Damage or Danger Permits for Nest Destruction: Pileated Woodpecker nesting cavities

Official title: Damage or Danger Permits for Nest Destruction - Section 70 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. 70 permits to destroy unoccupied Pileated Woodpecker nesting cavities prior to the 36-month waiting period as outlined in Schedule 1 of the Migratory Bird Regulations (MBR).

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 3). In virtually all cases, proponents will need to have completed a “Nest Notification” using Environment Climate Change Canada's (ECCC) Abandoned Nest Registry system.

2. Introduction

Section 70 of the MBR states that:

(1) An egg and nest destruction permit allows its holder and their nominees named in the permit to take and destroy the eggs of the species of migratory birds specified in the permit and to remove and destroy the nests of those species in an area described in that permit and subject to the conditions of that permit, and to dispose of the eggs and nests in the manner provided in the permit.

Conditions

(2) The Minister may issue an egg or nest destruction permit only if the Minister has reason to believe that the destruction of the eggs or nests is necessary to reduce or prevent the danger that migratory birds are causing or are likely to cause to human health or to public safety or the damage they are causing or are likely to cause to agricultural, environmental or other interests.

Eligible permit holder

(3) An egg or nest destruction permit may be issued only to a person who owns, leases or manages a parcel of land, 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 in the area described in the permit.

3. Criteria for permit issuance

The focus of the document is the destruction of unoccupied Pileated Woodpecker nesting cavities prior to the 36-month waiting period as outlined in Schedule 1 of the MBR.

In order for a permit to be issued for the destruction of an unoccupied Pileated Woodpecker nesting cavity using Section 70, 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 Canadian Wildlife Service (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). To ensure that any authorizations to remove unoccupied Pileated Woodpecker nesting cavities prior to the 36-month waiting period that are causing damage or danger do not circumvent the intent of Schedule 1 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.

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 or roosting cavities since they are not protected under the MBR. For more information on distinguishing Pileated Woodpecker nesting cavities from other types of cavities, please see Pileated Woodpecker cavity identification guide.

Rationale: 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. Failure to provide sufficient evidence of a nesting cavity will result in delays or rejection of permit applications.

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 to demonstrate due diligence so that, to the extent possible, proponents can avoid unoccupied Pileated Woodpecker nesting cavities (similar to raptor nests in some jurisdictions).

In all cases, issuance of any permit under s.70 Nest Destruction Permit, would be 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 are not feasible due to human health or public safety.

4. Mitigation

Destroying an unoccupied Pileated Woodpecker nesting cavity prior to the 36-month waiting period may 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. Clear and consistent conditions will be applied to permits as mitigation measures when unoccupied Pileated Woodpecker nesting cavities are destroyed prior to the 36-month waiting period.