Energy & Infrastructure Alert | June.01.2020
The Commonwealth of Virginia is pursuing migratory bird protection in response to the Trump administration’s proposed relaxation of Migratory Bird Treaty Act (“MBTA”) enforcement. Virginia recently rolled out discussion drafts of regulations that would require certain developers to obtain permits to authorize unintentional disturbance of protected birds in Virginia. Virginia’s permitting initiative fills a void left by the Trump Administration’s proposal to exclude incidental take of migratory birds from federal regulation.
The MBTA prohibits the taking, killing, possession, transportation and importation of migratory birds, except when specifically authorized by the United States Department of Interior. Unlike the federal Endangered Species Act or Bald and Golden Eagle Protection Act, there is no permit available under the MBTA to “take” migratory birds, whether intentionally or accidentally. Because nearly all bird species in North America are migratory and such birds are commonly disturbed by development, developers have historically relied upon government discretion not to pursue enforcement of violations of the MBTA. Such discretion has historically been exercised liberally, essentially excluding from enforcement most types of unintentional take, including take incidental to another lawful activity.
In January 2017, the Obama Department of Interior published its official opinion (M-37041) that the MBTA prohibits incidental take, including harming migratory birds in connection with projects like wind energy projects, regardless of affirmative action or intent. In February 2017, the Trump Administration’s Acting Secretary of the Interior temporarily suspended that opinion. The Department of Interior published its replacement M-opinion (M-37050) in December 2017, which revised federal policy to state that “take” applies only to affirmative and purposeful actions, such as hunting, whose purpose is to take or kill migratory birds. Injury to, or the mortality of, migratory birds resulting from (but not the purpose of) an action is not prohibited. The opinion is a guidance document, and is not enforceable law. In February 2020, the Trump Administration proposed to codify the exclusion for incidental take into United States Fish & Wildlife Service regulations.
In direct response to these federal actions, Governor Northam of Virginia directed the Virginia Department of Game and Inland Fisheries (“DGIF”) to regulate incidental take. DGIF subsequently issued for public review and “discussion” a draft regulation, form of general permit and step-down plan template regarding incidental take of migratory birds. The DGIF discussion drafts outline a regulatory regime that would be the opposite of the Trump administration proposal—they would apply to the take of protected birds that is incidental to, but not the purpose of, a regulated activity. The proposed regulatory regime would require permits for the take of any threatened or endangered birds in the Commonwealth, along with additional migratory birds specifically identified by DGIF. The proposed regulatory regime is limited to construction activities that will cause take, otherwise disturb regulated bird species or cause destruction of their habitat and are associated with the following activities targeted in DGIF’s drafts:
The discussion materials indicate that DGIF would not regulate construction projects that are actively under construction as of the effective date of any regulation and also suggests that DGIF may issue letters of non-prosecution for up to two years for ongoing construction.
DGIF’s discussion materials also describe a program offering “general” permits (typically established for minor impacts and utilized by filing a notice and complying with certain terms) and “individual” permits issued for specific projects having more material environmental impacts than projects authorized by general permits. Both of these permits would be subject to what DGIF calls “step-down plans”—contemplated to be developed by DGIF that are specific to a bird species and identify strategies and practices to minimize incidental take for that species. Step-down plans would include monitoring, notification and avian conservation and mitigation requirements. Activities covered under a general incidental take permit would not require an avian conservation and mitigation plan and may not require monitoring.
The avian conservation and mitigation plan would be a key requirement for an individual incidental take permit. As outlined in the proposal documents, an avian conservation and mitigation plan is contemplated to include an analysis of impacts to bird species and habitats along with the steps to be taken by the applicant to minimize and mitigate such impacts. DGIF currently contemplates onsite habitat restoration to pre-activity conditions to the maximum extent practicable or mitigation through offsite habitat replacement or restoration.
DGIF’s proposed program is in the early stages of development and its coverage and requirements are not yet clearly outlined. The differences between DGIF’s regulations and existing best management practices have not yet been identified. In addition, although DGIF’s proposal is currently limited to construction, renewable energy project operators could be affected by any expansion that could apply to operation. Accordingly, developers may wish to follow the evolution of the regulations and comment on the proposals as DGIF refines the program details.
 The MBTA does provide permits for special purposes (such as scientific collecting and for salvage) that are sometimes issued to authorize relocation or other disturbance of migratory birds, but there is no general permitting program in widespread use.
 The MBTA list contains over 1,000 species (available at https://www.fws.gov/birds/management/managed-species/migratory-bird-treaty-act-protected-species.php).
 Eagles have been a notable exception.
 See Regulations Governing Take of Migratory Birds, 85 Fed, Reg. 5915 (February 3, 2020, available at https://www.federalregister.gov/documents/2020/02/03/2020-01771/regulations-governing-take-of-migratory-birds). The comment period for this proposed rule closed on March 19, 2020.
 DGIF stated that it would accept public comments on the discussion materials through May 16, 2020, but because these materials were not formally proposed as regulations, may accept comments past this deadline.
 Under DGIF’s proposed regulatory regime, no permit would be required for the incidental take of a migratory bird species unless DGIF developed a plan (termed a step-down plan) for that particular species requiring a permit.