Title of Regulation: 2VAC5-320. Regulations for the Enforcement of the Endangered Plant and Insect Species Act (amending 2VAC5-320-10).

Statutory Authority: §§ 3.2-1002 and 3.2-1005 of the Code of Virginia.

Public Hearing Information:

July 23, 2019 - 2:15 p.m. - Brent and Becky's Bulbs Chesapeake Lounge, 7900 Daffodil Lane, Gloucester, VA 23061

Public Comment Deadline: September 6, 2019.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, TTY (800) 828-1120, or email david.gianino@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board. Section 3.2-1002 of the Code of Virginia authorizes the board to adopt regulations, including the listing of threatened or endangered species, their taking, quotas, seasons, buying, selling, possessing, monitoring of movement, investigating, protecting, or any other need in furtherance of the purposes of the Endangered Plant and Insect Species Act (§ 3.2-1000 et seq. of the Code of Virginia). Section 3.2-1002 states that based upon investigations by the Commissioner of Agriculture and Consumer Services, recommendations from the Director of the Virginia Department of Conservation and Recreation regarding candidate species, and from other reliable data, the board shall approve proposed species (i) to be added to or deleted from the list of threatened species or the list of endangered species or (ii) to be transferred from one list to the other.

Purpose: The proposed action is essential to the preservation of critically imperiled and imperiled natural resources in Virginia, which protects and promotes the public's health, safety, and welfare. Listing a species as threatened or endangered offers protection to plants and insects that are of aesthetic, ecological, educational, scientific, economic, or other value to the Commonwealth. It also provides for the development and implementation of protection, recovery, and conservation measures to ensure the survival of listed species while allowing projects that could impact those species to proceed in the most economical, biologically-sound, and environmentally-sensitive manner.

Substance: The board proposes to amend the regulation to (i) remove one plant species that is no longer believed to occur in Virginia from the list of threatened species, (ii) add two insect and three plant species that are in danger of extinction to the list of endangered species, and (iii) add five plant species that are likely to become an endangered species within the foreseeable future throughout all or a significant portion of their native range to the list of threatened species.

Issues: The primary advantage of the proposed regulatory action is the protection of threatened or endangered plant and insect species that are of aesthetic, ecological, educational, scientific, economic, or other value and whose global populations are rare and imperiled. Once plants or insects are listed as threatened or endangered, the regulation enables the Virginia Department of Agriculture and Consumer Services to collaborate with landowners, at the landowner's discretion, to develop management plans that would support construction projects and other economic development activity on the landowner's property while minimizing the impact on these valuable, imperiled natural resources. Moreover, when good cause is shown and when necessary to alleviate damage to property, to alleviate the impact on progressive development, or to protect human health, a provision allows for the removal, taking, or destruction of a state listed species. The regulation does not apply to the owner of the property where listed species occur. There is no disadvantage to the landowner, public, or the Commonwealth associated with the proposed amendments to the regulation.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (Board) proposes to amend the lists of endangered and threatened plant and insect species by: 1) removing from the regulation a plant species that is no longer believed to occur in the Commonwealth and 2) adding to the endangered and threatened lists certain plant and insect species that are considered in danger of extinction or that are likely to become endangered in the foreseeable future throughout all or a significant portion of their native range.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact.

Background: Virginia Code § 3.2-10032 specifies that it is "unlawful for any person to dig, take, cut, process, or otherwise collect, remove, transport, possess, sell, offer for sale, or give away any species native to or occurring in the wild in the Commonwealth that are listed in this chapter or the regulations adopted hereunder as threatened or endangered, other than from such person's own land, except in accordance with the provisions of this chapter or the regulations adopted hereunder." The Regulations for the Enforcement of the Endangered Plant and Insect Species Act, which lists endangered and threatened plant and insect species, qualifies as such a regulation. Virginia Code § 3.2-10113 states that any person who violates the regulations is guilty of a Class 1 misdemeanor. According to the Virginia Department of Agriculture and Consumer Services (VDACS), in practice the agency works with developers to find ways for construction projects, land development, etc. to proceed while mitigating the impact on endangered and threatened plant and insect species. Often the cost is not large; for example, it could entail moving and replanting plants.

As alluded to in the Virginia Code § 3.2-1003 quotation, landowners are exempt from the regulations regarding threatened and endangered plant and insect species occurring on or within their property. Landowners who wish to mitigate harm to threatened and endangered species can benefit from voluntarily working with VDACS. Once plants or insects are listed as threatened or endangered, the regulation enables VDACS to collaborate with landowners, at the landowner's discretion, to develop management plans that would support construction projects and other economic development activity on the landowner's property while minimizing negative impact on the species added to the lists.

Proposal: The Board proposes to add the following five species to the list of endangered species: (i) Clematis addisonii, (ii) Ludwigia ravenii, (iii) Phemeranthus piedmontanus, (iv) Bombus affinis, and (v) Pseudanophthalmus parvicollis. Further, the Board proposes to add the following five species to the list of threatened species: (i) Houstonia purpurea var. montana, (ii) Paxistima canbyi, (iii) Phlox buckleyi, (iv) Pycnanthemum torreyi, and (v) Rudbeckia heliopsidis. According to VDACS, all of these species are only found in remote isolated habitats where construction or other projects are unlikely to occur. Thus, adding these species to the regulation is not likely to have a significant impact. The Board proposes to remove Lycopodiella margueritiae from the list of threatened species because this plant species is no longer believed to occur in Virginia. This proposed amendment would also not likely have a significant impact.

Businesses and Entities Affected. The proposed amendments are unlikely to significantly affect any businesses or other entities.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. Since the species proposed to be added to the regulation are in remote areas where VDACS does not believe land development or construction would be likely to occur, the proposed amendments are unlikely to significantly affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Since the species proposed to be added to the regulation are in remote areas where VDACS does not believe land development or construction would be likely to occur, the proposed amendments are unlikely to significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to adversely affect small businesses.

Adverse Impacts:

Businesses: The proposed amendments are unlikely to adversely affect businesses.

Localities:

The proposed amendments are unlikely to adversely affect localities.

Other Entities:

The proposed amendments are unlikely to adversely affect other entities.

_______________________

¹Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

²See https://law.lis.virginia.gov/vacode/title3.2/chapter10/section3.2-1003/

³See https://law.lis.virginia.gov/vacode/title3.2/chapter10/section3.2-1011/

Agency's Response to the Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed amendments (i) remove one plant species from the list of threatened species that is no longer believed to occur in Virginia, (ii) add two insect and three plant species that are in danger of extinction to the list of endangered species, and (iii) add five plant species to the list of threatened species that are likely to become endangered species within the foreseeable future throughout all or a significant portion of their native range.

2VAC5-320-10. Listing of endangered and threatened plant and insect species.

A. The Board of Agriculture and Consumer Services hereby adopts the following regulation in order to protect designated plant and insect species that exist in this Commonwealth. All designated species are subject to all sections of the Virginia Endangered Plant and Insect Species Act (§ 3.2-1000 et seq. of the Code of Virginia).

B. The following plant and insect species are hereby declared an endangered species:

1. Boltonia montana, valley doll's-daisy.

2. Bombus affinis, rusty patch bumble bee.

3. Cardamine micranthera, small-anthered bittercress.

3. 4. Carex juniperorum, juniper sedge.

4. 5. Clematis addisonii, Addison's leatherflower.

6. Corallorhiza bentley, Bentley's coralroot.

5. 7. Fimbristylis perpusilla, Harper's fimbristylis.

6. 8. Helenium virginicum, Virginia sneezeweed.

7. 9. Helonias bullata, swamp-pink.

8. 10. Ilex collina, long-stalked holly.

9. 11. Iliamna corei, Peter's Mountain mallow.

10. 12. Isoetes virginica, Virginia quillwort.

11. 13. Isotria medeoloides, small whorled pogonia.

12. 14. Ludwigia ravenii, Raven's seedbox.

15. Neonympha mitchellii, Mitchell's satyr butterfly.

13. 16. Phemeranthus piedmontanus, Piedmont fameflower.

17. Pseudanophthalmus holsingeri, Holsinger's cave beetle.

18. Pseudanophthalmus parvicollis, Hupp's Hill cave beetle.

14. 19. Pseudanophthalmus thomasi, Thomas' cave beetle.

15. 20. Ptilimnium nodosum, harperella.

16. 21. Puto kosztarabi, Buffalo Mountain mealybug.

17. 22. Scirpus ancistrochaetus, Northeastern bulrush.

18. 23. Sigara depressa, Virginia Piedmont water boatman.

19. 24. Spiraea virginiana, Virginia spiraea.

20. 25. Trifolium calcaricum, running glade clover.

C. The following plant and insect species are hereby declared a threatened species:

1. Aeschynomene virginica, sensitive-joint vetch.

2. Amaranthus pumilus, seabeach amaranth.

3. Arabis serotina, shale barren rockcress.

4. Cicindela dorsalis dorsalis, Northeastern beach tiger beetle.

5. Clematis viticaulis, Millboro leatherflower.

6. Echinacea laevigata, smooth coneflower.

7. Houstonia purpurea var. montana, Roan Mountain bluet.

8. Juncus caesariensis, New Jersey rush.

8. Lycopodiella margueritiae, Northern prostrate clubmoss.

9. Nuphar sagittifolia, narrow-leaved spatterdock.

10. Paxistima canbyi, Canby's mountain-lover.

11. Phlox buckleyi, sword-leaf phlox.

12. Platanthera leucophaea, Eastern prairie fringed orchid.

11. 13. Pycnanthemum torreyi, Torrey's mountain-mint.

14. Pyrgus wyandot, Appalachian grizzled skipper.

12. 15. Rhus michauxii, Michaux's sumac.

13. 16. Rudbeckia heliopsidis, sun-facing coneflower.

17. Scirpus flaccidifolius, reclining bulrush.