November 7, 2019 SUBJECT:…

November 7, 2019

SUBJECT: ERO 019-0545 Waterpower Exemption from Permits To Take Water
I am writing to express my strong support for the proposed exemption of waterpower facilities from duplicative requirement of a Permit to Take Water under the Ontario Water Resources Act. I offer the following context:

1. The original regulatory decision (LRIA)

- At the commercialization of the Ontario electricity sector in 2001 the government had fundamental decisions to make with respect to the breakup of Ontario Hydro, one of which was how to regulate the operation of waterpower facilities in a deregulated system.
- The government specifically chose to amend the Lakes and Rivers Improvement Act (MNRF) to achieve this objective, introducing two new provisions:
o Water levels and management plans
 23 (1) Where a dam or other structure or work has been heretofore or is hereafter constructed on a lake or river and the Minister considers it necessary or expedient for the purposes of this Act, the Minister may order the owner of the dam or other structure or work to take such steps within the time specified in the order as may be necessary to maintain the level of the water of the lake or river or to raise or lower such level as the order provides.
o Increasing fine by amount of monetary benefit
 28 (2.3) Despite the maximum fine provided in subsection (2.1) or (2.2), the court that convicts a person of an offence may, in addition to any other penalty imposed or order made under this section, increase the fine imposed on the person for the commission of the offence by an amount equal to the monetary benefit that was acquired by, or that accrued to, the person as a result of the commission of the offence.
- Note that these provisions could be applied to any dam or other structure (e.g. CA dams) but since their introduction governments have only ever used them for provincial river systems on which there are waterpower facilities
- All new or upgraded facilities are ordered to develop and comply with an operating plan through Section 23.1 of the LRIA
- MNRF has continued to modernize the regulatory framework for dams in Ontario, including that for facility construction and water management, publishing a series of Technical Guideline since 2011.

2. The response to unrelated “water taking” issues (OWRA)

- The Ontario Water Resources Act regulates, among other activities, the “taking of water” through a permitting process (Permit to Take Water) but was not deemed appropriate for the regulation of the waterpower sector at the time of market commercialization
- The Act does, however, define a taking to include “water taking by means of a structure or works constructed for the diversion or storage of water”, but does not differentiate between a consumptive vs. a non-consumptive use (e.g. waterpower)
- The Act includes a series of exemptions from permitting requirements, including:
o “A taking of water by means of a structure or works for the diversion or storage of water, if the structure or works was constructed before March 30, 1961 and was not reconstructed, improved, extended, altered or replaced on or after that date.”
- In the mid 2000’s, the government responded to a policy concern primarily associated with groundwater extraction by choosing to amend regulation under the Act to significantly expand the Permit to Take Water program and its scope of application, requiring the issuance of a PTTW to consider among other things:
o “Issues relating to the need to protect the natural functions of the ecosystem, including,
 the impact or potential impact of the water taking or proposed water taking on,
 the natural variability of water flow or water levels,
 minimum stream flow, and
 habitat that depends on water flow or water levels”
- While such considerations are appropriate for takings not already regulated (e.g. groundwater extraction), they (and others) are, by definition, duplicative of the application of the LRIA to waterpower facilities

3. The outcome

- This overlap and duplication of operational PTTWs and has been a significant issue and cost for new and redeveloped waterpower projects in Ontario for more than a decade
- In addition to adding burden and cost to the industry (and eventually ratepayers), the duplication of effort between MNRF and MECP is an inefficient allocation of limited provincial resources
- Over the last decade under the previous government several attempts were made to rationalize the duplicative and increasingly burdensome OWRA Permit to Take Water requirements for waterpower, none of which succeeded

As such, the proposed movement to a “one window” approach, through the provisions of the Lakes and Rivers Improvement Act will maintain regulatory effectiveness and increase efficiency.
I encourage the province to move forward with this important burden reduction initiative as proposed.

Sincerely

Paul Norris
President
Ontario Waterpower Association