A Place to Call Home: Nine Species Receive Regulated Habitat Protection
Habitat loss and alteration is the leading threat to species at risk in Ontario. In February 2010, nine of Ontario’s species at risk became the first to be accorded new regulated protection of their habitat:
- American badger (Taxidea taxus) – endangered
- barn owl (Tyto alba) – endangered
- eastern prairie fringed-orchid (Platanthera leucophaea) – endangered
- Engelmann’s quillwort (Isoetes engelmannii) – endangered
- few-flowered club-rush (Trichophorum planifolium) – endangered
- Jefferson salamander (Ambystoma jeffersonianum) – threatened
- peregrine falcon (Falco peregrinus) – threatened
- western silvery aster (Symphyotrichum sericeum) – endangered
- wood turtle (Glyptemys insculpta) – endangered
By defining the habitats of these nine species within O. Reg. 242/08, the habitat protections provided under the Endangered Species Act, 2007 (ESA) were triggered to take effect immediately, providing stronger protections for at least some of those species. This move was in partial fulfillment of the government’s commitment to regulate the habitat of 10 identified species at risk by June 30, 2009.
Under the ESA, habitats of endangered and threatened species are defined and protected in one of two ways – as either “general habitat” or “regulated habitat”. Currently, the protection of general habitat is only in force for the 42 species that were listed under the old law, and for any endangered or threatened species listed after the ESA came into force. For the 86 endangered and threatened species that were newly listed at the time the ESA came into force, general habitat protection will not take effect until June 30, 2013. By contrast, a regulated habitat will protect a species (regardless of when it was listed) as soon as the regulation takes effect.
The ESA provides a flexible approach to habitat protection that allows for a mix of uses within protected habitat; a habitat regulation for a species at risk does not equate to the complete protection of the area described. The government has discretion to use “flexibility tools” – permits and agreements that allow activities in protected habitat that would otherwise be prohibited. Activities defined by MNR as not being damaging or destructive to a species’ regulated habitat will be allowed to continue.
Regulated Habitat for Nine Species
Some of the key aspects of the newly regulated habitats include:
- Geographic restriction – The regulated habitats of six of the nine species are described using specific geographic boundaries within Ontario, either by naming municipalities in which habitat occurs or by referencing maps filed in MNR’s Species at Risk Branch.
- Historical habitat – The regulated habitats of five species include habitat that has been occupied by the species in the past, but is not necessarily currently occupied. Time limits range from as short as within the last 12 months to “any time in the past.”
- “Suitable” habitat – For three species, the regulated habitat includes some areas described as “suitable” conditions for the species, but that may not be known to be currently inhabited by the species. For example, for Jefferson salamander, areas within specified geographic limits comprising “suitable foraging, dispersal, migration or hibernation conditions” and that “would provide suitable breeding conditions” are included.
- Buffer zones – Most of the regulated habitats include buffer zone(s) or corridors, in varying forms, around specific areas or habitat features. Examples include areas within five metres of an American badger den and the area within 25 metres of the base of a tree or other natural feature that is or was used as a nesting or roosting site by a barn owl.
Of the nine species now protected by regulated habitat, only two were previously protected under
the general habitat provisions; the habitats of the remaining seven species were not protected at all
and would not have received general habitat protection until 2013.
There can be advantages and disadvantages to having a species’ habitat prescribed by regulation. On one hand, a habitat regulation can result in the protection of a significantly larger area than the general habitat. A habitat regulation may define historic and/or potential habitat as habitat for protection (e.g., historic nesting sites of barn owls). On the other hand, a habitat regulation may prescribe a smaller area than what would be protected by a species’ general habitat. Knowledge gaps regarding the species’ distribution, habitat requirements and ecological requirements pose a challenge to identifying areas in which a species does or can occur. If regulated habitat is limited geographically or otherwise without sufficient information, actual habitat of a species at risk may be left unprotected, while it would receive protection under the general habitat provisions. For this reason, it is critical to include a catch-all provision in habitat regulations to protect any newly discovered occurrences of a species.
ECO Comment
It is not ideal that habitat regulations are being finalized without recovery strategies or government response statements in place. While MNR faces a workload challenge, the ECO urges MNR to make every effort to ensure that recovery strategies are finalized and government response statements developed promptly. Habitat protection should be based on the best available information as intended by the ESA.
The ECO has previously expressed grave concern that MNR has the authority to effectively decrease the amount of a species’ habitat that is to be protected. Fortunately, MNR does not appear to have done this in the case of these nine species. Regulated habitats closely mirror the recommendations found in the science-based recovery strategies for most of the nine species. Even those habitats that are limited geographically appear to have been based on the available scientific information about the species’ distribution in Ontario. The ECO was disappointed, however, that MNR chose not to include provisions that would automatically protect the habitat of newly discovered occurrences of at-risk plants or animals.
Habitat regulations may not be as restrictive or protective as the public had previously believed since MNR considers some forestry and aggregate activities as non-destructive. To the ministry, regulated habitat is much like a “value” to be considered in forest management planning. However, many members of the public were operating under the understanding that there would be a blanket prohibition on any industrial activities within regulated habitat. Had it been clear to the public that MNR would release forestry guidelines relaxing habitat protection for several species right after passing the habitat regulation, the public debate might have been very different.
The ECO is seriously troubled by MNR’s proposed interpretation of what constitutes damage or destruction of species-at-risk habitat. Only activities that impair or eliminate the “functionality” of habitat will be considered as destructive by the ministry. However, it may be difficult for managers or scientists to demonstrate or quantify habitat functionality, or lack thereof. This could lead to potential problems and possible legal conflicts in determining what activities may be allowable in protected habitat – a perilously slippery slope with potentially irreparable consequences.
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| This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2010. "A Place to Call Home: Nine Species Receive Regulated Habitat Protection." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. 54-5.
