Canada Gazette, Part I, Volume 152, Number 52: Order Amending Schedule 1 to the Species at Risk Act

December 29, 2018

Statutory authority
Species at Risk Act

Sponsoring department
Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Biodiversity is rapidly declining worldwide as species become extinct.footnote 1 Today's extinction rate is estimated to be between 1 000 and 10 000 times higher than the natural rate.footnote 2 Biodiversity is positively related to ecosystem productivity, health and resiliencyfootnote 3 (i.e. the ability of an ecosystem to respond to changes or disturbances). Given the interdependency of species, a loss of biodiversity can lead to decreases in ecosystem function and services (e.g. natural processes such as pest control, pollination, coastal wave attenuation, temperature regulation and carbon fixing). These services are important to the health of Canadians, and also have important ties to Canada's economy. Small changes within an ecosystem resulting in the loss of individuals and species can therefore result in adverse, irreversible and broad-ranging effects.

The Committee on the Status of Endangered Wildlife in Canada (COSEWIC), a non-government, independent body of scientific experts, has assessed the following nine migratory bird species as being at risk in Canada:

  1. Black Swift
  2. Cassin's Auklet
  3. Evening Grosbeak
  4. Lark Bunting
  5. Louisiana Waterthrush
  6. McCown's Longspur
  7. Pink-footed Shearwater
  8. Red Crossbill percna subspecies
  9. Red-necked Phalarope

Pursuant to section 27 of the Species at Risk Act ("SARA" or the "Act"), the Governor in Councilfootnote 4 is proposing the Order Amending Schedule 1 to the Species at Risk Act (the proposed Order) to add five species to, and reclassify four species in, Schedule 1 of the Act.

Background

Canada's natural heritage is an integral part of its national identity and history. Wildlife is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, subsistence, medical, ecological and scientific reasons. Canadian wildlife species and ecosystems are also part of the world's heritage.footnote 5 Part of the mandate of the Department of the Environment ("the Department") is to preserve and enhance the quality of the natural environment, including flora and fauna. Although the responsibility for the conservation of wildlife in Canada is shared among governments, the Department plays a leadership role as federal regulator in order to prevent species from becoming extinctfootnote 6 or extirpatedfootnote 7 from Canada. The Parks Canada Agency contributes to the protection and conservation of these species within its network of protected heritage places,footnote 8 including national parks and national marine conservation areas.

The primary federal legislative mechanism for delivering on this responsibility is SARA. The purposes of SARA are to prevent wildlife species from becoming extirpated from Canada or extinct; to provide for recovery of wildlife species that are listed as extirpated, endangered or threatened; and to manage species of special concern to prevent them from becoming endangered or threatened. At the time of the proclamation of SARA in 2003, the official list of wildlife species at risk (Schedule 1) included 233 species. Since then, on the recommendation of the Minister of the Environment, the Governor in Council has amended the list on a number of occasions to add, remove or reclassify species. As of July 2018, there are 580 species listed on Schedule 1 of SARA, which classifies those species as being extirpated, endangered, threatened, or of special concern.

With the proclamation of SARA in 2003, the Act established COSEWIC as the body responsible for providing the Minister of the Environment with assessments of the status of Canadian wildlife species that are potentially at risk of disappearing from Canada. The assessments are carried out in accordance with section 15 of SARA, which, among other provisions, requires COSEWIC to determine the status of species it considers and identify existing and potential threats. COSEWIC meets twice annually to review information collected on wildlife species and assigns each wildlife species to one of seven categories: extinct, extirpated, endangered, threatened, special concern, data deficient, or not at risk. Of note, COSEWIC must review the classification of each species at risk at least once every 10 years, or at any time if it has reason to believe that the status of the species has changed significantly.footnote 9

After COSEWIC provides its assessments of species at risk to the Minister of the Environment, the Minister has 90 days to post a response statement on the Species at Risk Public Registry (SAR Public Registry) indicating how the Minister intends to respond to the assessment and related anticipated timelines. These statements outline the extent of consultations on proposed changes to Schedule 1 of SARA.

Subsequent to the consultations and analysis being carried out by Department officials, the Governor in Council formally acknowledges its receipt of the COSEWIC assessments. The formal acknowledgement then triggers a regulatory process through a proposed Order whereby the Governor in Council may, within nine months of the receipt, on the recommendation of the Minister

If the Governor in Council does not make a decision within nine months of its formal receipt of the COSEWIC assessments, SARA states that the Minister shall amend Schedule 1 according to those assessments. This timeline does not apply to reclassifications or removal of a listed species from Schedule 1 of the Act.

Reclassification allows Schedule 1 of SARA to be consistent with the assessments provided by COSEWIC, thus allowing for better decision-making regarding the species in terms of its conservation prioritization. Species can be proposed for up-listing when populations have declined since their last assessment. When species populations recover, they can be proposed for down-listing to ensure that the species are protected according to the purposes of SARA, while minimizing impacts on stakeholders and resources.

Upon listing, wildlife species benefit from various levels of protection, which vary depending on their status. All species in this proposed Order are migratory birds protected under the Migratory Birds Convention Act, 1994 (MBCA). The MBCA and its regulations protect migratory birds, their nests and their eggs against possessing, buying, selling, exchanging, giving or making it the subject of a commercial transaction, wherever they are found in Canada, regardless of land ownership, and including surrounding ocean waters. The MBCA and its regulations also prohibit depositing substances harmful to birds in waters or areas frequented by them. Additionally, the Migratory Birds Regulations (MBR) prohibit hunting migratory birdsfootnote 11 as well as disturbing, destroying or taking a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird. The protections under the MBCA remain in effect when a migratory bird is listed in Schedule 1 of SARA. The protections under SARA for individuals and residences are similar, albeit slightly broader, to existing protections for birds, nests and nest shelters under the MBR and the MBCA. Table 1 below summarizes the various protections afforded following listing to Schedule 1 of SARA.

Table 1: Summary of protections offered to migratory  birds protected by the MBCA and their residences immediately upon their addition to Schedule 1 of SARA

Status

General Prohibitions

Protection of Individuals

Residence Protection

Special concern

General prohibitions under section 32 of SARA do not apply.

However, individuals and their eggs receive protection everywhere in Canada under the MBCA.

Residence protection under section 33 of SARA does not apply.

However, nests are protected everywhere in Canada under the MBCA.

Threatened, endangeredfootnote 12 and extirpated

Section 32 of SARA provides protection for individuals of the species everywhere they are found in Canada against being killed, harmed, harassed, captured or taken.

Section 32 of SARA also prohibits the possession, collection, buying, selling or trading of an individual of the species or any part or derivative of this individual.

Under the MBCA, individuals and their eggs receive protection everywhere they are found in Canada.

Section 33 of SARA prohibits the damage or destruction of the residence of one or more individuals of a threatened or endangered species everywhere they are found in Canada.

The residence of extirpated species is only protected if a recovery strategy recommends reintroduction into the wild.

Under the MBCA, nests and nest shelters are protected everywhere they are found in Canada.

On non-federal lands, listed species that are not an aquatic species or a migratory bird protected by the MBCA can only be protected under the general prohibitions of SARA by an order made by the Governor in Council, on the recommendation of the Minister of the Environment.footnote 13 The Minister of the Environment must recommend that such an order be made if the Minister is of the opinion that the laws of the province or territory do not effectively protect the species or the residences of its individuals.

I — Recovery planning

Listing a species as endangered, threatened or extirpated triggers mandatory recovery planning, by the competent minister footnote 14, in order to address threats to the survival or recovery of the listed species.

SARA states that a proposed recovery strategy must be posted on the SAR Public Registry in accordance with the following timelines:

In preparing the recovery strategy, the competent minister must determine whether the recovery of the listed wildlife species is technically and biologically feasible. If it is not feasible, the recovery strategy must include a description of the species' needs and, to the extent possible, an identification of its critical habitat, and the reasons why its recovery is not feasible.

For wildlife species for which there has been a determination that recovery is feasible, recovery strategies include

Recovery strategies must be prepared in cooperation with

Recovery strategies must also be prepared in consultation with landowners (including provinces and territories) or other persons that the competent minister considers to be directly affected by the strategy.

The competent minister must prepare one or more action plans based on the recovery strategy. Action plans are also prepared in cooperation and consultation with the above-mentioned individuals or organizations. SARA does not mandate timelines for their preparation or implementation; rather, these are set out in the recovery strategy. Action plans must include

II — Protection of critical habitat

Requirements under SARA for the protection of critical habitat depends on whether the species are aquatic, migratory birds protected under the MBCA, or other species, as well as whether these species are found on federal lands, in the exclusive economic zone, on the continental shelf of Canada or elsewhere in Canada. For migratory birds that are protected under the MBCA, their nests and nest shelters are protected against destruction throughout Canada.

When critical habitat or portions of critical habitat have been identified on federal lands, in the exclusive economic zone of Canada or on the continental shelf of Canada, SARA requires that the critical habitat be legally protected within 180 days of its identification in the recovery strategy or action plan. Protection can be achieved through provisions in or measures under SARA or any other Act of Parliament, including conservation agreements under section 11 of the Act.

If critical habitat is located in a migratory bird sanctuary under the MBCA, in a national park included in Schedule 1 of the Canada National Parks Act, in the Rouge National Urban Park established by the Rouge National Urban Park Act, in a marine protected area under the Oceans Act, or in a national wildlife area under the Canada Wildlife Act, the competent minister must publish a description of that critical habitat in the Canada Gazette within 90 days of the date that the critical habitat was identified in a final recovery strategy or action plan. Subsection 58(1) of SARA, which prohibits the destruction of critical habitat, applies to the critical habitat described in the Canada Gazette 90 days after its publication.

In the case of critical habitat identified on federal land but not found in the protected areas listed above, the competent minister must, within 180 days following the identification of this habitat in a final posted recovery strategy or action plan, either make a ministerial order under subsection 58(5) of SARA to apply subsection 58(1) of SARA, prohibiting the destruction of this critical habitat, or publish on the SAR Public Registry a statement explaining how the critical habitat (or portions of it) is protected under another Act of Parliament, including conservation agreements under section 11 of the Act.

If the critical habitat of a migratory bird species protected by the MBCA is located outside federal lands, the exclusive economic zone, the continental shelf of Canada or a migratory bird sanctuary under the MBCA, the critical habitat will be protected only once the Governor in Council has made an order to that effect, following recommendation from the competent minister.

For portions of critical habitat on non-federal lands, SARA contemplates the protection of the critical habitat by other governments (e.g. provinces and territories). In the event that critical habitat is not protected in these areas, the Governor in Council may, by order, apply the SARA prohibition against destruction of that critical habitat. In cases where the Minister of the Environment is of the opinion that critical habitat on non-federal lands is not effectively protected by the laws of a province or territory, by another measure under SARA (including agreements under section 11) or through any other federal legislation, the Minister must recommend an order to the Governor in Council. Before making the recommendation, the Minister must consult with the appropriate provincial or territorial minister. In all cases, the Governor in Council makes the final decision whether to proceed with the order to protect the critical habitat in question.footnote 15

Where the critical habitat of a migratory bird protected by the MBCA is identified in a recovery document and an order or statement explaining how the critical habitat is protected is published, the SARA prohibition against the destruction of critical habitat is broader than the protections offered under the MBCA to individuals, their eggs, nests and nest shelters.

III — SARA permits

A person intending to engage in an activity that is prohibited under SARA and that affects a listed species, any part of its critical habitat or the residences of its individuals may apply to the competent minister for a permit under section 73 of the Act. A permit may be issued if the Minister is of the opinion that

In addition, the permit may only be issued if the competent minister is of the opinion that the following pre-conditions under subsection 73(3) of SARA are met:

Section 74 of SARA allows for a competent minister to issue permits under another Act of Parliament (e.g. the Canada National Parks Act or the MBCA) to engage in an activity that affects a listed wildlife species, any part of its critical habitat or the residences of its individuals, and have the same effect as those issued under subsection 73(1) of SARA, if the conditions set out in subsections 73(2) to 73(6.1) are met. This is meant to reduce the need for multiple authorizations.

For migratory birds protected by the MBCA and SARA, a SARA-compliant MBCA permit may be issued to authorize an activity affecting a listed migratory bird, instead of two separate permits being issued. In order for a single permit to be issued, all conditions set out in paragraphs 73(2) to 73(6.1) of SARA must be met. The permitting option for the particular activity must also be available under the MBCA.

Permits under SARA can be issued if an activity affects the residence of a migratory bird if that residence is not a nest or a nest shelter protected under the MBCA. Permits can also be issued under SARA for activities affecting the protected critical habitat of a listed migratory bird, because critical habitat is not protected under the MBCA.

IV — Management of special concern species

The addition of a species of special concern to Schedule 1 of SARA serves as an early indication that the species requires attention. Triggering the development of a management plan at this stage supports the proactive management of the species, maximizes the probability of success, and could help avoid higher-cost measures in the future. SARA does not require that critical habitat be identified for species of special concern.

The management plan includes conservation measures deemed appropriate to preserve the wildlife species and avoid a decline of its populations. It is developed in cooperation with the appropriate provincial and territorial minister, other federal government ministers, wildlife management boards, Aboriginal organizations and in consultation with any other affected or interested stakeholders. The management plan for a species must be posted within three years of the species being listed.

V — New designatable units

Through the definition of wildlife species as a "species, subspecies, variety or geographically or genetically distinct population of animal, plant or other organism," SARA recognizes that conservation of biological diversity requires protection for taxonomic entities below the species level (i.e. designatable units), and gives COSEWIC a mandate to assess those entities when warranted. These designatable units and their proposed classification (e.g. endangered, threatened, species of special concern) are presented in COSEWIC assessments in the same way as with other wildlife species. In some cases, based on scientific evidence, wildlife species that were previously assessed may be reassessed and recognized to include fewer, additional or different designatable units. COSEWIC will publish assessments and classifications for any designatable units that may or may not correspond to the previously recognized wildlife species.

Should COSEWIC assess a newly defined designatable unit at the same classification level as the originally listed wildlife species, Schedule 1 may be amended to reflect this more current designatable unit, consistent with the best available scientific information. When classifications are at a different classification level than the originally listed wildlife species, Schedule 1 may also be amended to reflect this more current designatable unit and classification level.

Objectives

The objectives of the proposed Order Amending Schedule 1 to the Species at Risk Act are to help maintain Canada's biodiversity and the health of Canadian ecosystems by preventing wildlife species from becoming extirpated from Canada and contribute to their recovery, as well as to respond to COSEWIC recommendations.

Description

The proposed Order to amend Schedule 1 of SARA pertains to nine wildlife species. Five species are additions to Schedule 1 of SARA and four species are being reclassified. A description of each species, its range and threats is found in Annex 1. Additional information on these species can be found in the COSEWIC status reports.footnote 17

Table 2 — Proposed modifications to Schedule 1 of SARA
Legal Population Name Scientific Name Current Status Proposed Status Range
Species proposed for addition to Schedule 1 of SARA
Black Swift Cypseloides niger None Endangered British Columbia, Alberta
Cassin's Auklet Ptychoramphus aleuticus None Special concern British Columbia, Pacific Ocean
Evening Grosbeak Coccothraustes vespertinus None Special concern Everywhere in Canada except Nunavut
Lark Bunting Calamospiza melanocorys None Threatened Alberta, Saskatchewan, Manitoba
Red-necked Phalarope Phalaropus lobatus None Special concern Everywhere in Canada
Species proposed for reclassification within Schedule 1 of SARA
Louisiana Waterthrush Parkesia motacilla Special concern Threatened Ontario, Quebec
McCown's Longspur Rhynchophanes mccownii Special concern Threatened Alberta, Saskatchewan
Pink-footed Shearwater Ardenna creatopus Threatened Endangered British Columbia, Pacific Ocean
Red Crossbill percna subspecies Loxia curvirostra percna Endangered Threatened Quebec, Newfoundland and Labrador

Benefits and costs

The quantitative and qualitative incremental impacts (benefits and costs) of the proposed Order were analyzed. Incremental impacts are defined as the differences between the baseline situation and the situation in which the proposed Order is implemented over the same period. The baseline situation includes activities ongoing on federal lands where a species is found, and incorporates any projected changes over the next 10 years (2019−2028) that would occur without the proposed Order in place.

An analytical period of 10 years was selected since the status of the species must be reassessed by COSEWIC at least every 10 years. Costs provided in present value terms are discounted at 3% over the period of 2019–2028. Unless otherwise noted, all monetary values reported in this analysis are in 2018 constant dollars.

Any decision about whether to take action to prevent a species from becoming extirpated involves three issues that do not usually occur simultaneously in most cost-benefit analyses:

To reflect these challenges, this cost-benefit analysis presents the best available information and economic analysis possible. Preventing the extirpation of these species would likely result from a combination of the proposed Order and additional protection measures undertaken by various levels of governments, Indigenous peoples and stakeholders. Therefore, the benefits presented cannot be attributed to the proposed Order alone. They are provided here for context.

Overall, the analysis did not reveal any major incremental impacts on Indigenous peoples and stakeholders.

Benefits

Overall, the proposed Order is expected to have both social and environmental benefit for Canadians.

Endangered, threatened and extirpated species would benefit from the development of recovery strategies and action plans that identify the main threats to their survival, as well as identify, when possible, the habitat that is necessary for their survival and recovery in Canada. Special concern species would benefit from the development of a management plan, which includes measures for the conservation of the species. These documents would enable coordinated action by responsible land management authorities wherever the species are found in Canada. Improved coordination among authorities increases the likelihood of species survival. This process would also provide an opportunity to consider the impact of measures to recover the species and to consult with Indigenous peoples and stakeholders. These activities may be augmented by actions from local governments, stakeholders and/or Indigenous peoples to protect species and habitats. These may include projects funded through the Habitat Stewardship Programfootnote 18 and the Nature Legacy for Canada as announced in Budget 2018, which requires support and matching funds from other sources. These projects enhance the ability to understand and respond effectively to the conservation needs of these species and their habitats.

The special concern designation would also serve as an early indication that the species requires attention due to a combination of biological characteristics and identified threats. This helps to manage the species proactively, maximizing the probability of success and potentially preventing higher-cost measures in the future.

A benefit of reclassifying species from threatened to endangered, or vice versa, will be that the designation will be consistent with the best available scientific information, as provided by COSEWIC, therefore allowing for better decision-making regarding the species in terms of conservation prioritization. For the species being recommended for up-listing from threatened to endangered, this would also provide national recognition that these species are facing higher risks of extirpation or extinction.

It is also important to note that preventing the extinction or extirpation of a given species (via a diversity of actions, including those taken under SARA, such as this proposed Order) is an integral part of maintaining biodiversity in Canada and conserving Canada's natural heritage. More diverse ecosystems are generally more stable, and thus the benefits (i.e. goods and services) they provide are also more stable over time.

Total economic value

Using the total economic value framework, the analysis found that the birds in the proposed Order provide many direct benefits to Canadians (i.e. use value), for example

Finally, there is also an option value associated with these species, i.e. Canadian residents and firms may hold a value associated with the preservation of Canadian genetic information that may be used in the future for biological, medicinal, genetic engineering and other applications. Economic theory also suggests there is a benefit to erring on the side of avoiding an irreversible outcome (i.e. extinction).footnote 26

Costs

In terms of incremental costs associated with implementing the Order relative to baseline conditions, the following matters were considered:

As indicated above, if critical habitat is identified on federal land, it must be protected. This protection can be afforded by existing federal laws or by provisions under SARA, including conservation agreements, publication of the description of critical habitat where it is found in a protected area, or the issuing of a ministerial order to prohibit the destruction of critical habitat on federal lands.

It is important to note a distinction regarding critical habitat on non-federal lands. If any future critical habitat identified on non-federal lands that is not covered under the MBCA is determined by the competent Minister to be insufficiently protected, a decision to issue an order to protect that critical habitat could be made by the Governor in Council. Any such future decision is not considered as an incremental impact of this proposed Order, but is an important potential downstream implication that is acknowledged.

Costs associated with general prohibitions

As mentioned, the nine bird species included in the proposed Order are migratory birds that are protected by the MBCA everywhere they are found in Canada.

Upon listing of a migratory bird species as threatened or endangered under SARA, currently active and future permits will need to also meet the requirements of subsections 73(2) to 73(6.1) and 73(7) of SARA. In most cases, the incremental effort to do so will essentially be limited to the applicant providing the necessary data to demonstrate that the three pre-conditions stated in subsection 73(3) of SARA have been met, and to some additional review by officials. There will be no change to permit applications on Parks Canada lands.

Therefore, minimal incremental costs associated with complying with the general prohibitions under SARA can be expected for Indigenous peoples or stakeholders because minimal additional compliance activities will result from adding the species to Schedule 1 of SARA where similar prohibitions are already in place under the MBCA.

Potential critical habitat protections

Critical habitat is defined as the habitat that is necessary for the survival or recovery of a listed wildlife species. Not all of a species' current habitat would necessarily be deemed critical habitat. The identification of critical habitat is a science-based process that uses the best available information and is guided by a frameworkfootnote 28designed to be flexible enough to adapt to the various situations encountered by recovery practitioners, but structured enough to provide consistency in how critical habitat is identified and presented. The identification of critical habitat in federal recovery documents is reviewed by affected Indigenous organizations, wildlife management boards, partners, stakeholders and jurisdictions and is also open to a public consultation process.

If critical habitatfootnote 29 for a listed species is identified during the creation of a recovery strategy or an action plan, and federal legislation does not already protect the habitat, the competent minister is obligated under subsection 58(4) of SARA to make a critical habitat protection order to put protections for that habitat in place. In the event such an order is made, it would be considered an incremental impact of the decision to list a species. The analysis does not consider potential orders outside federal lands made under subsection 58(5.1) of SARA, as these would require a separate Governor in Council (GIC) decision, and the incremental impacts of such an order would be examined at that time.

However, there is a great deal of uncertainty at the time of listing over whether any such order would ever occur and where it would apply, because critical habitat is only identified during the development of a recovery strategy (which establishes the population and distribution objectives for the species) or subsequently in an action plan. At the time of listing, the population and distribution objectives are unknown; therefore, the amount and location of critical habitat needed to meet those objectives is also unknown, as is whether critical habitat will be identified on federal lands. Nevertheless, for the reasons outlined below, the likely incremental cost impacts of potential future critical habitat protection orders on federal land for the species in this proposed Order would be low. In the event such an order was made, further analysis would be presented in a Regulatory Impact Analysis Statement (RIAS) accompanying the Order.

Species-specific analysis

Cassin's Auklet, Evening Grosbeak and Red-necked Phalarope

The listing of these species as special concern would not trigger critical habitat identification.

Pink-footed Shearwater and Red Crossbill percna subspecies

The reclassification of these species from threatened to endangered or vice-versa would not trigger any incremental impacts beyond those associated with the original decision to list the species.

Black Swift, Lark Bunting, Louisiana Waterthrush and McCown's Longspur

To address the uncertainty associated with the lack of defined critical habitat at the time of listing, the analysis assumed that all suitable land for breeding, nesting, feeding, foraging, and roosting on federal land within the range of each species could possibly be identified as critical habitat and consequently protected under a critical habitat protection order. This is a conservative approach, since the critical habitat to be identified in the future might only comprise a portion of the range of a species. Nonetheless, all hypothetical impacts of a critical habitat protection order on stakeholders active on federal lands within the range of the species have been examined. This ensures that any potential impacts to stakeholders have been examined for any scenario in which critical habitat protection could be put in place on federal land.

This analysis focused on economic activities occurring within the range of the species, specifically on federal lands. The definition of federal lands includes First Nations reserves and any other lands that are set apart for the use and benefit of a band under the Indian Act and all the waters on and airspace above those reserves and lands.

The analysis used Geographical Information Systems (GIS) to determine economic activities on federal land where the species occur. Databases of federal propertiesfootnote 30 and Indigenous landsfootnote 31 were overlaid with the ranges of the species. Combined with major known threats to survival in Canada, as identified by COSEWIC, this approach provides a conservative view on potential changes for stakeholders arising from critical habitat protection.

Despite this broad scope, and the uncertainties involved, analysis at this time did not reveal any major impacts. To date, the protections under SARA for individuals and residences have been considered to provide minimal incremental protection compared with existing protections for birds, nests and nest shelters under the MBR and the MBCA. Although critical habitat protections under SARA are broader than protections offered under the MBCA (e.g. non-nest residences, habitat conversion for agricultural land or oil and gas development). Given the limited scope of these activities on federal lands, and the flexibilities inherent in defining critical habitat for species that exist across Canada, incremental costs associated with critical habitat protection on federal lands are likely to be low.

Specifically, the McCown's Longspur and the Lark Bunting are grassland bird species. They already benefit from the integrated conservation work that has been under way for several years in specific "focal areas," such as South of the Divide in southwestern Saskatchewan, or as part of multi-species recovery and action plans.

The GIS analysis showed that the McCown's Longspur range is fully encompassed in the Lark Bunting range, and approximately 100% of the McCown's Longspur and 83% of the Lark Bunting ranges are encompassed in the range of Chestnut Collared Longspur, another species at risk that has already been listed as threatened on Schedule 1 of SARA. Sprague's Pipit is another species already listed as threatened whose range fully encompasses the ranges of McCown's Longspur and Lark Bunting. Considering that Chestnut Collared Longspur and Sprague's Pipit already have recovery strategies and partial identification of critical habitat, an analysis was done to identify any reasonable assumptions that could be made for the critical habitat to be identified for McCown's Longspur and Lark Bunting based on the work that was completed to date for these two listed species.

Sprague's Pipit has similar biological attributes and potential threats as McCown's Longspur and Lark Bunting, including habitat conversion for oil and gas development. It is assumed that when critical habitat identification occurs, there is a high likelihood that it will overlap with what has been identified for the Sprague's Pipit. Therefore, any potential impacts to the oil and gas industry on federal land would not be considered incremental to this proposed Order.

Chestnut Collared Longspur has similar biological attributes and potential threats as McCown's Longspur and Lark Bunting, such as habitat conversion for agricultural practices. It is assumed that when critical habitat identification occurs, there is a high likelihood that it will overlap with what has been identified for Chestnut Collared Longspur. Therefore, any potential impacts to the agricultural industry would not be considered incremental to this proposed Order.

Recovery strategy, action plan and management plan development

Some administrative costs for the development of recovery strategies, action plans and management plans would be incurred by the federal government. Recovery strategy and action plan development is estimated to cost $40,000 to $50,000 per species (undiscounted), for a total present value of $140,000 to $175,000 for the species in this group. The development of a management plan for the three species of special concern is expected to cost up to $10,000 per species (undiscounted), for a total present value of $27,000. Updates to recovery strategies and action plans are estimated to cost up to $10,000 per document per species, for a total present value of up to $35,000. While costs may be incurred in the implementation of recovery documents, it is not possible to estimate the exact costs at this time because stewardship actions that will help to recover the species have not yet been developed.

Enforcement and compliance promotion

The management regime for these birds under SARA is expected to be consistent with how they have been managed to date under the MBR. As a result, little additional enforcement effort is anticipated beyond existing efforts to enforce the MBCA; therefore, no additional costs are anticipated.

A compliance promotion plan has been drafted for the proposed Order and it is anticipated that compliance promotion activities will cost approximately $1,000 to the Government of Canada during the year following the coming into force of the proposed Order. Compliance promotion activities will include updates to the SAR Public Registry and notifications to federal land managers and to the Enforcement Branch of the Department of the Environment.

Permitting costs

Although it is not certain that additional permit requirements would be triggered as a result of the proposed Order, permits would be required for activities that would otherwise be prohibited under SARA. For the Parks Canada Agency, permits may be issued under the Canada National Parks Act (CNPA) that have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. In either case, the SARA permit or CNPA authorization contains terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

A review of existing MBCA permits indicated that no permit applications were received up until now for the species included in this regulatory proposal. It is assumed that permit applications will come following listing because of increased interest for the species and eligibility to funding programs that support scientific research and recovery work following listing. None of the species nest in anthropogenic structures; therefore, it is expected that most permit applications will be for SARA-compliant MBCA permits or SARA-compliant CNPA permits.

It is estimated that up to 25 permits could be requested in the 10 years following the listing of the species by other levels of government, industry, First Nations and those conducting scientific research on the species. The incremental cost to applicants is estimated at $21,500 in labour (undiscounted). The incremental costs to the Government of Canada (including additional expenses and labour) associated with these permit requests in the 10 years following listing could be up to $19,000 (undiscounted). This includes costs associated with updating currently active permits and issuing new ones due to a possible increase in the number of scientific permits requested.

In general, the incremental costs to the Government of Canada for SARA-compliant permit applications are $500 per permit, including costs associated with reviewing permits, assessing applications, and communicating with applicants.

Applying for SARA permits for scientific or beneficial activities where a previous MBCA or CNPA permit was required usually involves incremental costs ranging from $300 to $600 per permit (undiscounted), depending on the level of familiarity of the applicant with the permitting process.

Other industry applicants that may be applying for a new SARA permit on federal land could assume a cost of up to $2,400 per species.footnote 32

For permits related to high-impact development projects, costs could rise to the tens of thousands of dollars. However, many such projects would undergo an environmental assessment process that requires proponents to gather large amounts of information on species at risk. In such cases, the costs associated with gathering this information are not fully attributable to the listing of the species under SARA.

Implications for environmental assessments

There could be some implications for projectsfootnote 33 required to undergo an environmental assessment by or under an Act of Parliament (hereafter referred to as a federal EA). However, any costs are expected to be minimal relative to the total costs of performing a federal EA. Once a species is listed in Schedule 1 of SARA, under any designation, additional requirements under section 79 of SARA are triggered for project proponents and government officials undertaking a federal EA. These requirements include identifying all adverse effects that the project could have on the species and its critical habitat and, if the project is carried out, ensuring that measures are taken to avoid or lessen those effects and to monitor them. However, the Department of the Environment always recommends to proponents in EA guidelines (early in the EA process) to evaluate effects on species already assessed by COSEWIC that may become listed on Schedule 1 of SARA in the near future; therefore, these costs are likely already incorporated in the baseline scenario.

Cost summary

Given the analysis above, the overall costs to the Government of Canada of listing these species are anticipated to be low, and low costs are anticipated for Indigenous peoples and stakeholders. Costs would arise from the development of recovery strategies, action plans or management plans that are required when a species is listed under SARA, and from compliance promotion and enforcement activities.

Based on the list of species included in the proposed Order, an overall cost to Government was estimated at $200,000 to $235,000 over 10 years (2019–2028), discounted at 3% to a base year of 2018.

For all permits, the administrative cost to the federal government is estimated at $21,500 (undiscounted). For all permits, the incremental cost to applicants (i.e. private industry, Indigenous peoples, other levels of government, research and science) is estimated at $19,000 (undiscounted).

The extent of future critical habitat protection is undetermined at this stage, but an analysis of species occurrences relative to land tenure and current protections suggests that minimal associated costs are expected.

"One-for-One" Rule

Although the number of permit applications that would be triggered as a result of the proposed Order is unknown, preparing the permit application would represent an administrative cost to the applicants. Therefore, the amendments are considered to be an "IN" under the Government of Canada's "One-for-One" Rule.

Based on data on past permit applications, it is assumed that approximately 6 permits could be requested by businesses for the following species: Lark Bunting, Black Swift, Louisiana Waterthrush, and McCown's Longspur. Up to 25 potential permit applications could be received from scientists/researchers, industry, and some levels of government in the 10 years following listing.

The six permit applications from businesses could give rise to one-time administrative costs that are estimated to be $975 on an annualized basis (2012 Canadian dollars, discounted at 7% to a base year of 2012) on the part of business applicants, or $162 in annualized administrative costs per business (2012 Canadian dollars, discounted at 7% to a base year of 2012). These estimates are based upon the experience of SARA permit administrators and data on previously requested permits.

A new permit application is estimated to take approximately 27 hours of the applicant's time, for activities such as familiarization with the application requirements, information collection/retrieval and application completion and submission. For properties that already require a permit under another Act of Parliament for an activity to take place (e.g. national parks, national wildlife areas, migratory bird sanctuaries), the additional work required to make the permit SARA-compliant would require an estimated 7 hours, at an estimated cost of $596 per permit application.

Small business lens

The small business lens does not apply to this proposal, as the nationwide cost impacts of the proposal are below $1 million per year and costs for small businesses are not considered disproportionately high.

With the proposed listing order in place, small businesses could seek a SARA permit under subsection 73(2)(c) of SARA. Permits are assessed on a case-by-case basis and would be granted only where all reasonable alternatives are considered and the best solution is adopted, all feasible measures are taken to minimize the impact of the activity, and the activity will not jeopardize the survival or recovery of the species. It is assumed that up to half of the permit applications for activities where the applicant is from a private industry could qualify as small businesses and as a result, up to three permit applications could be received from small businesses.

Consultation

Under SARA, the independent scientific assessment of the status of wildlife species conducted by COSEWIC and the decision made by the GIC to afford legal protection by placing a wildlife species on Schedule 1 of the Act are two distinct processes. This separation guarantees that scientists work independently when assessing the biological status of wildlife species and that Canadians have the opportunity to participate in the decision-making process of determining whether or not wildlife species will be listed under SARA to receive legal protections.

The Department begins initial public consultations with the posting of the Minister's response statements on the SAR Public Registry within 90 days of receiving a copy of an assessment of the status of a wildlife species from COSEWIC. Indigenous peoples and organizations, stakeholders, and the general public are also consulted by means of a publicly posted document titled Consultation on Amending the List of Species under the Species at Risk Act: Terrestrial Species. Initial consultations with interested stakeholders and members of the public took place from January to May 2016 for Black Swift and Cassin's Auklet; from January to October 2016 (extended consultations) for Red-necked Phalarope; from January to May 2017 for Louisiana Waterthrush, McCown's Longspur and Red Crossbill percna subspecies; and from January to May 2018 for the Evening Grosbeak, Lark Bunting and Pink-footed Shearwater.

The consultation documents provide information on the species, including the reason for their designation, a biological description and location information. They also provide an overview of the listing process. These documents were distributed directly to over 3 600 recipients, including Indigenous peoples and organizations, wildlife management boards,footnote 34 provincial and territorial governments, various industrial sectors, resource users, landowners and environmental non-governmental organizations.

Consultations results

The Department received 56 comments regarding the species included in this regulatory package. Comments were received from provinces, territories, environmental non-governmental organizations, individual First Nations, Indigenous organizations, wildlife management boards, individuals and municipalities. The vast majority of comments supported or did not oppose the modifications to Schedule 1 of SARA, while 3 comments opposed the listing of species or expressed concerns about the potential impacts of listing.

The first opposing comment came from a province and pertained to the Red-necked Phalarope. The province indicated its opposition to the listing of the species as a species of special concern, indicating it has all the legislative and regulatory tools to protect the species.

Response from the Department

The preamble of the Species at Risk Act indicates that "responsibility for the conservation of wildlife in Canada is shared among the governments in this country and that it is important for them to work cooperatively to pursue the establishment of complementary legislation and programs for the protection and recovery of species at risk in Canada." The Department welcomes measures taken by provinces and territories to offer protection to species at risk within their jurisdictions; however, it is still necessary for the Government of Canada to take action, as provincial protections do not apply on federal land.

It remains necessary for the Government of Canada to take action, as adding a species to Schedule 1 of SARA is the first step to allowing for a number of protection measures to be implemented, including the development of a recovery strategy and one or more action plans; the identification and protection of the species' critical habitat; and the funding of research to address the information gaps identified in a schedule of studies. Listing under SARA also provides the possibility of invoking SARA's "safety net" mechanisms should the Minister be of the opinion that the laws of the province do not effectively protect the species or the residences of its individuals.

The second comment came from an individual who resides in southwestern Saskatchewan and who opposes the up-listing of McCown's Longspur. They indicate in their letter that they have a large holding of native prairie grasslands and that a recent bird inventory on their land showed a large number of these birds. As their land is surrounded with thousands of acres of similar habitat, they feel there is little need of up-listing this bird and feel a more accurate method of inventorying species needs to be developed with landholders.

Response from the Department

The Department notes that the purpose of SARA is to prevent the extinction of species and provide for their recovery in Canada as a whole, as opposed to individual land holdings or jurisdictions. In order for a subspecies to be recognized, which could lead to different designations in different areas, populations have to be significant or discrete from those found in other regions of Canada, which is not the case for McCown's Longspur. The COSEWIC assessment also states that the species has declined by at least 30% in the past 10 years and by 98% since 1970.

The third opposing comment came from a First Nation and was related to the Red Crossbill percna subspecies, which is proposed for down-listing from endangered to threatened following the discovery of a small subpopulation on Anticosti Island. The First Nation argues that the discovery of the new subpopulation does not justify down-listing the species, especially since the transfer of individuals (therefore gene transfer) between the newly discovered subpopulation and other populations has not been demonstrated.

Response from the Department

The Department acknowledges that there are significant uncertainties associated with the abundance and trends for this and many other species. However, the change in status as assessed by COSEWIC was based on the best available information and no new information has been provided that could be grounds for COSEWIC to change its assessment of the status of the species. In addition, a change from endangered to threatened does not result in any changes in the level of protection afforded the species. The final version of the recovery document is available, but would have to be amended to accommodate the discovery of the new subpopulation on Anticosti Island. Should the recovery strategy be amended, the Department will conduct consultations on the proposed amendments, thereby providing another opportunity for comments and feedback.

Many of the authors of the comments indicated their interest in participating in the recovery planning process.

Public comment period following publication in the Canada Gazette, Part I

The Department is committed to a collaborative process throughout the assessment, listing and recovery planning processes. The results of the public consultations are of great significance to the process of listing species at risk. The Department carefully reviews the comments it receives to gain a better understanding of the benefits and costs of changing Schedule 1 of SARA.

The Minister of the Environment will take into consideration comments and any additional information received following publication of the proposed Order and this Regulatory Impact Analysis Statement in the Canada Gazette, Part I.

Details on each species are provided in Annex 1.

Rationale

Biodiversity is crucial to ecosystem productivity, health and resiliency, yet is rapidly declining worldwide as species become extinct.footnote 35 The proposed Order would support the survival and recovery of nine species at risk in Canada, thus contributing to the maintenance of biodiversity in Canada. In the case of the six endangered or threatened species, they would be protected on federal lands through the general prohibitions of SARA, which include prohibitions on killing, harming, harassing, capturing, possessing, collecting, buying, selling and trading. In addition, these species would benefit from the development of recovery strategies and action plans that identify the main threats to species survival, as well as identify, when possible, the critical habitat that is necessary for their survival and recovery in Canada. In addition, three species listed as species of special concern would benefit from the development of a management plan, which includes measures for the conservation of the species.

The proposed Order would help Canada meet its commitments under the Convention on Biological Diversity. A strategic environmental assessment concluded that the proposed Order would result in important positive environmental effects. Specifically, it demonstrated that the protection of wildlife species at risk contributes to national biodiversity and protects ecosystem productivity, health and resiliency. Given the interdependency of species, a loss of biodiversity can lead to decreases in ecosystem functions and services. These services are important to the health of Canadians and have important ties to Canada's economy. Small changes within an ecosystem resulting in the loss of individuals and species can therefore have adverse, irreversible and broad-ranging effects.

The proposed amendments to Schedule 1 of SARA would have important positive environmental effects. They would support the Federal Sustainable Development Strategyfootnote 36 (FSDS) goal of "Healthy wildlife populations" and the following target: "By 2020, species that are secure remain secure, and populations of species at risk listed under federal law exhibit trends that are consistent with recovery strategies and management plans." The proposed amendments would support this goal by helping to ensure that species are provided appropriate protection. They would also indirectly contribute to the FSDS goal of "Effective action on climate change" by supporting the conservation of biodiversity because many ecosystems play a key role in mitigating climate change impacts. These actions would also support the 2030 Agenda for Sustainable Development Goals concerning Life on Land (goal 15) and Climate Action (goal 13).footnote 37

In summary, listing of the species would benefit Canadians in many ways, yet no major costs would be borne by Indigenous peoples or stakeholders. The costs to Government are expected to be relatively low.

Implementation, enforcement and service standards

Following the listing, the Department would implement a compliance promotion plan. Compliance promotion initiatives are proactive measures that encourage voluntary compliance with the law through education and outreach activities and raise awareness and understanding of the prohibitions. Potentially affected Indigenous peoples and stakeholders would be reached in order to

These objectives would be accomplished by creating and disseminating information products to explain the new prohibitions applicable on federal lands for threatened or endangered species; the recovery planning process that follows listing and how stakeholders can get involved; and general information on each of the species. These resources would be posted on the SAR Public Registry. Mail-outs and presentations to targeted audiences may also be considered as appropriate.

In Parks Canada protected heritage places, front-line staff would be given the appropriate information regarding the species at risk found within their sites in order to inform visitors on prevention measures and engage them in the protection and conservation of species at risk.

Subsequent to listing, the preparation and implementation of recovery strategies, action plans or management plans may result in recommendations for further regulatory action for the protection of wildlife species. It may also draw on the provisions of other Acts of Parliament to provide required protection.

SARA provides for penalties for contraventions to the Act, including fines or imprisonment, seizure and forfeiture of things seized or of the proceeds of their disposition. Agreements on alternative measures may also be used to deal with an alleged offender under certain conditions. SARA also provides for inspections and search and seizure operations by enforcement officers designated under SARA. Under the penalty provisions of the Act, a corporation found guilty of an offence punishable on summary conviction is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. A corporation found guilty of an indictable offence is liable to a fine of not more than $1,000,000, a non-profit corporation to a fine of not more than $250,000, and any other person to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.

As stated above, section 73 of SARA allows individuals to apply to the Minister for a permit to engage in an activity affecting a listed wildlife species, its critical habitat or the residences of its individuals. Given that the 10 migratory bird species are protected under the MBCA, the permitting option for the particular activity must also be available under the MBCA. Upon notifying an applicant that their application for a section 73 permit is received, the Minister has 90 days to either issue or refuse to issue the permit.footnote 38

The Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations contribute to consistency, predictability and transparency in the SARA permitting process by providing applicants with clear and measurable service standards for the section 73 permit application process. The Department of the Environment measures its service performance annually, and performance information is posted on the Department websitefootnote 39 no later than June 1 for the preceding fiscal year.

Contact

Mary Jane Roberts
Director
Species at Risk Act Policy
Canadian Wildlife Service
Environment and Climate Change Canada
Gatineau, Quebec
K1A 0H3
Telephone: 1-800-668-6767
Email: ec.LEPreglementations-SARAregulations.ec@canada.ca

Annex 1 — Description of species being added or reclassified to Schedule 1 of the Species at Risk Act

Black Swift (Cypseloides niger)

COSEWIC assessed this species as endangered in May 2015.

About this species

The Black Swift is the largest swift in North America and a migratory bird protected under the Migratory Birds Convention Act, 1994. It has an almost entirely blackish plumage, has long, pointed wings and is the only North American swift with a notched tail. It feeds exclusively on flying insects and has many unusual life-history traits compared to other landbird species (single egg clutch, extended maturation, remote waterfall and cave-nesting sites). The Black Swift may be a sensitive indicator for climate change as its waterfall nesting sites are likely to be impacted by decreased snow pack and glacial melt.

Canada is believed to harbour about 81% of the North American population, the vast majority of which occurs in British Columbia. Often foraging at high altitude, Black Swifts fly over open country and forests in mountainous areas and lowlands, pursuing aerial insects.

The most important threats to the species are believed to be airborne pollutants, which reduce aerial insect food availability and/or potentially cause reproductive failure in swifts, and climate change. Other threats such as problematic native species, logging, annual and perennial non-timber crops, livestock farming and ranching, hydroelectric dams and water management, and recreational activities were considered as being negligible.

Consultations

Four species-specific comments were received regarding the Black Swift from one provincial government, two environmental non-governmental organizations and one individual. All comments were supportive or did not oppose listing.

Listing rationale

Like many other birds that specialize on a diet of flying insects, this species has experienced a large population decline over recent decades. The causes of the decline are not well understood, but are believed to be related to changes in food supply that may be occurring at one or more points in its life cycle. The magnitude and geographic extent of the decline are causes for conservation concern.

Cassin's Auklet (Ptychoramphus aleuticus)

COSEWIC assessed this species as special concern in November 2014.

About this species

Cassin's Auklet is a small grey seabird, which comprises almost half of all seabirds nesting in British Columbia. About 75–80% of the global population breeds in British Columbia, nesting in burrows in forested or treeless habitats on islands. Cassin's Auklets lay a single-egg clutch, which is incubated by both parents on alternating days for about 38 days. After the egg hatches, parents return to the burrow at night to feed the nestling for about 45 days. The young are independent at fledging.

This species faces threats from climate change, introduced mammalian predators, and oil spills. Climate change is expected to result in warmer ocean temperatures and more frequent El Niños, both of which have negative consequences for Cassin's Auklet reproduction and survival. The impacts are expected to be most severe and immediate in the California Current System. Rats, raccoons and mink cause notable destruction to, and possibly extirpation of, colonies. The threat of oil contamination from chronic or catastrophic spills is ongoing and expected to increase if offshore vessel traffic increases.

Consultations

No species-specific comments were received during initial consultations.

Listing rationale

About 75% of the world population of this ground-nesting seabird occurs in British Columbia. Overall, the Canadian population is thought to be declining, but population monitoring has been insufficient to determine size and trends. The amount of suitable nesting habitat has declined over the past 75 years due to introductions of mammalian predators (rats, raccoons and mink) to colony islands. Changes to vegetation have also decreased the amount of high-quality nesting habitat on some islands since the 1980s. The species also faces other threats when it forages at sea, including large-scale climate change effects on its oceanic prey, and risks from oiling.

Evening Grosbeak (Coccothraustes vespertinus)

COSEWIC assessed this species as special concern in November 2016.

About this species

The Evening Grosbeak is a stocky, boldly coloured songbird, with a massive greenish-yellow bill. In Canada, its distribution includes all Canadian provinces and territories except Nunavut.

Optimal Evening Grosbeak breeding habitat generally includes open, mature mixed-wood forests, where fir species and/or White Spruce are dominant, and Spruce Budworm is abundant. Outside the breeding season, the species seems to depend largely on seed crops from various trees such as firs and spruces in the boreal forest, but is also attracted to ornamental trees that produce seeds or fruit, and bird feeders stocked with sunflower seeds.

Fluctuations of Spruce Budworm populations, which naturally occur every 25–40 years in eastern Canada and every 26 years in western Canada, are likely a key factor in fluctuations of the Evening Grosbeak population since 1970. Known threats to the Evening Grosbeak include mortality caused by window strikes while birds are visiting feeders in winter, reduction of mature and old-growth mixed-wood forests due to commercial forest management, and mortality due to road collisions when individuals feed on grit and road salt. Mortality related to ingestion of sodium chloride along roadsides may also be a threat. Over the long term, there may be a contraction of breeding habitat due to climate change.

Consultations

Twelve species-specific comments were received regarding the Evening Grosbeak from one provincial government, seven Indigenous governments, one industry association, one environmental non-governmental organization, one federal department and one regional government. All comments were supportive or did not oppose listing.

Listing rationale

The species has exhibited significant long-term declines (77–90%) over most of its range, since 1970. Over the past decades, some data suggest a further decline of nearly 40%, while other data indicate stabilization at a lower level.

Lark Bunting (Calamospiza melanocorys)

COSEWIC assessed this species as threatened in November 2016.

About this species

Lark Bunting is a large chunky sparrow with a short tail and relatively large bill. The species is restricted to breeding in the grasslands of west-central North America, from the southern Canadian prairies through the Great Plains of the central United States into northern Mexico. In Canada, Lark Buntings are found in southeastern Alberta, southern Saskatchewan, and southwestern Manitoba. They spend the non-breeding season in the southwest United States and north-central Mexico.

Lark Buntings occur in a variety of grassland habitats, including shortgrass and mixed-grass prairie, weedy fallow fields, pastures, and croplands. They prefer habitat with a combination of grass, shrubby vegetation and bare ground for nesting. Shrubs or tall grasses near the nest provide shading and concealment from predators. In Canada, the species appears to use managed agricultural areas such as hayfields, cultivated grasslands and roadside ditches, in addition to native grasslands.

Little is known about threats specific to the Canadian Lark Bunting population. Over much of the Great Plains, habitat loss, degradation, and fragmentation due to agriculture, urbanization and resource extraction are considered the primary threats to the species, along with the effects of pesticides.

Consultations

One species-specific comment not opposing the listing was received from an Indigenous government regarding Lark Bunting.

Listing rationale

This grassland songbird is at the northern edge of its range in the Canadian Prairies. It is nomadic, with breeding populations shifting considerably from year to year to track favourable conditions across the regional landscape, seeking peak abundance of grasshoppers. Population estimates therefore fluctuate substantially and complicate the estimation of short-term trends, but long-term data show a decline of 98% since 1970. Over most of the past decade, the trend has remained strongly negative.

A number of limiting factors make Lark Buntings susceptible to decline. They rely heavily on the availability of vegetative cover to minimize thermal stress while nesting. They are sensitive to drought conditions, when their main food (grasshoppers) is less abundant, and they experience increased competition with other grassland bird species and a resultant lower rate of recruitment. Conversely, they are also vulnerable to heavy rainfall events on the breeding grounds, and to fluctuations in seed availability on their wintering grounds.

Louisiana Waterthrush (Parkesia motacilla)

The Louisiana Waterthrush was listed to Schedule 1 of SARA as special concern in December 2007. COSEWIC reassessed the species as threatened in November 2015.

About this species

The Louisiana Waterthrush is a relatively large, drab wood-warbler that resembles a small thrush. In Canada, the species breeds in southern Ontario, where it is considered a rare, but regular local summer resident in the Norfolk Sand Plain region bordering the north shore of Lake Erie, and the central Niagara Escarpment between Hamilton and Owen Sound. It is also a rare, but sporadic breeder in southwestern Quebec.

The Louisiana Waterthrush occupies specialized habitat, showing a strong preference for nesting and wintering along relatively pristine headwater streams and wetlands situated in large tracts of mature forest. Although it prefers running water (especially clear, cold water streams), it also inhabits heavily wooded swamps with vernal or semi-permanent pools.

The species is a habitat specialist and its global population is limited by the supply of high-quality aquatic habitat on both its breeding and wintering grounds. There isn't a specific threat to the survival of the Canadian population; rather, it is the cumulative effects of many threats at different stages of its annual life cycle that are of particular concern. Habitat loss and changes in water quality/quantity due to agricultural intensification and suburban residential development may have contributed to declines observed in parts of southern Ontario. Habitat conditions in Canada are expected to further deteriorate due to the anticipated spread of Hemlock Woolly Adelgid, an exotic forest pest, into eastern Canada.

Consultations

Four species-specific comments were received regarding the Louisiana Waterthrush from one provincial government, two First Nations and one regional municipality. All comments were supportive or did not oppose listing.

Rationale for reclassification

Since this species was last assessed by COSEWIC in 2006, new information is available on the species: its distribution and abundance; its nesting productivity and parasitism rates; and some information on site fidelity, site turnover, and return rates in Ontario. New and emerging threats on the breeding grounds are impacting breeding habitat in the northern United States range, which is considered an essential source of immigrants to sustain the small Canadian population. New forest pest species are also expected to affect forest habitat in the Canadian breeding range in the near future. Other threats to the population in southern Ontario are continuing. The Canadian population is small, probably consisting of fewer than 500 adults, but breeding pairs are difficult to detect. Population trends for the Canadian population are uncertain. Declines have been noted in some parts of the Canadian range, particularly in its stronghold in southwestern Ontario, while new pairs have been found in others. Immigration of individuals from the northeastern United States is thought to be important to maintaining the Canadian population. However, while the U.S. source population currently appears to be fairly stable, it may be subject to future population declines due to emerging threats to habitat.

McCown's Longspur (Rhynchophanes mccownii)

McCown's Longspur was listed to Schedule 1 of SARA as special concern in December 2007. COSEWIC reassessed the species as threatened in April 2016.

About this species

The McCown's Longspur is a grey or greyish-brown sparrow-like songbird that breeds in short-grass prairie, non-native pastures, closely grazed mixed-grass prairie, and some cultivated fields from southern Alberta and eastern Montana to southern Saskatchewan and the western edge of the Dakotas. The Canadian population is estimated from Breeding Bird Survey (BBS) results as 138 000 adults, which is about 23% of the global population. The best available information on trends, from the BBS, suggests the species declined by 98% in Canada between 1970 and 2012 and by at least 30% in the 10-year period between 2002 and 2012.

The species breeds in dry, sparse, short-cropped grassland with bare patches and few shrubs or forbs. Such habitat includes short-grass prairie, non-native pastures, closely grazed mixed-grass prairie, and some cultivated fields. The breeding habitat declined historically through the last century, and habitat loss and degradation continue, mainly because native grasslands are being converted for agriculture.

Threats include disruptions to natural systems that maintain the species' habitat, agricultural effluents, oil and gas drilling, annual and perennial non-timber crops, renewable energy development, and transportation and service corridors associated with development.

Consultations

Five species-specific comments were received regarding the McCown's Longspur from one provincial government, one First Nation, two environmental non-governmental organizations and one individual. One of the five comments opposed the up-listing, while the others were supportive of or did not oppose the listing. The opposing comment and a departmental response have been described in the "Consultation" section of this RIAS.

Rationale for reclassification

This grassland bird has experienced a severe population decline since at least the late 1960s, and there is evidence of a substantial, continuing decline. The species is primarily threatened by continuing loss and degradation of grassland habitats within both its breeding and wintering grounds.

Pink-footed Shearwater (Ardenna creatopus)

The Pink-footed Shearwater was listed to Schedule 1 of SARA as threatened in July 2005. COSEWIC reassessed the species as endangered in November 2016.

About this species

The Pink-footed Shearwater is a stocky seabird about the size of a medium gull. In Canada, the species occurs exclusively off the coast of British Columbia, with observations concentrated off the west coast of Vancouver Island, the entrance of the Strait of Juan de Fuca, and in Queen Charlotte Sound. Numbers in Canada peak from June to October.

Pink-footed Shearwaters nest in burrows that they excavate in the soil of their breeding colonies. In the marine environment, Pink-footed Shearwaters display a preference for biologically productive waters associated with the continental slope, shelf and shelf-break.

Threats facing this species at its colonies include human exploitation and disturbance, predation, disturbance and competition from introduced mammals, and habitat loss and destruction, particularly via erosion compounded by vegetation loss. At sea, the species is threatened by interactions with fisheries, oil and other pollution, plastic ingestion, and likely by competition with humans for prey fish.

Consultations

No species-specific comments were received during initial consultations.

Rationale for reclassification

This long-lived seabird nests on only three islands off the coast of Chile, where it has suffered significant declines due to nest predation by introduced predators, exploitation by humans and habitat degradation. It also experiences mortality due to incidental take by fisheries across its range, including important foraging areas off the coast of British Columbia. Bycatch risk from fisheries has increased over the last three generations. This species is also sensitive to offshore oil spills.

Red-necked Phalarope (Phalaropus lobatus)

COSEWIC assessed this species as special concern in November 2014.

About this species

The Red-necked Phalarope is a small shorebird, easily recognized in breeding plumage by the red-orange colour on the sides and base of its neck. The current estimate of species abundance within North America is at least 2 500 000 individuals, about 74% of these individuals occurring in Canada. Red-necked Phalaropes breed in low- and sub-Arctic wetlands.

A change in climate and associated habitat and food-web effects is likely the single greatest threat to Red-necked Phalaropes on their breeding grounds. The drying of freshwater ponds and the expansion of shrubs and trees into low- and sub-Arctic wetland habitats, with a changing climate, is expected to have a significant impact on habitat quality and availability for the species. This species also faces threats due to climate change, prey availability, and pollution, including oil spills.

Consultations

Twenty-one species-specific comments were received regarding the Red-necked Phalarope. They were received from wildlife management boards, provincial and territorial governments, First Nations and environmental non-governmental organizations. Only one comment opposed the listing while the others were supportive of or did not oppose the listing. The opposing comment and a departmental response have been described in the "Consultation" section of this RIAS.

Listing rationale

This bird has declined over the last 40 years in an important staging area; however, overall population trends during the last three generations are unknown. The species faces potential threats on its breeding grounds including habitat degradation associated with climate change. It is also susceptible to pollutants and oil exposure on migration and during the winter. This is because birds gather in large numbers on the ocean, especially where currents concentrate pollutants.

Red Crossbill percna subspecies (Loxia curvirostra percna)

Red Crossbill percna subspecies was listed to Schedule 1 of SARA as endangered in July 2005. COSEWIC re-assessed this species as threatened in April 2016.

About this species

The Red Crossbill percna subspecies is a medium-sized specialized seed eater with curved and crossed mandibles, muscular hinged jaws, and strong clasping feet for prying open conifer cone scales to access the seeds. This subspecies is a distinctive taxonomic group and, in Canada, is endemic to Newfoundland and Anticosti Island in Quebec. The species is dependent on cone-productive boreal forest. The Canadian population of Red Crossbill percna is estimated to be in the low thousands (i.e. 1 000–2 500 mature individuals), based on recent bioacoustic analyses and localized systematic surveys targeting Red Crossbills, as well as data from Christmas Bird Counts, Breeding Bird Surveys, the Québec Breeding Bird Atlas, and anecdotal reports from birdwatchers.

Probable threats to this species include competition and predation from introduced Red Squirrels in Newfoundland; fungal infestations affecting native and non-native pines in Newfoundland, and insect outbreaks resulting in reduced cone production or tree mortality; natural system modifications (forest fires and forest fire suppression); habitat loss due to development (transportation and service corridors, forestry, mining, quarrying and agriculture); and a fungal disease affecting the Red Pine.

Consultations

Five species-specific comments were received regarding the Red Crossbill percna subspecies. They were received from First Nations, an Indigenous organization and a regional municipality. Only one comment opposed the listing, while the others were supportive of or did not oppose the listing. The opposing comment and a departmental response have been described in the "Consultation" section of this RIAS.

Rationale for reclassification

This subspecies is a distinctive taxonomic group endemic to Canada. Previously known to breed only on the Island of Newfoundland, it has within the past five years also been documented nesting on Anticosti Island. While the Canadian population is thought to be greater than was understood previously due to the recent discovery of a breeding population component on Anticosti Island, there is no evidence of an increasing trend. On the contrary, this taxon has experienced a substantial long-term decline. Further population decrease is expected based on identified threats, most notably competition and predation from introduced squirrels in Newfoundland, habitat loss due to logging, and a fungal disease affecting Red Pine.

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 27(1) of the Species at Risk Act footnote a, proposes to make the annexed Order Amending Schedule 1 to the Species at Risk Act.

Interested persons may make representations concerning the proposed Order within 45 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 addressed to Mary Jane Roberts, Director, SARA Management and Regulatory Affairs, Canadian Wildlife Service, Department of the Environment, 351 St. Joseph Boulevard, Gatineau, Quebec K1A 0H3 (tel.: 1-800-668-6767; email: ec.LEPreglementations-SARAregulations.ec@canada.ca).

Ottawa, December 13, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Order Amending Schedule 1 to the Species at Risk Act

Amendments

1 Part 2 of Schedule 1 to the Species at Risk Act footnote 40 is amended by striking out the following under the heading "Birds":

Crossbill percna subspecies, Red (Loxia curvirostra percna)
Bec-croisé des sapins de la sous-espèce percna

2 Part 2 of Schedule 1 to the Act is amended by adding the following in alphabetical order under the heading "Birds":

Shearwater, Pink-footed (Ardenna creatopus)
Puffin à pieds roses

Swift, Black (Cypseloides niger)
Martinet sombre

3 Part 3 of Schedule 1 to the Act is amended by striking out the following under the heading "Birds":

Shearwater, Pink-footed (Puffinus creatopus)
Puffin à pieds roses

4 Part 3 of Schedule 1 to the Act is amended by adding the following in alphabetical order under the heading "Birds":

Bunting, Lark (Calamospiza melanocorys)
Bruant noir et blanc

Crossbill percna subspecies, Red (Loxia curvirostra percna)
Bec-croisé des sapins de la sous-espèce percna

Longspur, McCown's (Rhynchophanes mccownii)
Plectrophane de McCown

Waterthrush, Louisiana (Parkesia motacilla)
Paruline hochequeue

5 Part 4 of Schedule 1 to the Act is amended by striking out the following under the heading "Birds":

Longspur, McCown's (Calcarius mccownii)
Bruant de McCown

Waterthrush, Louisiana (Seiurus motacilla)
Paruline hochequeue

6 Part 4 of Schedule 1 to the Act is amended by adding the following in alphabetical order under the heading "Birds":

Auklet, Cassin's (Ptychoramphus aleuticus)
Starique de Cassin

Grosbeak, Evening (Coccothraustes vespertinus)
Gros-bec errant

Phalarope, Red-necked (Phalaropus lobatus)
Phalarope à bec étroit

Coming into Force

7 This Order comes into force on the day on which it is registered.