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

The Ministry of Transportation has applied for a permit under clause 17(2)(c) of the Endangered Species Act to destroy approximately 193 m² of habitat for Silver Shiner, Black Redhorse and Wavy-rayed Lampmussel (the Species) as well as temporarily damage 2,363 m² of in-water habitat and approximately 6,970 m² of riparian habitat in order to remove the two existing Hwy 401 bridges (6 lanes in total) over the Grand River in Kitchener and replace them with two new, wider bridges (10 lanes in total).

Silver Shiner and Black Redhorse are fish and Wavy-rayed Lampmussel is a freshwater mussel.

Silver Shiner, Black Redhorse and Wavy-rayed Lampmussel are all listed as threatened on the Species at Risk in Ontario (SARO) List.

The habitat of Wavy-rayed Lampmussel is prescribed in Ontario Regulation 242/08.

The proposal is not expected to contravene subsection 9(1) (i.e. not expected to result in killing, harming and harassing individuals of the species) given the mitigation measures proposed by the proponent.

The proposal would be prohibited by subsection 10(1) of the ESA because it will damage and destroy habitat of the species.

This destruction would be caused primarily by the installation of piers in the river for the new bridges.

Temporary damage would result from using in-water rock-based causeways and equipment staging on the banks of the river during the removal of the old bridges and construction of the new ones. These areas would be rehabilitated in phases after project completion.

The minister may issue a permit under clause 17(2)(c) of the ESA that authorizes a person to engage in an activity that would otherwise be prohibited by sections 9 or 10 of the ESA if the minister is of the opinion 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.

The applicant has explored reasonable alternatives, including alternatives that would not adversely affect the species, including:

• not replacing the bridge

The proponent’s application indicates that the best alternative for carrying out the project includes proceeding with the applicant’s preferred alternative, subject to measures to minimize adverse effects on and undertakings actions that would be an overall benefit for the species. Such measures and undertakings would be included as conditions in a permit if one is issued.

The applicant is evaluating the following ways to minimize adverse effects on individuals of the species:

• choosing a bridge design with fewer in-water components to reduce impacts on the habitat
• undertaking in-water works during times of the year when the species is less vulnerable to disturbance (i.e. during the spawning season)
• reducing the overall footprint of the temporary rock causeways
• implementing erosion, sediment control and containment measures
• implementing targeted salvage measures to remove and relocate any individuals before placing in-water structures (i.e. temporary causeways and permanent piers)
• implementing measures to slow river velocity if temporary causeways are found to be increasing flows above what is suitable for the species

The applicant is working with the ministry to identify proposed actions that would achieve an overall benefit for the species with may include:

• creating new overwintering habitat downstream of the bridges
• rehabilitating riparian habitat downstream by stabilizing the banks
• contributing to improved water quality in the river by rehabilitating or replacing three drainage outlets

A government response statement (GRS) published under the ESA exists for Wavy-rayed Lampmussel and will be considered when reviewing the proposal and considering permit conditions if a permit is issued. A GRS has not been published for Silver Shiner or Black Redhorse.

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