 2003/58.

Non-application — subsection 36(3) of the Act

3. Subsection 36(3) of the Fisheries Act does not apply in respect of any deposit of effluent from the final discharge point of a wastewater system referred to in section 2 if the effluent would otherwise have been regulated under the Wastewater Systems Effluent Regulations.

COMING INTO FORCE

Registration

4. This Order comes into force on the day on which it is registered.

DEPARTMENT OF THE ENVIRONMENT

FISHERIES ACT (R.S.C., 1985, c. F-14)

Notice is hereby given that the Minister of the Environment intends to conclude with Yukon the annexed agreement entitled “An Agreement on the Equivalency of Laws Applicable to Wastewater Systems Located in Yukon”. The Minister of the Environment is publishing her intention to conclude this agreement in accordance with section 4.1 of the Fisheries Act.

Interested persons may, within 30 days after the publication of this notice, file comments with respect to the proposed agreement. All such comments must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to James Arnott, Wastewater Program, Department of the Environment, 351 Saint-Joseph Blvd, Gatineau, Quebec K1A 0H3, or at the following email address: ww-eu@ec.gc.ca.

Ottawa, May 22, 2014

LEONA AGLUKKAQ
Minister of the Environment

AN AGREEMENT ON THE EQUIVALENCY OF LAWS APPLICABLE TO WASTEWATER SYSTEMS LOCATED IN YUKON

BETWEEN

THE GOVERNMENT OF CANADA AS REPRESENTED BY THE MINISTER OF THE ENVIRONMENT (“CANADA”)

AND
THE GOVERNMENT OF YUKON AS REPRESENTED BY THE MINISTER OF ENVIRONMENT (“YUKON”)

Throughout this Agreement, “Parties” means Canada and Yukon collectively, and “Party” means Canada, or Yukon, individually.

WHEREAS Canada and Yukon (“the Parties”) are signatories to the CCME Canada-wide Strategy for the Management of Municipal Wastewater Effluent that includes national performance standards for effluent quality from wastewater systems that discharge wastewater effluent to surface water and establishes a one-window approach to governance;

AND WHEREAS reducing the risks associated with wastewater effluent is a matter of importance to the Parties;

AND WHEREAS Yukon promulgated the Waters Regulation (O.I.C. 2003/58) made under the Yukon Waters Act (Statutes of Yukon 2003);

AND WHEREAS Canada has published the Wastewater Systems Effluent Regulations (SOR/2012-139) [“WSER”] under subsection 36(5) of the Fisheries Act as one of the federal government’s commitments to implement the CCME Strategy (Canada-wide Strategy for the Management of Municipal Wastewater Effluent);

AND WHEREAS the Parties recognize that there is a benefit to adopting a cooperative and harmonized approach to avoid administrative duplication resulting from comparable legislation in the wastewater sector, and that there is a need to specify the procedures of this approach in an agreement;

AND WHEREAS section 4.1 of the Fisheries Act and the Order Designating the Minister of the Environment as the Minister Responsible for the Administration and Enforcement of Subsections 36(3) to (6) of the Fisheries Act allow the Minister of the Environment to enter into agreements with a province to further the purposes of the Act, including facilitating joint action in areas of common interest, reducing overlap and harmonizing respective programs;

AND WHEREAS pursuant to section 4.1 of the Fisheries Act such agreements may establish the circumstances and manner in which the province is to provide information on the administration and enforcement of a provision of its laws that the agreement provides is equivalent in effect to a provision of the regulations;

AND WHEREAS pursuant to subsection 4.2(1) of the Fisheries Act where an agreement entered into under section 4.1 provides that there is in force a provision under the laws of the province that is equivalent in effect to a provision of the regulations made under the Fisheries Act, the Governor in Council may by order (“Order”) declare that certain provisions of the Act or the regulations do not apply in the province;

AND WHEREAS the Waters Regulation and the Waters Act and licences issued pursuant to the Waters Act impose obligations having the force of law, with requirements for the deposit of deleterious substances that are at least as stringent as those in the WSER, and the Waters Act prescribes penalties for non-compliance;

AND WHEREAS section 4.3 of the Fisheries Act requires the Minister to report annually to Parliament on the administration of sections 4.1 and 4.2 of the Act;

AND WHEREAS the Minister of Environment has the authority under the Yukon Act (Canada), S.C. 2002, c. 7, to execute and deliver agreements with the Government of Canada on behalf of the Government of Yukon;

AND WHEREAS the Parties wish to enter into this Agreement on the Equivalency of Laws Applicable to Wastewater Systems Located in Yukon (“Agreement”) regarding Canada’s Wastewater Systems Effluent Regulations;

NOW THEREFORE, the Parties agree

(1) PURPOSE

The purpose of this Agreement is to recognize that provisions in the laws of Yukon are equivalent in effect to provisions of the Wastewater Systems Effluent Regulations for those wastewater systems covered by both sets of provisions, and to establish the circumstances and manner in which Yukon is to provide information on the administration and enforcement of its Waters Act and Waters Regulation to Canada and in which the Parties agree to share information respecting the administration of this Agreement.

(2) DEFINITIONS

(3) EQUIVALENCY

(4) INFORMATION-SHARING

(5) EXECUTION, AMENDMENT, REVIEW AND TERMINATION

(6) COMPLIANCE WITH LAW

(7) ENTIRE AGREEMENT

This Agreement shall constitute the entire and sole agreement between the Parties and shall supersede all other communications, negotiations and agreements between the Parties in relation to the purpose and subject matter of this Agreement.

IN WITNESS WHEREOF, this Agreement is signed for Canada, by the Minister of the Environment and for Yukon, by the Minister of Environment:

GOVERNMENT OF CANADA

HON. LEONA AGLUKKAQ
Minister of the Environment

GOVERNMENT OF YUKON

HON. CURRIE DIXON
Minister of Environment

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