Hydro-electric generating stations and dams
 23.12 (1) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is engaged in the operation of a hydro-electric generating station or dam and who, in the course of operating the station or dam, kills, harms, harasses, captures or takes a member of 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 the following conditions: 1. Before doing anything, in the course of operating the hydro-electric generating station or dam, that is prohibited under clause 9 (1) (a) or subsection 10 (1) of the Act, i. the person must give the Minister notice of the fact that the person is operating a hydro-electric generating station or dam by submitting a notice of activity form available on the Registry to the Minister through the Registry, and ii. subject to subsection (2), prepare in accordance with subsection (3) a mitigation plan that meets the requirements of subsection (4). 2. The person must ensure that the notice of activity form includes, i. the location of the hydro-electric generating station or dam, and ii. the name of every species listed on the Species at Risk in Ontario List as an endangered or threatened species that will likely be affected by the operation of the hydro-electric generating station or dam. 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 operating the hydro-electric generating station or dam, the person must, i. comply with the requirements of the mitigation plan, ii. take reasonable steps to minimize the adverse effects of the operation of the hydro-electric generating station or dam on the species identified in the notice of activity form, including the steps described in subsection (5) and such other steps as may be described in the mitigation plan. 5. The person must, i. retain a copy of the mitigation plan while operating the hydro-electric generating station or dam and for a period of five years after the person ceases to operate the station or dam, ii. ensure that the plan is updated in accordance with subsection (3) at least once every five years to include information obtained while carrying out the monitoring requirements described in paragraph 6, and iii. provide a copy of the mitigation plan to the Ministry within 14 days of receiving a request for it. 6. The person must monitor the effects that the operation of the station or dam has on the species identified in the notice of activity form and the effectiveness of the mitigation plan. 7. On or before January 31 of each year, the person must prepare an annual report in respect of the previous calendar year in accordance with subsection (6) on the effects that the operation of the station or dam has on the species identified in the notice of activity form and the person must, i. retain a copy of the annual report for at least five years after it is prepared, and ii. provide a copy of the annual report to the Ministry within 14 days of receiving a request for it. 8. If the person, or an employee or agent of the person, observes a species identified in the notice of activity form in the vicinity of the station or dam in the course of operating the station or dam, 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 that form. O. Reg. 176/13, s. 14; O. Reg. 218/18, s. 10; O. Reg. 831/21, s. 10 (1-3), 17. (2) A person who operates a hydro-electric generating station or dam 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 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 area of the hydro-electric generating station or dam after the station or dam begins operation, three years after the date the species first appears in the area of the station or dam. O. Reg. 176/13, s. 14; O. Reg. 179/14, s. 6; O. Reg. 831/21, s. 10 (1, 2). (3) 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. (4) A mitigation plan shall include the following information: 1. The name and contact information of the person who operates the hydro-electric generating station or dam. 2. A map indicating the geographic location of the hydro-electric generating station, including any associated structures, or the dam. 3. A list of the species that are identified in the notice of activity form submitted under paragraph 1 of subsection (1) and that are the subject of the mitigation plan. 4. A description of the adverse effects that the operation of the hydro-electric generating station or dam may have on the species referred to in paragraph 3, including effects, i. on the ability for the members of the species to carry out their life processes, including migration and spawning, and ii. on areas that are habitat of the species. 5. Details on how the person will carry out the steps described in subsection (5) to minimize the adverse effects of the operation of the hydro-electric generating station or dam on the species referred to in paragraph 3, including the dates on which, and locations at which, each step will be carried out. 6. A description of the reasonable steps the person will carry out to minimize the adverse effects of the operation of the station or dam on the species referred to in paragraph 3 in addition to the steps described in subsection (5), including a description of, i. steps the person will take to avoid killing, harming or harassing individual members of the species or damaging or destroying habitat, ii. actions that are necessary to help provide suitable conditions to enable the members of the species to carry out the life processes that are adversely affected by the station or dam, including spawning, attraction, hibernation, nesting and migration or if such actions are not feasible, provide the reasons why they are not feasible at this time, iii. if the operation of the station or dam results in the damage or destruction of the habitat of the species, measures to replace or restore habitat in a suitable area for the species, iv. training that will be provided to all employees, agents and contractors that are likely to encounter members of the species while performing their duties, in order to satisfy the obligations under this section, and v. steps the person will take if an individual member of the species is encountered or injured in the vicinity of the station or dam. 7. A description of the steps the person will take to monitor the effects of the operation of the station or dam on the species referred to in paragraph 3 and the effectiveness of the actions set out in the mitigation plan. O. Reg. 176/13, s. 14; O. Reg. 831/21, s. 10 (1, 2, 4). (5) The following are the steps that a person must take to minimize the adverse effects of the operation of a hydro-electric generating station or dam on a species identified in a notice of activity form submitted under paragraph 1 of subsection (1): 1. The person must inform all employees, agents and contractors conducting activities at the station or dam that members of the species are present at or near the station or dam and of the steps required under paragraphs 2 to 4. 2. If the species uses nests or hibernacula or other terrestrial features to carry out its life processes, the person must, before and during the period of time when the species is likely to require the terrestrial features to carry out its life process, i. install and maintain barriers or other structures to create a protective zone around the terrestrial features and to protect the terrestrial features and limit the adverse effects that may be caused by the operation of the station or dam, and ii. make adjustments to the operation of the station or dam so as to minimize the adverse effects of the operation of the station or dam on the terrestrial features and the species’ life processes. 3. The person must, if feasible, undertake maintenance activities of the station or dam at such times and in such a manner as to minimize the impact of such activities on the species and must, if feasible, select maintenance activities that may have a benefit to the species and carry them out in a manner that may have a benefit to the species. 4. If, in carrying out the steps required under the person’s mitigation plan, it is necessary to capture, take, possess or transport a member of the species, such actions must be undertaken by, or in consultation with, a person who is knowledgeable about, or has training in, the handling of the species. 5. If the person discovers that the steps described in paragraphs 1 to 4 or in the mitigation plan have not been effective in minimizing the adverse effects of the operation of the station or dam 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 the operation of the station or dam on the species. O. Reg. 176/13, s. 14; O. Reg. 831/21, s. 10 (1, 2). (6) The annual report required under paragraph 7 of subsection (1) shall include in respect of the previous calendar year, (a) the steps taken by the person who operates the hydro-electric generating station or dam to minimize adverse effects of the station or dam on the species identified in the notice of activity form submitted under paragraph 1 of subsection (1) and an assessment of their effectiveness; (b) information collected during the monitoring referred to in paragraph 6 of subsection (1); (c) records of any activities carried out in accordance with the mitigation plan; and (d) details of any encounters with members of the species identified in the notice of activity form submitted under paragraph 1 of subsection (1). O. Reg. 176/13, s. 14; O. Reg. 831/21, s. 10 (1, 2, 5). (7) 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 (1), 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 (1). O. Reg. 176/13, s. 14. (8) This section does not apply to cofferdams or any other temporary dams. O. Reg. 831/21, s. 10 (6). (9) This section does not apply to the following species: 1. Hungerford’s Crawling Water Beetle. 2. Pygmy Snaketail. O. Reg. 176/13, s. 14. (10) This section does not apply to the person who operates the R.H. Saunders Station on the St. Lawrence River near Cornwall in respect of American eel. O. Reg. 176/13, s. 14. (11) In this section, “dam” means a structure constructed to forward, hold back or divert water in a river, lake, pond or stream for the purpose of, (a) raising the water level, (b) creating a reservoir to control flooding, or (c) diverting the flow of water. O. Reg. 831/21, s. 10 (7).