A proposal under the Endangered Species Act to enable use of the Species at Risk Conservation Fund and to streamline authorizations for certain activities that impact species at risk, while maintaining protections for species at risk

Summary of proposed regulatory changes

Ontario provides protections for species at risk and their habitats through the Endangered Species Act (ESA).

As part of our Made-in-Ontario Environment Plan commitment to improve the effectiveness of the species at risk program, we are proposing regulatory changes that will offer more innovative and coordinated ways of helping species at risk impacted by development projects.

We are proposing to create a new provincial agency (the Agency), with expertise to invest in strategic, large-scale, and coordinated actions that would support more positive outcomes for select species at risk.

Municipalities, businesses and individuals authorized under the ESA will still be required to avoid and minimize impacts on species at risk and their habitats. This new option will offer an alternative way for them to further support and benefit species at risk over the long term, by giving them the option to have the new provincial agency pool resources and determine the best way to protect and recover select species on a province-wide scale.

We are also proposing to update the authorization process, known as conditional exemptions, for some activities that have common and routine mitigation actions and have well understood requirements to reduce impacts on species.

These changes will help trusted partners, such as Species at Risk Stewardship Program recipients, get projects that benefit species at risk underway faster.

We invite feedback and input from the public, Indigenous communities and stakeholders across the province on these proposed changes, so that we can continue to help preserve Ontario’s rich biodiversity for generations to come.

Part A: Enabling the Species at Risk Conservation Fund

Ontario recognizes that some businesses, municipalities and individuals may not have the expertise to carry out beneficial actions for eligible species at risk, and that doing this work on a case-by-case basis, by different proponents at individual sites, is not always the most effective way to protect and recover an at-risk species.

Recent changes to the ESA allow for the use of a new option by proponents that are authorized to undertake activities that impact species at risk: instead of completing beneficial actions for species impacted by those activities, proponents will have the option of contributing to a fund that allows a new provincial agency to pool the resources and determine how best to implement long-term, large-scale and strategic protection and recovery activities that benefit eligible species. It is important to note that regardless of the option chosen, proponents would still be required to take action to minimize impacts on species at risk and their habitats, as required by law.

The proposed approach has the potential to shorten authorization timelines, increase certainty for proponents and reduce the length of time required to fulfill authorization requirements. A proponent using this approach would, in most cases, first need to consider if there are ways to avoid impacting eligible species at risk, including consideration of reasonable alternatives. If impacts to eligible species at risk or their habitat cannot be avoided, the proponent would need to minimize the impacts through measures such as fencing an area to exclude the species or undertaking activities when the species is less likely to be impacted. The proponent will then have the option of completing beneficial actions for the species themselves, or contribute to the Fund, which the Agency will use to implement species protection and recovery activities.

To enable use of this approach, we are proposing regulations that would:

1. Prescribe six species as conservation fund species that would be eligible under the proposed Fund option, determine required contributions to be made into the Fund and prescribe related administrative requirements.
2. Establish the Agency - a new provincial board-governed agency, called the Species at Risk Conservation Trust, to administer the Fund.
3. Enable use of the Fund approach by proponents registering for certain conditional exemptions in O. Reg. 242/08 for eligible activities that will impact conservation fund species.

Species to be eligible under the Fund

We are proposing to designate a small subset of the species that are listed on the Species at Risk in Ontario List (O. Reg. 230/08) as conservation fund species eligible for the proposed charge payment option. The approach to contribute to the Species at Risk Conservation Fund would be available for eligible activities that impact one or more eligible species.

In determining the proposed conservation fund species, we considered the following criteria:

• the species is anticipated to benefit from a strategic and coordinated protection and recovery approach
• there is high demand for authorizations under the ESA for the species
• data are available to inform the proposed species conservation charge for the species

We are proposing that the conservation fund species will be:

• Butternut (Juglans cinerea)
• Barn Swallow (Hirundo rustica)
• Bobolink (Dolichonyx oryzivorus)
• Eastern Meadowlark (Sturnella magna)
• Eastern Whip-poor-will (Antrostomus vociferus)
• Populations of Blanding’s Turtle (Emydoidea blandingii) within the Canadian Shield physiographic region

We anticipate that these six species will benefit from a more strategic and coordinated approach to planning and implementing large-scale protection and recovery efforts.

Eligibility of activities and authorizations

The ESA permits use of the Fund approach for the following types of authorizations:

• permits issued under the requirements of subsections 17 (2) (c) (overall benefit permits), 17 (2) (d) (significant social or economic benefit to Ontario permit), and 19 (3) (permits issued to Aboriginal persons)
• agreements entered into under subsections 16.1 (landscape agreements) and 19 (1) (agreements with Aboriginal persons)
• regulations under section 18 (activities regulated under other acts)
• conditional exemptions made under subsection 55 (1) (b) (conditional exemptions in O. Reg. 242/08)

Activities that are proposed to be eligible for the Fund approach include those that impact habitat and of those, only those that impact the eligible species to the extent that impacts to the species are necessary and incidental to undertake the activity being authorized. For Butternut, intentional tree removal would be an eligible activity.

To support consistency across ESA authorization types, we are proposing changes to O. Reg. 242/08 to make the Fund approach available for those registering for the following conditional exemptions:

• Barn Swallow (Section 23.5)
• Bobolink, Eastern Meadowlark (Section 23.6)
• Butternut (Section 23.7)

These conditional exemptions are available to proponents undertaking eligible activities if they satisfy the requirements of the relevant conditions, including the requirement to give notice of registration under the exemption to the government’s Natural Resources on-line registry.

These conditional exemptions (sometimes referred to as “rules in regulation”) require completion of certain on-the-ground actions, such as enhancing habitat for Bobolink and Eastern Meadowlark, creating habitat structures for Barn Swallow or planting Butternut seedlings.

The proposed amendments to O. Reg. 242/08 would give proponents the option to pay a species conservation charge into the Fund rather than completing certain on-the-ground actions as a condition of the conditional exemption. Under the proposed approach, in most cases, proponents will still be required to take action to minimize impacts on species at risk and their habitats, as required by law – this will not change. The difference is, when it comes to the beneficial action requirements for eligible species, proponents will have the option of completing these actions themselves or choosing to have experts at the Agency use funds provided by the proponents to implement large-scale, long-term and coordinated protection and recovery activities for eligible species. Under both options, beneficial actions for eligible species would be completed.

Calculation of species conservation charges

Contributions to the Agency, referred to as species conservation charges, would be paid by proponents who are authorized under the ESA to carry out activities that would otherwise be prohibited under the Act and have opted for payment of charges as a condition of that authorization.

The proposed charges are generally informed by the costs that a proponent may have otherwise incurred in fulfilling conditions of an ESA authorization (e.g., costs to complete overall benefit actions). The ministry intends to update the costing periodically to ensure the charges remain appropriate over time.

For each conservation fund species, the regulation would set out a formula to calculate the amount of the contribution to be made for the authorized activity, based on the degree of impact to the species and its habitat (e.g., number of hectares of habitat to be impacted). The charge would be calculated at the time of payment by the proponent. The proposed formulas for calculating a species conservation charge, with costing information, are presented in the supporting materials attached to this notice.

Charge formulas would include consideration of the following factors:

• Beneficial actions: Costs associated with on-the-ground beneficial actions that a proponent would typically have otherwise been required to complete as part of their authorization (e.g., habitat enhancement, creation of nesting structures, planting seedlings).
• Cost of land, where applicable: Costs associated with acquiring or repurposing land, including relevant land related administrative costs, to provide habitat that a proponent would typically have otherwise been required to incur as part of their authorization. The proposed land costs and their breakdown across the province are presented in the supporting materials for this notice.
• Benefit ratio: The amount of benefit to be generated for the species in order to compensate for adverse impacts. This is expressed as a ratio of the level of the impact compared to the level of the benefit. A ratio of 1:1.5 is proposed, unless a different ratio is specified in the proposed species conservation charge formulas (see supporting materials for this notice). For example, in a case where habitat impact is measured in hectares, for every hectare of habitat impacted by the proponent, the cost associated with providing 1.5 hectares of new habitat is included in the charge.
• Administration: Costs that a proponent would typically have otherwise incurred by carrying out beneficial actions (e.g., project management, contract management). The proposal is to add 10 percent for administrative costs to the calculation of the beneficial action component of the species conservation charge.
• Inflation: An inflationary change, based on Statistics Canada’s Consumer Price Index (CPI) for Ontario, is proposed to be applied to costs that include goods and services (e.g., cost to enhance habitat) to ensure the value of the charge remains appropriate over time.

Providing funds to the Agency

The regulation would set out the general timing and steps that proponents must follow when providing species conservation charges to the Agency.

We are proposing that, at a minimum and in all cases, payment would be required before the start of any activities that impact the conservation fund species and its habitat, in a payment method accepted by the Agency.

Where possible, payment of the charge would be made by a proponent at least 30 days before the approved activity starts. Where 30 days is not possible, payment would be made by the date set out in the permit or agreement, or, for a payment related to a conditional exemption, no later than 30 days after registration of the activity. These are the proposed payment deadlines.

The person named in the authorization would be required to provide the Agency with supporting information with their payment, including:

• charges due: total and amount due for each conservation fund species
• payment deadline
• location of impact to the conservation fund species (e.g., municipality name)

We are proposing that a refund of charges would be allowed in these circumstances:

• to correct a clerical payment error, or
• for other reasons if:
  • the request is received by the Agency within 120 days of payment; and
  • the proponent’s activities have not started and are no longer authorized under the ESA (i.e., must be enabled by amendment or revocation of the authorization)

Establishing the Species at Risk Conservation Trust

A regulation is proposed to establish the Agency - a new provincial board-governed agency, called the Species at Risk Conservation Trust, to administer the Fund. The ESA enables the establishment of the Agency and sets out provisions about its governance, objects and government oversight.

We are proposing oversight provisions to support the Agency in meeting the purposes of the Fund, which include funding activities that are reasonably likely to protect or recover conservation fund species. It will be important for the Agency to demonstrate value for money through maintaining efficiency in their operations and being effective in administering the Fund. In addition to the provisions in the ESA that pertain to how the Agency must manage the Fund, and the regulatory proposals in this notice, a memorandum of understanding between the Agency and the Minister would also govern how the Agency would operate.

Board of Directors: composition

Under the proposal, the Agency’s board of directors would be appointed by the Lieutenant Governor in Council. The board is proposed to be small and nimble to maintain efficiency, and consist of:

• three to five voting directors, including one Chair and up to two Vice Chair positions
• one non-voting director who is an employee of the Ontario Public Service

It is proposed that quorum would be set at a majority of the appointed voting board members, with direction for alternatives in the event of absences.

The proposal is for the Agency’s board to include qualified members that have knowledge and scientific expertise related to the protection or recovery of species at risk. A majority of voting board members would be required to have applied knowledge of, and expertise with, concepts and techniques related to the protection or recovery of species at risk.

Collectively, voting board members would be required to have:

• relevant knowledge or scientific expertise, such as conservation biology, ecology, and Aboriginal Traditional Knowledge and/or Indigenous Community Knowledge
• corporate governance experience, such as financial management, risk management, strategic planning and outcomes-based reporting
• experience in building strategic partnerships in the area of conservation management

Board of Directors: powers and duties

The proposal is for the Agency’s board of directors to appoint the chief executive officer of the Agency. The board would be permitted to form their own committees and would follow a fiscal year that begins on April 1 and concludes on March 31.

It is proposed that the regulation would include provisions to guide the Agency in how it would distribute funds among the conservation fund species (e.g., ensure reasonable amount of funds spent within a reasonable time). The intent is to give the Agency the flexibility it needs to make decisions that best support the specific recovery needs of a species while also ensuring investments are made for all conservation fund species for which charges have been received.

Agency effectiveness and transparency

The proposed regulations will include provisions to ensure that the Agency is effective in funding activities to protect or recover conservation fund species, in a manner that builds on the government’s approach to species protection and recovery and that the Agency operates efficiently, demonstrating good value for money.

Plans for conservation fund species

To ensure spending decisions are sound, it will be important for the Agency to understand the specific needs of a conservation fund species and develop a plan to support sound investments in protection and recovery activities.

With that in mind, it is proposed that the Agency be required to publicly communicate its focus for funding, by submitting to the ministry and publishing a plan for each conservation fund species before any funds are disbursed for the species. These plans would include direction-setting information, such as the types of activities that are priorities for the Agency to fund or the locations in Ontario where funding would most benefit the species.

Directions identified in the Agency’s plan for a conservation fund species would need to align with the funding eligibility requirements that are set out in the ESA, the species’ government response statements, and any minister’s guidelines for the species, if applicable.

Operational policy

To underscore the importance of efficiency, we are proposing to require the Agency to develop an operational policy on its approach to minimize the amount of funds directed to administrative spending. The proposal includes a requirement for the Agency to submit its operational policy to the Ministry no later than 18 months after it has been established.

Reporting

To maximize transparency of the operations of the Agency, it is proposed that additional reporting elements be included within the Agency’s Annual Reports, which are already required to be made available to the public on the Agency’s website. Proposed additions to the Annual Report contents, beyond what is already in the ESA and government requirements, include:

• total amount of deposits into the Fund by type (e.g., charges, donations, funding from the Crown)
• total amount of charges received, refunds issued and disbursements from the Fund to fulfill the purpose of the Fund, by species
• total amount of payments from the Fund to fulfill the purpose of the Fund
• information about funded activities (e.g., who received funding and associated amounts, general locations of funded activities, descriptions of funded activities and their expected outcomes, and which species the activities aim to protect or recover)
• the proportion of funds that were spent by the Agency on administrative costs in relation to the amount received as charge payments, and the total amount of funds that were disbursed to recipients for their administrative costs.

We would like to expand on the requirement in the ESA for the Agency to provide a report after every five years on the effectiveness of the Fund in achieving its purpose. In these five-year reports, it is proposed the Agency would be required to report on:

• how the Agency has demonstrated efficiency in carrying out its objects (e.g., how the Agency is demonstrating value for money, such as disbursing funds to activities that minimize administrative costs)
• how the Agency has been effective in managing the Fund (e.g., extent to which the Fund is producing its intended outcomes)
• how the Agency has been demonstrating its relevance (e.g., extent to which the Agency is demonstrating it is consistent with its mandate and the purpose of the Fund, and any lessons learned moving forward)

Terms and conditions on the Fund

We are proposing that all funded activities must provide a benefit to a conservation fund species in Ontario.

It is proposed that the Agency be restricted from:

• purchasing land
• funding any actions that a person is already obligated to undertake, such as overall benefit actions required by conditions in an ESA permit

Part B: Further streamlining ESA authorizations

The “General” regulation under the ESA (O. Reg. 242/08) provides conditional exemptions for proponents from prohibitions in the ESA. These conditional exemptions allow persons carrying out eligible activities to follow the rules set out in regulation without having to obtain an ESA permit or agreement. Conditional exemptions were created to authorize activities that follow standard procedures, have predictable effects, and require common approaches for minimizing adverse effects and achieving benefits for species.

We are proposing to amend the conditional exemptions to make more activities eligible under the conditional exemptions in order to get those that maintain standards for and/or benefit species at risk underway faster. This would further streamline ESA authorizations for proponents while maintaining standards for the protection and recovery of species.

Changes are proposed for activities that:

• assist in the protection or recovery of a species at risk
• affect Butternut trees
• involve the operation of a dam

Species protection and recovery activities (section 23.17)

We are proposing to expand eligibility for the existing conditional exemption for activities that are intended to assist in the protection or recovery of species at risk. The proposed changes would allow more activities to qualify for the conditional exemptions and thereby shorten the timelines for obtaining ESA authorization, while maintaining protections for species at risk. They would also authorize the humane treatment of at-risk animals who become mortally wounded or sick.

The proposed changes would make the following activities eligible for conditional exemptions:

• conducting surveys (e.g., to assess presence or absence of species at risk, estimate species abundance) that proponents may be required to complete before starting an activity (e.g., to determine whether an ESA authorization is required)
• all activities that have been approved to receive funding through Ontario’s Species at Risk Stewardship Program
• certain low-risk protection or recovery activities that are recommended in government-approved recovery documents (e.g., government response statements), including:
  • incubation of at-risk turtle eggs, with some limitations (e.g., restricted number of eggs)
  • propagation of at-risk plants and planting of at-risk plants in suitable areas other than the area from where the plant material (e.g., seeds) was taken
• actions to minimize the distress of an animal that becomes ill or is unintentionally injured during a protection or recovery activity and has no possibility of survival, provided specific conditions are met (e.g., the person acts in accordance with animal care procedures approved by an animal care committee established under the Animals for Research Act and the advice of an animal expert such as a veterinarian)

These proposed changes are intended to make it easier to undertake projects while still maintaining protections for species at risk. For example, as a result of the proposed changes, a person carrying out a project funded by Ontario’s Species at Risk Stewardship Program (SARSP) would no longer need to obtain an ESA permit or agreement before their work can begin. The SARSP provides support to communities, organizations, landowners, Indigenous communities and groups, industry and academics across Ontario to implement activities that benefit species at risk and their habitats. SARSP project proposals undergo a thorough screening and selection process by the ministry to ensure they will benefit species at risk and their habitats and that the methods used are appropriate and scientifically sound. In these cases, the requirement to apply for an ESA permit to undertake an activity that has been approved to receive SARSP funding is considered duplicative.

Butternut trees (section 23.7)

The conditional exemption for Butternut trees requires proponents to plant, tend and monitor a certain number of Butternut seedlings based on information about the Butternut trees to be impacted by the activity. This includes information about the number of trees, their size, and the degree to which they are infected by Butternut Canker. Based on the ministry’s experience in authorizing these activities, there are opportunities to broaden this conditional exemption to incorporate activities that are routinely and frequently authorized through permits.

We are proposing to increase the number of Butternut trees that may be impacted under the conditional exemption to allow for impacts to:

• a higher number of trees assessed as being relatively healthy (i.e., Category 2 trees; to be increased from 10 to 15 trees)
• trees assessed as being potentially resistant to infection by Butternut Canker (i.e., Category 3 trees; to be increased from 0 to 5 trees)

Proponents whose activities impact between 11 to 15 Category 2 trees and where activities will impact habitat would be required to complete beneficial actions for habitat, such as planting Butternut seedlings or providing funds to the Fund.

Proponents whose activities impact Category 3 Butternut trees or their habitat would be required to complete beneficial actions for the species, which may include archiving genetic material from Category 3 Butternut trees and planting Butternut seedlings or providing funds to the Fund.

We are also proposing changes that would standardize in the conditional exemption the approaches commonly used in permits for activities that impact Butternut, including:

• require proponents to take steps to minimize the adverse effects of their activity on Butternut trees, such as marking trees to be retained and educating onsite workers about how to identify Butternut trees
• change the duration of the period that seedlings are to be monitored and tended from 2 to 5 years

For activities that will impact Butternut, the ministry requires proponents to arrange for an assessment of each tree’s health to determine the degree to which it is infected with Butternut Canker. We are proposing to make changes to the way that Butternut health assessments are completed. The changes are proposed to reduce cost and burden for proponents, while continuing to require that the assessment reports satisfy the ministry’s requirements.

The proposed changes would enable qualified persons to meet the requirements related to Butternut health assessment, and no longer require that assessments be completed by a designated Butternut Health Assessor. This would better align with requirements for other species at risk and allow proponents the opportunity to work with other qualified professionals, such as arborists, whose training and qualifications would enable them to conduct Butternut health assessments.

Hydro-electric generating stations (section 23.12)

This section of the regulation provides a conditional exemption from the prohibitions of the ESA for a person operating a hydro-electric generating station. We are proposing to amend the conditional exemption to also include the operation of dams that do not produce electricity, where their operation may result in adverse effects on species at risk or their habitats. Requirements in the existing conditional exemption would apply to the operation of dams, including, for example, taking steps to minimize adverse effects and preparing and implementing a mitigation plan for each impacted species at risk. This change would enable consistent requirements under the ESA for the operation of dams that do not produce electricity and hydro-electric generating stations.

Prescribing requirements for changing or cancelling a registered activity

We are proposing to prescribe requirements for registrations in respect of conditional exemptions to be updated if the registered activity is changed or cancelled. This will help to clarify registration requirements by identifying the steps a proponent would be required to take to notify the ministry about activity details such as: administrative changes to a registration, changes to the scope of a registered activity and the extent of its impacts on species at risk, and/or cancellation of the activity. The required steps would apply to all conditional exemptions in O. Reg. 242/08 that require notice to be given to the ministry through the registry. Having up-to-date information about registered activities that may impact species at risk supports the ministry in protecting and recovering species at risk in Ontario.

Regulatory impact statement

The proposal, as it relates to the Species at Risk Conservation Fund, will provide greater flexibility to proponents seeking ESA authorizations by enabling use of an option for proponents to complete beneficial actions themselves, or choose to have experts at the Agency determine how best to implement long-term, large-scale, strategic, and coordinated species protection and recovery activities, using funds provided by proponents. Proponents would be able to choose the approach that works best for them. This approach will shorten timelines, reduce burdens and provide cost certainty for proponents, such as businesses, municipalities or individuals undertaking an activity or project that impacts species at risk. It is anticipated that these proposals will have no new administrative costs for businesses and other proponents.

The proposed amendments to conditional exemptions in O. Reg. 242/08 would enable more proponents to register their activities rather than seek permits or agreements from the ministry. This would reduce burden for proponents seeking ESA authorizations, improve business certainty and increase efficiency, while continuing to achieve positive outcomes for species at risk. It is anticipated that the proposed changes will have no new administrative costs for businesses and other proponents.

It is anticipated the conservation fund species will benefit from a more strategic and coordinated approach to planning and implementing protection and recovery activities. Payments of species conservation charges to the Fund would allow the Agency to provide funding for species protection and recovery outcomes that are more strategic and coordinated than individual efforts could provide. Additionally, proponents would still be required to fulfill authorization requirements, such as considering reasonable alternatives for their activity, selecting the best alternative and taking steps to minimize the adverse effects of their activity on species at risk.

The proposal as it relates to amending the conditional exemptions is expected to be neutral for species at risk, because the requirements that must be fulfilled under the conditional exemptions in the regulation are based on the conditions that would otherwise be required in a permit or agreement.