Schlegel Urban Development - Permit for activities to achieve an overall benefit to a species

Rationale for exemption to public comment

This proposal is exempted by Ontario Regulation 681/94 under the Environmental Bill of Rights as a classified proposal for an instrument, because the species for which the permit is sought are animals.

The Ministry of Environment, Conservation, and Parks is voluntarily posting this notice to advise the public of the amendment proposal and to invite the public to submit written comments on this proposal to the contact person identified in this notice.

Description

On April 2, 2015, the Minister of Natural Resources and Forestry issued a permit under clause 17(2)(c) of the Endangered Species Act, 2007 to Schlegel Urban Development. The permit authorized Schlegel Urban Development to kill, harm, harass, capture, possess, and transport Jefferson Salamander and damage and destroy approximately 4 hectares of habitat of Jefferson Salamander for the purpose of constructing a subdivision, stormwater pond, asphalt trail and maintenance road in the City of Kitchener, Regional Municipality of Waterloo.

Schlegel Urban Development is seeking a permit amendment under subclause 17(7)(a)(i) of the ESA in relation to the construction of a subdivision in the City of Kitchener, Regional Municipality of Waterloo, see Environmental Registry notice #012-3047. The proposed amendment would add Unisexual Ambystoma (Jefferson Salamander dependent population) and Blanding’s Turtle to the permit to authorize activities that impact Unisexual Ambystoma (Jefferson Salamander dependent population) and their habitat and Blanding’s Turtle and their habitat as well as extend the term of the permit. No changes to the activity footprint are proposed for amendment. Furthermore, no activity impacts have commenced to date.

Purpose

The purpose of this notice is to ensure that the public is made aware of, and given an opportunity to comment on, the overall benefit permit amendment proposal.

Decision

This notice will be updated when more information is available.

Other information

The proposed works have the potential to adversely affect Unisexual Ambystoma (Jefferson Salamander dependent population) and their habitat and Blanding’s Turtle and their habitat. The proposed permit amendment would provide benefits that exceed the adverse effects on the species and habitats.

Unisexual Ambystoma (Jefferson Salamander dependent population) is listed as an endangered species and Blanding’s Turtle is listed as a threatened species on the Species at Risk in Ontario List in Ontario Regulation 230/08 made under the Endangered Species Act. As such, both these species and their habitats are protected under subsections 9(1) and 10(1) of the Act.

Subclause 17(7)(a)(i) of the Endangered Species Act provides the authority for the Minister to amend a permit issued under 17(2)(c) of the Endangered Species Act with the consent of the permit holder. However, the Minister must be of the opinion that he or she would have been authorized to issue the permit under clause 17(2)(c) in its amended form. The permit as amended would continue to meet the legal tests as described below for Unisexual Ambystoma (Jefferson Salamander dependent population):

Test 1 – Overall benefit to Unisexual Ambystoma (Jefferson Salamander dependent population) will be achieved within a reasonable time through requirements imposed by conditions of the permit:

• The conditions of the permit that require an overall benefit to Jefferson Salamander would also result in an overall benefit to Unisexual Ambystoma (Jefferson salamander dependent population) due to its similarity in life cycle and habitat requirements to Jefferson Salamander and dependency on Jefferson Salamander. These conditions include requirements to:
  • restore habitat by planting vegetation suitable to provide foraging and overwintering habitat
  • research life history of the salamander population on the subject lands and monitor movement of juveniles away from the breeding pond

The studies for Jefferson Salamander are complete and reference Unisexual Ambystoma (Jefferson Salamander dependent population). The benefits of this research and monitoring will be transferable and are relevant (example addresses important knowledge gap) to the species and the restoration of habitat will also provide benefits to individuals of the species.

Test 2 - Reasonable alternatives similar to those of the current permit are being considered for the amendment, including ones that would not adversely affect Unisexual Ambystoma (Jefferson Salamander dependent population).

As the Unisexual Ambystoma (Jefferson Salamander dependent population) has similar habitat requirements to Jefferson Salamander, the best alternative, which was adopted, is still applicable and includes:

• no residential development within the habitat of both salamander species, however, this was not considered feasible due to the significant economic loss to the landowner, City of Kitchener and Region of Waterloo
• full residential buildout within the agricultural areas which are habitat for both salamander species however, this alternative was not selected as it does not balance between the provisions of the lands to meet urban growth needs and the protection of natural heritage features
• partial residential development within the habitat of both salamander species, with a wildlife corridor maintaining connections of suitable habitats for these species on the subject lands which was selected as the preferred option

Test 3 - Reasonable steps to minimize adverse effects on members of the species are required by conditions of the permit:

• conditions of the permit which minimize adverse effects on Jefferson Salamander would also minimize adverse effects on the Unisexual Ambystoma (Jefferson Salamander dependent population), which include:
  • timing works to avoid known movement periods for the species
  • adding an impervious lining to the stormwater management pond adjacent to regulated habitat to prevent leakage of contaminated water
  • stockpiling materials outside of the species habitat
  • storing and operating construction materials and equipment in a way that prevents any deleterious substances from entering any forest, vernal pools, ponds, watercourses or wetlands located within the habitat of the species
  • installation of fencing to exclude salamanders from the stormwater management pond, the eastern side of the woodlot and the northern side of the corridor to the cattail marsh
  • chain link and a boardwalk (pedestrian trail crossing) will be used to inhibit human access into habitat
  • establishment of a 30 metre wide vegetated wildlife corridor along the southern portion of the subject lands between a woodlot and cattail marsh

The permit as amended would meet the legal tests as described below for Blanding’s Turtle:

Test 1 – Overall benefit to Blanding’s Turtle will be achieved within a reasonable time through requirements imposed by conditions of the permit including:

• habitat restoration and enhancement to provide improved east-west movement habitat
• additional movement habitat for Blanding’s Turtle will be created in the Southeast Corner of the woodlot by planting trees and shrubs

The proposed activity will impact agricultural lands, which are identified as potential movement corridors for the species. These agricultural areas are considered poor-quality habitat, and may function as ecological traps (i.e., when an organism is lured into a poor-quality habitat patch, negatively effecting reproduction or survival) as agricultural operations, machinery, runoff, etc. may pose risks to individuals. The proposed habitat enhancement will improve the poor-quality movement corridor eliminating these risks and may increase survival. Creating good-quality movement corridors where poor-quality habitat exists will decrease landscape fragmentation, enhance habitat connectivity and provide Blanding’s turtle safe access to nesting.

Test 2 - Reasonable alternatives have been considered, including ones that would not adversely affect Blanding’s Turtle and may include:

• no residential development within the general habitat of Blanding’s Turtle however, this was not considered feasible due to the significant economic loss to the landowner, City of Kitchener and Region of Waterloo
• full residential buildout within the agricultural areas identified as general habitat for Blanding’s Turtle however, this alternative was not selected as it does not balance between the provisions of the lands to meet urban growth needs and the protection of natural heritage features
• partial residential development within the general habitat for Blanding’s Turtle, with a wildlife corridor maintaining connections of suitable habitats for the species on the subject lands which was selected as the preferred option

Test 3 - Reasonable steps to minimize adverse effects on members of Blanding’s Turtle are required by conditions of the permit including:

• buffers will be established around the north and east sides of the woodlot to protect the existing habitat
• barrier fencing will be installed to prevent Blanding’s Turtles from accessing the developed area. Barrier fencing is proposed between the wetlands in the woodlot and the southern edge of the stormwater management pond to prevent turtles from entering it
• additional barrier fencing will be installed along the eastern edge of the woodlot and will angle across the 30-m setback from the woodlot and run along the northern edge of the southern 30-m corridor and towards the cattail marsh
• on the South Estates property, the barrier fence will extend along the northern edge of the woodland habitat and the eastern edge of the woodlot that is west of the property
• inspecting the area to ensure no Blanding’s Turtle are present by walking the area at a slow pace to identify any Blanding’s Turtles prior to commencing any work
• having a Qualified Biologist with experience handling turtles on call during construction and related activities in Blanding’s Turtle habitat to relocate any turtles found within the development area by following the protocol as outlined in the “Ontario Species at Risk Handling Manual For Endangered Species Act Authorization Holders” published by the Ministry of Natural Resources and dated 2011
• prior to construction in Blanding’s Turtle habitat, wildlife exclusion fencing will be erected to ensure no turtles are in the area
• chain link and a boardwalk (pedestrian trail crossing) will be used to inhibit human access into habitat

The proposed amendment to extend the permit ten (10) years (i.e., replacing the current expiry of January 31, 2020 with January 31, 2030) was requested by the proponent in order to begin construction activities and ensure adequate time to perform, monitor and report on overall benefit actions for all species. The extension will not adversely affect the ability of the permit to meet the legal tests associated with authorization under Clause 17(2)(c) of the Endangered Species Act, such that:

• all efforts to minimize adverse effects on all species (e.g., timing windows, exclusion measures, etc.) would be in place as required conditions within the permit
• all overall benefit actions must occur with a reasonable timeframe and would be required by conditions within the permit

A Government Response Statement published under subsection 11(8) of the Endangered Species Act does not currently exist for Unisexual Ambystoma (Jefferson Salamander dependent population) or Blanding’s Turtle.

Please note that the posting of this proposal on the Environmental Registry does not imply that a permit amendment will be approved; a permit amendment 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:

Ministry of Natural Resources and Forestry’s Species at Risk website
https://www.ontario.ca/environment-and-energy/species-risk

Endangered Species Act, 2007
http://www.ontario.ca/laws/statute/07e06

Species at Risk in Ontario (SARO) List, Ontario Regulation 230/08
http://www.ontario.ca/laws/regulation/080230

General regulations and species-specific habitat regulations under the ESA, Ontario Regulation 242/08
http://www.ontario.ca/laws/regulation/080242