This article was originally published in May 2003
The Premier of Ontario announced new and proposed regulations on April 21, which will have a significant impact on industries whose activities require water from the ground or surface water bodies. Permits to take water are required under the Ontario Water Resources Act for ground or surface water takings of over 50,000 L/day.
One regulation will immediately impose a moratorium on water taking permits within the Niagara Escarpment Planning Area or the Oak Ridges Moraine for a period of six months.
A second proposed regulation will impose stricter rules around water taking permits issued after the moratorium is lifted.
The timing of this announcement coincides with the release of the final report of the Advisory Committee on Watershed-based Source Protection Planning. That report is likely the impetus behind the timing and content of the moratorium announcement.
Moratorium Regulation
The moratorium regulation (O. Reg. 153/03) will take immediate effect, and impacts permit applications submitted between March 1, 2003 and up to August 31, 2003. Although the published version of the Regulation in the Ontario Gazette is not available until May 3, 2003, the summary of the regulation on the Environmental Bill of Rights ("EBR") suggests the regulation does not capture:
One. Persons with valid water taking permits (i.e., existing permits are still valid);
Two. Renewals of existing permits from the same location and for the same purpose; or
Three. Permits for agricultural purposes, and other types of uses that do not manufacture or produce a product which contains some or all of the water that is taken.
For other activities and, in particular, for manufacturing industries whose operations require additional water such as beverage manufacturing, fruit or vegetable canning or pickling and ready-mix concrete manufacturing, the moratorium means that no applications for new or expanded permits will be considered until at least September.
Even for those industries for which the issuing of new water taking permits is not strictly prohibited (i.e., aggregate mining, golf courses) it can be assumed that the Ministry of the Environment will not be eager to entertain any but the most minor applications during the moratorium period.
The Province used its "emergency" power under section 29(1) of the EBR Regulation to issue this Regulation without a 30 day public comment period.
Proposed Amendments to the Water Taking and Transfer Regulation 285/99 under the Ontario Water Resources Act
The content of the proposed amendments has not yet been fixed, as the Province has solicited public comment on the amendments and is seeking input for improvements to its water taking program. The Minister of the Environment has stated in its EBR notice that the following changes are being contemplated:
One. A new fee structure to recover costs associated with the water taking program.
Two. More "stakeholder consultation". Rather than simply having permit applications posted on the EBR site, the applicant would be required to directly notify municipalities, conservation authorities and adjacent landowners for all water taking applications, except for renewals of permits at the same location and for the same amount of water, or in emergency situations. Public consultation would be required before the application could be considered. The Director would also have the discretion to broaden the consultation requirements for specific applications.
Three. A standard requirement of annual reporting on water taking and use. Annual reporting is often a special condition to permits, but the regulation would specify parameters to be included in the annual permit attached to every permit. The information would be used, among other things, to assist in the preparation of watershed-based water budgets (which is a recommendation of the Advisory Committee). The EBR notice specifically solicits comments from the public on the use of electronic reporting, on whether the information in water taking reports should be publicly accessible, and on whether and how reporting should be "phased in".
Four. More definition to what potential impacts will specifically be considered in reviewing permit applications for "protection of the natural functions of the ecosystem", groundwater effects from surface water taking, and surface water effects from groundwater taking. The aim is to "foster a consistent and transparent basis" for the review of applications.
Copies of the EBR postings can be found at:
http://204.40.253.254/envregistry/020064er.htm (proposed regulations and program changes) and http://204.40.253.254/ envregistry/020290er.htm (moratorium).
A backgrounder from the Ministry of Environment summarizing these changes can be viewed at: http://www.ene.gov.on.ca/envision/news/2003/042101mb1.htm.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.