Thank you for the…

Thank you for the opportunity to comment on the review of the Endangered Species Act.

Overall, the City of Kitchener supports provincial efforts to conserve our natural heritage and biodiversity through legislation such as the Endangered Species Act. Comments have been categorized in terms of strengths, challenges, opportunities, and in response to specific questions from the discussion paper.

1. What is Working Well?
Municipalities require the scientific and technical expertise provided by provincial staff in identifying and dealing with Species at Risk (SAR). Provincial ecological and biological expertise regarding individual SAR is critical to problem solving the changes to landscape and habitat inherent to running a municipality (infrastructure projects, land development, ongoing maintenance etc.). It is recommended that this continue to be a service provided by the province, as municipalities are not resourced to provide such specialized expertise at a staff level.

In addition, the development and maintenance of lists of Provincial Species at Risk (SAR) customized to municipalities has been extremely helpful as a screening tool to help us scope what species are of concern in any given part of the province. Overall, MNRF staff are approachable, available and responsive in providing advice and/or direction on SAR in Kitchener.

2. What are the Challenges?
The City of Kitchener has been involved in this process since the first permit was issued under the legislation. In our experience, extended timelines for approval and associated increases in technical study costs are generally happening when new SARs need to be addressed as part of a project. Once the province and the City or private sector project managers have experienced several years / iterations in dealing with a particular species subject to particular types of potential impacts (e.g. urban land development, stormwater management facilities maintenance), approval procedures / processes are developed and become more predictable, quicker and less costly.

In addition, approval timelines can be a significant concern. These should be minimized as much as possible without compromising the intended protections. It is understood, however, that to get the intended protections longer approval timelines may be required. In such cases, clear review and approval timelines or deadlines need to be established up front and adhered to by the province to help municipalities in tendering projects.

While provincial scientific and technical support for Endangered and Threatened species has been appreciated, the same type of advice and guidance should be provided by the province for species that may not be Endangered or Threatened, but have been nevertheless identified by the province as ”Special Concern.” Again, municipalities are not resourced to provide such specialized expertise at a staff level.

There needs to be greater clarity and certainty when provisions of the ESA seem to run counter to other aspects of provincial legislation. For example, in Kitchener some stormwater management ponds are considered habitat for a Threatened turtle species. However, under the Ontario Environmental Protection Act, the Environmental Compliance Approvals (ECAs) stipulate performance and maintenance requirements. These ECA conditions require disturbance to the habitat. There needs to be clear direction as to which legislation takes precedence so that the municipality can confidently plan maintenance activities.

3. Opportunities for Enhancement of Legislation, Procedures and/or Transparency
It is recommended that the province continue to provide easy to understand information for public consumption. The website that identifies which species are protected is great for this and this should be maintained.

In addition, a better communications strategy regarding Ontario SAR and this legislation would improve general public and landowner support for species protection. Communication should be in common language and also create literacy as to what activities are permitted in regulated habitat, as opposed to the common assumption that all activities are prohibited.

As part of an enhanced communications strategy, monitoring of the effectiveness of any efforts to protect species and/or create an overall benefit should not only be undertaken (by proponents, permit holders), but the results should be communicated to citizens in common language as well.
More frequent opportunities for training re: procedures under the ESA should be offered. Municipal staff could be offered training separately, as could particular industries and private landowners. This would be particularly valuable on an on-going basis to address construction practices that do not anticipate SARs properly, and result in construction delays. For example, Bank Swallow nesting in servicing trenches, topsoil piles and municipal sand storage areas have created delays and inefficiencies in recent years.

4. Landscape Approaches
Landscape and/or multi-species approaches are likely not implementable at the relatively small, often property-by-property scale at which municipal activities occur. This would be more applicable to potential impacts such as forestry or mining, which occur over much larger natural areas inhabited by communities of diverse species.

5. Listing Process and Protections for SAR
The listing process should remain the responsibility of impartial species experts. It is not a process that can involve non-expert stakeholders or lobby groups. However, better notification of stakeholders (e.g. municipalities) and more notice would be helpful. This may involve better public communication of COSSARO’s Reports to the Minister regarding the classification and any new evaluation of species, as well as considering how, for example, the Ontario Environmental Registry could be better utilized for this type of notification or to provide appropriate notice. This would help proponents of municipal undertakings with long timeframes plan ahead better.

In addition, something other than automatic listing may be appropriate in instances where disease is the main factor imperiling a species, such as in the case of Butternut and myotid bat species, where habitat is clearly not limiting.

6. Species Recovery Policies and Habitat Regulations
Government Response Statements should take advantage of any data / studies that can be provided by landowners / permit holders, especially non-government private landowners, or any approaches to species protection (avoid, mitigate, compensate) that could be piloted by permit holders under provincial oversight. Therefore, taking advantage of this opportunity would likely be impossible within the nine months from the publication of the province’s Recovery Strategy for a particular species.

Longer timelines to permit a review of progress on recovery may be advisable when species are long-lived, cryptic and/or elusive.

Monitoring of the effectiveness of any efforts to protect species and/or create an overall benefit (i.e. 5-year review after Government Response Statement) should not only be undertaken (by proponents, permit holders), but the results should be communicated to citizens in common language.

7. Authorization Processes
To date, the City’s experience has been primarily with Overall Benefits Permits—especially in connection with urban land development and new road / bridge / sanitary sewer building in greenfield communities. In recent years, we are more regularly involved in requesting regulatory exemptions or a health/safety permit. The Overall Benefits Permit (s. 17(2)(c)) process can indeed be unpredictable and onerous in terms of delays and increased costs.

A potential opportunity would be for better harmonization with other provincial permissions such as those under the Environmental Assessment or Conservation Authorities Acts, or for more routine municipal activities, the Environmental Protection Act / Water Resources Act (Environmental Compliance Approvals).