ARCHIVED - Drinking Water, Wastewater, and Sources of Drinking Water: Summary of New Brunswick's Regulations

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Introduction

While all provinces and territories have laws governing drinking water and wastewater management, there is no regulatory regime governing the same on First Nation lands. The Safe Drinking Water for First Nations Act (the Act), which came into force on November 1, 2013, allows for the development of federal regulations to close this regulatory gap so that residents on First Nation lands have comparable levels of health and safety protections for drinking water as other Canadians.

Subsections 5(3) and 5(4) of the Act allow for regulations made under this Act to incorporate by reference laws of the province/territory, with adaptations to address the realities on First Nation lands. One set of regulations will be developed for each region, to harmonize as much as possible with each province's/territories' specific mechanisms for regulating water and wastewater.

The purpose of this summary is to present the 11 essential regulatory components under the Act. These components have been identified by AANDC, Health Canada, and the Department of Justice as essential to meeting the Act's objective of protecting public health. The summary maps the 11 essential regulatory components against relevant provincial/territorial acts and regulations. These acts and regulations are under consideration for incorporation into federal regulations to be made under the Act. Feedback provided by First Nation leadership, their technical experts, and other stakeholders on this summary will help inform the drafting of federal regulations for the relevant region.

Disclaimer

This summary has been prepared by a third party. It does not represent the Government of Canada's official position on the content of federal regulations to be developed under the Safe Drinking Water for First Nations Act, nor does it represent any position of the provincial government.

Similarly, in no way should this summary be relied on as constituting legal advice of the Government of Canada, nor does it provide a complete description of the content of the province's drinking water and wastewater regulatory regime. Any errors or inaccuracies are not intentional, and the Government of Canada is not responsible for anything resulting from the reader's use of, or reliance on, these materials.

1. Key Essential Regulatory Component: Protecting sources of drinking water

The Safe Drinking Water for First Nations Act, Section 4(1)(b)

Sources of drinking water need to be protected from contamination. Drinking-water sources in particular need to be protected with the view to protecting human health. Regulatory requirements must protect sources of drinking water from potential sources of contamination, such as requiring minimum distances between wells and septic systems.

Provincial Acts and Regulations under Consideration

Rationale:

The Clean Water Act states that unless permission is given under the authority of the Act, the release of contaminants into water is prohibited where it could affect water quality, endanger human or animal life, or damage property or plant life unless otherwise permitted

The Water Quality Regulation provides that no person shall, without an approval, cause or permit a source to emit, discharge, deposit, leave or throw any contaminant into or upon the environment in any location such that it may, directly or indirectly, cause water pollution to any waters of the Province.

The Watershed Protected Area Designation Order regulates activities in watersheds used for a municipal drinking water supply.

The Wellfield Protected Area Designation Order places restrictions on activities within three buffer zones around a group of wells that together draw water from the aquifer to supply a public water system.    

2. Key Essential Regulatory Component: Location, design, construction, modification, maintenance, operation, and decommissioning of drinking water and wastewater systems

The Safe Drinking Water for First Nations Act, Sections 4(1)(c) and 4(1)(e)

Drinking water systems need to be located, designed, constructed, modified, maintained, and operated in accordance with applicable standards so that the drinking water they produce is safe, clean, and reliable. The same principle applies to wastewater systems. Wastewater needs to be treated effectively. These requirements are typically detailed in permits, sometimes known as approvals. All provincial and territorial governments in Canada require some form of permit for drinking water and wastewater systems.

Provincial Acts and Regulations under Consideration

Rationale:

The Clean Water Actrequires that all new well construction, deepening of existing wells, and well abandonment must be carried out by a licensed New Brunswick water well contractor.

The Public Health Act requires property owners who need to install, construct, repair and/or replace an on-site sewage disposal system to pay an application fee and obtain an approval by having a licensed installer submit an application to the local Health Protection branch of Public Health.

The On-site Sewage Disposal System Regulation stipulates the required standards for septic tanks and sewage holding tanks.

The Water Quality Regulation enables the issuing of operating approvals for the construction, modification and operation of municipal source, wastewater works, and waterworks, or any part thereof.

The Water Well Regulation requires that metal surface casings and plastic pipes must conform to specific ASTM and CSA standards, respectively. Drillers must comply with the minimum well construction and location requirements.

3. Key Essential Regulatory Component: Distribution of drinking water and collection of wastewater by truck

The Safe Drinking Water for First Nations Act, Sections 4(1)(d) and 4(1)(f)

In rural, low-density areas, distribution of drinking water can occur by tanker truck and stored in tanks or cisterns. Similarly, sewage removal by tanker truck from household holding tanks and delivery to treatment facilities may also occur. First Nation communities are often small, remote, and rural and sometimes use these systems. These types of delivery and removal systems may also be used if there is a disruption in normal operations. Regulations will allow for the development of enforceable standards for the construction, operation, and maintenance of equipment associated with bulk transport of drinking water and wastewater.

Provincial Acts and Regulations under Consideration

Rationale:

It appears as if the Water Quality Regulation has a broad enough definition of a water distribution facility to encompass non-piped water delivery systems.

4. Key Essential Regulatory Component: Training and certification of operators

The Safe Drinking Water for First Nations Act, Section 4(1)(a)

Those responsible for the day-to-day operation and maintenance of drinking water and wastewater systems must have the appropriate training and certification. Requirements for the training and certification of operators must be included within regulations and must be proportional to the facility's complexity. Provincial and territorial certification requirements are well established in Canada and can be supported by successful training initiatives such as the Circuit Rider Training Program. Hub-models, wherein a certified operator has responsibility for operating and managing more than one system, should be allowable.  

Provincial Acts and Regulations under Consideration

Rationale:

The Water Quality Regulation allows the Minister of Environment to prescribe a training program or programs for any person in control of or who is to be in control of the source, wastewater works or waterworks. Detailed operator training and certification requirements may be outlined in Certificates of Approval.

5. Key Essential Regulatory Component: Treatment standards

The Safe Drinking Water for First Nations Act, Sections 4(1)(f) and 4(2)

Treatment standards are required to manage the risk from hazards that may compromise public health and safety. Regulations must allow for the authority to set standards for physical, chemical, biological and radiological parameters. With respect to drinking water quality, the Guidelines for Canadian Drinking Water Quality is endorsed by a federal-territorial-provincial committee and will be used as a basis for drinking-water quality standards. There will be a need to consider variations to meet local needs for some values, such as total dissolved solids, that are more aesthetic than health-based. Discussions with provinces and territories are needed to determine how the regulation of wastewater treatment standards may change in light of the recent coming into force of the Wastewater Systems Effluent Regulations (SOR/2012-139).

Provincial Acts and Regulations under Consideration

Rationale:

The Potable Water Regulation is aimed at ensuring that regulated water supplies meet potability requirements established jointly by the Department of the Environment and the Department of Health and Community Services.

6. Key Essential Regulatory Component: Monitoring, sampling, and testing

The Safe Drinking Water for First Nations Act, Sections, 4(1)(g), 4(3)(a), and 5(1)(k)

Monitoring is undertaken to determine whether a system is performing at the appropriate level based on its design. For drinking water, monitoring covers water quality and treatment performance, including source water, process performance, treated water, and distribution system quality. Discussion with provinces and territories are needed to determine how the treatment, monitoring, sampling, and testing of wastewater may be influenced by the recently enacted federal Wastewater Systems Effluent Regulations (SOR/2012-139).

Provincial Acts and Regulations under Consideration

Rationale:

The Public Health Act requires that a person who operates a public water supply system shall monitor and report on the water supply as necessary or as required by the Minister of Health. Medical officers of health and public health inspectors have the authority to take samples as part of an inspection.

The Potable Water Regulation requires regular testing of public water supplies and testing by domestic well owners when new wells are constructed or when an existing well is reconstructed. A regulated water supply is to have a sampling plan approved by the Minister of Environment. Sample analyses from a regulated water supply are to be performed by a laboratory acceptable to the Minister of Health. These regulations also make mandatory testing for water quality of all newly drilled or re-drilled (i.e. deepened) wells.

The Water Quality Regulation enables the Minister of the Environment to require a person responsible for a source, wastewater works, or waterworks to monitor and maintain records of parameters of operation of the source, wastewater works, or waterworks and discharge there from.

Under the Water Quality Regulation, the Minister may inspect a source, a wastewater works or a waterworks and, during the inspection, the Minister may make the tests and measurements and take the samples that the Minister may require.

7. Key Essential Regulatory Component: Collection, recording, and reporting of information

The Safe Drinking Water for First Nations Act, Sections 4(1)(g), 4(3)(a), and 5(1)(k)(l)

The collection, recording, and reporting of information is covered to varying degrees in provincial and territorial regulatory regimes. The collection and recording of information is required to evaluate compliance with standards. For consideration in proposed regulations is a requirement for the reporting of water quality to consumers.

Provincial Acts and Regulations under Consideration

Rationale:

The Public Health Act requires a person who holds a license to keep such records in respect of the installation, construction, repair or replacement of an on-site sewage disposal system as are prescribed by regulation and shall keep such records in such form, with such detail and for such length of time as are prescribed by regulation. A person who operates a public water supply system shall monitor and report on the water supply as necessary or as required by the Minister of Health. The Minister of Health may require the owner or operator of a public water supply system to provide information to those who consume water from the system.

The On-site Sewage Disposal System Regulation may require some records to be kept for a minimum of seven years.

The Potable Water Regulation requires that if a test of a sample of water from a well establishes that the water poses a significant health risk, the Minister of Health shall within three working days after receiving the results of the test send by prepaid registered mail a letter informing the owner of the well the results.

The Water Quality Regulation allows the Minister of the Environment to require a person responsible for a source, wastewater works or waterworks to monitor and maintain records of parameters of operation of the source, wastewater works or waterworks and discharge there from.

8. Key Essential Regulatory Component: Handling, use, and disposal of wastewater treatment products

The Safe Drinking Water for First Nations Act, Section 4(1)(h)

Theprimary health hazards associated with wastewater treatment products are excreta-related pathogens, some vector-borne diseases and certain chemicals. Pathogens can survive long enough to be transmitted viably to people and some pathogens can survive long enough to multiply. Requirements for the handling, use and disposal of wastewater treatment products must be designed to protect public health and the environment. Where wastewater treatment products are used, rules are also needed.

Provincial Acts and Regulations under Consideration

Rationale:

The Environmental Impact Assessment Regulation allows the minister to impose the condition that septage from the various septic tanks be removed and hauled by a company licensed to handle this material and is disposed of at a location that is approved to receive it.

The On-site Sewage Disposal System Regulation requires that public health Inspectors assess applications for onsite sewage disposal systems.

9. Key Essential Regulatory Component: Emergency measures in response to the contamination of drinking water

The Safe Drinking Water for First Nations Act, Section 4(3)(c)

It is in the most stressful of circumstances that clearly defined roles and responsibilities of various partners is most crucial, and a good regulatory regime will spell out this obligation to communicate potential hazards/contamination events. Communication of potential hazards is a key step in protecting those that may be in harm's way, and in the event of possible or confirmed water contamination or water-borne illness event, there will be little time for determining roles and responsibilities.

Provincial Acts and Regulations under Consideration

Rationale:

The Clean Water Act requires that no person shall supply water or permit water to be supplied to consumers from a well, public water supply system or water supply system, except a private well, if the water poses a significant health risk.

The Emergency Measures Act provides authorities for emergency management and associated plans and responses.

The Public Health Act requires that a person who operates a public water supply system shall promptly notify a medical officer of health of any malfunctions or occurrences in the public water supply system that may affect the potability of the water. This Act also allows a medical officer of health to make orders to mitigate the spread of communicable disease, e.g. waterborne illness.   

The Reporting and Diseases Regulation states that public health emergencies that exist or may exist as a result of a disease are to be reported to a medical officer of health or a person designated by the Minister of Health.

10. Key Essential Regulatory Component: Mechanisms and verification of compliance with the regulations

The Safe Drinking Water for First Nations Act, Sections 4(3)(b) and 5

Mechanisms for ensuring compliance with regulations, e.g. audits, inspections, monitoring by the regulator or third-party, are needed to determine if standards are met, and enforcement mechanisms are a necessary part of the regulations. Careful consideration of the most effective ways of ensuring compliance with regulations in First Nation communities will need to take place to ensure emphasis is placed on prevention, rather than penalty. Compliance issues will be handled on a case by case basis and adapted to account for the realities in First Nation communities. Where there is no immediate risk of harm, the primary focus will be on working together to achieve compliance.

Provincial Acts and Regulations under Consideration

Rationale:

The Clean Environment Act allows the Minister of the Environment and Local Government to issue orders to conduct an investigation, install, alter or replace and change the operations of a wastewater treatment facility or waterworks.

The Clean Water Act authorizes the Minister of the Environment and Local Government to issue Designation Orders that may prohibit, control or limit use of sources of drinking water. The Act requires compliance with the orders made under this Act. The Act establishes powers of inspectors to conduct inspections of source water, wastewater, and water supply systems.

The courts hear offences of non-compliance and determine fines based on the categories set out in the Provincial Offences Procedure Act.

The Public Health Act establishes public health inspectors and medical officers of health and states that non-compliance with an order of medical officer of health or public health inspector is an offense. Peace officers may assist these individuals in carrying out their powers.

The Water Well Regulation, enabled by the Clean Water Act, states that, an inspector may order cease and desist or decommission a well activity (e.g. construction, drilling) or operation and that person shall comply with the order. A well driller's permit may be suspended or cancelled in they non-comply.

11. Key Essential Regulatory Component: Appeal mechanisms

The Safe Drinking Water for First Nations Act, Section 9

Regulations would require a mechanism for appeals. Appeal tribunals provide a mechanism to assure some checks and balances with appropriate public involvement surrounding regulatory decision-making. Appeals may be brought by the regulated community or others affected by the decisions of the regulator.

Provincial Acts and Regulations under Consideration

Rationale:

The Clean Environment Act – Appeal Regulation states that appeals of orders, designations and decisions under the Clean Environment Act can be made to the Minister of Environment and Local Government. Appeals must be received as written submission to minister within 30 days of order, designation or decision.

The Clean Water Act – Appeal Regulation states that appeals of orders, designations and decisions under the Clean Water Act can be made to the Minister of Environment and Local Government. Appeals must be received as written submission to minister within 30 days of order, designation or decision.

 
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