Introduction

This guide is intended to provide guidance to applicants requesting authority under the Safe Drinking Water Act, 2002 (SDWA) to permit fragmentation or obtain relief from regulatory requirements in respect to certain municipal or non-municipal drinking water systems, where such approval or consent is required and enabled under the SDWA and its associated regulations.

In order to provide rationale and help clarify the ministry’s requirements associated with fragmentation and relief from regulatory requirements, references are made throughout the guide to specific requirements contained in the acts, regulations and ministry guidelines and procedures, and in some cases, those specific requirements are either paraphrased or summarised. These references and summaries should not be construed as a legal interpretation or advice. It is the proponent’s responsibility to be aware of and understand all legal requirements of the applicable acts and regulations, and proponents should refer to the relevant acts and regulations for a comprehensive review of those requirements.

In addition to the approvals and permits required by this ministry, proponents should also be aware that other Ontario ministries and other levels of government (e.g., federal or municipal), may have their own approval or permit requirements. Approval under one act does not remove the requirement to obtain approval under other acts or other sections of the same act.

Acronyms and terms

C of A
Certificate of Approval or “Approval” under the SDWA
Director
A director appointed for purposes of specified sections of the SDWA
EA
Environmental Assessment
ESR
Environmental Study Report
DWWP
Drinking Water Works Permit
GUDI
Groundwater under the Direct Influence of Surface Water
Licence
Municipal Drinking Water Licence
Ministry
Ministry of the Environment, Conservation and Parks
MOH
Medical Officer of Health
OWRA
Ontario Water Resources Act, 1990
PTTW
Permit to Take Water
SDWA
Safe Drinking Water Act, 2002, c.32
SDWB
Safe Drinking Water Branch

1.0 Statutory framework

Safe Drinking Water Act, 2002, c.32

There are different requirements set out in the Safe Drinking Water Act, 2002 for municipal and non-municipal drinking water systems. The requirements are set separately in Part V (Municipal Drinking Water Systems) and Part VI (Regulated Non-Municipal Drinking Water Systems) of the SDWA.

These parts of the SDWA set out general requirements and prohibitions regarding the establishment, replacement, operation, alteration and fragmentation of drinking water systems, including the director’s power to grant relief from regulatory requirements regarding water treatment, sampling, testing, monitoring of the systems and the reporting of adverse results.

For the purposes of the SDWA and its regulations, a municipal drinking water system is defined as a system:

  • owned by a municipality, a municipal service board, a corporation established under the Municipal Act by a municipality or a group of municipalities;
  • from which a municipality obtains or will obtain water under a contract; or
  • defined as a municipal drinking water system by a regulation.

[Note: A drinking water system owned by a Local Services Board in an unorganized territory and serving a community located within an unorganized territory is not a municipal system.]

Ontario Drinking Water Quality Standards Regulation (O. Reg. 169/03)

O. Reg. 169/03 sets the minimum drinking water quality requirements applicable to all water that is required to be potable under any Ontario act, regulation, municipal by-law, or an order or other document issued under the authority of an Ontario act.

Drinking Water Systems Regulation (O. Reg. 170/03)

O. Reg. 170/03 categorizes drinking water systems and sets category-specific requirements related to the provision and operation of treatment equipment, conducting operational checks, sampling and testing, reporting adverse test results and other problems, taking corrective action, preparation of annual reports, and where applicable, preparation of engineers’ reports, engineering evaluation reports and summary reports for municipalities.

Definitions of Words and Expressions Used in the Act Regulation (O. Reg. 171/03)

O. Reg. 171/03 defines the term "private residence." This definition is crucial in determining whether a drinking water system serves a major residential development, which makes the system subject to the requirements applicable to residential drinking water systems (e.g., approval requirements).

According to the regulation, a "private residence" is a dwelling occupied for an extended period of time by the same persons, if:

  • the residents have a reasonable expectation of privacy;
  • food preparation, personal hygiene and sleeping accommodations are not communal in nature; and
  • any use of the dwelling by a resident for a home occupation, trade, business, profession or craft is secondary to the use of the dwelling as a residence and does not use more than 25% of the indoor floor area.

Another provision of O. Reg. 171/03 relevant to the approvals program prescribes a non-municipal year-round residential system and a non-municipal seasonal residential system that serve a designated facility as a “regulated non-municipal system” for the purpose of subsection 52(2) of the SDWA (prohibition, fragmentation of regulated non-municipal systems). As a result, a director’s consent is not required for fragmentation of a non-municipal non-residential drinking water system.

Definitions of "Deficiency" and "Municipal Drinking Water System" Regulation (O. Reg. 172/03)

O. Reg. 172/03 defines the two terms noted in its name. The latter is especially significant regarding approval requirements. Through this regulation, the SDWA’s definition of a municipal drinking water system includes a residential drinking water system established by a non-municipal owner under a Part VI Planning Act agreement with a municipality, if the agreement provides that the ownership of the system may be transferred to the municipality.

2.0 General

2.1 Pre-application consultation

Pre-application consultation is a dialogue between the proponent, the ministry and possibly the public, prior to the submission of an application. This process should help the proponent with their application and identify the need for public consultation. It is encouraged in cases of fragmentation or relief from regulatory requirements. Pre-application consultation should be initiated by contacting the local District or Area Office of the Safe Drinking Water Branch (SDWB). The local office may call upon or direct the proponent to other offices of the ministry that have a role in the approval process.

2.2 Where to file applications

Applications for fragmentation and relief from regulatory requirements should be made to the Director, Safe Drinking Water Act, by submitting a completed application form and any required supporting information. Applications can be sent to:

Environmental Permissions Branch
Ministry of the Environment, Conservation and Parks
40 St. Clair Ave. W, 2nd Floor
Toronto, Ontario
M4V 1M2
Tel: 416-314-4300
e-mail: mdwlp@ontario.ca

2.3 Screening of applications

Upon receipt by the Safe Drinking Water Branch, submissions are pre-screened for completeness. If an application is complete, an acknowledgement letter will be sent to the applicant. If the application is incomplete, the applicant will be contacted and the missing information will be outlined.

2.4 Public notification and access to application information

The release of information contained in application forms and documentation submitted in support of applications for approval is subject to the Freedom of Information and Protection of Privacy Act (FIPPA). This act defines what may and may not be disclosed to the public and is used to assess all requests for information on file with applications for approval.

As part of the application process, identify all documents, or portions of documents, considered confidential. Refer to the exemptions from disclosure set out in sections 12 to 23 of FIPPA, and in particular, section 17, third-party information. The ministry will consider these factors when deciding on the disclosure of specific documents on file.

2.5 False Information

It is an offence under section 140 of the SDWA to knowingly give false or misleading information to the ministry in respect to matters under the act or regulations.

Under section 142, penalties for this violation could result in fines of up to $50,000 for the first conviction and fines up to $100,000 and/or imprisonment up to one year for each subsequent conviction where the offence is committed by an individual, and $250,000 and $500,000, respectively, where the offence is committed by a corporation.

2.6 Appeals

Section 127 sets out the types of director’s decisions that are reviewable. These include instances where the director decides to:

  • impose any terms or conditions on a DWWP, licence, certificate or approval
  • vary or revoke any terms or conditions of an existing DWWP, licence, certificate or approval
  • refuse to grant a consent for the fragmentation of a non-municipal drinking water system
  • refuse to issue a DWWP, licence or a DWWP or licence amendment
  • revoke a DWWP
  • revoke or suspend a licence

The director will serve the owner of the drinking water system with a written notice of this imposition, variation, refusal, suspension or revocation, including details of the owners’ right to appeal the decision to the Environmental Review Tribunal.

Within 15 days of being served with a notice of a reviewable decision, the person notified may require a hearing by the tribunal by serving a written notice to the director and the tribunal. Further information about the appeal process can be obtained at the Environment and Land Tribunals Ontario website.

3.0 Fragmentation

3.1 Definition

The meaning of fragmentation depends on the type of drinking water system:

  1. Large and small municipal residential: fragmentation is the replacement of all or part of the system with all or part of a non-municipal drinking water system. For example, in the case of a municipal residential system, this might include the sale of all or part of the system to a private corporation resulting in the original system becoming a non-municipal system.

  2. Non-municipal year round residential and non-municipal seasonal residential that serves a designated facility: fragmentation is the replacement of all or part of the system with a non-municipal system that is not a non-municipal year-round residential drinking water system or a non-municipal seasonal residential system that serves a designated facility. For example:

    1. severing of service connections within the system which results in the number of private residences being served by any single well to be less than six, or
    2. a non-municipal year round residential systems that is becoming a non-municipal seasonal residential system.

3.2 Applicability

Fragmentation is not permitted for selected drinking water systems unless it has been authorized by a director through the provisions of the SDWA. These types of systems are:

  • Large municipal residential (LMR)
  • Small municipal residential (SMR)
  • Non-municipal year-round residential (NMYRR)
  • Non-municipal seasonal residential that serves a designated facility (NMSR)

If the category of your drinking water system is unknown, the Drinking Water System Categorization Questionnaire provides a process to allow you to make this determination.

3.3 Authorization of fragmentation

Fragmentation requires permission from the MOECC director. It is authorized via the municipal DWWP for LMR and SMR systems and via written consent for NMYRR systems and NMSR systems serving a designated facility. The owner of the drinking water system must apply to the director to obtain authority to permit fragmentation.

The director will consider an application for fragmentation and will make a decision that, in the director’s opinion, is consistent with purposes of the SDWA and within the authorities, prohibitions and other requirements provided in the SDWA and its regulations. The purposes of the SDWA are:

  1. to recognize that the people of Ontario are entitled to expect their drinking water to be safe, and
  2. to provide for the protection of human health and the prevention of drinking water hazards through the control and regulation of drinking water systems and drinking water testing.

In all cases of considering an application for fragmentation, the SDWA provides that the director shall not grant an approval, amend an approval or permit, or grant consent respecting fragmentation unless:

  1. the director has consulted the Medical Officer of Health concerning the proposed fragmentation
  2. the owner of the system proves to the satisfaction of the director that the owner gave written notice in a form and manner approved by the director to each user of the system who would cease to be served by a municipal drinking water system (fragmentation of a municipal system) or a regulated non-municipal system (fragmentation of a non-municipal system) if the fragmentation proceeds; and
  3. the owner of the system demonstrates to the director’s satisfaction that the fragmentation will not expose users of the fragmented system to a drinking water health hazard and will not endanger the natural environment.

In the case of a municipal system, a director is prohibited from approving an activity subject to the Environmental Assessment Act, unless the proponent of the activity has completed the applicable EA process. For example, the retirement of a municipal drinking water system is a Schedule B project under the approved Municipal Class EA project.

3.4 Required information

The supporting information submitted with a fragmentation application must provide sufficient information to address the items noted above. The following documentation is required for the director to complete the assessment:

User notification report

A written report on user notification prepared by the owner, containing:

  • a list of names and addresses of all current users of the system that would no longer be served by the existing system if the proposed fragmentation proceeded
  • a statement that a notice approved by the director was given to each current user of the existing system that would no longer be served by the system (an approval of the proposed form and manner of notification must be obtained from the director through pre-application consultation)
  • details of all public meetings held to discuss the proposed fragmentation of the existing drinking water system, if any such meetings were held, including a summary of the issues discussed at any such meetings
  • a summary of all comments received by the applicant from the affected users of the system, and the applicant’s responses to all comments, including any planned measures to accommodate any users of the system who oppose the proposed fragmentation

Professional engineer’s report

A written report prepared by a professional engineer, containing:

  • a detailed description of how drinking water would be obtained by those current users of the system that would no longer be served if the proposed fragmentation proceeded

  • an assessment of the potential risks associated with the proposed fragmentation, including:

    • the availability of safe and sustainable sources of treated water for the consumers from the current system

    • where relevant, raw water information, which should include:

      • raw water quality (raw water characterization and treatment requirements to meet Ontario Drinking Water Quality Standards, and vulnerability of the sources to contamination, and for contemplated well supplies specifically, determination if the sources would be deemed under the regulation to be under direct influence of surface water), and
      • raw water quantity (adequate amount of water available to consumers on a sustained basis, and sustainability of the aquifer)
    • the potential for contamination of the source aquifer, or any aquifer connected to the source aquifer, associated with the operation of the proposed replacement system or systems

In the case of a municipal residential system, submit a copy of all documents required to complete the Municipal Class EA process for the undertaking of fragmentation and confirmation that the process has been completed (this confirmation should be made by completing the EA section of the application form).

While the SDWA requires that the director consult with the local Medical Officer of Health (MOH) regarding an application for fragmentation, a summary of any discussions that may have occurred between the owner and the MOH should still be submitted to facilitate the director’s consideration of the application.

4.0 Relief from regulatory requirements

4.1 Applicability

In general, the requirements of regulations under the SDWA must be followed by owners of municipal and non-municipal drinking water systems. The SDWA does, however, allow the director to grant relief from certain regulatory requirements of regulations under specific circumstances for some types of systems. These systems are:

  • Large municipal residential (LMR)
  • Small municipal residential (SMR)
  • Non-municipal year-round residential (MNYRR)
  • All Systems of other categories serving designated facilities

4.2 Relief provisions

General

Relief may be provided by a director for certain specified regulatory requirements such that a particular requirement need not be undertaken by the owner or operating authority of the system. In this context, a regulatory requirement is defined in the SDWA as a prescribed requirement (i.e. imposed by a regulation), relating to:

  1. the sampling, testing or monitoring of water quality in a municipal or non-municipal drinking water system or the reporting of results, or
  2. the treatment of water in a municipal or non-municipal drinking water system.

Relief, if granted, can only relate to the subject matter specifically defined as a “regulatory requirement” as noted above. The director is prohibited from granting relief for prescribed requirements beyond those described.

Within the meaning of a “regulatory requirement”, the director may impose a condition in an approval, drinking water works permit or municipal drinking water licence that:

  1. provides relief from the duty of strict compliance with a regulatory requirement;
  2. imposes a condition in the approval or licence (as applicable) in place of a regulatory requirement that is less onerous than the regulatory requirement; or
  3. in the drinking water works permit, authorizes or requires the installation of a water treatment process for a municipal drinking water system that does not comply with the prescribed treatment standards or requirements for the system.

O. Reg. 170/03 – Schedule 15.1 - Lead

Schedule 15.1 of O. Reg. 170/03 provides for mandatory community-wide testing for lead, notification of results from the community testing program and the development and implementation of corrosion control measures for lead reduction.

The requirements for community lead testing include sampling in private residences, non-residential buildings and distribution systems served by large and small municipal residential and non-municipal year round residential drinking water systems. The number of samples is based on the size of population served by the system, and is outlined in the Table in Schedule 15.1 (lead) of the regulation. Under Part V (municipal systems) and Part VI (regulated non-municipal systems) of the SDWA, the director, through conditions of the licence or an approval, may provide relief for a drinking water system from a regulatory requirement related to the treatment of water, the sampling, testing or monitoring of water quality, or the reporting of the results. There is a separate application form, Requests for Regulatory Relief from Lead Sampling Requirements, to help expedite this type of request.

4.3 Granting relief

Regulatory relief is granted by the director through the DWWP and licence for large and small municipal systems and through a Certificate of Approval for NMYRR and all systems of other categories serving designated facilities. The owner of the drinking water system must apply to the director to obtain relief from a regulatory requirement.

The director will consider an application for relief from a regulatory requirement and will make a decision that, in the director’s opinion, is consistent with the SDWA and within the authorities, prohibitions and other requirements provided in its regulations.

The purposes of the SDWA are:

  1. to recognize that the people of Ontario are entitled to expect their drinking water to be safe, and
  2. to provide for the protection of human health and the prevention of drinking water hazards through the control and regulation of drinking water systems and drinking water testing.

The director is prohibited, through the provisions of the SDWA, from granting relief from a regulatory requirement unless:

  1. the owner of the system has applied in writing to the director for relief from the regulatory requirement;
  2. the regulations do not prohibit the director from including the condition in the approval, DWWP or licence under the circumstances relating to the particular system;
  3. the application includes, if required by the regulation, an assessment prepared in accordance with the regulations that demonstrates that providing relief will not result in a drinking water health hazard and the director agrees with the conclusions of the assessment;
  4. the owner has conducted public consultations on the application, if required, in accordance with the prescribed requirements; and
  5. the owner has obtained all consents that are required by the regulations from individuals before relief may be given.

4.4 Required information

The information submitted in support of an application for relief must be sufficient for the director to ensure the purposes of the SDWA are still met in granting the relief, and are based on the restrictions and requirements set out in the act and regulations. Due to the wide variety of system-specific circumstances and the types of relief being sought, it is not feasible to delineate precisely what information must be submitted in support of each application. It is recommended that a potential relief applicant contact the SDWB for a pre-submission consultation regarding the type of information and level of detail that would be required.

5.0 Completing the application form

Download Application for Fragmentation and Relief from Regulatory Requirements

1. Statement of owner

Sign the application, thereby indicating you are authorized to represent the owner of the drinking water system. This confirms the information submitted in support of this application is complete and accurate and that the technical information contact identified is authorized to act on the owners’ behalf for the purpose of processing this application

2. Owner of the drinking water system

A. Owner name

Enter the name of the owner of the drinking water system as it would appear on legal documents. This should be the same name as found on any current licence and DWWP or Certificate of Approval.

3. Owner mailing address

A. B. C. D. E. F. G. H. I. J. K. Address information

Enter the address that the owner of the system wishes to use for receiving correspondence associated with the applications. It will need to include the street number, unit identifier, municipality, province and postal code as applicable. If the formal mailing address includes a post office box, rural route or general delivery it should be identified accordingly.

H. Attention, I. Position/Title, J. E-mail address, K. Telephone

Enter information into boxes H. and I. to identify a specific person, along with their position or title, within the owner’s organization that will receive the approval or amended DWWP/licence. In the case of a municipal corporation, this should be the mayor, warden, reeve, clerk or deputy clerk.

The telephone number and e-mail address are requested to facilitate communications and the forwarding of the DWWP/Licence or amendments.

4. Technical information contact

A and B. Name, C. Position/Title, D. Employer/Company

Identify the person ministry staff may contact if additional information is required in support of the applications, particularly information of a detailed technical or design nature. This may be the owner of the system, staff within the municipal organization or a consulting engineer working on behalf of the owner or proponent. Identify the position/title of the person and the employer/company.

E. F. G. H. I. J. K. L. M. Contact address

Enter additional contact information, including e-mail address and telephone number.

5. Drinking water system

A. System Identifier name

Enter the name that identifies the drinking water system based on which fragmentation or relief from regulatory requirements is being sought. If a DWWP/licence exists for the system, the name of the system as described in these instruments should be used.

If a DWWP/licence does not currently exist for the system, a name should be selected to identify the system. In most cases this may be a simple and logical descriptor such as the ‘Broken Antler Treatment and Distribution System’.

B. Drinking water system category

Identify the category of the drinking water system in the application for fragmentation or relief from regulatory requirement.

C. System type

Identify whether the drinking water system consists of treatment and distribution or distribution only, including the addition of any chlorine compound or chemicals to the distribution system. A distribution only system would receive all of its treated water from another drinking water system.

D. Existing approval, DWWP, licence Information

Check the boxes as applicable and enter in any existing C of A, DWWP or licence numbers that exist for the system. In the case of a C of A, enter in the number of most recent C of A issued for the system. If a C of A or a DWWP or Licence has never been issued for the system, the last box should be checked.

6. Type of application

Check the boxes identifying fragmentation or the type of relief being sought.

7. Fragmentation – information requirements

The form should be completed and information provided as set out in Section 2 of this guide.

8. Other regulatory relief

The form should be completed and information provided in accordance with Section 3 of this guide and sections relating to all other types of relief.

Questions about submissions

Copies of the Safe Drinking Water Act, 2002, its regulations, and other Ontario legislation may be obtained:

Online:
Publications Ontario or the e-Laws website

By mail:
Publications Ontario
50 Grosvenor Street
Toronto, Ontario, M7A 1N8

In person:
Service Ontario Centre
College Park Building, 777 Bay Street, Market Level
Toronto, Ontario M5G 2C8

By phone:

For any assistance or advice with an application related to municipal drinking water systems, contact the Environmental Permissions Branch at:

Environmental Permissions Branch
Ministry of the Environment, Conservation and Parks
40 St. Clair Ave. W, 2nd Floor
Toronto, Ontario
M4V 1M2
Tel: 416-314-4300
e-mail: mdwlp@ontario.ca