Backgrounder to the first Nine Habitat Regulations under the Endangered Species Act (ESA) 2007

Introduction

The Endangered Species Act (ESA) 2007 was passed in May 2007 and came into force on June 30, 2008. It was widely hailed as the best piece of endangered species legislation in the country since it was the first to combine science-based listing with mandatory habitat protection and mandatory recovery planning for threatened and endangered species.

There are two ways for habitat to be protected under the ESA. The first is under the general definition of habitat—an area on which a species depends directly or indirectly to carry out its life processes (But, until 2013, this general definition covers only the 42 species listed under Ontario’s old Endangered Species Act.). The second is through species-specific habitat regulations that describe the area to be protected for the particular species in question.

Only the 42 species that were listed under Ontario’s old Endangered Species Act currently receive habitat protection. The rest of the species listed as threatened or endangered have no habitat protection until June 30, 2013, or until a species-specific habitat regulation is in place—whichever comes first.

The government of Ontario has promised to deliver habitat regulations for 10 “fast-tracked” species by June 30, 2009. These ten species are: American badger, wood turtle, barn owl, peregrine falcon, Jefferson salamander, eastern prairie fringed-orchid, few-flowered club-rush, western silvery aster, Engelmann’s quillwort and woodland caribou.
Nine of the habitat regulations have now been posted for review and comment on the Environmental Registry. The regulation for woodland caribou is forthcoming.
While all of the draft habitat regulations need improvement, there are four that are particularly worrisome— those for American badger, barn owl, peregrine falcon and wood turtle.

General Points

The goal of habitat regulations, according to the ESA and ensuing policy, is to promote the survival and recovery of threatened and endangered species:

“The goal of species-specific habitat regulations is to protect habitat and help ensure the survival and recovery of endangered and threatened species.” (SAR Policy, 4.1, p. 5)
Will the habitat regulations as drafted accomplish this goal? No. In many cases, strong recommendations from Recovery Teams are being ignored, and overall the approach being taken to defining habitat through regulations is not precautionary.

SOS is using the following guidelines to assess the strengths and weaknesses of each draft habitat regulation:
1. Does the habitat regulation serve the purpose of protecting and recovering the species?
2. Is the habitat regulation based on a precautionary approach?
3. Does the habitat regulation protect all currently occupied habitat?
4. Does the habitat regulation automatically include the habitat of any newly discovered occurrences of the species?
5. Does the habitat regulation prescribe, where feasible, habitat where the species historically occurred or where it is believed to be capable of living?
6. Is the habitat prescribed on an ecological basis (i.e. based on the recommendations of the recovery teams and the best available scientific information)?
It is important to note that a habitat regulation does not automatically protect habitat. Rather, it defines the area where the MNR must exercise its permitting authority. In other words, activities can proceed if permits that meet the conditions of the ESA are in place. Activities that do not harm the habitat would not require a permit. For example, if farmland is included in the habitat regulation (e.g. for barn owl or American badger), then farming would not require a permit.

Specific Comments

American badger (Endangered):
-The American badger is a secretive species, with only one currently known den site in the province and two others undergoing study in the 2009 field season. Its habitat includes tallgrass prairies or areas that replicate these conditions, such as agricultural fields.
-Key threats to the badger are habitat loss, road mortality, predation, killing and persecution and incidental trapping.
-The draft habitat regulation proposes that currently occupied badger dens be protected with a five meter buffer around the entrance of the den. If a den was used by a pregnant female badger or mothering badger and her kits within the last 12 months or any other badger within the last
three months, it would also be protected. Wood chuck burrows and Franklin’s ground squirrel burrows would also be protected within an 850 metre radius around all protected den entrances.
-The draft regulation protects only known dens and provides very little in the way of foraging territory. The inclusion of specific species rather than reasonable foraging areas around the dens is too limited—the ESA states that a habitat regulation may include all areas that are critical to a species’ survival.
-SOS Coalition suggests that this regulation be expanded to include potential habitat and larger foraging zones rather than specific prey species. Potential habitat— areas in which multiple sightings of badgers have been recorded—should be mapped and given a 15 kilometre radius of protection. Foraging areas should be expanded beyond five metres around den entrances to a minimum one kilometer radius around all known entrances of both currently and formally occupied dens. This one kilometer protection area would also provide badgers with critical corridors for movement and protect pathways being used to and from den entrances. All dens should be given protection if they have been used in the last 12 months, regardless of the sex or age of the badger.

Barn owl (Endangered):
-Barn owl is a medium-sized owl that prefers open countryside as habitat (i.e. tallgrass prairies and agricultural areas). It typically nests in trees or man-made structures in close proximity to good foraging habitat.
-Key threats to barn owl include habitat loss as a result of intensive agricultural practices or land conversion, predation, disturbance and harassment, road mortality and others.
-The draft regulation protects nesting and roosting sites in natural locations or artificial structures as well as the location and structure itself with a 25 metre buffer zone around it.
-There are three components to barn owl habitat—nesting sites, roosting sites and areas for foraging. This regulation is weakened by the fact that it does not address the third component or any potentially occupied habitat.
-Given the lack of data on barn owl foraging behaviour, coming up with a hard number regarding foraging habitat is unlikely. Instead, SOS recommends that foraging habitat for barn owls be described using features—all tallgrass prairies, oak savannah, salt marshes and wetland fringes within a 20 hectare radius of nesting and roosting sites. Since barn owls select nesting and roosting sites based on close proximity to good foraging grounds, protecting these features will likely protect potential habitat as well.

Peregrine falcon (Threatened):
-The peregrine falcon is a crow-sized member of the raptor family with two distinct types of habitat—nests built into steep or vertical cliff faces or on
artificial structures (such as tall buildings or open pit mines) in developed environments. They are extremely loyal to their nesting sites and usually return to the nest site where they were born.
-Key threats to the peregrine falcon include: environmental contamination (from pesticides and other chemicals); disturbance, collisions with inanimate objects, persecution and habitat loss.
-The draft regulation for the peregrine falcon protects nests on natural cliff faces and artificial structures. Nests on cliffs are given a one kilometre buffer and are protected if they have been used over the last 15 years; nests on buildings have a 200 metre buffer and are protected if they have been used over the last two years. Nests in open pit mines have no buffer of protection and are protected only if they are currently being used.
-Peregrine falcons hunt far from their nest, yet this regulation does not provide protection for adequate foraging areas for urban or non-urban peregrines. As well, many historical nests sites will not be protected.
-As recommended by the Recovery Team, SOS recommends that the habitat regulation include a three kilometre forage area around all currently occupied nests in non-urban areas and a one kilometre buffer zone around unoccupied and historical nests in non-urban areas. Historical nests sites that were occupied prior to 1963 should also be protected in non-urban areas.

Wood turtle (Endangered):
-The wood turtle is a medium-sized turtle that lives in rivers and streams with moderate current and hard sand or gravelly beds and uses a variety of nearby terrestrial habitat. There are two distinct populations of wood turtles in Ontario with different behaviour—north and south.
-Key threats to the wood turtle include: habitat loss, predators (such as raccoons and skunks), collection from the pet trade, road mortality and off-road vehicles.
-The habitat regulation for wood turtles makes a clear distinction between southern and northern populations and includes a 200 metre buffer in the south and a 500 metre buffer (up stream, down stream and onto the shore) in the north around any area in a river or stream that is being used by a wood turtle. Nesting sites are given a 30 metre buffer.
-The key weakness of this habitat regulation is singling out nesting sites as a different type of use and affording it less protection that any other wood turtle activity. Nesting sites are the most critical activity and must be awarded the same (if not a greater) buffer zone as any other use.
-SOS recommends that nesting sites be included in the definition of use and awarded a 200 metre or 500 metre buffer zone accordingly.

Jefferson salamander (Threatened):
-The Jefferson salamander is a relatively large salamander in southern Ontario with very specific habitat needs—breeding grounds in vernal
ponds or wetlands, overwintering grounds in nearby woodlands and other vegetated areas and corridors that connect them.
-Key threats to Jefferson salamanders include: habitat loss, habitat fragmentation and degradation, road mortality, disturbance to wetland/hydrological function and the introduction of fish to breeding ponds.
-The draft habitat regulation for the Jefferson salamander protects wetlands and vernal pools, a 300 metre radius around them to allow for movement to terrestrial habitat and corridors used by the Jefferson salamander for dispersal in 12 geographic areas.
-This draft regulation is strongly written but suffers from one key weakness—newly discovered populations outside of the identified 12 areas would not qualify for habitat protection. In addition the recovery team recommendations must be taken into account with a one kilometer rather than a 700 metre dispersal corridor.
-SOS recommends that all newly discovered populations be given habitat protection, regardless of their location.

Eastern prairie fringed-orchid (Endangered):
-The eastern prairie fringed-orchid is a rare orchid that grows in tallgrass prairie, wetlands and retired low lying agricultural fields.
-Key threats to the eastern prairie fringed-orchid include: habitat loss, invasive species, damage from recreation (ATVs and hikers) and herbicide use.
-The draft habitat regulation for the eastern prairie fringed-orchid will protect specific features (fens, tallgrass prairies and moist farm fields in state of regeneration) where the orchid exists or existed at any time in 13 townships in southern Ontario.
-This draft regulation does not protect any new populations if they occur outside of the named townships.
-SOS recommends that any newly discovered populations be given automatic habitat protection.

Engelmann’s quilllwort (Endangered):
-Engelmann’s quillwort is an aquatic plant that grows in shallow lakes and rivers, currently found in only two locations in Canada. Its presence is often seen to be an ecological indicator of a healthy water system.
-Key threats to Engelmann’s quillwort include: mechanical damage (from boats, construction and other human activity), fertilizer and herbicide use, competition, erosion and invasive species.
-The draft habitat regulation protects specific features surrounding known populations on the Gull and Severn rivers and a five metre buffer on the shoreline around them.
-The key weakness of this regulation is that no newly discovered populations would be given habitat protection. As well, given that key
threats include activities such as boat traffic and chemical use, the buffer zone is not adequate.
-SOS recommends that all newly discovered populations also be given habitat protection and that a 30 metre buffer on the shoreline be placed around known plants.

Few-flowered club-rush (Endangered):
-Few-flowered club-rush is a woodland sedge that is usually found on steep slopes of oak forests. There are two currently known sites in Ontario.
-Key threats to the few-flowered club-rush include: recreational damage to habitat, invasive species, disease, and canopy closure.
-The draft habitat regulation protects dry fresh oak deciduous forest around known areas of occurrence.
-This regulation is adequate, as the species was listed as endangered by COSSARO only in the known areas of occurrence in Ontario.
-SOS has no recommendations for this regulation.

Western silvery aster (Endangered):
-The western silvery aster is a perennial wildflower that grows in open bur oak savannahs. It has two currently known populations in Ontario and another distribution area in Manitoba.
-Key threats to the western silvery aster include: loss of habitat, damage from recreation, and invasive species.
-The draft habitat regulation protects bur oak savannah in the two known areas of occurrence.
-This draft regulation does not protect any new populations if they occur outside of the identified regions.
-SOS recommends that any newly discovered populations be given automatic habitat protection.