After federal rollback, Virginia offers new bird protections

Published: Feb. 14, 2020 at 12:21 PM EST
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Virginia officials announced plans Friday to create new habitat for about 25,000 seabirds after their nesting grounds were paved for a state tunnel expansion project — a case that highlighted weakened protections for birds under President Donald Trump.

Democratic Gov. Ralph Northam's office said the state was acting because of the Trump administration's new interpretation of the federal Migratory Bird Treaty Act to say accidental bird deaths are not enforceable under the century-old law.

“Had this federal policy remained unchanged, it would have protected the birds on South Island from harm,” Northam's office said in a statement.

The announcement comes after the Virginia Department of Transportation earlier this month confirmed to The Virginian-Pilot the extent of the damage to the 40-year-old nesting site. It also follows a New York Times story in December that said state officials had ended work on conservation measures for the birds after federal officials advised such measures were “ purely voluntary ” under the new interpretation of the law.

The Virginia Department of Game and Inland Fisheries will create a new habitat for the birds by preparing an artificial island adjacent to the Hampton Roads Bridge-Tunnel, officials said. The department will also seek authorization to put barges in place to provide additional nesting habitat in advance of the upcoming nesting season.

Since the Hampton Roads Bridge-Tunnel, which connects Norfolk and Hampton and is frequently clogged with traffic, was constructed in the 1950s, the artificial South Island had become a nesting site for as many as 25,000 migratory birds, including royal terns, gulls and other nesting species, the state said.

Upon completion of the multibillion-dollar expansion project, the Virginia Department of Transportation will restore a portion of nesting habitat on South Island to the maximum extent possible, according to the news release.

Northam's office also said the Department of Game and Inland Fisheries has started developing a regulation dealing with the “incidental take” of migratory birds — which refers to animals being accidentally killed — from major commercial, industrial, and construction projects.

California is the only other state to take such steps since the Trump administration’s rollbacks, the National Audubon Society said in a statement.

“We’ve lost 3 billion birds since 1970 and two-thirds are at risk of extinction due to climate change. Governor Northam’s leadership comes at a critical time and is a huge victory for birds,” said David O’Neill, chief conservation officer of the nonprofit conservation organization.

The Virginia nesting site case is a leading example of the effects of the Trump administration’s decision to no longer protect more than a thousand bird species from being accidentally killed during construction projects or other industrial activities, said Bob Dreher, a former associate director at the U.S. Fish and Wildlife Service now with Defenders of Wildlife.

Without those protections, there was no federal money available to protect or improve habitat elsewhere as an alternative nesting grounds for birds affected by the bridge and tunnel project, according to Dreher.

But he added that state officials shared responsibility for waiting until months after the nesting site was largely destroyed to come up with a restoration plan.

The birds are expected to return this spring to nest again.

“We commend them for moving forward,” Dreher said. “It would have been really nice if they did this six months ago.”

Northam spokeswoman Alena Yarmosky said in a statement that although Virginia was no longer legally required to mitigate habitat loss, this work “has been ongoing for the past several months.”

A Department of Interior legal opinion in December 2017 reversed the agency’s longstanding policy of enforcing a provision of the migratory bird act that protects birds from incidental take.

Criminal charges had been brought only rarely under the law. Yet those cases highlighted what critics including Republican lawmakers said was an unfair application of an act originally aimed against activities such as poaching.

The Trump administration last month proposed a new rule that would effectively cement the 2017 legal into federal regulation, making it harder but not impossible for a future administration to reverse.


Jan. 8

An estimated 25,000 seabirds lost their nesting site of 40 years when it was paved over during a tunnel expansion project in coastal Virginia, state Department of Transportation officials confirmed to a newspaper.

Crews finished paving the entire south island of the nearly $4 billion Hampton Roads Bridge-Tunnel last month, a Transportation Department spokeswoman told The Virginian-Pilot, and in doing so did away with a large bird colony's nesting area while those birds were migrating south for the winter.

A new island for the birds will not be constructed, the department confirmed. And officials said they won't know how it will affect the population until the animals return in the spring. Researchers think some will try to lay eggs while others will fly off to find another spot to call home, the newspaper reported.

Transportation officials did work with researchers and federal agencies to establish another place for them to live, but those efforts were largely abandoned after the Trump administration came out with an interpretation of the Migratory Bird Treaty Act in 2017. The interpretation loosened repercussions for bird deaths during construction projects like that of the Hampton Roads Bridge-Tunnel.

Now, the U.S. Fish and Wildlife Service says Virginia's conservation efforts for the birds are “purely voluntary," news outlets reported.

Still, in October, the Department of Game and Inland Fisheries submitted a request to the Army Corps of Engineers to use dredged material to build a bird island, according to the agency’s executive director Ryan Brown. But that could take years, and cost and feasibility is still unknown, he said.

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