Ontario’s Ministry of Natural Resources is moving ahead to shift some Endangered Species Act permits to a “permit by rule”/ registration system, through Ontario Regulation 176/13. This “Modernization of Approvals” initiative is modeled on the successful one already well underway in the Ministry of the Environment. It was supported by the report of the Endangered Species Act Panel, as one of its six themes.
I’m a strong supporter of the “Modernization of Approvals”/permit by rule concept: the idea that common, low risk, frequently permitted activities can be governed by a standard set of rules, instead of a bespoke permit. If the activities are well chosen and the rules are well designed, a registration/permit by rule system makes routine permits faster, more predictable and more uniform, without reducing species protection. Enforcement is essential, of course, but it should be easier to enforce standard rules than it is to enforce one-off permits bedevilled by little variations. And reducing the number of routine permits should free up regulatory staff to focus on the more challenging applications, as has been happening at the Ministry of the Environment.
Please note that MNR is calling its approach “Rules in regulation”, instead of the more common “permit by rule”. The Ministry of Environment calls the same approach its “registry” or “EASR” system.
In a telling sign of the importance of Endangered Species Act protection, the Ministry received 10034 comments on its proposal: 9469 comments writing and 565 online. 90% were form letters, both for and against the proposal. As a result, a number of useful amendments were made to the proposal, now Ontario Regulation 176/13 (which amends O. Reg. 242/08).
Expert Panel Recommendations
Here is what the expert panel recommended:
The Ministry of Natural Resources should implement an approval continuum where a “permit by rule” (PBR) approach is implemented for certain projects/activities, which must meet a prescribed standard set of implementation conditions instead of proceeding through the regular negotiated approvals process (Permit by Review). Projects/activities that would suit this approach are those which are common and repeated, where there is confidence in the mitigation and therefore a lower risk to the species/habitat and where acceptable implementation best management practices are followed/repeated, such as conservation projects where the purpose is habitat creation. Risk assessment criteria could be developed by MNR to determine what other types of projects/activities would be subject to this PBR standard condition approach. It is recommended that PRB will only be implemented in exceptional circumstances for a relatively small proportion of approval applications in cases where the risk to ESA species is demonstrably low.
Compliance would be enforced by focusing on self-regulation with random audits of activities, and charges being laid for non-compliance, as appropriate.