The Clean Water Act and the Regulated Community

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The Clean Water Act and the Regulated Community

• Henry J. Krupa, LL.M.
• Counsel, Environmental, Energy and Government
  Relations
• 2010 Winston Park Drive, Suite 301, Oakville,
  ON., L6H 5R7
• 905 829 3200 ext 2207, 1 800 636 6927

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Objective

• Goal of the Clean Water Act
• to protect existing and future sources of
  drinking water
• Regulation Proposal Notice, Environmental
  Registry, April 12, 2007
• Risk
• Cloud the authority, responsibility and
  accountability for ensuring the protection of
  sources of drinking water.

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Issues

• Key Questions
• How much land will be impacted and where is that
  land located?
• What additional restrictions will be imposed?
• How much will this cost?
• Who pays?

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Land?

• Who will be affected by the CWA?
• MOE estimate of the total land area that will be
  impacted by the CWA (2 or 2,152,790 ha) is the
  equivalent of
• 39 of Ontarios total farm area (of 5,466,233
  ha)
• 59 of Ontarios total crop area (of 3,656,705
  ha)
• Ministry of Environment presentation, 070126
  
• www.omafra.gov.on.ca/english/stats/agricultura
  l_summary.pdf

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Land? (cont)

• Planning
• The Source Protection Committee structure heavily
  favours those who benefit, with relatively little
  representation from impacted property owners.
• It is in the provincial interest (to) balance
  the needs of the agricultural community with
  health, safety and environmental concerns. The
  Farming and Food Production Act, 1998.
• A laudable objective Report of the
  Walkerton Inquiry, Part II, page 136.

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Restrictions?

• Implementation
• Primacy of the CWA
• Compliance with existing legislation, regulation,
  approvals, standards and guidelines not
  recognized.
• Authority
• RMO can order a property owner to prepare and
  implement a Risk Management Plan.
• RMO/RMIs can issue further orders.
• Demands in RMPs/work orders can exceed Provincial
  standards in designated zones.

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Costs?

• Planning and Implementation
• The need for the full disclosure of costs
• Terms of Reference should require the Source
  Protection Plan to include full disclosure of the
  costs of implementation.
• Implementations costs of Risk Management Plans
  and other compliance instruments could run into
  the 100s of millions.

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Costs? (cont)

• Implementation Infrastructure
• Costs of download responsibilities
• CWA continues the practice of downloading
  Provincial responsibilities/costs.
• Establishes a new level of bureaucracy
• Land Use Planning
• Application review, compliance and enforcement
  (RMO/RMIs)
• Legal services
• Training and support
• Administration, insurance and other direct
  operating expenses
• Recovery of costs
• Municipalities may charge a fee or add a fee to
  property taxes

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Who Pays?

• The Missing Link
• Failure to consider the costs of implementation
  and who will assume those costs
• Current year Stewardship Fund provides 7 million
  (2 million is allocated to education and
  outreach).
• Promised Stewardship Fund multi-year funding
  provides 7 million/year for over 4 years (or
  about 368K/yr/SPA for 19 SPAs).
• Effective expropriation without compensation.

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Who Pays? (cont)

• Sound public policy
• Where a jurisdiction chooses to locate a
  municipal well in a more vulnerable location, the
  responsibility to protect those supplies should
  lie with the public consuming the water and not
  unduly penalize those within the wellhead
  protection zone
• Land users need to be assured that any
  alteration in land use beyond normal due
  diligence will be compensated as alterations are
  done in the public interest (emphasis added)
• Sustainable Well Water Initiative, Well Water
  Sustainability in Ontario, Expert Panel Report,
  January 30, 2006

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Keys to Success

• Planning
• Terms of Reference should require the
  determination of the full costs and consideration
  of who will pay.
• Implementation
• Commitment to negotiated solutions and practical
  approaches vs the use of orders.
• Compensation
• Link municipal implementation of SPPs and RMPs to
  fair Provincial or other compensation.

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• Thank you