PART TWO OF TWO AREA OF…

PART TWO OF TWO

AREA OF FOCUS 3 – SPECIES RECOVERY POLICIES AND HABITAT REGULATIONS

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.)

Realistically, the government has never had the capacity to implement the ESA as it was intended. If additional resources are not forthcoming, then flexibility must be built into the process to acknowledge the inevitable delays. Currently under the ESA there is no provision to enable an extension to the nine-month timeline for Government Response Statements (GRS) to recovery strategies for Threatened and Endangered species. In many instances this timeline may be adequate, while for others extensions may be necessary for more complex recovery approaches and where additional engagement and consultation may be required. MECP should consider increasing the flexibility of this process similar to the timelines for recovery strategies and management plans, including:
• A requirement to publish notices on the environmental registry stating additional time is required to prepare the GRS due to various reasons (i.e. complexity of issues, time needed to co-operate with other jurisdictions, prioritization of GRS for other species, socio-economic impacts, etc.).
• Publicly describing the reasons for the timeline extension.
• Providing an estimate of when the preparation of the GRS will be completed.

As stated, we believe that a pause button is necessary for some species under the ESA. Our game species proposal could facilitate more immediate action for some species. These game species likely already have some form of management plan associated with them and therefore there would be a much quicker turn around on implementing recovery actions.

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 available over a longer timeframe, or where stewardship actions are likely to be completed over a longer timeframe.)

Conducting a progress review is critical for the protection and recovery of species at risk, and to ensure government accountability. A five-year timeline may be too short for some species and recovery actions to result in a noticeable benefit. However, this is preferred over a longer review period if that delay results in a species becoming more imperiled/at risk. The biology of the species and the timeline of the threat should inform the progress review. For example, the five-year delay may be too lengthy for a species that reproduces annually and is imperiled because of more immediate threats (the review may need to occur sooner). On the other hand, for a long-lived species facing a longer-term risk (i.e. climate change), the five-year time frame may be unnecessarily short. The current process does not acknowledge these differences and would benefit from additional flexibility. These situations could both be addressed using a tiered review system that incorporates progress reports at short, intermediate, and long-term intervals. Short term reviews can simply be a checklist of actions taken and actions still needing to be implemented from the GRS, where long term reviews could quantify accrued benefits (i.e. population increases).

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.)

General habitat protections and the development of specific habitat regulations are not warranted if the SAR is not habitat limited; there is no benefit in protecting habitat of a species that is not threatened by habitat loss. For example, since their arrival the emerald ash borer has been responsible for killing tens of millions of ash trees and continues to spread into new areas. If ash trees were to be listed as Threatened or Endangered under the ESA, species protection would prevent the removal of a tree, but protecting their habitat will not assist in the recovery of the species. Eliminating the mandatory requirement to protect the habitat of Threatened and Endangered species that are at risk due to factors other than habitat loss/degradation results in more efficient use of resources and time for both the proponents and government. By implementing a delay in habitat protections, it would allow for time to consider the socio-economic implications and develop pragmatic solutions (e.g. the bobolink experience).

AREA OF FOCUS 4 – AUTHORIZATION PROCESSES

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.)

To our knowledge, the majority of compensation is implemented after adverse effects on the species or their habitats have occurred. As a result, there are negative impacts that are not well accounted for (if at all). Regulatory agencies must review numerous applications on a project-by-project basis which is administratively burdensome, and also limits resources that could be used for managing other project aspects. There is a need to update and improve authorization processes under the ESA. However, any new tools being considered to help achieve benefits for species at risk must be well-thought-out, carefully implemented, and rigorously managed. We recommend that the Review identify tools that have been successfully implemented in other jurisdictions that are feasible for application in Ontario, and enable them in the Act. Even if they are never implemented in Ontario, the government will have the ability to do so if circumstances dictate.

Conservation funds
Conservation funds have the potential to benefit species at risk, but have been criticized for not contributing to habitat gains or achieving no-net-loss (Hunt et al., 2011). These funds typically involve compensating through the preservation of existing habitat; however, if no new habitat is being added, then there is an overall net loss.

An effective conservation fund may consider the acquisition or securing of marginal habitats (i.e. of little to no ecological value), and making improvements through restoration, remediation, and enhancement to benefit SAR as directed through a recovery strategy and GRS. The lands could be conserved and made available for sustainable use activities like fishing, hunting, and trapping, where appropriate. Conservation funding could also be expanded to support research for species at risk that are not habitat limited, but at risk due to other factors (i.e. disease, invasive species, climate change, etc.).

Conservation banking
Any conservation banking system must ensure high quality habitat credits that achieve ‘no net loss’ of habitat. Many conservation banking systems fail to ensure the creation/protection of habitat, and ultimately result in continued habitat loss. This difference between predicted and realized habitat gains is a serious concern, and we therefore recommend under any proposal a greater than 2:1 ratio of habitat area gained to habitat area lost in order to help achieve no net loss. Additionality is a critical component for the establishment of a functioning environmental market. Mechanisms for additionality testing and credit certification should be implemented to avoid flooding environmental markets with credits that don’t provide added value (i.e. non-additional). Control and management strategies for monitoring and evaluating markets is critical to the establishment of a functioning system. Checks, balances, and consequences need to be structured to ensure conservation banks perform as anticipated. A registration system to help track conservation projects, banks, and the exchange of credits is necessary and should be made available to the public, where appropriate.

Exchange of conservation credits, in most instances, should be in-kind replacement (i.e. “like-for-like”) that achieves an overall net gain of that commodity. For example, if the activities of a proponent result in adverse effects to Redside Dace habitat, the credits needed to compensate the work should come from a conservation project involving the creation of Redside Dace habitat within the same service area (e.g. waterbody, watershed, etc.). In order to contribute to additionality, a greater number of conservation credits should always be maintained ‘in the bank’ relative to the number of debits (i.e. principal versus interest).

The delineation of service areas and the geographical and spatial extent should not be arbitrarily determined. MECP should consider restricting service area boundaries to natural geomorphological features such as watersheds. The exchange of credits through conservation projects should occur at, or in close proximity to, the area that is being impacted/harmed (i.e. within the service area where the adverse effect is occurring). Furthermore, conservation projects that are created under the banking system should receive some level of protection from future developments to ensure its continued contribution to ecological conservation.

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.)

Third-party conservation banking
Proponents often lack the technical expertise to ensure the success of conservation offsets. Third-party conservation banking could enable applicants to take a more strategic or collaborative approach to address impacts to species at risk. This type of system provides opportunities for conservation organizations to undertake “environmentally beneficial work” (Poulton, 2018). Proponents required to offset adverse impacts would have the flexibility to purchase certified credits from conservation banking companies to compensate for activities resulting in adverse effects to species at risk or their habitats. Third-party banking has the potential to support large-scale conservation projects, it provides more certainty about the ecological performance of offsets, and benefits are achieved in advance of adverse impacts (CWF, 2018).

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.)

The OFAH supports the standardization and modernization of permitting under the ESA to provide more clarity to applicants and regulators, and to improve authorization processes. We would be pleased to comment further when more specific examples of changes are proposed.

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.)

See Area of Focus 1.

In what circumstances would enhanced inspection and compliance powers be warranted? (e.g., regulations.)

Inspection and enforcement powers should be made consistent across authorizations and regulations to enhance compliance with regulations. MECP could consider implementing provisions in the ESA to enable the establishment of a public registry; except during instances where full disclosure may compromise the ability to protect species at risk or their habitats. A registry would increase transparency and improve overall awareness of projects on a landscape scale, and would assist in the knowledge and understanding of cumulative impacts of development pressures. Codes of practice could be enabled and developed to provide advice to proponents to avoid impacts on SAR and their habitats. Also, provisions for designated projects could be considered for works, undertakings, or activities that would always require SAR authorizations; provides certainty for proponents around permitting and associated timelines.

Conclusion
Harmonizing management of SAR with existing legislation (where possible), the government would be able to deal with some species/threats and rely on the ESA to conserve those species that aren’t effectively protected under other legislation. Removing this legislative duplication would free up important capacity and finances for species that are largely ignored under the current system. We have additional thoughts on how to operationalize our recommendations, and would be happy to discuss them further.

Thank you for the opportunity and considering our comments. We believe this is only the first step in reviewing and revising the ESA to help develop a more efficient and effective SAR program in Ontario. The OFAH has significant experience, relevant expertise and a keen interest that can result in important contributions during future discussions on how to improve Ontario’s species at risk program.

Yours in Conservation,

Mark Ryckman
Manager of Policy

References
Canadian Wildlife Federation. 2018. Fisheries Act Amendments Policy Brief: Third-party Habitat Banking.

Poulton D. 2018. Disappointment at the Bank: The Fish Habitat Banking Provisions of Bill C-68. [Online] < https://ablawg.ca/2018/04/17/disappointment-at-the-bank-the-fish-habita…;. University of Alberta.

Hunt K; Patrick P; Connell M. 2011. Fish habitat banking in Canada: opportunities and challenges. Econ. Commer. Anal. Rep. 180: vi + 66pp.

END PART TWO OF TWO