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Virginia Administrative Code
Title 4. Conservation And Natural Resources
Agency 15. Department of Wildlife Resources
Chapter 35. Birds: Incidental Take of Bird Species
11/30/2022

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 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.

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.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 37, Issue 26, eff. August 1, 2021.

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