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Proposed Authorization Summary
| Proponent: | Molinaro Group Crystal Beach Waterfront Inc. |
|---|---|
| Project: | Crystal Beach Condominiums |
| Location: | Niagara See location on Google Maps  |
| Species: |
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| Sector: | Construction or development |
| Environmental Registry Number: | 011-5093 |
| Permit Proposal Status: | Permit issued |
| Authorization Type: | 17(2)(c) - Overall Benefit Permit The Endangered Species Act, 2007 (ESA) provides for the protection of endangered, threatened (and in some cases extirpated) species on the Species at Risk in Ontario (SARO) List. The ESA also addresses the protection of habitat for species at risk. |
Environmental Registry Posting:
MNR has received an application for an overall benefit permit with respect to Fowler’s Toad related to the construction of a proposed 12-storey condominium development on the Lake Erie Shoreline at Crystal Beach in the Town of Fort Erie.
The proposal to build the condominium development on the Lake Erie shoreline in Fort Erie has the potential to impact Fowler’s Toad and its habitat.
Fowler’s Toad is listed on the Species at Risk in Ontario (SARO) List, in Ontario Regulation 230/08 (O. Reg. 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.
Habitat protection under subsection 10(1) of the ESA currently applies to Fowler’s Toad.
The Minister may issue a permit to an applicant under clause 17(2)(c) of the ESA authorizing the 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 the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but, the Minister is of the opinion that:
(i) an overall benefit to the species will be achieved within a reasonable time through the conditions of the permit; and
(ii) reasonable alternatives have been considered, including alternatives that would not negatively affect the species, and the best alternative has been adopted; and
(iii) reasonable steps to minimize negative effects on individual members of the species are required by conditions of the permit.
Fowler’s Toad is known to occur on the proposed development site, and habitat for Fowler’s Toad has been identified within the property boundaries. The proposal includes a 12-storey condominium building and associated deck area and commercial businesses that would occupy a portion of the property on Crystal Beach on Lake Erie in the Town of Fort Erie. Public amenities include beach access, restrooms and a pavilion. The MNR has reviewed reasonable alternatives, and the proposal was adjusted to minimize adverse effects on individual toads and their habitat. An application for an overall benefit permit would include creation of sand dunes in a protected area to enhance Fowler’s Toad habitat on the property.
Reasonable alternatives are being considered including ones that would not adversely affect the species, such as:
- conducting the activity in an alternative location;
- using alternate methods, equipment, designs, etc for carrying out the proposed activity;
- adjusting timelines to avoid species-specific sensitivities (e.g., active periods for the species); and,
- any other alternative approaches that address adverse effects (in both the short and long term) on the specific protected species and habitat present on and/or surrounding the proposed activity location.
Potential approaches to minimize adverse effects on individual Fowler’s Toad may include:
- implementing timing windows to avoid all construction activities during sensitive periods of the toad lifecycle;
- installing barrier fencing around construction sites to keep toads away from harm;
- conducting nocturnal surveys to ensure no toads are trapped inside the barrier fencing and moving individuals encountered to a safe location;
- educating construction personnel about Fowler’s Toad and how to report sightings to MNR; and
- installing educational signage in the area about toads and how to avoid harming them.
Potential approaches to achieve an overall benefit for Fowler’s Toad may include:
- creating areas of dune habitat and plant with dune grasses and native shrubs to enhance toad habitat;
- installing rope fencing to protect this area from pedestrians and creating a no-raking zone
- building a boardwalk above and over Fowler’s Toad habitat to minimize public disturbance while providing cover and shade for toads;
- creating sand mounds with a 3:1 slope as a transition area from the public beach to the protected dune habitat;
- designing shore wall protection structures to enhance Fowler’s Toad habitat; and
- undertaking a public education program about Fowler’s Toad.
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.
Proposed Permit Details:
The following conditions are being considered:
An application has been made for a clause 17(2)(c) permit under the ESA to proceed with the construction of a condominium along the Lake Erie shoreline in the Town of Fort Erie. They have been in contact with MNR staff since July, 2010.
The reasonable alternatives that were considered, including ones that would not adversely affect the species, included:
- Conducting the activity in an alternative location;
- Using alternate methods, equipment and designs for carrying out the proposed activity;
- Adjusting timelines to avoid species specific sensitivities (e.g., active periods for the species);
The chosen alternative included reducing the footprint of the condominium, using alternate methods, equipment, designs, etc for carrying out the proposed activity, as well as adjusting timelines to avoid species specific sensitivities. A location on Bay Beach was chosen for construction of the condominium. It is the only site on the beaches of the Town of Fort Erie that could support a development of this magnitude.
The following are the conditions that if implemented could minimize adverse effects to Fowler's Toad:
- install toad-proof fencing around the construction area one month prior to the beginning of construction or one month prior to the end of the Fowler's Toads' Active Season (time of year that Fowler's Toads are not hibernating, from May 1st to August 30th) whichever comes first;
- surveying of the fenced area for Fowler's Toads nightly under the supervision of a Qualified Professional (a person with particular expertise who is qualified to carry out the tasks associated with this permit or a person trained by MNR staff in a specific area relevant to the task to be performed) for capture and relocation outside of the fenced area to an undisturbed location on Bay Beach, as approved by the MNR. No construction or alteration of the site shall take place until surveys and relocation of Fowler's Toad is complete based on an MNR established framework for searches and surveys;
- Educate, with the assistance of a qualified professional, all construction staff on Fowler's Toad identification and handling;
- Ensure that the construction area is fenced and all toads are removed from the parking area before allowing the parking lot to be used for parking or site construction; and
- Construct a 6 metre wide, cedar decked, boardwalk a minimum of 0.3 metres above the sand, over the toad enhancement area to allow for public access to the beach and podium and provide shade and cover for toads.
The following are conditions that if implemented could achieve an overall benefit to Fowler’s Toad:
- Construct a large toad enhancement area, after construction of the development, that incorporates sand dune habitat with sand mounding, landscaping and revetment wall designed to provide habitat for Fowler’s Toad that is protected from beach activities;
- Provision of educational signage on Fowler's Toad along the boardwalk;
- Roping off and provision of signage at the southern end of the large toad enhancement area and the linear toad enhancement areas, lakeside of the public shore revetment, to discourage pedestrian trespassing and educate the public on the toads’ presence in the area;
- Provision of Fowler's Toad educational brochures for the public and stewardship guidelines for the owners and surrounding neighbours;
- Maintenance of the toad enhancement areas for the duration of the permit consisting of: removal of weeds, invasive plants or garbage; repairs as needed: maintaining landscaping, signage and roping;
- Monitoring and reporting to the MNR on the use of the toad enhancement areas for the duration of the permit consisting of: spring monitoring and reporting each year on the physical conditions of the site, corrective measures to vegetation and thermal conditions of sand; and
- Ensure a qualified professional completes Fowler's Toad surveys within the toad enhancement areas at least 5 times between May and September in the year the areas are constructed as well as years 2, 5, 7 and 10 following construction of the areas.
The Permit would be valid from the Effective Date until the earlier of the following dates: December 31, 2027 or until all post-construction requirements are completed.
The Permit would authorize the applicant to engage in the activities specified in the Permit that would otherwise be prohibited by s.9 or 10 of the Endangered Species Act, 2007 in relation to Fowler's Toad.
The applicant will undertake reasonable steps to allow the MNR to enter the site before, during and after construction to observe the areas for Fowler's Toad use.
Decision:
On July 19, 2012 the Minister of Natural Resources issued an overall benefit permit to Molinaro Group Crystal Beach Waterfront Inc. under clause 17(2)(c) of the ESA with respect to Fowler’s Toad in order to construct a condominium along the Lake Erie shoreline in the Town of Fort Erie, Ontario.
Reasonable alternatives to the proposal were considered, including alternatives that would not adversely affect the species. Alternatives considered included conducting the activity in an alternative location; using alternate methods, equipment, designs, etc for carrying out the proposed activity; and adjusting timelines to avoid species specific sensitivities (e.g., active periods for the species). The best alternative, which was adopted, included reducing the footprint of the condominium, using alternate methods, equipment, designs, etc for carrying out the proposed activity, as well as adjusting timelines to avoid species specific sensitivities. The location on Bay Beach was chosen for construction of the condominium as it is the only site on the beaches of the Town of Fort Erie that could support a development of this magnitude.
The permit requires Molinaro Group Crystal Beach Waterfront Inc. to undertake a number of measures to minimize adverse effects on individual members of Fowler’s Toad, which include:
o Construction timing windows to avoid sensitive periods for Fowler’s Toad;
o Toad-proof barrier fencing will be installed on the perimeter of the development site during construction;
o Nocturnal surveys will be conducted after the toad-proof barrier fencing is installed to ensure that no Fowler’s Toads are trapped within the construction area. Any individuals found will be moved out of the fenced area;
o Construction personnel will be educated on the significance of Fowler’s Toad and directed to call MNR if any individual toads are found during the construction period; and
o Educational signage will be installed to assist the public in avoiding activities that may unintentionally harm Fowler’s Toad.
The permit requires Molinaro Group Crystal Beach Waterfront Inc. to undertake a number of actions to achieve an overall benefit to Fowler’s Toad, within a reasonable time, including requirements to:
o Create a dune habitat designed for toad hibernation which consists of sand approximately 2 meters deep allowing toads to burrow down below the frost line. The created habitat will also consist of beach sand shaped into random low dunes, including large root wads with stumps attached to provide structure and provide daytime refugia during the active season;
o Plant dune grasses and appropriate native shrubs distributed in a fashion that simulates a natural dune;
o Create a boardwalk over Fowler’s Toad habitat to minimize public disturbance while providing cover and shade;
o Create sand mounds at a 3:1 slope to provide a transition area from the public beach to the protected dune habitat;
o Install rope fencing along the edge of the created habitat to discourage pedestrians and to clearly mark where beach grooming is not to occur;
o Construct a raised planter bed or decorative wall to prevent toads from traveling North onto adjacent road (Erie Road);
o Create a shorewall protection/revetment designed to provide Fowler’s Toad with additional habitat;
o Continually monitor and survey population abundance as well as monitor the enhancement sites to ensure habitat is maintained; and
o Install educational signage and brochure distribution to improve public awareness and appreciation of Fowler’s Toad.
A government response statement (GRS) has been published under subsection 11(8) of the ESA with respect to Fowler’s Toad; this statement can be accessed through the MNR Species at Risk website:
http://www.mnr.gov.on.ca/en/Business/Species/index.html
The proposed permit conditions align with multiple actions identified in the GRS such as:
• Undertake communications and outreach to increase public awareness of species at risk in Ontario;
• Beach management (e.g. actions related to barriers and beach grooming); and
• Deliver effective communications and outreach to key stakeholders and landowners within the range of Fowler’s Toad to increase awareness of the species’ distribution and threats, and to foster good stewardship.
Public consultation on the proposal for this ESA permit was provided for 37 days, from November 21, 2011 to December 28, 2011. 82 comments were received as well as a petition signed by 1608 members of the public in response to this Environmental Registry notice.
• MNR Guelph District staff reviewed the comments and determined that the majority of comments received were based on opposition to the proposed development and the perceived loss of public lands. Many of these comments expressed opposition to the development due to the possible impact on the toads. However, execution of the permit conditions will lead to an overall benefit for Fowler’s Toad and minimize the possible impacts on toads. There were also comments that identified changes that could be made to the project that will benefit the toads and those changes implemented where feasible. Changing some plant species which are to be planted in the toad enhancement area from ornamental to native varieties is an example of a change that was successfully executed.
Comment On This Project
To view and comment on this proposed permit, please visit the Environmental Registry and enter the Registry number (011-5093) in the search bar.
If you have questions or comments specific to this permit application after the Environmental Registry period is over, please click here Crystal Beach Condominiums (ER number: 011-5093) .
Please Note: All comments and submissions received become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered in the decision making process for the authorization.
