Proposed Amendments to the Wastewater Systems Effluent Regulations - Discussion Document

1. Purpose

Environment and Climate Change Canada (ECCC) is proposing to amend the Wastewater Systems Effluent Regulations. The purpose of this consultation document is to inform interested parties of the key areas of the Regulations where ECCC is proposing amendments and to seek feedback. Interested parties should comment by March 5, 2022 (90 days after publication) to ensure their feedback is considered in draft proposed amendments to be published in Canada Gazette I.  

2. The Regulations and the need to amend

Effluent from wastewater systems is the largest source of pollution by volume in Canadian waters. The Wastewater Systems Effluent Regulations under the Fisheries Act were developed to protect the environment by lowering the level of harmful substances released through wastewater effluent. This reduces threats to fish, fish habitat and human health from fish consumption. The Regulations apply to systems that were designed to collect 100 m_­³ or more of wastewater per day. The Regulations do not apply to any wastewater system located in the Northwest Territories, Nunavut and north of the 54th parallel in the provinces of Quebec and Newfoundland and Labrador.  

The Regulations set national baseline effluent quality standards that are achievable through secondary wastewater treatment and prohibit the discharge of effluent that is acutely lethal to rainbow trout using prescribed methods. These standards came into effect in January 2015 for most systems. The Regulations specify requirements for carrying out effluent monitoring, reporting and record keeping. ECCC has made available the data reported by owners/operators under the Regulations and a summary report on the Wastewater Annual Reports and Data webpage.

Since coming into force, the Regulations have resulted in improvements in the quality of effluent being released into Canadian waters. A number of systems have undergone upgrades to achieve secondary level treatment or equivalent. As of 2019, 79% of wastewater systems met the requirements of the Regulations.

While the majority of systems meet the requirements of the Regulations, there is still undertreated and untreated wastewater released to the environment through wastewater systems that have little or no treatment in place. Undertreated wastewater can also be released temporarily from otherwise compliant systems due to repairs, maintenance work and upgrades at treatment plants. The Regulations have provisions in place to manage these undertreated and untreated wastewater releases under specific conditions through transitional and temporary authorizations. Through several years of implementing the Regulations and based of feedback received, ECCC has identified gaps in the transitional and temporary authorization provisions and opportunities for improvement.

ECCC is proposing amendments to the transitional and temporary bypass authorization provisions of the Regulations to address comments and concerns raised as well as amendments to address implementation issues and administrative challenges. The goal of the proposed amendments is to enhance regulatory clarity, strengthen environmental protection, and improve transparency.

Further information on the status of proposed amendments can be obtained on our Consultations on Wastewater webpage.

3. Proposed areas to be amended

1. Transitional Authorizations
2. Temporary Bypass Authorizations
3. Key Administrative Improvements

3.1 Transitional Authorizations

Background

While most wastewater systems in Canada were capable of achieving the effluent standards of the Regulations when they came into effect in 2015, a number of systems were unable to achieve the required level of treatment. Understanding that upgrading or constructing new wastewater treatment systems requires extensive time to plan and finance, the Regulations allowed owners/operators to apply for a transitional authorization if their system was not designed to meet the effluent limits. Owners/operators had until June 2014 to collect data and apply for a transitional authorization. Depending on the level of risk, a transitional authorization offered an extension period to the end of 2020, 2030 or 2040 to comply with the effluent limits of the Regulations. Systems posing the highest risk to the receiving environment were given less time to upgrade and comply with the effluent quality limits (2020), whereas systems with medium and low risks to the receiving environment were given more time to upgrade (2030 and 2040).

ECCC issued transitional authorizations based on the level of risk using a system of points, which considered effluent quality (carbonaceous biochemical oxygen demand (CBOD), suspended solids (SS), un-ionized ammonia, and total residual chlorine), annual average daily volume, and the sensitivity of receiving environment.

To apply for a transitional authorization, owners/operators had to:

• Collect data at the final discharge point for 12 consecutive months over the 15-month period right before the application was made (2012-2014)
• Show that their average concentrations of CBOD and/or SS exceeded 25 mg/L
• Demonstrate their system was not designed to meet secondary level treatment (i.e. primary systems, raw dischargers)

Transitional authorization holders are required to meet site-specific effluent limits that ensure effluent quality does not get worse over time. They have to follow similar monitoring and reporting requirements as other owners/operators, and submit progress reports to ECCC every five years. ECCC issued 65 transitional authorizations.

More than 100 owners/operators did not apply for a transitional authorization even though their system(s) would likely have been eligible (see Annex I). There is no authority in the current Regulations to issue transitional authorizations after the 2014 deadline. The wastewater systems that did not apply are mostly small, rural communities that require significant upgrades to meet the limits of the Regulations. These wastewater systems represent just over 1% of total wastewater volumes released in Canada. These owners/operatorsare in long-term non-compliance with the Regulations as considerable time (5+ years) and funding is needed for upgrades to be completed. This situation does not help facilitate and support small communities in making positive steps to plan and implement upgrades. 

Proposal: new transitional authorization application process

ECCC is proposing to provide eligible owners/operators of wastewater systems another opportunity to receive a transitional authorization to the end of 2030 or 2040. This recognizes the level of effort, time, and investment that is needed to bring these systems into compliance. It would provide low to medium risk communities with the time to plan and finance upgrades to their wastewater treatment systems as originally intended under the Regulations.

The new application process is proposed to be based on the existing eligibility criteria in section 24 of the Regulations. It requires a comprehensive demonstration that the system consistently fails to meet the CBOD and/or SS effluent quality limits and that the wastewater system is not designed to meet secondary level of treatment. The new application process will continue to utilize the existing systems of points in the Regulations designed to evaluate the level of risk associated with a system. The criteria taken into consideration include the system’s daily volume, effluent quality, sensitivity of the receiving environment and if applicable, the impact of combined sewer overflow points.

The systems of points are presented in Schedule 2 and Schedule 3 of the Regulations.

Facilities will not be eligible to receive a new transitional authorization if they already have one or if they would have been eligible to receive one for a 2020 deadline.   

As noted, in order to apply for a transitional authorization, the owner/operator was required to monitor and sample effluent quality from 2012-2014. Many of the owners of eligible systems that did not apply for a transitional authorization were unaware of the Regulations and did not conduct any monitoring and sampling during that time.

ECCC has considered a number of approaches for a new transitional authorization application process such as opening a new fixed window for submitting applications or allowing a more flexible application process. The fixed approach would require systems to gather new data during a specific period after the coming into force of the amended regulations to assess eligibility and would set a new deadline in the future for applications to be submitted. A flexible approach would not specify a fixed date by which applications must be submitted but would instead allow an open/rolling application period.

Based on feedback received in early engagements, ECCC is proposing a flexible approach using an open application period (with no deadline to apply). This would enable the use of monitoring data already submitted under the Regulations (historical data) to apply for a transitional authorization where there is eligibility to do so. More than 90% of communities that would be eligible to apply for transitional authorization are already reporting data under the Regulations.

This approach closely mirrors the intent of the original application process and some applicants would use the same monitoring period as the initial application process (2012 – 2014). Allowing the use of historical data reduces sampling and monitoring burden for the application process for those owners/operators that have been meeting their monitoring and reporting obligations. These qualifying owners/operators could be issued a transitional authorization as soon as the amended regulations go into effect (e.g. as early as 2023). The application would require owners/operators to use the earliest historical data already reported under the Regulations. For continuous wastewater systems, applicants could choose a 12-month period within their first 15 months of reporting under the Regulations. For intermittent systems (e.g. lagoons), applications would select a 12-month period within their first 24 months of reporting, as most of these systems only report once per year.

This approach also provides a window of opportunity to any new systems requiring a transitional authorization in the future. For wastewater systems that are new to reporting and are eligible for a transitional authorization, they would monitor and report to ECCC for at least 12 months. Figure 1 provides an illustrative example of how owners/operators would use monitoring data to apply for a transitional authorization using the proposed monitoring period.

Figure 1. Illustrative examples of how a flexible application period can be used to apply for a transitional authorization. For this purpose we will assume amendments would come into force in 2023.

System A is system newly reporting under the Regulations after the amendments come into force. Owners/operators can sample from 2023-2025 and be issued a transitional authorization in 2025.

System B is a continuous system that has been sampling and reporting to the Department since 2016. They would use data from 2016-2017 and could be issued a transitional authorization as early as 2023. 

Revising ammonia sampling requirements in the transitional authorization application process: proposal for un-ionized ammonia

ECCC is also proposing to modify the un-ionized ammonia provisions in the transitional authorization application provisions of the Regulations (Sub-section 25(1)). Between 2012 and 2014, wastewater systems were required to sample for un-ionized ammonia and these results were required for a transitional authorization application. Since 2014, sampling for un-ionized ammonia is no longer required under the Regulations and systems are not sampling for un-ionized ammonia.

Based on analysis of historical un-ionized ammonia data in previous transitional authorization applications, exceedances of ammonia in transitional authorization applications occurred infrequently. Requiring new un-ionized ammonia sampling will increase the administrative burden for applicants and delay the transitional authorization application process. ECCC is proposing to allow flexibility for owners/operators to demonstrate that ammonia is not a risk factor through either a limited number of tests for ammonia, the use of historical data submitted federally/provincially or from indirect factors that may indicate ammonia is not an issue (never failed acute lethality, naturally low pH, etc.). 

3.2 Temporary bypass authorizations

Background

To enable owners/operators of wastewater systems to do repairs, maintenance and upgrades, the Regulations contain temporary bypass authorizations to allow wastewater systems to temporarily exceed the effluent quality standards at the final discharge point. The final discharge point is the point where effluent is released from the wastewater treatment plant before entering the environment. These activities aim to ensure the longevity of the infrastructure. Types of work include cleaning filters, repairing lagoon liners, or replacing parts that have reached end of service life such as pumps and valves.

ECCC can issue a temporary bypass authorization requested by owners/operators to bypass one or all treatment processes and the release of undertreated or untreated effluent for a specific period. The temporary bypass authorization provisions require that the request is received at least 45 days in advance and that the bypass is designed to minimize the volume of effluent and concentration of pollutants, and the effluent is released through the final discharge point. ECCC approves between 10-20 requests for temporary bypass authorizations every year.

Over the course of administering the Regulations, ECCC has observed the need for maintenance activities to be performed on sewer collection systems (i.e. the network of underground pipes and pumping stations that carry wastewater to the treatment plant). Maintenance, repairs and upgrades are essential to keep this infrastructure in good condition in the long term. Types of work include repairing or replacing aging sewer pipes, critical maintenance on pumping stations, or de-clogging sewer pipes and pumping stations. These activities may also result in releases of undertreated or untreated wastewater through overflow points in the wastewater infrastructure (non-final discharge points).

Most sewer collection systems are designed with structures to deliberately release excess flow when the system becomes overloaded to avoid breakages. Since working on this type of infrastructure often needs to be done in dry conditions, sewage is often re-routed through overflow points to isolate the section where work is being performed. Temporary measures or equipment can sometimes be used to avoid a release (by pumping sewage back into sewer or hauling it to treatment plant, for instance); however, it is not always technically or economically possible. Wastewater systems must always remain operational to prevent sewage backups into homes and businesses. In some cases, the environmental implications of alternatives (i.e., trucking wastewater to another treatment plant) may pose greater negative risks overall.

Planned releases occurring at overflow points are currently not authorized under the Regulations, and are subject to the general prohibition in subsection 36(3) of the Fisheries Act. This prohibits the deposit of deleterious substances into water frequented by fish, or to any place that may reach such water. Owners/operators are required to immediately notify ECCC of all unauthorized releases, and ensure that all reasonable measures are taken to prevent the deposit or mitigate its effects, and submit a report in writing following the event.

ECCC typically learns of these releases through the Fisheries Act notifications process, or sometimes not at all. This process generally results in a more reactive response to these types of releases.

Once ECCC enforcement officers are made aware of an alleged contravention of the pollution prevention provisions of the Fisheries Act, they take appropriate action in accordance with the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. Before taking enforcement action, enforcement officers consider, on a case‑by‑case basis, any damage to the environment, any underlying factors, and any reasonable measures that may have been taken to mitigate damage and to comply with laws and regulations.

This approach tends to be more reactive and limits the ability for the department to more proactively manage these releases to minimize environmental impacts and proactively require public notification or Indigenous engagement on these releases. Some provinces authorize these types of releases, which creates regulatory inconsistency between federal and provincial regimes and a lack of regulatory mechanism to manage these releases.

Proposal

ECCC has considered a number of approaches to include temporary bypass authorizations from the non-final discharge point under the Regulations. This includes simply applying the existing provisions to these types of releases, or developing new provisions to manage these releases.

Based on feedback received in early engagement, ECCC is proposing to create new temporary bypass provisions in the Regulations for both final and non-final discharge point applications. This would allow the application of a more rigorous approach to all planned releases throughout the wastewater infrastructure. A tiered approach would set authorization conditions based on the level of potential environmental impact of the release. The existing provisions would be used as a starting point with tiers added to strengthen environmental protection and transparency, and streamline where it is relevant to do so.

The proposed tiered approach would be based on a system of points to determine the level of risk and determine the regulatory requirements for a temporary bypass authorization. A number of criteria would be taken into consideration including the flow rate of the planned bypass (which considers the duration and volume of the release), level of treatment that is applied to the effluent before release, and sensitivity of the receiving environment. The number of points would determine when a temporary bypass authorization request must be submitted to ECCC, as well as specific requirements that must be met. Table 1 and Figure 2 show an illustrative example of a proposed point-based approach. This approach is consistent with the existing point based scheme that has been used for transitional authorizations in Schedule 2 of the Regulations.

Table 1. Example of the proposed tiered approach point system

Figure 2. shows an example of the proposed tiered authorization scheme, with associated requirements based on total number of points allocated for a given planned release.

For Level 1, it is proposed to have a streamlined procedure with a notification period of 14 days for proposed bypasses. ECCC is proposing that owners/operators be required to submit information to ECCC on the circumstances of the planned bypass and the mitigation measures to be put in place. Owners/operators would be required to sign off that their bypass has been designed to minimize volume and concentration of pollutants. Owners/operators would be required to submit a follow-up report to ECCC to confirm the duration and volume of the release as well as the mitigation measures put in place. All nearby communities must be notified of the planned work prior to the application being submitted.  Level 1 bypasses would always be treated to at least a primary level.   

Example of a Potential Level 1 Scenario:
A medium sized community wanting to conduct a small repair must bypass the effluent (rated at 20,000 m³ per day, or approximately 800 m³ per hour), directly after the secondary treatment step, and discharge the effluent into a large river. In this instance, the community would fall under Level 1:

• Rate of flow:  250-2,500 m³/hour (3 points)
• Level of treatment: Greater than primary treatment (1 point)
• Receiving environment: Open marine waters/Large rivers (1 point)

Total number of points allocated: 5 points (Level 1)

Given that the bypass results in a partially treated effluent into a large receiving environment at a modest flow rate, the application process would be streamlined. 

For Level 2, owners/operators would be required to submit the information from Level 1 as well as be required to notify all nearby communities potentially impacted by the proposed bypass. Owners/operators must demonstrate that all nearby communities have been notified of the planned work prior to the application being submitted. Owners/operators would also be required to submit the results of notifications given in relation to the planned release from all communities, groups and the public. Owners/operators will also be expected to provide a description of the location of the proposed bypass, of the facility where the work is to be conducted as well as the receiving environment. A follow-up report would also be required as per Level 1. ECCC will require 45 days notification for any proposed bypasses in this level. ECCC is also proposing provisions to require long-term prevention plans for recurring requests at Level 2 to reduce frequency over the longer term. 

Example of a Potential Level 2 Scenario:
A small community needs to do repairs to the treatment plant and to do so, must bypass effluent (rated at 3,000m³ per day) after the primary treatment step, and discharge to a marine harbour near a shellfish harvesting area.

• Rate of flow: <250m³/hour (1 point)
• Level of Treatment: Primary (3 points)
• Receiving environment: Small rivers/shellfish harvesting area (5 points)

Total number of points allocated: 9 points (Level 2)

Given that the bypass is large volume and in a smaller receiving environment, even though it is partially treated, the process will require more enhanced review and assessment from ECCC than a Level 1 release. 

For planned releases that would end up in Level 3 of the tiered approach, ECCC is proposing that owners/operators provide ECCC with more detailed technical information related to potential impacts and mitigation measures in addition to the requirements from Level 1 and 2. This would allow for a more thorough and detailed assessment by ECCC staff to understand potential impacts of the release. ECCC proposes to include plume delineation studies, analysis of alternative options and a detailed mitigation plan to outline the actions that will be taken to minimize the impact to the receiving environment. The application period is proposed to be 90-120 days to allow sufficient time for this review.

All nearby communities must be notified of the planned work prior to the application being submitted and provide ECCC with the results of any consultations undertaken in relation to the planned release, including with Indigenous communities or groups, nearby communities and the public. ECCC will proactively engage directly with communities potentially impacted from releases that fall within this Level.

Monitoring and sampling during and after the event would be required to assess how effective mitigation measures have been at reducing adverse effects on the environment. A follow-up report would also be required.

ECCC is also proposing provisions to require long-term prevention plans when there is a request at this Level to reduce frequency and impacts over the longer term.

Example of a Potential Level 3 Scenario:
A large community needs to conduct maintenance work on the sewer system and to do so, must bypass untreated effluent (rated at 500,000m³ per day) to a lake.  

• Rate of flow: >2,500m³/hour (5 points)
• Level of Treatment: No treatment (5 points)
• Receiving environment: Lake/Enclosed Bay/Estuary (3 points)

Total number of points allocated: 13 points (Level 3)

Given this releases is large, untreated, and in a potentially sensitive receiving environment, the process would require a detailed assessment of the bypass and potential impacts.

Summary

Based on available data, ECCC anticipates that most planned releases and applications would fall into the Level 1 or Level 2 categories, with very few (if any in a given year) that would end up in Level 3.

Establishing a tiered approach increases the level of environmental protection, transparency, accountability and oversight for all planned releases and clarifies the application process. It would provide ECCC with additional information to understand potential impacts of all planned releases. A tiered approach would allow ECCC to respond proactively and set conditions proportionate to the proposed bypass and associated level of risk.

3.3 Key administrative improvements

ECCC is also proposing to address various operational/administrative challenges that have arisen during the course of administering the Regulations.

Consolidated systems

Under the Regulations, owners/operators are allowed to consolidate 10+ outfalls as one “future” system. This allows owners/operators to sample and monitor at the single outfall that represents the largest environmental risk for the duration of their transitional authorization. ECCC is proposing to allow owners/operators to consolidate 2+ systems as one “future” system as long as those outfalls will become a single wastewater treatment plant. This will allow more owners/operators to use the consolidation provisions. It reduces administrative burden by focusing monitoring and reporting on the outfall with the largest volume and largest potential risk to the environment. Owners/operators could better allocate their resources to upgrade their system rather than monitoring multiple individual outfalls.

Monitoring and reporting provisions

ECCC is considering clarifying and simplify administrative provisions, including optimizing monitoring and reporting provisions for small systems holding a transitional authorization.

Under the current Regulations, systems granted a transitional authorization have the same monitoring and reporting requirements as any other systems. For example, small continuously discharging systems (releasing less than 2,500 m³ per day) are required to sample on a monthly basis and report on a quarterly basis whereas intermittent systems have to report on an annual basis. This monthly sampling frequency requires a significant level of investment in resources and finances for small communities. Harmonizing the monitoring and reporting requirements of continuously discharging systems with those of intermittent systems will help communities concentrate their efforts into upgrading their wastewater systems. ECCC is proposing that small systems granted a transitional authorization only be reporting on an annual basis, regardless if they have a continuously or intermittently discharging system.

ECCC is also reviewing other testing, monitoring and reporting provisions. This review is intended to streamline existing provisions and reduce regulatory burden.

4. Next steps

The key targets for regulatory developments are outlined below: 

• Interested parties are welcome to provide feedback on this document until March 5, 2022
• Consultation sessions on the detailed proposal will be held with interested parties from January to March 2022
• Publication of the proposed amendments to the Regulations in the Canada Gazette Part I for 60 day comment period is proposed in fall 2022

5. Providing feedback

All interested parties are invited to provide feedback and perspectives on the regulatory proposal to amend the Wastewater Systems Effluent Regulations. Please submit comments in writing by March 5, 2022.

ECCC has developed a feedback form to facilitate comments. You are welcome to use this form

Comments can also be submitted by email to eu-ww@ec.gc.ca or by mail to:

Wastewater Section
Environment and Climate Change Canada
351 St. Joseph Boulevard
Gatineau QC, K1A 0H3

Annex I

Wastewater systems that may be eligible for a transitional authorization were assigned a potential transitional authorization date using the system of points in Schedule 2, and where applicable Schedule 3.

 Systems with a 2020 deadline that are likely not eligible based on the proposed approach

Systems eligible and expected to receive a transitional authorization to the end of 2030 

Systems eligible and expected to receive a transitional authorization to the end of 2040 

Systems that may be eligible for a transitional authorization but have not provided enough data to be assessed