ROK Pipelines Inc. Permit for activities with conditions to achieve overall benefit to the species - ESA s.17(2)(c)

Decision

On August 15, 2019, a permit was issued to ROK Pipelines Inc under clause 17(2)(c) of the Endangered Species Act, 2007 concerning Blanding’s Turtle and in relation to building and operating a mobile bulk emulsion explosive plant in Nairn and Hyman Townships.

Reasonable alternatives to the proposal were considered, including alternatives that would not adversely affect the species. Alternatives considered included:

• conducting the activity in alternative location
• constructing infrastructure north of the trail near the highway, outside of Blanding's turtle habitat
• adjusting time lines to avoid periods when the species is present or sensitive to disturbance
• a “do-nothing” approach at the proposed location

The best alternative, which was adopted, consists of altering the proposed site plan to limit the impact of the construction and operation of the proposed facility to Blanding’s Turtle and its habitat.

In addition, the permit includes several conditions requiring ROK Pipelines Inc. to undertake several measures to minimize adverse effects on individual members of Blanding’s Turtle species, including:

• any persons entering the site to perform construction or operation activities are provided with information and given education and awareness training by a Qualified Professional, about Blanding’s Turtle including identification of the species and its habitat, appropriate actions to take in the event of an encounter with the species, as well as the need for avoidance of harm to the species and unnecessary damage/destruction of its habitat
• install a gate at specified location to prevent public access, which would reduce the number of vehicles in the area thereby decreasing risks to turtle-vehicle collisions. Gating will also limit turtle-poaching opportunities
• avoid construction activities on the site from May 1st to September 30th when Blanding’s Turtles are most likely to be basking, searching for appropriate locations for nesting, establishing nests or incubating eggs (the active season), unless effective systems to exclude Blanding’s turtle from the site (exclusion systems) are used
• any potential nest sites unintentionally created through the undertaking of construction activities shall be fenced off with effective exclusion systems prior to the nesting season (when Blanding’s Turtles are most likely to be searching for appropriate locations for nesting, establishing nests or nest sites)
• prior to new roads/railroads becoming functional, construction of a minimum of three turtle rail crossings (under-railroad passages), one wildlife culvert (under-road and –railroad passage) and approximately 178 meters of guide fencing to facilitate the safe movement of Blanding’s Turtles must be complete. Such structures will be also be monitored and maintained throughout the lifetime of the permit
• install educational signage, restrict off-road vehicle usage and indicate reduced vehicle speed limits of 30 km/h for standard vehicles and 20 km/h for transport trucks along access roads
• ensure that trains on the site will not exceed speed limits of 10 km/h during the Blanding’s Turtle active season
• surveying and monitoring of the artificial nest site, basking structures, turtle rail crossings, wildlife culvert, and guide fencing will be conducted throughout the lifetime of the permit
• the surveys will include Blanding’s Turtle mortality surveys on roads and railroads will be completed in order to determine the effectiveness of the mitigation measures implemented

The permit also includes requirements for ROK Pipelines Inc. to undertake a number of actions to achieve an overall benefit to Blanding’s Turtle, within a reasonable time, including:

• enhancing basking habitat for Blanding’s Turtle by placing a minimum of three fallen logs and/or inverted root structures in open areas of the wetland with southern exposure and maintain that habitat throughout the lifetime of the permit
• creating a minimum of one artificial nest site (minimum size of 5m x 10m), for Blanding’s Turtles to be maintained throughout the lifetime of the permit
• monitoring to evaluate the effectiveness of overall benefit activities

Implementing the above conditions and requirements will mean that it is expected that few, to potentially no, Blanding’s Turtle will be impacted by the proposed project. By creating basking and nesting sites at a nearby location, the species may be less likely to cross roads. Placement of warning signs along public ATV trail will help reduce road mortality, a key threat, and provide an overall benefit to the species by increasing the reproductive success.

To date, a government response statement has not yet been published under subsection 12.1. of the ESA with respect to Blanding’s Turtle.

An information notice in respect of a proposal for this permit was posted for 30 days, from October 08, 2014 to November 07, 2014. Ten comments were received in response to this Environmental Registry notice. Ministry staff reviewed the comments and determined that the proposed permit conditions adequately addressed concerns by producing an overall benefit to Blanding’s Turtle in the province of Ontario.

Proposal

ROK Pipelines Inc. had submitted a proposal in relation to an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 with respect to Blanding’s Turtle in relation to building and operating a mobile bulk emulsion explosive plant in Nairn and Hyman Townships.

Members of the public were invited to submit their written comments by November 7, 2014 by email to ESA. NorthEast@ontario.ca and quote ER number 012-2457 in the subject line.

Other information

The proposal is to construct and operate a mobile bulk emulsion explosive plant in Nairn and Hyman townships has the potential to adversely affect Blanding’s Turtles and their habitat. The proposed permit conditions would provide benefits that exceed the adverse effects on Blanding’s Turtles.

Blanding’s Turtle is listed on the Species at Risk in Ontario (SARO) List, in Ontario Regulation 230/08 of the ESA, as threatened

Subsection 9(1) of the ESA provides for the protection of endangered, threatened (and extirpated) species on the SARO List.

Habitat protection under the ESA applies to Blanding’s Turtles (subsection 10(1)).

The ESA allows some activities to proceed under a clause 17(2)(c) permit with specific conditions if: avoidance and reasonable alternatives have been considered; adverse effects will be minimized; and an overall benefit will be achieved for the species in Ontario. Providing an overall benefit to a protected species under the ESA 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.

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 section 9 or 10 of the ESA 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

ROK Pipelines Inc. has applied for a permit under clause 17(2)(c) of the Endangered Species Act, 2007 concerning Blanding’s Turtles in order to construct and operate a mobile bulk emulsion explosive plant in Nairn and Hyman townships.

In discussions with MNRF staff about reasonable alternatives ROK Pipelines Inc. has adjusted their proposal to protect turtles and their habitat and has applied for an overall benefit permit to do so.

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

• conducting the activity in an alternative location
• using alternate methods, equipment, designs, etc. for carrying out the proposed activity
• adjusting timelines to avoid species specific sensitivities (e.g., active periods for the species)
• any other alternatives that address adverse effects (short or long term) on the species and habitat present on and/or surrounding the proposed activity location

Potential approaches to minimize adverse effects on individual members of Blanding’s Turtles may include:

• site preparation will occur, and if feasible, construction activity will be completed, during non-active periods (ie. mid-September to early April)
• use of temporary silt fencing to prevent turtles from entering worksite
• altering project to avoid some areas of Blanding’s Turtle habitat
• staff and contractors will undergo Blanding’s Turtle identification training
• a Blanding’s Turtle encounter protocol will be developed and enforced
• use of a qualified biologist or environmental monitor to provide guidance/advice and to relocate turtles (if required)
• installation of signage and speed limits
• installation of a gate to deter public access to the site
• installation of guide walls and culverts to facilitate turtle movement between habitats
• wildlife crossing structures will be installed along the rail spur to allow turtles to move between wetland habitat as well as to get off the tracks to safety
• monitoring to assess the impact of activities and the effectiveness of mitigation measures employed

Potential approaches to achieve an overall benefit for Blanding’s Turtles may include:

• creating/enhancing basking habitat for Blanding’s Turtles
• creating/enhancing nesting habitat for Blanding’s Turtles
• installation of educational signage
• monitoring to evaluate the effectiveness of overall benefit activities

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 ESA have been satisfied.