LPB Investments Incorporated - Permit for activities to achieve an overall benefit to a species

Description of instrument:

LPB Investments Incorporated has submitted a proposal in relation to an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 to harm one (1) Eastern Flowering Dogwood and four (4) Kentucky Coffee-trees and harm and harass Eastern Foxsnake (Carolinian population) as well as damage 0.2 hectares of Eastern Flowering Dogwood habitat and 0.4 hectares of Kentucky Coffee-tree habitat and destroy 1.98 hectares of Eastern Foxsnake habitat in order to develop a single family residential subdivision in LaSalle, Ontario.

Other information:

The proposal to develop the subdivision has the potential to adversely affect Eastern Flowering Dogwood, Kentucky Coffee-tree and Eastern Foxsnake (Carolinian population) and their habitats. The proposed permit conditions would provide benefits that exceed the adverse effects on these species at risk and their habitat.

Eastern Flowering Dogwood and Eastern Foxsnake (Carolinian population) are listed on the Species at Risk in Ontario List, in Ontario Regulation 230/08 of the Endangered Species Act, as Endangered.

Kentucky Coffee-tree is listed on the Species at Risk in Ontario List, in Ontario Regulation 230/08 of the Endangered Species Act, as Threatened.

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 subsetion 10(1) of the Endangered Species Act applies to Eastern Flowering Dogwood, Kentucky Coffee-tree and Eastern Foxsnake (Carolinian population). The specific habitat of Eastern Flowering Dogwood and Eastern Foxsnake (Carolinian population) has been prescribed by Ontario Regulation 242/08.

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 section 9 or 10 of the Endangered Species Act if the Minister is of the opinion that:

1. an overall benefit to the species will be achieved within a reasonable time through the conditions of the permit
2. reasonable alternatives have been considered, including alternatives that would not negatively affect the species, and the best alternative has been adopted
3. 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.

Reasonable alternatives are being considered, including ones that would not adversely affect the species, and may include:

• not developing the subject lands
• revising the site plan to avoid Eastern Flowering Dogwood and Kentucky Coffee-tree and some features of Eastern Foxsnake habitat
• proceeding with the site plan, including the removal of Eastern Foxsnake habitat and creating an onsite protected habitat corridor as well as an offsite compensation for the species and providing plantings for Eastern Flowering Dogwood and Kentucky Coffee-tree

The best alternative proposed, includes development of the subject lands with a provision of overall benefit in order to retain the general layout but transfer portions of the subject lands to a protected habitat enhancement area. This will create an onsite protected habitat corridor as well as offsite habitat enhancement for Eastern Foxsnake and provide onsite plantings for Eastern Flowering Dogwood and Kentucky Coffee-tree.

The Proponent is working with Ministry of Natural Resources and Forestry staff to explore potential approaches to minimize adverse effects on Eastern Flowering Dogwood, Kentucky Coffee-tree and Eastern Foxsnake, including:

• retaining a qualified individual to carry out the permit conditions for all species at risk
• undertaking awareness training for employees to familiarize staff with the three species at risk
• providing Ministry of Natural Resources and Forestry approved educational brochures to educate residents about species at risk

Eastern Flowering Dogwood

• protecting existing Eastern Flowering Dogwood from damage with barrier fencing

Kentucky Coffee-tree

• protecting existing Kentucky Coffee-trees from damage with barrier fencing
• monitoring existing Kentucky Coffee-trees for five (5) years post-development to ensure survival

Eastern Foxsnake

• maintaining a minimum 30 metre distance from the species until it leaves the area should it be encountered
• transporting the snake to a licensed veterinarian for care should it be injured
• performing vegetation removal during inactive season for Eastern Foxsnake or if in active season, follow a vegetation removal procedure including surveys performed by a qualified biologist prior to vegetation removal
• installing effective snake barrier fencing (e.g., temporary or permanent)
• using fencing to exclude equipment and debris from the onsite habitat enhancement area during construction
• creating a wildlife crossing at the development site adjacent Matchette Road, a known general area of mortality for Eastern Foxsnake, to facilitate safe movement of the species

The Proponent is working with Ministry of Natural Resources and Forestry staff to identify proposed actions to acheve an overall benefit for Eastern Flowering Dogwood, Kentucky Coffee-tree and Eastern Foxsnake, including:

Eastern Flowering Dogwood

• planting five (5) Eastern Flowering Dogwoods of local origin within the onsite habitat creation area
• inspecting the plants for five (5) years to ensure proper maintenance and health

Kentucky Coffee-tree

• planting twenty (20) Kentucky Coffee-trees of local origin within the protected area of habitat creation on the subject lands to increase breeding potential with existing trees
• inspecting the planted trees for five (5) years to ensure proper maintenance and health
• providing a homeowner brochure to educate residents on how to minimize impacts to Kentucky Coffee-tree

Eastern Foxsnake

• enhancing 0.67 hectares of protected movement and foraging habitat onsite through the use of a conservation easement
• creating 1.98 hectares of open meadow habitat offsite that is adjacent to existing Eastern Foxsnake habitat in Essex County. Brush, rock and nesting features will be installed prior to seeding activities in the habitat creation area to provide foraging, thermoregulation, nesting and movement habitat and is expected to lead to increased survival and breeding opportunities
• producing an education brochure concerning the presence, general biology and protection afforded to the species for new residents

A Government Response Statement published under subsection 11(8) of the Endangered Species Act exists for Eastern Flowering Dogwood and Eastern Foxsnake, and will be considered before issuing the permit.

A Government Response Statement does not currently exist for Kentucky Coffee-tree.

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.