RICHMOND, Va. — 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 across the U.S. 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 that says 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 decades-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 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.
Researchers at William & Mary and Virginia Commonwealth University said in a report published last year that the island supported “the most significant seabird colony in the state.”
The affected bird species used to have other nesting sites in the Hampton Roads region but they have been lost to sea level rise, erosion and development, said Sarah Karpanty, a professor in Virginia Tech’s department of Fish and Wildlife Conservation.
“This was like their last stand in Virginia,” said Karpanty, who along with other researchers contracted with the state in 2017 to assess conservation measures for the birds in light of the expansion project.
Karpanty, who called Friday’s announcement a big step forward, said the researchers submitted a report to the state with various recommendations that were not implemented after the Trump administration released its new opinion about the law.
“That did change things I think,” Karpanty 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. Other environmental organizations also praised the administration‘s plans.
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.