3427 To authorize an Agreement with Her Majesty the Queen represented by the Minister of Natural Resources, being an agreement under the Endangered Species ActTHE CORPORATION OF THE TOWN OF TILLSONBURG
BY-LAW NUMBER 3427
A BY-LAW to authorize an Agreement with Her Majesty the Queen represented by the Minister
of Natural Resources, being an agreement under the Endangered Species Act.
WHEREAS The Town of Tillsonburg is desirous of entering into an Agreement with Her
Majesty the Queen as represented by the Minister of Natural Resources, being an agreement
under the Endangered Species Act;
THEREFORE the Council of the Town of Tillsonburg enacts as follows:
1. THAT Schedule ``A" attached hereto forms part of this by-law;
2. THAT the Mayor and Clerk be hereby authorized to execute the attached agreement
marked as Schedule "A" on behalf of the Corporation of the Town of Tillsonburg.
READ A FIRST AND SECOND TIME THIS 26th DAY OF May, 2010.
READ A TIED AND FINAL TIME AND PASSED THIS 26th DAY OF May, 2010.
p
MAYOR -Stephen Molnar
CLERK -Michael Graves
AGREEMENT UNDER S.23 OF O.REG. 242/08 MADE UNDER THE
ENDANGERED SPECIES ACT, 2007
THIS AGREEMENT made in duplicate as of June 29, 2010
BETWEEN:
AND:
FILE #: AY -23D-040-10
HER MAJESTY THE QUEEN in right of Ontario as represented
by the Minister of Natural Resources
the "Minister")
THE CORPORATION OF THE TOWN OF TILLSONBURG
the "Municipality")
WHEREAS subsections 9(1) and 1 0(l) of the Endangered Species Act, 2007 prohibit certain
activities with respect to a species that is listed on the SARO List as an extirpated, endangered
or threatened species;
AND WHEREAS section 23 of Ontario Regulation 242/08 provides that clause 9(1)(a) and
subsection 10(1) of the Act do not apply to a person who is constructing, improving, maintaining
or repairing Drainage Works if the person complies with an agreement entered into between the
person and the Minister;
AND WHEREAS the Municipality is constructing, improving, maintaining or repairing Drainage
Works to which section 23 of the Regulation applies;
AND WHEREAS the Minister is of the opinion that the Agreement requires the Municipality to
take reasonable steps to minimize adverse effects on the Species specified herein;
AND WHEREAS the Minister is of the opinion that if the Agreement is complied with, the
construction, improvement, maintenance or repair of the Drainage Works will not jeopardize the
survival or recovery of the Species specified herein in Ontario;
AND WHEREAS the Minister is of the opinion that the Agreement does not conflict with any
obligation of the Minister to ensure the implementation of any action under subsection 11 (9) of
the Act that is in existence on the Effective Date;
NOW THEREFORE the Minister and the Municipality agree as follows:
ARTICLE 1
DEFINITIONS and GENERAL PROVISIONS
1.1 Singular and Plural. In the Agreement, words in the singular include the plural and vice -
versa.
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1.2 Headings. The headings in the Agreement are for convenience of reference only and do
not form part of the Agreement and in no manner modify, interpret or construe the
Agreement.
1.3 Definitions. In the Agreement the following words shall have the following meanings:
ESA 2007" or "Act" means the Endangered Species Act, 2007;
SARO List" means Ontario Regulation 230/08 (Species at Risk in Ontario List) made under
the ESA, 2007;
Activities" means those activities described in section 4.4a);
Agreement" means this agreement entered into between the Minister and the Municipality, all
schedules and attachments to it and any instrument amending it;
Designated Representative" means the individual appointed by a Party to act on that Party's
behalf as identified in section 3.1;
Drainage Works" means "drainage works" as defined in the Drainage Act;
Effective Date" means the date set out at the beginning of the Agreement;
improvement" means "improvement" as defined in the Drainage Act;
maintenance" means "maintenance" as defined in the Drainage Act;
Mitigation Plan" means the plan identified in section 5.1 and described in Schedule C;
Notice" means any notice or communication required or given under the Agreement;
Party" means either the Minister or the Municipality, as applicable, and "Parties" means both
of them;
Regulation" means Ontario Regulation 242/08 (General) made under the ESA, 2007;
repair" means "repair" as defined in the Drainage Act;
Report" means "report" as defined in the Drainage Act; and
Species" means those species listed in Schedule B.
1.4 Schedules. The following schedules form part of the Agreement:
a) Schedule A (Drainage Works);
b) Schedule B (Species to which the Agreement applies); and
c) Schedule C (Mitigation Plan).
ARTICLE 2
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TERM OF THE AGREEMENT
2.1 Term. The Agreement shall come into effect on the Effective Date and shall expire on
June 29, 2040 unless terminated earlier pursuant to ARTICLE 10 (Termination).
ARTICLE 3
DESIGNATED REPRESENTATIVE
3.1 Designated Representative. For the purposes of the Agreement, for the Minister, the
Designated Representative and address are:
Ontario Ministry of Natural Resources
ATTN: Mitch Wilson
Aylmer District Manager
615 John Street North, Aylmer ON N5H 2S8
Email: mitch.wilson@ontario.ca
Tel: 519-773-4710
Fax: 519-773-9014
and, for the Municipality, the Designated Representative and address are:
Town of Tillsonburg
ATTN: Peter Fung
Manager of Engineering
10 Lisgar Avenue, Tillsonburg, ON N4G 5A5
Email: pfung@town.tillsonburg. on. ca
Tel: 519-842-9200 x 2232
Fax: 519-688-0759
3.2 Different Designated Representative. Either Party, through its Designated
Representative, may designate a different representative or provide a revised address,
from time to time, by providing Notice in writing to the other Party.
ARTICLE 4
APPLICATION OF AGREEMENT
4.1 Authority. The Agreement is entered into under the authority of section 23 of Ontario
Regulation 242/08 and only applies to the species and the activities that are specified
herein.
4.2 Application to Species. The Agreement applies to the species listed in Schedule B,
which are all listed on the SARO List as extirpated, endangered or threatened
4.3 Authorization Provided. Subject to all the conditions and limitations set out in the
Agreement, while the Agreement is in force and the Municipality is in compliance with the
Agreement:
a) clause 9(1)(a) and subsection 10(1) of the ESA 2007 do not apply to the
Municipality in respect of the Species; and
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b) subclauses 9(1)(b)(i) and (ii) of the ESA 2007 do not apply to the Municipality's
possession or transportation of the Species.
4.4 Application to Activities. The authorization provided in section 4.3 applies only to the
Municipality:
a) with respect to its undertaking of
maintenance of a ditch constructed under the Ditches and Watercourses Act,
chapter 109 of the Revised Statures of Ontario, 1960, in accordance with
subsection 3(18) of the Drainage Act;
maintenance and repairs of existing drains as authorized by section 74 of the
Drainage Act;
improvement of existing drains as authorized by section 77 or 78 of the Drainage
Act; or
emergency work carried out in accordance with section 124 of the Drainage Act.
hereinafter referred to as the Drainage Activities) which will be undertaken in
respect of the Drainage Works which are more fully described in Schedule A; and
b) as is necessary to fulfill the conditions of the Agreement, including the conditions
set out in Schedule C (Mitigation Plan).
4.5 Protection and Safety. Nothing in the Agreement requires the Municipality to conduct an
activity in a manner that would reasonably be expected to cause damage to infrastructure
or create risk to the safety of the public, its employees or contractors.
4.6 Failure to Comply. Failure to comply with the Agreement may result in a contravention
of the ESA 2007.
ARTICLE 5
MITIGATION PLAN
5.1 Mitigation Plan. The Mitigation Plan:
a) establishes the reasonable steps that the Municipality shall take to minimize the
adverse effects of the Activities on the Species;
b) provides for monitoring of the effects of the Activities on the Species; and
c) establishes reporting requirements.
5.2 Term of Mitigation Plan. The Mitigation Plan is in effect for the term set out in Schedule
C, but no Mitigation Plan may be in effect for a term longer than 10 years. The Mitigation
Plan shall expire at the end of its term unless it is amended and replaced in accordance
with this Article.
5.3 Amendments to Mitigation Plan. Any Mitigation Plan may be amended at any time,
including for the sole purpose of renewing its term, by agreement in writing by the Parties
or their Designated Representatives.
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5.4 Amendment - Consideration of New Scientific Information. In making any decision to
amend a Mitigation Plan, the Parties will consider the incorporation of new scientific
information with respect to the Species, including information:
a) contained in any completed recovery strategy for the Species;
b) contained in any statements made by the Government of Ontario under
subsection 11 (8) of the ESA 2007; or
c) obtained pursuant to any monitoring, assessment or reporting under this
Agreement.
5.5 Required Amendment. The Mitigation Plan shall be amended if,
a) habitat protection under section 10 of the ESA 2007 comes into effect for the
Species and the Minister is of the opinion that new or revised conditions are
required to address such protection; and
b) new information becomes available in respect of the location of one or more
threatened or endangered species that in the opinion of the Minister requires new
or revised Sensitive Areas Maps in order to minimize adverse effects on one or
more Species.
5.6 Agreement Not in Force. The Agreement is not in force without a Mitigation Plan that is
in effect.
ARTICLE 6
AMENDMENTS
6.1 Amendments Require Written Agreement. Except as provided in ARTICLE 5, the
Agreement may only be amended by a written agreement duly executed by the Parties or
their respective Designated Representatives.
ARTICLE 7
ASSIGNMENT
7.1 No Assignment Without Consent. The Municipality shall not assign the Agreement or
any part thereof without the written consent of the Minister, which shall not be
unreasonably withheld. Such consent shall be in the sole discretion of the Minister and
subject to any terms and conditions that may be imposed by the Minister.
ARTICLE 8
AUDIT
8.1 Audit. The Minister or the Minister's authorized representatives may enter the lands and
facilities described in Schedule A that are owned by the Municipality, or for which
landowner permission has been obtained, in order to conduct an audit to assess the
Municipality's compliance with the terms and conditions of the Agreement.
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8.2 Time of Audit. An audit under section 8.1 shall be conducted at a time agreed to in
writing by the Parties that is within 20 business days of the Municipality receiving Notice of
a request for the audit, unless a later time is agreed to in writing by the Parties.
8.3 Audit if No Response or Agreement. If
a) the Municipality does not respond to a request for an audit within 10 business
days of receiving Notice of such request; or
b) the Parties are unable to agree within 20 business days of the Municipality
receiving Notice of a request on the time for the audit,
the Minister or the Minister's representative may enter the lands and facilities described in
Schedule A at any safe and reasonable time in order to conduct an audit in accordance
with section 8.1.
8.4 Audit Activities. In conducting an audit in accordance with this Article, the Minister or the
Minister's authorized representatives, as the case may be, may:
a) examine anything that is relevant to the Agreement; and
b) conduct any tests, take any measurements, take any specimens or samples, set
up any equipment and make any photographic or other records that may be
relevant to the audit.
8.5 Municipality's Co-operation. The Municipality shall cooperate with the Minister or the
Minister's authorized representative, as the case may be, in respect of any audit
undertaken in accordance with this Article, including providing in a timely manner before
the date of the audit any information in respect of the Agreement that is reasonably
requested by the Minister or the Minister's authorized representative.
8.8 Minister's Authorized Representatives. For the purpose of this Article, the Minister's
authorized representatives include individuals who are enforcement officers under the
ESA 2007.
ARTICLE 9
INSURANCE
9.1 Insurance. The Municipality is responsible for obtaining its own insurance and should
carry all the necessary and appropriate insurance that a prudent person in the business of
the Municipality would maintain, including but not limited to commercial general liability
insurance. The Municipality is not covered by the Province of Ontario's insurance
program and no protection will be afforded to the Municipality by the Government of
Ontario for any claims that may arise out of the Agreement.
ARTICLE 10
TERMINATION
10.1 Termination by the Municipality. With the written consent of the Minister, which consent
shall not be unreasonably withheld, the Municipality may terminate the Agreement for
convenience and not for cause.
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10.2 Termination by the Minister. The Minister may terminate the Agreement upon giving
Notice to the Municipality if:
a) the Municipality has knowingly provided false or misleading information in
respect of the Agreement;
b) the Municipality breaches any provision of the Agreement; or
c) notwithstanding that the Municipality has complied with the requirements of the
Mitigation Plan, the Minister is of the opinion that the Activities of the Municipality
in respect of the Drainage Works identified in Schedule A will:
jeopardize the survival or recovery in Ontario of one or more of the
Species; or
ii. conflict with the obligation of the Minister to ensure the implementation of
any action that arises under subsection 11 (9) of the Act.
10.3 Opportunity to Remedy Breach. If the Minister is of the opinion that it is appropriate to
allow the Municipality the opportunity to remedy a breach of the Agreement, the Minister
shall give the Municipality Notice of:
a) the particulars of the breach;
b) the period of time within which the Municipality is required to remedy the breach;
and
c) the steps that the Municipality is required to undertake to remedy the breach.
10.4 Municipality not Remedying. If the Minister has provided the Municipality with an
opportunity to remedy a breach of the Agreement pursuant to section 10.3 and:
a) the Municipality does not remedy the breach within the time period specified in
the Notice;
b) it becomes apparent to the Minister that the Municipality cannot completely
remedy the breach within the time specified in the Notice or such further period of
time as the Minister considers reasonable; or
c) the Municipality is not remedying the breach in a way that is satisfactory to the
Minister.
the Minister may terminate the Agreement by giving Notice of termination to the
Municipality.
10.5 Request for Review. The Municipality may request that the Minister review a decision to
terminate the Agreement by providing Notice to the Minister within 15 business days of
receiving Notice of the decision to terminate by the Minister. If the Municipality makes a
request for review, the Agreement shall continue until the Minister's decision is made
under section 14.6. For greater certainty, this section does not apply to a decision to
terminate made in accordance with subsection 10.6(c).
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10.6 Minister's Decision Following Request. If the Municipality makes a request to review
under section 10.5, the Minister shall consider the Municipality's request and may:
a) continue the Agreement,
b) continue the Agreement in an amended form; or
c) terminate the Agreement by giving Notice to the Municipality, in which case
section 10.5 does not apply.
10.7 Effective Date of Termination. The effective date of any termination under this Article
shall be:
a) 15 business days after the Municipality receives Notice under section 10.2 if a
request for review is not made under section 10.5;
b) 15 business days after the Municipality receives Notice under section 10.4 or
subsection 10.6(c); or
c) immediately upon the date the Municipality receives the written consent of the
Minister under section 10.1.
ARTICLE 11
NOTICES
11.1 Notice. Any Notice shall be:
a) in writing;
b) delivered personally or by pre -paid courier, or sent by facsimile, certified or
registered mail; and
c) forwarded to the Designated Representative of the respective Party.
11.2 Notices Effective From. All Notices shall be effective:
a) at the time the delivery is made if the Notice is delivered personally, by pre -paid
courier or by facsimile; or
b) five business days after the day the Notice was deposited in the mail if the Notice
is sent by certified or registered mail,
unless the day the Notice is effective falls on a day when the Municipality or the Ministry is
normally closed for business or the Notice is sent by facsimile after 5:00 p.m. on a business
day, in which case the Notice shall not be effective until the next business day that the
Municipality or the Ministry, as the case may be, is normally open for business.
Page 8 of 29
ARTICLE 12
SEVERABILITY OF PROVISIONS
12.1 Invalidity or Unenforceability of Any Provision. The invalidity or unenforceability of any
provision of the Agreement shall not affect the validity or enforceability of any other
provision of the Agreement and any invalid or unenforceable provision shall be deemed to
be severed.
ARTICLE 13
WAIVER
13.1 Waivers in Writing. A waiver of any failure to comply with any term or condition of the
Agreement shall be in writing and signed by the Party providing the waiver. Any waiver
must refer to a specific failure to comply and shall not have the effect of waiving any
subsequent failure to comply.
13.2 Failure to Enforce not a Waiver. The failure of the Minister to insist in one or more
instances upon the performance by the Municipality of any of the terms or conditions of
the Agreement shall not be construed as a waiver of the right of the Minister to require
future performance of any such terms or conditions and the obligations of the Municipality
with respect to such future performance shall continue in full force and effect.
ARTICLE 14
ENTIRE AGREEMENT
14.1 Entire Agreement. The Agreement constitutes the entire agreement between the Parties
with respect to the subject matter contained in the Agreement and supersedes all prior
oral or written representations and agreements.
ARTICLE 15
GOVERNING LAW
15.1 Governing Law. The Agreement and the rights, obligations and relations of the Parties
shall be governed by and construed in accordance with the laws of the Province of
Ontario, and the federal laws of Canada applicable therein. Any litigation arising in
connection with the Agreement shall be conducted in Ontario unless the Parties agree in
writing otherwise.
ARTICLE 16
COMPLIANCE WITH LAWS
16.1 Compliance With Laws. For greater certainty, nothing in this Agreement absolves the
Municipality and its employees, contractors and representatives, if any, from complying
with all applicable federal, provincial and municipal laws, ordinances, statutes, rules,
regulations and orders, and all by-laws of all relevant authorities.
IN WITNESS WHEREOF the Parties have executed the Agreement made as of the date first
written above:
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HER MAJESTY THE QUEEN IN RIGHT
OF ONTARIO as represented by the
Minister of Natural Resources
per:
Name:
Position:
The Town o illsonburg
N v`ie: Stephen Molnar
Position: Mayor
I have authority to bind the Municipality.
p
Name: Michael Graves
Position: Clerk
I have authority to bind the Municipality.
Page 10 of 29
SCHEDULE A
DRAINAGE WORKS
A.1 The Agreement applies to:
a) all drainage works situated in the Municipality if before June 30, 2008;
i. an agreement for the construction, improvement or maintenance was filed under
subsection 2 (2) of the Drainage Act; or
ii. a report detailing the drainage works was adopted under subsection 3 (15) or
subsection 45 (1) of the Drainage Act, and
b) all ditches constructed under The Ditches and Watercourses Act, chapter 109 of the
Revised Statutes of Ontario, 1960.
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i
SCHEDULE B
SPECIES TO WHICH THE AGREEMENT APPLIES
The Agreement applies to the following species listed on the SARO List as extirpated,
endangered or threatened:
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RO
L
TT' 4 - T'
Eastern Sand
Fish Ammocrypta pellucida Darter END
Reptile -
Turtle Apalone spinifera Spiny Softshell THR
Tree Ju laps cinerea Butternut END
Herbaceous Symphyottichum Crooked -stem
Plant prenanthoides Aster THR
Page 12 of 29
SCHEDULE C —
MITIGATION PLAN
The Mitigation Plan shall be in effect until June 30, 2015.
The Municipality shall undertake measures to minimize adverse effects on species at risk in
accordance with the general conditions described in Part B and taxa -specific conditions
described in Part C, and the monitoring and reporting requirements described in Part D of this
Mitigation Plan.
PART A. DEFINITIONS
1. Definitions:
1.1. In this Schedule, the following words shall have the following meanings:
DFO" means Fisheries and Oceans Canada;
MNR" means the Aylmer District Office of the Ministry of Natural Resources;
Contact" means to contact the MNR in accordance with the notification/contact
schedule provided to the Municipality by the MNR Designated Representative from time
to time;
Holding Tub" means a large, light-coloured container fitted with a non -airtight latchable
lid approved by the MNR for the temporary storage of captured snakes, turtles,
amphibians, birds or eggs;
Interagency Notification Form" means the form issued by DFO, available at www.dfo-
mpo.gc.ca, which is required to be completed when a drain is being maintained or
constructed;
Monitoring and Reporting Form" means the document that must be completed by the
Municipality in accordance with Part D to this Schedule and will be provided to the
Municipality;
Ontario Operational Statement" means one of the documents issued by DFO, available
at www.dfo-mpo.gc.ca, that sets out the conditions and measures to be incorporated into
a project in order to avoid negative impacts to fish and fish habitat in Ontario, as
modified from time to time;
Process Charts" means the charts attached as Part E to this Schedule which describe
the steps set out in this Mitigation Plan;
Seasonal Timing Windows Chart" means the chart attached as Part G to this schedule
which describes the Sensitive Periods applicable to each Taxonomic Group;
Sensitive Area" means a geographic area in the Municipality where additional mitigation
measures are required to be undertaken for one or more Taxonomic Groups;
Sensitive Areas Map" means any one of the maps attached as Part F to this schedule
which sets out the applicable Sensitive Areas;
Sensitive Period" means a time of year set out in the Seasonal Timing Windows Chart
during which taxa -specific mitigation measures are required to be undertaken for a
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Taxonomic Group because of ambient air/water temperatures, water -levels or important
life -history stages;
Taxonomic Group" means the distinct group comprising one or more Species based on
their taxonomic relationship and common approaches to mitigating adverse effects (i.e.,
fish, mussels, turtles, snakes, amphibians, birds or plants); and
Work Zone" means the geographic area in the Municipality where an Activity in respect
of one of the Drainage Works is being conducted.
1.2. For greater certainty, any defined terms that are not defined in section 1.1 have the
same meanings as in the Agreement.
PART B. GENERAL MEASURES TO MINIMIZE ADVERSE EFFECTS
2. Process Charts
2.1. The general steps set out in this Part B are visually described in the Process Charts
Part E).
3. Review of Documentation
3.1. Prior to conducting any Activities in respect of the Drainage Works the Municipality shall
determine if conditions apply to the place, time or manner in which the Municipality
wishes to pursue them by reviewing:
a) the Sensitive Areas Maps (Part F) to determine if the Work Zone for the proposed
Activities will occur within a Sensitive Area;
b) the DFO Reference Guide for Fish and Mussel Species at Risk Distribution Maps: A
Referral Review Tool for Projects Affecting Aquatic Species at Risk;
c) the Seasonal Timing Windows Chart (Part G) to determine if the proposed Activities
will occur during a Sensitive Period for one or more of the Taxonomic Groups; and
d) the Process Charts to determine if prior notification is required;
e) the mitigation measures for each applicable Taxonomic Group in Part C to determine
what additional site-specific mitigation measures, if any, are required.
3.2. The Municipality shall document the results of the review undertaken in accordance with
section 3.1 using the Monitoring and Reporting Form.
4. Sensitive Areas Maps
4.1. The Sensitive Areas Maps contain sensitive information about the distribution of species
at risk, are provided for the sole purpose of informing this Agreement and are not to be
copied or distributed for any other purposes or to any other party without the prior written
authorization of the MNR Designated Representative.
5. Prior Notification to Seek Direction
5.1. If, after completing the review of documents described in section 3.1, the Municipality
determines that the proposed Activities will be undertaken:
a) in a place,
b) at a time; or
c) in a manner,
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that requires prior notification in accordance with the Process Charts, the Municipality
shall provide prior notification to the MNR in order for the MNR to determine if the
Municipality must undertake additional site-specific or Species-specific mitigation
measures to minimize adverse effects on the Species and, if applicable, to identify such
measures.
5.2. The prior notification under section 5.1 shall include a completed Interagency Notification
Form:
a) in respect of maintenance/repair where the proposed Activities are being undertaken
pursuant to subsection 3(18) or section 74 of the Drainage Act; or
b) in respect of construction/improvement where the proposed Activities are being
undertaken pursuant to section 77 or 78 of the Drainage Act.
5.3. Where an Activity is undertaken in accordance with section 124 of the Drainage Act and
would otherwise have required prior notification under section 5.1, the Municipality shall
Contact the MNR by email prior to the commencement of the Activity, and complete and
submit the applicable Interagency Notification Form within one week of the Activity's
completion, unless otherwise directed in writing by the MNR Designated Representative.
6. General Mitigation Measures
6.1. Notwithstanding that prior notification or additional mitigation measures may be required
in accordance with this schedule, in undertaking any Activity at any time in respect of the
Drainage Works the Municipality shall:
a) undertake the mitigation measures for sediment control and for erosion control and
bank stabilization set out in The Drain Primer (Cliff Evanitski 2008) published by DFO
ISBN 978-0-662-48027-3), unless otherwise authorized in writing by the MNR
Designated Representative;
b) use net free, 100% biodegradable erosion control blanket for all erosion control or
bank stabilization done in conjunction with their Activities or, if authorized in writing
by the MNR Designated Representative, alternative erosion control blankets that
provide equal or greater protection to individual Species; and
c) where applicable, follow the guidelines set out in the following Ontario Operational
Statements:
i) Beaver Dam Removal;
ii) Bridge Maintenance;
iii) Culvert Maintenance;
iv) Isolated Pond Construction,
v) Maintenance of Riparian Vegetation in Existing Right of Ways; and
vi) Temporary Stream Crossing.
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PART C. TAXA -SPECIFIC MEASURES TO MINIMIZE ADVERSE EFFECTS
ADDITIONAL MITIGATION MEASURES FOR FISH SPECIES
7. Activities undertaken in Sensitive Areas for Fish
7.1. Subject to section 7.2, where a proposed Activity will occur in a Sensitive Area for a fish
Species, the Municipality shall contact the MNR to seek further direction.
7.2. Section 7.1 does not apply where the applicable Drainage Works are:
a) in a naturally dry condition;
b) classified as a Class F drain under DFO's Class Authorization System for the
Maintenance of Agricultural Municipal Drains in Ontario (ISBN 0-662-72748-7); or
c) a closed drain.
ADDITIONAL MITIGATION MEASURES FOR TURTLE SPECIES
8. Training and Required On Site Materials for Turtles
8.1. The Municipality will ensure any person:
a) involved in the capture, temporary holding, transfer and release of any turtle Species
has received training in proper turtle handling procedures; and
b) who undertakes an Activity has a minimum of two Holding Tubs and cotton sacks on
site at all times.
9. Activities undertaken in Sensitive Areas and Sensitive Periods for Turtles
9.1. Subject to section 9.2, where a proposed Activity will occur in a Sensitive Area for any
turtle Species and during a Sensitive Period for that Species, the Municipality shall:
a) not undertake any Activities that include the excavation of sediment or disturbance to
banks during the applicable Sensitive Period unless otherwise authorized;
b) undertake Activities in accordance with any additional site-specific measures
provided in writing by the MNR Designated Representative;
c) avoid draw -down and de -watering of the Sensitive Area during the applicable
Sensitive Period; and
d) if authorized by the MNR Designated Representative under (a) above to undertake
Activities that include excavation of sediment or disturbance of banks, in addition to
any other measures required under (b) above, ensure any person undertaking an
Activity has at least two Holding Tubs on site at all times.
9.2. Section 9.1 does not apply where the applicable Drainage Works are:
a) in a naturally dry condition;
b) classified as a Class F drain in DFO's Class Authorization System for the
Maintenance of Agricultural Municipal Drains in Ontario (ISBN 0-662-72748-7); or
c) a closed drain.
Page 16 of 29
10. Measures for Encounters with Turtles During a Sensitive Period
10.1. Where one or more individuals belonging to a turtle Species is encountered in the
undertaking of an Activity in any part of a Work Zone (including, but not limited to, a
Sensitive Area) during a Sensitive Period for that Species, the Municipality shall:
a) capture and transfer all uninjured individuals of that Species into a Holding Tub;
b) capture and transfer all individuals injured as a result of the Activities into a Holding
Tub separate from any Holding Tub containing uninjured individuals;
c) ensure that the Holding Tubs with the captured individuals are stored at a cool
temperature to prevent freezing until the individuals can be transferred; and
d) immediately Contact the MNR to seek direction and to arrange for the transfer of the
individual turtles.
11. Measures for Encounters with Turtles Laying Eggs or Nest Sites
11.1. Where one or more individuals belonging to a turtle Species laying eggs, or an active
nest site of any turtle Species, is encountered in undertaking an Activity in a Work Zone,
the Municipality shall:
a) not disturb a turtle encountered laying eggs and not conduct any Activities within 20
metres of the turtle while it is laying eggs;
b) collect any displaced or damaged eggs and capture any injured dispersing juveniles
and transfer them to a Holding Tub;
c) store all captured injured individuals and collected eggs out of direct sunlight,
d) immediately Contact the MNR to seek direction and to arrange for the transfer of any
injured individuals and eggs;
e) immediately stop any disturbance to the nest site and recover exposed portions with
soil or organic material to protect the integrity of the remaining individuals;
f) not drive any equipment over the nest site or conduct any Activities within 5 metres
of the nest site;
g) not place any dredged materials removed from the Drainage Works on top of the
nest site,
h) mark out the physical location of the nest site for the duration of the project but not
by any means that might increase the susceptibility of the nest to predation or
poaching; and
i) where there are no collected eggs or captured individuals, record relevant
information and Contact the MNR within 72 hours to provide information on the
location of the nest site.
12. Measures for Encounters with Turtles Outside of a Sensitive Period
12.1. Where one or more individuals belonging to a turtle Species is encountered while
undertaking an Activity in any part of a Work Zone (including, but not limited to, a
Sensitive Area) but outside of any Sensitive Period for that Species, the Municipality
shall:
a) briefly stop the Activity for a reasonable period of time to allow any uninjured
individual turtles of that Species to leave the Work Zone;
Page 17 of 29
b) where individuals do not leave the Work Zone after the Activity is briefly stopped in
accordance with (a) above, capture all uninjured individuals and release them in
accordance with section 13.1;
c) where circumstances do not allow for their immediate release, transfer captured
uninjured individuals for a maximum of 24 hours into a Holding Tub which shall be
stored out of direct sunlight and then release them in accordance with section 13.1;
d) capture and transfer any individuals that have been injured into a Holding Tub
separate from any Holding Tub containing uninjured individuals; and
e) store all captured injured individuals out of direct sunlight and immediately Contact
the MNR to seek direction and to arrange for their transfer.
13. Release of Captured Individuals Outside of a Sensitive Period
13.1. Where uninjured individuals are captured under section 12.1, they shall be released:
a) within 24 hours of capture;
b) in an area immediately adjacent to the Drainage Works;
c) in an area that will not be further impacted by the undertaking of any Activity; and
d) not more than 250 metres from the capture site.
13.2. Following a release under section 13.1, the Municipality shall Contact the MNR within 72
hours of the release to provide information on the name of the Drainage Works, the
location of the encounter and the location of the release site.
14. Measures for Dead Turtles
14.1. Where one or more individuals of a turtle Species is killed as a result of an Activity in a
Work Zone, or if a person undertaking an Activity finds a deceased individual of a turtle
Species within the Work Zone, the Municipality shall:
a) place any dead turtles in a Holding Tub outside of direct sunlight; and
b) Contact the MNR within 72 hours to seek direction and to arrange for the transfer of
the dead individuals.
ADDITIONAL MITIGATION MEASURES FOR HERBACEOUS PLANTS
15. Activities Undertaken in Sensitive Areas for Herbaceous Plants
15.1. Where a proposed Activity will occur that involves physical disturbance to vegetated
banks or the killing and/or removal of vegetation through chemical or mechanical means
in a Sensitive Area for any herbaceous plant Species, the Municipality shall:
a) undertake the Activity outside of the Sensitive Period, unless otherwise authorized;
b) limit equipment access and operations to the side of the Drainage Works that will
minimize disturbances where any of the plant Species occur;
c) locate temporary storage sites for excavated sediments or bank materials on areas
of open soil away from where any of the plant Species are likely to occur;
d) not use any broad spectrum herbicides in Sensitive Areas; and
e) undertake Activities in accordance with any additional site-specific measures
provided in writing by the MNR Designated Representative.
Page 18 of 29
ADDITIONAL MITIGATION MEASURES FOR TREE SPECIES
16. Additional Measures for Butternut
16.1. Where Butternuts may exist in a Work Zone and may be affected by an Activity, the
Municipality shall:
a) identify and mark as retainable trees all individual Butternut trees within the Work
Zone during work planning site visits unless the individual Butternut has been
assessed as anon -retainable tree due to infection by Butternut canker by a person
designated by the Minister as a Butternut Health Assessor;
b) retain and avoid disturbance to all individuals identified under (a) above that have
been identified as retainable trees or that have not been assessed, unless otherwise
authorized in writing by the MNR Designated Representative;
c) conduct Activities by:
i) limiting equipment access and operations to the side of the Drainage Works that
will minimize disturbance to where any of the individual Butternut trees occur,
ii) working around trees,
iii) avoiding compacting and/or disturbing the soil by keeping excavation and other
heavy equipment a minimum of 2 metres away from the main stem of retained
individuals to avoid damaging roots and stems,
iv) placing excavated materials on areas not within 2 metres of the main stem of
retained individuals, and
v) where branches are required to be removed to allow for safe operation of
equipment, removing them using appropriate equipment, such as pruning saws,
chain saws or lopping shears, in accordance with good forestry practices; and
Page 19 of 29
PART D. MONITORING AND REPORTING REQUIREMENTS
17. Compliance Monitoring
17.1. The Municipality shall inspect the undertaking of the Activities at the locations described
in Part F of this Schedule C, and shall record the results of the inspections in the
Monitoring and Reporting Form.
17.2. The Municipality shall record all encounters with Species and the resulting mitigation
measures taken by the Municipality in the Monitoring and Reporting Form.
18. Reporting
18.1. Prior to March 31 of each year the Mitigation Plan is in effect, the Municipality shall
submit a completed Monitoring and Reporting Form containing all of the information
collected under sections 17.1 and 17.2 during the previous twelve months to the MNR
Designated Representative.
19. Review
19.1. Within six months of the expiry of this Mitigation Plan but no later than three months from
the time of its expiry, the Parties shall meet to review the measures and actions taken
and the Activities undertaken during its term and to discuss the terms and conditions of
the next Mitigation Plan.
Page 20 of 29
PART E. PROCESS CHARTS
Flow Chart 1: Process to Determine if Prior Notification is Required
Protocol 1: Cases Where Prior Notification to Seek Site-specific Direction is Required
Flow Chart 2: Inter -Agency Cooperation for Site-specific Direction for Fish and Mussels
Page 21 of 29
O J)i4tr PjTtiine f Pilov Notific.
ati(
m Required
T I T
Actk,- t% -
il',ihiage 4-1ci-itV p, e c
y cAcoRc4uiF C'
I .'. A
tit
D -a -ogv A.:.Avly prc. pc;cul
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Am
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E IS
n.,4 t c: i;irAcr-Aqc!.ric.y Fc -rim.--,
Form Provided
Page 22 of 29
Protocol 1: Cases Where Prior Notification to Seek Site-specific Direction is Required
Prior notification to the MNR under section 5 of the Mitigation Plan is required in the following cases for
each Taxa Group:
1. Fish Species. Where the proposed Activity will take place in a Sensitive Area for a fish Species.
2. Turtle Species. Where the proposed Activity will:
a) take place in a Sensitive Area and Sensitive Period for a turtle Species; and
b) involve the removal of sediment or disturbance of banks.
3. Herbaceous Plant Species. Where the proposed Activity will:
a) take place in a Sensitive Area and Sensitive Period for a plant Species; and
b) involve the physical disturbance to vegetated banks or the removal of vegetation through
chemical or mechanical means.
4. Butternut. Where the proposed Activity will involve the removal of a retainable Butternut.
Page 23 of 29
t Fish Zilld MUSS -0,15Cocipet -a , ion for S tc-specifir_ Direction fooC; i, JT f 1 iit c- i i y
u uiic; r p p c, sc "rainC A'-
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file I l"'*rjI'l SARA -vitnoksid FA
L!9,er to Pv3pallf-MI Letter of Ad -Oce
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fzitti 'j"i-A t oti,' C' li,,ai 1 1) ifiq ;111(); 1 1tindet FA
fStep 68 from Chart 1." or Authorization
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Page 24 of 29
PART F. SENSITIVE AREAS MAPS
Sensitive Areas Map for Fish Species at Risk
Sensitive Areas Map for Turtles Species at Risk
Page 25 of 29
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