O. Reg. 294/11: GENERAL
filed June 24, 2011 under Endangered Species Act, 2007, S.O. 2007, c. 6
Skip to contentontario regulation 294/11
made under the
endangered species act, 2007
Made: June 22, 2011
Filed: June 24, 2011
Published on e-Laws: June 28, 2011
Printed in The Ontario Gazette: July 9, 2011
Amending O. Reg. 242/08
(General)
1. Section 5 of Ontario Regulation 242/08 is revoked and the following substituted:
Butternut
5. (1) In this section,
“butternut health assessor” means a person or member of a class of persons designated by the Minister for the purpose of assessing whether butternut trees are affected by butternut canker; (“évaluateur de la santé des noyers cendrés”)
“planting plan” means a planting plan described in paragraph 2 of subsection (5); (“plan de plantation”)
“seed zone” means a seed zone identified in the document entitled “Southern Ontario Tree Seed Zones” that is published by the Ministry of Natural Resources, dated May 2011 and available to the public at the Ministry’s district offices, at the Ministry’s corporate library in Peterborough or on the Ministry’s website. (“zone de semences”)
(2) Clause 9 (1) (a) of the Act does not apply to a person who kills, harms or takes a butternut tree if,
(a) a written report that meets the requirements of subsection (3) has been prepared by a butternut health assessor in respect of that tree;
(b) the person has given the butternut health assessor’s report to the district manager of the Ministry for the district in which the tree is located; and
(c) the conditions set out in subsection (4) or (5) are satisfied.
(3) A butternut health assessor’s report shall, for each butternut tree that a person is proposing to kill, harm or take,
(a) identify the precise location of the tree;
(b) set out the diameter of the tree at breast height or indicate that the tree is shorter than breast height;
(c) state whether, in the opinion of the butternut health assessor, the tree is affected by butternut canker; and
(d) if, in the opinion of the butternut health assessor, the tree is affected by butternut canker, describe the extent to which the tree is affected by butternut canker.
(4) If, in the butternut health assessor’s report, the assessor gives the opinion that one or more of the trees that is proposed to be killed, harmed or taken is affected by butternut canker to such a degree that retaining the trees at their current location would not support the protection or recovery of butternut, the person is exempt from clause 9 (1) (a) of the Act for the purpose of killing, harming or taking those trees if one of the two following conditions is satisfied:
1. After receiving the report, the district manager gives notice to the person in writing that he or she has approved the butternut health assessor’s report.
2. Thirty days or more elapse after the butternut health assessor’s report is submitted to the district manager and no notice approving or refusing approval of the report is received by the person from the district manager.
(5) If, in the butternut health assessor’s report, the assessor gives the opinion that one or more of the trees that is proposed to be killed, harmed or taken is not affected by butternut canker or that the degree of butternut canker affecting the trees that are proposed to be killed, harmed or taken is less than the degree described in subsection (4), the person is exempt from clause 9 (1) (a) of the Act for the purpose of killing, harming or taking those trees if all of the following conditions are satisfied:
1. The person may not kill, harm or take more than 10 of the butternut trees identified in the butternut health assessor’s report as trees that are not affected by butternut canker or that are affected to a degree that is less than described in subsection (4).
2. A written planting plan must be prepared by or on behalf of the person that,
i. identifies a maximum of 10 trees among the butternut trees identified in the butternut health assessor’s report that are proposed to be killed, harmed or taken,
ii. identifies the reasons why the butternut trees are proposed to be killed, harmed or taken,
iii. for each tree proposed to be killed or taken, provides for the planting of,
A. at least two butternut seedlings, if the tree proposed to be killed or taken is described in the butternut health assessor’s report as shorter than breast height or less than three centimetres in diameter at breast height,
B. at least five butternut seedlings, if the tree proposed to be killed or taken is described in the butternut health assessor’s report as at least three centimetres but less than 15 centimetres in diameter at breast height, and
C. at least 20 butternut seedlings, if the tree proposed to be killed or taken is described in the butternut health assessor’s report as 15 centimetres or greater in diameter at breast height,
iv. for each tree proposed to be harmed, provides for the planting of,
A. at least one butternut seedling, if the tree proposed to be harmed is described in the butternut health assessor’s report as shorter than breast height or less than three centimetres in diameter at breast height,
B. at least three butternut seedlings, if the tree proposed to be harmed is described in the butternut health assessor’s report as at least three centimetres but less than 15 centimetres in diameter at breast height, and
C. at least 10 butternut seedlings, if the tree proposed to be harmed is described in the butternut health assessor’s report as 15 centimetres or greater in diameter at breast height,
v. identifies the area and the address, if any, where the butternut seedlings will be planted and describes the physical characteristics of the planting site and the manner and timeframe in which they will be planted,
vi. provides for the planting of butternut seedlings to replace any seedlings planted under the planting plan that may die, and
vii. identifies the manner in which the butternut seedlings will be tended and monitored and the length of time for which they will be tended and monitored in that manner.
3. The person must give the planting plan to the district manager of the Ministry for the district in which the trees are located, along with the butternut health assessor’s report, and either of the following conditions must be satisfied:
i. the district manager notifies the person in writing that he or she has approved both the butternut health assessor’s report and the planting plan, or
ii. thirty days have elapsed since the butternut health assessor’s report and the planting plan were submitted to the district manager and no notice approving or refusing approval of the report and plan has been received by the person from the district manager.
4. An amendment may be made to the planting plan but must be made in writing and be approved by the district manager of the Ministry and must meet the requirements for a planting plan described in paragraph 2.
5. The trees that are killed or taken must be identified in the planting plan as trees proposed to be killed or taken, and the trees that are harmed must be identified in the planting plan as trees proposed to be harmed.
6. The person must plant the number of butternut seedlings specified in the planting plan in accordance with the planting plan.
7. Every tree planted under the planting plan must have been grown from seed which originated from the seed zone in which it is planted.
8. Every tree planted under the planting plan must be tended and monitored in accordance with the planting plan.
9. Not later than December 1 of each year in which the person monitors butternut trees under the planting plan, the person must give the district manager a report that sets out the following information for each butternut tree planted under the planting plan:
i. The date the tree was planted.
ii. The dates the tree was monitored during that year.
iii. The dates the tree was tended under the planting plan during that year and a description of the tending activities that were undertaken during that year.
iv. The health status of the tree, expressed as good, poor or dead.
v. Whether the tree shows evidence of butternut canker and, if so, a description of the extent to which the tree is affected by butternut canker.
(6) A district manager of the Ministry may refuse to approve a butternut health assessor’s report referred to in clause (2) (a) if,
(a) the assessment was not carried out in accordance with the practices and requirements for such assessments set out in the document entitled “Butternut Assessment Guidelines: Assessment of Butternut Tree Health for the Purposes of the Endangered Species Act, 2007”, that is published by the Ministry of Natural Resources, dated May 2011, as amended from time to time, and available to the public on the Ministry’s website; or
(b) the district manager or another employee of the Ministry, for the purpose of examining the trees to which the report relates, requested permission to enter the property where the trees are located at a reasonable time, but permission was not given.
(7) A district manager of the Ministry may refuse to approve a planting plan referred to in paragraph 2 of subsection (5) or an amendment to a planting plan referred to in paragraph 4 of subsection (5) if,
(a) the district manager is of the opinion that,
(i) one or more of the butternut trees proposed to be killed, harmed or taken according to the plan or amendment,
(A) demonstrates resistance to butternut canker,
(B) may be a source of genetic material that could demonstrate resistance to butternut canker or support butternut recovery, or
(C) may be significant to determining other sources of resistance to butternut canker,
(ii) the planting plan or amendment does not provide for butternut seedlings to be planted in an area that provides suitable growing conditions for butternut, or
(iii) the planting plan or amendment does not provide for butternut seedlings to be planted or tended in a suitable manner or timeframe;
(b) the district manager has previously approved another planting plan and,
(i) the two planting plans relate to the same area or to areas that are situated in close proximity to one another, and
(ii) the reasons for which the person is proposing to kill, harm or take butternut trees in both plans are the same or substantially the same; or
(c) the district manager or another employee of the Ministry, for the purpose of examining the property where the planting plan provides for seedlings to be planted, requested permission to enter the property at a reasonable time, but permission was not given.
(8) Despite the requirements of subsections (2), (4) and (5), clause 9 (1) (a) of the Act does not apply to a person who kills, harms or takes a butternut tree if the tree did not occur naturally but was cultivated and,
(a) the cultivation of the tree was not required by a condition of a permit issued under section 17 of the Act;
(b) the tree was not planted under a planting plan for the purpose of obtaining an exemption under that subsection; and
(c) the tree is killed by or at the direction of the owner or occupier of the land on which the tree is located.
(9) Clause 9 (1) (b) of the Act does not apply to butternut trees and section 12 of this Regulation does not apply to the commercial cultivation of butternut trees.
(10) Subsection 9 (1) of the Act does not apply to nuts from a butternut tree.
2. (1) Subsection 12 (1) of the Regulation is amended by striking out “and” at the end of clause (c) and by revoking clause (d) and substituting the following:
(d) not later than the date specified in subsection (1.1), the person gives the district manager of the Ministry written notice of,
(i) the person’s name, address, telephone number and e-mail address,
(ii) the species that the person intends to cultivate or is engaged in cultivating and the cultivar, if any, that the person intends to cultivate or is engaged in cultivating,
(iii) the source of the genetic material for the species that the person intends to cultivate or is engaged in cultivating, and
(iv) the location where the person intends to cultivate or is engaged in cultivating the species; and
(e) the person promptly gives the district manager of the Ministry written notice of any change to the information referred to in clause (d).
(2) Section 12 of the Regulation is amended by adding the following subsection:
(1.1) The date referred to in clause (1) (d) is,
(a) the date the person begins commercial cultivation of the species, if the species was listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species before that date; or
(b) in any other case, the later of,
(i) the second anniversary of the date the species is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, and
(ii) July 1, 2013.
Commencement
3. This Regulation comes into force on the later of July 1, 2011 and the day it is filed.