Establishment of a regulation under the Safe Drinking Water Act, 2002

Description of regulation

The Safe Drinking Water Act, 2002 provides for the protection of human health and the prevention of drinking water health hazards through the control and regulation of drinking water systems and drinking water testing services. Ontario has a multi-barrier drinking water safety net, a framework designed to protect drinking water from the source to the tap.

The proposed regulation under the Safe Drinking Water Act is intended to ensure that source protection plan policies can be put into place for new or expanded drinking water systems prior to drinking water being provided.

Part V of the Safe Drinking Water Act provides that an alteration cannot be made to a municipal drinking water system unless it is authorized by the drinking water works permit for that system. The Ministry of the Environment and Climate Change (the ministry) is proposing to develop a regulation under subsection 168(2) of the Safe Drinking Water Act. Under that subsection, the Minister is authorized to prescribe requirements for applications or to prescribe conditions relating to drinking water works permits or licences for municipal residential drinking water systems. The new regulation would require that certain work necessary under the Clean Water Act be complete, and be endorsed by municipal council, before a municipality could apply for a drinking water works permit associated with a new or expanding municipal residential drinking water system.

The Clean Water Act, 2006 is another important part of Ontario’s multi-barrier approach to drinking water protection. The Clean Water Act established source protection areas and the process for the development of assessment reports and source protection plans for each of the areas identified. Assessment reports and source protection plans were developed and are now in place for every source protection area. Together these documents delineate vulnerable areas - wellhead protection areas and intake protection zones for water quality, and provide vulnerability scoring for those areas, identify where threats must be addressed, and establish policies to address those threats. The assessment reports and source protection plans may also identify areas where there is a potential for water quantity concerns.

Under the Clean Water Act, amendments to a source protection plan may be proposed by a local source protection authority. Municipalities play a critical role in this locally initiated amendment process and work closely with their respective source protection authorities to ensure that the plans are kept up to date. Where a municipality is proposing a new drinking water system or amendments to an existing system, the proposed regulation would make municipalities responsible for working with local source protection authorities to ensure that work needed to identify the vulnerable areas and to identify and address threats, is completed, endorsed by council and provided to the local source protection authorities in advance of an application for a drinking water works permit. This work will build on the foundational information already included in local source protection plans and funded by the province.

Condition of an application to receive or amend a drinking water works permit

Under Part V of the Safe Drinking Water Act, all municipal residential drinking water systems are governed by two instruments: a drinking water works permit and a licence. Schedule A of the drinking water works permit describes the drinking water system, including the drinking water source(s). The owner of an existing drinking water system must apply to the ministry prior to altering the existing water sources (e.g., relocating a surface water intake) or adding water sources (e.g., adding one or more surface water intake or groundwater well). Similarly, where a new municipal residential drinking water system is proposed, the municipality must apply for a permit to establish the system and a licence to operate the drinking water system.

When new municipal drinking water systems are established or new wells or intakes are added to existing municipal drinking water systems, technical work is required to delineate areas where water quality is vulnerable, identify threats to drinking water and establish policies to protect the sources of drinking water in order to meet the intent of the Clean Water Act. However, the Clean Water Act does not set out timing considerations for the completion of this work and inclusion in amended assessment reports and source protection plans.

The proposed regulation would apply to municipal residential drinking water systems when they are proposing new or expanded systems with water sources that are within a source protection area, delineated in accordance with the Clean Water Act.

The proposed regulation would require owners of municipal residential drinking water systems to pass municipal council resolutions in support of any necessary amendments to the applicable assessment report(s) and source protection plan(s) prior to submitting an application for a new or an amendment to their existing drinking water works permit. Requiring the necessary vulnerable areas and associated source protection policies for water quality be established and endorsed by municipalities for new and expanding systems before the application for a drinking water works permit is assessed or issued, will ensure that source water protection provisions are in place before new or expanded systems provide drinking water to the residents of Ontario, improve accountability and ensure continued public health protection.

New and expanding municipal drinking water systems may be located in areas where there are water quantity concerns. Specific updates to water quantity assessments set out in the approved assessment reports established under the Clean Water Act are not included as part of the proposed regulation. Assessment reports should instead include a workplan to identify when and how any necessary water quantity assessments will proceed where the work will not be completed at the time of source protection plan amendments. Where a municipality does choose to undertake a water quantity risk assessment in advance of their application being submitted for their drinking water works permit, the work should be included in their amended assessment reports.

Evidence of a municipal council resolution in support of the assessment report and source protection plan amendments would be required to accompany an application for a new or amended drinking water works permit. The proposed regulation would also include an emergency exception, allowing alterations to be made to drinking water sources without this evidence where such alterations are necessary to address the emergency or prevent a drinking water health hazard.

The ministry is also proposing amendments to Ontario Regulation 287/07 General under the Clean Water Act which sets out the requirements for the preparation, approval and amendments of assessment reports and source protection plans (see separate posting EBR #013-1839 for details). These proposed amendments address implementation challenges and increase transparency related for minor plan amendments, including those related to properly decommissioned wells and intakes of municipal residential drinking water systems.

Discussion / consultation questions

1. In your opinion, is the proposed regulation under the Safe Drinking Water Act for municipal drinking water systems in source protection areas necessary to ensure source protection work is completed prior to bringing new or expanded drinking water systems online?
2. What advantages are there for municipalities and system owners with the proposal to require source protection zones to be delineated around new wells or intakes before a drinking water works permit is issued? Is there anything that the ministry should consider including in the regulation that would assist municipalities?
3. Is there anything else that you wish the Ministry to consider with respect to the proposed regulation outlined in this posting?

Purpose of regulation

The purpose of this proposal is to seek feedback from the public, stakeholders, communities, and Indigenous groups on the proposed development of a regulation under the Safe Drinking Water Act.

The ministry is seeking input on a proposed regulation under the Safe Drinking Water Act that will add an additional level of assurance that new or expanding municipal residential drinking water systems within source protection areas, as defined under the Clean Water Act, 2006, have delineated areas around their wells or intakes where water quality is vulnerable and that source protection policies are in place prior to the drinking water being provided to the residents of Ontario.

The purpose of the Clean Water Act is to protect existing and future sources of drinking water. From time to time municipalities require changes to existing drinking water systems or new drinking water systems to supply future growth areas or to replace failing/outdated infrastructure. Municipalities are subject to the Environmental Assessment Act, and in order to establish new or expand existing drinking water systems, municipalities are required to follow the process outlined in the Municipal Engineers Association Class Environmental Assessment. The Class Environmental Assessment process ensures that both positive and negative impacts (environmental, economic, social, cultural, etc.) are appropriately assessed and considered in the evaluation of alternatives to best meet the needs of the municipality.

Subsequent to completion of the Class Environmental Assessment project and in addition to a Permit to Take Water, a Safe Drinking Water Act drinking water works permit to establish, replace, or alter a municipal drinking water system, and a drinking water licence (or amendment) to operate the drinking water system are required. Any costs associated with vulnerable area delineation and threats identification should be identified and integrated into the municipal budget associated with the Class Environmental Assessment and other necessary work to secure permits or licences when developing or amending drinking water systems.

Amendments were made to the Municipal Engineer’s Association Class Environmental Assessment document in October 2015 that made it clear that municipalities must assess the impacts of any source protection plan policies as part of a Class Environmental Assessment project. To facilitate this impact assessment for new or expanding drinking water systems, it was identified that vulnerable area delineation and threats assessment work is most suitably undertaken concurrently with the Class Environmental Assessment project.

The Clean Water Act does not set out timing considerations for the completion of vulnerable area delineation, threats assessment or policy development work with respect to new wells or intakes that are proposed or changes that may be required after the approval of the initial source protection plan. Similarly, the Safe Drinking Water Act does not set out requirements for the identification of source protection requirements before applying for and receiving a new or amended drinking water works permit, or licence.

The proposed regulation under the Safe Drinking Water Act, 2002 would ensure that source water protection provisions are in place prior to new or expanding drinking water systems within source protection areas providing drinking water to the residents of Ontario, improving accountability and ensuring continued public health protection.

Other information

The websites maintained by Conservation Ontario and source protection authorities contain information about the assessment reports and source protection plans prepared by each source protection committee.

General information on source water protection and the Clean Water Act, 2006, is also available at Conservation Ontario’s website.

Public consultation

This proposal was posted for a 60 day public review and comment period starting December 22, 2017. Comments were to be received by February 20, 2018.

All comments received during the comment period are being considered as part of the decision-making process by the Ministry.

Please Note: All comments and submissions received have become part of the public record.

Other public consultation opportunities

Comments may also be submitted electronically to: source.protection@ontario.ca

To submit written comments, please forward your response to:

Jennifer Moulton
Source Protection Programs Branch
Ministry of the Environment and Climate Change
40 St. Clair Avenue West
14^th Floor
Toronto Ontario, M4V 1L5
Phone: (519) 860-7851
Fax: (416) 327-6926

Regulatory impact statement

The proposed regulation under the Safe Drinking Water Act is intended to ensure that source protection plan policies can be put into place for new or expanded drinking water systems prior to drinking water being provided to the residents of Ontario. Through Ontario’s investment of over $280 million we have built a foundation of watershed science that can be used when undertaking technical work for new and expanded drinking water systems. This will reduce the overall costs of development of source protection policies and the cost for any new technical work should be factored into the costs associated with system expansion or development.

The proposed regulation would apply to all municipalities within source protection areas when they are proposing new wells or intakes or expansions. Any potential costs associated with vulnerable area delineation and threats identification should be included in the municipal budget associated with other necessary work (e.g. Class Environmental Assessment project) to identify and develop the infrastructure. Municipalities have various options available to them to recover costs where new or expanded systems are needed to support growth or when systems are being developed to support established areas. Any investments in source water protection policies for new or expanded systems may also be considered as eligible costs under the Ontario Community Infrastructure Fund. This fund is generally to help cover costs associated with capital infrastructure expenditures for small, rural and northern municipalities.