Black Ash: Temporary suspension of Endangered Species Act protections to lapse on Jan 25, 2024

On January 26, 2022, the province issued a Minister’s regulation (O. Reg. 23/22) that temporarily paused the application of the general ESA protections for Black Ash for two years from the time when it is added to the Species at Risk in Ontario List (SARO List) regulation (O. Reg. 230/08). The province reported that this time would be used to determine the best way protect and recover Black Ash, including how to manage the threat of invasive Emerald Ash Borer (EAB).

Ontario issued an updated proposal in Sept 2023 that set out how ESA protections will apply to Black Ash when the period of temporary suspension ends on January 25, 2024 and will set out a new conditional exemption for Black Ash that are protected under the ESA. The province also stated that they may consider extending the temporary pause in protections for Black Ash until no later than January 2025 so that the proposed regulatory approach can be implemented. The details of the proposed regulatory approach are outlined in the following ERO posting:

https://ero.ontario.ca/notice/019-4278

Importantly, proposed protections for habitat and individuals would be applicable only to a specified geographical area, which presently only applies to southern Ontario and limited areas of southern central Ontario (e.g., Town of Gravenhurst). This proposal is contrary to recommendations in the Recovery Strategy (https://files.ontario.ca/pdf-3_0/mecp-black-ash-recovery-strategy-en-2022-08-10.pdf), which would see protections apply province wide. There is some logic in the proposed approach, as only a limited portion of the Ontario range for this species is expected to be impacted by EAB infestation. Moreover, as EAB is the primary factor affecting the species, it is not necessarily logical to apply protections to individuals or habitat in areas that are not presently infested by EAB.

The proposed approach would essentially apply protections to trees that are demonstrably healthy following localized infestations of EAB, thereby protecting individual trees exhibiting resistance to infestation. Protections would also only apply to trees of minimum size, which is also logical given that EAB tends not affect immature trees.

We suspect and hope that formal guidance will be released for ensuring that health assessments follow a standardized protocol, similar to Butternut. Otherwise, as environmental consultants with significant experience on this subject, we generally support the proposed approach. Aster Environmental will be reviewing the ERO for a decision on the proposal, which we expect to be released in the new year. Our Environmental Impact Studies and Natural Heritage Evaluations will be updated accordingly to ensure our clients are addressing the latest ESA requirements with respect to Black Ash.