O. Reg. 387/04: WATER TAKING

 

Ontario Water Resources Act
Loi sur les ressources en eau de l’Ontario

ONTARIO REGULATION 387/04

Water Taking

Note: On January 1, 2015, the title to the Regulation is revoked and the following substituted: (See: O. Reg. 225/14, ss. 1, 14 (2))

 

Water Taking and Transfer

Historical version for the period November 27, 2014 to December 31, 2014.

Last amendment:  O. Reg. 225/14.

This Regulation is made in English only.

CONTENTS

 

General

1. Revoked:  O. Reg. 451/07, s. 2.

Definitions

2. In this Regulation,

“application” means an application to a Director under section 34 of the Act for a permit to take water;

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, the definition of “application” is revoked and the following substituted: (See: O. Reg. 225/14, ss. 2 (1), 14 (3))

“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;

“Average Annual Flow Map” means the map entitled “Water Use — Average Annual Flow Conditions”, dated November, 2004 and on file in the offices of the Ministry of the Environment at Toronto;

Note: On January 1, 2015, the definition of “Average Annual Flow Map” 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”. (See: O. Reg. 225/14, ss. 2 (2), 14 (2))

“Drinking Water Systems” means Ontario Regulation 170/03 (Drinking Water Systems) made under the Safe Drinking Water Act, 2002;

“Great Lakes Charter” means the Great Lakes Charter signed by the premiers of Ontario and Quebec and the governors of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin on February 11, 1985 and amended by the Great Lakes Charter Annex, dated June 18, 2001;

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, section 2 is amended by adding the following definitions: (See: O. Reg. 225/14, ss. 2 (3), 14 (3))

“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;

“Summer Low Flow Map” means the map entitled “Water Use — Summer Low Flow Conditions”, dated November, 2004 and on file in the offices of the Ministry of the Environment at Toronto.  O. Reg. 387/04, s. 2.

Note: On January 1, 2015, the definition of “Summer Low Flow Map” 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”. (See: O. Reg. 225/14, ss. 2 (4), 14 (2))

Note: On January 1, 2015, the day subsection 1 (12) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, section 2 is amended by adding the following subsection: (See: O. Reg. 225/14, ss. 2 (5), 14 (4))

(2) The definitions in subsection 34.5 (1) of the Act apply for the purposes of this Regulation. O. Reg. 225/14, s. 2 (5).

Maps

3. (1) Copies of the Average Annual Flow Map and the Summer Low Flow Map are available for public inspection,

(a) at the Public Information Centre of the Ministry of the Environment located at 135 St. Clair Avenue West, Toronto; and

(b) at the Ministry of the Environment regional offices located at,

(i) 5775 Yonge Street, North York,

(ii) 133 Dalton Avenue, Kingston,

(iii) 435 James Street South, Thunder Bay,

(iv) 733 Exeter Road, London, and

(v) 119 King Street West, Hamilton.  O. Reg. 387/04, s. 3 (1).

Note: On January 1, 2015, subsection (1) is revoked. (See: O. Reg. 225/14, ss. 3 (1), 14 (2))

(2) Whether water taking or proposed water taking is located in a high use watershed or medium use watershed as shown on the Average Annual Flow Map or on the Summer Low Flow Map is determined by reference to,

(a) the Average Annual Flow Map or the Summer Low Flow Map, as the case may be;

(b) the geographic co-ordinates of the location; and

(c) the applicable watershed boundaries as defined in “Metadata Reference: Ministry of Natural Resources, Land Information Ontario, 2002, Watersheds, Tertiary, Queen’s Printer for Ontario”, which may be accessed at www.mnr.gov.on.ca/edwin/EDWINCGI.exe?IHID=10002428&Theme=WATER.  O. Reg. 387/04, s. 3 (2).

Note: On January 1, 2015, clause (c) 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”. (See: O. Reg. 225/14, ss. 3 (2), 14 (2))

Permits

Matters to be considered by Director

4. (1) This section applies when a Director,

(a) is considering an application; or

(b) is otherwise considering under section 34 of the Act whether to cancel, amend or impose conditions on a permit to take water.  O. Reg. 387/04, s. 4 (1).

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, subsection (1) is revoked and the following substituted: (See: O. Reg. 225/14, ss. 4 (1), 14 (3))

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. O. Reg. 225/14, s. 4 (1).

(2) The Director shall consider the following matters, to the extent that information is available to the Director, and to the extent that the matters are relevant to the water taking or proposed taking in the particular case:

1. Issues relating to the need to protect the natural functions of the ecosystem, including,

i. the impact or potential impact of the water taking or proposed water taking on,

A. the natural variability of water flow or water levels,

B. minimum stream flow, and

C. habitat that depends on water flow or water levels, and

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, sub-subparagraph C is amended by striking out “and” at the end. (See: O. Reg. 225/14, ss. 4 (2), 14 (3))

ii. ground water and surface water and their interrelationships that affect or are affected by, or may affect or be affected by, the water taking or proposed water taking, including its impact or potential impact on water quantity and quality.

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, paragraph 1 is amended by adding “and” at the end of subparagraph ii and by adding the following subparagraph: (See: O. Reg. 225/14, ss. 4 (2), 14 (3))

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

2. Issues relating to water availability, including,

i. the impact or potential impact of the water taking or proposed water taking on,

A. water balance and sustainable aquifer yield, and

B. existing uses of water for large municipal residential systems and small municipal residential systems, both as defined in subsection 1 (1) of Drinking Water Systems, for sewage disposal, livestock and other agricultural purposes, for private domestic purposes, and for other purposes,

ii. low water conditions, if any,

iii. whether the water taking or proposed water taking is in a high use watershed or a medium use watershed,

A. as shown on the Average Annual Flow Map, or

B. as shown on the Summer Low Flow Map, and

iv. any planned municipal use of water that has been approved,

A. under a municipal official plan in accordance with Part III of the Planning Act, or

B. under the Environmental Assessment Act.

3. Issues relating to the use of water, including,

i. whether water conservation is being implemented or is proposed to be implemented in the use of the water, in accordance with best water management standards and practices for the relevant sector if these are available,

ii. the purpose for which the water is being used or is proposed to be used, and

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, subparagraph ii is revoked and the following substituted: (See: O. Reg. 225/14, ss. 4 (3), 14 (3))

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

iii. if the water is not currently being used, whether there is a reasonable prospect that the person will actually use the water in the near future.

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, subsection (2) is amended by adding the following paragraph: (See: O. Reg. 225/14, ss. 4 (4), 14 (3))

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.

4. Other issues, including,

i. the interests of other persons who have an interest in the water taking or proposed water taking, to the extent that the Director is made aware of those interests, and

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, subparagraph i is amended by striking out “and” at the end. (See: O. Reg. 225/14, ss. 4 (5), 14 (3))

ii. any other matters that the Director considers relevant.  O. Reg. 387/04, s. 4 (2).

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, paragraph 4 is amended by revoking subparagraph ii and substituting the following: (See: O. Reg. 225/14, ss. 4 (5), 14 (3))

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.

(3) If clause (1) (a) applies, the Director may, in order to be able to consider the matters set out in subsection (2), require the applicant to submit further information, including plans, specifications, reports and other materials and documents relating to the water taking or proposed water taking.  O. Reg. 387/04, s. 4 (3).

Prescribed water takings

4.1 (1) The taking of water by any of the means described in subsection 34 (3.1) of the Act by a person who takes the water for use in a facility that falls into a class described in subsection 3 (1) of Ontario Regulation 450/07 is a prescribed taking for the purposes of section 34 of the Act and subsection 34 (3) of the Act applies to the person as of January 1, 2009.  O. Reg. 451/07, s. 3.

(2) A person whose taking of water is prescribed by subsection (1) shall apply to the Director for a permit under subsection 34 (6) of the Act on or before June 30, 2008.  O. Reg. 451/07, s. 3.

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, section 4.1 is revoked and the following substituted: (See: O. Reg. 225/14, ss. 5, 14 (3))

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. O. Reg. 225/14, s. 5.

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, the Regulation is amended by adding the following section: (See: O. Reg. 225/14, ss. 6, 14 (3))

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). O. Reg. 225/14, s. 6.

(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. O. Reg. 225/14, s. 6.

High use watersheds

5. (1) Subsections (3) and (4) apply to applications that relate to water taking for a purpose described in subsection (5).  O. Reg. 387/04, s. 5 (1).

(2) Subsections (3) and (4) do not apply,

(a) if the applicant is a municipality; or

(b) if the application relates to water taking from,

(i) Lake Ontario, Lake Erie, Lake Huron or Lake Superior or any of their connecting channels, namely the St. Mary’s River, the St. Clair River, the Detroit River and the Niagara River,

Note: On January 1, 2015, subclause (i) is revoked and the following substituted: (See: O. Reg. 225/14, ss. 7 (1), 14 (2))

(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,

(ii) the Welland Canal,

(iii) the St. Lawrence River, or

(iv) the Ottawa River.  O. Reg. 387/04, s. 5 (2).

(3) If the proposed water taking is in a high use watershed as shown on the Average Annual Flow Map, the Director shall refuse the application unless,

(a) at the time of the application, the applicant or another person held an unexpired permit to take water; and

Note: On January 1, 2015, clause (a) is amended by striking out “to take water”. (See: O. Reg. 225/14, ss. 7 (2), 14 (2))

(b) the application is for a new permit to authorize the taking of the same or a lesser amount of water at the same location and for the same purpose as was authorized by the unexpired permit.  O. Reg. 387/04, s. 5 (3).

(4) If the proposed water taking is in a high use watershed as shown on the Summer Low Flow Map, the Director shall refuse the application unless,

(a) the permit includes a condition prohibiting the person from taking water during the six-week period from August 1 to September 11, or during a specified longer period that includes the six-week period; or

(b) at the time of the application, the applicant or another person held an unexpired permit to take water, and the application is for a new permit to authorize the taking of the same or a lesser amount of water at the same location and for the same purpose as was authorized by the unexpired permit.  O. Reg. 387/04, s. 5 (4).

Note: On January 1, 2015, clause (b) is amended by striking out “to take water”. (See: O. Reg. 225/14, ss. 7 (3), 14 (2))

(5) The purposes referred to in subsection (1) are:

1. Beverage manufacturing, including the manufacturing or production of bottled water or water in other containers.

2. Fruit or vegetable canning or pickling.

3. Ready-mix concrete manufacturing, not including concrete manufactured at a portable ready-mix concrete manufacturing facility.

4. Aggregate processing, if the aggregate and the water that is taken are incorporated into a product in the form of a slurry.

5. Product manufacturing or production, if, in the normal course of the manufacturing or production, more than a total of 50,000 litres of the water that is taken may be incorporated in a single day into the products being manufactured or produced.  O. Reg. 387/04, s. 5 (5).

(6) Paragraph 2 of subsection (5) does not apply in respect of water that is taken only for washing in the course of the canning or pickling.  O. Reg. 387/04, s. 5 (6).

(7) Paragraph 4 of subsection (5) does not apply in respect of the extraction of aggregates where the water taking is incidental.  O. Reg. 387/04, s. 5 (7).

(8) Paragraph 5 of subsection (5) does not apply in respect of the manufacturing or production of,

(a) pulp and paper; or

(b) ethanol.  O. Reg. 387/04, s. 5 (8).

(9) Subsection (5) does not apply in respect of water that is taken for agricultural purposes, including aquaculture, nurseries, tree farms and sod farms.  O. Reg. 387/04, s. 5 (9).

Great Lakes Charter

6. A Director who is considering an application shall ensure that Ontario’s obligations under the Great Lakes Charter with respect to the application are complied with.  O. Reg. 387/04, s. 6.

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, section 6 is revoked and the following substituted: (See: O. Reg. 225/14, ss. 8, 14 (3))

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. O. Reg. 225/14, s. 8.

(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. O. Reg. 225/14, s. 8.

(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. O. Reg. 225/14, s. 8.

(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). O. Reg. 225/14, s. 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. O. Reg. 225/14, s. 8.

(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. O. Reg. 225/14, s. 8.

(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). O. Reg. 225/14, s. 8.

(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. O. Reg. 225/14, s. 8.

(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. O. Reg. 225/14, s. 8.

Notice and consultation

7. (1) Subject to subsection (2), a Director who is considering an application shall give the following persons notice of the application:

1. The upper-tier and lower-tier municipalities or the single-tier municipality, as the case may be, within whose area of jurisdiction the proposed water taking is located.

2. Any conservation authority within whose area of jurisdiction the proposed water taking is located.  O. Reg. 387/04, s. 7 (1).

(2) Subsection (1) does not apply if,

(a) the application is for a permit to take water,

(i) over a period of less than one year, or

(ii) only for irrigation of agricultural crops;

Note: On January 1, 2015, the day subsection 1 (12) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, clause (a) is revoked and the following substituted: (See: O. Reg. 225/14, ss. 9 (1), 14 (4))

(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;

(b) in the Director's opinion, the delay involved in giving notice to the persons listed in subsection (1) would result in,

(i) danger to the health or safety of any person,

(ii) harm or serious risk of harm to the environment, or

(iii) injury or damage or serious risk of injury or damage to any property; or

(c) in the Director’s opinion, the persons listed in subsection (1) have already received the information that would be included in the notice.  O. Reg. 387/04, s. 7 (2).

(3) Subsection (2) does not prohibit the Director from giving any person notice of an application if the Director is of the opinion that it is consistent with the purposes of this Regulation to do so.  O. Reg. 387/04, s. 7 (3).

(4) The Director may require the applicant to,

(a) notify or consult with other persons who have an interest in the proposed water taking, including,

(i) persons mentioned in subsection (1), and

(ii) governmental authorities for other jurisdictions;

(b) provide the Director with information on the interests of and responses of the persons notified or consulted under clause (a);

(c) provide the Director with information on the efforts that the applicant has made to resolve any concerns raised by the persons notified or consulted under clause (a); and

(d) provide the Director with such other information as the Director specifies.  O. Reg. 387/04, s. 7 (4).

(5) Subsection (4) applies despite subsection (2), and any notice required by the Director under subsection (4) is in addition to the notice given by the Director under subsection (1).  O. Reg. 387/04, s. 7 (5).

(6) Subject to section 6, the Director may give governmental authorities for other jurisdictions notice of the application and consult them about it, even if notice and consultation are not required by the Great Lakes Charter.  O. Reg. 387/04, s. 7 (6).

Note: On January 1, 2015, subsection (6) 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”. (See: O. Reg. 225/14, ss. 9 (2), 14 (2))

(7) For the purposes of subsections (1) and (6), the Director may give a person notice of an application by,

(a) sending the person a brief description or a copy of the application by mail, by fax, by e-mail or by other electronic means; or

(b) delivering a brief description or a copy of the application to the person.  O. Reg. 387/04, s. 7 (7).

Transition

8. (1) This Regulation applies to applications received on and after January 1, 2005.  O. Reg. 387/04, s. 8 (1).

(2) An application that is received before January 1, 2005 shall be dealt with in accordance with Ontario Regulation 285/99 (Water Taking and Transfer) made under this Act, despite its revocation by section 11 of this Regulation.  O. Reg. 387/04, s. 8 (2).

(3) This Regulation applies to decisions under section 34 of the Act to cancel, amend or impose conditions on a permit to take water, whether the permit is issued before, on or after January 1, 2005.  O. Reg. 387/04, s. 8 (3).

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, section 8 is revoked and the following substituted: (See: O. Reg. 225/14, ss. 10, 14 (3))

Transition

8. (1) This Regulation, as it read on December 31, 2014, applies to applications received before January 1, 2015. O. Reg. 225/14, s. 10.

(2) This Regulation, as it read on or after January 1, 2015, applies to applications received on and after January 1, 2015. O. Reg. 225/14, s. 10.

(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. O. Reg. 225/14, s. 10.

Data and Reporting

Duties of permit holders

9. (1) Every person to whom a permit has been issued under section 34 of the Act shall collect and record data on the volume of water taken daily.  O. Reg. 387/04, s. 9 (1).

Note: On January 1, 2015, the day subsection 1 (12) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, subsection (1) is revoked and the following substituted: (See: O. Reg. 225/14, ss. 11 (1), 14 (4))

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. O. Reg. 225/14, s. 11 (1).

(2) The data collected under subsection (1) shall be measured by a flow meter or calculated using a method acceptable to a Director.  O. Reg. 387/04, s. 9 (2).

(3) On or before March 31 in every year, every person to whom subsection (1) applies shall submit to a Director, in the form and manner approved by the Director, the data collected and recorded under subsection (1) for the previous year.  O. Reg. 387/04, s. 9 (3).

(4) Subsections (1), (2) and (3) do not affect a Director’s discretion, under subsection 34 (6) of the Act, to impose terms and conditions in issuing a permit and to alter the terms and conditions of a permit after it is issued.  O. Reg. 387/04, s. 9 (4).

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, subsection (4) is amended by striking out “subsection 34 (6)” and substituting “subsection 34.1 (8) or (9) or subsection 34.7 (2)”. (See: O. Reg. 225/14, ss. 11 (2), 14 (3))

(5) Subsections (1) and (3) are phased in as follows:

1. Persons described in subsection (6) are governed by subsection (1) on and after July 1, 2005 and by subsection (3) in and after the year 2006.

2. Persons described in subsection (7) are governed by subsection (1) on and after January 1, 2006 and by subsection (3) in and after the year 2007.

3. Persons described in subsection (8) are governed by subsection (1) on and after January 1, 2007 and by subsection (3) in and after the year 2008.  O. Reg. 387/04, s. 9 (5).

Note: On January 1, 2015, subsection (5) is revoked. (See: O. Reg. 225/14, ss. 11 (3), 14 (2))

(6) Paragraph 1 of subsection (5) applies to every person to whom a permit has been issued under section 34 of the Act for taking water for any of the following purposes:

1. Large municipal residential systems and small municipal residential systems, both as defined in Drinking Water Systems,

2. The purposes listed in subsection 5 (5), subject to subsections 5 (6) to (9).

3. The operation of a plant governed by any of the following regulations, made under the Environmental Protection Act:

i. Ontario Regulation 560/94 (Effluent Monitoring and Effluent Limits — Metal Mining Sector).

ii. Ontario Regulation 215/95 (Effluent Monitoring and Effluent Limits — Electric Power Generation Sector).

iii. Ontario Regulation 561/94 (Effluent Monitoring and Effluent Limits — Industrial Minerals Sector).

iv. Ontario Regulation 64/95 (Effluent Monitoring and Effluent Limits — Inorganic Chemical Sector).

v. Ontario Regulation 214/95 (Effluent Monitoring and Effluent Limits — Iron and Steel Manufacturing Sector).

vi. Ontario Regulation 562/94 (Effluent Monitoring and Effluent Limits — Metal Casting Sector).

vii. Ontario Regulation 63/95 (Effluent Monitoring and Effluent Limits — Organic Chemical Manufacturing Sector).

viii. Ontario Regulation 537/93 (Effluent Monitoring and Effluent Limits — Petroleum Sector).

ix. Ontario Regulation 760/93 (Effluent Monitoring and Effluent Limits — Pulp and Paper Sector).  O. Reg. 387/04, s. 9 (6).

Note: On January 1, 2015, subsection (6) is revoked. (See: O. Reg. 225/14, ss. 11 (3), 14 (2))

(7) Paragraph 2 of subsection (5) applies to every person to whom a permit has been issued under section 34 of the Act for taking water for any of the following purposes:

1. Any industrial or commercial purpose not described in subsection (6).

2. Wildlife and conservation purposes.  O. Reg. 387/04, s. 9 (7).

Note: On January 1, 2015, subsection (7) is revoked. (See: O. Reg. 225/14, ss. 11 (3), 14 (2))

(8) Paragraph 3 of subsection (5) applies to every person to whom a permit has been issued under section 34 of the Act for taking water for any of the following purposes:

1. Any of the following, as defined in subsection 1 (1) of Drinking Water Systems:

i. A small municipal non-residential system.

ii. A large municipal non-residential system.

iii. A small non-municipal non-residential system.

iv. A large non-municipal non-residential system.

v. A non-municipal seasonal residential system.

vi. A non-municipal year-round residential system.

2. Agriculture.

3. Any purpose not described in subsection (6) or (7).  O. Reg. 387/04, s. 9 (8).

Note: On January 1, 2015, subsection (8) is revoked. (See: O. Reg. 225/14, ss. 11 (3), 14 (2))

10. Revoked:  O. Reg. 451/07, s. 4.

Note: On January 1, 2015, the day subsection 1 (8) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, the Regulation is amended by adding the following section: (See: O. Reg. 225/14, ss. 12, 14 (3))

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. O. Reg. 225/14, s. 12.

11. Omitted (revokes other Regulations).  O. Reg. 387/04, s. 11.

Note: On January 1, 2015, the day subsection 1 (12) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, section 11 is revoked and the following substituted: (See: O. Reg. 225/14, ss. 13, 14 (4))

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. O. Reg. 225/14, s. 13.

12. Omitted (provides for coming into force of provisions of this Regulation).  O. Reg. 387/04, s. 12.

Note: On January 1, 2015, the day subsection 1 (12) of the Safeguarding and Sustaining Ontario’s Water Act, 2007 comes into force, section 12 is revoked and the following substituted: (See: O. Reg. 225/14, ss. 13, 14 (4))

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. O. Reg. 225/14, s. 13.

(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). O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

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

O. Reg. 225/14, s. 13.

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). O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

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. O. Reg. 225/14, s. 13.

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. O. Reg. 225/14, s. 13.

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. O. Reg. 225/14, s. 13.

(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). O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

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. O. Reg. 225/14, s. 13.

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. O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

(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. O. Reg. 225/14, s. 13.

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. O. Reg. 225/14, s. 13.