The Proposed Clean Water Act [Bill 43]: Who is Picking Up the Tab?

Chris Attema, Water Quality Specialist

Jackie Fraser, Executive Director of AGCare

Bill 43, the proposed Clean Water Act, passed its second reading in mid-May 2006. It will now be sent onto the Social Policy Committee for further review. Public hearings were not scheduled at press time, but it is hoped there will be extensive public consultation throughout the province early this summer.

Ontario Farm Environmental Coalition (OFEC) representatives have met with Minister of Environment, Laurel Broten, Minister of Agriculture, Food, and Rural Affairs, Leona Dombrowsky, the rural caucus, and numerous government staff representatives to present the agriculture industry’s concerns. Most of our concerns are shared by many other industries and agencies throughout the province, including some rural municipalities, conservation authorities, mining and aggregate companies, golf courses, and the provincial Chamber of Commerce.

Farmers naturally understand the importance of protecting drinking water and believe in a practical approach to protecting its quality. Our families too drink the water that comes from our land through our wells.

OFEC believes that protecting drinking water is a shared responsibility. Farmers need to be treated fairly under this legislation; we should not be left shouldering most of responsibility and costs. We believe that everyone has a role to play in protecting our drinking water.

OFEC has nine main concerns with the proposed Clean Water Act [Bill 43]:

1. The current “Purpose Statement” is too broad. As currently stated, it may be interpreted to mean all water, everywhere, instead of focusing on the protection of municipal drinking water supplies.

2. Bill 43 contains several definitions that are intended to clarify the meaning of several words found within the text of the Bill, but they need to be more clearly defined to avoid misinterpretation.

3. The Bill suggests that the provincial government is unwilling to provide compensation for the imposition of land use restrictions that could adversely impact on the profitability of a farm operation. Bill 43 is silent on the subject of providing funding assistance to farmers for the adoption of beneficial management systems. According to a OFEC legal opinion, “….[Bill 43] will have serious financial consequences for landowners, operating to effectively expropriate lands without any apparent compensation.” This contradicts advice provided by Justice O’Connor in the Report on the Walkerton Inquiry: Part 2 (2002) in Recommendation 16. The Implementation Committee Report to the Minister of Environment on Watershed Based Source Protection (2004) provided similar advice, as did the Expert Panel Review on Well Water Sustainability in Ontario (January 2006), and the Canadian Environmental Law Association (CELA) Publication #521 (October 2005).

4. OFEC is categorically opposed to a Permit System for agriculture as proposed in this legislation. It is our opinion that the “Building Inspector” model or approach is not suitable for protecting municipal drinking water supplies. A building inspector applies objective technical engineering standards when issuing a permit. The approach to addressing risks to drinking water is far more subjective and would require detailed site-specific information relating to the soils, topography, and farming system. It may be extremely difficult to find one individual who could accurately assess all of these variables on multiple properties. A permit system is unworkable for agriculture.

5. Bill 43 is silent on the potential social, cultural and economic impacts associated with environmental protection. It is customary that the four elements of social, cultural, economic and environmental impact be considered simultaneously when developing public policy.

6. OFEC strongly disagrees with the proposal in Bill 43 of an ‘interim period’ in which an Assessment Report would document required action on the part of a landowner prior to the completion of a Source Water Protection Plan. The intent of the Assessment Report is to inform the Source Protection Plan and it is in turn the Source Protection Plan that informs landowners of the local water protection strategy approved by the Minister. To impose land use restrictions or require modifications on the basis of an Assessment Report alone constitutes a lack of due process that could result in landowners implementing practices that are unnecessary or inappropriate.

7. OFEC is concerned that Bill 43 portrays the Source Protection Committee as subordinate to the Source Protection Authority (SPA) or Conservation Authority. The appropriate role for the SPA or Conservation Authority is to facilitate the process and provide technical assistance. The SPA or Conservation Authority must not be in a position to supplant the authority of the Source Protection Committee. This approach will also ensure a separation between the broad watershed responsibilities of Conservation Authorities and the more narrow objectives of protecting drinking water sources within a watershed.

8. Currently, Bill 43 is silent on the importance of water conservation and efficient use. There is, however, a clear link between water efficiency and conservation, and the protection of drinking water supplies given that reducing the volume of water takings allows more time for natural attenuation processes thus reducing the area extent of time-of-travel zones and any corresponding costs associated with land use management within those zones.

9. The appeal process outlined in Bill 43 is not sufficient for landowners that are impacted by either the proposed Assessment Report or Source Protection Plan. Given the potential impact of having land designated as vulnerable or having a practice deemed to be a significant threat, it is imperative that landowners have the opportunity to demonstrate to the province that data were not interpreted properly or mitigating factors were ignored.

OFEC is striving to work with other impacted stakeholder groups to address mutual concerns.

Of course OFEC recognizes the importance of safe drinking water. It’s the right objective, but the wrong approach.  We want to ensure that we can all do our part to provide safe drinking water without being stuck with the tab.