The Clean Water Act
Contents |
Introduction
In October 2006, the Ontario government passed the Clean Water Act, 2006 (CWA) to protect existing and future sources of drinking water. The CWA stems from Justice O’Connor’s 2002 Report of the Walkerton Inquiry (Part II), which investigated the root causes of the tainted water tragedy that unfolded in the spring of 2000. In 2002 and 2003, the Ontario government implemented a number of the recommendations set out in the Walkerton Report to address the treatment and distribution of drinking water by enacting the Safe Drinking Water Act. The CWA supports the implementation of a further 22 of Justice O’Connor’s recommendations by establishing legislation that is designed to protect drinking water at its source.
The stated purpose of the CWA is “to protect existing and future sources of drinking water.” The Act aims to achieve this goal by requiring each community to protect its own drinking water supplies by:
- identifying potential threats to its drinking water sources through the production of a science-based technical assessment report of its watershed; and
- developing and implementing source protection plans that are designed to reduce or eliminate the identified threats.
Source Protection Authorities
As recommended by Justice O’Connor, the CWA takes a local approach to source water protection. The Act establishes a system of local watershed-based planning areas called “source protection areas,” some of which are grouped into “source protection regions.” Responsibility for the risk assessment and source protection planning is then assigned to a “source protection authority” (SP Authority) for each area (or to a lead SP Authority for each region). In most cases, this will be the local conservation authority (CA). The SP authority will then establish a multi-stakeholder committee, called a “source protection committee” (SP Committee), which will include municipal, agricultural, industrial, commercial, environmental, and other representatives.
Each SP Committee – working together with the municipalities, CAs, provincial agencies and the public – will be required to develop an assessment report and a source protection plan (SP Plan) for its region. The assessment report will:
- identify the “vulnerable areas” within each watershed;
- identify the “drinking water threats” in each vulnerable area (i.e., the human activities or conditions that may adversely affect the quantity or quality of water that may be used as a source of drinking water); and
- determine which drinking water threats constitute “significant drinking water threats.”
Once the assessment report has been approved by MOE, the SP Committee is then required to prepare a SP Plan to address the threats identified in the assessment report. The SP Plan must include:
- a “significant threat policy” to address significant drinking water threats;
- monitoring policies to evaluate the effectiveness of the SP Plan; and
- if directed by MOE, a “designated Great Lakes policy” to achieve provincially-developed Great Lakes drinking water targets.
To address significant drinking water threats, the CWA authorizes SP Plans to designate certain activities as either “regulated” (thereby requiring that a “risk management plan” be developed) or “prohibited” in areas where those activities would pose a significant threat. However, the list of activities that may be designated as prohibited or regulated must be prescribed by regulation under the CWA. As of June 1, 2007, no such regulations have been developed. The SP Plan may also identify “restricted land uses” on designated lands, for which a person may not obtain a building permit or apply for a prescribed approval under the Planning Act without first obtaining a “notice” confirming that the proposed development satisfied certain requirements.
Once a SP Plan has been approved by the Minister of the Environment, the CWA puts the municipality (in most cases) in charge of implementing and enforcing the Plan. The municipality may, however, delegate its enforcement responsibilities to another public body, such as the public health unit, SP authority or province, if that body agrees to do so.
Each municipality (or its designate) must appoint a “risk management official,” who is responsible for reviewing all submitted risk management plans and all development proposals related to “restricted land uses.” The municipality must also appoint “risk management inspectors” to enforce the rules under Part IV of the CWA. The CWA empowers the municipality to prosecute persons who have contravened the prohibited or regulated activity provisions or have failed to comply with an enforcement order.
In enacting the CWA, the province recognized that the planning process will take years to complete. MOE anticipates that the SP Plans will not be submitted to the ministry for approval until 2010 to 2012. Therefore, the CWA includes some interim measures, such as requiring interim progress reports and interim risk management plans, to address significant threats during the period before the SP Plans take effect.
Implications of the CWA
Source protection – and the associated costs – is a local responsibility
Beyond the province’s role in providing the legislative and regulatory framework for the source protection process, the CWA places the primary responsibility for protecting drinking water sources on local communities. The bulk of the initial planning responsibilities – including watershed analyses, issues evaluations, threats inventories, vulnerability assessments, etc. – are expected to be delegated to the municipalities and CAs.
The province has committed approximately $120 million from 2004 to 2008 to enable municipalities and CAs to conduct technical studies and build the necessary professional capacity and expertise for the development of the assessment reports and SP Plans. However, no cost analysis for the source protection planning process has been published, so it is not known whether this level of funding will be sufficient.
In addition, that funding does not extend to the substantial responsibilities of municipalities (or their delegates) to implement and enforce the source protection measures. These unfunded responsibilities include reviewing risk management plans, conducting inspection and enforcement activities, participating in appeals to the Environmental Review Tribunal, amending official plans and zoning by-laws, and potentially addressing identified municipal threats to drinking water, such as improving sewage treatment facilities.
In response to widespread stakeholder concerns about the issue of costs – including numerous comments from farmers and businesses about their own personal costs of complying with the SP Plans – the proposed CWA was amended before third reading to include a new “Ontario Drinking Water Stewardship Program” to provide financial assistance to persons affected by the CWA and to those administering programs related to the SP Plans. Initially, $5 million will be available for 2007/2008 under this program for early adopters who take action to reduce threats to drinking water, as well as a further $2 million for education and outreach activities.
Source protection measures do not protect all drinking water sources
The drinking water protection provided under the CWA is generally limited to drinking water systems within a source protection area. Most of the northern portion of the province, which includes many First Nations communities, does not fall within any source protection area. The CWA allows, but does not require, the Minister of the Environment to include watersheds outside of CA boundaries in the source protection planning process.
In addition, even within a source protection area, not all sources of drinking water are protected by the CWA. The CWA only mandates the protection of municipal residential drinking water systems; private drinking water wells are generally not protected under the CWA, unless a municipal council or the Minister of the Environment designates the private drinking water system for protection under the CWA.
Source protection prevails over other concerns
The CWA provides strong and clear direction that source protection requirements prevail over other planning concerns. In the 2005 Provincial Policy Statement (2005 PPS), the government took some initial steps to incorporate source water protection into land use planning. However, without source protection legislation, these provisions were largely ineffective. The CWA now more fully integrates source water protection into the land use planning process.
Under the CWA, municipal land use plans and decisions under the Planning Act, as well as prescribed instruments (such as certificates of approval), are required to conform with certain designated policies under the SP Plan, and to “have regard to” the other SP Plan policies. Indeed, existing official plans, zoning by-laws and prescribed instruments must be amended to conform to those designated policies. Further, the CWA includes detailed conflict provisions that generally provide that where there is a conflict between any Act, regulation, provincial plan, or the 2005 PPS and the CWA or a SP Plan, the provision that provides the greatest protection to the quality and quantity of water will prevail.
Application to existing activities and uses
While the CWA does provide greater clarity and coordination with respect to land use planning, the Act still presents some planning challenges. For example, both the prohibited and regulated activities provisions in the CWA may be applied to pre-existing activities. This concept of applying new provisions to pre-existing land uses is an unusual concept in municipal law that may present a challenge in the implementation stage of the SP Plans. Generally, new planning laws only apply to new activities, protecting pre-existing activities as legal non-conforming uses.
Public Participation & EBR Process
MOE provided extensive consultation opportunities over three years on the proposed Clean Water Act. MOE received 90 comments on the draft Act from a range of stakeholders. All commenters stated that they supported source water protection; however, not all of the commenters supported the proposed legislation. Many agricultural groups and individuals, as well as some industry associations and municipalities, expressed strong opposition to the proposed CWA, arguing that it was too restrictive, cumbersome and costly.
In contrast, numerous CAs, environmental groups and property owner associations, as well as many municipalities, expressed strong support for the proposed legislation, but nonetheless expressed concern that the legislation did not go far enough in some areas to protect source water. Nearly all commenters expressed concern about the need for sufficient long-term provincial funding for implementation of the SP Plans. (A detailed summary of all comments is provided in the Supplement to this year's Annual Report.)
ECO Comment
The CWA is a major step forward in Ontario’s overall efforts to protect drinking water in the province. Protecting water from contamination at the source is a sensible approach to water management, which not only protects public health from the risks of drinking water contamination, but may also help safeguard the ecological integrity of aquatic ecosystems.
However, in a few areas, the CWA falls short of achieving its stated goal of protecting drinking water sources in Ontario. The CWA does not mandate that action be taken in all watersheds with municipal supplies across the province, but rather leaves it to the discretion of the Minister of the Environment to determine which watersheds outside the jurisdiction of the CAs will be afforded the protections provided in the CWA. In addition, the government has made a policy choice that source protection planning will only be required for municipal drinking water systems (with some limited exceptions), notwithstanding the fact that a considerable segment of the provincial population relies on private wells as a drinking water source.
Other important protections in the CWA are left to individual discretion. For example, despite the fact that the Great Lakes is an important drinking water source for almost three-quarters of all Ontarians living within the Great Lakes Basin, the CWA merely permits, rather than requires, the Minister of the Environment to establish mandatory targets for protecting the Great Lakes as a drinking water source. The ECO believes that the CWA should provide stronger, mandatory integration with other Great Lakes requirements.
The potential effectiveness of many of the source protection measures is difficult to assess at this time because important details, such as which activities may be prohibited or regulated, have yet to be prescribed in regulations. The breadth of activities that will be included in the regulations will have a major impact on the effectiveness of the source protection measures. For example, a potential benefit of the CWA is its ability to address cumulative impacts to drinking water sources from smaller and/or non-point source pollution sources (such as storm water systems and septic systems) that collectively pose a significant threat to drinking water. Most other environmental statutes, such as the Environmental Protection Act and the Ontario Water Resources Act, only regulate point sources from individual facilities.
The CWA poses significant challenges to the local bodies in the province – primarily the CAs and municipalities – which are charged with the responsibility and the costs of planning, implementing and enforcing the SP Plans. Without sufficient long-term funding, the ECO is concerned that the municipalities will not be able to adequately implement their SP Plans and successfully protect drinking water sources. The Sustainable Water and Sewage Systems Act, 2002, which would provide assistance by requiring cost recovery for drinking water services for municipalities, is still not in force five years after being passed. The ECO continues to encourage the government to move forward with this piece of legislation.
In addition to costs, the CWA poses other challenges for municipalities, such as applying prohibitions or restrictions to pre-existing uses, as well as addressing historical contamination that may pose a threat to drinking water.
Conversely, the CWA also provides municipalities with much-needed new powers. Many municipalities have been frustrated in the past by a lack of tools or authority to address threats to their own communities’ drinking water sources. The CWA now gives municipalities the necessary authority to take action against such threats. The Act also provides municipalities with the added impetus to proceed with measures that they already had the authority to undertake, but simply may have chosen not to pursue. For example, a large number of municipalities have not yet developed or implemented sewer-use by-laws to address industrial contaminant threats to drinking water sources. Importantly, the CWA also provides some clarity and certainty for municipal planning, providing clear direction that source water protection prevails over other planning concerns.
The government’s policy decision to take a local approach to source protection is reasonable. However, it does not absolve the provincial government of its responsibility to provide strong, on-going technical, regulatory and financial support for source protection. The province should still play an important role in regulating specific, widespread threats to drinking water that apply across the province – such as abandoned wells and septic system failures.
In addition, MOE will have added responsibilities under the CWA in reviewing and amending prescribed instruments (such as certificates of approval and permits-to-take-water) to ensure that they comply with the SP Plans. This additional burden to MOE, which already lacks the necessary capacity to meet its mandated responsibilities, will be a challenge. Indeed, the level of on-going provincial funding and other resources provided to all public bodies responsible for administering the CWA will be a significant factor in the eventual success of this Act.
Click here for a list of all ECO reporting on the Clean Water Act.
| This is an article from the 2006/07 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2007. "Clean Water Act." Reconciling our Priorities, ECO Annual Report, 2006-07. Toronto, ON : Environmental Commissioner of Ontario. 118-124.
