1. What is water taking?

Every day in Ontario billions of litres of water are taken out of the ground, or from lakes and rivers, for a variety of uses – municipal drinking water supplies, agricultural irrigation, industrial uses like aggregate extraction, mining, hydroelectric power generation and beverage manufacturing.

Ontario has traditionally been blessed with an abundance of fresh water, and as long as water flowed freely, there were few conflicts. However, in the last few years, a growing awareness of limited water resources, drinking water contamination, and water shortages in some rural areas have highlighted the need to assess and protect our water supplies.

Concerns have been raised particularly over consumptive uses, such as water bottling and beverage manufacturing, where water is taken but not returned to a watershed. Municipal drinking water supplies are considered a non-consumptive use because water is used but not removed from the watershed.

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2. What potential damage is there to the environment from taking large amounts of water?

One of the most immediate and serious impacts of taking water is water shortage. In the late 1990s, Ontario had several years of lower than average rainfall that led to low water levels in some lakes and rivers, and contributed to the problem of water shortages. In the summer of 2000, Spencer Creek in southwestern Ontario “disappeared” temporarily because of excessive takings in the local watershed. The Ministry of the Environment then restricted ground water takings and the creek reappeared.

When too much water is taken from a watershed, it can also result in the loss of habitat for aquatic plants, birds and fish. Reducing the biodiversity of species can be an extreme outcome.

Taking excessive amounts of water can affect drinking water quality. When there is less water available, it becomes more difficult for lakes and rivers to dilute contaminants, and reduced water flow can increase siltation and turbidity (cloudiness of water) of the raw water, making treatment more difficult and costly.

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3. What Ontario legislation governs water taking?

The Ontario Water Resources Act is the primary statute in Ontario governing water. The Ministry of the Environment regulates the taking of large amounts of water from surface or groundwater sources under Section 34 of the Ontario Water Resources Act.

According to Sect. 34 (3), a person is required to obtain a water taking permit from a Ministry of the Environment Director for water takings over 50,000 litres per day. Sect. 34 (4) provides the Director with the authority to prohibit water taking that is deemed to be interfering with any public or private interest in water.

The process for water taking approvals is further elaborated in O.Reg. 285/99, the Water Taking and Transfer Regulation, introduced by the Ministry of the Environment in 1999.

The Water Taking and Transfer Regulation authorizes a Director of the Ministry of the Environment to issue, amend, refuse or cancel water taking permits over 50,000 litres a day.

The purpose of the Regulation is “to provide for the conservation, protection, wise use and management of Ontario’s waters.” It requires the Director to consider the protection of the natural functions of the ecosystem, as well as the impacts on surface and ground water of the water taking. The Director may also consider existing and planned uses for water, including livestock uses, municipal water supply, agricultural uses, private domestic uses and other uses. As well, the Director can decide whether it is in the public interest to grant a permit or not.

The Regulation leaves it to the discretion of the Director whether the Ministry will require the applicant to consult with others.

Permits are not needed for emergencies such as firefighting, watering of livestock and for domestic use. There is no requirement to regulate, report or document takings of less than 50,000 litres per day.

Bulk water transfers out of a water basin are not permitted.

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4. How does Ontario's permit system work?

Applications with supporting technical reports are made to the Ministry of the Environment Regional Office appropriate to the location of the water taking. The Regional Office reviews the application and the Director either issues a permit (with terms and conditions), or denies the application. Permits generally include a permit expiry date, acceptable rates and amounts of water withdrawal and source identification and location.

The Ministry’s assessments are guided by the “Permit To Take Water Guidelines and Procedure Manual, 1999”.

Permit proposals that are subject to the Environmental Bill of Rights are posted on the Environmental Registry for 30 days of public comment. At some time after the comment period, the Ministry posts a decision notice indicating whether the permit was issued or not, and why. Water taking applications that are not posted on the Registry include most municipal water takings, takings for irrigation of crops and takings for less than one year.

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5. Is there a right to appeal a water taking permit in Ontario?

Those who want to take water and are refused can appeal to the Environmental Review Tribunal to request that the refusal be overturned. The Ministry of the Environment staff generally imposes conditions on permits rather than denying them. The applicant can also appeal to the Environmental Review Tribunal to modify conditions in a permit.

Under the Environmental Bill of Rights the public also has the right to ask the Environmental Review Tribunal for leave to appeal. For example, citizens in the Perth area were concerned with a permit granted by the Ministry of the Environment that allowed a Swiss company to take 4.5 million litres of water from the Tay River in two separate phases. The Environmental Review Tribunal decided in February 2002 that the company, OMYA, could take only 1.5 million litres a day, the amount allowed in the first phase of the permit by the Ministry of Environment. Further legal proceedings ensued, but were overtaken by the moratorium on new and expanding permits to take water, announced by the Ontario government in December 2003 (see Answer #9).

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6. What concerns have been raised about water taking?

In the past few years many questions have been raised by concerned parties such as the Environmental Commissioner of Ontario, the Association of Municipalities of Ontario, and community groups among others, about the water taking permitting process and whether it protects the quantity and quality of water in the province.

• There is concern over the scale and the number of water taking permits issued by the Ministry of the Environment; and that permits are issued without complete or accurate information on the total number of water takings in the area.
• There is also concern that the Ministry does not adequately evaluate the potential local and cumulative impacts of multiple water takings on the ecosystem because of the lack of scientific data available on stream flows, aquifers and groundwater supplies.
• There is currently no formal notification process that would inform municipalities or local residents when a water taking permit is being considered. This is left to the discretion of the Director.
• The administration of the water taking approval process has suffered from inaccuracies and inconsistencies. An extensive review of the permits posted on the Environmental Bill of Rights Registry concluded that the problems with the Registry notices threatened public accountability and transparency.

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7. What role does the Environmental Commissioner of Ontario play in water taking permits?

The Environmental Commissioner’s Office, established under the Environmental Bill of Rights, monitors the quality of information in postings on the Environmental Bill of Rights Registry and ensures public comments are considered when decisions are made.

The Environmental Commissioner’s Office did an extensive review of water taking permits. This resulted in a report entitled, “Ontario’s Permit to Take Water Program and the Protection of Ontario’s Water Resources”, presented to the Walkerton Inquiry in January 2001.

In the review, the Commissioner found that there were inconsistencies and deficiencies in permits and Registry notices, as well as in the issuing of permits, such as:

• Notices had inadequate or inaccurate descriptions of water taking proposals and permits, including sources and quantities;
• The Ministry of the Environment made it difficult to track or assess water taking proposals by mixing Metric and Imperial measures in proposal and decision notices;
• There were differences in evaluations from the Ministry’s Regional offices that contributed to variations in administration;
• The Ministry of the Environment permitted water takings without considering the quantity of water available in certain watersheds;
• There was no evidence that the Ministry applied an ecosystem approach, as the regulation requires.

The Environmental Commissioner concluded that these deficiencies made it unreliable for assessing how much water was taken against how much was available. Nor was it possible to assess whether the permit to take water program was being carried out in accordance with the Regulation.

For the full report, see “Ontario’s Permit To Take Water Program and the Protection of Ontario’s Water Resources”, Brief to the Walkerton Committee, January 2001, Environmental Commissioner’s Office. It can be found under News Releases, February 1, 2001, “Study by Environmental Commissioner Documents Problems in Management of Ontario’s Water” at: www.eco.on.ca

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8. Does the Environmental Registry show the total amount of water taken in the province?

Even though notices of proposed water takings are posted on the Environmental Registry, the Registry is not a database. It shows much less water taking than the actual amount being drawn from the province’s lakes and rivers and underground sources.

Municipal water taking, for example, is by far the largest user in terms of sheer volume of water. These permit applications are not posted on the Registry for comment because of an exemption in the Environmental Bill of Rights for approvals issued under the Environmental Assessment Act. Residents are unable to challenge Ministry of the Environment decisions on these municipal water-taking permits.

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9. What changes has the Ministry of Environment made to its approval process?

In December 2003, the Ontario government passed Ontario Regulation 434/03 establishing a moratorium on new and expanding permits to take water. The regulation applies to permits to take water in Southern Ontario and in areas for which Conservation Authorities have been established in Northern Ontario.

The moratorium will apply to beverage manufacturing, including bottled water; fruit or vegetable canning or pickling; ready-mix concrete manufacturing; aggregate processing where the product is a slurry; and manufacturing or production of products that contain more than 50,000 litres per day of water. It does not apply to municipalities; water used for agricultural purposes; renewals of existing permits for the same volume from the same location; or existing permits to take water.

The government is proceeding with a review of the decision-making process and rules governing the Permit to Take Water program, and with the implementation of Justice O'Connor's recommendations on source protection.

See the Source Water Protection FAQ.

The moratorium will allow the government time to put in place new rules for water taking and water charges. The government also plans to institute charges for water-bottling companies and other permit holders that remove water from watersheds.

For more information, see the Ministry of the Environment's web site at: www.ene.gov.on.ca/water.htm

Previously, in April 2003 the Ontario government had proposed improvements to the Water Taking and Transfer Regulation and posted the amended Regulation on the Environmental Bill of Rights registry for public comment. Although no final decision had been issued, the proposed amendments would have:

• Require new permit applicants to notify municipalities, conservation authorities and adjacent landowners about proposed water taking,
• Require reporting of water use by permit holders, and
• Define potential impacts that will be considered when reviewing permit applications.

The Ministry proposed to further define in the revised Regulation what must be considered in the ecosystem approach. In considering the ecosystem, the Director must consider "the natural variability of the flows or levels of waters including minimum in-stream flows and habitat that depends upon the flow or levels of waters".

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10. What are Justice O’Connor’s recommendations in the Report of the Walkerton Commission of Inquiry regarding water taking?

To ensure that sources of drinking water are protected, Justice O’Connor stressed the importance of watershed planning. He recommended that all watersheds in the province have mandatory watershed-based source protection plans. These plans would include a water budget for the watershed, or a plan for developing a water budget where sufficient data is not available. They would also include the identification of all significant water withdrawal including municipal intakes.

Furthermore, he recommended that the total amount of water allocated for a water permit not exceed the supply of water that can be sustained according to the watershed-based source protection plan. Where permits to take water and certificates of approval allow unacceptable levels of water withdrawal, agreements must be negotiated among users.

The Report of the Walkerton Inquiry, Part 2, Chapter 4, “The Protection of Drinking Water Sources" contains information on watershed source protection plans with respect to permits to take water. The Report can be seen at: www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/

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11. What are the municipalities doing to protect water supplies?

Because of the number of conflicts between municipalities and companies seeking water taking permits, the Association of Municipalities of Ontario set up a Water Taking Task Force to propose improvements to the permitting process.

In their report released in December 2000 they recommended a formal notification process for municipalities when an application for taking water is submitted (which the Ministry proposed in its earlier amendments to the Regulation). They argue that the water taking permitting process should be integrated into municipal planning. They view commercial water taking as a land use under the Planning Act, and want it addressed as a land use activity in municipalities’ Official Plans.

They have also asked the government to consider the possibility of imposing fees or charges on the bottled water industry, similar to fees charged to the aggregate industry.

For the complete report, “Proposed Improvements to Ontario’s Water Taking Permitting Process: Recommendations to the Government of Ontario”, Association of Municipalities of Ontario Water Taking Task Force, December 19, 2002, see: www.greycounty.on.ca/council/2003-AMOwatertaking.pdf

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12. What role do the Conservation Authorities play in water taking?

Conservation authorities are bound by their legislation, the Conservation Authorities Act, to consider the impacts of water takings on the watershed. The association of Conservation Authorities, known as Conservation Ontario, has been concerned about the impacts of water taking. One, the Credit Valley Conservation Authority, found in the 1990s that if all permitted water takings in the watershed were added together “there would not be adequate supplies of water to meet the demand”.

Justice O’Connor recommended that conservation authorities take a lead role in watershed planning and source protection plans because of their history and knowledge of the province’s watersheds.

Conservation Ontario, with other partners, has carried out a series of watershed-based demonstration projects. Reports on these projects can be found at:
www.conservation-ontario.on.ca/projects/projects.htm

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13. How can I find out about water taking in my area?

The Ministry of the Environment posts notices of applications for water taking permits on the Environmental Bill of Rights Registry. This is the only public notice required and these notices are only posted during the time they are reviewed. You may comment on these proposals during the public comment period. Otherwise, you can contact your local Ministry of the Environment office for information on permits already approved in your area.

See Environmental Bill of Rights Registry at: www.ene.gov.on.ca/envision/env_reg/ebr/english/

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14. Who controls large-scale water taking from the Great Lakes?

In the spring of 1998 the Ministry of the Environment approved a controversial water-taking permit for the Nova Group of Sault Ste. Marie, Ontario. This permit would have allowed the company to take 10 million litres of water per day from Lake Superior and ship it to Asia for sale.

Although it was rescinded, the public outcry over the permit alerted the Council of the Great Lakes Governors and the Premiers of Ontario and Quebec to the problem of large-scale water removals from the Great Lakes. (The Council of Great Lakes Governors is made up of the governors of the 8 states bordering on the Great Lakes and the Premiers of Ontario and Quebec.)

The Council of Great Lakes Governors, in an effort to manage future threats to the Great Lakes from water takings or diversions, proposed the Great Lakes Water Initiative and the development of a new binding agreement called Annex 2001, an annex to the Great Lakes Charter. The Great Lakes Charter is a voluntary agreement which the Governors and Premiers signed in 1985.

This Annex commits the Governors and Premiers to manage the Great Lakes waters with regard to diversions and consumptive uses. The agreement will review the water takings from the Great Lakes approved by the United States under the Water Resources Development Act of 1986. It is intended to improve data collection. It also proposes new conditions on large takings. Annex 2001 is expected to be in place by June 2004. When it is finalized, this agreement will affect Ontario’s program to permit water takings.

In addition, the Canadian government in December 2001 moved to stop large withdrawals of Great Lakes water. The government passed amendments to the International Boundary Waters Treaty Act that prohibit the bulk removal of boundary waters from the water basins in which they are located. See: http://laws.justice.gc.ca/en/I-17/77063.html

The amendments also require persons to obtain licenses from the Minister of Foreign Affairs for water-related projects that affect the natural level or flow of waters on the American side of the border.

Ontario also joined with other provinces and the Canadian government in signing The Accord for the Prohibition of Bulk Water Removal from Drainage Basins in 1999 at the Canadian Council of Ministers of the Environment. This agreement prohibits the bulk removal of surface and groundwater from the Canadian portion of major basins. For more information, see: www.scics.gc.ca/cinfo99/83067000_e.html

For more information on the Council of Great Lakes Governors and the Great Lakes Charter, see:
www.cglg.org

See also the Great Lakes and St. Lawrence Ecosystem FAQ.

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15. How much water do bottled water companies take in Ontario?

In the year 2000, large bottled water companies took approximately 690 million litres of water in Ontario, most of it from rural areas. Unlike other uses of water like municipal water supplies, the manufacturing and production of bottled water is a consumptive use -- the water that is taken from the source is shipped away from the community, rather than eventually being recovered.

Although the Ministry of the Environment has approved permits to these companies, it does not track the extent to which the current water taking permits are used. In many cases, the permits allow much more water to be taken than the companies actually use. Additionally, smaller water bottlers (under 50,000 litres per day) do not require a water taking permit.

See the Bottled Water FAQ.

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16. What are the Canadian Environmental Law Association’s views on water taking?

The Canadian Environmental Law Association (CELA) has been concerned that the regulation governing water taking permits does not adequately assess or protect water supplies in the province.

For more on CELA’s views, see CELA publication #444: "Submission on the Proposed Amendments to the Water-Taking and Transfer Regulation (Regulation 285/99 under the Ontario Water Resources Act). EBR Registry No. RA03E0009".

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17. How can I get more information about water taking in Ontario?

For the Ministry of Environment’s Water Taking and Transfer Regulation, see: http://192.75.156.68/DBLaws/Regs/English/990285_e.htm

The Ministry of Environment’s moratorium on water taking regulation is posted on the EBR Registry. See:
www.ene.gov.on.ca/envregistry/021840er.htm

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18. How can I get more information about water taking in other jurisdictions?

Information on water taking and bulk water removals in other provinces is available through Environment Canada at: www.ec.gc.ca/water/en/links.cfm?category_id=all&sub_section_id=18

In the United States, permits to take water are issued by individual states. The regulations for New Hampshire, for example, can be found at: www.des.state.nh.us/desadmin.htm#water

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