Photo courtesy of Andrew Murray, taken in summer 2020 at the Byron gravel pit showing Bank Swallows gathered outside their nest burrows.
Hello supporters of London’s Bank Swallows,
We (Brendon Samuels and Leanne Grieves) hope that you are enjoying birds wherever you are today on World Migratory Bird Day. We are sharing this update to mark 1 year since we submitted our petition and documentation related to the large breeding colony of Bank Swallows located in the Byron gravel pit to the Provincial authorities (read their response here). Below, we provide a colony update and summary of what we have learned and worked on over the last year.
Photo courtesy of Andrew Murray, taken on May 10, 2022 at the Byron gravel pit showing hundreds of Bank Swallows in flight.
As of today, the Bank Swallows have returned to the Byron gravel pit in London West in large numbers and have resumed courtship and nesting. We recently submitted documentation of the swallows’ occurrence at the site to the Natural Heritage Information Center and the Ontario Ministry of Environment, Conservation and Parks (MECP), with a suggestion that the latter follow up with the gravel pit operators about their obligations under the Endangered Species Act.
What’s going on at the Byron gravel pit?
To recap, in June, 2020, local community members and biologists discovered the presence of a large breeding colony of Bank Swallows nesting on cliff faces in the Byron gravel pit in London West, where construction activities were ongoing to prepare the site for development. We quickly drew the attention of the municipal, provincial and federal governments to the approximately 2,000 previously-undocumented nest burrows for this bird Species at Risk, whose habitat is protected by provincial and federal law.
Over the past year, and since the breeding Bank Swallows migrated south last fall, extensive “rehabilitation” work has proceeded at the Byron gravel pit. This has mostly consisted of trucks and heavy machinery delivering and distributing sediment to fill the large pit left by many decades of aggregate extraction. This work will likely continue for several years, until the aggregate license holder has fulfilled their obligations under the Aggregate Resources Act (ARA) and can then surrender their license to the Ministry of Natural Resources and Forestry. We are still unclear as to what extent this backfilling of the Byron gravel pit will damage or destroy the large cliff faces that continue to house the nest burrows of thousands of Bank Swallows. However, the aggregate license holder has been made aware of their obligations under the Endangered Species Act (ESA) to avoid causing harm to the Bank Swallows and their nests, and of the requirements for permitting before any potentially harmful activities can occur.
An overview of applicable laws and regulations
We consulted with (but did not retain legal counsel of) environmental lawyers as well as Ecojustice Canada, an environmental law charity, about the intersection of the ESA and ARA, two environmental laws in Ontario that apply to the Bank Swallows in the Byron gravel pit. The ESA and ARA are enforced by two different government ministries in Ontario: the Ministry of Environment, Conservation and Parks (MECP) enforces the ESA while the Ministry of Natural Resources and Forestry (MNRF) enforces the ARA.
We grew concerned by an apparent loophole in the ESA for listed species like the Bank Swallow. s. 23.14(3) of O. Reg. 242/08 creates a significant exemption of protections for endangered and threatened species in Ontario that would usually apply under ss. 9 and 10 of the Endangered Species Act. These exemptions relate to those operating pits and quarries, like that at License #2255 held by South Winds Development Co. Inc. at the Byron Pit, and apply if the listed species were added to the Species at Risk after the date that aggregate operations began at the site. We confirmed that these ESA exemptions apply to License #2255, as operations under that license began in 1994, two decades prior to the addition of Bank Swallows to the Species at Risk in Ontario (SARO) list as a threatened species in 2014.
However, despite these exemptions, we confirmed that anyone operating a pit is still obliged to comply with s. 23.14(5) of O. Reg. 242/08, which creates many conditions that apply to pit operators that must be complied with prior to any work being done in pits or quarries that are exempted from full ESA protections under s. 23.14(3). Furthermore, we were encouraged to continue to monitor whether legal requirements under the ARA are being met, including any rehabilitation orders that are made by the Minister of MNRF under s. 48 of the ARA in relation to License #2255, and whether the conditions under s. 23.14(5) of O. Reg. 242/08 have been complied with before any ordered work is undertaken.
s. 23.14(5)(1) of O.Reg. 242/08 says that: “Before doing anything (bold added), in the course of operating the pit or quarry, that is prohibited under clause 9 (1) (a) or subsection 10 (1) of the Act in respect of a species to which subsection (3) applies, the person must” follow the conditions set out in s. 23.14(5), which includes the preparation of a mitigation plan.” The “person” referred to here is the holder of a license to operate a pit or quarry, the same “person” as is referred to in s. 48 of the ARA which sets out the duty on that license holder to rehabilitate a pit or quarry site. So, s. 23.14(5) of the regulation are required to be fulfilled before “anything” is done, including rehabilitation as is set out under s. 48 of the ARA.
Clause 9 of s. 23.14(9) of ) O. Reg. 242/08 says: "If the species uses nests or hibernacula to carry out its life processes, the person must, before and during the period of time when the species is likely to use the nests or hibernacula, install and maintain barriers or other structures to create a protective zone around the nests or hibernacula to limit the adverse effects that may be caused by the operation of the pit or quarry." O.Reg. 242/08 s. 23.14(9) says that a person “must” take all the listed steps under that subsection, including clause 9 regarding the creation of barriers or other structures around the 3 of 3 SARO listed species’ nests, “to limit the adverse effects that may be caused by the operation of the pit or quarry” for any species identified on a submitted “notice of activity form” under s. 23.14(5)(i). We are not aware of any barriers or other structures having been created at the Byron gravel pit around the Bank Swallow colony.
s. 23.14(5) makes clear that the submission of this notice of activity form is required “before doing anything” that would otherwise be prohibited under ss. 9(1)(a) or s. 10(1) of the ESA, being killing, harming or harassing the SARO listed species, or damaging or destroying their habitat, respectively. We are not aware of any notice of activity form having been submitted in the case of the Bank Swallows at Byron Pit under s. 23.14(5)(i). s. 23.14(5)(i) requires this form to be submitted to the Minister before any work is done at the site, and the license holder that submits the form is required in turn to follow clause 9 of s. 23.14(9).
Implications for the Bank Swallows at the Byron gravel pit
In summary, in the case of the Bank Swallows that breed in the Byron gravel pit, it is our understanding that the Aggregate Resources Act and Endangered Species Act lay out protections for the birds and their breeding habitat, despite applicable exemptions in the latter for pits and quarries. There are specific actions required of the aggregate license holder prior to any work being undertaken that could negatively impact the Bank Swallows, such as submitting a notice of activity form and installing protective barriers. It is our understanding that these actions have not yet occurred. Any measures undertaken to minimize the risk of harm to natural heritage associated with rehabilitation of the Byron gravel pit should be outlined in a mitigation plan under aggregate license #2255, but we have not had a chance to review this plan, if it exists. If the aggregate license holder wished to undertake activities that could potentially impact a Species at Risk, they would need to apply for an Overall Benefit Permit from the Ontario government. It is our understanding that at this time, the Ministry of the Environment, Conservation and Parks has not received an application for an Overall Benefit permit associated with the Bank Swallows in the Byron gravel pit (MECP, pers. comm, 19/01/22).
What happens next?
We are working to obtain access to a mitigation plan from MNRF for the Byron gravel pit from the Ontario government, so that we can learn more about plans to mitigate harm to the Bank Swallows and their breeding habitat.
If MECP receives and proceeds with an application for an Overall Benefit permit, a proposal will be posted to the Environmental Registry of Ontario and public comments can be received.
We hope that future plans for development at the Byron gravel pit, as well as any mitigation plan for minimizing disturbance to natural heritage including the Bank Swallows, will proceed upon consulting the public and the City of London Ecological Community Advisory Committee.
Because the Byron gravel pit site remains closed to the public, we are unable to actively monitor the situation at the site to determine if continued work by the aggregate pit operator is at risk of impacting the Bank Swallow colony. We trust that the Ministry of Environment, Conservation and Parks will uphold their responsibility to enforce the Endangered Species Act as appropriate.
Federal recovery strategy for the Bank Swallow
Last year, we provided comments on the draft Federal recovery strategy for the Bank Swallow. In particular, our comments focused on the intersections between Federal and Provincial protections for Bank Swallow habitat , as well the lack of language to recognize that artificial habitat, such as aggregate pits, is fundamentally important to the conservation of the species in regions where natural habitat has been permanently destroyed, such as in most of southern Ontario. We received a detailed response to our comments that you may review here, along with the consultation summary here. Overall, while some of our comments were included, the updated recovery strategy for the Bank Swallow still lacks clear language on the importance of conserving artificial habitat for supporting the breeding success of the species.
Your impact
Finally, we wish to thank the thousands of people across Canada who signed our original petition, and the many London residents who have continued to follow us and keep tabs on the Byron Bank Swallows. Your efforts have helped us gain local and provincial attention that will help protect this unique species at risk in Ontario overall, and in London specifically. Documentation of occurrences of Species at Risk, such as the Bank Swallow, is hugely important for understanding the present-day distribution of these species and for informing conservation planning. We encourage the public to submit observations of Bank Swallows and other wildlife that you see throughout London to citizen science databases such as iNaturalist and eBird.
Frequently Asked Questions (FAQ)
Q: Can I visit the Byron gravel pit to see the Bank Swallows?
A: Unfortunately no. The colony is located on private land and the landowner has indicated they will not allow visitors on the premises. Any visitors to the site will be considered trespassing. We do not recommend visiting the Byron gravel pit to view the swallows. However, you may continue to see photos of the Swallows using the site appearing on iNaturalist and eBird posted by local residents.
Q: Where can I see Bank Swallows in London?
A: You can use eBird or other tools to look for recent sighting and visit those locations. In general, we recommend looking for Bank Swallows along the Thames River, especially in Springbank Park, where many of the birds visit during the day to forage for insects.
Q: How can I help Bank Swallows and other aerial insectivores?
A: There are a variety of things the public can do. An important action is to plant native species, instead of species that originated outside of North America. Native plants are essential for restoring healthy insect populations that birds like Bank Swallows depend on for food. Non-native species cannot provide food for insects to eat. Remember to vote for elected officials in government who demonstrate they will take action to conserve habitat and Species at Risk. You can learn more about how to help Bank Swallows by visiting their Species Profile on the website for Bird Friendly London: www.birdfriendlylondon.ca/bank-swallow