The proposal to develop the land has the potential to adversely affect Butternut trees, as well as its habitat. The proposed permit conditions would provide benefits that exceed the adverse effects on Butternut and its habitat.
The Species at Risk in Ontario List of the Ontario Regulation 230/08 of the Endangered Species Act lists Butternut as Endangered.
Subsection 9(1) of the Endangered Species Act provides for the protection of endangered, threatened (and extirpated) species on the Species at Risk in Ontario List.
Habitat protection under subsection 10(1) the Endangered Species Act applies to Butternut.
The Minister may issue a permit under clause 17(2)(c) of the Endangered Species Act that authorizes a person to engage in an activity that would otherwise be prohibited by sections 9 or 10 of the Endangered Species Act if the Minister is of the opinion that:
(i) an overall benefit to the species will be achieved within a reasonable time through the conditions of the permit;
(ii) reasonable alternatives have been considered, including alternatives that would not negatively affect the species, and the best alternative has been adopted; and,
(iii) reasonable steps to minimize negative effects on individual members of the species are required by conditions of the permit.
Providing an overall benefit to a protected species under the Endangered Species Act involves undertaking actions to improve circumstances for the species in Ontario. Overall benefit is more than “no net loss” or an exchange of “like for like”. Overall benefit is grounded in the protection and recovery of the species at risk and must include more than mitigation measures or “replacing” what is lost.
The Applicant is exploring reasonable alternatives, including alternatives that would not adversely affect Butternut, including:
• Not proceeding with the project;
• Reducing the scale of the proposed trailer park development by 50%; and
• Utilizing the proposed site to expand an existing golf course instead of a seasonal trailer park site.
The Applicant is exploring ways to minimize adverse effects on Butternut, including:
• Retaining a Qualified Professional to carry out the conditions of the permit;
• Transplanting Butternut seedlings than can be feasibly transplanted to an approved planting location;
• Marking all Butternut on the project site to ensure that workers and on-site personnel are aware of Butternut locations;
• Undertaking a project design to develop roads and trailer sites around Butternut trees to avoid harming or killing as many Butternuts as possible;
• Providing all on-site personnel with Butternut identification and awareness, to ensure they are able to identify Butternuts on the site and aware of its protection under the Endangered Species Act;
• Managing the seasonal trailer park site through a condominium-style agreement to ensure that future owners of trailer sites are prohibited from negatively impacting Butternut or its habitat (without obtaining an appropriate authorization under the Endangered Species Act); and
• Ensuring that non-species at risk trees are removed in such a way that will reduce environmental exposure (e.g. wind damage) to Butternuts that are retained on site; and
• Releasing the canopy of retainable Butternuts (when possible) to enhance canopy health of the trees and promote future seed production/propagation of seedlings.
The Applicant is identifying proposed actions to achieve an overall benefit for Butternut, including:
• Planting and tending 240 Butternut seedlings, and native companion seedlings to emulate natural Butternut habitat conditions;
A Government Response Statement published under subsection 11(8) of the Endangered Species Act exists for Butternut and will be considered before issuing the permit.
Please note that the posting of this proposal on the Environmental Registry does not imply that a permit will be approved; an overall benefit permit may only be issued where the legal requirements set out in clause 17(2)(c) of the Endangered Species Act have been satisfied.
The following web-links provide additional information:
Species at Risk website
Endangered Species Act, 2007
Species at Risk in Ontario List, Ontario Regulation 230/08
General regulations and species-specific habitat regulations under the Endangered Species Act, Ontario Regulation 242/08