CPAWS Southern Alberta Blog

Critical Habitat and SARA Permits: Part 2

What are Species at Risk Act (SARA) Permits?

As we discussed in part 1 of this series, the purpose of the Species at Risk Act (SARA) is to make sure that listed species survive and recover. Recovery Plans identify Critical Habitat for listed species and are required to include ‘Critical Habitat Orders’ which make destroying that Critical Habitat illegal. If the Recovery Plans are successful, a species will eventually be de-listed from SARA. 

While SARA prohibits the destruction of Critical Habitat, it does allow for limited exceptions through a permitting process (Section 73). Permits can be issued “to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals” if: 

  1. “The activity is scientific research relating to the conservation of the species and conducted by qualified persons; 
  2. The activity benefits the species or is required to enhance its chance of survival in the wild; OR 
  3. Affecting the species is incidental to the carrying out of the activity” 

ALL of the following pre-conditions must also be met: 

  1. “All reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
  2.  All feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; AND 
  3. The activity will not jeopardize the survival or recovery of the species” 

As is made clear by these parameters, SARA permits should only be issued for very specific cases. But, if a resource extraction company does think they meet the requirements, the onus is on them to make an application to DFO for a permit. There is specific advice from DFO on how companies should make this determination.

For example, this advice on clear-span bridges notes: “You determine if there are aquatic species at risk within the affected area by consulting our aquatic species at risk map, and you confirm that the work does not take place within a riparian zone identified as part of the critical habitat of an aquatic species at risk. To do so, consult the recovery strategy (found on the Species at risk public registry) for each of the species identified.”

If a permit is issued, a detailed description must also be placed in the public registry including “an explanation of why it was entered into or issued.”

Unfortunately, there are no mandated timelines for this process – we think permits should be posted to the public registry at least 30 days before the permit comes into effect, but this is not always the case. 

Should SARA Permits be issued?

It’s clear from the Section 73 requirements that most resource extraction projects do not meet the standards needed to allow for a permit to be issued. Unfortunately, DFO regularly issues Section 73 permits that do destroy Critical Habitat — almost as a matter of course, rather than a last resort.  

DFO most frequently justifies these permits based on a questionable interpretation of exception (c)“affecting the species is incidental to the carrying out of the activity,” where it is argued that industrial development projects would normally fall within this parameter. However, it is very difficult to reconcile this interpretation when the express intent of SARA is to protect Critical Habitat for listed species and that destruction of riparian Critical Habitat by planned logging, energy development, or road building projects clearly cannot be described as “incidental” — it’s a known and expected outcome of the work

Furthermore, the justification for issuing Section 73 permits for such projects is often dubious. See the following examples from forestry companies: 

Permit 21-HCAA-02744 was issued earlier this year and states: 

It is expected that: 3,083 m2 of critical habitat for Bull Trout in the riparian zone will be destroyed as a result of the road approaches at bridge locations, and 143.2 m2 riparian vegetation within critical habitat for Bull Trout will be altered as a result of the installation of culverts within ephemeral and intermittent streams.

This permit was justified using the following logic: A “do nothing” alternative was not considered, as the proposed roads are part of the approved timber harvest management plan for that area. 

It is extremely concerning that Section 73 permits are being issued with the justification that a timber harvest management plan has been approved and therefore there is no other option. Alberta makes it clear that approval for a forest harvest operation by Alberta Forestry and Parks does not imply approval under Federal legislation such as SARA.  

Indeed, the Operating Ground Rules (OGRs) that are used by Forestry and Parks to manage forestry operations state: “Approval of operational plans by Alberta does not imply authorization under federal legislation and policy which include, but not limited to, the federal Fisheries Act, Species at Risk Act and Migratory Birds Convention Act, 1994“. Yet, DFO is approving Section 73 permits with the rationale based on Alberta’s approval, leaving listed species like Bull Trout to fall through the gaps between provincial and federal legislation. 

Permit 22-HCAA-02952 makes this explicit, referring directly to Alberta’s OGRs: “Selected locations are the most appropriate location for the crossing in consideration of the many additional factors that the proponent considers when developing a harvest plan in accordance with the Alberta Forest Management Planning Standard and provincial Operating Ground Rules.” 

Permit 22-HCAA-02196 is similar, but even more blunt in its use of the economic consideration as the determining factor for DFO issuing the permit: “A do nothing approach is not possible for the proponent due to the economic loss that would be incurred for not being able to access the harvesting area.” But Section 73 of SARA has no provision for considering economic factors and this is a wholly inappropriate justification for the issuance of a permit.  

Where does this leave native trout?

Ultimately, DFO continues to put the profits of resource extraction companies ahead of the survival and recovery of listed species.

The third of the mandatory preconditions “(c) the activity will not jeopardize the survival or recovery of the species” is clearly not being met for listed native trout in Alberta, with the combination of unpermitted (illegal) destruction of Critical Habitat and permitted destruction of Critical Habitat leading to a continual accumulation of Critical Habitat loss, which can only lead to negative impacts on these species. As a result, the intent of SARA to ensure the survival and recovery of at-risk species is not being upheld.  

What is the solution? 

As we described in part 1 of this series, using the common-sense precautionary Critical Habitat definitions that have been provided in the Recovery Strategy would be a sensible first step – all watercourses listed as an “area within which critical habitat is found” should be considered Critical Habitat and legally protected against damage and destruction.  

This would mean that all projects impacting Critical Habitat would require an application to DFO. All such permits should be rigorously reviewed, and approval should only be granted for exceptional projects – the “incidental” clause of Section 73 should not be used as blanket means of approval for resource extraction. Clearer and more restrictive standards are required for ministry staff when considering permit applications to ensure this is the case. This is the only way in which we will be able to reduce the cumulative impacts on Critical Habitat and so ensure species recovery. 

Header Photo Credit: Amber Toner