ARCHIVED — Vol. 147, No. 14 — July 3, 2013

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Registration

SOR/2013-140 June 19, 2013

SPECIES AT RISK ACT

Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations

Whereas, pursuant to subsection 73(10) (see footnote a) of the Species at Risk Act (see footnote b), the Minister of the Environment has consulted with the Minister of Fisheries and Oceans;

Therefore, the Minister of the Environment, pursuant to subsections 73(10) (see footnote c) and (11) (see footnote d) of the Species at Risk Act(see footnote e), makes the annexed Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations.

Gatineau, June 17, 2013

PETER KENT
Minister of the Environment

PERMITS AUTHORIZING AN ACTIVITY AFFECTING LISTED WILDLIFE SPECIES REGULATIONS

INTERPRETATION

Definition of “Act”

1. In these Regulations, “Act” means the Species at Risk Act.

PERMIT APPLICATION

Application

2. (1) Any person applying for a permit under section 73 of the Act in relation to an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals must submit an application to the competent minister in a form and manner that is satisfactory to that minister.

Content — activity

(2) The application must include information demonstrating that any of paragraphs 73(2)(a) to (c) of the Act applies to the activity.

Content — additional information

(3) The application must also include information

  • (a) demonstrating that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
  • (b) demonstrating that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals; and
  • (c) describing any changes that the activity may cause to the listed wildlife species, its critical habitat or the residences of its individuals, the possible effects of those changes and the significance of those effects.

Notice of receipt

(4) The competent minister must notify the applicant in writing once the application has been received.

ISSUANCE OF PERMIT

90-day time limit

3. (1) Subject to subsections (2) and (3), the competent minister must either issue a permit or notify the applicant of the refusal to issue a permit within 90 days after the date of the notice indicating that the application has been received.

Application incomplete

(2) The time limit set out in subsection (1) is suspended if the application is incomplete. The suspension begins on the day on which the competent minister notifies the applicant in writing that the information provided is insufficient to allow the competent minister to issue or refuse to issue a permit and ends on the day on which the competent minister receives all of the missing information.

Non-application of time limit

(3) The time limit set out in subsection (1) is not applicable in the following circumstances:

  • (a) additional consultations are necessary, including consultations held under subsections 73(4) and (5) of the Act;
  • (b) an Act of Parliament other than the Act or a land claims agreement requires that a decision be made before the competent minister issues or refuses to issue a permit under section 73 of the Act;
  • (c) the terms and conditions of a permit previously issued to the applicant under section 73 of the Act have not been met;
  • (d) the applicant requests or agrees that the time limit is not to apply; or
  • (e) the activity described in the permit application is modified before the competent minister issues or refuses to issue a permit under section 73 of the Act.

COMING INTO FORCE

Registration

4. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

The Jobs, Growth and Long-term Prosperity Act, which received Royal Assent in June 2012, amended the Species at Risk Act (SARA) to, among other things, provide authority for the making of regulations respecting time limits for issuing permits under section 73 of SARA, or for refusing to do so, and specifying the circumstances under which those time limits do not apply. These amendments to SARA are key elements of the Government of Canada’s Responsible Resource Development Plan.

The Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations will contribute to the implementation of the Responsible Resource Development Plan. The latter promotes business confidence and strengthens environmental standards by, among other things, paving the way forlegally binding time limits and clearly defined information requirements for permitting processes. The Regulations are anticipated to contribute to consistency, predictability and transparency in the SARA permitting process by providing applicants with clear and measurable service standards.

Background

Section 73 of SARA provides the Minister of the Environment, the Minister responsible for the Parks Canada Agency and the Minister of Fisheries and Oceans (“the competent ministers”) with the authority to issue a permit to a person, authorizing the person to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals, provided the competent minister is of the opinion that

  • (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
  • (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or
  • (c) affecting the species is incidental to the carrying out of the activity.

The permit may be issued only if the competent minister is of the opinion that

  • (a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
  • (b) all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals; and
  • (c) the activity will not jeopardize the survival or recovery of the species.

Section 73 also authorizes the Minister of the Environment, after consultation with the other competent ministers, to make regulations respecting the issuance of permits.

Objectives

It is anticipated that the Regulations will

  • (1) contribute to a more consistent approach across federal statutes with respect to time limits for the issuance of permits;
  • (2) support consistency across Environment Canada, Fisheries and Oceans Canada and the Parks Canada Agency in issuing permits under section 73 of SARA; and
  • (3) help promote business confidence by ensuring timeliness and predictability with respect to the issuance of permits, while maintaining strong environmental standards.

Description

The Regulations outline the information required to be submitted when applying for a permit under section 73 of SARA, establish a time limit for the competent ministers to issue such permits, or to refuse to do so, and outline the circumstances under which that time limit does not apply.

The Regulations do not apply to permits referred to in section 74 of SARA, which allows permits issued under other Acts of Parliament to act as SARA permits provided that they are issued by one of the SARA competent ministers. In addition, the competent minister must be of the opinion that the requirements of subsections 73(2) to 73(6.1) of SARA are met and, after the permit is issued, the competent minister must comply with the requirements of subsection 73(7).

Permit application

The Regulations specify that an application must include information

  • (a) demonstrating that any of paragraphs 73(2)(a) to (c) of SARA applies to the activity;
  • (b) demonstrating that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
  • (c) demonstrating that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals; and
  • (d) describing any changes that the activity may cause to the listed wildlife species, its critical habitat or the residences of its individuals, the possible effects of those changes and the significance of those effects.

The Regulations also stipulate that the competent minister must notify the applicant in writing once their application has been received.

Issuance or refusal to issue permits

The Regulations stipulate that the competent minister must either issue the permit or notify the applicant of his or her refusal to do so within 90 days of the date of the notice to the applicant indicating that the application has been received.

Occasionally, the completion of an application can be an iterative process which can involve numerous interactions with the applicant in order to obtain all the information required for the competent minister to assess the application. Therefore, if the application is incomplete and the competent minister notifies the applicant, the 90-day time limit will be suspended from the day on which the notification is issued and started again once all the missing information has been received by the competent minister. Environment Canada intends to develop and publish tools to assist applicants in completing their applications and will ensure timely communication with applicants in regard to any missing information required for the assessment of their application.

The Regulations also specify the circumstances under which the time limit will not apply. The 90-day time limit will not apply in the following circumstances:

  • (a) where additional consultations are necessary, including consultations held under subsections 73(4) and (5) of SARA;
  • (b) where an Act of Parliament other than SARA or land claims agreement requires that a decision be made before the competent minister issues or refuses to issue a permit under section 73 of SARA;
  • (c) where the terms and conditions of a permit previously issued to the applicant under section 73 of SARA have not been met;
  • (d) where the applicant requests or agrees that the time limit is not to apply; or
  • (e) where the activity described in the permit application is modified before the competent minister issues or refuses to issue the permit under section 73 of SARA.

With respect to paragraph (b) listed above, section 7 of the Canadian Environmental Assessment Act, 2012 (CEAA 2012), for example, stipulates that a federal authority must not exercise any power or perform any duty or function conferred on it under any Act of Parliament other than CEAA 2012 that would permit a designated project to be carried out in whole or in part unless

  • (a) the Agency makes a decision under paragraph 10(b) that no environmental assessment of the designated project is required and posts that decision on the Web site of the Canadian Environmental Assessment Agency; or
  • (b) the decision statement with respect to the designated project that is issued under subsection 31(3) or section 54 to the proponent of the designated project indicates that the designated project is not likely to cause significant adverse environmental effects or that the significant adverse environmental effects that it is likely to cause are justified under the circumstances.

Another example is section 67 of CEAA 2012 which stipulates that an authority must not carry out a project on federal lands, or exercise any power or perform any duty or function conferred on it under any Act of Parliament other than CEAA 2012 that would permit a project to be carried out, in whole or in part, on federal lands, unless

  • (a) the authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or
  • (b) the authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides that those effects are justified in the circumstances under subsection 69(3).

Therefore, the 90-day time limit does not apply if an environmental assessment is required under an Act of Parliament, until a decision or decision statement is published, as per section 7 of CEAA 2012 or a determination is made under section 67. However, where possible and/or appropriate, the process of assessing a permit application under section 73 of SARA may be undertaken in parallel with an environmental assessment or other process under federal legislation, and a decision on a SARA permit application could be rendered immediately following or shortly following the environmental assessment decision or other decision.

Although not specified in the Regulations, it is the intent of the competent ministers to notify applicants in these circumstances that the 90-day time limit will not apply. This will be further elaborated in the interdepartmental SARA Permitting Policy currently being drafted. It is anticipated that the policy will be posted on the Species at Risk Public Registry in the fall of this year for public comment.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these Regulations, as there is no change in administrative costs to business. The information requirements identified in the Regulations are consistent with the current information requirements in order to ensure the requirements of section 73 of SARA are met. Identifying the information requirements in the Regulations is intended to ensure accessibility, transparency, and a measure of further clarity beyond what is outlined in SARA.

Small business lens

The small business lens does not apply to these Regulations, as there are no new costs on small business.

Consultation

Environment Canada published the proposed Regulations in the Canada Gazette, Part I, on February 16, 2013, for a 30-day public consultation period. A total of nine submissions were received from stakeholders, offering substantive feedback on the proposed Regulations, as well as a number of questions of clarification, neither in support nor in opposition.

Of the nine submissions received offering substantive comments, seven were received from industry stakeholders (two organizations submitted jointly), and three from environmental nongovernmental organizations.

The feedback received reflected general support for the initiative, but included a number of recommendations for modifications, as outlined below.

Information requirements

Four respondents recommended that further clarification and/or elaboration of the information requirements be included in the Regulations, including interpretations of the pre-conditions outlined in subsection 73(3) of SARA. The Regulations offer a measure of added clarity beyond what is outlined in the Act, and it is the intention of officials of Environment Canada, Fisheries and Oceans Canada and the Parks Canada Agency to elaborate further on the information requirements in the interdepartmental SARA Permitting Policy currently being drafted. It is anticipated that the draft policy will be posted on the Species at Risk Public Registry for consultation in the fall of this year. This will allow for the opportunity to gain experience through the implementation of the policy, prior to determining how the information requirements might be further addressed through the Regulations in the future.

Ninety-day time limit

With respect to the single 90-day time limit proposed, three respondents recommended taking a tiered approach which could allow for quicker assessment for simple projects and longer for more complex and/or higher risk projects. One stakeholder recommended shortening the single timeline to 30 days while another recommended having separate completeness review and assessment phases. While these approaches were explored and assessed, it was deemed that the vast majority of applications could be effectively reviewed and assessed within the single 90-day time limit proposed. While a maximum of 90 days are available to render a decision, Environment Canada, Fisheries and Oceans Canada and the Parks Canada Agency will make efforts to ensure that simple, routine and low risk applications receive a decision in less time. This will be further elaborated in the Permitting Policy.

Exemptions to the 90-day time limit

Recommendations were also received relating to the proposed list of circumstances where the 90-day time limit would not apply. Two stakeholders commented that the list was too broad, but did not offer specific recommendations regarding which circumstances they would recommend for exclusion. One stakeholder recommended removing the circumstance stating “where the applicant requests or agrees that the time limit not apply.” Another stakeholder recommended making three additions to the list including where the complexity of the project requires additional time to assess, develop mitigation and alternatives; where additional research and/or monitoring of species and/or impacts is required; and whereother legitimate reasons make delays unavoidable. These recommendations were carefully considered, however, it was reasoned that the circumstances outlined in the proposed Regulations were both vital and sufficient to ensure the effective assessment of applications and that the Government of Canada’s legal obligations are met.

One stakeholder also recommended that the 90-day time limit be extended rather than not apply in these circumstances. However, given that in these few limited circumstances it would not be possible to predict the exact extension of the 90-day time limit that might be required, it was deemed necessary to make the time limit non-applicable. In these few extenuating circumstances, the competent minister will strive to render a decision in the shortest time possible while continuing to ensure adequate time for effective review and that the Government’s legal obligations are met.

Permit renewals and permit duration

Two stakeholders recommended that permit renewals be addressed in the Regulations and three stakeholders recommended that permit duration be addressed. It is the intention that these considerations will be addressed in the interdepartmental SARA Permitting Policy currently being drafted. As indicated above, it is currently anticipated that the draft policy will be posted on the Species at Risk Public Registry for consultation in the fall of this year. Given that the changes to SARA relating to permit duration and renewals are still very new, addressing these issues at this time through policy rather than regulations will provide for opportunity to gain valuable experience, prior to determining how these issues might be addressed through the Regulations in the future.

Broad SARA and/or permitting considerations

A number of comments were received on matters outside of the scope of the proposed Regulations. These related to amendments to SARA, a consideration of alternative compliance mechanisms, enhanced coordination with other federal and provincial regulatory regimes, a clarification of permit requirements, establishing a permitting regime for incidental take under the Migratory Birds Regulations, posting SARA permit applications for public comment and expanding the Environment Canada SARA e-permitting system to Fisheries and Oceans Canada, among other issues. These comments were noted and will be explored further within the context of the development of the SARA Permitting Policy and other initiatives.

Rationale

The Regulations are anticipated to contribute to a more consistent approach across all federal statutes with respect to time limits for the issuance of permits by establishing legally binding time limits for the issuance of SARA section 73 permits. It is anticipated to help ensure both the timely issuance of permits as well as the effective scientific analysis of applications. Therefore, the Regulations are expected to contribute to achieving the goals of the Responsible Resource Development Plan by creating predictability and process certainty, while maintaining strong environmental standards, and consequently helping to promote business confidence and capital investment.

Anticipated benefits and costs
Business

By clearly identifying the information required when applying for a permit under section 73 of SARA, establishing time limits for issuing permits and specifying the circumstances under which those time limits will not apply, the Regulations are anticipated to yield modest benefits to businesses, as they will afford increased certainty, predictability and timeliness to the permitting process under section 73 of SARA.

Government

There are no additional costs anticipated to Government to implement the Regulations in the immediate future. However, as more species are listed, critical habitat is identified, and more requests for permits are received related to new resource projects, there may be increases in costs to the Government to continue to meet the time limits. Should a large increase in the volume and complexity of permit applications occur, additional resources may be required.

Implementation, enforcement and service standards

A compliance promotion plan has been developed with the goal of assisting applicants in submitting complete applications to help ensure the time limits are consistently met. The information for applicants currently posted on the SARA Registry has been updated to include information on the Regulations. In addition, a new tracking mechanism will be implemented to help ensure that inquiries from the public in regard to permits and permit applications are responded to in a timely manner. Internal activities in support of implementation are also being implemented. These include enhancements to the SARA e-permitting system relating to tracking, monitoring and notification, for both applicants and regional permitting offices.

A strategic environmental assessment conducted for these Regulations concluded that neither environmental effects nor impacts on the Federal Sustainable Development Strategy (FSDS) 2010–2013 goals and targets are anticipated from the implementation of the Regulations. Maintaining high environmental standards through the permitting process will continue to support the FSDS 2010–2013 — Goal 5, “Wildlife Conservation — Maintain or restore populations of wildlife to healthy levels” and target 5.1, “Terrestrial and Aquatic Wildlife Conservation — Population trend (when available) at the time of reassessment is consistent with the recovery strategy for 100% of listed species at risk (for which recovery has been deemed feasible) by 2020.” Modest benefits to businesses are anticipated as it will help to contribute to achieving the goals of the Responsible Resource Development Plan by creating predictability and process certainty, and consequently helping to promote business confidence and capital investment.

Environment Canada will report publicly on the Department’s Web site (www.ec.gc.ca) on its progress towards meeting the time limits for issuing permits under section 73 of SARA established in the Regulations. Environment Canada, the Parks Canada Agency and Fisheries and Oceans Canada will also communicate information related to the issuance of SARA permits through the SARA annual reports.

Contact

Caroline Ladanowski
Director
Wildlife Program Support Division
Canadian Wildlife Service
Environment Canada
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Telephone: 819-994-3432
Fax: 819-994-3388
Email: Caroline.Ladanowski@ec.gc.ca