Virginia passes incidental take regulation

[Laura Bies]

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Virginia has become the first state to issue regulations to protect migratory birds in the state against incidental take, in light of the previous federal administration's controversial reinterpretation of the Migratory Bird Treaty Act (MBTA).

In late 2017, the Department of Interior changed its interpretation of the MBTA to exclude incidental take from the scope of the Act, meaning that unintentional or accidental harming or killing of birds protected by the MBTA would no longer be prohibited. 

That interpretation was codified in a rule finalized during the final days of the Trump administration. The Biden administration delayed implementation of that rule for 30 days (although it recently went into effect) and is expected to soon release a proposal to replace that rule. 

In May 2018, the Natural Resources Defense Council and the National Audubon Society, along with other environmental organizations, filed a lawsuit challenging the internal guidance setting forth the new interpretation. Later that year, eight States (New York, California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico and Oregon) filed a similar lawsuit. These actions were consolidated into one, which argued that the new interpretation was contrary to the MBTA. The district court agreed, invalidating the memo upon which the new interpretation was based. The Trump administration filed an appeal to that ruling, which was recently dropped by the Biden administration. 

In early 2020, Virginia announced it would begin developing its own rule to prevent incidental take. A proposed regulation was released in December and the regulation was approved by the Board of Wildlife Resources this week. Virginia is the first state to issue such a regulation. 

The regulation establishes a framework for a permitting program for the incidental take of migratory birds in Virginia. It goes into effect on July 1. Under the new regulation, construction associated with commercial and industrial activities; oil, gas, and wastewater disposal pits; methane or other gas burner pipes; communications towers; electric transmission and distribution lines; wind and solar energy projects; and transportation projects will all require permits. 

Read Virginia’s press release here.

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