O. Reg. 328/22: GENERAL

filed April 8, 2022 under Endangered Species Act, 2007, S.O. 2007, c. 6

ontario regulation 328/22

made under the

Endangered Species Act, 2007

Made: March 31, 2022
Filed: April 8, 2022
Published on e-Laws: April 8, 2022
Printed in The Ontario Gazette: April 23, 2022

Amending O. Reg. 242/08

(GENERAL)

1. Section 0.1 of Ontario Regulation 242/08 is revoked and the following substituted:

Application

0.1 (1) This Regulation applies to all species on the Species at Risk in Ontario List, as that list read on January 26, 2022, subject to subsections (2) and (3).

(2) If a regulation is made under section 8.1 of the Act that temporarily suspends the application of all of the prohibitions in subsections 9 (1) and 10 (1) of the Act with respect to a species listed on the Species at Risk in Ontario List, this Regulation does not apply to the species during the period of suspension.

(3) If a regulation is made under section 8.1 of the Act that temporarily suspends the application of one or more, but not all, of the prohibitions in subsections 9 (1) and 10 (1) of the Act with respect to a species listed on the Species at Risk in Ontario List, this Regulation shall apply to the species during the period of suspension, but only in respect of the prohibitions that are not suspended by the regulation made under section 8.1 of the Act.

2. (1) The Table to subsection 23.9 (2) of the Regulation is amended by adding the following item:

1.1

Vascular plants

Eastern False Rue-anemone

Enemion biternatum

(2) Item 3 to the Table to subsection 23.9 (2) of the Regulation is revoked.

3. (1) Subsections 23.13 (1), (2) and (2.1) of the Regulation are revoked and the following substituted:

Transition — activity ongoing when prohibitions first apply

23.13 (1) In this section,

“prohibition date” means the day determined in accordance with the rules set out in subsection (2.1); (“date d’interdiction”)

“regulatory condition” means a regulatory condition described in Column 3 of Table 1 of this section that applies to a Table 1 activity set out in Column 2 of the Table opposite the regulatory condition; (“condition réglementaire”)

“relevant species” means,

(a) a transition species, or

(b) a species identified in Columns 3 and 4 of Table 2 of this section that was listed as a species on the Species at Risk in Ontario List as an endangered or threatened species for the first time in 2013 or in a subsequent year referred to in Column 2 of that Table; (“espèce concernée”)

“Table 1 activity” means an activity described in Column 2 of Table 1 of this section; (“activité figurant au tableau 1”)

“transition species” means a species identified in Columns 3 and 4 of Table 2 of this section that was listed on the Species at Risk in Ontario List as an endangered or threatened species for the first time before 2013. (“espèce touchée par des mesures transitoires”)

(2) Subsections (5) to (15) apply with respect to a Table 1 activity that may have an adverse effect on a relevant species if,

(a) the regulatory condition for the Table 1 activity is satisfied on a day that is either before or after, but no later than two years after, the prohibition date for the relevant species; and

(b) the Table 1 activity is commenced no later than the date determined under subsection (2.2).

(2.1) The prohibition date for a relevant species is determined in accordance with the following rules:

1. In the case of a transition species, the prohibition date is June 30, 2013, being the date on which the prohibitions in clause 10 (1) (a) of the Act began to apply to transition species.

2. In the case of a relevant species in respect of which a regulation made under section 8.1 of the Act has temporarily suspended the application of one or more of the prohibitions in subsection 9 (1) or 10 (1) of the Act, the prohibition date is,

i. the day immediately following the end of the period of suspension, or

ii. if the regulation made under section 8.1 of the Act provided for different periods of suspension in relation to different prohibitions in subsections 9 (1) and 10 (1) of the Act, the day immediately following the end of the period of suspension that ends the latest.

3. In the case of a relevant species other than a relevant species described in paragraph 1 or 2, the prohibition date is the day on which the relevant species is listed on the Species at Risk in Ontario List as an endangered or threatened species for the first time.

(2.2) For the purposes of clause (2) (b), the date by which a Table 1 activity must be commenced is,

(a) where the activity may have an adverse effect on a transition species, June 30, 2015; and

(b) where the activity may have an adverse effect on a relevant species other than a transition species,

(i) the day that is five years after the day the regulatory condition for the activity is satisfied, unless the regulatory condition was satisfied three years or more before the prohibition date for the relevant species, and

(ii) if the regulatory condition for the activity was satisfied three years or more before the prohibition date for the relevant species, the day that is two years after the prohibition date for the relevant species.

(2) Subsection 23.13 (3) of the Regulation is amended by striking out “item 8, 9 or 11 of the Table to subsection (2)” and substituting “item 9, 10 or 12 of Table 1 to this section”.

(3) Subsections 23.13 (5) and (6) of the Regulation are amended by striking out “an activity described in subsection (2)” wherever it appears and substituting in each case “a Table 1 activity”.

(4) Subsection 23.13 (7) of the Regulation is amended by striking out “an activity described in subsection (2)” in the portion before paragraph 1 and substituting “a Table 1 activity”.

(5) Paragraph 3 of subsection 23.13 (7) of the Regulation is revoked and the following substituted:

3. The person must give the notice of activity form before commencing the activity, subject to paragraph 3.1.

3.1 If a species has been listed on the Species at Risk in Ontario List as an endangered or threatened species for the first time and the activity has commenced before the day a regulation is made amending this section by adding the species as a relevant species listed in Table 2 of this section, the person must give the notice of activity form promptly after the day the amending regulation comes into force.

(6) Subsection 23.13 (8) of the Regulation is amended by striking out “an activity” in the portion before paragraph 1 and substituting “a Table 1 activity”.

(7) Subsection 23.13 (10) of the Regulation is amended by striking out “an activity described in subsection (2)” in the portion before paragraph 1 and substituting “a Table 1 activity”.

(8) Subsection 23.13 (11) of the Regulation is revoked and the following substituted:

(11) If a person proposes to carry out a development activity described in item 15 of Table 1 of this section and the issuance of a renewable energy approval under Part V.0.1 of the Environmental Protection Act has not occurred on or before the prohibition date for a relevant species that may be adversely affected by the activity, the person must prepare a mitigation plan in respect of the activity before,

(a) in the case of a person who has submitted an application for the renewable energy approval on or before the prohibition date, the day the renewable energy approval is issued; or

(b) in the case of a person who has not submitted an application for the renewable energy approval on or before the prohibition date, the day the person submits the application.

(9) Clause 23.13 (13) (b) of the Regulation is amended by striking out “activity” wherever it appears and substituting in each case “Table 1 activity”.

(10) Subsection 23.13 (14) of the Regulation is amended by striking out “an activity” and substituting “a Table 1 activity”.

(11) Subsection 23.13 (19) of the Regulation is amended by striking out “an activity” in the portion before clause (a) and substituting “a Table 1 activity”.

(12) Tables 1, 2, 3, 4 and 5 of Section 23.13 of the Regulation are revoked and the following substituted:

Table 1
activities and Regulatory conditions

Column 1 Item	Column 2 Activity	Column 3 Regulatory Condition
1.	Constructing drainage works under an agreement under subsection 2 (2) of the Drainage Act	Filing of agreement under subsection 2 (2) of the Drainage Act
2.	Constructing drainage works in respect of which an engineer’s report was adopted under subsection 45 (1) of the Drainage Act	Adoption of engineer’s report under subsection 45 (1) of the Drainage Act
3.	Laying down highways and lots upon the ground within a plan of subdivision under the authority of subsection 51 (57) of the Planning Act	Approval of the draft plan of subdivision under the Planning Act
4.	Development of land within a plan of subdivision approved under the Planning Act, including a plan of subdivision registered under the Registry Act or the Land Titles Act	Approval of draft plan of subdivision under the Planning Act
5.	Development in an area designated as a site plan control area under subsection 41 (2) of the Planning Act and in respect of which appropriate approvals have been obtained under subsection 41 (4) of that Act	Granting of appropriate approvals under the Planning Act
6.	Development that is authorized by a development permit issued under Ontario Regulation 608/06 (Development Permits) made under the Planning Act after 2005	Issuance of development permit
7.	Development that is authorized by a community planning permit system established in accordance with section 70.2 of the Planning Act.	Issuance of community planning permit
8.	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, in respect of which a declaration and description are approved or exempted under section 9 of the Condominium Act, 1998	Approval or exemption of declaration and description
9.	Carrying out an undertaking in respect of which approval to proceed was given under Part II of the Environmental Assessment Act	Granting of approval to proceed with the undertaking
10.	Carrying out an undertaking to which a class environmental assessment approved under Part II.1 of the Environmental Assessment Act applies and in respect of which the requirements that are necessary to proceed with the undertaking under the class environmental assessment have been satisfied	Meeting the necessary requirements
11.	Carrying out a transit project, as defined in subsection 1 (1) of Ontario Regulation 231/08 (Transit Projects and Metrolinx Undertakings) made under the Environmental Assessment Act, in respect of which the Minister has given a notice to proceed with the transit project under clause 12 (1) (a) or (c) of Ontario Regulation 231/08	Giving of notice to proceed with the transit project
12.	Carrying out an undertaking that is designated as an undertaking to which the Environmental Assessment Act applies under Ontario Regulation 116/01 (Electricity Projects) made under that Act, that is required under that regulation to be carried out in accordance with the Environmental Screening Process described in that regulation and in respect of which all the requirements of the Environmental Screening Process that are necessary to proceed with the undertaking have been satisfied	Meeting all the necessary requirements of the Environmental Screening Process
13.	Carrying out an undertaking that is designated as an undertaking to which the Environmental Assessment Act applies under Ontario Regulation 101/07 (Waste Management Projects) made under that Act, that is required under that regulation to be carried out in accordance with the Environmental Screening Process for Waste Management Projects described in that regulation and in respect of which all the requirements of the Environmental Screening Process for Waste Management Projects that are necessary to proceed with the undertaking have been satisfied	Meeting all the necessary requirements of the Environmental Screening Process for Waste Management Projects
14.	Constructing a hydrocarbon line or station under the authority of an order made under Part VI of the Ontario Energy Board Act, 1998	Making the order under Part VI of the Ontario Energy Board Act, 1998
15.	Constructing a renewable energy generation facility under the authority of, and in accordance with, a renewable energy approval issued under Part V.0.1 of the Environmental Protection Act	Issuance of the renewable energy approval under Part V.0.1 of the Environmental Protection Act
16.	An activity described in section 3 of Ontario Regulation 350/12 (Registrations under Part II.2 of the Act — Solar Facilities) made under the Environmental Protection Act in respect of which a confirmation of registration has been provided under section 20.22 of that Act by the Director appointed under section 5 of that Act	Provision of confirmation of registration under section 20.22 of the Environmental Protection Act
17.	Advanced exploration carried out under Part VII of the Mining Act in respect of which the Director of Mine Rehabilitation has issued a written confirmation of filing of a closure plan under clause 140 (2) (a) of that Act	Receipt of written confirmation from the Director of Mine Rehabilitation
18.	Mine production carried out under Part VII of the Mining Act in respect of which the Director of Mine Rehabilitation has issued a written confirmation of filing of a closure plan under clause 141 (2) (a) of that Act	Receipt of written confirmation from the Director of Mine Rehabilitation
19.	Rehabilitation of a mine hazard in compliance with a closure plan submitted pursuant to an order made under subsection 147 (1) of the Mining Act	Filing of closure plan
20.	Voluntary rehabilitation of a mine hazard that was approved by the Director of Mine Rehabilitation under section 139.2 of the Mining Act	Granting of approval by the Director of Mine Rehabilitation

Table 2
Relevant Species

Column 1 Item	Column 2 Year of Listing	Column 3 Species Grouping	Column 4 Common Name	Column 5 Scientific Name
1.	Prior to 2013	Vascular Plants	American Chestnut	Castanea dentata
2.	Prior to 2013	Vascular Plants	American Columbo	Frasera caroliniensis
3.	Prior to 2013	Vascular Plants	American Ginseng	Panax quinquefolius
4.	Prior to 2013	Vascular Plants	American Water-willow	Justicia americana
5.	Prior to 2013	Vascular Plants	Branched Bartonia	Bartonia paniculata
6.	Prior to 2013	Vascular Plants	Bluehearts	Buchnera americana
7.	Prior to 2013	Vascular Plants	Butternut	Juglans cinerea
8.	Prior to 2013	Vascular Plants	Cherry Birch	Betula lenta
9.	Prior to 2013	Vascular Plants	Colicroot	Aletris farinosa
10.	Prior to 2013	Vascular Plants	Deerberry	Vaccinium stamineum
11.	Prior to 2013	Vascular Plants	Dense Blazing Star	Liatris spicata
12.	Prior to 2013	Vascular Plants	Dwarf Hackberry	Celtis tenuifolia
13.	Prior to 2013	Vascular Plants	Eastern False Rue-anemone	Enemion biternatum
14.	Prior to 2013	Vascular Plants	Forked Three-awned Grass	Aristida basiramea
15.	Prior to 2013	Vascular Plants	Gattinger’s Agalinis	Agalinis gattingeri
16.	Prior to 2013	Vascular Plants	Hill’s Thistle	Cirsium hillii
17.	Prior to 2013	Vascular Plants	Houghton’s Goldenrod	Solidago houghtonii
18.	Prior to 2013	Vascular Plants	Kentucky Coffee-tree	Gymnocladus dioicus
19.	Prior to 2013	Vascular Plants	Lakeside Daisy	Tetraneuris herbacea
20.	Prior to 2013	Vascular Plants	Lowland Toothcup	Rotala ramosior
21.	Prior to 2013	Vascular Plants	Round-leaved Greenbrier	Smilax rotundifolia
22.	Prior to 2013	Vascular Plants	Scarlet Ammannia	Ammannia robusta
23.	Prior to 2013	Vascular Plants	Small-flowered Lipocarpha	Cyperus subsquarrosus
24.	Prior to 2013	Vascular Plants	White Prairie Gentian	Gentiana alba
25.	Prior to 2013	Vascular Plants	White Wood Aster	Eurybia divaricata
26.	Prior to 2013	Vascular Plants	Wild Hyacinth	Camassia scilloides
27.	Prior to 2013	Vascular Plants	Willowleaf Aster	Symphyotrichum praealtum
28.	Prior to 2013	Molluscs	Kidneyshell	Ptychobranchus fasciolaris
29.	Prior to 2013	Molluscs	Mapleleaf	Quadrula quadrula
30.	Prior to 2013	Molluscs	Northern Riffleshell	Epioblasma torulosa rangiana
31.	Prior to 2013	Molluscs	Rayed Bean	Villosa fabalis
32.	Prior to 2013	Molluscs	Round Hickorynut	Obovaria subrotunda
33.	Prior to 2013	Molluscs	Round Pigtoe	Pleurobema sintoxia
34.	Prior to 2013	Molluscs	Salamander Mussel	Simpsonaias ambigua
35.	Prior to 2013	Molluscs	Snuffbox	Epioblasma triquetra
36.	Prior to 2013	Insects	Aweme Borer Moth	Papaipema aweme
37.	Prior to 2013	Fishes	American Eel	Anguilla rostrata
38.	Prior to 2013	Fishes	Black Redhorse	Moxostoma duquesnei
39.	Prior to 2013	Fishes	Channel Darter	Percina copelandi
40.	Prior to 2013	Fishes	Cutlip Minnow	Exoglossum maxillingua
41.	Prior to 2013	Fishes	Lake Chubsucker	Erimyzon sucetta
42.	Prior to 2013	Fishes	Northern Madtom	Noturus stigmosus
43.	Prior to 2013	Fishes	Shortjaw Cisco	Coregonus zenithicus
44.	Prior to 2013	Fishes	Shortnose Cisco	Coregonus reighardi
45.	Prior to 2013	Fishes	Spotted Gar	Lepisosteus oculatus
46.	Prior to 2013	Amphibians	Allegheny Mountain Dusky Salamander	Desmognathus ochrophaeus
47.	Prior to 2013	Amphibians	Small-mouthed Salamander	Ambystoma texanum
48.	Prior to 2013	Reptiles	Blanding’s Turtle	Emydoidea blandingii
49.	Prior to 2013	Reptiles	Eastern Hog-nosed Snake	Heterodon platirhinos
50.	Prior to 2013	Reptiles	Massasauga (Great Lakes/ St. Lawrence population)	Sistrurus catenatus
51.	Prior to 2013	Reptiles	Spiny Softshell	Apalone spinifera
52.	Prior to 2013	Reptiles	Spotted Turtle	Clemmys guttata
53.	Prior to 2013	Birds	Acadian Flycatcher	Empidonax virescens
54.	Prior to 2013	Birds	Least Bittern	Ixobrychus exilis
55.	Prior to 2013	Birds	Northern Bobwhite	Colinus virginianus
56.	Prior to 2013	Mammals	Caribou (Boreal population)	Rangifer tarandus
57.	Prior to 2013	Mammals	Gray Fox	Urocyon cinereoargenteus
58.	Prior to 2013	Mammals	Wolverine	Gulo gulo
59.	2013	Fishes	Pugnose Minnow	Opsopoeodus emiliae
60.	2013	Fishes	Silver Chub	Macrhybopsis storeriana
61.	2013	Birds	Yellow-breasted Chat	Icteria virens
62.	2013	Mammals	Little Brown Myotis	Myotis lucifugus
63.	2013	Mammals	Northern Myotis	Myotis septentrionalis
64.	2014	Molluscs	Lilliput	Toxolasma parvum
65.	2014	Molluscs	Threehorn Wartyback	Obliquaria reflexa
66.	2014	Birds	Bank Swallow	Riparia riparia
67.	2014	Mammals	Eastern Small-footed Myotis	Myotis leibii
68.	2016	Vascular Plants	Blue Ash	Fraxinus quadrangulata
69.	2016	Mammals	Algonquin Wolf	Canis sp.
70.	2016	Mammals	Tri-colored Bat	Perimyotis subflavus
71.	2017	Birds	Louisiana Waterthrush	Parkesia motacilla
72.	2022	Vascular Plants	Black Ash	Fraxinus nigra
73.	2022	Birds	Hudsonian Godwit	Limosa haemastica
74.	2022	Birds	Red-headed Woodpecker	Melanerpes erythrocephalus

4. (1) Item 1 of the Table to subsection 23.14 (2) of the Regulation is amended by striking out its scientific name set out in Column 4 of the Table and substituting “Ripariosida hermaphrodita”.

(2) The Table to subsection 23.14 (2) of the Regulation is amended by adding the following item:

2.2

Insects

False-foxglove Sun Moth

Pyrrhia aurantiago

5. (1) Item 8 of the Table to subsection 23.18 (8) of the Regulation is amended by striking out its scientific name set out in Column 4 of the Table and substituting “Ripariosida hermaphrodita”.

(2) The Table to subsection 23.18 (8) of the Regulation is amended by adding the following items:

0.1

Lichens

Golden-eye Lichen (Great Lakes population)

Teloschistes chrysophthalmus

. . . . .

8.1	Vascular Plants	Gillman’s Goldenrod	Solidago gillmanii
8.2	Vascular Plants	Hairy Valerian	Valeriana edulis ssp. ciliata

. . . . .

9.1	Molluscs	Carolina Mantleslug	Philomycus carolinianus
9.2	Molluscs	Eastern Banded Tigersnail	Anguispira kochi kochi
9.3	Molluscs	Shagreen	Inflectarius inflectus
9.4	Molluscs	Toothed Globe	Mesodon zaletus

. . . . .

10.4	Insects	False-foxglove Sun Moth	Pyrrhia aurantiago
10.5	Insects	Transverse Lady Beetle	Coccinella transversoguttata
10.6	Fishes	Lake Whitefish (Opeongo Lake Large-bodied populations)	Coregonus clupeaformis
10.7	Fishes	Lake Whitefish (Opeongo Lake Small-bodied populations)	Coregonus clupeaformis

Commencement

6. This Regulation comes into force on the later of May 31, 2022 and the day it is filed.

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O. Reg. 328/22: GENERAL

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