Examining the emerging environmental protection policy convergence in the Ontario municipal drinking water, wastewater and stormwater sectors

This study examines the governance approaches applying to Ontario’s municipal water management activities and observes an environmental policy convergence occurring in two different dimensions: across the drinking water, wastewater, and stormwater aspects of municipal water activities with respect to governance approaches, and federal, provincial, and municipal governments in terms of drawing on private management system standards to supplement conventional regulatory requirements. This study supports the proposition that municipal water governance approaches are developed within a context that includes both state-based requirements and non-state marketoriented standards such as ISO 9001 and ISO 14001, and this context facilitates convergence and calibration between and among state-based and private governance at the public policy level adopted by municipalities. In addition to increasing use of private environmental management systems (EMSs) by Ontario municipalities as methods of addressing operational challenges they face, Canadian courts are also referencing EMS in their decisions. This article suggests that EMS standards such as ISO 14001 can be useful supplements to state regulations, and this supplementing would not be characterized as supplanting or substituting conventional state-based regulation, but rather as a form of practical and conceptual ‘bridge’ between public and private forms of regulation. This is an Open Access article distributed under the terms of the Creative Commons Attribution Licence (CC BY 4.0), which permits copying, adaptation and redistribution, provided the original work is properly cited (http://creativecommons.org/licenses/by/4.0/). doi: 10.2166/wqrj.2017.043 s://iwaponline.com/wqrj/article-pdf/52/3/209/380033/wqrjc0520209.pdf Edgar Tovilla (corresponding author) Environmental Applied Science and Management, Ryerson University, Toronto, ON, Canada E-mail: etovilla@ryerson.ca Kernaghan Webb Department of Law and Business, Ted Rogers School of Management, Ryerson University, Toronto, ON, Canada


INTRODUCTION
In May 2000, an estimated 2,300 people became seriously ill and seven died from exposure to microbially-contaminated drinking water in Walkerton, Ontario, a town of approximately 5,000 people located northwest of Toronto (Hrudey et al. ). The town's water supply came from groundwater wells, which became contaminated with Escherichia coli (E. coli) by surface water runoff from adjacent farmland (Abouchar ). Management System (DWQMS); however, while the statebased drinking water governance structure was re-formulated and modernized to incorporate a management system approach, in the period immediately following the Walkerton tragedy, the wastewater and stormwater sectors was not similarly adjusted, remaining with basically the same conventional, minimalistic governance structure established in the 1950s. We observe that ten years after the Walkerton tragedy and the new drinking water legislation, there began to be policy convergence, bringing the municipal wastewater and stormwater governance structure into alignment with the risk-based management system approach already adopted in the drinking water sector.
This study focuses specifically on the use of private voluntary standards and certification for EMS and quality management systems (QMS) that are particularly relevant to municipal water, wastewater, and stormwater systems, specifically the ISO 9001 (QMS) and ISO 14001 (environmental management system (EMS)), two high profile standards of the International Organization for Standardization (ISO). While the standard ISO 26000, for corporate (and other organizational) social responsibility systems (CSRS), is also potentially relevant to municipalities, it is a guidance standard, not capable of certification like ISO 9001 and ISO 14001, and is only mentioned here to note that organizations can undertake societally beneficial voluntary actions above and beyond quality and environmental management (Webb a, b). The provincially required DWQMS, which was mandated for municipalities in 2006, as a response to the Walkerton Inquiry (O'Connor b), is founded on a quality management approach similar to ISO 9001 (see Provincial government role section). The recently updated ISO 14001 (a, b), incorporates eco-design and life cycle assessment, like ISO 26000, and places an emphasis on the organization's ability to influence society and a full range of stakeholders. Figure 1 shows the author's illustration for the interconnected relationship of these standards in the context of drinking water quality and wastewater/stormwater sectors.
Recent federal and provincial legislation specifically refers to EMS standards, the ISO 14001 certification or elements of ISO 14001. Federal and provincial pollution control legislation, and enforcement actions pursuant to this legislation, against corporations, municipalities, and other organizations, draws primarily on a strict liability offence model, with a due diligence defense (Webb & Mor-rison ; Saxe ), by which accused organizations can escape liability by establishing that they had in place management systems that demonstrate they exercised reasonable care, and as such, they provide an additional motivation for municipalities to adopt a structured EMS similar to that in international standards (such as ISO 14001). For municipalities that have systematically implemented an EMS in accordance with the terms of ISO 14001, such a standard may decrease the likelihood of a violation taking place, and where violations do occur, it may allow the municipality to raise a due diligence defense. In this way, the law and the courts are providing another impetus for policy convergence in the form of a legal requirement that municipalities comply with a formal EMS such as ISO 14001.
In this article we contend that Ontario municipal water governance approaches have been developed against a backdrop of state-based requirements and private regulatory initiatives, and this has led to a certain amount of calibration and convergence between state-based and private governance at the public policy level in terms of ideas and instruments (modalities) adopted by the municipalities.
Based on a review of available information discussed in this article, the suggestion made here is that adoption of EMS approaches codified in ISO 14001, applied in the context of Ontario's municipal wastewater and stormwater sectors, can be expected to have a neutral or positive effect on operational performance. This would be similar from the reported effect of the DWQMS: according to the Ontario's drinking water Chief Drinking Water Inspector, Ontario's drinking water 'continues to be among the safest and best protected in the world' (MOECC ). The report notes that: • 99.8% of drinking water tests from municipal residential water systems met Ontario's rigorous health-based standards; • 74% of all municipal residential drinking water systems achieved a 100% inspection ratinga 7% increase since 2014-2015; and • 99.6% of drinking water tests from systems serving designated facilities such as daycares, schools, or healthcare centres met Ontario's drinking water quality standards (MOECC ).
For municipal wastewater and stormwater sectors, while there is at this time no legislated government requirement that EMS standards be adopted, there is a critical mass of knowledge, systems infrastructure, and experience, generated after ten years of DWQMS, that contributes to municipalities gearing towards adopting specific elements of EMS. Scholars have suggested that where a critical mass of private sector, government and other actors, instruments, institutions, and processes has sufficient density, it can support widespread adoption and use of a particular practice (Webb et al. ). Based on a review of current municipal activity in Ontario, we found that some Ontario municipalities are also voluntarily adopting EMS-related practices to address ecodesign, climate change, and life cycle assessment (in the form of asset management plans) as part of their water management approaches.
Recent research concerning government and industry participation in sponsored voluntary environmental programs has found that both government and industry recognize the importance of the brand value of EMS in part because of the influence of their stakeholders on their business and environmental practices (Darnall et al. ).
Also, current environmental management literature suggests that increasing adoption of voluntary standards (such as ISO 14001) provides a variety of potential benefits such as relief from the need for certain onerous command and control measures, enhanced cost efficiency, improved stakeholder relations, among other things (Henriques & Sadorsky ). Others have concluded that organizations are motivated to adopt such standards to increase their internal efficiency and external legitimacy, as well as to creating shareholder value (Hart & Milstein ).
The analysis in this study is structured around two different convergency dimensions: the convergence between public and private governance approaches; and the convergence among the three levels of government towards the use of management system standards. This article suggests that the increasing adoption by municipalities of private management systems standards is creating a form of conceptual 'bridge' between public and private forms of regulation. The focus of this study is on examination of the environmental protection policy convergence in the municipal waters sectors by adopting management systems, and not on the implementation of these management systems. In other words, we are focusing on the rule instrument and overall governance context, while recognizing that implementation, and the factors affecting implementation, such as organizational structure and resistance to change, are also important areas for study (Ivanova et al. ).
For this article, in order to understand state and private forms of regulation, Webb's definition of rule instruments is adopted (Webb ); he indicates that rule instruments articulate objective criteria designed to influence or control behaviour, that allow for evaluation of whether an entity or an activity is or is not in compliance with the criteria (Webb ). Following this definition, Webb notes that rule instruments include state-based laws and regulations, intergovernmental arrangements, as well as non-state (private) voluntary standards, certification programs, and self-regulatory codes (Webb ). The term private sector governance is adopted from Webb (), and is intended here to encompass the 'full range of ways that organizations not directly affiliated with the State attempt to organize their affairs'.
We discuss both private sector governance approaches and state-based approaches in subsequent sections of this article.
The article first discusses private governance approaches and their relevance to municipal water systems, and then examines the existing state-based regulatory framework for municipal water, wastewater and stormwater sectors in Ontario. This is followed by a discussion of policy convergence as applied to Ontario municipal water governance. Finally, conclusions are provided.

PRIVATE GOVERNANCE APPROACHES
Public opinion, as well as the pressure of environmental  www.iso.org/the-iso-survey.html). A chronological description of the history of ISO 14001 is included in Appendix B, available with the online version of this paper.
We have already noted that Ontario has adopted a QMS approach for municipal drinking water (MDW) systems (i.e. In the Canadian context, the 1991 case of R. v. Bata Industries was an important example of judicial recognition for the value of EMSs (Greenbaum & Wellington ). The R. v. Bata Industries case was a legally significant and highly influential case dealing with the concept of the application of the due diligence defence in an environmental context, and directors' liability (Greenbaum & Wellington ). • Greater involvement of the leadership team in the management system to ensure the whole organization will be motivated towards the organization's goals and objectives.
• Improved risk management and environmental performance to protect the environment and reduce the risk of regulatory fines.
• A new approach applicable to all new ISO management systems standards to integrate multiple, integrated management systems.
• Increased focus on lifecycle perspective rather than lifecycle assessment, with emphasis on the supply chain, looking at the stages immediately adjacent and either side of the organization operations and the potential for influence.
Building on the ISO 14001 established in 1996, and privatization schemes for the operation and management of municipal assets in the 1990s, it provided an increased impetus for adopting EMS for the water sectors. Private companies seeking to operate municipal water systems sought ISO 14001 certifications, as a way of signalling environmental responsibility and thereby securing an advantage over other competitors (Halley & Boiral ). Within this context, primarily in the UK and France, but also in the Americas: 'it was a decade of experimentation with asset sales' (Brubaker ). Currently, public tenders for operation of water operations may include contractual requirements for EMS and specifically ISO 14001 (e.g. Halifax Water ), and some federal agencies also have it as an operational requirement (e.g. Canadian Nuclear Safety Commission -REGDOC 2.9.1. Environmental Protection Policy (Online) https://cnsc-ccsn.gc.ca/eng/acts-and-regulations/regulatory-documents/published/html/regdoc2-9-1/ index.cfm). The use of contracts by organizations in order to impose codes and standards on their partners is common (Webb ).

STATE-BASED REGULATORY FRAMEWORK
In Canada, the regulatory governance of the water, wastewater, and stormwater systems is shared by the three levels of government. For the most part, the primary constitutional responsibility for waters within a province lies with the province (ECCC ), but the federal government and municipal government also play important roles. At the behest of provincial governments, municipal governments are given the mandate of developing and implementing the water infrastructure needed to satisfy urban and rural planning demands, as well as ensuring that their approach is in compliance with provincial requirements. This often means that municipalities adopt industry best management practices (BMPs), and these practices may go above and beyond minimum regulated requirements. Provincial governments are responsible for regulation of the water systems and operations. Before reviewing key aspects of the provincial regulatory framework, we will first examine the federal role.

Federal government role
The government of Canada has the constitutional responsibility for conserving and protecting oceans, fisheries, as well as responsibility for issues associated with navigation and for inter-governmental and international affairs. Typically, federal environmental laws are designed to apply to the nation as a whole. There are numerous federal statutes that govern aspects of environmental protection, including the Canadian Environmental Protection Act, 1999 (CEPA), the Canada Water Act, the Fisheries Act, the Environmental  In response to the Walkerton tragedy (2000)  Lack of oversight by the owner Lack of source water protection The Walkerton water system was operated by a public utilities commission (PUC), a third party contracted by the municipality. The municipality as owner of the assets and financially responsible for capital management, had little knowledge of operations and challenges. They had a hands-off approach The well that caused the tragedy was vulnerable to surface water pollution from adjacent farms; compounded with the highly fractured bedrock and water penetration through rock fissures. PUC did not implement any explicit measures for source water protection; moreover, the municipality did not have the legal power to control land use on the adjacent farm

Operational/Technological Regulatory
Lack of water quality data management Obsolete environmental protection legislation The source of Walkerton's water supply was groundwater controlled by a Supervisory Control and Data Acquisition (SCADA) system, which monitored pumping rates, but did not provide any information on water quality  Much of the theory of policy convergence in the academic literature refers to globalization, international trade, and how the international and cross-national contexts play a factor in it (Liefferink et al. ). Simpson & Sroufe ). The underlying risk is that certified corporations will support innovation and diversity only when they receive a poor rating, or when an external actor or issue forces them to act.
In addition to the convergence on the provincial regulatory approaches through rule instruments and site-specific approvals, we have seen that the courts are providing directly or indirectly another impetus for policy convergence in the form of: