This consultation was open from:
September 18, 2023
to November 2, 2023
We have made new regulations that identify how Endangered Species Act, 2007 protections apply to Black Ash and its habitat.
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The original notice proposed new regulations that would:
- identify how Endangered Species Act, 2007 (ESA) protections would apply to Black Ash and its habitat
- set out a new conditional exemption for forestry operations that impact Black Ash
A decision has been made on two of these proposed regulations and they were filed on January 24, 2024 and came into force on January 26, 2024:
- O. Reg. 6/24: Limitations on Section 9 Prohibitions
- O. Reg. 7/24: Amending O. Reg. 832/21 (Habitat)
These new regulations identify how the prohibitions in sections 9 and 10 of the Endangered Species Act, 2007 apply to Black Ash and its habitat as of January 26, 2024 (i.e., following the expiry of the period of temporary suspension). The regulations identify that ESA prohibitions apply only in areas of the province where Black Ash has experienced significant mortality due to the invasive Emerald Ash Borer (EAB), the primary threat to the tree species.
No decision has been made on the proposal for a new conditional exemption for forestry operations not undertaken on Crown lands under the Crown Forest Sustainability Act, 1994 (CFSA). Note that forest operations undertaken on Crown land and in a forest management unit in accordance with the CFSA, are exempt from certain provisions of the ESA and will not be impacted by this proposal. We will update this notice when a decision has been made.
We remain committed to engaging with stakeholders, Indigenous communities and the public as part of continued efforts to protect and recover species at risk in Ontario.
Details about the new regulations
O. Reg. 6/24 (Limitations on Section 9 Prohibitions) identifies that:
the “species protection” prohibitions in subsection 9 (1) (a) of the ESA only apply to persons impacting healthy Black Ash trees with a stem diameter at breast height of at least 8 centimetres located on lands within the boundaries of the municipalities listed in the regulation (see map attached) (i.e., the prohibitions would not apply to persons impacting trees assessed as unhealthy)
assessments of tree health must be completed by a qualified professional and detailed in a report submitted to the ministry that contains the information required by the regulation, including whether a tree is significantly declining as indicated by its canopy condition
- qualified professionals may be an arborist, professional forester, forest technician, dendrologist, horticultural technician, botanist, entomologist, or any other person who has expertise in relation to Black Ash, and who has the expertise, education, training and experience necessary to assess the extent to which a Black Ash tree has been affected by EAB
- the prohibitions in clauses 9 (1) (b) and (c) of the ESA (i.e., possession, transportation, buying, selling, or offering to buy or sell, etc.) do not apply with respect to Black Ash anywhere in Ontario
O. Reg. 7/24 (Amending O. Reg. 832/21) identifies that:
- the “habitat protection” prohibitions in subsection 10 (1) of the ESA apply to a radial distance of 30 metres around Black Ash trees protected under clause 9 (1) (a) of the ESA
Regulatory impact statement
These regulations identify how the prohibitions in subsections 9 (1) and 10 (1) of the ESA apply to persons impacting Black Ash and its habitat.
The regulations focus protections where they are most needed to support the recovery of Black Ash, while preserving the ability to take timely action to:
- mitigate the threat of EAB on this species
- implement recovery actions
These regulations will reduce burden on municipalities, businesses and individuals.
A regulatory impact statement for the regulatory proposal for the conditional exemption will be added when decisions on that proposal has been made.
Effects of consultation
We received a total of 2103 comments from:
- the public
- Indigenous communities and organizations
- industry associations
- environmental and conservation organizations
- other interested stakeholders
Commenters who supported the proposal generally indicated it was a reasonable approach to protecting the species and its habitat. Reasons for this position included:
- the nature of the situation affecting Black Ash (i.e., considering threats, distribution and abundance)
- potential social and economic consequences of protection
Commenters who did not support this proposal cited varied reasons for their position, such as:
- concerns that the proposed approach would not sufficiently protect Black Ash
- concerns that the proposed approach would be too restrictive for certain landowners or industry sectors and additional changes or exemptions should be considered
- the need for additional guidance about the assessment of tree health to support implementation
The cultural importance and significance of Black Ash to Indigenous peoples was explicitly identified by Indigenous communities and also recognized and acknowledged by other commenters.
The comments received were carefully considered and analyzed as part of the ministry's decision.
The ministry carefully considered and analyzed information received from Indigenous peoples, stakeholders, other ministries and the public as part of its decision. In addition, the ministry took the following into account:
- The primary threat to the species is the invasive EAB, and there is a need to preserve the ability to take timely action to mitigate the threat of EAB on this species and to implement recovery actions for Black Ash.
- The impact of the threat of EAB on Black Ash is unlikely to be reduced or mitigated by the application of ESA protections.
In response to input received from the public, Indigenous communities, stakeholders, provincial ministries/agencies and the federal government and the considerations above:
- the approach continues to take into account the different geographic circumstances for the species, as well as the overwhelming threat of an invasive species that is not directly controlled by the prohibitions in the legislation
- the regulations include additional details on the assessment of trees, including detail regarding the required contents of a Qualified Professional’s health assessment report
- the Ministry is developing a technical guide to provide additional guidance on health assessments for Black Ash.
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Get in touch with the office listed below to find out if materials are available.
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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.
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Get in touch with the office listed below to find out if materials are available.