Safe harbour habitat under the Endangered Species Act

1.0 Introduction

Ontario has a natural wealth of ecosystems, species and genetic diversity. This vast biodiversity contributes to our overall health, wellbeing and prosperity. Unfortunately, Ontario’s biodiversity is declining. In part, this is reflected through the growing number of species at risk, particularly in areas of the province where our population’s ecological footprint is largest. Through the Endangered Species Act, 2007 (ESA), the Government of Ontario is committed to the protection and recovery of species at risk. This focus on species at risk contributes to Ontario’s enhanced resilience against biodiversity loss (Biodiversity: It’s in Our Nature 2012).

Ontario’s species at risk represent a variety of plants and animals that occur in diverse habitats across the province. These habitats span public and private property, and consist of both natural and man-made features. The Government of Ontario recognizes the important role Ontarians play in valuing, enhancing and protecting species at risk, particularly on private land. It is also recognized that a level of concern and uncertainty exists around what can be done on private property in the presence of species at risk and their habitats, particularly for species listed as endangered or threatened on the Species at Risk in Ontario (SARO) List (Ontario Regulation 230/08). Sections 9 and 10 of the ESA provide for the protection of endangered and threatened species and their habitats:

• Section 9 of the ESA prohibits activities that result in the kill, harm, harass, capture or take of a living member of an extirpated, endangered or threatened species. Additional guidance on this provision is provided in Policy Guidance on Harm and Harass under the Endangered Species Act (2014).
• Section 10 of the ESA prohibits the damage or destruction of the habitat of an endangered or threatened species. Categorizing and Protecting Habitat under the Endangered Species Act (2012) provides guidance on whether a proposed activity may be prohibited under this provision.

To address concerns about future land use restrictions resulting from attracting and increasing species at risk on private property, the general regulation under the ESA was amended in 2013 to provide a regulatory framework for the development of safe harbour habitat (s. 23.16, Ontario Regulation 242/08). These new provisions promote stewardship and beneficial activities for species at risk in Ontario. More specifically, safe harbour habitat is scoped to the voluntary creation, or in limited circumstances enhancement, of habitat for species at risk. Safe harbour habitat must be maintained for a set period of time that will achieve a positive outcome for the species. Following this time period, and provided that any additional conditions have been met, landowners may choose to alter (i.e. damage or destroy) the safe harbour habitat, with the assurance that their land use activities will not be limited under the ESA.

The premise of safe harbour habitat is that most landowners will voluntarily continue to manage their land for the benefit of species at risk past the minimum set period of time. On a provincial scale, safe harbour habitat initiatives could play a critical role in increasing the available habitat for species in areas where it is needed the most. The concept of safe harbour habitat under the ESA is a reflection of the important role that private landowners play in the protection and recovery of species at risk.

2.0 Purpose

Threats to species at risk are complex and diverse. No single solution will effectively recover rare or declining species. Safe harbour habitat is one in a suite of complimentary tools developed to provide conservation outcomes for species at risk. It is intended to promote stewardship-driven and beneficial activities focused on increasing the amount of habitat that is available to species at risk within the province.

Given the diversity of species at risk and land use activities across the landscape, safe harbour habitat is not appropriate for all species or habitats. For example, the biology of some species makes them better-suited to temporary or dynamic habitat. Likewise, the characteristics of certain habitats make some better-suited to being created or enhanced. The purpose of this policy is to provide direction on the approach and considerations that the Ministry will use for safe harbour habitat within the meaning of Ontario Regulation 242/08, under the ESA.

Specifically, the purpose of this document is to:

• describe the instruments (i.e. permits and agreements) used for the establishment of safe harbour habitat and the circumstances under which they may be suitable;
• provide guidance, including considerations and requirements, for establishing appropriate conditions within safe harbour instruments; and
• provide direction on the implementation of safe harbour instruments.

3.0 Definitions

“Baseline” means the original state of the proposed area of safe harbour habitat, where the habitat being created is not currently the habitat of an endangered or threatened species. Or, in the case of habitat to be enhanced for Bobolink or Eastern Meadowlark, the original state of the area to be enhanced is not currently the habitat of an endangered or threatened species other than Bobolink or Eastern Meadowlark.

“Conservation period” means the period of time specified in the safe harbour instrument as the minimum period of time for which the safe harbour habitat must continue to provide habitat for a particular species. This includes the period of time in which the habitat must be established and continue to be maintained to meet the proposed conservation outcomes.

“Damage or destroy habitat” means:

An activity that damages the habitat of a species is one that alters the habitat in ways that impair the function (usefulness) of the habitat for supporting one or more of the species’ life processes.

An activity that destroys the habitat of a species is one that alters the habitat in ways that eliminate the function (usefulness) of the habitat for supporting one or more of the species’ life processes.

“Endangered” means the status of a species that lives in the wild in Ontario but is facing imminent extinction or extirpation.

“Extirpated” means the status of a species that lives somewhere in the world, and at one time lived in the wild in Ontario, but no longer lives in the wild in Ontario.

“Government response statement” means the policy direction published under s. 11(8) of the ESA by the Ministry that summarizes the Government of Ontario’s intended actions and priorities, in response to a recovery strategy and in consideration of social and economic factors.

 “Habitat” means:

• General Habitat: an area on which the species depends directly or indirectly to carry out its life processes (ss. 2(1)(b) of the ESA) or,
• Regulated Habitat: the area prescribed for a species in a habitat regulation.

 “Listed species” means any species listed on the Species at Risk in Ontario List under Ontario Regulation 230/08.

“Minister” means the Minister of Natural Resources and Forestry.

“Ministry” means the Ministry of Natural Resources and Forestry.

“Recovery strategy” means a document developed under s. 11(1) of the ESA that provides science-based advice to government and other interested parties on what is recommended to recover an endangered, threatened or extirpated species in Ontario.

“Registry” means the registry known as the Natural Resources Registry available on the Ministry website.

“Special concern” means the status of a species that lives in the wild in Ontario, is not endangered or threatened, but may become threatened or endangered because of a combination of biological characteristics and identified threats.

“Species at Risk in Ontario List (SARO List)” means Ontario Regulation 230/08 made under the Endangered Species Act (ESA) that provides the official classification of species at risk in Ontario.

“Safe harbour habitat” means the habitat of a species listed on the SARO List as an endangered, threatened, or special concern species that was created or enhanced in accordance with section 23.16 of Ontario Regulation 242/08.

“Safe harbour instrument” means one of the following instruments that include a condition that safe harbour habitat is created or enhanced and that meets the requirements of subsection (3) of Ontario Regulation 242/08:

• A stewardship agreement entered into under section 16 of the ESA
• A permit under clause 17(2)(b) of the ESA (‘protection or recovery permit’)
• A permit under clause 17(2)(c) of the ESA (‘overall benefit permit’)

“Status report” means a comprehensive technical document that compiles and analyzes the best available information on a wildlife species’ status in Canada.

“Threatened” means the status of a species that lives in the wild in Ontario, is not endangered, but is likely to become endangered if steps are not taken to address factors threatening to lead to its extinction or extirpation.

4.0 Safe harbour habitat under Ontario regulation 242/08

Provisions for safe harbour habitat are specified in section 23.16 under Ontario Regulation 242/08 (the general regulation made under the ESA; or ‘the Regulation’). It provides landowners with the opportunity to undertake initiatives aimed at creating or enhancing habitat for species at risk, while providing the assurance that their future land use activities will not be limited under the ESA. Safe harbour habitat is required to be established and maintained for a minimum period of time (the conservation period), but may extend beyond that time period. Landowners may voluntarily contribute to achieving greater benefit for species at risk by allowing for the persistence of safe harbour habitat beyond the conservation period. This also provides flexibility to the landowner in determining when, or if, land use changes are appropriate at any given time beyond the conservation period.

Through the Regulation, safe harbour habitat is scoped to initiatives involving the creation of new habitat for species listed as endangered, threatened, or special concern on the SARO List. It may also be considered for initiatives involving the enhancement of existing habitat for special concern species and two species of bird: Bobolink and/or Eastern Meadowlark. Habitat enhancement means an improvement to habitat quality.

Under the Regulation, safe harbour habitat can be established through one of the following instruments: a stewardship agreement (section 16 of the ESA), a protection or recovery permit (clause 17(2)(b) of the ESA), or an overall benefit permit (clause 17(2)(c) of the ESA). The instrument used to establish safe harbour habitat must include a condition that safe harbour habitat be created or enhanced. It also must meet the requirements outlined in the Regulation (see 4.5 Safe Harbour Instrument Requirements). These requirements must be included as conditions within the safe harbour instrument.

Safe harbour habitat may be altered (i.e. damaged or destroyed) with the assurance that future land use activities will not be prohibited under the ESA, provided the requirements of the Regulation are met, including:

• The conservation period has ended.
• All of the requirements of the safe harbour instrument have been met.
• A notice of the activity has been provided to the Minister by submitting a completed notice of activity form, prior to doing anything that would damage or destroy the habitat.
• Reasonable steps are taken to minimize any adverse effects of the activity on members of the species for which the safe harbour habitat was established.
• A report describing the proposed activity and its effects on the species at risk is developed within 90 days of damaging or destroying the safe harbour habitat. The report must be retained by the proponent for no less than five years.

Following the conservation period, the continued management of safe harbour habitat, in part or in its entirety, is encouraged whenever possible to allow for the maximum benefit to species at risk. An overview of the process for obtaining and implementing a safe harbour instrument is provided in Figure 1.

4.1 Conservation outcomes

The Government of Ontario recognizes the important role that private landowners play in the protection and recovery of species at risk. The objective of safe harbour is to encourage voluntary stewardship initiatives and beneficial activities that provide positive conservation outcomes for endangered and threatened species. When developing a safe harbour instrument, proponents must provide their rationale or purpose statement (goal), including the conservation outcomes to be achieved by the safe harbour habitat. Conservation outcomes contribute to the protection, recovery, and/or overall benefit to the species and its habitat. For many species at risk, their habitat needs and desired conservation outcomes are outlined in a government response statement. Examples of conservation outcomes include:

• An increase in the connectivity of the species’ habitat.
• An improvement to the resilience of existing population(s) to disturbance events.
• The ability to test and develop conservation strategies (e.g. development of techniques to create or enhance habitat).
• The promotion and fostering of private landowner conservation efforts.

The conservation outcomes must be consistent with the legislative requirements and policy guidance for the species (such as the government response statement) and the authorization type being used as the safe harbour instrument.

For example, for Bobolink, a proposed safe harbour habitat initiative could involve the conversion of low quality nesting habitat into high quality habitat (i.e. habitat enhancement). The proposed initiative would be in line with the provincial recovery goal that states “slow the population decline by maintaining and enhancing grassland habitat.” In this example, a general conservation outcome would be improved breeding conditions leading to an increase in productivity for the species during the conservation period. Specific details on the degree, size, and location of the habitat enhancement, and the proposed conservation period would inform a more specific conservation outcome.

4.2 Other land use restrictions

The safe harbour habitat provision enables landowners to undertake conservation measures, while providing legal assurances that attracting and increasing species at risk to their properties will not result in future land use restrictions under the ESA. Safe harbour instruments do not afford authority beyond the exemptions provided under the ESA. Proponents seeking to engage in activities that may be prohibited under other municipal by-laws, provincial, or federal legislation are still required to seek authorization under other applicable laws. Proponents should consider that restrictions under other laws may be relevant to activities undertaken to create/enhance, maintain, or alter (i.e. damage or destroy) safe harbour habitat.

4.3 Safe harbour instruments

A safe harbour instrument must be developed through an ESA authorization. Provided certain conditions are met, a safe harbour instrument can be one of three authorizations under the ESA:

• A stewardship agreement (section 16 of the ESA);
• A protection or recovery permit [clause 17(2)(b) of the ESA]; or,
• An overall benefit permit [clause 17(2)(c) of the ESA].

In order to meet the requirements for a safe harbour instrument, the Minister must form certain opinions in relation to the existing state of the area proposed to be safe harbour habitat and the sufficiency of the conservation period. More information about these requirements is outlined in section 4.5 Safe Harbour Instrument Requirements.

In addition to existing legislative requirements and policy guidance for these authorizations, the following information should be considered when selecting the appropriate safe harbour instrument. Figure 2 provides a visual overview of the selection criteria.

4.3.1 Protection or recovery permits

Clause 17(2)(b) of the ESA allows the Minister to issue a permit to authorize a person to engage in an activity that would otherwise be prohibited under the ESA, if the Minister is of the opinion that the purpose of the activity is to assist in the protection or recovery of the species specified in the permit. For a protection or recovery permit to be an appropriate instrument to establish safe harbour habitat, the purpose of the safe harbour habitat initiative must be to assist in the protection or recovery and the actions required to establish, manage and/or monitor the habitat would otherwise contravene the ESA. This means that a protection or recovery permit may be considered if activities that would contravene the ESA are planned to occur during the conservation period. For example, a protection or recovery permit may be suitable to establish safe harbour for a man-made Bank Swallow nesting structure, where the purpose of the initiative is research to inform protection or recovery, and monitoring protocols include capture or harassment of individual birds.

4.3.2 Stewardship agreements

Like protection or recovery permits, stewardship agreements share the main goal of providing for the protection and recovery of species at risk. The Minister may enter into a stewardship agreement with any person for the purpose of assisting in the protection or recovery of a species on the SARO List, provided the legislative and policy requirements of the instrument are met. Unlike protection or recovery permits which authorize a planned contravention, a stewardship agreement may enable safe harbour habitat initiatives that may or may not otherwise contravene species or habitat protection provisions (i.e. s. 9 and 10 of the ESA). For example, safe harbour habitat could be established through a stewardship agreement for the creation of a habitat corridor to connect two or more areas of habitat that is known to be used by the target species. In most cases, safe harbour habitats will be established, maintained and monitored in ways that would not otherwise contravene the ESA. As such, a stewardship agreement will typically be the safe harbour instrument used when a safe harbour habitat initiative is being developed for the purpose of assisting in the protection or recovery of a species.

4.3.3 Overall benefit permits

Under clause 17(2)(c) of the ESA, a permit may be issued for an activity in which the main purpose is not to assist in the protection or recovery of a species at risk, but through conditions outlined in the permit, will result in an overall benefit to the species. As such, after taking into account the residual adverse effects caused by the activity to the species or its habitat, the mandatory conditions will provide for an improved relative standing of the species. Guidance on the process and specific policies regarding overall benefit permits is available in Endangered Species Act Submission Standards for Activity Review and 17(2)(c) Overall Benefit Permits.

Safe harbour habitat will only be considered within overall benefit permits in which the initial impact to species at risk is temporary and the original habitat will be restored. An example of a temporary impact could include a right of way through species at risk habitat that will be restored to its original state or better within four years. The potential for safe harbour habitat to be effective in providing a beneficial outcome for the species will be dependent on case-specific factors, including the conservation period and other instrument conditions. Additional considerations include certainty and timeliness in both the ability to establish safe harbour habitat and to restore the original habitat to pre-activity conditions. Establishment of safe harbour habitat may be one of multiple beneficial activities which will combine to achieve a net positive benefit to the relevant species.

4.4 Information requirements

Information requirements outlined in existing policy guidance for the relevant authorization (i.e. stewardship agreement, protection or recovery permit, or overall benefit permit) must be met. The Ministry will consider the best available information in determining whether safe harbour is suitable for a given project. Applicants are required to provide the following information:

• An expression of the purpose of the safe harbour instrument, including anticipated conservation outcomes for protection, recovery, or overall benefit.
• Details of the species for which the safe harbour habitat is intended (target species), as well as any additional species at risk that may use the habitat.
• A detailed description of the area proposed to be established as safe harbour habitat (size, habitat description and location), including maps and other relevant spatial, area-specific information. This should include rationale on why the proposed area would be suitable for the target species.
• Relevant information on whether habitat of any endangered or threatened species is present in the proposed safe harbour area (i.e. baseline conditions).
• A detailed description of the necessary actions to establish and maintain the proposed safe harbour habitat. It should be clear how the management actions will result in the desired outcome for the species.
• The anticipated time it will take to establish the safe harbour habitat and achieve the desired outcome for the species (i.e. conservation period).
• A description of the information that will be collected and summarized to measure the outcomes of the safe harbour initiative (i.e. effectiveness monitoring plan).

For initiatives targeted at enhancing habitat, a description of the baseline conditions should reflect the known biological and habitat characteristics that support existing individuals, including local population estimates.

Best available information may be collected from a variety of sources, including species at risk occurrence data from the MNRF, local and Traditional Ecological Knowledge, survey data, mapping (e.g. Ecological Land Classification mapping), and land use records. Status reports, recovery strategies, management plans, and government response statements, where available, provide insight on species distribution and biology, habitat requirements, threats, and recovery. Categorizing and Protecting Habitat under the Endangered Species Act, as well as species-specific habitat regulations and general habitat descriptions, can inform habitat considerations. Fulfilling the aforementioned information requirements may involve iterative discussions between the proponent and Ministry staff. The Ministry will consider the suite of best available information to assess the appropriateness of the proposed initiative in meeting the legislated requirements for safe harbour habitat.

4.4.1 Scalable complexity

The level of detail required to evaluate proposals of safe harbour habitat will be scaled according to the complexity and knowledge gaps associated with the proposed undertaking. As potential complexity and uncertainty increase, so should the level of information provided. For example, this principle will apply to safe harbour initiatives focused on establishing habitat within sensitive or rare ecosystems.

4.5 Safe harbour instrument requirements

Safe harbour habitat may be one component of a larger undertaking. As such, the instrument used to establish safe harbour may include conditions that are not directly relevant to the safe harbour habitat initiative. For example, safe harbour habitat that is authorized under an overall benefit permit will include a suite of conditions relevant to the larger undertaking, with a subset of conditions that will guide the safe harbour habitat component.

The safe harbour instrument must include a condition to indicate that safe harbour habitat is being created or enhanced. Conditions must also clearly identify each target species for which the safe harbour habitat is being established and delineate the applicable area(s). The instrument may be used to establish safe harbour habitat for more than one species at risk. Any management actions that are required to establish and/or maintain the safe harbour habitat and steps taken to monitor the effectiveness of meeting the conservation outcomes will also be included as conditions. The concept of scalable complexity will be reflected within the safe harbour instrument, with particularly complex initiatives having additional requirements and/or the option to modify conditions (e.g. habitat size, time period) for the duration of the safe harbour instrument.

In order to qualify for a safe harbour instrument under the Regulation, the Minister must be of the opinion that three requirements have been met. These requirements relate to (i) the original state of the area proposed for safe harbour habitat (i.e. baseline requirement), (ii) the suitability of the area proposed for safe harbour habitat (i.e. suitability requirement), and (iii) the conservation period (i.e. conservation period requirement). Further information on the requirements is provided below. Considerations, including scalable complexity, species and habitat characteristics, and timing may inform the determination of whether the three requirements have been met and other instrument conditions. Figure 3 represents a visual overview of these considerations and safe harbour instrument requirements.

4.5.1 Baseline requirement

A safe harbour instrument must include a statement that the Minister is of the opinion that the habitat being newly created is not currently the habitat of an endangered or threatened species. Or, in the case of habitat to be enhanced for Bobolink or Eastern Meadowlark, the safe harbour instrument must include a statement that the Minister is of the opinion that the habitat being enhanced is not currently the habitat of an endangered or threatened species other than Bobolink or Eastern Meadowlark. For special concern species, the habitat being newly created or enhanced must not currently be the habitat of an endangered or threatened species. These criteria are termed the baseline, and reflect the original state of the area to be established as safe harbour habitat.

An assessment will be undertaken to determine whether the habitat of any endangered or threatened species is present within the area proposed for safe harbour habitat. Under the ESA, habitat is defined as either general habitat or regulated habitat (see 3.0 Definitions). Policy guidance (e.g. Categorizing and Protecting Habitat under the Endangered Species Act) and, where available, species-specific habitat regulations and habitat descriptions should inform the assessment of whether the baseline requirement for establishing safe harbour habitat has been met. To be eligible for a safe harbour instrument, the proponent must be able to demonstrate that they have met the baseline criteria.

4.5.2 Suitability requirement

A safe harbour instrument must also include a statement that the Minister is of the opinion that the proposed area is suitable for the creation of habitat for each of the species to which the safe harbour instrument applies. In the case of habitat enhancement, the statement must reflect that the proposed area is suitable to be enhanced for those species. A number of factors will inform this criterion, including species, habitat and timing considerations as outlined below (4.6 Review and Assessment Considerations).

4.5.3 Conservation period requirement

Conservation period is the amount of time specified in the safe harbour instrument for which the safe harbour habitat must continue to provide habitat for the target species. This includes the period of time in which the habitat must be established and continue to be maintained to meet the proposed conservation outcomes. At a minimum, if the safe harbour instrument is a stewardship agreement or a protection or recovery permit, the conservation period must be sufficient to assist in the protection or recovery of the species. If the safe harbour instrument is an overall benefit permit, the minimum conservation period must be sufficient to provide an overall benefit to the species.

The following review and assessment considerations will aid in determining an appropriate conservation period for the safe harbour habitat initiative. A safe harbour instrument must include a statement that the Minister is of the opinion that the conservation period is sufficient to meet the conservation outcomes.

5.0 Review and assessment considerations

Safe harbour habitat is not a suitable conservation tool for all species. Conservation outcomes resulting from safe harbour initiatives must outweigh any potential adverse effects to the species. In particular, the potential temporary nature of safe harbour habitat must be considered in assessing positive and negative impacts to the species.

A notable consideration in assessing whether the establishment of safe harbour habitat is appropriate for a given scenario is whether the habitat could result in a habitat ‘sink’, particularly if habitat is altered (i.e. damaged or destroyed) following the conservation period. Habitat sinks are low quality habitats where the local death rate is greater than the birth rate. Habitat sinks can result in a population decline, despite the use of these habitat areas by members of the species. To minimize the risk of establishing unsuitable safe harbour habitats, the Ministry will enter into safe harbour instruments based on what is most suitable for the species. The considerations discussed below (i.e. species, habitat and timing), and use of the Assessment Table for Proposed Safe Harbour Instruments (Appendix A), will help inform the Minister’s decision of whether a particular safe harbour initiative is suitable.

Assessing the suitability of a proposal for a safe harbour habitat initiative may be challenged by deficiencies in information or understanding (knowledge gaps). A safe harbour instrument may be deemed unsuitable if there are knowledge gaps of key information about the species or its habitat. In general, a lack of knowledge will increase the level of risk associated with a proposed initiative. As such, the concept of scalable complexity will apply. In some instances, it may be logical to use a safe harbour initiative to fill a knowledge gap, particularly on methods of habitat creation/enhancement and threat management. These initiatives could provide an added positive outcome by contributing to the body of available information on a species or type of habitat.

5.1 Species considerations

Biological attributes

The biological characteristics of some species may be considered in assessing the baseline requirement. Appearance and behaviour can make detectability of some species challenging. For instance, a recognizable bird, such as Bobolink, can be easily detected in the spring when males tend to sing regularly throughout the day. On the other hand, some species can be much less conspicuous and as such have low detectability. For example, Small Whorled Pogonia, which is a rare orchid, can remain dormant for years.

Some species are more likely to benefit from safe harbour habitat because of their biological attributes. Understanding the biology of a species, its interactions with other individuals, as well as its habitat, is important to be able to assess the potential for adverse effects resulting from safe harbour habitat. Species that are adapted to habitat features that are naturally temporary, fluctuating over time and in space, are likely good candidates for safe harbour. Vernal or ephemeral pools are an example of a naturally temporary habitat. They do not have a source of water flow (e.g. groundwater upwelling). They hold water in the spring from snowmelt and rain, and gradually dry through the summer. Some vernal pools are susceptible to succession and infilling, while new pools can be created through natural disturbance events such as a tree becoming uprooted during a windstorm. Species that are adapted to naturally temporary habitats may have biological attributes that make them more likely to find and successfully colonize other areas of suitable habitat.

The dispersal ability of a species could influence its suitability for safe harbour habitat. Species with rapid and wide-ranging dispersal capabilities may be more likely to discover and benefit from newly created or enhanced habitat. Should the safe harbour habitat be altered, species with strong dispersal capabilities may also be better-able to disperse to new areas of suitable habitat.

Species that show repeated use of an area are said to have a high degree of site fidelity. These species are often reluctant or have a limited ability to find alternative locations to successfully carry-out certain life processes. Safe harbour habitat is not likely to be appropriate for a species with high site fidelity, given the potential to alter (i.e. damage or destroy) safe harbour habitat at a later date. For example, some snakes show a high degree of site fidelity to hibernation sites (hibernacula), and a number of species may communally use the same hibernaculum. As such, the damage or destruction of a hibernaculum (which would be allowed to occur under a safe harbour exemption after the conservation period has ended and all other conditions have been met) is likely to have a negative impact on one or more species, particularly if suitable hibernacula are limited on the landscape. As a result, the creation of a hibernaculum as safe harbour habitat for an endangered or threatened species of snake is not likely to be suitable.

Umbrella species are those whose habitat requirements satisfy the needs of others. Targeting an umbrella species in a safe harbour instrument could increase the likelihood of an added benefit for other species, including other species at risk. When considering a safe harbour instrument for an umbrella species, suitability should be assessed for the target species as well as any other species at risk that may occupy the habitat.

Threats to the species

Safe harbour instruments may be particularly effective when threats to the species are well understood and can be positively influenced through active management. Threat management may play a role in the establishment of safe harbour habitat, or could be a consideration in developing management actions that will be undertaken throughout the conservation period. Threats can be local or affect a species throughout its entire range.

5.2 Habitat considerations

Habitat attributes

The assessment of habitat suitability may be straightforward when the habitat requirements of the species are well understood and active management approaches are known to result in positive benefits to the species. However, even when habitat requirements are known, challenges may arise if there is a low likelihood that the habitat can be established. Some habitats are inherently more difficult to establish and maintain than others. Success may be greater with man-made habitats that can be created within a reasonable time period (e.g. Barn Swallow nesting structures or hay fields for Eastern Meadowlark). Some habitats require active management to remain functional. Information on the frequency and magnitude of natural disturbance levels, as well as appropriate techniques (e.g. grazing, prescribed burning) will inform suitability as safe harbour habitat. The knowledge or techniques to create and maintain some habitats (e.g. fen, alvar) to support the life processes of certain species at risk is currently lacking and will also inform suitability.

Area and location

The size and condition of the area proposed for safe harbour habitat must also be appropriate to meet the anticipated conservation outcomes. The minimum area requirements for safe harbour habitat will vary depending on the habitat feature that is being established, the species’ needs, and scale of conservation outcomes to be achieved. The proposed safe harbour habitat must also be within a reasonable proximity to attract individuals of the target species and foster natural dispersal (i.e. barrier-free). The threshold for proximity will vary depending on the species dispersal and movement capabilities, and the surrounding landscape. The availability of nearby dispersal habitat could have wide-ranging impacts by facilitating movement beyond the safe harbour habitat (e.g. creation of a travel corridor). It may also help minimize any adverse effects, should the safe harbour habitat undergo future alteration.

Potential negative impacts resulting from improved connectivity should also be considered in evaluating the suitability of safe harbour habitat. In some circumstances, improving connectivity may facilitate the spread of a threat, such as an invasive species or disease. As such, a proposal for safe harbour habitat may be well-suited to one location, while unsuitable in another.

In some instances, information on the future land use in an area may be known at the time an instrument is being established. This information may be used to inform the suitability of safe harbour habitat within the given area.

Threats to the habitat

Knowledge of threats, including pressures on local populations of the species can inform habitat management. In some cases, removal of a threat may be a key factor in establishing safe harbour habitat. For instance, the creation of a boardwalk to relieve disturbance (e.g. foot traffic) from sand dune habitat may facilitate the creation of species at risk habitat through natural processes. Another example is the removal of an invasive species that impacts the functionality of a habitat feature or directly competes with the target species. An understanding of threats is likely to provide additional perspectives on whether a proposed safe harbour habitat initiative is appropriate. In circumstances where habitat is limiting (i.e. decline in habitat quantity or quality is a threat), safe harbour habitat could be particularly valuable. On the other hand, the net benefit to the species would be much less if habitat is not limited.

5.3 Timing considerations

The conservation period must be sufficient to meet the proposed conservation outcome(s). The species and habitat considerations described above will help inform this decision. For example, the conservation period must be ample to accommodate species-specific biological attributes, such as average lifespan, the duration of reproductive behaviours, and timing associated with large immigration or emigration patterns. From a habitat perspective, the time required to create or enhance the proposed safe harbour habitat will vary depending on the type of habitat being established and the original state of the area. The interplay between species and habitat considerations is also important. For example, the length of time that it will take for the safe harbour habitat to become occupied will be influenced by a variety of factors, including the movement capabilities of the target species and the size and connectivity of the proposed safe harbour habitat.

The scope and scale of proposed conservation outcomes will also be assessed in determining an appropriate conservation period. In part, this may be determined by the type of authorization that is used as the safe harbour instrument. For example, where an overall benefit permit is the safe harbour instrument, the conservation outcomes must be consistent with the legislative requirements and policy guidance for overall benefit permits. The conservation period will be set accordingly to ensure the appropriate level of conservation outcomes is achieved.

6.0 Effectiveness monitoring of safe harbour habitat

Effectiveness monitoring involves the collection and summary of information on measures toward meeting the conservation outcomes (both successes and failures) and the steps taken to minimize adverse effects on the species. The goal of effectiveness monitoring is to measure the outcomes of the management actions and mitigation measures for species at risk. Effectiveness monitoring is a standard practice in permits, agreements and regulatory exemptions under the ESA. It should also be included in all safe harbour instruments.

Information that is collected through effectiveness monitoring should be reasonable and based on criteria that are relevant to the species and habitat. Requirements will follow the principle of scalable complexity. For simple initiatives, it may be appropriate for effectiveness monitoring to include a single report indicating when the habitat feature becomes occupied (e.g. notice of the first time a kiosk is used for nesting by Barn Swallows). On the other hand, more complex initiatives will require increasingly rigorous information and reporting requirements, which are not limited to:

To foster consistency, Appendix B should be used as a starting point for effectiveness monitoring reports, with modifications to address case-specific requirements. The submission of information gathered through effectiveness monitoring to the Ministry will be determined based on the complexity of the safe harbour habitat initiative and the length of the conservation period. Where possible, the review and analysis of effectiveness monitoring reports should be coordinated across safe harbour initiatives. This will enable broad-scale monitoring and assessments.

7.0 Safe harbour instrument assessment, decision and implementation

Drafting the safe harbour instrument may be an iterative process between the Ministry and the proponent. Once the instrument is approved, a signed copy will be sent to the proponent. If the instrument is not approved, the Ministry will inform the proponent of the decision in writing.

To begin any authorized activities, including actions to create or enhance the safe harbour habitat, and carry-out any management or monitoring actions for the duration of the conservation period, the proponent must be in possession of the approved safe harbour instrument. Where a third party is used to fulfill conditions of the safe harbour instrument, the instrument holder remains responsible for ensuring that conditions are satisfied.

8.0 Damaging or destroying safe harbour habitat

Once the conservation period has ended, and all other conditions in the safe harbour instrument have been satisfied, the proponent may undertake activities in the safe harbour habitat that would otherwise be prohibited under the ESA (s. 9 and 10). These activities are enabled provided they are necessary for carrying-out the activity, and provided the proponent meets all necessary regulatory requirements. This safe harbour habitat exemption applies only after the proponent has met the necessary requirements including registration, minimization of adverse effects, and activity reporting.

8.1 Activity registration

Before engaging in an activity that may damage or destroy the safe harbour habitat, the proponent must register online with the Ministry to give notice of their activity (s. 23.16(5), Ontario Regulation 242/08). The Ministry of Natural Resources and Forestry Registry and Registration guide are available on the Ministry website. The notice of activity must reference the identification number for the safe harbour instrument, provide a description of the activity, including information on timing and location, and list the target species and any other endangered or threatened species that may be impacted by the activity.

8.2 Minimizing adverse effects

While engaging in any activity within safe harbour habitat that would otherwise be prohibited, steps must be taken to minimize adverse effects on the members of the species for which the safe harbour habitat was established. These steps are outlined in the Regulation [s. 23.16(6)], and include actions to minimize damage to habitat when the species is hibernating or breeding.

Although not required under the Regulation, the Ministry also promotes actions to minimize adverse effects on any other species at risk that may be present but are not listed on the safe harbour instrument. Further information on other species at risk is provided in section 9.1 Other Species at Risk.

8.3 Activity reporting

To qualify for the exemption that allows for damaging or destroying the safe harbour habitat under the Regulation, specific reporting requirements must be met [s. 23.16(5)], including:

• A detailed description of the activities that have damaged or destroyed the safe harbour habitat.
• A description of the effects of the activity on the target species and any other species at risk.
• A description and the effect of the reasonable steps that were taken to minimize adverse effects.
• Start and end dates of the damage or destruction of habitat.

The report must be prepared within 90 days of completing the activity that damages or destroys the safe harbour habitat. It must be available to the Ministry within 14 days of receiving a request for the report and must be retained for at least of five years. Appendix C provides an example Safe harbour habitat Activity Report Template.

9.0 Additional considerations

9.1 Other species at risk

Safe harbour habitat may provide for one or more species at risk that were not identified in the safe harbour instrument (i.e. non-target species at risk). This may occur if the area becomes habitat for an unintended species at risk, or if a relevant species is added to the SARO List (i.e. newly-listed species). These unintended and newly-listed species do not impact the proponent’s option to alter safe harbour habitat, provided the conditions of the regulation are met. In other words, the option to damage or destroy safe harbour habitat, including activities that would otherwise be prohibited under the ESA (s. 9 and 10), is retained regardless of whether it has become occupied by non-target species at risk.

Although there is no requirement to monitor the effectiveness of safe harbour habitat or to minimize adverse effects on non-target species at risk, should the safe harbour habitat be altered, these actions are strongly encouraged in the spirit of conservation. Should the proponent choose to alter safe harbour habitat, it is the proponent’s responsibility to ensure that the activity reporting references any unintended or newly-listed species.

9.2 Amendment, revocation and termination of a safe harbour instrument

In exceptional circumstances, a proponent may seek to amend, revoke or terminate a safe harbour instrument prior to meeting all of the necessary conditions, including the conservation period. The circumstances under which this may take place will depend on the type of authorization used as the safe harbour instrument (permit vs agreement) as well as the activities that have taken place to date. In the case of an agreement, terms and conditions will be established to guide amendment and early termination.

Under the ESA, a permit may be amended or revoked by the Minister, with or without the consent of the permit-holder. The decision is discretionary and may depend on a number of factors including the type of permit that has been issued, steps taken to date, and the impacts to the species specified in the permit. To amend or revoke a permit without the consent of the permit holder, the Minister must be of the opinion that the amendment or revocation is necessary to prevent jeopardizing the survival or recovery in Ontario of the species specified in the permit, or to protect human health or safety.

Safe harbour instruments that are established through a stewardship agreement should include terms and conditions for identifying the circumstances under which either the proponent or the Minister may amend or terminate the agreement. These terms and conditions should aim to alleviate any potential adverse impacts to the species (e.g. advance notice so that any species at risk present may be relocated, if this is feasible). Should a safe harbour instrument be revoked or terminated, the area in consideration will no longer be considered safe harbour habitat. As such, it will not be eligible under the provisions of the Regulation addressing safe harbour habitat.

9.3 Transfer or succession of a safe harbour instrument

The holder of the safe harbour instrument is responsible for ensuring the conditions of the instrument are met, irrespective of any changes in ownership of the area that provides safe harbour habitat. If there is a change in land ownership before the conservation period has passed and the instrument conditions have been met, the safe harbour instrument may be transferred with the new landowner’s agreement. The new landowner would assume responsibility for ensuring the conservation period and any outstanding conditions of the instrument are met. Or, provided the requirements for entering into a safe harbour instrument can still be met, the new landowner may enter into a new safe harbour instrument. When the safe harbour instrument is a permit, the local Ministry office will advise on transferability. In the case of an agreement, the ability and conditions around transfer should be set out in the terms and conditions of the agreement, and may include approval by the Ministry.

If the conditions of the safe harbour instrument have been met, including the conservation period, the new landowner is eligible for the safe harbour habitat exemption. Should the new landowner choose to alter (i.e. damage or destroy) the safe harbour habitat, they must meet all of the requirements under the Regulation in relation to safe harbour habitat, including registration with the Ministry.

9.4 Collaborative safe harbour habitat initiatives

Some safe harbour habitat initiatives will be local and small scale, although can contribute to larger conservation outcomes. For example, installation of a single nest box for Barn Swallow may not have a substantial conservation outcome on its own, but the combined efforts of numerous landowners throughout the breeding range could substantially increase the amount of nesting habitat for the species on a provincial scale. Larger and more complex initiatives may require resources and expertise from individuals and organizations from a variety of sectors, including government. The Government of Ontario recognizes that safe harbour habitat initiatives may include diverse contributions of individuals and organizations alike, including administrative support, expertise in habitat creation and land management, skills for surveying and monitoring, and resources to secure the proposed safe harbour area.

Neighbours have a unique opportunity to collaborate on safe harbour habitat initiatives. Provided that neighbouring properties meet the necessary requirements, neighbours may choose to collaborate on a safe harbour habitat initiative. Such collaborations may benefit from administrative efficiencies and increased conservation outcomes by establishing larger and potentially more connected areas of safe harbour habitat. Whether neighbours collaborate under a single (where one neighbour assumes responsibility) or two individual safe harbour instruments, the exemption would encompass the safe harbour habitat area in its entirety on each of the properties. Neighbouring properties that are not included in a safe harbour instrument do not benefit from the safe harbour habitat exemption.

10.0 References and other information sources

10.1 Legal references

• Endangered Species Act, 2007
• General Regulation under the Endangered Species Act, 2007. Ontario Regulation 242/08
• Species at Risk in Ontario List under the Endangered Species Act, 2007. Ontario Regulation 230/08

10.2 Related

• Biodiversity: It’s In Our Nature
• Categorizing and Protecting Habitat under the Endangered Species Act
• Endangered Species Act Submission Standards for Activity Review and 17(2)(c) Overall Benefit Permits
• How Species at Risk are Protected
• Natural Resources Registration Guide
• Policy Guidance on Harm and Harass under the Endangered Species Act
• Remove habitat created or enhanced for species at risk
• Species at Risk Guides and Resources

October, 2017
Species at Risk & Biodiversity Protection Section
Species Conservation Policy Branch
Policy Division
Ontario Ministry of Natural Resources and Forestry

Appendix A: Assessment table for proposed safe harbour initiatives

The following table may assist in determining the suitability safe harbour habitat in a given situation. Knowledge gaps will also be considered. The specific considerations and associated weighting will vary on a case by case basis. For instance, increasing the connectivity of habitat may improve gene flow under one scenario, while facilitating the spread of disease under another.

Appendix B: Example of a safe harbour effectiveness monitoring report

The following template for simple safe harbour habitat initiatives should be used as a starting point for effectiveness monitoring and modified based on instrument requirements and project needs.

Appendix C: Example of a safe harbour activity report