The Environmental Review Tribunal ("ERT") recently released a decision clarifying the scope of section 34(1) of the Ontario Water Resources Act R.S.O. 1990, c. O.40, ("OWRA"). The City of Thunder Bay ("City") in Thunder Bay (City) v. Ontario (Environment, Conservation and Parks), ERT no. 18-024 ("Thunder Bay") brought a motion brought pursuant to an appeal by the City of an Amended Permit to Take Water ("PTTW") issued by the Director under s.34 of the OWRA. The PTTW authorized the City to continue to use its dam (the "Boulevard Lake Dam") to store water from Current River to create a reservoir known as Boulevard Lake. A second appellant, Robert Whiteside, owned and operated a small power generation facility ("Whiteside facility") that used water from Boulevard Lake in accordance with a 1985 lease agreement with the City. The Whiteside Facility operated under the City's PTTW as it did not possess its own PTTW under s.34(1) of the OWRA. The City's PTTW contained conditions contemplating the possibility of the City authorizing other parties to take water under the permit.
The City brought a motion asking the ERT to clarify whether the Whiteside Facility was permitted to operate under the City's PTTW or whether it was required to obtain a separate permit on the basis that its activities constituted a water taking within the meaning of s. 34(1) of the OWRA. Section 34(1) of the OWRA states:
"Despite any other Act but subject to section 47.3 of the Environmental Protection Act, a person shall not take more than 50,000 litres of water on any day by any means except in accordance with a permit issued under section 34.1."
The City argued that the Whiteside facility's withdrawal of 336,960,000 litres of water per day from Boulevard Lake was a taking pursuant to s.34(1). According to the City, the Whiteside Facility's lack of permit left the City responsible for ensuring that Mr. Whiteside fulfilled the conditions in the Amended PTTW, which the City had limited ability to do due to the lease terms and its strained relationship with him. The City argued that there was nothing in the OWRA exempting the requirement for a permit where there was a taking of water for which a permit had already been issued.
The Director (of the Ministry of Environment, Conservation and Parks) argued that the Whiteside Facility's withdrawal of water from Boulevard Lake was not a water taking for the purposes of s.34(1). According to the Director, the Whiteside facility was "simply using water already taken" by the City in accordance with the PTTW. The Director reasoned that the City was the only entity taking water from Boulevard Lake because it owned, controlled, and operated the dam that stored the water taken from the Lake. The Director asserted that the Whiteside Facility's means of withdrawing water could not be interpreted as a water taking if one considered the guidance offered by s.1(7) of the OWRA, which states:
"For the purposes of this
Act, a reference to water taking includes water taking by means
(a) a well;
(b) an intake from a surface source of supply;
(c) a structure or works constructed for the diversion or storage of water; or
(d) any combination of the means referred to in clauses (a), (b) and (c)."
According to the Director, the Whiteside facility's means of withdrawing water was neither an "intake from a surface source" nor a structure for the diversion or storage of water constructed by Mr. Whiteside or under his control. The Director submitted that, by contrast, the City controlled the dam and intakes for Boulevard Lake. The Director also noted that the OWRA and O. Reg. 387/04 recognize a distinction between a taking by one person and a use by another person.
The ERT determined that the withdrawal of water for the Whiteside Facility was not a water taking for the purposes of s,34(1) of the OWRA. In its reasoning the ERT adopted the interpretation of "taking" adopted by the Ontario Court of Justice in R. v. Geo-Analysis Inc.,  O.J. No. 4369 ("Geo-Analysis"), whose definition of "taking" implied an active taker as opposed to a passive recipient. The ERT found that the Whiteside Facility was not an active taker of the water, but was being supplied with water via the City's dam. The ERT also found that the City had control of the Whiteside Facility's withdrawal, because it was ultimately up to the City whether any water flowed through the dam intakes. The ERT noted that The OWRA does not prohibit a permit holder from supplying others with, or access to, "already taken" water if it is provided for in its permit.
The ERT's holding in Thunder Bay makes it clear that if a PTTW contains conditions contemplating the use of that water by another party, that other party will not necessarily require an independent permit. Thunder Bay also clarifies that whether a withdrawal of water constitutes a taking for the purposes of s.34(1) will depend on who controls the initial active taking of the water from the environment.
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