The Ontario Ministry of Transportation, Permit amendment for activities with conditions to achieve overall benefit to the species - ESA clause 17(2)(c)

Decision

We are notifying the public that an amendment to existing ESA Overall Benefit Permit (permit number AU-C-0011-16 – Hwy 427 Extension) has been issued.

The permit amendment includes conditions to minimize adverse effects and provide beneficial actions for the species as well as monitoring and reporting requirements. The permit amendment authorizes the destruction of two buildings that provide maternity roosting habitat for Little Brown Myotis, Northern Myotis, Eastern Small-footed Myotis and Tri-coloured Bat (the species).

On March 28, 2018, the Minister of Natural Resources and Forestry issued permit number AU-C-011-16 (the “Permit”) under clause 17(2)(c) of the Endangered Species Act, 2007 (“ESA”) to the Her Majesty the Queen in Right of Ontario as Represented by the Minister of Transportation (MTO) to authorize impacts to Little Brown Myotis, Northern Myotis and Eastern Small-footed Myotis in order to extend Highway 427 between Albion Road and Major Mackenzie Drive in York Region, City of Vaughan, Ontario.

On January 4, 2019 the MTO submitted an application to amend its existing permit to authorize the removal of additional maternity habitat (i.e. above and beyond what is authorized by their existing permit) for Little Brown Myotis, Northern Myotis, Eastern Small-footed Myotis and Tri-coloured Bat (the Species) found in two structures (known as Kellam House and Barn #2) in order to proceed with their project.

On December 3, 2019 the Minister of the Environment, Conservation and Parks issued an amendment to AU-C-011-16 (the “Permit”) under

Subclause 17(7)(a)(i) of the ESA.

Subclause 17(7)(a)(i) of the ESA provides the authority for the Minister to amend a permit issued to a person under clause 17(2)(c) of the Act with the consent of the permit holder, if the Minister is of the opinion, he would be authorized to issue the permit under the original clause in its amended form.  

Under subclause 17(2)(c) of the ESA, the Minister has the authority to issue a permit if the Minister is of the opinion that the following tests for an overall benefit permit are met. An explanation of how these tests would be met is set out below:

Reasonable alternatives to the proposal were considered, including alternatives that would not adversely affect the species, such as:

• not removing Barn #2 and Kellam House
• relocating Barn #2 and Kellam House nearby
• relocating the buildings were impeded by technical challenges and the client expressed a need to remove the buildings due to liability and safety concerns

The permit requires the MTO to undertake a number of actions to achieve an overall benefit and implement measures to minimize adverse effects to the species within a reasonable timeframe, including:

• installing three (3) roosting habitat structures (i.e. two (2) bat rocket boxes and one (1) bat condo) to support maternity roosting needs for all four species. The rocket box is comprised of two notched poles covered by a 6 foot “rocket-box” sleeve and the 1.25 cubic metre bat condo is mounted on a pole
• ensuring these habitat structures have capacity in excess of what was provided by Barn #2 and Kellam House
• monitoring the habitat structures to determine which species occupy the structures
• increasing the likelihood, the structures will be discovered by the species by installing them near Barn #2 and Kellam house before the species emerge from hibernation
• removing Barn #2 and Kellam house before the species emerges from hibernation so as to avoid killing, harming or harassing any individual members of the species who may return to the buildings after spring emergence

The Minister is required to consider any Government Response Statement (GRS) to a recovery strategy published under subsection 11(8) of the Act. 

Currently, a GRS does not exist for Little Brown Myotis, Northern Myotis, Eastern or Tri-coloured Bat.

A GRS does exist for Eastern Small-Footed Myotis.  The GRS identifies increasing knowledge of the species’ habitat as a high priority.  Monitoring related to the artificial roosting structures may be useful in better understanding whether this species is likely to roost in these types and designs of roosting structures.

Effects of consultation

Neither the original permit proposal nor the proposed amendment is classified as an instrument under O. Reg. 681/94 (Classification of Instruments), and therefore neither is required to be posted as an instrument proposal under the Environmental Bill of Rights, 1993 (EBR). However, the Ministry decided to update the Information Notice to advise the public of the amendment, given the proposal includes additional impacts to the species not accounted for in the original permit.

On March 8, 2019, the permit amendment proposal was posted on the ER for 30 days (# 013-4856).

One comment was received in response to the ERO posting.  This comment was generally unsupportive of the proposal to extend the highway and did not specifically address the ESA authorization. 

Proposal

The Ontario Ministry of Transportation has applied to amend an existing permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) to remove additional maternity habitat (i.e. above and beyond what is authorized by their existing permit) for Little Brown Myotis, Northern Myotis, Eastern Small-footed Myotis and Tri-coloured Bat (the Species) in order to proceed with their project to extend Highway 427 between Albion Road and Major Mackenzie Drive in York Region, City of Vaughan, Ontario.

Ministry staff advised the application to seek an amendment to their existing permit, as opposed to a new permit, to authorise the removal of two structures (Barn #2 and Kellam house) that provide maternity roosting habitat. These structures were excluded from the initial permit as there was insufficient information collected at the time to determine if the structures were in fact occupied Species at Risk habitat.

Subclause 17(7)(a)(i) of the ESA provides the authority for the Minister to amend a permit issued under 17(2)(c) of the ESA with the consent of the permit holder. However, the Minister must be of the opinion that he or she would have been authorized to issue the permit under clause 17(2)(c) in its amended form. The permit as amended would continue to meet the legal tests as described below for the Species.

Reasonable alternatives were considered, including alternatives that would not adversely affect Little Brown Myotis, Northern Myotis, Eastern Small-footed Myotis, and Tri-coloured Bat, and may include:

• not removing Barn #2 and Kellam House
• relocating Barn #2 and Kellam House nearby

Potential approaches to minimize adverse effects on Little Brown Myotis, Northern Myotis, Eastern Small-footed Myotis, and Tri-coloured Bat, and may include:

• adjusting timelines to remove Barn #2 and Kellam house before the species emerges from hibernation
• installing artificial roosting structures before Barn #2 and Kellam house are removed
• installing multiple types/designs of artificial roosts to provide multiple roosting options for the Species
• ensuring artificial roosting structures are installed in close proximity to the original footprint of Barn #2 and Kellam house

Potential approaches to achieve an overall benefit for Little Brown Myotis, Northern Myotis, Eastern Small-footed Myotis, and Tri-coloured Bat, may include:

• installing artificial roosting structures to support maternity roosting needs for all four species
• ensuring these artificial roosting structures have capacity in excess of what was provided by Barn #2 and Kellam House
• monitoring the artificial roosting structures to determine which species occupy the structures

The Minister is required to consider any Government Response Statement to a recovery strategy published under subsection 11(8) of the Act. A Government Response Statement does not currently exist for Little Brown Myotis, Northern Myotis or Tri-coloured Bat.

A Government Response Statement does exist for Eastern Small-Footed Myotis. The Government Response Statement identifies increasing knowledge of the species’ habitat as a high priority. Monitoring related to the artificial roosting structures may be useful in better understanding whether this species is likely to roost in these types and designs of roosting structures.

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