I am pleased to submit…

I am pleased to submit comments on the proposal “Updating Ontario’s Water Quantity Management Framework” (ERO number 019-1340) for consideration by the Ministry of the Environment, Conservation and Parks (MECP). I have reviewed the supporting materials but do not comment on them further and while I present my detailed comments in response to the questions posed in the proposal, I can summarize them as follows:

• MECP’s existing water quantity management policies and the current provisions of the Water Taking and Transfer regulation already address what is being proposed. As such, perhaps the MECP should produce clearer: 1) guidance to its permitting Directors concerning the application of these existing provisions (per no need to ‘reinvent the wheel’), and 2) communication of such guidance to proponents so that they may ensure their proposals for water taking permits demonstrate consideration of how the existing provisions are likely to be applied to their submissions.

• I am not aware that any Source Protection Committee (SPC), all of which required municipal participation in undertaking a Source Protection Plan that was primarily focused on securing the quality and quantity of drinking water supplies, recommended to the MECP a policy prohibiting water taking for manufacturing of bottled water. It seems, notwithstanding the significant resources spent on the development of source protection policies, that this proposal seeks to revisit that outcome. Perhaps the MECP should instead call for review of source protection plans and in so doing allow SPC’s to determine whether their original policies need to be modified. Indeed, periodic review and updating of source protection plans should be considered a requisite activity to ensure they remain relevant and appropriate.

• Municipalities are provided authorities under the Planning Act’s Provincial Policy Statement, that require them to attend to water quantity and quality concerns when discharging land use approvals within their jurisdictions. It seems to me that any municipality when exercising this authority should certainly be able to take informed decisions about proposals for new bottled water facilities and well before receiving the obligatory notification from the MECP that an application to allow the activity of water taking by the facility to begin or to be increased or otherwise modified has been submitted. As for existing facilities, every municipality is able to request the MECP to share water taking information reported by any permitted water taker or to request inspection of a permitted water taking when concerned that interference with other interests in the water may be occurring.

• With respect the broad spectrum of challenges associated with “assessing and managing” water takings, I think first that the MECP should take a direct role in these activities by undertaking to design and implement its own water taking network, intended to obtain information about sources of taking by others; i.e., that MECP conduct itself like a ‘general practitioner’ by periodically ‘taking the pulse’ of sources of water supply to as to assess their ‘fitness’ to provide a sustainable supply for use by others. Where that assessment finds sources not having capacity to provide a sustainable supply at any and/or all time, then the MECP should use that evidence to prohibit water takings that are reasonably expected to further diminish source capacity. The MECP’s water quality policies (as set out in Water Management; a.k.a. the ‘Blue Book’) provide a comparable framework, where one may consider, hypothetically, that determination of water quantity satisfying ‘Policy 1’ conditions (these would need to be developed of course) would augur for takings to be continued. Conversely, determination of water quantity instead satisfying ‘Policy 2’ conditions, would trigger prohibition on any new takings and engagement with existing takers to modify takings towards restoration of ‘Policy 1’ condition. Establishment of a water quantity policy framework modelled on that already used for water quality should also clearly facilitate MECP’s compliance program by providing clear policy thresholds to trigger necessary abatement actions.

• Finally, it seems to me the proposal points to a clear opportunity to advance the government’s Regulatory Burden Reduction and Modernization of Approval missions by essentially incorporating permits for bottled water into municipal approvals under the Planning Act wherever possible (e.g., as was done for renewable energy projects under the Environmental Protection Act). Thus, when an approved land use will clearly require water taking, then this should be addressed well before the activity of water taking is declared through submission of a permit application to the MECP when it is arguably too late to close the proverbial barn door.

Here follow my detailed comments:

Goal 1: Establish clear provincial priorities of water use

1. Do you support including priorities of water use in regulation? Why or why not?

No, not in the manner proposed. I believe, however, that existing use be given priority over proposals for new or increased use in areas subject to annual water scarcity because I think that could encourage development of alternative sources of supply, including but not limited to construction of water supply and distribution infrastructure to essentially import water from low use areas or from large resilient sources. This has generally been done throughout the province to assure security of municipal supply for household use. I am also aware that projects have been undertaken in the recent past to secure reliable supplies of raw water for crop irrigation from a Great Lake source (e.g., the Leamington Area Drip Irrigation (LADI) development; others) and in so doing achieving much lower risk than taking from Great Lakes tributaries in agriculturally-dominated watersheds of southern Ontario that are susceptible to recurring annual low flows. I am mainly concerned that prioritization of use will stifle innovation and development of water supply infrastructure that is: 1) more resilient to climate change, 2) more reliable than direct and uncoordinated multiple and serial takings from watercourses, and 3) more likely contribute to safeguarding aquatic ecosystems.

I also believe that prohibition of specified consumptive uses should occur when it is likely to impair environmentally sensitive features and areas, or that is likely to lead to a process that impairs the quality of water for use by those that are not required to be regulated. Thus, one may consider that prohibition of ecologically-incompatible takings, either spatially or temporally (per not all takings are year-round activities), can reduce the prospect for water use conflict and resultant ‘need’ to establish priorities for water use. For example, all surface water withdrawals and groundwater takings with reasonable prospect to interfere with stream bed upwellings should be prohibited from first order (headwater) streams that provide habitat for brook trout. Similarly, large diversions should be prohibited where they may diminish flow in scenic rivers or impair recreational navigation. In this way, the values for which the water is appreciated, either generally or specifically, should inform whether withdrawals are compatible and thus allowable. It seems to me that the ‘blind spot’ to the prioritization scheme proposed is this failure to appreciate the values of Ontario water in their natural state, where they arguably provide greatest benefit to most Ontarians.

I am also reminded that regulation of water taking in Ontario is based on the fact (and the proposal recognizes this) that ‘no one owns’ the resource. As such, regulation of surface water taking in particular does not extinguish riparian rights but seeks instead to limit access to the resource by essentially requiring those water takers (that are subject to being regulated) to only obtain water in a manner that does not cause interference with any other interest (i.e., use, including to sustain ecological integrity) of the water. I note that where this proposal mentions priorities, these are apparently excerpted from the guidance in Water Management on addressing water use conflicts when they arise (i.e., in an a posteriori manner).

Finally, I believe there should be concern that those water users identified as having priority may assert a right to the resource, even to reserve a supply for possible future use. I do not believe the Crown in Ontario is currently able to recognize any such right, in accordance with the ‘no one owns’ principle (see also Section 4 (2) 3iii, O. Reg. 387/04, in this regard).

2. How should priorities of use be applied to water taking decisions? When should it be applied? What process should be followed? Who should be involved? What information should be considered?

Notwithstanding my above answer, I note the water taking regulation already establishes matters the Director must consider when evaluating a proposal to take water. In my opinion a Director’s consideration of these matters has a ‘prioritizing’ effect, especially those relating to the need to protect the natural functions of the ecosystem and to water availability (see Section 4 (2), items 1 and 2, O. Reg. 387/04, in this regard).

Where information exists, at an appropriate and relevant scale, to inform actual or imminent loss of protection of the natural functions of the environment or to water availability in an area, then I think it would be better to enact prohibitions on water uses that are most likely to exacerbate those conditions. While I’m mindful the designation in regulation of high use watersheds essentially responded to annual or summer water scarcity, I’m also aware that the use that was arguably most likely to exacerbate those watershed conditions (i.e. agricultural irrigation of crops for sale) was exempted from the regulatory constraint (which explicitly establishes priority for that use above ecological in my view and contrary to what is being contemplated under this proposal).

3. Municipal drinking water supply is proposed as a highest priority use. What municipal drinking water needs should be considered a priority (e.g., current, planned growth, longer-term growth)?

As above, this is already addressed in regulation (see Section 4 (2) 2iv, O. Reg. 387/04). Additionally, as the proposal is essentially focused on reducing the potential for interference on a municipal drinking water source of supply by a taking for bottled water manufacturing, two key considerations should also be noted. Firstly, that a municipality in discharging its responsibilities under the Planning Act, is enabled to ensure development is organized within its jurisdiction, e.g., through site control and zoning approvals, and in so doing to meet its Provincial Policy Statement (PPS) obligations, specifically Policy 2.2 (Water). Indeed, ‘upper tier’ or regional municipalities operating at watershed-like scale are able to apply source protection planning products to inform whether prescribed water uses are consistent with planned growth. Secondly, the scope and scale of water taking by a municipality to supply water for diverse use, including but not limited for drinking (and even for bottling), is generally more likely to interfere with any existing taking for bottled water manufacturing than the other way around. Indeed, as I recall from my involvement in Source Water Protection planning (as the Provincial PTTW Specialist at the ministry’s Southwestern Region) a key threat to municipal supply was that approved development had or was likely to essentially ‘out-grow’ the capacity of existing municipal means to obtain water – a situation that augured for infrastructure renewal and/or expansion (as opposed to extinguishing other existing and established uses). I further recall that the Orangeville case mentioned in the supporting documents to this proposal was specifically highlighted in that context.

While this question is based on a proposal to establish water use priority, it really ought instead to focus on the quality of municipal planning that seeks to avoid water use conflicts as growth occurs (something that the PPS essentially directs a planning authority to do). I also believe there is ample evidence to attest that when planned (i.e., future) and then approved growth exceeds the capacity of a municipality to supply water in an area that the solution to this kind of ‘induced water scarcity’ (so to speak) is for the affected municipality to invest in infrastructure to draw water (i.e., to extend their means to take water deeper and/or further) and to cost-share that with developers and ratepayers. Some municipalities may require provincial assistance to ‘stay ahead of’ new or increased water demand as growth occurs but I see that in terms of funding for improved infrastructure and not in assuming that other water use will be diminished or even extinguished.

Goal 2: Update our approach to managing water takings in stressed areas

1. Under what circumstances should the ministry consider assessing and managing water takings on an area basis?

I note there are two distinctively different activities included in the question, (i.e., assessing and managing) and will, therefore, respond accordingly. With respect to “assessing” (arguably a constituent of “managing”), I understand firstly that this clearly falls within the ‘duty of care’ obligation of the regulator, namely to ensure compliance with activities (water taking in this case) it has authorized. Thus, the ministry’s routine planned and responsive inspection program should presumably already be generating assessment information about water takings. These can focus on stressed areas and the ministry’s inspection staff can call upon technical support or others to assist them in undertaking this core compliance activity.

Another complementary approach to assessing particularly the resilience and sustainability of aquifers that are or may be developed for groundwater resources would see ministry expert staff undertake controlled water takings themselves, e.g., pumping tests (aquifer ‘stress tests’) to obtain information about aquifer characteristics. Indeed, the ministry could partner with other agencies, including but not limited to academia, other ministries, Source Protection Committees, Conservation Authorities and municipalities to design enhancements to any existing groundwater monitoring networks or to coordinate data collection and information syntheses. In this respect, I understand (but stand to be corrected) that the ministry’s current groundwater monitoring is focused on quality and not necessarily quantity.

With respect to “managing”, I regret that since that term incorporates such a broad spectrum of activities, that it is difficult to answer your question. In order to provide a response, I will instead substitute ‘regulate’ for “manage”, given that regulation is a core activity of the ministry as agent of the public interest. Here again, I find that the ministry has already established precedence through declaration of ‘high use watersheds’, wherein regulation-prescribed water takings are prohibited or constrained. As information is developed by ministry experts (as I am confident it has been in the years following the initial regulation declarations) the areas of the province to which high use watershed can be justifiably applied, using an evidence-based approach, should occur. In this respect, the ‘study areas’ profiled in the BlueMetric Environmental Inc. supporting documents clearly lend themselves to consideration. Regulation that declares high use watersheds, with commensurate limitations on specified water takings, will inform ‘downstream’ (i.e., regulatory process) management of water taking proposals in those affected areas. That it also ‘front-end loads’ limitations on regulation-specified water takings can only reasonably been seen as a proactive service to proponents.

Another key regulatory action the ministry should take is to fundamentally reform the PTTW instrument itself, namely to abolish the oft misunderstood and therefore contentious ‘Table A’ metrics that display ‘maxima’. Instead the instrument should reflect authorization of the proposal submitted to obtain the permit, namely to place the onus on the applicant proponent to explain how the water taking will occur in specific detail. The current approach that typically reflects the proponent’s capacity to take water is clearly disconnected from reality, as evidenced by comparison to every permit holder’s legal obligation to report actual taking. Thus, when actual taking is found, through inspection of records, to depart significantly from proposed taking (i.e., as submitted in support of the application to obtain the permit in the first plan; or as renewed) then abatement action is reasonably expected to be facilitated. Moreover, ministry evaluation of proposals based on actual taking regimes is more likely to result in outcomes that serve the interest of proponents, per “In our expert opinion, what you are proposing to do can / can not be sustained from the source of supply of Ontario water you are considering taking from”. This is a significant and nuanced difference from how many permits are issued today in my view, namely where it’s up to the permit holder to figure out whether they can comply with the over-riding condition of every permit issued to modify taking to ensure it is done in a manner that does not interfere with any other interest in the source of supply (including ecological). To be clear, the ministry needs to be resolved to say “no” to, for example, crop irrigation taking from headwater cold water systems so as to sustain the well-documented sensitive ecological integrity of such systems. Similarly, groundwater takings that are likely to interfere with headwater flows in trout streams need to be prohibited. In this regard, prohibition on takings needs to be communicated in terms of the values to be protected, less so as a tacit comment on the perceived value of the use of water.

2. What suggestions do you have for the process of assessing and developing a strategy to manage water takings on an area basis? For example, how should local water users, stakeholders, and Indigenous communities be engaged?

In considering an answer here, I’m reminded that the regulator does not yet have the authority to actually require water taking to occur by any person individually or collectively. Moreover, to do so according to a scheduled and coordinated manner so as to provide a sound basis for assessing water takings spatially and/or temporally. This reality will, in my opinion, continue to confound efforts by the MECP and its partners to obtain meaningful knowledge about the effects of water takings on sources of supply.

I would also think that water takings constitute insignificant ‘noise’ against a background of ‘natural’ fluctuations of aquifer levels and stream flow in many areas. That said, if the proposal is sincere in establishing that natural environment use of Ontario water shall be prioritized, then the strategy should establish ‘lines in the water’ (minimum flow thresholds) below which all taking is prohibited. I’m mindful here that such ‘minimum flow’ may vary through the year; i.e., this would not be a ‘one-size-fits-all’ proposition.

Another strategic action in this vein is already occurring: the assessment of water charges against regulation-proscribed uses. It should be possible, therefore to make it economically infeasible to take water from a natural source of supply for highly consumptive use when it can only reasonably diminish the available supply for ecological and other use not subject to regulation (e.g., ordinary household use, watering of livestock and for emergency fire suppression) in areas not already designated as high use watersheds in regulation.

Another tactic to ‘disincentivize’ water takings in areas that are susceptible to scarcity is to borrow a page from how electrical use rates incorporate ‘peak’ use premiums. For example, the water charge assessed for taking during the summer or annual low flow period would be significantly higher than at other times. While that may act to deter takings at those ‘peak charges’ times, it may also incentivize some sectors to adapt to different water taking patterns and development of more efficient means to take and use water, or even to take it into storage during ‘off-peak’ times for future use. The ministry should consider a grant program to facilitate such adaptation.

3. How can the province help water users be more prepared for drought?

In my view there are two key things that have very high prospect for success. The first is to collaborate with the Ministry of Natural Resources and Forestry’s (MNRF) Surface Water Monitoring Centre to publish a map of Ontario that displays areas that have been declared having low water pursuant to Ontario’s Low Water Response Program on an annually recurring basis. This information is currently available and would be a valuable complement to the ‘in-season’ maps that MNRF currently posts. This information should be broadly communicated to allow water users to take informed decisions about whether to proceed with proposals for new or increased taking and even whether to continue with existing taking instead of developing alternate supply.

The second is to engage partners to develop and deliver a grant program that incentivizes surface water takers in high use surface water that are prone to annual or summer low flow to construct ‘off-line’ sources (e.g., dugouts) that they would rely on as primary sources of water and in so doing relieve demand for direct watercourse taking. Moreover, any existing permit holder that elects to make such a transition should be ‘rewarded’ with no fee for issuing a replacement Permit to Take Water (PTTW), as opposed to, in most cases, being faced with a Category 3 application process for new groundwater taking. The ‘reward’ is, in my view consistent with the public achieving a ‘net gain’ in water resources sustainability. It also acts to enhance the responsibility of the water taker to conserve water from their constructed off-line source. Finally, I am aware that irrigation experts with the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) are able to extend services to landowners that may seek to apply for grants to so as I suggest (indeed, it should be a requirement of the grant process that they do so). I am aware, for example, that water use for crop irrigation in the Whitemans Creek subwatershed was not as impacted as would be expected during recent drought years because of the proliferation of ponds constructed in response to outreach by the Grand River Conservation Authority and its partners many years ago. I would encourage you to investigate that undertaking and consider how it may be expanded to other areas.

Goal 3: Make water taking data more accessible

1. Is there any water quantity and monitoring information reported to the ministry that should not be made publicly available? If so, why?

Generally, no. An exception may be considered for information related to the use of water after the quantity has been reported taken from an Ontario source of supply when it may compromise propriety interests in product manufacturing processes.

2. Would the proposed online resource be helpful to you? Why or why not? Are there other mechanisms for sharing this information that would be helpful to you?

While I rely on my municipality to supply the water I use, as a ratepayer I think it would be a good idea that municipalities such as mine be required to report on their achievement of water conservation and any actions taken to foster sustainable use.

3. What data would you like to see included in the online resource?

I think presenting daily water taking through time (i.e., graphically) would be very informative, especially when complemented by footnotes to explain any significant change in the trend (e.g., implementation of water conservation measures, system expansion, etc.) as well as indices that reflect use per capita or by sector. In that latter regard, I’m not aware the ministry has made much progress on determining ‘sectoral standards’, a criterion that is said to be considered during the evaluation of water taking proposals and which qualified persons are expected to reflect upon when advancing proposals for takings by their clients.

4. How would you like to see water quantity data presented? What are the most useful formats (e.g. maps with embedded information, reports, tables, story pages)?

As above, graphically and complemented with a dashboard that reports select indices and notes to explain anomalies or trend change. I have also mentioned that MECP and MNRF could partner to publish maps displaying areas of the province that experience recurring low water conditions in accordance with the Ontario Low Water Response Program.

5. What water resources information and guidance would you like to see made available to the public?

One supposes the ‘pat answer’ to this question is ‘Whatever the public asks for’ within the limits of information that can be legally provided to the public (i.e., is not subject to proprietary rights). And yet, one also supposes that it is not reasonable for the public to think that the ministry (or anyone else for that matter) knows everything about water resources, especially at the very local scale, or should be expected to incur the cost to obtain that information at the expense of other higher priority work related to water resources management. In that respect, one finally supposes the answer to this question comes down to “Whatever the public is prepared to pay for”.

It should also be self-evident that these resources are already generally available to anyone able to use a web search engine to browse the internet. Indeed, several environmental non-government organizations (ENGOs) have published comprehensive libraries on the topic of “water resources”. That fact augurs for the ministry engaging with ENGOs to discuss their experiences responding to the public’s appetite for this information (and not to presume it hasn’t already been satisfied). The wrinkle in this question is that the ministry can hopefully discern between what the public and any particular individual citizen may want made available. I think the former is already well-served; the latter will likely continue to have to be dealt with on a case-by-case basis (and possibly simply referred to a partner ENGO or other source).

Goal 4: Give host municipalities more input into water bottling decisions

1. Do you support the proposal to require water bottling companies to seek support from their host municipality when applying for a Permit to Take Water? Why or why not?

No and chiefly because this is already specifically addressed under Section 7, O. Reg. 387/04, wherein Section 7 (4) of the regulation enhances a Director’s authority to require a water taking proponent to engage a municipality even when the municipality has already been afforded notice of a posting related to the taking on the Environmental Registry. While I understand the Section 7 (4) authority is rarely (if ever) exercised, it seems that it would not be burdensome to do so routinely in future for any proposed taking for bottled water manufacturing given how few of these actually occur. That being said, perhaps this requirement should be extended to any water taking proposal as a matter of fairness.

With regards to the tacit concern underlying this proposal that water taking by water bottling companies is likely to interfere with municipal drinking water supply, one should be mindful that many municipal drinking water systems are supplied by withdrawal from very large lakes. It is also worth noting that a water bottling company may actually be a client (i.e., supplied water) of a municipal drinking water system, in which case it would not require a Permit to Take Water (PTTW) anyway. And as mentioned previously, every municipality already has an approval function, pursuant to the Planning Act, that is reasonably expected to ensure that when they ‘host’ a water bottling company that the ‘post-approval’ operational consequences have been fully reconciled with the Water policies of the Provincial Policy Statement (PPS).

One wonders, therefore, whether the requirement for PTTW, when clearly required in the undertaking of an approved land use, ought to be ‘uploaded’ and integrated with the municipal approval process. Precedence for this approach was established by exempting proponents of renewable energy projects from having to also obtain a PTTW for any water taking related to their enterprises. Perhaps this current proposal could extend that approach to effect ‘regulatory burden reduction’ (in accordance with the ‘modernization of approvals’ mission) while also reinforcing the comprehensive decision-making intent of the PPS. One can envision regulatory amendment that essentially exempts a water bottling company from having to obtain a PTTW when the municipality has already approved the location and construction of the facility to undertake the activity of water taking. Such an amendment could still require that water taking data be reported to the ministry and shared with others.

Thank you for the opportunity to provide my comments for your consideration.