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EBR 011-7696 – Proposed Approaches to the Implementation of the Endangered Species Act – Nottawasaga Steelheaders

February 25th , 2013

Krista Adams
Senior Permits & Agreements Specialist
Ministry of Natural Resources
Policy Division
Species at Risk Branch
Permits and Agreements Section
300 Water Street , Floor 2
Peterborough Ontario  K9J8M5
Phone: (416) 326-1672
Fax: (705) 755-5483

Dear Ms Adams:

Re: EBR-011-7696 Proposed Approaches to the Implementation of the Endangered Species Act

The Nottawasaga Steelheaders is a volunteer group of anglers, conservationists and concerned residents who have been working in concert with The Nottawasaga Valley Conservation Authority, Ministry of Natural Resources and various communities to improve, rehabilitate and preserve the integrity of the Nottawasaga River watershed over the past twenty years years. Over this time we have committed tens of thousands of man-hours and hundreds of thousands of dollar in many beneficial programs. These have included the removable of numerous barriers to fish migration, undertaken countless garbage pick-ups, tree plantings, stream bank stabilizations, cold water delivery projects, spawning ground improvements and commitments to ensure the survival of wild species in this watershed such wild steelhead. Our organization was the first of its kind to undertake a comprehensive study to make uncover the genetic diversity of migratory rainbow trout (Oncorhynchus mykiss). Eighteen (18) distinct strains were found, each with its own set of co-adaptive gene complexes established over a hundred years. Recent studies including those at the University of Western Ontario have determined that that 35-40% of migratory Chinook salmon are of Nottawasaga River origin! This speaks highly of complex and delicate interdependent biodiversity which has taken hundreds if not thousands of years to establish in this watershed. This biodiversity and its interdependence in this watershed and across Ontario is something we know little about and should not be putting at risk with hasty decisions and without the input of Ontarians. It is OUR province with OUR resources and WE are responsible…not a few.

 We are very concerned about this proposal! The Ontario Government in its SEV is still proposing a streamlining of the processes for industry and individuals to “overcome” the so called hurdles or lack of efficiencies that the (ESA) Endangered Species Act creates. We feel that this is due to pressures from business, industry and development. It suggests that the ESA and the species and environmental situations, which by the way have taken many years of scientific study and data to establish in order to preserve and protect, are a problem.  This is very disturbing. The words “efficiency” or “streamlining” are terms that industry and business use as the forerunner to their efforts to dismantle a very important program like the ESA. We have seen this in the Federal Government’s recent Omnibus Bill, where they unceremoniously and irresponsibly, with the stroke of a pen, destroyed very important programs such as Fisheries Act. Again these programs have taken years to establish and earned their creation from the key supportive data that was determined to preserve important species at risk and which also are key indicators of the health of the environment.

The MNR’s Statement of Environmental Values (SEV) and strategic direction ensure sustainable development, protect and restore biodiversity, and must be the guiding principles in all decisions with regard to streamlining, modernization and economic development. The values set out in the SEV must be adhered to in the contemplation of any existing or planned activities where endangered species or habitat protection is in question. The SEV clearly states, “The Ministry’s

mission is to manage Ontario’s natural resources in an ecologically sustainable way to ensure that they are available for the enjoyment and use of future generations. The Ministry is committed to the conservation of biodiversity and the use of natural resources in a sustainable manner.”

We are concerned that the fate of the ESA and our species at risk, which by the way, you as our government have a moral commitment to preserve, will be put under timelines in order to resolve. This is a slippery downward slope of haste to the degradation of our environment. A dollar can be replaced and even a job for that matter. The environment’s problems and species at risk at are increasing daily due to human pressures.

We do not feel as the MNR has properly fulfilled it moral and legal responsibility in stating that they have “brought together a stakeholder group to identify common issues potential problems”. This group was extremely biased with industry and business comprising eleven (11) and only 2 or three representing our environment. A group, yes. Sufficient and appropriate representation in a true stakeholders session, no. What is the Ontario government afraid of?

The “Rules in Regulation” process is simply an exemption with conditions, requires no review or approval from MNR, nor permits and would provide no opportunity for public or First Nation consultation on mitigation plans.

Our organization strongly disagrees with the assessment statement, “the anticipated environmental risks and consequences associated with this proposal are likely neutral”. There is no data, study, or rational provided to back up this statement. Based on our foregoing arguments there is no clear justification or rationale for this statement, and it appears to be inaccurate and overstated.

MNR’s own policy document, sets it out quite clearly when it states, “For the purposes of clause 17(2)(c) of the ESA, the concept of providing an overall benefit to a species involves undertaking actions that contribute to improving the circumstances for the species specified in the permit. Overall benefit is more than no net loss or an exchange of like-for-like (Figure 1).

Overall benefit is grounded in the protection and recovery of the species at risk and must include more than steps to minimize adverse effects on the protected species or habitats. The outcome of the overall benefit actions is meant to improve the relative standing of a species after taking into account the residual adverse effects to the species or its habitat that are authorized by the permit (i.e., the completion of all permit conditions achieves a net positive benefit for the species at risk…)3 This vital component is totally missing from these proposed changes, and our organization strongly objects.

The present SEV seems to placate concerns of environmental impact by requiring those wishing to develop or build in sensitive areas, to do so with care and “replace” with the same of species that are at risk or those otherwise that may be harmed. We have a serious concern with this as we feel this is a band-aid approach. The developer, industry or business cannot replace the delicate balance status that exists. They do not have the ability, ever, to replace or fix it once it is broken.

Once it is gone, it is gone forever. Who will then be accountable? Spills and other damaging processes create situations from which the environment and many species will never recover.

Does the creation of thirty jobs or a new subdivision outweigh the importance of a species or a river that is fighting to survive?

Our mandate is to preserve our watershed and to protect the species within it which do not have a voice and never did anything to harm or negatively impact the environment.

What do you wish to leave as a legacy to your children and future generations? We request that the government act responsibly with foresight and with a moral obligation to protect our environment and its many species including those at risk and not to act with haste and irresponsibly due to external pressures.

We did not inherit our environment from our parents. We have borrowed it from our children.

The Nottawasaga Steelheaders, in support of the Ontario Rivers Alliance supports these recommendations and believes the Ontario Government and MNR should review them as responsible and a sound framework.

1. MNR adhere to the principles of their SEV and Strategic Directions, to ensure certainty to species at risk and their habitat.

2. The ESA proposal be completely rewritten to

a. Conform to the purpose and intent of the ESA, which is to protect and recover species at risk;

b. Improve and strengthen ESA implementation instead of weakening it; and

c. Provide details and wording of all proposed regulations, exemptions, and applications – not just concepts.

3. MNR must require companies to not only register their activities, but also to

a. Register the anticipated impacts, and their plans to minimize the effects;

b. Submit a report demonstrating how their continued operation will not jeopardize the recovery and survival of species at risk; and

c. Submit their plans to address achieving an overall benefit for the species.

4. ESA approval and rigorous MNR oversight must always accompany any development or work that impacts Endangered Species.

5. Mitigation plans must be filed with MNR to enable monitoring, ensure compliance, and be  available to the public and First Nations for comment.

6. Compliance audits and enforcement must be of the highest standard.

7. Public and First Nations consultation must be a key component in all development and mitigation proposals before they are finalized.

8. MNR introduce a full cost recovery program to charge for permits, applications, oversight, monitoring and approvals.

9. New regulations must include severe fines for infractions that threaten or harm species at risk.

10. Human health and safety must always take precedence over all other considerations.

11. Exemptions must not be the rule, but must remain the exception.

12. There must be no permanent exemptions for approved or planned activities.

13. For the majority of species at risk, permits are the appropriate tool – not exemptions.

14. Limit any exemptions to minor, low-risk, and routine developments.

15. No exemption should be given for a species that is highly vulnerable to the activity, regardless of where the project sits in

16. There must be no exemptions in cases where a full environmental assessment clearly is required to assess any additional impacts or harm to endangered species.

17. Any exemptions to the Endangered Species Act should be for site specific exceptions in exceptional circumstances – not entire industries.

18. There must be no exemptions for forestry, aggregate, waterpower or infrastructure unless there is a present and imminent risk to public health and safety.

19. Exceptions should only be given for minor projects with extremely well known and  consistent impacts, and only for selected species.

20. Registration should only be a first step, and should be mandatory for all projects.

21. MNR must require companies to not only register their activities, but also to register the anticipated impacts, their plans to minimize the effects, a document demonstrating how their continued operation will not jeopardize the recovery and survival of species at risk, and their plans to address achieving an overall benefit for the species.

22. In any standardized approach, an ESA approval and MNR oversight must always accompany any development or work relating to Endangered Species.

23. Safe Harbour, must not be implemented by exemption, but rather by binding stewardship agreements.

24. All Rules in Regulation must be provided for public and First Nation comment.

25. Overall benefit provisions of the act need to be maintained and strengthened, not eliminated, or substantially reduced as proposed, or recovery will be severely limited.

26. Take the necessary action to mitigate past and ongoing effects that seriously jeopardize the survival and recovery of species at risk.

27. Existing agreements for waterpower facilities must include the requirement to demonstrate that the continued operation of the facility will not jeopardize the recovery or survival of species at risk.

28. Time-limited transition conditions of existing and planned facilities must be detailed and specific, with an opportunity for public consultation and comment.

29. NHIC database must not be the sole tool to locate species at risk.

30. MNR take more time to consult Ontario citizens, develop draft rules in regulations, consider more species exclusions from the proposed Rules in Regulations, and then redraft the proposed approaches for posting on the EBR for comment.

31. A balanced process which examines the conservation inconsistencies and gaps, as well as the issues raised by developers.

32. Strike an advisory panel that is balanced with an equal number of environmental and industry representatives.

Thank you for allowing us to respond and for your efforts to protect our environment and natural and living resources. We look forward to assisting you with any developments that can be undertaken to preserve the integrity of our environment and the species within it.

Yours truly,

Gary Christie

President, Nottawasaga Steelheaders

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