Ministry of Transportation of Ontario - Permit for activities to achieve an overall benefit to a species

The Ontario Ministry of Transportation has submitted an application for an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007, with respect to Redside Dace, in order to damage and destroy 41,100 square metres of Redside Dace habitat to widen Highway 401 at two tributaries of Sixteen Mile Creek in the Town of Milton, Regional Municipality of Halton.

The proposed works has the potential to adversely affect Redside Dace, a small fish, and its habitat.

Section 9 of the Endangered Species Act, 2007 provides for the protection of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species. If a species is listed as an endangered or threatened species, its habitat also receives protection under section 10 of the Endangered Species Act, 2007.

Redside Dace is listed on the Species at Risk in Ontario List, under Ontario Regulation 230/08 of the Endangered Species Act, 2007, as an endangered species.

Habitat protection under section 10 of the Endangered Species Act, 2007 applies to Redside Dace, and the specific habitat of Redside Dace has been prescribed by Ontario Regulation 242/08.

The Minister may issue a permit under clause 17(2)(c) of the Endangered Species Act, 2007 that authorizes a person to engage in an activity that would otherwise be prohibited by sections 9 or 10 of the Endangered Species Act, 2007, if the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but: 

1. an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit
2. reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted and
3. reasonable steps to minimize adverse 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, 2007 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 alternatives that would not adversely affect the species, including: 

• not proceeding with the project
• investigating alternative designs that would have less impact on Redside Dace habitat
• altering the designs of the new culvert structures to minimize impacts to the Redside Dace habitat

The best alternative for carrying out the project being proposed includes altering the design of the culvert structures to minimize impact to the habitat of Redside Dace and constructing a retaining wall to reduce the amount of habitat destruction as a result of the highway widening.

Potential approaches to minimize adverse effects on Redside Dace may include: 

• undertaking works at a time of year when Red side Dace are less sensitive to disturbance
• installing sediment and erosion control measures to prevent deleterious effects to water quality and natural areas that could result from construction activities
• ensuring the site is sufficiently restored, stabilized and enhanced as soon as construction activities are completed
• ensuring the existing flows in the watercourse are maintained during all stages of the activities
• isolating the work areas from the stream channel
• ensuring a qualified professional oversees the implementation of the permit conditions (if issued)
• ensuring materials and equipment are operated and stored in manner to prevent deleterious substances from entering the watercourses
• ensuring vehicles and equipment refueling and maintenance will be conducted away from watercourses, and
• ensuring measures are implemented to minimize handling and stress to Redside Dace should they be encountered in the isolated work area

Potential actions to achieve an overall benefit to Redside Dace may include: 

• installing enhanced grassed swales to improve the quality of run-off and improve overall water quality
• replacing the three existing closed-bottom culverts with larger open­bottom culverts that allow for the creation of Redside Dace habitat under the culverts where none currently exists
• undertaking natural channel design and
• undertaking riparian planting and in-stream habitat restoration to improve Redside Dace within currently degraded areas

Monitoring during and following construction is proposed to be performed for up to five (5) years to assess the performance of habitat restoration, creation and enhancement works.

The proposed overall benefit activities are intended to improve water quality, improve habitat within the tributaries and in riparian areas adjacent to the tributaries, improve fish passage at the culverts and increase stream bank vegetation cover for Redside Dace.

A government response statement has been published under subsection 11 (8) of the Endangered Species Act, 2007 for Redside Dace and will be considered before a decision is made on whether to issue an overall benefit permit.

Please note that the posting of this proposal on the Environmental Registry does not imply that a permit will be issued; a permit may only be issued where the legal requirements set out in clause 17(2)(c) of the Endangered Species Act , 2007 have been satisfied.