Blog post by Richard Lindgren, CELA Counsel
Most Ontarians obtain their drinking water from municipal systems that are closely regulated under the Safe Drinking Water Act, 2002 (SDWA). This law is used to establish stringent standards for the treatment, distribution and testing of municipal drinking water in order to safeguard human health.
The most recent annual report under the SDWA from Ontario’s Chief Drinking Water Inspector indicates that over 99% of municipal drinking water samples continue to meet the water quality standards prescribed under Ontario Regulation 169/03. For consumers of municipal drinking water, this is good news whenever they turn on the tap for drinking or cooking purposes.
Similarly, sources of municipal drinking water have been identified and protected under the Clean Water Act, 2006 (CWA). Like the SDWA, the CWA was enacted after the Walkerton Tragedy in 2000, when seven people died and thousands were sickened after ingesting contaminated drinking water from a municipal well.
To help avoid a recurrence of the Walkerton Tragedy, the CWA requires the development of enforceable Source Protection Plans to regulate (or prohibit) activities that pose significant threats to the quality or quantity of groundwater and surface water resources that supply municipal drinking water systems.
Unfortunately, this existing legal framework does little or nothing to safeguard the 1.3 million Ontarians (including CELA clients living in rural and northern areas) who use private wells for obtaining drinking water. In short, neither the SDWA nor the CWA regulates drinking water from private residential wells.
Instead, these domestic wells are generally subject to Ontario Regulation 903 under the Ontario Water Resources Act (OWRA). Regulation 903 sets out provincial requirements for the construction, cleaning, maintenance, abandonment and reporting of wells throughout Ontario. In addition, Regulation 903 creates licensing and training requirements for well contractors (businesses) and technicians who work in the well construction sector.
Regulation 903 was passed decades ago in recognition that poorly constructed or improperly abandoned wells can serve as pathways for surface contaminants to enter and degrade aquifers that are being used as drinking water supplies.
Over the years, however, various commentators have identified serious shortcomings in Regulation 903, and have recommended that it should be revised in order to protect public health and the environment.
For example, in the Part 2 Report of the Walkerton Inquiry, Mr. Justice O’Connor recommended that “Regulation 903 should be updated and reviewed if necessary to ensure that it requires best construction practices (page 480).”
Minor amendments to Regulation 903 were then made by the Ontario government in 2003. However, in his 2003-04 annual report, the independent Environmental Commissioner of Ontario (ECO) identified residual problems in the amended regulation:
“For instance, there are concerns that the regulation does not require well constructors to verify, through water testing, that new wells have indeed been disinfected. Nor is there a requirement that well contractors disinfect private wells after carrying out repairs (page 113).”
These concerns were subsequently confirmed by the Ontario Drinking Water Advisory Council (ODWAC), which advised the Environment Minister in 2005 that Regulation 903’s disinfection requirements for well construction and repair are “deficient.” Therefore, the ODWAC recommended that Regulation 903 should ensure that a rigorous five-step disinfection and sampling protocol is followed before well water is consumed after well construction or repair.
Inexplicably, the ODWAC’s advice has not been fully acted upon by successive provincial governments. In the interim, countless wells have been constructed, repaired and cleaned in accordance with a regulatory standard that does not adequately meet the ODWAC’s recommendation.
In another annual report, the ECO strongly criticized Ontario’s continuing failure to improve the “severely flawed” Regulation 903, which “endangers public health and impedes environmental protection”:
“Since the revised Wells Regulation came into effect in 2003, tens of thousands of wells have been constructed, repaired or abandoned under a regulation that is widely seen as inadequate, and with little enforcement or oversight from MOE. The ministry is neglecting its obligations to those whose drinking water comes from the most vulnerable of sources: small private wells (pages 53-54).”
In light of these and other unresolved issues, CELA first used the Environmental Bill of Rights (EBR) to file an Application for Review of Regulation 903 in 2003. However, this Application was flatly refused by the Environment Ministry in 2004 for unpersuasive reasons.
In 2013, CELA filed another EBR Application for Review of Regulation 903 and the OWRA. This Application was granted by the Environment Ministry, but only resulted in modest commitments to update the province’s unenforceable guidance manual for water wells, rather than fix Regulation 903 itself.
Significantly, when CELA met with Ministry policy officials in 2017 to discuss this unsatisfactory outcome, we were advised that Ministry staff had prepared a gap analysis that categorized most of the issues raised by CELA’s EBR Application as “high-risk”, and that identified 24 “priority” items that needed to be addressed under the Regulation 903 program.
However, when CELA filed a freedom-of-information request to obtain a copy of the gap analysis and related documentation, the Ministry refused to disclose these records. CELA then appealed the Ministry’s refusal to the Information and Privacy Commissioner, and the adjudicator’s decision is pending at the present time.
More importantly, despite the above-noted calls for strengthening Regulation 903, it appears that the current provincial government is more focused on reducing so-called “red tape” by proposing changes that make it “easier” for the wells industry to operate in Ontario.
For example, the government has recently proposed three minor amendments to Regulation 903:
- modify minimum insurance requirements for licensed well contractors;
- update well casing standards for new water supply wells; and
- allow shallow well screens to be placed in new test holes and dewatering wells.
In response, CELA filed a brief which concluded that these meagre changes do not address long-standing public and stakeholder concerns about the fundamental inadequacy of Regulation 903.
Accordingly, CELA remains perplexed and gravely concerned by the Ontario government’s intransigence about substantially improving Regulation 903. In our view, the numerous Ontarians who rely upon private wells for drinking water deserve an effective and enforceable regulatory regime to protect their health and safety.