Private Landowner - Permit for activities to achieve an overall benefit to a species and/or to pay a species conservation charge (ESA s.17(2) (c))

We are proposing to issue an overall benefit permit to a private landowner (the proponent) under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) so they can construct a single residential home in Lambton Shores, Ontario.

The proposed activities may adversely impact:

• Dwarf Hackberry
• Eastern Hog-nosed Snake

The proposed activities will involve:

• removing and transplanting three Dwarf Hackberry individuals
• adversely impacting 0.102 hectares of Dwarf Hackberry habitat
• adversely impacting 0.17 hectares of Eastern Hog-nosed Snake habitat

The main threats to Dwarf Hackberry are:

• aggregate extraction
• development
• logging
• altered disturbance regimes (e.g., fire frequency, coastal processes, wind, disease) that normally limit habitat succession by plants that will shade out this sun-loving species

The most significant threats to the Eastern Hog-nosed Snake are:

• habitat loss and fragmentation
• persecution by people

Protecting species under the Endangered Species Act

The Ontario government is committed to protecting species at risk and providing strong environmental oversight, while working to support development opportunities in the province.

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 (SARO) list as either:

• extirpated
• endangered
• threatened

Both Dwarf Hackberry and Eastern Hog-nosed Snake are listed on the SARO list, under O. Reg. 230/08 of the ESA, as threatened.

Issuing a permit under the Endangered Species Act

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:

• either:
• an overall benefit to the species will be achieved within a reasonable time through the conditions of the permit, or
• with respect to a species designated as a conservation fund species, the person who would be authorized by the permit to engage in the activity has agreed to pay to the Species at Risk Conservation Trust any Species Conservation Chargers that are required by 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 Minister is considering issuing a permit under the overall benefit option under clause 17(2)(c)(i)(A) (i.e., an overall benefit to the species will be achieved within a reasonable time through the 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 Dwarf Hackberry and Eastern Hog-nosed Snake. These may involve:

• planting 15 additional Dwarf Hackberry within the subject lands outside of the development area and along the edge to ensure adequate light
• monitoring and tending to the existing Dwarf Hackberry and newly planted individuals for five years
• enhancing 0.42 hectares of Dwarf Hackberry and 0.43 hectares Eastern Hog-nosed Snake habitat by carrying out a Silviculture plan (e.g., hazard tree management, canopy gaps for natural regeneration of mid-successional species, invasive species management, etc.)
• installing five brush piles to provide thermoregulation habitat for Eastern Hog-nosed Snake to help maintain its internal body temperature
• increasing the deadwood available in enhanced habitat to improve suitability for Eastern Hognose Snake to hibernate through winter

The proposed overall benefit actions are expected to achieve an overall benefit for Dwarf Hackberry by:

• increasing the overall number of Dwarf Hackberry on the landscape
• enhancing Dwarf Hackberry habitat
• increasing awareness of the species

The proposed overall benefit actions are expected to achieve an overall benefit for Eastern Hog-nosed Snake by:

• enhancing the quality of habitat for the species
• providing additional opportunities for key biological processes (thermoregulation) by creating of key habitat features
• increasing awareness of the species to reduce persecution and promote protection and recovery of the species

Reasonable alternatives being considered

The proponent has explored alternatives, including alternatives that would not adversely affect Dwarf Hackberry and Eastern Hog-nosed Snake. These include:

• not proceeding with the proposed development
• proceeding with a development layout (e.g., 25 metres from road edge) with the least amount of impact to Eastern Hog-nosed Snake but that impacts a greater number of Dwarf Hackberry individuals occurring in a high density, naturally regenerated Dwarf Hackberry stand
• proceeding with a development layout (e.g., 30 metres from road edge) that impacts less Dwarf Hackberry individuals as compared to developing closer to the road while also impacting Eastern Hog-nosed Snake habitat
• proceeding with a development layout (e.g., 35 metres from the road) with the least amount of impact to Dwarf Hackberry while also impacting Eastern Hog-nosed Snake habitat

The proponent has concluded that the preferred option for carrying out the proposed project is to proceed with the development layout (e.g. 35 metres from the road) that minimizes the amount of adverse impacts to Dwarf Hackberry, while also impacting Eastern Hog-nosed Snake habitat, as it requires the least amount of transplanting and mitigation planting.

This option meets the main purpose of the activity, which is to build and service a home. It reduces the impact on naturally occurring Dwarf Hackberry and controls the establishment, health, composition and growth of the habitat needs for this species.

Not developing the property is considered not economically feasible and regeneration to Dwarf Hackberry is expected to be stunted if there is no silvicultural intervention (e.g. creation of habitat by making gaps in the canopy through tree removal). Developing 25 or 30 metres from the road is not ideal because it affects more Dwarf Hackberry individuals and habitat than the preferred option.

Actions to minimize adverse effects on the species

The proponent is seeking ways to minimize adverse effects on Dwarf Hackberry and Eastern Hog-nosed Snake. These may include:

• conducting contractor species at risk awareness training
• conducting site clearing outside the active period for Eastern Hog-nosed snake (e.g. during winter months) to minimize the likelihood of encountering snakes during construction
• protecting Dwarf Hackberry trees along the laneway with a Tree Protection Zone
• installing temporary wildlife exclusion fencing to reduce the possibility of incidental encounters with Eastern Hognose Snake and prevent accidental damage to residual Dwarf Hackberry
• following a clean equipment protocol to reduce the impact of invasive weeds on the property
• stopping works if any incidental encounters occur with at risk reptiles until the animal has left, or until relocated by qualified professional
• transplanting Dwarf Hackberry trees overlapping the proposed project footprint (three individuals) to environmentally protected area within the subject lands
• monitoring mitigation measures to ensure they are effective

Other information

The Province has published a government response statement under section 12.1 of the Endangered Species Act, 2007 with respect to Dwarf Hackberry and Eastern Hog-nosed Snake.

A copy of the government response statement for Dwarf Hackberry is available at: https://www.ontario.ca/page/common-hoptree-and-dwarf-hackberry-government-response-statement.

A copy of the government response statement for Eastern Hog-nosed Snake is available at: https://www.ontario.ca/page/eastern-hog-nosed-snake-government-response-statement.

These response statements will be considered in:

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

Posting this proposal on the Environmental Registry of Ontario 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.