ESA 10th Year Review…

ESA 10th Year Review Comments

The following provides comments on the Endangered Species Act (ESA) Discussion Paper and also illustrates how an ESA Permit was used by a developer during an OMB Hearing for a 450 000 ft2 big box retail development. The development lands themselves host 4 endangered and threatened species, represented by 100 individuals. It is also less than 40 m from a globally endangered Tallgrass Prairie ecosystem. It hosts 4000 species, 160 Ontario species at risk, a wetland, and has 21 endangered and threatened species. If the ESA failed here, it illustrates improvements are needed.

Area Focus 1 Landscape Approaches

The ESA Discussion Paper’s landscape approach to species protection is very innovative. Tallgrass prairies used to cover 23% of North America and today, less than 0.1% remains. It is a globally endangered ecosystem. Since 2009, the number of endangered and threatened in Ojibway have increased from 13 to 21. It achieves many goals of the ESA review’s desired outcomes.

Area Focus 2 – Listing Process and Protections for Species at Risk

The ESA Discussion Paper’s suggestion that current species’ listing is unclear, causes uncertainty, or not transparent is inaccurate. Developers are required to complete an environmental report within most municipalities the development takes place. These reports include identifying species on development lands. Information for endangered and threatened species is readily available at https://www.ontario.ca/page/species-risk. The process is clear.

Sometimes a developer is responsible for delay. During the noted OMB Hearing above, the developer did not report 4 endangered and threatened species represented by over 100 individuals on development lands in 20-year field studies. The species were discovered by appellants, attending an approved OMB site visit, just prior to the hearing. As one expert stated “it is disturbing that so many native wetland and rare prairie species were missing. The erroneous reporting and subsequent actions of the developer caused delay.

Area of Focus 3 – Species Recovery Policies and Habitat Regulations

The ESA Discussion Paper’s suggestion of longer time lines for species recovery policies will further hurt species. Since 1970, over 70% of vertebrates and 83% of freshwater habitats have been wiped out respectively. We are simply running out of time. Also, the discussion paper states habitat requirement is not necessary, however, planning processes i.e. OMB and/or tribunals, may only consider regulated habitat, not general habitat.

In the OMB case, the developer was aware of species recovery polices but pushed to alter the ESA permit boundary lines, stating “snakes have not been observed in the small area”. Species were found in this area but it will now serve as a truck entrance.

Area of Focus 4 – Authorization Processes

The ESA’s Discussion Paper’s suggestion of adding more approval tools (8) for development will further weaken the ESA and further species’ extinction. One of the biggest dangers with the current Endangered Species Act (ESA), is the ease developers receives an ESA Permit. During the past decade, the Ministry of Natural Resources and Forestry (MNRF) has denied very few, if any, ESA Permit applications, yet our endangered species list continues to grow. ESA Permits should be held to higher scrutiny and not approved in every case. In addition, ESA Permits should never be granted when a development is under appeal at an OMB or a Tribunal Hearing.

The ESA Permit provided to the developer above and prior to the OMB Hearing, likely assisted in OMB approvals. A Freedom of Information (FIPPA) request showed that up until April 2014, MNRF was not going to approve an ESA Permit prior to the OMB Hearing as “it would be premature”. On June 10, 2014, an email from MNRF states the developer threatens to “go political” after the June provincial election if she doesn’t get her permit. The ESA Permit was granted two months later.

The ESA Permit considers the 4 species on the developer’s lands from construction and roadway improvements. It does not address traffic, one of the biggest impacts from the development, on these 4 species nor the grasslands additional 17 endangered species. The FIPPA request also shows MNRF stated this to the developer “For further clarity, this permit process has not considered any impacts to SAR by proposed activities on City owned lands, or lands to be conveyed to the City for road widening as they are external to the lands for which a permit has been applied.”

The developer did not inform the OMB of ministerial considerations, but instead requested a Motion Hearing to quash any Ministerial considerations for its ESA Permit i.e. traffic impacts on endangered. The Board Member, in his final approval states “The Board finds that the Minister of MNRF has determined that the development proposal will provide an overall benefit to the populations of the Butler's Gartersnake and Foxsnake, and outweighs any potential negative impact of snake deaths due to road mortality”.

The quashing of ministerial considerations also caused a very limited use of species recovery plans, even though the developer attempted to quash those too. This development has been passed without any consideration to the development’s future traffic on endangered species due to premature approval of an ESA Permit and quashing of Ministerial considerations.

The developer’s actions may have caused further delay by ignoring and quashing evidence from MNRF’s Species at Risk Branch Assessment Team Policy for Delayed or Indirect Effects of Roads on Species at Risk Reptiles “where it is suspected that a proposed activity is likely to result in increased traffic volume …increased traffic volumes should be considered an indirect or delayed effect” and “failing to consider the likelihood of delayed or indirect effects of an activity could increase the risk of the Minister not meeting the legislative requirements”. As traffic has never been considered, a second ESA Permit is required to provide an Overall Benefit for endangered species from traffic.