Amendments to Ontario Regulation 242/08 (General Regulation – Endangered Species Act, 2007) relating to upcoming changes to the Species at Risk in Ontario List

Overview of the proposed amendments

We are proposing changes under the Endangered Species Act that would allow the use of existing conditional exemptions for select newly-listed species that will be added to the Species at Risk in Ontario List regulation.

Currently O. Reg. 242/08 references the SARO List as it existed in June 2, 2017, as the list of species to which the conditional exemptions in that regulation are available. This proposal is to update that reference to refer to the SARO List as it will appear once the mandatory amendment to O. Reg. 230/08 – SARO List is made on, or before, January 27, 2022, subject to certain exclusions detailed below.

Conditional exemptions streamline approvals for routine activities that have common mitigation actions with well understood requirements to reduce impacts and maintain protections for species.

This proposed change supports proponents in undertaking actions that are beneficial for species at risk more quickly, as they allow certain activities to proceed without the need to obtain an ESA permit or agreement, while still maintaining protections for species at risk.

Protecting species under the Endangered Species Act

Ontario protects species at risk and their habitats under the Endangered Species Act (ESA):

• Section 9 of the ESA protects members of species listed as endangered, threatened or extirpated on the Species at Risk Ontario (SARO) List
• Section 10 protects the habitat of species listed as endangered, threatened or extirpated (if prescribed) by prohibiting harm to those species and their habitat

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 established under the ESA, the Committee on the Status of Species at Risk in Ontario (COSSARO).

On January 27, 2021, the Minister of the Environment, Conservation and Parks received an annual report from COSSARO, which included the assessment of 35 species.

The ESA requires O. Reg. 230/08 - SARO List to be amended to reflect COSSARO’s new classifications within one year of receiving the annual report. Therefore, the mandatory amendment to O. Reg. 230/08 must be made by January 27, 2022.

Once a species is listed under O. Reg. 230/08, the ESA, including the prohibitions against harming species and their habitat apply to the species.

Conditional exemptions

This proposed change supports proponents in undertaking actions that are beneficial for species at risk more quickly, as they allow certain activities to proceed without the need to obtain an ESA permit or agreement, while still maintaining protections for species at risk. Supporting proponents in completing these projects and this type of work, without the need for a permit, benefits species at risk and the province.

Proponents conducting activities that are eligible for conditional exemptions would:

• continue to need to register their activity with the ministry (where required)
• be required to minimize adverse effects to the species and complete required monitoring and reporting requirements as applicable

Details of proposed amendments

The ESA requires that O. Reg. 230/08 - SARO List must be amended by January 27, 2022 to reflect the species classifications in the COSSARO Report submitted to the Minister in January 2021. This will result in the following species being classified as threatened or endangered:

• Black Ash (plant) – endangered
• Carolina Mantleslug (mollusc) – threatened
• Downy Yellow False Foxglove (plant) – endangered
• False-Foxglove Sun Moth (insect) – endangered
• Fern-leaved Yellow False Foxglove (plant) – threatened
• Gillman’s Goldenrod (plant) – endangered
• Hairy Valerian (plant) – threatened
• Hudsonian Godwit (bird) – threatened
• Lake Whitefish (Opeongo Lake Large-bodied populations) (fish) –threatened
• Lake Whitefish (Opeongo Lake Small-bodied populations) (fish) –threatened
• Red-headed Woodpecker (bird) – endangered (previously listed as special concern)
• Shagreen (mollusc) – endangered
• Smooth Yellow False Foxglove (plant) – threatened
• Spoon-leaved Moss (Moss) – threatened (previously listed as endangered)
• Toothed Globe (Mollusc) – endangered
• White-rimmed Shingle Lichen (lichen) - endangered

In addition, O. Reg. 230/08 - SARO List was amended on August 1, 2018 to reflect the classifications identified in the COSSARO Report submitted to the Minister in 2018. That amendment resulted in the following species being classified as threatened or endangered:

• Eastern Banded Tigersnail (mollusc) – endangered
• Golden-eye Lichen (Great Lakes population) – endangered
• Lake Sturgeon (Great Lakes – Upper St. Lawrence populations) (fish) – threatened (previously listed as endangered)
• Spotted Wintergreen (Plant) – threatened (previously listed as endangered)
• Transverse Lady Beetle (insect) - endangered

We are proposing to amend Section 0.1 of O. Reg. 242/08 so that the regulation would apply to species that will be listed on the SARO List as of January 2022 (including those species listed in 2018). As a result, all conditional exemptions under O. Reg. 242/08 would be available to proponents (as applicable) to the species noted above. Note that we are intending to exclude several newly listed species from this amendment - see further details are available below.

Proposed exclusions

An analysis of the conditional exemptions in O. Reg. 242/08 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
• whether certain types of activities are likely to adversely affect the species

Through this analysis, we are proposing that certain provisions of the regulation would not apply to certain newly listed species:

Black Ash (plant) – endangered

• All relevant provisions of the regulation would apply.

Carolina Mantleslug (mollusc) – threatened

All relevant provisions of the regulation would apply except:

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

Downy Yellow False Foxglove (plant) – endangered

All relevant provisions of the regulation would apply to this species, except:

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

Eastern Banded Tigersnail (mollusc) – endangered

All relevant provisions of the regulation would apply to this species, except:

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

False-Foxglove Sun Moth (insect) – endangered

All relevant provisions of the regulation would apply to this species, except:

• Section 23.13 – Transition – development ongoing when species first listed, etc.
• Section 23.14 – Pits and quarries
• Section 23.18 – Threats to health and safety, not imminent

Fern-leaved Yellow False Foxglove (plant) – threatened

All relevant provisions of the regulation would apply to this species, except:

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

Gillman’s Goldenrod (plant) - endangered

All relevant provisions of the regulation would apply to this species, except:

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

Golden-eye Lichen (Great Lakes population) (Lichen) – endangered

All relevant provisions of the regulation would apply to this species, except:

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

Hairy Valerian (plant) – threatened

All relevant provisions of the regulation would apply to this species, except:

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

Hudsonian Godwit (bird) – threatened

All relevant provisions of the regulation would apply.

Lake Sturgeon (Great Lakes – Upper St. Lawrence populations) (fish) – endangered

All relevant provisions of the regulation would continue to apply to this species, except:

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

Lake Whitefish (Opeongo Lake Large-bodied populations) (fish) – threatened

All relevant provisions of the regulation would continue to apply to this species, except:

• Section 23.4 (aquatic species)
• Section 23.13 (Transition – development ongoing when species first listed, etc.)
• Section 23.18 (Threats to health and safety, not imminent)

Lake Whitefish (Opeongo Lake Small-bodied populations) (fish) – threatened

All relevant provisions of the regulation would apply to this species, except:

• Section 23.4 (aquatic species)
• Section 23.13 (Transition – development ongoing when species first listed, etc.)
• Section 23.18 (Threats to health and safety, not imminent)

Red-headed Woodpecker (bird) – endangered

All relevant provisions of the regulation would apply.

Shagreen (mollusc) – endangered

All relevant provisions of the regulation would apply to this species, except:

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

Smooth Yellow False Foxglove (plant) – threatened

All relevant provisions of the regulation would apply to this species, except:

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

Spoon-leaved Moss (moss) - threatened

All relevant provisions of the regulation would apply to this species, except:

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

Spotted Wintergreen (plant) – threatened

All relevant provisions of the regulation would apply to this species, except:

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

Toothed Globe (mollusc) – endangered

All relevant provisions of the regulation would apply to this species, except:

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

Transverse Lady Beetle (insect) – endangered

All relevant provisions of the regulation would apply to this species, except:

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

White-rimmed Shingle Lichen (lichen) – endangered

All relevant provisions of the regulation would apply to this species, except:

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

Regulatory impact statement

This proposal is expected to reduce burden as individuals conducting activities that meet the eligibility requirements would not need to obtain a permit or agreement as long as, they follow the conditions set out in the regulation.

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

The amendments will allow O. Reg. 242/08 to apply generally to those species that will be listed on the SARO List in 2022 as extirpated, endangered or threatened except as specified.

The proposed amendment will continue to provide protections for species at risk through conditions that scope the application or eligibility of the regulation and provide requirements to mitigate impacts to impacted species.