Report of the Expert Panel on Safe Drinking Water for First Nations

Defining safe drinking water

Our terms of reference described our work as developing options to regulate safe drinking water for First Nations. Finding an explicit definition of "safe drinking water" in Canada, however, proved difficult. The most recent Guidelines for Canadian Drinking Water Quality (March 2006) do not provide a definition [1], nor did we find one in any provincial or territorial legislation..

This is an important point, because it touches on two of the central questions asked during the engagement process: What should be regulated, and to what standards? These questions required consideration of the threats to safe drinking water. In other words, what contaminants, and how much of them, might take water from safe to unsafe? Answering those questions effectively, however, called for a definition of safe drinking water.

Within Canada, the most useful source for a definition may be the second report of the Walkerton Inquiry, A Strategy for Safe Drinking Water [2]. The report, which responded to a tragedy that occurred because drinking water was clearly unsafe, noted that the goal of the report's recommendations was "to ensure that Ontario's drinking water systems deliver water with a level of risk so negligible that a reasonable and informed person would feel safe drinking the water."

This approach implies two obligations: first, to assure that risks are negligible and, second, to provide consumers with information about drinking water risks. The notion that safety is defined by a risk being so small that one need not worry about it originated with a Yukon First Nations councillor, Malcolm Dawson. [3]

The goal of reducing drinking water risks to a level that a reasonable and informed person would not worry about is a thoughtful and achievable objective for First Nations drinking water. It provided the working concept of safe drinking water used in this report.

Safe does not mean risk-free

Any definition of safe drinking water must allow for the reality that risks cannot be completely eliminated. The Walkerton report, for example, points out that "it is not possible to utterly remove all risk from a water system." [4] The World Health Organization (WHO) Guidelines for Drinking-water Quality, 3rd edition (WHO 2004 a) define safe drinking water as water that "does not represent any significant risk to health over a lifetime of consumption…." [5] The word "significant" acknowledges, as did the Walkerton report, that there is always some degree of risk, even if very small, in providing drinking water. "Safe," then, does not mean "completely without risk."

Driving provides a useful analogy. Most people would agree that going through a red light is unsafe – done often enough, it will result in a crash. On the other hand, we generally regard driving through a green light as safe, but it is not entirely free of risk. Accidents do happen to drivers obeying the lights: the goal of traffic planners, lawmakers and police is to minimize the risks of this happening.

Similarly, there are a number of ways of reducing the risks of illness caused by drinking water. The next sections describe these in more detail. This will provide the non-technical reader with a better understanding of how water is made safe to drink.

This explanation of how risks are reduced should also help to show why it is impossible to draw a clear line between safe and unsafe. To return to the traffic-light analogy, driving through a yellow light is not as safe as driving through a green, but it is much safer than running a red. The yellow represents a transition from a low-risk situation to one that is clearly unsafe. Keeping drinking water always in the "green" requires that decisions about water safety be made cautiously.

A comprehensive approach

The Walkerton Inquiry Part 2 Report explains that the risks of unsafe drinking water can be reduced to a negligible level by:

putting in place multiple barriers aimed at preventing contaminants from reaching consumers;
adopting a cautious approach to making decisions that affect drinking water safety;
ensuring that water providers apply sound quality management and operating systems; and
providing effective provincial government regulation and oversight.

A key reason for adopting this comprehensive approach is that relying solely or mainly on water-quality monitoring (also called compliance monitoring) has proven ineffective in preventing waterborne disease outbreaks. [6]

The multiple barrier approach described in the first bullet above has come to be termed "source-to-tap" protection. The main Canadian reference on the subject outlines source-to-tap protection as consisting of:

source water protection;
effective drinking water treatment; and
secure distribution of treated water to consumers. [7]

These steps rely on effective monitoring of drinking water quality, as well as enlightened management of the various systems involved in producing, protecting and delivering drinking water.

All of this must, of course, take place against a background of good governance, suitable legislation and policies, clear guidelines, standards and objectives, effective research and technology development and meaningful public involvement and awareness. Together, all of these elements create the comprehensive framework that the Walkerton report recommended.

The panel was established because of criticism from the Office of the Auditor General that at least one element of the comprehensive framework – suitable legislation governing water quality on reserves – is lacking. Before turning to legislative issues, however, it is helpful to look at the other elements of a comprehensive framework, because these must be in place and working properly before legislation to ensure drinking water quality can be effective.

Source water protection

Source water protection involves managing the release of contaminants from human activities into water sources (rivers, lakes and groundwater). Effective source water protection must deal with a range of threats to water, including sewage, industrial effluents, farming, forestry and urban development.

Regulations require wastewater from municipal sewage and industrial facilities to be treated to reduce contaminants to levels low enough to prevent harm to aquatic ecosystems. Other activities, such as fertilizing fields, raising cattle and cutting lumber, and even the run-off from roads and built-up areas, create "non-point" sources of contamination. Controlling these calls for rigorous land use planning and activity controls.

The diffuse nature of contamination arising from non-point sources, combined with the number of parties and jurisdictions that are typically involved, make source water protection particularly challenging, and best undertaken on a watershed basis. Source water protection is at various stages of evolution across Canada.

Drinking water and wastewater treatment

The treatment of drinking water has been the linchpin of safe water for communities for more than a century. The quotation that opens this report came from the late Chief John Snow of the Stoney Nakoda Nation: coincidentally, it was another John Snow, an English physician, who first recognized more than 150 years ago the need to kill dangerous diseasecausing bacteria and other pathogens before water was consumed.

Now, as then, the most serious threat to public health arises from contact between human or animal wastes and drinking water, which can result in serious, even fatal, illness. This was the case, for example, in the outbreaks in Walkerton, where the contamination came from cattle manure, and North Battleford, where the source was human sewage. Worldwide, diarrheal diseases caused by unsafe water supply, sanitation and hygiene are estimated to cause more than 1.8 million deaths a year, mainly among children in the developing world where drinking water is routinely contaminated by wastes and not treated to any degree. [8] Such deplorable outcomes continue to define the meaning of unsafe water.

Treatment protocols recognize the serious nature of this threat. The Guidelines for Canadian Drinking Water Quality note: "In general, the highest priority guidelines are those dealing with microbiological contaminants, such as bacteria, protozoa and viruses." [9]

A main focus of drinking water treatment is to remove microbial pathogens by filtration and inactivate them by disinfection. Conventional water treatment uses chemicals to clump together particles in the water (flocculation) and sand to remove them (filtration). Newer technologies use membranes for filtration, but these technologies are not suitable for every water source. The effectiveness of filtration is reflected in the turbidity of drinking water. Turbidity is a sensitive measure of small particles that, in high concentration, make water cloudy.

Chlorine, either in the form of gas or in solution, is the most commonly used disinfectant. Ultraviolet light and ozone are gaining acceptance as supplements to it. As treated water leaves the plant, it should contain a small amount of chlorine, which is called the "chlorine residual" and is a vital marker to show that enough chlorine was dosed to achieve adequate disinfection.

Drinking water may also carry risks from chemicals that either occur naturally or result from industrial and agricultural activity. A few have been proven to cause human illness through the consumption of drinking water heavily contaminated with them. Arsenic can occur naturally in groundwater and, in drinking water, is recognized to cause various forms of cancer. Lead, used in the past in plumbing and other materials, can be particularly dangerous to children. Nitrites and nitrates, usually resulting from fertilizer use, can cause an acute and potentially fatal condition in babies. Naturally-occurring selenium or fluoride, both of which are beneficial at low exposures, can cause health problems if present in drinking water at excessive levels.

We note that each of these contaminants is highly localized, unlike the pathogens from human or animal wastes. Decisions about whether to treat water to remove chemical contaminants or routinely monitor for them in treated water must therefore be based on an assessment of whether any of them are found in source water, and at what levels.

Because the greatest threat to drinking water safety arises from contact with wastewater, most communities also have sewage collection and treatment systems. These vary a great deal in complexity, depending on the size of the community and where the treated sewage will end up. They commonly mimic the natural processes that water bodies and soil systems use to cope with limited quantities of human and animal wastes. Natural processes were sufficient to cleanse natural waters when human populations were nomadic and their settlements small in relation to the natural water their activities and wastes affected.

Secure distribution

Once treated, water must be kept safe from contamination as it is delivered to users. In most communities, delivery relies on a distribution system of buried pipe through which water is pumped under pressure. Keeping the chlorine residual at a measurable level throughout the distribution system is a good indicator that the water has been protected from bacterial contamination.

There are several sources of possible contamination in a piped distribution system. Sewage from leaking wastewater lines can make its way into joins in drinking water mains when water-line pressure fluctuates. Water contaminated by individual consumers can be siphoned into the distribution system if backflow prevention valves are missing or not working. In the absence of proper cleaning and disinfection, pipe and meter repairs can lead to contamination. Water towers or standpipes used to maintain system capacity and pressure can become contaminated by birds or small animals. In the past, even the pipe and plumbing materials could be a source of contamination – for example, from the use of lead for piping or in solder.

When looking at First Nations water systems, it is important to consider other means of distribution than high-pressure piping. Many First Nations communities rely on lowpressure systems or truck delivery to on-site storage tanks (cisterns). In trucked distribution there is the potential for contamination at the loading, transport and unloading steps. As well, cisterns themselves must be made of and coated with safe materials, and need regular cleaning and other precautions to ensure that they do not become contaminated.

Monitoring

Sampling and testing drinking water for contaminants is an important part of the multiple barrier approach. But routine monitoring of treated water against contaminant standards does not, by itself, guarantee safety.

Any monitoring program must consider a number of issues:

How often to take samples, if monitoring is not continuous, because contamination can be intermittent;
Location where the sample is taken, because contamination can occur at any number of points in the system, possibly beyond a sampling point;
Timeliness, because results may not be known until after the water has been consumed; and
Which contaminants pose a significant risk, because trying to monitor for everything is futile.

To be as effective as possible, monitoring must be strategic: the monitoring program should include regular assessment of the risks that might arise from various sources of contamination. It may not be necessary to monitor for some contaminants because they simply do not occur in the community's source water. In addition to monitoring treated water quality, there should be monitoring of:

Raw water quality, to understand the seasonality and frequency of contamination episodes and to help develop a monitoring program based on known threats to drinking water;
The performance of the treatment process, with such measures as chlorine residual and turbidity, preferably by using continuous monitors with alarms and automatic shut-offs;
Distributed water quality, using a consistent sampling program in the distribution system; and
Any reports of adverse water quality from consumers.

Finally, making the results of monitoring public can play an important role in assuring consumers that their drinking water is safe.

Training and certification

Ensuring that drinking water is safe around the clock, day in and day out, is challenging because there are so many ways that water can become unsafe. This makes the training and dedication of operators critical.

Gary Draschenberg, Associated Engineering, Calgary

...you can have a great plant, a Cadillac and a not so good operator, and you can have a terrible plant and a great operator. I'll take the latter anytime because they have a passion....

Training methodologies for water and wastewater operators vary across the country, but the goal is generally to certify the level of training that an operator has achieved. Although a plant operator may be trained but not certified, certification is increasingly a requirement. Certification is based on standard examinations. Normally, at least one operator in each system must hold a certificate of the same class or higher than the class of that system.

These requirements are a challenge, especially for operators in small systems. To use Ontario's requirements as an example, the operator must progress through a step-by-step certification process, beginning with Operator in Training (OIT). The minimum qualifications for an OIT are Grade 12 (or its equivalent, as achieved by passing courses approved by the provincial training authority). The next step is Class 1 certification, needed for the most basic system technology. The highest level of certification is Class 4.

Each level of certification requires the operator to pass an exam and put in a specified number of training hours each year. As the certification level of the operator progresses, more hours of annual training are required. The annual hours of training consist of both continuing education (courses and workshops) and on-the-job training meeting specific criteria. Courses typically cover the basics of water treatment, chemistry and microbiology, hydraulics, electricity, and safety. An overriding consideration stressed by the Walkerton Inquiry is the need to assure that operators fully understand the public health implications of performing their work responsibly.

Finding people in small and remote communities who meet the requirements to enter the training regime can be challenging. Equally challenging is the risk that, once trained, that person will move on to opportunities elsewhere. Keeping staff is particularly difficult where funding for operations and maintenance is inadequate, and where the Chief and Council do not or cannot compensate operators adequately for the responsibility they are being asked to discharge.

The cost of training is an issue that becomes amplified when staff turn over frequently. Sending an operator from a remote community to a course at a provincial training centre can cost several thousand dollars. With limited training funds, careful thought must be given to the type and location of the training taken. Private firms can provide both on-the-job and more formal training, but the costs amount to $30,000-40,000 a year. The circuit rider training programs for First Nations are funded by INAC, but in most cases the level of support was not adequate to provide as much help as operators would like.

Operations, management and governance

The critical role of operators also calls for an operating, management and governance framework that supports them. As Justice O'Connor noted: "Ultimately, the safety of drinking water is protected by effective management systems and operating practices run by skilled and well-trained staff." [10] To return to the driving analogy, sound quality management and operating systems are like defensive driver training. They help operators identify threats and act on them to prevent accidents, rather than merely reacting when dangerous circumstances arise.

Operators must be compensated for the level of responsibility they carry; the health of the community is in their hands. System operators and managers also need the support of those who govern their systems. In the First Nations context, this is generally the Chief and Council. These officials must be aware of their obligations and of the consequences of failing to provide safe drinking water.

One important role of governance is to ensure adequate funds are spent on repairs and maintenance. This is a challenge in almost every community, although the Walkerton tragedy has helped to improve the focus of elected officials in this area. In First Nations, however, those decisions are complicated by both institutional arrangements and lack of economic capacity, as we discuss in more detail later.

Finally, informed and concerned consumers are another important element in assuring that safe drinking water remains a priority of local government.

Making cautious decisions

Disease-causing microbes (bacteria, viruses and protozoa) are the most common threat to any drinking water supply and the most likely source is human or animal waste. Because it would be impossible to monitor for every microbe, one focus of monitoring is for the presence of a bacterium called E. coli. It is found in huge numbers in the waste of all warm-blooded animals, including humans, so its presence in water serves as an effective marker for contact with these contaminants.

E.Coli itself is not normally a cause of disease, and in fact humans rely on it for to digest food. A specific mutant strain, however, E. coli O157:H7, [11] was responsible for the deaths in Walkerton. The real importance of monitoring for E. coli in treated water is that where it is found, disinfection is not working adequately and disease-causing microbes from wastes may also have survived the treatment process. Because of this role as a marker of treatment effectiveness, there is a zero tolerance for E. coli in treated water.

Limits for other substances in drinking water are also set on a precautionary basis, even though the evidence that they cause disease may be much less clear than the known dangers of pathogens in human or animal waste. For chemical substances, the guidelines are based on the substance's effect on laboratory animals and the possibility that it might be present in a community's source water. As noted, deciding which contaminants to monitor and how often is part of a strategic monitoring program.

Dangerous amounts of chemicals can get into drinking water accidentally, through crosscontamination or errors in the treatment process. Such incidents have happened, although they are rare. Routine monitoring of treated water will not generally pick these up: the best defence is effective management of the water plant and distribution system.

Concerns about the by-products of conventional water treatment provide an interesting example of how precaution and judgment are applied in the setting of drinking water quality standards. Chemical disinfectants such as chlorine, chloramines, chlorine dioxide and ozone are powerful chemicals. When they come into contact with natural organic matter often found in water, the chemical reactivity that allows them to kill disease-causing microbes creates what are called disinfection by-products.

Trihalomethanes (THMs) were the first disinfection by-products to be recognized, in 1974. Since then, there has been evidence in laboratory animals that some disinfection by-products could be harmful in high concentrations, as well as some indication that people exposed to high levels of THMs over some time may be more likely to develop certain diseases (although it may be other by-products, not THMs, that are the cause).

At the same time, drinking water regulators in Canada universally agree that adequate disinfection must not be compromised by an effort to avoid the possible, but unproven, health risk from by-products. In the absence of conclusive evidence about the risks of THMs, and given the very clear and proven risks of not disinfecting water, regulators have responded with appropriate caution. Assuming there is any risk from THMs and other by-products at all, the guidelines are set to keep the THM-related risk very low, while research into their possible human health significance continues.

Another area that calls for caution in decision-making is the look, smell and taste of drinking water. Treated drinking water might be coloured, or have an unpleasant smell or taste, for reasons that don't present health risks. If this water "does not represent any significant risk to health over a lifetime of consumption…." it would therefore qualify as safe using the definition of the World Health Organization.

If, however, we consider our own working concept – that a reasonable and informed person would feel safe drinking the water – then look, taste and smell are clearly important. A reasonable person might well decide not to drink water on those grounds. In fact, there is a very large industry that sells bottled water and in-house treatment systems to millions of people in North America who are uncertain about the safety of the water from their taps, or who just find bottled water more palatable. Presumably these people are reasonable, although whether they are well informed is another question.

In remote communities, however, the consequences of tap water that tastes, smells or looks bad can be more serious. Few residents are able to buy in-house filtration and treatment systems. Many are already disinclined to drink treated water, especially if it tastes strongly of chlorine. The result may well be that people simply by-pass the "safe" water in the tap and instead use the water from nearby lakes or streams. Although it may look and taste better, this source carries the known microbial risks of untreated water. This means that investing in treatment that improves the look, taste and smell of finished water – and thus increases its acceptance – is also an important measure to safeguard public health.

Research and technology

There have been substantial improvements in technology in recent years that are valuable for small systems, including important advances in membrane filtration and ultraviolet disinfection that were pioneered by Canadian firms. The Canadian Water Network, a federally-funded Network of Centres of Excellence, has adopted small systems and protecting public health as top priority research themes. These themes are well positioned to enhance the emerging capacity in First Nations organizations.

The policy and regulatory framework

In Canada, the regulation of most water and wastewater operations and systems is the responsibility of provincial and territorial governments. In particular, provincial regulation applies to municipalities, which own almost all public water and wastewater systems, as well as to most small private and communal systems. They also provide for enforcement when standards are not met.

Volume II of this report provides a detailed comparison of the water regimes of Canadian jurisdictions, which Appendix C to this volume summarizes. These materials illustrate that there is considerable variation in the details of what is regulated and to what standard. Generally, regulation has become more stringent in the wake of the Walkerton tragedy.

An important element of the multiple barrier approach, source water protection, tends not to be as rigorously legislated as operational elements like plant design, operator certification or monitoring. Many of the provinces and territories are only in the early stages of developing a regulatory approach. Ontario is possibly the furthest along: its Clean Water Act, tabled in 2005, received Royal Assent on October 18, 2006.

Unregulated systems

There are a number of water and wastewater systems that do not fall under provincial or territorial jurisdiction. While the driller of a well on private land must be licenced in most jurisdictions, the well is generally not regulated after commissioning. Similarly, small septic systems are generally regulated locally and only at the building stage. The rationale for not regulating these systems to the same standard as larger public systems is that they are on private land and are the responsibility of the landowner. We return to this point in the context of First Nations reserves, where ownership and responsibilities are not so clearcut.

The most important area not falling under provincial jurisdiction is, in the context of this report, installations for which the federal government has direct legal authority. These include national parks, military bases, federal facilities like trains, planes, banks and prisons; facilities falling under Part IV of Labour Code; and, of course, water and wastewater systems on First Nations reserves.

At present, there is no federal regulatory framework that applies to any of these facilities. However, only on reserves does the federal government have an imperative dictated by the Supreme Court of Canada and by Section 35 of the Constitution Act, 1982.

This regulatory gap was noted by the Walkerton Report, although the main objects of its criticism were inadequate infrastructure and unmet training needs of operators.

The 2005 annual report of the Commissioner of the Environment and Sustainable Development in the office of the federal Auditor General raised concerns as to how effectively funds allocated to improving water quality had been spent:

"Despite the hundreds of millions in federal funds invested, a significant proportion of drinking water systems in First Nations communities continue to deliver drinking water whose quality or safety is at risk. Although access to drinking water has improved, the design, construction, operation, and maintenance of many water systems is still deficient. Moreover, to a significant extent, the success of the First Nations Water Management Strategy depends on INAC and Health Canada addressing … management weaknesses…."

The weaknesses related to regional variations in practices, failure to ensure systems were built to appropriate standards, and inadequate support and capacity-building. [12] As well as making several recommendations to address these issues, the report called for a regulatory framework for First Nations water systems.

Closing thoughts on assuring safe water

It is no coincidence that the report of the Walkerton Commission (to which two members of this panel acted as advisors) put regulation at the end of the list of elements needed for a comprehensive framework. Regulation alone will not be effective in assuring safe drinking water unless the other requirements … a multiple barrier approach, cautious decision-making and effective management systems – are met.

These other requirements depend on adequate investment in both human resources and physical assets. Regulation without the investment needed to build capacity may even put drinking water safety at risk, by diverting badly-needed resources into regulatory frameworks and compliance costs.

The critical relationships among regulation, resources and the goal of safe drinking water underpin the remainder of this report.

Footnotes

Cited in Hrudey, S.E., and D. Krewski, 1995. Is there a safe level of exposure to a carcinogen? Environmental Science and Technology, 29(8), 370A-375A (return to source paragraph)
Hrudey, S.E. and E.J. Hrudey, 2004. Safe Drinking Water – Lessons from Recent Outbreaks in Affluent Nations. IWA Publishing, London. 514 pp. (return to source paragraph)
Report of the Commissioner of the Environment and Sustainable Development, Ottawa, 2005, accessed at Drinking Water in First Nations Communities (return to source paragraph)
Presentation to the panel on August 22, 2006, by Merrell-Ann Phare, Executive Director and legal counsel for the Center for Indigenous Environmental Resources, Winnipeg. The settlement was between the Province of Alberta and the Piikani First Nation. (return to source paragraph)
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (S.C.C.) at para. 35. (return to source paragraph)
Hrudey, S.E. and E.J. Hrudey, 2004. Safe Drinking Water – Lessons from Recent Outbreaks in Affluent Nations. IWA Publishing, London. 514 pp.(return to source paragraph)
CCME. 2004. From Source to Tap: Guidance on the Multi-Barrier Approach to Safe Drinking Water. Canadian Council of Ministers of the Environment. Winnipeg. Figure 2.1, p.16. Guidance on the Multi-Barrier Approach to Safe Drinking Water Website accessed 17 September, 2006. (return to source paragraph)
WHO. 2006. Water, sanitation and hygiene links to health - Facts and figures updated November 2004. World Health Organization, Geneva. Water sanitation and hygiene links to health Website accessed 17 September, 2006. (return to source paragraph)
Health Canada. 2006. Guidelines for Canadian Drinking Water Quality.(return to source paragraph)
O'Connor, D.R. 2002. Part 2 Report of the Walkerton Inquiry: A Strategy for Safe Drinking Water. Ontario Ministry of the Attorney General. p.335. Website accessed 17 September, 2006. A Strategy for Safe Drinking Water (return to source paragraph)
CDC. 2006. Frequently asked questions. Escherichia coli O157:H7. Website accessed 17 September, 2006. Escherichia coli O157:H7 (return to source paragraph)
Office of the Auditor General. 2005. Report of the Commissioner of the Environment and Sustainable Development. Ottawa. Website accessed 17 September, 2006. Report of the Commissioner of the Environment and Sustainable Development (return to source paragraph)

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