Water Taking and Transfer Regulation under the OWRA
In December 2004, the Ministry of the Environment finalized O. Reg. 387/04, also known as the Water Taking and Transfer Regulation, under the Ontario Water Resources Act. This decision introduced long-awaited revisions to the rules governing large-volume water takings.
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Permits to take water
Under the Ontario Water Resources Act (OWRA), anyone taking more than 50,000 litres of water per day needs a permit to take water (PTTW) from MOE. Permits are issued for activities such as electricity generation, manufacturing, drinking water supply, agriculture, and quarry de-watering. The OWRA exempts firefighting, individual household use, direct livestock or poultry watering, and takings that predate 1961 from the PTTW requirement. For the first time, permit holders will be required by regulation to monitor and report to MOE on quantities of water taken. The regulation also introduces new maps that designate Ontario’s watersheds as high, medium or low water use.
Certain industries, including water bottling, ready-mix concrete and other industries that incorporate water into their final products, will not be allowed new or expanded water takings in high use areas. Exempted from this ban are pulp and paper, ethanol production, and agricultural industries.
Another map issued with the new regulation, “Water Use – Average Annual Flow Conditions,” indicates a few high use watersheds where specified water-consuming industries will not be allowed new PTTWs at all. These maps are also significant because the regulation now requires that water availability be a factor in all PTTW decisions. The regulation expands on the water quantity, water quality, water availability and ecosystem factors that the ministry must consider when issuing permits. Factors that must be considered include whether water conservation will be implemented, the purpose of the proposed water taking, and whether the requested quantity will actually be used. MOE must notify municipalities and Conservation Authorities of some types of PTTW applications. The ministry also may require an applicant to consult other interested parties and report back to MOE on how concerns were resolved.
Water transfer and the Great Lakes
The regulation also prohibits “water transfer” or movement of water out of watersheds, including the Great Lakes basin. (For an update on the Great Lakes Charter, a water management agreement between Ontario, Quebec and the eight Great Lakes states, see Great Lakes Charter and Annex 2001.)
Implications of the decision
The new Water Taking and Transfer Regulation will allow MOE to begin systematically collecting information on actual quantities of water taken. The regulation also provides greater specificity on which ecosystem functions the ministry must take into account, and applicants may be required to submit information on potential ecosystem impacts. MOE will need to develop its own ecological expertise, as well as clarifying how it will interpret the regulation’s water and ecosystem protection provisions.
While O. Reg. 387/04 requires the Director to take into account the purpose for which the water is to be used, it does not spell out which purposes are to be given priority over others. One of MOE’s claims was that “new or expanded takings that would remove water from watersheds that already have a high level of use will no longer be allowed.” However, the regulation in fact targets only specific activities (e.g., water bottling) while specifically exempting other high-consumption activities (e.g., agriculture).
Public participation & the EBR process
MOE carried out several rounds of consultation, as well as the one that started in June 2004 and provided the basis for O. Reg. 387/04. Fifty-eight commenters responded to MOE’s 2004 proposal notice. Respondents commended MOE for proposed improvements to the regulation. Some comments focused on promoting the interests of particular sectors such as agriculture, electricity generation, mining, or golf courses.
Others presented ideas to strengthen environmental protections under the PTTW program. Many commenters suggested that an existing ban on transferring water out of the Great Lakes basin be extended to include bottled water. Commenters also called for coordination of the PTTW program with the forthcoming source protection program. Most comments were not addressed in the ministry’s decision. In response to comments, the ministry did provide maps of high use watersheds and established a phase-in of water use monitoring and reporting for all permit holders.
Many commenters called on MOE to release all technical guidance documents so that the public could review them along with the proposed regulation, but, unfortunately, this did not occur. MOE did revise its technical guidance with a new PTTW Manual, but consultations on the manual were held after O. Reg. 387/04 had already been issued. The new manual was finalized in April 2005, and the ECO will review this policy decision in our 2005/2006 report.
Comments also focused on water taking fees, a topic addressed in several rounds of consultation on the PTTW program, but not covered in O. Reg. 387/04. On December 23, 2004, MOE announced that fees for PTTW applicants would apply beginning in April 2005 (farmers were subsequently exempted).
ECO Comment
The ECO has been among many of those calling for an overhaul of the PTTW program. In a 2001 brief to the Walkerton Inquiry, the ECO pointed out several weaknesses, including:
- PTTW proposals on the Registry were often incomplete and inaccurate.
- MOE did not subject some PTTWs to the EBR’s consultation and leave to appeal provisions.
- MOE tracked only quantities permitted, not quantities actually taken.
- The 50,000 litres/day threshold excluded many significant water takings, and information was needed on agricultural takings exempt from PTTW requirements, and on domestic wells.
- MOE staff did not appear to be implementing the ecosystem protection provisions of the 1999 regulation, since they lacked accurate data on existing takings and were using a PTTW guidance manual that had not been substantively updated since 1984.
The ECO welcomes the changes to the Water Taking and Transfer Regulation that governs the PTTW program. The requirement for monitoring and reporting on quantities of water taken is an important improvement. Accurate data on water takings can improve decisions on future PTTW applications, and support other provincial initiatives like source protection, Great Lakes programs and state-of-the-resource reporting. The ECO urges MOE to manage PTTW data actively, making it readily available for the ministry’s own programs and for the broader water protection community. To do so, MOE must audit reported water use volumes, maintain an up-to-date database, and ensure accurate geo-referencing of all permits. This data can then be linked to information on Ontario’s water levels and flows, water quality and land use – for example, through the province’s Water Resources Information Project. To support water management in Ontario, the ECO also encourages MOE to develop water budget methods that account for water takings not captured by the PTTW requirements, such as private domestic and agricultural uses.
The ECO commends the Ministry of the Environment for beginning to clarify the regulation’s ecosystem protection provisions, for enshrining water conservation as an important feature of the regulation, and for adding new public consultation provisions. Many issues require further clarification: how and when applicants will be required to conduct consultations; the extent of applicants’ responsibility for providing information on ecosystem function and water use considerations; and which water conservation standards are to be applied to different types of water takings. The ECO is hopeful that the PTTW Manual and other guidelines will provide the necessary clarity. MOE added valuable clarification by providing maps with the final regulation, delineating high and medium use watersheds. However, the ministry did not provide information on what technical (or other) criteria were used to classify Ontario’s watersheds. The ECO encourages the ministry to clarify how water use characterisation was done, to indicate when these maps will be updated, and to commit to full public consultation on future watershed use designation decisions.
The new regulation requires consideration of the purposes for which water will be used. It does not provide a clear framework for prioritizing some types of water takings over others. The ECO urges MOE to develop a policy on the hierarchy of water takings, maintaining ecosystem protection as the primary consideration.
| This is an article from the 2004/05 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2005. "Water Taking and Transfer Regulation." Planning our Landscape, ECO Annual Report, 2004-05. Toronto, ON : Environmental Commissioner of Ontario. 116-120.
