March 4, 2019 Public Input…

March 4, 2019

Public Input Coordinator
Ministry of the Environment, Conservation and Parks
Species Conservation Policy Branch
300 Water Street
Peterborough ON
K9J 3C7

Public Input Coordinator,

Re: EBR Registry Number 013-4143

Thank you for the opportunity to provide comments on the 10th Year Review of
Ontario’s Endangered Species Act: Discussion Paper. Attached with this covering letter
are staff comments developed in consultation with the Region’s Local Municipalities.
These comments are subject to ratification by Niagara Region Council.

As you are likely aware, the Niagara Region is one of the most biodiverse areas in
Ontario and home to a large number of species deemed by COSSARO to be at risk of
extinction. Balancing the protection of these species with changing land use patterns
requires defendable policies supported by scientific research which can be applied in an
efficient timeframe.

Stakeholders in Niagara have raised concerns over timelines associated with reviewing
authorizations and receiving feedback from the MNRF. The current process is not
consistent, and applicants face delays which have implications on development
schedules, especially when season specific monitoring is required. Expediting the
process with efficient and clearly communicated timelines is necessary to resolve this
problem.

Regional staff are supportive of the MNRF’s discussion paper and are encouraged by
the Government’s process for consultation on this critical topic. We look forward to
reviewing and providing feedback on draft changes to the Endangered Species Act.
If you have any questions about the content of this submission, please don’t hesitate to
contact the undersigned.

Sincerely,
Erik Acs, MCIP, RPP
Manager of Community Planning

Response to: 10th Year Review of Ontario’s Endangered Species Act
Question
Response
Landscape Approaches
The Province asked:
In what circumstances would a more strategic approach
support a proposed activity while also ensuring or
improving outcomes for species at risk? (e.g., by using a
landscape approach instead of a case‐by‐case
approach, which tends to be species and/or sitespecific.)
Niagara Region staff are supportive of using the
Provincial and/or Regional Natural Heritage System to
inform protections for species identified on the Species
at Risk (SAR) in Ontario list and the habitat that
supports them; however, further guidance is requested
regarding how a “landscape approach” may be used.
Moving to a landscape approach that uses the natural
heritage system for protecting the habitat of SAR could
be an effective method, but it should be clear to the
development community that this could translate into
additional protections that do not currently exist.
If changes to the Endangered Species Act (ESA) are
implemented, training for municipal staff should be
prioritized.
Consideration of applications currently in the middle
of the ESA permitting process is also recommended.
The Province asked:
Are there existing tools or processes that support
managing for species risk at a landscape scale that
could be recognized under the Endangered Species
Act?
Niagara Region uses a Natural Heritage System
informed by Ecological Land Classification System (ELC)
mapping which could be used to support SAR
identification at the landscape scale.
Listing Process and Protections for Species at Risk
The Province asked:
What changes would improve the notification process
of a new species being listed on the Species at Risk in
Ontario List? (e.g., longer timelines before a species is
listed.)
Niagara Region staff suggest that the use of automated
notifications (such as an electronic mailing list) is
recommended to notify stakeholders (e.g., municipal
staff) when new information becomes available.
The Province asked:
Should there be a different approach or alternative to
automatic species and habitat protections? (e.g., longer
transition periods or ministerial discretion on whether
to apply, remove or temporarily delay protections for a
threatened or endangered species, or its habitat.)
Niagara Region staff caution that decisions about
species protections should be based in science without
the influence of ministerial discretion. Niagara Region
staff encourage the continuance of having Committee
on the Status of Species at Risk in Ontario (COSSARO)
assess species.
It is further recommended that the Province strengthen
species protections for species identified as ‘special
concern’ in the ESA. This could be done through the
provision of guidance that defines the habitat
requirements for ‘special concern’ species, which
would offer better protections to the species and
would also give stakeholders information related to
future habitat protections if the species get up‐listed to
‘threatened’ or ‘endangered’ status.
The Province asked:
In what circumstances would a different approach to
automatic species and habitat protections be
appropriate? (e.g., there is significant intersection
between a species or its habitat and human activities,
complexity in addressing species threats, or where a
species’ habitat is not limiting.)
While Niagara Region staff support the continuance of
the current approach, staff agree there may be
opportunity to refine habitat protections where species
habitat is not limiting.
The Province asked:
How can the process regarding assessment and
classification of a species by the Committee on the
Status of Species at Risk in Ontario be improved? (e.g.,
request an additional review and assessment in cases
where there is emerging science or conflicting
information.)
Niagara Region staff support the continuance of the
current approach used for species and habitat
protections. It is staff’s opinion that COSSARO is a
transparent committee of experts which twice annually
produces a ‘priority list’ that identifies species whose
populations are in decline. Using a scientific approach,
they assess what is known about the species and make
a decision on whether additional protections are
warranted. The public is notified of any proposed
changes and given the opportunity to submit
comments on the Environmental Registry. This process
is transparent and scientifically defendable.
If changes are proposed to this approach, Niagara
Region staff request the opportunity to further
provide comments.
Species Recovery Policies and Habitat Regulations
The Province asked:
In what circumstances would a species and/or
Ontarians benefit from additional time for the
development of the Government Response Statement?
(e.g., enable extending the timeline for the
Government Response Statement when needed, such
as when recovery approaches for a species are complex
or when additional engagement is required with
businesses, Indigenous peoples, landowners and
conservation groups.)
Niagara Region staff suggest that the current time
requirements prescribed by the ESA related to
developing the Government Response Statement is
reasonable. Any further delay could create uncertainty
for stakeholders. If additional time is authorized, the
process for doing so should be well documented,
transparent and based in science.
The Province asked:
In what circumstances would a longer timeline improve
the merit and relevance of conducting a review of
progress towards protection and recovery? (e.g., for
species where additional data is likely to be made
The Region can not think of any circumstances where a
longer timeline would be warranted.
available over a longer timeframe, or where
stewardship actions are likely to be completed over a
longer timeframe.)
The Province asked:
In what circumstances is the development of a habitat
regulation warranted, or not warranted? (e.g., to
improve certainty for businesses and others about the
scope of habitat that is protected.)
A habitat regulation specifies the habitat required by a
species to fulfill its life processes. According to the ESA,
“it provides a more precise definition of a species’
habitat and may describe features, geographic
boundaries or other unique characteristics. Regulated
habitat may be smaller or larger than general habitat”.
Thus habitat regulations provide a greater level of
certainty to stakeholders as they identify individual
species’ precise habitat needs.
Niagara Region staff recommend that the Province
focus on expediting this process.
Authorization Process
The Province asked:
What new authorization tools could help businesses
achieve benefits for species at risk?(e.g., in lieu of
activity‐based requirements enable paying into a
conservation fund dedicated to species at risk
conservation, or allow conservation banking to enable
addressing requirements for species at risk prior to
activities.)
Changes made to the ESA permitting process in 2013
(i.e., incorporating self‐registry for specific SAR)
provided more leeway for industry, so analysis of those
changes would be beneficial to determine the best
approach moving forward.
A mitigation hierarchy (e.g., avoid impacts, minimize,
mitigate, compensate), based in science, is
recommended if a ‘conservation fund’ is considered. It
is staff’s opinion that this approach has high potential
to be misused via treatment as a ‘first option’ by
stakeholders.
The Province asked:
Are there other approaches to authorizations that
could enable applicants to take a more strategic or
collaborative approach to address impacts to species at
risk? (e.g., create a new authorization, such as a
conservation agreement.)
Applicants should be advised on the process and
associated timelines for receiving an authorization like
a s.17(2)(c) Overall Benefit permit. An alternative
approach could include providing incentives for
stakeholders who avoid needing an authorization.
Stakeholders should also be informed that an ‘overall
benefit’ is not always achievable and so avoidance
should take precedent.
The Province asked:
What changes to authorization requirements would
better enable economic development while providing
positive outcomes and protections for species at risk?
(e.g., simplify the requirements for a permit under s.
17(2)d, and exemptions set out by regulation.)
Expediting the time it takes to review an authorization
would likely provide the most benefit to stakeholders.
This could be achieved by ensuring there are staff and
expertise in local district offices.
The Province asked:
How can the needs of species at risk be met in a way
that is more efficient for activities subject to other
legislative or regulatory frameworks? (e.g., better
enable meeting Endangered Species Act requirements
in other approval processes.)
The Province asked:
In what circumstances would enhanced inspection and
compliance powers be warranted? (e.g., regulations.)
The ESA on‐line registry was developed to expedite
approvals for specific species deemed eligible by
COSSARO. These applications should be audited
regularly to ensure the ESA is being applied fairly and
consistently across the Province. There is currently an
incentive for applicants to use the self‐registry process
improperly, which could be remedied with enhanced
inspection and compliance powers.
Other Comments:
From a policy implementation standpoint, Niagara Region requires a clear set of directives related to the
implementation of the Endangered Species Act (ESA). Any changes proposed by the Province should include a
detailed strategy for educating municipalities and other stakeholders on any new requirements or processes. This
should include direction on who is responsible for ESA authorizations in the interim.
Currently, one of the largest complaints received from industry involves the time it takes for developers to receive
feedback from the MNRF on information requests submitted to local district offices. This becomes especially
problematic for species with specific timing windows. For example, bats may require acoustic monitoring that can
only occur in the month of June. If an applicant submits an information request to the MNRF in April/May and
does not receive a response until July, this can have implications on development schedules.
It would be helpful to have species‐specific experts available to help guide ESA applications. The current process
requires working with local district offices that may not have the internal expertise for every potential species at
risk in their jurisdiction. Staffing changes also can cause delays. Having experts available would help alleviate
some of the back and forth that occurs which results in delays.
A science‐based review of the ESA’s capability to protect species over the past 10 years would be helpful for
informing the proposed update. Knowing how effective the legislation has been at protecting species and
removing them from ‘imperiled’ status would be a good first step for informing the legislation updates.
Consideration of climate change on habitat should also be incorporated into the ESA update, as should
consideration of cumulative impacts.
The ESA is complex because it deals with many different species each with unique factors contributing to
population decline. A ‘one shoe fits all’ approach is likely not practical and therefore a case‐by‐case approach may
be warranted for many species. For instance, not all species are at risk due to habitat loss. This distinction needs
to be understood and considered against development proposals.