Protective Measures
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 In early 2010, Ottawa’s Regional Group was nearing the end of the approvals process for a residential development on a parcel of land within the city boundaries. While the project was in the Draft Plan approval stage, the bobolink, a medium-sized songbird that nests in grasslands such as hayfields, was ‘uplifted’ to protected status under the Ministry of Natural Resources’ (MNR) Endangered Species Act (ESA). A City of Ottawa staff member looked at an aerial photo of the property and concluded it could be a potential bobolink habitat. The Regional Group’s staff biologist investigated and found six of the birds on the land. The city required that an “overall benefit permit” be obtained from the MNR before approval could be granted.

That set off a long, confusing and difficult process that stalled development until the issue was resolved in April 2012. “We had 160 acres and there were two or three acres where the birds were,” explains Josh Kardish, development manager for the Regional Group. “No one knew what that meant or how to deal with it. There was a lot of ambiguity.”

Initially, it was suggested that 140 acres of the site constituted habitat and the MNR wanted the Regional Group to contribute two acres of protected habitat for every acre of potential bobolink habitat to acquire a “net benefit” permit. “If we had 140 acres (of possible habitat), we’d have had to find 280 acres somewhere else that was protected and hand it off,” says Kardish. “What was and wasn’t acceptable replacement land wasn’t clear, where the land would be, how much money it would cost to manage it. Habitat is dynamic and changes all the time. If you let it go wild, the grass disappears and it’s not attractive to the birds anymore.”

Eventually, it was agreed that 80 acres constituted potential habitat. The Ontario Home Builders’ Association worked closely with the Ministry of Natural Resources to develop an appropriate transition regulation that respected previously earned approvals: For every acre of habitat, the Regional Group would supply 1/10th of an acre of habitat at a different location. The Regional Group financially secured the suitable eight acres through a local land trust.

The ESA has created confusion and frustration for the residential construction industry over the past half-dozen years, as well as for the agricultural, mining, aggregate and forestry industries, not to mention municipalities planning road and water main construction, or the provincial government planning major hospital or infrastructure expansion. All must obtain MNR approval if they are dealing with any of the 150-plus protected plants or animals on the list. 

While no one disputes that it’s important to protect endangered species and habitat—and they are willing to do so—it’s the process that has been the biggest challenge. “OHBA continues to support a balanced approach to the environmental, social and economic goals of the province,” says Mike Collins-Williams, Director of Policy, OHBA. “With respect to the Endangered Species Act, we believe that habitat regulation should work in conjunction with existing legislation and complement other important provincial goals and objectives. We have strongly advocated for the province to implement appropriate transition measures for new endangered or threatened species listings that respect previously earned public approvals and land designations.”

The building industry and other stakeholders hope new ESA regulations (announced on May 31, 2013) will streamline the process and provide greater business certainty through transition measures.

Before 2005, the province didn’t play a major role in land-use planning, although some protections were in place for the Niagara Escarpment and Oak Ridges Moraine. That changed after 2006 with the Greenbelt and Growth Plan for the Greater Golden Horseshoe. Furthermore, local planning decisions had to be consistent with the new Provincial Policy Statement. Legislation enacted in 2007 was intended to deal with a number of endangered species, including the redside dace, a 12-centimetre minnow found in streams in the GTA. Most of Canada’s redside dace populations are found in streams in the Golden Horseshoe Region, and urban development poses one of the greatest threats to its habitat. The bobolink, eastern meadowlark, barn swallow and the Jefferson salamander are other protected species that builders and developers commonly deal with.

When the legislation came in, there were no grandfathering exemptions or “transitions” provided for projects that were already well along in the approval process, notes Mark Jepp, Paradise Homes’ director of land development, and that left the housing industry scrambling with regard to managing the legislation in their day-to-day business. “It was more than just the redside dace,” Jepp adds. “If you had any of them or a number of other species on your property, you were now entangled in a very complicated exercise with the MNR in determining the extent of the species, what protection was necessary and how much additional land was needed for their protection.

“In my opinion, while the legislation was well-intended, the MNR was not ready in any practical way to withstand the volume of applications that it inevitably got,” says Jepp. “They did not have the staff or resources needed to manage the deluge of applications.”

Another factor is COSSARO (Committee on the Status of Species at Risk in Ontario), a group of academics and scientists that meet twice a year to determine what species will be uplifted to protected status as either ‘endangered’ or ‘threatened.’ Every time a new species was added to the list, it didn’t matter how far a project was through the approvals process—if it was suspected that the species was on a site, things could not proceed until further investigation and a permit from the MNR was obtained. 

“You couldn’t plan for this. You may have a public approval and shovel-ready development and have spent millions to develop it, then what happens if a new species of grass is uplifted and becomes protected?” says Kardish.

“There were no transition arrangements available to the industry and you may have obtained and spent considerable time, money and effort obtaining approvals under the Planning Act, only to have those approvals undermined by requirements to get an ‘end of process’ approval under the Endangered Species Act,” adds Jepp. 

Sometimes, it was just easier for builders to write a cheque than protest if they didn’t believe a site had endangered habitat or species. “There was some suggestion that one of our projects had bobolink habitat, but we didn’t agree and provided documentation,” says Jepp. The project had been zoned and had draft approval. Paradise provided $300,000 to help fund a conservation authority purchase in Halton. “The reality is that we had to do that or we would have been stuck,” says Jepp.

“It’s a very powerful piece of legislation and wasn’t meant to be used in conjunction with other legislation,” agrees Kardish. When last year’s provincial budget was tabled in March, 2012, the government responded to some OHBA concerns and outlined plans to transform key parts of the ESA to improve the implementation of the legislation and streamline the processes. OHBA proposed to have a stronger landscape focus and shift from a species-by-species approach to a risk-based ecosystem approach as well as recommending transition policies for projects that had already obtained public planning approvals.

The Ministry of Natural Resources struck an Endangered Species Act Stakeholder Panel in November 2012, consisting of members who reflected a broad range of interests and expertise, including OHBA representatives. “OHBA is working with government and other stakeholders to improve the implementation of the Endangered Species Act so that it is clear, fair and timely and will contribute to the protection of endangered species, while also supporting job creation and a healthy business environment,” says Collins-Williams, a member of the stakeholder panel and of the Ontario Bobolink Roundtable. 

Bobolinks, eastern meadowlarks, chimney swifts and barn swallows are all birds that prefer a manmade habitat, says Collins-Williams. Bobolinks and meadowlarks nest in farmers’ fields where crops are grown, while the swifts and swallows nest in buildings such as barns or vacant houses. Ironically, if hayfields where the birds nest are left to grow wild or if crops are changed, the birds no longer use it as a habitat. Farmers have been given a three-year exemption from the rules and could still harvest their crops, but that expires next year and Bette Jean Crews, a farmer and member of the Bobolink Roundtable, says farmers need to know by fall to determine what crops to plant or if to plant at all.

The stakeholder panel came up with 29 recommendations for the MNR, some of which were incorporated into the new ESA regulations passed this spring. The new rules were announced one month prior to 65 additional species receiving general habitat protection and also include streamlining provisions for some species already on the list. 

 Key concerns of the building industry included: 

1. Transition policies at the Draft Plan of Subdivision stage for the 65 species receiving habitat protection in June 2013 are very late in the approvals process, although the industry is supportive of the government providing certainty and respecting existing approvals.

2. Streamlining to provide greater certainty, as the negotiation-based system was dysfunctional.

3. A balance between environmental, social and economic priorities as demographic growth is a reality that has to be appropriately planned for.

4. And the ESA should be considered in the context of broader legislative framework, including the Planning Act, Provincial Policy Statement, Greenbelt and Growth Plans, Metrolinx Transportation Plan and other provincial plans.

On May 31, the MNR made improvements to the implementation of the Endangered Species Act (ESA) in response to feedback received from the public, stakeholders and organizations, including OHBA. The simplified rules include industry-specific transition provisions and a rules-in-regulation approach, which includes registering with the MNR that applies a risk-based approach to move away from the detailed review and approval of site-specific activities. You can learn more by visiting mnr.gov.on.ca and look up the new regulation : O. Reg. 176/13.

Chloe Stuart, the Manager of Permits and Agreements for the Species at Risk Branch at the MNR, says that through the proposed changes (that have since been passed), a risk-based approach will be applied and some projects that pose lower risk could proceed without having to go through the permit process. Those projects would have to be registered with the MNR, documents maintained and plans monitored. “We will do normal auditing to check in and see how the rules are followed,” says Stuart. 

For instance, if a builder found that chimney swifts were nesting in a vacant home or building slated for demolition on a site, it would no longer require a permit. The same would apply if bobolinks were found to be nesting in a field pegged for development. Builders and developers (or farmers, mining companies, gravel pit operators, etc.) will still have to wait for the birds to leave and must provide a “net benefit,” such as providing habitat in a different location, funding a research project or restoring habitat, such as removing debris or planting natural vegetation.

Permits will also no longer be required for activities necessary for human health and safety, such as repairs to bridges or roads, but the work will have to be registered. Projects that pose greater risk to species or habitats would still require a permit, says Stuart. 

The regulatory changes will provide a transition for projects that are already well through the approval process; builders and others will still have to register their projects, follow the rules and provide protection, but won’t have to halt work and go through the permit process.

Another problem, such as in the Regional Group’s case, was determining how much area constitutes habitat. “That’s certainly challenging, as there are many different species,” says Stuart. “We are looking at providing an online tool box that would provide habitat description and survey protocols that will help to interpret the regulations.”

The legislation will still stand on its own and not operate in context with the Planning Act or other acts or plans, she says.

Here is Kardish’s and Jepp’s advice to builders on how to deal with the ESA—before and after the rules change:

• Ensure that specialists such as biologists, aquatic specialists or environmental scientists are a fundamental part of your team early in the process.

• Do spot checks in the field so you know what’s on your land. Be aware that you may have to make some compromises with the MNR.

• Be prepared to provide a “net benefit,” including habitat somewhere else, funding a research project or restoring habitat on your property. 

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