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by Daily Commercial News last update:Jul 16, 2008

The tragic events in Walkerton in May 2000 left seven people dead and more than 2,000 ill, including many young children and seniors. While many factors contributed to the event, the direct cause was likely the result of agricultural runoff combined with inadequate well-head protection.

Ontario’s proposed Drinking Water Source Protection Act

BY SHARI ELLIOTT

AND C.W. DANIEL KIRBY

(DCN SPECIAL)

The tragic events in Walkerton in May 2000 left seven people dead and more than 2,000 ill, including many young children and seniors. While many factors contributed to the event, the direct cause was likely the result of agricultural runoff combined with inadequate well-head protection.

The Walkerton events gave rise to an inquiry, which was chaired by Mr. Justice O’Connor. The inquiry resulted in two reports. The first, released in January 2002, dealt with the particular circumstances leading up to the event. The second, released in May 2002, made recommendations on what actions should be taken in the future to prevent similar events from occurring.

Among other things, Justice O’Connor proposed a multi-barrier approach to protecting drinking water from contamination. The first barrier, comprising various actions, would protect drinking water sources. Other barriers would be put into place to guarantee adequate water treatment facilities, maintain the security of the distribution system and ensure reliable early warning monitoring coupled with an effective emergency response system.

The O’Connor Report noted that, currently, no specific policies address watershed source protection in Ontario. Justice O’Connor explicitly sought to redress this deficiency by recommending that the province mandate source protection plans and that such plans should operate with binding effect with respect to all decisions regarding water resources. As Justice O’Connor stated, “keeping contaminants out of drinking water sources is an efficient way of keeping them out of drinking water.”

Justice O’Connor concluded that a multi- barrier approach, that relied on treating the water effectively, monitoring its quality and taking action when problems arose, would be unduly weakened without first ensuring that drinking water sources are adequately protected. Justice O’Connor recommended that protection of drinking water sources be carried out in an ecologically meaning ful way—at the watershed level.

The previous Conservative government in Ontario and the current Liberal government both declared their commitment to implementing all of the recommendations of the O’Connor Report. In addition to the report itself, two papers were released outlining the actions that were proposed to implement the first of the barriers recommended by the O’Connor Report—drinking water source protection. The first paper (Final Report: Protecting Ontario’s Drinking Water—Toward a Watershed-Based Source Protection Planning Framework April 2003), was released by the Conservatives and the second (White paper on Watershed-Based Source Protection Planning February 2004), was released by the Liberals.

The current Liberal government released the first part of its proposed Drinking Water Source Protection Act (DWSPA) for comment on June 23, 2004. The second part of the proposed legislation, which will contain the implementation and technical provisions, has not yet been released. The provisions released in June deal with completing watershed-based studies and “Assessment Reports” (including a lengthy description of the required contents of such reports), establishing source protection areas (SPAs), establishing source protection boards and source protection committees and the process for developing source protection plans (SPPs).

While a watershed is a single comprehensive system, it often can geographically encompass numerous municipal jurisdictions. Conservation authorities are generally established on the basis of watershed boundaries and their jurisdiction can include lands in several municipalities. Given the close geographic correspondence of conservation authorities with watershed boundaries, Justice O’Connor recommended that the 36 existing conservation authorities be the agencies with fundamental responsibility for developing SPAs and SPPs.

Under the DWSPA, each conservation authority will be required to develop an assessment report describing the watershed in detail (focussing particularly on drinking water resources in the watershed), “existing and anticipated” groundwater wells and surface water intakes (which are included in classes described in a regulation yet to be released) and the drinking water risks present in the watershed. The assessment report is to be used as the basis for identifying SPAs within a watershed, which will comprise well-head protection zones and surface water intake protection zones. The SPAs will, in particular, identify those drinking water resources that require protection.

Conservation authorities will be required to submit draft assessment reports to the Minister of the Environment for review and ultimate approval. The minister will be empowered to require changes and resubmission. It is not until after approval by the minister that the assessment reports will be available to the public, although it appears that some form of public consultation is intended during the development of the assessment reports.

The DWSPA does not provide for any specific right to appeal the decision by the minister to approve an assessment report, even though it appears that such reports will conclusively determine the location and extent of SPAs, which could have a negative impact (e.g., restrictions on use) on owners of property within the SPAs.

Once approved, conservation authorities will use assessment reports to develop a source protection plan for each watershed. While the DWSPAdoes not address the probable measures that may be implemented in SPPs, the O’Connor Report and the discussion papers previously released suggest that the protective measures will include restrictions on the type and location of future development (enforced through official plans and zoning bylaws). They also state that protective controls and requirements may have to be imposed on existing developments and that municipal powers will have to be expanded to provide municipalities with the power to impose and enforce such controls on existing developments.

Once prepared, draft SPPs will be submitted to the Minister of the Environment for publication and public comment. After receiving public comment, the minister can then approve the SPP or require amendments to the SPP, but the minister’s power to require amendment is very restricted. Amendments can only be required where an SPP sets out measures that are not authorized by regulation or where the SPP sets out insufficient mandatory measures to properly protect watershed SPAs. The minister’s power to “trim down” an over-reaching SPP appears limited.

Unlike assessment reports, the DWSPA does provide a right of appeal to the Environmental Review Tribunal (ERT) with respect to SPPs. However, in accordance with the O’Connor Report recommendations, this right to appeal is severely limited. The right to appeal is limited to: (a) those persons who are directly or adversely affected by an SPP; and (b) persons residing in SPAs who have previously made submissions to the minister on the draft SSPP prior to its approval (the wording of the draft DWSPAis not as clear as it might be in this respect). In addition, the ERT’s power to require changes to an SPP are limited to those same narrow powers granted to the minister which are described above.

The powers necessary to implement the protection and planning regime envisioned in the DWSPAare extensive and potentially very intrusive. The DWSPA requires the development of exhaustive assessment reports by conservation authorities, and to be properly developed, each report will require extensive (and expensive) expert input. The cost to properly develop assessment reports and SPPs for all watersheds in Ontario will be considerable. One may well wonder whether the conversation authorities will be endowed with sufficient resources to achieve the laudable goals set out in the proposed act and, given the current strained fiscal environment, what will be the source of such funding?

The goal of properly identifying SPAs and developing source protection plans will inevitably be more difficult and costly than anticipated. The potential cost to the economy to implement SPPs and related control measures on both future and existing development could be staggering. From a municipal perspective, future development within any given municipality (which could provide significant financial or other benefits to that municipality) could be inappropriately constrained by the influence of neighbouring municipalities on the actions to be taken by conservation authorities in identifying SPAs and developing SPPs. Given the degree to which such matters could impinge on traditional areas of municipal jurisdiction, one would expect that, at the very least, a more flexible right to appeal would be available under the DWSPA. The fact that SPPs are likely to impact both future and existing development will almost certainly result in counterproductive potential political gamesmanship between municipalities, on the one hand, and between municipalities and the provincial government, on the other.

In this context, it is pertinent to ask: “Who will decide these issues and who will pay for associated costs?” This question should be asked not only with respect to the direct costs involved in identifying SPAs and developing and enforcing SPPs (which may require considerable expertise), but also with respect to the potential indirect economic costs of implementing SPPs (such as the relocation or failure of marginally economic industries in the face of increased operating expenses necessitated by SPPs).

While the DWSPA is intended to achieve objectives that no astute politician (or businessperson, for that matter) would attempt to gainsay, the program as originally conceived largely ignores the direct and potential indirect costs of implementation (and the costs of improper implementation may be even higher). Such concerns are accentuated when one considers that the primary responsibility to develop the measures required under the DWSPA will reside in conservation authorities—bodies not accountable directly to the public for the economic impact of their decisions and actions. If it is to proceed with this program, the province should provide it with an effective funding mechanism: one that dispenses sufficient resources and makes just compensation available to the conservation authorities, municipalities and private parties, as applicable. Under the DWSPA, the conservation authorities are being called upon to make difficult decisions which could well negatively affect the interests of municipalities (who may be required to undertake costly enforcement activities) and private parties (who may well be see their interests harmed by the decisions of agencies that are not directly accountable to the public). Ultimately, the public should be served by a flexible program that addresses the interests of both the environment and the community at large.

Shari Elliott and C.W. Daniel Kirby are associates with Osler, Hoskin & Harcourt LLP. www.osler.com

last update:Jul 16, 2008

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