How is our Water Protected?
Regulating water protection is primarily the responsibility of the provincial government, specifically the Department of Environment and Local Government. The Clean Water Act was established in 1989 and houses many of the most important pieces of legislation related to protecting the quality and quantity of the waters in our rivers, streams and lakes that underpin our diversity of aquatic habitats and species, our recreational opportunities and drinking water supplies.
Key regulations for the protection of surface water under the Clean Water Act (CWA) include the Watershed Protected Areas Designation Order (2001) Water Classification Regulation (2002), and the Watercourse and Wetland Alteration Regulation (1990). Ground water drinking supplies are regulated through the CWA by the Potable Water Regulation (1993) the Water Well Regulation (2002). The Water Quality Regulation (1982) under the Clean Environment Act (1973) is another key piece of legislation that prohibits, without permit, the pollution of any waters in the province.
As with all pieces of environmental legislation in the province, the above regulations are permit conditional and therefore require political will to enforce.
Water Protection going Down the Drain?
With strong legislation in source (drinking) water protection through the Protected Watershed Designation Orders, the Water Classification Regulation that establishes water quality standards and a progressive science-based Wetland Conservation Policy with a focus on ‘avoidance’, New Brunswick has often been touted across Canada as being forward-thinking in water protection measures. That has changed in recent years as many of these policies and regulations have been weakened or not enforced.
Furthermore, the provincial government has not yet fulfilled an obligation under the Climate Change Action Plan (2007) to establish a comprehensive water management strategy that would provide a framework for wise and sustainable use of our freshwater as its demand continues to rise. New Brunswick is one of the only provinces without an overarching guiding water management policy.
The weakening of the basic measures to protection our water resources is happening at a time when there is increasing pressure for reduced environmental constraints from proponents of projects such as mines, shale gas fields and subdivisions.
Policies and Regulations under Attack
Federal Fisheries Act
The Federal Fisheries Act was one of the strongest pieces of environmental legislation in Canada until changes were made through the Budget Implementation Bill (C-38) in June 2012 that significantly impacted fish habitat protection. The amendments included:
- A shift away from a focus on fish habitat protection to fish themselves, oblivious to the connection between fish populations, health and reproduction to the habitat and water quality and quantity which support these biological processes.
- The protection of fish has become narrowed to address only commercial, recreational and Aboriginal fisheries. This leaves a lack of protection for species that do not fit this definition.
- A change in terminology that will trigger enforcement abilities from “harmful alteration, disruption or destruction of fish habitat” or “HADD” (s. 35) will be merged with the prohibition against killing of fish (s. 32). This change introduces new subjective terms that are at present legally and scientifically undefined, giving rise to issues of proof that any activity is directly linked to causing death or destruction of habitat.
- A legal mechanism for the offloading of responsibility for fish habitat to the provinces and opens the door to suspending all or parts of the federal role in fish and fish habitat management. This will mean increased administration and enforcement costs to the province, or no enforcement of fisheries protection if there are no resources to allocate.
Water Classification Regulation
According to the website for the Government of New Brunswick, the purpose of water classification is to “set goals for surface water quality and promote management of water on a watershed basis. The Water Classification Regulation establishes water quality classes, and associated water quality standards, and outlines administrative processes and requirements related to the classification of water.”
The intention of this classification program, in partnership between many watershed groups and the Department of Environment, was to provide legally-binding standards to maintain community acceptable water quality conditions. However, the implementation of the system been stalled. Nineteen waterways have been given provisional classification; however, none have been given Designation Orders by the Minister, setting the maintenance of water quality into law.
In June 2012 the Nashwaak Watershed Association Inc. and four other community groups officially requested the Designation Order from the Minister of Environment, a right under the Regulation. The Minister acknowledged the receipt of this request. It was neither granted nor denied. The Request was timely for the Nashwaak River, provisionally classified as mostly ‘A waters’, given large industrial threats from shale gas exploration and a proposal for one of the world’s largest open pit mines for tungsten and molybdenum. The implementation of the Water Classification Regulation would hold proponents of these projects to maintaining the community accepted water quality standards in the River and its tributaries.
Submission by 5 community organizations requesting official classification of the Nashwaak
Government Resources on Water Classification and Water Classification Regulation – Planning for Water Quality [GNB] (recently removed from the GNB website)
Wetland Conservation Policy
The NB Wetland Conservation Policy has been guiding wetland protection since 2002. However, after eight years of science-based development of predictive wetland mapping and implementation guidelines, a ministerial decision was made in March 2011 to undermine the work of departmental staff because of backlash from developers and municipalities claiming that wetland protection was stifling development across the province. The Minister went on a “Wetland Listening Tour” and ultimately rolled back wetland management across the province.
The major changes to wetland protection brought in March 2011:
- Wetlands are now regulated by an outdated and inaccurate map administered by the Department of Natural Resources, rather than by what is physically present on the ground at a given site.
- Upwards of 50% of the wetlands that exist on the ground are not currently mapped leaving these wetlands completely open to development with no questions asked by the Department of Environment. This waiver of permitting process is actually in violation of the Clean Water Act’s Watercourse and Wetland Alteration Regulation. The definition of a regulated wetland in the Act is determined by wetland vegetation, soils, water table and size, not by whether or not it appears on a map.
- Wetlands do not require on-the-ground boundary delineation based on the water table, vegetation or soils, by professionals trained in wetland delineation.
- The compensation for regulated wetlands that are destroyed was decreased from 3:1 to 2:1, increasing the risk that the true functions of natural wetlands are not recreated.
- There is no requirement for a functional assessment for consideration when compensating for destroyed wetlands, increasing again the risk of not recreating wetlands that perform the same ecological services they originally provided.
In March 2012, The Department of Environment and Local Government was directed by the Minister to develop a process for stakeholder engagement in long term wetland management. this process is now underway as of February 2013.