The Revised Water Wells Regulation under the OWRA
In April 2003, the Ministry of the Environment finalized its proposal to amend the Wells Regulation (Regulation 903, R.R.O. 1990) under the Ontario Water Resources Act (OWRA). The Wells Regulation governs how wells are constructed, maintained and abandoned by setting minimum standards for all types of water wells – private, communal, municipal, industrial and commercial wells. Regulation 903 also sets licensing requirements for well contractors and technicians involved in drilling, boring, digging and pump installation. Many sections of Regulation 903 were amended in this decision, e.g., sections dealing with well construction, technician licensing, retesting, disinfection, annular space, sealants and other aspects of well use. MOE also introduced new provisions requiring the use of well identification tags, as well as dealing with shallow works and the continuing education of drillers. MOE indicated that key parts of the revised regulation would go into effect in August 2003.
The ministry noted that these amendments were needed as part of a provincial ground- water strategy announced after the contaminated water tragedy at Walkerton, Ontario, in 2000. Mr. Justice O’Connor, who led the Walkerton Commission of Inquiry, suggested that MOE should review and update the Wells Regulation under the Ontario Water Resources Act “to ensure that it requires best construction practices.” The ministry acknowledges that wells can act as pathways for contaminants to enter groundwater if improperly located, constructed, maintained or abandoned.
The April 2003 revisions require drillers, technical specialists and others to apply new requirements for well construction, reporting and abandonment. Specifically, some of the new or amended practices resulting from O. Reg. 128/03 include:
- a well tagging system that places an identification marker on water wells so they may be easily identified at their location.
- a new standard for disinfection, i.e., a lower concentration of chlorine, which was intended to improve the disinfection capability of chlorine by minimizing the alteration of water chemistry.
- changes to the way wells are sealed, casings are installed and wells abandoned.
MOE’s amendments were intended to improve the health and safety of drinking water supplies from wells and to protect groundwater resources across the province. In practice, much of the improvement will be contingent on the effective implementation of the new standards by well drillers. This, in turn, will partly be contingent on MOE’s efforts to ensure that the new standards are implemented through oversight, monitoring and inspection.
The EBR process and public consultation
In total, 67 commenters provided approximately 250 pages of comments when MOE posted its proposal notice for a 60-day comment period in April 2002. Many of the submissions were extremely detailed, including comparisons to practices in other jurisdictions (e.g., Michigan) and connections to other Ontario legislation, i.e. the Building Code Act. In many areas covered by this regulation – for instance, well construction, outreach, and tag management – commenters suggested ways in which the ministry could have gone further. For the most part, these suggestions were not incorporated into the revised regulation. Overall, MOE could have done a better job of explaining the effects of this wide range of comments on the decision, as well as explaining why certain comments were not factored into the final decision. (For more on this, see the Supplement to this report, pages 83-88.)
Within a few months of this MOE decision being posted, a lengthy, complex application was filed with the ECO for a review of the adequacy and implementation of this amended regulation. The application raised concerns about well water safety because of the amendments to Regulation 903 or their implementation in August 2003. In particular the applicants believed that the revised regulation created confusion, failed to ensure disinfection, and could be difficult to enforce. The ministry denied the review and defended the safety and technical merits of the revised regulation (see pages 223-233 in the Supplement). However, in July 2004 the minister asked the Advisory Council on Drinking- water Quality and Testing Standards, created under the Safe Drinking Water Act, to review the chlorination and disinfection issues raised by the applicants and report back in the fall of 2004.
ECO Comment
On the whole, water wells in Ontario have proved to be reliable sources of drinking water for millions of Ontarians. MOE, drillers, municipalities, well owners and others all have a role to play ensuring that this valuable resource is protected. Some of the measures contained in Regulation 903, like the well identification tags and abandonment procedures, represent new or improved practices that should help to safeguard Ontario’s groundwater if properly implemented and enforced.
A number of commenters sought flexibility and certain exemptions to accommodate the widely varying purposes for drilling wells – everything from short term monitoring and testing needs to a longer lasting residential water supply for drinking purposes. In some instances, MOE demonstrated a willingness to accommodate these comments by balancing prescriptive requirements with some measure of discretion and flexibility for those persons regulated by or applying the regulation. Partly as a result of this, plain language guidance seems to be required to explain many elements of the amended regulation.
The well regulation should require best construction practices, as recommended by Mr. Justice O’Connor. However, concerns have been raised (for example, through an EBR application, see pages 223-233) that the new well regulation, as currently drafted, does not meet those intentions, especially with regard to private domestic wells. For instance, there are concerns that the regulation does not require well constructors to verify, through water testing, that new wells have indeed been disinfected. Nor is there a requirement that well contractors disinfect private wells after carrying out repairs. As well, Justice O’Connor noted the importance of applying the existing licensing system thoroughly to the well construction and maintenance industry. But the new regulation, on its own, will not be able to resolve the issue of unlicensed practitioners carrying out work on private wells – a practice which apparently remains widespread in some areas.
Concerns have also been raised that many technical details stipulated by the regulation (rules on shallow test holes, for example) are not workable in practice. The ECO has also heard concerns that some environmentally important requirements (such as rules on well tags and rules for separation distances between septic systems and wells) have been worded in such a way that they are not enforceable. It appears that, to make the new regulation a truly effective tool for drinking water protection, the ministry should correct a number of technical deficiencies, clarify language to reflect on-the-ground practices, and think through the various enforcement challenges that need resolution in order to meet the intentions of Mr. Justice O’Connor.
Several municipalities apprised MOE of the difficulties they have in ensuring that proper well construction, development, and testing are carried out by contractors in their jurisdictions. The municipalities indicated that MOE either needs to increase its inspection efforts or the Ontario government should provide municipalities with enhanced powers to ensure appropriate well standards are met. These are substantive matters that MOE did not address through this decision. However, MOE does have pilot projects under way in Eastern Ontario that involve delegation of certain well inspection duties to the local municipality.
The ECO will continue to review matters related to groundwater and well safety in the 2004/2005 reporting period. (For ministry comments, see page 203.)
| Recommendation 11:
The ECO recommends that MOE ensure that key provisions of the Wells Regulation are clear and enforceable, and that the ministry provide a plain language guide to the regulation for well installers and other practitioners. |
| This is an article from the 2003/04 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2004. "The Revised Water Wells Regulation." Choosing our Legacy, ECO Annual Report, 2003-04. Toronto, ON : Environmental Commissioner of Ontario. 110-113.
