Understanding Ontario's New Rules to Protect Black Ash Trees

The Black Ash (Fraxinus nigra) is medium sized shade-intolerant hardwood tree primarily found in wetland environments like swamps, floodplains, and fens. Black Ash can also occur in moist upland forests. Over the past ten years, its numbers across North America (and Ontario specifically) have plummeted due to invasive Emerald Ash Borer (Agrilus planipennis), or EAB, a wood-boring beetle that feeds on trees of all ash species in Canada. This insect is native to northeastern Asia and was first detected in southeast Michigan in 2002 and causes large scale mortality of ash trees. Despite this, the species still frequently occurs in areas around Eastern Ontario that may be subject to development.

Because of its declining numbers, the species was listed as Endangered under the Endangered Species Act, 2007 (ESA) in 2022. Formal ESA protections for Black Ash, however, were temporarily suspended through a Minister’s regulation for a two year period beginning January 26, 2022, to allow time to develop an approach to support Black Ash protection and recovery. Ontario released a government response statement and introduced two important regulations to safeguard the Black Ash under the ESA on January 25th, 2024.  The new rules – Ontario Regulations (O.Reg.) 6/24 and 7/24 – are intended to strike a balance between protecting Black Ash species and habitat, while allowing for necessary land development activities.

The ESA and its associated regulations effectively apply on all non-federally-owned properties in Ontario (other than where expressly exempted). Federally owned properties are subject only to the Species at Risk Act, 2002 (SARA). Black Ash is not yet listed under that legislation.

Regulations Impacting Development

• Ontario Regulation 6/24: Implementation of ESA Section 9 Prohibitions

  • ESA clause 9 (1) (a), prohibits the killing, harm, harassment, possession, transportation, trade and/or removal of a living, healthy Black Ash tree.

  • Trees are exempted from this protection, however: if

    • They are located outside of specified municipalities (effectively, Northern Ontario is exempt; Southern and Eastern Ontario are not); or

    • They are small (stem height less than 1.37 m or diameter less than 8 cm at 1.37 m); or

    • They are unhealthy (as determined by a qualified professional in a report submitted to the MECP. Please note, however, that health criteria have not yet been fully established).

• Ontario Regulation 7/24: Black Ash Habitat Protection

  • Black Ash “habitat” is similarly protected under ESA (i.e. the habitat area cannot be damaged or destroyed). For the ESA, Black Ash habitat is defined as a radial distance of 30 m from the stem of every Black Ash to which the prohibitions in ESA clause 9 (1) (a) apply.

• Implementation

Any proposed activities subject to prohibitions above (e.g. harm or removal individuals or development work within 30 m of protected individuals) requires formal consultation with the MECP. The negotiation and acquisition of a Net Benefit Permit would be required for development projects that cannot fully mitigate harm to protected trees or habitat areas. The Ontario government aims to protect and recover Black Ash trees while allowing certain activities to continue. Kilgour & Associates staff are professionals qualified to prepare Ministry reports and assist with the ESA permitting process. Please call us any time if you have any questions or concerns about this species on your properties.

Update of Species at Risk in Ottawa

the Ministry of Environment, Conservation and Parks has recently released the results of provincial status assessments by the Committee on the Status of Species at Risk in Ontario (COSSARO). 

Several local species were addressed, including: 

• Black Ash - recommended to be listed as Endangered

• Red-Headed Woodpecker - recommended to be changed from Special Concern to Endangered

• Hudsonian godwit - to be listed as Threatened

• Midland Painted Turtle - will remain unlisted under the provincial Endangered Species Act but is expected to be listed as Special Concern under the federal Species at Risk Act

For more information on wildlife and plants in Ottawa, species at risk, and other pertinent information, visit their Wildlife and plants website.  

For any questions about Species at Risk and impacts to your project, please contact Katie Black.

Spring Amphibians Are Calling

If you’ve been out on a walk in the woods or along a wetland in the past week, you may have heard the mating calls of early-breeding frog species. This week we’ve heard Spring Peepers, Wood Frogs, Northern Leopard Frogs, and Chorus Frogs. We’ve also encountered frog egg masses, some of which were being consumed by leeches!

Check out our videos on our LinkedIn Page!

Evaluation of Headwater Drainage Features

With the arrival of the spring freshet, it is time to commence surveys in support of a Headwater Drainage Feature Assessment (HDFA) for any project that has the potential to interact with headwater drainage features (HDFs). This includes any project that might alter and/or eliminate HDFs.

HDFs are non-permanently flowing drainage features that are important for maintaining healthy watersheds. HDFs may not have defined beds or banks, and can include first-order and zero-order intermittent and ephemeral channels, swales, and connected headwater wetlands. Conservation Authorities are concerned with land development and construction activities that have the potential to alter and/or eliminate HDFs. Such activities can in turn have broad implications for water quality and quantity, recharge/infiltration, and the overall health of the local HDF and downstream aquatic habitats. 

The objective of a HDFA is to evaluate and classify HDFs and to determine the appropriate management and mitigation actions in regards to a project. To support such an assessment, surveys must be conducted to classify the hydrological, aquatic, and terrestrial functions of the HDFs.

For more information on HDFs and HDFAs, contact Katie Black. KAL can provide project specific advice and has qualified staff to complete HDFAs. 

Sensitive timing window for birds and implications for vegetation clearing activities

As of April 1st, any vegetation removal will require a bird nest sweep by a qualified biologist. Birds in Canada are protected under provincial statute (i.e., Ontario’s Fish and Wildlife Conservation Act (1997)) in addition to the federal Migratory Birds Convention Act (1994). The migratory bird breeding season runs from April 1st to August 31st. Any clearing of trees and other vegetation, such as mowing of tall grass, has the potential to cause harm to migratory birds, their nests or eggs. 

See the Government of Canada’s guidelines to reduce risk to migratory birds.

KAL can provide project specific advice and has qualified staff to complete bird nest sweeps. For more information on how to remain compliant with federal and provincial legislation, and protocols to reduce construction-related impacts on birds and other wildlife, contact Charles Hatry.

Update on construction windows for in-water works

Fisheries and Oceans Canada’s (DFO) construction window will soon end for in-water work for most surface waters. General restricted activity windows (no in-water works) are as follows:

• Ontario’s South: March 15 to July 15

• Ontario’s North: April 1 to June 15

Timing restrictions, however, are subject to change depending on the waterbody and the species found in that given waterbody. Additional timing restrictions may also apply as they relate to endangered and threatened species.

All in-water works in surface waters that contain fish (i.e., most surface waters in Ontario) require that fish be removed from the work area before work is conducted. Kilgour & Associates Ltd. can support your construction work by both obtaining the necessary permission and assisting in removing fish from the work area after obtaining a License to Collect Fish. 

See DFO’s website here for more details and contact Charles Hatry for more information or to obtain advice for a specific project.  

Figure 1: Ontario's Northwest, Northeast and Southern Region boundaries for determining application of restricted activity timing windows.

The City of Ottawa’s new Tree Protection By-law (No. 2020-340)

City of Ottawa

On January 1, 2021, the City of Ottawa  consolidated by-laws 2009-200 (Urban Tree Conservation By-law) and 2006-279 (Municipal Trees and Natural Areas Protection By-law) into their new Tree Protection By-law (2020-340). The by-law applies to municipal trees and municipal areas in the City of Ottawa and trees on private property in the urban area of the City of Ottawa.

Changes to the by-law include the size criterion for “distinctive” trees, which has been reduced from 50 cm to 30 cm in diameter breast height (DBH) for trees located within the City’s inner urban area. See here for more details.

Legislation Update

Endangered Species Act regulatory proposal: Enabling the Species at Risk Conservation Fund

The Province of Ontario provides protections for species at risk (SAR) and their habitats through the Endangered Species Act (ESA) which is administered by the Ministry of Environment, Conservation and Parks (MECP). Currently, proponents may seek an “overall benefit permit” (also known as a “C permit”) from the MECP to perform an activity that is not otherwise allowed under the ESA, such as altering or destroying habitat for Threatened and Endangered species. An overall benefit permit authorizes a proponent to perform the activity so long as they provide an overall benefit to the impacted SAR in Ontario. This may, for example, require creating new habitat and performing effectiveness monitoring. In this process, the proponent would determine the overall benefit actions in consultation with the MECP but is responsible for carrying out the beneficial actions themselves. 

The Province recognizes that proponents may not have the expertise to carry out beneficial actions and that doing this work on a case-by-case basis, by different proponents at different sites, is not always the most effective way to protect and recover SAR. The Province is therefore proposing to create a new provincial agency (the Species at Risk Conservation Trust) that would provide proponents with the option of paying experts of the agency to implement beneficial actions for eligible “conservation fund species”. This proposed approach is intended to maximize benefits for select SAR by implementing large-scale, long-term, strategic, and coordinated protection and recovery activities. It also has the potential to shorten authorization timelines and reduce burdens and increase certainty for proponents.

The following six species are proposed as eligible conservation fund species: Butternut, Barn Swallow, Bobolink, Eastern Meadowlark, Eastern Whip-poor-will, and populations of Blanding’s Turtle within the Canadian Shield region.

The funds owed to the Species at Risk Conservation Trust would be similar to those incurred by proponents carrying out beneficial actions themselves and would consider the degree of impact to the species and its habitat. Proponents opting to pay into the Species at Risk Conservation Fund would still need to consider alternatives to avoid impacting SAR and take action to minimize impacts on SAR and their habitats, as required by law. 

Contact Katie Black for more information!

Email: kblack@kilgourassociates.com

Freshwater Bivalve Program

In 2019 and 2020, KAL completed some unique field work and laboratory work for an Environmental Effects Monitoring (EEM) program for an operation in northern Saskatchewan. 

The program used freshwater clams as sentinel organisms instead of fish. Carried out in a remote part of the province, we compared growth, condition factor and reproduction of clams collected from a creek exposed to uranium mine effluent to clams from an unexposed reference area. This is the first time that freshwater clams have been used in this context.

Contact Catherine Proulx for more information on this project.
Email: cproulx@kilgourassociates.com

New publication to highlight

Developing triggers for environmental effect monitoring programs for Trout-perch in the Lower Athabasca River

Published in Environmental Toxicology and Chemistry

Baseline variations in trout‐perch energy use (growth, gonad size) and energy storage (condition, liver size) were characterized between 2009 and 2015 in 8 reaches of the Athabasca River (AB, Canada), including 2 reaches upstream of the city of Fort McMurray (AB, Canada) and 6 reaches downstream of Fort McMurray among existing oil sands operations. Generalized linear models, used to account for background variation, indicated that fork length, gonad size, and liver size decreased, whereas body weight increased, in relation to river discharge, for both male and female trout‐perch. Air temperature was positively correlated with liver size and negatively correlated with gonad size and body weight for females, but only positively correlated with gonad weight for males. These linear models explained approximately 20 to 25% of the variation in adjusted body size, and upward of 80% of the variation in adjusted body weight, liver weight, and gonad weight. Residuals from linear models were used to estimate normal ranges of variation for each of the fish population performance measures. Combined, the models and normal ranges can be used to assess subsequent monitoring data, providing potential triggers for follow‐up monitoring activities.

Map of the study areas showing Trout-perch sampling locations in the Athabasca River. Inset map shows the location of the study area within the province of Alberta, Canada.