Hello, I deal with the ESA…

Hello,

I deal with the ESA daily in the consulting sector in southwestern Ontario, including field research to determine presence/absence of species protected under the ESA through to the crafting of Overall Benefit Permits and their implementation. I have the following comments.

Landscape Approaches

I think that landscape scale approach would likely be beneficial to improving outcomes for protected species in the long-term, as habitat fragmentation is an issue for many species, especially in my area of focus. Many of my own Overall Benefit projects have been spatially scattered with no cohesiveness or adherence to a long-term natural heritage strategy. I would like to see municipalities or counties have some type of Natural Heritage/Endangered Species habitat framework or larger plan that Overall Benefit actions could participate in. Some NGOs are developing these plans, but they require municipal support to move forward successfully. This strategy would also be useful for consultants to “tap into” to provide proponents with options for Overall Benefit, rather than have the proponents responsible for locating and securing appropriate lands.

Listing Process and Protections

I have no concerns currently with the listing or assessment process. I do not support longer transition periods for the implementation of species protections. I think the Ontario.ca web pages should include a bit more information in the “What threatens it” section of the page and a link to the COSSARO assessment might also be helpful. I could not locate the COSSARO assessment for Eastern Foxsnake when I recently searched for it. For many of the species that we know little about or are still relatively common (Eastern Hognosed Snake and Barn Swallow), I often face resistance from clients and supervisors when considering these species. Providing concrete numbers related to population declines and amount of habitat lost would be helpful for the public relations side of the ESA. If the government doesn’t have these numbers, then they should work to obtain them. Suspicion of the motives of the ESA in light of the previous government is high in certain populations and I feel that easily obtained, concrete facts may help ease some of that concern.

Species Recovery Policies and Habitat Regulations

I am generally unsupportive of extended timelines for response statements. However, if nine months is insufficient to draft a quality response statement, then the government should, as it nears the nine-month mark, post the amount of extension required through the EBR, the reason for extension, and carry the process forward.

I am generally supportive of the habitat regulation process over the general habitat protection process, as the former seems to be more protective than the latter. However, the regulated habitat process can get difficult to navigate when small areas of likely marginal habitat are impacted. This is exacerbated when there is limited knowledge of the species and how it may use these small areas of habitat. For example, if connectivity is the issue and loss of a hedgerow is the impact, then there should be a process whereby as long as the habitat function is maintained (connectivity), the feature can be replicated in the local area to ensure the function remains. If this can be accomplished outside of a permit, then this would increase efficiencies. However, this cannot be done without an increase in enforcement to ensure these activities ACTUALLY OCCUR.

Authorization Process

In lieu activities is an option worth considering, however, it should be very carefully considered on a case-by-case basis. My experience is that the development community aggressively resists the ESA and is suspicious of its motives. As such, the process cannot become viewed as a “money grab” or similar activity, so in lieu activities must be extremely transparent and justifiable. As the Overall Benefit process focuses on habitat compensation, this process would require a larger-scale natural heritage strategy for protected species on a regional basis to guide it. This strategy would include highlighting areas of known or potential high densities of species at risk and work to secure these lands, and lands that would connect these areas together. Additional in lieu activities could support captive breeding programs, habitat improvement programs, large-scale population monitoring of species, etc. I would like to see the Ontario government, either through the ESA or other processes, support research on species habitat use and populations to triage Overall Benefit processes. In some cases, OB is a “best guess” on what will be beneficial for a species when impacts are difficult to calculate.

I do not support existing or additional exemptions under the ESA. Simplification to the process would be beneficial, but simplification may reduce effectiveness of compensation. Perhaps a formulaic approach could be considered (area x # of individuals x other ecological parameters = compensation required) similar to the Wetland Evaluation System.

Enforcement

The enforcement of the ESA has, in my experience, been exceedingly poor, both for contraventions and monitoring of Overall Benefit permit outcomes. I am aware of both private landowners and municipalities whose contraventions of the ESA have gone unprosecuted, even when reported to the District either through formal permitting paperwork or a direct complaint. I am also aware of anecdotal information that some municipalities/counties generally ignore or are ignorant of the ESA and advise landowners to contravene the Act, though not framed as such. I have also experienced charges under the ESA being dropped if the defendant is able to complete an Overall Benefit permit prior to the court proceedings being completed.

Furthermore, of the few convictions I know of, specifically related to reptiles and amphibians, the fines are not sufficient to compensate for the impacts. In my opinion, these low fines act more as permission slips, rather than deterrents. And the overarching lack of enforcement supports the proliferation of this type of behaviour. Landowners talk, and as soon as one is able to beat the system they all follow suit. In order for the ESA to be effective, those that contravene it must be held accountable, and the punishment for a successful conviction must be significant enough to deter others. On the ground, we require more Conservation Officers with expertise on the ESA and municipal planning to keep the ESA effective. The Overall Benefit permit process is only as good as its enforcement, which is currently almost nil. I completed the implementation of the second permit issued in the province, and not only were the prescribed works not carried out fully, but there was no requirement to complete additional works to make up for that which was not completed, and, as far as I am aware, the final annual report for the permit was never submitted. Multiple other permits I have crafted have never been fulfilled with no enforcement from MNRF that I am aware of. Finally, I also feel that withholding locations of species at risk or impacts to habitat in a professional context (eg. as a consultant, forester, drainage superintendent, etc.) should be a contravention of the act and punishable.

Municipal Planning

With regard to the implementation of the ESA, municipalities are left to their own devices, with no provincial support for this provincial legislation. It has been my experience that many municipalities are either uninformed, mis-informed or ignorant of the ESA. In some locales, essentially all unmaintained lands in the municipality are habitat for species protected under the ESA, which has significant economic implications. With no provincial support or regional framework to look to, municipalities are left on their own to deal with these issues. This results in an incentive for municipalities to dismiss the ESA, and makes it difficult for developers to move forward with projects, since there are few lands suitable for Overall Benefit that are not already suitable habitat or are available for purchase. Municipalities require provincial assistance to implement the ESA, through training and education regarding the act and the implications, as well as funding to support the establishment of a municipal or regional natural heritage/endangered species habitat strategy. This strategy would highlight areas of known or potential high densities of species at risk and work to secure lands that would connect these areas together. This would not only support Endangered Species initiatives, but could also support larger conservation efforts. This framework would also allow potential developers to build onto or improve habitat through Overall Benefit actions. It could make the process more streamlined and predictable for developers, which is a major issue at this time. Proponents can’t budget financially or temporally for the ESA, which impacts their planning process.

Additional Thoughts

I think the province needs to support regional and local governments in the implementation of this legislation. I often face resistance from local government when it comes to habitat for protected species, mainly regarding lands set aside for Overall Benefit. Many Overall Benefit permits hinge on creating habitat that is intended to persist in the long-term, but municipalities and conservation authorities do not seem to want the responsibility of the ownership and maintenance of this habitat. I suspect this is mainly due to the associated costs and liability. These habitats, especially prairies/meadows, require some form of long-term management to maintain the habitat and ensure it is not being encroached upon or otherwise impacted. Perhaps downloading these lands and their care to NGOs/stewardship groups is the way to go, and the province supports them in kind, possibly through the ESA? Or the province could support staffing to help municipalities care for these lands?

Additionally, the creation or protection of habitat as part of Overall Benefit actions can be rather random, based on what lands might be available for purchase or can be retained within an area of proposed impacts, rather than strategic to support a larger conservation goal. I would like to see some type of long-term, regional habitat plan that aims to connect existing populations and habitats of protected species and highlights important areas for conservation if they are not yet protected, and it should be incorporated into municipal planning documents so that it is readily available. Then at least those of us dealing with the permit side can preferentially direct efforts to these areas, possibly encourage owners of key lands to release the lands, etc. I know that municipalities often have Natural Heritage strategies that include corridors, but they don't seem to hold a lot of weight in the planning process. There are NGOs working on landscape-scale initiatives, but I don't know if, or how well, their projects are connected with local governments. If they aren't, couldn't they be, possibly using the ESA as the mechanism?

Summary

I feel that the ESA can be an effective piece of legislation that can continue to assist protected species and be made more efficient. The registration process for some species is an example of this efficiency, however, without enforcement it is nothing more than a “greenwash.” There are certain species which are not well understood, which makes protecting them and their habitat difficult and ineffective. More research into these species is required to create better Overall Benefit permits and to triage the potential effects of development proposals. Additionally, we require better/more support for monitoring existing populations and conducting initial site assessments. Many of our protected species are cryptic/difficult to survey for, which discourages investment in surveys by proponents to invest in surveys. Combined, this results in false negatives for species presence or sites that are simply unsurveyed, which in turn makes it difficult to determine what effective overall benefit actions should be. Including NGOs in the development of landscape-scale strategies and monitoring would be beneficial, but it must go hand-in-hand with municipal support. Finally, enforcement MUST BE INCREASED to make this legislation viable. It is unfair for landowners that follow the rules to go through the expense of the Overall Benefit process, while their neighbours impact the same habitat and species and simply pay a small fine, or are not reprimanded at all.

Thanks for your time and consideration.