The Safe Drinking Water Act
Safe drinking water is considered a basic entitlement by most Canadians, and its provision is essential for the protection of human health. The Walkerton water contamination disaster provided a stark reminder of the consequences of neglecting the need for safe water supplies and soundly managed treatment and distribution systems. In December 2002, the Ontario Legislature passed Bill 195, the Safe Drinking Water Act, 2002 (SDWA). This new statute is designed to bring the key legal and policy provisions affecting the treatment and distribution of drinking water under one statutory umbrella. Many provisions of the SDWA were proclaimed into force on June 1, 2003, the same day that new regulations under the Act took effect.
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The Walkerton Inquiry
After the Walkerton disaster, the Ontario government established a public inquiry, headed by Justice Dennis O’Connor, to examine the factors that contributed to the May 2000 events in Walkerton, and to make recommendations aimed at strengthening provincial oversight of water delivery systems. The Walkerton Inquiry heard evidence from many actors involved with the tragedy, and a wide range of stakeholders provided testimony at public hearings and presented detailed reports on how to improve Ontario’s drinking water systems. Immediately after Part One of the Walkerton Inquiry Report (WIR) was released in January 2002, then-Premier Harris stated that the Ontario government was fully committed to implementing all of Justice O’Connor’s recommendations. This commitment was repeated by the former Minister of the Environment numerous times in the 2002/2003 ECO reporting period, and MOE’s work on the SDWA and related initiatives provide strong evidence that the Ontario government is acting on its commitment. (For the complete ECO review of this Act, see pages 95-110 of the Supplement to this report.)
One of the key recommendations in Part Two of the Walkerton Inquiry Report proposed the development of a source-to-tap drinking water policy, followed by enactment of a safe drinking water Act that embodied the principal elements of that policy. The WIR also stated that MOE should be the lead agency responsible for developing and implementing the policy. According to MOE, the SDWA and accompanying changes to MOE’s administrative systems, regulations and guidelines will implement 50 of the 93 recommendations made in Part Two of the WIR, and an additional 14 of the recommendations contained in Part One.
Key components of the SDWA
The SDWA includes the following key components:
- mandatory licensing and accreditation of all laboratories that test drinking water.
- new standards for drinking water treatment, distribution, quality and testing.
- mandatory certification of all operators of drinking-water systems.
- mandatory licences for all municipal owners of drinking water systems.
- an Advisory Council on Drinking Water Quality and Testing Standards to conduct research on water issues.
- a “standard of care” for municipalities, requiring that they act honestly, competently and with integrity to protect residents.
- stronger enforcement and compliance provisions, including creation of a provincial
Chief Inspector to oversee inspection policies and training of MOE inspectors.
Several key sections of the SDWA did not come into force on June 1, 2003, and will be proclaimed into force over the following months.
Development of the SDWA
Before the enactment of the SDWA, there was no comprehensive legislation on safe drinking water in Ontario. Indeed, Ontario’s key laws on water were concerned with controlling water pollution rather than protecting drinking water at the consumer’s tap. Thus, the Ontario Water Resources Act (OWRA), the primary piece of provincial water legislation, contains water quality provisions designed to allow MOE to protect both surface water and groundwater from pollution caused by discharges and to take remedial and enforcement action. The OWRA and its regulations also provide a regime for licensing water taking, water wells, water supply and treatment facilities (now partly superceded by the SDWA provisions). Prior to Walkerton, many important aspects of water treatment and safety testing were governed by guidelines and policies that were implemented by staff at health units, water treatment plants, local and central MOE offices, and private and public sector labs, and then given legal effect to the extent that they were incorporated into certificates of approval (Cs of A) issued to system owners.
Testimony and written evidence provided to the Walkerton Inquiry demonstrated that, in the lead-up to the Walkerton crisis, MOE’s approach to regulating municipal drinking water systems was paternalistic and uneven. MOE often did not issue Orders requiring specific actions by municipalities or operators, even when chronic problems — such as management of the Walkerton water system — appeared to merit firm regulatory intervention. Standards for municipal drinking water systems ranged widely, depending on when infrastructure had been installed and Cs of A and other permits issued under the OWRA had been updated. In June 2003, one MOE expert estimated that approximately 1,950 of the 4,500 current water treatment and distribution Class I-IV operators in Ontario had never been required to pass a certification examination, as is normally required by regulations under the OWRA, because these operators had been “grandparented” into their roles. Under the SDWA, all operators will have to be certified and many grandparented operators will be required to undertake further training.
At the same time that Bill 195 was tabled, the Ontario government announced the establishment of an Advisory Committee on Watershed-based Source Protection Planning (ACWSPP) to begin work toward developing a watershed-based source protection framework for Ontario. The Ontario government stated that this step was designed to meet Justice O’Connor’s recommendations on protecting the source of drinking water. The work of the ACWSPP to develop a comprehensive watershed protection framework will be reviewed in future ECO annual reports.
Public Participation and the EBR Process
In August 2002, MOE provided early public notice on the Registry that it was considering the key components of a Safe Drinking Water Act, and sought comments on the proposed components. MOE summarized the key features of the new system in a clearly written technical description attached as a hypertext link to the proposal notice. The components were based on the recommendations and suggestions set out in the WIR.
According to MOE, the initial SDWA Registry proposal notice drew a total of 78 comments from laboratory associations and laboratories, health units, water works owners, municipalities, environmental organizations and other stakeholders. About a month after the close of the first 30-day comment period, the Minister of the Environment tabled Bill 195 for first reading in the Legislative Assembly, and MOE posted a notice for the bill on the Registry with a 30-day comment period. In response to public comments on the SDWA proposal, MOE made a number of important policy changes to Bill 195 that were not part of MOE’s original August 2002 proposal. For example, the revised SDWA was amended to require that the minister establish an Advisory Council. Situations in which the local medical officer of health should be consulted – such as variances to licences and lab licence suspensions — were also clarified in the revised SDWA.
Many groups expressed concern that the August 2002 proposal for the SDWA failed to address some of the key recommendations in Part Two of the Walkerton Report for the adoption of a watershed-based planning process, led by MOE and supported or co-led by conservation authorities, and involving local interests. As the first line of defence in the delivery of safe drinking water, source protection plans should be developed for each of the province’s watersheds and approved by the ministry. The plans would be binding on all provincial and municipal government decisions directly affecting drinking water safety. Groups like the Ontario Medical Association expressed concern that “the most important action for protecting water at its source” was not part of the August 2002 SDWA proposal. These types of comments may have motivated the Ontario government to move ahead more quickly with appointment of the Advisory Committee on Watershed-based Source Protection Planning in November 2002.
Although the SDWA addresses many of the recommendations of the WIR, some stakeholders noted that implementing the new law would require a large increase in funding for water treatment systems. Estimates prepared for the WIR in 2002 projected the one-time cost of implementing the Inquiry recommendations at between $99 million and $280 million. The continuing annual cost of implementing the WIR recommendations was estimated at $17 million to $49 million. However, Part Two of the WIR points out that the estimated economic impact of the Walkerton tragedy was over $64.5 million. Justice O’Connor convincingly argued that the reduction in risk that will be achieved by implementing the measures proposed in both reports makes the costs worth bearing.
As a partial response to these concerns about costs, the Ontario government passed Bill 175, The Sustainable Water and Sewage Systems Act (SWSSA) in late December 2002, which will require municipalities to recover the full cost of water and sewer services from taxpayers.
Consistent with past ECO guidance that ministries should post two consultation notices for complex and controversial proposals, MOE posted a second Registry notice on October 29, 2002, and provided a 30-day comment period. In addition, the Ontario government agreed to hold public hearings on Bill 195 and Bill 175, the SWSSA.
ECO Comment
Without doubt, the Safe Drinking Water Act is an important advance and provides a vital new system of regulatory accountability. Finalizing this legislation and developing the accompanying regulations have been important steps for MOE and will hopefully restore public confidence in Ontario’s municipal drinking water systems.
When the recent changes described above are viewed together with other MOE initiatives, it seems clear that MOE has begun to establish a strong basis for an overarching policy on drinking water, as called for by Justice O’Connor in the Walkerton Inquiry Report. However, the ECO agrees with stakeholders who contend that the long-term success of the SDWA will partly depend on development of a strong new Ontario government policy and law on protecting the sources of drinking water. Thus, it is too soon to evaluate whether the SDWA will achieve all the goals set out in the WIR. It is essential that MOE develop a sound, integrated policy on drinking water that addresses concerns about watershed management and source protection.
The ECO commends MOE for undertaking a thorough public consultation process that took into account the comments and recommendations of various stakeholders and members of the public, and resulted in important amendments to the draft legislation. The ECO also commends MOE for posting multiple Registry notices during the development of this important legislation. Since the regulations under this Act will contain crucial implementation details, the ECO is pleased that MOE has proposed to prescribe the SDWA under the EBR to ensure the public has an opportunity to receive notice and to comment on these regulations. To promote confidence in municipal water distribution and treatment systems, the ECO encourages MOE to consult broadly on regulations and policies related to the SDWA and to go beyond the minimum requirements of the EBR. The ECO also commends MOE for agreeing to prescribe the SDWA under other parts of the EBR. This will ensure that implementation of the SDWA is subject to the benefits of transparency and accountability conferred under the EBR.
On several occasions, the Ontario government has asserted that the SDWA is one of the “best” and “toughest” drinking water laws in the world. Indeed, a commitment to passing the “toughest” drinking water legislation was made by the former Minister of the Environment during second reading debate on the SDWA. It is difficult to evaluate this claim fully at this time because MOE has not passed some of the key SDWA regulations, because the ECO had not yet reviewed any of the new regulations as of June 2003, and because of the unique nature of Ontario’s regulatory system. While it is true that Ontario’s SDWA has many important features, it does not contain the powerful “citizen suit” enforcement provisions found in similar federal legislation in the United States. Moreover, if an alternative public investigation process is established under the SDWA, as recommended by Justice O’Connor, it is unclear whether it would contain all of the transparency and accountability benefits inherent in the EBR process. The ECO will monitor this issue and the implementation of the SDWA and report on progress in future annual reports.
| This is an article from the 2002/03 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2003. "The Safe Drinking Water Act." Thinking Beyond the Near and Now, ECO Annual Report, 2002-03. Toronto, ON : Environmental Commissioner of Ontario. 80-85.
