The Experimental Lakes Area (ELA) is a unique research facility located in northwestern Ontario; it has been in operation since the late 1960s.
ELA is the only whole ecosystem freshwater research facility in the world. It encompasses 58 freshwater lakes and basins designated for research. In Canada and around the world, it has been a powerful resource for understanding the impact of human activities and industrial development on freshwater ecosystems, based on whole-lake experiments and manipulations.
Research conducted at the ELA has informed freshwater management for over 40 years, including significant discoveries relating to mercury, acid rain and phosphorus.
In May, 2012, the federal government announced it would no longer fund the scientific work or operate the ELA. The International Institute for Sustainable Development (IISD) has come forward as a potential operator of the ELA, and the province is currently negotiating an agreement with IISD to allow them to operate the site over the long term.
The purpose of this posting is to set out regulations being proposed by the Ministry of the Environment (MOE) to create a mechanism to authorize experiments at the ELA under provincial environmental legislation. A proposed ELA research board, made up of IISD, provincial representatives, and other qualified members, would oversee the broader scientific process of approving and facilitating experiments. Neither the Environmental Protection Act (EPA) nor the Ontario Water Resources Act (OWRA) currently provides a mechanism to authorize the types of research experiments traditionally undertaken at the ELA, so the regulations would provide for experimental activity to proceed within the geographic area of the ELA in compliance with legislation.
MOE is proposing a regulation under the EPA and a regulation under the OWRA, as both Acts regulate discharges of contaminants into the natural environment. The regulations would set out criteria that must be met for an experiment to be carried out, such as an appropriate monitoring and remediation plan, appropriate notification to the public and First Nations and controls to minimize adverse effects and prevent offsite impacts. If the experiment satisfies prescribed criteria, a MOE Director would issue a Statement of Authorization. In practice, the process of obtaining an authorization would be integrated with the scientific research board approval process.
If a Statement of Authorization was issued, the regulation would provide that certain specified provisions of the EPA and OWRA would not apply to the experiment. These specified provisions may include the general pollution prohibitions (sections 14 of the EPA and section 30 of the OWRA), the duty to report discharges to the MOE, approval requirements that could apply to the experiment, order provisions, and potentially other provisions of the EPA and OWRA that deal with discharges into the natural environment. The regulations would only apply within the geographic boundaries of the ELA, and only to authorized experimental activities. Conditions that the experiment must satisfy as it is being carried out would also be prescribed. These conditions would make operational many of the criteria that the experiment had to satisfy to be authorized by the Director. For instance, prescribed conditions could relate to the implementation of the research plan, monitoring and remediation program, and measures to minimize adverse effects. If the experiment fails to satisfy the prescribed conditions, the regulation would require the Director to issue a Statement of Non-Authorization, meaning the experiment would lose its exemption and cease to be authorized under provincial legislation.
The requirement to obtain the Director’s authorization would also replace EPA and OWRA requirements to obtain other ministry approvals where they might be triggered by research activity (for example, Permits to Take Water for research on flooding, or Environmental Compliance Approvals for experiments which involved discharging wastewater). Conditions that would ordinarily be included in these approvals would instead form part of the mandatory research plan for the experiment. Allowing the Director’s authorization and research plan to substitute for other ministry approvals would maintain environmental protection while allowing scientific experiments to proceed.
MOE will be developing technical guidance on the process for obtaining an authorization and potential environmental protection factors that would need to be included in research plans (such as appropriate monitoring and remediation).
The approach to authorizing research the ministry is proposing continues past practice at ELA, where the Department of Fisheries and Oceans would seek MOE’s input on potential conditions to ensure experiments were carried out in an environmentally responsible way, and request MOE’s written endorsement of experiments before allowing them to proceed. Now that the federal government is withdrawing support for the ELA, the province needs a regulatory mechanism under Ontario’s statutes to authorize experiments, and ensure adequate environmental oversight. The ministry is proposing to have the regulations take effect by Spring 2014, to enable next year’s ELA research to proceed as planned.