We talk a lot about sewage here at Waterkeeper. It’s one of those pollution problems that affects swimmability, drinkability, and fishability in one fell swoop. And it’s a major concern in virtually every big city in the Canada.
I’m transfixed by the Montreal story because it’s a litmus test for Canada in the 21st Century. Are we a country that dumps sewage into our waterways because we don’t think we have a “choice”? Or are we a country that finds a better way?
As a Canadian, I’m thinking what many people are thinking: is this even legal? Can Montreal really dump its sewage in the St Lawrence River for 8 days without breaking Canada's environmental laws?
As an environmental lawyer, I know that major changes to the Fisheries Act in 2012, combined with special wastewater regulations that exempt sewage treatment plants from the standard rules, make these unchartered waters.
At first glance, the Fisheries Act rollbacks make Montreal’s argument seem plausible; the Fisheries Act has changed and maybe the city is in the clear (legally). But our analysis at Lake Ontario Waterkeeper suggests that Montreal's insult to the St Lawrence River may still be “quasi-criminal” activity. The Fisheries Act may still have some teeth left yet.
At the very least, the city’s excuses for discharging raw sewage into the drinking and recreational water of millions should be scrutinized by an independent judge, as well as the public that uses the river to swim, drink, and fish.
It was just last week that the public caught wind of Montreal’s plan. The city is in a bind with road construction and would need unhook the sewage pipe and discharge over 2 billion gallons (8 billion litres) of sewage into the St Lawrence River for over 7 days. The city justified the discharge as a minimal nuisance - it might keep people out of the water for a week or two but ultimately it would be diluted and washed away.
In other words: no swimming, no drinking, no fishing, no problem.
Despite the understatements, Montrealers and other Great Lake citizens became quite concerned about the atrocious example being set by a major North American city. In response, the mayor put the decision on hold for a couple days.
The reprieve was short-lived and soon the mayor agreed to go ahead with the discharge. He argued that October was a good time to release the sewage as it would have little impact on fish. According to the mayor, the costs of treating the sewage were too great when compared to the alternative of discharging it into river.
Absent throughout was the question: was it legal? The city said it had provincial approval but avoided talking about the Fisheries Act, which is Canada's most powerful tool for keeping our waters swimmable, drinkable, and fishable.
So is it legal?
My first assumption when I heard about the plan was that the city had looked into its legality. I wondered if the changes to the Fisheries Act in recent years made the discharges defensible if there was provincial consent.
The Fisheries Act was weakened considerably by the federal government in 2012 when it downloaded responsibility for enforcing parts of the act onto the provinces (among many other changes).
Earlier this year, Canada and Quebec reached an agreement to exempt Quebec from certain provisions in the Fisheries Act and replace them with Quebec-specific rules. (Any province or territory can create such an agreement, it seems.)
But - and this is important - it appears as though this agreement is not yet in force. It cannot be relied upon. So, unless the city of Montreal receives permission from the federal government, the proposed sewage dump into the St Lawrence River should be considered a quasi-criminal act. Under the old rules, this would have meant up to $1-million a day in fines and 6 months in jail.
A complex web of “rules”
In 2012, the Federal Government enacted the Wastewater Systems Effluent Regulations (WSER). These regulations were enacted pursuant to sections 36(5) and 43(g.1),(g.2) of the Fisheries Act and were first proposed a decade ago.
Under most circumstances, the Act says no one can put a “deleterious” substance into a body of water. Special regulations exempt industries - like wastewater treatment - from that general prohibition. They create a set of special rules that apply only to that industry.
The Wastewater Systems Effluent Regulations are comprehensive. They list carbonaceous biochemical oxygen demanding matter (i.e. bacteria and other microbes), suspended solids, total residual chlorine and un-ionized ammonia as 'prescribed deleterious substances'.
Once a deleterious substance is listed as prescribed - it can be released without violating section 36(3) of the Fisheries Act if it is released in 'quantities and concentrations' that are authorized by regulations. Essentially, the WSER say what these quantities and concentrations are.
One important limit in the regulations is that of 'acute lethality' (defined as whether a sample at 100% concentration will cause a 50% mortality rate in rainbow trout within 96 hours). Wastewater cannot be acutely lethal.
The wastewater regulations weren’t the only changes to the Fisheries Act in 2012. The federal government changed the law in omnibus budget bills. One of the many changes made to the Fisheries Act is that under section 4.2 the Federal government can now enter into 'equivalence agreements'. These agreements allow the feds to exempt a province from certain sections of the Fisheries Act if they have 'equivalent' regulations in place. The act does not define what 'equivalent' means - so this obviously gives the federal government huge discretion.
In 2014 Quebec enacted regulations (called Regulation respecting municipal wastewater treatment works) under the Environment Quality Act. They were similar to the federal regulations, but with some significant differences. One difference is that the Quebec regulations appear to provide an exemption that allows municipalities to divert wastewater during maintenance work. It seems as under Quebec law a municipality can divert (i.e. dump) raw sewage during a repair so long as it gives the minister three weeks notice and promises to 'minimize or eliminate the effects of the diverting'.
The City of Montreal says it has permission from the province - this likely means the city has given the requisite notice to the province and promised to mitigate the impact as best they can. In contrast - under the federal regulations - Montreal is required to apply for a permit at least 45 days before the the diversion. Importantly, the authorization officer may refuse to issue an authorization if ‘they believe the issuance would result in adverse effects on fish, fish habitat or the use by man of fish that cannot be mitigated’.
As mentioned, in March 2015 there was a notice posted in the Canada Gazette indicating that the government intended to enact a declaration of equivalency. This would exempt the province of Quebec from the federal regulations and section 36(3) of the Fisheries Act. However, this declaration has not yet come into force. There is already a similar declaration in force for the Yukon, and the government plans to enact one for BC in the near future.
Since the declaration has not yet come into force - the Wastewater System Effluent Regulations still apply. Environment Canada has already indicated that such a large discharge would violate its rules. Accordingly, the city will need to formally apply for an authorization to divert sewage.
As far as I can tell, Montreal must give 45 days notice. The city must also respect the fact that the process is not pro forma. This means that the federal government has an obligation not to authorize the discharge if it is worried about the consequences, which it should be. Unless the federal government signs off on it, the city of Montreal cannot legally discharge the sewage into the St. Lawrence River.
That’s the best case scenario for Montreal
Even if Montreal were to receive authorization under the federal regulations to discharge sewage, it might run afoul of other sections of the Fisheries Act. For example, section 35 of the act prohibits an activity that causes serious harm to fish that are part of a commercial, recreational, or Aboriginal fishery.
Even though the Fisheries Act has been severely weakened in the last few years, the law still makes it hard to dump 8-billion litres of raw sewage into the St. Lawrence. And this is as it should be. It ought to be difficult, if not impossible, to inflict such harm on our waters.
Montreal is a large, powerful municipality. Its sense of urgency shouldn’t change the fact that there are provisions of the Fisheries Act that the city must comply with. Let’s hope the publicity will make it difficult for the federal government to turn a blind eye or open a drawer and dig out its rubber stamp.
Footnote: Why is sewage scary?
Sewage stinks, but that's not necessarily its worst property. Sewage contains harmful bacteria, such as E. coli, that can make humans very sick. When sewage is released into a waterbody the bacteria in the sewage take oxygen out of the water which can kill fish and other aquatic life. The solids suspended in sewage can turn water murky, further impairing the ability of fish to breath and making it difficult for them to see.
Sewage also contains diverse range of contaminates that we don’t want in our waterways. There are nitrates and phosphates that encourage algae growth, heavy metals that can bioaccumulate in fish, as well as micro plastics, pharmaceuticals and whatever else people and industry (irresponsibly) put down their drain.