Eden Oak (Trailshead) Inc. - Permit for activities to achieve an overall benefit to a species

Eden Oak (Trailshead) Inc. has submitted an application for an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) for a residential development at 228 Lakeshore Road, The Blue Mountains, Ontario.

The proposed activities may adversely impact:

• Butternut individuals (harm to one Category 2 and five Category 3 Butternut trees)
• Approximately 0.81 hectares of Butternut habitat

The main threat to the survival of Butternut trees is Butternut Canker, a disease affecting most Butternut trees across the province.

Butternut trees are divided into three categories based on their health:

• Category 1: in the advanced stages of disease as a result of Butternut Canker (“non-retainable”)
• Category 2: the tree does not have Butternut Canker or disease is not as advanced (“retainable”)
• Category 3: could be useful in determining how to prevent or resist Butternut Canker (“archivable”)

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 provides protections for species at risk and their habitats under the 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 List as either:

• extirpated
• endangered
• threatened

Butternut is listed on the Species at Risk in Ontario list, under Ontario Regulation 230/08 of the ESA as endangered.

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 is of the opinion that:

• an overall benefit to the species will be achieved within a reasonable time through the conditions of 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

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 the species

Eden Oak (Trailshead) Inc. is seeking ways to provide an overall benefit to Butternut trees. These may involve:

• collecting an archiving scions from three suitable Butternut (with work to be completed by a qualified person/organization)
• planting 20 Butternut seedlings and additional companion tree seedlings into the onsite identified open block spaces to mimic natural Butternut habitat conditions
• monitoring and tending the Butternut seedlings for at least five years

These proposed actions are expected to achieve an overall benefit to the species by:

• identifying, grafting and maintaining potentially canker-resistant individuals to contribute to a breeding program and species recovery
• an increase in the number of Butternut in Ontario

Reasonable alternatives being considered

Eden Oak (Trailshead) Inc. has explored alternatives, including alternatives that would not adversely affect Butternut trees and their habitat. These include:

• not proceeding with the proposed project on the location specified
• altering the development plan (e.g. berms for flood prevention and moving an access road), which would result in increase harm to Butternut
• altering the development plan to reduce impacts to Butternut

Eden Oak (Trailshead) Inc. has concluded the preferred option for construction of the Trailshead subdivision is the third alternative as it will have the least impact on Butternuts and associated habitat while still allowing the residential development to be constructed.

Actions to minimize negative effects to the species

Eden Oak (Trailshead) Inc. is seeking ways to minimize adverse effects on Butternut trees and its habitat. These may include:

• establishing tree protection fencing along the perimeter of the work zone to prevent damage to Butternut, minimize habitat disturbance and prevent any unnecessary encroachment into habitat
• implementing appropriate arboricultural practices, including using Qualified Professionals to oversee and undertake important aspects of the permit

Other information

The Province has published a government response statement under section 12.1 of the Endangered Species Act, 2007 with respect to Butternut.

The government response statement will be considered before a decision to issue an overall benefit permit.

A copy of the government response statement for Butternut is available at: https://www.ontario.ca/page/butternut-government-response-statement

Posting this proposal on the Environmental Registry does not imply that we 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.

More information on species at risk overall benefit permits.