10th Year Review of Ontario…

10th Year Review of Ontario’s Endangered Species Act
Ministry of Environment, Conservation and Parks

FRi Ecological Services Comment for Submission
to the Environmental Registry
February 27, 2019

AREA OF FOCUS 1: LANDSCAPE APPROACHES

Problem – Threats Not Homogeneous Across the Province
Threatened and endangered species' threats are not homogeneous across the province. Regional and landscape approaches could benefit many species. The landscape approach is equally important for the projects or development – looking at them in isolation for their impacts or avoidance to species at risk is short sighted.

Solution – Landscape Approach
A landscape approach for most species and habitats is the best approach. Need to start with sound science, a defensible position and always the understanding that species and habitat protection are nothing without a balance considering social and economic as well.

Problem – Case by Case Approach
An example where a case-by-case and species-specific approach clearly does not work is the Eastern Whip-poor-will. In the Sudbury District of the MNRF this species is relatively common and widespread. The historical overharvesting of white pine coupled with the acid precipitation from the nickel smelters has created patchy deforestation across the landscape which is a very favourable habitat for this species.

There is very likely a greater supply of habitat than is needed for this species at the district level. However, because of how the ESA is structured and administered, any impacts to even a portion of one Whip-poor-will territory requires the creation of two new territories to achieve Overall Benefit. Two territories is about 18 ha or 50 acres. This requires that a proponent find or purchase patent lands that do not currently have the species residing and manage the habitat to favour the species. The management action to achieve overall benefit is to remove forested areas to create more patchwork. The City of Greater Sudbury has been struggling for over 40 years to re-establish their forests and yet the ESA may be forcing even more removal of forests to create habitat that is not in short supply in this area.

Solution – Regional Landscape Approach
Rather than the present one-off approach to ESA considerations, a landscape/municipal or other manageable or size-sensible approach should be undertaken. A provincial ecosites habitat based approach makes sense.

Solution – Stewardship Fund
If habitat is not needed at the district or regional landscape scale, the creation of a Stewardship Fund that an applicant for an Overall Benefit Permit can contribute to when territories or habitat are impacted. The fund can be used to create habitat in districts that lack this habitat in the historic range of this species. This will contribute to restoring healthy populations in all ranges instead of creating an oversupply of habitat in one district that is not being. This does not create overall benefit for the species.

Solution - Consider the Whole
Wetlands are a great example where ‘considering the whole’ is sensible. Wetlands provide complex and important habitat for a range of species at risk. Wetlands are critical, but without adjacent upland and connectivity of the same, protecting pieces or project specific wetland and upland areas won’t matter without considering the whole.

Problem – Multiple Layers
ESA authorizations have multiple layers of approvals and unclear timelines associated with the same. Inconsistency and uncertainty for proponents does not foster responsible growth and development.
Solution - Strategic Approach ESA Considerations at the Municipal Level

We believe under municipal purview; most ESA considerations can be effectively addressed and certainly in a timely manner compared to the present ‘black hole’ that is MNRF.
Planning Act processes often run parallel at the municipal government level; perhaps this is a way to better integrate at the municipal level? Municipal level also understands the need for a balance as they serve the larger community. This would need to come with specific funding to support the extra workload to be effective.

Most organized medium and large municipalities have delegated authority from the Province under the Planning Act to undertake things like subdivision approval and other planning act considerations. WITH APPROPRIATE support, the province could support municipalities taking on this role as they already look at a number of coincident decisions and processes along the path of development/project approvals.

Planning Boards could function similarly in unorganized/rural areas while some municipalities may have their own ecologist/biologist or other experts on staff (Conservation Authority) or they may choose to outsource the work.

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

Problem – Lack of Communication, Inconsistent Communication
It’s our impression that the communications are typically out of date and don’t follow a consistent schedule. For example, it’s mid-February 2019 and the cossaroagency.ca website notes that the next meeting is Fall 2018.

Can there be a more collaborative approach? It’s not clear how the small team (COSSARO) gathers adequate information for all the species assessed in a 6 month period and provides a report for the committee. Who is tasked with this and is there a clear process for stakeholder input?

Solution – Clear Communication
The Province should set out clear timelines and communicate these to stakeholders – when species are considered for listing, when they’re listed and receive ESA protection and finally, clearly define and provide platforms and mechanisms for engagement, participation, and feedback.

Problem – Unclear ‘Rules’
Presently, it’s really difficult for landowners/project proponents to understand the seemingly inconsistent expectations of the administering agency in order to reach a mutually agreeable and balanced solution. The rules keep changing, they’re confusing, time consuming and costly.

Solution – New Species Listings
For new species listings, they should not be considered ‘retro-active’ that is to say, a species listed as threatened receives automatic habitat protection from the listing date. For developments or other projects ongoing when a species is listed, the availability of ‘grandfathering’ or other clear options for processes already underway should be made clear.

Problem – Species Present and Habitat Used?
Automatic species and habitat protection is fine. The problem is that species presence/absence and habitat suitability is generally unknown or very unclear for most of the province. For example, Blanding’s turtles are listed as threatened and their habitat is protected. No problem. Except what is considered habitat? All suitable wetlands regardless of use? Only wetlands used in the last 5 years? Does use matter?

Solution – Invest in Understanding Species and their Habitats
In order for species and habitat protection provisions to actually work, the Province needs to know where the species and habitat exist. Presently, it’s our opinion that on the whole, the Province knows very little about where species and their habitats are.

Problem – Primary Threats not Related to Habitat Loss
Bats and trees are a good example here. The threat to bats is not habitat loss, it’s a disease called White Nose Syndrome (WNS). However, to ignore habitat would be foolish – long-term habitat availability is important for bats e.g. trees, caves etc. But the focus on habitat protection while WNS is decimating bat populations seems off-point entirely.

For example, the current bat habitat survey protocol is a very expensive undertaking to identify potential maternity roost trees and protect them. The cost to survey a 40 ha (100 acre) parcel is about $100,000. However, since the disease has depleted the population as much as 90% in some areas, it is very unlikely that anybody is going to find an active maternity roost tree. In fact we are only aware of one in the entire province that has been detected using this protocol.

When maternity roosts are not confirmed, that clears the way for a proponent to remove these habitat components where the very reason they may not be used is because populations have dipped so low from the disease. The current Overall Benefit practice is to create artificial maternity bat boxes even though the real problem is the disease.

Solution - Clear Definitions: Clear definitions of species habitat are needed. A clear understanding and communication of the species use of habitat is needed. These definitions most importantly need to be based on science and be defensible - not best guesses. If there is not enough information, the province needs to be clear and have a process for arriving at an ecologically, socially, and economically acceptable end point.

Solution - Non-Habitat Threats Approach
There would be circumstances where the threats to species aren’t related to habitat loss where a different approach might be more appropriate. Perhaps a focus on ‘threats’ as a group is more appropriate – for example road mortality or disease, which aren’t really related to habitat loss.

Solution - Species Specific Example Solution
It seems that it would be much more beneficial for bat species to achieve avoidance by maintaining a certain number of potential maternity roosts per hectare. If this could not be done then the proponent would contribute to a Stewardship Fund that is earmarked to solve the disease issue for these bats so that they can recover.

Requiring proponents to waste their money on surveys that yield no results seems counter-productive when that money could be better spent on providing long-term species benefit and population stabilization and improvement through research thereby improving the quality and amount of information that informs decision-making.
 
AREA OF FOCUS 3: SPECIES RECOVERY POLICIES AND HABITAT REGULATIONS

Problem - Government Response Statement Non-Committal
In our opinion, government response statements are often very non-committal from the government perspective. They don’t lead many concrete actions, rather they ‘support’ others who’d like to take up the cause. The government should be supporting (read $$) stewardship initiatives as well as leading the science/on the ground investigations required for many species and habitat. In short, the timelines associated with these aren’t the issue – the issue lies with the apparent lack of commitment from the agency responsible for the ESA. In general, the government-led actions listed in Government Response Statements are rarely or very slowly actioned.

For example, the Government Response Statement for the Eastern Foxsnake was issued June 15, 2011. It listed eight (8) government-led actions. The only action that seems to have been completed is a habitat regulation for this species. It refers to items such as encouraging the submission of Eastern foxsnake data to the Ministry’s central repository at the NHIC. The difficulty is that the Ministry itself does not submit their data into the NHIC reliably, so how would they encourage or expect the general public to do so?

The GRS also states that MNRF will, “encourage and communicate annually priority actions for government support in order to encourage collaboration and reduce duplication of effort.” We have never seen anything remotely like this for any species. A really important item was the development of a survey protocol to detect the presence or absence of Eastern foxsnakes. This is a very fundamental component, yet it has not been done in the 8 years since the government response statement was issued.

Problem – Review of Progress
A review of progress toward protection and recovery makes sense when there has been some measurable progress. From our perspective, there are little to no concrete metrics in place to both assess the individual merits of a project and it’s ESA approval (e.g. overall benefit permit) and the sum total of all positive actions for a species.

Problem – Lack of Resources &/ Leadership to Implement
It is unclear whether the MNRF has the resources available to administer the ESA in its entirety. They have been unable to meet deadlines for recovery strategies and government response statements. Habitat regulations have also been slow to proceed. While general habitat descriptions are helpful, they are subject to a dramatic range of interpretations which compounds confusion and drags out approvals.

Solution – Habitat Regulations Needed
Where it is possible to create a habitat regulation it may be better than relying on subjective general habitat descriptions. A regulation provides certainty to everybody involved. It’s our opinion that regulated habitat with a well-defined explanation based on the best available science provides greater certainty for business and others on the scope of protected habitat. This will also serve to provide a gauge for measuring success of protection and recovery efforts.

Solution - Science-based, Clearly Communicated and Government Supported
Recovery strategies, government response statements and habitat regulations need to be based on peer-reviewed scientific research and meta-data science-based, clearly communicated to stakeholders and supported both in principle and financially by the government. A stewardship based approach to actions is likely the best path to success for the species, their habitat and business in Ontario.
 
AREA OF FOCUS 4: AUTHORIZATION PROCESS

This is perhaps the area that will require the most work. There are multiple problems with the authorization process.

Problem – Inconsistency
Inconsistency is a huge problem under the ESA. This is somewhat related to the previous problem where if there was a formal formula or process to calculate Overall Benefit, outcomes should be consistent and repeatable. This is not the case currently. In some cases, there are MNRF staff (Management Biologists and District Managers) that take it upon themselves to determine what they feel is adequate.

In one case a District MNRF Management Biologist decided unilaterally that a Whip-poor-will territory was 40 ha based on a single article that he read and then boasted that he was a ‘road block’ and didn't care about his impact to the process. This was imposed on a proponent even though the provincial general habitat description indicated that a territory was 9 ha. After months of negotiation, the biologist conceded to reduce the size of the territories to be created from 40 to 13 ha; still 4 ha larger than the general habitat description. The fact that there is no appeal process and no accountability or oversight of MNRF staff, unnecessarily cost this proponent months of negotiation time and additional cost for unnecessary overall benefit that was not consistent with the general habitat description.

Solution – Timely, Consistent Process
First and foremost business needs tools and authorizations with clear timelines and expectations. Timelines and expectations that the Province upholds, no exceptions. We think the most important change is a timely and consistent process. Proponents need to know what the process is and what to expect from it. The ‘overall benefit’ concept is a good one in theory, but what it fails to do is consider the ‘whole’, the landscape and its inherent connectedness. To achieve a ‘benefit’ for one species, it’s often at the expense of another.

If a proponent requires an authorization, the government must provide a clear understanding & offer an opportunity/platform for local knowledge, advisors, consultants to fine tune expectations using local/regional/ site-specific knowledge – measurable impacts and commensurate outcomes - that are needed to meet the overall benefit threshold. e.g. Whip-poor-will in Sudbury – do not need more habitat and in fact, habitat creation in the municipality is contrary to the City’s regreening efforts.

Problem – No Transparency
The Overall Benefit review process by the MNRF is not transparent. They are unable or unwilling to share the formula or process that they use to weigh impacts and determine what Overall Benefit is required. This is disadvantageous to the proponent and potentially the species in question.
In our experience, the following example represents a typical ESA approval process:
A project proponent submits what they feel is adequate Overall Benefit without the advantage of knowing what process is being used by the MNRF to assess both impacts and required overall benefit.

The MNRF reviews the application and indicates if the Overall Benefit is adequate or not.
If it is deemed not adequate, MNRF does not provide reasons for this nor do they proposed possible options for achieving adequate overall benefit. Instead, it is up to the proponent to adjust their proposal with additional overall benefit actions and resubmit. This is an iterative process that can take over 10 submissions until the proponent achieves Overall Benefit in the eyes of the MNRF. The review of each submission regularly takes MNRF staff months before they provide any feedback; resulting in a process that spans years with final approval sometimes 3 – 5 years in the future.

This is absolutely inefficient and unfair to the applicant. Project proponents are forced to ‘play the game’ but the MNRF refuses to share the rules which causes a great amount of unnecessary expense, lost time and incites great frustration and loss of faith in the process from proponents who want to comply. This is further compounded by the fact that there is no appeal process or accountability oversight. Proponents are stuck with little to no recourse.

Solution – Measurable, Transparent Overall Benefit Assessments
The MNRF must share the formula or process they use to calculate impacts and Overall Benefit so that proponents know what is expected and so that there are consistent and repeatable results. If MNRF demonstrates that they are not following the process, there needs to be an appeal process that ensures accountability.

The MNRF should create a formal record that documents the impact assessment process used for a project and justify how they arrived at the recommended Overall Benefit. If the MNRF wants people to come to the table willingly, proponents must be treated fairly with consistent outcomes. If proponents were provided with the formula or process used, it should significantly reduce the number of resubmissions required to achieve Overall Benefit and reduce the effort of both the proponent and the MNRF.

Problem – Lack of or Inadequate Pre-Consultation
The MNRF purports that pre-consultation prior to undertaking an activity is critical to achieve compliance with the ESA and they highly recommend pre-consultation. However, there is no formal process for pre-consultation. In some cases, the available information is not disclosed to the applicant, pre-consultation meetings are not formally documented and since they are often not recorded in any way, when there are staffing changes, the pre-consultation discussions move with the staff member rather than being retained with the file.

Solution – Mandated Pre-Consultation
Pre-consultation is a very important process. Project proponents make financial decisions based on the outcome of these pre-consultation meetings. There needs to be a formal process that is recorded with minutes that are circulated to all attendees and a consensus that the minutes are accurate and complete. Those minutes stay with the file regardless of staff changes in the future.

Problem – No Access to Relevant Data
Background information about threatened and endangered species observations are not kept in a transparent/accessible repository. The public has access to the MNRF Natural Heritage Make-A-Map. This can be used to identify known observations within a 1km square surrounding the area of interest.

This information is often incomplete and/or out of date, and because it does not give precise locations, it is often impossible to produce mapping based on the habitat descriptions since they are often based on distances from a known observation. The Lands Information Ontario and Natural Heritage Information Centre also has a database of threatened and endangered species observations.

The MNRF is supposed to update this information regularly. It’s our perception that this is not happening consistently and therefore it is an incomplete data set and cannot be totally relied upon.
It is our experience that individual District Offices and even individual management biologists often have their own "stash" of documented observations that are often withheld and inaccessible. So even if an applicant asks for all known data, there is no guarantee that they will receive a complete data set making it impossible to plan for and ensure compliance with the ESA.

The MNRF offered Data Sensitivity Training to those consultants that require more detailed information. However, there is no central repository of those that have received the training and there appears to be no benefit to those trained since there is no elevated level of access afforded.

Solution - Targeted Open Data
The MNRF wants people to comply with the ESA. The data that they control is crucial to ensure compliance. They must set up a central repository for this information that is updated on a regular basis (at least quarterly). The general public will have access to general locations within a 1km square.

Those that have had the Data Sensitivity Training will be granted further access to point data or at least restricted access sufficient to create the required mapping in support of a project application. If the data does not appear in this repository, then it should not be referred to at a later date. It is not fair to "hide" data in various locations only to spring the information on a proponent after they have completed studies.

Problem – No Accountability
There is a common theme underlying many of the problems with the ESA – administrative accountability. If decision makers with the MNRF follow a transparent process with repeatable and defensible outcomes and achievable, timely conclusions, it would vastly improve efficiency and consistency and future proponent compliance and attitudes towards MNRF/the process/ESA legislation. The agency as a whole need to clearly understand that developers make financial decisions on the information that MNRF provides to them. When the information is inaccurate or incomplete, the proponent incurs an unnecessary cost and sense of mistrust.

Solution – Mandated Accountability
Proper and proponent-accessible documentation of the Overall Benefit process including pre-consultation, Overall Benefit calculation, full proponent review of draft Overall Benefit permits, and a functional and effective appeal process would vastly improve the efficiency, accountability and effectiveness of the ESA.

Solution - Authorization Tracking Online
The MNRF previously (~2011) operated a Permit Tracker web site. This site contained an interactive map that identified all locations with permits or other instruments under the ESA. Details about each of these approvals could be accessed publicly. This was a useful tool which also encouraged consistency because the Overall Benefit actions were available and could be compared for similar permits.

The MNRF only used this for a very short period of time and then discontinued to use it consistently even though they continued to list it in their EBR notifications. In 2013, the Environmental Commissioner of Ontario released the report, Laying Siege to the Last Line of Defense. It was a somewhat scathing review of MNRF's handling of the ESA and one of the specific recommendations was to reinstate the Permit Tracker and the MNRF had committed to doing just that. Regional MNRF staff confirmed with us in 2014 and again in 2015 that they were working on this. To date, nothing has been done 5 years after that review.

Problem – Inconsistent Application of ESA
The ESA is a self-regulating type of legislation that is proponent-driven. This means that there is no requirement to always obtain a permit or to check if a project needs a permit to proceed. It is the responsibility of the proponent to determine if their project may need a permit and then engage MNRF to provide a formal assessment of the same.

Although there is no requirement to check with MNRF to determine if a permit is needed, and not all projects need an ESA approval, the MNRF is encouraging developers and municipalities to treat the legislation as if it was prescriptive. They are requiring proponents and municipalities to consult with them in every case; they have essentially inserted themselves into plan review – a role MNRF has not formally been responsible for since the 1990’s.

Presently, there is no formalized link between the Endangered Species Act and the Planning Act. Similarly, there is no consistency across the province how that informal link is administered. Some municipalities will consider the project and decide, while others will not proceed with municipal approvals until MNRF provides their blessing.

The lack of a formal role for MNRF in this ‘plan review’ means that MNRF staff are not held to any timelines or guidelines with respect to their review. Through this review, MNRF is enabled to request additional information or requirements from project proponents. The absence of a structured role for MNRF in plan review means that proponents are essentially held hostage until MNRF gives their sign-off.

Solution – Link Planning Act and ESA Considerations
If it is the government's intent that all planning applications are required to clear ESA requirements prior to final approval, then a standardized process should be well-established for the linkage between the Planning Act and the ESA. To avoid lengthy delays for MNRF to review applications, they need to have all the resources to administer the Act in a timely fashion and must have staff that are also thoroughly familiar with the Planning Act and the implications of their recommendations.

Problem – Lack of Coordination
There is a genuine lack of coordination with other provincial policies and legislation. For example, The Growth Plan for Northern Ontario emphasizes the concept of concentrating growth in the serviced core of communities. It also purports that the Province shall implement a co-ordinating role in the implementation of the plan. Yet the identified serviced settlement areas of most northern cities contain significant portions of habitat for threatened and endangered species.

The province did not exercise a coordinated plan in implementing the Growth Plan with regards to the ESA. The areas identified for future growth are crippled by the implementation of the ESA in many cases. In order to achieve avoidance of impacts, a project proponent is either halted in many areas or they are forced to relocate to areas outside of the settlement area which is contrary to the Northern Ontario Growth Plan.

Solution - Settlement Boundary Authorization
The province should provide a guidance document on how to assess ESA habitat at a regional landscape scale so that a municipality can apply for a special single Overall Benefit permit or other approval to provide space for growth on lands designated under the settlement boundary while maintaining a supply of ESA habitat across the landscape and meet the intent of both the ESA and the Northern Ontario Growth Plan.

Solution - Settlement Boundary Authorization
The province should provide a guidance document on how to assess ESA habitat at a regional landscape scale so that a municipality can apply for a special single Overall Benefit permit to free up lands designated under the settlement boundary while maintaining a supply of ESA habitat across the landscape and meet the intent of both the ESA and the Northern Ontario Growth Plan.

GENERAL COMMENTS
Focus on Realistic and Positive Outcomes for Species
Overall benefits or similar provisions should focus on fixing existing issues. For example, cutting trees likely has little to no impact on species at risk bats if the trees are cut during the winter when bats aren’t using them. But WNS is a very real and very serious threat to bats. Rather than ‘save trees’, perhaps a monetary donation to ongoing research for protection and recovery e.g. cure for WNS.

Stewardship
Stewardship is one of the three ‘pillars’ of the ESA. It is one of the three stated purposes of the legislation (Section 1(3) of the ESA). Stewardship means working with land owners and proponents to achieve the goal of species and habitat protection while balancing social and economic needs of Ontarians. This is what responsible growth could look like.

Enhanced Enforcement Not Needed
Additional inspection and compliance powers don’t seem like a particularly proactive approach. Rather, a front end, proactive approach to species and habitat protection = stewardship. Not beefed up enforcement. Make it clear and easy for compliance at the outset; help proponents through the process; give a suite of biologically feasible options for moving forward. The Province (MECP or MNRF) needs to provide a service to Ontarians by facilitating the balance between social, economic and environment.

Authorizations should have a focus on the front-end; promote stewardship and collaboration, with little to no need for enforcement. It is presumed too late for species and habitats typically if enforcement is needed. From our perspective, species and habitat protection are commensurate with many other values that Ontarians hold dear. For example, people have the same desire and love for natural spaces e.g. parks, conservation areas, trails etc. The spaces and places that people like and want to preserve for people, are typically overlapping with the wild spaces that species at risk need and use.

Changes to Authorizations
Permitting - Section 17(2)(d) permits are and should remain the exception.
Exemptions – Broad exemptions generally defeat the purpose of protection and recovery in our opinion and come across as very unfair – e.g. favouring one industry over another. Exceptions should be exceptions to the rule, not the norm.

Other Legislative Framework
For most of the projects that FRi is involved with, the Planning Act and its processes are the logical framework. There are other similar legislation with review processes e.g. Aggregate Resources Act, where more efficient review is possible.

Thank you for the opportunity to provide our comments.
Respectfully submitted,

Rebecca Geauvreau
Species at Risk Biologist
For FRi Ecological Services