The Corporation of the City of Pembroke - Permit for activities to achieve an overall benefit to a species

The City of Pembroke is seeking an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) so they can complete sanitary sewer works, including the re-alignment of a sanitary sewer, in Pembroke Ontario.

The proposal may adversely impact Butternut and its habitat, including:

• removing 2 Butternut (Category 2 and Category 3 tree)
• harming 31 Butternut (20 category 2 and 11 category 3 trees)
• impacting up to 4130 m² of butternut habitat

Protecting species under the Endangered Species Act

Ontario provides protections for species at risk and their habitats under the ESA. Sections 9 and 10 of the ESA 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 as endangered and is therefore protected.

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

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 ESA 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 City of Pembroke is working to identify proposed actions that would achieve an overall benefit for Butternut trees. These may involve:

• collecting 1000 seeds by qualified professionals
• making 1000 butternut seedlings available for distribution to the public for planting through local stewardship program
• archiving one Butternut deemed suitable for archiving, establishing 50 scions from that tree
• planting 14 pure butternut seedlings (in conjunction with companion tree seedlings) off site
• 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 emulating natural Butternut habitat conditions.

Reasonable alternatives being considered

The City of Pembroke has explored alternatives, including alternatives that would not adversely affect Butternut trees and their habitat. These include:

• not conducting the activity at the location specified and continue operating with broken pipeline
• Repair the broken sewer in its current location. Fewer butternut trees would be removed and harmed but there is a high probability for further emergency repairs to the sanitary sewer
• replace the sanitary sewer in its current alignment which is along the bottom of the bank of the Indian River (impacting both category 2 and 3 butternut trees (16 removed, and 40 harmed)
• new sanitary sewer alignment along the top-of-slope of the riverbank Impacting both category 2 and 3 butternut trees (2 removed and 31 harmed)

The City of Pembroke has concluded that the preferred alternative is to reconstruct the sanitary sewer in a new alignment along the top-of-slope of the riverbank, this alternative addresses concerns with the current sewer alignment, while impacting as few Butternut trees as possible.

Actions to minimize adverse effects on the species

The City is seeking ways to minimize adverse effects on the Butternut tree and its habitat. These may include:

• protective fencing for trees and marking off-site butternut trees during construction to avoid harming retainable trees adjacent to construction works
• having an inspector on-site during construction works to implement the conditions of permit and mitigation methods as required
• minimizing the construction footprint where possible
• providing all on-site personnel with Butternut identification and awareness training so they can identify Butternuts on the site and are aware of its protection under the Endangered Species Act

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.