Acts and Regulations

2002-13 - Water Classification

Full text
Current to 1 January 2024
NEW BRUNSWICK
REGULATION 2002-13
under the
Clean Water Act
(O.C. 2002-56)
Filed February 5, 2002
Under section 40 of the Clean Water Act, the Lieutenant-Governor in Council makes the following Regulation:
Citation
1This Regulation may be cited as the Water Classification Regulation - Clean Water Act.
Definitions
2In this Regulation
“Act” means the Clean Water Act; (Loi)
“applicable standard” means, with reference to a class of water, any standard set out in columns 2 to 5 of Schedule A beside the name of the class of water in column 1 of Schedule A, or, in the case of the Outstanding Natural Waters class when subsection 11(3) applies, any standard determined to apply under that subsection; (norme applicable)
“appropriate use” means a use that, if carried out by a person, would not constitute a violation of the Act or any other legislation, or a regulation, order or by-law made under any of them; (utilisation appropriée)
“aquatic community” means an interacting assemblage of species of aquatic life that live in a common area of a watercourse and, together with their habitat, form a functional unit with an identifiable structure; (communauté aquatique)
“aquatic life” means plant, animal and other species that live all or part of their lives in the water; (vie aquatique)
“estuary” means that part of a watercourse where fresh water meets and measurably dilutes salt water, and where the biotic community, including the vegetation, is characteristic of waters ranging in salinity from 5 to 20 parts per thousand; (estuaire)
“existing use” means, with reference to water that is classified or reclassified as any class under this Regulation, any use of the water that is being conducted at the time when the classification or reclassification of the water becomes effective, regardless of the purpose for which it is used; (utilisation existante)
“impoundment” means an artificially created watercourse having the characteristics of a lake; (réservoir)
“mixing zone” means the immediate area within the receiving water of a watercourse, where a contaminant being released into the receiving water is initially diluted, but does not include an area where the contaminant is treated; (zone de mélange)
“naturally occurring” means, with reference to an aquatic community or the water of a watercourse, displaying biological, chemical and physical characteristics that are not affected or are only minimally or temporarily affected by human activity; (être dans son état naturel)
“Panel” means the Outstanding Natural Waters Class Review Panel established under section 12; (Comité)
“ppm” means parts per million; (ppm)
“primary contact activity” means a recreational or other activity in or on the water of a watercourse in the course of which there is usually a risk of contact with, or ingestion of, the water; (activité de contact direct)
“Protected Area A” means a Protected Area A that is designated as a protected area under the Watershed Protected Area Designation Order; (secteur protégé A)
“receiving water” means the water within a watercourse that receives a contaminant; (partie réceptrice du cours d’eau)
“secondary contact activity” means a recreational or other activity in or on the water of a watercourse in the course of which there is not usually a risk of contact with, and there is not usually a risk of ingestion of, the water; (activité de contact indirect)
“significant withdrawal” means, with reference to the withdrawal of water from a watercourse, a withdrawal at a rate of more than 45 litres per minute, or at a rate of more than ten per cent of the flow of the water in the watercourse at the time of withdrawal, whichever is the lower rate; (prélèvement important)
“trophic status” means the status of the biological productivity of the water of a watercourse, based on measures of the secchi depth, chlorophyll a or phosphorus or a combination of them; (état trophique)
“under this Regulation” means, with reference to the classification of water, classified as a class in this Regulation or under a Water Classification Order; (en vertu du présent règlement)
“Water Classification Order” means an order made under section 3, subsection 7(3) or (4) or section 11; (décret relatif à la classification des eaux)
Watershed Protected Area Designation Order means New Brunswick Regulation 2001-83 under the Clean Water Act. (Décret de désignation du secteur protégé de bassins hydrographiques)
Water Classification Order
3The Minister may, in the Minister’s discretion, with the approval of the Lieutenant-Governor in Council and in accordance with this Regulation, by a Water Classification Order classify all or any portion of the water of a watercourse as one of the classes set out in paragraph 4(a), (c), (d), (e) or (f).
Classes of water
4(1)The classes of water for the purposes of classification under this Regulation are as follows:
(a) Outstanding Natural Waters class, applying to representative examples of naturally occurring water of a watercourse or uniquely outstanding natural water of a watercourse that, in the opinion of the Minister, meets the criteria set out in section 5;
(b) AP class, applying to all the water that is classified as AP class under section 6;
(c) AL class, applying to the water of lakes, ponds and impoundments that is classified as AL class under section 7 and, where the water is being classified or reclassified by a Water Classification Order, to the water of lakes, ponds and impoundments that is intended by the Minister to meet the applicable standards;
(d) A class, applying to the water of watercourses, if the water
(i) in the opinion of the Minister, can or could support use as a habitat for aquatic life, use for primary and secondary contact activity and other appropriate uses that will not prevent the applicable standards from being met, and
(ii) is intended by the Minister to meet the applicable standards;
(e) B class, applying to the water of watercourses, if the water
(i) in the opinion of the Minister, can or could support use as a habitat for aquatic life, use for primary and secondary contact activity and other appropriate uses that will not prevent the applicable standards from being met, and
(ii) is intended by the Minister to meet the applicable standards; and
(f) C class, applying to the water of watercourses, if the water
(i) in the opinion of the Minister, can or could support use as a habitat for aquatic life, use for secondary contact activity and other appropriate uses that will not prevent the applicable standards from being met, and
(ii) is intended by the Minister to meet the applicable standards.
4(2)Notwithstanding anything else in this Regulation, no water shall be classified as more than one class at any one time.
Criteria for classification as Outstanding Natural Waters class
5A watercourse and the water of the watercourse shall meet the following criteria in order for the water to be classified as Outstanding Natural Waters class:
(a) the quality and quantity of the water are as naturally occurring, allowing for changes in the chemistry or flow of the water that, in the opinion of the Minister, are barely measurable changes resulting from atmospheric conditions or uses of the water or associated land;
(b) the aquatic community of the water and of the watercourse is as naturally occurring, allowing for changes in the chemistry or flow of the water with resulting changes in its aquatic community that, in the opinion of the Minister, are barely measurable changes resulting from atmospheric conditions or uses of the water or associated land, and allowing for the presence of non-indigenous species if they are ecologically stable;
(c) no contaminants are being released into the watercourse or the water, other than those causing barely measurable changes resulting from atmospheric conditions or uses of the water or associated land;
(d) the water of the watercourse meets standards at least as stringent as the applicable standards;
(e) the water is suitable as a habitat for aquatic life and for other appropriate uses that will not prevent the applicable standards from being met; and
(f) the watercourse, in the opinion of the Minister, has one or more of the following characteristics:
(i) the quality of the water in the watercourse or the nature of its aquatic community is of a type commonly found in the Province;
(ii) a chemical or physical quality or characteristic of the water in the watercourse is unique;
(iii) it contains a rare, unique, threatened or endangered aquatic community;
(iv) it possesses outstanding recreational, aesthetic or historical qualities; or
(v) the quality of the water in the watercourse is such that protecting it in its natural state is of paramount importance to the people of the Province and would, in the opinion of the Minister, support or promote clean water or the integrity of the ecosystem.
Classification of Protected Areas
6On the commencement of this Regulation, the following water shall be classified as AP class:
(a) all the water in a Protected Area A, whether that Protected Area A is designated as a protected area under the Watershed Protected Area Designation Order before, on or after the commencement of this section, during such time as it remains so designated; and
(b) all the water of all watercourses flowing into a Protected Area A, during such time as paragraph (a) applies to the water in that protected area.
Classification of lakes, ponds and impoundments
7(1)Subject to subsections (1) and (2), on the commencement of this Regulation, the water of all lakes, ponds and impoundments shall be classified as AL class, if the water is not already classified as AP class.
7(2)Subsection (1) does not apply to excavations or containment structures used for the purpose of ponds on golf courses or for the purpose of wastewater treatment, ponds constructed for fish culture, agricultural purposes or fire protection or other artificially created ponds.
7(3)The Minister, with the approval of the Lieutenant-Governor in Council and in accordance with this Regulation, may in the Minister’s discretion in or by a Water Classification Order exclude from the AL class
(a) the water of any lake or pond or all lakes or ponds to which subsection (1) applies and that are located partly or wholly within a wetland that is being used or is to be used for peat extraction, and
(b) the water of any impoundments to which subsection (1) applies,
and paragraphs 10(1)(a) and (c) apply with the necessary modifications to such an order.
7(4)The water of any lake, pond or impoundment to which an order made under subsection (3) applies may, in the Minister’s discretion, with the approval of the Lieutenant-Governor in Council and in accordance with this Regulation, subsequently be designated as AL or any other class of water in or by a Water Classification Order and sections 3 to 5 and 8 to 10 apply with the necessary modifications to such an order.
Nominations or requests for classification of water
8(1)A governmental agency or person who wishes to propose that the water of a watercourse be classified under a Water Classification Order as Outstanding Natural Waters class may nominate the water by submitting to the Panel
(a) a nomination on a form provided by the Minister, and
(b) such other documentation and information as the Panel may require.
8(2)A governmental agency or person who wishes to propose that the water of a watercourse be classified under a Water Classification Order as any class, other than Outstanding Natural Waters class, or that the water of a watercourse be excluded from the AL class under subsection 7(3), may request that the Minister consider the matter by delivering to the Minister a written request on a form provided by the Minister.
8(3)The Minister may, without receiving a request under this section, begin considering the classification of the water of a watercourse as any class, other than Outstanding Natural Waters class, or begin considering the exclusion of water from the AL class under subsection 7(3).
Procedures for making a Water Classification Order
9(1)Before making a Water Classification Order classifying the water of a watercourse as Outstanding Natural Waters class, the Minister
(a) shall consider the recommendation that has been made by the Panel under subsection 13(2),
(b) may, if the Minister is not satisfied with any information or documentation provided by the Panel with its recommendation under subsection 13(2), request such further information or documentation as the Minister may require, and forgo taking any further steps until the information or documentation has been provided,
(c) shall, if the Minister considers it necessary, make an evaluation of the suitability of the water for classification as Outstanding Natural Waters class, including making an assessment of
(i) the past, current and potential uses and characteristics of land and water within the associated watershed, including the geology, soil, vegetation, topography and other aspects of the natural landscape and the climate, in terms of their relationship to water quality, and
(ii) whether or not the water and the watercourse meet the criteria set out in section 5,
(d) shall give notice of the intended classification, in the form of a public notice or public notices published in newspapers having general circulation in the area of the watercourse and in The Royal Gazette and by any other method the Minister considers appropriate, to the public and to such other persons as the Minister considers appropriate, indicating that information concerning the intended classification is available and can be obtained from the Minister and, if the intended classification is a reclassification under section 11, setting out the reasons for the intended reclassification,
(e) shall provide to interested members of the public, including landowners, business enterprises, groups of interested persons and such other persons as may own, use, enjoy, occupy or otherwise have an interest in the land and water within the associated watershed, opportunities for involvement in the classification process, including
(i) by providing a range of communication options through which those persons can receive information concerning the classification process, understand the ecological, social and economic consequences of any proposed classification and submit comments and concerns,
(ii) by giving those persons an opportunity to review the proposed content of the Water Classification Order,
(iii) by giving those persons an opportunity to submit to the Minister any additional information that may not have been considered by the Minister in the original evaluation,
(iv) by receiving written submissions from those persons, to the extent that it appears reasonable to the Minister to do so in the circumstances, and
(v) by any other method the Minister considers appropriate,
(f) if reasonably possible, shall assist persons referred to in paragraph (e) to develop, by consensus, a recommendation for the Minister in relation to the appropriate classification to be made,
(g) shall be satisfied that the water of the watercourse may reasonably be expected to continue to meet the criteria set out in section 5, and
(h) shall notify the public of the final classification in the form of a public notice or public notices published in newspapers having general circulation in the area of the watercourse, and by any other method the Minister considers appropriate.
9(2)If the Panel has recommended to the Minister under paragraph 13(2)(b) that the water of a watercourse not be classified as Outstanding Natural Waters class and the Minister has decided upon receiving the recommendation to follow it, the Minister shall give notice of that decision in the form of a public notice or public notices published in newspapers having general circulation in the area of the watercourse and in The Royal Gazette, and by any other method the Minister considers appropriate, to the public and to such other persons as the Minister considers appropriate, setting out in each notice a description of the watercourse and the reasons for the decision.
9(3)The Minister is not bound to follow any recommendation developed by consensus among persons referred to in paragraph (1)(f) but, if not following the recommendation, shall provide those persons with written reasons for not doing so.
9(4)Before making a Water Classification Order classifying as an AL class the water of a watercourse that, for any reason, is not already classified as an AL class, or before making a Water Classification Order classifying the water of a watercourse as an A class, a B class or a C class, the Minister
(a) shall, in the form of a public notice or public notices published in newspapers having general circulation in the area of the watercourse and in The Royal Gazette, and by any other method the Minister considers appropriate, notify interested members of the public, including landowners, business enterprises, groups of interested persons, such other persons as may own, use, enjoy, occupy or otherwise have an interest in the land and water within the associated watershed and such other persons as the Minister considers appropriate, that the evaluation of the suitability of the water for the proposed classification has begun, and extend an invitation to become involved in the process,
(b) shall make an evaluation of the suitability of the water for the proposed classification, including making an assessment
(i) of the quality of the water, and
(ii) of the past, current and potential uses and characteristics of land and water within the associated watershed, including the geology, soil, vegetation, topography and other aspects of the natural landscape and the climate, in terms of their relationship to water quality,
(c) shall involve such persons as the Minister considers appropriate in the process leading to the classification, including through participation in public meetings, in water quality monitoring or other information gathering activities, in the development of a consensus among those persons respecting the content of the proposed Water Classification Order and respecting any other matters those persons consider appropriate, and in any other activity the Minister considers appropriate, and
(d) shall follow the steps set out in paragraphs (1)(d) to (f) and (h), with the necessary modifications.
9(5)Notwithstanding anything else in this Regulation, the Minister may decide not to proceed with further consideration of a request made under subsection 8(2) or a recommendation made by the Panel under paragraph 13(2)(a), if the request or recommendation, in the opinion of the Minister, is clearly inappropriate.
9(6)The Minister, if deciding not to proceed under subsection (5), shall provide written reasons for not doing so to the governmental agency or person who made the request under subsection 8(2) or to the Panel, as the case may be.
Content of Water Classification Order
10(1)A Water Classification Order shall contain
(a) descriptions of the watercourses to which the order relates, or a plan showing those watercourses, or both, sufficient to identify the limits of the watercourses,
(b) the identity of the classification or classifications of the water being classified,
(c) the date on which the classification or classifications are to become effective,
(d) if the water to which the Water Classification Order relates has been previously classified under another Water Classification Order or in this Regulation and is being reclassified, a citation of that order or of this Regulation, as the case may be, and the name of the previous class,
(e) if the classification is of the water of a lake, pond or impoundment that has previously been excluded from the AL class under another Water Classification Order, a citation of that order, and
(f) if the Minister has concluded that the classification of the water of a watercourse plays a significant role in protecting the quality of the water or in protecting another social, economic or environmental characteristic of the water, a description of that significance, including, if the water is being classified as Outstanding Natural Waters class, a description of the characteristic or characteristics referred to in paragraph 5(f) that apply to the water and the watercourse.
10(2)The water of more than one segment or tributary of a watercourse may be classified, or excluded from AL class, in a Water Classification Order and the different segments or tributaries may be classified as different classes.
10(3)Where reasonably practicable, the water of all watercourses within one watershed that is to be classified as A class, B class or C class shall be classified by the Minister in the same Water Classification Order.
Reclassification
11(1)Subject to subsections (2) and (3), the Minister, with the approval of the Lieutenant-Governor in Council and in accordance with this Regulation, may in the Minister’s discretion by a Water Classification Order reclassify the water of a watercourse to a class, and only to a class, in relation to which more stringent standards are contained in Schedule A, and sections 3, 4, 5 and 8 to 10 apply with the necessary modifications to such a reclassification.
11(2)The Minister, with the approval of the Lieutenant-Governor in Council and in accordance with this Regulation, may in the Minister’s discretion by a Water Classification Order reclassify the water of a watercourse to a class having less stringent applicable standards if the Minister is satisfied that the reclassification is in the best interests of the Province for a social, economic or environmental reason, and sections 3, 4 and 8 to 10 apply with the necessary modifications to such a reclassification.
11(3)The Minister, with the approval of the Lieutenant-Governor in Council and in accordance with this Regulation, may in the Minister’s discretion by a Water Classification Order reclassify the water of a watercourse from AP class to Outstanding Natural Waters class, in which case the standards and prohibited activities that apply in relation to that water are the standards and prohibited activities set out in columns 2 to 6 of Schedule A
(a) beside the name of Outstanding Natural Waters class in column 1 of Schedule A, or
(b) beside the name of AP class in column 1 of Schedule A,
whichever are more stringent, on a case by case basis.
Outstanding Natural Waters Class Review Panel
12(1)The Lieutenant-Governor in Council, on the recommendation of the Minister, may establish an Outstanding Natural Waters Class Review Panel consisting of not fewer than 9 members and not more than 11 members appointed by the Lieutenant-Governor in Council.
12(2)The membership of the Panel shall be as follows:
(a) one member who is an employee of the Department of Environment and Local Government, who shall be the chairperson;
(b) one member who is an employee of the Department of Environment and Local Government, who shall be the secretary and who shall be responsible for collecting and organizing documentation, information and submissions and otherwise organizing and reporting on the activities of the Panel;
(c) one member who is an employee of the Department of Natural Resources and Energy Development;
(d) one member who is a member of a group having as its principal goal the conservation of the environment;
(e) one member who is a member of a group representing agriculture;
(f) one member who is a member of a group representing the mining industry;
(g) one member who is a member of a group representing the forestry industry;
(h) one member who is a member of a watershed association;
(i) one member who is a member of a group representing a university or college in the Province; and
(j) a maximum of 2 other members considered appropriate by the Lieutenant-Governor in Council.
12(3)The Panel shall elect a vice-chairperson from among its members as the alternate chairperson to act in the absence of the chairperson.
12(4)The Panel shall elect an alternate secretary from among its members to act in the absence of the secretary.
12(5)Each member of the Panel referred to in paragraphs (2)(a) and (c) to (j) shall hold office until the end of a term of 2 years, until the member resigns or ceases to fulfil the qualification for membership or until a successor is appointed, whichever occurs first.
12(6)A member of the Panel referred to in paragraph (2)(b) shall hold office until the end of a term established by the Lieutenant-Governor in Council when the member is appointed, until the member resigns or ceases to fulfil the qualification for membership or until a successor is appointed, whichever occurs first.
12(7)Members of the Panel may be appointed for consecutive terms.
12(8)Members of the Panel, except those appointed from within the civil service, shall be paid the reasonable and necessary travelling and out-of-pocket expenses necessarily incurred by the member in discharging the member’s duties as a member of the Panel, and may be paid such daily allowance or allowances as the Lieutenant-Governor in Council may from time to time establish.
2004, c.20, s.13; 2006, c.16, s.35; 2012, c.39, s.43; 2016, c.37, s.30; 2019, c.29, s.168
Duties of the Panel
13(1)The Panel
(a) shall accept and review all nominations of water for classification as Outstanding Natural Waters class and all related documentation and information,
(b) notwithstanding anything else in this Regulation, may forgo taking the steps established in paragraphs (c) to (i) respecting nominations that, in the opinion of the Panel, are clearly inappropriate,
(c) if unsatisfied with any information or documentation provided to it with a nomination, may request such further information or documentation as the Panel may require and, notwithstanding anything else in this Regulation, may forgo taking any further steps until the information or documentation has been provided,
(d) shall give notice of the intended classification, in the form of a public notice or public notices published in newspapers having general circulation in the area of the watercourse and by any other method the Panel considers appropriate, to the public and to such other persons as the Panel considers appropriate, indicating that information concerning the intended classification is available and can be obtained from the secretary of the Panel,
(e) shall consult with the public and receive submissions and presentations from any governmental agency or person having an interest in the nomination, to the extent that appears reasonable to the Panel in the circumstances,
(f) shall make an evaluation of the suitability of the water being considered for classification as Outstanding Natural Waters class, including making an assessment of the past, current and potential uses and characteristics of land and water within the associated watershed, including the geology, soil, vegetation, topography and other aspects of the natural landscape and the climate, in terms of their relationship to water quality,
(g) shall evaluate the submissions and presentations and assess whether or not the nominated water and the watercourse meet the criteria set out in section 5,
(h) shall select one of the courses of action set out in subsection (2), and
(i) may, to the extent that appears reasonable to the Panel in the circumstances, consult with the public concerning the course of action it has selected under paragraph (h), repeating the steps set out in paragraphs (e) to (h) with the necessary modifications.
13(2)Having carried out the process as required under subsection (1), the Panel shall report to the Minister concerning any evaluation or assessment conducted by it under paragraph (1)(f) or (g) and the outcome of any consultation with the public under paragraphs (1)(e) or (i), and shall
(a) recommend to the Minister that the Minister institute the procedure for considering the suitability of the water of the watercourse for classification as Outstanding Natural Waters class and indicate the reasons for making the recommendation, or
(b) recommend to the Minister that the water of the watercourse not be classified as Outstanding Natural Waters class and indicate the reasons for making the recommendation.
Procedures of the Panel
14(1)Subject to this section, to carry out its duties the Panel may establish its own rules of procedure, including rules relating to the manner of holding, the timing of and the location of, and other matters in relation to, meetings and hearings, the reception and consideration of documentation, information, submissions and presentations and the making of decisions and recommendations.
14(2)The Panel shall meet at least twice in each year to carry out its duties, except in circumstances where no nominations have been received in the previous 6 months and where no other business gives rise to a need for a meeting.
14(3)Four members of the Panel including the chairperson, but not including the secretary or alternate secretary, as the case may be, constitute a quorum.
14(4)The secretary or alternate secretary shall be present at every meeting of the Panel.
14(5)Decisions of the Panel shall be reached by consensus, except in circumstances where, in the opinion of the chairperson, a consensus has not been reached, in which case a decision shall be that of the majority of members present.
14(6)The chairperson shall not vote on decisions of the Panel except where a vote has resulted in a tie.
14(7)The secretary shall not vote.
Registers
15(1)Subject to subsection (2), the Minister shall maintain, in the form considered suitable by the Minister, registers of all Water Classification Orders and such other information in relation to them as the Minister considers appropriate.
15(2)Registers shall be available for viewing by the public during normal business hours at the Minister’s office, and at the regional offices of the Department of Environment and Local Government that the Minister considers appropriate, and may be made available to the public by electronic means.
2006, c.16, s.35; 2012, c.39, s.43
Mixing zones
16(1)Subject to the Watershed Protected Area Designation Order, where the creation of a new mixing zone is not prohibited in a class of water under column 6 of Schedule A, a person may create a new mixing zone in water classified under this Regulation as water of that class, if the mixing zone at all times meets the standards set out in Schedule B.
16(2)Subject to the Watershed Protected Area Designation Order, where the release of a contaminant into a mixing zone is not prohibited in a class of water under column 6 of Schedule A, a person may release a contaminant into a mixing zone in water classified as that class under this Regulation, if
(a) the person, the release and the mixing zone at all times are in compliance with any prohibition that is set out in column 6 of Schedule A in relation to that class of water, and
(b) the mixing zone at all times meets the standards set out in Schedule B.
16(3)Notwithstanding anything else in this Regulation, for the purposes of this Regulation, the standards set out in columns 2 to 5 of Schedule A do not apply to the water in a mixing zone.
Existing uses
17Notwithstanding that the water of a watercourse has been classified under this Regulation, a person may continue to conduct any existing use of the water and the watercourse and may begin to conduct a new use after the classification if the person is and remains in compliance with section 18, with the Act and with all other applicable legislation and with the regulations, orders and by-laws under any of them.
Offences
18(1)Subject to section 16, where the water of a watercourse is classified as a class under this Regulation and it is meeting any applicable standard for that class of water, no person shall affect or use the water, the watercourse or any area located within the boundaries of the watershed of the watercourse, whether above, on or below the earth’s surface, or cause it to be affected or used, so as directly or indirectly to cause the water to cease to meet the standard.
18(2)Subject to section 16, where the water of a watercourse is classified as a class under this Regulation but it is not meeting any applicable standard for that class of water, no person shall affect or use the water, the watercourse or any area located within the boundaries of the watershed of the watercourse, whether above, on or below the earth’s surface, or cause it to be affected or used, so as to impede or stop, directly or indirectly, any progress that the quality of the water may have been making or might have made toward meeting any of the applicable standards for that class of water.
18(3)Subject to section 16, where the water of a watercourse is classified as a class under this Regulation but it is not meeting any applicable standard for that class of water, no person shall affect or use the water, the watercourse or any area located within the boundaries of the watershed of the watercourse, whether above, on or below the earth’s surface, or cause it to be affected or used, so as directly or indirectly to cause the water to degrade in relation to the standard.
18(4)If the water of a watercourse is classified as a class under this Regulation, no person shall carry out an activity that is prohibited in relation to that class under column 6 of Schedule A, in, on or under the water, the watercourse or any area located within the boundaries of the watershed of the watercourse, whether above, on or below the earth’s surface.
18(5)No person shall create a new mixing zone, or release a contaminant into a mixing zone, in water that is classified as a class under this Regulation, if
(a) the person, the release or the mixing zone violates or fails to conform with any prohibition that is set out in column 6 of Schedule A in relation to that class, or
(b) the mixing zone at any time does not meet the standards set out in Schedule B.
Commencement
19This Regulation comes into force on March 1, 2002.
SCHEDULE A
 
Quality and Management Standards for, and Prohibited Activities in Relation to, the Water of Watercourse by Class
 
Column 1
Column 2
Column 3
Column 4
Column 5
Column 6
Name of Class
Aquatic Life Standards
Dissolved Oxygen Standards
Bacteria Standards
Standards for Trophic Status (apply only to lakes, ponds and mpoundments)
Prohibited activities
Outstanding Natural Waters
The aquatic life shall be as naturally occurring.
The concentration of dissolved oxygen shall be as naturally occurring.
The faecal coliform organisms and E. coli shall be as naturally occurring.
The trophic status shall be as naturally occurring.
Release of a contaminant; creation of a new mixing zone; release of a contaminant into a mixing zone; significant withdrawals.
AP
The aquatic life shall be as naturally occurring.
The concentration of dissolved oxygen shall be as naturally occurring.
E. coli shall be as naturally occurring; the total coliform organisms shall be as naturally occurring.
The trophic status shall be as naturally occurring.
AL
The aquatic life shall be as naturally occurring.
The concentration of dissolved oxygen for early life stages of cold water species shall be equal to or greater than 9.5 ppm and for other life stages shall be equal to or greater than 6.5 ppm; the concentration of dissolved oxygen for early life stages of warm water species shall be equal to or greater than 6.0 ppm and for other life stages shall be equal to or greater than 5.0 ppm; the dissolved oxygen content for estuarine waters shall be equal to or greater than 80% saturation.
The faecal coliform organisms and E. coli shall be as naturally occurring.
The trophic status shall be stable or naturally changing; the water shall be free of algae blooms that impair use as habitat for aquatic life, use for primary contact activity or use for secondary contact activity.
Direct discharge of a contaminant that is not being released, or any increase in the volume or concentration of a contaminant that is being directly discharged, on the commencement of the Regulation to which this Schedule is attached; creation of a new mixing zone.
A
The aquatic life shall be as naturally occurring.
The concentration of dissolved oxygen for early life stages of cold water species shall be equal to or greater than 9.5 ppm and for other life stages shall be equal to or greater than 6.5 ppm; the concentration of dissolved oxygen for early life stages of warm water species shall be equal to or greater than 6.0 ppm and for other life stages shall be equal to or greater than 5.0 ppm; the dissolved oxygen content for estuarine waters shall be equal to or greater than 80% saturation.
E. coli shall be as naturally occurring.
The trophic status shall be stable or naturally changing; the water shall be free of algae blooms that impair use as habitat for aquatic life, use for primary contact activity or use for secondary contact activity.
Creation of a new mixing zone; release of a contaminant into a mixing zone.
B
Releases shall not cause adverse impact to the aquatic community in that the receiving water shall be of sufficient quality to support all indigenous aquatic species without detrimental changes to the resident biological community.
The concentration of dissolved oxygen for early life stages of cold water species shall be equal to or greater than 9.5 ppm and for other life stages shall be equal to or greater than 6.5 ppm; the concentration of dissolved oxygen for early life stages of warm water species shall be equal to or greater than 6.0 ppm and for other life stages shall be equal to or greater than 5.0 ppm; the dissolved oxygen content for estuarine waters shall be equal to or greater than 80% saturation.
The faecal coliform organisms shall be less than 14 per 100 ml. for estuaries with identified shellfish beds, and E. coli shall be less than 200 per 100 ml for all other watercourses (geometric mean of a minimum of 5 samples in a 30 day period).
The trophic status shall be stable or naturally changing; the water shall be free of algae blooms that impair use as habitat for aquatic life, use for primary contact activity or use for secondary contact activity.
C
Releases that may cause some changes to the aquatic community are permitted if the receiving water is of sufficient quality to support indigenous fish species and maintain the structure and function of the resident biological community despite the releases.
The concentration of dissolved oxygen for early life stages of cold water species shall be equal to or greater than 9.5 ppm and for other life stages shall be equal to or greater than 6.5 ppm; the concentration of dissolved oxygen for early life stages of warm water species shall be equal to or greater than 6.0 ppm and for other life stages shall be equal to or greater than 5.0 ppm; the dissolved oxygen content for estuarine waters shall be equal to or greater than 80% saturation.
The faecal coliform organisms shall be less than 14 per 100 ml for estuaries with identified shellfish beds, and E. coli shall be less than 400 per 100 ml for all other watercourses (geometric mean of a minimum of 5 samples in a 30 day period).
The trophic status shall be stable or naturally changing; the water shall be free of algae blooms that impair use as habitat for aquatic life, use for primary contact activity or use for secondary contact activity.
SCHEDULE B
Minimum Mixing Zone Standards
1A mixing zone shall not be of a size, shape or character that impairs or interferes with existing and appropriate uses of the receiving water outside the mixing zone.
2A mixing zone of a release in the water of a lake, pond or impoundment in existence on the commencement of the Regulation to which this Schedule is attached shall not exceed 10 per cent of the volume of the portion of the receiving water available for mixing.
3A mixing zone in a watercourse shall allow an appropriate zone of passage for movement and drift of all stages of aquatic life in the water of the watercourse and, for materials that elicit an avoidance response from aquatic life, the mixing zone shall not occupy more than 25 per cent of the cross-sectional area or volume of flow at any transect in the receiving water of the watercourse.
4A mixing zone in a watercourse shall not cause the accumulation of contaminants in the sediments or biota of the watercourse to a degree that impairs existing or appropriate uses.
5A mixing zone in a watercourse shall not interfere with, or cause an irreversible change in the physical or chemical nature of, spawning grounds, nursery areas or migration routes of any aquatic species in the water of the watercourse.
6A mixing zone shall not contain any contaminant so concentrated that, in an acute lethality test established by the Minister, it is shown to kill more than 50 per cent of any test organisms subjected to it during an exposure period specific to those test organisms.
7A mixing zone shall not cause a measurable change in the biological characteristics of the community structure of an organism that is an endangered species, as defined under the Endangered Species Act, cause such an organism to respond in an irreversible or harmful manner, render such an organism more vulnerable to predation or cause an irreversible change in the physical or chemical nature of the habitat of such an organism.
8A mixing zone shall not contain any contaminant in a concentration that would attract fish, invertebrates or wildlife.
9A mixing zone in a watercourse shall not overlap with another mixing zone existing in the watercourse and, if 2 or more mixing zones are in proximity in the watercourse, the minimum mixing zone standards set out in this Schedule shall be applied to the 2 mixing zones as though they were combined into one zone.
10Subject to sections 1 to 9 of this Schedule, a mixing zone shall meet the limits for linear distances from the point of release, surface area involvement, volume of the receiving water entrained in the plume and other definable, quantifiable limits established by the Minister that are set out in any approval issued in relation to the mixing zone under the Clean Water Act, Clean Environment Act or Clean Air Act.
N.B. This Regulation is consolidated to December 20, 2019.