O. Reg. 225/14: WATER TAKING

Link to law: http://www.ontario.ca/laws/regulation/r14225
Published: 2014-11-27

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ontario regulation 225/14

made under the

Ontario Water REsources Act

Made: October 22, 2014
Filed: November 27, 2014
Published on e-Laws: November 27, 2014
Printed in The Ontario Gazette: December 13, 2014


Amending O. Reg. 387/04

(Water Taking)

1. The title to Ontario Regulation 387/04 is revoked and the following substituted:

 

Water Taking and Transfer

2. (1) The definition of “application” in section 2 of the Regulation is revoked and the following substituted:

“application” means an application to the Director for a permit,

(a) made under section 34.1 of the Act, if the application is made on or after the day section 34.1 of the Act comes into force, or

(b) made under section 34 of the Act as it read before section 34.1 of the Act came into force;

(2) The definition of “Average Annual Flow Map” in section 2 of the Regulation is amended by striking out “on file in the offices of the Ministry of the Environment at Toronto” at the end and substituting “on file in the offices of the Ministry of the Environment and Climate Change at Toronto and available on a website of the Government of Ontario”.

(3) Section 2 of the Regulation is amended by adding the following definitions:

“Municipal Class Environmental Assessment” means the Municipal Class Environmental Assessment prepared by the Municipal Engineers Association, dated October, 2000 and as amended in 2007 and afterwards from time to time;

“municipal drinking water system” means a municipal drinking water system within the meaning of the Safe Drinking Water Act, 2002;

“permit” means a permit issued under section 34 of the Act, as it read before section 34.1 of the Act came into force, or under section 34.1 of the Act;

(4) The definition of “Summer Low Flow Map” in section 2 of the Regulation is amended by striking out “on file in the offices of the Ministry of the Environment at Toronto” at the end and substituting “on file in the offices of the Ministry of the Environment and Climate Change at Toronto and available on a website of the Government of Ontario”.

(5) Section 2 of the Regulation is amended by adding the following subsection:

(2) The definitions in subsection 34.5 (1) of the Act apply for the purposes of this Regulation.

3. (1) Subsection 3 (1) of the Regulation is revoked.

(2) Clause 3 (2) (c) of the Regulation is amended by striking out “which may be accessed at www.mnr.gov.on.ca/edwin/EDWINCGI.exe?IHID=10002428&Theme=WATER” at the end and substituting “which is available on a website of the Government of Ontario”.

4. (1) Subsection 4 (1) of the Regulation is revoked and the following substituted:

Matters to be considered by the Director

(1) This section applies,

(a) when the Director is considering an application, other than an application for a new transfer or an increased transfer that does not involve a new water taking or an increased water taking; and

(b) when the Director is otherwise considering whether to cancel or amend a permit or issue a new permit, but not,

(i) when the Director is considering whether to amend a permit or issue a new permit for the purpose of responding to a request made under section 34.8 of the Act, or

(ii) when the Director is considering whether to impose conditions under subsection 34.7 (2) of the Act or amendments to conditions imposed under that subsection.

(2) Paragraph 1 of subsection 4 (2) of the Regulation is amended by striking out “and” at the end of sub-subparagraph i C, by adding “and” at the end of subparagraph ii and by adding the following subparagraph:

iii. the potential to restore the hydrologic conditions and functions of the source watershed.

(3) Subparagraph 3 ii of subsection 4 (2) of the Regulation is revoked and the following substituted:

ii. the purpose for which the water is being used or is proposed to be used, including the amount of water that is or will be lost through consumptive use, and

(4) Subsection 4 (2) of the Regulation is amended by adding the following paragraph:

3.1 Issues relating to the return, after use, of water, including,

i. the manner in which the water is being returned or is proposed to be returned, and

ii. the location or area to which the water is being returned or is proposed to be returned.

(5) Paragraph 4 of subsection 4 (2) of the Regulation is amended by revoking “and” at the end of subparagraph i and by revoking subparagraph ii and substituting the following:

ii. whether the water taking or proposed water taking is in compliance with,

A. the Boundary Waters Treaty of 1909, and

B. the International Boundary Waters Treaty Act (Canada), and

iii. any other matters that the Director considers relevant.

5. Section 4.1 of the Regulation is revoked and the following substituted:

Prescribed water takings

4.1 For the purposes of subsection 34 (3) of the Act, subsection 34 (1) of the Act applies to a person who takes water by any of the means described in paragraphs 1 to 4 of subsection 34 (3) of the Act if the person takes the water for use in a facility that falls into a class described in subsection 3 (1) of Ontario Regulation 450/07 (Charges for Industrial and Commercial Water Users) made under the Act.

6. The Regulation is amended by adding the following section:

Exemption from s. 34 (1) of the Act

4.2 (1) Subject to subsection (2), subsection 34 (1) of the Act does not apply to a person who takes water only for,

(a) domestic purposes, if the taking of the water is not done by a municipal drinking water system or by a public utility company;

(b) watering livestock or poultry; or

(c) both of the purposes described in clauses (a) and (b).

(2) Subsection (1) does not apply to a person who takes water on or after the day this section comes into force if the taking of the water causes or permits a new transfer or an increased transfer of the threshold amount.

7. (1) Subclause 5 (2) (b) (i) of the Regulation is revoked and the following substituted:

(i) Lake Ontario, Lake Erie, Lake Huron, Lake Superior, the St. Mary’s River, the St. Clair River, Lake St. Clair, the Detroit River and the Niagara River,

(2) Clause 5 (3) (a) of the Regulation is amended by striking out “to take water”.

(3) Clause 5 (4) (b) of the Regulation is amended by striking out “to take water”.

8. Section 6 of the Regulation is revoked and the following substituted:

Compliance with Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement

6. (1) For the purposes of this section,

“Agreement” means the Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement of 2005.

(2) Subject to subsection (6), this section applies to an application for a permit to authorize a new or increased taking of water from the Great Lakes - St. Lawrence River Basin if the Director is of the opinion that the amount of water that would be lost through consumptive use, if the proposed new or increased taking of water were authorized, is an amount that triggers Ontario’s obligations under Article 205 of the Agreement to provide prior notice of and an opportunity to comment on the proposal.

(3) Before a decision is made on the application, the Director shall ensure that the prior notice and opportunity to comment on the proposal is provided in accordance with Article 205 of the Agreement.

(4) For the purposes of determining if the application triggers Ontario’s obligations under Article 205 of the Agreement, the determination of the amount of water lost through consumptive use as a result of the proposed new or increased taking shall be made,

(a) in accordance with a method specified by the Director and made available on a website of the Government of Ontario; and

(b) subject to subsections (5) and (7), by taking into consideration all amounts of water lost through consumptive use as a result of the holder’s new or increased takings under the permit that were approved during the period set out in subsection (8).

(5) For the purposes of clause (4) (b), if the application is made by a permit holder who is authorized to take water under more than one permit, consideration shall also be taken of the amount of water lost through consumptive use as a result of any new or increased takings under the other permit or permits that were approved during the period set out in subsection (8) if,

(a) the application is by a municipality and the water that is taken under the other permit or permits supplies water to a common distribution system to which the proposed new or increased taking relates; or

(b) the application is by a permit holder, other than a municipality, and the water that is taken under the other permit or permits supplies water to the same facility, undertaking or enterprise to which the proposed new or increased taking relates.

(6) This section does not apply to an application that is made by a person to whom the Environmental Assessment Act applies if,

(a) the application is the result of an environmental assessment of an undertaking that was approved on or before December 31, 2014; or

(b) the application is the result of a Schedule B or C project considered under the Municipal Class Environmental Assessment and,

(i) a notice of completion was issued for the project in accordance with the Municipal Class Environmental Assessment on or before December 31, 2014, and

(ii) no request has been made for an order under Part II of the Environmental Assessment Act or, if such a request was made, the request was denied.

(7) Clause 4 (b) does not apply to any new or increased takings that were approved during the period set out in subsection (8) if those takings were exempt as a result of the application of subsection (6).

(8) The period referred to in clause (4) (b) is,

(a) if the application is made on or before December 31, 2024, the period starting January 1, 2015 until the application date; or

(b) if the application is made on or after January 1, 2025, the period starting 10 years before the date of the application until the application date.

(9) After a decision has been made by the Director with respect to the application, the decision is subject to sections 34.10 and 34.11 of the Act.

9. (1) Clause 7 (2) (a) of the Regulation is revoked and the following substituted:

(a) the application is for a permit that is exempt under subsection 3 (2) of Ontario Regulation 681/94 (Classification of Proposals for Instruments) made under the Environmental Bill of Rights, 1993 from being classified as a Class 1 proposal for an instrument;

(2) Subsection 7 (6) of the Regulation is amended by striking out “the Great Lakes Charter” at the end and substituting “Article 205 of the Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement of 2005”.

10. Section 8 of the Regulation is revoked and the following substituted:

Transition

8. (1) This Regulation, as it read on December 31, 2014, applies to applications received before January 1, 2015.

(2) This Regulation, as it read on or after January 1, 2015, applies to applications received on and after January 1, 2015.

(3) This Regulation, as it read on or after January 1, 2015, applies to decisions under section 34.1 of the Act to cancel or amend a permit or issue a new permit, whether the water taking is authorized by a permit that is issued before, on or after January 1, 2015.

11. (1) Subsection 9 (1) of the Regulation is revoked and the following substituted:

Duties of permit holders

(1) Every holder of a permit, other than a related transferor, shall collect and record data on the volume of water taken daily.

(2) Subsection 9 (4) of the Regulation is amended by striking out “subsection 34 (6)” and substituting “subsection 34.1 (8) or (9) or subsection 34.7 (2)”.

(3) Subsections 9 (5), (6), (7) and (8) of the Regulation are revoked.

12. The Regulation is amended by adding the following section:

Manner of calculating average amount of water per day

10. For the purposes of sections 34 to 34.11 of the Act and this Regulation, the average amount of water per day is the highest average amount of water per day that is determined by finding the simple moving averages of the amount of water per day for each consecutive 90-day period that falls within the longer period for which the calculation is made.

13. Sections 11 and 12 of the Regulation are revoked and the following substituted:

Transfers

Related transferor

11. For the purpose of subclause (b) (ii) of the definition of “related transferor” in subsection 34.5 (1) of the Act, a prescribed class of persons consists of persons who own or operate water works and in respect of whom the following circumstances apply:

1. The water works owned or operated by the persons,

i. are connected to another water works which distribute or will distribute water that is or will be transferred, and

ii. are capable of supplying the threshold amount.

2. The Director or the Minister, as the case may be, is of the opinion that the distribution of the transferred water by the water works owned or operated by the persons must be regulated by a permit in order for the transfer to satisfy the criteria set out in subsection 34.6 (3) of the Act.

Great Lakes watersheds

12. (1) Subject to subsection (3), a Great Lakes watershed consists of the area shown to be within the boundaries of that watershed in a data file entitled “Great Lakes - St. Lawrence Basin Watersheds — Ontario Water Resources Act”, dated March 15, 2010, as amended from time to time, that is maintained by the Ministry of Natural Resources and Forestry as part of its Land Information Ontario initiative and available on a website of the Government of Ontario.

(2) Subject to subsection (3), the watershed of each connecting channel of a Great Lake consists of the area shown to be within the boundaries of that watershed in the data file referred to in subsection (1).

(3) If large scale mapping or information from an on-site field investigation establishes the location of all or part of the boundary of a Great Lakes watershed or a watershed of a connecting channel of a Great Lake with greater accuracy than the location shown in the data file referred to in subsection (1), the boundary of that watershed shall be adjusted accordingly.

Connecting channels of Great Lakes watersheds

13. The boundaries of a Great Lakes watershed include the upstream connecting channel, as set out in Column 2 of the Table to this section opposite the name of the Great Lake, and the downstream connecting channel, as set out in Column 3 of the Table opposite the name of the Great Lake.

TABLE


Item


Column 1
Name of Great Lake watershed


Column 2
Name of upstream connecting channel(s)


Column 3
Name of downstream connecting channel(s)




1.


Lake Superior


N/A


St. Mary’s River




2.


Lake Huron


St. Mary’s River


Detroit River
Lake St. Clair
St. Clair River




3.


Lake Erie


Detroit River
Lake St. Clair
St. Clair River


Niagara River




4.


Lake Ontario


Niagara River


N/A




Determination of threshold amount

14. (1) Subject to subsection (2), for the purposes of subsection 34.6 (1) of the Act, the determination of whether an application for a new transfer or an increased transfer would be the threshold amount must take into consideration all amounts of water transferred by the permit holder between the same Great Lakes watersheds to which the application relates that were approved during the period set out in subsection (3).

(2) If the application is made by a permit holder who is authorized to transfer water under more than one permit, consideration shall also be taken of the amount of water transferred as a result of any new transfers or increased transfers under the other permit or permits that were approved during the period set out in subsection (3) if,

(a) the application is by a municipality and the water that is transferred under the other permit or permits supplies water to a common distribution system to which the proposed new transfer or increased transfer relates; or

(b) the application is by a permit holder, other than a municipality, and the water that is transferred under the other permit or permits supplies water to the same facility, undertaking or enterprise to which the proposed new transfer or the increased transfer relates.

(3) The period referred to in subsection (1) is,

(a) if the application is made on or before December 31, 2024, the period starting January 1, 2015 until the application date; or

(b) if the application is made on or after January 1, 2025, the period starting 10 years before the date of the application until the application date.

Exemption from s. 34.6 (1) of the Act

15. Subsection 34.6 (1) of the Act does not apply in respect of an amendment to a permit or issuance of a new permit to authorize a new or increased taking of water where some or all of the water is to be transferred if,

(a) the Environmental Assessment Act applies to the holder of the permit; and

(b) the issuance of or amendment to the permit to increase the amount of water the holder is permitted to take is authorized as a result of,

(i) an environmental assessment of an undertaking that was approved on or before December 31, 2014, or

(ii) a Schedule B or C project considered under the Municipal Class Environmental Assessment if,

(A) a notice of completion was issued for the project in accordance with the Municipal Class Environmental Assessment on or before December 31, 2014, and

(B) no request has been made for an order under Part II of the Environmental Assessment Act or, if such a request was made, the request was denied.

Exemptions from ss. 34.5 to 34.8 of the Act

16. Sections 34.5 to 34.8 of the Act and sections 17 to 19 of this Regulation do not apply to the transfer of water in each of the following circumstances:

1. The transfer of water is from a Great Lakes watershed to a watershed of a downstream connecting channel of that Great Lake as set out in section 13.

2. The transfer of water is from a watershed of a downstream connecting channel of a Great Lake to the watershed of that Great Lake as set out in section 13.

3. The water is taken from a location in the St. Lawrence River that is within 10 kilometres of the point at which Lake Ontario flows into the St. Lawrence River and transferred to the Lake Ontario watershed.

4. The water is taken from a location in Lake Ontario that is within 10 kilometres of the point at which Lake Ontario flows into the St. Lawrence River and transferred to the St. Lawrence River watershed.

Determination of amount re consumptive use

17. (1) For the purposes of subparagraphs 1 i , 2 i and 3 i of subsection 34.6 (2) of the Act and paragraph 1 of subsection 34.6 (3) of the Act, the determination of the amount of water lost through consumptive use shall be made in accordance with a method specified by the Director and made available on a website of the Government of Ontario.

(2) For the purposes of subparagraph 3 i of subsection 34.6 (2) of the Act and for determining if an application for a new transfer or an increased transfer is to be referred to the Minister in accordance with subsection 34.1 (12) of the Act, the determination of the amount of water that would be lost through consumptive use as a result of the proposed new transfer or increased transfer shall be made,

(a) in accordance with the method identified in subsection (1); and

(b) subject to subsection (3), by taking into consideration all amounts of water lost through consumptive use as a result of the holder’s new transfers and increased transfers between the same Great Lakes watersheds to which the application relates that were approved during the period set out in subsection (4).

(3) For the purposes of clause (2) (b), if the application is made by a permit holder who is authorized to transfer water under more than one permit, consideration shall also be taken of the amount of water lost through consumptive use as a result of any new transfers or increased transfers under the other permit or permits that were approved during the period set out in subsection (4) if,

(a) the application is by a municipality and the water that is taken under the other permit or permits supplies water to a common distribution system to which the proposed new transfer or increased transfer relates; or

(b) the application is by a permit holder, other than a municipality, and the water that is taken under the other permit or permits supplies water to the same facility, undertaking or enterprise to which the proposed new transfer or increased transfer relates.

(4) The period referred to in clause (2) (b) is,

(a) if the application is made on or before December 31, 2024, the period starting January 1, 2015 until the application date; or

(b) if the application is made on or after January 1, 2025, the period starting 10 years before the date of the application until the application date.

Permits, inclusion of specifically directed terms and conditions

18. If, under subsection 34.7 (3) of the Act, the Director directs a term or condition described in subsection 34.7 (2) of the Act to a particular holder of a permit who is or will be taking water under the permit or who is or will be a related transferor with respect to the permit or to any two or more of them, the term or condition must be included in the part or parts of the permit or any schedule or schedules to the permit that are applicable to the holder or holders to whom the term or condition is directed.

Determining amount of water currently being transferred

19. (1) If a holder of a permit is a person who transfers water that is taken under the authority of two or more permits, the holder may make a request under section 34.8 of the Act for a determination in respect of all the permits that relate to the holder’s transfers, and subsections (2) to (6) of this section apply to the request with necessary modifications.

(2) Subject to subsections (3), (4) and (5), for the purposes of section 34.8 of the Act, the amount of water the Director may specify is deemed to currently be transferred by a holder shall be the amount of water any holder is authorized to take under the holder’s permit as of the day this section comes into force.

(3) Despite subsection (2), if the Environmental Assessment Act applies to a permit holder and the holder’s permit is amended or a new permit is issued on or after the day this section comes into force to increase the amount of water the holder is permitted to take, the amount of water the Director may specify is deemed to currently be transferred by the holder shall be the increased amount of water the holder is authorized to take, but only if that increased amount is authorized as a result of,

(a) an environmental assessment of an undertaking that was approved on or before December 31, 2014; or

(b) a Schedule B or C project considered under the Municipal Class Environmental Assessment if,

(i) a notice of completion was issued for the project in accordance with the Municipal Class Environmental Assessment on or before December 31, 2014, and

(ii) no request has been made for an order under Part II of the Environmental Assessment Act or, if such a request was made, the request was denied.

(4) Despite subsection (2), if water is taken under a permit by a municipality and the majority of the water that is being transferred under the permit is for use by another municipality, the Director may specify that the amount of water that is deemed to currently be transferred by the permit holder is lower than the amount authorized under the permit if the Director is of the opinion that it is reasonable to do so under the circumstances.

(5) Despite subsection (2), if a proposed new transfer or increased transfer has undergone the prior notice and consultation process under the Great Lakes Charter or that process was begun on or before December 31, 2014, the Director shall deem the person making the request to currently be transferring under the permit the amount of water considered under the Great Lakes Charter if the Ministry of Natural Resources and Forestry has notified the Director that Ontario’s prior notice and consultation obligations under the Great Lakes Charter in respect of the proposed new transfer or increased transfer have been satisfied.

(6) After determining the amount of water that is currently deemed to be transferred for the purpose of section 34.8 of the Act, the Director shall amend the permit or issue a new permit to,

(a) specify the amount of water that is deemed to be currently transferred under the permit;

(b) designate, for each person who is a related transferor with respect to the permit, a part of or schedule to the permit that will apply to the person and include any conditions the Director considers appropriate to be directed specifically to that person in that part or schedule; and

(c) with respect to each holder of the permit who makes a transfer, specify all other permits in respect of which the holder makes transfers and the total amount of water under all of the permits that the holder is authorized to transfer.

Reciprocating jurisdictions

20. For the purpose of the definition of “reciprocating jurisdiction” in section 34.9 of the Act, the following are prescribed as reciprocating jurisdictions:

1. The Province of Quebec.

2. The states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio and Wisconsin.

3. The Commonwealth of Pennsylvania.

Commencement

14. (1) Subject to subsections (2) to (4), this Regulation comes into force on the day it is filed.

(2) Section 1, subsections 2 (2) and (4), sections 3 and 7 and subsections 9 (2) and 11 (3) come into force on the later of January 1, 2015 and the day this Regulation is filed.

(3) Subsections 2 (1) and (3), sections 4, 5, 6, 8 and 10, subsection 11 (2) and section 12 come into force on the later of the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force and the day this Regulation is filed.

(4) Subsections 2 (5), 9 (1) and 11 (1) and section 13 come into force on the later of the day subsection 1 (12) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force and the day this Regulation is filed.