Legal protections of nesting birds at future BGC Strathcona site addressed
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The county has confirmed that due diligence must be carried out when it comes to protecting nesting birds within construction sites.
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At the last council meeting of the summer, Strathcona County Council officials were provided an update on any implications of nesting birds at the proposed site for the new BGC Strathcona County Youth Hub facility as well as any legal implications.
The request dates back to May 7, when council approved a motion asking for a review of regulatory requirements related to nesting birds that might be impacted by the construction of the new facility within the Brentwood neighbourhood.
The report presented at the July 23 meeting outlined that a comprehensive understanding of the relevant acts and regulations by BGC Strathcona County and its representatives is needed to successfully obtain the federal permit to relocate any affected pileated woodpecker nesting cavities. Administration noted that any application completeness and application processing times may lead to project delays. For other nesting species, tree clearing can proceed outside of the nesting period, but if it’s done within that time frame, a nesting sweep may require mitigation measures such as delaying clearing until all protected nesting species have completed nesting.
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Overall, the legal opinion outlined that the proponent (not the municipality) is reliable for undertaking mitigation measures and meeting federal and provincial regulations.
“(Migratory Bird Regulations) limit the destruction of Pileated Woodpecker nests unless they are abandoned for at least 36 months and notice of abandonment has been given to the (Environment and Climate Change Canada). This makes development on land that contains a pileated woodpecker nesting site challenging. If the damage to the nesting cavity can be avoided through design choices that is the best way to deal with the issue. If not, a proponent who wants to proceed with development within the 36 month abandonment period may apply for a permit either to destroy the nest or to relocate the nest,” detailed the legal opinion provided by Shores Jardine LLP.
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“Based on current ECCC policies, a proponent will find it difficult to obtain a permit for nest destruction. Seeking a permit for relocation is more likely to be successful, but the proponent will need to ensure that they have demonstrated that mitigation measures are not possible (e.g. adjusting the siting of the building) and that there will be a serious and legitimate damage to the use of the land caused by the unoccupied pileated woodpecker nesting site,” the legal report concluded.
While the county itself is not responsible for the physical protection and relocation of the nests, it would ensure that measures carried out are compliant with both the local permitting process.
“The consultant would have to be a qualified professional and working through the permit process and federal authority, the would be provided very clear direction on how to relocate and how to mitigate those impacts. For example, relocating a nest could be as easy as a cut above and a cut below that cavity, capping that piece of tree and moving it and attaching it to another tree in the same area. So, there are definitely ways of relocating those types of nests. But we would absolutely be overseeing that because we would require compliance under our permitting and planning process,” confirmed the county’s Planning and Development Services Department.
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Giving a nod to lots of construction taking place throughout the county, Ward 5 Coun. Aaron Nelson wondered what measures are being taken with other projects.
“I’ve seen swaths of trees being knocked down in a number of places. Is this being taken into consideration every time in an area that trees are knocked down?,” Nelson questioned.
Planning and Development confirmed that tree removal, which includes bird surveys and sweeps, is included in each permitting process and that developers must adhere to federal and provincial regulations.
The legal report was accepted as information by council and no motion came from the presentation.
BGC Strathcona will provide an update to council this fall.
X: LindsayDMorey
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