Water taking and transfer user guide: clarifications and exemptions

Introduction

Disclaimer

While this guide was written to provide information on the water taking clarification and exemptions of Ontario Regulation 64/16 which amends Ontario Regulation 387/04, it is not legal advice.

Note that references to sections of O. Reg. 387/04, the Environmental Protection Act (EPA), and the Ontario Water Resources Act (OWRA) are made throughout this guide. While all efforts are made to ensure the accuracy this guide, if there is any discrepancy between this guide and the Acts or regulations, the provisions of the Acts and regulations prevail.

Legislation and regulations referenced throughout this document can be found on Ontario’s e-Laws website.

Purpose

This guide has been developed to provide:

• information about activities that are not considered water takings for the purpose of the OWRA and do not require registration or a Permit to Take Water (PTTW)
• information about water taking activities that under certain conditions are exempt from registration or acquiring a permit

For further information, please refer to the OWRA, O. Reg. 387/04, made under the OWRA, and the ministry’s PTTW application guide.

Permit to Take Water program

Water takings in Ontario are governed by the OWRA, the Water Taking and Transfer Regulation (O. Reg. 387/04) made under the OWRA, and O. Reg. 63/16 made under the EPA. Water takings governed by O. Reg. 63/16 are discussed in the water taking EASR user guide.

Section 34 of the OWRA requires anyone taking more than 50,000 litres of water in a day, with some exceptions, obtain a permit from the director under section 34.1 of the OWRA. Requirements of the permit system, including the factors a director must consider in issuing a permit, notification and consultation, data collection and reporting, are contained in Section 34 of the OWRA and the Water Taking and Transfer Regulation, O. Reg. 387/04. The regulation also addresses the duties of permit holders and water takings and transfers in the Great Lakes Basin.

The purpose of the Permit to Take Water (PTTW) program is to ensure the conservation, protection and wise use and management of the waters of the province. Permits are controlled, and not issued if the taking of more water in a given area would adversely affect existing users or the environment.

Permits will not be issued for activities that would:

• negatively affect existing users
• negatively affect the environment
• remove water from a watershed that already has a high level of use

The exceptions to requiring a PTTW include if you:

• take less than 50,000 litres of water per day
• take water for:
  • livestock
  • poultry
  • domestic purposes (such as home gardens and lawns)
  • firefighting or other emergency purposes
  • wetland conservation
  • a weir that was constructed prior to March 29, 2016
  • passive and/or active in-stream diversions for construction purposes
  • constructing or operating a dam associated with the production of electricity
• receive water supplied by someone with a valid Permit to Take Water (such as a municipality or your neighbour)
• for some water takings where the means of water taking was constructed prior to March 29, 1961

Ministry staff review all permit applications, measuring them against a number of requirements. Proposals for water taking are classified according to their anticipated risk to the environment. The greater the anticipated risk, the more evaluation required. Three proposal categories have been established:

• Category 1 water takings are anticipated to have a lower risk of causing adverse environmental impact/interference. Typically, permit renewals with no change to the taking and where there is no history of interference with other users are assigned this category. This includes new takings for some ponds (i.e. irrigation and agriculture) as well
• Category 2 takings are considered to have a higher potential to cause adverse environmental impacts than Category 1 takings. All applications for Category 2 takings require a "qualified person" to certify that the taking meets ministry criteria for the category. Examples include water taking for pumping tests to assess ground water characteristics, hydrostatic testing of pipelines, and surface water takings from previously assessed sources
• Category 3 takings are considered to have a greater potential to cause adverse environmental impacts than Category 1 or 2 takings. Applications for these takings require the submission of technical studies prepared by a "qualified person" that are reviewed by the ministry. Examples include all applications for new or increased ground water withdrawal for beverage manufacturing, and surface water takings from first or second order watercourses or intermittent streams

Categories 2 and 3 applications require assessment by a qualified person. For further information, please visit:

• Technical guidance document for surface water studies in support of category 3 applications
• Technical guidance document for hydrogeological studies in support of category 3 applications

Water taking clarification

As a result of regulatory amendments to O. Reg. 387/04 that came into force on March 29, 2016, the following activity was clarified as an activity that is not a water taking for the purpose of the OWRA. On July 1, 2021, further amendments to O. Reg. 387/04 came into force to modify the requirements of this activity to remove certain restrictions that did not further environmental outcomes.

For this activity, neither a PTTW nor an EASR registration is required.

Passive in-stream diversion

This clarification is for a construction-related activity that involves the passive diversion of water within a watercourse to accommodate in-water construction activity.

The regulation states:

For your activity to not be considered a water taking and require a permit, all the conditions for this clarification in the regulation must be met:

• water is being diverted to create and maintain a dewatered work area located in a water body for a construction-related project without the use of a pump
• the water levels upstream or downstream of the work area must not be affected
• the water is not removed from the water body (i.e. no water is taken and the water is diverted solely for the purpose of by-passing the work area. This can be accomplished by either directing the flow around the work area within the water body or using a by-pass channel)

The construction-related activities related to this exemption are the construction, repair, alteration, extension or replacement of a bridge, culvert, pier, sewer works, water works or other structure.

The exemption does not apply to sewer or water works situated under a watercourse that was or will be installed using open-cut trench techniques.

If the conditions cannot be met, then a permit must be sought.

This clarification does not exempt the activity from other regulatory requirements or approvals associated with the activity.

Water taking exemptions

On March 29, 2016, O. Reg. 387/04 was amended to exempt certain activities from the requirement to obtain a permit.

On July 1, 2021, further amendments to O. Reg. 387/04 came into force to expand the list of activities that no longer require a permit.

If you have a permit that was previously issued for any of these types of water takings, you are no longer required to comply with the conditions of the permit associated with these water-taking activities. You are also no longer required to report to the ministry the amounts of water that you take for these activities.

It is important to note that the exemption from requiring a permit does not excuse the proponent from obtaining any other permits or approvals that may be required for their project.

Active in-stream diversion exemption

This exemption is for a construction-related activity that involves the active diversion of water within a watercourse to accommodate in-water construction activity.

The regulation states:

For your activity to be exempted as a water taking and not require a permit, all the conditions for this exemption must be met:

• water is being diverted to create and maintain a dewatered work area located in a water body for a construction-related project by means of a pump
• water taken from the water body is returned directly to the same water body - the water cannot be stored or used for any other purpose
• there cannot be an introduction of a visible petroleum hydrocarbon film or sheen present in the returned water
• the water quantity and quality cannot be affected upstream or downstream of the work area
• erosion and sediment control measures are:
  1. used for discharge of the water, including discharge related to return of the water to the water body
  2. used, operated and maintained in accordance with recommendations provided by the manufacturers of the control measures
  3. are recovered and disposed of, along with all materials collected or trapped by those measures, when the water is no longer being taken

The construction-related activities related to this exemption are the construction, repair, alteration, extension or replacement of a bridge, culvert, pier, sewer works, water works or other structure.

This exemption applies to both the diverted water in the water body and any water from the water body that is enclosed within the construction site, such as leaking cut-off walls or water trapped between two coffer dams or within a sheet piling cut-off wall.

If the conditions cannot be met, then a permit must be sought.

This exemption does not exempt the activity from other regulatory requirements or approvals associated with the activity.

Water takers that are exempted from requiring a permit for these activities will no longer be required to report their annual water takings to the ministry.

Wetlands exemption

This exemption is for water taking associated with the wetlands.

The regulation states:

This exemption is for the taking of water solely for existing and new wetlands and no other purpose.

This exemption does not exempt the activity from other regulatory requirements or approvals associated with the activity.

Water takers that are exempted from requiring a permit for these activities will no longer be required to report their annual water takings to the ministry.

Weir exemption

This exemption is for water taking associated with the structure or works constructed across a water body commonly known as weirs.

The regulation states:

For your activity to be exempted as a water taking and not require a permit, all the conditions for this exemption must be met:

• the structure or works is constructed across a water body for the diversion or storage of water
• the structure or works is designed for the flow of water to pass freely over the structure or works while remaining part of the same water body
• the structure or works does not include any mechanisms that may be operated to alter the flow rates or water levels upstream or downstream of the structure or works
• the structure or works is not used for the purpose of generating electricity

This exemption only applies to a structure or works that was constructed before March 29, 2016.

The structure or works may also have a fishway, which is commonly known as a fish ladder.

Water takers that are exempted from requiring a permit for these activities will no longer be required to report their annual water takings to the ministry.

It is important to note that the exemption from requiring a permit does not excuse the proponent from obtaining any other permits or approvals that may be required for their project.