The Rural Voice, 2000-11, Page 37Agrilaw
Intensive farms — current controls don't work
Within a month after Walkerton
residents were struck by the E.coli
contamination of their municipal
water supply, the Provincial Minister
of Agriculture issued a directive for
the purpose of protecting interim
control bylaws passed by
municipalities to provide them "with
the time they need to assess the
impact of agricultural operations in
their community". Are there
problems with provincial and
municipal regulation of manure
storage and spreading?
Provincial Minimum Distance
Separation Guidelines (MDS)
establish minimum required
separation distances for agricultural
facilities from other property uses.
Many municipalities have enacted
nutrient management bylaws which
incorporate MDS requirements and
stipulate that intensive farm
operations must comply with MDS
separation distances.
In a recent appeal decided by the
Ontario Municipal Board, the
province objected to the livestock
density restrictions imposed by a
municipal bylaw on the grounds that
"there is no policy or scientific basis
for prohibition of farm operations
with more than 600 livestock units
per site" and that "the MDS formulae
is effective and provides needed
protection". Provincial witnesses took
the position that such "arbitrary
controls are unnecessary" because of
MDS requirements and the necessity
for development of nutrient
management plans under many
municipal bylaws. After considering
the province's position and related
evidence, and substantial other
evidence concerning the potential for
environmental contamination despite
MDS and nutrient management plan
requirements, the Board concluded
that the statutory mandate of
municipalities under the Planning Act
and Provincial Policy Statements is
"to give top priority to public health
and safety and in doing so protect the
water supply". In upholding the
livestock density restriction in the
municipal bylaw, the Board stated:
"While the province has
continually updated and amended
the MDS formula as experience
dictated, it is clear the formula
does not adequately deal with
expansion of existing operations.
The MDS
deals mainly
with odour
problems.
Nutrient
management
plans are a
positive step
in regulating
manure
disposal,
(but)
enforcement
and
regulating of
the plan is a
problem and needs to be
addressed."
Enforcement
of nutrient
management
plans is a
problem that
needs to be
addressed'
Shortly following the release of
this OMB decision, the
Environmental Commissioner of
Ontario issued a special report to the
Legislature on "The Protection of
Ontario's Groundwater and Intensive
Farming". In his report, the
Environmental Commissioner stated:
"Ontario is in urgent need of a
groundwater protection and
management strategy, as
evidenced by the demands being
placed on Ontario's groundwater
resources and the fragmented
management of groundwater ...
Environmental laws created when
small operations were the norm
may not address the associated
environmental risks that come
with more intensive farm
operations."
The Provincial Task Force on
"Intensive Agricultural Operations in
Rural Ontario" has also concluded in
its consultation report that "the MDS
formulae should be reviewed".
The OMB, Environmental
Comi4tissioner and Provincial Task
Force have all determined that MDS
and nutrient management plans as
presently implemented are
insufficient to protect Ontario's water
resources. Other regulatory
mechanisms, such as livestock
density controls, have been endorsed.
What is clear is that an effective
regulatory response must be
developed to address the prospect of
large intensive farm operations.0
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,
practices 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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NOVEMBER 2000 33