Metrolinx - Permit for activities that will result in a significant social or economic benefit to Ontario

Ontario is committed to protecting species at risk and strong environmental oversight, while we work to improve public transit in a way that is both economical and transparent.

Socio-economic Permit # CR-D-002-19 was issued to Metrolinx under subsection 17(1) of the Endangered Species Act, 2007 (ESA) in accordance with the criteria in clause 17(2)(d) on August 7, 2020. It authorizes impacts to the following species which would result from the construction of the Ontario Line subway:

• Bank Swallow
• Barn Swallow
• Butternut
• Chimney Swift
• Eastern Small-Footed Myotis
• Little Brown Myotis
• Northern Myotis
• Redside Dace
• Tri-colored Bat

Metrolinx has expanded the area in which adverse impacts to the species may occur (the “Study Area”) and has requested that the ESA permit be amended to include these new areas.

The Ontario Line Study Area extends south from the Ontario Science Centre to Ontario Place. A significant portion of the line is planned to be underground.

The proposed expanded Study Area includes two additional areas:

• Area 1: 182,625 square metres located just north of the Don Valley Parkway
• Area 2: 169,273 square metres located south-west of Eglinton Avenue East and Don Mills Road

The proposed amendment would expand the area in which the existing permit applies by approximately 35 hectares.

The proposed amendment does not alter any of the existing permit conditions and but will extend the obligations of the existing permit to the proposed additional Areas 1 and Area 2.

The Study Area included in the existing permit has not yet been surveyed to confirm the presence or absence of the species.

The proposed additional areas (i.e. Area 1 and Area 2 noted above) have also not yet been surveyed to confirm the presence or absence of the Species.

The existing permit requires surveys to confirm the presence or absence of the Species in the Study Area before the project’s construction activities begin. The proposed amendment would extend this obligation to the proposed additional Areas 1 and Area 2.

Protecting species under the Endangered Species Act

Sections 9 and 10 of the Endangered Species Act, 2007 (ESA) 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

Subclause 17(7)(a)(i) of the ESA provides the Minister of the Environment, Conservation and Parks the authority to amend a permit issued under subsection 17(1) with the consent of the permit holder where the Minister is of the opinion that the amended permit can be issued under the same criteria as the original permit.

The Minister of the Environment, Conservation and Parks may issue an amendment to the existing original permit if the Minister is of the opinion that:

• the activity authorized by the permit will result in a significant social or economic benefit to Ontario
• the activity authorized by the permit will not jeopardize the survival or recovery of the species in Ontario
• reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative that would allow the projects to continue has been adopted
• reasonable steps to minimize adverse effects on the species are required by conditions of the permit

Significant social or economic benefit to Ontario

The project is expected to result in significant social and economic benefits to Ontarians by improving access to public transit and reducing congestion from vehicular traffic.

Reasonable alternatives considered

The proponent has explored reasonable alternatives, including those that would avoid adverse effects on the species and their habitat. Many of these alternatives will be refined in the detailed planning stages of the project.

Extending the obligations of the existing permit to the proposed additional areas provides:

• clear direction on species-specific avoidance measures
• reasonable measures to minimize adverse effects on the species
• mitigation and compensation requirements

In this way, should the final project layout and design result in impacts to the species and their habitat, the existing permit would provide species-specific guidance for project planners to develop and implement designs with lower impacts on species at risk and their habitat.

Actions to minimize adverse effects on the species

Existing permit conditions require steps to minimize adverse effects on the species, including:

• conducting studies to confirm or refute the presence of the species before starting construction
• undertaking work at the time of year when the species are less sensitive to disturbance
• If habitat will be removed:
  • removing it at the time of year when the species are less likely to be present
  • compensating for this impact by creating or enhancing habitat for the species
• if any members of the species will be removed (i.e. Butternut), compensating for these impacts through actions that benefit the species (e.g. plantings)
• providing contractors with education on how to identify the species at risk and what steps to take should the species at risk be encountered within the Study Areas
• monitoring the effectiveness of any steps taken to minimize adverse effects on the species and taking additional steps to increase their effectiveness if they found to be ineffective

This framework is intended to ensure:

• adverse impacts to the species are either avoided or minimized
• there is no net loss of habitat for the species

Given the mitigation and compensation measures included in the existing permit, it is not anticipated that the existing permit, nor the proposed amendment, would jeopardize survival or recovery of the species in Ontario.

Other information

The Minister is required to consider any government response statements (GRS) to a recovery strategy published under subsection 12.1 of the Endangered Species Act, 2007 (ESA) before deciding whether to issue a 17(2)(d) permit.

A GRS, which outlines protection and recovery actions the government will take and support, currently exists for all species included in the proposed permit except for Chimney Swift. These were considered when drafting the conditions of the existing permit which would also apply to the proposed additional areas.

Posting this proposal on the Environmental Registry does not imply that we will issue a permit amendment. A permit amendment may only be issued where the legal requirements set out in clause 17(2)(d) of the ESA have been satisfied.