Migratory bird rule update too onerous, industry group says

NEW PROTECTIONS FOR PILEATED WOODPECKER CAUSING PUSHBACK

Abroad coalition of industry groups has been trying to convince federal Environment Minister Steven Guilbeault that strict new rules supposedly protecting a particular woodpecker provide no meaningful benefit for the bird, but will frustrate economic development in diverse sectors ranging from forestry to renewable energy, while onerously burdening business owners and regulators.

However, their concerns have apparently fallen on deaf ears at the environment minister's office.

A consortium of seven industry associations submitted a letter in March to Guilbeault requesting he reconsider plans to include pileated woodpeckers to new stringent amendments meant to modernize Canada's Migratory Birds Regulations (MBR). They say the changes are being made without consultation or even basic scientific evidence, as the bird is already well protected and its populations are healthy.

“Even without the (new) protections ... Pileated Woodpeckers and their active nests will still be protected from industrial activity,” reads the letter.

It was signed by representatives of Waterpower Canada, Electricity Canada, the Canadian Federation of Agriculture, the Forest Products Association of Canada, the Canadian Federation of Forest Owners, the Canadian Association of Petroleum Producers and the Canadian Cattlemen's Association.

While offering their support to the other changes meant to modernize the MBCA, the group is concerned over the redesignation of the pileated woodpecker as a “schedule one” bird, a “conservation value” species under the rules.

“Failure to remove the Pileated Woodpecker from Schedule 1 will not only severely impact activities that are important to Canadians' quality of life today, but that are necessary to meet Canada's commitments on GHG mitigation and transitioning to a net-zero emissions economy,” they wrote.

Under the old system, the nests of pileated woodpeckers were protected by federal regulation if they had birds or eggs living in them. The new rules will mean that if a pileated woodpecker abandons its nest in an area where there is industrial activity, the empty nest must be protected and monitored for 36 months, and remain empty throughout before it can be disturbed. If any other migratory bird of any species reoccupies the nest before the three-year waiting period is up, the clock resets to zero, and the nest must be protected and monitored for a new 36- month waiting period once it is abandoned again.

That could create thorny problems of its own, said Larry Thomas, environment manager at the Canadian Cattlemen's Association.

“If you find on your property a pileated woodpecker nest, and that tree (that it's in) is dead or creating a problem, or you need to build a fence or something, you can't touch it for three years,” he said.

Meanwhile, populations of the animal appear to be stable. Best known as the bird cartoonist Walter Lantz chose to base his character Woody Woodpecker on, the pileated woodpecker can be found in nearly every Canadian province, as well as along the American Atlantic, Pacific and Gulf coasts.

While deforestation caused woodpecker populations to fall throughout the 18th and 19th centuries, conservation efforts and initiatives to reduce urban bird hazards successfully restored their numbers, with pileated woodpeckers listed in the “least concern” category on the International Union for Conservation of Nature (IUCN) Red List of Threatened Species.

“There really isn't a lot of logic behind this decision,” said Thomas. “Populations are extremely good across its entire range in North America.”

The new rules also compel landowners and industry to monitor nesting sites, a costly and possibly perilous task for a bird that routinely nests in tree cavities over 15 metres from the ground.

“This is inconsistent with other schedule one species' nests that can be monitored safely and easily from a distance,” reads the letter.

Violations of the Migratory Birds Regulations can be subject to fines or even imprisonment.

The latest changes, the letter states, would result in “significant negative impact” on both Canadian industry and the national economy.

The coalition's appeals to the ministry were evidently unsuccessful: the amendments were approved and published in Canada Gazette last Wednesday.

For the electricity sector, the letter states, the threeyear monitoring period will hinder new renewable energy projects and stymie the replacement, repair or upgrade of existing transmission lines. This would work against Canada's goals to achieve net- zero GHG emissions “disproportionate to any additional conservation benefit for migratory birds,” the letter says. “Pileated woodpeckers often nest in utility poles and in trees along transmission and distribution rights-of-way.”

The letter's authors also allege the decision to include the pileated woodpecker wasn't transparent and lacked both industry consultation and the scientific evidence to support it.

The environment minister's office did not respond to a request for comment for this story.

Thomas said anybody who works in the bush — be they utility companies, forestry, oil and gas or even private landowners — will be negatively impacted by the changes.

There are also concerns that while the MBR prohibits damage to nests, there are no compliance mechanisms, such as permits, regulations or codes and standards, that provide a framework for accidental or incidental harm.

“Without workable compliance mechanisms, the result will be unmanageable compliance burden for the sector and for the regulator, with negligible benefit for migratory birds,” the industry group wrote.

The coalition was supportive of keeping existing protections for the woodpecker that protects nests with birds still living in them.

“The proposed amended MBRS will still protect nests from harm while they have birds and/or viable eggs in them, and industry will continue to be diligent in ensuring these protections are adhered to, as they do for all migratory birds protected under the MBCA (Migratory Birds Convention Act),” the group wrote.