The Lawyers Weekly - Published October 2, 2009

Source water protection

How the Ontario Clean Water Act protects drinking water sources

Source protection is the first barrier of a multi-barrier approach to providing safe drinking water.

The Ontario Clean Water Act (CWA) is intended to protect existing and future sources of drinking water. It is a response to Justice Dennis O’Connor’s recommendation in his report on the Walkerton tragedy to develop source protection plans at the local level for every watershed in Ontario.

Since the CWA was passed in 2006, the Ministry of the Environment (MOE) and stakeholders have been working hard to implement this new-to-Ontario approach to governance. The CWA provides that source protection committees, managed by conservation authorities and comprised of stakeholder representatives, will develop source protection plans for submission to the MOE for approval in 2012.

Currently, the 19 source protection committees are preparing science-based assessment reports for each of the 40 designated watershed areas in the province. The assessment reports are to identify and assess water quality and quantity threats to drinking water sources as listed in each committee’s terms of reference. The committees will then prepare source protection plans for each watershed area.

The information assembled in the assessment reports will frame source protection policies and will detail, and direct, the actions of public bodies and municipalities to address the identified threats to drinking water sources within the watershed area.

The source protection plan policies will ensure that significant drinking water threats cease to be significant, and potentially significant drinking water threats never become significant. Policies could include: education and outreach, incentive programs, monitoring activities, land use planning approaches, new or amended provincial instruments, risk management plans, prohibitions or restricted land uses.

Municipalities have been active participants in local multi-stakeholder source protection committee discussions. Many have already developed official plan policies and zoning by-laws delineating and protecting wellhead areas. While the Ontario Planning Act addresses new land use, the CWA gives municipalities new powers to address activities, including requiring risk management plans for activities that are significant threats inside wellhead protection areas and intake protection zones, and a suite of enforcement powers similar to those of the MOE.

Municipalities will also appoint risk management officials and inspectors to be responsible for the administration and enforcement of risk management plans for regulated activities, prohibitions, restrictions on land uses and for issuing stop work or cost recovery orders where the municipality has carried out work to reduce drinking water threats. These powers give municipalities an important role in implementing the source protection plans.

The MOE has been barely a step ahead of the committees and municipalities, developing technical and policy guidance documents. In June, it posted “Source Protection Plans under the Clean Water Act, 2006: A Discussion Paper on Requirements for the Content and Preparation of Source Protection Plans,” on the environmental registry for public comment. (Comments on the discussion paper were due by Sept. 23.)

In late 2009, the MOE expects to release draft regulations under the CWA detailing the requirements for source protection plans based on the discussion paper and comments. The paper proposes a hierarchy for the use of types of policies.

The MOE proposes to encourage source protection committees to use prescribed provincial instruments as the policy approach of first choice. This is sensible as it tends to encourage a one-window approach and avoids regulatory duplication. MOE should prescribe as many instruments as possible. The current list appears to be lacking certain provincial instruments that could be used for source protection.

Where no provincial instrument exists, the discussion paper encourages the use of risk management plans. Where a risk management official is satisfied that a risk management plan for a drinking water threat will reduce the potential for adverse affects to a drinking water source, a risk management plan may be considered.

Risk management plans are intended to be negotiated and agreed to. Where agreement cannot be achieved, a risk management plan may be ordered for an activity that is or would be a significant drinking water threat.

However, the discussion paper seeks to restrict the use of risk management plans to significant drinking water threats, not those that “would be” significant. This is an unwise restriction of the CWA, as it effectively limits policies for preventing a moderate threat from becoming a significant threat to education, outreach, incentives and monitoring.

The discussion paper encourages limiting the use of outright prohibitions to when there is no alternative. Although it is prudent to adopt a limited use of prohibitions, a legal requirement to consider “all possible alternatives” would effectively chill the use of prohibitions even where significant drinking water threats warrant the use.

The discussion paper proposes that the suite of Planning Act provisions be used to support source protection including site plan controls, zoning by-laws and community improvement plans. Land use planning decisions and planning instruments, including official plans and zoning by-laws, will have to conform with significant threat policies, designated Great Lakes policies and other policies. Identification of risks to drinking water sources would restrict municipal land use and planning decisions, including undertaking any public works or passing by-laws that conflict with the CWA.

The CWA provides opportunities to protect drinking water sources across Ontario. Municipalities and other stakeholders will continue to play a critical role in finding practical, workable solutions to implement and enforce drinking water source protection measures.

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