Lake Ontario Waterkeeper comments on Appointments to Source Protection Committees, Clean Water Act, 2006

EXECUTIVE SUMMARY

1. The committee members must be impartial

2. The Ministry must ensure that committee members are knowledgeable about the source protection area and have the ability to understand and interpret scientific information.

3. Source protection committees must be governed by strong conflict of interest policies

BACKGROUND

On October 18, 2006 the Clean Water Act, 2006 passed third reading and came into force the next day. On January 2, 2007 the ministry posted a discussion document on the Environmental Bill of Rights Registry proposing appointment procedures for the source protection committees under the Act. The proposal would be implemented by regulation.

In previous submissions on the Clean Water Act, Lake Ontario Waterkeeper expressed concerns that the legislation had the potential to politicize pollution, undermine existing environmental legislation, and create an unworkable framework for water protection. Waterkeeper maintains our position that the Clean Water Act will only benefit Ontarians if it goes beyond the protections we already have in this province.

INTRODUCTION

Section 4(1) of the CWA declares that all conservation authority jurisdictions are “drinking water source protection†areas. Section 7 of the Act creates a Source Protection Committee (“SPCâ€) for each authority. SPCs are able to exercise their functions largely without any mandatory public or stakeholder consultation.

SPCs must create assessment reports and source protection plans for the entire source protection area. Assessment reports must identify all areas of environmental significance such as groundwater recharge areas, surface water protection zones, and vulnerable aquifers. They must identify all existing and planned municipal drinking water systems and any threats to those systems. They must characterize the water quality and quantity in the whole source protection area and create water budgets. Once this task is completed the SPC must create a source protection plan for the entire watershed.

SUBMISSION

1) The committee members must be impartial

The SPC will have the task of making decisions that affect the rights and interests of a large number of Ontarians' property, health and environment. The SPC will also be expected to make policies and weigh scientific evidence. These responsibilities are quasi-judicial and require a high standard of impartiality.

The Ministry discussion document makes several proposals that undermine the ability of the SPCs to ensure clean water for Ontarians:

• 1/3 municipal representation on the SPC • 1/3 “sectoral†or industry representation • 1/3 other members who may be scientists

The proposed split undermines the independence and effectiveness of the SPC. First, the 2/3 stakeholder representation by municipalities and industry is inappropriate; these are two groups the SPC is charged with regulating, so the proposal amounts to self-regulation.

The discussion document suggests that SPC members will be expected to bring forward the vested positions of municipal and sectoral interests instead of independently and neutrally assessing watershed problems using stakeholder consultation. LOW submits that this is not consistent with the objectives of the Clean Water Act.

2) The Ministry must ensure that committee members are knowledgeable about the source protection area and have the ability to understand and interpret scientific information.

The SPC must make qualitative decisions about the environmental significance of different activities based on detailed and specialized scientific evidence. This function requires expertise and independence. In executing the science function of the committee, members must be qualified and able to review expert reports on hydrogeology, biology, engineering, watershed management science and public health.

The proposals in the discussion document fail to adequately ensure that committee members bring these skills to their appointment.

3) Source protection committees must be governed by strong conflict of interest policies

The quasi-judicial nature of the SPC also requires stronger conflict of interest guidelines than are proposed in the discussion document. The conflict of interest provision should reflect the important nature of the SPC's role. The members must objectively assess the watershed and create a science-based plan that also balances competing interests. Conflicts that impair or appear to impair a member's capacity to discharge this function should be clearly addressed in the regulation.

CONCLUSION

LOW is very concerned about how the Ministry sees the role of SPCs at a conceptual level. The SPC role is too important to be used as a platform for decision-makers with vested interests. LOW recommends that the appointment process proposed in the discussion document be abandoned and a new process be put forward with a more careful consideration of how to ensure the integrity of the committees.

1. The committee members must be impartial

2. The Ministry must ensure that committee members are knowledgeable about the source protection area and have the ability to understand and interpret scientific information.

3. Source protection committees must be governed by strong conflict of interest policies

Lake Ontario Waterkeeper's entire submission is available for download here