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Regulation Proposal Notice:   EBR Registry Number:   011-7696
Title:
Proposed approaches to the implementation of the Endangered Species Act which could include regulatory amendments to authorize activities to occur subject to conditions set out in regulation consistent with MNR’s Modernization of Approvals.
 
Ministry:
Ministry of Natural Resources
Date Proposal loaded to the Registry:
December 05, 2012
 
 

This notice was originally published December 5, 2012. It was republished January 17, 2013 to extend the comment period to January 25, 2013.

It was republished January 24, 2013 to provide a link to additional details about the proposed approaches to the implementation of the Endangered Species Act. The original 47 day comment period has been extended by 36 days.

Submissions may be made between December 05, 2012 and February 25, 2013.

 
Keyword(s):   Compliance  |  Electricity  |  Fish and Wildlife  |  Health  |  Land  |  Mining  |  Timber Management  |  Water  |  Land use planning  |  Forests  |  Conservation  |  Aggregates
The comment period for this proposal is now over.
 
Description of Regulation:

This notice was updated on January 24, 2013. Further detail is available concerning this regulation proposal. It is available at http://www.mnr.gov.on.ca/groups/lr/@mnr/@species/documents/document/stdprod_102744.pdf  

The Ministry of Natural Resources (MNR) has heard from many sectors, organizations and individuals about challenges in implementing the Endangered Species Act (ESA) and has brought together a stakeholder working group to identify common issues and potential solutions. MNR is also seeking input from the public and other interested stakeholders on approaches to improve the implementation of the ESA. This proposal provides suggested approaches that derive from MNR’s experience on the ground and could include amendments to Ontario Regulation 242/08, under the Endangered Species Act. The following proposals would balance the protection and recovery of species at risk while either,

  • helping existing or planned activities proceed without additional approvals where new species or habitat protection comes about after their approval,
  • enabling a streamlined alternative to authorizing new activities that benefit species,
  • enabling activities necessary for human health or safety, and/ or
  • achieving administrative efficiencies.

Any proposed regulatory approaches would provide up-front conditions for individuals and businesses to follow, which would allow for more efficient and sustainable implementation of the ESA.

Transition for Activities that are Already Approved or Planned

The Ministry is proposing potential policy and regulatory approaches to streamline the implementation of the ESA through the establishment of rules in the form of a regulation . These suggested approaches derive from MNR’s experience on the ground to date. The approaches may also include registration with MNR, if one or more of the following transition situations arise:

  • a new species is listed on the Species At Risk in Ontario List and it is affected by the already approved or planned activity;
  • a new species is found at the site and will be affected by the already approved or planned activity; or,
  • new habitat protection applies to the area where the activity will occur.

The Ministry is considering approaches, which could include regulatory amendments that consider the protection of species at risk while providing certainty to a range of sectors, including forestry, renewable energy, development, mineral exploration and aggregates. These changes would preserve socio-economic vitality relating to both existing and planned activities on the landscape. These proposals would allow existing or planned activities which have received approval under other applicable legislation to proceed subject to conditions in regulations while balancing the protection and recovery of species at risk.

Streamlined Approaches for New Activities to Benefit Species

Through experience in administering the ESA, MNR has identified certain activities that follow standard procedures, have predictable effects, and require common approaches for minimizing adverse effects and achieving benefits for species. For these types of activities, shifting from an application and review approach to an approach where individuals or businesses would follow rules aimed at benefiting species at risk established in the form of a regulation, which may include registration with MNR, provides a more efficient method for delivery of government services.

Protection or Recovery: Activities that will assist in the protection or recovery of species at risk or address broader conservation initiatives, such as the creation, restoration and management of wetland habitat, could proceed without an ESA authorization provided individuals or businesses follow rules established in regulation, which may include registration with MNR and are designed to minimize adverse effects to species at risk.

Standardized Condition Approach: For certain types of activities, where overall benefit permit conditions have been well established, activities could proceed without an ESA approval, provided that individuals or businesses follow rules established in regulation, which may include registration with MNR, that are designed to benefit the species and to draw on the experience MNR has had with standard overall benefit permit conditions.

Proposed examples of this Standardized Condition Approach would be as follows:

  • Removal of 10 or fewer Butternut trees with benefits provided through additional Butternut planting;
  • Repair, maintenance, or removal of built structures with benefits provided by wetland creation or habitat enhancement for Barn Swallow, and the uncapping of chimneys for Chimney Swifts;
  • Repair, maintenance, or removal of water crossings or other in-water work with aquatic species protection and benefits provided through the improvement of water flow and water temperature and a reduction in sedimentation and pollution; and,
  • Road improvement activities with the protection of reptiles and amphibians and benefits provided through the installation of fencing and improved passage.

Safe Harbour: The proposed amendment would provide an exemption which could include rules established in regulation, and may include registration with MNR, for persons who benefit species by creating or improving species at risk habitat on private land. In the future, they would be allowed to return the land to its previous condition, without requiring an authorization under the ESA (e.g. if a farmer provides habitat for grassland birds and later wants to use the field to grow a different crop, there would be the flexibility to do so). This is intended to encourage the creation or improvement of habitat for species at risk by private landowners without increased regulatory burden.

Human Health or Safety

Activities that are necessary to protect human health or safety (e.g. repairing structural damage to a bridge) could proceed without an ESA approval, provided persons follow rules established in regulation that would be designed to minimize adverse effects. Among the activities this proposed amendment would apply to is the maintenance of built structures, that if not maintained would pose a risk to human health or safety or would prevent delivery of essential services.

Administrative Efficiencies

The following proposed amendments have been identified to improve efficiency in the implementation of the ESA and Ontario Regulation 242/08:

Incidental Trapping of Species at Risk: The proposed amendment would shift from an application and review approach to an approach where trappers would follow rules established in regulation for possession of species at risk that were incidentally trapped.

Possession of Species at Risk by Accredited Organizations: The proposed amendment would shift from an application and review approach to an approach where accredited individuals, businesses or organizations would follow rules established in regulation permitting possession of species at risk and species at risk specimens.

Commercial Cultivation of Vascular Plants: The proposed amendment would shift from a paper-based notification that is provided to MNR of activities related to the commercial cultivation of vascular plants to one where rules would be established in regulation to govern commercial cultivation, which may include registration with the MNR.

MNR and Modernization of Approvals
The proposed approaches to regulatory amendments described above are amongst the first in a series of proposed amendments to specific approvals issued by MNR that are being put forward for public comment. These proposals are consistent with the Modernization of Approvals policy paper (EBR Registry Number: 011-6751) that was posted by the Ministry for comment. This paper and the proposed approaches to regulatory amendments are part of MNR’s plan to modernize our business where we can, focus more closely on our core mandate, and review our programs and services to become more efficient and sustainable.

Purpose of Regulation:

The purpose of the proposal is to provide for a more efficient implementation of the Endangered Species Act through proposed approaches that include regulatory amendments to Ontario Regulation 242/08.

Other Information:

This notice was updated on January 24, 2013. Further detail is available concerning this regulation proposal. It is available at http://www.mnr.gov.on.ca/groups/lr/@mnr/@species/documents/document/stdprod_102744.pdf

The web links on the right side of this notice provide additional information.

Public Consultation:

This proposal was posted for a 82 day public review and comment period starting December 05, 2012. Comments were to be received by February 25, 2013.

All comments received during the comment period are being considered as part of the decision-making process by the Ministry.

Please Note: All comments and submissions received have become part of the public record.

Other Public Consultation Opportunities:

Additional consultation and outreach on these proposed approaches to regulatory amendments will occur through the Ministry’s stakeholder working group and with interested parties concurrent to this regulation proposal.

As well, MNR plans to consult on additional proposed regulatory amendments in 2013.
Comments on this proposal may be submitted using the “Submit Comment” button on the right side of this notice, or directed to the following email account: esa.permits.agreements@ontario.ca.

Regulatory Impact Statement:

In developing these proposals, the Ministry has considered any potential risks to natural resources, public health and safety, economic values, and society in general, to propose alternatives to the ways in which approvals are currently issued that will continue to protect and sustainably manage natural resources. Based on these considerations, the Ministry has determined that:

The anticipated environmental risks and consequences associated with this proposal are likely neutral. The proposed changes generally include conditions to minimize adverse effects on species at risk or provide opportunities to benefit species at risk.

The anticipated social risks and consequences associated with this proposal are likely positive. The proposed changes will provide better customer service and transparency on conditions required to undertake activities in and around species at risk or their habitats.

The anticipated economic risks and consequences associated with this proposal are likely positive. The proposed changes will enhance efficiency, increase the predictability of regulatory requirements and enable cost savings to individuals, businesses and government.

The proposed changes to approvals issued under the Endangered Species Act described above, as well as those MNR is concurrently proposing under the Public Lands Act and the Fish and Wildlife Conservation Act will help deliver services better by:
• reducing the number of approvals that clients must obtain from MNR for activities for which there is minimal or no impact to natural resources or public safety; and
• reducing the time and effort required to obtain approvals.

 
Contact:

Krista Adams
Senior Permits & Agreements Specialist
Ministry of Natural Resources
Policy Division
Species at Risk Branch
Permits and Agreements Section
300 Water Street
Floor 2
Peterborough Ontario
K9J8M5
Phone: (416) 326-1672
Fax: (705) 755-5483

Additional Information:

The documents linked below are provided for the purposes of enhancing public consultation.
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