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Virginia Opens Comment Period On Groundbreaking Rule To Ensure Development Protects Migratory Birds

The Department of Wildlife Resources (DWR) is holding an open comment period for a proposed new regulation regarding the incidental take of migratory birds and their habitats in Virginia. “Incidental take” refers to unintentional, but not unexpected, killing, harming or disturbance of birds, or the destruction or degradation of bird habitats which may significantly or permanently hinder normal bird behaviors such as breeding, feeding or resting.

The Board of Wildlife Resources voted in mid-December to propose a new regulation that would establish a framework for permitting the incidental take of migratory birds in Virginia, in the absence of effective enforcement at the federal level under the Migratory Bird Treaty Act. This action addresses a directive issued by Governor Northam in February 2020 to enhance the conservation of birds across the Commonwealth, including Virginia’s largest seabird colony using an island that is part of the Hampton Roads Bridge-Tunnel. Specifically, the Governor charged the DWR and its Board with developing a policy backstop to protect migratory birds.

The first of its kind in the country, the proposed regulation establishes a framework for the administration, implementation and enforcement of a permitting program addressing the incidental take of migratory birds and the habitats that they use in Virginia. The framework provides protections to migratory bird species while allowing limited take that may occur incidental to otherwise lawful regulated activities, such as the construction of commercial or transportation projects, where the intent of the activity is not to take migratory birds. These protections are achieved through the issuance of permits that identify best management practices intended to avoid, then minimize, incidental take, and that identify expectations for compensation of unavoidable take.

This regulation will be available for public comment on the DWR website:, Friday, Jan 8 through 11:59pm on February 22, 2021.

The Department encourages all interested parties to submit comments for review.

  • January 8, 2021