CELA Brief # 347
ISBN #1-894158-36-9
1. Introduction

The Canadian Environmental Law Association (CELA) is a public interest group founded in 1970 for the purpose of using and improving laws to protect the environment and conserve natural resources. Funded as a community legal clinic specializing in environmental law, CELA represents individuals and citizens' groups before trial and appellate courts and administrative tribunals on a wide variety of environmental issues. In addition to environmental litigation, CELA undertakes public education, community organization, and law reform activities.

The purpose of this brief is to provide CELA's comments on the Ministry of the Environment's (MOE) Surface Water Transfers Policy, which was implemented on or before May 14, 1998. The Policy was posted on the Environmental Bill of Rights Registry on May 14, 1998, EBR Registry Number PA8E0027, with a thirty-day comment period.

CELA has had a lengthy history of researching and writing on water issues. The Great Lakes is one topic in which we possess particular expertise, as evidenced by recent reports on water quantity and quality respectively.[note1]

CELA has also been involved in law reform initiatives and litigation involving groundwater issues and participated in the development of water conservation strategies sponsored by the Ministry of Natural Resources. CELA is well positioned to provide comments on this policy.

In summary, CELA makes the following recommendations:

Recommendation No. 1: The Need for a New Sustainable Water Act

The Government of Ontario should repeal the Water Transfers Control Act and substantially amend the Ontario Water Resources Act to take a proactive and comprehensive approach to water management in Ontario. It should enact a new statute, the Sustainable Water Act, that would evaluate water taking permits using an individual watershed approach based upon a hierarchy of needs of which protection of ecosystem function is the primary need, and based upon concepts such as carrying capacity, cumulative impacts and predicted future supplies and demands.

Recommendation No. 2: Criteria for Issuance of Water Taking Permits

The Ministry should implement laws and undertake initiatives to work proactively to identify and protect Ontario's water resources. Specific criteria should be prescribed for the issuing of permits to take water. Evaluating requests to take water on a case by case basis will inevitably lead to further crises occurring.

Recommendation No. 3: Specific Changes in Policy Needed

The Surface Water Transfers Policy and the proposed Sustainable Water Act should be worded in such a manner as to:

(a) provide an outright ban on interbasin water transfers, or only allow such transfers under prescribed conditions;

(b) be applied on an individual watershed basis as opposed to dividing the whole of Ontario into only two basins;

(c) take all relevant laws and policies into account, not only those of the Ministry of the Environment; and

(d) incorporate provisions that place appropriate restriction on water transfers that occur through the sale of bottled water.

Recommendation No. 4: Need for More Resources to Protect Ontario's Waters

The Ministry must employ a sufficient level of properly trained staff to review permits to take water thoroughly.

Recommendation No. 5: Information Needs

State of the Environment reporting and adequate baseline data must be generated and maintained to provide an accurate account of the state of Ontario's water resources.

Recommendation No. 6: Reporting and Enforcement

The Ministry of the Environment should develop specific reporting requirements for permit holders and make enforcement of permits a priority. Adequate resources should be allocated to carry through on this priority.

2. The Need for a Comprehensive Sustainable Water Law in Ontario

The Surface Water Transfers Policy ("The Policy") was introduced in early May. Before its introduction, there was absolutely no indication by the Government of an intention to introduce such a policy, no apparent background research conducted, and no public consultation was held on the proposal. It is apparent that this Policy was introduced in response to the public and international outcry that emanated over the announcement by the Ministry in April that it had issued a permit to take water to the Nova Group to export water from Lake Superior to Asia.

It should be noted that, since at least the mid-1980s, the environmental community has been calling consistently for a more comprehensive and detailed regulatory policy designed to protect Ontario's water resources, especially in light of the threat to these resources emanating from the conclusion of the Canada-U.S. Free Trade Agreement and the North American Free Trade Agreement. The failure to promulgate laws to protect the province's water resources has left them open to unfettered commercial exploitation. In fact, a number of multi-national water companies, ready to take advantage of the regulatory gaps in Ontario, have opened offices in the province. Rather than pursuing a more extensive and comprehensive process to develop an effective regulatory strategy, the proposal under consideration is clearly a quick response to the recent export threat. The inevitable result is a wholly inadequate response to deal with the long-term crises facing Ontario's water resources from population growth and climate change.

The proposed policy is intended to supplement the Ontario Water Resources Act, (OWRA), as a means of managing all of Ontario's water supplies. However, the OWRA was not designed to deal with inter-basin transfers and water diversion projects. It is primarily intended to deal with allocations of water between municipalities and between neighbouring landowners.[note2]

The primary mechanism for allocation of water resources under the OWRA is the issuance of water taking permits. Water taking permits are issued to individual domestic users an a case by case basis. Moreover, permits are generally issued unless an immediate interference is demonstrated between neighbouring users. There is little consideration of the larger scale impacts of water takings in Ontario on a particular aquifer as a whole, on an entire watershed, or on the ecosystem in general. In fact, there is little guidance derived from the Ministry of the Environment's primary policy in this regard, namely, Water Management: Goals, Policies, Objectives and Implementation Procedures of the Ministry of the Environment.

It is CELA's position that the OWRA is neither designed for, nor capable of dealing with, the demands being placed upon Ontario's waters. Moreover, issuing permits on a case by case basis does not result in a consistent and comprehensive policy for Ontario's water resources. Water taking permits should only be issued in situations that meet strict criteria spelled out by statute, not on an individual case basis. But such regulatory criteria do not exist. Matters are further complicated because jurisdiction over water is fragmented between the MOE and the Ministry of Natural Resources.

It is therefore recommended that the province introduce a new law that enshrines in legislation the principle that Ontario's waters must be conserved and managed appropriately. This new law, a new Sustainable Waters Act, would entail creating a hierarchy of needs, with preservation of ecosystem functions being the foremost priority. The provision of potable water for drinking water and agricultural needs would be the next most important objective. Recreational, industrial and commercial uses should follow as lesser priorities. Short-term immediate uses, such as pollution control, flood control, and fire protection, would be allowed on a temporary use basis as long as the first priority, ecosystem function, is not compromised.

The Sustainable Water Act would also be comprehensive in that it would treat surface waters and ground waters in the same manner. Every watershed for each significant river in Ontario would be evaluated; its carrying capacity assessed, minimum flow requirements determined, ecosystem functions identified, and groundwater/headwater sources located and protected. All requests for permits to take water would thus be considered based upon this information and the cumulative impacts of all water taking permits within that watershed, not simply in relation to neighbouring uses.

The new proposed law would also ban out-of-basin transfers (see recommendations below).

It should be noted that Ontario has already passed a separate law to address inter-basin transfers, the Water Transfer Control Act.[note3] However, this Act was never proclaimed. Some components of this statute should be transferred to the new proposed law. However, since that law allowed the permitting of the inter-basin transfers, it has a number of systemic problems.

Recommendation No. 1: The Need for a New Sustainable Water Act

The Government of Ontario should repeal the Water Transfers Control Act and substantially amend the Ontario Water Resources Act to take a proactive and comprehensive approach to water management in Ontario. It should enact a new statute, the Sustainable Water Act, that would evaluate water taking permits using an individual watershed approach based upon a hierarchy of needs of which protection of ecosystem function is the primary need, and based upon concepts such as carrying capacity, cumulative impacts and predicted future supplies and demands.

3. Inadequacy of Surface Water Transfers Policy

The Surface Water Transfers Policy does not meet our first and most important requirement that a new Sustainable Water Act be passed. Although the Policy may be a step in the right direction, any policy suffers from the same affliction - it may be altered any time according to the winds of change. A "no water exports" policy today could become a "sell sell sell" policy tomorrow with the stroke of a pen and little public debate. The speed with which this current policy was implemented is clear evidence of its fragility. On the other hand, a law duly passed through the legislature is much more difficult to amend on short notice and without public scrutiny. Therefore, this policy can only be regarded as a stop gap measure at best.

Despite our position that a comprehensive Sustainable Water Act is required, CELA has made numerous comments and concerns regarding the current policy. It is fair to assume that when this government does pass a Sustainable Water Act, it will reflect the design and intention of the current Policy. Therefore, the following additional comments are made with the caveat that these amendments should be directed towards both the Surface Water Transfers Policy and a Sustainable Water Act. In effect, the following recommendations are made as interim measures pending the passing of the new Sustainable Water Act.

i) The Policy Still Operates under a "Permitting System" Regime

The Surface Water Transfers Policy still operates under a "permitting" system regime. In other words, each request to take water will continue to be examined on a case by case basis. This is a reactive process that will ultimately lead to the Ministry addressing further crises as they arise and, possibly too late. The Ministry needs to take a proactive approach and identify potential areas of concern and to take action before it reaches the crisis stage. In terms of water transfers between basins, a proactive approach would be to ban these outright by legislation. In the very least, water basin transfers should be strictly controlled and permitted only under certain conditions as prescribed by statute. Furthermore, these conditions should be identified in consultation with the public.

Noting that it is almost impossible to separate surface waters from groundwater, a proactive approach is also needed for other water taking permits. Under the OWRA, there are no provisions to designate certain areas or surface waters as protection areas. Thus, Ontario has no laws to designate significant wetlands, important groundwater recharge areas, or vital bodies of water and provide statutory protections accordingly. A proactive approach would be to identify these areas before conflict arises over their use and to prescribe the conditions under which these waters may be utilized, if they may be utilized at all. This will become increasingly important as the impacts of climate change are predicted to diminish Ontario's water resources.

Recommendation No. 2: Criteria for Issuance of Water Taking Permits

The Ministry should implement laws and undertake initiatives to work proactively to identify and protect Ontario's water resources. Specific criteria should be prescribed for the issuing of permits to take water. Evaluating requests to take water on a case by case basis will inevitably lead to further crises occurring.

ii) Inappropriate Wording Within The Policy

Another set of shortcomings with the Policy is that the precise wording used is often inappropriate given its objectives. These are each discussed in more detail below.

a) "Generally Opposed"

The Policy only states that the Ministry is "generally opposed" to interbasin water diversions, not outright opposed. More importantly, there is no clear articulation of what criteria apply as to when the Minister determines a transfer will occur. Section 5 of the policy directs the Director to consider a broad range of factors which are all quite vague. Furthermore, an environmental impact assessment is required for water takings that do not involve interbasin transfers, but is not explicitly required for those that do.

It is CELA's position that interbasin transfers should be banned outright, not "generally opposed". If transfers are to be approved in limited circumstances, then the proposal ought to be designated under the Environmental Assessment Act and evaluated accordingly with full public input.

b) Definitions of Basins is Far Too Broad

Splitting Ontario into only two water basins is far too large a scale to adequately control inter-basin transfers. Each of the Great Lakes and each individual watershed for major rivers should be designated as a basin and any transfer subject to intense scrutiny. There is the potential for significant environmental affects from the transfer of significant amounts of water from one watershed to another and in some circumstances, even within the same watershed. For instance, there have been various proposals to pipe water from Georgian Bay to municipalities within Lake Ontario's watershed. This could have a significant impact on water flows through Lake Huron, the St. Clair River, Lake Erie, and the Niagara River, despite being within the same basin for the purposes of this policy.

c) The Policy Only Takes Into Consideration Ministerial Policies

In determining whether or not to issue a permit to take water, the Ministry of the Environment is not the only relevant agency. Yet, section 4(a) implies that only relevant Ministry of the Environment legislation, regulations and policies will be taken into account in assessing permits to take water. Other government agencies and other governments have relevant laws and policies that should be taken into account. The Ministry of Natural Resources has responsibilities to exercise considerable jurisdiction over Ontario's water resources in its Water Management Business Plan[note4] and the Water Conservation Strategy it developed in the early 1990s. Similarly, the federal government has issued water policies and has jurisdiction over navigable waters and fisheries. Ontario is signatory to the Great Lakes Charter and to the Boundary Waters Treaty of 1909. Therefore, the Ministry of the Environment should take all relevant laws and policies into account, not only its own.

d) Exemption for Bottled Water

There is no clear rationale for providing an exemption to the bottled water industry under section 6. In 1990, over 95 million litres of water were exported from Ontario, worth an estimated 58 million dollars.[note5] Current sales are estimated at over 200 million dollars, which, assuming prices have remained constant or increased only slightly, would translate into 400,000 million litres per annum.[note6] By comparison, The Nova group application to take water from Lake Superior was for a maximum of 600 million litres per annum. Bottled water thus constitutes an enormous quantity of water being drawn mainly from Ontario's groundwater resources and shipped to other basins, mainly at the behest of private interests. Furthermore, Ontario does not currently charge royalties for mining this public resource. The Policy and Sustainable Water Act need to place appropriate limits on the bottled water industry, not provide it with an outright exemption.

Recommendation No. 3: Specific Changes in Policy Needed

The Surface Water Transfers Policy and the proposed Sustainable Water Act should be worded in such a manner as to:

(a) provide an outright ban on interbasin water transfers, or only allow such transfers under prescribed conditions;

(b) be applied on an individual watershed basis as opposed to dividing the whole of Ontario into only two basins;

(c) take all relevant laws and policies into account, not only those of the Ministry of the Environment; and

(d) incorporate provisions that place appropriate restriction on water transfers that occur through the sale of bottled water.

iii) The Policy Does Not Provide for Periodic Review or Revocation of Permits

The current Policy should be reviewed periodically to consider and reflect changing conditions. There should be an explicit requirement that the policy be reviewed every two years to ensure that it is meeting its objectives.

Similarly, individual permits should contain explicit revocation clauses as conditions of approval. Although the OWRA contains a general revocation power, there is a specific need to revoke permits that allow inter-basin transfers in situations where the transfer poses a threat to the integrity of the ecosystem.

iv) The Ministry Has Inadequate Resources to Effectuate the Policy

In addition to the shortcomings with the policy itself, it must be noted that the Ministry does not have either the human or informational capacity to effectuate its own policy. The Ministry's budget and personnel have been cut by over 40% since 1995. It is doubtful that after sustaining these cuts there are enough staff to process applications, much less seriously review them. Moreover, the Policy requires staff to now consider water taking permits in light of cumulative impacts on the environment and to take into consideration potential future water taking requests. This places a greater burden on staff to gather further information and conduct more in-depth analysis than is currently carried out. This cannot be done without providing further resources.

Recommendation No. 4: Need for More Resources to Protect Ontario's Waters

The Ministry must employ a sufficient level of properly trained staff to review permits to take water thoroughly.

Information on all withdrawals and consumptive uses from individual water bodies should be gathered for use in evaluating applications for water taking permits and to identify trends and changes in water use. Similarly, the Ministry does not have adequate background and baseline data to seriously consider requests to take water in relation to cumulative impacts and on an ecosystem basis. The Ministry no longer conducts State of the Environment Reporting nor maintains extensive data on our water resources. Without reinstating these initiatives, it will be impossible to properly consider the potential affects of a water taking permit.

Recommendation No. 5: Information Needs

State of the Environment reporting and adequate baseline data must be generated and maintained to provide an accurate account of the state of Ontario's water resources.

Follow-up monitoring and reporting should be required if permits are granted. Conditions placed on permits need to be aggressively enforced. Currently, there is little understanding of the compliance rate of the permits that have been issued, including whether the water is being used in the manner permitted.

Recommendation No. 6: Reporting and Enforcement

The Ministry of the Environment should develop specific reporting requirements for permit holders and make enforcement of permits a priority. Adequate resources should be allocated to carry through on this priority.

Endnotes

1. John Jackson, Claire Farid, and Karen Clark, The Fate of the Great Lakes: Sustaining or Draining the Sweetwater Seas (CELA and Great Lakes United, 1997); Canadian Environmental Law Association, Great Lakes United and the National Wildlife Federation, Treading Water: A Review of Government Progress Under the Great Lakes Water Quality Agreement (CELA, 1997); and Lee Botts and Paul Muldoon, The Great Lakes Water Quality Agreement: Past Successes and Uncertain Future (Dartmouth College, N.H. 1997).

2. OWRA, section 34(4); See also: Ministry of Environment, Water Management: Policies, Guidelines, Provincial Water Quality Objectives of the Ministry of Environment and Energy (Toronto: Queen's Printer for Ontario, 1994), pages 12-15.

3. R.S.O 1990, c. W.4.

4. MNR, 1996.

5. MNR Water Management Business Plan, page 8.

6. Trade Data Online, http://strategis.ic.gc.ca/cgi-gin/tsdt-bin/wow/wow.codeCountrySelectionF5/4/98.

 

Title:Submissions By The Canadian Environmental Law Association To The Ministry Of The Environment Regarding: The Surface Water Transfers Policy, [EBR Registry Number PA8E0027]
Resource Type:Response to Consultation
# of Pages:5
Date authored:June 11, 1998
Publication number:347
Author/s:Paul McCulloch, Sarah Miller, Kathleen Cooper, Paul Muldoon
Author Organization:Canadian Environmental Law Association