Arboriculture & Endangered Species

November-December 2009

THE ONTARIO ENDANGERED SPECIES ACT (ESA), unchanged since 1971, finally received a major update in 2007. Since then there has been much debate, particularly in rural communities, about what is a species-at-risk (SAR) and the merits (or lack thereof) of the retooled act and its regulations. In this two-part feature, continued in the January/February issue of the Ontario Arborist, we’ll take a closer look at what this law means to the arboriculture profession in Ontario.

What is the Endangered Species Act?
To paraphrase the purpose of the act, it is a law intended to identify at-risk species, protect them and their habitat, and promote their stewardship and recovery.

Where can I peruse the act?
You can find the complete act and its regulations on the province’s website.

Who is affected by this legislation?
Basically everyone and anyone (including persons and corporate entities) who resides, visits, owns property, or carries on business in Ontario. Some laws are more relevant to the arboriculture profession than others. I would rank the ESA’s relevance on par with the Occupational Health and Safety Act. In fact, you could view the ESA as being kind of a health and safety law for Ontario’s non-human lifeforms.

What species are protected by the ESA?
Any native species, be it floral or faunal, that is listed in the act’s schedules or regulations. The lists get updated regularly (latest amendment, Reg. 332/09) and such amendments typically take one of three forms:
1. a species is removed from the list
2. a species is added to the list
3. a species’ status is changed

How do species get listed and ranked?
Occurrence data and expert knowledge figure prominently in ranking decisions. The responsibility for these decisions rests with the Committee on the Status of Species at Risk in Ontario (COSSARO). The committee’s authority is explicitly mandated in the act.

What do the status rankings mean?
You’ve probably heard these terms before, sometimes interchangeably, but, as you can imagine, in law they have rather more precise meanings. Section 5(1) of the ESA says:

Extinct: the species no longer lives anywhere in the world.

Extirpated: the species lives somewhere in the world, and it at one time lived in the wild in Ontario, but no longer lives in the wild in Ontario. The good news here is that re-introduction, as was done with wild turkeys in the late 1980s, is still possible.

Endangered: the species lives in the wild in Ontario but is facing imminent extinction or extirpation. Especially for fauna, this often means that there are no longer enough individuals to maintain a viable gene pool and, thus, a self-perpetuating population.

Threatened: the species lives in the wild in Ontario, is not endangered, but is likely to become endangered if steps are not taken to address factors threatening it.

Special concern: the species lives in the wild in Ontario, is not endangered or threatened, but may become threatened or endangered due to a combination of biological characteristics and identified threats. This category used to called vulnerable.

Are any of Ontario’s native tree species listed?
Yes, unfortunately there’s a few. See the sidebar at the end.

You may be thinking: I’ve never seen any of these at-risk tree species and have never even heard of some of them. So, how am I supposed to know what they look like?
This is understandable. In over 20 years of fieldwork, I’ve yet to encounter many of them myself. Their rarity is, of course, the whole point of the ESA. Regardless, species knowledge and ID skills are elemental to the arborist’s job. Learn about them on the internet or in your own texts, visit a library or arboretum, talk to colleagues and co-workers, engage an expert botanist, or consult with local natural heritage organizations like a field naturalist club or stewardship council.

What should I do if I believe that I’ve found an at-risk tree species?
Record it, get it confirmed (if necessary), and submit an occurrence report. These days, my modus operandi is to always have a digital camera and a GPS on hand. Location data is probably the most crucial element of an occurrence record. The photo(s) serve as corroboration if you’ve identified the species correctly, or as a non-destructive sample if you’re not sure. Location coordinates will not only help in finding it again, they will usually also dictate who is primarily responsible for the big decisions.

Submitting an occurrence report is only a few mouse clicks away. The MNR’s Natural Heritage Information Centre is the de facto repository for species occurrence records. For public lands, one may willingly report any sighting. For private property, a retained professional is obliged to bring the matter to the attention of the owner/customer/client. I may go further and offer to submit the record(s) for them. Ultimately, though, it’s their records and their land, and that is their decision to make.

So who’s to know if I don’t tell anyone that I found something? Or what if the property owner wants to keep it quiet?
These questions obviously jump deep into ethical territory. It depends, of course, on why you (or your customer/client) might not want to tell anyone about a stand of butternut or the bald eagle nest in that white pine. As a citizen, the ESA does not obligate you to report anything to anyone. It is ultimately a personal moral and ethical choice. Professionally, things are a little murkier. This is new law, and the limits of liability certainly haven’t been tested and sorted out for every scenario that potentially runs afoul of its dictates.

The act combines both “carrot-and-stick” approaches to fulfill its purpose. One carrot is tax incentives for property owners to maintain critical habitat. The main stick is a nasty fine (see Section 40(1) )or even jail time.

There’s another thing to consider: what’s new to you may already be known to others. Vegetation can be identified from aerial photos and hi-res satellite imagery, while many SAR fauna are fitted with ear tags, leg bands, microchips, and/or radio transmitters to track their movements as part of ongoing research efforts in your area.

Who can I contact to find out more about what species-at-risk are, or might be, in my area?
Your local government and non-government natural heritage organizations. Their offices or websites are the best places to start:
• the nearest Ontario Ministry of Natural Resources district office; more precisely, a species-at-risk biologist or the district ecologist.
• conservation authorities
• stewardship councils
• nature conservancies
• field naturalist clubs
• biosphere reserves
• provincial parks
• national parks

Are you some sort of Ministry spokesperson?
No, I am not. I do, however, find myself working more on SAR-related projects these days, like helping to set up a new Ontario Herpetofaunal Atlas and last year, conducting a province-wide survey of butternut. By the way, I’m also not a lawyer, so you may want to get a proper legal opinion about the ESA’s implications for you, your work, or your company.

So why do I, as an arborist, need to be aware of this legislation?
The two most relevant sections are probably Section 9(1) and Section 10(1). Since the act explicitly protects listed species and their habitat, the implications are numerous:
a. You could be asked to work with a woody species that has risk status. This will certainly complicate what might otherwise be a straightforward removal.
b. You could be working very near a woody species that has risk status and the SAR tree/shrub could be inadvertently damaged or destroyed.
c. You could be working with a tree that is growing within the habitat or range of a species-at-risk, Killing a SAR snake that just happens to be slithering through your work area is a serious no-no; better to relocate it or pause until it relocates itself.
d. You may find yourself dealing with a tree (or group thereof) that is providing critical habitat for a non-dendritic species-at-risk. I’m thinking mainly nests and dens here.

I probably don’t need to tell you that the implications for development projects are profound. As such, consulting arborists in particular must take care to exercise commensurate diligence when preparing inventories, assessments, etc. for their clients (see Section 39).

Finally, does it really matter if species disappear?
They say habitat loss is the overriding problem for many at-risk species, but it’s actually just reflective of a deeper reality: there is a finite amount of liveable space in any given area, be it your town or the globe. Homo sapiens (that’s us) most certainly does not appear to be at risk, and we’re accustomed to arbitrarily monopolizing and manipulating pretty much any liveable space in any way we feel like.

We know that plant and animal diversity is essential to any ecosystem’s resilience, and that every extinction or extirpation reduces an ecosystem’s capacity to bounce back from a disturbance. Collapsing ecosystems are fundamentally bad news for everyone and everything. Our awareness of these environmental truths is expressed partly through our economic, environmental and regulatory efforts, be they local or global, to help prevent species extinctions. The ESA is but one tool to that end.

Regardless of what you or I may believe to be the act’s merits or shortcomings, it is also a reflection of our societal values with respect to the plants and animals around us. Collectively we cannot, in good conscience, pretend that loss of biodiversity isn’t a problem and do nothing. Whether you, or the company you represent, are part of the solution, or part of the problem, is what really matters.

Oliver K. Reichl is a consulting arborist and ecologist in eastern Ontario. His latest project was with the Eastern Ontario Model Forest and involved outreach work, field surveys, sightings confirmation, website design, and database creation for a new Ontario Herpetofaunal Atlas.

Ontario Native Tree Species With ESA Status

American chestnut, Castanea dentata, Endangered
Butternut, Juglans cinerea, Endangered
Cherry birch, Betula lenta, Endangered
Cucumber tree, Magnolia acuminata, Endangered
Red mulberry, Morus rubra, Endangered
Common hoptree, Ptelea trifoliata, Threatened
Dwarf hackberry, Celtis tenuifolia, Threatened
Kentucky coffee-tree, Gymnocladus dioicus, Threatened
Blue ash, Fraxinus quadrangulata, Special Concern
Shumard oak, Quercus shumardii, Special Concern

Recent news items from a quick google:

Rare Magnolia Found in Cobourg

A rare 125-year-old Magnolia acuminata or "cucumber tree," protected under the Endangered Species Act, has been discovered in Cobourg.

It was identified after a site development application was submitted to convert the historically designated former Sidbrook Hospital at 411 King St. E. into six condo units. Town arborist Rory Quigley found it while undertaking a tree review because the site has many mature tree species on both sides of the building. The town has a tree protection bylaw in place.

"This was not a normal tree I was used to seeing," Quigley told Northumberland Today.

The bud looked familiar, but not on a tree that size, almost completely round, towering over the west side of the three-storey Sidbrook, he said.

The leaves look like large magnolia leaves, Quigley said.

This one also has magnificent yellow blooms and there is sometimes a fruit like a "gerkin" pickle – but there was no sign of fruit on this one.

The Ministry of Natural Resources confirmed the identity of the tree and Cobourg Councillor Miriam Mutton was very excited about the find. The rare tree can not be harmed or moved, Mutton said.

"They risk fines for even trimming it without ministry approval,” she added during an interview.

Only about 248 cucumber trees have been identified in Ontario, says Quigley, who has not found any seedlings around this one.

"It's not common for them to throw their seeds," the arborist said. And that adds to the reason it is rare here, he added. A recovery program is being developed through MNR to promote protection and growth of this endangered species.
—reprinted with permission, The Northumberland Today

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