Private Landowner - Permit for activities to achieve an overall benefit to a species

The applicant is seeking a permit under clause 17(2)(c) of the Endangered Species Act, 2007 to harm or kill 29 Dwarf Hackberry trees, and damage and destroy 0.083 hectares of Dwarf Hackberry habitat for the purpose of developing a single residential unit and related septic system at 456 Block A Herbert Street, Port Franks, Lambton County, Ontario.

The proposal to develop the land has the potential to adversely affect Dwarf Hackberry trees, as well as its habitat. The proposed permit conditions would provide benefits that exceed the adverse effects on Dwarf Hackberry and its habitat.

The applicant is proposing to transplant 29 Dwarf Hackberry trees to a restoration site, and therefore no killing of the species is anticipated. However, there is the risk or mortality to individual trees through transplantation efforts.

The Species at Risk in Ontario List of the Ontario Regulation 230/08 of the Endangered Species Act lists Dwarf Hackberry as Threatened.

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) the Endangered Species Act applies to Dwarf Hackberry.
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 sections 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
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. 
The Applicant is exploring reasonable alternatives, including alternatives that would not adversely affect Dwarf Hackberry, including:

• not proceeding with the project
• limiting the development of the proposed project to a site that has already been cleared to reduce the overall footprint of the project

The Applicant is exploring ways to minimize adverse effects on Dwarf Hackberry, including:

• undertaking avoidance efforts to retain Dwarf Hackberry trees on the project site
• implementing best management practices to avoid indirect impacts to Dwarf Hackberry trees being retained on the project site
• minimizing the overall impact to the species by transplanting Dwarf Hackberry trees into a protected area, as oppose to removing (killing) the species from the site
• retaining a Qualified Professional to carry out the conditions of the permit relating to the Dwarf Hackberry transplantation to ensure maximum survival of the species
• ensuring no heavy machinery is used to uproot the Dwarf Hackberry trees for transplantation
• installing vegetative and tree protective fencing around the project boundary to prevent impacts to retainable trees and
• educating all on-site personnel on Dwarf Hackberry identification and ensuring that all Dwarf Hackberry trees are marked with an identifier to prevent inadvertent damage to the trees

The Applicant is identifying proposed actions to achieve an overall benefit for Dwarf Hackberry, including:

Collecting seeds from the retained Dwarf Hackberry on the site to propagate and outplant a minimum of 145 Dwarf Hackberry trees in a protected area.

A Government Response Statement published under subsection 11 (8) of the Endangered Species Act exists for Dwarf Hackberry and will be considered before issuing the permit.

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