Amendments of Ontario Regulation 242/08 (General Regulation - Endangered Species Act, 2007) relating to forest operations in managed Crown forests, incorporating species recently listed to the Species at Risk in Ontario List, and safe harbour

Description of regulation

The Endangered Species Act, 2007 (ESA) came into effect on June 30, 2008 along with two regulations that support its implementation: Ontario Regulation (O. Reg.) 242/08 (General), and O. Reg. 230/08 (Species at Risk in Ontario List). Section 9 of the ESA protects members of species listed as endangered, threatened or extirpated on the Species at Risk Ontario (SARO) List, and section 10 protects the habitat of species listed as endangered or threatened.

The classification of species on the SARO List as extirpated, endangered, threatened or special concern are based on assessments conducted by an independent, science-based body, the Committee on the Status of Species at Risk in Ontario (COSSARO).

O. Reg. 242/08 includes provisions allowing certain activities to proceed that would otherwise be prohibited by the ESA in accordance with prescribed conditions and limitations.

This posting outlines the following proposed amendments to O. Reg. 242/08:

1. Amend s. 22.1 to extend the current regulation so that it applies to forest operations in managed Crown forests before July 1, 2020, rather than before July 1, 2018. During the extension, the ministry is proposing that an independent panel be formed that will provide advice on consideration of species at risk in Crown forest management, identify innovative local approaches and potential pilot projects and for Ontario to consider this advice as it develops a long-term approach that protects species at risk and their habitat and minimizes impacts to forest industry. The proposed regulation and the panel’s advice will also provide Ontario with an opportunity to better understand the potential uses and applications of a conservation agreement under the federal Species at Risk Act.
2. Amend the regulation so that it applies to species added to the SARO List as threatened or endangered on June 2, 2017, where applicable.
3. Amend s. 23.16 Safe Harbour to help clarify requirements under that provision and extend eligibility to include special concern species.
4. Undertake administrative amendments (such as species name changes).

Proposed amendments

Prior to approving a regulation that may impact species at risk, s. 57 of the ESA requires the Minister to form an opinion regarding whether the proposed regulation will jeopardize the survival of the species affected by the regulation or have any other significant adverse effects on the species. The proposed amendments will be considered against this test prior to being recommended to the Lieutenant Governor in Council.

1. Amendments to s. 22.1 (Forest operations in Crown forests)

Presently, under s. 22.1 of O. Reg. 242/08, ss. 9(1)(a) and ss. 10(1) of the ESA does not apply in relation to forest operations conducted in managed Crown forests prior to July 1, 2018, provided the conditions in the regulation are met. The conditions include operating under an approved licence under the Crown Forest Sustainability Act and following an approved forest management plan. Forest management plans are prepared following MNRF approved direction, including regulated manuals and approved forest management guides. The guides include operational prescriptions and conditions, which may include reserves (i.e., no harvesting), modified operations (e.g. restrictions on harvesting during certain months of the year), or specific conditions on road construction in the area near a species at risk and their habitat. There are also specific conditions related to caribou conservation for management units (MUs) within the continuous distribution area for caribou (boreal population).

Forest management plans developed and approved during the period of this regulation must follow the caribou direction in the Forest Management Guide for Boreal Landscapes (approved 2014).

The proposed amendments to s. 22.1 would extend the regulation to apply to forest operations conducted prior to July 1, 2020 rather than July 1, 2018.

The ministry is proposing that during the extension period, an independent panel be formed that will be tasked with providing advice to Ontario outlining how to consider species at risk in Crown forest management and identify innovative local approaches and potential pilot projects to do so. Ontario will consider this advice as it develops a long-term approach to addressing species at risk and their habitat requirements in Crown forest management. The proposed regulation and the panel’s advice will also provide Ontario with an opportunity to better understand the potential uses and applications of a conservation agreement under the federal Species at Risk Act (SARA).

A federal report on the progress of implementing the recovery strategy for boreal caribou in Canada was released on October 31, 2017. The report signals federal interest in entering into conservation agreements under SARA with provinces to describe the commitments being made to support protection and recovery of boreal caribou. The proposed extension provides Ontario with an opportunity to explore the use of conservation agreements for caribou under the federal Species at Risk Act and to evaluate their potential use in an Ontario context.

2. Recommendations for species listed in 2017

Currently O. Reg. 242/08 applies to species listed on the SARO List as it read on June 15, 2016. As additional species are listed as extirpated, endangered or threatened on the SARO List, the ministry assesses whether amendments to O. Reg. 242/08 are warranted.

The SARO List was updated on June 2, 2017, which resulted in the following species being classified as extirpated, threatened, or endangered:

• Colicroot (Plant) – Endangered (Previously listed as threatened)
• Hoptree Borer (Insect) – Endangered
• Lake Huron Grasshopper (Insect) – Threatened
• Louisiana Waterthrush (Bird) – Threatened (Previously Listed as Special Concern)
• Nine-spotted lady Beetle (Insect) – Endangered
• River Darter (Great Lakes – Upper St. Lawrence Population) (Fish) - Endangered
• Spotted Gar (Fish )- Endangered (Previously Listed as Threatened)
• Spiny Softshell (Reptile) – Endangered (Previously listed as Threatened)
• Unisexual Ambystoma (Jefferson Salamander dependent population) (Amphibian) – Endangered
• Unisexual Ambystoma (Small-mouthed Salamander dependent population) (Amphibian) - Endangered

MNRF is proposing regulation changes that would amend the provisions of O. Reg. 242/08, so that the regulation would apply to species listed on the SARO List as of June 2, 2017, the date of the most recent amendments to the SARO List. As a result, the relevant provisions of the regulation would apply to the species noted above that were added in 2017.

This would allow certain activities to proceed with respect to the newly listed species that would otherwise be prohibited by the Act, provided specific conditions are followed to protect species and their habitat.

An analysis of the regulation provisions was conducted for each of the above species, using a range of factors including: the size of the species population in Ontario; the rarity of the species; whether the location of species and its habitats occur in the same location as regulated activities already described in the regulation; and whether certain types of activities are likely to adversely affect the species. Through this analysis, the MNRF is proposing that certain provisions of the regulation would not apply to particular species added to the SARO List in 2017, or reclassified in 2017 as endangered or threatened.

The proposed regulation provisions that would apply to each newly listed species are outlined below.

Colicroot (Plant) – Endangered

All relevant provisions of the regulation would apply except: s. 23.13 (Transition – development ongoing when species first listed etc.). Colicroot was previously listed as threatened, so it would not be included as a 2017 transition species

Hoptree Borer (Insect) – Endangered

All relevant provisions of the regulation would apply except:

• 23.13 (Transition – development ongoing when species first listed, Etc.)
• 23.18 (Threats to health and safety, not imminent)

Lake Huron Grasshopper (Insect) – Threatened

All relevant provisions of the regulation would apply except:

• 23.13 (Transition – development ongoing when species first listed, etc.)
• 23.18 (Threats to health and safety, not imminent)

Louisiana Waterthrush (Bird) – Threatened

All relevant provisions of the regulation would apply.

Nine-spotted Lady Beetle (Insect) – Endangered

All relevant provisions of the regulation would apply except:

• 23.13 (Transition – development ongoing when species first listed, etc.)
• 23.18 (Threats to health and safety, not imminent)

River Darter (Great Lakes-Upper St. Lawrence Populations) (Fish) – Endangered

All relevant provisions of the regulation would apply except:

• 23.4 (Aquatic species)
• 23.13 (Transition – development ongoing when species first listed, etc.)

Spiny Softshell (Reptile) – Endangered

All relevant provisions of the regulation would apply, except s. 23.13 (Transition - development ongoing when species first listed etc.). Spiny Softshell was previously listed as threatened, so it would not be included as a 2017 transition species

Spotted Gar (Fish) – Endangered

All relevant provisions of the regulation would apply except:

• 23.9 (Drainage).
• S. 23.13 (Transition - development ongoing when species first listed etc. Spotted Gar was previously listed as threatened, so it would not be included as a 2017 transition species

Unisexual Ambystoma (Jefferson Salamander dependant population) (Amphibian) – Endangered

All relevant provisions of the regulation would apply except:

• 23.13 (Transition – development ongoing when species first listed, etc.)

Unisexual Ambystoma (Small-mouthed Salamander dependant population) (Amphibian) – Endangered

All relevant provisions of the regulation would apply except:

• 23.9 (Drainage Works)
• 23.13 (Transition – development ongoing when species first listed, etc.)
• 23.14 (Pits and Quarries)

3. Amendments to s. 23.16 (Safe Harbour Habitat)

Safe harbour instruments are tools available to help proponents and others create, or in limited circumstances, enhance species at risk habitat for a set period of time while retaining the assurances that they may modify the habitat at a later date. The primary goal of the safe harbour provision is to support stewardship-driven beneficial activities focused on the protection, recovery and overall benefit of species at risk in Ontario. During the development of the draft Safe Harbour Policy (ER #012-8234), amendments were identified that may improve the implementation and use of the safe harbour provisions. Those proposed amendments are described below.

Under the regulation, a person must take steps to minimize adverse effects for the target species of the safe harbour habitat, if that habitat is damaged or destroyed. To support minimizing adverse effects on the species, an allowance is provided for the possession, collection and transport of targeted species. Since non-target species at risk may also use the safe harbour habitat, it is proposed that the regulation be amended to ensure a person can transport, collect and possess non-target species in order to minimize impacts on those species.

Prior to damaging or destroying safe harbour habitat, a person must submit the notice of activity form, including the name of the target species for which the safe harbour habitat was created or enhanced. There may be some instances when safe harbour habitat provides habitat for non-target species at risk. As such, damage or destruction of safe harbour habitat could have unintended consequences to species at risk beyond the target species. It is proposed that the Ministry be notified of both target and non-target species at risk when activities are undertaken that damage or destroy safe harbour habitat. In addition, it is proposed that the reporting requirements be updated and clarified to provide additional information on the activity that was carried out to impact the habitat.

Currently, the regulatory framework for safe harbour is limited to species listed as threatened or endangered. This was identified as a challenge during public consultations on the draft Safe Harbour Policy. To help enable conservation projects, it is proposed that the regulation be amended so that the safe harbor provisions also apply to special concern species.

4. Administrative amendments

In addition, this regulation submission is being used as an opportunity to make some minor and administrative amendments to O. Reg. 242/08, such as updates to reflect new species names and to remove species that are no longer listed as threatened, endangered, or extirpated, or to update the name of forms referenced in the regulation.

For example, the regulation would be updated to reflect the new name for Grey Fox (previously Gray Fox). These changes are not anticipated to change the application of the regulatory provisions.

Purpose of regulation

The purpose of this notice is to invite the public to review the proposed amendments to O. Reg. 242/08 and to solicit comments that may be relevant to the decision making process.

Other information

The following web links provide additional (or supporting) information.

Committee on the Status of Species at Risk in Ontario

Endangered Species Act, 2007

Ontario Regulation 242/08

Ontario Regulation 230/08

Report on the Progress of Recovery Strategy Implementation for the Woodland Caribou (Rangifer tarandus caribou), Boreal population in Canada for the Period 2012 to 2017

Environmental Registry posting of the amended SARO List: visit and search #013-0323

MNRF Species at Risk Website

Regulatory impact statement

The proposed amendments to s. 22.1 of O. Reg. 242/08 will provide a more predictable regulatory environment for forest industry for the next two years provided that specific conditions are met. During this time, Ontario is proposing to will establish an independent panel that will be tasked with providing advice to Ontario outlining how to consider species at risk in Crown forest management. The proposed amendments with conditions will continue to provide protections for species at risk through requirements that scope the application of the regulation and provide mitigations to ensure ongoing species conservation.

The amendments will also allow O. Reg. 242/08 to apply generally to those species that were listed on the SARO List in 2017 as extirpated, endangered or threatened except as specified.

Some of the provisions of the regulation would not be permitted to apply to several of the species newly listed as endangered or threatened. To the extent activities described by those provisions would impact these species, a permit or authorization under the ESA would be necessary, and the ministry would retain the opportunity through the authorization process to provide site-specific input into whether or how activities would proceed with respect to these species.

The proposed changes enable existing provisions of O. Reg. 242/08 to apply to those species added to the SARO List in 2017. These provisions include conditions which are required to be met when undertaking activities where the species and their habitats occur. The anticipated social risks and consequences associated with this proposal are likely positive.

The proposed changes will increase the predictability of regulatory requirements, enabling cost savings to individuals, businesses and government.

No new administrative costs are anticipated as a result of this proposal.