Title of Regulation: 4VAC15-35. Birds: Incidental Take of Bird Species (adding 4VAC15-35-10 through 4VAC15-35-100).

Statutory Authority: §§ 29.1-103, 29.1-501, and 29.1-502of the Code of Virginia.

Effective Date: August 1, 2021.

Agency Contact: Aaron Proctor, Regulations Coordinator, Department of Wildlife Resources, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228, telephone (804) 367-8341, or email aaron.proctor@dwr.virginia.gov.

Summary:

The new regulation addresses the incidental take of migratory birds and includes (i) setting types of, requirements for, and procedure for acquiring, including for denial and appeal of denial, a permit to take migratory birds; (ii) exempting certain activities, including silvicultural and agricultural activities, residential construction, and certain emergency actions from requiring a permit; and (iii) setting standards of permits and enforcement of this chapter.

Chapter 35

[ Bird Birds ]: Incidental Take of Bird Species

4VAC15-35-10. Purpose.

The purpose of this chapter is to:

1. Regulate the incidental take of regulated bird species and habitats in the context of the board's oversight authorities described in § 29.1-501 A of the Code of Virginia and the department's conservation and management authorities described in § 29.1-521 A 2 and A 10 of the Code of Virginia by establishing a regulatory framework for the administration, implementation, and enforcement of an incidental take permitting program;

2. Provide ample protections to regulated bird species and habitats while authorizing take that may occur incidental to regulated activities through the issuance of a general permit or an individual incidental take permit that stipulates best management practices with the intended purpose of avoiding, minimizing, or compensating incidental take; and

3. Delineate the procedures and requirements to be followed in connection with permits issued by the department, while providing flexibility for innovative solutions that avoid, minimize, or compensate incidental take of regulated bird species and habitats when such authorization meets the criteria of this chapter.

4VAC15-35-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Active nest" means any nest structure of a regulated bird species that contains one or more viable eggs incubated by attendant adults or live dependent young.

"Applicant" means a person who is seeking or has obtained an individual incidental take permit or general permit through the department in accordance with procedures established in this chapter.

"Best management practice" refers to structural or nonstructural measures designed to avoid or minimize the incidental take of regulated bird species or habitats that may result from regulated activities during the construction and operational phases of the project.

"Biologically significant avian habitat" means an area within public or private conservation lands and waters, including national wildlife refuges; national parks or seashores; national forests; national recreation areas; state wildlife management areas; state parks; state natural areas and preserves; state recreation areas; lands owned or under easement by conservation organizations; lands and waters that have been designated as biologically important, such as Coastal Avian Protection Zones, Important Bird Areas, and Marine Sanctuaries; and other lands and waters that encompass unique features deemed biologically important to regulated bird species by the department.

"Board" means the Board of Wildlife Resources.

"Compensation" means achieving no net loss of regulated habitats through restoration, creation, enhancement, or, in certain circumstances, out-of-kind measures for the purposes of offsetting incidental take of regulated bird species or habitats that remain after all appropriate and practicable avoidance and minimization has been considered or achieved. Where permissible, appropriate compensation will be set forth in individual take permits or other board regulation or guidance. There will be no compensation required under general permits.

"Department" means the Department of Wildlife Resources.

"General avian habitat" means lands and waters that are not classified as "biologically significant avian habitat" but nonetheless require evaluation using methods developed by the department to determine their biological value to regulated bird species.

"Incidental take" means any take of a regulated bird species that is incidental to, but not the purpose of, a regulated activity.

"Person" means any individual, non-federal government entity, firm, corporation, association, partnership, club, or private body.

"Regulated activity" or "activity" means a new construction or development activity or the expansion of an activity beyond the original or existing footprint of the activity for which the board has adopted a sector-specific plan.

"Regulated bird species" means any migratory bird species, or any active nest, or egg thereof, regulated by the federal Migratory Bird Treaty Act (16 USC §703 et seq.) or its attendant regulations, excluding any bird species listed as endangered or threatened pursuant to 4VAC15-20-130.

"Regulated habitat" means biologically significant avian habitat or general avian habitat that is in an area subject to a sector-specific plan, an avian conservation and mitigation plan, or an individual incidental take permit.

"Sector-specific plan" means a framework adopted by regulation of the board that defines what activities will require a permit from the department for incidental take of regulated bird species and outlines the criteria for obtaining such a permit, such as specific best management practices, schedules, or criteria for avoiding or minimizing incidental take and circumstances in which project bundling may be applicable.

"Take" means to harass, harm, pursue, hunt, shoot, wound, kill, capture, trap, collect, possess, destroy, disturb, or to attempt to engage in any such conduct or any activity that significantly or permanently impedes breeding, foraging, resting, or other normal avian behaviors conducted during the annual life cycle, obstructs the use of or destroys or degrades regulated habitats, or reduces reproductive success or survival rates of regulated bird species.

4VAC15-35-30. Requirement for a permit.

Except as provided in this chapter, it shall be unlawful for any person to conduct a regulated activity that results or will result in incidental take of a regulated bird species or regulated habitat without obtaining and complying with a permit from the department. However, no permit shall be necessary for incidental take of regulated bird species or habitats unless the board has adopted a sector-specific plan requiring such permit. The board may adopt sector-specific plans for any of the following categories:

1. Commercial projects, including new construction or expansion:

a. Retail stores or malls;

b. Restaurants;

c. Lodging facilities;

d. Office buildings outside of an existing commercial park;

e. Commercial parks;

f. Medical facilities, including nursing homes, rehabilitation and convalescence centers;

g. Sports facilities; or

h. Other large-scale nonindustrial structures and facilities planned for commerce, health care, hospitality services, government use, or other business use.

2. Industrial projects, including new construction or expansion:

a. Industrial manufacturing buildings outside of an existing industrial park;

b. Industrial parks;

c. Sewage treatment plants;

d. Government facilities, such as warehouses and laboratories;

e. Power generation plants; or

f. Other large-scale noncommercial public, private, or governmental structures or facilities that directly engage in or are connected to the handling, storage, manufacturing, maintenance, treatment, or disposal of materials, products, goods, commodities, or hazardous waste.

3. Oil, gas, and wastewater disposal pits.

4. Methane or other gas burner pipes.

5. Communications towers.

6. Electric transmission and distribution lines.

7. Wind and solar energy projects.

8. Transportation projects.

4VAC15-35-40. Activities occurring before adoption of sector-specific plan.

No permit shall be necessary for any regulated activity that is actively under construction, has received all necessary permits and approvals but construction has not commenced or that has provided evidence of other contractual obligations that may be described in the appropriate sector-specific plan on or before the effective date of a sector-specific plan that would otherwise apply to that regulated activity. Upon request, the department may review the circumstances of a project and provide a letter stating that no permit is necessary to any person conducting such an activity.

4VAC15-35-50. Applicability of other laws or regulations.

Nothing in this section shall be interpreted to excuse compliance with the prohibitions, provisions or requirements of any other federal, state, or local laws, regulations, or ordinances, including the Virginia Endangered Species Act (§ 29.1-563 et seq. of the Code of Virginia); the federal Migratory Bird Treaty Act (16 USC § 703 et seq.), the federal Bald and Golden Eagle Protection Act (16 USC § 668 et seq.), and the federal Endangered Species Act (16 USC § 1531 et seq.).

4VAC15-35-60. Exemptions.

The following activities are exempt from the permitting requirements of this chapter. Any incidental take associated with these activities will not be considered a violation of this section:

1. Activities that are not defined as "regulated activities";

2. Agricultural and silvicultural activities;

3. Residential construction activities; and

4. Regulated activities performed under emergency situations, including activities necessary to restore essential services, protect human health, address a public safety issue, or prevent imminent damage to property.

4VAC15-35-70. Permits.

The following permits authorize incidental take resulting from regulated activities:

1. General permit.

a. The board may, by regulation, adopt a sector-specific plan that provides the framework for general permits issued for a particular category of regulated activities.

b. An applicant whose activities qualifies for a general permit must submit an application to the department and comply with all requirements stated in the sector-specific plan.

c. The general permit authorizes a regulated activity only if the activity and applicant satisfy all of the terms and conditions of the general permit and associated sector-specific plan.

d. An applicant for general permit coverage must adhere to the conditions set forth in this chapter pertaining to permit renewal, amendment, transfer, suspension, revocation, and other procedures for permit issuance. If a sector-specific plan expressly requires department review and authorization of general permit coverage, the applicant shall submit a permit application and any required documents, together with the applicable fee, to the department prior to commencing the proposed activity, and adhere to the [ following identified ] procedures unless the sector-specific plan otherwise specifies [ :. The department will review the permit application and required documents to ensure that the activity complies with the terms and conditions of the general permit. ]

[ (1) The department will review the permit application and required documents to ensure that the activity complies with the terms and conditions of the general permit.

(2) If the department determines that the proposed activity is not covered by the general permit, the department will notify and instruct the applicant on necessary procedures for obtaining an individual incidental take permit or provide the applicant with the opportunity to revise the proposed activity to ensure its compatibility with the general permit. ]

e. Incidental take by a regulated activity of regulated bird species or habitats shall be first avoided and then minimized through the use of best management practices described in the appropriate sector-specific plan or otherwise authorized by the department.

f. Persons authorized by the general permit may be required to monitor and report impacts to and the incidental take of regulated bird species that result from the regulated activity as set forth in the sector-specific plan.

g. No general permit coverage issued under this chapter shall be valid for a period of more than eight years after the date of its issuance, or such shorter term otherwise specified in the applicable sector-specific plan or requested by the applicant. An applicant may terminate a permit prior to the expiration of the defined term upon providing written evidence to the department of the conclusion of construction and fulfillment of any applicable monitoring or site closure requirements defined in the appropriate general permit.

h. If the department, upon receiving an application for a general permit, determines that the activity does not qualify for a general permit, but still requires a permit from the department, the department will notify the applicant in writing of the reasons that the activity does not qualify for a general permit. The applicant may revise the activity and resubmit the application for a general permit or submit an application for an individual incidental take permit.

2. Individual incidental take permit.

a. Applicants shall obtain individual incidental take permits under such terms and conditions necessary to avoid, minimize, or compensate for the incidental take of regulated bird species or habitats when:

(1) Regulated activities will occur within or adjacent to biologically significant avian habitat, or

(2) Required by the terms of the applicable sector-specific plan.

b. In addition to the conditions set forth in this section governing permit renewal, amendment, transfer, suspension, revocation, and other procedures for permit issuance, an applicant for an individual incidental take permit must adhere to the following procedures:

(1) The applicant shall prepare and submit an avian conservation and mitigation plan in accordance with the provisions in this section for department approval and must submit the applicable fee and any additional information and documents that the department determines are necessary for permit issuance. The applicant must receive final permit approval prior to commencing the proposed activity.

(2) The department shall review the applicant's permit application and included avian conservation and mitigation plan and shall notify the person applying for the permit in writing of any necessary amendments or additions.

(3) Impacts of a regulated activity on regulated bird species or habitats shall be first avoided and then minimized through the use of best management practices or other measures as described in the appropriate sector-specific plan and the avian conservation and mitigation plan. Persons authorized by the individual incidental take permit will be required to compensate for unavoidable incidental take of regulated bird species or habitats.

(4) Persons authorized by the individual take permit may be required to monitor and report impacts to and the incidental take of regulated bird species that result from the regulated activity as set forth in the sector-specific plan, individual incidental take permit, or avian conservation and mitigation plan.

(5) No individual incidental take permit issued under this subsection shall be for a period of more than 10 years after the date of its issuance or such shorter time period determined appropriate by the department or requested by the applicant. An applicant may terminate a permit prior to the expiration of the defined term upon providing written evidence to the department of the conclusion of construction and fulfillment of any applicable monitoring requirements defined in the individual incidental take permit.

c. An avian conservation and mitigation plan must provide sufficient information to demonstrate that the conservation criteria established in the individual incidental take permit will be fulfilled. The plan must clearly define the project's scope of work and the project's possible impacts on regulated bird species or habitats. In addition, the plan must include:

(1) A site plan drawn to scale showing the location of the proposed activity;

(2) A detailed description and schedule of the work to be performed;

(3) A quantitative or narrative description of the likely incidental take of regulated bird species or habitats;

(4) The steps the applicant will take to avoid, minimize, and compensate for such impacts, including:

(a) Avoidance, minimization, and compensation measures the applicant shall employ using reliable department-approved methods that are be based upon the best available science and utilizing the best practicable and necessary technology to meet the requirements of the applicable sector-specific plan. These measures shall be evaluated for effectiveness in a consistent and rigorous manner by the applicant throughout their implementation.

(b) Compensation measures that shall ensure that a naturally-sustaining ecosystem or quality of habitat comparable to the pre-activity conditions at the location of the regulated activity or within a reasonable proximity is established upon the activity's completion and achieves no net loss of regulated birds or habitats.

(c) Any actions included in the applicable sector-specific plan considered by the applicant and the reasons why such actions are not being utilized;

(d) A contingency plan to rectify any failures of implemented measures or actions necessary to provide additional protection to regulated bird species, including hazing programs or other temporary or emergency measures that would be instituted;

(e) A timeline of when each element of the plan will be completed; and

(f) Such other measures that the department or applicable sector-specific plan may require as being necessary or appropriate for purposes of the plan; and

(5) The avian conservation and mitigation plan may avoid duplication by incorporating information included in any permit application required by any other permitting agency. The plan shall identify by source, section, and page number when referencing such information.

d. While most general and individual incidental take permits will apply only to the construction phase of a regulated activity, nothing in this chapter shall prevent the board from including requirements for the operational phase of a particular regulated activity in a sector-specific plan if the board determines that operations are likely to incidentally take regulated bird species or habitats. If operational requirements are included in a sector-specific plan, permits may be renewed throughout the life of the regulated activity.

4VAC15-35-80. Permit procedures.

A. Required general information. A permit application must contain the following information:

1. Applicant's full name and address, telephone number, and, if available, fax number and email address;

a. If the applicant resides or is located outside of the Commonwealth of Virginia, the name and address of an agent located in the Commonwealth of Virginia; and

b. If the applicant is an entity, a description of the type of entity and the name and title of an individual who will be responsible for the permit;

2. Location of the regulated activity;

3. Certification in the following language: "I hereby certify that the information submitted in this application is complete and accurate to the best of my knowledge and belief";

4. Desired effective date of the permit except where issuance date is fixed by the sector-specific plan under which the permit is issued;

5. Desired duration of the permit, if less than the default term for the sector-specific plan under which the general or individual incidental take permit is requested;

6. Date of application;

7. Signature or electronic signature of the applicant; and

8. Such other information or documentation as may be required by the applicable sector-specific plan.

B. Administrative procedures.

1. The department shall determine the completeness of an application and shall notify the applicant of any determination within 45 calendar days of receipt. Where available to the applicant, electronic communication may be considered communication in writing.

a. If, within those 45 calendar days, the application is deemed to be incomplete, the applicant shall be notified in writing of the reasons the application is deemed incomplete. If the application is resubmitted, all deadlines in this section shall apply from the date of receipt of the resubmitted application.

b. If a determination of completeness is made and the associated sector-specific plan does not require additional department review, the application is deemed approved and the applicant will be notified in writing.

c. If a determination of completeness is not made and communicated to the applicant within 45 calendar days of receipt, the application shall be deemed complete on the 46th day after receipt.

d. If the application is complete and the associated sector-specific plan requires additional department review, the department will take no more than 120 days to review. Bundled projects subject to prior approval of biennial standards and specifications as described in 4VAC15-35-90 may take up to 180 days. If, at the end of the designated review period, the department has not taken final action on the application or notified the applicant in writing of the need for an additional 60 days for review, the application shall be deemed approved.

2. During the review period, the application shall be approved or disapproved, and the decision communicated in writing to the applicant. If the application is not approved, the reasons for not approving the application shall be provided in writing. Approval or denial shall be based on the application's compliance with the requirements of this chapter and the applicable sector-specific plan.

a. If the application is not approved, the applicant shall have 45 calendar days to revise the permit application to bring it into compliance with the appropriate sector-specific plan or to appeal the decision to the director of the department under the department's dispute resolution and administrative appeals procedure. The applicant may request, in writing, an extension of the timeframe in which to submit a revised application, not to exceed an additional 60 calendar days. If the revised application is not submitted within the defined timeframe, the department will administratively close the application.

b. Upon submission of a revised application after denial, the department shall have 120 days to review and make a determination. If the application is denied again, the applicant will have 45 days after denial to appeal the decision to the director of the department under the department's dispute resolution and administrative appeal procedure. Any new revisions to the permit must be submitted as a new application.

3. Upon approval of an application for an individual incidental take permit, the department will provide the applicant with a permit, including terms and conditions. The applicant shall have 30 calendar days to appeal terms and conditions to the department director under the department's dispute resolution and administrative appeals procedures.

C. Permit issuance.

1. Denial. The department shall not issue a permit if:

a. The applicant has one or more of the disqualifying factors included in subdivision 2 of this subsection;

b. The applicant has failed to disclose material information or has made false statements as to any material fact in connection with the application; or

c. The department determines that the application fails to comply with the applicable sector-specific plan or any other applicable wildlife law, regulation, or ordinance.

2. Disqualifying factors. The department will provide written notice of any known disqualifying factors to the applicant. Any one of the following will disqualify an applicant from receiving or exercising a permit:

a. A conviction of, or entry of a plea of guilty or nolo contendere by, the applicant or a representative of the applicant for a violation of the Lacey Act (16 USC § 3371 et seq.); the federal Migratory Bird Treaty Act (16 USC § 668 et seq.); the federal Bald and Golden Eagle Protection Act (16 USC § 668 et seq.); the federal Endangered Species Act (16 USC § 1531 et seq.); the Virginia Endangered Species Act (§ 29.1-563 et seq. of the Code of Virginia); or this chapter within the five-year period preceding the application, unless such disqualification has been expressly waived by the department in response to a request by the applicant.

b. The failure to pay any required fees.

c. The suspension of any other incidental take permit. The applicant is disqualified from receiving any additional incidental take permits as long as the suspension exists.

3. Fees. An application fee of $50 and a permit fee of $50 per year shall be due for each permit. The application fee shall be due at the time of application submittal, and no application shall be processed until the fee is received. The full amount of the permit fee shall be based on the default duration of the permit and is due at the time of certification if no approval is required. If the department's approval is required, the full amount of the permit fee is due upon approval or issuance of a permit. The fees will be deposited into the Nongame Cash Fund and used for the conservation and management of regulated bird species consistent with § 58.1-344.3 of the Code of Virginia. No refund of any fees paid shall be made if a permit application is denied or if a permit is terminated prior to the expiration date.

4. Permit renewal. Applications for renewal shall meet and comply with all requirements for permit application and be submitted at least 90 calendar days prior to the expiration of an existing permit.

5. Modifications to permits. Permits may be modified with the department's approval in accordance with the following:

a. Applicant's request. Where circumstances have changed so that an applicant desires to have any condition of the permit modified, the applicant must submit a full written justification and supporting information to the department in conformity with the terms and conditions under which the permit was issued.

b. Department determination. The department may amend any permit during its term where circumstances have changed such that amendments to the permit are deemed necessary by the department. In such instances, the department will notify the applicant in writing 60 calendar days in advance of the effective date of any amendment. The applicant shall have 30 calendar days to appeal the decision to the department director under the department's dispute resolution and administrative appeals procedures.

6. Transfer of permits and scope of permit authorization.

a. Except as otherwise provided for in this subsection, permits issued under this part are not transferable or assignable.

b. Permits may be transferred in whole or in part through a joint submission by the applicant and the proposed transferee, or, in the case of a deceased applicant, the deceased applicant's legal representative and the proposed transferee. The department will review the submission and approve the transfer provided that:

(1) The proposed transferee meets all of the qualifications under this part for holding a permit;

(2) The proposed transferee has provided adequate written assurances that it will implement the relevant terms and conditions of the permit; and

(3) The proposed transferee has provided other information that the department determines is relevant to the processing of the submission.

c. Except as otherwise stated on the face of the permit, any person who is under the direct control of the applicant or who is employed by or under contract to the applicant for purposes authorized by the permit may carry out the activity authorized by the permit. However, the applicant will remain responsible for ensuring compliance with all aspects of the permit.

7. Discontinuance of permit activity. When an applicant discontinues activities authorized by a permit, the applicant shall within 30 calendar days of the discontinuance notify the department of permit termination.

8. Permit inspections. The department shall have the right to perform inspections of a permitted activity to ensure compliance with permit conditions. Written, including electronic, or verbal notice of such inspection shall be given on a business day, and the inspection shall not occur no less than one and no more than five business days from the date of the notice, except when the department determines that an emergency inspection is necessary.

9. Permit suspension and revocation.

a. Criteria for suspension. The privileges of exercising some or all of the permit authority may be suspended at any time if the applicant is not in compliance with the conditions of the permit, the sector-specific plan, or any applicable laws or regulations governing the conduct of the regulated activity. Such suspension shall remain in effect until the department determines that the applicant has corrected the deficiencies.

b. Criteria for revocation. A permit may be revoked for any of the following reasons:

(1) The applicant willfully violates any provision of the Virginia Endangered Species Act (§ 29.1-563 et seq. of the Code of Virginia); the federal Migratory Bird Treaty Act (16 USC § 703 et seq.); the federal Bald and Golden Eagle Protection Act (16 USC § 668 et seq.); the federal Endangered Species Act (16 USC § 1531 et seq.); or the conditions or a permit issued under those acts or this chapter; or

(2) The applicant fails within 60 calendar days to correct deficiencies that were the cause of a permit suspension.

c. Procedure for suspension and revocation.

(1) The applicant shall be notified in writing of the suspension or revocation by certified or registered mail. This notice shall identify the permit to be suspended, the reasons for such suspension, and the actions necessary to correct the deficiencies and inform the applicant of the right to appeal the suspension. The department may amend any notice of suspension or revocation at any time.

(2) The applicant shall be provided with an opportunity to appeal the suspension or revocation within 30 calendar days of mailing the suspension or revocation notice. Appeal may be requested by filing a written objection specifying the reasons the applicant objects to the suspension or revocation and may include supporting documentation. Amendment of a notice of suspension or revocation will allow the applicant another 30 calendar days to appeal the decision from the date of mailing notice of the amendment if they have not already initiated an appeal.

(3) If at the end of 30 calendar days no appeal has been received by the department, a final order shall be issued suspending or revoking the permit.

(4) If the applicant timely submits an appeal, an informal fact-finding proceeding will be held within 30 calendar days, or at the option of the department or the applicant, a formal hearing may be scheduled as soon as may be practicable.

(5) Following an informal fact-finding proceeding or formal hearing, a final decision shall be made by the director within 30 calendar days of the informal fact-finding proceeding or receipt of a recommendation by any hearing officer.

4VAC15-35-90. Biennial standards and specifications.

Any person who will undertake multiple regulated activities requiring a permit may biennially submit a single set of standards and specifications for department approval that describes how covered regulated activities shall be conducted.

1. Such standards and specifications shall be consistent with the requirements of this chapter and the applicable sector-specific plans. Each project constructed for which a permit is required shall obtain such permit by filing a permit application referencing the approved standards and specifications and paying the fee applicable under 4VAC15-35-80 C 3 prior to the commencement of the regulated activity. The standards and specifications shall include:

a. A reference to which sector-specific plans are addressed by the standards and specifications;

b. A description of the regulated activities that the applicant intends to be addressed by the standards and specifications, and, if applicable, any other regulated activities that the applicant intends to conduct that will not utilize the standards and specifications;

c. Information satisfactory to the department demonstrating how regulated activities conducted under the standards and specifications will meet the requirements of the applicable sector-specific plans, together with a copy of any reference materials cited by the standards and specifications; and

d. Implementation by the applicant of a regulated activity tracking system of all regulated activities conducted under the standards and specification, together with a permittee self-monitoring program that will ensure compliance with the standards and specifications.

2. Such standards and specification may be utilized following department approval. Utilization of approved standards and specification shall not affect the department's authority to perform inspections of regulated activities addressed by the standards and specifications. Noncompliance with the approved standards and specifications shall have the same effect as noncompliance with the requirements of the applicable sector-specific plan for purposes of permit modification, suspension, or revocation under this section.

4VAC15-35-100. Enforcement; unpermitted regulated activities.

Administrative permit actions, including modification, suspension, and revocation, shall be addressed according to the department's dispute resolution and administrative appeals procedures. Any person conducting a regulated activity for which a permit is required by this chapter without such permit, including where a regulated activity has commenced without a permit or continued after permit suspension or revocation, shall be guilty of a Class 3 misdemeanor as specified by § 29.1-505 of the Code of Virginia.