DG Group - Permit for activities to achieve an overall benefit to a species

Description of instrument

DG Group has submitted a proposal in relation to an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 to harm eight (8) Category 2 Butternuts, and two (2) Category 3 Butternuts, kill one (1) Category 3 Butternut, as well as damage and destroy up to approximately 1.5 hectares of Butternut habitat for the purpose of developing the Valleybrook subdivision in the vicinity of Concession Road 2 and Hillcrest Drive in East Gwillimbury, Regional Municipality of York, Ontario.

Other information

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

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

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 Butternut.

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:

• 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 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.

Reasonable alternatives are being considered, including alternatives that would not adversely affect Butternut, and may include:

• Not proceeding with the proposed development project; and
• Altering project design so that development occurs at an alternate location out of the influence of retainable Butternuts

The best alternative that has been proposed includes using site grading slope restrictions and constructing a retaining wall to minimize impacts to the Category 3 Butternut trees.

DG Group is working with Ministry of Natural Resources of Forestry staff to explore ways to minimize adverse effects on Butternut, including:

• Implementing Butternut protection measures such as retaining walls, increased grading slopes, and fencing to minimize the grading intrusion on Butternut individuals that are within 25 m of the proposed project footprint;
• Transplanting Butternut that can be feasibly transplanted; and
• Retaining a qualified professional to carry out conditions of the permit.

DG Group is working with Ministry of Natural Resources of Forestry staff to identify proposed actions to achieve an overall benefit for Butternut, including:

• Archiving four (4) Butternut trees that demonstrate potential resistance to the Butternut canker disease; and 
• Seed collection (100 seeds) from Category 3 trees to be retained and/or other assessed Category 3 trees in the same Seed Zone for donation to an institution for future propagation

The archiving required under this permit is expected to increase the number of Butternut in Ontario that may be resistant to canker, resulting in an overall benefit to the Species in a reasonable time.

The proposed project is not eligible for an exemption under section 23.7 of Ontario Regulation 242/08 because DG Group has already registered 10 Category 2 Butternut. Furthermore, the proposed project is not eligible for an exemption under Ontario Regulation 242/08 because at least one of the Butternut is a Category 3 tree.

A Government Response Statement published under subsection 11(8) of the Endangered Species Act 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 Endangered Species Act have been satisfied.