These are my comments on…

These are my comments on the10th Year Review of Ontario’s Endangered Species Act: Discussion Paper.
ERO number. 013-4143

1. BACKGROUND: Ontario’s Endangered Species Act was severely weakened by the enactment of O.Reg. 176/13 in May of 2013.

Ontario’s Endangered Species Act (ESA), as originally enacted, allowed proponents to carry out activities that could harm species at risk or their habitat if they obtained authorization from the Ministry of Natural Resources and Forestry (MNRF).

On May 31, 2013, despite over 10,000 mostly negative comments posted on the Environmental Registry, the amendments to the ESA were made with the enactment of O.Reg. 176/13.
https://www.ontario.ca/laws/regulation/R13176

Prior to the enactment of O.Reg. 176/13 in May 31, 2013, the ESA required project proponents for projects with a negative impact on endangered species, or species at risk, to obtain a specific permit from the MNRF. In 2013, O.Reg. 242/13, shifted the authorization process to a “permit-by-rule” process. This means that proponents can carry out many harmful activities as long as they follow a series of rules that are set out in regulations under the ESA.

O Reg 176/13 included amendments to 58 different statutes, including the following acts prescribed under the Environmental Bill of Rights, 1993:
the Fish and Wildlife Conservation Act, 1997 (FWCA)
the Kawartha Highlands Signature Site Park Act, 2003 (KHSSPA)
the Lakes and Rivers Improvement Act (LRIA)
the Niagara Escarpment Protection and Development Act (NEPDA)
the Provincial Parks and Conservation Reserves Act, 2006 (PPCRA)
the Public Lands Act (PLA).

O.Reg. 176/13 exempt almost all industrial projects from the core protections of the Endangered Species Act. None of Ontario's more than 150 endangered or threatened species now have the full protection they originally had under the Act.

2. THE CURRENT PROPOSAL in ERO-013-4143 references a Discussion Paper “10th Year Review of Ontario’s Endangered Species Act”

AREA OF FOCUS 1 Landscape Approaches in the above referenced document states:
“The case-by-case and species-specific policy approach to implementing the Endangered Species Act can sometimes limit the ability to achieve positive outcomes for species at risk. 
For species that depend on habitat across wide ranges, a landscape approach (my emphasis) that enables planning and authorizing activities at a broad scale may be preferred.”

MY COMMENT: For the sake of this discussion, I have assumed that “landscape approach” means a broader ecosystem approach. This would include nesting, perching or denning habitats. This would also include foraging or hunting habitats and the travel corridors used to move between nesting/denning habitat and foraging habitats. For migratory avian species, the North American migratory corridors are of critical importance, and must also be considered in any ecosystem approach.

The Discussion Question in the Area of Focus 1 Landscape Approaches section asks:
“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 site-specific.)”

MY COMMENTS ON THE ABOVE DISCUSSION QUESTION:
Both approaches have merit, and could be used in combination. The chosen approach depends on the species and the level of risk faced by that species.

For critically endangered mammal or avian species, or a species in danger of extirpation, the best approach would be a case-by-case approach with site-specific habitat conservation in addition to protection and monitoring of individual population groups.

For critically endangered plant species, the best approach would be site-specific habitat conservation combined with an ecosystem approach.

For critically endangered invertebrate species, the best approach would be site-specific habitat conservation.

For threatened or at-risk animal or plant species, the best approach would be an ecosystem protection.

If a species is at risk due to fragmentation of habitat, then an ecosystem approach, with consideration of establishing and protecting travel corridors would be the best approach.

ADDITIONAL COMMENTS ON THE LANDSCAPE OR ECOSYSTEM APPROACH:
One area of the ecosystem that has been ignored by project proponents and the MNRF are the shorelines of the Great Lakes.

A report by the US Fish & Wildlife Service “Great Lakes Avian Radar Technical Report Niagara, Genesee, Wayne and Jefferson Counties, New York”, studied avian activity along the south shore of Lake Erie using radar.
https://digitalmedia.fws.gov/digital/collection/document/id/2128/

The study, conducted in 2013 and released in July 2016, monitored four sites using radar along the southern shore of Lake Ontario, scanning 24 hours a day in vertical and horizontal planes to capture movement. At all sites, the radar recorded high levels of bird and bat activity in or near the “rotor-swept zone” that wind turbines would occupy if built along the lakeshore. Activity was especially high at night, a finding that largely invalidates the use of daytime visual surveys often used by wind-energy developers to assess risks to birds.

AREA OF FOCUS 2 – LISTING PROCESS AND PROTECTIONS FOR SPECIES AT RISK

The Discussion Paper states:
“The Endangered Species Act provides automatic species and habitat protections for species that are listed as endangered or threatened.”

MY COMMENTS: This protection exists only on paper. As noted in Chapter 7 of the 2017 ECO report, “Getting Approvals Wrong: The MNRF’s Risk-Based Approach to Protecting Species at Risk”
http://docs.assets.eco.on.ca/reports/environmental-protection/2017/Good…

“Authorizations to harm species have increased dramatically since the introduction of the permit-by-rule.”

The ECO report goes on to say:
“In the permit-by-rule system, the MNRF abandoned the essential “overall benefit” safeguard for almost all species at risk and many of the major activities that harm them. While a few of the species-specific exemptions include actions that could potentially benefit the species (e.g., replacing damaged or destroyed habitat with a greater area of suitable new habitat), most exemptions only require the proponent to minimize the predictable adverse effects of their activities – likely leaving the species in a worse state than before. The sweeping scope of the exemptions created by the MNRF in 2013 is also cause for concern. “

MNRF RESPONSE TO THE 2017 ECO REPORT
The MNRF responses to the ECO comments and recommendations contained vague rationalizations for their behaviour.

For example:
“The ESA acknowledges that impacts cannot always be strictly avoided and includes flexibility mechanisms to authorize activities that would otherwise contravene the Act, provided all of the legal requirements can be met (e.g., providing an overall benefit to the species). This means the ESA protects species at risk and their habitat while continuing to support social and economic activities undertaken by the people and businesses of Ontario.”

This MNRF statement did not speak to the ECO’s comment that “providing a net benefit to the species” is rarely included in the “legal requirements”:

The ECO report stated: “The data provided by the ministry indicates that few activities now are proceeding under the overall benefit approach – the vast majority of activities are proceeding under exemptions that only ask proponents to minimize harm.”

Conforming to “legal requirements” is no guarantee that endangered species will receive any protection if exemptions to those protection requirements are routinely included in permits; and if protection requirements are included, they are not monitored or enforced.

AREA OF FOCUS 3 – SPECIES RECOVERY POLICIES AND HABITAT REGULATIONS

The Discussion Paper states:
“A Government Response Statement outlines the actions the government intends to take or support to help recover each species that is endangered or threatened (i.e. it is a species-specific policy). The Endangered Species Act requires that a Government Response Statement be published within nine months after a recovery strategy is prepared. The response statement is based on advice provided in the recovery strategy, social and economic factors, and input from stakeholders, other jurisdictions, Indigenous peoples and the public.”

DISCUSSION QUESTIONS for area of focus 3:

1) “In what circumstances would a species and/or Ontarians benefit from additional time for the development of the Government Response Statement?”

MY COMMENT: If a time frame of nine months came out of consultations with numerous stakeholders, perhaps a more appropriate question would be to ask is “what is needed for a Government Response Statement to be completed on time?”

2) “In what circumstances would a longer timeline improve the merit and relevance of conducting a review of progress towards protection and recovery?”

MY COMMENTt: If a proponent has committed to a strategy of providing a net benefit to a species, a longer timeline may be needed to monitor the effect.
For example: a new grassland created as nesting habitat for species such as the Bobolink or Eastern Meadowlark, will take up to 5 years to mature. The success of such a strategy would require monitoring for several breeding seasons after the grassland has matured.

3) “In what circumstances is the development of a habitat regulation warranted, or not warranted?”

MY COMMENT: It should be made abundantly clear to all proponents that destruction of any habitat that is host to an endangered or threatened species, MUST be accompanied by a commensurate development or increase in the same type of habitat.

AREA OF FOCUS 4 – AUTHORIZATION PROCESSES

This section in the Discussion Paper states:
“The Endangered Species Act includes prohibitions against the harm, harassment or killing of species listed as endangered or threatened and prohibits the damage or destruction of their habitat. Under the Act, the government can issue different types of permits or other authorizations for activities that would otherwise not be allowed.”

…and…

“Overall benefit permit, s.17(2)(c): An overall benefit permit may be issued for an activity that would have an adverse effect on species at risk or their habitat, as long as an overall benefit is provided to the species in Ontario through conditions that contribute to improving the circumstances for the species.”

MY COMMENT:
Prohibitions against harm, harassment or killing of endangered or threatened species are of no help if the MNRF freely and repeatedly awards permits that allow activities that will cause overall harm to a species.

The ECO’s 2017 report contains these statements:

“In the permit-by-rule system, the MNRF abandoned the essential “overall benefit” safeguard for almost all species at risk and many of the major activities that harm them. While a few of the species-specific exemptions include actions that could potentially benefit the species (e.g., replacing damaged or destroyed habitat with a greater area of suitable new habitat), MOST EXEMPTIONS ONLY REQUIRE THE PROPONENT TO MINIMIZE THE PREDICTABLE ADVERSE EFFECTS (capital font is my emphasis) of their activities – likely leaving the species in a worse state than before. The sweeping scope of the exemptions created by the MNRF in 2013 is also cause for concern.”

….and…

“The MNRF has utterly failed to implement the law effectively. The massive shift from overall benefit to minimizing harm – a much lower standard of protection – now authorizes harm to most species at risk across Ontario. Meanwhile, the MNRF relies on blind faith and on public complaints instead of an effective compliance and enforcement strategy. It makes no attempt to ensure routine compliance, to prevent cumulative impacts, or to monitor the effect of its permit-by-rule system on species at risk.”

…and…

“This is particularly troubling because the MNRF is not tracking the cumulative impact of harmful activities on species. In April 2017, the ECO asked ministry staff whether the MNRF considers cumulative effects in its approvals process or under permit-by-rule, and whether it has conducted a cumulative effects analysis for the ESA. The ministry stated that it does not consider cumulative effects and has not undertaken any such analysis. THIS POTENTIALLY PUTS MANY SPECIES IN A "DEATH BY A THOUSAND CUTS" SITUATION THAT COULD CAUSE IRREPARABLE HARM, ESPECIALLY SINCE THE MNRF DOES NOT DENY ESA AUTHORIZATIONS" (capital font is my emphasis)

There are 74 wind projects, 15 bioenergy projects, and 143 solar projects in the province, according to the Ontario government’s Renewable Energy projects listing:
https://www.ontario.ca/page/renewable-energy-projects-listing

In numerous Environmental Review Tribunal hearings, the proponents’ consultants have stated that the predicted mortality rates of bats, song birds, raptors and other endangered or threatened species, from their client’s individual project are insignificant in relation to the overall population. What the proponents, their consultants, and the Ministry directors have ignored, and the ECO has highlighted, is that the cumulative effect from multiple wind energy projects has never been taken into consideration. Hence the "death by a thousand cuts" comment.

The Environmental Commissioner of Ontario made several recommendations that would improve the protection for species in the ESA in the 2017 ECO report; those recommendations should be reviewed and given serious consideration.

MY RECOMMENDATIONS:

1. Amend the Endangered Species Act so that the MNRF is required to post instrument proposals for all ESA permits on the Environmental Registry for full public notice and comment.

2. Amend the Endangered Species Act so that all interested parties are given sufficient notice and a right of appeal for permits.

3. Amend the Endangered Species Act so that ALL ESA permits MUST include mitigation strategies to provide an overall net benefit to any endangered or threatened species. The “we will kill less of them” approach that has been allowed by the MNRF, should not be considered sufficient reason for a permit.

4. Amend the Endangered Species Act so that enforcement officers in the MNRF and MECP are given the mandate and the authority, as well as the required resources, to conduct inspections of registered activities to ensure compliance with any permit or authorization conditions.

5. Amend the Endangered Species Act so that the MNRF is required to determine the effect of individual authorizations, as well as the cumulative effects of multiple authorizations on species-at-risk or endangered species, and publicly report on the results.

6. Amend the Endangered Species Act so that the effectiveness of any mitigation strategies are verified by MNRF or MECP field inspections and not be left to the discretion of the project proponents.

7. Amend the Endangered Species Act so that Ecosystem strategies to protect endangered species are implemented where appropriate. This should include particular emphasis on providing a buffer zone with no new energy projects along the major avian migration corridors along the eastern end of Lake Ontario, the Pelee and Long Point peninsulas, and along the shorelines of the Great Lakes, and Georgian Bay.