Proposed Administrative Agreement

Proposed Adminitrative Agreement

Between the Government of New Brunswick and the Government of Canada

Regarding the administration of the

Wastewater Systems Effluent Regulations

In

New Brunswick

 

This Administrative Agreement is made between:

 

The Government of Canada as represented by the Minister of the Environment who is responsible for Environment and Climate Change Canada ("Canada")

and

The Government of New Brunswick as represented by the Minister of Environment and Climate Change ("New Brunswick”)

Whereas Canada and New Brunswick are signatories to the Canada-wide Strategy for the Management of Municipal Wastewater Effluent that establishes national performance standards for effluent quality from wastewater systems that discharge wastewater effluent to surface water and establishes a one-window approach to governance so owners and operators of wastewater systems deal with a single regulatory body;

And whereas Canada published the Wastewater Systems Effluent Regulations (WSER) as one of the federal government’s commitments to implement the Canada-wide Strategy for the Management of Municipal Wastewater Effluent;

And whereas New Brunswick promulgated the Water Quality Regulation  ̶  Clean Environment Act which aims at protecting provincial waters from pollution through, among other measures, the issuance of approvals to construct or to operate Wastewater Works;

And whereas Canada and New Brunswick recognize that there is a benefit to adopting a cooperative and harmonized approach to reduce administrative duplication resulting from comparable legislative and regulatory provisions, and that there is a need to specify the procedures of this approach in an agreement;

And whereas Canada and New Brunswick agree that New Brunswick, due to its existing relationship with owners and operators of municipally, privately, and provincially-owned wastewater systems, is well positioned to act as the principal point of contact for the administration of the Wastewater Systems Effluent Regulations;

And whereas section 4.1 of the Fisheries Act and the Order Designating the Minister of the Environment as the Minister Responsible for the Administration and Enforcement of subsections 36(3) to (6) of the Fisheries Act enable the Minister of the Environment to enter into agreements with a province to further the purposes of the Act, including facilitating joint action in areas of common interest, reducing overlap and harmonizing respective programs;

And whereas section 15 of the Clean Environment Act enables New Brunswick to enter into agreements with the Government of Canada relating to any matter pertaining to the environment;

And whereas by concluding this Agreement, Canada and New Brunswick hereby terminate the 2018 Agreement;

Now therefore Canada and New Brunswick (herein referred to as “the Parties” collectively and “Party” individually) agree as follows:

1. Definitions and interpretation

1.1 “Agreement” means this Administrative Agreement and includes annexes A and B and any amendments made to the Agreement in accordance with section 8.1 herein.

1.2 “Approval to operate” means an approval or certificate of approval, including any appendices, amendments, or renewals, issued to the owner or operator of a Wastewater Works by the New Brunswick Minister of Environment and Climate Change pursuant to section 8 of the New Brunswick Water Quality Regulation 82-126 under the Clean Environment Act, which sets out the terms and conditions by which a Wastewater Works, as defined in section 1.15 below, may be operated, and which has not expired or been suspended or cancelled.

1.3 “Authorization Officer” has the same meaning as that set out in section 1 of the Wastewater Systems Effluent Regulations

1.4 “Canada” means the Minister of the Environment who is responsible for Environment and Climate Change Canada.

1.5 “Clean Environment Act” means the Clean Environment Act, R.S.N.B. 1973, c. C-6, as amended from time to time.

1.6 “Compliance promotion” means any actions or measures, including site visits, taken by Canada or New Brunswick that promote conformity with the Wastewater Systems Effluent Regulations.

1.7 "Director" means the Director of the Authorizations Branch of the New Brunswick Department of Environment and Local Government.

1.8 “Enforcement activities” means the activities and measures undertaken by specifically designated personnel as described in the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act, 2001, as amended from time to time, and in the New Brunswick Environment Compliance and Enforcement Policy, as amended from time to time.

1.9 “ERRIS” means Canada’s Effluent Regulatory Reporting Information System, a web-based national reporting system used to collect and store the information reported under the Wastewater Systems Effluent Regulations.

1.10 “Fisheries Act” means the Fisheries Act R.S.C., 1985, c. F-14, as amended from time to time.

1.11 “Management Committee” means the committee that Canada and New Brunswick agree to establish as described in section 4.6 and in Annex B of this Agreement.

1.12 “New Brunswick” means the New Brunswick Department of Environment and Local Government.

1.13 “Wastewater system” has the same meaning as set out in section 1 of the Wastewater Systems Effluent Regulations.

1.14 “Wastewater Systems Effluent Regulations” or “WSER” means the regulations registered as SOR/2012-139 made under the Fisheries Act and published in the Canada Gazette, Part II, on July 18, 2012, as amended from time to time. 

1.15 “Wastewater works” has the same meaning as set out in section 1 of the Clean Environment Act.

1.16 “Water Quality Regulation” means the Water Quality Regulation — Clean Environment Act, as amended from time to time, a New Brunswick Regulation 82-126 made under the Clean Environment Act.

1.17 “WSER Regulated Community” means the owners and operators of Wastewater Systems in New Brunswick which are municipally, privately or provincially-owned and subject to the Wastewater Systems Effluent Regulations. For clarity, WSER Regulated Community are limited to those owners and operators of systems captured in clauses 18(1)(d)(iii)(B),(C) and (E) of the WSER.

1.18 For the purposes of interpretation, the words in the singular include the plural and vice-versa and words in one gender include all genders.

2. Purpose and objectives of the Agreement

2.1 Purpose

The purpose of this Agreement is to facilitate cooperation between Canada and New Brunswick with respect to the administration and enforcement of the Wastewater Systems Effluent Regulations and to reduce regulatory duplication resulting from comparable federal and provincial legislation with respect to wastewater in New Brunswick.

2.2 Objectives

The objectives of this Agreement are to:

2.2.1 Identify the holder of the position designated as the Authorization Officer in New Brunswick as set out in Item 4, Column 3 of Schedule 1 of the WSER and their duties as related to the administration of those regulations.

2.2.2 Describe roles and responsibilities for Canada and New Brunswick in order to facilitate cooperation in the administration of the WSER, including recognizing that New Brunswick will be the principal point of contact for the administration of the WSER for the WSER Regulated Community.

2.2.3 Describe how Canada and New Brunswick will endeavour to cooperate with respect to enforcement activities taking place under their respective responsibilities, to help increase the effectiveness and efficiency of each Party’s enforcement efforts, while recognizing that Canada is at all times responsible for the enforcement of the WSER, and that New Brunswick is at all times responsible for the enforcement of the Water Quality Regulation.

2.2.4 Describe the procedures for Canada and New Brunswick’s collaboration relative to the ERRIS for the reporting of information in accordance with the requirements in the WSER and in the Approvals to Operate.

2.2.5 Establish a Management Committee to oversee the implementation of this Agreement.

3. Principles

3.1 Canada and New Brunswick’s decisions will be based on science and risk management approaches to achieve positive environmental and health results.

3.2 Canada and New Brunswick will act to address environmental matters in ways which respect their jurisdiction and responsibilities. Nothing in this Agreement alters the legislative or other authority of the governments or the rights of any of them with respect to the exercise of their legislative or other authorities under the Constitution of Canada.

3.3 Canada and New Brunswick agree on the importance of timeliness and minimal duplication throughout the implementation of this Agreement.

3.4 Canada and New Brunswick recognize the importance of regular and open communication to ensure effective information sharing and cooperation, and prevent overlapping activities and disputes between Canada and New Brunswick to this Agreement.

4. Activities covered by this Agreement

Canada and New Brunswick agree to collaborate in carrying out the following activities:

4.1 Authorization Officer for the WSER

4.1.1 The Director is designated as the Authorization Officer for the WSER Regulated Community, for the purpose of the WSER, for the province of New Brunswick as set out in Item 4, Column 3 of Schedule 1 of the WSER.

4.1.2 The Director and all New Brunswick officials who support administration of the WSER under this Agreement will comply with all applicable laws and adhere to the WSER guidance material developed by Canada in carrying out their responsibilities as set out in this Agreement.

4.1.3 Canada will provide, if requested by New Brunswick, training on the WSER to the Director and all New Brunswick officials who support administration of the WSER under this Agreement either at a face-to-face meeting or through other means, as deemed feasible by Canada.

4.1.4 Notwithstanding the definition of the term Director in section 1 of this Agreement, New Brunswick may, during the term of this Agreement, decide for internal operational purposes that the position title of the Director must change. In the event that such a change is required and imminent, New Brunswick shall immediately provide written notice of the change in position title to Canada’s co-chair of the Management Committee. Notwithstanding section 8.1 of this Agreement, the new position title shall automatically replace the previous position title in the definition of the term Director in Section 1 of the Agreement once New Brunswick has officially changed the position title and Canada has published the change in the Canada Gazette. Canada and New Brunswick may take any other reasonable steps to inform the WSER Regulated Community as they deem appropriate.

4.2 Reporting

4.2.1 For the purposes of subsections 18(4), 19(4), and 48(1) of the WSER, the ERRIS is the electronic reporting system specified by Canada to be used by owners and operators of Wastewater Systems for submitting or reporting information set out in sections 18, 19, 20, 25, 31, 35, 40 and 44, and subsections 29(2), 41(1) and 47(1) of the WSER.

4.2.2 Canada and New Brunswick will have access to the information in the ERRIS that is reported by the WSER Regulated Community.

4.2.3 Canada will provide the Director with sufficient privileged access to the ERRIS to carry out his or her responsibilities under the WSER. In so doing, Canada grants the Director the right to use, download, and reproduce WSER-related information in the ERRIS. Canada explicitly does not grant the right to modify or remove WSER-related information from the ERRIS.

4.2.4 Where the WSER Regulated Community submits, in paper format, information for the purposes of reporting under sections 18, 19, 20, 25, 31, 35, 40 and 44, and subsections 29(2), 41(1) and 47(1) of the WSER, the Director will enter said information into the ERRIS. 

4.2.5 New Brunswick will keep all WSER-related information submitted or reported in paper format by the WSER Regulated Community for the term of this Agreement. Unless requested earlier by Canada, New Brunswick will provide all of the paper documents to the Wastewater Section of Canada no later than three months following the termination or expiry of this Agreement.

4.2.6 Canada will provide guidance materials and training on the ERRIS to the Director and all New Brunswick officials who support administration of the WSER under this Agreement, as required in Annex A.

4.2.7 Canada and New Brunswick’s Roles and Responsibilities concerning the ERRIS are detailed in Annex A.

4.3 New Brunswick Commitments for the WSER

4.3.1 New Brunswick will be the principal point of contact for the WSER Regulated Community.

4.3.2 New Brunswick will review the information submitted by the WSER Regulated Community through the ERRIS.

4.3.3 New Brunswick, while providing information and guidance and undertaking measures to encourage compliance with the requirements of the Approvals to Operate, issued under the Water Quality Regulation, will also provide information and guidance to the WSER Regulated Community as appropriate, and consistent with Canada’s WSER guidance material, to promote awareness of WSER requirements.

4.3.4 New Brunswick will identify members of the WSER Regulated Community suspected of non-compliance with the WSER and as soon as feasible upon such identification, refer any suspected instances of non-compliance with the WSER, to Canada’s Enforcement Operations Manager for New Brunswick. Therefore, the information to be provided will contain the wastewater system’s name, a description of the incident that includes the type of non-compliance reported and the period to which it relates.

4.3.5 New Brunswick will inform Canada’s Enforcement Operations Manager for New Brunswick when initiating enforcement measures regarding a member of the WSER Regulated Community suspected of non-compliance under the Water Quality Regulation.

4.3.6 New Brunswick will document for each interaction (such as communications and site visits) with the WSER Regulated Community, the date, nature of interactions, name and titles of persons contacted, and measures undertaken to promote awareness of WSER requirements, and provide this information to the Wastewater Section of Canada, as requested, and within the time frame requested.

4.3.7 New Brunswick will inform Wastewater Section of Canada as soon as feasible but no later than five (5) business days from the date of the issuance of a temporary bypass authorization or a temporary authorization to deposit un-ionized ammonia under the WSER.

4.3.8 New Brunswick will inform Canada (the Wastewater Section and the Enforcement Operations Manager for New Brunswick) as soon as it has been made aware of any planned releases of wastewater that cannot be authorized under the WSER.

4.3.9 New Brunswick will provide an annual summary to the Management Committee regarding activities under sections 4.3.3, 4.3.4, 4.3.5, 4.3.6, 4.3.7, and 4.3.8 of this Agreement on or before April 30 of each year, for the previous calendar year.

4.4 Cooperation on compliance promotion

4.4.1 Canada and New Brunswick agree they may collaborate in delivering regional presentations to the WSER Regulated Community and the owners and operators of municipally, privately and provincially-owned or operated Wastewater Systems operating under Approvals to Operate regarding the WSER and the Water Quality Regulation during the term of this Agreement, as deemed necessary.

4.4.2 The Parties may collaborate on assessing how best to use the wastewater and municipal associations to provide information to the WSER Regulated Community in New Brunswick during the term of this Agreement.

4.4.3 Canada is responsible for the development of the compliance promotion materials for the WSER.

4.5 Cooperation on enforcement

4.5.1 Canada and New Brunswick agree to cooperate with respect to enforcement activities taking place under their respective responsibilities. This cooperation may include, but is not limited to, planning and coordination of enforcement activities, sharing all types of information such as inspection reports and evidence, undertaking joint inspections and other activities as deemed appropriate. The means of cooperation will be established by the Management Committee as described in section 2.2 of Annex B to this Agreement.

4.5.2 Canada is the point of contact for the enforcement of the WSER and remains responsible at all times for the enforcement of the WSER and the pollution prevention provisions of the Fisheries Act.

4.5.3 New Brunswick is the principal point of contact for the enforcement of the Water Quality Regulation and remains responsible at all times for its enforcement.

4.6 Management Committee for this Agreement

4.6.1 Canada and New Brunswick will establish a Management Committee to oversee the implementation of this Agreement.

4.6.2 The roles and responsibilities of the Management Committee are described in the Terms of Reference for the Management Committee appended to this Agreement as Annex B.

5. Accountability

5.1 Canada and New Brunswick remain ultimately accountable and legally responsible for the administration and enforcement of their own regulatory and legislative requirements with respect to wastewater effluent.

6. Access to information and privacy

6.1 Canada and New Brunswick expressly acknowledge that their respective access to information and protection of privacy legislation applies to information gathered by or exchanged between parties for the purpose of complying with this Agreement, and agree to work together to honour and respect each other’s legal obligations under that legislation.

6.2 Canada and New Brunswick agree to notify each other through the Management Committee of any application for access to information or any other requests for information received from a third party relating to this Agreement.

7. Financial provisions

7.1 Canada will provide financial compensation to New Brunswick in the total amount of $ 130,130, for the term of this Agreement, for the activities set out in this Agreement undertaken by New Brunswick that are above and beyond the New Brunswick commitment to implement the Canada-wide Strategy for the Management of Municipal Wastewater Effluent.

7.2 Payment of the total amount set out in section 7.1 of this Agreement will be made in  seven (7) equal installments of $18,590, with the first installment to be made following the date upon which this Agreement becomes effective, in respect of the first twelve-month period of the term of this Agreement, and each succeeding installment to be made within, and in respect of, each subsequent twelve-month period of the term of this Agreement.

7.3 In the event that this Agreement is terminated by either Canada or New Brunswick prior to the end of the term of this Agreement, Canada will discontinue payment of any of the remaining installments set out in section 7.2 of this Agreement and New Brunswick will reimburse Canada a pro-rated amount of the installment received in that twelve-month period in which the Agreement is terminated, no later than sixty (60) days following termination of the Agreement.

8. Amendment and review of this Agreement

8.1 This Agreement may be amended from time to time by mutual written consent of the Ministers.

8.2 Canada will conduct a review of this Agreement fifteen (15) months before its expiry. The review will at minimum, determine whether the objectives, roles and responsibilities, and activities undertaken have been met, and identify any corrective action that may be required. The review report will be made available to the Management Committee no later than the expiration of the Agreement.

8.3 Canada will retain the intellectual property rights and interests in the review report referred to in section 8.2. In the event that New Brunswick wishes to contribute to the review or to conduct a joint review of the Agreement with Canada, the Parties will collaborate to establish how the review will be carried out addressing at minimum the requirements described above, and adequately deal with the question of intellectual property rights and interests in the review report.

9. Execution, duration, expiry and termination of the Agreement

9.1 This Agreement may be signed in several counterparts and each counterpart shall constitute an original document; these counterparts taken together shall constitute one and the same Agreement. Canada and New Brunswick agree that executed counterparts may be transmitted electronically and that such counterparts shall be treated as originally executed instruments. Canada and New Brunswick undertake to provide each other with an original copy of the Agreement bearing their respective actual original signatures within a reasonable period of time following execution of this Agreement.

9.2 This Agreement becomes effective on the date of the last signature affixed to this Agreement.

9.3 This Agreement terminates seven (7) years after the date on which it comes into effect.

9.4 This Agreement may be terminated earlier by Canada or New Brunswick either Party giving the other Party at least six (6) months written notice of termination; the notice would be sent through the co-chairperson of the Management Committee of the other Party.

10. Dispute resolution

10.1 Canada and New Brunswick agree that any dispute between them with respect to the interpretation, implementation, and administration of this Agreement is to be resolved by the co-chairpersons of the Management Committee within twelve (12) business days of the dispute being brought to the attention of the co-chairpersons.

10.2 Nothing in this Agreement precludes Canada or New Brunswick from fulfilling their respective mandates and obligations pursuant to their respective jurisdictions while the Parties reach a resolution or from taking such actions as may be deemed necessary in the event the Parties fail to reach resolution.

11. Official languages

11.1 This Agreement is prepared in the English and French languages, and both versions are equally authoritative.

12. Entire agreement

12.1 This Agreement shall constitute the entire and sole agreement between the Canada and New Brunswick and shall supersede all other communications, negotiations and agreements between Canada and New Brunswick in relation to the purpose and subject matter of this Agreement.

In witness whereof this Agreement has been executed on behalf of Canada by the Minister of the Environment and Climate Change, and on behalf of New Brunswick by the Minister of Environment and Climate Change:

 

For the Government of Canada

__________________________________________

The Honourable Steven Guilbeault

Minister of Environment and Climate Change

Date ______________________________________

 

 

For the Government of New Brunswick

___________________________________________

The Honourable Gary Crossman

Minister of Environment and Climate Change

Date _______________________________________

 

Annex A

Canada and New Brunswick’ roles and responsibilities concerning the Effluent Regulatory Reporting Information System (ERRIS)

1. Roles and responsibilities

Working together Canada and New Brunswick will

1.1 Coordinate activities related to the ERRIS such as the training of New Brunswick officials on the use and function of the system and assign responsibility for carrying out those activities agreed to by Canada and New Brunswick; and,

1.2 Jointly review the ERRIS once per year and propose improvements as necessary.

Canada will do the following:

1.3 Operate, modify and maintain the ERRIS to collect and store the information required to be reported under the WSER;

1.4 Provide the Director and certain other New Brunswick officials with training material for the ERRIS that outlines the requirements and specifications supporting the WSER reporting requirements, as requested

1.5 Provide the Director and certain other New Brunswick officials who support administration of the WSER under this Agreement with the ability to download the WSER information submitted by the WSER Regulated Community through the ERRIS;

1.6 Provide secure handling, storage, and real-time access by Canada and New Brunswick of information submitted to the ERRIS; and,

1.7 Share with New Brunswick, Canada’s WSER guidance material. 

2. Regulatory reporting using the ERRIS

Canada will provide the following through the ERRIS:

2.1 The use of the Canada single window information management system as the point of access to the ERRIS for the establishment of ERRIS user accounts and user roles;

2.2 The online modules and associated interfaces necessary for the WSER Regulated Community to complete the identification report, as per section 18 of the WSER; to complete the monitoring reports, as per section 19 of the WSER; to complete the combined sewer overflow reports, as per section 20 of the WSER; to complete an application for a temporary authorization to deposit un-ionized ammonia, as per section 35 and subsection 48(1) of the WSER; to complete an application for a temporary bypass authorization, as per section 44 and subsection 48(1) of the WSER; and,

2.3 The ability for the Director and certain other New Brunswick officials to generate reports stored within the ERRIS to assess compliance of the WSER Regulated Community with WSER requirements.

3. Costs and expenditures

3.1 Canada will be responsible for all costs of operating, modifying, and maintaining the ERRIS modules that are or would be required for the collection of the information required to be reported under the WSER during the term of this Agreement.

3.2 New Brunswick will be responsible for all costs related to the management of the WSER-related information collected through the ERRIS, once this information is downloaded to the New Brunswick information management system.

 

Annex B

Terms of reference for the Management Committee for the Administrative Agreement between Canada and New Brunswick regarding the administration of the Wastewater Systems Effluent Regulations

1. Members

1.1 The Management Committee will be jointly chaired by a representative of the Wastewater Section of Environment and Climate Change Canada for Canada and by the Director of the Authorizations Branch of the New Brunswick Department of Environment and Local Government for New Brunswick.

1.2 The Management Committee will include representatives from Canada and New Brunswick, and include one representative responsible for the ERRIS, one representative from the enforcement office of Canada.

1.3 A Party may appoint alternates as per section 5.2 of this Annex.

1.4 Co-chairpersons, representatives and alternates will be considered members of the Management Committee.

2. Responsibilities

The Management Committee is responsible for the following:

2.1 Overseeing the implementation of this Agreement;

2.2 Establishing all procedures required to effectively administer this Agreement, including, but not limited to, those pertaining to cooperation on enforcement and those ensuring that all relevant information is requested and provided appropriately to meet the timing requirements of Canada and New Brunswick in accordance with this Agreement;

2.3 Facilitating the complete and timely exchange of information relevant to this Agreement in accordance with relevant sections of this Agreement;

2.4 Administering and adhering to the financial provisions of this Agreement;

2.5 Making recommendations to Canada and New Brunswick regarding any amendments to this Agreement that may be required;

2.6 Establishing a concerted approach to the communication of information to the public and responses to media inquiries regarding this Agreement;

2.7 Providing written recommendations to Canada and New Brunswick, taking into consideration the report referred to in section 8.2 of this Agreement, for any future potential agreement; and,

2.8 Resolving disputes which may arise between Canada and New Brunswick as described in section 10 of this Agreement.

3. Operation of the Committee

3.1 The Management Committee may create joint federal-provincial working groups that report to the Management Committee to assist it in the effective implementation and management of this Agreement.

3.2 All decisions of the Management Committee will be made on a consensus basis.

3.3 Notwithstanding the expiry or early termination of this Agreement, the Management Committee will have six (6) months to complete its activities following the expiry or termination of this Agreement.

3.4 Canada will hold the secretariat function for the Management Committee.

3.5 The Management Committee is to record in writing all items discussed during its meetings and all decisions taken.

3.6 Within the two (2) weeks following every Management Committee meeting, the Secretariat will prepare minutes and transmit these minutes to the members of the Management Committee.

4. Public communications

4.1 Where possible, public communications and media inquiries arising from the activities undertaken pursuant to this Agreement are to be co-ordinated by the co-chairpersons.

4.2 Where one co-chairperson responds to public communications and public inquiries without prior consultation with the other co-chairperson, the responding co-chairperson is to inform the other co-chairperson and other Committee members, as soon as possible.

5. Meetings

5.1 The Management Committee is to meet a minimum of two (2) times per year to implement this Agreement, or upon the request of one of Canada and New Brunswick, at a place and time mutually agreed to by the co-chairpersons.

5.2 The Party who appointed the members to the Management Committee may authorize an alternate to replace a member at Management Committee meetings on an ad hoc basis.

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