Thank you for the…

Thank you for the opportunity to comment on the 10 year review of the Ontario Endangered Species Act (ESA). I strongly support the ESA and it’s aims, though I also have observed situations where improvements are needed and efficiencies may be found. I have included comments on the 4 Focus Areas specifically highlighted by the ministry, and general comments follow those.

Focus Area 1

A more strategic approach may well be more effective in defined landscapes with a high concentration of species at risk, such as Pelee Island. However, when not using a species specific approach, it should be clear that the landscape approach is actually more effective for all species involved. Also, the two approaches need not be mutually exclusive. A landscape approach may be highly effective for a suite of bird species but useless for a tree species in the same landscape that is declining due to an invasive pathogen. Species specific activities will likely still be required in addition to an effective landscape level approach.

Furthermore, the goal of a more strategic approach should foremost be improving outcomes for species at risk. It should not be to “support a proposed activity while also ensuring or improving outcomes for species at risk.” Supporting a proposed activity is secondary to ensuring outcomes for species at risk.

Focus Area 2

The notification process related to species listing is already long enough for anyone to comment. What is lacking is awareness of proposed listings by people who are not already engaged in the process. The only way to fix this would be to increase spending on promotion and/or notification. Lengthening the process is unlikely to help, and will likely delay recovery efforts. This will not help improve the outcomes for species at risk.

Uncertainty and cost impacts to businesses are a risk of doing business and these are often involved when businesses are not diligent or are overly confident that species at risk are not present. The current approach is adequate.

I do not see anywhere that the assessment and classification of a species is not transparent enough. Adding additional reviews due to “emerging science or conflicting information” would likely cause considerable abuse. If such reviews are added, the listing should be implemented normally and the species should remain listed while such additional reviews are conducted.

There may be limited circumstances where automatic habitat protection is not appropriate. A different approach may be useful when habitat is not related to the reasons for a species being listed. For example, protecting the habitat of Little Brown Bat, which is declining precipitously due to White Nose Disease, is likely not a useful recovery tool, and potentially causes unnecessary and unhelpful complications for many landowners.

Focus Area 3

It may be appropriate to extend the time limit of 9 months for the development of a GRS. However, such an extension should not exceed another 9 months, and the allowable reasons for an extension should pertain to the potential benefit of awaiting incoming information, or that a species is unlikely to suffer harm in the interim (i.e. a species found only within a protected nature reserve), as opposed to a simple lack of resources. Developing a GRS is essential to deploying funding for recovery actions. It need not be the definitive document on the recovery of that species, as it can be amended if necessary.

Similarly, a review after 5 years is helpful to determine if actions are being taken and progress is being made. If additional data is available over a longer timeframe, great. That can be added into the next review. There is no reason not to provide a 5 year review, however brief.

With respect to habitat regulation, more flexibility would be useful since there may be newly listed species that do not require habitat regulation, as described above in Focus Area 2. More flexibility would allow for choosing to prioritize which species would benefit the most. Habitat regulations are very useful even though general habitat protection applies, as they can clarify what is or is not habitat instead of this causing conflict between stakeholders. Such clarity is of great benefit for all parties, and results in more efficient processes.

Focus Area 4

I would agree that authorization processes can create significant delays. These could be partly addressed by providing more staffing resources so that applications can be processed faster. However, new tools could certainly help. One that seems obvious is a streamlined process for activities that will actually be beneficial for species at risk, such as population monitoring, etc. Ministry staff must spend time reviewing and approving annual applications for multi-year projects, or new projects by parties that have a long history of conservation work. This time could be reallocated to reviewing applications that are more likely to have negative impacts, thereby reducing the administrative delays for all applicants. There should be a process that approves qualified individuals (i.e. university researchers, NGO staff, etc.) for a 5 or 10 year period to conduct an agreed upon set of activities for the benefit of species at risk, without requiring an annual review. An annual report could still be provided, with an option to address any concerns. Such a process would also prevent a scenario that occurs all too frequently- that beneficial work gets delayed by the approval process to the extent that the work is compromised. This sometimes also results in less than optimal results from whatever funding was involved. I’ve included more on this below in the general comments.

Any effort to streamline or reduce the need for approvals for activities that benefit species at risk will improve the results for these species, and allow Ministry resources to be better allocated towards activities that may be detrimental. As such, any effort to improve the process for activities that may be detrimental for the species should be greatly exceeded by efforts to improve the process for beneficial activities.

A singular improvement would be the elimination of authorization duplication between the ESA and the Fish and Wildlife Conservation Act (FWCA). An authorization under the ESA should automatically preclude the need to obtain another authorization for the same activity under the FWCA- including for species not listed under the ESA (but listed under the FWCA), if the circumstances and methods are similar. For example, if a researcher obtains a permit to conduct a population estimate of spotted turtles (Endangered) in a wetland, that permit should allow for the same researcher to also include painted turtles (Not at Risk) in the same wetland in their work without having to obtain another authorization under the FWCA for the painted turtles. However, at a minimum, regardless of the painted turtles, the researcher should certainly not also need to obtain an authorization under the FWCA for the spotted turtle work already permitted by the ESA.

Such approval processes could also be co-ordinated better between districts, and the regions. Some activities require approvals from more than one district, or an ESA approval from a district but an FWCA approval from the region, for the same activity. This is especially true when activity in one district spills over slightly into another district (or two, etc.). The district that is most involved should review and process the application, with input from the others if useful, and issue any required authorizations. This currently occurs if proposed activity touches two districts, but not more than that regardless of how slightly the other districts are included. If an applicant is unfortunate enough to work at the nexus of multiple districts, this process currently becomes needlessly complicated. There are easy policy changes that could make this all much more efficient.

Enforcement, and species protection, may be improved by requiring compliance inspections for activities that are detrimental to species at risk. Such inspections could be performed by conservation officers, but this should not necessarily be required as there are already too few conservation officers for the tasks they are required for. Seasonal staff could routinely check compliance, and forward any issues to conservation officers for follow up if the situation cannot be readily resolved. Third party experts, agreed upon by both the Ministry and a proponent, could also be appointed to fill this role.

Additional Comments

In general, habitat protection for threatened and endangered species already seems to suffer in the face of development, despite the ESA. All too often, development proceeds with merely a nod to mitigation efforts that have no long term monitoring or evaluation of success, or with overall benefit agreements which feature few or questionable benefits to the species in the long term. There must be a robust mechanism that allows for the refusal of development applications which would be detrimental to threatened or endangered species. Mitigation efforts, while laudable, should be required to be monitored, and also maintained. Overall benefit agreements should err on the side of creating more benefit for the species, and that benefit must be sustained perpetually, if they are to be approved.

However, such strong habitat protection should also recognize that many activities do not disrupt habitat in any significant way, and that landowners should have some ability to do such things without an onerous process to receive authorization. For example, even where habitat protection is important for a species, if a landowner builds a garden shed out back, that’s not likely to be detrimental and there should be no authorization required for this. Encouraging good stewardship of private lands is critical to species recovery efforts, and landowners are more likely to be positive about species at risk if they do not cause day to day interference in their lives. More effort could be spent on generating classifications of what is, and is not, allowed within species at risk habitat (and this might be species specific) so that landowners would know where they stand.

On the subject of encouraging stewardship, landowners should be eligible for better incentives related to providing habitat for species at risk. The existing Conservation Land Tax Incentive Program (CLTIP) is inadequate and often inappropriate. I am a rural landowner with provincially significant wetland within my agricultural property. The property tax rebate I would receive annually for this wetland under the CLTIP is barely worth the time to complete the paperwork. Further, this property tax rebate comes out of the budget of my municipality. In areas with significant concentrations of species at risk habitat (i.e. Pelee Island, parts of Essex and Norfolk counties), if all eligible landowners applied for this program, the local municipal budget could be significantly affected by a provincial program that the municipalities have no control over. Not surprisingly, some municipalities have reasonable concerns about the ESA because of this. Therefore, the CLTIP program should be immediately reworked so that incentives under it originate from the provincial budget, not municipal ones.

The Managed Forest Tax Incentive Program (MFTIP) results in a property tax reduction for qualifying landowners only if their land is classed as residential. This program should also work for agricultural landowners, and provide benefit to them if their land qualifies. The same criticism above of the CLTIP would apply with respect to the rebate coming from the municipality instead of the province.

Incentives for landowners should be based on the quantity and quality of species at risk habitat involved (i.e. more incentive if multiple species are involved), and they should be significant enough to actually result in protection or restoration of habitat in the face of other economic uses of the land. For example, farmers that protect species at risk habitat on their lands should benefit from this, rather than having to absorb an economic loss from it. The Alternate Land Use Services (ALUS) program, operating in several regions in Ontario, is a good model for this.

The Species at Risk Stewardship Fund (SARSF) has been a very successful tool for enabling recovery actions for species at risk since its inception in 2007. However, this fund rarely has sufficient resources to cover all proposed activities that pass the review process. Support for this program should be increased. However, more money is not the only improvement necessary for this program to be even more effective. A significant issue for applicants is that approvals are frequently announced so late, due to budgetary processes, that proposed work either cannot be completed or must be highly modified and less effective. Species recovery activities need to happen when the work can best be done (i.e. early spring, good weather, etc.) and not when the wheels of bureaucracy and politics decide. Therefore earlier approvals, and more multi-year agreements, would be more efficient and allow for better outcomes for species at risk with the same amount of funding.

Furthermore, such improvements need to be combined with streamlined permitting for recovery activities as mentioned above in Focus Area 4. It is a ludicrous situation to be waiting for funding approval to do recovery activities in the spring, finally get notification of funding approval, and then still be awaiting permit approval to begin the work in question which has now been awarded funding. This puts people in the untenable position of deciding to a) not do the work at the appropriate time (or at all) or b) start the work without a required permit, and risk being charged with contravention of the ESA or FWCA. Both of these are bad outcomes. Even though the proposed work has been reviewed and approved for provincial funding, and may be the same activities as approved in previous years, it ends up being compromised in many situations. Any system that defines priority recovery actions (i.e. through a GRS), then reviews and funds an organization to undertake activities to address those (i.e. through SARSF), and then inhibits them from doing so effectively by not authorizing said activities in time for them to actually occur and punishes those who proceed while awaiting the authorization, is a system that needs to be improved upon. I have made some suggestions for improvement here, and would further suggest that this area should be examined by a group that includes ministry staff, NGO and academic recovery personnel, and landowners for additional opportunities for improvement.