Lake Ontario Waterkeeper comments on Bill 43, the Clean Water Act
Note: Our submission is available for download here.
EXECUTIVE SUMMARY
Lake Ontario Waterkeeper has four concerns with the Clean Water Act, as currently drafted.
1. Bill 43 does substantially less than existing environmental legislation 2. Conflict of laws provisions do not sufficiently guarantee the continued application of existing environmental laws 3. The definition of significant drinking water threat is unworkable 4. The assessment report structure is inflexible and will potentially politicise pollution
To mitigate these concerns, LOW has provided three key proposed amendments to Bill 43:
2. Ensure conflict of laws provisions sufficiently protect the continued enforcement of existing environmental laws, enhancing their strength where possible by amending s.96(1) ( Provide a clearer, more standardized definition of drinking water threat in s.2(1) Remedy the politicization and inflexibility in the assessment report by amending sections 19 and 13.
The details of these proposed amendments are set out in schedule A of this submission.
BACKGROUND
Lake Ontario Waterkeeper has been intimately involved in a number of drinking water contamination issues in the province of Ontario. Our President Mark Mattson intervened in the Walkerton Inquiry on behalf of the Environmental Bureau of Investigation on the issue of mandatory enforcement and presented evidence relating to appropriate regulation models. In April 2004, Lake Ontario Waterkeeper commented on the Source Water Protection white paper. At that time we highlighted our concerns about the meaning of the word “threat� and interaction with existing legislation.
INTRODUCTION
Section 4(1) of the CWA declares that all conservation authority jurisdictions are “drinking water source protection� areas. The applicable conservation authority under the Conservation Authorities Act shall perform the function of a “drinking water source protection authority� (SPA). Under this section, the Minister may also establish other source protection areas, and designate “a person or body� who is not a conservation authority as an SPA.
Conservation Ontario maps show that there are 12 conservation authorities on the Ontario side of Lake Ontario. A variety of conservation authorities cover the entire watershed into the north shore of Lake Ontario.
Lake Ontario is the source of drinking water for a large number of Ontarians. Although “Lake Ontario� typically meets or exceeds public health standards for microbial content in drinking supplies, lake water is subjected to contaminants from a variety of sources. Contaminants can enter the lake directly or from tributaries, groundwater, shipping activities, industrial activities, municipal wastewater and from air deposition. In addition to direct contamination problems, ecological events in the lake can cause taste and odour problems.
SUBMISSION
1. Bill 43 does substantially less than existing water protection legislation
Bill 43 allows source protection committees to conduct research about drinking water quality and produce an assessment report and a source protection plan applying to a particular conservation authority watershed. This plan may chose to prohibit or require permits for some “significant drinking water threats� in the watershed. If a permit is required, the activity is subject to a risk management plan and a risk assessment designed to prevent the occurrence of a “threat�. Municipalities will administer the plan and permitting system.
However, existing Ontario legislation already prohibits discharging contaminants into water. For example, s.6(1) and s.14(1) of the Environmental Protection Act (“EPA�) read:
6. (1) No person shall discharge into the natural environment any contaminant, and no person responsible for a source of contaminant shall permit the discharge into the natural environment of any contaminant from the source of contaminant, in an amount, concentration or level in excess of that prescribed by the regulations.
14. (1) Despite any other provision of this Act or the regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect.
The Ontario Water Resources Act (“OWRA�) also makes it an offence to contaminate drinking water
30. (1) Every person that discharges or causes or permits the discharge of any material of any kind into or in any waters or on any shore or bank thereof or into or in any place that may impair the quality of the water of any waters is guilty of an offence.
These acts prohibit not only the contamination of municipal drinking water systems, but water used for swimming fishing or even waterways not used by humans. These acts protect the rights of Ontarians to clean water, not just clean drinking water.
In contrast, Bill 43 would subject some activities that are already prohibited under the OWRA and EPA to permitting and risk management plans. These risk management plans would be aimed at eliminating a significant drinking water threat.
Lake Ontario Waterkeeper submits that mandatory enforcement measures using existing environmental laws would go above and beyond Bill 43. For example, the Ministry of the Environment could issue orders against municipalities for non-compliance with the OWRA. It is conceivable that contamination of Walkerton's water supply could have been prevented if mandatory – rather than voluntary – orders had been issued.
2. Conflict of laws provisions do not sufficiently guarantee the continued application of existing environmental laws
Under Bill 43 the law that prevails is the law that gives the greatest protection to drinking water quality prevails, sometimes. Other times conflicts resolution will be “determined� by the regulations. The conflict of laws provisions of Bill 45 read
35(4) Despite any Act, but subject to a regulation made under clause 100 (1) (g), (h) or (i), if there is a conflict between a provision of the source protection plan and a provision in a plan or policy that is mentioned in subsection (5) with respect to a matter that affects or has the potential to affect the quality or quantity of any water that is or may be used as a source of drinking water, the provision that provides the greatest protection to the quality and quantity of the water prevails.
100(1)The Lieutenant Governor in Council may make regulations ...(g) governing and clarifying the application of subsection 35(4), including determining when a conflict exists for the purpose of that subsection and determining the nature of the conflict.
96. (1) If there is a conflict between a provision of this Act and a provision of another Act or a regulation made under another Act with respect to a matter that affects or has the potential to affect the quality or quantity of any water that is or may be used as a source of drinking water, the provision that provides the greatest protection to the quality and quantity of the water prevails.
Lake Ontario Waterkeeper submits that this is unclear and puts in jeopardy the continued application of other acts protecting the environment. There is nothing in these clauses that prevents conpliance with a source protection plan being used as a due diligence defence to violations under other acts. LOW submits that the conflict provisions in Bill 43 must be read along with section 85 of the Environmental Bill of Rights, which reads:
85. (1) For the purposes of section 84, an Act, regulation or instrument is not contravened if the defendant satisfies the court that the defendant exercised due diligence in complying with the Act, regulation or instrument. (2) For the purposes of section 84, an Act, regulation or instrument is not contravened if the defendant satisfies the court that the act or omission alleged to be a contravention of the Act, regulation or instrument is authorized by an Act of Ontario or Canada or by a regulation or instrument under an Act of Ontario or Canada.
Recommendation:
LOW submits that the following clause could replace s.96(1) to remedy this.
96 (1) Nothing in this act abrogates or derogates from the application of any provincial or federal laws to an activity identified in a source protection plan under this act. (2) Without limiting the generality of 96(1) but for further clarity; (a) Any authorization under this act to do any thing shall not be an authorization for the purposes of s.85(2) of the Environmental Bill of Rights. (c) Any actions taken to comply with this act, a source protection plan, or any rule or regulation under this act, shall not be used as a defence under any other act or regulation under any other act. (3) A source protection plan under this act applies notwithstanding any authorisation under any other act or regulation. (4) In the event that it is impossible to comply with a source protection plan or any condition of a permit, regulation or rule under this act without failing to comply with (a) The Ontario Water Resources Act or the Environmental Protection Act, or any rule, permit or regulation thereunder, the requirements of the Ontario Water Resources Act and the Environmental Protection Act prevail; or (b) A provision of any other Provincial Act, or a regulation made under another Act the provision that provides the greatest protection to the quality and quantity of the water prevails.
If the first provision is added, it will no longer be possible to use compliance with a source protection plan as a defence to the OWRA and the EPA. This would mean that no one could attempt to comply with or avoid the application of Bill 43 by simply shifting contamination to waters not directly used for a municipal water system, without remaining liable under the OWRA and EPA.
The second part of this provision also makes it clear that it is not a “conflict” or a defence to non-compliance with the OWRA and EPA that an activity was actually permitted by a municipal permit official under Bill 43.
The next part of this amendment ensures that a permit under another act does not preclude further requirements under a source protection plan.
The final part of this amendment ensures that a risk management plan under Bill 43 cannot include a plan that violates the OWRA and EPA. This amendment would ensure enhanced compliance with all applicable laws and regulations in the event that a risk management plan is undertaken under Bill 43. This subsection (4) is not redundant to the general conflict of laws provision that follows it, it adds substantive force to preventing other water supplies from bearing the burden of compliance with drinking water requirements because of the special nature of the OWRA and the EPA.
3. The definition of “significant drinking water threat� in Bill 43 is unworkable
Section 2(1) defines significant drinking water threat as follows:
"significant drinking water threat" means a drinking water threat that, according to a risk assessment, poses or has the potential to pose a significant risk;
Water contamination is usually described in terms of adverse impacts or impaired quality rather than in terms of “risk�. It is not clear if this is a risk to human health, how high a risk it must be to be “significant� or how can a risk assessment identify it? Does this risk take account of water treatment (measured at end of tap) or is it the risk if someone drank the water at its source?
This definition is circular, without any definition, a risk assessment would have difficulty concluding that an activity is a significant drinking water threat.
Worse, under Bill 43, an activity must be identified as a significant drinking water threat in an assessment report (s.13) to be subjected to regulation under the act, s.19(3-6) reads:
Designation of activities for s. 49 19.(3) An activity shall not be designated under paragraph 3 of subsection (2) unless the activity is, (a) a type of activity prescribed by the regulations; and (b) identified in the assessment report as a possible future activity that would be a significant drinking water threat. Designation of activities for s. 50 (4) An activity shall not be designated under paragraph 4 of subsection (2) unless the activity is, (a) a type of activity prescribed by the regulations; and (b) identified in the assessment report as, (i) an existing activity that is a significant drinking water threat, or (ii) a possible future activity that would be a significant drinking water threat. Designation of land uses for s. 51 (5) A land use shall not be designated under paragraph 5 of subsection (2) unless, (a) the land use is a type of land use prescribed by the regulations; (b) the land use relates to an activity that has been designated under paragraph 3 or 4 of subsection (2) as an activity to which section 49 or 50 should apply; and (c) the activity referred to in clause (b) is identified in the assessment report as a possible future activity that would be a significant drinking water threat. Location or area (6) A location or area shall not be specified under paragraph 3, 4 or 5 of subsection (2) unless it is in a surface water intake protection zone or wellhead protection area identified in the assessment report.
When s.19 is applied, no risk assessment has yet been completed. Risk assessments are only required if something is an activity to which ss.50-53 apply. Without a better definition of "significant drinking water threat" no permit requirements or prohibitions under s.49-53 can be applied.
In contrast, the definition of "drinking water threat" speaks of adverse impacts or potential adverse impacts on drinking water quality.
2.(1) "drinking water threat" means an existing activity, possible future activity or existing condition that results from a past activity, (a) that adversely affects or has the potential to adversely affect the quality or quantity of any water that is or may be used as a source of drinking water, or (b) that results in or has the potential to result in the raw water supply of an existing or planned drinking-water system failing to meet any standards prescribed by the regulations respecting the quality or quantity of water, and includes an activity or condition that is prescribed by the regulations as a drinking water threat
Although this too merits better definition, presumably “adverse affects� would refer to objective standards based on public health impacts, this is confirmed by part b of the definition. LOW submits that this should be sufficient to merit regulation under Bill 43 source protection plans. Once a public health impact is actual or has the potential to occur, LOW sees no logic in distinguishing between those which may have a “significant� or rather a severe adverse affect and otherwise. It is not clear under such a framework why there would be two tiers of adverse affect standards. Presumably, water quality standards represent an above/below threshold that is based on public health science. Under the OWRA and the EPA such activities are already prohibited once they have an adverse affect or once it is established that water quality may be impaired.
Recommendation:
Lake Ontario Waterkeeper submits that the term "significant drinking water threat" should simply be removed where it is used in the act and replaced with "drinking water threat" using the existing definition of drinking water threat in s.2(1). This definition is workable so long as adverse affect refers to measurable drinking water quality standards. There are already useful definitions of impairment and adverse affects in other legislation.
For example the following could be added to s.2(1) of Bill 43:
2(1) "adverse affect" means any contribution to one or more of, (a) harm or discomfort to any person, (b) an adverse effect on the health of any person, (c) impairment of the safety of any person, (d) loss of enjoyment of drinking water from a particular source, (e) degradation in the appearance, taste or odour of the water (2) For the purposes of this Act, adverse affects are measured from existing or potential water supplies that are used for human consumption and shall be deemed to be a danger to the health or safety of persons, notwithstanding that the water quality may later be improved through treatment.
These changes will mean that everyone appreciates what a threat means and where it is to be measured.
4. The assessment report structure is inflexible and will potentially politicize pollution
Failure to identify an area or an activity as a “significant drinking water threat� in a “vulnerable area� in an assessment report places it outside the scope of Bill 43 from that point on. This is effected by s.19(3) which provides that an activity must be identified as a significant drinking water threat in the assessment report for designation under sections 49-51 to be available. Sections 49-51 permit the source protection plan to either prohibit an activity or require a permit.
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 should have an opportunity to comment on the report and raise any issues overlooked by the committee at any time.
The assessment reports prepared under Bill 43 will potentially politicize pollution. The source protection committees under the act must make qualitative decisions about the importance of different activities. For example, it must identify activities as threats and single out vulnerable areas in the assessment report as a pre-requisite to regulation under the legislation. These qualitative assessments are subject to review by the Director.
First, not being identified in the assessment report, 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.
LOW submits that any assessment reports under Bill 43 should be conducted as neutral scientific advisory documents only. The committee should consider decisions about what problems should be regulated at the plan development stage. Committees should also have the flexibility to add new problems to the plan as they arise.
Recommendation:
Amend all references to identified in the assessment report as a significant drinking water threat and replace them with is a drinking water threat.
CONCLUSION
The Ontario Ministry has not made the most of its existing enforcement powers. A Clean Water Act could represent a new beginning. Instead, Bill 43 is unfocused and accomplishes less than what we already have.
We hope this committee to take a serious, hard look at what this Act represents for Ontario's water quality. New drinking water legislation will only benefit Ontarians if it represents an improved enforcement and regulatory regime from legislation that is already in place. Lake Ontario Waterkeeper supports source water protection in Ontario, and we hope that this committee will have the vision to imagine a better Bill 43.
We hope that our proposed amendments, summarized in Schedule A below will be useful for the committee. We believe that these would represent substantial improvements to the act, and relieve our most pressing concerns as follows
• Ensure conflict of laws provisions sufficiently protect the continued enforcement of existing environmental laws • Provide a clearer, more standardized definition of drinking water threat • Remedy the politicization and inflexibility in the assessment report
SCHEDULE A
PROPOSED AMENDMENTS
s.2(1)
Strike the definition of “significant drinking water threat� and keep the definition of “drinking water threat�
Add the following:
"adverse affect" means any contribution to one or more of, (a) harm or discomfort to any person, (b) an adverse effect on the health of any person, (c) impairment of the safety of any person, (d) loss of enjoyment of drinking water from a particular source, (e) degradation in the appearance, taste or odour of the water
(2) For the purposes of this Act, adverse affects are measured from existing or potential water supplies that are used for human consumption and shall be deemed to be a danger to the health or safety of persons, notwithstanding that the water quality may be improved through treatment.
Consequential amendments:
Strike s.13(2)(h)
Strike the word “significant� from: s.18(1)(a)(i), s.18(1)(a)(ii), s.18(1)(a)(iii), s.19(2)2(i), s.19(2)2(iii), s.19(3)(b), s.19(4)(b)(i), s.19(4)(b)(ii), s.19(5)(c), s.23(5)(b), s.23(5)(c), s.35(5)(b)&(c), s.35(7), s.39(1), s.39(2), s.41(1)(a), s.48(1) &(3), s.50(1)(a), s.51(2)(b)(i), s.52, s.53(1)(e), s.53(2), s.98(2)(d)
Strike out s.96(1) and replace it with the following:
96 (1) Nothing in this act abrogates or derogates from the application of any provincial or federal laws to an activity identified in a source protection plan under this act. (2) Without limiting the generality of 96(1) but for further clarity; (a) Any authorization under this act to do any thing shall not be an authorization for the purposes of s.85(2) of the Environmental Bill of Rights. (c) Any actions taken to comply with this act, a source protection plan, or any rule or regulation under this act, shall not be used as a defence under any other act or regulation under any other act. (3) A source protection plan under this act applies notwithstanding any authorization under any other act or regulation. (4) In the event that it is impossible to comply with a source protection plan or any condition of a permit, regulation or rule under this act without failing to comply with (a) the Ontario Water Resources Act or the Environmental Protection Act, or any rule, permit or regulation thereunder, the requirements of the Ontario Water Resources Act and the Environmental Protection Act prevail; or (b) A provision of any other Provincial Act, or a regulation made under another Act the provision that provides the greatest protection to the quality and quantity of the water prevails.
s.19
Strike the words “identified in the assessment report as� from s.19(2)2(i), s.19(2)2(ii), s.19(3)(b), s.19(4)(b), 19(6) replace 19(5)(c) with “the activity referred to in clause (b) is a drinking water threat�
Note: Our submission is available for download here.