VIRGINIA

In April 2020, the Virginia Legislature approved a Governor’s Budget Amendment associated with the Hampton Roads Bridge-Tunnel (HRBT) migratory bird mitigation provision (House Bill 29, Item 372) that could have implications for construction projects state-wide.  In addition to granting authority to the Virginia Department of Game and Inland Fisheries that is specific to HRBT, the amendment includes the following:

“D.4. Any agency that exercises authority granted in paragraph D.1, or that issues any permit that has an adverse impact on fish and wildlife or their habitat, may require compensatory mitigation for such adverse impact as a condition of issuing the permit.

a.       For the purposes of this section, “compensatory mitigation” means addressing the direct and indirect adverse impacts to fish and wildlife and their habitats that may be caused by a construction project by avoiding and minimizing impacts to the extent practicable and then compensating for the remaining impacts.”

It remains to be seen how this wording will be implemented by state agencies such as the Department of Environmental Quality, Marine Resources Commission, and Department of Historic Resources.  The wording *could* be interpreted to apply to any construction project in Virginia with clearing of trees that could provide habitat to migratory birds or threatened and endangered species.  If so, potential implications may include pre-construction surveys, time of year restrictions for tree clearing, and compensatory mitigation requirements to address adverse impacts on fish and wildlife habitats. Examples of compensatory mitigation agreements include environmental restoration projects, purchase of mitigation bank credits, or in-lieu payments to existing state wildlife funds.  InterAgency will track this issue closely to see how Virginia state agencies respond and what this means for your construction projects moving forward. 

To discuss in detail, please reach out to InterAgency’s Environmental Director, Doug Chapin, at doug.chapin@interagency.biz.