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O. Reg. 830/21: EXEMPTIONS - BARN SWALLOW, BOBOLINK, EASTERN MEADOWLARK AND BUTTERNUT

under Endangered Species Act, 2007, S.O. 2007, c. 6

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current December 9, 2021 (e-Laws currency date)

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Endangered Species Act, 2007

ONTARIO REGULATION 830/21

EXEMPTIONS - BARN SWALLOW, BOBOLINK, EASTERN MEADOWLARK AND BUTTERNUT

Note: On April 29, 2022, the title to the Regulation is revoked and the following substituted: (See: O. Reg. 830/21, s. 37 (1))

Exemptions — Species subject to Species Conservation Charges

Consolidation Period: From December 9, 2021 to the e-Laws currency date.

Last amendment: 830/21.

Legislative History: 830/21.

This is the English version of a bilingual regulation.

CONTENTS

PART I
INTERPRETATION

1.

Definitions

PART II
NOTICES SUBMITTED THROUGH THE REGISTRY

2.

Submission of notice

PART III
BARN SWALLOW

Interpretation and Exemptions

3.

Definitions

4.

Exemption

Conditions

5.

Conditions for exemption

6.

Mitigation measures

7.

Barn swallow management plan

8.

Habitat creation, damaged nests etc.

9.

Habitat creation, destruction or modification of building etc.

10.

Timing of habitat creation

11.

Record of habitat creation and monitoring

12.

Transition

PART IV
BOBOLINK, EASTERN MEADOWLARK

Exemptions

13.

Exemptions

Conditions

14.

Conditions

15.

Mitigation measures

16.

Bobolink and eastern meadowlark management plan

17.

New or enhanced habitat requirements

18.

New or enhanced habitat management

19.

New or enhanced habitat record and monitoring

20.

Transition

PART V
BUTTERNUT

Definitions and Application

21.

Definitions

22.

Application

Categories of Trees and Prerequisites for Exemption

23.

Categories of butternut trees

24.

Prerequisites

Exemptions

25.

Exemptions

General Conditions

26.

Conditions, Category 2 or 3 butternut trees

27.

Notice of butternut impact

Conditions to Minimize Adverse Effects

28.

Mitigation plan

29.

Training

30.

Permanent structures and infrastructure

31.

Root harm prevention

32.

Pruning and trimming

33.

Transplanting

Conditions to Provide Overall Benefit to Butternut

34.

Number of butternut seedlings to be planted

35.

Planting rules

36.

Archiving butternut trees

 

Part I
Interpretation

Definitions

1. In this Regulation,

“ecoregion” means an ecoregion identified in the document entitled “The Ecosystems of Ontario, Part 1: Ecozones and Ecoregions” that is published by the Government of Ontario, dated 2009, as amended from time to time, and available on a website maintained by the Government of Ontario; (“écorégion”)

“Registry” means the registry maintained on a website of the Government of Ontario for the purposes of the submission of notice forms under this Regulation and Ontario Regulation 242/08 (General) made under the Act. (“Registre”)

Part II
Notices submitted Through the Registry

Submission of notice

2. (1) This section applies with respect to the following notice forms:

1.  A notice of activity form that a person is required to submit to the Minister through the Registry under this Regulation.

2.  A notice of butternut impact form that a person is required to submit to the Minister through the Registry under paragraph 1 of section 26.

Note: On April 29, 2022, section 2 of the Regulation is amended by adding the following subsection: (See: O. Reg. 830/21, s. 37 (2))

(1.1) A notice form shall include an indication as to whether the person submitting the notice form has elected, in order to meet the requirements for an exemption provided under this Regulation, either,

(a)  to pay a species conservation charge to the Species at Risk Conservation Trust and thus be excluded, in accordance with the requirements for the relevant exemption, from some of the conditions otherwise required for the exemption; or

(b)  not to pay a species conservation charge to the Species at Risk Conservation Trust and to satisfy all of the conditions that are required for the exemption. O. Reg. 830/21, s. 37 (2).

(2) Before submitting a notice form to the Minister, a person shall ensure that,

(a)  all mandatory information requested on the form, including the contact information for the person, has been provided; and

(b)  the information provided on the form is complete and accurate.

(3) After submitting a notice form to the Minister, the person shall,

(a)  promptly upon obtaining from the Ministry confirmation that a notice form submitted through the Registry has been received by the Minister, make a record of the confirmation;

(b)  for as long as the activity is being carried out or, in the case of a notice of butternut impact form, for as long as the impactful actions that may impact butternut trees are being carried out,

(i)  keep the record of the confirmation and, if applicable, ensure that a copy of the record is kept at the site where, as the case may be,

(A)  the activity is being carried out, or

(B)  the butternut trees are being killed, harmed or taken, and

(ii)  make the record of the confirmation available to the Ministry upon receiving a request for it; and

(c)  if there is a change in or error or omission in the administrative information provided in a notice form, update the information on the Registry within 10 business days of the change or becoming aware of the error or omission.

(4) A person who submits a notice form through the Registry shall be deemed not to have done so if the person,

(a)  fails to provide all the information required on a notice form; or

(b)  provides false or misleading information on a notice form or when updating information on the Registry.

(5) A person who has submitted a notice form to the Minister under this Regulation may submit an amended notice form to the Minister through the Registry in accordance with the following rules, for the purpose of making one or more of the following amendments to the notice form previously registered:

1.  A person who has submitted a notice of activity form may submit an amended notice form to make the following changes to the notice form previously registered, if the amended notice form is submitted before the commencement of the activity described in the previous notice form:

i.  A change to the description of the activity and its impacts.

ii.  A change to the start date of the activity.

2.  A person who has submitted a notice of butternut impact form may submit an amended notice form to make the following changes to the notice form previously registered, if the amended notice form is submitted before any impactful actions are undertaken:

i.  A change to the description of the impactful actions that will be taken and of the impacts those actions will have on butternut trees.

ii.  A change to the day the impactful actions are scheduled to begin.

3.  A person who has submitted a notice of activity form may submit an amended notice form to change the end date of the activity identified in the notice form previously registered, if the amended notice form is submitted before the previously identified end date.

4.  A person who has submitted a notice of butternut impact form may submit an amended notice form to change the date by which the impactful actions identified in the notice form previously registered will end, if the amended notice form is submitted before the previously identified end date.

5.  A person who has submitted a notice of activity form with respect to an activity described in subsection 13 (3) affecting bobolink or eastern meadowlark, or both, may submit an amended notice form to,

i.  add either of those species that was not identified in the notice form previously registered to the notice form, if the amended notice form is submitted before there is any impact to the species that is the subject of the amendment, or its habitat, by the activity,

ii.  if both species were identified in the notice form previously registered, remove one of them from that notice form before the commencement of the activity for either of the following reasons:

A.  The person determines that the species will not be impacted by the activity.

B.  The status of the species has changed such that it is no longer listed as endangered or threatened on the Species at Risk in Ontario List.

6.  A person who has submitted a notice form may submit an amended notice form to change the name of the person identified on the notice form as the person responsible for carrying out the impactful actions that may impact butternut trees, or responsible for carrying out the activity, as the case may be, if,

i.  the responsible person identified on the notice form previously registered provides written consent to the amendment to the responsible person identified on the amended notice form, and

ii.  the responsible person identified on the amended notice form provides the Ministry with a written attestation that the person agrees to comply with the conditions to the applicable exemption under this Regulation.

Note: On April 29, 2022, subsection 2 (5) of the Regulation is amended by adding the following paragraph: (See: O. Reg. 830/21, s. 37 (3))

7.  A person who has submitted a notice form may submit an amended notice form to change the election with respect to the payment of a species conservation charge indicated in the notice form previously registered if,

i.  the amended notice form is submitted before,

A.  in the case of a notice of activity form, commencing the activity specified in the notice, or

B.  in the case of a notice of butternut impact form, undertaking the impactful actions with respect to butternut trees, and

ii.  in cases where the person elected to pay the species conservation charge in the notice form previously registered, the amended notice form is submitted before the deadline for paying the charge has elapsed.

(6) For greater certainty, an amendment to a notice form under subsection (5) does not affect the application of an exemption under this Regulation.

(7) If a person wishes to amend a notice of butternut impact form under subparagraph 2 i of subsection (5) to change the description of the impactful actions that will be taken and of the impacts those actions will have on butternut trees, including the identification of additional trees that may be impacted, the person shall, before submitting the amended notice of butternut impact form through the Registry, submit to the Minister an update of the butternut health expert’s report required under paragraph 2 of subsection 24 (1) to reflect the amendment.

(8) If an update to a butternut health expert’s report is required under subsection (7), the 30-day period referred to in paragraph 4 of subsection 24 (1) shall start on the day that the amended report is given by the person to the Ministry.

(9) A person who submitted a notice form may request that the notice be struck from the Registry by submitting a notice of cancellation form to the Minister through the Registry if,

(a)  the person has decided not to proceed with the activity or with the impactful actions with respect to butternut trees, as the case may be, and submits the notice of cancellation before the activity is commenced or the impactful actions are undertaken; or

(b)  every species identified in the notice form is no longer listed as an endangered or threatened species on the Species at Risk in Ontario List.

(10) In this section,

“impactful actions” means impactful actions as defined in section 21.

Part III
Barn swallow

Interpretation and Exemptions

Definitions

3. In this Part,

“barn swallow active season” means the period of each year when barn swallows carry out life processes relating to breeding, nesting and rearing, and that begins around the beginning of May and ends around the end of August, the exact dates varying according to the area of the Province in which the barn swallows are located and the climate conditions of each year; (“saison active de l’hirondelle rustique”)

“nest cup” means a container, receptacle or vessel that may be used as a nest by barn swallows. (“nid artificiel”)

Exemption

4. (1) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who, while carrying out an activity listed in subsection (2), harms or harasses a barn swallow, or who damages or destroys its habitat, if the person satisfies the conditions set out in section 5.

Note: On April 29, 2022, subsection 4 (1) of the Regulation is revoked and the following substituted: (See: O. Reg. 830/21, s. 37 (4))

Exemption

(1) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who, while carrying out an activity listed in subsection (2), harms or harasses a barn swallow, or who damages or destroys its habitat, if,

(a)  the person satisfies the conditions set out in section 5; or

(b)  the person,

(i)  pays a species conservation charge to the Species at Risk Conservation Trust in accordance with paragraph 5 of subsection 20.3 (1) of the Act and Ontario Regulation 829/21 (Species Conservation Charges) made under the Act, and

(ii)  satisfies the conditions set out in paragraphs 1 to 4 of section 5. O. Reg. 830/21, s. 37 (4).

(2) The maintenance, repair, modification, replacement or demolition of a building or structure that provides barn swallow habitat are the activities referred to in subsection (1).

Conditions

Conditions for exemption

5. The following are the conditions that a person must satisfy for the purposes of the exemption in subsection 4 (1):

1.  Before commencing an activity listed in subsection 4 (2), the person must give the Minister notice of the activity by submitting a notice of activity form available on the Registry to the Minister through the Registry, and must ensure that the notice includes:

i.  A statement identifying any activity listed in subsection 4 (2) that will be carried out on the building or structure that provides barn swallow habitat and a description of the activity.

ii.  A description of how the activity will impact barn swallow habitat, including the number of barn swallow nests that will be removed, damaged or destroyed, if any.

iii.  An indication as to whether, as a result of the activity identified in subparagraph i, the building or structure that provides barn swallow habitat will be,

A.  destroyed, or

B.  modified so that,

1.  it no longer provides suitable conditions for barn swallow nesting, or

2.  it provides a smaller area for barn swallow nesting than was provided before the modification.

iv.  The proposed start and end dates for the activity.

v.  A description of the building or structure that will be the object of the activity, including its location.

2.  Before, during and after carrying out the activity, the person must follow the steps set out in section 6 to minimize the adverse effects of the activity on the barn swallow and its habitat.

3.  Before carrying out the activity, the person must prepare a barn swallow management plan in accordance with section 7 and, once the activity has commenced, the person must update the barn swallow management plan in accordance with section 7.

4.  The person must,

i.  retain a copy of the barn swallow management plan for a period of two years after the activity is complete, and

ii.  provide a copy of the barn swallow management plan to the Ministry within 14 days after receiving a request for it.

5.  The person must create habitat for barn swallows in accordance with section 8 by the deadline set out in section 10 if, as a result of carrying out the activity or any mitigation measures required under paragraph 1 of section 6, barn swallow nests on or in a building or structure will be removed, damaged or destroyed.

6.  The person must create habitat for barn swallows in accordance with section 9 by the deadline set out in section 10 if, as a result of carrying out the activity, a building or structure that provides barn swallow habitat will be,

i.  destroyed, or

ii.  modified so that,

A.  it no longer provides suitable conditions for barn swallow nesting, or

B.  it provides a smaller area for barn swallow nesting than was provided before the modification.

7.  The person must maintain the habitat created under paragraph 6 for a period of three years after the habitat is created.

8.  After the person has created habitat for barn swallows under paragraph 5 or 6, the person must prepare and update a record of habitat creation and monitoring in accordance with section 11.

9.  For a period of three years after a person has created habitat for barn swallows under paragraph 5 or 6, the person must monitor the use of the habitat by barn swallows during the barn swallow active season of each year.

10.  The person must,

i.  retain the record of habitat creation and monitoring for a period of two years after the monitoring required under paragraph 9 is complete, and

ii.  provide a copy of the record of habitat creation and monitoring to the Ministry within 14 days after receiving a request for it.

11.  Every year that the person is required to monitor the use of the habitat by barn swallows under paragraph 9, the person must, within three months after completing the monitoring for the year, submit to the Government of Ontario the Ontario Species at Risk Observation Reporting Form available on a website maintained by the Government of Ontario.

Mitigation measures

6. The following are the steps referred to in paragraph 2 of section 5 to minimize the adverse effects of the activity on the barn swallow and its habitat:

1.  If any part of the activity is to be carried out during the barn swallow active season, the person shall ensure that barn swallows are excluded from any part of the building or structure that is the object of the activity by doing the following before the barn swallow active season begins:

i.  Removing from the building or structure any existing barn swallow nests that may be impacted by the activity.

ii.  Installing tarps and netting or taking other such measures to prevent barn swallows from accessing any part of the building or structure that is the object of the activity.

2.  If, despite following the measures described in paragraph 1, one or more barn swallows enter the building or structure to establish nests, the person shall ensure that any part of the activity that would harm or harass barn swallows while nesting is suspended until the end of the barn swallow active season.

Barn swallow management plan

7. (1) A barn swallow management plan referred to in paragraph 3 of section 5 shall, when first prepared, include the following information:

1.  The name and contact information of the person who is proposing to carry out the activity.

2.  Which of the activities referred to in subsection 4 (2) the person is proposing to carry out in respect of a building or structure that provides barn swallow habitat including,

i.  a description of the activity,

ii.  the proposed start and completion dates, and

iii.  an indication of whether, as a result of the activity, the building or structure that provides barn swallow habitat will be,

A.  destroyed, or

B.  modified so that,

1.  it no longer provides suitable conditions for barn swallow nesting, or

2.  it provides a smaller area for barn swallow nesting than was provided before the modification.

3.  A description of the building or structure that is the object of the activity, including its location.

4.  The number, location and description of barn swallow nests located on or in the building or structure before the activity begins.

5.  Based on the information in paragraph 4, the area of nesting habitat, expressed in square metres, provided by the building or structure.

(2) The barn swallow management plan shall be updated from time to time to include the following information:

1.  A description of the steps followed by the person in accordance with section 6 to minimize the adverse effects of the activity on the barn swallow and its habitat.

2.  Any change to the information required under subsection (1).

Habitat creation, damaged nests etc.

8. (1) A person who is required to create habitat for barn swallows under paragraph 5 of section 5 shall install one nest cup for each nest that was removed, damaged or destroyed.

(2) The nest cup shall be installed,

(a)  in any area of the building or structure that was the object of the activity, if the area continues to provide conditions that are suitable for barn swallow nesting;

(b)  in any building or structure that exists within one kilometre of the building or structure that was the object of the activity, if it provides conditions that are suitable for barn swallow nesting; or

(c)  in any building or structure that the person constructs within one kilometre of the building or structure that was the object of the activity, if it meets the requirements of subsection 9 (2).

Habitat creation, destruction or modification of building etc.

9. (1) A person who is required to create habitat for barn swallows under paragraph 6 of section 5 shall,

(a)  construct one or more structures that provide areas of habitat in accordance with subsection (2); or

(b)  modify one or more existing buildings or structures that do not currently provide areas of habitat for barn swallows so that they provide areas of habitat in accordance with subsection (2).

(2) The areas of habitat for barn swallows in a building or structure constructed or modified under subsection (1) shall provide conditions suitable for barn swallow nesting by,

(a)  providing horizontal ledges or rough vertical surfaces with a sheltered overhang;

(b)  providing surface areas suitable for nest attachment at a height that minimizes disturbances to barn swallows and in a location that minimizes predation;

(c)  allowing barn swallows to freely enter and exit nests;

(d)  providing suitable area to accommodate appropriate spacing between nests; and

(e)  being structurally sound and capable of providing habitat for barn swallows on a long-term basis.

(3) A building or structure constructed or modified under subsection (1) shall provide areas of habitat for barn swallows that are capable of accommodating at least 1.5 times the number of barn swallow nests that were in the destroyed building or structure or in the building or structure as it was before being modified.

(4) The building or structure constructed or modified under subsection (1) shall be in a location that is accessible to barn swallows and,

(a)  within one kilometre of the building or structure that was destroyed or modified as a result of the activity; and

(b)  within 200 metres of an area that provides suitable foraging conditions for barn swallows.

Timing of habitat creation

10. The following are the deadlines referred to in paragraphs 5 and 6 of section 5:

1.  If the activity will begin outside of the barn swallow active season, the deadline for creating the barn swallow habitat shall be before the beginning of the next barn swallow active season.

2.  If the activity will begin during the barn swallow active season, the deadline for creating the barn swallow habitat shall be before the beginning of that barn swallow active season.

Record of habitat creation and monitoring

11. (1) A record of habitat creation and monitoring referred to in paragraph 8 of section 5 shall, when first prepared, include the following information:

1.  An indication of the number and location of nest cups installed on buildings or structures in accordance with section 8.

2.  A description of each building and structure constructed or modified in accordance with section 9, including the location of the building or structure and the area of nesting habitat created in accordance with subsection 9 (3).

(2) For each year a person is required to monitor the use of habitat by barn swallows under paragraph 9 of section 5, the person shall, within three months of having completed the annual monitoring, update the record of habitat creation and monitoring to include the following monitoring information:

1.  The number, description and location of new nests created by barn swallows.

2.  An estimate of the number of barn swallows using the building or structure.

Transition

12. Despite the revocation, on December 1, 2021, of section 23.5 of Ontario Regulation 242/08 (General) made under the Act, a person who, before December 1, 2021, had submitted a notice of activity form to the Minister under section 23.5 of Ontario Regulation 242/08 with respect to an activity described in subsection 4 (2) of this Regulation and was, immediately before December 1, 2021, exempt under subsection 23.5 (2) of Ontario Regulation 242/08 from clause 9 (1) (a) and subsection 10 (1) of the Act with respect to the activity,

(a)  is not required to register a new notice of activity form under this Regulation in order to continue being exempt from clause 9 (1) (a) and subsection 10 (1) of the Act with respect to the activity; and

(b)  shall continue, after December 1, 2021, to be exempt under section 23.5 (2) of Ontario Regulation 242/08 from clause 9 (1) (a) and subsection 10 (1) of the Act with respect to the activity, so long as the person continues to satisfy all the conditions to the exemption set out in subsections 23.5 (3) to (12) of Ontario Regulation 242/08, as those subsections read immediately before December 1, 2021.

Part IV
BOBOLINK, EASTERN MEADOWLARK

Exemptions

Exemptions

13. (1) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who, while carrying out an activity described in subsection (3), kills, harms, harasses, captures or takes a bobolink or an eastern meadowlark, or damages or destroys its habitat, if the size of the area of habitat of bobolinks or eastern meadowlarks that is damaged or destroyed by the activity is equal to or less than 30 hectares and the person satisfies all of the conditions set out in section 14.

Note: On April 29, 2022, subsection 13 (1) of the Regulation is revoked and the following substituted: (See: O. Reg. 830/21, s. 37 (5))

Exemptions

(1) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who, while carrying out an activity described in subsection (3), kills, harms, harasses, captures or takes a bobolink or an eastern meadowlark, or damages or destroys its habitat, if the size of the area of habitat of bobolinks or eastern meadowlarks that is damaged or destroyed by the activity is equal to or less than 30 hectares and,

(a)  the person satisfies all of the conditions set out in section 14; or

(b)  the person,

(i)  pays a species conservation charge to the Species at Risk Conservation Trust in accordance with paragraph 5 of subsection 20.3 (1) of the Act and Ontario Regulation 829/21 (Species Conservation Charges) made under the Act, and

(ii)  satisfies the conditions in paragraphs 1 to 4 of section 14. O. Reg. 830/21, s. 37 (5).

(2) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to the possession or transport of a bobolink or an eastern meadowlark that was killed, harmed, harassed, captured or taken by a person carrying out an activity described in subsection (3), if, pursuant to subsection (1), the person was exempt from clause 9 (1) (a) of the Act with respect to that activity.

(3) The activities referred to in subsection (1) are land development activities that take place in an area that is the habitat of bobolinks or eastern meadowlarks and include,

(a)  the construction of buildings, structures, roads or other infrastructure; and

(b)  the excavation and landscaping of land.

Conditions

Conditions

14. The following are the conditions that a person must satisfy for the purpose of the exemption under subsection 13 (1):

1.  Before commencing an activity referred to in subsection 13 (3), the person must give the Minister notice of the activity by submitting a notice of activity form available on the Registry to the Minister through the Registry, and must ensure that the notice includes the following:

i.  A statement identifying which of the activities listed in subsection 13 (3) will be carried out and a description of the activity.

ii.  The area of habitat, measured in hectares, that will be impacted by the activity.

iii.  The proposed start and end dates of the activity and the area in which it will be carried out.

iv.  An indication as to whether the activity will be carried out on land that is habitat for bobolinks, for eastern meadowlarks, or for both, as the case may be.

2.  Before, during and after carrying out the activity, the person must follow the steps set out in section 15 to minimize the adverse effects of the activity on the bobolink or eastern meadowlark and their habitat.

3.  Before carrying out the activity, the person must prepare a bobolink and eastern meadowlark management plan in accordance with section 16 and, once the activity has commenced, the person must update the bobolink and eastern meadowlark management plan in accordance with section 16.

4.  The person must,

i.  retain a copy of the bobolink and eastern meadowlark management plan for at least five years after the activity is complete, and

ii.  provide a copy of the bobolink and eastern meadowlark management plan to the Ministry within 14 days of receiving a request for it.

5.  Within 12 months after the day the activity is commenced, the person must, in accordance with section 17,

i.  create new habitat for bobolinks or eastern meadowlarks, or

ii.  enhance an existing habitat for bobolinks or eastern meadowlarks.

6.  The person must manage, in accordance with section 18, the created or enhanced habitat under paragraph 5 for a period of five years after the habitat is created or enhanced.

7.  Before commencing the activity, the person must give the Minister a written undertaking to continue, after the end of the five-year period referred to in paragraph 6, to manage any habitat created or enhanced under paragraph 5 in accordance with section 18 until the earlier of,

i.  the end of the 20-year period that follows the creation or enhancement of the habitat under paragraph 5, or

ii.  if the area of habitat that was destroyed by the activity is eventually returned to a suitable state to be used by bobolinks or eastern meadowlarks, the day on which the area reaches that state.

8.  After the person has created or enhanced habitat under paragraph 5, the person must prepare a record of created or enhanced habitat in accordance with subsection 19 (1) and must update the record in accordance with subsection 19 (2).

9.  For a period of five years after the habitat is created or enhanced under paragraph 5, the person must monitor the area in which the habitat was created or enhanced by conducting at least three surveys every year at a time when bobolinks or eastern meadowlarks are likely to be present, to determine if the species are in fact present and, if so, to assess fledgling success.

10.  The person must,

i.  retain the record until December 31 of the final year of the five-year period during which the person must manage and monitor the new or enhanced habitat, and

ii.  provide a copy of the record to the Ministry within 14 days of receiving a request for it.

Mitigation measures

15. The following are the steps referred to in paragraph 2 of section 14 to minimize the adverse effects of the activity on the bobolink or eastern meadowlark and their habitat:

1.  The person shall ensure that no part of the activity that is likely to damage or destroy the habitat of bobolinks or eastern meadowlarks or kill, harm or harass bobolinks or eastern meadowlarks is performed between May 1 and July 31 of any year.

2.  The person shall take reasonable steps to minimize adverse effects of the activity on the bobolink and eastern meadowlark, including, if applicable, routing access roads along existing fencerows or hedgerows if possible.

Bobolink and eastern meadowlark management plan

16. (1) A bobolink and eastern meadowlark management plan referred to in paragraph 3 of section 14 shall be prepared by one or more persons with expertise in relation to bobolinks or eastern meadowlarks, or both, as the case may be, using the best available information on steps that may help minimize or avoid adverse effects on the species to which the plan relates, which includes consideration of information obtained from the Ministry, aboriginal traditional knowledge and community knowledge, if it is reasonably available.

(2) A bobolink and eastern meadowlark management plan shall, when first prepared, include the following information:

1.  The name and contact information of the person on whose behalf the activity described in subsection 13 (3) is being carried out.

2.  A description of the activity.

3.  The proposed start date of the activity.

4.  An indication as to whether the activity will be carried out on land that is habitat for bobolinks, for eastern meadowlarks, or for both, as the case may be.

5.  With respect to the area of bobolink or eastern meadowlark habitat that is likely to be damaged or destroyed by the activity,

i.  a description of the area’s location, including a detailed map,

ii.  the ecoregion in which the area is located, and

iii.  the size of the area in hectares.

(3) The bobolink and eastern meadowlark management plan shall be updated from time to time to include the following information:

1.  A description of the steps followed by the person in accordance with section 15 to minimize the adverse effects of the activity on the bobolink or eastern meadowlark and their habitat, including details of any encounters with the species.

2.  Any change to the information required under subsection (1).

New or enhanced habitat requirements

17. The habitat required to be created or enhanced under paragraph 5 of section 14 shall meet the following requirements:

1.  The habitat shall be created or enhanced in an area that meets the following criteria:

i.  The area shall be located outside of the area where the activity is carried out but within the same ecoregion as that area or in an ecoregion that is adjacent to that area.

ii.  The area shall be at least 1.5 times larger than the area of the habitat for bobolinks or eastern meadowlarks that is damaged or destroyed by the activity.

iii.  The area may be made up of separate parcels of land, but the minimum size of any individual parcel shall be no less than four hectares.

iv.  No portion of the area shall be less than 200 metres in width.

2.  A minimum of 60 to 80 per cent of the habitat shall be covered with at least three different grass species and any remaining part of the habitat that is not covered with grass species shall be covered with forbs or legumes.

3.  Among the grass species referred to in paragraph 2, at least one shall grow greater than 50 centimetres high under normal growing conditions.

New or enhanced habitat management

18. The habitat required to be created or enhanced under paragraph 5 of section 14 shall be managed in accordance with the following rules:

1.  The area in which the habitat is located shall not be harvested, mowed or cut between April 1 and July 31 of any year.

2.  If the habitat is used for pasture, grazing farm animals shall be excluded from at least 50 per cent of the habitat from April 1 until July 31 of each year.

3.  In each of the five years following the creation or enhancement of the habitat,

i.  woody vegetation and invasive species shall be removed from the habitat, and

ii.  actions shall be taken to ensure that the grass species, forbs and legumes in the habitat are maintained in the proportions described in paragraph 2 of section 17.

New or enhanced habitat record and monitoring

19. (1) A record of new or enhanced habitat referred to in paragraph 8 of section 14 shall, when first prepared, include the following information with respect to the habitat created or enhanced under paragraph 5 of section 14:

1.  A description of the area’s location, including a detailed map.

2.  The ecoregion in which the area is located.

3.  The size of the area in hectares.

4.  The composition of the soils covering the area.

5.  The percentage of the area covered by grass species at the time the record is prepared.

6.  A summary of the steps taken to create or enhance the habitat, and to manage that habitat, including:

i.  A description of the areas that have been seeded, and of the composition of the seed mixture such as the species and their relative percentage within the seed mixture.

ii.  An overview of phasing and times of the year for site preparation, planting, seeding, tending and maintenance.

iii.  A description of the practices undertaken for site preparation, planting, seeding, tending and maintenance.

7.  Photographs of the area created or enhanced as habitat that show the area prior to and after the habitat is created or enhanced.

(2) Each year, within three months of completing the monitoring of new or enhanced habitat as required under paragraph 9 of section 14, the record of new or enhanced habitat shall be updated to include the following monitoring information:

1.  For each survey taken, the number of bobolinks or eastern meadowlarks surveyed in the area.

2.  Details of any encounters with bobolinks or eastern meadowlarks.

Transition

20. Despite the revocation on December 1, 2021 of section 23.6 of Ontario Regulation 242/08 (General) made under the Act, a person who, before December 1, 2021, had submitted a notice of activity form to the Minister under section 23.6 of Ontario Regulation 242/08 with respect to an activity described in subsection 13 (3) of this Regulation and was, immediately before December 1, 2021, exempt under subsections 23.6 (2) and (3) of Ontario Regulation 242/08 from clause 9 (1) (a), subclauses 9 (1) (b) (i) and (ii) and subsection 10 (1) of the Act with respect to the activity,

(a)  is not required to register a new notice of activity form under this Regulation in order to continue being exempt from clause 9 (1) (a), subclauses 9 (1) (b) (i) and (ii) and subsection 10 (1) of the Act with respect to the activity; and

(b)  shall continue, after December 1, 2021, to be exempt under subsections 23.6 (2) and (3) of Ontario Regulation 242/08 from clause 9 (1) (a), subclauses 9 (1) (b) (i) and (ii) and subsection 10 (1) of the Act with respect to the activity, so long as the person continues to satisfy all the conditions to the exemption set out in subsections 23.6 (4) to (10) of Ontario Regulation 242/08, as those subsections read immediately before December 1, 2021.

Part V
Butternut

Definitions and Application

Definitions

21. In this Part,

“Butternut Assessment Guidelines” means the document entitled “Butternut Assessment Guidelines: Assessment of Butternut Tree Health for the Purposes of the Endangered Species Act, 2007” (Version 3), published by the Government of Ontario, dated December 2021, as amended from time to time, and available to the public on a website maintained by the Government of Ontario; (“Ligne directrice pour l’évaluation du noyer cendré”)

“butternut health expert” means an arborist, professional forester, forest technician, dendrologist, horticulturist, botanist, mycologist or plant pathologist or any other qualified professional who,

(a)  has expertise in relation to butternut, and

(b)  has the expertise, education, training and experience necessary to assess the health of butternut trees and to carry out the other responsibilities imposed on the expert under this Part; (“expert sur la santé des noyers cendrés”)

“butternut health expert’s report” means the butternut health expert’s report prepared and submitted under paragraph 2 of subsection 24 (1); (“rapport de l’expert sur la santé des noyers cendrés”)

“impactful actions” means any actions that a person undertakes with respect to a butternut tree or in the vicinity of a butternut tree that may directly impact the butternut tree by killing, harming or taking it and includes removing the tree, digging in the vicinity of the tree or any other action directed at the tree or undertaken in the vicinity of the tree that may directly result in the killing, harming or taking of the butternut tree; (“actions à incidence importante”)

“mitigation plan” means a mitigation plan that is required to be prepared by a butternut health expert under paragraph 3 of section 26; (“plan de mesures d’atténuation”)

“root harm prevention zone” means the area surrounding the stem of a butternut tree determined in accordance with subsection 31 (2); (“zone de prévention des nuisances aux racines”)

“scion” means a small portion of a butternut tree containing buds that is used for grafting; (“griffon”)

“seed zone” means a seed zone identified in the document entitled “Southern Ontario Tree Seed Zone Atlas” published by the Government of Ontario, dated 2011, as amended from time to time, and available to the public on a website maintained by the Government of Ontario. (“zone de semences”)

Application

22. This Part applies with respect to impactful actions undertaken with respect to butternut trees whether,

(a)  the results of the impactful actions are the main reason for undertaking those impactful actions; or

(b)  the impactful actions are part of, or incidental to, a larger activity such as construction, landscaping, development or similar type of project.

Categories of Trees and Prerequisites for Exemption

Categories of butternut trees

23. For the purposes of this Part , where a butternut health expert is required to assess the health of a butternut tree under this Part, the butternut health expert shall classify the butternut tree into one of the following three categories:

1.  Category 1 butternut tree — the butternut tree is affected by butternut canker to such an advanced degree that retaining the tree would not support the protection or recovery of butternut trees in the area in which the tree is located.

2.  Category 2 butternut tree — the butternut tree is not affected by butternut canker or the butternut tree is affected by butternut canker but the degree to which it is affected is not as advanced as a Category 1 butternut tree and retaining the tree could support the protection or recovery of butternut trees in the area in which the tree is located.

3.  Category 3 butternut tree — the butternut tree may be useful in determining sources of resistance to butternut canker.

Prerequisites

24. (1) The exemptions from clause 9 (1) (a) of the Act provided in subsection 25 (1) apply only if, before any impactful actions are undertaken with respect to butternut trees, the person who is responsible for the impactful actions ensures that the following prerequisites are met:

1.  A butternut health expert must assess the health of the butternut trees in accordance with the practices and requirements set out in the Butternut Assessment Guidelines.

2.  The butternut health expert who assesses the health of the butternut trees under paragraph 1 must prepare a report with respect to the assessment in accordance with subsection (2) and submit the report to the person responsible for the impactful actions.

3.  The person who receives the butternut health expert’s report under paragraph 2 must,

i.  provide a copy of the report to the Ministry; and

ii.  if the report does not identify the butternut trees that are to be killed, harmed or taken by the impactful actions nor the reasons for doing so, provide that information to the Ministry.

4.  30 days must elapse after the day the butternut health expert’s report is provided to the Ministry, so as to allow the Ministry to make a request to examine the butternut trees.

5.  If a request to examine the butternut trees is made by the Ministry within 30 days after the day the butternut health expert’s report is provided to the Ministry, an opportunity must be given to an employee of the Ministry to enter the property on which the trees are located within those 30 days and examine the trees.

(2) A butternut health expert’s report shall include the following information with respect to each butternut tree that will be impacted by the impactful actions a person proposes to undertake:

1.  The precise location of the butternut tree.

2.  The diameter of the stem of the butternut tree measured in accordance with the Butternut Assessment Guidelines and an indication of whether the stem of the tree is shorter than 1.37 metres.

3.  The classification of the butternut tree by the butternut health expert as a Category 1, 2 or 3 butternut tree.

4.  Whether the person proposing to undertake the impactful actions is proposing to kill, harm or take the butternut tree and the reason for that particular action, if known to the butternut health expert.

Exemptions

Exemptions

25. (1) Clause 9 (1) (a) of the Act does not apply to a person who kills, harms or takes one or more butternut trees, if a butternut health expert’s report referred to in section 24 has confirmed that the butternut trees are Category 1 butternut trees.

(2) Clause 9 (1) (a) of the Act does not apply to a person who kills, harms or takes one or more butternut trees if,

(a)  a butternut health expert’s report was submitted to the Ministry under section 24 confirming that the butternut trees are Category 2 or 3 butternut trees; and

(b)  the person satisfies the conditions relevant to Category 2 or 3 butternut trees, as the case may be, set out in section 26.

Note: On April 29, 2022, subsection 25 (2) of the Regulation is revoked and the following substituted: (See: O. Reg. 830/21, s. 37 (6))

(2) Clause 9 (1) (a) of the Act does not apply to a person who kills, harms or takes one or more butternut trees if a butternut health expert’s report has confirmed that the butternut trees are Category 2 or 3 butternut trees and,

(a)  the person satisfies the conditions relevant to Category 2 or 3 butternut trees, as the case may be, set out in section 26; or

(b)  the person,

(i)  pays a species conservation charge to the Species at Risk Conservation Trust in accordance with paragraph 5 of subsection 20.3 (1) of the Act and Ontario Regulation 829/21 (Species Conservation Charges) made under the Act, and

(ii)  satisfies the conditions relevant to Category 2 or 3 butternut trees, as the case may be, set out in paragraphs 1 to 5 of section 26. O. Reg. 830/21, s. 37 (6).

(3) An exemption under subsection (2) applies with respect to the killing, harming or taking of no more than 15 Category 2 butternut trees, and no more than 5 Category 3 butternut trees, that,

(a)  are located in the same area or in areas that are in close proximity; and

(b)  are to be killed, harmed or taken for the same reason or related reasons.

(4) The limitation under subsection (3) on the number of Category 2 and 3 butternut trees that a person may kill, harm or take pursuant to an exemption under subsection (2) is cumulative and includes any Category 2 and 3 butternut trees that the person has killed, harmed or taken previously under subsection (2) or under subsection 23.7 (4) of Ontario Regulation 242/08 (General) made under the Act, as it read immediately before December 1, 2021, so long as,

(a)  the trees previously killed, harmed or taken are located in the same area or in areas that are in close proximity to the areas in which the person is subsequently proposing to kill, harm or take Category 2 or 3 butternut trees; and

(b)  the reason for killing, harming or taking the trees previously is the same as or related to the reason for which the person is subsequently proposing to kill, harm or take Category 2 or 3 butternut trees.

(5) Clause 9 (1) (a) of the Act does not apply to a person who kills, harms or takes a butternut tree that was cultivated, if the person is the owner or occupier of the land on which the tree is located or is acting on behalf of the owner or occupier of such land.

(6) The exemption from clause 9 (1) (a) of the Act provided under subsection (5) does not apply in respect of a butternut tree that was planted as a result of,

(a)  the requirements for an exemption under subsection (1) or (2) or under subsection 23.7 (4) of the Ontario Regulation 242/08, as it read immediately before December 1, 2021; or

(b)  a condition of,

(i)  a permit issued under section 17 or 19 of the Act, or

(ii)  an agreement entered into under section 16, 16.1 or 19 of the Act.

(7) Clause 9 (1) (b) of the Act does not apply with respect to butternut.

(8) Subsection 10 (1) of the Act does not apply with respect to the damage or destruction of the habitat of a butternut tree that occurs when a person kills, harms or takes a butternut tree, if the person is exempt from clause 9 (1) (a) of the Act pursuant to an exemption under subsection (1), (2) or (5).

(9) Subsection 9 (1) of the Act does not apply to nuts from a butternut tree.

(10) Section 12 of Ontario Regulation 242/08 does not apply to the commercial cultivation of butternut trees.

General Conditions

Conditions, Category 2 or 3 butternut trees

26. The following are the conditions that a person who proposes to undertake impactful actions with respect to Category 2 or 3 butternut trees must satisfy for the purpose of an exemption under subsection 25 (2):

1.  After the end of the 30-day period referred to in paragraph 4 of subsection 24 (1) but before undertaking the proposed impactful actions, the person must,

i.  prepare a notice of butternut impact form containing the information required under section 27 and any other information requested on the form, in a form available on the Registry, and

ii.  submit the form to the Minister through the Registry.

2.  The person must follow the requirements of section 2 with respect to the completion of the notice of butternut impact form, the keeping of records relating to the notice of butternut impact form and the updating of the information on the Registry.

3.  The person must ensure that a mitigation plan is prepared by a butternut health expert in accordance with section 28 to provide details of the steps required under paragraph 5 and any other steps that are required to minimize or avoid the adverse effects that the proposed impactful actions will have on butternut trees and their habitat.

4.  After the mitigation plan is prepared, the person must,

i.  ensure compliance with the mitigation plan,

ii.  retain a copy of the mitigation plan for at least five years after the impactful actions have ceased, and

iii.  if requested by the Ministry, provide a copy to the Ministry within 14 days of receiving the request.

5.  The person must ensure that,

i.  any person, whether an employee, agent, contractor or other, who carries out the proposed impactful actions receives the information and training described in section 29,

ii.  measures described in sections 30 to 33 are followed where applicable,

iii.  in cases where butternut trees could be harmed by the removal of plants from any part of the habitat of butternut trees, remediation measures are carried out as soon as practically possible to address any effects the removal of the plants may have on soil conditions and vegetation cover, and

iv.  if measures required under this paragraph or under the mitigation plan have not been effective in minimizing the adverse effects of the proposed impactful actions on butternut trees and their habitat, further measures are taken as soon as practically possible to increase the effectiveness of the required measures.

6.  For each Category 2 and Category 3 butternut tree that is impacted by the proposed impactful actions, the person must plant the following number of butternut seedlings in accordance with the planting rules set out in subsection 35 (1):

i.  In the case of a Category 2 or a Category 3 butternut tree other than a Category 3 butternut tree that the person decides to archive in accordance with section 36, the number of butternut seedlings determined in accordance with subsections 34 (1) and (2) together with the number of butternut seedlings determined in accordance with subsections 34 (3) to (6).

ii.  In the case of a Category 3 butternut tree that the person decides to archive in accordance with section 36, the number of butternut seedlings determined in accordance with subsections 34 (3) to (6).

7.  The person must monitor the seedlings planted under paragraph 6 and tend to them in accordance with the rules set out in subsection 35 (2).

8.  The person must keep records with respect to the seedlings planted under paragraph 6 in accordance with subsection 35 (3).

9.  If a seedling that is planted under paragraph 6 dies within five years of being planted, the person must plant another seedling in accordance with the planting rules set out in subsection 35 (1) and must monitor and tend to that seeding, and keep records with respect to that seedling, in accordance with the rules in section 35.

10.  In the case of any Category 3 butternut tree that may be impacted by the proposed impactful actions and that the person decides to archive, the person must ensure that the Category 3 butternut tree or a substitute Category 3 butternut tree is archived in accordance with section 36.

Notice of butternut impact

27. A notice of butternut impact form referred to in paragraph 1 of section 26 shall set out,

(a)  the date on which the impactful actions shall commence;

(b)  the number of Category 2 butternut trees and of Category 3 butternut trees that will be killed, harmed or taken;

(c)  for each Category 2 and Category 3 butternut tree that will be impacted by the impactful actions, whether the tree will be killed, harmed or taken;

(d)  the location and tree identification number for each Category 2 and Category 3 butternut tree that will be impacted by the impactful actions;

(e)  the diameter of the stem of each Category 2 and Category 3 butternut tree that will be impacted by the impactful actions, measured in accordance with the Butternut Assessment Guidelines;

(f)  the reasons for undertaking the impactful actions with respect to butternut trees; and

(g)  the date that the butternut health assessment was completed and the reference number of the butternut health expert’s report regarding the butternut trees that will be impacted by the impactful actions.

Conditions to Minimize Adverse Effects

Mitigation plan

28. (1) A butternut health expert shall prepare the mitigation plan required under paragraph 3 of section 26 before the day any impactful actions with respect to butternut trees are undertaken.

(2) A mitigation plan shall set out,

(a)  the name and contact information of the person proposing to undertake the impactful actions with respect to butternut trees;

(b)  the date on which the proposed impactful actions will commence or, if the impactful actions are part of or incidental to a larger activity as described in clause 22 (b), the proposed start and completion dates of the activity;

(c)  if the proposed impactful actions are part of or incidental to a larger activity as described in clause 22 (b),

(i)  a description of the activity and its purpose, and

(ii)  a description of all stages of the activity and a timeline for each stage;

(d)  if the proposed impactful actions are not part of or incidental to a larger activity as described in clause 22 (b),

(i)  a description of the proposed impactful actions,

(ii)  a description of the timeline for carrying out the proposed impactful actions;

(e)  the geographic location of the property on which the proposed impactful actions will be undertaken and a map indicating the locations and root harm prevention zones of all butternut trees within 25 metres of the area in which the proposed impactful actions will be undertaken, whether or not the trees will be impacted by the proposed impactful actions;

(f)  detailed plans of the steps required under paragraph 5 of section 26, and of any other steps that the person proposing to undertake impactful actions must take to minimize or avoid adverse effects of the proposed impactful actions on butternut trees and their habitat;

(g)  details of the steps the person proposing to undertake the impactful actions must take to monitor,

i.  the effects of the impactful actions on butternut and the habitat of butternut, and

ii.  the effectiveness of the steps referred to in clause (f) to minimize or avoid adverse effects of the impactful actions on butternut and the habitat of butternut; and

(h)  a description of how information obtained from the Ministry and any reasonably available aboriginal traditional knowledge and community knowledge was considered in developing the mitigation plan and steps referred to in clauses (f) and (g).

Training

29. For the purposes of subparagraph 5 i of section 26, the following information and training shall be given to any person, including employees, agents or contractors, who will be carrying out impactful actions with respect to butternut trees before the impactful actions commence:

1.  The locations of all butternut trees, and their root harm prevention zones, in the area in which the impactful actions will be undertaken.

2.  How to identify butternut trees at any stage of their growth.

3.  In cases where the impactful actions are part of or incidental to a larger activity as described in clause 22 (b), the potential threat that the activity poses to butternut trees and their habitat.

4.  The steps that must be taken under the mitigation plan and under section 33 to minimize or avoid adverse effects of the impactful actions on butternut trees and their habitat.

Permanent structures and infrastructure

30. If impactful actions that are proposed with respect to butternut trees are part of or incidental to a larger activity as described in clause 22 (b) involving the construction of a structure or the installation of infrastructure, no permanent structure shall be constructed and no permanent infrastructure installed within 25 metres of a butternut tree that is to be retained unless,

(a)  it is not possible to complete the activity without constructing a permanent structure or installing permanent infrastructure within 25 metres of the retained butternut tree;

(b)  the person responsible for carrying out the activity submits to a manager of the branch of the Ministry that is responsible for species at risk a statement that,

(i)  explains why it is not possible to complete the activity without constructing a permanent structure or installing permanent infrastructure within 25 metres of a retained butternut tree, and

(ii)  includes a description of any reasonable alternatives to constructing a permanent structure or installing permanent infrastructure within 25 metres of the retained butternut tree that were considered; and

(c)  a manager of the branch of the Ministry that is responsible for species at risk approves, in writing, the location of the permanent structure or infrastructure that will be constructed or installed within 25 metres of the retained butternut tree.

Root harm prevention

31. (1) If a Category 2 or 3 butternut tree is to be retained in an area where other butternut trees will be impacted by impactful actions, or in an area where a larger activity as described in clause 22 (b) is to be carried out, the following measures shall be taken to protect the root harm prevention zone of each Category 2 or 3 butternut tree that is to be retained:

1.  Before undertaking any impactful actions,

i.  the butternut tree to be retained and its root harm prevention zone shall be marked with non-invasive marking,

ii.  if there is a risk that any impactful actions could encroach on the root harm prevention zone of the butternut tree to be retained, protective fencing shall be installed and maintained around the perimeter of the root harm prevention zone to prevent the encroachment, and

iii.  if there is a risk that any impactful actions could cause erosion in the root harm prevention zone of a butternut tree to be retained, silt fences shall be installed around the perimeter of the root harm prevention zone to prevent the erosion.

2.  The following actions shall not take place within the perimeter of the butternut tree’s root harm prevention zone:

i.  Transport or operation of heavy equipment.

ii.  Placement of temporary facilities or temporary roads for the purpose of construction.

iii.  Excavation of soil or other substrates.

iv.  Storage of materials such as excavated soil, debris or construction materials.

v.  Production of ruts or compacted soil.

vi.  Removal of vegetation in a manner that destabilizes soil.

3.  In order to prevent disturbance, compaction and erosion of soil in the root harm prevention zone and harm to the roots of the butternut tree, the actions described in paragraph 2 shall not take place within a five-metre buffer area that surrounds the perimeter of the butternut tree’s root harm prevention zone.

4.  If, despite paragraph 3, the actions described in paragraph 2 occur within the five-metre buffer area described in paragraph 3, measures shall be taken as soon as practically possible to remedy the effect of those actions on soil conditions within the buffer area.

5.  Tree and root harm prevention zone markings, fencing of root harm prevention zones and work areas shall be inspected prior to commencement of any impactful actions in order to ensure the mitigation measures intended to protect retained butternut trees are in place and effective and shall be inspected, maintained and repaired as necessary until the impactful actions cease.

(2) The root harm prevention zone of a butternut tree referred to in subsection (1) shall be the area surrounding the stem of the tree determined by,

(a)  measuring the diameter of the tree stem in accordance with the Butternut Assessment Guidelines;

(b)  determining the diameter range set out in Column 2 of the Table to this subsection within which the tree stem’s diameter falls; and

(c)  tracing around the stem of the tree a circle with a radius that is equal to the number of metres indicated in Column 3 of the Table opposite the diameter range determined under clause (b).

table
root harm prevention zone

Column 1
Item

Column 2
Tree stem diameter

Column 3
Root harm prevention zone (measured in metres from stem)

1.

Less than 3 centimetres

6

2.

At least 3 centimetres but less than 15 centimetres

9

3.

At least 15 centimetres but less than 30 centimetres

12

4.

At least 30 centimetres but less than 50 centimetres

18

5.

At least 50 centimetres

25

 

(3) For the purposes of determining the root harm prevention zone of a butternut tree under subsection (2), a butternut tree that measures less than 1.37 metres in height shall be deemed to have a tree stem diameter of less than three centimetres.

Pruning and trimming

32. If, in a notice of butternut impact form, a person proposes to harm a Category 2 or 3 butternut tree by pruning or trimming the tree, the pruning and trimming shall be conducted by a butternut health expert in a manner that minimizes harm to the tree.

Transplanting

33. (1) A person who, in a notice of butternut impact form, proposes to undertake impactful actions that may result in harm to a Category 2 butternut tree may remove the Category 2 butternut tree and transplant it in another area if,

(a)  the stem of the tree is less than 3 centimetres in diameter when measured at the height of 1.37 metres or is shorter than 1.37 metres; and

(b)  the butternut health expert who prepared the mitigation plan has indicated in the mitigation plan that, in the expert’s opinion, the tree is likely to survive if transplanted.

(2) A person who transplants a Category 2 butternut tree under subsection (1) shall ensure that the tree is transplanted only during the period of any given year that begins on September 20 and ends on October 30.

(3) A person who transplants a Category 2 butternut tree under subsection (1) shall ensure that the tree is transplanted in an area that meets the following requirements:

1.  The area must be within the same seed zone as the one in which the transplanted tree originated.

2.  The area must have soil that,

i.  is greater than one metre deep,

ii.  is moist but well-drained, and

iii.  has a fine to medium texture with a recognizable organic layer and with a pH ranging from 6.8 to 7.2.

3.  The area must provide full sunlight to the transplanted tree or be capable of providing full sunlight to the transplanted tree with tending.

4.  The area must have conditions that prevent the transplanted tree from being exposed to northerly winds.

5.  The total number of butternut trees in the area, including the transplanted tree, must not exceed 200 butternut trees in any given hectare of land.

(4) If a person transplants a Category 2 butternut tree from a shaded area to an area with full sunlight, as required under paragraph 3 of subsection (3), the person shall ensure that temporary shading measures are taken to ensure a gradual transition to full sunlight exposure.

(5) A person who transplants a Category 2 butternut tree under subsection (1) shall ensure that the tree is transplanted at least,

(a)  three metres from any other existing or transplanted butternut tree;

(b)  two metres from any existing tree or shrub that is not a butternut tree and that is likely to be the same height or shorter than the transplanted butternut tree at full growth;

(c)  four metres from any existing tree or shrub that is not a butternut tree and that is likely to be taller than the transplanted butternut tree at full growth;

(d)  five metres from the canopy drip line of trees that are greater than four metres in height at the time of transplanting; and

(e)  100 metres from a highway consisting of two or more lanes in each direction.

(6) A person who transplants a Category 2 butternut tree under subsection (1) shall ensure that,

(a)  in addition to the requirements in subsections (2) to (5), any requirements in the mitigation plan relating to the transplanting of butternut trees are satisfied;

(b)  the monitoring and tending requirements applicable to butternut seedlings under subsection 35 (2) are applied to the transplanted tree and any additional monitoring and tending requirements relating to the transplanted tree and set out in the mitigation plan are satisfied;

(c)  record keeping requirements applicable to butternut seedlings under subsection 35 (3) are applied to the transplanted tree and the records are included as an update to the mitigation plan; and

(d)  if a butternut tree that is transplanted under this section dies within five years of transplanting,

(i)  a butternut seedling is planted to replace the dead tree in accordance with the planting rules under subsection 35 (1),

(ii)  the butternut seedling is monitored and tended to in accordance with the requirements set out in subsection 35 (2) and any additional requirements set out in the mitigation plan, and

(iii)  records with respect to the planted seedling are kept in accordance with the rules set out in subsection 35 (3).

(7) The person who transplants a Category 2 butternut tree under this section shall ensure that all phytosanitary measures recommended by the butternut health expert in the mitigation plan are followed during transplanting in order to prevent the spread of any disease that is harmful to butternut to or from the location in which the butternut tree is being transplanted.

Conditions to Provide Overall Benefit to Butternut

Number of butternut seedlings to be planted

34. (1) For each Category 2 or 3 butternut tree that is killed, harmed or taken by impactful actions undertaken by a person in accordance with this Part, other than a Category 3 butternut tree that the person decides to archive in accordance with section 36, the person shall plant the number of butternut seedlings set out in Column 5 of the Table to this subsection, based on the diameter of the stem of the butternut tree that was killed, harmed or taken, measured in accordance with the Butternut Assessment Guidelines, as set out in Column 3 of the Table and on whether the person killed, harmed or took the butternut tree, as set out in Column 4 of the Table.

Table
Number of seedlings to be planted

Column 1
Item

Column 2
Category of butternut tree

Column 3
Tree stem diameter

Column 4
Act prohibited under clause 9 (1) (a) of Act

Column 5
Number of butternut seedlings to be planted

1.

Category 2

Less than 3 centimetres

Killed or taken

2

2.

Category 2

At least 3 centimetres but less than 15 centimetres

Killed or taken

5

3.

Category 2

At least 15 centimetres

Killed or taken

20

4.

Category 2

Less than 3 centimetres

Harmed

1

5.

Category 2

At least 3 centimetres but less than 15 centimetres

Harmed

3

6.

Category 2

At least 15 centimetres

Harmed

10

7.

Category 3

At least 20 centimetres

Killed or taken

200

8.

Category 3

At least 20 centimetres

Harmed

100

 

(2) For the purposes of determining the number of butternut seedlings to be planted under subsection (1),

(a)  a butternut tree that is killed, harmed or taken and that measures less than 1.37 metres in height shall be deemed to have a tree stem diameter of less than three centimetres; and

(b)  a Category 2 butternut tree that is taken and transplanted in accordance with section 33 shall be deemed not to have been taken but to have been harmed.

(3) A person who undertakes impactful actions in accordance with this Part shall plant the number of butternut seedlings determined under subsections (4) and (5) if,

(a)  more than 10 Category 2 butternut trees are killed, harmed or taken; or

(b)  one or more Category 3 butternut trees are killed, harmed or taken, whether or not any of those Category 3 butternut trees have been or will be archived in accordance with section 36.

(4) The number of butternut seedlings to be planted by a person under subsection (3) shall be equal to 17 seedlings for every hectare of land that is affected by the impactful actions undertaken by the person with respect to Category 2 and 3 butternut trees.

(5) For the purposes of subsection (4), the hectares of land that are affected by impactful actions undertaken by a person with respect to Category 2 and 3 butternut trees are equal to the total surface area, in hectares, of the horizontal plane of land formed by circles, each with a 50 metre radius, extending from each Category 2 and 3 tree that will be impacted by the person’s impactful actions, less the surface area of the impervious surfaces and surface water bodies within that plane.

(6) In subsection (5),

“impervious surface” means a surface that does not permit the infiltration of water, such as a rooftop, sidewalk, paved roadway, driveway or parking lot.

Planting rules

35. (1) The following planting rules apply to the planting of any butternut seedlings required under paragraph 6 of section 26:

1.  The planting must occur only during the following periods of each year:

i.  The period that begins on March 1 and ends on May 15.

ii.  The period that begins on September 20 and ends on October 30.

iii.  In the case of a seedling that was grown in a container which may itself be planted, the period that begins on May16 and ends on May 25.

2.  A butternut seedling must be planted within three years after the day the person responsible for the impactful actions with respect to a butternut tree submitted a notice of butternut impact form to the Minister.

3.  A butternut seedling must be planted only in the seed zone in which the seed from which the seedling was grown originated.

4.  The area in which a butternut seedling is planted must have soil that,

i.  is greater than one metre deep,

ii.  is moist but well-drained, and

iii.  has a fine to medium texture with a recognizable organic layer and with a pH ranging from 6.8 to 7.2.

5.  A butternut seedling must be planted in an area that provides full sunlight to the seedling or is capable of providing full sunlight to the seedling with tending.

6.  The area in which a butternut seedling is planted must have conditions that prevent the seedling from being exposed to northerly winds.

7.  No more than 200 seedlings shall be planted in any given hectare of land.

8.  In order to avoid a monoculture of butternut trees, deciduous trees and shrubs that are not butternut and that are native to the area in which the butternut seedlings are planted must be planted in the area and they must be planted in sufficient numbers so as to ensure that there are an equal number of butternut trees and other native Ontario tree and shrub species in the area.

9.  Butternut seedlings must be planted at least,

i.  three metres from other planted butternut seedlings,

ii.  two metres from other trees or shrubs that either exist in the area or are being planted under paragraph 8 and that are likely to be the same height or shorter than the butternut tree at full growth,

iii.  four metres from other trees or shrubs that either exist in the area or are being planted under paragraph 8 and that are likely to be taller than the butternut tree at full growth,

iv.  five metres from the canopy drip line of trees that are greater than four metres in height at the time of planting, and

v.  100 metres from a highway consisting of two or more lanes in each direction.

(2) The following are the rules for monitoring and tending to butternut seedlings that are planted as required under paragraph 7 of section 26:

1.  The butternut seedlings must be monitored in order to assess the health of the seedlings and the conditions of the habitat.

2.  The monitoring must take place once annually on or after May 15 but before September 20 of each of the first five years that follow the planting.

3.  Tending activities shall take place once a week from May 15 to September 20 during the first growing season after the seedlings are planted.

4.  Tending activities during the first growing season after the seedlings are planted will include,

i.  watering during drought or low rainfall periods,

ii.  maintenance of tree guards to protect the lower stem from rodents, and

iii.  vegetation control 60 centimetres around the base of the seedling until the seedling is above the herbaceous vegetation.

5.  Tending activities shall take place during the second to the fifth growing season after the seedlings are planted to ensure that,

i.  the seedling is watered during drought or low rainfall periods, and

ii.  vegetation is controlled 60 centimetres around the base of the seedling until it is above the herbaceous vegetation.

(3) The person who plants butternut seedlings under this Part must maintain a record of the planting, monitoring and tending activities and the record shall include,

(a)  the date the seedlings were planted;

(b)  the date of each time a person attended to monitor or tend to the seedlings;

(c)  a description of every monitoring and tending activity undertaken;

(d)  an assessment of the health status of the seedlings every time they were monitored or tended to indicating if their health is good, poor or whether they are dead; and

(e)  whether the seedlings have shown evidence of butternut canker and, if so, a description of the extent to which the seedlings are affected by butternut canker.

Archiving butternut trees

36. (1) If a person who proposes to undertake impactful actions with respect to a Category 3 butternut tree decides to archive the tree, the person shall ensure that the tree is archived by a butternut health expert.

(2) Despite subsection (1), if, in the opinion of the butternut health expert responsible for the archiving, any of the following conditions are satisfied, a substitute Category 3 butternut tree shall be archived instead of the Category 3 butternut tree that will be impacted by the proposed impactful actions:

1.  The butternut tree that will be impacted has been archived previously.

2.  The butternut tree that will be impacted is not capable of being successfully archived based on indicators of its health.

3.  There is another Category 3 butternut tree situated in proximity to the butternut tree that will be impacted that is capable of genetically duplicating the butternut tree that will be impacted and that other Category 3 butternut tree,

i.  will not be impacted by the proposed impactful actions, or

ii.  will be archived or has been archived previously.

(3) A Category 3 butternut tree shall not be used as a substitute tree for the purposes of archiving if, in the opinion of the butternut health expert conducting the archiving, any of the conditions described in subsection (2) apply with respect to that tree.

(4) Archiving of a Category 3 butternut tree shall be conducted in accordance with the following rules:

1.  The tree shall be marked with non-invasive marking indicating that the tree is to be archived.

2.  The root harm prevention zone of the tree shall be marked with non-invasive marking.

3.  Before a Category 3 butternut tree is killed, harmed or taken, at least 50 butternut scions shall be removed from the tree in a manner that minimizes harm to the tree and in accordance with the rules set out in subsection (5).

4.  At least 30 of the butternut scions removed under paragraph 3 shall be grafted to suitable rootstock.

5.  Grafts of butternut scions shall be maintained and tended to for the first two years after grafting in an environment, such as a greenhouse or cold storage area, that facilitates the survival and growth of the grafts.

6.  A graft shall be maintained in an environment described in paragraph 5 for a third year if, in the opinion of a butternut health expert, it is necessary to do so for the health and survival of the graft.

7.  At the end of the period referred to in paragraph 5 or 6, as the case may be, a graft shall be planted in an archive, conservation nursery, botanical garden, conservation area or arboretum at an appropriate time of year.

8.  Grafts shall be tended to and monitored for at least three years following the date of planting to increase the likelihood of successful establishment.

(5) The following are the rules that apply to the removal of scions from a Category 3 butternut tree for the purposes of paragraph 3 of subsection (4):

1.  The removal must take place during the month of February or March.

2.  The scions must be removed from the top branches of the tree.

3.  Each removed scion shall represent at least two years of growth by the tree.

4.  Scions that are being transported after removal must be kept frozen during transport.

5.  All necessary phytosanitary measures must be taken to prevent the spread of disease to or from the location of the tree being archived.

(6) The person who decides to archive a Category 3 butternut tree shall ensure that records of the archiving of the tree, or its substitute, are prepared and submitted to the Ministry on or before December 31 of the first year in which the archiving takes place.

(7) An archiving record prepared under subsection (6) shall include,

(a)  the number of scions that were removed from the tree;

(b)  the number of grafts carried out and the number that survived as of the day the archiving record is submitted; and

(c)  the number of grafts planted and the location in which they were each planted, whether an archive, conservation nursery, botanical garden, conservation area or arboretum.

(8) The person who decides to archive a Category 3 butternut tree shall ensure that an update of the archiving records prepared under subsection (6) is prepared and submitted to the Ministry on or before December 31 of each of the five years following the year of the first archiving record submission.

(9) The person who decides to archive a Category 3 butternut tree shall,

(a)  retain a copy of the records prepared and updated under subsections (6) and (8) for at least five years after the last year in which an update was prepared; and

(b)  provide a copy of the records to the Ministry within 14 days of receiving a request for the records.

Part VI (OMITTED)

37. Omitted (provides for amendments to this Regulation).

38. Omitted (provides for coming into force of provisions of this Regulation).

 

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