Vol. 147, No. 7 -- February 16, 2013

Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations

Statutory authority

Species at Risk Act

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Background

Section 73 of the Species at Risk Act (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”) 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.

2. Issues and objectives

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

The proposed 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 for legally binding time limits and clearly defined information requirements for permitting processes. The proposed Regulations are anticipated to contribute to consistency, predictability and transparency in the SARA permitting process by providing applicants with clear and measurable service standards.

It is anticipated that the proposed Regulations will

  • (a) contribute to a more consistent approach across federal statutes with respect to time limits for the issuance of permits;

  • (b) ensure consistency across Environment Canada, Fisheries and Oceans Canada and the Parks Canada Agency in issuing permits under section 73 of SARA; and

  • (c) help promote business confidence by ensuring timeliness and predictability with respect to the issuance of permits, while maintaining strong environmental standards.

3. Description

The proposed Regulations outline the information required when applying for a permit under section 73 of SARA, establish time limits for the competent ministers to issue such permits, or to refuse to do so, and outline the circumstances under which those time limits would not apply.

The proposed 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) are met and that, after the permits are issued, the competent minister complies with the requirements of subsection 73(7).

Permit application

The proposed Regulations specify that an application must include information

  • (a) demonstrating that any of paragraphs 73(2)(a) to (c) of the Act 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 proposed 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 proposed 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. As such, 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 (please see section 8, “Implementation, enforcement and service standards” of this document) and will ensure timely communication with applicants in regards to any missing information required for the assessment of their application.

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

  • (a) where additional consultations are required, including consultations held under subsections 73(4) and (5) of the Act;

  • (b) where an Act of Parliament other than SARA or land claims agreement requires 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 the Act have not been met;

  • (d) where the applicant requests or agrees that the time limit not 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 the Act.

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 Internet 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.

Moreover, section 67 of CEAA 2012 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).

As such, the 90-day time limit may 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.

4. Consultation

Consultations with stakeholders on the proposed Regulations have not yet been undertaken as the proposed Regulations are anticipated to have a low impact and does not impose any new costs or requirements on permit applicants.

Environment Canada is now seeking input and feedback on the proposed Regulations, as described above. Interested Canadians are invited to submit comments to Environment Canada within 30 days after publication of the proposed Regulations. All comments must cite the Canada Gazette, Part Ⅰ, the date of publication, and be sent to the attention of the contact listed under section 9, “Contact”.

5. “One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business. The information requirements identified in the proposed 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 proposed Regulations is intended to ensure accessibility, clarity and transparency.

6. Small business lens

The small business lens does not apply to this proposal, as there are no new costs to small business.

7. Rationale

The proposed 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 permits under SARA, section 73. It is anticipated that the Regulations will help ensure both the timely issuance of permits as well as the effective scientific analysis of applications. The proposed Regulations are therefore 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 may not apply, the proposed Regulations are anticipated to yield modest benefits to businesses, as the Regulations 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 proposed 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.

8. 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 proposed time limits are consistently met. The information for applicants currently posted on the SARA registry will be updated to include information on the proposed 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 planned. 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 this proposal concluded that neither environmental effect nor impact on the goals and targets of the Federal Sustainable Development Strategy (FSDS) 2010–2013 are anticipated from the implementation of the proposed Regulations. Maintaining high environmental standards through the permitting process will continue to support 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 the Regulations 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 proposed 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.

9. 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

PROPOSED REGULATORY TEXT

Notice is given that the Minister of the Environment, pursuant to subsections 73(10) (see footnote a) and (11) (see footnote b) of the Species at Risk Act (see footnote c), proposes to make the annexed Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be sent to Caroline Ladanowski, Director, Wildlife Program Support Division, Canadian Wildlife Service, Environment Canada, Gatineau, Quebec K1A 0H3, fax: 819-994-3388, email: caroline. ladanowski@ec.gc.ca.

Gatineau, February 1, 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

Ninety-day time limit

3. (1) Subject to subsections (2) and (3), the competent minister must either issue the permit or notify the applicant of the refusal to issue the 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 all the missing information is received by the competent minister.

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 required, 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 not apply; or

  • (e) the activity described in the permit application is modified before the competent minister issues or refuses to issue the 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.

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