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Endangered Species Act: permit by rule going ahead

Ontario’s Ministry of Natural Resources is moving ahead to shift some Endangered Species Act permits to a “permit by rule”/ registration system, through  Ontario Regulation 176/13. This “Modernization of Approvals” initiative is modelled on the successful one already well underway in the Ministry of the Environment. It was supported by the report of the Endangered Species Act Panel, as one of its six themes.
I’m a strong supporter of the “Modernization of Approvals”/permit by rule concept: the idea that common, low risk, frequently permitted activities can be governed by a standard set of rules, instead of a bespoke permit. If the activities are well chosen and the rules are well designed, a registration/permit by rule system makes routine permits faster, more predictable and more uniform, without reducing species protection. Enforcement is essential, of course, but it should be easier to enforce standard rules than it is to enforce one-off permits bedevilled by  little variations. And reducing the number of routine permits should free up regulatory staff to focus on the more challenging applications, as has been happening at the Ministry of the Environment.

Please note that MNR is calling its approach “Rules in regulation”, instead of the more common “permit by rule”. The Ministry of Environment calls the same approach its “registry” or “EASR” system.

In a telling sign of the importance of Endangered Species Act protection, the Ministry received 10034 comments on its proposal: 9469 comments writing and 565 online. 90% were form letters, both for and against the proposal. As a result, a number of useful amendments were made to the proposal, now Ontario Regulation 176/13 (which amends O. Reg. 242/08)

Expert Panel Recommendations

Here is what the expert panel recommended:

The Ministry of Natural Resources should implement an approval continuum where a  “permit by rule” (PBR) approach is implemented for certain projects/activities, which must meet a prescribed standard set of implementation conditions instead of proceeding through the regular negotiated approvals process (Permit by Review). Projects/activities that would suit this approach are those which are common and repeated, where there is confidence in the mitigation and therefore a lower risk to the species / habitat and where acceptable implementation best management practices are followed / repeated, such as conservation projects where the purpose is habitat creation. Risk assessment criteria could be developed by MNR to determine what other types of projects/activities would be subject to this PBR standard condition approach. It is recommended that PRB will only be implemented in exceptional circumstances for a relatively small proportion of approval applications in cases where the risk to ESA species is demonstrably low.

Compliance would be enforced by focusing on self-regulation with random audits of activities, and charges being laid for non-compliance, as appropriate.

Public Comments and MNR response

Here is a summary of the public comments that were received on the concept, along with MNR’s responses:

“1. The ESA should be strengthened, but the proposal weakens the Act and would lead to a degradation of habitat; the proposal does not meet MNR’s mandate or the intent of the ESA

The regulatory amendments continue to maintain a high level of protection of species at risk and their habitat. MNR is changing the way its work is carried out to better serve those who rely on the ministry for programs and services in a way that is consistent with MNR’s mandate. There are no changes to the Act, but rather to O. Reg. 242/08, which is a regulation enabled by the current legislation. The changes are consistent with the purposes of the ESA.

Some of the changes after consultation and engagement that strengthen the protection of species at risk required by the proposal are:

• The regulation requires proponents to consider Aboriginal Traditional Knowledge (ATK) when preparing a mitigation plan, which will facilitate engagement at the community level.
• Aquatic Species (s. 23.4) Conditions in the standardized approach were expanded to provide more options for taking actions to benefit affected species.
• Ecosystem protection (s. 23.11)

Eligible proponents were restricted to legal entities such as municipalities, universities and not-for-profit groups that have among their primary objectives natural heritage conservation, ecological conservation or similar objectives. (See s. 23.11 for a full list.)
This section does not apply to activities in the following sensitive ecological community types: fen, bog, sand barren or dune, beach bar, alvar, cliff or talus.
• Newly-listed and transition species – development (s. 23.13)

species that are found on-site late in the activity process are not eligible for this provision and a permit would be required for this circumstance.

“newly-listed species” is restricted to species listed on the Species at Risk in Ontario List as an endangered or threatened species for the first time on January 24, 2013.
• Newly-listed and transition species – development (s. 23.13) and Early exploration mining (s. 23.10) Proponents are prohibited from carrying out any part of the activity in an area that is being used, or has been used at any time in the previous three years, by woodland caribou (forest-dwelling boreal population) to carry out a life process related to reproduction, including rearing.
• Pits and quarries (s. 23.14) The time period in which to complete a mitigation plan when a species first appears on a site was reduced from three to two years.
• Safe harbour habitat (s. 23.16) The “safe harbour plan” concept was removed. The regulation now only allows eligible safe harbour habitat (i.e. temporary habitat for species at risk, that will be removed at a later date) to be created or enhanced in accordance with a permit or agreement issued by or entered into with the Minister. .
• Species protection, recovery activities (s. 23.17) An animal care protocol is required for activities involving handling of certain types of species at risk, in order to minimize potential adverse effects on the species.
• Threats to health and safety, not imminent (s. 23.18)

While comments received, including the ESA Panel recommendations, supported the concept of streamlining approvals for health and safety activities, some concern was expressed that the language in the proposal was too broad, allowing too many activities to be eligible for the amendment. The ministry changed the wording from “is unacceptable under the circumstance” to “is likely to have serious consequences in the short or long term if the activity is not carried out.” in order to scope the activities and added sub categories of activities to further scope what activities would be eligible.
Eligibility for activities related to the maintenance, repair, removal, replacement, decommissioning or upgrade of an existing structure or infrastructure was restricted such that there can be no: increase in the area occupied by the structure or infrastructure (except in relation to culverts), change in its location or use/function of the infrastructure.
The removal and decommissioning of structures was added to the list of eligible activity types to reflect that in some cases repair may not be possible or that a safer course of action may be to remove or decommission an unsound structure or infrastructure.
Many large or complex projects now require a mitigation plan (e.g., removal or replacement of an entire structure or infrastructure, or decommissioning of a dam).
Activities related to a drainage work to which s. 23.9 (Drainage works) of the regulation applies are not eligible for s. 23.18
• A number of species are excluded from specific sections of the regulation due to the potential risk the activities present to these particular species.

2. Administrative efficiencies are not addressing the needs of species at risk (SAR) but reflect economic needs of industry, and MNR budget cuts; it is not realistic to expect industry to follow rules in regulation without MNR oversight.

The administrative changes to the regulation (Trapping – incidental catch s. 23.19, Possession for educational purposes, etc. s. 23.15, and Commercial cultivation of vascular plants, etc. s. 12) do not alter species protections but rather help avoid duplication and integrate a number of approvals with other planning processes in place within MNR.

Under the “rules-in-regulation” model put in place by these regulatory amendments, proponents of activities that would otherwise have prohibited impacts on species at risk or their habitats must satisfy requirements set out in the regulation. In most case proponents are required to register their activities with the Ministry and take a number of steps to minimize adverse effects on protected species or habitat. MNR will continue to conduct education and outreach activities, monitoring, auditing, and where necessary enforcement actions for the purpose of protecting and recovering species in Ontario.

3. Need increased efficiencies and flexibility for industry (e.g., there should be a window of two years before mitigation of adverse effects is required, health and safety proposal should not have any excluded species)

The Ministry is providing greater flexibility to industry by proceeding with a “rules-in–regulation” regulatory model for eligible activities in a way that continues to protect species at risk. The Ministry is focusing its efforts and resources on responding to requests for ESA permits for activities not covered in this regulation that are likely to have greater potential to impact species at risk.

4. The Crown Forest Sustainability Act (CFSA) already provides for needs of SAR; the forest sector is required to continuously update their management practices to be consistent with provincial recovery strategies developed under the ESA; the forestry sector should be exempt from the ESA based on unnecessary duplication with CFSA.

The new provision dealing with forest operations sets out the conditions that persons conducting forest operations impacting species at risk or their habitats must comply with if not acting under an ESA permit. This provision will apply to forest operations conducted before July 1, 2018 (5 years), during which time the Ministry will establish a panel to review the linkages between the ESA and the CFSA. The panel will include members from Aboriginal communities, along with stakeholders from the forest industry, municipalities and environmental organizations.

5. Recommendation to charge fees for permits as a means to offset budget cuts and avoid exemptions

Implementing a full cost recovery system for permitting is under consideration, but is out of scope for the current regulatory amendments.

6. General concern that registration and “rules-in-regulation” are intended to replace permitting; new SAR on sites should be addressed through overall benefit permits.

Where appropriate, MNR is shifting from a “review and approval” model to a registration and “rules–in-regulation” model. The rules set out in the regulation are comparable to permit conditions and include requirements such as: registering with MNR; taking reasonable steps to minimize adverse effects on the species; developing mitigation plans using expert advice and the best available information; monitoring and reporting on the effectiveness of mitigation measures and beneficial actions (where applicable); and, reporting of sightings to MNR. Some activities are eligible only if linked to existing instruments or approvals. In some instances, higher risk activities, species, community types or sensitive time periods for species have been excluded from the applicability of the regulation.

Permits will continue to be required where an activity is not eligible for one of the provisions of the regulation, or the requirements of the regulation cannot be met.

In addition, overall benefit permits would still be required for the development or construction phases of many activities that impact species at risk or their habitat. For existing operations, newly found species must be protected as soon as they are found by avoiding and minimizing adverse effects, followed by the development and implementation of a longer term mitigation plan.

7. Registration must be mandatory for all proposals; registration will not provide enough information for MNR to monitor when exemptions are being used, or the cumulative effects resulting from activities occurring under the exemptions.

All of the new regulatory provisions require the proponent to comply with rules laid out in the regulation. All but two of the eighteen provisions require registration; activities, locations and species will be recorded in the registration. The Ministry will be aware of activities that are occurring under the regulation, where they are taking place on the landscape, and which species are affected; this will facilitate analysis of cumulative effects.

Two of the regulatory provisions (Commercial cultivation of vascular plants, etc. s. 12 and Forest operations in Crown forests s. 22.1) do not require the proponent to register with the Ministry before undertaking a specified type of activity. The amendments to s. 12 (Commercial cultivation of vascular plants etc.) leave that section largely unchanged, though cultivators will no longer be required to give notice to MNR.

Forest operations carried out under approved forest management plans would not require an ESA permit provided the proponent complies with the rules set out in regulation. MNR is responsible for approving forest management plans under the Crown Forest Sustainability Act. The regulatory scheme in place under that Act already includes requirements to address impacts to species at risk; it also requires reports that will assist the Ministry with assessing the cumulative disturbance of forestry operations. Additional conditions in the regulation include direction consistent with the Caribou Conservation Plan related to forest management planning.

8. Comments and questions about consultation, the amount of information in the first posting and the makeup of the ESA Panel

This proposal notice about the ESA regulatory amendments was originally posted on the Environmental Registry (ER) for a 45 day comment period on December 5, 2013. The comment period for this notice was subsequently extended, and the notice was updated with a ten page document containing additional information on January 24, 2013, for a total of 82 days. MNR continued to consult with stakeholders during the development of the regulation.

The ESA Panel was developed to deliver advice to the ministry on improving the implementation of the ESA and represented a range of interests and expertise.

9. Concerns about the scope of “transition” for activities that are already approved or planned.

• To be eligible for the “transition” provision (Newly-listed and transition species – development s. 23.13) there are a number of conditions that must be followed for activities that were approved or planned prior to dates specified in the regulation. These include conditions that require proponents to protect individual members of species at risk carrying out critical life processes such as reproduction and hibernation. Conditions also require proponents to take steps to avoid or minimize adverse effects on species or habitat; monitor and prepare a report on the effectiveness of these actions annually; develop and implement a mitigation plan for affected species at risk, carrying out habitat restoration or enhancement activities; and report observations of species identified to MNR.

• The ER notice dated December 5, 2012 included a number of potential sectors that might be included in the “transition provision”. The document that was added on January 24, 2013 providing additional detail included a list of specific activities; other sectors that felt they might be eligible for this provision were invited to provide comments to MNR. Activities that have been added to the “transition” provision as a result of comments received by the Ministry are:

Constructing drainage works under an agreement filed under s. 2 (2) of the Drainage Act, or in respect of which an engineer’s report was adopted under s. 45 (1) of the Drainage Act
Carrying out a transit project, as defined in s. 1 (1) of Ontario Regulation 231/08 (Transit Projects and Metrolinx Undertakings) made under the Environmental Assessment Act, in respect of which the Minister has given a notice to proceed with the transit project under O. Reg. 231/08
Construction of Solar Facilities less than three or four hectares in area (An activity described in s. 3 of O. Reg. 350/12 for the purposes of s. 20.21 of the Environmental Protection Act)
Advanced exploration carried out under Part VII of the Mining Act provided certain criteria are met (including written receipt of a closure plan by the Director of Mine Rehabilitation)
Mine production carried out under Part VII of the Mining Act provided certain criteria are met (including written receipt of a closure plan by the Director of Mine Rehabilitation)
Rehabilitation of a mine hazard/Voluntary rehabilitation of a mine hazard provided certain criteria are met
• Clarification was requested regarding eligibility under an existing transition regulatory provision for development and infrastructure affecting Redside Dace. Clarification regarding eligibility under s. 23.1 has been added to the regulation.

10. In response to requests by two industry sectors, the Ministry added two provisions to apply to the operation of wind facilities, and early mineral exploration. They are:

• Wind facilities (s. 23.20 ) This section applies to a person who is engaged in the operation of a wind facility within the meaning of Ontario Regulation 359/09 (Renewable Energy Approvals under Part V.0.1 of the Act) made under the Environmental Protection Act.

• Early exploration mining (s. 23.10) This section applies with respect to certain mining activities that constitute early exploration as defined in s. 1 (1) of Ontario Regulation 308/12 (Exploration Plans and Exploration Permits) made under the Mining Act.

Clarification

Butternut (s. 23.7) The ER proposal states that individuals would register their activities affecting Butternut with MNR at least 30 days prior to removal of any retainable Butternut tree. However, rather than registering ahead of time, individuals must submit a Butternut Health Assessor’s report to the appropriate MNR District Manager at least 30 days before completing the registration and the start of the proposed activity that will impact Butternut.”

Improving the speed and predictability of Endangered Species Act permits has reportedly been a major request of the business community. Now that they are getting some of that, will enforcement be beefed up to ensure that the new system works?

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