Context

The General Regulation O. Reg. 242/08 under the Endangered Species Act (ESA) allows certain activities to proceed that would otherwise contravene the species and habitat protection provisions of the ESA. The species and habitat protection provisions of the ESA prohibit the killing, harming, and harassing of Bobolink and Eastern Meadowlark as well as the damaging or destroying of their habitat. Section 4.1 of O. Reg. 242/08 (the exemption Regulation) allows “agricultural operations” to continue where Bobolink and Eastern Meadowlark occur on the landscape.

Purpose

To provide clarity on the implementation of the exemption Regulation as it applies to Bobolink and Eastern Meadowlark (the “Species”) with respect to “agricultural operations” in Ontario.

Applicability

  • Section 4.1 of the exemption Regulation defines “agricultural operations” as:
    • “an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward and includes:
      1. draining, irrigating or cultivating land,
      2. growing, producing or raising farm animals,
      3. the production of agricultural crops, including greenhouse crops, maple syrup, mushrooms, nursery stock, tobacco, trees and turf grass,
      4. the production of eggs, cream and milk,
      5. the operation of agricultural machinery and equipment,
      6. ground and aerial spraying,
      7. the management of materials containing nutrients for farm purposes,
      8. the processing by a farmer of the products produced primarily from the farmer’s agricultural operation, and
      9. activities that are a necessary but ancillary part of an agricultural operation such as   the use of transport vehicles for the purposes of the agricultural operation.”
  • Although, under the exemption, a person may carry out an agricultural operation that kills, harms or harasses a member of the Species without violating the ESA, landowners are encouraged to avoid killing, harming, or harassing members of the Species by harvesting crops at times that do not coincide with the Species’ sensitive life cycle periods of breeding, nesting, and rearing young.
  • Although, under the exemption, a person may carry out an agricultural operation that damages or destroys the Species’ habitat (e.g. nests) without violating the ESA, landowners are encouraged to continue to carry out agricultural practices that provide habitat for the Species.
  • The general habitat description outlines the habitat which the Species depends upon to carry on its life process. The Species’ habitat can be identified using survey methodology, or through observations of Bobolink and Eastern Meadowlark nesting or territorial behaviour.
  • Activities that are not deemed “agricultural operations” that damage or destroy Bobolink and Eastern Meadowlark habitat are not eligible for the exemption, including, for example, residential development, industrial development, renewable energy projects, or aggregate operations.
  • An important element of the exemption is that an “agricultural operation” will be exempt from the ESA’s prohibition against damaging or destroying habitat of the species only if the area of habitat damaged or destroyed remains suitable for an agricultural operation. For example, the conversion of grassland habitat into a field with a crop type that is unsuitable as habitat for the species would be exempt because the field remains suitable for an agricultural operation. However, conversion of grassland habitat so that it is no longer suitable as habitat for the species and is also unsuitable for an agricultural operation (e.g., it is suitable only for residential development, industrial development, renewable energy generation, or aggregate operations) would not meet the requirements of the exemption.
  • Safe harbour instruments enable landowners and others to create or enhance species at risk habitat, for a limited period of time, while retaining the legal assurances that they may modify the habitat at a later date. Land that is managed to provide grassland habitat for Bobolink and Eastern Meadowlark may be eligible for a safe harbour agreement under the ESA.
  • This exemption only applies to Bobolink and Eastern Meadowlark; it does not provide a general exemption from the ESA’s protections for “agricultural operations” that affect other species at risk.
  • The exemption Regulation will remain in effect until Dec 31, 2025. Monitoring and evaluation will be done throughout the duration of the exemption to inform and refine species and habitat protection and recovery actions as required.

Generally compatible activities under 4.1 of O. Reg. 242/08

  • Activities that maintain grasslands on the landscape including crop rotation, growing of hay and forage crops, grazing of livestock
  • Operation of agricultural machinery and equipment
  • Draining, irrigating or cultivating land
  • Conversion of grassland habitat to other crop types including row crops and trees

Generally incompatible activities under 4.1 of O. Reg. 242/08

  • Conversion of grassland habitat supporting Bobolink and Eastern Meadowlark into an area that does not support the Species through non-agricultural operations
  • Plowing under or otherwise removing grassland habitat supporting Bobolink or Eastern Meadowlark as part of or to facilitate a land development undertaking or any other non-agricultural use

Frequently asked questions

  1. Q: I am a farmer with Bobolinks nesting in my hayfield; will I be charged if I harvest my crop and accidentally destroy a nest and/or harm these birds?
    A: The Bobolink and Eastern Meadowlark exemption Regulation gives farmers the ability to harvest their crops and destroy nests or harm birds if necessary without contravening the ESA. Hayfields and pasture lands created and maintained by farmers provide important habitat for these species. Where feasible, farmers are encouraged to take steps to let these birds finish nesting before harvesting crops in areas that provide habitat.
  2. Q: I am a farmer with a hayfield; can I rotate my crops to maintain soil health?
    A: Rotating crops as part of an agricultural operation does not require a permit or an authorization if it is done under the agricultural exemption for Bobolink and Eastern Meadowlark. The Regulation includes a list of eligible agricultural operations, which includes cultivating land and the production of agricultural crops.
  3. Q: I am a landowner with a hayfield that has Bobolink and Eastern Meadowlark nesting in it; can I build a residence and/or lease an area for industrial use?
    A: Changing the land use of an area that has been used by Bobolink and Eastern Meadowlark to a non-agriculture use will require a permit or other authorization under the ESA. For example, severing a lot in a hayfield that is the Species’ habitat and building on it, or allowing development to occur on a hayfield that is habitat is not eligible for this exemption. Further to this, not every activity conducted by a farmer is by definition an “agricultural operation” falling within the scope of the exemption. An activity conducted by a farmer that destroys habitat of a Species as part of a development undertaking or to facilitate such an undertaking is not an eligible “agricultural operation”.
  4. Q: I am a landowner with grassland habitat that supports Bobolink and Eastern Meadowlark; can I plant trees on this land?
    A: The Regulation provides a list of activities that are considered agricultural operations, which includes the production of nursery stock and trees. The exemption Regulation allows agricultural operations to damage or destroy habitat for Bobolink and Eastern Meadowlark as long as the area of habitat damaged or destroyed remains suitable for an agricultural operation. See section 4.1 of the Regulation for the list of activities included as agricultural operations that would be eligible.
  5. Q: I am a landowner and have been working hard to protect grassland species at risk. If I decide to sell my land, can I do anything to ensure the new owners continue to protect the habitat?
    A: Land that is habitat for Bobolink and Eastern Meadowlark remains eligible for the exemption Regulation if it is sold to a new landowner such that a new owner could damage or destroy the Species’ habitat in the course of conducting an agricultural operation. Certain activities that are exempt under the Regulation may drive these birds away, through effects on the birds and their habitat. To ensure that grassland habitat is preserved to continue to support the Species, consideration may be given to placing a conservation easement on the lands, or entering into a safe harbour agreement.
  6. Q: I am a landowner who has been working hard to protect grassland species at risk. Can I convert the land out of being habitat (i.e. making it no longer usable for the species at risk)?
    A: If your land has been habitat for Bobolink or Eastern Meadowlark, under the exemption you can convert it to another use if you are carrying out an agricultural operation, and if the area remains suitable for an agricultural operation. If you wish to convert the habitat to another use and the area is no longer suitable for agricultural operations, an ESA authorization may be required. Safe harbour provisions may be available to you depending on the circumstances.
    Please also note that other species at risk are not covered under this exemption Regulation, and the provisions of the ESA would continue to apply these species.
  7. Q: I am not a farmer but I lease my land to a farmer who manages my hayfields. Is the tenant farmer eligible for the agricultural exemption?
    A: Yes. If the tenant farmer carries out agricultural operation such as haying in accordance with the Regulation, the exemption will apply in respect of Bobolink and Eastern Meadowlark. This means that any habitat the tenant farmer damages or destroys through their agricultural operation must remain suitable for an agricultural operation.
  8. Q: I want to build a new feed storage bin and enlarge my dairy barn on adjacent pasture. Is that activity covered by the agricultural exemption?
    A: Yes. Construction of feed bins to contain food for livestock or other farm animals, and barns to house farm animals, are necessary but ancillary parts of agriculture operations, and thus the exemption in respect of the Species will apply to these activities.

Additional information and resources

The resource links below provide information on these two grassland bird species, their habitat, and stewardship actions that Ontarians can take to benefit these and other grassland species.