Although regulation regarding composting in a flood plain will be unique to British Columbia, there are some important principles that may apply to other geographical areas. This topic is relevant to compost facility operators, land owners and qualified professionals. There are several important summary points:
1. composting of animal waste is a farm activity and eligible farm expenses are compensated by the province in case of a flood
2. flood proofing of compost facilities is not required but is recommended under British Columbia’s Organic Matter Recycling Regulation
3. The Ministry of Environment has specific requirements regarding structures in a flood plain through the Environmental Management Act and resulting regulations including the Local Government Act.
4. The local government, and specifically the chief inspector has specific authority and responsibility under the Community Charter to follow provincial regulations regarding the construction of compost facilities in a flood plain.
On-Farm Agricultural Waste Composting
If agricultural wastes are being composted as a farm activity under the Agricultural Waste Control Regulation, there are no requirements or responsibilities for flood proofing for composting. In the provincial document entitled Flood Area Hazard Management Guideline, it states that “flood proofing of farm structures is left to the discretion of the owner.” Local government must exempt farm structures from flood plain requirements because they must follow provincial regulations and guidelines. British Columbia’s Compensation and Disaster Financial Assistance Regulation stipulates that all eligible farm expenses, including materials and structures will be compensated to the farmer in case of a flood.
Composting under the Organic Matter Recycling Regulation
If the compost facility falls under the requirements of the Organic Matter Recycling Regulation, flood proofing is not specifically required. The property owner, compost facility operator and the qualified professional may be liability for damages resulting from a flood. Because of this, the Compost Facility Requirements Guideline suggests that composting not occur in a flood plain.
I recently prepared the Operations Plan as required by the BC Ministry of Environment for a compost facility in the Matsqui floodplain in Abbotsford. As the qualified professional, I made an indemnification agreement with the landowner (who was also the composter) protecting myself as the qualified professional for any potential costs or damages resulting from a flood. This was done on the basis that the owner acknowledged that composting in a flood plain was not recommended.
Floodproofing Under the Environmental Management Act
Although composting in a flood plain is not prohibited under the BC Ministry of Environment’s Organic Matter Recycling Regulation, Section 138 (3) of the Environmental Management Act has something to say about flood proofing of buildings in a flood plain. “the Lieutenant Governor in Council may make regulations…regulating and imposing requirements and prohibitions respecting flood hazard managment….for the purposes of protecting the environment and the public from damage caused by flood waters or potential flooding”
The Lieutenant Governor of BC made regulations for flood protection including the Local Government Act. Section 910 of the Local Government Act sets out the regulations regarding local government bylaws. The local government bylaw requires that “the underside of any floor system…used for business or the storage of goods which are susceptible to damage by floodwater must be above the applicable flood level specified by the bylaw”. It also states that an exemption can be made if it is consistent with Provincial guidelines and regulation or “has received a report that the land may be used safely for the use intended, which report is certified by a person who is a professional engineer…”. Section 910 of the LGA further states that the granting of an exemption must require “a person (the landowner) enter into a covenant under section 219 of the Land Title Act” (a Covenant which indemnifies both the local government and the provincial government of any damages resulting from a flood).
Specific Responsibilities of the Building Inspector
The building inspector has very specific authority and responsibility under Sections 56 and 57 of the Community Charter. In Section 56, we read, “a building permit (in areas subject to flooding) may only be issued if the owner of the land covenants with the municipality to use the land only in the manner certified by the qualified professional as enabling the safe use of the land for the use intended, and the covenant contains conditions respecting reimbursement by the owner for any expenses that may be incurred by the municipality as a result of a breach of a covenant…and the covenant is registered under section 219 of the Land Title Act.”
Section 57 of the Community Charter gives the building inspector responsibility to report to council if he/she observes a condition with respect a contravention of a municipal bylaw, a Provincial Building Regulation or any other enactment.
In response to Local Government’s increased authority and responsibility for flood plain management given by the Province in 2004, City of Abbotsford staff recommended to Council that “every subdivision and building permit located in the Fraser River floodplain, which is approved by the City, be subject to a Section 219 Covenant registered on title, waiving the City’s responsibility for potential flood damage.” (Executive Committee January 2, 2007).
Although there are no prohibitions against composting in a floodplain, we can see that there are some specific Provincial and Local Government Regulations that must be understood and respected, particularly with structures required for composting. Although local government has authority over flood proofing of structures, they are obligated to follow Provincial regulation under the BC Ministry of Environment’s Environmental Management Act and the resulting regulation.
Property owners, composters and qualified professionals should be aware of their obligations and responsibilities to comply with regulations, and potential liability resulting from composting in a flood plain.