Recommendations to…

Recommendations to Environmental Registry of Ontario (ERO #013-4239, ERO #013-4125, ERO #013-4293) by the Quinte Region Source Protection Committee Regarding Bill 66
(An Act to Restore Competitiveness by amending or repealing certain Acts)

1. Preamble
1.1 This presentation to the Environmental Registry of Ontario on recommended amendments to Bill 66 addresses the protection of drinking water sources exclusively.
1.2 Bill 66 was introduced to reduce red tape and regulatory burden in order to make it easier for businesses to create jobs. The Quinte Region Source Protection Committee understands the objective of the Bill 66; however, the Quinte Region Source Protection Committee is concerned that the Clean Water Act is included in Schedule 10 of Bill 66. The Committee is also concerned about the lack of detail regarding implementation of Bill 66, in particular with regard to the protection of drinking water sources.
1.3 The Safe Drinking Water Act (SDWA) and the companion Clean Water Act (CWA) were enacted, in part, because of Justice O’Connor’s findings that the major contributing causes to the Walkerton Tragedy were that: a) there was no mechanism to control the quality of the source water, b) local politicians placed the financial considerations of Walkerton’s water supply as more important than public health, and c) the provincial government of the time had reduced its direct involvement in the provision of drinking water.
1.4 From the information received to date (see documents reviewed below), under Bill 66 the events in Walkerton could be repeated. If financial considerations are the main factors impacting decision-making, the result could be a waiving of drinking water source protection with no local input. While bylaws under the act require provincial approval, it is unknown the extent to which the province will require municipalities to rationalize not conforming to Source Protection Plans when considering bylaws and additionally, the extent to which the province itself would have regard for the impact of the bylaw on protecting drinking water sources.
2. Aim
2.1 The aim of this presentation is to provide the province with recommendations for consideration regarding Bill 66.
3. Factors for Consideration
3.1 All new acts make provision for regulations to be made as part of the act. From the public’s point of view such regulations, while they are published for comment, are subsequently passed or rejected without public debate. Bill 66 as proposed, makes mention of a future regulation, but does not provide details. Rather, it has been left open for regulations or changes that may significantly affect drinking water source protection measures, with the result that detailed impact of the Bill 66 cannot be known nor therefore commented upon at this time.
3.2 It is indicated in the preamble that the SDWA and the CWA were enacted in recognition that the Walkerton Tragedy was, in part, caused by a lack of control of the drinking water source, a lack of interest in drinking water quality by local governance and a diminished provincial role in the provision of safe drinking water. Bill 66 risks establishing a recurrence of the same set of circumstances.
3.3 Investigations in the form of engineering reports and Ministry inspections following the Walkerton Tragedy revealed that there were similar situations close to occurring throughout the province. As such the SDWA and the CWA were enacted to provide safeguards to safe drinking water throughout the province. Diminishing or reducing the impact of either act increases the risk to public drinking water supplies regulated by these pieces of legislation. It is recognized that simplifying procedures for development proposals may be attractive to business interests; however risking public health by not regulating source protection is counterproductive.
3.4 Since Bill 66 does not repeal Section 19 of the SWDA, if persons named in the section (including councillors) enact a bylaw that attracts development but leads to putting the public at risk they may be subject to the penalties of the act. This may leave councillors and senior municipal staff in danger of violating the SDWA even when such bylaws are passed and agreed to by the province.
3.5 Source Protection Plans (SPPs) are science-based and reflect local conditions. The plans were locally developed by representatives of the public, industry and commerce and local governments. These plans, and supporting reports, were all subject to numerous public consultations throughout all stages of development and approval. SPPs have been endorsed through bylaw or resolution under local procedural bylaws by the municipalities to which the plans apply. These procedural bylaws typically require public notice of proposed changes to resolutions or bylaws. Nothing in Bill 66 allows for bypassing a procedural bylaw that endorsed the source protection plan. While Bill 66 may permit a bylaw to be passed without notice, the public will be notified in accordance with the municipal procedural bylaw(s). As such, regardless of Bill 66 as written, public notification will be provided. Waiving the requirement to adhere to source water protection plans is not in the interest of the municipality.
3.6 The areas designated in SPPs as vulnerable to significant drinking water threats represent a small portion of the land which is likely to be attractive for potential development. As such, applying Bill 66 to these lands will not appreciably increase the area to which municipalities will wish to attract development but may well place risks to drinking water safety. If something were to go wrong and the source of drinking water became contaminated, the costs involved would far outstrip the benefits from any development. Additionally, the objective of Bill 66 is already enshrined in the CWA under Section 39(3).
3.7 Development proposals in the United States are subject to environmental constraints similar to those in Ontario, although the process may be less arduous. Business interests however, indicate that a rationale for locating in the USA is primarily based upon tax advantages offered by municipalities. As such avoidance of a source protection plan would not be a reason for development.
3.8 The Bill does not propose changes to other acts and regulations that provide measures of protection for drinking water, such as the Environmental Protection Act (EPA), the Ontario Water Resources Act (OWRA), The Drainage Act (DA), the Safe Drinking Water Act (SDWA) and The Technical Standards and Safety Act. These acts all have associated “instruments” that are relied upon in SPPs. The drinking water risks that are mitigated by these acts would remain in effect, with the exception of changes to Permits to Take Water (PTTW) which is discussed in the subsequent paragraph. Since the provisions of these acts upon which parts of source protection plans rely would remain in effect, there is no advantage to ignoring SPPs as a means to attract development.
3.9 The Government of Ontario’s for the People Cutting Red Tape mentions the Ministry of the Environment, Conservation and Parks (MECP) in terms of permits to take water, storm and sanitary sewers and MISA regulations. It does not mention that drinking water may be placed at risk. In addition, the press release mentions Permits to take Water but only in terms of facilitating construction where water is pumped from a source and then immediately returned. In the latter case, as part of the project Environmental Assessment (EA), there will still be a requirement to consider drinking water source protection. Indeed Bill 66 does not repeal any acts or regulations requiring an environmental assessment, therefore any development may be subject to the Environmental Protection Act (EPA) and presumably would not be able to bypass the expense and time to conduct an environmental assessment. This provides some further assurance (but no guarantee) of protection of Drinking Water Sources.
Bill 66 does not address provincial instruments that regulate wastewater effluents (quality or flows). Thus municipalities must be cognizant of the impact of any new development that would jeopardize their waste treatment instruments. Attracting development that could lead to violating these instruments would not be in the interest of the municipality. This would negate any positive aspects of ignoring source protection measures.
Many drinking water sources in the Quinte Source Protection Region have been negatively impacted by commercial/industrial development in the past. Consequently, the Quinte Region Source Protection Committee is sensitive to situations which may repeat these occurrences and views the provisions of Bill 66 regarding source water protection with great concern. Examples of these situations are:
• a municipal well in the Village of Madoc that had to be abandoned because of hydrocarbon contamination;
• threats to the Picton Water Treatment Plant as the result of a fuel spill at a development for salt storage;
• the contamination from a landfill site near the Belleville Water Treatment Plant; and
• the groundwater and surface water contamination at an industrial property, metres away from the Bay of Quinte water source for the Town of Picton.
3.11 It is noted that Bill 66 does not apply to residential development and therefore residential development would remain under the requirements of Source Protection Plans.
3.12 Bill 66 only applies to development that will create more than 49 jobs in areas where the population is less than 250,000 people, which would apply to all municipalities in the Quinte Region. While the possibility of such development within the Quinte Region’s source protection Wellhead Protection Areas and Intake Protection Zones is likely of low possibility and given that there are ample options for such development outside source protection areas, there should be no need for municipalities in the region to consider the need for development that would violate Section 39 of the CWA. In addition developers of any new modern commercial and industrial complexes are unlikely to consider moving ahead without a thorough understanding of the associated risks. While this does not guarantee that drinking water sources will not be put at risk by such development, it does demonstrate that there will be an added cost.
Recommendations
Whereas source protection zones and areas in the Quinte Region where the impact of Schedule 10 of Bill 66 would apply are limited and development that could put drinking water at risk is unlikely to be attractive to such developers; and whereas it is paramount to avoid another “Walkerton”, by recognizing that protecting safe drinking water must take precedence over financial considerations,
The Quinte Region Source Protection Committee therefore recommends:
a) that Bill 66 be amended to remove Section (6) 6. of Schedule 10 of Bill 66 (An Act to Restore Competitiveness by amending or repealing certain Acts),
b) that if Schedule 10 remains in Bill 66, where a municipality passes a bylaw under the terms of Bill 66 that could impact an approved Source Protection Plan, a regulation be put in place requiring the province to publish a record of its review/approval proceedings and
c) that any approvals granted under Bill 66 be subject to appeal.
Sincerely,

M.G (Max) Christie
Chair, Quinte Region Source Protection Committee