Originally published in the INFLUENTS Fall 2010 publication
Juli is an Environmental Law Specialist certified by the Law Society of Upper Canada. She was Assistant Commission Counsel to Justice O'Connor during the Walkerton Inquiry, serves as a member of the CTC Source Protection Committee and is a Director of the Ontario Clean Water Agency.
Recent amendments to the regulations under the Clean Water Act flesh out which approvals and permits will be subject to the mandatory requirements of source protection plans, and set out new policy tools that source protection committees can use to protect drinking water sources. New detailed notice requirements are intended to ensure that all stakeholders have the opportunity to participate in the development of source water plans.
Backgrounder on the Clean Water Act
Previously in these pages, we have written about the Clean Water Act, 2006 (the "Act").1 The Act is Ontario's still relatively new drinking water source protection legislation, which implements many of Justice O'Connor's recommendations from the Report on the Walkerton Inquiry.
The Act creates source protection areas, which are generally coterminous with one or more conservation areas, and establishes source protection committees for each of the source protection areas.2 The committees are composed of representatives of municipalities, the agricultural, industrial, commercial sectors, first nations, academics, non-government organizations and other members of the public.
Source protection committees have been tasked with preparing assessment reports that are to describe the water resources in the source protection area, identifying vulnerable areas, and identifying activities and conditions that are or would be "drinking water threats" or "significant drinking water threats". The general regulation under the Act3 enumerates activities that constitute drinking water threats. The list includes activities like the storage or application of road salt, handling and storage of organic solvents, and sewage handling activities.4
The committees must then develop source protection plans that contain policies to prevent any activity from resulting in any of the significant drinking water threats identified in the assessment reports.
Once a source protection plan is approved by the Ministry of the Environment, planning decisions made by municipalities (such as decisions relating to official plans and zoning by-laws), as well as decisions made by other branches of government (including boards, agencies and commissions) and must conform to the significant threat policies (and "have regard to" the other policies) set out in the source protection plan. The Act provides that a provincial "decision to issue, otherwise create or amend a prescribed instrument shall conform with significant threat policies and ... have regard to other policies set out in the source protection plan".5 The Province has made public the list of prescribed instruments in the new regulations (see below).
Even existing commercial, industrial and municipal operations that are identified as drinking water threats may be required to take protective measures to reduce discharges of contaminants, prevent spills, change chemical storage and handling practices, or otherwise reduce the risks of contaminating water supplies. The Act achieves this by requiring that "a person or body that issued or otherwise created a prescribed instrument before the source protection plan took effect shall amend the instrument to conform with the significant threat policies".6
Finally, the Act also allows source protection committees to designate activities that are prohibited in an area7 and activities and land uses that must be regulated through risk management plans.8
New Regulations Provide More Source Protection Policy Tools
Since we first wrote about this topic, source protection committees have had their terms of reference approved by the Ministry of the Environment, and many have completed or are finalizing their assessment reports. Some are now developing significant threat policies and source protection plans.
Recently, significant and wide-ranging amendments were made to the General regulation under the Act.9 The regulatory amendments follow a policy paper released in Summer 2009 and comments made through the Environmental Bill of Rights process on a draft regulation in Winter 2010.
Highlights of these changes include the following:
- New categories of threats. The Act requires committees to address significant drinking water threats, but the regulation now also defines "low drinking water threats" and "moderate drinking water threats".
- "Prescribed instruments" subject to plans defined. The regulation now lists the "prescribed instruments" that must comply (or have regard to) policies in source protection plans (see sidebar for a partial list). The Ministry of the Environment considered a wide range of instruments before settling on this list. Many were rejected if they were temporary or could not be amended, or because they were not considered to be an effective tool for source protection. Nonetheless the regulation provides the Ministry with the authority to add to the list of prescribed instruments.
- Source protection policy tools. We have described the main policy tools used by Act:
- mandatory compliance of planning decisions (official plan amendments, zoning by-laws, site plan agreements) with significant threat policies
- mandatory compliance of prescribed instruments with significant threat policies.
- prohibiting certain activities in certain areas
- mandatory risk management plans for certain activities in certain areas.
The regulation now empowers source protection committees to use other "soft" policy tools in source protection plans, in addition to the above mandatory policies. These policy tools include:
- stewardship programs
- best management practices
- pilot programs and other research initiatives
- incentive programs
- education outreach programs
- meteorological and climactic data collection requirements
- mandatory updating of spill prevention and contingency plans.10
- Notice requirements. Source protection committees must now give formal notice that they have begun preparing their source protection plan to municipalities, First Nations, and anyone who the committee believe would be engaging in an activity that would be significant drinking water threat. If your organization receive such a notice, consider it the start of the consultation process. Further notice will be required to affected parties as source protection plans and policies are developed.11
- Consultation requirements. Source protection committees will be required to publish a draft of their proposed source protection plan before it is submitted for governmental approval. Notice that the draft plan has been created must be distributed widely, and the committee must hold at least one public meeting to give members of the public an opportunity to ask questions and to make comments.12
- Exemptions to prohibited and regulated activities The regulation exempts certain activities from some of the source protection regulatory tools available under the Act. Waste disposal sites with approvals under the Environmental Protection Act and sewage systems with approvals under the Ontario Water Resources Act or regulated by the Ontario Building Code are exempt from risk management orders, prohibitions and restricted land use tools under the Act.
The Act and regulations now authorize a variety of approaches and tools that can be used to ensure that an activity does not become (or ceases to become) a significant drinking water threat.
Some "Prescribed Instruments" that Must Conform to Significant Threat Policies
Environmental Protection Act
- Certificates of approval for waste disposal sites
- Certificates of approval for waste management systems
- Renewable energy approvals
Ontario Water Resources Act
- Permits to take water
- Certificates of approval for sewage works
Safe Drinking Water Act
- Drinking water works permits
- Municipal drinking water licences
- Permits for land exterminations, structural exterminations and water exterminations
Aggregate Resources Act
- Licences for pits and quarries and associated site plans
- Aggregate permits and wayside permits and associated site plans
Ministry of Agriculture, Food and Rural Affairs
- Nutrient management strategies and plans
- Non-agricultural source material plans
1 "Are You Ready for the Clean Water Act?", Influents (Spring 2007).
2 Some source protection areas are consolidated into source protection regions.
3 O. Reg. 287/07.
4 O. Reg. 287/07, s. 1.1.
5 Section 39(7).
6 Section 43(1).
7 Section 57(1). Existing activities that are prohibited will have at least 180 days to be phased out; s. 57(2).
8 Sections 58(1) and 59(1)..
9 Amendments to O. Reg. 287/07 made by O. Reg. 59/10 and O. Reg. 246/10 came into force July 1, 2010.
10 O. Reg. 287/07, s. 26.
11 See O. Reg. 287/07, ss. 35-39.
12 O. Reg. 287/07, s. 41.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.