PROPOSAL FOR AMENDMENTS TO

ONTARIO REGULATION 387/04 WATER

TAKING AND TRANSFER
PURSUANT TO:
Ontario Water Resources Act, 2011

November 25, 2015

Olumide Ayoola, Aura Carballo

Sylvia Chinazo, Michelle Gluck

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

TABLE OF CONTENTS
1.0.

PURPOSE OF AMENDMENT.............................................................................. 1

2.0.

OBJECTIVES OF AMENDMENT........................................................................ 1

3.0.

DESCRIPTION OF EXISTING LEGISLATION ................................................. 1

4.0.

JUSTIFICATION OF AMENDMENT .................................................................. 3

5.0.

PROPOSED AMENDMENTS TO ONTARIO REGULATION 387/04 .............. 4

5.1. Permits .................................................................................................................. 4

5.1.1. Section 4 Matters to be consider by the Director ....................................... 4
5.1.2. Section 4(4.2) Exemption from Section 34(1) of the Act ............................. 5

5.2. Data and Reporting ............................................................................................... 6

5.2.1. Section 9 Duties of permit holders .............................................................. 6

5.3. Proposed Addition ................................................................................................ 7

5.3.1. Section 11 Public Consultation................................................................... 7

6.0.

FURTHER STEPS ................................................................................................. 8

7.0.

REFERENCES ....................................................................................................... 8

November 25, 2015

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

1.0. PURPOSE OF AMENDMENT
The purpose of the proposed amendments to Ontario Regulation 387/04 Water Taking and
Transfer under the Ontario Water Resources Act, 2011 (OWRA) is to establish a more
rigorous and comprehensive framework for withdrawing water from water bodies in the
province of Ontario.

2.0. OBJECTIVES OF AMENDMENT

The objectives of the proposed amendments to Ontario Regulation 387/04 are as follows:
1. To increase the overall protection and security of Ontarios surface water and
groundwater supply.
2. To restore the hydrological and ecological integrity of Ontarios surface water and
groundwater supply.
3. To ensure and further promote the sustainable use of water in the province of Ontario.
4. To encourage communities in Ontario to participate in the decision of issuing permits
for water taking.

These objectives will be achieved by expanding the information required for consideration
in order to issue a permit for water taking, as well as expanding the requirements of water
data recording and reporting in the province of Ontario.

3.0. DESCRIPTION OF EXISTING LEGISLATION

The existing legislation pertaining to the proposed amendments are Ontario Regulation
387/04 Water Taking and Transfer under the Ontario Water Resources Act, 2011.

November 25, 2015

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

The purpose of OWRA is to provide the protection, management and conservation of
Ontarios waters through their efficient and sustainable use, in order to ensure the long-term
environmental, social and economic wellbeing of the province and its citizens. In the
province of Ontario, the withdrawal of large quantities of water (i.e. 50 000 litres and
greater) is governed by OWRA. Section 34 of the Act states that any individual or
organization taking more than 50 000 litres of water per day from a river, stream, lake or
underground source in Ontario must first apply for and obtain a Permit to Take Water
(PTTW) from the Ministry of the Environment and Climate Change (MOECC). The limits
regarding the total quantity of water that can be withdrawn by each permit holder is
determined by the MOECC, and holds for a maximum period of ten years.

Ontario Regulation 387/04 Water Taking and Transfer outlines the matters that the
Director of the MOECC must consider when reviewing an application for a PTTW. PTTWs
are used to ensure the fair sharing, conservation and sustainable use of Ontarios waters.
The relevant issues that must be considered when assessing PTTW applications are as
follows:

The demonstrated need for the water.

The need to protect the natural functions of the ecosystem from which the water is
being withdrawn, including the natural variability of water flow or water levels,
minimum stream flow, and habitat that depends on these variables.

The potential impact on the quality and quantity of surface water and groundwater from
which the water is being withdrawn.

November 25, 2015

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

Issues related to water availability, including low water conditions and the current level
of existing water use in the watershed from which the water is being withdrawn.

Whether water conservation measures have been implemented or will be implemented

in the region from which the water is being withdrawn, and whether these measures are
or will be in accordance with best water management standards and practices for that
particular sector withdrawing water.

Under OWRA and Ontario Regulation 387/04, applicants must first identify and state their
goals for reducing the use, loss or waste of water in order to increase the efficiency of water
use. For example, this may include stating the proposed number of litres per day per unit of
production for the industrial sector. Finally, applicants are asked to identify any approval or
certification that they have been granted for implementing best water management
practices.
4.0. JUSTIFICATION OF AMENDMENT
According to section 34(1) of OWRA, the parameters for withdrawing water of quantities
equal to or greater than 50 000 litres do not apply to watering livestock or poultry. In fact,
among all Ontario agricultural water users, the only individuals who are required to obtain
a PTTW under OWRA are irrigation farmers who take water into storage. Under existing
legislation, only these individuals can be required to meter their water usage (de Lo et al.,
2013). This essentially means that a significant portion of water usage data in Ontario is
missing.

November 25, 2015

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

Groundwater is often used in agriculture, primarily for crop irrigation and for the watering
of livestock. According to a study conducting research on groundwater use in Canada,
declining water levels related to human activities are mostly a result of intensive local
groundwater pumping for use in industry and agriculture (West Coast Environmental Law,
2004). Producing livestock for human consumption requires a steady supply of water,
which in Canada is provided almost entirely by groundwater. In southwestern Ontario,
seasonal demands for irrigation result in significant amounts of stress being placed on the
groundwater system.

In terms of sustainability, all water sources can be equally affected by pollution regardless
of their intended use. Thus, exceptions should not be made to any sector regarding the
withdrawal of water in the province of Ontario. All individuals must be aware of and must
promote the conservation and efficient use of all water sources despite their intended
purpose(s), whether it be for domestic, industrial, commercial or agricultural uses.

5.0. PROPOSED AMENDMENTS TO ONTARIO REGULATION 387/04

5.1. Permits
5.1.1. Section 4 Matters to be consider by the Director
Section 4(2) Matters to be consider by the Director discusses the information required by
the Director of the MOECC to analyze the potential impact on the natural functions of the
ecosystem from which water is withdrawn by a permit-holder. This information is also
required to determine the current water availability and current use(s) of water in the

November 25, 2015

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

reservoir. However, simulations and more complex studies used to predict future climatic
conditions that may affect groundwater quality and quantities are currently available.

It would be beneficial for the Director to consider additional scientific and statistical data,
including simulations and studies, in order to issue, revoke or renew a PTTW with greater
knowledge and confidence. We propose that the Director should consider the results of
simulations of groundwater availability within a twelve-year period, as this is the average
amount of time it takes to recharge watershed. This would result in increased accuracy
regarding the production of water in a watershed from which water has been withdrawn by
a permit-holder.
5.1.2. Section 4(4.2) Exemption from Section 34(1) of the Act
Section 4(4.2) Exemption from Section 34(1) of the Act reiterates the fact that watering
livestock or poultry is exempt from the legislation under OWRA requiring permits for
those who withdraw 50 000 litres or more of water from a water body in Ontario.
We propose that the watering livestock or poultry should not be exempted from this
section, due to studies that indicate that this sector has been withdrawing enormous
quantities of water, unregulated, for the past several decades. A study conducted by
Ecologistics Limited (1993) applied coefficients to estimate the amount of water withdrawn
by the agricultural sector in Ontario in 1991. The coefficients were later applied to the 1996
Census of Agricultural data. The data estimates that the agricultural sector withdrew
approximately 168 million litres in 1991 and 173.2 million litres in 1996 (de Lo et al.,
2013). Given the increase between 1991 and 1996, we assume that this quantity has been
increasing further since 1996 primarily due to population increase (i.e. increased demand
November 25, 2015

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

for livestock and crops). For this reason, the agricultural sector should be subject to
PTTWs.

5.2. Data and Reporting

5.2.1. Section 9 Duties of permit holders
Section 9 Duties of permit holders outlines the responsibilities of those who have
obtained a PTTW under OWRA. The permit holder is required to submit information to the
MOE regarding their water use.

We propose that the information required by the MOECC should be expanded in such a
way that demonstrates how water is currently being managed by the permit holder under a
water management plan previously approved by the Director. The permit holder should
demonstrate that the water management plan was executed with all measures and practices
considered in Schedule 1 Implementation of Water Conservation in accordance with Best
Management Practices and Standards for the Relevant Sector. Schedule 1 is contained
under the authority of OWRA and the new Environmental Bill of Rights, C. 28., Statutes of
Ontario, 1993.

The report submitted by the permit holder to the MOE should contain the collection
methodology and recording of data regarding the volume of water withdrawn daily from
the source. The permit holder should also demonstrate the efficient use of water through
successful implementation of measures related to the water management plan previously
approved by the Director. These measures may include:

November 25, 2015

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

Water use audit(s)

Universal metering of all users (municipalities)

Installation of water efficient fixtures, equipment and/or technology

Development and implementation of a water conservation and efficiency program

Implementation of a leak detection/loss prevention/control program

Public/employee information/education/outreach

Landscaping techniques/site and urban design principles promoting sustainable use

Water-efficient production processes/practices (e.g. re-use of water)

Economic incentives/cost-share/full costing recovery/ tax credits/rebate programs

In addition, the current regulation requires that the report be submitted to the MOECC once
a year. We propose that a report be submitted every 90 days, in order to have more control
and overall knowledge of the water use, and to ensure efficient water use during the time
that the PTTW is valid.

5.3. Proposed Addition

5.3.1. Section 11 Public consultation
We propose that Section 11 Public consultation be added to Ontario Regulation 387/04.
This section would outline the requirement of the involvement of the public in matters
related to water withdrawals in the province of Ontario. Protecting Ontarios water
resources is an integral part of the success of this regulation. We believe that community
involvement should be included to ensure that the public is involved in the decision-making
process related to revoking, amending, refusing or issuing a permit related to water taking.

November 25, 2015

PROPOSAL FOR AMENDMENTS TO O. REG. 387/04

6.0. FURTHER STEPS
There are several steps involved with the processing of the Proposal for Amendments to
Ontario Regulation 387/04 Water Taking and Transfer. These steps are as follows:

1. The proposal shall be submitted to the MOECC.

2. The MOECC shall post the regulatory proposal on the Environmental Registry for
public consultation.
3. After public review and comments, the MOECC will consider, as necessary, all
comments received during the period and will make decisions as such.
4. The MOECC shall decide to proceed with or decline the proposed amendments.
Proceeding with the proposal will lead to regulation.

7.0. REFERENCES
1. Government of Ontario. Ontario Water Resources Act, R.S.O. 1990, c. O.40.
2. Government of Ontario. Ontario Regulation 387/04: Water Taking and Transfer.
3. Government of Ontario. Schedule 1 Implementation of Water Conservation in
accordance with Best Management Practices and Standards for the Relevant Sector.
4. Rob De o , Reid Kreutzwiser & Janet Ivey (2001) Agricultural Water Use in
Ontario, Canadian Water Resources Journal, 26:1, 17-42, DOI:
10.4296/cwrj2601017
5. West Coast Environmental Law (2003) Groundwater Use in Ontario. Retrieved from
http://www.wcel.org/sites/default/files/publications/Groundwater%20Use%20in%20
Canada.pdf

November 25, 2015