Comments on “10th Year…

Comments on “10th Year Review of Ontario’s Endangered Species Act: Proposed changes” ER Posting 013-5033

The Ford governments’ false premise is that “the Endangered Species Act is getting in the way of development”, which is why these changes have been proposed. This is a complete untruth. Not a single development application in Ontario has ever been denied because of the Endangered Species Act or because protected species were present.

Here is another outright lie I have seen. A spokesman from MECP commented that the government is making these changes based on what they have learned from a decade of implementation of ESA. This is completely false because 1) the ESA was being implemented by MNRF and not by MECP, and 2) MECP refused to accept any of MNRF’s advice regarding recommended changes that would improve ESA implementation. MECP currently has 1 month of experience with ESA and the proposed legislative changes were released prior to transition of the legislation from one Ministry to the other.

Another false premise was stated online by The Ontario Federation of Agriculture. The OFA claims they would like the ESA to be changed because it is a regulatory burden to farmers!!? In my 10 years of experience implementing the ESA, there have not been ANY ESA permits issued to farmers, and to my knowledge the presence of a protected species has never prevented a farmer from continuing to farm their land. The two species that are affected most by farming (Bobolink, Eastern Meadowlark) are subject to a PERMANENT ESA exemption, allowing farmers to kill them during the breeding season with impunity.

Challenges in ESA implementation should be addressed through improved planning and investment in communications, program development and staffing, not environmental deregulation. The government has moved the ESA to a new Ministry, cut the staff responsible for implementation by 2/3rds, forcibly moved a number staff with no ESA implementation background to MECP from MNRF, and now proposes to gut the legislation even more, instead of following the recommendations provided through the ER consultation process and the Environmental Commissioner of Ontario’s 2017 report (which was extremely well done and absolutely accurate in its examination of the poor implementation and enforcement of the ESA). This is just completely irresponsible and certainly doesn’t achieve the stated goal of increasing the efficiency of ESA implementation by any means.

Since 98% of those who commented on the ESA Discussion Paper were in favour of INCREASED rather than decreased protection for species at risk, it is clear the government does not care what the “People” think. Clearly this consultation and the previous one are meaningless, as the proposed changes included in Bill 108 will not be modified prior to enactment. Even though our comments on the 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper were completely disregarded, and that we believe this entire consultation process to be a sham, we are submitting additional comments on proposed Bill 108 so that our extreme concern with these changes will at least be a part of the public record.

Assessing species at risk and listing them on the Species at Risk in Ontario List

The current 3-month period allows for more than enough time for notification to proponents that are undertaking projects for which there may be additional requirements under ESA. Putting rules/regulations in place that would not necessarily prevent the development from occurring but would still require the proponent to explore options to mitigate impacts or protect known species occurrences to the extent possible seems reasonable and would achieve the goal of species protection without significantly delaying projects.

3 months is more than enough to review status changes. Increasing to 12 months only allows people to destroy any listed SAR before protection comes into place with no consequences. Destruction of species and/or habitats prior to protection being put in place has been observed extensively. For clarification, ask any Ontario developer about the “Bobolink Clause”, whereby they hired farmers to destroy extensive amounts of Bobolink and Eastern Meadowlark habitat on lands that were proposed for development, in order to avoid applying for permits under the ESA.

The Minister is not a scientist. Most of the staff that work for the Minister at MECP are not scientists. How are they qualified to form an opinion based on scientific information? The Minister should NEVER be allowed to question the scientifically-based decisions of COSSARO. Currently, COSSARO “piggybacks” off of assessments prepared for the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). As a result, several species in Ontario that are critically imperiled have never been assessed, and several species that have been assessed are extremely common on the landscape. The government could consider investing money and/or staff time into preparing Ontario specific status reports in order to gain greater clarification on the specific needs of Ontario’s species, instead of trying to extract information out of larger Canada-wide reports that may not adequately address Ontario’s species.

Looking at the complete species range when assessing its status is a serious threat to Ontario’s biodiversity and should not be part of COSSARO’s assessment criteria. This should criteria not be used to reduce the importance of protecting ALL of Ontario’s species, regardless of their status in neighbouring jurisdictions.

Broaden COSSARO member qualifications to include members who have relevant expertise in ecology, wildlife management, as well as those with community knowledge. I offer a reserved yes, but only if these new “members” do not work as consultants or as lobbyists for development companies, as that is a direct conflict of interest and their expertise is bought and paid for.

Defining and implementing species and habitat protections

What would improve the protection process is when a species is likely to be assessed as threatened or endangered (e.g. where a species is federally listed as such), a general habitat description or habitat regulation, as appropriate should be prepared IMMEDIATELY so that it may be applied as soon as the species is listed, or shortly thereafter, to assist with habitat identification and protection. This would allow for less uncertainty of the possible consequences of species listing. There is absolutely no evidence that species listing or protection provides costly impacts to businesses and the public. The environmental cost of not protecting these species far outweighs any other perceived cost.

Habitat regulations are the preferred vehicle for delivering habitat protection, because they provide more certainty to both sides (government and proponent). However, developing a habitat regulation may not make sense for every species. For example, a species that is not likely to be impacted by land use changes or management activities.

The MNRF produced Taxa-based general habitat descriptions to assist with clarifying habitat boundaries for many species in 2016, but they have never been finalized and approved for distribution. Finalizing these documents and making them available would assist greatly with improving certainty around habitat protection for species. It would be easy to create some generic habitat regulations for species that are contained within these documents, though for some species, specific regulations will still need to be developed (usually for animals as they can have very different habitat requirements).

In addition, three years is FAR TOO LONG for any non-protection clause to be in place.

The only scoping of species protections that should be considered is for planted species at risk. At the current time, with the exception of Butternut, planted species at risk receive the same protection under the ESA as naturally occurring species. However, planting specimens are not considered during COSSARO assessments/species listing. It would be beneficial to create an exemption for all planted species at risk.

Developing species at risk recovery policies

When and why would the Minister need to extend the nine-month GRS development timeline? Based on what criteria? This just seems like an excuse not to produce something, with no requirements to provide any sound reasoning.

In many aspects, the current format of the Government Response Statement renders it an empty exercise that provides little support for clients or parties wishing to implement recovery actions. It would make more sense to do away with the current format of the GRS and focus on creating a more prescriptive document that outlines specific implementation ideas for recovery and prioritization of actions based on the recovery plan that has been developed for a species. This could include potential overall benefit activities that should be implemented for a species, costs of those activities, etc. This would provide a much more useful tool to the government and to clients who are looking for species specific ideas that support species recovery. In addition, the document should have specific timelines for when activities should be completed in order to show progress towards recovery.

Extending the timeline for review of progress may make sense in instances where the ability to implement actions and detect results are long term. It may take more than one generation to show results and for long lived species the timeframe may need to be extended. In addition, one could argue that endangered species should be the priority, given they are in a more imperilled state. Therefore, it may make sense to have significantly different timelines in which to provide documents such as recovery strategies for endangered and threatened species (i.e. more than just a 1-year difference). Altering the timelines of reviews of progress will have little to no effect on the current poorly designed recovery implementation structure which doesn’t allow for targeted recovery actions to be completed in a timely manner.

If the GRS or the recovery strategy had specific timelines included for the implementation of recovery actions, it would make more sense to do a review every 5 years to see which of those actions had been implemented and which ones should be a priority for the next five years. As it stands now, the five-year reviews focus on permits and authorizations that have been issued for species, and there is little focus on recovery implementation.

Need clarification regarding which “products” are being referred to, that will no longer be posted on the EBR for comment.

Issuing Endangered Species Act permits and agreements and developing regulatory exemptions

There is no science to support putting a monetary value on species at risk habitat. Who would be the appropriate authority to make this determination? How would habitat quality factor into this equation? If a species is “rarer”, does this mean it is worth more? In addition, the Ministry’s avoidance-first approach may be undermined, as an option to pay for damaging/destroying habitat and/or impacting a species may be more desirable for a proponent then taking the necessary actions to minimize adverse effects and achieve an overall benefit through the permitting process.

Additional Changes relating to Issuing Permits, and to Agreements and Regulatory Exemptions

Removing the requirement for the Minister to consult with an independent expert in the “D” Permit process seems strange considering in the 10-year history of the ESA, only one D permit has been issued. Still, we do not agree that the Minister should be granted the power to determine whether a project is of benefit to the province of Ontario without outside consultation.

Why is there a need to broaden the approach to minimizing adverse effects for permits and agreements? First, the majority of agreements referred to under the ESA are no longer applicable authorizations under the current legislation. Secondly, this is a vague statement. It is not clear what broadening the approach to minimizing effects means. Also, since most of the minimizing effects applied to species are based on untested methods, this is not a recommended approach.

The transition provision for allowing existing Endangered Species Act permit and agreement holders to continue to operate for twelve months following the application of new species or habitat protections is absolutely unacceptable, as it would provide no protection for some species at a particularly vulnerable time. This could allow for complete destruction of important species populations or habitats, with absolutely no requirement to even minimize the effects on species. In ALL cases, permit applicants or holders are aware of upcoming species protections and as such, they do not need to be further exempted from legislative rules under the ESA. Most amendments are administrative or due to the applicant failing to abide by existing permit conditions, not due to species listing changes.

Landscape agreements could work in very limited cases, but in most cases, species at risk habitat damage/destruction does not lend itself to habitat banking readily, because even a “like for like” habitat replacement is challenging. In cases where science is limited (e.g. wetland creation for Blanding’s Turtle) or habitat may take hundreds of years to re-create (e.g. mature forest for bat maternity roosting), habitat banking may not be a suitable option. However, in cases where sufficient science exists to re-create habitat in the short-term (e.g. Bobolink), habitat banking may be an appropriate authorization tool. In such cases, habitat banking could be a niche market whereby creative and innovative people create good quality functioning habitat, and then “sell” the habitat to an entity in need of habitat creation.

Landscape-scale authorizations for harmful activities should rarely replace project-specific authorizations. This type of approach doesn’t lend itself to addressing site-specific or species-specific concerns and consequently presents unwarranted additional risk for species already in peril.

The development of additional ESA exemptions is not recommended, as the current ESA exemptions are not monitored, not enforced and not based on any accepted scientific practices or documented mitigation techniques. There is no oversight of these exemptions and no monitoring as to the prolonged detrimental effects of these exemptions on species at risk.

Again, the Minister is not a scientist, and neither he, nor the majority of staff at MECP, have the scientific knowledge to make these types of decisions, nor should they have the power to independently create regulations that could be harmful to species at risk.