Jacobson Property and Holding Corporation - Permit for activities to achieve an overall benefit to a species

Description of instrument

Jacobson Property and Holding Corporation., has submitted a proposal in relation to an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 with respect to Butternut in order to develop a residential subdivision along Riverview Lane in Part of Lot 29 Concession 2 in the Geographic Township of Oxford on Rideau, Kemptville (Ontario).

Other information

The proposal to develop the subdivision has the potential to adversely affect Butternut and its habitat. The proposed permit conditions would provide benefits that exceed the adverse effects on Butternut and habitat.

Butternut is listed on the Species at Risk in Ontario List, in Ontario Regulation 230/08 of the ESA, as Endangered.

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

Subsection 10(1) of the ESAprovides for the protection of habitat of endangered, threatened (and extirpated) species on the SARO List as of June 30, 2013.

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; and
3. reasonable steps to minimize negative effects on individual members of the species are required by conditions of the permit

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

• not constructing the proposed lots
• redesign the proposed subdivision to relocate the stormwater management ponds, sewers and watermains

Potential approaches to minimize adverse effects on individual members of Butternut may include

• using small machinery or hand tools for construction works that are in the vicinity of Butternut trees
• installing temporary protective fencing during construction to avoid harming Butternut trees
• retaining a qualified professional expert to supervise and assist with the implementation of the conditions of the permit
• educating future landowners about the presence of this species at risk, and providing them with land owner's guidelines and 
• transferring land within a protected corridor between a watercourse and Butternuts to the Municipality, to prevent future encroachment by landowners

Potential approaches to achieve an overall benefit for Butternut may include

• archiving two Category 3 Butternut trees that demonstrate resistance to the Butternut canker disease

A Government Response Statement published under subsection 11(8) of the ESA exists for Butternut, 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 ESA have been satisfied.