Wells Regulation Update 2006
Water wells in Ontario are regulated by the Ministry of the Environment under its Wells Regulation (Regulation 903, R.R.O. 1990, the Ontario Water Resources Act). MOE is responsible for licensing well contractors and technicians, managing the province’s database of well records, and enforcing the law.
The Wells Regulation applies to all types of water wells, but is of particular significance to the many Ontarians who rely on private wells for their water supply. Small water supply wells are not covered by legislation on drinking water systems (see Smaller Drinking Water Systems under the Safe Drinking Water Act), nor will they be subject to mandatory protection under the province’s proposed source protection framework (see The Clean Water Act).
Since revising the Wells Regulation in August 2003, MOE has faced a chorus of criticism over the regulation’s inadequacies and the ministry’s handling of the wells program from environmental groups, the regulated industries, and Conservation Authorities. MOE staff members have even pointed out substantive problems. The following problems are only a few examples.
The 2003 revisions to the Wells Regulation lowered chlorination levels for disinfecting new wells after construction, from 250 mg/litre of chlorine to “approximately 50” mg/litre. The change, introduced in the final revision, was not in the 2002 proposal posted to the Registry. Concerns with disinfection requirements were among the issues raised in a 2003 EBR application for review of the new regulation, which MOE denied in 2004 (see The Revised Water Wells Regulation under the OWRA).
Initially, the ministry defended the revised disinfection requirements by pointing to a wells disinfection standard from the respected American Water Works Association (AWWA). Critics responded that the AWWA standard was a detailed series of steps for cleaning and disinfecting parts, equipment and the well water, and testing for disinfection effectiveness; in Ontario’s regulation, MOE lifted one step out of the procedure, introduced technical errors, and added the term “approximately.”
The minister eventually referred the well disinfection question to MOE’s Advisory Council on Drinking Water Quality and Testing Standards in June 2004. The Advisory Council’s response to the minister, in June 2005, described the existing disinfection standard as “inadequate” and recommended a far more detailed procedure. As of spring 2006, the Advisory Council’s response had not been released to the public, nor had MOE acted on the recommendations to fix the inadequacy.
Lack of guidance
For three years, industry groups and regulated individuals have expressed frustration over MOE’s lack of responsiveness on questions about what various provisions of the Wells Regulation mean and how to comply with them. The ministry tacitly recognizes that the regulation is difficult to interpret. In August 2003, MOE announced that it was “in the process of providing every licensed well contractor and technician in the province with a comprehensive guide to the amended regulation.” MOE has reiterated that promise ever since, in response to criticism and questions, but has not followed through.
The ECO 2003/2004 annual report called on MOE to ensure that key provisions of the regulation are clear and enforceable, and to provide a plain language guide. MOE has repeatedly assured the ECO that a guidance manual is planned, but no such document had yet been issued as of May 2006. MOE also asserted that its Web site promotes a wells helpline and a list of licensed contractors. No such resources were evident on the ministry’s Web site as of May 2006.
From an enforcement perspective, uncertainties in interpretation of the regulation and the long delay in providing a promised guidance manual to well contractors might make it difficult for MOE to successfully prosecute violations of the Wells Regulation.
Enforcement matters. If the regulation is not enforced, more people will be exposed to bad water from bad wells. The ministry appears to be severely lacking in trained staff capable of providing wells inspections and enforcement; MOE dismantled its team of regional water wells inspectors in the 1990s, and describes its current approach as complaint-driven. Moreover, many groups have pointed out that the Wells Regulation is so full of flaws it would be difficult to prosecute bad actors successfully, even if MOE had the capacity.
Whether due to lack of enforcement capacity or inadequacies in the regulation, it appears that MOE is doing little to enforce the Wells Regulation. While the ministry issued press releases on successful convictions and the fines imposed by judges for contraventions of the Wells Regulation prior to the 2003 amendments, it has reported no such enforcement action under the revised regulation. Environmental monitoring The Ontario Water Resources Act defines a well by its intended function: a well is any hole made in the ground to locate or obtain groundwater, or to test or obtain information about the groundwater or the aquifer. The Wells Regulation applies to wells serving a variety of purposes other than drinking water supply, whether assessing groundwater levels, monitoring for contamination, irrigating golf courses, dewatering construction sites, etc. Yet many Wells Regulation requirements appear to be designed with only those wells that supply drinking water in mind.
Environmental monitoring is among the activities affected by the revisions to the Wells Regulation. The industries involved in construction and use of environmental monitoring wells have expressed concern about the regulation’s licensing requirements (insurance, training, and thousands of hours of field experience). Even MOE’s own environmental monitoring has been affected. For example, Conservation Authorities are MOE’s partners in groundwater monitoring, but most do not hold the well contractor and well technician licences that are required even for installing sampling equipment in monitoring wells.
The above examples are only a few concerns from a long list of shortcomings. They include the management of well records data and availability of information for source protection; construction standards for dug wells; mandatory abandonment provisions when well water is not potable; and the application of regulatory requirements to wells constructed before August 2003. Inspection and compliance activity by MOE should ensure that well owners maintain their wells and decommission unused or contaminated wells, as required in the regulation. Small-scale studies in Ontario consistently find that a high proportion of the private drinking water wells tested are contaminated with bacteria, nitrates or other dangerous substances.
Promises without action
The ECO has repeatedly raised concerns to MOE and received assurances, both in person and in writing, that processes are under way to address the issues. In November 2005, the ECO was able to obtain a commitment from MOE, in writing, to undertake “technical amendments to the regulation to clarify the requirements and to eliminate conflicting requirements.” MOE stated that amendments would be posted on the Registry in “fall/winter 2005” – that is, almost immediately – accompanied by technical bulletins to provide interpretation of the regulation. The ministry also asserted that it would propose new disinfection requirements and new classes of well technician licences.
However, as of spring 2006, the ECO has seen no action to fix a severely flawed regulation that endangers public health and impedes environmental protection in Ontario.
Since the revised Wells Regulation came into effect in 2003, tens of thousands of wells have been constructed, repaired or abandoned under a regulation that is widely seen as inadequate, and with little enforcement or oversight from MOE. The ministry is neglecting its obligations to those whose drinking water comes from the most vulnerable of sources: small private wells. The regulation is also impeding groundwater monitoring at a time when Ontario most needs environmental monitoring to support source water protection.
Despite recent promises to amend the regulation and provide guidance to the industry, MOE continues to delay. The ECO is concerned that the ministry, having shed much of its water wells staff, now lacks the technical capacity and field experience to design a regulation that works for Ontario’s many types of water wells.
The ECO is very disappointed that MOE has shown itself unable or unwilling to resolve widespread and well-founded concerns about a regulation that is so vital to Ontario’s environmental protection and drinking water safety.
|This is an article from the 2005/06 Annual Report to the Legislature from the Environmental Commissioner of Ontario.|
Citing This Article:
Environmental Commissioner of Ontario. 2006. "Update: Neglecting our Water Wells." Neglecting our Obligations, ECO Annual Report, 2005-06. Toronto, ON : Environmental Commissioner of Ontario. 51-54.