September 2004

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

Should you need to discuss a energy regulation related matter, please contact Paul Vogel or John Goudy by e-mail or by telephone at (519) 672-9330.  If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

The Ontario Water Resources Act requires that a permit be obtained from the Ministry of Environment for the taking of water by means of a well or diversion or storage of water from a surface source of supply. Where spring water for an aquiculture operation utilizes gravity flow to direct and return a continuous flow of spring water, is a permit required and can the Ministry impose conditions which will permit the suspension or reduction of the water taking?

In a recent decision of the Ontario Environmental Review Tribunal (ERT), the ERT considered an appeal by a farm operator of the requirement for a permit for his trout farm and conditions imposed by the Ministry. The water for the trout farm operation came from three springs located on the property. Gravity flow of the spring water was utilized to pipe the water directly into a building and from there to outside ponds or raceways, followed by settling areas from which it was then discharged from the property and returned to its normal stream course. The position of the landowner was that “the water is not ‘taken’ as the water is free flowing and cannot be stopped”.

In upholding the requirement for a permit, the ERT stated:

“The importance of watershed information and planning has recently been brought to the public’s attention in recent reports and in particular with the Walkerton Inquiry. When information is gathered and there is a threat to the water systems, it is incumbent upon the public institutions to have the authority to act at a time when the water supply is threatened”.

The Ministry agreed that, as constructed, spring water flowed through the facility but asserted that the facility could have been constructed so that water could be diverted. The ERT accepted a condition imposed by the Ministry permitting the Ministry to suspend or reduce the taking and required reconstruction of the facility for this purpose. Despite concerns expressed by the landowner that a condition permitting restriction of water supply would jeopardize his entire fish inventory valued at approximately $300,000.00, the ERT concluded:

“To enact (this condition), a designated passage for the water from the wells and springs to the stream(s) downgrade from the hatchery, is required without the water passing through the hatchery. Therefore, I believe it is in the public’s interest to have (this condition) included in the (permit).”

Public authorities are increasingly concerned with the need to regulate water taking to address impacts of reduced water volumes, water shortages and drought on water availability. Even water takings limited to the natural flow of surface springs may be subject to regulation and restrictive conditions which allow for suspension or reduction of the taking.