I work daily with proponents…

I work daily with proponents and the ESA and would like to provide the following comments with regard to the proposed changes to the ESA, with the focus on the fact that the legislation is intended to protect species and habitats, not business interests, but that it should also not be a planning or financial “black hole” for proponents required to comply with it. Balance is required, however, the cost of losing species and habitats is much more difficult to calculate than the cost of not developing a building lot or subdivision. I have commented on the proposed changes in the order presented.

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

A. Extension of the period between listing and list amendment only allows landowners more time to remove species or their habitats prior it being a contravention. This is change is detrimental for species at risk in Ontario.

B. As above, delays in listing are of no benefit to species. However, projects in progress or nearing initiation, should, at the discretion of the Minister, receive recognition of this aspect. This could including a “grandfathering” of qualifying projects to complete activities that would otherwise contravene the Act, however, these projects would still be required to mitigate for impacts, such as salvage of species and actions to prevent incidental harm.

C. I have no issues with this change.

D. I disagree with providing the Minister with the power to force COSSARO to reconsider species classification based on their “opinion”, as there is a strong likelihood that this opinion will be biased against species. Unless the Minister has a scientific education and is able to weigh and measure the information provided, this amounts to little more than sanctioned bullying.

E. I strongly disagree with this proposed change as it has the potential to not only remove many/most species from protection, but also their habitat, which supports many other species and processes. Furthermore, species that are extremely rare in Ontario, such as the Grey Fox that the Minister mentioned, are so infrequently impacted that changing their listing would be inconsequential. Most Ontario species would lose protection if COSSARO was forced to consider their entire geographic range, which is not biologically sound, as many rare species in Ontario are at the edge of their range or isolated from main populations and as a consequence may have unique adaptations and traits.

F. This statement is too vague to allow proper comment. COSSARO membership makes the designations; the government makes the policy. Weakening COSSARO membership requirements to (presumably) encourage removal of species from listing is wrong.

2. Defining and implementing species and habitat proections

A. Again, suspending protections after listing allows landowners three years to remove habitat and species. This is detrimental for species at risk. Landowners currently regularly remove habitat for species at risk currently protected with, typically, no negative ramifications, so this change will only support continued loss of species and habitats. In certain instances, grandfathering of projects could be considered if appropriate mitigation was implemented.

B. This proposed change is too vague to comment on. This could be neutral or negative for species, depending on the protections. Again, this legislation is to protect species with the potential to be extirpated in Ontario. If scoping results in the reduction of protections, then it is generally not conducive to protecting species and their habitats.

C. I disagree with this proposed change. Habitat regulations take far too long to be developed as it is. Habitat regulations allow good ecological and planning decisions to be made.

D. I suspect this change will also be detrimental to species at risk, but am not familiar enough with this process.

3. Developing species at risk recovery policies

Generally, I am not supportive of delays in government timelines. Currently, most recovery documents are not completed within the time frames specified. Changing the time frame will simply allow government to continue to lag on completing these statements and reviews.

4. Issuing ESA permits and agreements and developing regulatory exemptions.

Creation of Regulatory Charge and Agency

I am cautiously supportive of the creation of this Crown agency and the cash-in-lieu concept, despite its potential pitfalls. However, additional information is required to determine how effective this agency and its related processes will be at contributing to Overall Benefit for protected species. In many cases, the costs a client would incur to meet a species-based authorization often requires the purchase of new lands or the protection of existing lands formerly planned for development. Depending on the location and project scale, this cost can vary wildly. How will this variation be accounted for in the process? How often will cash-in-lieu be considered? This concept has potential to solve serious problems with the implementation of the Act, however, it also opens up the Act to political attack as a “cash grab” or a “tax”, which could then quickly lead to its repeal.

A. This change downloads considerable authority to the Minister with regards to the ‘D’ permit process. I am not supportive of this change, as the Minister generally has no formal education on the topic of their portfolio (e.g. scientific training), so their review of the permit in consultation with an independent expert is preferable to ensure an informed final decision.

B. I am not supportive of this change as it weakens the ESA permit process and would seem to support loss of individuals without compensation, through the described focus on the species “more generally”. Details requiring the “broadening” measures are required to elicit more meaningful comments.

C. I am in agreement that a transition process is required for existing operators, however, mitigation to reduce harm to newly-listed species should come into effect immediately. Once mitigation is in place, overall benefit actions or permit modification could be phased in over a 12 month period to reduce impacts to existing activities.

D. This statement sounds reasonable and any guidance and direction offered by the government to establish standards and guidelines will be of benefit to those navigating the ESA.

E. In very general terms, Overall Benefit actions that are directed to landscape-scale initiatives are preferable to the current random ‘bit and piece” method. More details on how this would be required for a more complete comment, but in theory, I support this change.

F. No comment.

G. Though this change is favourable to species at risk, I still feel consultation with experts is of value to ensure balance.

5. Enforcing the Endangered Species Act

The Act is so abysmally enforced I support ANY improvements in this aspect.

The current ESA is cumbersome and creates high levels of uncertainty for proponents. Decreasing review time through additional staffing would assist greatly in reducing this uncertaintly. For proponents tasked with performing Overall Benefit actions, landscape scale approaches would be of great benefit, however, these actions require support from lower levels of government to be accomplished successfully. This support is not currently available and mechanisms to encourage municipalities to support the province’s goals will be required for this approach to work, which this document does recognize.
The ESA not only protects species currently at risk, it also serves to prevent additional species from becoming at risk through habitat protection measures which benefit more than one species. The legislation itself is not the major issue. The processing time for information and applications is an issue. Inadequate enforcement allowing dishonest proponents to contravene the Act while forcing honest proponents through YEARS of government back and forth is an issue. Uncertainty regarding habitat requirements and critical habitat for existing listed species is an issue. Uncertainty regarding the time and cost of an Overall Benefit permit is an issue.

If the government wants to assist species at risk and proponents, it would do itself a great service to look inwards. Hire more review staff, fund more research, engage municipalities on landscape-scale approaches and make the process predictable for proponents. It is my opinion that these changes would have a large, positive effect for all involved in the process and would not require drastic legislative changes, such as those proposed.

Thank you for allowing me to comment on these proposed changes to the Endangered Species Act.