Private Individual - Permit for activities to achieve an overall benefit to a species

A private individual (the proponent) has submitted an application for an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA). The proposed project in Fort Erie, Ontario involves the:

• demolition of an existing seasonal cottage
• construction of a new single-detached dwelling on the same building footprint
• construction of a seawall and stairs

The proposed activities may adversely affect:

• Fowler’s Toad
• approximately 83.4 square metres of Fowler’s Toad hibernation habitat

Protecting species under the Endangered Species Act

Ontario protects 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

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

Habitat loss and degradation are the most significant threats to the protection and recovery of Fowler’s Toad in Ontario.

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

The proponent is working to identify proposed actions that would achieve an overall benefit for Fowler’s Toad. These may involve:

• enhancing 48.6 square metres of the subject property by planting American Beach Grass, a native beach grass to Ontario
• monitoring and tending to the grass plantings for at least three years

Reasonable alternatives being considered

The proponent has explored alternatives, including alternatives that would not adversely affect Fowler’s Toad. These include:

• not proceeding with the proposed project
• proceeding with the project in the summer months to avoid sensitive periods for the species including hibernation
• proceeding with the project in the fall months, while minimizing adverse impacts on Fowler’s Toad and its habitat to the greatest extent possible during this time period

The proponent has concluded that the best alternative for carrying out the proposed project is to proceed with the project during the fall months because:

• construction during the summer months is not possible due to municipal prohibitions regarding beach access for construction equipment during the summer months
• construction during the fall months will achieve the project’s objective while minimizing adverse effects and providing overall benefit for the species

Actions to minimize adverse effects on the species

The proponent is seeking ways to minimize adverse effects on Fowler’s Toad and its habitat. These may include:

• providing training to all site workers about the species and what to do if one is encountered
• installing temporary exclusion fencing to prevent Fowler’s Toads from accessing the construction area, including regular inspections to ensure the fence is functioning correctly
• conducting nighttime surveys of the enclosed construction site to remove any Fowler’s Toads from the construction area
• inspecting the enclosed construction site before the start of construction each day to ensure no toads have entered the area, including inspecting potential daytime retreat areas such as woody debris and other objects that may provide cover
• installing construction mats to reduce compaction from construction equipment to deep/soft sand areas (i.e. potential hibernation habitat), including regular inspections of the mats to ensure they are functioning correctly
• restoring 63.2 square metres of habitat that may be adversely impacted by the proposed project to pre-construction uses
• monitoring mitigation measures to ensure they are effective

Other information

A government response statement has been published under section 12.1 of the Endangered Species Act, 2007 (ESA) with respect to Fowler’s Toad. It will be considered in:

• determining whether or not to approve the permit
• developing any future permit conditions

A copy of the government response statement for Fowler’s Toad is available at: https://www.ontario.ca/page/fowlers-toad-government-response-statement

Posting this proposal on the Environmental Registry does not imply that the Minister 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.