What do Ontario’s new Species at Risk Regulations mean for your development project?

By Olivia Robinson, M.Env.Sc.

If your development project requires Species at Risk (SAR) habitat removal, then you need to learn how Ontario’s new changes to the Endangered Species Act (ESA) will impact you.

As of December 9, 2021, the Ministry of Environment, Conservation and Parks (MECP) has updated several Ontario regulations, including those associated with the following threatened and/or endangered species: Bobolink, Eastern Meadowlark, Barn Swallow, and Butternut under Ontario Regulation (O.Reg.) 830/21. The new regulations provide updated guidance on how to compensate for SAR habitat removals for these specific species; all other regulations for other SAR remain unchanged. If habitat removal for one of these four species is required to facilitate the proposed development, certain conditional exemptions are now, or soon will be, available to you. These conditional exemptions allow you to either (1) replace habitat to compensate for the habitat that is proposed for removal, or (2) pay into the province’s new Species at Risk Conservation Fund (“SAR Fund”).

So, which option is best for your project? Let’s break them both down.

Ontario’s new changes to the Endangered Species Act will impact how you compensate for the removal of the habitat of four species, including the Barn Swallow.

Under previous regulations, developers were required to replicate SAR habitat proposed for removal at more than a 1:1 ratio, meaning if your development required the removal of 1 hectare of Bobolink habitat, you had to commit to create and/or restore more than 1 hectare to replace the habitat lost. Developers could either create these habitats on their own landholdings, or form partnerships with an Environmental NGO or a local Conservation Authority to develop a Habitat Management Plan, which outlined the details of the removal, the location and size of the compensation habitat, and the plan to implement and monitor that created/restored habitat.

Under the new regulations, the habitat compensation ratio for Barn Swallow, Bobolink and Eastern Meadowlark has increased to 1:1.5. The higher compensation ratio means it will cost you more to create/restore lost habitat than it did in the past. The registration process with the MECP works the same way as previous registrations (e.g., through the Notice of Activity Forms), with the obvious benefit of additional habitat restoration to mitigate negative impacts to SAR and SAR habitat at a larger scale. For Butternut, the updated conditional exemption increases the number of trees that can be removed without requiring a permit.

The second option of paying into the SAR Fund is new and will come into effect on April 29, 2022. While the mechanisms of determining the payment amounts have been identified in O.Reg. 829/21, we expect that O.Reg. 830/21 will be amended on that day to allow contribution to the SAR Fund as a means of providing the beneficial actions for the four species identified in that regulation: Barn Swallow, Bobolink, Eastern Meadowlark, and Butternut. As there are presently no conditional exemptions for the two other conservation fund species (Eastern Whip-poor-will and Blanding’s Turtle), the use of the SAR fund for these species may only be available through the permitting process.

The SAR Fund will give you the option to forgo habitat restoration at the new, higher compensation ratio. Put simply, you pay into the SAR Fund and remove the habitat from your property without having to create/restore and then monitor the compensation habitat. The Species Conservation Action Agency, a new subcommittee, will then distribute these funds towards the protection and recovery of these conservation fund species through a targeted and coordinated effort at a Provincial scale. It may sound like the more straightforward solution: write a cheque and then remove the SAR habitat (under appropriate timing windows). But keep in mind that the calculations required for this new exemption are complex and based on multiple components, including location and size of proposed habitat removals, and type of species impacted, as well as the beneficial action multiplier, land and administrative costs. For example, land costs prescribed within the O. Reg. for the City of Kingston in Eastern Ontario are $2,625/ha. Meanwhile, land costs prescribed for Halton Region in the Greater Toronto Area are $40,750/ha – and this is just one component of the calculation!

Knowing all of this, how do we determine what SAR habitat option is right for your development project? There is no set rule since so much depends on the specific site and species being impacted. To determine what is the appropriate option for your site, you will need to engage with an environmental consultant who can guide you through the details and is knowledgeable on these new regulation changes. That’s where my team and I can provide expertise. We are already having those discussions with MECP to understand how the SAR Fund will be rolled out, and we continue to complete registrations following the original process. We can help you determine which option is right for you, your project, and the environment.

One more thing to keep in mind: the MECP has yet to provide details on exactly how the SAR Fund registration process will work. We know that the Fund will become available on April 29, 2022. There are, however, many unknowns about how the formal registration will occur, whether the formulae will be subject to HST taxes etc. Habitat removals that occur prior to that date must continue to follow the typical registration process with the updated beneficial action multiplier, as they are not eligible for payment into the SAR Fund at this time. Any removals that happen on or after April 29 will have the option of payment into the SAR fund, if it involves one of the four conservation fund species. But remember that you must have a permit or completed the registration requirements under the relevant exemption for your project prior to commencing any work that would impact a SAR species or their habitat.

We are carefully monitoring these regulations and new information as it becomes available from the MECP. I’d be glad to help you explore which option is best for you and your site-specific criteria. Contact me to explore your best option.

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