Ontario’s Endangered Species Act, which came into effect in 2008, makes the province a North American leader in the protection and recovery of species at risk and their habitats. Learn how Ontario is protecting species at risk and their habitat.
Proposed Authorization Summary
| Proponent: | Ontario Ministry of Transportation |
|---|---|
| Project: | Hwy 69, Contract 2012-5100, EMMAs |
| Location: | Sudbury District See location on Google Maps  |
| Species: |
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| Sector: | Transportation |
| Environmental Registry Number: | 011-7731 |
| 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:
Ontario Ministry of Transportation has submitted a proposal in relation to an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) with respect of Eastern Whip-poor-will in order to construct and utilize Excess Material Management Areas (EMMAs) in the Geographic Township of Bigwood, Municipality of Killarney.
The proposal to construct and utilize Excess Material Management Areas (EMMAs) has the potential to adversely affect Eastern Whip-poor-will and their habitat. The proposed permit conditions would provide benefits that exceed the adverse effects on Eastern Whip-poor-will.
Eastern Whip-poor-will is listed on the Species at Risk in Ontario (SARO) List, in Ontario Regulation 230/08 of the ESA, as threatened.
Subsection 9(1) of the ESA provides for the protection of endangered, threatened (and extirpated) species on the SARO List.
Habitat protection under the ESA applies to Eastern Whip-poor-will (subsection 10(1)).
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:
(i) an overall benefit to the species will be achieved within a reasonable time through the conditions of the permit;
(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.
Ontario Ministry of Transportation (MTO) proposes to develop three EMMAs for the disposal of excavated material accumulated through the Highway 69/400 Twinning Project. The proposed EMMAs are located in the Geographic Township of Bigwood, Municipality of Killarney. The sites are approximately a total of 13.8 ha in size. Surveys indicate that one male Eastern Whip-poor-will has established a territory partly within the project areas. MTO intends to apply for an overall benefit permit under clause 17(2)(c) of the Endangered Species Act, 2007 (ESA) for the purposes of developing these sites to be used as Excess Material Management Areas (EMMAs).
Reasonable alternatives are being considered, including ones that would not adversely affect the species, and may include:
- 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 alternatives that address adverse effects (short or long term) on the species and habitat present on and/or surrounding the proposed activity location.
Potential approaches to minimize adverse effects on individual members of Eastern Whip-poor-will may include:
- Altering the project limits to avoid some areas of Eastern Whip-poor-will habitat;
- Rehabilitation to restore Eastern Whip-poor-will habitat;
- Tree clearing and ground cover removal (grubbing) to be done outside of the breeding period for Eastern Whip-poor-will;
- Training for all staff and contractors on Eastern Whip-poor-will identification and key habitat areas; and
- Monitoring of impacts to Eastern Whip-poor-will and the effectiveness of implemented mitigation measures.
Potential approaches to achieve an overall benefit for Eastern Whip-poor-will may include:
- Protecting and managing alternative lands for Eastern Whip-poor-will habitat and monitoring the success of overall benefit measures; and
- Conducting monitoring of Eastern Whip-poor-will in order to fill in information gaps.
Please note that the posting of this proposal on the Environmental Registry does not imply that a permit will be approved; a 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:
Reasonable alternatives, including alternatives that would not adversely affect the species, have been explored. The best alternative has been chosen to allow work to continue and avoid impacts to Eastern Whip-poor-will and minimize impacts to habitat, including:
- The timing of certain construction activities has been adjusted to avoid disturbance to Eastern Whip-poor-will during the breeding season.
There will be reasonable steps to minimize adverse effects on individual members of the species as required by conditions of the permit, including:
- Conducting land clearing outside of the breeding period for Eastern Whip-poor-will;
- Limiting daily operational activities including hauling and disposal to within daylight hours during the species' breeding period to avoid the highest activity periods for Eastern Whip-poor-will;
- Training for all staff and contractors on the identification of Eastern Whip-poor-will and key habitat areas;
- Monitoring of impacts to Eastern Whip-poor-will and the effectiveness of implemented mitigation measures;
- Rehabilitation of the project site within 2 years to restore Eastern Whip-poor-will habitat.
Overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit. MTO proposes to:
- Rehabilitate alternative lands (minimum of 7 ha) for Eastern Whip-poor-will habitat and monitor the success of overall benefit measures.
Decision:
On April 9, 2013 the Minister of Natural Resources issued an overall benefit permit to Ontario Ministry of Transportation (MTO) under clause 17(2)(c) of the ESA with respect to Eastern Whip-poor-will in order to construct and utilize Excess Material Management Areas in the Geographic Township of Bigwood, Municipality of Killarney.
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, and adjusting timelines to avoid species specific sensitivities (e.g., active periods for the species). The best alternative, which was adopted, consists of MTO adjusting timelines of certain activities to avoid disturbance to Eastern Whip-poor-will during their breeding season. The best alternative has been chosen to allow work to continue and avoid some impacts to Eastern Whip-poor-will and their habitat.
The permit requires MTO to undertake a number of measures to minimize adverse effects on individual members of Eastern Whip-poor-will, including:
Tree clearing and ground cover removal (grubbing) to be done outside of the breeding period for Eastern Whip-poor-will;
Hauling and disposal activities will only occur during daylight hours while working within the breeding season for Eastern Whip-poor-will;
Rehabilitation to restore Eastern Whip-poor-will habitat;
Training for all staff and contractors on Eastern Whip-poor-will identification and key habitat areas; and
Monitoring on-site to assess the impact of activities and effectiveness of mitigation and rehabilitation.
The permit requires MTO to undertake a number of actions to achieve an overall benefit to Eastern Whip-poor-will, within a reasonable time, including:
create and manage a minimum of 7 ha of land in a manner beneficial for Eastern Whip-poor-will for 10 years;
conduct a survey program to monitor habitat use by Eastern Whip-poor-will on both the EMMA site and the overall benefit area. Information gained from these surveys will assist in informing MNR with regards to future projects impacting Eastern Whip-poor-will as well as the effectiveness of overall benefit measures; and
submit regular reports to MNR for review and to monitor the success of the overall benefit conditions.
Public consultation on the proposal for this ESA permit was provided for 30 days, from December 12, 2012 to January 11, 2013. No comments were received in response to this Environmental Registry notice.
Comment On This Project
To view and comment on this proposed permit, please visit the Environmental Registry and enter the Registry number (011-7731) 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 Hwy 69, Contract 2012-5100, EMMAs (ER number: 011-7731) .
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.
