Aquatic species
 23.4 (1) Subject to subsection (2), this section applies to a person who is carrying out one of the following activities in or adjacent to a river, creek, stream, brook or similar watercourse, other than a watercourse identified in subsection (3), if the watercourse is the habitat of a species identified in Columns 3 and 4 of the Table to this section by its common and scientific names, and belonging to the species grouping referred to in Column 2 of the Table opposite the identified species: 1. The maintenance, repair, modification, expansion, removal or replacement of a bridge, culvert, pier or other structure. 2. The construction, maintenance, repair, modification, expansion, removal or replacement of a pipeline or conduit other than a pipeline or conduit situated under a watercourse that was or will be installed using open-cut trench techniques. O. Reg. 176/13, s. 14; O. Reg. 179/14, s. 2 (1). (2) This section does not apply to the following activities: 1. Any modification or replacement of a structure that would increase the portion of the existing footprint of the structure that is within the bankfull width of the watercourse by more than 25 per cent. 2. Any activity that would damage, i. more than a total of 300 square metres of land situated either within the watercourse or outside of the watercourse but within 30 metres of the bankfull width of the watercourse, subject to subparagraph ii, or ii. more than 100 square metres of land situated within the watercourse below the bankfull width. 3. Any activity that involves, i. the installation of a temporary bridge or a temporary culvert, or ii. the deposition of material in a watercourse to establish a temporary road access. 4. Any activity that involves a change to the alignment of any part of a watercourse. 5. Any activity described in subsection (1) that would have an incidental impact on a coastal wetland, lake or other body of water that is not a river, creek, stream, brook or similar watercourse. 6. Any activity to which section 23.9 applies. 7. Any construction, maintenance, repair, modification, expansion, removal or replacement of a dam or hydro-electric generating station. O. Reg. 176/13, s. 14. (3) This section does not apply to activities carried out in or adjacent to the following watercourses or portions of watercourses: 1. The Detroit River. 2. The Niagara River. 3. The St. Clair River. 4. The St. Lawrence River. 5. The portion of the main channel of the Sydenham River from the downstream edge of the bridge on Tupperville Road within the Municipality of Chatham-Kent extending upstream to the upstream edge of the bridge on County Road 77/Murphy Drive within the Township of Adelaide-Metcalfe. 6. The portion of the main channel of the Ausable River from the downstream edge of the bridge on Bog Line/Parkhill Drive/County Road 18 within the Municipality of Lambton Shores to the upstream edge of the bridge on Crediton Road/County Road 10 within the Municipality of South Huron. O. Reg. 176/13, s. 14. (4) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is engaged in an activity described in subsection (1) and who, in the course of carrying out the activity, kills, harms, harasses, captures or takes a member of a species identified in Columns 3 and 4 of the Table to this section, or damages or destroys the habitat of such a species, if the person satisfies the conditions set out in subsection (6). O. Reg. 176/13, s. 14; O. Reg. 179/14, s. 2 (2). (5) Subclauses 9 (1) (b) (i) and (ii) of the Act do not apply to the possession or transport of a member of a species if, (a) pursuant to subsection (4), clause 9 (1) (a) of the Act did not apply with respect to the member of the species; or (b) the possession or transport of the member of the species is necessary in order to satisfy the conditions set out in subsection (6). O. Reg. 176/13, s. 14. (6) The following are the conditions that a person who carries out an activity described in subsection (1) must satisfy for the purposes of subsection (4): 1. Before commencing the activity, the person must, i. give the Minister notice of the activity by submitting a notice of activity form available on the Registry to the Minister through the Registry, and ii. prepare in accordance with subsection (7) a mitigation plan that meets the requirements of subsection (8). 2. The person must ensure that the notice of activity includes, i. a description of the activity, ii. the proposed start and end dates of the activity and the location at which it will be carried out, and iii. the name of every species identified in Columns 3 and 4 of the Table to this section that will likely be affected by the activity. 3. The person must follow the requirements of section 23.3 with respect to the completion of the notice of activity form, the keeping of records relating to the notice of activity form and the updating of the information on the Registry. 4. While carrying out the activity, the person must, i. comply with all the requirements of the mitigation plan, including the requirements that relate to the action that the person must complete under paragraph 8 in order to provide a benefit to the species identified in the notice of activity form, and ii. ensure that reasonable steps are taken to minimize the adverse effects of the activity on the species identified in the notice of activity form, including the steps described in subsection (9) and such other steps as may be described in the mitigation plan. 5. After the plan is prepared, the person must, i. retain a copy of the mitigation plan for at least five years after the activity is completed, and ii. provide a copy of the mitigation plan to the Ministry within 14 days of receiving a request for it. 6. While carrying out the activity and for a period of five years following the completion of the activity, the person shall monitor the effectiveness of, i. the steps taken under subparagraph 4 ii to minimize the adverse effects of the activity on each species identified in the notice of activity form, and ii. the action completed under paragraph 8 to benefit each species identified in the notice of activity form. 7. While the person is carrying out the activity and carrying out the monitoring requirements of paragraph 6, the person must create and maintain a monitoring record and the person must, i. retain the record for at least five years after the activity is completed, and ii. provide a copy of the record to the Ministry within 14 days of receiving a request for it. 8. Subject to subsection (12), within one year of the completion of the activity, the person must complete one of the actions described in subsection (11) in order to provide a benefit to each species identified in the notice of activity form and the action must be carried out in an area that would benefit the species. 9. If the person or an employee or agent of the person observes a species identified in the notice of activity form in the course of carrying out the activity, the person must ensure that, within three months of the observation, the Ontario Species at Risk Observation Reporting Form available on a website maintained by the Government of Ontario is completed, detailing the species and number of individual members that were observed, the date and location of observation and any other information requested on the form. O. Reg. 176/13, s. 14; O. Reg. 179/14, s. 2 (3); O. Reg. 218/18, s. 4 (1); O. Reg. 831/21, s. 17. (7) A mitigation plan shall be prepared and updated by one or more persons with expertise in relation to every species that is the subject of the plan, using the best available information on steps that may help minimize or avoid adverse effects on the species, which includes consideration of information obtained from the Ministry, aboriginal traditional knowledge and community knowledge if it is reasonably available. O. Reg. 176/13, s. 14. (8) A mitigation plan shall include the following information: 1. The name and contact information of the person who is proposing to carry out an activity described in subsection (1). 2. A map indicating the geographic location of the property on which the activity will occur and the names and location of all watercourses on the property. 3. With respect to the activity that the person proposes to carry out, i. a description of the activity, ii. the proposed start and completion dates of the activity, and iii. a description of all of the stages of the activity and a timeline for the stages. 4. A list of species identified in Columns 3 and 4 of the Table to this section that may be affected by the activity and, i. a description of the survey methodology used or the records reviewed to determine if a species identified in Columns 3 and 4 of the Table to this section could be affected by the activity, and ii. a description of how the activity may affect the species or its habitat, including a list of any works to be carried out in or adjacent to the habitat of the species, such as works involving water crossings, structures, or any other works that may affect the species or its habitat. 5. Detailed plans on the steps the person shall take during the activity to minimize the adverse effects on the species, including, i. details of the steps described in subsection (9), including the specific dates, locations and methods applicable to each step, ii. the times during the year at which a species identified under paragraph 4 is likely to be carrying out a life process related to reproduction or rearing and at which activities should not be carried out in the habitat of a species, iii. details of the steps the person must take in accordance with paragraph 2 of subsection (9) to isolate the work area and relocate a species identified under paragraph 4, including the geographic coordinates of the relocation area, and iv. details of the steps the person must take to restore substrate and riparian areas that are damaged during the activity in accordance with paragraph 13 of subsection (9). 6. A description of the steps the person must take in accordance with subsection (10) to monitor the effectiveness of, i. the actions taken to minimize the adverse effects of the activity on the species, and ii. the action completed under paragraph 8 of subsection (6) to benefit the species identified in the notice of activity form. 7. With respect to an action described under paragraph 8 of subsection (6) that will be completed to benefit the species identified in the notice of activity form, reports or other evidence that the action will meet the requirements of one of the paragraphs of subsection (11), such as studies or evidence of the conditions of the area before the beneficial action was undertaken. 8. Details of the action that will be completed under paragraph 8 of subsection (6) to benefit the species identified in the notice of activity form, including the dates, locations at which the action will be completed and the methods that will be employed to carry it out. O. Reg. 176/13, s. 14; O. Reg. 179/14, s. 2 (4, 5); O. Reg. 831/21, s. 7. (9) The following are the steps that a person must take to minimize the adverse effects of the activity described in the notice of activity form on the species identified in the form: 1. The person must not carry out any part of the activity that is likely to kill, harm or harass a member of the species or damage or destroy the habitat of the species while the species is likely to be carrying out a life process related to reproduction, including rearing. 2. The person must isolate the work area within the watercourse in a manner that prevents members of the species from entering the work area, and must relocate any fishes or mussels from within the work area to suitable habitat for the species. 3. If the activity will take place in the habitat of a mussel species identified in Columns 3 and 4 of the Table to this section, any relocation of mussels must be carried out in accordance with the requirements for mussel relocation described in the document entitled “Protocol for the detection and relocation of freshwater mussel species at risk in Ontario-Great Lakes Area (OGLA)”, dated 2008, a Canadian Manuscript Report of Fisheries and Aquatic Sciences 2790, published by Fisheries and Oceans Canada and available on the Fisheries and Oceans Canada website. 4. No vehicles or machinery may enter the watercourse at any time, except in an area of the watercourse in which the species have been isolated and from which they have been relocated in accordance with paragraph 2, and after the area has been de-watered. 5. The flow of the watercourse that is redirected around the work area must be maintained to ensure that water quantity and quality is not affected downstream of the activity. 6. If the activity involves the maintenance, repair, modification, expansion or replacement of an open-bottom culvert, the culvert must remain as an open-bottom culvert or may be converted to a clear span bridge. 7. If the activity involves the construction, maintenance, repair, modification, or expansion of a pipeline or conduit under the watercourse, i. the activity must not take place in an area that a fish species uses to carry out a life process related to reproduction, including rearing, ii. the activity must be conducted using trenchless techniques, which must be applied at a minimum of two metres below the bed of the watercourse, iii. no part of the activity may be conducted in the watercourse and there must be no damage to the watercourse bed or banks as a result of the activity, iv. bore pits for directional drilling must be located outside the floodplain and bore pits for other trenchless techniques must be located a minimum of five metres outside of the bankfull width, and must include the appropriate erosion and sediment controls, as set out in paragraph 11, and v. a contingency plan, including an emergency response plan to deal with a failure of the trenchless techniques referred to in subparagraph ii, must be prepared and all necessary equipment and materials to implement the plan must be available on site until the activity is complete. 8. All construction equipment used for the purpose of carrying out the activity must be operated in a way that minimizes adverse effects on the habitat of the species and prevents deleterious substances from entering the watercourse. 9. No machinery or equipment may be maintained or refuelled within 30 metres of the watercourse. 10. Any equipment, stockpiled material or construction material must be stored a minimum distance of 30 metres from the habitat of the species and in a manner that prevents sediment or deleterious substances from entering the habitat of the species. 11. The person must establish and maintain sediment and erosion control measures, which must include installing and maintaining a double row of sediment control fencing consisting of a non-woven material with staked straw bales, to prevent sediment from entering any part of the watercourse. 12. Any water that is laden with sediment that the person proposes to discharge must be filtered to remove the sediment before it enters any part of the watercourse. 13. Riparian areas that are damaged during the activity must be restored to provide suitable conditions for the species, by stabilizing exposed soils and planting native non-invasive plants, as soon as possible after the area is damaged. 14. If the person discovers that steps described in paragraphs 1 to 13 or in the mitigation plan have not been effective in minimizing the adverse effects of the activity on the species or that the action completed to benefit the species under paragraph 8 of subsection (6) has not been effective, the person shall take such actions as are necessary to increase their effectiveness, including, i. adjusting the sediment and erosion control measures, ii. installing tree guards or wire mesh to protect trees or shrubs, iii. replacing dead plants, and iv. repairing areas that have suffered due to failed sediment and erosion control measures. O. Reg. 176/13, s. 14; O. Reg. 179/14, s. 2 (6). (10) The monitoring required by paragraph 6 of subsection (6) must include, (a) daily inspections of the activity site while the activity and the action for the benefit of the species required under paragraph 8 of subsection (6) are being carried out; and (b) annual inspections of the activity site for a period of five years after the activity is completed. O. Reg. 176/13, s. 14. (11) For the purposes of paragraph 8 of subsection (6), the following are the actions that a person may complete in order to provide a benefit to the species identified in the notice of activity form: 1. Remediation of an area of degraded riparian habitat to create the conditions that are required by the species adversely affected by the activity, which may include bank stabilization and riparian planting, if, i. the area is in a degraded state prior to the activity taking place, and ii. the area of degraded riparian habitat is at least two times the size of the total area that is adversely affected by the activity, including the areas that are both in the watercourse and adjacent to the watercourse. 2. Improvement of an existing storm water management facility, by planting native non-invasive plants that will shade the storm water management pond, in order to reduce the water temperature and improve the quality of water being discharged at the outlet of the facility and, in so doing, create the conditions that are required by the species adversely affected by the activity, if, i. the area is not adequately vegetated prior to the activity taking place, and ii. the area planted is at least two times the size of the total area that is adversely affected by the activity, including the areas that are both in the watercourse and adjacent to the watercourse. 3. Improvement of an existing storm water management facility, by installing a bottom draw outlet or a cooling trench to the facility, in order to reduce the temperature of water being discharged at the outlet of the facility and, in so doing, create the conditions that are required by the species adversely affected by the activity. 4. Remediation of an existing perched culvert to remove barriers to fish passage that exist in the watercourse and, in so doing, create the conditions that are required by the species adversely affected by the activity. O. Reg. 176/13, s. 14. (12) The requirement in paragraph 8 of subsection (6) to complete an action described in subsection (11) in order to provide a benefit to the species identified in the notice of activity form does not apply if the activity identified in the notice of activity form is the replacement of a closed-bottom culvert with an open-bottom culvert or a clear span bridge. O. Reg. 176/13, s. 14. (13) The monitoring record required under paragraph 7 of subsection (6) shall, (a) document the data and information collected during monitoring conducted at the site, such as the effectiveness of erosion control measures and the growing progress of riparian plantings; (b) evaluate and summarize the effectiveness of the steps taken by the person to minimize adverse effects of the activity on the species identified in the notice of activity form; (c) evaluate and summarize the effectiveness of the action completed under paragraph 8 of subsection (6) in order to provide a benefit to the species identified in the notice of activity form, such as the effectiveness of bank stabilization measures or the growing progress of riparian plantings; (d) document details of any encounters with members of the species identified in the notice of activity form; and (e) describe any measures that were followed during the course of carrying out the activity described in the notice of activity form or of the action that was completed under paragraph 8 of subsection (6) to increase the effectiveness of the steps taken to minimize the adverse effects of the activity or the effectiveness of the action completed under paragraph 8 of subsection (6). O. Reg. 176/13, s. 14. (14) In this section, “bankfull width” means the width of a watercourse at the point where the water begins to leave the channel and move into the floodplain. O. Reg. 176/13, s. 14. Schedule Revoked: O. Reg. 179/14, s. 2 (7). Table   Species to which section 23.4 applies  Column 1   Item   Column 2   Species Grouping   Column 3   Common Name   Column 4   Scientific Name 

  1.   Molluscs   Eastern Pondmussel   Ligumia nasuta 

  2.   Molluscs   Fawnsfoot   Truncilla donaciformis 

  3.   Molluscs   Hickorynut   Obovaria olivaria 

  4.   Molluscs   Kidneyshell   Ptychobranchus fasciolaris 

  5.   Molluscs   Lilliput   Toxolasma parvum 

  6.   Molluscs   Mapleleaf Mussel   Quadrula quadrula 

  7.   Revoked: O. Reg. 218/18, s. 4 (2). 

  8.   Molluscs   Rayed Bean   Villosa fabalis 

  9.   Molluscs   Round Pigtoe   Pleurobema sintoxia 

  10.   Molluscs   Salamander Mussel   Simpsonaias ambigua 

  11.   Molluscs   Snuffbox   Epioblasma triquetra 

  12.   Molluscs   Threehorn Wartyback   Obliquaria reflexa 

  13.   Molluscs   Wavy-rayed Lampmussel   Lampsilis fasciola 

  14.   Fishes   Black Redhorse   Moxostoma duquesnei 

  15.   Fishes   Channel Darter   Percina copelandi 

  16.   Fishes   Cutlip Minnow   Exoglossum maxillingua 

  17.   Fishes   Eastern Sand Darter   Ammocrypta pellucida 

  18.   Fishes   Pugnose Shiner   Notropis anogenus 

  19.   Fishes   Redside Dace   Clinostomus elongatus 

  20.   Fishes   Silver Shiner   Notropis photogenis 

  21.   Fishes   Spotted Gar   Lepisosteus oculatus 

  22.   Fishes   Warmouth   Lepomis gulosus O. Reg. 179/14, s. 2 (8); O. Reg. 308/16, s. 5; O. Reg. 218/18, s. 4 (2). 23.5-23.7 Revoked: O. Reg. 831/21, s. 8.