Save Our Water Requests New Policies for Water-Taking Permits

Save Our Water and Wellington Water Watchers, with the assistance of Ecojustice, submitted the following ‘Application for Review’ to Ontario’s Environmental Commissioner.

We requested a review of the need for new policy changes that would protect the environment by improving Ontario’s water management system and strengthening climate change resiliency.

The application stressed the need for new policies on these issues and others:

  • consideration of climate change uncertainty in decisions on permits to take water
  • prioritizing uses of water
  • improving accountability in water permit renewals
  • ensuring financial resources for Ontario’s water management system through increased charges.

Although we included the need for increased fees, we acknowledge that no amount of money will keep the water in the ground; this is strictly an administrative charge. Regarding renewals, we asked that the policy be revoked by which companies can continue to extract water after their permit has expired when renewal decisions are delayed, without any consideration of drought or environmental changes.

We also requested that the Ministry of the Environment and Climate Change stand up to its own Statement of Environmental Values.

The Ministry decided that a review of these issues was warranted, as requested, and is undertaking the review. This review is being aligned with the policy changes for the water bottling industry, under the moratorium that was announced a few months later in October 2016.

 

Text of the Application:

  1. Applicants

 Wellington Water Watchers and Save Our Water

  1. Request for Application for Review

We request that the Ministry of the Environment and Climate Change review:

            Ontario Water Resources Act, RSO 1990, c O 40, sections 34 and 34.1, as amended

Charges for Industrial and Commercial Water Users, O Reg 450/07, as amended

Water Taking and Transfer, O Reg 387/04, as amended

 

Specifically, we request that a review assess the need for new provisions in law, regulation, and/or policy that enhance Ontario’s water management system in order to improve climate resiliency.

The above noted law, and regulations thereunder, are prescribed for the purposes of Part IV of the Environmental Bill of Rights, 1993 (see s3(1)15, 6(1), 7(1) of O Reg 73/94).

  1. We believe that the ministry should undertake our Review to protect the environment because:

We applaud Ontario’s recently released Climate Change Action Plan. It is ambitious and forward looking. We ask that the Ontario government set an equally ambitious plan for ensuring climate resilience, particularly with respect to the impacts of climate change that are being or will be felt through water. Ontario’s Climate Ready: Ontario’s Adaptation Strategy and Action Plan 2011-2014 contained some key actions relating to water; these were not particularly ambitious and have not been fully realized. As well, the adaptation strategy and plan is out of date and, to our knowledge, has not been reviewed or renewed.

3.1       Reviewing Ontario’s water management system through a climate lens is consistent with the Ministry’s Statement of Environmental Values

The Statement of Environmental Values: Ministry of the Environment and Climate Change includes the following principles:

The Ministry adopts an ecosystem approach to environmental protection and resource management. This approach views the ecosystem as composed of air, land, water and living organisms, including humans, and the interactions among them.

The Ministry considers the cumulative effects on the environment; the interdependence of air, land, water and living organisms; and the relationships among the environment, the economy and society.

The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment. Planning and management for environmental protection should strive for continuous improvement and effectiveness through adaptive management.  Each of these principles is crucial to ensuring climate resilience.

Further, the 2005 Permit To Take Water (PTTW) Manual includes the following commitments:

  • incorporating risk management principles;
  • using an ecosystem approach;
  • considering cumulative impacts; and
  • promoting public and local agency involvement.[1]
  1. 2 Integration of consideration for droughts, floods, and climate change uncertainty is needed

 

The impacts of climate change on our water resources include increased incidence and duration of droughts as we are currently experiencing in central and southern Ontario, increased intensity of rainfall, and more uncertainty with respect to the availability of water. This was strongly demonstrated in 2012 where much of Ontario was officially in Level 2 water restrictions but actually in Level 3; however, as pointed out by the then Environmental Commissioner of the Environment (ECO) Gord Miller, there lacked the proper mechanism to declare Level 3 officially.

Without a mechanism to respond quickly to changes in availability, the impacts on ecosystems can be very dramatic, with entire lakes disappearing. Over the years, the ECO has made recommendations that would improve the program’s responsiveness, including: “The ECO recommends that MOE revise its PTTW regulation and its basic terms and conditions for permits to take water to include mandatory water use reduction rules consistent with the Ontario Low Water Response plan.”[2]

As well, the province now has significantly more information available, including water budgeting through the drinking water source protection program and reporting of actual amounts of water taking through the water management program. This information needs to be used to more accurately track the availability and uses of water within watersheds. The ECO recently made recommendations regarding “New Ways to Understand Water Quantity: Tools the Ministry Could Use to Inform Permitting Decisions”[3], which are a great place to start.

Further, in order to be able to effectively consider cumulative impacts and pressures on the ecosystem, the Ministry must consider aligning permit expiry, renewal, and issuance deadlines within watersheds, as suggested by the ECO in 2008.[4] If all permits within a particular watershed were being considered at the same time, it would allow for regional planning on an ecosystem basis.

3.3       Conservation and wise use requires appropriate financial signals

The ECO and the Commission on the Reform of Ontario’s Public Services have commented on the lack of full cost recovery through the water charges scheme.[5] Conducting a comprehensive review of Ontario’s water management program will enable the Ministry to ensure both that the administration of the program is focussed on the appropriate needs and that the financial resources are being provided through a fulsome implementation of the water charges scheme, including increasing the rate charged to the current highly consumptive users as well as phasing in additional users.

3.4       Uses need to be prioritized

Ecosystem needs and human uses for drinking water, sanitation, and food must be prioritized over industrial and commercial uses, particularly during times of drought. The ECO has repeatedly suggested that the Ministry needs to “develop a clear policy for prioritizing water uses to ensure that PTTWs are allocated in both an ecologically sustainable and socially desirable manner”.[6] As well, the ECO recommends that the Ministry needs to develop a methodology to assess the water needs of ecosystems when reviewing applications for Permits to Take Water.[7]

Further, the current categorization system, which allows renewals of permits for same amounts and same uses to go ahead with the least scrutiny is not consistent with the principles contained in the Ministry’s Statement of Environmental Values. The categorization system needs to reflect the type of use (e.g., highly consumptive uses) and the conditions in the watershed (e.g., cumulative impacts).

One hundred percent consumptive use permits such as ones used for the purposes of water bottling, must be vetted through a more stringent permitting process for the following but not limited to factors; none of the water is being replenished into the local ecosystem and is by design unsustainable, the water is not used for value-added processes, this water extraction competes with uses of pubic good such as municipal permits, this type of water extraction was not foreseen when the Permit to Take Water process was conceived/implemented, and this type of water extraction runs counter to the Ministry’s Statement of Environmental Values. We recommend that such permits be refused as almost all the water extracted not only leaves the watershed from which it is drawn but leaves the Province and Ontario.

Given the purpose of the Ontario Water Resources Act and the water management regime in Ontario, renewal of a permit is not a right but a privilege.

We recommend that highly consumptive uses be subject to a more rigorous application and renewal process where public input is weighted more heavily.

3.5       Automatic extensions of existing permits when renewal decision is delayed requires more accountability

Subsection 34.1(6) deems existing permits to remain in force under certain conditions, including that the Director has not made a decision about whether to renew or refuse to renew the permit before the expiry date. No notice to the public is provided via the Environmental Registry regarding such extensions and there is no limitation to the amount of time that the Director can take to make the decision about the renewal request. As such, the extension of existing permit conditions may go on for a significant period of time. There needs to be more accountability associated with such delays. We recommend, at a minimum, that there be notice given on the Environmental Registry if the renewal decision is delayed by more than 90 days past the existing permit’s expiry date and that there be automatic restrictions applied to the existing permit in periods of drought (e.g., that the existing permit maximum is reduced by 20% if the extension occurs during a low water period).

  1. 6 Water management program is not subject to periodic review

Although the water management program in Ontario has seen some changes in recent years, there has not been an in-depth consideration and revision of the program since 2005-2007. As well, the Ontario government committed in the 2012 provincial budget that they would move forward with ensuring cost recovery for the water charges program. With evolving understanding of climate change and the impacts, as well as several unfulfilled recommendations from the ECO and others, we suggest that is it time that the Ministry of Environment and Climate Change takes on a comprehensive review of the water management program.

  1. The following is a summary of the evidence that supports our Application for Review:

Environmental Commissioner of Ontario. 2008. “Drought in Ontario? Groundwater and Surface Water Impacts and Response.” Getting to K(No)w, ECO Annual Report, 2007-08. Toronto, ON: Environmental Commissioner of Ontario. 49-56.

Environmental Commissioner of Ontario. 2012. “Water-Taking: Leave Something for the Fish.” Losing Our Touch, ECO Annual Report, 2011-12. Toronto, ON: Environmental Commissioner of Ontario. 105-112.

Environmental Commissioner of Ontario. 2015. “Public Participation in Water-taking Decisions.” Small Things Matter, ECO Annual Report, 2014/15. Toronto, ON: Environmental Commissioner of Ontario. 82-94.

Environmental Commissioner of Ontario. 2015. “A Drop in the Bucket: Water-Taking Charge Falls Short of Recovering Costs.” Small Things Matter, ECO Annual Report, 2014-15. Toronto, ON: Environmental Commissioner of Ontario. 82-86.

Commission on the Reform of Ontario’s Public Services. 2012. “Move towards full cost recovery and user-pay models.” Public Services For Ontarians: A Path To Sustainability And Excellence. (Drummond Report) Toronto, ON: Queen’s Printer for Ontario. 336-337.

 

[1] ECO. 2015. “Public Participation in Water-Taking Decisions.”

[2] ECO. 2008. “Drought in Ontario? Groundwater and Surface Water Impact and Response.”

[3] ECO. 2015. “Public Participation in Water-Taking Decisions.”

[4] ECO. 2008. “Drought in Ontario? Groundwater and Surface Water Impact and Response.”

[5] ECO. 2015. “A Drop in the Bucket: Water-Taking Charge Falls Short of Recovering Costs.”; Drummond Report, 2012.

[6] ECO, 2008, “Drought in Ontario? Groundwater and Surface Water Impact and Response.”; see also ECO. 2012. “Water-Taking: Leave Something for the Fish.”

[7] ECO. 2012. “Water-Taking: Leave Something for the Fish.”