Regulatory changes under the Endangered Species Act to improve implementation of the species at risk program

Ontario protects species at risk and their habitats through the Endangered Species Act, 2007 (ESA).

As part of our continuing efforts to improve the effectiveness and implementation of the species at risk program, we are proposing to amend several regulations made under the ESA to:

• increase certainty and streamline processes for Ontarians
• deliver ESA protections where they are needed most

Summary of proposed regulatory changes

We are proposing to make regulatory amendments in four key areas:

1. Regulatory amendments regarding habitat protections for Redside Dace
2. Regulatory amendments regarding select conservation fund species and related administrative changes
3. Regulatory amendments to add newly listed species to existing conditional exemptions and other administrative changes to conditional exemptions
4. Regulatory amendments regarding the conditional exemption for early exploration mining

We invite feedback and input from the public, Indigenous communities, and stakeholders on these proposed changes, so that we can continue to improve the effectiveness and implementation of the ESA as we protect and recover Ontario’s species at risk.

1. Regulatory amendments regarding habitat protections for Redside Dace

   Section 10 of the ESA prohibits activities that damage or destroy the habitat of a species-at-risk. Habitat is either an area that meets the general definition in s. 2 of the ESA or that is specifically prescribed in O. Reg. 832/21 (Habitat regulation).

   The protected habitat for Redside Dace is currently defined in section 29 of the habitat regulation and includes:

   • areas that are considered occupied by Redside Dace – e.g., areas that are currently being used or have been used within the last 20 years by Redside Dace. (“occupied” habitat – paragraph 1 of section 29)
   • areas that would support re-establishment of the species to formerly occupied areas (“recovery” habitat – paragraph 2 of section 29)
    

   We are proposing to:

   • amend O. Reg. 832/21 to shorten the timeframe from 20 to 10 years such that any part of a stream or other watercourse that was used by Redside Dace at any time during the previous 10 years would be considered to be ‘occupied’ habitat under the regulation
   • amend the habitat regulation to change how ‘recovery’ habitat is determined under subparagraph 2 i so that recovery habitat is focused on:
     • streams or other watercourses directly adjacent to occupied habitat and
     • areas that are currently suitable for Redside Dace to carry out its life processes
    

   These amendments focus habitat protections on areas that have a high likelihood of supporting Redside Dace or have a high likelihood of contributing to the species’ recovery.

   All areas currently occupied by the species will remain protected under the ESA.

2. Regulatory amendments regarding select conservation fund species and related administrative changes

   Since April 2022, the Species at Risk Conservation Fund (Fund) has provided an alternative way for beneficial actions to be undertaken (the “Fund option”) for designated conservation fund species.

   Instead of requiring individual proponents to complete beneficial actions for impacted species, proponents can pay a species conservation charge to the Fund. The Fund is administered by the Species Conservation Action Agency (Agency), which funds strategic, large-scale, and coordinated actions led by species conservation experts to support more positive outcomes for the long-term interests of conservation fund species. It is important to note that regardless of the options chosen, proponents are still required to take action to minimize impacts on species at risk and their habitats.

   Following implementation of the Fund option, there has been a change in the classification status of one conservation fund species, Barn Swallow, from threatened to special concern, by the independent committee that is responsible for assessing and classifying species at risk in Ontario. With this change, the species:

   • is no longer protected by the prohibitions in sections 9 and 10 of the ESA
   • no longer qualifies as a conservation fund species nor is its existing conditional exemption applicable
    

   We have also had an opportunity to consider the conditional exemptions for conservation fund species, particularly for Butternut, to assess whether the existing requirements continue to be appropriate.

   With these considerations in mind, we are proposing the following amendments:

   • Amend O. Reg. 829/21 (Species Conservation Charges) to remove Barn Swallow as a conservation fund species, as well as its corresponding conservation fund formulae, since its classification changed from threatened to special concern following re-assessment by COSSARO in 2021.
   • Amend O. Reg. 829/21 to expand the circumstances under which proponents would be eligible for refund of a charge to include cases where a conservation fund species is no longer protected under the ESA (e.g., Barn Swallow) due to being down-listed to a status of special concern or removed from O. Reg. 230/08 (Species at Risk in Ontario (SARO) List) following a re-assessment by the Committee on the Status of Species at Risk in Ontario (COSSARO). To be eligible for a refund under this circumstance, we propose that proponents:
     • have not started any portion of the activity for which the charge was paid
     • seek a refund from the Agency within 180 days of the SARO List amendments to reflect the species down-listing or removal
   • Amend O. Reg. 830/21 (Exemptions – Species Subject to Species Conservation Charges) to remove the conditional exemption for Barn Swallow under Part III of the regulation due to the change in the species’ classification.
   • Amend O. Reg. 830/21 to remove the 30-day waiting period between the submission of a Butternut Health Expert Report and the registration of an eligible activity that is currently required under subsection 24 (1) of the regulation. This will shorten timelines for those registering to the conditional exemption by allowing them to register and begin their eligible activities sooner, while continuing to require that trees are assessed by a butternut health expert before the start of any impactful actions.



3. Regulatory amendments to add newly listed species to existing exemptions and other administrative changes

   We are proposing to amend section 0.1 of O. Reg. 242/08 (General) so that the regulation can be applied to select species that were added to the SARO List on January 25, 2023.

   Currently, O. Reg. 242/08 references the SARO List as it existed on January 26, 2022, as the list of species to which the exemptions in that regulation may be applicable, the majority of which are exemptions subject to conditions, i.e., “conditional exemptions”. This proposal is to update that reference to refer to the SARO List as of January 25, 2023, 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 standards for the protection of species.

   By adding newly listed species to existing exemptions, proponents can engage in their proposed activities impacting recently listed species sooner, while still maintaining standards for the protection of species at risk, as they allow certain activities to proceed without the need to obtain an ESA permit or agreement. The change also supports, in some circumstances, those proponents proposing to undertake actions that may be beneficial for recently listed species at risk more quickly or allowing activities to take place in emergency circumstances.

   The following species were listed as threatened or endangered on the SARO List on January 25, 2023 to reflect the species classifications in the COSSARO's Report submitted to the Minister in January 2022:

   • Davis's Shieldback (insect) – threatened
   • Lake Chubsucker (fish) – endangered (previously listed as threatened)
   • Lesser Yellowlegs (bird) – threatened
   • Purple Wartyback (mollusc) – threatened
   • Red Knot - Tierra del Fuego / Patagonia wintering population (bird) – endangered
   • Red Knot - Southeastern USA / Gulf of Mexico / Caribbean wintering population (bird) – endangered
   • Rapids Clubtail (insect) – threatened (previously listed as endangered)
   • Reversed Haploa Moth (insect) – threatened
   • Short-eared Owl (bird) – threatened (previously listed as special concern)
   • Striped Whitelip (mollusc) – endangered
   • Suckley's Cuckoo Bumble Bee (insect) – endangered
   • Western Silvery Aster (plant) – threatened (previously listed as endangered)
    

   We are proposing to make exemptions under O. Reg. 242/08 available to proponents (as applicable) to the species noted above.

   Note that we are intending to exclude several newly listed species from this amendment – further details are available below.

   Proposed exclusions

   We conducted an analysis of the exemptions in O. Reg. 242/08 for each of the above species, using a range of factors, including:

   • the size of the species population
   • the rarity of the species in Ontario
   • 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 including consideration of whether the effects of the activity can be mitigated
    

   Through this analysis, we are proposing that all relevant provisions of the regulation would apply to each of the above species with the following exceptions:

   • Lake Chubsucker (fish) – endangered
     All relevant provisions of the regulation would apply, except:
     • Section 23.4 – Aquatic species
     • Section 23.18 – Threats to health and safety, not imminent
   • Davis’s Shieldback (insect) – threatened
     All relevant provisions of the regulation would apply, except:
     • Section 23.13 – Transition – activity ongoing when prohibitions first apply
     • Section 23.18 – Threats to health and safety, not imminent.
   • Reversed Haploa Moth (insect) – threatened
     All relevant provisions of the regulation would apply, except:
     • Section 23.13 – Transition – activity ongoing when prohibitions first apply
     • Section 23.18 – Threats to health and safety, not imminent 
   • Suckley’s Cuckoo Bumble Bee (insect) – endangered
     All relevant provisions of the regulation would apply, except:
     • Section 23.13 - Transition – activity ongoing when prohibitions first apply
     • Section 23.18 - Threats to health and safety, not imminent 
   • Striped Whitelip (mollusc) – endangered
     All relevant provisions of the regulation would apply, except:
     • Section 23.13 - Transition – activity ongoing when prohibitions first apply
     • Section 23.18 - Threats to health and safety, not imminent

   Other administrative changes

   Lastly, we are proposing to change the name of Algonquin Wolf (Canis sp.) in sections 1.1 and 23.13 of O. Reg. 242/08 to Eastern Wolf (Canis sp. cf. lycaon) to align with the common and scientific name identified on the SARO List and based on COSSARO's Report submitted to the Minister in January 2023.

4. Regulatory amendments regarding the conditional exemption for early exploration mining

   Potential amendments to include early exploration mining trails as an eligible activity

   We are proposing an amendment to the current early exploration mining conditional exemption (s. 23.10 of O. Reg. 242/08) to allow for the construction (1), re-opening (2), and use (3) of trails to support early exploration mining activities.

   Conditional exemptions streamline approvals for routine activities that have common mitigation actions with well understood requirements to reduce impacts and maintain standards for the protection of species at risk. Specifically, section 23.10 of O. Reg. 242/08 of the ESA provides conditional exemptions to proponents proposing to engage in certain early exploration mining activities (i.e., prospecting and mineral exploration) under the Mining Act that would otherwise be prohibited under the ESA.

   The exemption is subject to regulatory requirements that include:

   • registration and the preparation of and compliance with a mitigation plan
   • taking reasonable steps to restore habitats damaged or destroyed by early exploration mining activities, to the extent that it is feasible to do so, or to create/enhance habitat for the species in the same ecoregion as the habitat that was damaged or destroyed by the activity, in a manner that minimizes the overall loss of habitat for the species resulting from the activity.
    

   The proposed amendment would:

   • describe the eligible activities that are related to trails for the purposes of the exemption
   • include mandatory mitigation measures that would reduce impacts to species at risk and their habitats
    

   Criteria for early exploration mining trails

   Early Exploration Mining Trails are generally considered to be linear features (4) resulting from the removal of only enough trees and vegetation to create a pathway to access early exploration mining sites.

   To establish a set of eligibility criteria and to appropriately scope activities related to the construction, re-opening, and use of early exploration mining trails in order to minimize and mitigate impacts to species at risk and their habitats, the ministry is seeking feedback on the following, but not limited to:

   • methods for trail construction
   • the duration of trail use (e.g., only during early exploration)
   • timing of trail use (e.g., winter vs. all-season)
   • trail size (e.g., width and length)
   • eligible vehicles for trails (e.g., ATVs, snowmobiles)
   • extent of vegetation clearing
   • degree of soil compaction
   • landscapes not suitable for trails or that should be avoided
   • use of timing windows for more sensitive species (e.g., to avoid trail construction during species critical life stages such as reproduction and rearing)
   • other criteria the ministry should consider
    

   Potential impacts to species at risk and habitats

   Species at risk and their habitats are likely to be impacted by the construction, re-opening, and use of early exploration mining trails.

   We are proposing the following potential mitigation measures for species likely to be impacted. Some of the below measures may already be requirements set out in the early exploration conditional exemption.

   Caribou (Boreal population)

   • Mitigation: Avoid known or potential high-use areas (nursery areas, winter use areas, travel corridors), limit sensory disturbances.

   
   Wolverine

   • Mitigation: Avoid known den sites, limit sensory disturbances, elimination of food attractants, ensure construction and re-opening of trails occurs outside the denning season (i.e., Jan. 15 to May 31).
    

   Birds (e.g., Bank Swallow, Lesser Yellowlegs, American White Pelican, Hudsonian Godwit, Eastern Whip-poor-will, Red-headed Woodpecker, King Rail, Least Bittern, Red Knot Rufa (all subspecies), Short-eared Owl, etc.)

   • Mitigation: Minimize footprint and sensory disturbances, do not construct or re-open trails during nesting periods of species known to be in the area, cease activities if species enter the exploration site, and allow reasonable time for species to leave the site before the continuance of exploration activities.
    

   Reptiles (e.g., Blanding's Turtle, Eastern Hog-nosed Snake, Eastern Foxsnake (Georgian Bay population), Massasauga (Great Lakes – St. Lawrence Population))

   • Mitigation: Avoid known breeding sites or hibernacula, use of timing windows to avoid construction during critical life stages, cease activities if species enter the exploration site, and allow reasonable time for species to leave the site before the continuance of exploration activities, use of appropriate exclusion fencing.
    

   Bats (e.g., Eastern Small-footed Myotis, Little Brown Myotis, Northern Myotis, Tri-colored Bat)

   • Mitigation: Avoid known breeding sites or hibernacula, minimize sensory disturbances, use of timing windows to avoid construction during critical life stages, cease activities if species encounter the exploration site, and allow reasonable time for species to leave the site before the continuance of exploration activities.
    

   Other mammals (e.g., Gray Fox, Polar Bear)

   • Mitigation: Avoid known breeding or denning sites, limit sensory disturbances, use of timing windows to avoid construction during critical life stages, cease activities if species encounter the exploration site, and allow reasonable time for species to leave the site before the continuance of exploration activities.
    

   Plants (e.g., Vascular Plants, Mosses, Lichens)

   • Mitigation: Avoid the removal of individuals where possible, avoid or limit impacts to habitat where possible.
    

   (1) “Construction” refers to methods used to clear a path through a natural area. The ministry is seeking feedback on suitable “methods for trail construction”.

   (2) “Re-opening” refers to trails that may have been previously cleared and renaturalized.

   (3) “Use” means temporary use of trails. The ministry is seeking feedback on the “duration of trail use”.

   (4) Linear features refer to paths created to get from one point to the next (not always a straight path). These are typically travel corridors that are more minor than a road.

Analysis of regulatory impact

The proposal, as it relates to the habitat regulation for Redside Dace in O. Reg. 832/21, will focus habitat protections on areas most likely to support Redside Dace survival and recovery and is expected to:

• reduce some burden that would otherwise arise if the regulatory amendment was not made
• reduce costs and time savings for proponents, including businesses, municipalities and individuals

All areas currently occupied by Redside Dace will remain protected under the ESA.

The proposals to amend O. Reg. 829/21 and 830/21 to remove Barn Swallow as a conservation fund species and remove its species-specific conditional exemption will provide clarity to proponents, and others, that an ESA authorization is not required since the species was reclassified as special concern following its reassessment by COSSARO in 2021.

The proposal to amend O. Reg. 829/21 to clarify the circumstances under which a refund is available in the event that a species is down-listed to special concern or removed from the SARO List will provide certainty and fairness to proponents.

The proposed amendment to O. Reg. 830/21 to remove the 30-day waiting period between the submission of a Butternut Health Expert Report and the registration of an eligible activity to the Butternut conditional exemption will:

• shorten timelines for proponents
• allow proponents to begin their activities sooner, while continuing to ensure that trees are assessed by a butternut health expert

The proposal to amend O. Reg. 242/08 to allow the application of the exemptions in the regulation for select newly listed species would enable more proponents to register their activities, rather than seek permits or agreements from the ministry. This will:

• reduce burden for proponents seeking ESA authorizations
• improve business certainty and increase efficiency
• maintain protections for species at risk

The proposal to amend the early exploration mining conditional exemption (s. 23.10 of O. Reg. 242/08) to include trails as an eligible activity will:

• reduce burden for proponents
• enable cost savings for proponents
• shorten project timelines

None of these proposals will result in any new direct compliance costs for regulated entities.