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Abstract

Drinking water management in Canada is based on the intervention of provinces and territories. This contrasts with the American and European approach of uniform, legally enforced regulation at the federal or super-federal level. The Canadian model has been widely criticised for the unequal level of regulation between provinces and territories and the passive role taken by the federal government. This paper: 1) puts calls for greater centralisation in the context of Canada's social and political climate; 2) reviews government, academic and environmental advocacy literature on competing drinking water regulation paradigms; 3) evaluates strengths and weaknesses of centralised and decentralised frameworks for drinking water regulation in the context of risk management theory and practical challenges. Notably, we evaluate drinking water decision-making as one of many competing opportunities for public spending on risk abatement and posit that increasing the uniformity of drinking water quality does not necessarily increase overall equality.
Int. J. Water, Vol. X, No. Y, xxxx 1
Copyright © 200x Inderscience Enterprises Ltd.
Decentralised drinking water regulation:
risks, benefits and the hunt for equality in the
Canadian context
Ryan S.D. Calder
Harvard University,
401 Park Drive, 4th Floor West,
P.O. Box 15677, Boston, Massachusetts, 02215, USA
E-mail: ry.calder@mail.harvard.edu
Ketra A. Schmitt*
Centre for Engineering in Society,
Concordia University,
1455 de Maisonneuve Boulevard West,
Montreal, Quebec, H3G 1M8, Canada
E-mail: ketra.schmitt@concordia.ca
*Corresponding author
Abstract: Drinking water management in Canada is based on the intervention
of provinces and territories. This contrasts with the American and European
approach of uniform, legally enforced regulation at the federal or super-federal
level. The Canadian model has been widely criticised for the unequal level of
regulation between provinces and territories and the passive role taken by the
federal government. This paper: 1) puts calls for greater centralisation in the
context of Canada’s social and political climate; 2) reviews government,
academic and environmental advocacy literature on competing drinking water
regulation paradigms; 3) evaluates strengths and weaknesses of centralised and
decentralised frameworks for drinking water regulation in the context of risk
management theory and practical challenges. Notably, we evaluate drinking
water decision-making as one of many competing opportunities for public
spending on risk abatement and posit that increasing the uniformity of drinking
water quality does not necessarily increase overall equality.
Keywords: decentralisation; drinking water; environmental advocacy;
environmental regulation; federalism; risk analysis; Canadian regionalism.
Reference to this paper should be made as follows: Calder, R.S.D. and
Schmitt, K.A. (xxxx) ‘Decentralised drinking water regulation: risks, benefits
and the hunt for equality in the Canadian context’, Int. J. Water, Vol. X, No. Y,
pp.xxx–xxx.
Biographical notes: Ryan S.D. Calder is a Civil Engineer working towards a
doctorate at Harvard University. His work centres on water resources and
human health risk modelling. Before his doctorate, he worked in environmental
consulting, primarily on industrial and stormwater water quality modelling and
management.
Calder, RSD; Schmitt, KA (2015). "Decentralised drinking water regulation: risks, benefits and
the hunt for equality in the Canadian context" in Int. J. Water, vol. 9 (2), pp. 178-193
2 R.S.D. Calder and K.A. Schmitt
Ketra A. Schmitt is an Assistant Professor in the Centre for Engineering in
Society at Concordia University. Her research focuses on systems risk and
public policy, primarily on questions of human health and the environment.
Prior to joining the faculty at Concordia, she worked as a Research Scientist at
Battelle Memorial Institute.
1 Introduction
A series of outbreaks in Canadian public water systems in the early 2000s has made
drinking water quality an important topic in public discourse. Although unsafe drinking
water has usually been a topic connected to the developing world, the widely publicised
Walkterton, North Battleford and Kashechewan outbreaks alerted the public that even in
Canada, clean water cannot be taken for granted. Several prominent environmental
groups have been critical of drinking water quality management in Canada (Sierra Legal
Defence Fund, 2001, 2006; Boyd, 2006; Ecojustice et al., 2006: hereafter collectively
referred to as ‘the drinking water reports’). These leading environmental groups focus on
the chronically poor quality of First Nations water supplies, the inequality of drinking
water standards among provinces and territories and, notably, the level of regulation of
chemical contaminants in Canada versus other countries. They conclude variously that
the federal government is not sufficiently involved in drinking water management, that
Canada’s decentralised regulatory model is inequitable and jeopardises the health of its
citizens and that the level of regulation in Canada is below that of other developed
countries.
In this paper, we:
1 put calls for greater centralisation in the context of Canada’s unique social and
political climate
2 review government, academic and environmental advocacy literature on competing
drinking water regulation paradigms
3 evaluate strengths and weaknesses of centralised and decentralised frameworks for
drinking water regulation in the context of risk management theory and practical
challenges in the Canadian context.
This paper is the first to examine the division of responsibility for drinking water quality
in Canada in the context of total risk abatement including the risk represented by
chemical contaminants versus other opportunities for spending. It is also the first
academic paper to address the specific claims of environmental groups with respect to
greater centralisation. We close with a summary of the advantages and disadvantages of
both systems and suggestions to improve the current decentralised framework.
2 Background
The official policy of the federal government with respect to drinking water is known as
the ‘multi-barrier approach’ (e.g., Canadian Council of Ministers of the Environment,
2004; Health Canada, 2010) and aims to ensure access to safe drinking water
Decentralised drinking water regulation 3
through a system of regulation, monitoring, treatment and management. The Federal-
Provincial-Territorial Committee on Drinking Water operates under Health Canada and
publishes non-binding guidelines for drinking water quality, known as ‘maximum
allowable concentrations (MAC)’, as well as related technical and toxicological support
documents, guidelines for good practice, research reports, and other general information.
Also, the federal government is responsible for drinking water quality on federal lands,
including First Nations reserves.
Drinking water quality management can be roughly divided into two branches:
1 strategies to protect against short-term outbreaks, primarily attributable to spikes in
microbiological activity in water supplies
2 management of long-term risks, usually associated with chronic trace chemical
contamination.
The principles governing the management of short-term risks are relatively few and well
understood, and water quality goals vary little among industrialised countries. In contrast,
long-term risks are managed by setting maximum allowable levels of contamination by
various chemicals. Regulatory agencies determine the level of exposure that is safe by
consulting toxicological data and balance these considerations with the cost and potential
benefit of regulation. Extensive toxicological research, exposure characterisations and
cost-benefit analysis govern the final numerical value that is assigned to these
contaminants. Competing opportunities for public investment, frequency of contaminant
occurrence and other local factors play important roles in regulatory decision-making that
create potentially large differences in regulatory limits. Notably, the intersection of these
two branches – balancing short-term risks from microbiological outbreak against
long-term risks from disinfection byproducts – is a widely discussed problem with large
uncertainties that prevent the generalisation of a best strategy (e.g., Havelaar et al., 2000;
Hrudey, 2009).
Almost all known cases of illness and death due to drinking water contamination are
attributable to breakdowns in the processes that are supposed to ensure that water is not
contaminated by pathogens. Conversely, illness and death due to chemical contamination
are extremely hard to trace back to drinking water on an individual level. This is due to
the very small numbers of people that typically get sick, the long exposure periods that
are typically necessary to cause a health response in exposed populations and the fact that
the resulting diseases (notably cancer) cannot be categorised on an individual level
according to cause.
3 Literature review
In 2005, the Office of the Auditor General of Canada (OAGC) undertook two audits of
federal engagement in drinking water quality, one with respect to First Nations reserves
(OAGC, 2005a) and one with respect to all other obligations and functions (OAGC,
2005b). Most opportunities for improvement highlighted by the audits pertained to
ensuring competent operation of small systems, adequate testing and sufficient funding,
especially in First Nations reserves. One finding criticised the pace at which the federal
Drinking Water Guidelines (that primarily pertain to chemical contaminants) are updated
and developed. As of its 2009 report, the OAGC considers the federal government to
4 R.S.D. Calder and K.A. Schmitt
have ‘made satisfactory progress’ with respect to the 2005 evaluation and noted the
implementation of a process to improve the pace with which chemical contaminants are
evaluated (OAGC, 2009). A search of the federal government documentation reveals that
the vast majority of publications fall into the following categories: outlines of upcoming
research needs and identification of priority areas; resources for well-water users;
conclusions of environmental assessments; technical information on select contaminants;
summaries of international development initiatives; explanatory scientific material for the
public; reviews of international commissions and agreements; and resources for
agricultural workers.
The environmental geography literature is rich with study and perspectives on overall
water governance in Canada (e.g., Bakker, 2002; de Loë et al., 2007). This body of
literature focuses on source water management and responsibility with respect to the
institutional, legal, geographic, economic, social and environmental challenges that face
decision-makers. Academic literature on drinking water safety focuses heavily on control
of pathogenic contamination and effective operation of municipal treatment facilities
(e.g., Hrudey and Hrudey, 2004; Hrudey et al., 2006; Schuster et al., 2005) and source-
water protection (e.g., Davies and Mazumder, 2003) as opposed to risk management of
chemical contaminants or the structure of drinking water regulations across jurisdictions.
Cohen (2012) has explored (and questioned the basis of) the rescaling of water
governance to the watershed level in Canada. Practical policy analyses in the context of
drinking water are typically confined to the current context of provincial and territorial
responsibility (as in McMullan and Eyles, 1999). One paper however identifies several
potential shortcomings in the regulatory mechanisms intended to ensure water quality
from the perspective of environmental law (Pardy, 2004). Hill et al. (2008) wrote a paper
specifically addressing the lack of literature on Canada’s unique, highly decentralised
water regulatory model. While this article was not specific to drinking water regulation,
the authors inventoried the drinking water management practices of each province and
territory and put Canada in the context of the primary scholarly arguments for and against
centralisation of environmental regulation. Bakker and Cook (2011) commented on
possible weaknesses of decentralisation in the context of planning for climate change and
add to commentary to the effect that decentralisation may exacerbate interregional
inequalities.
Environmental advocacy groups have uniformly called for greater centralisation of
drinking water management (Sierra Legal Defence Fund, 2001, 2006; Boyd, 2006;
Ecojustice et al., 2006). Each of these reports describes the current state of drinking water
in Canada as unacceptable and criticises the nature and extent of the involvement of the
federal government. They describe the current regulatory framework as a ‘patchwork’ of
inequitable rules for drinking water management whereby some Canadians are protected
by more stringent rules than others. The US and the European Union, as they point out,
have adopted federally (or, in the case of the EU, super-federally) mandated drinking
water quality guidelines that ensure consistent standards across their respective
territories. Claims of inadequate federal intervention have been based on the numerical
value of MAC. One of the drinking water reports points out that Canada’s guidelines are
very often less stringent than those of the USA, Australia or even the World Health
Organization (WHO) (Boyd, 2006). These reports are interesting because the major part
of both the authorship and readership fall outside the limits of mainstream academic and
government research on drinking water management. In the following sections we
establish and draw on them as examples of the preoccupations of an informed but non-
Decentralised drinking water regulation 5
expert public. This review of the literature highlights that environmental advocacy groups
are much more concerned with the management and regulation of chemical contaminants
than authors in academia or government. Also, noteworthy is the relatively strong weight
put on numerical quality values versus other management strategies (e.g., monitoring,
source protection) or even real quality outcomes.
Our literature review did not uncover any analysis that either examines drinking water
risk in the context of competing opportunities for spending or questions the policy
objective of equalising water quality across regions.
4 Findings
4.1 Perceptions of risk and inequality in decentralised regulation
In the literature review, we established that calls for greater centralisation are much more
urgent among commentators in environmental justice than among drinking water
researchers. Here, we offer some context for this from the literature on risk perception
and Canadian moral valuations.
The resonance that drinking water management failures have had with the public is
consistent with research in risk perception. Pilisuk et al. (1987) found that drinking water
tops the list of public concern for technological hazards with 79.1% of respondents
identifying as ‘very concerned’ and a further 15.1 ‘somewhat concerned’. For
comparison, 54.9% of respondents in the Pilisuk study described themselves as ‘very
concerned’ about nuclear war. These numbers are likely to be even higher in the wake of
widely reported drinking water contamination. Indeed, concerns over abstract risks in
drinking water are at the surface of the popular consciousness and may be easily triggered
by a perception of lax protection of water resources supported by easily relatable
examples of regulatory failures.
As is generally the case (Slovic and Weber, 2002), it has been extreme, isolated
events like the outbreak in Walkerton, Ontario that have caused alarm and sparked the
public’s interest in safe drinking water. The outbreak in Walkerton was responsible for
over 2,000 illnesses and seven deaths in a small community (O’Connor, 2002). However,
this accounted for less than 3% of the total illnesses and less than 8% of the total deaths
thought to be attributable to contaminated drinking water in Canada every year (Edge
et al., 2008). The fact that the majority of drinking water related risk occurred outside of
this well publicised event demonstrates that large populations stand to benefit from a
dialogue on the improved management of drinking water, even though this dialogue is
moved along by low-probability, high-impact events like the outbreak in Walkerton.
Regional egalitarianism is a defining characteristic of the Canadian social context.
Public polls indicate that Canadians are highly supportive of egalitarianism, that is, that
income and opportunity should be independent of ability (Aalberg, 2003). Canada’s
system of equalisation payments is a widely recognised symbol of inter-regional
egalitarianism, in place since the 1950s and entrenched in the 1982 constitution, aiming
to harmonise the quality of social services between richer and poorer provinces (Kellock
and LeRoy, 2007; Kasoff and Drennen, 2008). These expectations of an egalitarianism
that transcends economic realities are almost universal and, particularly in discussions of
public health, unquestioned, with one study describing it as the ‘mantra’ of the Canadian
context (Giacomini et al., 2004). Indeed, regionalism, as important as national unity and
6 R.S.D. Calder and K.A. Schmitt
social welfare, has dominated political discourse and conceptions of representativeness
and equality since Confederation. This contrasts starkly with, for example, the USA,
where sex, race and ideology are the prevailing politically relevant categories
(Malcolmson and Myers, 2009). Bird and Vaillancourt (2001) flesh out the fiscal
arrangements within Canada designed to ensure universal access to social services
between richer and poorer parts of the country and argue, however, that such
arrangements only perpetuate regional economic inequalities, notably by distorting
incentives for economic development.
The combination of risk perception with regional egalitarianism contextualises both
the resonance of drinking water management with the informed public (e.g., the
readership of the drinking water reports) and the default policy objectives that have
motivated discourse thus far (i.e., expectations of interregional equality). We further
probe this issue in Section 4.3 in light of evidence and theory as to whether centralisation
improves equity and/or health outcomes.
4.2 The weight of law and expectations of cost-benefit analysis
This paper evaluates the strengths and weaknesses of centralised versus decentralised
responsibility for drinking water quality. In this section, we describe the evidence for the
potential responsiveness of the two management strategies to emerging contaminants,
their ability to implement protective regulation and the scrutiny that any proposed
regulations would be expected to face.
The federal government is currently able to post drinking water guideline quality
values and standards for good practice at its own discretion, with little justification of the
associated costs: it is up to an individual province to adopt (or not) the federal guidelines
(or other standards) if it determines the benefits justify the costs. As we have seen,
criticisms of the federal government’s role in drinking water quality cite its failure to be
sufficiently engaged in protecting public health. However, if federal guidelines gained
legal effect, we would anticipate a surge of criticism and demands for proof that expected
benefits absolutely justify costs associated with meeting the guideline values. While
Canadians would gain a common baseline water quality, we anticipate that this baseline
would be designed to withstand cost-benefit analysis; a framework in many ways
incompatible with precautionary regulation. It is instructive to turn to the example of the
USA, whose centralised drinking water regulatory system resembles the desires of the
critics of the Canadian federal government’s regulatory approach to drinking water.
The US EPA regulates drinking water quality at the federal level on the basis of the
Safe Drinking Water Act (SDWA), its amendments and other guidelines, such as
executive orders treating the role of cost-benefit analysis within regulatory agencies.
Since the regulations passed by EPA require mandatory compliance of all drinking water
systems in the country, prior to regulation, EPA is required to demonstrate that a drinking
water contaminant poses a threat to human health, that it occurs with frequency and at
levels of concern to public health, and that regulation represents a meaningful
opportunity for health risk reductions. Since 1998, EPA has made several regulatory
determinations on compounds it has selected for evaluation from its Contaminant
Candidate Lists (CCL), the system by which it identifies and screens possible new targets
for regulation. In total, 17 chemical contaminants have undergone review in an effort to
assess whether health benefits would justify regulatory costs. Of these 17, six are thought
to be present in the drinking water of at least one million Americans in levels that exceed
Decentralised drinking water regulation 7
EPAs health reference level, while another four are thought to occur above the health
reference level in the drinking water of between 100,000 and one million Americans.
Still, EPA has decided against regulation for all 17 contaminants it has evaluated (Federal
Register 2003 and 2008). While it has taken the EPA ten years to decide against
regulation of 17 emerging drinking water contaminants, some of which affect large
populations across the USA, Health Canada has adopted guideline values for four of
these, along with another six identified as candidates for regulation by EPA, but still
pending evaluation. As always, it is up to provinces and territories to opt in to these
standards. The slow pace at which drinking water regulation is decided upon or against in
the USA speaks mainly to the retarding effect of cost-benefit analysis, where reaction to a
risk is delayed until EPA can justify why or why not it is appropriate to enforce new
standards of water quality on publicly funded water systems across the country. The
difficulty of this task is compounded by the nationwide variation in the relationship
between costs and benefit of a hazard and a potential regulation, and the inherently
subjective exercise of deciding which it is worthwhile to regulate, and at what levels.
Proponents of federal regulation tend to encourage allowing provinces and territories
to enact stricter rules as they deem appropriate, so that the federal standards serve only as
a baseline. This is technically the case in the USA, where individual states are free to
regulate any contaminants as long as the regulations are not lower than those
promulgated by EPA. However, only a minority of states (California, New Jersey and
New York – representing about 20% of the US population) have numerical drinking
water standards more stringent than those of EPA. The additional coverage provided by
these states still leaves the majority of highly exposed populations without legal
protection at the state level. Thus, while the goal of federal and state protection is to
provide public safety, they are overlooked by both levels instead of being protected by
both levels. To cite but one example, an estimated 10,000 to 781,000 Americans, almost
entirely in states lacking sub-national drinking water regulation, are exposed to
hexachlorobutadiene in their drinking water at levels above the health reference level
(US EPA, 2003). US EPA opted not to regulate hexachlorobutadiene because exposed
populations were still too rare to justify a national rule.
We can only speculate on how Canadian federal agencies would have reacted if the
stakes were as they are in the USA, that is, with federal regulations having the force of
law. Still, it is worth noting some similarities that may justify extrapolation to the
Canadian context. Like the USA, Canada has a well-developed, mandatory regulatory
impact assessment (RIA) process that is embedded in the regulatory culture (Volkery,
2004). The basic requirements of new regulations were reaffirmed most recently in 1999
and invoke a separate Environmental Assessment of Policy (EAP) and, burdensomely, a
demonstration that the benefits outweigh the costs (Government of Canada, 2000). This
language is more severe than the analogous US directives for cost-benefit analysis; since
1993 only a demonstration that benefits of proposed regulations justify costs is required
(Morgenstern, 1999). As we have seen, data on contaminant occurrence on a national
level are lacking in Canada, but we would not expect to see more homogeneous quality
than in the USA; the primary causes of water quality differences among US states are
climatic, hydrologic and demographic variations as well as regionalisation of
manufacturing and agriculture (US EPA, 1999) phenomena that define the Canadian
context as well. While a strengthened federal role might justify disengagement on the part
of provinces and territories from this expensive regulatory arena, the self-propelling
8 R.S.D. Calder and K.A. Schmitt
nature of bureaucracies might promote a dual system wherever provincial and territorial
authorities have established a drinking water regulatory system. Indeed, we might expect
a further fragmentation of the regulatory landscape as some provinces and territories
disengage entirely and others stay their course. While we have shown the requirement to
conduct cost-benefit analysis may slow responsiveness to emerging contaminants, we are
not arguing for less cost-benefit analysis or a more precautionary regulatory culture.
Indeed, increased precaution in drinking water regulation would mean some other benefit
foregone. As we will see, there are competing opportunities for risk reduction and,
without cost-benefit analysis, we would have no way of ensuring we are allocating
money rationally.
4.3 Centralisation, equity and water quality as a local issue
In this section, we compare centralised and decentralised frameworks vis-à-vis arguments
about social/economic justice and equity, introduced as priorities to Canadians in
Section 4.1.
Although drinking water regulations would become more equitable if centralised, it
might in fact be at the expense of public health even in terms of drinking water risk. In
Section 4.2, we saw that national regulations in the USA have been unfeasible partially
because it is not possible to justify mandatory intervention across the country when only
small populations would benefit, or when the benefits are uncertain. Even though states
are technically free to enforce regulations stricter than those passed by the US EPA, most
do not.
In Section 4.2, we described evidence that the pan-Canadian guidelines may be
currently more able to promote health-protective regulations because of the relatively low
burden of cost-benefit analysis. However, this advantaged is somewhat muddled by the
realities of the federal-provincial-territorial subcommittee on water quality. The
Walkerton report observed that the Subcommittee has a consensus-oriented approach and
a tendency to settle on the lowest common denominator (i.e., less protective regulations).
For example, the high guideline value for turbidity is reportedly attributable to the Yukon
being unwilling to invest in lowering turbidity and simultaneously not willing to be in
violation of the Canadian guideline values; the result is that the standard at the federal
level is higher than it would have been (O’Connor, 2002).
We therefore do not find evidence that drinking water centralisation works to better
protect health outcomes.
Conversely, removing the ability of provinces and territories to decide what level of
drinking water intervention it can afford in consideration of other opportunities for risk
reduction might in fact increase overall risk if the opportunity cost for a province or
territory to meet federally mandated drinking water standards is high. Canada would
make better use of the existing decentralised nature of its regulatory framework by basing
health guidelines on the best available science, rather than weakening them to satisfy the
interests of the provinces or territories.
In spite of the pressures facing EPA, we see that it ensures a baseline water quality to
all Americans. Indeed, greater centralisation in line with the US model would seem to
represent progress towards equity among Canadians. Advocates of increased
responsibility for drinking water regulation on the part of the federal government and a
generally more centralised regulatory system cite equity among Canadians and surer
protection of public health as the overall goals. Although centralising rules and guidelines
Decentralised drinking water regulation 9
for drinking water quality management would help harmonise the risk attributed to
drinking water contaminants, it might in some instances be at the expense of overall
public health or wellbeing. Widely publicised debates over the regulation of arsenic and
perchlorate in the USA exemplify the great difficulty of calculating trade-offs between
cost factors and protectiveness of public health on a national level. This is particularly
true when detection ability allows for quantification of compounds at levels lower than
the dose at which a health response has been measured or at levels unachievable by
conventional treatment technologies (Calder and Schmitt, 2010).
Risk from drinking water contaminants, whether of short-term outbreaks or long-term
cancer incidence, is but one part of a greater risk profile that influences public policy
decisions. Standardisation of water quality standards across Canada is in effect a move
towards risk equity, but in terms of drinking water risk alone (and this equitable risk is
not necessarily lower). The greater picture of risk is very regional, varying even from one
Canadian province or territory to another. For example, the car accident death rate per
100,000 people between 2000 and 2004 was 7.0 in Ontario, but 16.4 in the Yukon
Territory (Ramage-Morin, 2008). Obesity rates in 2004 varied between 18% for men and
20% for women in British Columbia and 33% for men and 35% for women in
Newfoundland and Labrador (Tjepkema, 2005). Heavy drinking is more prevalent in
Atlantic Provinces and in the Territories than elsewhere in Canada (Public Health Agency
of Canada, 2008). Probably, risks attributable to drinking water quality vary nationally as
well, though there has been no comprehensive study on the subject. Regardless, it is
certain that drinking water represents relatively greater risk in some jurisdictions than in
others. The variability of these other risks means that drinking water risks do not rank
consistently in regulatory priorities from one jurisdiction to the next. These other risks
may also warrant public investment. Therefore, the Canadian model of decentralised
regulation allows provinces and territories to decide on risk reduction priorities. Spending
to diffuse drinking water risk, while perhaps a good decision for one area, might be a bad
decision for another, if the opportunity cost is high. This is the flipside of the issue we
explored earlier: that centralised regulation may tend to default against regulation where
it is not justifiable everywhere.
4.4 Research and decision-making: splitting fixed costs
The research and decision-making effort in regulation represents substantial costs that do
not necessarily scale down. A fully decentralised model with every province and territory
carrying out the research and analyses in parallel would be unfeasibly inefficient. In this
respect, centralised systems clearly have the advantage of efficiency. In the interest of
improving the current decentralised model, we ask in this section if there is a way to pool
efforts that might be duplicative (e.g., health risk valuation, assessment of treatment
technologies), while retaining the possible advantages of decentralised decision-making.
The federal government might make a meaningful contribution to the protection of
public health if it aimed more explicitly to facilitate decision-making on the part of
provinces and territories. Information on risks, costs and benefits could be used by
subnational regulators to determine the appropriate level of intervention in consideration
of other opportunities for risk reduction. This would serve the dual purpose of promoting
the protection of localised highly exposed populations where a centralised regulation
might be unwarranted (as in the case of emerging contaminants not regulated by EPA)
10 R.S.D. Calder and K.A. Schmitt
and accounting for the variable opportunity cost of drinking water risk reduction. Under
this structure, for example, Yukon and Ontario could use the same data to justify
respectively permissive and stringent standards for turbidity, a drinking water
characteristic that is apparently a smaller spending priority in Yukon. The cost-benefit
analysis would be done once, at the federal level, and the results would serve as the basis
for provinces and territories to make rational decisions. Ontario already has binding
regulations for a number of contaminants not regulated, for example, in the USA, but it is
not clear that the information on costs and benefits in the Ontarian context is available for
other provinces and territories that might benefit from it.
Arguments for decentralisation of drinking water regulation in Canada depend on the
premise that provinces and territories would invest rationally in public health initiatives if
the federal government did not intervene. That is, an argument in favour of
decentralisation is persuasive if centralisation of drinking water regulation would deprive
Canadian provinces and territories of opportunities to address bigger public health
hazards with the funds they are instead made to allocate to drinking water. This is
principally because of the entrenched role of government in Canada as a reallocator of
resources and decision-maker in the interest of equalising public health outcomes. For
example, greater public support in Canada than in the USA for regulation of tobacco
products (Studlar, 2002) points to differences in public expectations of regulators’
intervention in matters of overlapping individual and public health. Extrapolating from
the example of tobacco control, we might expect regulators in the USA to be less
constrained by a public expectation that they would be actively involved in risk
management initiatives other than drinking water management.
4.5 Special considerations for Native communities
Drinking water management in Native communities poses unique challenges, the most
obvious of which is their status outside the scope of provincial responsibility. Because
provincial governments are not involved in negotiations with or management of Native
lands, and the federal government is not otherwise engaged in enforcement of drinking
water standards, the systems that ensure the safety of drinking water for the majority of
Canadians are not applicable to residents of these communities. However, the
jurisdictional challenges facing decision-makers are more complicated than optimising
allocation of responsibility; chronic water quality problems in native communities are
compounded by the challenges of ensuring access to safe water without violating native
rights to self-government. We note also that Native communities are distinct from the rest
of Canada in that basic access to safe drinking water free from pathogenic contamination
remains elusive. Here, debate on regulation of trace chemical contaminants is much less
important than effective operational procedures for detecting and mitigating risk of
short-term illness and death, a peculiarity in an industrialised country. In 1995, for
example, Health Canada and Indian and Native Affairs Canada1 (INAC) identified that
one quarter of the water systems in First Nations communities ‘posed potential health and
safety risks to the people they served’. In 2001, INAC found “a significant risk to the
quality or safety of drinking water in three quarters of the systems” (OAGC, 2005a).
While all parties agree there is a problem, sources differ as to the causes. The OAGC
reports that the federal government has spent nearly $2 billion on safe drinking water
initiatives in First Nations communities between 1995 and 2003 and attributes continued
difficulties to the incomplete scope and intermittent application of federal policies on safe
Decentralised drinking water regulation 11
drinking water and inadequacies in the technical expertise available to native
communities (OAGC, 2005a). As Bird and Vaillancourt (2001) point out in a more
general context of the welfare of First Nations communities, however, “federal
performance in this area is hardly an advertisement for more centralised provision of
social services”.
In Indian and Northern Affairs Canada (2006), announced an action plan to “ensure
that First Nation leaders have access to the tools and resources they need to deliver clean
water to their residents”. Tellingly, the announcement promised access to safe water via
new tools and resources rather than a right to safe water. For example, the report does not
mention a need for increased accountability on the part of water system operators or a
new regulatory or monitoring framework. INAC and Health Canada accepted all of the
OAGCs recommendations in the 2005 report with the exception of the institution of a
regulatory regime. Instead, they undertook to explore the feasibility of such a
programme, citing concerns over self-governance on the part of First Nations leaders
(OAGC, 2005a). Bill S-11, introduced in March 2010, is an effort to close what the
sponsors of the Bill refer to as a ‘regulatory gap’ and allow the governor-in-council to
give legal effect to certain types of recommendations related to drinking water on First
Nations lands on the recommendation of the Minister of Health (Parliament of Canada,
2010). As of August 2013, the Bill is in the hands of the Senate Standing Committee on
Aboriginal Peoples that has been hearing stakeholder comments since February 2011.
Thus far, comments indicate that concerns include lack of clarity on funding
responsibilities among INAC, Health Canada and Environment Canada, the lack of
provisions for funding any regulations that are eventually passed under the Act and a lack
of consultation of First Nations peoples (Council of Canadians, 2011).
It is beyond our scope to evaluate the quality or extent of the consultations INAC has
held. Still, the cost of delaying a regulation likely to improve drinking water quality
might exceed the benefits of further consultation. Indeed, the Act serves merely to
facilitate individual regulations that may be proposed at a later date and so this
groundwork is essential to move forward with specific regulations that may lead to
improved water quality imply further consultation themselves. However, as the Council
of Canadians report points out, the Act does not enshrine consultation as a waypoint to
more specific regulation.
Beyond Bill S-11, there is some evidence to show that water quality in First Nations
communities has improved in recent years. ‘High risk’ water systems, i.e., those likely to
provide unsafe water owing to major deficiencies in several operational aspects, have
decreased in number from 193 in 2006 to 49 in 2010 (Indian and Northern Affairs
Canada, 2010).
The proportion of First Nations residents considering their water as ‘somewhat safe’
or ‘very safe’ increased from 62% in 2007 to 69% in 2009 (a change significant above
the 99% level),2 although this figure remains substantially lower than the 89% of
respondents in non-First-Nations communities of similar size (Ekos Research Associates
Inc., 2009).
Still, all actors agree there is a significant disparity between drinking water quality
realities in native communities and the rest of Canada. Advances in legislation are slow
and create anxieties about lack of consultation and funding. We have seen that even with
heavy monetary investment, native communities are faced with a shortage of trained
personnel and technical ability to implement measures that arguably give ‘access’ to
12 R.S.D. Calder and K.A. Schmitt
clean water. Years of effort has led to the development of a regulatory framework that,
given the reactions of stakeholders, seems as likely to exacerbate mistrust and create
anxieties as it is to bring about improved water quality in the near future. Clearly, the
challenges faced in the First Nations context transcend the topics of water quality
management we have explored in this paper. Indeed, effective regulation and policy
decisions depend on more than science; these decisions must have the trust of all
stakeholders. Adding to historical misgivings between First Nations and the settler
population is the continued lack of transparency, as reflected, for example, in the Council
of Canadians (2011) report, an experience shared by the broader Canadian population.
4.6 Summary of findings
The Canadian drinking water regulatory system is highly decentralised. This has
produced a highly heterogeneous landscape of drinking water regulation. This paper has
shown that Canadian political sensitivities to regionalism interact with risk perceptions to
energise public opinion in favour of centralising and strengthening regulatory
intervention in drinking water.
Indeed, this paper uncovers three main impediments to a fully decentralised system:
1 regulatory research and analysis has little economy of scale, and it would be very
inefficient for these exercises to be repeated in every jurisdiction
2 because Native communities are not under provincial/territorial jurisdiction, which is
largely responsible for drinking water quality, they seem to fall through the cracks in
the system
3 the Canadian public are only likely to support decentralisation if provinces and
territories are actively allocating public funds to public health initiatives in
proportion with the magnitude of risks (if provinces and territories opt to spend less
money on drinking water risk abatement, the Canadian public are likely to demand
they use the money saved on addressing a greater public health risk).
We have however seen that decentralisation presents a theoretical benefit that is largely
borne out by the evidence: local decision-making allows different populations to tailor
spending to the local circumstances (relative risks in drinking water and between drinking
water and other priorities) and that this does not undermine ‘equity’ (in drinking water or
otherwise). Indeed, we found that the Canadian and American experiences with
centralisation have led to more permissive standards than might otherwise exist if the
risks were addressed locally.
5 Discussion
When dissenting claims of inadequate federal intervention and unequal protection are put
in the context of the public’s existing uneasiness with the quality of drinking water and a
deep cultural aversion to health inequalities, we see to what extent they are likely to
reaffirm anxieties and gain currency with an informed public. The risk perceptions that
energise public opposition to unequal drinking water standards may also explain the gap
between the foci of academic and popular literature on water governance: we have seen
that the former focuses on developing effective barriers to minimise pathogenic
Decentralised drinking water regulation 13
contamination of drinking water, whereas the latter focuses very much on standards for
chemical contaminants.
The water quality guidelines decided upon by the federal government are in effect the
result of some cost-benefit analysis. It is a value judgement produced on the basis of
national data that is not likely to be the same for every province, territory or even city. In
view of the problems liable to be caused by giving them legal effect across Canada, the
federal government might instead aim to provide the (more) neutral cost-benefit
information to enable local regulators to decide how much intervention is appropriate in
consideration of their other problems and opportunities for public investment.
Throughout our discussion, it has been clear that we could make better judgements about
water quality if we had access to better data. This is partially due to a shortage of original
research or efforts to knit existing information together, but also owed to a lack of data
availability and general government transparency. Although nothing on the federal level
is legally binding, Health Canada and associated working groups have published
considerable amounts of advisory information (e.g., non-binding standards) that is
obviously tailored to the Canadian context. However, researchers and the public have
access to very little information on the decision-making process used to inform final
federal government publications. This contrasts with EPA that publishes all supporting
documentation for its regulatory determinations and allows for reinterpretation by
researchers and other stakeholders.
Adding to the technical cost/benefit considerations that ideally underpin regulation
are political influences such as industrial lobbies, well investigated examples of which
include the regulatory sagas of vinyl chloride and lead in the USA (see Markowitz and
Rosner, 2002). Explicitly political influences on policy are however not within the scope
of this paper.
Currently, the federal government markets its intervention in water quality
management as being directly engaged with the health of Canadians. For example: “Its
mandate and expertise lies in protecting the health of all Canadians by developing the
Guidelines for Canadian Drinking Water Quality in partnership with the provinces and
territories” (Health Canada, 2009). Critics are right to question the ability of the federal
government to play this role when there is no legal mechanism enabling it to do so;
ultimately, it is up to the provinces. In this regard, the federal government might gain
legitimacy by embracing its real role as provider of information and expertise to assist
more local levels of government that are actually legally responsible for drinking water
quality to make rational decisions. It therefore seems that the best use of federal resources
would be to ensure access to safe water where it is the responsible level of government
and where it has neglected this responsibility, rather than repeating the work of provincial
and territorial regulators.
Cost-benefit and contaminant occurrence data are currently very limited for
regulations and guidelines developed in Canada, perhaps because guidelines developed at
the federal level do not have the force of law. This is echoed by other researchers (e.g.,
Bakker and Cook, 2011). However, guideline values established at the federal level can
be influenced by members of the federal-provincial-territorial subcommittee who want to
strike a balance between a health-based standard and cost considerations (O’Connor,
2002). Therefore, federal entities intervening in drinking water regulation are subject to
the pitfalls of managing drinking water on a national level but are not affected by
requirements for transparency and do not facilitate rational decision-making on a more
14 R.S.D. Calder and K.A. Schmitt
local level. Politics always plays a role in determining the outcomes of legally binding
regulation. Here, however, it is distorting the scientific evaluations made at the federal
level that are at the basis of eventual regulations on the provincial/territorial level. This is
perhaps the most serious barrier to efficient allocation of resources in drinking water risk
abatement and an invitation to criticisms from commentators on environmental and
health policy.
Putting the interactions of all actors in the context of risk management theory and
practice has led to specific conclusions on the optimal division of responsibility and on
strategies to optimise the allocation of resources. Decentralised management of drinking
regulation, especially for chemical contaminants, is an inherently more logical approach
than centralisation. However, the transaction costs of this system may prove prohibitive if
scientific and economic analyses are not centralised, depoliticised and made much more
transparent. Furthermore, resulting regional water quality inequalities are likely to be a
politically unviable consequence unless provincial/territorial policy-makers can
demonstrate any savings on drinking water investment are being used to tackle bigger
risks elsewhere. Finally, the federal government should embrace its role as a facilitator of
decision-making on a local level if it is to respond to legitimate criticisms and promote
good governance of drinking water well into the 21st century.
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Notes
1 As of May 2011, this department is known as Aboriginal Affairs and Northern Development.
2 Survey results are normal distributions centred at means equal to the point estimate of the
outcome (69% in 2009 and 62% in 2007). The standard deviations of both normal
distributions (1.27 in 2009 and 1.89 in 2007) produce 95% of the probability density within
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