Please see the City of…

Please see the City of Hamilton, Hamilton Water Division's comments below.

General comments:

The City requires the authority to regulate effluent quality and quantity currently achieved through its Sewer Use By-law. The quality and quantity limits are in place to protect our infrastructure and to also ensure that provincial and federal quality effluent requirements for discharges to the environment (e.g., Procedure F-5-5, PWQO, ECA, etc.) are met. By limiting the ability to set criteria for discharges to sewer systems, municipalities would not have the control needed to comply with its sewer system approval conditions for effluent quality and quantity. 1). What will the water quality targets be? 2) Who will be responsible for contaminant discharges from municipal infrastructure to the natural environment? 3). Who will manage and mitigate adverse impacts on flood risk and CSOs?
The City is responsible for infrastructure planning, asset management and operational costs including transmission and pumping requirements, Asset lifecycle repair, renewal and replacements needs that are unique for each municipality for each type of infrastructure.

Source Protection Planning:

As currently drafted, the proposal would require the Licenced Engineer Practitioner (LEP) to undertake a site-specific technical assessment to determine whether the works are identified as a significant drinking water threat in a Source Protection Plan. MECP is currently responsible for issuing Environmental Compliance Approvals (ECA) for stormwater while the Halton-Hamilton Source Protection Plan includes prescribed instrument policies addressing stormwater that require the province to ensure compliance with the applicable policies. Furthermore, Source Protection Plan policies cannot be legally binding on private developers / consultants in the absence of Part IV tools.
The proposal, as currently drafted, would transfer that responsibility to the proponent and would not only be inconsistent with the source protection plans but would weaken oversight of the management of the stormwater works. Through the ECA framework, the Ministry review provides critical technical oversight to ensure that the detailed design of a proposal reflects site-specific conditions and design needs in relation to source water protection. The ECA review and approval approach further provides a higher level of due diligence which includes consultation and addressing requirements for receiving water (including any source water projection areas). By transferring these works from the ECA to the EASR framework, a lack of provincial oversight may result in weakened protections for sources of drinking water.

The number of LEPs who would be working on stormwater projects and also be familiar with the requirements of drinking water source protection is very limited. Minimum standards for drinking water source protection training should be established through the MECP and all LEPs dealing with significant drinking water threats be required to successfully complete the training in advance of pursuing an EASR in these areas. In addition to training, consideration should be given to including checklists with each EASR registration to verify that the stormwater management design report includes all required information (e.g., applicable water quality, erosion, and quantity targets for the site). The municipalities should be kept appraised on the monitoring and operating information associated with these stormwater private facilities.

Given the fact that MECP will have less oversight over the local activities, consideration for municipal access to the EASR information is recommended.

Hamilton Water is also concerned that moving to an EASR approach removes any right to appeal, should the municipality disagree with the LEP assessment. If new municipal wells are placed in areas with existing private stormwater facilities, it is understood that this proposal would also prohibit the identification of any new threats. Furthermore, the Source Protection Plan would have to create a different set of policies for private vs municipally owned facilities. This approach goes against the principle of using the best science available as well as the proactive, multi-barrier approach to protecting our sources of drinking water.

Inspection / Audit of EASR Registrations:

While the proposal notes that the MECP will continue to audit the registry and inspect stormwater management works as needed to enforce compliance with the rules, no details have been provided about the proposed compliance framework. Further, this approach represents a significant shift away from proactive review to a reactive approach where inspections may not occur in time to address non-compliance with EASR registrations (e.g., works may be underway or already completed). With little information regarding the Ministry’s audit approach, including whether or not the Ministry intends to increase audits given the proposed increased use of the EASR for stormwater works, there is concern that the Ministry is seeking to potentially revise current approaches that represent protections to safe drinking water.

Concerns that private stormwater that is not operating properly may be assumed by the municipality at a later time should be also noted.

Regulatory Amendments under the OWRA to Remove the Need for LID Works to Obtain an ECA:

The MECP is proposing to expand the list of existing exemptions under O. Reg. 525/98 for certain low risk sewage works to obtain an ECA. The list currently allows low impact development (LID) works on residential properties, foundation drainage works, ultraviolet treatment to control mussels in water pipes and sewage works related to construction site dewatering to proceed without an ECA. It is now proposed that the regulation be amended to provide an exemption for all LID works, as well as drainage works for roadways and railway projects by Metrolinx.
Proper maintenance of any LID feature is directly linked to its performance. While the implementation of LID works on single private residences is supported, there needs to be assurance that proper ongoing maintenance will take place to achieve optimal outcomes and provide for long-term operation (e.g., continuity of operation, providing credit(s) for peak flows, phosphorus reduction, water balance and volume control and prevention of flooding, erosion, and pollution issues). In lieu of the requirement for an ECA (which would include operation and maintenance responsibilities for the LID feature), it is recommended that measures be put in place to ensure proper operation and maintenance of the LID feature over time. One potential solution could be to require agreements between municipalities and landowners to ensure a specified party is accountable for the operation and maintenance of the LID feature; this could potentially be achieved using the Drainage Act. Guidance for municipalities and others will be required. Without measures in place to ensure ongoing maintenance and proper operation, it is possible that this proposed exemption could result in a gradual degradation of the efficacy of the LID feature.
Under the lens of source water protection, if LID works, which may be a significant threat to drinking water, were exempted from the need for an ECA as proposed by MECP, Source Protection Committees would need to assess other ways of addressing any such threat, including the development of Risk Management Plan policies (under section 58 of the Clean Water Act). In that case, the Ministry may need to add Risk Management Measures appropriate for residential LID works to the Risk Management Measures Catalogue and may wish to add content specific to LID works to the Risk Management Official training (including how to recognize the difference between a residential LID feature and an aesthetic feature, and how to properly maintain LID features to mitigate risks to drinking water).

Regulatory Amendments under the Clean Water Act:

The MECP is proposing to amend O. Reg. 287/07 under the Clean Water Act by removing the need for, limiting, or restricting the types of policies to be included in source protection plans where a significant drinking water threat is being managed through an EASR registration. The Ministry is also proposing to amend the regulation to allow for amendments to be made to source protection plans without undergoing the existing amendment processes where the amendment is to remove policies that are no longer operative.
The removal of Risk Management Plans or Environmental Compliance Approvals (ECA) requirements for Significant Drinking Water Threats is a fundamental change in the Source Protection Planning process that weakens the CWA regulation.

It is recommended that the Ministry work with the Source Protection Authorities on any requested changes to a Source Protection Plan. This process should maintain the intended rigor under the Clean Water Act, as contemplated under the prescribed instrument policies of a Source Protection Plan.

In addition, Hamilton Water believes that the Risk Management Officer (RMO) should be notified of works that could be a significant drinking water threat. The City currently has awareness and influence of development within Source Water Protection Areas under existing legislation. The proposal to use the streamlined EASR process would limit visibility and stakeholder consultation on proposals.