Lake Ontario Waterkeeper presents to Committee on Clean Water Act

NOTE: The presentation can be downloaded here.

On August 21st, Lake Ontario Waterkeeper presented our comments to the Standing Committee on Social Policy in regards to Bill 43, the Clean Water Act.

The following are the speaking notes used during the presentation:

Lake Ontario Waterkeeper is a grassroots environmental organization working to protect the rights of Ontarians to clean water in the Lake Ontario watershed. We are a member of the New York-based Waterkeeper Alliance with over a hundred Waterkeepers worldwide. Each Waterkeeper program is akin to an environmental neighbourhood watch program. Waterkeepers are part investigator, scientist, lawyer, and advocate for watershed users. We thank the Standing Committee on Social policy for the opportunity to give this presentation. Our written submissions are forthcoming.

I would like to begin this presentation by emphasizing that Lake Ontario Waterkeeper wants to like Bill 43. We believe that everyone in the Lake Ontario watershed has a right to clean drinking water. However, after careful consideration of the bill we believe that it will not effectively protect drinking water in Ontario.

Bill 43 is not environmental legislation; it is a planning tool. Bill 43 impacts only drinking water threats to municipal water systems in southern Ontario. In Ontario we already have wonderful environmental laws that can protect drinking water quality and they are not well enforced. Bill 43 has the potential to undermine what we already have.

For example: The Environmental Protection Act prohibits the “discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect.�

The Ontario Water Resources Act also makes it an offence to discharge “any material of any kind into or in any waters or in any place that may impair the quality of the water or any waters�.

These Acts protect our rights not only to clean drinking water, but to clean water.

These acts already prohibit activities that might be “drinking water threats� under Bill 43. Bill 43 merely subjects some of these activities to risk management plans. Under Bill 43, only those activities that may cause adverse effects to drinking water in municipal drinking water systems will require a permit.

Bill 43 will make it harder to enforce the OWRA and the EPA. The “Source Protection Plans� created under Bill 43 for the protection of drinking water may give the appearance that conservation authorities and municipalities are addressing Ontario's water contamination problems.

However, Bill 43 only requires source protection plans to address localized threats to municipal water systems. It will not protect the public's right to fish and swim in Ontario's waterways, as the OWRA and EPA do.

Lake Ontario Waterkeeper is concerned that Bill 43 may come to replace the OWRA and EPA protections. Compliance with a source water protection plan under Bill 43 may give offenders under other acts a due diligence defence. This will mean that contamination to water that impacts swimming and fishing in a waterway without impacting a municipal water system may be difficult to prosecute.

The assessment reports prepared under Bill 43 will also potentially politicize pollution.

Under Bill 43 Source Protection Committees must identify activities as “threats� and single out “vulnerable areas� in the assessment report as a pre-requisite to regulation under the legislation. These assessments are subject to review by the Director.

If a contamination issue is not identified in the assessment report, this sends a signal that an activity impairing water quality is unimportant because it doesn't contaminate a municipal water system.

In the end, this process may produce a political document pointing out priorities that masquerades as a scientific evaluation of what is contamination and what is not.

Lake Ontario Waterkeeper also submits that Bill 43 is unworkable.

There are many drafting problems with Bill 43, but most importantly it fails to include a reasonable, workable definition of “significant drinking water threat.� This term, is the heart of what the Bill is about.

The definition of significant drinking water threat in section 2(1) requires that a risk assessment be prepared concluding that something is a significant drinking water threat. However, no risk assessment is required unless something is already identified as a significant drinking water threat in the assessment report. As it currently stands, this definition means that no permits can be required for any activities under the act.

Furthermore, a failure to identify an area or an activity in an assessment report places it outside the scope of Bill 43 from that point on. Once approved, the assessments made in the report are binding on the source protection plan. However, some drinking water threats may not be foreseeable at the time the report is made. The public is unable to comment on the assessment report and therefore cannot draw attention to any issues overlooked by the committee.

To illustrate this point, for Bill 43 to have worked in Walkerton in 2000, a Source Protection Committee would have had to identify specifically the manure spreading next to Well 5 as a “significant drinking water threat�, in a “wellhead protection area�; at the time the assessment report was made. If the practice was not foreseen at the time of the report, or not understood to be at risk of entering the well, then it would not be possible to include it in the plan or to require a permit. Even if a permit was required, Bill 43 treats risk management plans, not prohibitions, as a total solution to contamination problems.

To summarize, the Bill 43 scheme is narrow and confusing. Instead of imagining an Ontario with clean water, it is a Bill that focuses on deciding how little we can get away with to protect drinking water.

Lake Ontario Waterkeeper believes that there is nothing wrong with helping Conservation Authorities identify priorities for ensuring that Ontario watersheds are clean. We are committed to working with Ontario to achieve a better understanding of the state of Ontario's watersheds.

But there is a better way, under the Conservation Authorities Act, conservation authorities can already do research about the state of water quality in their watersheds, many have already done so. Conservation authorities could also be permitted to regulate local drinking water quality issues by adding this to s.28(1) of the Conservation Authorities Act. This could be accomplished with little difficulty.

Honourable members of this committee, we submit to you that Ontarians deserve clean water for fishing, swimming AND drinking. The Ontario Ministry has not made the most out of existing legal tools to protect our water. Bill 43 is about identifying the bare minimum protections. Bill 43 asks, what is the least we can do? We submit to you that Ontarians deserve better.

A Clean Water Act could represent a new beginning.

But new clean water legislation will only benefit Ontarians if it goes beyond what we already have. We support clean water protection in Ontario, and we hope that this committee will have the vision to imagine a better Bill 43.

We urge the committee to reconsider this Bill. We urge this committee to take a serious, hard look at what this Act represents for Ontario's water quality.

We thank you for this opportunity and we look forward to presenting you with our written submissions, which we remind you are forthcoming. Thank you.

NOTE: The presentation can be downloaded here.