Phosphorus and the Law

On New Year’s Day, Manitoba’s new Water Protection Act became law. Its full importance is little understood, but worrisome on farms and in the boardrooms of agri-businesses. Intended to reduce the level of nutrient pollution into waterways, the Act’s poor design is stoking fears that it cannot accomplish its main purpose, even as it inflicts economic harm. Other models with more promise—using co-operation, mutual assistance and incentives instead of top-down mandates—received scant consideration.

Nutrient loading into Lake Winnipeg prompted the legislation. Satellite photos of large blue-green algae blooms in the lake indicate progressive deterioration, a function of increased nutrient loading, due in part to heavy rainfall amounts in recent years. Despite record recent fish catches, a consensus exists among experts in the field that continual lake-loading of the nutrients responsible for algae growth will eventually have serious consequences.

The main villain is phosphorus (P). When the ratio of this nutrient to nitrogen gets out of line, it leads to the troublesome algae. Alex Salki, a biologist with Fisheries and Oceans Canada, says more than half of the P load in Lake Winnipeg comes from external watersheds to the west and south of Manitoba. Of the balance, about a third originates in municipal wastewater or industrial emissions, known as “point sources,” and about two-thirds from diffuse or “non-point” sources in rural areas.

That’s where clarity ends and confusion starts. What’s the best way to reduce P-loading from non-point sources? The provincial government insists that all parties loading P contribute their fair share. That’s relatively easy for point-source polluters like municipalities and businesses. But mandates for farmers are a different matter.

It’s partly a problem of measurement. In a February conference on the Water Act, sponsored by the Frontier Centre and the Manitoba Sustainable Energy Association, Dr. Andrew Sharpley, a pre-eminent scientist in this field, said identifying the worst sources of P-loading from farms is fraught with difficulty. When do you test? Most P leaves fields during the spring run-off or after major rain events. A site that looks healthy on one day may not be the next. Even within individual farms, one field may not offend while another only metres away is loaded.

In recent years, the province has cut back budgets for studying nutrient management. According to professor of soil science Dr. Don Flaten, he’s alone at the University of Manitoba, and only two others, one in Brandon and one on the provincial payroll are working the problem. “We have no field-scale hydrologists in this province at all, no scientist dedicated to looking at water management at the field scale, not one,” he adds. “We’re actually not that well equipped.”

For the resources needed to comply, farmers are on their own. Smaller farms using more traditional nutrient management methods, such as winter spreading of manure, will be hit especially hard. After that, nobody’s really sure if the goal of P reduction in surface waters will be met.

The Water Protection Act demonstrates the shortcomings so typical of the “command and control” style of regulatory law. It’s obsessed with process, not results, and measurements of effectiveness typically consist of counting permits issued or citations levied on violators. The co-operative methods and mitigation strategies used to great effect by Sharpley and his colleagues in the Chesapeake Bay Project are given lip service by agents of the Province, but no funding.

Sharpley admits to imperfect progress, but his group’s pro-active approach to nutrient loading reduced about three-quarters of P-loading in surface waters from farms. Teams ventured out into rural areas and through a two-way dialogue scientists learned as much from farmers as they taught. They identified Beneficial Management Practices (BMPs) that work, like less overloading with fertilizers, animal feed laced with enzymes that break P down, better manure management and zero tillage.

We aren’t using this kind of outreach in Manitoba. Instead, we’ve embraced a model that contravenes most of the guidelines for regulatory quality and performance embraced by developed countries through the OECD a decade ago. Here’s a few:

  • Produce benefits that justify costs. Were the rules in the Act subjected to a cost-benefit analysis? “There is some work underway on that, but that work has not yet been completed,” according to Dwight Williamson, the province’s Director of Water Stewardship.
  • Minimize costs and market distortions. The province has not examined the use of BMPs as an alternative to the regulations. What about assistance for farmers? Williamson’s assurances, peppered with the words “might” and “could,” are limited to top-ups for existing federal programs.
  • Promote innovation through market incentives. What about using the tradable permits that reduced air and water pollution so successfully in other places? The Lake Winnipeg Stewardship Board rejected them. “Trading in pollution?” one participant exclaimed. “What’s next, trading permits for venereal disease?” Williamson says they could be explored in the future, once the P load is reduced. In other words, abandon an effective tool for solving a problem in favour of less effective methods.
  • In a panel discussion at the conference, the reliability of the science that underlies the province’s approach to the P problem was directly challenged. In the days that followed, conference organizers offered senior officials an opportunity to meet and speak with Dr. Sharpley. The invitation was ignored.

    That says it all. Regulate first, ask questions later. The Water Protection Act should be reconsidered.