Regulatory changes under the Endangered Species Act to extend application of conditional exemptions to newly listed species and update the conditional exemption for the operation of wind facilities

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

We are proposing to amend Ontario Regulation 242/08 (General Regulation) made under the ESA to increase certainty and continue to streamline processes for Ontarians.

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

Summary of proposed regulatory changes

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

• Extend the application of the conditional exemptions in O. Reg. 242/08 to species listed on the Species at Risk in Ontario (SARO) List in January 2024 and January 2025
• Amend the wind facilities conditional exemption in O. Reg. 242/08 to minimize impacts of such facilities to endangered bat species, and to maintain flexibility for wind facility operators.

We are also including an administrative amendment in this posting for awareness purposes.

1. Regulatory amendments to add newly listed species to existing conditional exemptions

We are proposing to extend the application of the regulation to newly listed threatened or endangered species added to the SARO List (Ontario Regulation 230/08) in January 2024 and January 2025 by amending section 0.1 of O. Reg. 242/08. Currently, O. Reg. 242/08 only applies to endangered and threatened species listed on the SARO List as of January 26, 2022.

The ministry previously consulted on extending the application of O. Reg. 242/08 to species added to the SARO List in 2023 (ERO 019-8016). A decision on those proposed amendments has not yet been made.

Conditional exemptions streamline approvals for routine activities where there are known ways to reduce impacts to species, while requiring appropriate protections. Applying the exemptions to newly listed species allows these activities to begin without the need to seek an authorization from the ministry.

The Committee on the Status of Species at Risk in Ontario (COSSARO) is responsible for assessing and classifying species at risk. The ministry is required to reflect those classifications on the SARO List.

The SARO List must be amended by January 31, 2025, to reflect the species classifications in the COSSARO Report submitted to the Minister in January 2024. This will result in the following species being classified as endangered:

• Eastern Red Bat (mammal) – endangered
• Hoary Bat (mammal) – endangered
• Silver-haired Bat (mammal) – endangered

The SARO List was last amended on January 29, 2024, to reflect the classifications in the COSSARO Report submitted to the Minister in 2023. The following species were classified as threatened or endangered as a result of that amendment:

• Northern Oak Hairstreak (butterfly) – threatened
• Pumpkin Ash (tree) – endangered
• Skillet Clubtail (dragonfly) – threatened

Proposed exclusions

Before the proposed amendment is made, the Minister is required to consider whether the amendment is likely to jeopardize the survival of or have any other significant adverse effect on the potentially affected species. A species may also be excluded from the application of a conditional exemption if the Minister is of the view that either of these results may occur.

To assist in this analysis, the ministry considered the potential impacts of the proposed amendment to 0.1 of O. Reg. 242/08 on each of the above noted species, using a range of factors, including:

• the size of the species’ population in Ontario
• how rare the species is
• whether the species and its habitat generally overlap with areas where regulated activities occur
• whether certain types of activities are likely to harm the species

We are proposing that all relevant provisions of the regulation would apply to each of the above species with the following exceptions:

• Northern Oak Hairstreak
  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


• Pumpkin Ash (tree)
  All relevant provisions of the regulation would apply, except:
  • section 23.9 Drainage Works


• Skillet Clubtail (dragonfly)
  All relevant provisions of the regulation would apply, except:
  • section 23.12 Hydro-electric generating stations and dams
  • section 23.13 Transition – activity ongoing when prohibitions first apply
  • section 23.18 Threats to health and safety, not imminent

2. Regulatory amendments regarding the conditional exemption for the operation of wind facilities

We are proposing an amendment to the existing conditional exemption for the operation of wind facilities (section 23.20 of O. Reg. 242/08):

• to maintain flexibility for wind facility operators, and
• to minimize impacts on bat species, including the three bat species that will be added to the SARO List in 2025

Section 23.20 exempts operators from the prohibitions in the ESA as long as they can meet the conditions of the exemption. The exemption only applies to the operation of a wind facility, but not to its construction.

The existing exemption includes requirements to:

• register the activity online with the ministry
• develop a mitigation plan
• take steps to minimize adverse effects on impacted species
• conduct monitoring
• prepare monitoring reports

The requirements to minimize adverse effects on impacted species currently in section 23.20 include adjusting cut-in speeds (i.e., the wind speed at which turbines would begin operating) and to undertake periodic turbine shutdowns, as appropriate, during sensitive periods when risks to the species are the highest. It also requires measures be taken to enhance the effectiveness of these steps if they are found to be insufficient (e.g., further adjusting cut-in speeds).

We are proposing to add a new requirement to the conditional exemption that by January 31, 2026, registrants that impact bats would either:

1. Implement a new common approach to minimizing adverse effects on bat species, or,
2. Develop their own customized approach to minimize adverse effects on bat species.

The new common approach to minimize adverse effects would be the following:

• During the time period from May 15 to October 15, wind facilities impacting bat species at risk must adhere to a minimum cut-in speed of 7 meters per second (i.e., the speed at which the blades begin turning and generating power) from dusk to dawn (e.g., 7pm to 5am).

The new custom approach to minimize adverse effects would provide flexibility for operators to:

• choose to implement smart curtailment technology (e.g., to allow for variable cut-in speeds and adjustments to daily and seasonal timing windows to minimize impacts to bats when they are detected through live time acoustic monitoring), or,
• based on geographic location and site-specific details, adjust the timing windows (e.g., months of the year and time of day) in which they apply the minimum cut-in speed of 7 meters per second.

Wind facility operators choosing to pursue a custom approach to minimizing adverse effects on bat species at risk would be required to submit monitoring reports annually to the ministry for three successive years after preparing or updating their associated mitigation plan.

Existing and new operators would need to have a registration that identifies the three newly endangered bat species in order to use the conditional exemption. Beginning January 31, 2026, operators registered under the conditional exemption would be required to implement the new proposed requirements, following either the common approach or a custom approach.

Mitigation plans would need to be developed or updated to consider the newly listed endangered bats by January 31, 2026. We are also proposing to remove the requirement for Minister approval of new mitigation plans under the wind facility operation conditional exemption. The ministry would retain the ability to request mitigation plans from registrants at any time.

The ministry will consider the impact of the above proposed changes on the administrative aspects of the conditional exemption.

These new requirements are focused on adjusting wind turbine operation during the months and times of day when bats are present and most sensitive to impacts. The requirements will better protect the bat species that will be added to the SARO List in January 2025 and all existing protected bat species. They will also maintain flexibility for wind facility operators.

Maintaining protection for endangered bats is also important as they play a critical role in ecosystems. Most bats eat insects, consuming up to their body weight in insects every night. Many of these insects are harmful pests that damage crops like corn and rice. Research has shown that bats save farmers billions of dollars each year by reducing crop damage and the need for pesticides. This means bats are helping both our economy and our ecosystems.

Administrative regulatory amendments regarding the down-listing of Eastern Whip-poor-will

The following is an administrative amendment and is not subject to the public consultation requirements under EBR. We are providing this information to ensure that the public and stakeholders are kept up to date.

In January 2025, the classification status of Eastern Whip-poor-will will be amended from threatened to special concern on the SARO List in accordance with COSSARO’s report submitted to the Minister in January 2024. This is a mandatory amendment.

With this amendment, the species will no longer be protected by the prohibitions in sections 9 and 10 of the ESA. As a result, we are proposing an administrative amendment to Ontario Regulation 829/21(Species Conservation Charges) to remove references to Eastern Whip-poor-will.

Analysis of Regulatory Impact

The proposal to amend O. Reg. 242/08 to allow the application of the exemptions in the regulation for newly listed species would enable more proponents to register their activities, rather than seek permits or agreements from the ministry. The proposal to amend the wind facility operation conditional exemption (s. 23.20 of O. Reg. 242/08) would identify new specific requirements for minimizing adverse effects on bat species at risk. This will:

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