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Regulation Proposal Notice:   EBR Registry Number:   012-0621
Title:
Experimental Lakes Area – Enabling Continued Research
 
Ministry:
Ministry of the Environment
Date Proposal loaded to the Registry:
January 16, 2014
 
 
Keyword(s):   Fish and Wildlife  |  Monitoring  |  Water  |  Protected Areas
Related Act(s):   Environmental Protection Act, R.S.O. 1990  |  Ontario Water Resources Act, R.S.O. 1990
The comment period for this proposal is now over.
 
Description of Regulation:

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.

Purpose of Regulation:

Scientific research has been conducted at the ELA in northwestern Ontario since 1968. In the past, the site was overseen and operated by the federal Department of Fisheries and Oceans, and as such provincial authorization of experiments under Ontario legislation was not required.

Now that the federal government has announced that it is withdrawing funding for ELA science activities, the site is returning to provincial jurisdiction and subject to Ontario’s environmental protection legislation. While some statutes (such as the Environmental Assessment Act) already provide for exemptions for scientific research, the EPA and OWRA do not contain such provisions, or provide for a mechanism to authorize experiments which may involve the addition of certain contaminants to lakes to observe their effects. Such research at the ELA has proved invaluable in the past, including significant discoveries related to mercury, acid rain and phosphorus, and informed freshwater management around the world. MOE is proposing regulations that would allow research at ELA to proceed in compliance with environmental legislation, and protect the natural environment.

In developing this proposal, MOE worked to balance environmental oversight and protection with the need to respect the process of scientific evaluation of research proposals, and minimize administrative burden for researchers. The focus of the regulations would be on preventing experiments from causing irremediable harm to the environment, and that appropriate monitoring and remediation are carried out. Evaluation of research proposals from a scientific perspective will be carried out by the appropriate experts and ELA’s research board with input from the province.

Enabling the important work at ELA to continue will contribute to sound environmental decision-making and evidence-based policy in Ontario and around the world.

Other Information:

The ELA is located in Northwestern Ontario, approximately 50 km east of Kenora and 100 km east of the Manitoba border. This unique area is comprised of 58 small freshwater lakes and drainages totalling 270 km2 (27,000 ha) with supporting buildings and facilities to undertake experimental research. The remote location enables a whole ecosystem approach to carry out long-term research on the aquatic environment. Ontario has benefited directly from work done in the ELA, which has informed initiatives such as acid rain control, bi-national programs to address phosphorus loadings to the Great Lakes, and impacts of mercury emissions.

Public Consultation:

This proposal was posted for a 30 day public review and comment period starting January 16, 2014. Comments were to be received by February 15, 2014.

All comments received during the comment period are being considered as part of the decision-making process by the Ministry.

Please Note: All comments and submissions received have become part of the public record.

Regulatory Impact Statement:

This proposal would enable scientific researchers to continue to carry out experiments at the Experimental Lakes Area, some of which have been ongoing for more than 40 years. It would also allow a new operator to ensure that experiments at ELA are being carried out in compliance with provincial environmental legislation.

The approach being proposed would continue past practice at ELA, and provide a streamlined, comprehensive mechanism for authorizing experiments. Supporting the regulation with technical guidance will help ensure clarity of process and consistency in decision-making.

 
Contact:

Siobhan Corr
Project Manager
Ministry of the Environment
Integrated Environmental Policy Division
Strategic Policy Branch
77 Wellesley Street West
Floor 11
Toronto Ontario
M7A 2T5
Phone: (416) 314-1618