D-5-2 Application of Municipal Responsibility for Communal Water and Sewage Services
A guide for land use planning authorities on how to decide when a municipality should take responsibility for on-site communal drinking water and sewage systems.
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(formerly appendix B)
Rationale for municipal responsibility of communal services (1.0)
The Province, particularly the Ministry of Environment and Energy (MOEE), has had considerable experience in the design, construction, operation and maintenance of communal sewage and water services. In this capacity, MOEE has usually become involved in providing communal services as a result of environmental and public health concerns in small communities where multiple private individual on-site services have malfunctioned. The Ministry also has many years of experience in the approval of private communal services. Through the Ministry’s approvals process the technology and capability of communal services to perform has been and will continue to be examined by MOEE. However, proper design and construction alone cannot guarantee the integrity of private communal services. The technology can only perform to its capability if the facility is operated and maintained properly.
It has been the experience of the Ministry and other jurisdictions that private communal services, in the absence of a responsible public authority to ensure proper operation and maintenance, have a greater likelihood to malfunction as a result of poor management practices and that private operators are less likely to have sufficient funds to remediate problems. By having a responsible public authority provide regular operational monitoring and maintenance of communal services and identify maintenance needs before malfunctions can take place, a high level of protection of the environment and public health can be assured.
Proper management through responsible operation and maintenance is one of the key advantages of communal sewage and water services over multiple individual on-site septic systems. This advantage is in large part a result of the flexibility available in the design and management of communal services to meet the collective servicing demands of the users and to meet the site specific assimilative needs to protect the environment. Flexibility offers the opportunity for communal services to be "tailored" for the specific type of development as well as for the site-specific environmental conditions (i.e., soils, groundwater, surface water, topography).
Given that proper operation and maintenance are the key factors in ensuring the long-term viability of communal services, it is recognized that a municipality, as a publicly accountable body,with permanency of place, is the appropriate authority to be responsible for ensuring the proper management of communal services.
The Ministry is particularly interested in ensuring the responsible management of communal services for residential development where residences may be permanent homes or primary residences. It has been the experience of MOEE that if private communal services fail (usually as a the result of not applying sufficient funds to maintenance), the operator and residents do not have usually have sufficient funds to fix the problem. The malfunctioning of sewage and water services is a public health and environmental threat that requires immediate action. With no funds and no immediate resolution of the forth coming from theoperator, the most appropriate response by the Ministry may be to issue an order that in effect shuts down sewage and water services until they can be repaired. In the situation of permanent residences this has the effect of making homes uninhabitable and forcing residents to vacate their homes. In the past taxpayers money has had to be used in these circumstances asa last resort to avoid people having to vacate their homes. This scenario can be prevented by proper management of communal services.
Municipalities should recognize that the responsibility to give planning approval to developments, imparts to municipalities an obligation to ensure that planning decisions represent viable development for the long-term such that residents can rely on access to sewage and water services that protect the environment and public health. Municipal responsibility through municipal ownership, operation and maintenance is the most effective means of establishing a preventative management framework within which communal services can be operated and maintained with the assurance of their long-term viability, thereby protecting the public health and environment.
Legislative authority (2.0)
- Environmental Protection Act
- Ontario Water Resources Act
- Planning Act
Applicable planning proposals (3.0)
The document shall apply to:
- Expansions to existing multi-lot/unit residential development or new multi-lot/unit residential development to be served by communal water and sewage services and/or requiring approval under Sections 52 & 53, Ontario Water Resources Act, R.S.O. 1990 and Part VIII, Environmental Protection Act, R.S.O. 1990; or
- situations to be assessed on a case-by-case basis by the MOEE Director.
Municipal responsibility for communal services (4.0)
Organized areas (4.1)
In reviewing development applications located in organized areasthat propose the uses described in Section 3.0 of this document,public communal sewage and water services will be required.
Where municipal ownership of communal services cannot be achieved, a Responsibility Agreement between the developer and the municipality will be requested by the planning authority. Such agreements will include provisions for municipal assumption of the communal services in the event of default and the provision of up-front secured funds (see Section 5.0).
The planning authority will not consider the use of Responsibility Agreements for applications proposing multilot/unit freehold residential development. For such development only municipal ownership, operation, and maintenance of communal services will be considered.
Areas without Municipal Organization (4.2)
Developments proposing to use communal services should be encouraged to locate in municipalities where there are local public authorities to assume responsibility for these services and undertake remedial action in the case of default.
As a rule, the planning authority will comment negatively on proposals for new or expanded communal services in areas without municipal organization that are to be served by the uses described in Section 3.0 of this document. The rationale for this position is that in the absence of a municipal government organization the long-term viability of communal services, andhence the protection of the environment and public health, cannot be assured.
Communal services in areas without municipal organization will only be considered in the situation where they are required to address remediation of failed individual on-site services.
Responsibility agreements (5.0)
Municipal responsibility agreements are legal agreements between a municipality and developer which stipulate the conditions under which communal services will be constructed, operated and maintained, as well as, the action to be undertaken by the municipality in the event of default. Responsibility agreements form the basis for a preventative mechanism by establishing responsibilities for proper construction, operation and maintenance management practices and by providing up-front secured funds for any remedial measures that may be necessary in the event of default. When proper management practices are in place and enforced, malfunctions arising from poor operation and maintenance can be prevented and the long-term viability of the services, and protection of the environment and public health, can be assured.
Responsibility agreements should contain financial assurance provisions which will ensure a security satisfactory to the municipality is available to the municipality for capital improvements should repair or replacement of services become necessary in the event of default and municipal assumption of the communal services.
Responsibility agreements should contain reference to Section 79(c), Environmental Protection Act, R.S.O. 1990, and Section 62, Ontario Water Resources Act, R.S.O. 1990, and a statement verifying municipal acknowledgement of the possibility that, in the event of an environmental or public health problem related to communal sewage and water services, the Director may make an order requiring the municipality to act to correct the problem. The Ontario Water Resources Act, R.S.O. 1990, s. 62, states:
- Where a Director reports in writing to the clerk of a municipality that he or she is of the opinion that it is necessary in the public interest that water works or sewage works or any part thereof be established, maintained, operated, improved, extended, enlarged, altered, repaired or replaced, it is not necessary to obtain the assent of the electors to any by-law for incurring a debt for any such purpose and the municipality shall forthwith do every act and thing in its power to implement the report of the Director. R.S.O. 1980, c. 361, s. 33 (1).
- Where the municipality fails to do every act and thing in its power to implement a report made to it under subsection (1) forthwith after receipt of the report, and the time for taking an appeal has passed or there has been final disposition of an appeal by which the report is confirmed or altered, the Director, with the approval of the Board, may direct that whatever is necessary to implement the report or the report as confirmed or altered be done at the expense of the municipality, and the Minister may recover the expense incurred in doing it, with costs, by action in a court of competent jurisdiction, as a debt due to the Crown by such municipality. R.S.O. 1980, c. 361, s. 33 (3).
In addition, responsibility agreements should generally set out the following:
- operating and maintenance standards,
- a definition of default,
- an outline of remedial action in the event of default,
- financial assurance provisions,
- registration on title of the subject property,
- easements, where required;
- right of entry and inspection;
- that when required communal services (including any interests in the land) not already owned by the municipality will be transferred to the municipality at no cost to the municipality.