Butternut, a member of the walnut family of trees, is listed as endangered under the ESA in Ontario Regulation 230/08 (Species at Risk in Ontario List). The greatest threat to the species is the fungal disease, Butternut canker. The General Regulation currently provides an exemption in section 5 to enable a person to remove a Butternut if a person designated by the Minister determines that a tree is infected with canker to such a degree that it does not support protection or recovery. In addition, section 5 includes certain exemptions for the removal of cultivated trees (subject to conditions) and for the nuts of Butternut.
Proponents undertaking activities that involve the removal or harm of Butternut that do not meet these criteria are currently required to apply for a permit under the ESA, typically under clause 17(2)(c) of the act (an “overall benefit” permit). In most cases where a permit has been issued, the applicant has been required to plant, tend and monitor a specified number of Butternut for every tree removed in an area suitable for growing the species.
The Ministry of Natural Resources (MNR) has reviewed overall benefit permits for Butternut and is proposing to streamline the process for removing Butternut in certain circumstances. Through the proposed amendments to the General Regulation, proponents would have the opportunity to follow the conditions set out in regulation rather than obtain a permit in certain circumstances, namely when ten (10) or less apparently healthy trees are proposed for removal or will be harmed. The regulation would require the proponent to submit a Butternut health assessment and a planting plan that requires 2 to 20 seedlings be planted for every healthy tree removed or harmed (based on the size of tree). It would also require monitoring, tending and reporting to MNR on the Butternut planted as a condition of the regulation. The regulation would require MNR to respond to a submission with 30 days of reception.
These provisions would not apply to certain trees that may support Butternut recovery (such as those that demonstrate resistance to canker) or in more complex cases with bigger impacts on the species. In such cases, the proponent would be required to seek a permit under the ESA.
The regulation would still allow for the removal of trees determined to be infected with canker to such a degree that it does not support protection or recovery, with some modifications to clarify this provision and required enhanced reporting.
The proposed changes would also provide a broad exemption from the prohibitions in 9(1)(b) (against possessing, transporting, buying selling, leasing, trading or offering to buy sell, lease or trade) in respect to Butternut. This would allow for the possession, transport, buying and selling of Butternut to increase the availability of stock for planting in the wild to assist in Butternut recovery.
Section 12 of the General Regulation provides for commercial cultivation of horticultural plants protected under the ESA. The current provision requires commercial cultivators to give notice to the Ministry within 3 months of a species being listed on the Species at Risk in Ontario List. However, the provisions do not recognize circumstances where growers acquire a species after this period has lapsed. As a result, this provision restricts the ability of growers to grow species at risk vascular plants, which is limiting the source of plants for recovery planting. MNR proposes an amendment to the regulation to address this limitation, by requiring cultivators to give notice to the District Manager of the Ministry prior to engaging in the commercial cultivation of a species. In addition, a change is proposed to provide additional time for existing cultivators to give notice to the Ministry, such that they can commercially cultivate vascular plants in the future in compliance with the act.