Pursuant to the Endangered Species Act, 2007, S.O. 2007, c. 6 (ESA) and its Regulations, the Provincial Government seeks to strike a balance between protecting species that are in danger or at risk, while providing conditional exemptions to such protections for certain development activities. On January 26, 2022 and May 31, 2022, the Province amended the Species at Risk in Ontario List (the SARO List) and made corresponding amendments to O. Reg 242/08, which provides conditional exemptions for specified development activities that impact species included on the SARO List. A summary of these amendments and the key takeaways for the development industry in Ontario is set out below.

Summary of Amendments

1. Amendments to the SARO List (Passed on January 26, 2022)

Sections 9 and 10 of the ESA prohibit persons from harming, killing, or destroying the habitats of any species that are on the SARO List. Failure to comply with these prohibitions can result in the imposition of significant penalties, fines, and enforcement orders that could significantly delay development projects.

Amendments to the SARO List introduce 15 new species as either “endangered,” “threatened,” or “special concern,” and re-classify the status of three other species. A chart summarizing the amendments to the SARO List is below.

Once a species is added to the SARO List, the prohibitions in the ESA against harming that species and their habitat will apply. Developers and their consultants should review and monitor the SARO List to determine if their activities will impact any of the newly classified species.

2. Amendments to O. Reg. 242/08 (Passed on May 31, 2022)

O. Reg. 242/08 provides exemptions from the prohibitions in the ESA for certain development activities, provided that the developer complies with certain conditions that are set out in the Regulation (such as the submission of notices to the appropriate authority, or the preparation and implementation of mitigation measures and monitoring plans).

Exempt development activities under O. Reg. 242/08 are set out at Table 1 of Section 23.13, and include, but are not limited to, construction works under the Drainage Act, certain developments under the Planning Act, and certain infrastructure developments, such as transit and energy projects.

On May 31, 2022, the Province passed amendments to O. Reg. 242/08, including the following:

1. Section 0.1(1) of O. Reg. 242/08 has been amended so that the Regulation now applies to “all species on the [SARO List] as that list read on January 26, 2022,” subject to certain minor exceptions. Prior to this amendment, the Regulation only applied to species listed on the SARO List as of June 2, 2017.
2. Conditional exemptions have been extended to two new types of development activity, specifically:
   1. development that is authorized by a community planning permit system established in accordance with section 70.2 of the Planning Act; and
   2. undertakings proceeding under Part II of the Environmental Assessment Act, including but not limited to transit projects, various infrastructure projects, and highway construction and maintenance.

Most significantly, amendments to O. Reg 242/08 clarify rules governing a developer’s responsibilities if a new species is added to the SARO List while development is already underway. Section 23.13 of the Regulation states that if a specific development activity is underway and a species is added to the SARO List to which the conditional exemptions apply, the development activity will be eligible for an exemption if the developer:

1. provides a “notice of activity form” to the Minister “promptly” (Section 23.13(7)3.1);
2. obtains a specific regulatory condition, as determined by Table 1 of Section 23.13 O. Reg. 242/08, either before or after, but no later than two years of a species being added to the SARO List (Section 23.13(2)(a)); and
3. commences the development activity five years after the day the regulatory condition is satisfied, or two years after the date that the species was added to the SARO List if the regulatory condition was satisfied 3 years or more before the species was added to the SARO List (Section 23.13(2.2)(b)).

Developers must also ensure that they comply with the other requirements of Section 23.13(5)-(15) of O. Reg. 242/08 in order to be eligible for a conditional exemption. Among other things, these sections require developers to (1) take reasonable steps to minimize the adverse effects of the activity on each species identified in the notice of activity form, (2) ensure that a mitigation plan is prepared, (3) carry out the development activity in accordance with the mitigation plan, and (4) monitor the effects of the development activity on the species identified in the notice of activity form.

Impacts on the Land Development Community

Developers and their consultants should continue to monitor the SARO List for newly added or re-classified species to ensure compliance and to avoid the risk of penalties and delays on current and future development projects. If development is underway and a new species is added to the SARO List, developers must comply with O. Reg. 242/08 in order to ensure that their specific activity will be eligible for a conditional exemption.

Dentons will continue to monitor any updates or amendments to the SARO List and O. Reg 242/08 under the ESA. If you have any questions about how these changes impact you or your business, please contact Kat Sliwa or any member of our Municipal Planning, Land Use, and Development Law group.

Revisions and Amendments to the SARO List