ARCHIVED - Drinking Water, Wastewater, and Sources of Drinking Water: Summary of Prince Edward Island'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 Environmental Protection Act requires that no person shall discharge, or cause or permit to be discharged or, being the owner or person having control of a contaminant, discharge or cause or permit to be discharged, contaminant into the environment.

The Drinking Water and Wastewater Facility Operating Regulationsrequires that municipalities must develop and submit a wellfield protection plan to protect water supplies for the municipality based on standard capture zones.

The purpose of the requirements for sewage disposal systems in the Sewage Disposal Systems Regulations is to ensure the protection of groundwater and surface water, resulting in the protection of public health and the environment.

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 Environmental Protection Act requires a Certificate of Approval for construction and modification of all wastewater treatment and water supply systems.

The Drinking Water and Wastewater Facility Operating Regulations governs the operation of public water supply systems. Note that "public" in this context includes privately owned and operated central water supply systems, not just ‘municipal' systems.

The Sewage Disposal Systems Regulations sets out the regulations for the design, construction and operation of on-site sewage disposal systems, including licenses and permits.

The Water and Sewerage Act provides authorities for the issuance of permits to every public utility before commencing the construction, alteration, or extension of any water or sewerage system.

The Water Well Regulations requires that pitless adapters, well seals, piping and fittings, pumping equipment, and other equipment, materials or devices, used in the construction of wells must conform to standards prescribed by American Society for Testing and Materials (ASTM), American Waterworks Association (AWWA), Canadian Standards Association (CSA) and the National Sanitation Foundation (NSF). Under most circumstances, homeowners do not require a permit to have a well drilled, but any well construction must be conducted by a licensed well driller. A well permit is not required for the construction of a well for which a groundwater exploration permit is required.

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:

The Sewage Disposal Systems Regulations require that septage (i.e. pumped from a septic tank) and sludge haulers be licensed and require that those engaged in the cleaning of sewage disposal system or a wastewater treatment system, or in the land spreading of sludge have a pumper's license. Septage  can only be disposed of at an approved facility. Land spreading of sludge is conducted under the utilities certificate of approval, based generally on the criteria in the "Atlantic Canada Guidelines for Wastewater", although there are provisions in the Sewage Disposal Regulations.

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 Drinking Water and Wastewater Facility Operating Regulations sets the level of certification required based upon the facility classification of the system(s). Water distribution and wastewater collection systems are classified according to the population that each system services, whereas water treatment and wastewater treatment systems are classified according to the size and the complexity of the components of the systems. Those classified by the Atlantic Canada Water and Wastewater Voluntary Certification Board have been grandfathered until such time that their licenses need to be renewed.

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. Discussion 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 Drinking Water and Wastewater Facility Operating Regulations require that the assessment of water quality monitoring results from public drinking water supply facilities and semi-public drinking water supply systems shall be based on the recommendations in the most recent version of the Guidelines for Canadian Drinking Water Quality, or, where no such guidelines exist, on the advice of the Chief Public Health Officer.

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:

According to the Drinking Water and Wastewater Facility Operating Regulations, public drinking water supply facilities, small public drinking water supply facilities and semi-public supply systems need to maintain water quality monitoring programs.

The General Regulations requires that where the drinking water provided to guests at a tourism establishment is not obtained from a municipal water system, the tourism operator of the tourism establishment shall cause the drinking water to be tested, every 3 months or part thereof during a calendar year that the tourism establishment is receiving guests, by a laboratory accredited by the Standards Council of Canada.

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 Environmental Protection Act requires that, with regards to wastewater, any person who, without permission, discharges, or causes or permits to be discharged, a contaminant into the environment, or who owns or has control of a contaminant that is discharged into the environment shall immediately notify the Department.

The Drinking Water and Wastewater Facility Operating Regulations states that the owners of public drinking water supply facilities and wastewater treatment facilities must maintain records for five years, and must report water quality analysis in summary form once a year to their customers.

The General Regulations state that where a test of drinking water is found to be not fit for human consumption, the tourism operator must immediately notify the Department of Health and Social Services and carry out instructions by them or by the Department of Environment and Energy. It must also post notices at each tap, faucet or source of water supply until such time that the drinking water is deemed to be fit for human consumption.

The Notifiable Diseases and Conditions and Communicable Disease Regulations requires reporting of occurrences of notifiable or other regulated diseases, including waterborne illnesses, to the Chief Public Health Officer.

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 Drinking Water and Wastewater Facility Operating Regulations requires that Class I to IV wastewater treatment facilities are required to maintain wastewater quality monitoring programs and specify both the minimum scope and frequency of testing based on the facility classification.

The Sewage Disposal Systems Regulations requires that septage and sludge haulers be licensed and require that those engaged in the cleaning of sewage disposal system or a wastewater treatment system, or in the land spreading of sludge have a pumper's license.

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

The Notifiable and Communicable Diseases Regulations states that the owner of anything that is suspected or known to be a transmitter of a regulated disease shall comply with any direction by the Chief Public Health Officer, or his delegate, for the purpose of preventing the spread of the disease, including drinking water and wastewater systems.

The Drinking Water and Wastewater Facility Operating Regulations require that a well field protection plan must include an emergency response plan or contingency plan to address accidental releases of contaminates or other unplanned events that may threaten the quality of ground water within any capture zone that has been identified by the Department for the well field. Environmental Health and the Department of Environment, Labour and Justice collaborate on such issues following a protocol essentially the same as recommended by the Federal-Provincial-Territorial Committee on Drinking Water regarding boil water and water avoidance issues. The protocol also includes contact and consultation with the utility.

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 Environmental Protection Act describes environmental protection orders and authorities over investigations and injunctions regarding the discharge of contaminants.

The Public Health Act defines health hazard orders and investigations of health hazards.

The Water and Sewerage Act defines inspection authorities, penalties or offences for non-compliance and the application for judicial review to failing to carry out orders from the Island Regulatory and Appeals Commission.

The Notifiable and Communicable Diseases Regulations require compliance with regulation and orders from the Chief Public Health Officer.

The Ticket Regulations details penalties related to general provisions of the Environmental Protection Act, Drinking Water and Wastewater Facility Operating Regulations, on-site sewage disposal systems, and on-site wells.

The Water Well Regulations defines compliance with conditions of well permits and groundwater exploration.

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 Environmental Protection Act states that appeals to environmental orders, ministerial orders and ministerial decisions are made to the Island Regulatory and Appeals Commission.

The Island Regulatory Appeals Commission Act establishes the Island Regulatory Appeals Commission, and details its purpose duties and functions.

Although PEI has an Island and Regulatory Appeals Commission, the roles of this Commission with respect to water and wastewater are more administrative than appellate and adjudicative. Despite having been self identified as having a link to these numerous acts, it is only explicitly identified in the Environment Protection Act and the Water and Sewerage Act.

 
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