HAW Limited - Permit for activities to achieve an overall benefit to a species

HAW Limited has submitted an application for an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) for a residential subdivision development. This includes 305 residential units made up of 40 townhomes and 265 single detached homes.

The proposed activities:

• will remove 56 Category 2 Butternut trees, the majority of which are either seedlings or saplings
• may adversely impact 3 hectares of Butternut habitat

The main threat to the survival of Butternut trees is Butternut Canker, and this disease has affected most Butternut trees across the province.

Butternut trees are divided into 3 categories based on their health:

Category 1: in the advanced stages of disease as a result of Butternut Canker (“non-retainable”)

Category 2: the tree does not have Butternut Canker or disease is not as advanced (“retainable”)

Category 3: could be useful in determining how to prevent or resist Butternut Canker (“archivable”)

Protecting species under the Endangered Species Act

Ontario provides protections for species at risk and their habitats under the Endangered Species Act, 2007 (ESA). Sections 9 and 10 of the Act provide protection for individual members of a species and their habitat if that species is listed on the Species at Risk in Ontario list as either:

• extirpated
• endangered
• threatened

Butternut is listed on the Species at Risk in Ontario list, under O. Reg. 230/08 of the ESA as endangered.

Under clause 17(2)(c) of the ESA, the Minister may issue a permit authorizing a person to engage in an activity that would otherwise be prohibited by sections 9 or 10 of the Act if the minister believes that:

• an overall benefit to the species will be achieved within a reasonable time through the conditions of the permit
• reasonable alternatives have been considered, including alternatives that would not negatively affect the species, and the best alternative has been adopted
• 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 ESA means improving circumstances for the species in Ontario. Overall benefit is:

• more than "no net loss" or an exchange of "like for like"
• grounded in the protection and recovery of the species at risk
• more than mitigation measures or "replacing" what is lost

Actions to achieve an overall benefit to species

HAW Limited is working to identify proposed actions that would achieve an overall benefit for Butternut trees. These may involve:

• planting 184 Butternut seedlings and additional native companion seedlings to emulate natural Butternut habitat conditions
• monitoring and tending the Butternut seedlings for at least five years

These actions are expected to achieve an overall benefit to the species by increasing the overall number of Butternut planted on the landscape, while mimicking natural Butternut habitat conditions.

Reasonable alternatives being considered

HAW Limited has explored alternatives, including alternatives that would not adversely affect Butternut trees and their habitat. These include:

• not proceeding with the proposed development
• considering a revised site layout of the proposed development that would impact less Category 2 Butternut individuals
• proceeding with the proposed site layout of the development that will impact 56 Category 2 butternut individuals

HAW Limited has concluded that the best alternative for carrying out the proposed project is to proceed with the proposed residential development layout because:

• in addition to the Category 2 Butternut individuals, 325 Category 1 Butternut individuals were identified on the project site
• there were no mature Butternut individuals that showed signs of resistance to Butternut Canker
• resulting from primarily non-retainable (Category 1) parent trees, it is unlikely that the Category 2 Butternut located at the project site will exhibit any resistance to the Butternut Canker as they mature, and will likely deteriorate as the Canker disease progresses
• a greater benefit to the species will likely be achieved by planting genetically resistant butternut elsewhere as part of the overall benefit plan

Actions to minimize adverse effects on the species

HAW Limited is seeking ways to minimize adverse effects on Butternut and its habitat. These may involve engaging a Qualified Professional to oversee and undertake certain aspects of the project, such as tending and monitoring of the proposed overall benefit compensation plantings.

Other information

The Province has published a government response statement under section 12.1 of the Endangered Species Act, 2007 (ESA) with respect to Butternut.

The government response statement will be considered before a decision to issue an overall benefit permit.

A copy of the government response statement for Butternut is available at: https://www.ontario.ca/page/butternut-government-response-statement

Posting this proposal on the Environmental Registry does not imply that we will issue a permit. A permit may only be issued where the legal requirements set out in clause 17(2)(c) of the ESA have been satisfied.