1. What is source protection?

Source protection is the first barrier in a multiple-barrier approach to protecting drinking water. As Justice O'Connor stated in the Report of the Walkerton Commission of Inquiry, "keeping contaminants out of drinking water sources is an efficient way of keeping them out of drinking water.” A multi-barrier approach starts with the protection of the drinking water source, and is followed by treating the water effectively, monitoring its quality and taking action when problems are found.

Justice O’Connor recommended that protection of drinking water sources be carried out in an ecologically meaningful way -- at the watershed level. A watershed is an area of land drained by a river and its tributaries into a particular body of water such as a lake or an ocean.

Source protection is not a new idea. Several other jurisdictions have already incorporated it into their drinking water regimes. The United States’ Safe Drinking Water Act requires that all states prepare a source water assessment for every drinking water source in their state.

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2. Do we have source protection in Ontario now?

There are no overall provincial guidelines, policies or legislation on source protection. The province has, however, some experience with managing watersheds and creating plans to revitalize polluted areas of the Great Lakes.

The establishment of Conservation Authorities was the first initiative to address water problems at a watershed level. In the late 1920s and 1930s when drought and deforestation caused extensive soil loss and flooding in Ontario, many conservation organizations and municipalities pressed the government for a new initiative to address the problems. In 1946 the government created conservation agencies to deal with flood control and erosion on a watershed basis.

Under the Conservation Authorities Act conservation authorities were established, jointly funded by the province and municipalities, in every watershed area. Their mandate was “to further the conservation, restoration, development and management of natural resources”. Since their establishment Conservation Authorities have been active in controlling flooding and erosion, and in public education.

Although Conservation Authorities have broad powers to develop watershed management plans and have developed them for some important watersheds, they have not had the legal authority to impose plans on other activities in the watershed.

In 1987 another initiative was launched in the province to create plans for reversing pollution problems. The Great Lakes Water Quality Agreement between Canada and the United States targeted 42 areas around the Great Lakes where water quality was badly degraded and needed to be restored. Ontario and Canada made a commitment to developing Remedial Action Plans for each of these areas. Local Public Advisory Committees were established for 17 of the areas located in Canada. These Committees have spent many years now identifying local pollution problems, doing extensive public consultation and producing plans for restoring and protecting the water quality. This process, however, has been limited to the areas identified as problems rather than to all communities on the Great Lakes.

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3. What were Justice O'Connor's recommendations regarding source protection in the Report of the Walkerton Commission of Inquiry?

In Part Two of his Report of the Walkerton Commission of Inquiry, Justice O'Connor identified source protection as a crucial first step in protecting drinking water. He recommended that watershed source protection plans be mandated by the province and binding on decisions regarding water use.

He recommended that the Ministry of the Environment should take the lead on establishing the framework for developing watershed-based source water protection plans, and help fund their development. As well, they would be the final approving body for completed plans.

A source protection plan would be developed for each watershed through a local process coordinated by the Conservation Authorities. Where Conservation Authorities do not exist in the province or do not have the capacity to do planning, the Ministry could step in and do the work. This process would be completely open to public scrutiny.

Once a plan is developed, it would have to be approved by the Ministry of the Environment to ensure consistency and thoroughness throughout the province. The Ministry’s decisions on Permits to Take Water (which permits large water takings) and Certificates of Approval (permits for discharges of contaminants to waterways) would have to respect the approved plans.

Justice O’Connor also recommended the development of farm water protection plans that would be consistent with watershed-based source protection plans in vulnerable areas. As well, farm nutrient management plans have been introduced by the province in a Regulation under the recently passed Nutrient Management Act.

See the Nutrient Management FAQ

The Report of the Walkerton Commission of Inquiry, part 2, Chapter 4, “The Protection of Drinking Water Sources”, contains Justice O’Connor’s recommendations on source protection planning. The Report is available at: www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/

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4. What are source protection plans?

Justice O’Connor suggested a minimum“list of ingredients” that should be included in watershed-based source protection plans:

• A water budget for the watershed, or a plan for developing a water budget where sufficient data are not yet available,
• The identification of all significant water withdrawals, including municipal intakes,
• Landuse maps for the watershed,
• The identification of wellhead areas,
• Maps of areas of groundwater vulnerability, that include characteristics such as depth to bedrock, depth to water table, the extent of aquifers and recharge rates,
• The identification of all major point and non-point sources of contaminants in the watershed,
• A model that describes the fate of pollutants in the watershed,
• A program for identifying and properly decommissioning abandoned wells, excavations, quarries, and other shortcuts that can introduce contaminants into aquifers,
• The identification of areas where a significant direct threat exists to the safety of drinking water, and
• The identification of significant knowledge gaps and or research needs to help target monitoring efforts.

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5. What was the Ontario government’s response to the recommendations of the Walkerton Inquiry?

The provincial government, after receiving the Report of the Walkerton Commission of Inquiry in May 2002, made a commitment to implement all of Justice O’Connor’s recommendations.

Justice O’Connor recommended that the first step in the process be the development of a framework for source protection planning.

In November 2002 the government established an Advisory Committee on Watershed-Based Source Protection Planning to provide advice to the government on a framework for
watershed-based source protection planning.

The resulting report, “Protecting Ontario’s Drinking Water: Towards a Watershed Based Source Protection Planning Framework”, was completed in April 2003. The government then consulted the public on the Framework by posting the report on the Environmental Registry.

The full report of the Advisory Committee on Watershed-Based Source Protection Planning is available on the Ministry of Environment’s web site at: www.ene.gov.on.ca/envision/water/spp.htm

In November 2003, a new government announced the formation of two committees – a technical committee and an implementation committee – to start the process of developing legislation to protect drinking water sources. A technical committee, made up of members with expertise in managing and protecting ground and surface waters, will assess the various threats posed to water sources. In addition, an implementation committee has been set up to provide the government with advice on watershed-based source protection planning.

In February 2004, the government will release a White Paper to consult on the planning aspects of source protection legislation including the preparation, roles and responsibilities, approvals and appeals of source protection plans.

For more information on the Ministry of the Environment's Source Protection Planning, see the Minister's Press Release of December 18, 2003 at: www.ene.gov.on.ca/envision/news/index.htm

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6. What are the main elements of the Source Protection Framework as outlined by the Advisory Committee on Watershed-based Source Protection Planning?

The Source Protection Framework is divided into four main sections:

1. Fundamentals that should guide source protection planning
2. The planning process
3. Risk management
4. Information management

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7. What are the concepts that should guide source protection planning in Ontario?

The Advisory Committee identified the key elements that should guide source protection planning. They include:

• Responsibility and Accountability:
  The ultimate responsibility for ensuring source protection will be with the province, and specifically, with the Ministry of the Environment. At the same time, responsibility for specific outcomes is shared among water managers, users, and landowners such as farmers, industry, and developers.
  
• Goal of Source Protection Plans:
  The framework establishes that an effective source protection regime will be done best through locally developed watershed-based Source Protection Plans.
  
• Legislative Basis:
  The framework should be set out in new stand-alone watershed-based source protection legislation, with a timeline for completion of the Source Protection Plans. Once the plans receive approval, municipal official plans, provincially-issued Permits To Take Water, and provincial Certificates of Approval would all have to be consistent with them.
  
• Identification of Gaps in the Current System:
  The framework lists a number of gaps in the current system of municipal and other powers that should be addressed through awarding new powers either to municipalities or to other agencies where appropriate.
  
• New Powers for Municipalities:
  The province should work with municipalities and other stakeholders to identify new municipal powers that should be made available, and then provide them with the new powers.
  
• First Nations:
  First Nations should be full participants in source protection planning and implementation.
  
• Financing Initial Source Protection Plans:
  A formal funding strategy should be developed.

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8. Is legislation needed in Ontario for source protection planning?

The Advisory Committee has recommended that new stand-alone watershed-based source protection legislation be developed. The legislation would include a schedule setting out the timeline for completion of initial Source Protection Plans, requiring that all plans be started within two years of the effective date of legislation and that all plans be completed within three years of their starting date. All plans would be completed by the end of the fifth year. The legislation will also set out the details for completion of the Source Protection Plans.

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9. Who would take the lead in developing source protection planning?

The Advisory Committee recommended that Conservation Authorities be the lead organization with responsibility for the coordination and development of the Source Protection Plans. Justice O’Connor believed Conservation Authorities were the most appropriate body to lead a local process because of their experience with watershed management. Once the plans were developed locally, the Ministry of Environment would approve them. There would be 16 Planning Areas in Southern Ontario, and 8 Planning Areas in Northern Ontario.

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10. How will the planning process get underway?

Once legislation is passed, the first step would be the creation of a Source Protection Planning Committee for each Planning Area. The minimum composition recommended for all Committees is:

• 1/3 municipal representatives,
• 1/3 provincial, First Nations, and federal representatives,
• 1/3 local public health officials and other stakeholders.

The Chair would be appointed by the Minister of the Environment on the recommendation of the Board of Directors of the Conservation Authority. Beyond that, the composition of Source Protection Planning Committees would vary according to local interests and issues. Each stakeholder would select its own representative for the committee. Membership would be limited to a maximum of 18 plus the Chair.

In addition, the Committee would establish an independent expert panel to assist with the technical and scientific aspects of the planning process. The Committees could also establish any working groups required, which would provide further opportunities for input into the planning process.

Each Source Protection Planning Committee would start the planning process, and report to the Board of Directors of the Conservation Authority. The Source Protection Planning Committee would act as an Advisory Committee to the Board. The Board of the Conservation Authority would ultimately submit the Source Protection Plan to the Ministry of the Environment for approval.

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11. Will the planning process be accessible to the public?

The Advisory Committee recommended that the Source Protection Planning Committee establish and coordinate a transparent local planning process. The Source Protection Framework sets out the minimum requirements of a transparent local planning process, such as:

• Meetings of the Source Protection Planning Committee are to be advertised and open to public attendance;
• Meetings will allow for involvement of public and other affected local parties;
• Draft plans and proposals will be published widely;
• There will be adequate time and information to allow for a range of views to be
  heard and considered;
• Invitation will be made for public comment in writing; and,
• Where appropriate, documentation of response to public input will be provided.

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12. What will the initial Source Protection Plan look like?

The plans envisioned by the Advisory Committee will include technical information about the watershed and will identify source protection issues. It would contain:

• A water budget, including future water needs;
• Maps that identify high, medium, and low vulnerable areas, and sensitive water
  resources;
• A baseline map to identify the state of the watershed;
• Natural features including wetland, woodlands, and riparian zones;
• Areas that may pose a significant direct threat to drinking water;
• Maps of all significant water takings;
• Inventory of major point and non-point sources of contaminants;
• Potential water allocation problems;
• The need for special limits to water taking;
• Areas where the plan should affect municipal land use;
• Contaminated site issues;
• Areas where farm water protection plans are needed;
• Areas where biosolids and septage are a concern; and
• Identification of knowledge gaps and research needs for the watershed.

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13. What opportunities are there for public participation in the process to establish a source protection regime in Ontario?

1. Initial Involvement:

The critical stage of public involvement is right now. The most important task is to ensure that the government enacts this legislation. For information on what you can do to support source protection legislation, see the CELA Source Protection Action Alert.

2. Second Stage of Involvement:

When the legislation has passed, the public can get involved at the Source Protection Planning Committee level. If you have special technical expertise or knowledge of the local watershed, or if you have simply been involved in water issues, you can try to get on the Source Protection Planning Committee. You can write to the Conservation Authority in your area and ask to be a member of the Committee. If you are not selected, you can still be involved with the working groups that assist them.

If you want to be involved with a single issue, you can attend the Source Protection Planning Committee meetings, which are open to the public.

One of the key things will be the terms of reference prepared by the Committee which will set out the process for local public consultation. The Board of Directors of the Conservation Authority have to agree to these terms of reference early in the planning process. It will be important to ensure that the terms of reference provide ample opportunity to allow the public to make its views known. If you think that the process is not adequate, make sure you document your concerns to both the Source Protection Planning Committee and the Board of Directors in writing.

If you participate by attending the Source Protection Planning Committee meetings and have serious concerns about an issue – if, for example you think that the water budget does not accurately reflect the water takings in the watershed, put your concerns in writing and submit it to the Committee. One of the things the Source Protection Planning Committee is required to do is to document its response to public input.

If you fail to document your concerns, it may be more difficult to challenge the source protection plan in the appeal process. If you don’t have the time or resources to be attending meetings, you can always comment on the draft plans. Again it is important to document your concerns in writing.

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14. Is there any opportunity to appeal the source protection plan?

The Source Protection Advisory Committee recommended that once the plan is finalized, the Source Protection Planning Committee submits it to the Board of Directors of the Conservation Authority which then submits it to the Ministry of Environment for approval. If the Plan gets approved and your concerns have not been addressed, one option would be to appeal the plan. The right to appeal will be limited and has not been defined in the Advisory Committee's report. However, it is expected that the legislation will set out some right of appeal.

In addition, there will be limited rights also to appeal provincial and municipal decisions that are inconsistent with the plan. For example, if a Permit to Take Water was issued which was not consistent with the plan, it is expected there will be a right to appeal. The same right applies to Official Plans as well.

Where there is a risk to human health, it is recommended that Source Protection Plans supersede other legislation. Otherwise, provincial decisions regarding Permits to Take Water as well as planning decisions have to be consistent with source protection plans.

Finally, if your local source water protection plan was approved,and you have since found critical information that was missed in the plan, there will still be an opportunity for involvement. The Source Protection Plan will be reviewed and revised as necessary, and there will be an opportunity for new participants, as well as the groups who were initially involved, to periodically review and revise the plan.

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15. What can the provincial government do to address source protection while a source protection regime is being developed?

The judicious use of existing legal tools can provide a reasonable degree of interim protection for drinking water sources while legislation to mandate watershed-based source protection plans is being developed.

At the provincial level, the Advisory Committee identified the Ontario Water Resources Act as providing legal authority for designating interim drinking water sources for protection and prohibiting certain land uses and development within such areas.

For example, section 33 empowers the Director, Ontario Ministry of the Environment to define areas of “sources of public water supply” in which “no material of any kind that may impair the quality of water therein shall be placed, discharged, or allowed to remain”, and in which “no act shall be done and no water shall be taken that may unduly diminish the amount of water available in such areas as a public water supply”. Similarly, section 36 of the Ontario Water Resources Act empowers the Director to control water well construction within designated areas.

In addition to these provisions, the Ontario government has other legal tools to protect water resources, including:

• Investigate and enjoin sources of groundwater or surface water pollution pursuant to section 29 of the Ontario Water Resources Act;
• Issue administrative orders under section 32 to require measures to alleviate the effects of water quality impairment;
• Enforce water pollution standards and ensure compliance with discharge limits prescribed under statutory approvals such as certificates of approval under the Environmental Protection Act;
• Rigorously apply the Environmental Assessment Act to all public and private undertakings that may pose a threat to drinking water sources; and
• Refuse to issue permits to take water under section 34 of the Ontario Water Resources Act where there is an unreasonable risk to drinking water sources.

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16. What can municipalities do now to address source protection while a source protection regime is being developed?

Under the Planning Act, municipalities have powers that they can use to control land use and development. For example, under Parts III and V of the Planning Act, municipalities may pass or amend Official Plans and zoning by-laws that identify and protect watercourses, wetlands, riparian zones, headwater areas and other water-related natural heritage features. This existing authority can be used to limit activities that would have a negative impact on drinking water sources.

Municipalities are also empowered under section 38 of the Planning Act to enact interim control by-laws that effectively freeze the status quo for up to two years within designated areas in order to allow more detailed planning or environmental studies to occur.

In addition to these powers, there are other tools currently available to municipalities to protect water resources, including:

• Enact and enforce sewer use by-laws and pesticide by-laws;
• Enact and enforce nutrient management by-laws for the various classes of agricultural operations that will not be subject to provincial standards under the Nutrient Management Act;
• Undertake public education and landowner contact programs;
• Consider land acquisition options to secure vulnerable or sensitive areas in the watershed (for example, purchase, land swap, expropriation or other mechanisms such as stewardship agreements and conservation easements)

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17. What tools can Conservation Authorities use now to address source protection?

Under Section 21 of the Conservation Authorities Act, conservation authorities are empowered to:

• Develop programs to conserve, restore and manage natural resources within watersheds;
• Purchase, lease or expropriate lands, and
• Control surface water flow to prevent pollution

Under section 28 of the Conservation Authorities Act, conservation authorities may make regulations that:

• Restrict surface water use;
• Regulate watercourse alterations; and
• Control development near or within floodplains, wetlands, and river and stream valleys.

Conservation Ontario, the association of Conservation Authorities, has carried out a series of watershed-based demonstration projects. Reports on these projects can be found at:
www.conservation-ontario.on.ca/projects/projects.htm

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18. What are the views of the Canadian Environmental Law Association on source protection?

The Canadian Environmental Law Association(CELA) is a member of the source protection implementation committee, following up on its work as a member of the Advisory Committee. CELA supports the Final Report of the Advisory Committee on Watershed-based Source Protection Planning, “Protecting Ontario’s Drinking Water: Toward a Watershed-Based Source Protection Planning Framework”. CELA has put up a Source Protection Action Alert on its web site This Action Alert contains CELA’s views on source protection planning as well as links to material produced by CELA for its Source Protection Workshop.

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19. How can I get more information about source protection and the source protection planning framework process?

Contact your local Conservation Authority and ask for information on source protection or watershed management. Information on Conservation Authorities and their work can be found at:
www.conservation-ontario.ca

The Watershed Science Centre is located at Trent University. Its web site features workshops and publications on watershed management including The Ministry of Natural Resources’ Guide to Watershed Action. See: www.trentu.ca/wsc

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20. How can I get information about source protection in other jurisdictions?

There is considerable information available in the United States, and from many individual states, on source water assessments. A starting point is the Source Water Protection page of the U.S. Environmental Protection Agency at: www.epa.gov/safewater/protect.html

New York City has a special waiver from the U.S. Environmental Protection Agency’s requirement that all drinking water be treated. Instead it has put in place a watershed agreement that includes land acquisitions to protect its drinking water reservoirs from pollutants. Information on its program can be found at: http://nyc.gov/html/dep/html/agreement.html

In Canada New Brunswick has developed specific provincial laws to protect watersheds and wellheads. Descriptions of this legislation can be found at: www.gnb.ca/0009/0003-e.asp

For information on the European Union’s new watershed-based River Directive, see:
http://europa.eu.int/comm/environment/water/

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