Countrywide Homes Limited - Permit for activities with conditions to achieve overall benefit to the species - ESA s.17(2)(c)

Decision

On September 11, 2019, a permit was issued to Countrywide Homes Ltd.(Pine Valley Estates Inc.) under clause 17(2)(c) of the Endangered Species Act, 2007 concerning Redside Dace in order to construct a residential subdivision in the City of Vaughan. The subdivision will be located west of Pine Valley Drive within Lots 23 and 24 Concession 7.

The permit includes actions to benefit the species, minimize adverse effects, and outlines monitoring and reporting requirements.

The previous proponent was Countrywide Homes Ltd.

No comments were received in response to this posting.

The permit requires Country Wide Homes (Pine Valley Estates) to undertake measures that will:

• minimize adverse effects to species
• achieve overall benefit to species within reasonable timeframe

Actions to minimize adverse effects to species

The permit requires Country Wide Homes (Pine Valley Estates) Inc. to:

• prohibit grading within the regulated habitat of the Purpleville Creek tributary
• require an approved erosion and sediment control plan be implemented that would include items such as: fully isolating active work areas with silt fencing or coffer dams, dewatering and discharge filtration, regular inspection and maintenance of environmental controls and monitoring turbidity levels during construction
• implement fish salvage from isolated works areas, fish screen installation on water pumps and use of silt fence during habitat enhancements
• ensure proper use of machinery, including performing equipment maintenance away from water bodies
• adhere to timing windows for the species to undertake activities at a time of year when Redside Dace are less sensitive to disturbance
• ensure a qualified professional conducts inspections and provides monitoring reports during construction and overall benefit activities
• detain the first 10 mm of precipitation on the developed site through infiltration techniques to address the magnitude, frequency, intensity and timing of surface water flows to the adjacent tributaries
• direct storm water runoff to an adjacent storm water management pond designed in accordance with the Guidance for Development Activities in Redside Dace Protected Habitat

Actions to achieve an overall benefit to species

The permit requires Country Wide Homes (Pine Valley Estates) Inc. to achieve an overall benefit to the species within a reasonable timeframe. They will perform the following actions to restore fish passage for reconnecting approximately 7,000 squared metres of habitat within nearby Marigold Creek:

• install vegetated rock buttress to provide protection from high flows, prevent further aggravated erosion along the banks and enhancing habitat by providing shade and cover through overhanging vegetation
• install a brush mattress which includes live brush cuttings to improve shading, overhead cover and provide protection from bank erosion
• install rock cascades to provide for a stable stream bed during storm events and create a deep outlet pool, which can potentially provide overwinter habitat for resident fish species, including Redside Dace
• install log bank treatment for instream habitat
• provide fish passage through an existing perched culvert to gain upstream channel access for Redside Dace
• monitor pre and post-construction for five (5) years to: assess the performance of the implemented design and determine the need for remedial works

Overall benefit activities would be required to be completed prior to December 31, 2020 and are expected to:

• improve channel function
• reduce bank erosion
• add woody cover material
• improve fish passage
• increase stream bank vegetation cover
• enhance overall aquatic habitat for Redside Dace

We have published a government response statement under section 12.1 of the Endangered Species Act, 2007 with respect to Redside Dace. You can access this statement through the Ministry website: https://www.ontario.ca/page/redside-dace.

The minister considered the following points in reaching a decision regarding the permit:

• ensuring appropriate timing windows for works in and around Redside Dace habitat are considered in the application of the Endangered Species Act
• supporting partners to undertake activities to protect and recover Redside Dace. Support will be provided through funding, agreements, permits (including conditions) and advisory services
• rehabilitating degraded Redside Dace habitat

Other information

Other alternatives that would not adversely affect the species were considered by Country Wide Homes (Pine Valley Estates) Inc. such as:

• not proceeding with the proposed development
• developing only lands outside of Redside Dace habitat

Not proceeding with the proposed development would have prevented achieving the goal of developing the residential community. The alternative to develop lands only outside of Redside Dace habitat was not technically feasible and had biological limitations.

Proposal

Countrywide Homes Ltd., has submitted a proposal in relation to an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 with respect to Redside Dace in order to construct a residential subdivision in the City of Vaughan.

Members of the public are invited to submit their written comments by June 26, 2019 via email to SAROntario@ontario.ca and quote ER number 019-0103 in the subject line.

Other information

The proposed works has the potential to adversely affect Redside Dace and their habitat.

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

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 subsection 10(1) of the Endangered Species Act applies to Redside Dace. 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 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 and,
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 alternatives that would not adversely affect Redside Dace, and may include:

• not proceeding with the proposed development
• developing only lands outside of Redside Dace habitat
• conducting the development activity that results in the removal of habitat features while reducing negative impacts to and providing a net benefit for Redside Dace

The best alternative being proposed includes the removal of wetland and channel habitat while minimizing adverse effects and providing an overall benefit for Redside Dace.

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

• not grading within the regulated habitat of the Purpleville Creek tributary
• implementing an approved erosion and sediment control plan such as fully isolating active work areas with silt fencing or coffer dams, dewatering and discharge filtration, regular inspection and maintenance of environmental controls and monitoring turbidity levels during construction
• during habitat enhancements, fish salvage from isolated works areas, fish screen installation on water pumps and use of silt fence will be implemented
• ensuring proper use of machinery, including performing equipment maintenance away from water bodies
• adhering to timing windows for the species to undertake activities at a time of year when Redside Dace are less sensitive to disturbance
  • ensuring a qualified professional conducts inspections and provides monitoring reports during construction and overall benefit activities
  • detaining the first 10 mm of precipitation on the developed site through infiltration techniques to address the magnitude, frequency, intensity and timing of surface water flows to the adjacent tributaries
  • directing storm water runoff to an adjacent storm water management pond designed in accordance with the Guidance for Development Activities in Redside Dace Protected Habitat

Countrywide Homes Limited, is working to identify proposed actions to achieve an overall benefit for Redside Dace which may involve:

• Performing beneficial actions to restore fish passage for reconnecting approximately 7,000 squared metres of habitat within nearby Marigold Creek, including:
  • providing fish passage through an existing perched culvert to gain upstream channel access for Redside Dace
  • installation of log bank treatment for instream habitat and
  • installation of rock cascades to provide for a stable stream bed during storm events and create a deep outlet pool, which can potentially provide overwinter habitat for resident fish species, including Redside Dace
  • installation of a brush mattress which includes live brush cuttings to improve shading, overhead cover and provide protection from bank erosion
  • installation of vegetated rock buttress to provide protection from high flows, prevent further aggravated erosion along the banks and enhancing habitat by providing shade and cover through overhanging vegetation

Pre and post-construction monitoring will be performed for five (5) year to assess the performance of the implemented design and to determine the need for remedial works.

The proposed activities will improve channel function, reduce bank erosion, add woody cover material, improve fish passage, increase stream bank vegetation cover and enhance overall aquatic habitat for Redside Dace. Furthermore, the proposed bank treatments will provide thermal mitigation through stream shading and improved water quality by reducing sediment inputs from the existing eroding banks.

A Government Response Statement published under subsection 11(8) of the Endangered Species Act exists for Redside Dace and will be considered before a decision is made whether or not to issue a permit.

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.