Protecting Black Ash and its habitat under the Endangered Species Act, 2007

Overview of the proposal

Endangered Species Act, 2007 (ESA) protections for Black Ash were temporarily suspended for two years from the time it was added to the Species at Risk in Ontario (SARO) List regulation. This time was used to determine the best way protect and recover Black Ash, including how to manage the threat of invasive Emerald Ash Borer (EAB).

Ontario is now proposing regulations that will set out how ESA protections will apply to Black Ash when the period of temporary suspension ends on January 25, 2024 and will set out a new conditional exemption for Black Ash that are protected under the ESA. If necessary, the government will consider extending the temporary pause in protections for Black Ash until no later than January 2025 so that the proposed regulatory approach can be implemented.

How species protections would apply to Black Ash

The invasive EAB is the primary threat to Black Ash in Ontario, and Black Ash is only considered at risk due to the likelihood of a high number of Black Ash and other trees that this insect is expected to kill as its distribution expands in the province over the next 100 years.

Black Ash is currently abundant in Ontario, with a provincial population estimate of approximately 83 million trees. However, most of the Ontario Black Ash range is not currently affected by EAB. Ontario is committed to working with other agencies and partners to find a solution to address the primary threat, EAB, to support the protection and recovery of Black Ash and other trees that EAB may target.

Ontario is proposing to limit the application of the “species protection” prohibitions in subsection 9(1) of the ESA to healthy Black Ash, those that appear appear to have survived exposure to EAB,located in areas of the province that have experienced significant EAB-caused mortality of ash trees. These areas are the lands located within the boundaries of the following municipalities (see attached map for reference):

• the regional municipalities of Durham, Halton, Niagara, Peel, Waterloo and York
• the Municipalities of Central Manitoulin, Centre Hastings, Chatham-Kent, Gordon/Barrie Island, Marmora and Lake, and Tweed
• the counties of Brant, Bruce, Dufferin, Elgin, Essex, Frontenac, Grey, Haldimand, Huron, Lambton, Lanark, Leeds and Grenville, Manitoulin, Middlesex, Norfolk, Northumberland, Oxford, Perth, Peterborough, Prescott and Russell, Prince Edward, Simcoe, Stormont, Dundas and Glengarry, and Wellington
• the Townships of Admaston/Bromley, Assiginack, Billings, Burpee and Mills, Cockburn Island, Georgian Bay, Greater Madawaska, Horton, Jocelyn, Johnson, Laird, Limerick, Macdonald Meredith and Aberdeen Additional, McNab-Braeside, Madoc, St. Joseph, Stirling-Rawdon, Tehkummah, Tudor and Cashel, Tarbutt, Tyendinaga and Wollaston
• the Cities of Belleville, Kawartha Lakes, Ottawa, Quinte West, Hamilton, Sault St. Marie, Toronto and Thunder Bay
• the Towns of Arnprior, Gore Bay, Gravenhurst and Northeastern Manitoulin and Islands

A healthy Black Ash tree is one that appears to have survived exposure to EAB, remains in a healthy condition (“lingering ash”), and has a trunk diameter at breast height of at 8 cm. These trees are thought to have the greatest potential to support the recovery of the species. Determinations of tree health would be:

• made by a qualified professional, which may include an arborist, professional forester, forest technician, dendrologist, horticulturist, botanist, entomologist, or any other qualified professional who has expertise in relation to Black Ash, and who has the expertise, education, training and experience necessary to assess the health of Black Ash trees
• supported by written documentation submitted to the ministry

Ontario is also proposing that the prohibitions related to possession, transportation, buying, selling, or offering to buy or sell in clauses 9 (1) (b) and 9 (1) (c) of the ESA do not apply to Black Ash.

How habitat protection would apply to Black Ash

Ontario is proposing to apply “habitat protection” prohibitions in subsection 10 (1) of the ESA to a radial distance of 30 metres around each Black Ash tree protected under subsection 9 (1).

Exception to allow for forest operations

As certain forest management activities are recommended to mitigate the threat of EAB on forest ecosystems and given that sustainable forestry operations are not considered a threat to the species, it is proposed that subsections 9(1) and 10(1) of the ESA not apply to forest operations that are being undertaken:

• in accordance with a written plan prepared by a Registered Professional Forester, that includes a description of:
  • the current structure and condition of the forest in the area to which the prescription applies and of which the impacted Black Ash trees and/or their habitat are a part
  • harvesting, renewal and maintenance activities that will be used to ensure that at a minimum Black Ash in the forest in that area will be renewed and maintained
  • the future structure and condition of the forest, including Black Ash in the area that is expected to result from the activities
• provided that reasonable steps are taken to minimize adverse effects on Black Ash (e.g. through use of appropriate silvicultural or logging practices)

Forest operations undertaken on Crown land and in a forest management unit in accordance with the Crown Forest Sustainability Act, 1994, are already exempt from the ESA.

Authorizations and exemptions

The ESA provides the authority to authorize and exempt activities that would otherwise be prohibited under the Act, subject to conditions and requirements (i.e., permits, agreements, and conditional exemptions).

Once protections are in place for Black Ash, those undertaking activities that would result in killing, harming or harassing protected Black Ash trees or damaging or destroying their protected habitat could choose either:

• to alter the activity to avoid those impacts or,
• undertake the activity in accordance with the requirements of a permit, agreement, or applicable conditional exemption in regulation

Certain existing conditional exemptions will be available (in addition to the proposed conditional exemption if it is made) for eligible activities that impact Black Ash when the temporary suspension of the ESA protections for the species ends. For further information please refer to Amendments to Ontario Regulation 242/08 (General Regulation – Endangered Species Act, 2007) relating to upcoming changes to the Species at Risk in Ontario List | Environmental Registry of Ontario.

Regulatory impact statement

This proposal is expected to reduce burden that would otherwise arise if these regulations were not put in place. The proposed regulations are expected to result in cost and time savings for individuals, businesses and government.