1. How safe is Ontario's drinking water?

Drinking water in Ontario is drawn from surface water sources like lakes and rivers, and from groundwater sources like public or private wells. Municipal systems provide approximately 8.9 million people in Ontario, or 82 per cent, with drinking water, while 18 per cent of Ontarians rely upon non-municipal water systems or private wells.

Although the quality of raw water may vary from one community to another, the ultimate safety of drinking water depends on a multi-barrier approach. The elements of this approach include: protection of the source of the drinking water; effective treatment; frequent and comprehensive testing; vigilant monitoring and reporting; the training and competence of waterworks operators; a secure distribution system; and a quick response when problems are found.

Communities in Ontario have learned not to be complacent about drinking water. In May 2000 the province’s drinking water became the focus of intense concern when 7 people from the Town of Walkerton died, and more than 2300 others became ill, from drinking contaminated water. This tragedy underlined the importance of protecting public health against the risks of unsafe drinking water, and led to a public inquiry conducted by Mr. Justice Dennis O'Connor and the subsequent development of provincial legislation intended to ensure drinking water safety.

Based on monitoring results collected by the Ontario Ministry of the Environment, it appears that public drinking water usually meets Ontario’s drinking water quality standards. High levels of contaminants are rarely found. Not every community in Ontario, however, is free of drinking water problems. In recent years, a number of municipalities and First Nation communities have suffered outbreaks of waterborne disease, and boil water advisories have been imposed on residents.

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2. What is Ontario’s Safe Drinking Water Act?

The Ontario Safe Drinking Water Act, 2002 (hereafter referred to as the Safe Drinking Water Act) was enacted in December 2002, in response to recommendations made by Justice O'Connor in his Report of the Walkerton Inquiry, Part 2. In essence, the Act consolidates legislative and regulatory requirements regarding the treatment and distribution of drinking water in Ontario.

Before the passage of this Act, drinking water was generally governed by the Ontario Water Resources Act as part of the province’s overall regime for protecting surface and groundwater. During the 1980s and 1990s, several members of the Ontario Legislature introduced private members' bills to enact specialized safe drinking water legislation. However, none of these private members' bills were enacted into law.

In the aftermath of the Walkerton tragedy, the Ontario government intensified its efforts to ensure drinking water safety under the "Operation Clean Water" program. Initially, the government introduced a Drinking Water Protection Regulation (O. Reg. 459/00) that converted drinking water objectives into legally binding standards.

The government also convened the Walkerton Commission of Inquiry under Justice O’Connor to advise the government on the changes necessary to protect the province’s drinking water. The Safe Drinking Water Act is one of four legislative changes recommended in the Report of the Walkerton Commission of Inquiry. While this Act is an important part of the overall protection framework, the Inquiry also recommended legislation to address source protection, agricultural issues, and financing water systems.

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3. What are the major features of the Safe Drinking Water Act?

The Safe Drinking Water Act has a number of important features designed to protect drinking water consumers:

• The Act creates, through regulation, legally-binding standards for contaminants in drinking water:
  
  These standards are intended to protect public health. See the Drinking Water Quality Standards FAQ.
  
• The Act makes it mandatory to use licensed and accredited laboratories for drinking water testing:
  
  The Safe Drinking Water Act generally requires laboratories that conduct drinking water tests to be licensed under the Act. The Safe Drinking Water Act and the Drinking Water Testing Services Regulation (O. Reg. 248/03) require any laboratory that performs drinking water testing to obtain a licence effective October 1, 2003. In addition, the Safe Drinking Water Act requires owners and operating authorities of drinking water systems regulated under the Drinking Water Systems Regulation (O. Reg. 170/03) to use a licensed laboratory for drinking water testing.
  
  In order to obtain a licence, laboratories must be accredited for the tests they conduct. Licences may be issued with conditions, and the Director has the authority to amend the conditions or to revoke or suspend the licence if the laboratory is not in compliance with the requirements of the Act.
  
  Drinking water system owners are also generally prohibited from using water testing services from out-of-province laboratories, unless the laboratories satisfy the eligibility criteria under the Act.
  
  There are some limited circumstances where the Director may authorize the use of non-accredited laboratories, such as the existence of geographic constraints or if there is no accredited method for a particular test.
  
• The Act makes it mandatory to report adverse test results where contaminants in drinking water do not meet the drinking water quality standards:
  
  The Act imposes a duty to report adverse test results to the Ministry of the Environment and to the local Medical Officer of Health. Both the operator and owner and the laboratory must comply with this reporting requirement.
  
  These reports will have to be made in accordance with the requirements established by Ontario Regulation 170/03. This Regulation requires the report to be made in situations such as the violation of a chemical or physical standard or the presence of an indicator of adverse water quality such as E. coli. The reports are to be made immediately -- either in person or by telephone -- and confirmed in writing within 24 hours.
  
  Where adverse test results are reportable, the owner of the drinking water system must undertake the appropriate corrective action to address the particular drinking water problem.
  
• All operators of municipal drinking water systems must be trained and certified:
  
  Drinking water system operators must hold a valid operator's certificate issued under the regulations. For now, existing unexpired licences issued under O.Reg. 435/93 under the Ontario Water Resources Act are deemed operator’s certificates until the successor regulation is in place.

  The proposed successor regulation, the Certification of Drinking-Water Systems Operators and Water Quality Analysts, sets out the requirements for certification and training. "Grandfathered" operators will be required to be recertified within 1 or 2 years, depending on their responsibilities in the system. Training is defined to include continuing education and on-the-job training. Operators will be recertified every 3 years if they successfully complete a specific number of hours of training. The more responsibility an operator has, the more training will be required.

• The Act establishes a licencing regime for drinking water systems:
  
  All municipal drinking water systems must obtain an approval from the Director of the Ministry of the Environment. The Act sets out timing and content requirements for approval applications, including copies of drinking water works permits, operational plans, and, in some cases, financial plans and permits to take water.
  
  The Director may refuse an application, or impose terms and conditions upon the approval. The Director may also grant partial or complete relief from regulatory requirements regarding treatment, sampling, testing, or monitoring.
  
  In addition, all other regulated drinking water systems (including municipal non-residential systems serving community centers and sports complexes) are required to have a professional engineer certify that the system is in compliance with regulatory requirements. This certification has to be renewed every five years for surface water systems and every 10 years for groundwater systems.

• The Act gives broad inspection powers to officers of the Ministry of the Environment, and creates a new position of Chief Inspector who oversees inspections and enforcement:
  
  Provincial officers may conduct inspections without a warrant or court order in order to determine compliance with the Act or regulations.
  
  During inspections, provincial officers have a wide range of powers similar to provisions found in other Ontario environmental legislation such as the Ontario Water Resources Act and the Environmental Protection Act. Among other things, these include the authority to enter into or on any part of the natural environment, or any place where a drinking water system is located. They have the authority to take samples, conduct tests, require production of documents, take photographs and videotapes, stop and search vehicles and place locks or fences to secure places.
  
  If a prescribed deficiency (that is, a violation that poses a drinking water health hazard) is found during an inspection, the provincial officer must conduct a follow-up inspection within a year.
  
  The Act requires the passage of a "compliance regulation" be made that would set out specific inspection requirements such as the frequency of inspections, the actions required and response time in the event of a deficiency, and the procedures to be followed for investigations and enforcement. To date, a compliance regulation has been proposed, but not passed, by the Ministry of the Environment (see Answer #5).
  
  The Act also requires the appointment of a Chief Inspector with responsibility for overseeing inspections and enforcement activities under the Act. The Inspector must submit annual reports on inspection and enforcement matters to the Legislature.

• The Act imposes a statutory standard of care upon managers of municipal drinking water systems (not yet in force):
  
  It states that specified persons must:
  
  - exercise the level of care, diligence and skill in respect of a municipal drinking water system that a reasonably prudent person would be expected to exercise in a similar situation; and
  
  - act honestly, competently and with integrity, with a view to ensuring the protection and safety of the users of the municipal drinking water system.
  
  This standard of care would apply to the owner of the municipal drinking water system, the person who oversees the accredited operating authority or who exercises decision-making authority over the system, or the officers and directors of the corporation that owns the system.
  
  Failure to carry out this standard is defined as an offence under the Safe Drinking Water Act, and individuals may be convicted of the offence regardless of whether the owner of the system is prosecuted or convicted.

  
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4. Will the Safe Drinking Water Act ensure that drinking water is safe?

The Safe Drinking Water Act enhances the level of drinking water protection across the province by creating a clear and comprehensive framework for drinking water treatment and distribution. However, it is only one part of an overall source-to-tap drinking water framework. Justice O’Connor endorsed a multi-barrier approach as necessary to ensure safe drinking water. He identified source protection as a crucial first step and recommended that the province mandate watershed source protection plans. Work on developing source protection legislation is currently underway but not yet in place.

See the Source Protection FAQ.

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5. When does the Safe Drinking Water Act come into effect?

The Safe Drinking Water Act has numerous sections that are being phased in, as the regulations to support them are prepared. Many provisions of the Act came into force on June 1, 2003. These sections include:

• Ministerial powers and duties (subsection 3(1) to (3)),
• Duties of owners and operating authorities (subsection 11(1) and (2)),
• Duty to report adverse test results (section 18),
• Prohibition against contaminating drinking water systems (section 20),
• Approvals for municipal drinking water systems (sections 31, 32, 34 to 39, 41, 45, 51)
• Regulation of non-municipal drinking water systems (sections 52, 53, 54 (1), (3) to (6), 55 to 61),
• Drinking water testing (sections 62 to 80),
• Inspections, compliance and enforcement (sections 81 to 120, 122 to 125),
• Appeals (sections 126 to 136)
• Offences (section 137 to 155),
• Miscellaneous provisions and regulation-making (section 156 to 170)

Related regulations also came into force in 2003. These regulations are:

• Ontario Drinking Water Standards (O.Reg. 169/03)
• Drinking Water Systems (O.Reg. 170/03)
• Definitions of Words and Expressions Used in the Act (O.Reg. 171/03)
• Definitions of “Deficiency” and “Municipal Drinking Water System” (O.Reg. 172/03)
• Schools Private Schools and Day Nurseries (O.Reg. 173/03)
• Drinking Water Testing Services Regulation (O.Reg. 248/03)

Other proposed regulations, such as the Certification of Drinking Water Systems Operators and Water Quality Analysts, and the Compliance and Enforcement Regulation, have been posted on the Environmental Bill of Rights Registry for public comment, but have not yet been finalized.

Several important sections of the Act have not yet come into force. These include: the requirement for the Minister to prepare an annual report on drinking water (subsection 3(4)), the establishment of the Advisory Council on Drinking-Water Quality and Testing Standards (subsection 4(1)), the imposition of a statutory standard of care upon owners of municipal drinking water systems (subsection 19(1)), and administrative penalties (section 121).

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6. What opportunities are there for public participation under the Ontario Safe Drinking Water Act?

The Safe Drinking Water Act is subject to Ontario's Environmental Bill of Rights, which creates opportunities for public participation in environmental decision-making. For example, notices of proposed drinking water regulations are posted on the Environmental Bill of Rights registry. Once they are posted, members of the public are invited within a time period of 30 days to send the Ministry of the Environment their comments on the strengths and weaknesses of the regulations and to suggest improvements. At some time after this 30 day period, the Ministry of the Environment will post a decision notice on the Registry.

The Safe Drinking Water Act provides for the establishment of an Advisory Council on Drinking-Water Quality and Testing Standards (subsection 4(1)). The duties of this Council are to advise the Minister of the Environment on new standards for drinking water or the revision of already existing standards. Members of the public could bring the need for the establishment or improvement of specific water quality standards to the attention of the Council when it is set up. However, this section of the Act has not yet come into force and the Advisory Council has not been appointed.

New and expanded water treatment facilities must be planned in accordance with the Municipal Class Environmental Assessment under Ontario’s Environmental Assessment Act. As part of the process of a class environmental assessment, the public must be given notice and comment opportunities regarding proposals to build or expand waterworks. These requirements for public notice and comment give the public another opportunity to participate in decisions about water supply and delivery in their communities.

For more information on how to exercise your rights under the Environmental Bill of Rights, see the web site of the Environmental Commissioner of Ontario at: www.eco.on.ca/english/ebryou/index.htm

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7. What information is available about drinking water in my community?

The Safe Drinking Water Act gives the public the right to detailed information about the quality of their drinking water. The Safe Drinking Water Act also ensures that water suppliers make reports available to the public at their facilities.

The Drinking Water Systems Regulation (O. Reg. 170/03) under the Safe Drinking Water Act specifies that the following information must be available for inspection:

• Records of operational checks (sampling data);
• Test results with respect to testing for microbiological and chemical parameters;
• Any approval and order that applies to the system and is still in effect, if the approval or order was issued after December 31, 2002;
• Every annual report;
• A copy of the Regulation.

The owner of a drinking water system must also prepare an annual report, and submit it to the Director and to the operator (and relevant provincial agency or Ministry) for each designated facility served by the system. The annual report must contain:

• A brief description of the drinking water system;
• Summaries of any reports or notices submitted to the Director during the year;
• Summaries of operational checks, microbiological, and chemical tests;
• A description of any corrective actions taken in response to adverse water quality indicators;
• A description of any major expenses incurred during the year to install, repair or replace equipment.

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8. How can I get access to this information?

The information must be accessible to any member of the public during business hours, without charge, at the office of the owner. If the owner's office is not at a reasonably convenient location, then the report must be available at another location that is convenient. If the system serves a municipality, the information must be available at the office of the municipality, whether or not the municipality owns the system.

The annual reports must be given without charge to anyone who requests a copy, and every time a report is prepared, the owner of the drinking water system must ensure that effective steps are taken to advise users of the system, and of each designated facility served by the system, that copies of the report are available without charge, and how to obtain copies.

If a drinking water system serves more than 10,000 people, the owner must also post the annual reports on a web site on the Internet.

The Association of Municipalities of Ontario lists municipal web sites in Ontario on its web site at:
http://199.202.235.157/ylg/ontario.html

In addition, the Minister of the Environment is required by the Safe Drinking Water Act to table annual reports in the Ontario Legislature on the state of Ontario's drinking water (although this section of the Act is not yet in force). The Ministerial reports must include the following information:

• The status and development of drinking water quality standards;
• New and emerging information on pathogens, chemicals and other potential causes of drinking water health hazards;
• A summary of inspections and audits for drinking water systems and testing;
• A summary of enforcement activities;
• A review of raw water quality and source protection initiatives across Ontario.

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9. Are private wells in Ontario subject to the Safe Drinking Water Act?

Private well owners are not required to meet the regulatory standards under the Safe Drinking Water Act. Residents using private wells are responsible for taking samples of their own water supply. Ontario's Ministry of Health currently offers free bacteriological testing of drinking water samples taken by well owners.

For more information on water testing, contact your local Public Health Unit. For a complete listing of all Public Health Units in Ontario, see: www.healthunit.org/aboutus/hea_unit.htm

The construction and decommissioning of private wells is governed by Ontario Regulation 903 under the Ontario Water Resources Act, as amended by O.Reg. 128/03. Well owners are legally responsible for wells on their property. For further guidance, contact the Ministry of the Environment office in your region or see the Ministry's web site at: www.ene.gov.on.ca/envision/water/wells.htm

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10. How will the Safe Drinking Water Act be enforced?

The Ministry of the Environment will be responsible for the enforcement of the Safe Drinking Water Act. If a provincial officer believes that a person has contravened the Safe Drinking Water Act, the officer may issue an order to remedy non-compliance. Orders may contain directions that require measures such as repairing a drinking water system, providing an alternative supply of water, treatment, testing, sampling or reporting, preparing plans or retaining consultants. There may be a requirement to post notice of the order.

Similar provisions apply if a provincial officer considers that the purposes of the Act require an order against the owner, manager or controller of a municipal or regulated non-municipal drinking water system. "System" orders may also require anything that poses a drinking water health hazard to be disconnected or repaired.

In the event of an imminent drinking water health hazard, the Director and the Minister both have the power to issue orders requiring the elimination or amelioration of the hazard. Any Ministerial order will prevail over orders issued by the Director or a provincial officer.

In certain cases such as continuing non-compliance with an order or abandonment of drinking water systems, the Director may issue a notice of emergency response that can be used to direct the Ontario Clean Water Agency (OCWA) to step in to remedy matters.

Director's orders may also be used for other purposes such as to decommission or replace all or part of drinking water systems, to appoint interim operating authorities, to require OCWA to prepare an operational plan for a drinking water system, and to require municipalities to provide service from a municipal drinking water system to persons served by deficient drinking water systems.

In addition to issuing administrative orders, the Ministry may bring prosecutions or commence civil actions against those in contravention of the Act.

The Ministry has proposed a Compliance and Enforcement Regulation which includes the following elements:

• All municipal residential drinking water systems shall be fully inspected annually;
• At least one out of every three inspections at such systems shall be unannounced;
• Inspection reports shall be sent to the system, owner/operator, medical officer of health, conservation authority and other parties within 45 days after the inspection;
• "Mandatory action" (that is, provincial officers' orders, director's orders, or referral to the Investigations and Enforcement Branch) must be undertaken by the Ministry of the Environment within 14 days if the inspector finds a deficiency. If the deficiency poses an immediate drinking water health hazard, then the Ministry must immediately undertake "mandatory action";
• Laboratories that provide drinking water testing services shall be inspected at least twice per year (including at least one unannounced inspection).

At this time, the proposed Compliance and Enforcement Regulation is not yet in force.

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11. What opportunities are there for public involvement in the enforcement of the Safe Drinking Water Act?

The Ministry's proposed Compliance and Enforcement Regulation (see Answer #10) includes a "public enforcement right". This right closely resembles the Application for Investigation provisions under Part V of the Environmental Bill of Rights, and it essentially permits citizens of Ontario to apply to the Ministry's Investigations and Enforcement Branch for the investigation of alleged contraventions under the Safe Drinking Water Act (or Regulations). At the present time, the proposed Compliance and Enforcement Regulation is not in force.

In addition, where a person has reasonable and probable grounds to believe that an offence has been committed under the Safe Drinking Water Act (or Regulations), then that person may commence a private prosecution against the alleged offender in accordance with the Provincial Offences Act.

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12. What are the penalties under the Safe Drinking Water Act?

The Director may impose administrative penalties with respect to contraventions under the Safe Drinking Water Act, with a maximum of $10,000 for each day that the contravention occurs (although the administrative penalty provisions of the Act are not yet in force).

For individuals convicted under the Safe Drinking Water Act, the fines range between $20,000 and $7 million, depending on the offence. Convicted individuals may also be imprisoned for certain offences. For corporations convicted under the Act, the maximum fines payable range between $100,000 to $10 million, depending on the offence. The court may also impose other orders and monetary penalties such as profit stripping, restitution orders, or orders to prevent damage.

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13. What are Justice O’Connor’s recommendations in his Report of the Walkerton Commission of Inquiry?

The Report of the Walkerton Commission of Inquiry, parts 1 and 2, contains information on Justice O'Connor's recommendations regarding the need for a Safe Drinking Water Act. The Report is available at:
www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/

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14. What are the views of the Canadian Environmental Law Association (CELA) on the Safe Drinking Water Act?

CELA supports the Safe Drinking Water Act and its Regulations. In order to be effective, however, the Act must be properly enforced, adequately funded, and be accompanied by legislation to protect drinking water at the source. For detailed information on CELA's views on the Safe Drinking Water Act, 2002, see the following CELA publications:

Publication #440: In the Wake of the Walkerton Tragedy: The Top 10 Questions. Prepared for "National Symposium on Water Law" (Canadian Bar Association, Vancouver, March 28 & 29, 2003).

Publication #439: Overview of the Safe Drinking Water Act: What's In, What's Out? Prepared for Water and Wastewater: Regulation and Management Forum, Insight Conference - Toronto, March 24 & 25, 2003.

Publication #438: Submission of Canadian Environmental Law Association to Ministry of Environment re: Proposed Drinking Water Regulation under the Safe Drinking Water Act, 2002, EBR Registry #RA03E0001.

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15. How can I get more information about the Ontario Safe Drinking Water Act?

The Safe Drinking Water Act, 2002 and Regulations are available at:
www.ene.gov.on.ca/envision/water/sdwa/index.htm
And at: www.e-laws.gov.on.ca/

Both the Safe Drinking Water Act and the Report of the Walkerton Commission of Inquiry are also available in print from the Ontario Government Bookstore at: http://pubont.stores.gov.on.ca/pool/

The Safe Drinking Water Act is only one of the four legislative changes recommended in the Report of the Walkerton Commission of Inquiry in order to ensure safe drinking water. For information on the other recommended legislative changes, see the Nutrient Management Act FAQ, Source Protection FAQ and the Water Financing FAQ.

Reports of adverse drinking water quality incidents and information on the Ministry of the Environment’s Drinking Water Surveillance Program are available on the Ministry's web site at:
www.ene.gov.on.ca/water.htm

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16. How can I find out more about drinking water legislation in other jurisdictions?

For information on drinking water in the United States and the full text of the U.S. Safe Drinking Water Act, see: www.epa.gov/safewater/sdwa/sdwa.html

A starting point for finding information on drinking water issues in other provinces is:
www.csae-scgr.ca/Othernews/Waterlaws.shtml
Or, search “drinking water legislation” and the name of the province.

For British Columbia, for example, its recently passed drinking water legislation can be found at:
www.healthplanning.gov.bc.ca/protect/water.html

For a comparison of the Ontario Safe Drinking Water Act with the United States' Safe Drinking Water Act, which is often considered the gold standard of drinking water legislation, see CELA publication #446, "The Establishment and Implementation of the Safe Drinking Water Act in Ontario: Some Helpful Lessons from the United States”

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