Will the Part Two Walkerton Inquiry and Source Water Protection Legislation Supercede the Nutrient Management Act?
by Chris Attema (Water Quality Specialist, a position shared equally between three livestock organizations:
OSMA, Ontario Pork & Ontario Cattlemen’s Association)

In May 2002 Justice O’Connor released the Part Two Report of the Walkerton Inquiry. Overall, the Report provides a very thorough and complete review of the multiple barriers needed to provide safe drinking water including proper monitoring systems, Certification and Training of Operators and Provincial oversight responsibilities.

To put things in perspective, from the onset it is important to recognize that Justice O’Connor does not blame livestock agriculture for Walkerton tragedy. In fact, in the Part One Report the Justice states that “It is important to note that the owner of this farm is not to be faulted in any way”¹

At the same time, the Part Two Report emphasizes the need for increased regulatory requirements for agricultural activities that could impact drinking water sources. Justice O’Connor recognized source protection and identifying and protecting high-quality drinking sources from contamination as the first barrier for providing safe drinking water. This was one of the main issues identified by the Walkerton Inquiry as 22 of the 93 recommendations relate to Source Water Protection.

As follow up to the Walkerton Inquiry’s recommendations, a 17-member Advisory Committee was established by the Minister of the Environment on November 15, 2002 to provide advice to the government on how to best plan to protect Ontario’s sources of drinking water. The purpose of the committee was to focus on source protection planning. The Advisory Committee for Source Protection Report was released in April 2003.

Both the Source Protection Advisory Committee and the Walkerton Inquiry recommendations have direct implications for livestock producers and raise a number of key questions.

What is a watershed based source protection plan?
A watershed based source protection plan is a formal plan and written strategy document which first identifies the location of drinking water sources, and then provides policy options and recommendations for the protection of these reliable, high quality drinking water sources. At minimum, a watershed based source protection plan should include a water budget for the watershed, the identification of significant withdrawals including municipal intakes, land use maps for the watershed, the identification of well head areas, maps of groundwater contamination vulnerability, the identification of all major point and non-point sources of pollutants in the watershed, and the identification of areas where a significant and direct threat exists to the safety of drinking water.²

What is the Ontario Livestock Commodities Group position on the need for watershed-based source protection plans?
The Ontario Farm Environmental Coalition understand and support the need for livestock agriculture to meet water quality protection objectives and we support the concept of drinking water source protection plans for all watersheds in Ontario. We have identified some key differences and difficulties with the Advisory Committee Source Protection Report, including inconsistencies with Justice O’Connor’s Walkerton Report recommendations.

We believe that effective Drinking Water Source Protection legislation must have the following characteristics.
Focus on vulnerable communities first, rather than far-reaching and unfocused legislation that covers all water including the Great Lakes.

• We believe that societies interests’ are best served if the greatest effort is put forward to protect the greatest number of drinking water users over as short of a time period as possible. There must be a clear focus on the goal of protecting Ontario’s drinking water sources and a clear distinction between drinking water source protection activities and the broader watershed planning objectives. Authority and powers intended for protecting specific direct threats to drinking water should not be inappropriately applied in order to achieve other land use planning objectives. We do not think it is in the public interest to expend dollars and effort in areas to duplicate inland water and Great Lakes remedial activities. It is highly unlikely that any effort expended in drinking water source protection planning activities will ever result in any measurable benefit to drinking water sources from the Great Lakes.

Build on existing strengths and balanced legislation, rather than new stand-alone legislation that will supercede all other considerations.

• Source water protection must be based on rational risk management derived from best available science balanced with private landowner’s rights and responsibilities. We do not support the Advisory Committee recommendation for source protection legislation superceding other legislative provisions based on vaguely defined ‘risk to human health’ criteria. We believe that this recommendation goes beyond the spirit and intent of O’Connor’s recommendations, and does not provide further clarity or direction to the task of identifying what O’Connor would classify as a ‘significant direct threat’. ‘Risk to human health’ is a vague and poorly defined phrase, and implies legislation that will supercede other reasonable uses based on a precautionary principle and beyond the area that poses a ‘significant direct threat’, as recommended by O’Connor. The call for drinking water source protection superceding other legislative provisions on a broad scale is also inconsistent with Justice O’Connor’s realistic view that recognized that there is a public and societal need for land use activities that benefit society. O’Connor specifically recognizes that there is a need for land use activities that could have a negative effect on water, and for this reason he advocated that Permit to Take Water and Certificates of Approval conform to drinking water source protection. O’Connor rejected the concept that criminal and tort liability should apply to anyone who contaminates a source of water.³

The governance structure must be altered to enable more stakeholder involvement with representation based on the dominant land use in the watershed.

• The current governance structure needs to be altered to allow more stakeholder involvement with representation reflecting the level of impact drinking water source protection will have on current land use. We recommend that a model similar to the structure that was used in the development of Remedial Action Plans be considered. Source protection planning committees should report directly to the Ministry of Environment, not the Conservation Authority’s Board of Directors.

Will Watershed Source Protection Plans deal with all sources of pollution in a watershed, and not just agriculture?
Absolutely. Source Protection Plans that follow the framework proposed by Justice O’Connor, and where rational decisions are based on comprehensive and holistic monitoring programs, may in fact defend and vindicate local agricultural practices. Of course, we must remain on guard and vigilant, and we must continue to insist on provincial oversight of the process, to be sure that locally developed watershed plans are based on sound data and not emotional reactions rooted in misperceptions or other objectives that are not related to drinking water source protection.

Justice O’Connor specifically recognizes the need for septic system inspection as a condition for the transfer of a deed⁴, the need for programs for identifying and decommissioning abandoned wells, quarries and other shortcuts that can introduce contaminants into aquifers⁵, and the identification of knowledge gaps and research needs to help target monitoring efforts⁶.

Will the Nutrient Management Regulations meet the “Minimum Regulatory Requirements” specified in Recommendation 12 of the Walkerton Inquiry Recommendations?

Justice O’Connor considered and rejected this option, so it is clear that some aspects of the Source Water Protection legislation could supercede the Nutrient Management Act. “The current Nutrient Management Regulations as it is currently drafted does not provide the power to make regulations concerning other aspects of agriculture that could have impacts on drinking water sources, such as the handling of pesticides and fuels”⁷.

Justice O’Connor goes on to suggest that this problem could be resolved by broadening the scope of power under the Nutrient Management Act, or by integrating source water protection objectives into a broader policy that also includes the regulations under the Pesticides Act and the Environmental Protection Act.

Large and intensive farms and farms in sensitive areas will be required to develop a Source Protection Plan in addition to completing a Nutrient Management Plan, along with perhaps a voluntary risk assessment completed through an Environmental Farm Plan. What will the determining criteria be for distinguishing large or intensive farms that require a Source Protection Plan from other types of farms? What will be the criteria for designating watershed areas as sensitive or high-risk?

Currently we cannot provide a precise answer or a livestock commodity group position regarding this very important question. The Ontario Farm Environmental Coalition has formed a subcommittee of the Water Quality Working Group to formulate a livestock agriculture position for this issue. Three separate documents (the Nutrient Management Plan, the Source Protection Plan and the Environmental Farm Plan), each with a separate purpose and approval process, will be a paperwork and bureaucratic overload for both producers and the government regulatory agencies. Since there is substantial overlap between nutrient management and farm water protection plans it would make sense to deal with both of these issues in one consolidated plan rather than two separate documents.

Justice O’Connor envisioned Environmental Farm Plans as the means by which water protection could be achieved for “small farms that are not in the areas of the watershed that are identified as sensitive or high risk.”⁸ The downside is that this requirement could undermine the voluntary and confidential features that are essential to the completion of a voluntary risk assessment.

It is reasonable to speculate that the criteria for large or intensive farms could be similar to the Nutrient Management Act trigger of 300 Nutrient Units. The criteria for sensitive or high-risk zoning are likely to include the areas identified as providing municipal wellhead protection and sensitive groundwater recharge functions.

1. Part One Report of the Walkerton Inquiry. pp. 13
2. Part Two Report of the Walkerton Inquiry, 2002. pp 104-105
3. Part Two Report of the Walkerton Inquiry, 2002. pp 112-113
4. Recommendation 9. Part Two of the Walkerton Report Inquiry.
A Strategy for Safe Drinking Water. pp 19
5. Part Two of the Walkerton Report Inquiry. A Strategy for Safe Drinking Water. pp 104
6. Part Two of the Walkerton Report Inquiry. A Strategy for Safe Drinking Water. pp 105
7. Part Two of the Walkerton Report Inquiry. A Strategy for Safe Drinking Water. pp 138
8. Part Two of the Walkerton Report Inquiry. A Strategy for Safe Drinking Water. pp 129