Thank you for the…

Thank you for the opportunity to comment on the discussion paper about the Endangered Species Act (ESA). The following comments represent the official submission of the Canadian Herpetological Society, a community of amphibian and reptile biologists, and conservation professionals.

Many species are declining across the world and in Canada; species in Ontario are not immune to these declines. There are now more than 200 species at risk (SAR) in Ontario. The main purpose of the ESA is to protect species, not to expedite development. Any changes to the ESA must be made with great care, as without diligent conservation of our SAR there is a significant risk of further loss of populations and their key habitats. Further declines in some species may cause them to become extinct (extirpated) from Ontario. Multiple SAR, such as Eastern Fox Snake and Wood Turtle, have a large portion of their global range in Ontario. Therefore Ontario has the disproportionate responsibility for the conservation of these species and their habitats.

Area of Focus 1 – Landscape Approaches
Recovery activities focusing on specific landscapes or ecosystems can be beneficial for many species. Activities, for example, which aim to reduce forest fragmentation, and increase forest connectivity and the amount of core forest area in the Carolinian Zone would benefit many species. However, many recovery activities must be focused on individual species given the threats facing certain species (e.g. Butternut canker). There should be a mix of ecosystem and species-specific recovery actions. At the same time, an ecosystem focus on SAR recovery should not be used as a justification to “support a proposed activity” (p. 3). Too often development proposals argue that a species is widespread in an area and therefore the loss of one habitat patch will be inconsequential to the species’ long term survival. This kind of thinking is ecologically unsound and furthers the notion that populations can persist in small isolated patches of habitat, when really long term survival requires many connected populations across a landscape. Changes to the ESA should not make it easier to destroy habitat for SAR. Development proposals should be reviewed on a site specific basis. Determining what is an appropriate overall benefit should be based on the magnitude of the effect of each project.

Area of Focus 2 – Listing Process
Currently the COSSARO review process is slow. Timelines before new listings of a SAR should not be made longer. If the government wishes to provide more advanced notice about potential additions to the list of SAR, then the species to be reviewed by COSSARO should be made public as early as possible. This would let the public know which species may be listed after the review process.
We strongly disagree with any change to the automatic listing of SAR after review by COSSARO. The decision regarding whether a species is at risk is not a political decision, but a science-based decision and this should not change. Removing the automatic listing of new species at risk would undermine the ESA and weaken the protection for declining species. Similarly, we strongly oppose any change to the automatic protection of habitat for newly-listed Threatened and Endangered species. Without habitat protection, there can be no true protection for SAR.
We do not believe that the COSSARO review and assessment process should be changed in such a way that would further delay species evaluations, listings, and protective action. If anything, the review process should be sped up. Most species assessed by COSSARO have already been assessed by the federal government through the COSEWIC assessment process. No actions should be taken to prolong the already lengthy COSSARO assessment process. New information is always becoming available but this should not prevent making decisions based on the knowledge that is currently available.

Area of Focus 3 – Species Recovery Policies
Modest delays in the production of Government Response Statements (GRS) are not a significant cause for concern. This, however, is not the central issue, given that the government of Ontario has frequently been late in preparing Recovery Strategies or GRS documents. According to a recent analysis, fewer than half of the GRS documents for birds and mammals, and fewer than 60% of the GRS documents for plants, have been prepared on time (Ontario Nature 2019). A GRS is not prepared until a Recovery Strategy has been published, and many species still lack a Recovery Strategy several years after listing. The ESA specifies that a Recovery Strategy should be produced within 1 year of listing for Endangered species and 2 years for Threatened species. The Spotted Turtle was already assessed when the current ESA took effect in 2008 and yet there is still no provincial Recovery Strategy for this species, more than 10 years later. Such inaction is entirely unacceptable. Rather than trying to delay the release of GRS documents, we strongly encourage the government to publishing Recovery Strategies and other recovery documents in a timely manner.
Conducting a 5-year assessment of progress on recovery of SAR is a vital part of the recovery process and should not be changed. Recovery for many, and perhaps most, species will take decades, but that does not mean that a 5 year review is not worthwhile. Each 5 year review provides valuable information on the status of recovery. Without the 5 year review, it would not be apparent if species are continuing to decline despite recovery actions, and given development pressures across much of southern Ontario, a 5 year review provides ongoing “snapshots” of the current status of each species.
Habitat regulation may not be required for all Threatened and Endangered species, but this should be addressed on a case by case basis. General habitat descriptions are adequate for identifying the core areas used by SAR but only regulated habitat “may include areas currently unoccupied by the species, such as areas where the species formerly occurred or areas where there is the potential for the species to become re-established” (Government of Ontario 2012). Hence, at a minimum, regulated habitat is required for those species that need to expand their current range to become down-listed. Habitat regulation should also be mandated for those species with limited current distributions in the province to ensure that the current habitat, and adjacent potential habitat, is protected. Species with few populations left in Ontario are the most vulnerable to any future habitat loss or the negative effects of development pressure. We also recommend that habitat regulation be mandated for all species found in the Carolinian Zone given the lack of natural habitat left in this area.

Area of Focus 4 – Authorization Processes
A variety of permits currently exist under the ESA. The most common permit is the C permit, or Overall Benefit Permit, and obtaining one can be a time consuming process. We encourage the government to develop standard overall benefit actions to compensate for specific activities for particular SAR. These compensatory actions should provide tangible benefits to the species in question and clearly provide an overall benefit to the species on the ground, not just funding for research. Furthermore, it is not enough to simply stipulate compensatory actions in a permit and leave this responsibility in the hands of the proponent. Rather, a monitoring regulatory framework is necessary to ensure that permit stipulations (i.e., an “overall benefit”) are properly undertaken. It is necessary that the responsible ministry (Ministry of the Environment, Conservation, and Parks) follow-up with the proponent to ensure that satisfactory “benefit” has been achieved, as outlined in the proponent’s permit. For long-lived species, such as trees and turtles, monitoring commitment by the proponent needs to truly reflect long-term assessment. Finally, it is encouraged that monitoring/overall benefit reports be made publically available (an exception being for location-sensitive species/populations) so that evaluations of “benefit” can be tracked and critically evaluated. To date, there has been no transparency about how overall benefits are being undertaken or have been achieved despite a sizable number of Overall Benefit Permits being granted across Ontario. This had led many to question the effectiveness of Overall Benefit Permits.
We strongly oppose changes to obtaining a D permit, or Significant Social or Economic Benefit Permit. D permits were never intended to be a common tool to allow development to over-ride SAR. D permits should only be considered in rare cases where there is overwhelming social benefit. They should not be granted for draining a wetland to build a parking lot for a strip mall. Even in the cases when a D permit is granted, the mitigation efforts expended on SAR should also be significant, such as the example of the Herb Gray Parkway in Windsor which has created habitat for SAR and improved connectivity of habitat patches. Obtaining a D permit must never become a rubber-stamp process under any circumstances.

Other issues
Forestry under Ontario’s Crown Forest Sustainability Act should not be exempt from the ESA. The ESA should be fully enforced on Crown Land with regards to any destructive or commercial activity. Crown Land should protect habitat for species while also permitting public access to these natural areas.
In indigenous communities throughout Ontario, animals and plants have various cultural and spiritual values. The ESA recognizes these beliefs and works with First Nations communities in order to protect these species and the habitats they live in. The strength of the current ESA allows for this and any changes to lessen the protection of SAR would negatively affect the species themselves and the First Nations communities that rely heavily on them for medicines and food sources and their cultural and spiritual values.
In addition, the habitats SAR occupy provide economic benefits to the province of Ontario. As an example, wetlands prevent major flooding, filter water and indirectly provide food sources because species such as bear, waterfowl and moose rely on wetlands as food and water sources (EPA 2006).
Other changes to the ESA should also be made to truly strengthen the protection of SAR in Ontario:
1) It is time to repeal the 2013 exemptions for the forestry, hydro, mining and development industries. These exemptions allow the widespread destruction of SAR habitat.
2) Amend section 57 (1)1 of the ESA so that exemptions will only be allowed if they do not jeopardize the survival and recovery of Endangered and Threatened species.
3) Proper enforcement of the ESA must also occur. Too often there is no government monitoring of development projects, which can lead to violations of ESA permit conditions, and especially a lack of follow-through on required overall benefit activities. Even when charges are laid under the ESA, the penalties have often been lax. Fines simply become the price for doing business, rather than a deterrent.
Based on our experience with many SAR across many areas of Ontario, it is clear that the ESA does not currently provide adequate protection for the habitat of these species. Key habitats for SAR get developed with only a token effort at a meaningful “overall benefit.” If the ESA is going to be changed, then habitat protection for Threatened and Endangered species should be strengthened, not weakened.
Protection for SAR also requires stable, long-term funding. We strongly encourage the government to continue to fund the Species at Risk Stewardship Fund, and the Species at Risk Research Fund. Both of these funding programs leveraged a significant amount of funding from the private sector, providing valuable extra funding for protecting SAR, and making the investment from the provincial government very cost effective. Cutting these funding programs would greatly harm the recovery of SAR.
In summary, we strongly support the current ESA. It is a powerful piece of legislation that can protect Ontario’s rarest species, and the province should be proud of this gold standard of SAR protection. We strongly disagree with any proposed changes to the ESA that would weaken protection for SAR and their habitat, delay the production of Recovery Strategies or Government Response Statements, or reduce the obligation of developers to genuinely provide an overall benefit to SAR in their permits. We implore the government to continue to uphold the core values of the ESA and ensure the continued protection of Ontario’s many SAR that play vital roles in the province’s ecosystems.

Documents cited
EPA. 2006. Economic benefits of wetlands. https://www.epa.gov/sites/production/files/2016-02/documents/economicbe…
Government of Ontario. 2012. Categorizing and Protecting Habitat under the Endangered Species Act. http://files.ontario.ca/environment-and-energy/species-at-risk/stdprod_…
Ontario Nature. 2019. New Year, New Plea. https://ontarionature.org/new-year-new-plea/