Hert, Inc. - Permit for activities to achieve an overall benefit to a species

Description of instrument

Hert, Inc. has submitted a proposal in relation to an overall benefit permit under clause 17(2)(c) of Endangered Species Act, 2007 to:

• harm one (1) Category 2 Butternut tree;
• kill two (2) Category 2 Butternut trees;
• kill two (2) Category 3 Butternut trees;
• damage and destroy 0.58 hectares of Butternut habitat; and
• damage and destroy 0.59 hectares of Little Brown Myotis habitat

for the purpose of developing a residential subdivision in Fonthill, Town of Pelham, Regional Municipality of Niagara, Ontario.

Other information

The proposal to develop the land has the potential to adversely affect Butternut trees, as well as the habitat of Butternut and Little Brown Myotis. The proposed permit conditions would provide benefits that exceed the adverse effects on Butternut, Butternut habitat, and Little Brown Myotis habitat.

The Species at Risk in Ontario List of the Ontario Regulation 230/08 of the Endangered Species Act lists Butternut and Little Brown Myotis 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 and Little Brown Myotis.

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 Proponent is exploring reasonable alternatives, including alternatives that would not adversely affect Butternut and Little Brown Myotis, including:

• Not proceeding with the project; and
• Proceeding with project at an alternative location.

The Proponent is exploring ways to minimize adverse effects on Butternut and Little Brown Myotis, including:

• Retaining a Qualified Professional to carry out the conditions of the permit;
• Installing protective fencing at the critical root zone of the retained Butternut trees;
• Undertaking tree-removal activities outside the active season for Little Brown Myotis;
• Installing bat roosting structures as interim maternity habitat for Little Brown Myotis; and
• Educating all on-site personnel on species at risk identification and proper techniques for encounters with individuals with assistance from a Qualified Professional.

The Proponent is identifying proposed actions to achieve an overall benefit for Butternut and Little Brown Myotis, including:

• Archiving Butternut trees that demonstrate resistance to the Butternut canker disease;
• Planting and tending Butternut and native companion seedlings to emulate natural Butternut habitat conditions;
• Creating Little Brown Myotis habitat through reforestation efforts.

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.

A Government Response Statement does not currently exist for Little Brown Myotis.

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.