Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Quebec: SOR/2018-194
Canada Gazette, Part II, Volume 152, Number 21
October 1, 2018
P.C. 2018-1208 September 28, 2018
Whereas the Minister of the Environment has caused to be published in the Canada Gazette, Part I, on March 21, 2015, a copy of the proposed Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Quebec, substantially in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Order;
And whereas on August 23, 2018, the Minister of the Environment and the Government of Quebec entered into an agreement under section 4.1 footnote a of the Fisheries Act footnote b to the effect that there are in force provisions under the laws of Quebec that are equivalent in effect to provisions of the Wastewater Systems Effluent Regulations footnote c;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 4.2(1) footnote a of the Fisheries Act footnote b, makes the annexed Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Quebec.
Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Quebec
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 do not apply in Quebec in respect of a wastewater system that would otherwise have been subject to those regulations and that is subject to the Environment Quality Act, CQLR c. Q-2, and
- (a) the Regulation respecting municipal wastewater treatment works, CQLR c. Q-2, r. 34.1; or
- (b) in the case of a wastewater system that is owned or operated by the Government of Quebec, an authorization that is issued or amended under that Act on or after the day on which the agreement entitled Accord Canada-Québec relatif aux lois et règlements applicables aux ouvrages municipaux et provinciaux d’assainissement des eaux usées au Québec comes into force.
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
4 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
Quebec’s laws and regulations for managing wastewater effluent provide, for the wastewater systems covered by them, controls equivalent in effect to those under the federal Wastewater Systems Effluent Regulations (WSER). The two levels of government have negotiated the Accord Canada-Québec relatif aux lois et règlements applicables aux ouvrages municipaux et provinciaux d’assainissement des eaux usées au Québec (equivalency agreement). The equivalency agreement will allow the Governor in Council, through the Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Quebec (Order), to stand down the WSER for those wastewater systems in Quebec that are subject to both federal (WSER) and provincial 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 otherwise have been regulated by the WSER. This will reduce regulatory duplication while still ensuring the same reduction of harmful substances deposited to Canadian surface water from wastewater effluent.
Effluent from wastewater systems represents one of the largest sources of pollution, by volume, in Canadian waters. Negative impacts on 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 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 to wastewater systems that deposit a deleterious substance prescribed in the WSER to surface water via the final discharge point and that are designed to collect, or actually collects, an average daily volume of influent of 100 m3 or more in a year.
As per a key commitment of the federal government in the CCME Strategy, the federal regulations (WSER) can be administered through bilateral agreements between the federal government and each of the provinces and Yukon. These agreements will clarify the 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 were added to the Fisheries Act to allow the federal government to establish an equivalency agreement if provisions under the laws of a province 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. The equivalency agreement and Order for the WSER have been developed for Quebec under these provisions.
The objectives of the Canada–Quebec equivalency agreement and the Order are to reduce regulatory duplication and to increase regulatory clarity and efficiency for the management of wastewater systems in Quebec.
The Order, developed under the Fisheries Act, removes from the application of the WSER, wastewater systems that would otherwise have been subject to it and that are subject to Quebec’s Environment Quality Act (EQA), and either Quebec’s Regulation respecting municipal wastewater treatment works for municipal systems (Quebec municipal Regulation) or, in the case of wastewater systems that are owned or operated by the Government of Quebec, authorizations issued or amended under the EQA on or after the day on which the equivalency agreement comes into force. In Quebec, municipal systems may be operated by an intermunicipal board, a municipality or a person acting as a grantee for a municipality. The Order also removes from the application of subsection 36(3) of the Fisheries Act deposits of effluent, made from the final discharge point of those systems, which would otherwise have been regulated by the WSER. The basis for the Order is the equivalency agreement, which provides that there are provisions under Quebec’s laws and under the WSER that are equivalent in effect with respect to the municipal and to provincially owned or operated wastewater systems. The agreement was entered into on August 23, 2018.
The equivalency agreement was developed under the Fisheries Act and covers wastewater systems that are subject to WSER and provincial requirements. The Quebec municipal Regulation, made under the authority of the EQA, only applies to municipal wastewater systems, which represent more than 90% of systems covered by the WSER in the province. The EQA was modified in March 2018, and the modifications have been considered in the final version of the agreement. The requirements that will appear in authorizations issued to provincial systems are in a policy document called instruction note (“note d’instructions”), published on the Department of Sustainable Development, Environment and the Fight against Climate Change website. As of the date of entry into force of the agreement, only provincial systems for which these requirements have been included in provincial authorizations will be subject to the Order. The authority for the provincial authorizations stems from the EQA. Hereinafter, reference is made to the “Quebec Regulation and authorizations” to refer to both these authorizations and the Quebec municipal Regulation.
Quebec currently has three provincial wastewater systems designed to collect an average daily volume of more than 100 m3 of influent. Historically, these three wastewater systems have not actually collected more than 100 m3 of influent. These systems do not have overflows.
Municipal systems in Quebec are subject to mandatory requirements that are set out in the Quebec municipal Regulation. Quebec’s Regulation and authorizations for both municipal systems and provincially owned or operated systems results in wastewater system performance that is equivalent in effect to that required by the WSER.
The systems subject to the equivalency agreement must meet standards for concentrations of deleterious substances in effluent that are equivalent in effect to those in the WSER. The WSER effluent quality standards are as follows:
- carbonaceous biochemical oxygen-demanding (CBOD) matter not exceeding 25 mg/L (average);
- suspended solids (SS) not exceeding 25 mg/L (average);
- total residual chlorine (TRC) not exceeding 0.02 mg/L (average);
- un-ionized ammonia (NH3) less than 1.25 mg/L (maximum); and
- effluent that is not acutely lethal.
The effluent quality standards from the Quebec municipal Regulation are to be incorporated by reference into the relevant provincial authorizations. The standards for CBOD matter and for SS in the Quebec Regulation and authorizations are the same as those in the WSER. The Quebec Regulation and authorization do not include a standard for TRC. However, a Quebec ministerial position entitled Désinfection des eaux usées traitées — Position du Ministère prohibits the use of chlorination systems and chlorination-dechlorination systems for the disinfection of wastewater effluent. In addition, section 20 of Quebec’s EQA prohibits the discharge of an acutely toxic effluent or of contaminants likely to cause damage or impair wildlife quality, and prohibits the discharge of chlorinated wastewater effluent. The Quebec Regulation and authorizations also include a requirement to maintain an effluent that is not acutely lethal. This requirement is considered equivalent in effect to the standard for TRC in the WSER, which defines TRC as a substance associated with an acutely lethal effluent. It is necessary to maintain a concentration of TRC below 0.02 mg/L in order to have an effluent that is not acutely lethal. These provisions are thus considered equivalent in effect to the requirements for chlorine in the WSER. Quebec’s Regulation and authorizations require that all systems have an effluent that is not acutely lethal, thus they are both equivalent in effect to the WSER. The Quebec Regulation and authorizations do not include a standard for NH3. However, the requirements in the Quebec Regulation and authorizations, to maintain an effluent that is not acutely lethal are considered equivalent in effect to the standard for NH3 in the WSER, as NH3 in the WSER is a substance associated with an acutely lethal effluent. It is necessary to maintain a concentration of NH3 below 1.25 mg/L in order to have an effluent that is not acutely lethal.
The monitoring and reporting requirements of the WSER are based on the size and type of wastewater system. Larger, continuously discharging systems are required to monitor and report with greater frequency. The monitoring requirements in the Quebec Regulation and authorizations are based on the size and type of wastewater system. A greater monitoring frequency is required of larger, continuously discharging systems, closely parallelling the WSER. Under the Quebec municipal Regulation, reporting is required both monthly and annually for municipal systems with any level of treatment, which is more frequent than the quarterly or annual reporting frequency required under the WSER. The reporting frequency for provincially owned or operated systems is annual. The Quebec municipal Regulation does not require monitoring or reporting for wastewater systems currently without treatment. However, Quebec does have in place interim obligations allowing operators of wastewater collection systems that were not connected to a treatment plant as of January 11, 2014, to continue operating them. Municipal works must be connected to a treatment plant, no later than December 31, 2020. In the meantime, the Quebec municipal Regulation requires an action plan to be submitted to the province on measures to be taken to comply with the effluent quality standards, an implementation schedule for those measures, and a register containing information obtained during the operation of the facility. 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. Under the Quebec municipal Regulation, the operator of the system must maintain a register on the operation of a municipal wastewater system, including all data and measurements collected and a copy of all reports submitted, for a minimum of 10 years. Reports from provincially owned or operated wastewater systems will be publicly available upon request under the EQA. With respect to monitoring, reporting and record-keeping requirements, Quebec is considered to have requirements that are equivalent in effect to the WSER. Quebec’s EQA includes additional provisions which allow for transparency and information sharing.
Quebec’s compliance and enforcement provisions along with the Quebec Directive sur le traitement des manquements à la législation environnementale also constitute a level of assurance with regard to 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.
Quebec and Canada will share information respecting the equivalency agreement. Quebec will provide information annually to Canada with respect to the administration and enforcement of the Quebec provisions applicable to wastewater systems. Quebec will provide Canada with written notification of any proposed and actual amendments to any Quebec provisions relevant to wastewater systems. Canada will provide Quebec with information regarding proposed and actual amendments to the WSER or to any other regulations applicable to wastewater systems. Quebec and Canada have agreed that the agreement be evaluated every five years.
Either party to the agreement may terminate the agreement with at least six months’ written notice. As per subsection 4.2(5) of the Fisheries Act, the Order will cease to have effect if the equivalency agreement is terminated, and the WSER will apply again to municipal and to provincially owned or operated wastewater systems.
The “One-for-One” Rule does not apply to this agreement, as none of the regulated parties are businesses. There is no change in administrative costs to business.
Small business lens
The small business lens does not apply to this agreement, as none of the regulated parties are businesses.
Environment Canada has been conducting consultations 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 that all jurisdictions 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 each of the provinces and Yukon in order to clarify the 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 written submissions were received and taken into consideration. Parties that submitted comments included all provincial and territorial governments, 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.
The comments received supported the administration of the WSER through bilateral agreements between the federal government and each of the provinces and Yukon and indicated a desire to have the agreements put in place quickly. Since 2010, stakeholders have continued to state their desire for bilateral agreements to reduce regulatory duplication.
Through the 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.
On March 21, 2015, the proposed equivalency agreement and the proposed Order were published for consultation in the Canada Gazette, Part I, for a 30-day public consultation period. During this period, Environment and Climate Change Canada received a few comments and requests for clarification from four organizations, including two environmental groups, one municipality and one Member of Parliament. One environmental group supported the finalization of the equivalency agreement and the Order, while the other raised questions about the use of the WSER acronym. The requests for clarification were related to provincial wastewater systems (regulatory equivalency and location), regulatory equivalency with respect to ammonia, the monitoring of municipal systems without treatment facilities, compliance and application activities following the implementation of the equivalency agreement, and an update on discussions between the federal government and British Columbia with respect to the negotiation of an equivalency agreement. One organization also asked that a presentation of the proposed equivalency agreement be made to its members. All of these questions and comments were addressed directly either verbally or in writing. All of the organizations were satisfied with the answers, and none made any additional requests.
Following the publication of the equivalency agreement, Environment and Climate Change Canada held discussions with representatives of Aboriginal communities. Discussions and presentations, in person or in writing, were held with the directors general of the Band Councils, Tribal Councils and Regional Commissions and Organizations of the First Nations of Quebec, First Nations wastewater system operators, directors of the James Bay Advisory Committee on the Environment, the Cree Nation Government, the Grand Council of the Waban-Aki Nation, and the Mohawk Council of Kahnawake. During these discussions, no comments were made concerning the equivalency agreement with Quebec.
However, some representatives of Councils pointed out that it was sometimes difficult to make themselves heard by Quebec’s Department of Sustainable Development, Environment and the Fight against Climate Change on topics of concern to them. These concerns involve the recent discharge of untreated wastewater into the St. Lawrence River in November 2015 by the city of Montreal. These discharges are not subject to the equivalency agreement since they are not allowed under the WSER. The time and effort needed to manage the discharge in Montreal and to publish the in-depth examination report made it necessary to postpone the final publication of the equivalency agreement and Order.
The proposed agreement was endorsed by Quebec’s Department of Sustainable Development, Environment and the Fight against Climate Change, the Union des municipalités du Québec, the Fédération québécoise des municipalités and Réseau Environnement. Both the Quebec government and wastewater system owners and operators have expressed support for the equivalency agreement and the Order for the WSER to reduce regulatory duplication in the sector.
Regulatory clarity will be achieved, since only provincial requirements will apply in Quebec for municipal and provincially owned or operated systems that would otherwise be subject to both federal (WSER) and provincial requirements. The result will be streamlined wastewater effluent quality standards, reporting requirements and compliance timelines for municipal and provincially owned or operated wastewater systems. For those systems, reduced regulatory duplication and greater regulatory efficiency will be achieved in Quebec.
Given the equivalency in effect between the WSER and provincial requirements, there will be slight cost savings for the federal government as it will not be required to administer and enforce WSER in Quebec for municipal and provincially owned or operated wastewater systems. The wastewater systems covered by the equivalency agreement will have slightly lower costs as well. Currently, owners and operators of these 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 Quebec in accordance with schedules determined in the Quebec Regulation and authorizations. Reports are submitted to Quebec through an online database. The cost to the owners and operators of these systems will be reduced, as they will report to one rather than two levels of government.
There will be two types of cost savings, as set out in the WSER Regulatory Impact Analysis Statement (WSER RIAS): (1) administrative, non-capital costs to wastewater system owners and operators subject to the agreement; and (2) costs to the federal government, including those for enforcement, compliance promotion and the authorization officer function for the WSER.
The administrative cost savings stem from reductions in monitoring and reporting costs, as municipal and provincially owned or operated wastewater systems that would have been covered by the WSER will no longer have to submit annual or quarterly WSER monitoring reports, annual reports on combined sewer overflow, or transitional authorization progress reports at five-year intervals, reporting instead to only one rather than two levels of government. Administrative cost savings for wastewater system owners and operators are estimated to approximately $0.85 million net present value for the 2018–2065 period.
The federal government will avoid future costs associated with enforcement, compliance promotion and the authorization officer function for the WSER municipal and provincially owned or operated wastewater systems in Quebec.
Type of cost to the federal
Compliance and promotion
Therefore, it is estimated that the cost savings in net present value from reduced administrative and federal costs once the equivalency agreement is in place will be $0.85 million for owners and operators of wastewater systems and $4.6 million for the federal government, for a total of $5.5 million for the 2018–2065 period. A long-term time horizon was used to calculate these savings as the agreement is expected to extend over the estimated life span of a utility. While the agreement will be evaluated every five years, it does not have an end date.
No other costs or changes in distributional impacts due to the equivalency agreement are expected.
Implementation, enforcement and service standards
The Order removes the application of the WSER in Quebec for municipal and provincially owned or operated wastewater systems. Under the equivalency agreement, Quebec and Canada will share information. Each year, Quebec will provide Canada with information and data on the administration and enforcement of the Quebec provisions applicable to wastewater systems. The information sharing will allow for the ongoing evaluation by Canada of the Quebec provisions applicable to wastewater systems and will also provide Canada with required information for reporting results in 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 number of regulatees covered by the equivalency agreement reporting on time, a list of wastewater systems in compliance with effluent quality standards, information that would allow for calculating reductions in loading of CBOD matter and SS over time for those systems, and activities and actions undertaken by the Quebec government with respect to those regulatees in relation to compliance verification and enforcement.
In addition, Quebec will also provide Canada with written notification of any proposed and actual amendments to Quebec provisions relevant to wastewater systems, and Canada will provide Quebec with information regarding proposed and actual amendments to the WSER.
Quebec and Canada will also agree that the agreement be evaluated every five years, to ensure continued effectiveness and relevance.
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