Damage to the use of the land: Pileated Woodpecker nesting cavities

Official title: Damage to the Use of the Land within Section 71 of the Migratory Birds Regulations (specifically for Pileated Woodpecker nesting cavities)

1. Purpose

The purpose of this document is to identify the criteria for issuing s.71 permits to relocate unoccupied Pileated Woodpecker nesting cavities prior to the 36-month waiting period as outlined in Schedule 1 of the Migratory Bird Regulations (MBR). No permit will be issued for the relocation of occupied Pileated Woodpecker cavities during the breeding season.

For the purposes of this document, to be considered unoccupied, the Pileated Woodpecker nesting cavity must not have been used during the previous breeding season (for more information see Section 5). In virtually all cases, proponents will need to have completed a “Nest Notification” using Environment Climate Change Canada’s Abandoned Nest Registry system.

2. Introduction

Section 71 of the MBR states that “The Minister may issue a relocation permit only if the Minister has reason to believe that

• the relocation of birds, eggs and nests is necessary to prevent or reduce
  • the danger that migratory birds are causing or are likely to cause to human health or to public safety in one or more areas, or
  • the damage that migratory birds are causing or are likely to cause to the use of the land or to agricultural interests; and
• other means are not sufficient to prevent or reduce the danger or damage

3. Definition of damage to use of the land

Canadian Wildlife Service (CWS) defines damage to the use of the land has been for migratory birds (including unoccupied Pileated Woodpecker nesting cavities) as follows: “Any impact migratory birds, eggs or nests may have on the ability of a person who owns, leases, or who holds an easement, servitude, right-of-way, licence of occupation, or holds rights under provincial laws to use land for public utilities or infrastructure to access, make use of, or to conduct business on said land  including any facilities or equipment stored on or situated there. ”

4. Criteria for permit issuance using damage to the use of the land

The focus of the document is the relocation of unoccupied Pileated Woodpecker nesting cavities prior to the 36-month waiting period as outlined in Schedule 1 of the MBR. Section 71 in the regulations may be used to issue permits to mitigate or eliminate the impacts of birds nesting in locations that will cause the permit applicant undue demonstrable hardship by preventing access to, or use of, their land. It would be difficult to state specifically what “undue demonstrable hardship” means, but the permit applicant would have to attest to this being the case

In order for a permit to be considered for the relocation of an unoccupied Pileated Woodpecker nesting cavity using Section 71, the following conditions must be met:

1. Location and number

The location and number of unoccupied Pileated Woodpecker cavities must be known in advance of permit application:

Rationale: This will allow CWS staff to assess the situation and determine the best course of action based on the number (for Pileated Woodpecker, the maximum number of unoccupied nesting cavities must not be more than 10, where the location of each is known, for any one permit, so as to ensure that the permit will not be used for broad-scale industrial activities in the landscape) and location of unoccupied nesting cavities. At present, the Migratory Birds Regulations do not allow for the incidental take of migratory birds. To ensure that any authorizations to remove unoccupied Pileated Woodpecker nesting cavities prior to the 36-month waiting period that are causing “damage… to the use of the land”, do not circumvent the intent of Schedule I of the MBR, CWS requires that such authorizations be limited to a specific number of cavities whose specific location(s) is (are) known to the proponent. This removes the element of inadvertent harming, killing, disturbance or destruction of migratory birds, nests and eggs.

2. Evidence

For Pileated Woodpecker unoccupied nesting cavities, each cavity must be identified in advance of permit application with supporting evidence and a Nest Notification submitted to ECCC’s Abandoned Nest Registry System. No permit will be issued for feeding cavities since they are not protected under the MBR.

Rationale: To avoid situations where proponents may seek to obtain permits for any hole in a tree made by woodpeckers (i.e., intentionally or unintentionally overloading the permitting system), proponents will need to provide justification and supporting evidence to demonstrate that the unoccupied nesting cavity in question is that of a Pileated Woodpecker. This would include clear photographs showing the cavity and other documentation/evidence that would support that the cavity was used for nesting by a Pileated Woodpecker. The onus will be on the applicant to provide clear and convincing evidence of a nesting cavity.

3. Due diligence

Appropriate due diligence and measures have been taken by the proponent (monitoring in advance of project siting or operational activities).

Rationale: In general, to be considered unoccupied, the Pileated Woodpecker nesting cavity must not have been used during the previous breeding season. This assumes that some sort of surveys have been conducted. Requiring the proponent to conduct Pileated Woodpecker nesting cavity surveys in advance of project siting or operational activities puts the onus on proponents to demonstrate that they have done their due diligence so that they can, to the extent possible, avoid unoccupied Pileated Woodpecker nesting cavities (much like many proponents need to do for raptor nests, which all under provincial jurisdiction). As with any nest survey, nests can and will be missed. Proponents would need to clearly articulate why the project footprint cannot be relocated or why the operational activities cannot wait for the end of the 36 month waiting period to avoid the unoccupied Pileated Woodpecker nesting cavity.

In all cases, issuance of any permit under s.71 Relocation Permit, would be considered as a last resort and only where avoidance options (leaving the unoccupied Pileated Woodpecker nesting cavity alone until the 36 month waiting period has passed) is not feasible.

On the migratory bird Relocation Permit application form, the applicant must describe in detail the circumstances surrounding their claim that the unoccupied Pileated Woodpecker nesting cavity in question is causing damage to the use of land. The applicant must explain specifically why the unoccupied Pileated Woodpecker nesting cavity cannot remain in place until the 36-month waiting period has passed. The applicant must attest to the seriousness and legitimacy of the damage to the use of the land caused by the unoccupied Pileated Woodpecker nesting cavity when signing the application form.

4. Mitigation

Relocating an unoccupied Pileated Woodpecker nesting cavity prior to the 36-month waiting period will require mitigation measures, which will be included as a condition of the permit.

Rationale: Pileated Woodpecker nesting cavities were added to Schedule 1 of the MBR 2022 given that they are reused by the woodpeckers themselves, as well as dozens of other secondary cavity nesters, including Species at Risk. The intent of using damage to use of the land is not to circumvent the intent of Schedule I of the Regulations. Therefore, clear and consistent conditions will be applied to permits as mitigation measures when unoccupied Pileated Woodpecker nesting cavities are relocated prior to the 36-month waiting period. The primary condition that will be added to the permit is that the applicant must monitor the cavity for reuse by Pileated Woodpecker or any other migratory bird species. This will help inform future policy decisions about the use of Relocation Permits for unoccupied Pileated Woodpecker nesting cavities.

5. Relocation

Relocation of the unoccupied Pileated Woodpecker nesting cavity must maintain the structural integrity of the cavity itself.

Rationale: The unoccupied Pileated Woodpecker nesting cavity must be relocated in such a way that it can be used by Pileated Woodpeckers or other migratory birds. In some cases, it may be possible to preserve the section of the tree containing the cavity by cutting above and below the cavity, and then capping both ends to prevent rapid deterioration of that section. The section of tree containing the Pileated Woodpecker nesting cavity could then be fastened to another nearby tree outside of the project footprint. In other cases, applicants may be able to cut the tree at the base and relocate the entire tree outside of the footprint. A mechanical auger would be needed to dig a hole in which the relocated tree base would be placed.