O. Reg. 242/08: GENERAL, Endangered Species Act, 2007, S.O. 2007, c. 6
Endangered Species Act, 2007
ONTARIO REGULATION 242/08
GENERAL
Historical version for the period June 24, 2011 to June 30, 2011.
Last amendment: O. Reg. 294/11.
This is the English version of a bilingual regulation.
CONTENTS
Definitions | |
Notice | |
American ginseng | |
Atlantic salmon (Great Lakes population) | |
Aurora trout | |
Bobolink | |
Butternut | |
Butternut | |
Eastern flowering dogwood | |
Northern bobwhite | |
Woodland caribou (forest-dwelling boreal population) — cast antlers | |
Protection of health or safety, etc. | |
Protection of property | |
Escape or unauthorized release from captivity | |
Hydro-electric generating stations | |
Commercial cultivation of vascular plants, etc. | |
Fishing — incidental catch | |
Trapping — incidental catch | |
Veterinarians | |
Rehabilitation or care — wildlife custodians | |
Rehabilitation or care — transfer to Ministry employees | |
Zoos | |
Falconry | |
Possession prior to listing, etc. | |
Tanning or taxidermy | |
Transition — pits and quarries | |
Transition — development and infrastructure | |
Development and infrastructure — redside dace | |
American badger habitat | |
Barn owl habitat | |
Eastern flowering dogwood habitat | |
Eastern prairie fringed-orchid habitat | |
Engelmann’s quillwort habitat | |
Few-flowered club-rush or bashful bulrush habitat | |
Jefferson salamander habitat | |
Ogden’s pondweed habitat | |
Peregrine falcon habitat | |
Redside dace habitat | |
Western silvery aster habitat | |
Wood turtle habitat |
Definitions
“game wildlife” has the same meaning as in the Fish and Wildlife Conservation Act, 1997; (“gibier sauvage”)
“specially protected wildlife” has the same meaning as in the Fish and Wildlife Conservation Act, 1997; (“animal sauvage spécialement protégé”)
“wildlife custodian” has the same meaning as in section 44 of the Fish and Wildlife Conservation Act, 1997. (“gardien d’animaux sauvages”) O. Reg. 242/08, s. 1.
Note: On July 1, 2011, the Regulation is amended by adding the following section:
Notice
1.1 Any notice that is required to be given under this Regulation is deemed to be received,
(a) if it is delivered personally, on the day on which the notice is delivered; and
(b) if it is sent to the person by registered mail, on the fifth business day after the day of mailing. O. Reg. 293/11, s. 1.
See: O. Reg. 293/11, ss. 1, 7 (1).
Exemptions Applicable to Specific Species
American ginseng
2. (1) Subsection 9 (1) of the Act does not apply to field-cultivated American ginseng if,
(a) it is cultivated on land in respect of which licence fees are payable to the Ontario Ginseng Growers’ Association under Ontario Regulation 340/01 (Designation — Ontario Ginseng Growers’ Association) made under the Farm Products Marketing Act;
(b) it is cultivated without the use of any material from American ginseng, such as seeds, roots or cuttings, that was taken from the wild in Ontario on or after June 30, 2008; and
(c) it is cultivated using structures that produce artificial shade. O. Reg. 242/08, s. 2 (1).
(2) Clause 9 (1) (b) of the Act does not apply until June 30, 2009 with respect to,
(a) living or dead American ginseng that was taken from the wild in Ontario before June 30, 2008;
(b) any part of a living or dead American ginseng that was taken from the wild in Ontario before June 30, 2008; or
(c) anything derived from living or dead American ginseng that was taken from the wild in Ontario before June 30, 2008. O. Reg. 242/08, s. 2 (2); O. Reg. 197/11, s. 1.
Atlantic salmon (Great Lakes population)
3. (1) Clause 9 (1) (a) of the Act does not apply to Atlantic salmon (Great Lakes population) that are caught by a person who is sport fishing in accordance with the Ontario Fishery Regulations, 2007 made under the Fisheries Act (Canada). O. Reg. 242/08, s. 3 (1).
(2) Clause 9 (1) (b) of the Act does not apply to the possession or transport of a fish if, pursuant to subsection (1), clause 9 (1) (a) of the Act did not apply to the catching of the fish. O. Reg. 242/08, s. 3 (2).
(3) Subsection 9 (1) of the Act does not apply to Atlantic salmon (Great Lakes population) that are cultured under the authority of and in accordance with an aquaculture licence under the Fish and Wildlife Conservation Act, 1997. O. Reg. 242/08, s. 3 (3).
Aurora trout
4. (1) Clause 9 (1) (a) of the Act does not apply to aurora trout that are caught by a person who is sport fishing in accordance with the Ontario Fishery Regulations, 2007 made under the Fisheries Act (Canada). O. Reg. 242/08, s. 4 (1).
(2) Clause 9 (1) (b) of the Act does not apply to the possession or transport of a fish if, pursuant to subsection (1), clause 9 (1) (a) of the Act did not apply to the catching of the fish. O. Reg. 242/08, s. 4 (2).
Bobolink
4.1 (1) Clause 9 (1) (a) of the Act does not apply to a person who kills, harms or harasses a bobolink while carrying out an agricultural operation. O. Reg. 197/11, s. 2 (1).
(2) Clause 9 (1) (b) of the Act does not apply to the possession or transport of a bobolink if, pursuant to subsection (1), clause 9 (1) (a) did not apply to the killing or harming of the bobolink. O. Reg. 197/11, s. 2 (1).
(3) Subsection 10 (1) of the Act does not apply to a person who damages or destroys the habitat of a bobolink while carrying out an agricultural operation if the area of habitat damaged or destroyed remains suitable for an agricultural operation. O. Reg. 197/11, s. 2 (1).
(4) In this section,
“agricultural operation” means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward and includes,
(a) draining, irrigating or cultivating land,
(b) growing, producing or raising farm animals,
(c) the production of agricultural crops, including greenhouse crops, maple syrup, mushrooms, nursery stock, tobacco, trees and turf grass,
(d) the production of eggs, cream and milk,
(e) the operation of agricultural machinery and equipment,
(f) ground and aerial spraying,
(g) the management of materials containing nutrients for farm purposes,
(h) the processing by a farmer of the products produced primarily from the farmer’s agricultural operation, and
(i) activities that are a necessary but ancillary part of an agricultural operation such as the use of transport vehicles for the purposes of the agricultural operation. O. Reg. 197/11, s. 2 (1).
Note: On October 31, 2014, section 4.1 is revoked. See: O. Reg. 197/11, ss. 2 (2), 4 (2).
Butternut
5. (1) Clause 9 (1) (a) of the Act does not apply to a person who kills a butternut tree that occurred naturally if, in the opinion of a person or member of a class of persons designated by the Minister, the butternut tree is affected by butternut canker to such a degree that it is not necessary to retain the tree at its current location to support the protection or recovery of butternut. O. Reg. 242/08, s. 5 (1).
(2) Clause 9 (1) (a) of the Act does not apply to a person who kills a butternut tree if,
(a) the tree did not occur naturally but was cultivated;
(b) the cultivation of the tree was not required by a condition of a permit issued under section 17 of the Act; and
(c) the tree is killed by or at the direction of the owner or occupier of the land on which the tree is located. O. Reg. 242/08, s. 5 (2).
(3) Clause 9 (1) (b) of the Act does not apply with respect to a butternut tree if, pursuant to subsection (1) or (2), clause 9 (1) (a) of the Act did not apply to the killing of the tree. O. Reg. 242/08, s. 5 (3).
(4) Clauses 9 (1) (a) and (b) of the Act do not apply to the taking, possession or transport of a butternut tree for the purpose of transplanting it, if,
(a) the tree did not occur naturally but was cultivated; and
(b) the cultivation of the tree was not required by a condition of a permit issued under section 17 of the Act. O. Reg. 242/08, s. 5 (4).
(5) Clause 9 (1) (b) of the Act does not apply to nuts from a butternut tree. O. Reg. 242/08, s. 5 (5).
Note: On July 1, 2011, section 5 is revoked and the following substituted:
Butternut
“butternut health assessor” means a person or member of a class of persons designated by the Minister for the purpose of assessing whether butternut trees are affected by butternut canker; (“évaluateur de la santé des noyers cendrés”)
“planting plan” means a planting plan described in paragraph 2 of subsection (5); (“plan de plantation”)
“seed zone” means a seed zone identified in the document entitled “Southern Ontario Tree Seed Zones” that is published by the Ministry of Natural Resources, dated May 2011 and available to the public at the Ministry’s district offices, at the Ministry’s corporate library in Peterborough or on the Ministry’s website. (“zone de semences”) O. Reg. 294/11, s. 1.
(2) Clause 9 (1) (a) of the Act does not apply to a person who kills, harms or takes a butternut tree if,
(a) a written report that meets the requirements of subsection (3) has been prepared by a butternut health assessor in respect of that tree;
(b) the person has given the butternut health assessor’s report to the district manager of the Ministry for the district in which the tree is located; and
(c) the conditions set out in subsection (4) or (5) are satisfied. O. Reg. 294/11, s. 1.
(3) A butternut health assessor’s report shall, for each butternut tree that a person is proposing to kill, harm or take,
(a) identify the precise location of the tree;
(b) set out the diameter of the tree at breast height or indicate that the tree is shorter than breast height;
(c) state whether, in the opinion of the butternut health assessor, the tree is affected by butternut canker; and
(d) if, in the opinion of the butternut health assessor, the tree is affected by butternut canker, describe the extent to which the tree is affected by butternut canker. O. Reg. 294/11, s. 1.
(4) If, in the butternut health assessor’s report, the assessor gives the opinion that one or more of the trees that is proposed to be killed, harmed or taken is affected by butternut canker to such a degree that retaining the trees at their current location would not support the protection or recovery of butternut, the person is exempt from clause 9 (1) (a) of the Act for the purpose of killing, harming or taking those trees if one of the two following conditions is satisfied:
1. After receiving the report, the district manager gives notice to the person in writing that he or she has approved the butternut health assessor’s report.
2. Thirty days or more elapse after the butternut health assessor’s report is submitted to the district manager and no notice approving or refusing approval of the report is received by the person from the district manager. O. Reg. 294/11, s. 1.
(5) If, in the butternut health assessor’s report, the assessor gives the opinion that one or more of the trees that is proposed to be killed, harmed or taken is not affected by butternut canker or that the degree of butternut canker affecting the trees that are proposed to be killed, harmed or taken is less than the degree described in subsection (4), the person is exempt from clause 9 (1) (a) of the Act for the purpose of killing, harming or taking those trees if all of the following conditions are satisfied:
1. The person may not kill, harm or take more than 10 of the butternut trees identified in the butternut health assessor’s report as trees that are not affected by butternut canker or that are affected to a degree that is less than described in subsection (4).
2. A written planting plan must be prepared by or on behalf of the person that,
i. identifies a maximum of 10 trees among the butternut trees identified in the butternut health assessor’s report that are proposed to be killed, harmed or taken,
ii. identifies the reasons why the butternut trees are proposed to be killed, harmed or taken,
iii. for each tree proposed to be killed or taken, provides for the planting of,
A. at least two butternut seedlings, if the tree proposed to be killed or taken is described in the butternut health assessor’s report as shorter than breast height or less than three centimetres in diameter at breast height,
B. at least five butternut seedlings, if the tree proposed to be killed or taken is described in the butternut health assessor’s report as at least three centimetres but less than 15 centimetres in diameter at breast height, and
C. at least 20 butternut seedlings, if the tree proposed to be killed or taken is described in the butternut health assessor’s report as 15 centimetres or greater in diameter at breast height,
iv. for each tree proposed to be harmed, provides for the planting of,
A. at least one butternut seedling, if the tree proposed to be harmed is described in the butternut health assessor’s report as shorter than breast height or less than three centimetres in diameter at breast height,
B. at least three butternut seedlings, if the tree proposed to be harmed is described in the butternut health assessor’s report as at least three centimetres but less than 15 centimetres in diameter at breast height, and
C. at least 10 butternut seedlings, if the tree proposed to be harmed is described in the butternut health assessor’s report as 15 centimetres or greater in diameter at breast height,
v. identifies the area and the address, if any, where the butternut seedlings will be planted and describes the physical characteristics of the planting site and the manner and timeframe in which they will be planted,
vi. provides for the planting of butternut seedlings to replace any seedlings planted under the planting plan that may die, and
vii. identifies the manner in which the butternut seedlings will be tended and monitored and the length of time for which they will be tended and monitored in that manner.
3. The person must give the planting plan to the district manager of the Ministry for the district in which the trees are located, along with the butternut health assessor’s report, and either of the following conditions must be satisfied:
i. the district manager notifies the person in writing that he or she has approved both the butternut health assessor’s report and the planting plan, or
ii. thirty days have elapsed since the butternut health assessor’s report and the planting plan were submitted to the district manager and no notice approving or refusing approval of the report and plan has been received by the person from the district manager.
4. An amendment may be made to the planting plan but must be made in writing and be approved by the district manager of the Ministry and must meet the requirements for a planting plan described in paragraph 2.
5. The trees that are killed or taken must be identified in the planting plan as trees proposed to be killed or taken, and the trees that are harmed must be identified in the planting plan as trees proposed to be harmed.
6. The person must plant the number of butternut seedlings specified in the planting plan in accordance with the planting plan.
7. Every tree planted under the planting plan must have been grown from seed which originated from the seed zone in which it is planted.
8. Every tree planted under the planting plan must be tended and monitored in accordance with the planting plan.
9. Not later than December 1 of each year in which the person monitors butternut trees under the planting plan, the person must give the district manager a report that sets out the following information for each butternut tree planted under the planting plan:
i. The date the tree was planted.
ii. The dates the tree was monitored during that year.
iii. The dates the tree was tended under the planting plan during that year and a description of the tending activities that were undertaken during that year.
iv. The health status of the tree, expressed as good, poor or dead.
v. Whether the tree shows evidence of butternut canker and, if so, a description of the extent to which the tree is affected by butternut canker. O. Reg. 294/11, s. 1.
(6) A district manager of the Ministry may refuse to approve a butternut health assessor’s report referred to in clause (2) (a) if,
(a) the assessment was not carried out in accordance with the practices and requirements for such assessments set out in the document entitled “Butternut Assessment Guidelines: Assessment of Butternut Tree Health for the Purposes of the Endangered Species Act, 2007”, that is published by the Ministry of Natural Resources, dated May 2011, as amended from time to time, and available to the public on the Ministry’s website; or
(b) the district manager or another employee of the Ministry, for the purpose of examining the trees to which the report relates, requested permission to enter the property where the trees are located at a reasonable time, but permission was not given. O. Reg. 294/11, s. 1.
(7) A district manager of the Ministry may refuse to approve a planting plan referred to in paragraph 2 of subsection (5) or an amendment to a planting plan referred to in paragraph 4 of subsection (5) if,
(a) the district manager is of the opinion that,
(i) one or more of the butternut trees proposed to be killed, harmed or taken according to the plan or amendment,
(A) demonstrates resistance to butternut canker,
(B) may be a source of genetic material that could demonstrate resistance to butternut canker or support butternut recovery, or
(C) may be significant to determining other sources of resistance to butternut canker,
(ii) the planting plan or amendment does not provide for butternut seedlings to be planted in an area that provides suitable growing conditions for butternut, or
(iii) the planting plan or amendment does not provide for butternut seedlings to be planted or tended in a suitable manner or timeframe;
(b) the district manager has previously approved another planting plan and,
(i) the two planting plans relate to the same area or to areas that are situated in close proximity to one another, and
(ii) the reasons for which the person is proposing to kill, harm or take butternut trees in both plans are the same or substantially the same; or
(c) the district manager or another employee of the Ministry, for the purpose of examining the property where the planting plan provides for seedlings to be planted, requested permission to enter the property at a reasonable time, but permission was not given. O. Reg. 294/11, s. 1.
(8) Despite the requirements of subsections (2), (4) and (5), clause 9 (1) (a) of the Act does not apply to a person who kills, harms or takes a butternut tree if the tree did not occur naturally but was cultivated and,
(a) the cultivation of the tree was not required by a condition of a permit issued under section 17 of the Act;
(b) the tree was not planted under a planting plan for the purpose of obtaining an exemption under that subsection; and
(c) the tree is killed by or at the direction of the owner or occupier of the land on which the tree is located. O. Reg. 294/11, s. 1.
(9) Clause 9 (1) (b) of the Act does not apply to butternut trees and section 12 of this Regulation does not apply to the commercial cultivation of butternut trees. O. Reg. 294/11, s. 1.
(10) Subsection 9 (1) of the Act does not apply to nuts from a butternut tree. O. Reg. 294/11, s. 1.
See: O. Reg. 294/11, ss. 1, 3.
5.1 Revoked: O. Reg. 242/08, s. 5.1 (2).
Note: On July 1, 2011, the Regulation is amended by adding the following section:
Eastern flowering dogwood
5.1 Subsection 10 (1) of the Act does not apply to a person who damages or destroys an area that is the habitat of the eastern flowering dogwood, if the only eastern flowering dogwood that exists in the area is a cultivar and was not,
(a) cultivated for purposes of disease resistance; or
(b) derived from eastern flowering dogwood indigenous to Ontario or any state of the United States of America with which Ontario shares a border. O. Reg. 293/11, s. 2.
See: O. Reg. 293/11, ss. 2, 7 (1).
Northern bobwhite
6. (1) Clause 9 (1) (a) of the Act does not apply to a person who is hunting northern bobwhite on a game bird hunting preserve within the meaning of the Fish and Wildlife Conservation Act, 1997 if the person is hunting in accordance with that Act and the regulations made under that Act. O. Reg. 242/08, s. 6 (1).
(2) Clause 9 (1) (b) of the Act does not apply to the possession or transport of a northern bobwhite by a person who, pursuant to subsection (1), lawfully kills the northern bobwhite. O. Reg. 242/08, s. 6 (2).
(3) Clause 9 (1) (a) and subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to a person in respect of northern bobwhite if the person is acting under the authority of and in accordance with,
(a) a licence to own or operate a game bird hunting preserve under the Fish and Wildlife Conservation Act, 1997; or
(b) a licence to keep game birds in captivity under the Fish and Wildlife Conservation Act, 1997. O. Reg. 242/08, s. 6 (3).
(4) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to a person who transports anything that, pursuant to subsection (3), the person is entitled to possess. O. Reg. 242/08, s. 6 (4).
Woodland caribou (forest-dwelling boreal population) — cast antlers
7. Clause 9 (1) (b) of the Act does not apply to antlers that dropped naturally from living woodland caribou (forest-dwelling boreal population). O. Reg. 242/08, s. 7.
Protection of health or safety, etc.
8. (1) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is acting to protect a human being or animal if the person reasonably believes that there is an imminent risk to the health or safety of the human being or animal. O. Reg. 242/08, s. 8 (1).
(2) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a police officer, firefighter or other person if,
(a) he or she is exercising powers or performing duties under an Act of Ontario or Canada or is acting under the direction of a person who is exercising powers or performing duties under an Act of Ontario or Canada;
(b) he or she is engaged in an activity that is intended to,
(i) protect the health or safety of any human being,
(ii) search for a living or dead human being,
(iii) prevent or reduce significant damage to property or the environment, or
(iv) enforce the law; and
(c) in the circumstances, it is not reasonable to comply with clause 9 (1) (a) or subsection 10 (1) of the Act. O. Reg. 242/08, s. 8 (2).
Protection of property
9. (1) If all of the criteria set out in subsection (2) are met,
(a) clause 9 (1) (a) of the Act does not apply to the harassing, capturing or taking of an animal;
(b) subclause 9 (1) (b) (i) of the Act does not apply to the possession or transport of a living animal that is captured or taken pursuant to clause (a); and
(c) subsection 10 (1) of the Act does not apply to the habitat of an animal. O. Reg. 242/08, s. 9 (1).
(2) Subsection (1) applies if all of the following criteria are met:
1. There are reasonable grounds to believe that the animal is damaging property.
2. The animal is harassed, captured, taken, possessed or transported, or its habitat is damaged or destroyed, by or at the direction of the owner or occupier of the land on which the property is located.
3. The owner or occupier has entered into an agreement with the Minister respecting action that may be taken to protect the property.
4. The agreement specifically provides that it applies to the species that the animal belongs to.
5. The agreement states that,
i. the Minister is of the opinion that the agreement requires the owner or occupier to take reasonable steps to minimize adverse effects on the species, and
ii. the Minister is of the opinion that the action described in the agreement will not jeopardize the survival or recovery of the species in Ontario.
6. The agreement is in force.
7. The owner or occupier has complied with the agreement. O. Reg. 242/08, s. 9 (2).
(3) Without limiting the generality of paragraph 3 of subsection (2), an agreement under that paragraph may require the owner or occupier to use the services of a person who is engaged in the business of removing nuisance animals, a person who holds a trapping licence under the Fish and Wildlife Conservation Act, 1997 or any other person described in the agreement. O. Reg. 242/08, s. 9 (3).
Escape or unauthorized release from captivity
10. (1) Clause 9 (1) (a) of the Act does not apply to a person who is complying with clause 46 (3) (b) of the Fish and Wildlife Conservation Act, 1997 with respect to game wildlife or specially protected wildlife. O. Reg. 242/08, s. 10 (1).
(2) Clause 9 (1) (b) of the Act does not apply to the possession or transport, by a person who is complying with clause 46 (3) (b) of the Fish and Wildlife Conservation Act, 1997, of the wildlife referred to in that clause. O. Reg. 242/08, s. 10 (2).
Hydro-electric generating stations
11. (1) With respect to a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is operating a hydro-electric generating station if all of the following criteria are met:
1. The person who operates the station has entered into an agreement with the Minister.
2. The agreement specifically provides that it applies to the species.
3. The agreement states that,
i. the Minister is of the opinion that the agreement requires the person who operates the station to take reasonable steps to minimize adverse effects on the species,
ii. the Minister is of the opinion that, if the agreement is complied with, the operation of the station will not jeopardize the survival or recovery of the species in Ontario, and
iii. the Minister is of the opinion that the agreement does not conflict with the obligation of the Minister to ensure the implementation of any action under subsection 11 (9) of the Act.
4. The agreement provides for monitoring the effects of the operation of the station on the species.
5. The agreement is in force.
6. The person who operates the station has complied with the agreement. O. Reg. 242/08, s. 11 (1).
(2) Despite subsection (1), with respect to a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is operating a hydro-electric generating station described in subsection (3) until the third anniversary of the later of the following dates:
1. The date the species is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species.
2. The earliest date the species existed at the station. O. Reg. 242/08, s. 11 (2); O. Reg. 197/11, s. 3.
(3) Subsection (2) applies to a hydro-electric generating station if,
(a) construction of the station began before the later of the dates referred to in paragraphs 1 and 2 of subsection (2); or
(b) all approvals required to begin construction of the station were obtained before the later of the dates referred to in paragraphs 1 and 2 of subsection (2). O. Reg. 242/08, s. 11 (3).
(4) For the purpose of subsection (3), construction is deemed to have begun,
(a) on the date on which the first contract was awarded for carrying out part or all of the construction, if any contracts were awarded for that purpose; and
(b) on the date on which the construction started, if no contracts were awarded for carrying out part or all of the construction. O. Reg. 242/08, s. 11 (4).
(5) Subsection (2) ceases to apply to a person with respect to a species if the person enters into an agreement with the Minister and the agreement has the characteristics described in paragraphs 2, 3 and 4 of subsection (1). O. Reg. 242/08, s. 11 (5).
(6) Subsection (2) does not apply on or after June 30, 2009 with respect to American eels at the R. H. Saunders Station on the St. Lawrence River near Cornwall. O. Reg. 242/08, s. 11 (6).
(7) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to the possession or transport of a member of a species if,
(a) pursuant to subsection (1), clause 9 (1) (a) of the Act did not apply with respect to the member of the species; and
(b) the agreement referred to in subsection (1) is in force and the person who operates the station has complied with the agreement. O. Reg. 242/08, s. 11 (7).
(8) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to the possession or transport of a member of a species if, pursuant to subsection (2), clause 9 (1) (a) of the Act did not apply with respect to the member of the species. O. Reg. 242/08, s. 11 (8).
Commercial cultivation of vascular plants, etc.
12. (1) Clauses 9 (1) (a) and (b) of the Act do not apply in respect of a vascular plant species to a person who is engaged in the commercial cultivation of that species, if,
(a) the person cultivates the species without the use of any material from the species, such as seeds, roots or cuttings, that was taken from the wild in Ontario on or after the date the species was listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species;
(b) the person is not engaged in cultivating the species in the wild in Ontario;
(c) the person is not engaged in cultivating the species in a manner that is likely to spread disease to, or compromise the genetic integrity of, wild populations of the species; and
Note: On July 1, 2011, clause (c) is amended by striking out “and” at the end. See: O. Reg. 294/11, ss. 2 (1), 3.
(d) not later than three months after the species is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, the person gives the district manager of the Ministry written notice of,
(i) the person’s name, address, telephone number and e-mail address,
(ii) the species that the person is engaged in cultivating and the cultivar, if any, that the person is engaged in cultivating,
(iii) the source of the genetic material for the species that the person is engaged in cultivating, and
(iv) the location where the person is engaged in cultivating the species. O. Reg. 242/08, s. 12 (1).
Note: On July 1, 2011, clause (d) is revoked and the following substituted:
(d) not later than the date specified in subsection (1.1), the person gives the district manager of the Ministry written notice of,
(i) the person’s name, address, telephone number and e-mail address,
(ii) the species that the person intends to cultivate or is engaged in cultivating and the cultivar, if any, that the person intends to cultivate or is engaged in cultivating,
(iii) the source of the genetic material for the species that the person intends to cultivate or is engaged in cultivating, and
(iv) the location where the person intends to cultivate or is engaged in cultivating the species; and
(e) the person promptly gives the district manager of the Ministry written notice of any change to the information referred to in clause (d).
See: O. Reg. 294/11, ss. 2 (1), 3.
Note: On July 1, 2011, section 12 is amended by adding the following subsection:
(1.1) The date referred to in clause (1) (d) is,
(a) the date the person begins commercial cultivation of the species, if the species was listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species before that date; or
(b) in any other case, the later of,
(i) the second anniversary of the date the species is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, and
(ii) July 1, 2013. O. Reg. 294/11, s. 2 (2).
See: O. Reg. 294/11, ss. 2 (2), 3.
(2) Clause 9 (1) (b) of the Act does not apply to,
(a) the purchase, sale, lease or trade by any person, or the offer by any person to buy, sell, lease or trade,
(i) a living or dead plant that was cultivated pursuant to subsection (1),
(ii) any part of a living or dead plant that was cultivated pursuant to subsection (1), or
(iii) anything derived from a living or dead plant that was cultivated pursuant to subsection (1); or
(b) the possession or transport by any person of anything that the person acquired pursuant to clause (a). O. Reg. 242/08, s. 12 (2).
(3) Clause (2) (b) does not apply to the possession or transport of anything for the purpose of growing a member of the species in the wild in Ontario. O. Reg. 242/08, s. 12 (3).
Fishing — incidental catch
13. (1) Clause 9 (1) (a) of the Act does not apply to a person who incidentally catches a fish or other animal that belongs to a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, if,
(a) the person is fishing under the authority of,
(i) a licence under the Fish and Wildlife Conservation Act, 1997,
(ii) a licence under the Ontario Fishery Regulations, 2007 made under the Fisheries Act (Canada), or
(iii) a licence under the Aboriginal Communal Fishing Licences Regulations made under the Fisheries Act (Canada);
(b) the person is fishing in accordance with the licence;
(c) the person is fishing in accordance with,
(i) the Ontario Fishery Regulations, 2007 made under the Fisheries Act (Canada), in the case of a person fishing under the authority of a licence referred to in subclause (a) (i) or (ii), or
(ii) the Ontario Fishery Regulations, 2007 and the Aboriginal Communal Fishing Licences Regulations made under the Fisheries Act (Canada), in the case of a person fishing under the authority of a licence referred to in subclause (a) (iii); and
(d) subject to clause (b),
(i) the incidentally caught fish or other animal is immediately returned to the waters from which it is caught, and
(ii) if the incidentally caught fish or other animal is alive, it is released in a manner that causes the least harm to the fish. O. Reg. 242/08, s. 13 (1).
(2) In the case of an incidentally caught fish, clause (1) (d) applies whether or not section 12 of the Ontario Fishery Regulations, 2007 applies to the fish. O. Reg. 242/08, s. 13 (2).
(3) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to the possession or transport of a fish or other animal if,
(a) pursuant to subsection (1), clause 9 (1) (a) of the Act did not apply to the catching of the fish or other animal; and
(b) the fish or other animal was not required to be returned to the waters from which it was caught. O. Reg. 242/08, s. 13 (3).
Trapping — incidental catch
14. (1) Clause 9 (1) (a) of the Act does not apply to a person who incidentally traps an animal that belongs to a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, if,
(a) the person is trapping under the authority of and in accordance with a trapping licence under the Fish and Wildlife Conservation Act, 1997;
(b) the person is trapping in accordance with Ontario Regulation 667/98 (Trapping) made under the Fish and Wildlife Conservation Act, 1997;
(c) the person took steps to avoid trapping members of the species that the incidentally trapped animal belongs to;
(d) the person reports the incidental trapping to the district manager of the Ministry within seven days; and
(e) the incidentally trapped animal,
(i) is immediately released in a manner that causes it the least harm, if the animal is alive when it is found and has a reasonable chance of survival in the wild, or
(ii) is killed in a humane manner, if the animal is alive when it is found and does not have a reasonable chance of survival in the wild; and
(f) the incidentally trapped animal is surrendered to the district manager of the Ministry within seven days after the report referred to in clause (d) is made, or within such longer period as may be authorized by the district manager, if the animal is dead when it is found or is killed under subclause (e) (ii). O. Reg. 242/08, s. 14 (1).
(2) Clause 9 (1) (b) of the Act does not apply to the possession or transport of a dead animal for the purpose of surrendering it to the district manager of the Ministry under clause (1) (f). O. Reg. 242/08, s. 14 (2).
(3) Clause (1) (f) does not apply if the district manager of the Ministry is of the opinion that not requiring the dead animal to be surrendered would not increase any risk to any living member of the species that the animal belongs to. O. Reg. 242/08, s. 14 (3).
(4) In reaching the opinion referred to in subsection (3), the district manager of the Ministry shall consider the following matters:
1. Whether the person who incidentally trapped the animal has been convicted of any offence under the Endangered Species Act, 2007 or any offence in respect of trapping under the Fish and Wildlife Conservation Act, 1997.
2. The number of other occasions in the previous five years where reports were provided under clause (1) (d) by the person who incidentally trapped the animal.
3. The steps that the person who incidentally trapped the animal took to avoid trapping members of the species that the animal belongs to.
4. Other matters that the district manager of the Ministry considers relevant. O. Reg. 242/08, s. 14 (4).
(5) Clause 9 (1) (b) of the Act does not apply to the possession or transport of a dead animal by any person if, pursuant to subsection (3), the animal is not required to be surrendered to the district manager of the Ministry. O. Reg. 242/08, s. 14 (5).
Veterinarians
15. (1) Subclause 9 (1) (b) (i) of the Act does not apply to the possession or transport of an animal by a member of the College of Veterinarians of Ontario for the purpose of providing treatment to the animal. O. Reg. 242/08, s. 15 (1).
(2) Clause 9 (1) (a) of the Act does not apply to the killing of an animal by a member of the College of Veterinarians of Ontario, if the member is of the opinion that the animal should be euthanized. O. Reg. 242/08, s. 15 (2).
(3) Clause 9 (1) (b) of the Act does not apply to the possession or transport of an animal by any person, if the person possesses the animal for less than 24 hours for the purpose of transporting it to a member of the College of Veterinarians of Ontario for treatment. O. Reg. 242/08, s. 15 (3).
Rehabilitation or care — wildlife custodians
16. (1) Subclause 9 (1) (b) (i) of the Act does not apply to the possession or transport of game wildlife or specially protected wildlife by a wildlife custodian, if the wildlife custodian is authorized to keep the wildlife in captivity under section 44 of the Fish and Wildlife Conservation Act, 1997. O. Reg. 242/08, s. 16 (1).
(2) Clause 9 (1) (a) of the Act does not apply to the capturing or taking of game wildlife or specially protected wildlife by a wildlife custodian for the purpose of rehabilitating or caring for it, if the wildlife custodian is authorized to keep it in captivity under section 44 of the Fish and Wildlife Conservation Act, 1997. O. Reg. 242/08, s. 16 (2).
(3) Subclause 9 (1) (b) (i) of the Act does not apply to the possession and transport of game wildlife or specially protected wildlife by any person if the person possesses it for less than 24 hours for the purpose of transporting it, for the purpose of rehabilitation or care, to a wildlife custodian who is authorized to keep it in captivity under section 44 of the Fish and Wildlife Conservation Act, 1997. O. Reg. 242/08, s. 16 (3).
(4) Clause 9 (1) (a) of the Act does not apply to the killing of game wildlife or specially protected wildlife by a wildlife custodian, if the wildlife custodian is authorized to kill it under section 44 of the Fish and Wildlife Conservation Act, 1997. O. Reg. 242/08, s. 16 (4).
Rehabilitation or care — transfer to Ministry employees
17. Subclause 9 (1) (b) (i) of the Act does not apply to the possession and transport by any person of an animal that belongs to a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, if the person possesses the animal for less than 24 hours for the purpose of transporting it, for the purpose of rehabilitation or care, to a person employed in the Ministry. O. Reg. 242/08, s. 17.
Zoos
18. (1) Subject to subsection (2), with respect to any species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to a person acting under the authority of and in accordance with a licence to keep specially protected and game wildlife in a zoo under the Fish and Wildlife Conservation Act, 1997. O. Reg. 242/08, s. 18 (1).
(2) Subsection (1) does not authorize the purchase, sale, lease or trade of, or the offer to buy, sell, lease or trade,
(a) a dead member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species; or
(b) any part of a dead member of a species referred to in clause (a). O. Reg. 242/08, s. 18 (2).
(3) Subsection (2) does not prevent the purchase, sale, lease or trade of gametes, or the offer to buy, sell, lease or trade gametes. O. Reg. 242/08, s. 18 (3).
(4) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to a person who transports anything that, pursuant to subsection (1), the person is entitled to possess. O. Reg. 242/08, s. 18 (4).
(5) Clause 9 (1) (a) of the Act does not apply to the killing of an animal by an employee of a zoo if,
(a) the zoo possesses the animal under the authority of a licence to keep specially protected and game wildlife in a zoo under the Fish and Wildlife Conservation Act, 1997;
(b) the employee is of the opinion that the animal should be euthanized; and
(c) it is not reasonable in the circumstances to obtain the services of a member of the College of Veterinarians of Ontario to kill the animal. O. Reg. 242/08, s. 18 (5).
Falconry
19. (1) Subclause 9 (1) (b) (i) of the Act does not apply to a person in respect of a live falconry bird within the meaning of Part III of Ontario Regulation 668/98 (Wildlife in Captivity) made under the Fish and Wildlife Conservation Act, 1997, if,
(a) the person is acting under the authority of and in accordance with a general falconry licence, commercial falconry licence or apprentice falconry licence issued under that Act; and
(b) the person is acting in accordance with Ontario Regulation 668/98 (Wildlife in Captivity) made under the Fish and Wildlife Conservation Act, 1997. O. Reg. 242/08, s. 19 (1).
(2) If, pursuant to subsection (1), a person is entitled to possess a live falconry bird, clause 9 (1) (b) of the Act does not apply to the person with respect to the transport of the bird. O. Reg. 242/08, s. 19 (2).
Possession prior to listing, etc.
20. (1) With respect to any species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, clause 9 (1) (b) of the Act does not apply in the following circumstances to the possession of anything described in subclause 9 (1) (b) (i), (ii) or (iii) of the Act:
1. The person who possesses the thing was lawfully in possession of the thing immediately before the species was first listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species.
2. The person who possesses the thing lawfully acquired it from a person who was entitled to possess it pursuant to paragraph 1 or this paragraph. O. Reg. 242/08, s. 20 (1).
(2) Clause 9 (1) (b) of the Act does not apply to the transport of a thing by any person if, pursuant to subsection (1), the person is entitled to possess it. O. Reg. 242/08, s. 20 (2).
(3) Subclause 9 (1) (b) (iii) of the Act does not apply to the purchase, sale, lease or trade of any artwork, jewellery, furniture or other crafted thing, or to the offer to purchase, sell, lease or trade any artwork, jewellery, furniture or other crafted thing, if,
(a) pursuant to subsection (1), a person is entitled to possess the artwork, jewellery, furniture or other crafted thing; and
(b) the market value of the artwork, jewellery, furniture or other crafted thing is primarily attributable to factors other than the fact that it is derived from a living or dead animal, plant or other organism. O. Reg. 242/08, s. 20 (3).
(4) Subsection (3) does not apply to anything that has been treated, stuffed or mounted, in whole or in part, by a taxidermist. O. Reg. 242/08, s. 20 (4).
Tanning or taxidermy
21. Clause 9 (1) (b) of the Act does not apply to the possession or transport by a tanner or taxidermist of a dead animal that, pursuant to this Regulation, a person is entitled to possess, if the person gives the dead animal to the tanner or taxidermist for the purpose of tanning, plucking, treating, stuffing or mounting it. O. Reg. 242/08, s. 21.
Transition — pits and quarries
22. (1) With respect to a species listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is operating a pit or quarry under the authority of a licence, wayside permit or aggregate permit under the Aggregate Resources Act, if,
(a) the land that is subject to the licence, wayside permit or aggregate permit was, on June 30, 2008, subject to a licence, wayside permit or aggregate permit under the Aggregate Resources Act; and
(b) the person has entered into an agreement with the Minister that complies with subsection (3), the agreement is in force and the person has complied with the agreement. O. Reg. 242/08, s. 22 (1).
(2) With respect to a species listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is operating a pit or quarry on land described in Schedule 4 to Ontario Regulation 244/97 (General) made under the Aggregate Resources Act if,
(a) an application was made to the Superior Court of Justice before June 30, 2008 under subsection 12.1 (3) of the Aggregate Resources Act with respect to the land on which the pit or quarry is operated and,
(i) the application has not been finally determined, or
(ii) the application has been finally determined, a judgment has been issued declaring that no zoning by-law prohibits the site from being used for the making, establishment or operation of pits and quarries and,
(A) a licence has not yet been issued to the person under the Aggregate Resources Act, or
(B) a licence has been issued to the person under the Aggregate Resources Act and the person is operating the pit or quarry under the authority of the licence; and
(b) the person has entered into an agreement with the Minister that complies with subsection (3), the agreement is in force and the person has complied with the agreement. O. Reg. 242/08, s. 22 (2).
(3) An agreement referred to in clause (1) (b) or (2) (b) complies with this subsection if,
(a) the agreement was entered into before June 30, 2010;
(b) the agreement specifically provides that it applies to the species; and
(c) the agreement states that,
(i) the Minister is of the opinion that the agreement requires the person who operates the pit or quarry to take reasonable steps to minimize adverse effects on the species,
(ii) the Minister is of the opinion that, if the agreement is complied with, the operation of the pit or quarry will not jeopardize the survival or recovery of the species in Ontario, and
(iii) the Minister is of the opinion that the agreement does not conflict with the obligation of the Minister to ensure the implementation of any action under subsection 11 (9) of the Act. O. Reg. 242/08, s. 22 (3).
(4) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to the possession or transport of a member of a species if,
(a) pursuant to subsection (1) or (2), clause 9 (1) (a) of the Act did not apply with respect to the member of the species; and
(b) the agreement referred to in subsection (1) or (2) is in force and the person who operates the pit or quarry has complied with the agreement. O. Reg. 242/08, s. 22 (4).
Transition — development and infrastructure
23. (1) This section applies to the following activities:
1. Construction or demolition of a building under the authority of a building permit that was issued before June 30, 2008 under section 8 of the Building Code Act, 1992.
2. Laying down highways and lots upon the ground within a draft plan of subdivision under the authority of subsection 51 (57) of the Planning Act, if the draft plan was approved before June 30, 2008.
3. Development of a lot, if,
i. the lot is within a draft plan of subdivision that was approved under the Planning Act before June 30, 2008,
ii. the plan of subdivision has not been registered under the Registry Act or Land Titles Act, and
iii. the development is not prohibited by any zoning by-law passed under subsection 34 (1) of the Planning Act or by any order made under section 47 of that Act.
4. Development of a lot, if,
i. the lot was created by a provisional consent that was given under section 53 of the Planning Act before June 30, 2008,
ii. the lot has not been registered under the Registry Act or Land Titles Act, and
iii. the development is not prohibited by any zoning by-law passed under subsection 34 (1) of the Planning Act or by any order made under section 47 of that Act.
5. Development in a site plan control area that is designated under subsection 41 (2) of the Planning Act, if an approval that applies to the development was obtained under subsection 41 (4) of that Act before June 30, 2008.
6. Development that is authorized by a development permit issued before June 30, 2008 under Ontario Regulation 608/06 (Development Permits) made under the Planning Act.
7. Development of a unit within the meaning of the Condominium Act, 1998, if,
i. the unit is within a draft declaration and description that were approved pursuant to subsection 9 (2) of the Condominium Act, 1998 before June 30, 2008,
ii. the declaration and description have not been registered under the Land Titles Act, and
iii. the development is not prohibited by any zoning by-law passed under subsection 34 (1) of the Planning Act or by any order made under section 47 of that Act.
8. Development that is authorized by a development permit issued before June 30, 2008 under By-law 2004-180 of the Township of Lake of Bays, including any amendments made to the by-law before that day.
9. Carrying out an undertaking, if approval to proceed with the undertaking was given under Part II of the Environmental Assessment Act before June 30, 2008.
10. Carrying out an undertaking, if proceeding with the undertaking was authorized before June 30, 2008 under,
i. the Class Environmental Assessment Process for Management Board Secretariat and Ontario Realty Corporation that was approved under the Environmental Assessment Act on April 28, 2004,
ii. the Class Environmental Assessment for Minor Transmission Facilities that was approved under the Environmental Assessment Act on April 23, 1992,
iii. the Class Environmental Assessment for Modifications to Hydroelectric Facilities that was approved under the Environmental Assessment Act on August 19, 1993, as extended on August 5, 1998, August 15, 2000, August 19, 2003 and August 8, 2005.
iv. the Class Environmental Assessment for Provincial Transportation Facilities approved under the Environmental Assessment Act on October 6, 1999 and amended on July 14, 2000,
v. the Class Environmental Assessment for Remedial Flood and Erosion Control Projects by Conservation Authorities that was approved under the Environmental Assessment Act on June 26, 2002,
vi. the GO Transit Class Environmental Assessment Document that was approved under the Environmental Assessment Act on December 13, 1995 and amended on August 8, 2005, or
vii. the Municipal Class Environmental Assessment approved under the Environmental Assessment Act on October 4, 2000 and amended on September 6, 2007.
11. Carrying out an undertaking, if proceeding with the undertaking was authorized before June 30, 2008 under,
i. Ontario Regulation 116/01 (Electricity Projects) made under the Environmental Assessment Act, or
ii. Ontario Regulation 101/07 (Waste Management Projects) made under the Environmental Assessment Act.
12. Carrying out the undertaking described in the order made under section 3.2 of the Environmental Assessment Act and approved by Order in Council 2174/99 on December 8, 1999 with respect to hydroelectric facilities on the Mattagami River.
13. Constructing a hydrocarbon line or station under the authority of an order made under Part VI of the Ontario Energy Board Act, 1998 before June 30, 2008.
14. Constructing, improving or maintaining drainage works, if an agreement for the construction, improvement or maintenance was filed under subsection 2 (2) of the Drainage Act before June 30, 2008.
15. Constructing, improving, maintaining or repairing drainage works, if a report that applies to the drainage works was adopted under subsection 3 (15) or 45 (1) of the Drainage Act before June 30, 2008.
16. Maintaining a ditch constructed under The Ditches and Watercourses Act, being chapter 109 of the Revised Statutes of Ontario, 1960, in accordance with subsection 3 (18) of the Drainage Act. O. Reg. 242/08, s. 23 (1).
(2) With respect to a species listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is engaging in an activity described in subsection (1), if the person has entered into an agreement with the Minister that complies with subsection (3), the agreement is in force and the person has complied with the agreement. O. Reg. 242/08, s. 23 (2).
(3) An agreement referred to in subsection (2) complies with this subsection if,
(a) the agreement was entered into before June 30, 2010;
(b) the agreement specifically provides that it applies to the species; and
(c) the agreement states that,
(i) the Minister is of the opinion that the agreement requires the person who engages in the activity to take reasonable steps to minimize adverse effects on the species,
(ii) the Minister is of the opinion that, if the agreement is complied with, the activity will not jeopardize the survival or recovery of the species in Ontario, and
(iii) the Minister is of the opinion that the agreement does not conflict with the obligation of the Minister to ensure the implementation of any action under subsection 11 (9) of the Act. O. Reg. 242/08, s. 23 (3).
(4) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to the possession or transport of a member of a species if,
(a) pursuant to subsection (2), clause 9 (1) (a) of the Act did not apply with respect to the member of the species; and
(b) the agreement referred to in subsection (2) is in force and the person who engages in the activity described in subsection (1) has complied with the agreement. O. Reg. 242/08, s. 23 (4).
(5) Despite subsection (2), with respect to a species listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, clause 9 (1) (a) and subsection 10 (1) of the Act do not apply during the period from June 30, 2008 to September 30, 2008 to a person who is,
(a) maintaining drainage works, if an agreement for the maintenance was filed under subsection 2 (2) of the Drainage Act before June 30, 2008;
(b) maintaining or repairing drainage works, if a report that applies to the drainage works was adopted under subsection 3 (15) or 45 (1) of the Drainage Act before June 30, 2008; or
(c) maintaining a ditch constructed under The Ditches and Watercourses Act, being chapter 109 of the Revised Statutes of Ontario, 1960, in accordance with subsection 3 (18) of the Drainage Act. O. Reg. 242/08, s. 23 (5).
(6) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to the possession or transport of a member of a species if, pursuant to subsection (5), clause 9 (1) (a) of the Act did not apply with respect to the member of the species. O. Reg. 242/08, s. 23 (6).
(7) This section does not apply to the operation of a hydro-electric generating station. O. Reg. 242/08, s. 23 (7).
Note: On July 1, 2011, the Regulation is amended by adding the following section:
Development and infrastructure — redside dace
23.1 (1) This section applies to a person who carries out any of the following activities if the activity is likely to kill, harm or harass redside dace or to damage or destroy the habitat of redside dace:
1. Development of land permitted by an official plan amendment approved or made final under the Planning Act if,
i. the impact that the development might have on redside dace living in the area or outside of the area was considered in making or approving the amendment,
ii. the amendment,
A. was made or approved after September 27, 2002 and before July 1, 2011,
B. specifies the limits of the valley and stream corridors in the area to be developed, and
C. has been reviewed by the conservation authority for the area to be developed, and
iii. the development is not prohibited by any zoning by-law passed under subsection 34 (1) of the Planning Act or by any order made under section 47 of that Act.
2. Development of a lot, including a lot registered under the Registry Act or the Land Titles Act, if,
i. the lot is within a draft plan of subdivision that was approved under the Planning Act after September 27, 2002 and before December 31, 2012,
ii. the approval has not lapsed, and
iii. the development is not prohibited by any zoning by-law passed under subsection 34 (1) of the Planning Act or by any order made under section 47 of that Act.
3. Development of a unit within the meaning of the Condominium Act, 1998, including a unit in respect of which a declaration and description are registered under the Land Titles Act, if,
i. the unit is within a draft declaration and description that were approved under subsection 9 (2) of the Condominium Act, 1998 after September 27, 2002 and before December 31, 2012,
ii. the approval has not lapsed, and
iii. the development is not prohibited by any zoning by-law passed under subsection 34 (1) of the Planning Act or by any order made under section 47 of that Act.
4. Carrying out an undertaking if,
i. approval to proceed with the undertaking was given under Part II of the Environmental Assessment Act after September 27, 2002 and before July 1, 2011, and
ii. the impact that the undertaking might have on redside dace living in the area or outside of the area was considered in the approval.
5. Carrying out an undertaking if,
i. the undertaking is an undertaking to which one of the following class environmental assessments approved under Part II.1 of the Environmental Assessment Act applies,
A. the Class Environmental Assessment for Provincial Transportation Facilities that was approved on October 6, 1999 and amended on July 14, 2000,
B. the Class Environmental Assessment for Remedial Flood and Erosion Control Projects by Conservation Authorities that was approved on June 26, 2002 and amended in September 2009,
C. the GO Transit Class Environmental Assessment Document that was approved on December 13, 1995 and amended on August 8, 2005, or
D. the Municipal Class Environmental Assessment that was approved on October 4, 2000 and amended on September 6, 2007,
ii. proceeding with the undertaking was authorized after September 27, 2002 and before July 1, 2011 under the applicable class environmental assessment, and
iii. the impact that the undertaking might have on redside dace living in the area or outside of the area was considered when authorizing the undertaking or otherwise under the applicable class environmental assessment. O. Reg. 293/11, s. 3 (1).
(2) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply, with respect to redside dace, to a person carrying on an activity described in subsection (1), if the conditions set out in subsection (4) are satisfied. O. Reg. 293/11, s. 3 (1).
(3) Clause 9 (1) (b) of the Act does not apply to the possession or transportation of redside dace by a person in the course of carrying on an activity described in subsection (1), if the conditions set out in subsection (4) are satisfied. O. Reg. 293/11, s. 3 (1).
(4) A person who wishes to carry out an activity described in subsection (1) shall comply with the following conditions:
1. Before beginning any part of the activity that is likely to kill, harm or harass redside dace or damage or destroy the habitat of redside dace,
i. the person must prepare a mitigation report in accordance with subsection (5),
ii. the person must submit the mitigation report to the district manager of the Ministry, and
iii. the district manager must approve the mitigation report, subject to subsection (6), and the person must have received written notice of the approval.
2. After the mitigation report is approved by the district manager of the Ministry, the person may carry out the activity but shall do so in accordance with the mitigation report and with the conditions specified in subsection (7). O. Reg. 293/11, s. 3 (1).
(5) A mitigation report referred to in paragraph 1 of subsection (4) shall include the following:
1. The name and contact information of the person on whose behalf the activity described in the report is being carried out.
2. A map indicating the geographic location of the property on which the activity will occur and the names of all watercourses on the property.
3. With respect to the activity that the person proposes to carry out,
i. a description of the activity,
ii. the proposed start and completion dates of the activity,
iii. a description of all of the stages of the activity and a timeline for the stages, and
iv. a description of how the activity may affect redside dace or its habitat, including a list of any works to be carried out in or adjacent to the habitat of redside dace, such as works involving water crossings, storm water management facilities or changes to the alignment of a part of a stream or other watercourse, or any other works that may affect redside dace or its habitat.
4. A description of the location where each stage of the activity identified in subparagraph 3 iii will occur, including a detailed map and any detailed drawings of the works referred to in subparagraph 3 iv.
5. A description of any background studies related to environmental conditions completed for the location identified in paragraph 2 and available at the time of the preparation of the mitigation report.
6. Detailed plans on the steps the person shall take during the activity to minimize effects on redside dace, including,
i. a plan to control erosion and sediment,
ii. details on the planting of native plants, and
iii. restrictions on the time of year at which works may be carried out in a part of a stream or other watercourse that is included in the habitat of redside dace.
7. A description of the steps the person shall take to rescue redside dace affected by the activity.
8. A description of the steps the person shall take to monitor the effectiveness of the actions taken to minimize effects of the activity on redside dace, including details and timelines of inspections of sediment control fencing and other sediment and erosion control measures by a qualified inspector or professional engineer. O. Reg. 293/11, s. 3 (1).
(6) A district manager for the Ministry to whom a mitigation report is submitted under subparagraph 1 ii of subsection (4) may refuse to approve the report if, in his or her opinion,
(a) the person carrying out the activity referred to in the mitigation report has not taken reasonable steps to design water crossings, storm water management facilities or other works constructed or modified as part of the activity in a manner to effectively minimize the effects on redside dace; or
(b) the measures set out in the mitigation report may not be sufficient to,
(i) effectively protect the habitat of redside dace from sediment or deleterious substances,
(ii) prevent the activity from causing an unacceptable impairment of water quality, or
(iii) otherwise effectively mitigate the impacts of the activity on redside dace. O. Reg. 293/11, s. 3 (1).
(7) If the mitigation report is approved by a district manager for the Ministry, the person responsible for carrying out the activity referred to in the report shall comply with all of the following conditions to minimize the effects of the activity on redside dace:
1. The flow of a stream or other watercourse through the habitat of redside dace shall be maintained without interruption.
2. If the activity involves changes to the alignment of a part of a stream or other watercourse that is situated in the habitat of redside dace,
i. the changes shall be designed and carried out in a manner that minimizes adverse effects on redside dace, and
ii. the stream or other watercourse shall be changed to provide suitable conditions for redside dace.
3. If a water crossing situated in the habitat of redside dace is constructed or modified in the course of the activity,
i. in the case of a culvert, the culvert shall be an open-bottom culvert and the substrate shall be restored to provide suitable conditions for redside dace, and
ii. in the case of a bridge, the bridge shall be designed and constructed to minimize adverse effects on redside dace.
4. If, as a result of the activity, soil, earth or substrate becomes exposed within 30 metres of the meander belt of the part of a stream or other watercourse that is included in the habitat of redside dace, the exposed soil, earth or substrate shall be stabilized to prevent sediment or deleterious substances from entering the stream or watercourse within,
i. 15 days after the soil, earth or substrate becomes exposed, or
ii. a period of time longer than 15 days after the soil, earth or substrate becomes exposed, as may be approved in writing by the district manager of the Ministry if, in his or her opinion, such longer period will be sufficient to prevent sediment or deleterious substances from entering the stream or watercourse.
5. Any equipment, stockpiled material or construction material shall be stored outside the habitat of redside dace and in a manner that prevents sediment or deleterious substances from entering the habitat of redside dace.
6. A double row of sediment control fencing consisting of a non-woven material with staked straw bales shall be installed and maintained to prevent sediment from entering any part of a stream or other watercourse that is included in the habitat of redside dace.
7. Any water that is laden with sediment that the person proposes to discharge shall be filtered to remove the sediment before it enters any part of a stream or other watercourse that is included in the habitat of redside dace.
8. If, as part of the activity, an area situated within 30 metres of the habitat of redside dace is altered but no structures or other things are constructed in the area, native plants shall be planted in the area.
9. If the activity involves constructing a stormwater management facility that will discharge water into the habitat of redside dace, the facility shall be designed and constructed either as an extended detention wet pond or a hybrid wet pond and wetland system and shall include a bottom draw outlet or a subsurface trench outlet in accordance with the document entitled “Stormwater Management Planning and Design Manual, 2003”, dated March 2003 and published by the Ministry of the Environment and available on a website maintained by that Ministry.
10. If, as part of the activity, a pipeline, sewer main or hydro conduit is to be installed across a part of a stream or other watercourse that is included in the habitat of redside dace, it shall be installed using trenchless techniques. O. Reg. 293/11, s. 3 (1).
See: O. Reg. 293/11, ss. 3 (1), 7 (1).
Note: On December 31, 2014, section 23.1 is revoked. See: O. Reg. 293/11, ss. 3 (2), 7 (2).
American badger habitat
24. For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of the American badger:
1. An American badger den that is being used by an American badger or was used by an American badger at any time during the previous 12 months.
2. The area within five metres of the entrance of a den described in paragraph 1.
3. A woodchuck burrow or Franklin’s ground squirrel burrow that,
i. is being used by a woodchuck or Franklin’s ground squirrel or was used by a woodchuck or Franklin’s ground squirrel at any time in the past, and
ii. is within 850 metres of a den described in paragraph 1. O. Reg. 437/09, s. 1.
Barn owl habitat
24.1 For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of the barn owl:
1. A nesting or roosting site that is being used by a barn owl or was used by a barn owl at any time during the previous 12 months.
2. A barn, building or other structure, or a tree or other natural feature, on or in which a nesting or roosting site described in paragraph 1 is located.
3. If a nesting or roosting site described in paragraph 1 is located on a tree or other natural feature, the area within 25 metres of the base of the tree or other natural feature.
4. Those parts of the area within one kilometre of an area described in paragraph 1 or 2 that provide suitable foraging conditions for a barn owl. O. Reg. 437/09, s. 1.
Note: On July 1, 2011, the Regulation is amended by adding the following section:
Eastern flowering dogwood habitat
24.2 (1) For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the areas described in subsection (2) that are located in the following municipalities are prescribed as the habitat of eastern flowering dogwood:
1. The cities of Brantford, Hamilton, London and Windsor.
2. The counties of Brant, Elgin, Essex, Haldimand, Lambton, Middlesex, Oxford and Norfolk.
3. The Municipality of Chatham-Kent.
4. The regional municipalities of Halton and Niagara. O. Reg. 293/11, s. 4.
(2) Subsection (1) applies to the following areas:
1. A terrestrial area within 20 metres of the stem of an eastern flowering dogwood.
2. An area populated by a vegetation type described in the document entitled “Ecological Land Classification for Southern Ontario: First Approximation and its Application”, dated September 1998 and published by the Ministry of Natural Resources, as that document may be amended from time to time, if,
i. the vegetation type occurs naturally in Ontario, and
ii. eastern flowering dogwood also exists in the area. O. Reg. 293/11, s. 4.
(3) In paragraph 1 of subsection (2),
“terrestrial area” means an area where,
(a) the water table is rarely or briefly above the substrate surface, and
(b) hydric soils have not developed. O. Reg. 293/11, s. 4.
(4) The document referred to in paragraph 2 of subsection (2) is available at the Ministry of Natural Resources District offices and the Ministry of Natural Resources corporate library in Peterborough, Ontario. O. Reg. 293/11, s. 4.
See: O. Reg. 293/11, ss. 4, 7 (1).
Eastern prairie fringed-orchid habitat
25. (1) For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of the eastern prairie fringed-orchid:
1. Areas described in subsection (2) where eastern prairie fringed-orchids exist or existed at any time in the past in,
i. the City of Ottawa,
ii. the counties of Bruce, Essex, Grey, Lambton, Lanark, Lennox and Addington and Simcoe,
iii. the Municipality of Chatham-Kent,
iv. The Regional Municipality of York, and
v. the United Counties of Leeds and Grenville and the United Counties of Stormont, Dundas and Glengarry. O. Reg. 436/09, s. 1.
(2) Paragraph 1 of subsection (1) applies to the following areas:
1. Fens.
2. Tallgrass prairies.
3. Moist old fields. O. Reg. 436/09, s. 1.
Engelmann’s quillwort habitat
26. For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of Engelmann’s quillwort:
1. The area shown as “Engelmann’s Quillwort Habitat” on a map entitled “Engelmann’s Quillwort (Isoetes engelmannii) Habitat / Habitat de l’isoète d’Engelmann (Isoetes engelmannii) – Rivière Gull River” that is filed in the office of the Director of the Ministry’s Species at Risk Branch and is identified by the stamp of the Registrar of Regulations dated June 19, 2009, a copy of which may be viewed on the Internet on a website maintained by the Ministry, but not including,
i. any part of the area that has quickly flowing turbulent water,
ii. any part of the area where the water is more than five metres deep, or
iii. any part of the area that is heavily shaded by trees or other vegetation between June 1 and September 30.
2. The area shown as “Engelmann’s Quillwort Habitat” on a map entitled “Engelmann’s Quillwort (Isoetes engelmannii) Habitat / Habitat de l’isoète d’Engelmann (Isoetes engelmannii) – Rivière Severn River” that is filed in the office of the Director of the Ministry’s Species at Risk Branch and is identified by the stamp of the Registrar of Regulations dated June 19, 2009, a copy of which may be viewed on the Internet on a website maintained by the Ministry, but not including,
i. any part of the area that has quickly flowing turbulent water,
ii. any part of the area where the water is more than five metres deep, or
iii. any part of the area that is heavily shaded by trees or other vegetation between June 1 and September 30.
3. The area above the high water mark that is within five metres of an area described in paragraph 1 or 2. O. Reg. 436/09, s. 1.
Few-flowered club-rush or bashful bulrush habitat
27. For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of few-flowered club-rush or bashful bulrush:
1. Dry fresh oak deciduous forest located in,
i. Lot 32, ranges 2 and 3, in the geographic Township of Pickering, located in the City of Pickering in The Regional Municipality of Durham,
ii. Lots 21 to 26, Concession 1, in the Royal Botanical Gardens in the geographic Township of Flamborough, located in the City of Hamilton, or
iii. Lot 1, Concession Gore, in the Royal Botanical Gardens in the geographic Township of Ancaster, located in the City of Hamilton.
2. Dry fresh oak-maple-hickory deciduous forest located in,
i. Lot 32, ranges 2 and 3, in the geographic Township of Pickering, located in the City of Pickering in The Regional Municipality of Durham,
ii. Lots 21 to 26, Concession 1, in the Royal Botanical Gardens in the geographic Township of Flamborough, located in the City of Hamilton, or
iii. Lot 1, Concession Gore, in the Royal Botanical Gardens in the geographic Township of Ancaster, located in the City of Hamilton.
3. Dry tallgrass woodland located in,
i. Lots 21 to 26, Concession 1, in the Royal Botanical Gardens in the geographic Township of Flamborough, located in the City of Hamilton, or
ii. Lot 1, Concession Gore, in the Royal Botanical Gardens in the geographic Township of Ancaster, located in the City of Hamilton. O. Reg. 436/09, s. 1.
Jefferson salamander habitat
28. For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of the Jefferson salamander:
1. In the City of Hamilton, the counties of Brant, Dufferin, Elgin, Grey, Haldimand, Norfolk and Wellington and the regional municipalities of Halton, Niagara, Peel, Waterloo and York,
i. a wetland, pond or vernal or other temporary pool that is being used by a Jefferson salamander or Jefferson dominated polyploid or was used by a Jefferson salamander or Jefferson dominated polyploid at any time during the previous five years,
ii. an area that is within 300 metres of a wetland, pond or vernal or other temporary pool described in subparagraph i and that provides suitable foraging, dispersal, migration or hibernation conditions for Jefferson salamanders or Jefferson dominated polyploids,
iii. a wetland, pond or vernal or other temporary pool that,
A. would provide suitable breeding conditions for Jefferson salamanders or Jefferson dominated polyploids,
B. is within one kilometre of an area described in subparagraph i, and
C. is connected to the area described in subparagraph i by an area described in subparagraph iv, and
iv. an area that provides suitable conditions for Jefferson salamanders or Jefferson dominated polyploids to disperse and is within one kilometre of an area described in subparagraph i. O. Reg. 436/09, s. 1.
Note: On July 1, 2011, the Regulation is amended by adding the following section:
Ogden’s pondweed habitat
28.1 (1) For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the areas described in subsection (2) that are located in the following geographic townships are prescribed as the habitat of Ogden’s pondweed:
1. The geographic Township of South Crosby, located in the Municipality of Rideau Lakes in the United Counties of Leeds and Grenville.
2. The geographic Township of Burgess, located in the Municipality of Tay Valley in the County of Lanark. O. Reg. 293/11, s. 5.
(2) Subsection (1) applies to the following areas:
1. An aquatic vegetation community where Ogden’s pondweed exists or has existed at any time in the past that is in an area of a stream, river or other body of water that is less than five metres deep.
2. Any part of a river, stream or other body of water within an area described in paragraph 1, up to the high water mark.
3. The area above the high water mark that is within five metres of an area described in paragraph 2. O. Reg. 293/11, s. 5.
See: O. Reg. 293/11, ss. 5, 7 (1).
Peregrine falcon habitat
29. For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of the peregrine falcon:
1. A natural cliff face on which a peregrine falcon is nesting or has nested at any time during the previous 15 years, excluding any part of the cliff face where the top of the cliff face is less than 15 metres above the base of the cliff face.
2. The area within one kilometre of an area described in paragraph 1.
3. An artificially created cliff face, such as a vertical or very steep rock cut in an open pit mine, on which a peregrine falcon is nesting.
4. A nesting site on a building or other structure that is being used by a peregrine falcon or was used by a peregrine falcon at any time during the previous two years, and the area on the outside surface of the building or structure that is within 10 metres of the nesting site.
5. An area that,
i. is on or within 200 metres of a building or structure described in paragraph 4, and
ii. is habitually used by peregrine falcons. O. Reg. 436/09, s. 1.
Note: On July 1, 2011, the Regulation is amended by adding the following section:
Redside dace habitat
29.1 For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of redside dace:
1. Within the cities of Hamilton and Toronto, the counties of Bruce, Grey, Huron, Simcoe and Wellington, the regional municipalities of Durham, Halton, Peel and York, the Townships of St. Joseph, Jocelyn and Hilton, and the Village of Hilton Beach,
i. any part of a stream or other watercourse that is being used by a redside dace,
ii. any part of a stream or other watercourse that was used by a redside dace at any time during the previous 20 years and that provides suitable conditions for a redside dace to carry out its life processes,
iii. the area encompassing the meander belt width of an area described in subparagraph i or ii,
iv. the vegetated area or agricultural lands that are within 30 metres of an area described in subparagraph iii, and
v. a stream, permanent or intermittent headwater drainage feature, groundwater discharge area or wetland that augments or maintains the baseflow, coarse sediment supply or surface water quality of a part of a stream or other watercourse described in subparagraph i or ii, provided the part of the stream or watercourse has an average bankfull width of 7.5 metres or less.
2. Within the City of Hamilton, counties of Bruce, Grey, Huron, Simcoe and Wellington and the regional municipalities of Durham, Halton, Peel and York,
i. any part of a stream or other watercourse used by a redside dace at any time in the past that is located in the same or adjacent sub-watershed as the area identified in subparagraph 1 i or ii that provides suitable conditions for successful stream corridor rehabilitation and for natural recolonization of redside dace,
ii. the area encompassing the meander belt width of an area described in subparagraph i,
iii. the vegetated area or agricultural lands that are within 30 metres of an area described in subparagraph ii, and
iv. a stream, permanent or intermittent headwater drainage feature, groundwater discharge area or wetland that augments or maintains the baseflow, coarse sediment supply or surface water quality of a part of a stream or other watercourse described in subparagraph i, provided the part of the stream or watercourse has an average bankfull width of 7.5 metres or less. O. Reg. 293/11, s. 6.
See: O. Reg. 293/11, ss. 6, 7 (1).
Western silvery aster habitat
30. For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of the western silvery aster:
1. Bur oak savannah where a western silvery aster exists in the part of Ontario shown on a map entitled “Geographic Scope of Western Silvery Aster (Symphyotrichum sericeum) regulated habitat in Ontario / Étendue géographique de l’habitat réglementé de l’aster soyeux (Symphyotrichum sericeum) en Ontario – Cliff Island / Île Cliff” that is filed in the office of the Director of the Ministry’s Species at Risk Branch and is identified by the stamp of the Registrar of Regulations dated June 19, 2009, a copy of which may be viewed on the Internet on a website maintained by the Ministry.
2. Bur oak savannah where a western silvery aster exists in the part of Ontario shown on a map entitled “Geographic Scope of Western Silvery Aster (Symphyotrichum sericeum) regulated habitat in Ontario / Étendue géographique de l’habitat réglementé de l’aster soyeux (Symphyotrichum sericeum) en Ontario – Big Traverse Bay / Grande baie Traverse” that is filed in the office of the Director of the Ministry’s Species at Risk Branch and is identified by the stamp of the Registrar of Regulations dated June 19, 2009, a copy of which may be viewed on the Internet on a website maintained by the Ministry. O. Reg. 436/09, s. 1.
Wood turtle habitat
31. For the purpose of clause (a) of the definition of “habitat” in subsection 2 (1) of the Act, the following areas are prescribed as the habitat of the wood turtle:
1. In the regional municipalities of Halton, Niagara and Waterloo and the counties of Huron and Simcoe,
i. any part of a river, stream or other body of water, up to the high water mark, that is being used by a wood turtle or on which a wood turtle directly depends in order to carry on its life processes,
ii. any part of a river, stream or other body of water up to the high water mark that is within 2000 metres of the area described in subparagraph i and that provides suitable conditions for a wood turtle to carry out its life processes,
iii. the area above the high water mark that is within 200 metres of an area described in subparagraph i or ii, and
iv. an area above the high water mark that is not described in subparagraph iii and that is being used by a wood turtle as a nesting site or that is within 300 metres of that area.
2. In the territorial districts of Algoma, Nipissing and Parry Sound, the City of Greater Sudbury, and the County of Renfrew,
i. any part of a river, stream or other body of water, up to the high water mark, that is being used by a wood turtle or on which a wood turtle directly depends in order to carry on its life processes,
ii. any part of a river, stream or other body of water up to the high water mark that is within 6,000 metres of the area described in subparagraph i and that provides suitable conditions for a wood turtle to carry out its life processes,
iii. the area above the high water mark that is within 500 metres of an area described in subparagraph i or ii, and
iv. an area above the high water mark that is not described in subparagraph iii and that is being used by a wood turtle as a nesting site or that is within 300 metres of that area. O. Reg. 437/09, s. 2.