Drainage works
 23.9 (1) This section applies to a person who carries out one of the following activities in a drainage works or ditch that is the habitat of a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species: 1. Improving or maintaining drainage works, if an agreement for the improvement or maintenance was filed under subsection 2 (2) of the Drainage Act. 2. Improving, maintaining or repairing drainage works, if a report that applies to the drainage works was adopted under subsection 45 (1) of the Drainage Act or under subsection 3 (15) of that Act, as that subsection read on October 24, 2010. 3. Maintaining a ditch constructed under The Ditches and Watercourses Act, being chapter 109 of the Revised Statutes of Ontario, 1960, in accordance with subsection 3 (18) of the Drainage Act. O. Reg. 176/13, s. 14. (2) This section does not apply with respect to a species identified in Columns 3 and 4 of the Table to this subsection by its common and scientific names, and belonging to the species grouping referred to in Column 2 of the Table opposite the identified species, except in the circumstances described in subsection (3). Table   Excluded Species  Column 1   Item   Column 2   Species Grouping   Column 3   Common Name   Column 4   Scientific Name 

  1.   Vascular plants   Cherry Birch   Betula lenta 

  1.1   Vascular plants   Eastern False Rue-anemone   Enemion biternatum 

  2.   Vascular plants   False Hop Sedge   Carex lupuliformis 

  3.   Revoked: O. Reg. 328/22, s. 2 (2). 

  4.   Vascular plants   Heart-leaved Plantain   Plantago cordata 

  5.   Vascular plants   Scarlet Ammannia   Ammannia robusta 

  6.   Vascular Plants   Lowland Toothcup   Rotala ramosior 

  7.   Insects   Bogbean Buckmoth   Hemileuca sp 

  8.   Fishes   Pugnose Minnow   Opsopoeodus emiliae 

  8.1   Fishes   Spotted Gar   Lepisosteus oculatus 

  9.   Amphibians   Small-mouthed Salamander   Ambystoma texanum 

  9.1   Amphibians   Unisexual Ambystoma (Small-mouthed Salamander dependent population)   Ambystoma laterale — texanum 

  10.   Mammals   Gray Fox   Urocyon cinereoargenteus O. Reg. 179/14, s. 4 (1); O. Reg. 218/18, s. 7; O. Reg. 328/22, s. 2. (3) This section applies with respect to a species referred to in the Table to subsection (2) if a person is carrying out an activity described in subsection (1) in an area that is the habitat of, or used by, the species and, (a) before June 30, 2010, the person had entered into an agreement with the Minister under subsection 23 (2); (b) the agreement applied specifically to the species and with respect to an activity described in subsection (1); and (c) the person submits a notice of drainage works form to the Minister in accordance with paragraph 1 of subsection (6) and complies with the other conditions set out in subsection (6). O. Reg. 176/13, s. 14; O. Reg. 179/14, s. 4 (2). (4) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who, while carrying out an activity described in subsection (1), kills, harms, harasses, captures or takes a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species, or damages or destroys the habitat of such a species, if the person satisfies all of the conditions set out in subsection (6). O. Reg. 176/13, s. 14. (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 on an activity described in subsection (1) must satisfy for the purposes of subsection (4): 1. Before doing anything, in the course of carrying out an activity described in subsection (1), that is prohibited under clause 9 (1) (a) or subsection 10 (1) of the Act, the person must, i. submit a notice of drainage works form available on the Registry to the Minister through the Registry, thereby giving the Minister notice that, A. the person is responsible for the improvement, maintenance or repair of the drainage works or ditch, and B. as part of the improvement, maintenance or repair of the drainage works or ditch, an activity described in subsection (1) will be carried out at various times in the future in the drainage works or ditch that will likely affect one or more species listed on the Species at Risk in Ontario List as endangered or threatened species, and ii. subject to subsection (10), prepare in accordance with subsection (11) a mitigation plan that, A. meets the requirements of subsection (12), and B. applies to all activities described in subsection (1) that will be carried out in the future in the drainage works or ditch with respect to the species listed on the Species at Risk in Ontario List as endangered or threatened species that are identified in the notice of drainage works form. 2. The person must ensure that the notice of drainage works form includes, i. the location of the drainage works or ditch, and ii. the name of every species listed on the Species at Risk in Ontario List as endangered or threatened species that will 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 drainage works form, the keeping of records relating to the notice of drainage works form and the updating of the information on the Registry. 4. Whenever carrying out an activity described in subsection (1) in the drainage works or ditch identified in the notice of drainage works form, the person must, i. comply with the requirements of the mitigation plan, ii. take reasonable steps to minimize adverse effects of the activity on the species identified in the notice of drainage works form, including the steps described in subsection (13). 5. After the mitigation plan is prepared, the person must, i. retain a copy of the mitigation plan for as long as the person continues to be responsible for the improvement, maintenance and repair of the drainage works or ditch, ii. provide a copy of the mitigation plan to the Ministry within 14 days of receiving a request for it, and iii. ensure that the mitigation plan is updated in accordance with subsections (11) and (12) at least once every five years to include information obtained from observing the effects of the activity on the species. 6. For as long as the person continues to be responsible for the improvement, maintenance and repair of the drainage works or ditch, the person must, i. on or before January 31 of each year, prepare an annual report in accordance with subsection (14) on the effects that any activity described in subsection (1) that was carried out in the course of the previous calendar year has had on the species identified in the notice of drainage works form, ii. retain a copy of the annual report for at least five years after it is prepared, and iii. provide a copy of the annual report to the Ministry within 14 days of receiving a request for it. O. Reg. 176/13, s. 14; O. Reg. 831/21, s. 9 (1, 2). (7)-(9) Revoked: O. Reg. 831/21, s. 9 (3). (10) A person who carries out an activity described in subsection (1) is not required to complete the preparation of a mitigation plan until the following dates if the following circumstances apply: 1. If the mitigation plan relates to a species that was added to the Species at Risk in Ontario List as an endangered or threatened species for the first time on or after January 24, 2013, but no later than the date specified in section 0.1, the third anniversary of the day the species was so added. 2. If the mitigation plan relates to a species that first appears in the drainage works or ditch after the person begins being responsible for the improvement, maintenance and repair of the drainage works or ditch, three years after the date the species first appears in the drainage works or ditch. O. Reg. 176/13, s. 14; O. Reg. 179/14, s. 4 (3) (11) A mitigation plan must 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. (12) A mitigation plan prepared with respect to an activity identified in a notice of drainage works form submitted to the Minister under subparagraph 1 i of subsection (6) must include the following information: 1. The name and contact information of the person who is carrying out the activity. 2. A description of the area within the drainage works or ditch that will be affected by the activity and that is used by, or is the habitat of, a member of a species identified in the notice of drainage works form. 3. Details of how the person will carry out the steps described in subsection (13) that are required to minimize the adverse effects of the activity on a species identified in the notice of drainage works form, including the dates during the year when the species is likely to be carrying out a life process related to hibernation or reproduction, including rearing, and when the person must take reasonable steps to minimize or avoid killing, harming or harassing members of the species. 4. A description of any steps the person will take to minimize the adverse effects of the activity on a species identified in the notice of drainage works form, in addition to the steps described in subsection (13), including a description of any measures to restore or enhance the habitat of the species that is affected by the activity. O. Reg. 176/13, s. 14. (13) The following are the steps that a person must take to minimize the adverse effects of an activity described in the notice of drainage works form submitted to the Minister under subparagraph 1 i of subsection (6) on a species identified in the form: 1. The person must take reasonable steps to minimize or avoid the killing, harming or harassing of members of the species during a time of year when the species is likely to be carrying out a life process related to hibernation, overwintering, or reproduction, including rearing. 2. If the person encounters an animal that is a member of a species while carrying out the activity, the person must cease carrying out the activity in the area of the encounter and provide the animal with a reasonable amount of time to leave the area before continuing with the activity. 3. If, after providing an animal with a reasonable amount of time in accordance with paragraph 2 the animal does not leave the area, the person must take measures to relocate the animal to a nearby location that is suitable and safe for the animal. 4. The relocation of an animal in accordance with paragraph 3 must be undertaken by or in consultation with a person knowledgeable about, or having training in, the handling of the species. 5. The person must take reasonable steps to exclude members of the species from an area in the drainage works or ditch in which the activity is being carried out or is likely to be carried out, such as installing temporary fencing to prevent members of the species from accessing the area. 6. If the species is a turtle species, the person must not reduce the level of the water in an area of a drainage works or ditch where a member of the turtle species is likely to be hibernating. 7. The person must take reasonable steps to control erosion and sediment, and to stabilize water banks in any area affected by the activity if, i. the area is the habitat of the species, or ii. a member of the species is likely to be present in the area. 8. If the person discovers that the steps described in paragraphs 1 to 7 or in the mitigation plan have not been effective in minimizing the adverse effects of an activity described in subsection (1) on the species, the person shall, i. take such actions as are necessary to increase the effectiveness of those steps, or ii. take such other reasonable steps as may be necessary to minimize the adverse effects of an activity described in subsection (1) on the species. O. Reg. 176/13, s. 14. (14) An annual report required under paragraph 6 of subsection (6) must include, (a) a record of the steps taken by the person when carrying out an activity described in subsection (1) in the previous calendar year, to minimize adverse effects of the activity on a species identified in the notice of drainage works form submitted under subparagraph 1 i of subsection (6); (b) an assessment of the effectiveness of the steps referred to in clause (a); and (c) details of any observations of a species identified in the notice of drainage works form submitted under subparagraph 1 i of subsection (6) in the course of carrying out the activity in the previous calendar year, including, (i) the name of the species, (ii) the location of the observation, and (iii) the date and time of the observation. O. Reg. 176/13, s. 14; O. Reg. 831/21, s. 9 (4). (15) This section does not apply to a person carrying on an activity described in subsection (1) who has entered into an agreement with the Minister with respect to that activity under subsection 23 (2) until the earlier of, (a) the day the person gives notice to the Minister under paragraph 1 of subsection (6); and (b) July 1, 2015. O. Reg. 176/13, s. 14. (16) If a person described in subsection (15) plans to give notice to the Minister under paragraph 1 of subsection (6) of the activity referred to in subsection (15), the mitigation plan that is required to be prepared with respect to the activity under subparagraph 1 ii of subsection (6) must be prepared by the person before the notice of drainage works form is submitted to the Minister under subparagraph 1 i of subsection (6), and not within three years after the notice of drainage works form is given as would otherwise be the case. O. Reg. 176/13, s. 14.