O. Reg. 293/11: GENERAL
filed June 24, 2011 under Endangered Species Act, 2007, S.O. 2007, c. 6
Skip to contentontario regulation 293/11
made under the
Endangered Species Act, 2007
Made: June 22, 2011
Filed: June 24, 2011
Published on e-Laws: June 28, 2011
Printed in The Ontario Gazette: July 9, 2011
Amending O. Reg. 242/08
(General)
1. Ontario Regulation 242/08 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.
2. 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.
3. (1) 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.
(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.
(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.
(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).
(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.
(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.
(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.
(2) Section 23.1 of the Regulation, as made by subsection (1), is revoked.
4. 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.
(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.
(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.
(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.
5. 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.
(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.
6. 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.
Commencement
7. (1) Subject to subsection (2), this Regulation comes into force on the later of July 1, 2011 and the day it is filed.
(2) Subsection 3 (2) comes into force on December 31, 2014.