Volume 26, Number 2 ● February 23, 2018
In This Issue:
DOI Reverses Opinion – Migratory Bird Treaty Act Does NOT Prohibit Incidental Take
Potential Permit Delays: Tribes Gain Recognition, Including Consultation Rights
WOTUS 2020 - EPA and Department of the Army Delay Clean Water Rule of 2015
Working in Maryland Streams? Be Aware of Time of Year Restrictions!
8th Annual Reston Kids' Trout Fishing Day – Right Around the Corner!
DOI Reverses Opinion – Migratory Bird Treaty Act Does NOT Prohibit Incidental Take
Robins are one of many species protected by the MBTA
photo credit: American Robin (Turdus migratorius) by mdf via Wikimedia Commons
The Department of the Interior (DOI) recently released M-37050: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, formally defining its position that the penalties for pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to intentional actions, and do NOT apply to incidental or accidental take of migratory birds. M-37050 permanently withdraws and replaces M-37041 Incidental Take Prohibited Under the Migratory Bird Treaty Act, which means project developers no longer face the threat of prosecution for accidentally killing migratory birds during tree-clearing or construction.
Potential Permit Delays: Tribes Gain Recognition, Including Consultation Rights
Six Virginia-based tribes won a 19-year battle for federal recognition in January when H.R. 981, the Virginia Federal Recognition Act of 2017, won Congressional and Presidential approval. Projects within the ancestral grounds will need to consult with tribal representatives to satisfy Section 106 of the National Historic Preservation Act, a process that could delay projects across Virginia, as well as the District of Columbia, Maryland, and beyond into other states where the tribes have potential areas of interest.
WOTUS 2020 - EPA and Department of the Army Delay Clean Water Rule of 2015
On February 6, 2018, the EPA and Department of the Army published a final rule to the 2015 Clean Water Rule: Definition of ‘Waters of the United States’, adding an applicability date of February 6, 2020. This final rule delays the implementation of the 2015 Rule, and gives the agencies time to re-evaluate the definition of ‘waters of the United States’ (WOTUS). While there would have been little impact to Virginia or Maryland, land developers in other parts of the United States would have faced big changes in the limits of jurisdictional wetlands with the implementation of the 2015 Rule.
Working in Maryland Streams? Be Aware of Time of Year Restrictions!
Unnamed tributary to Muddy Branch in Gaithersburg, Maryland
Every waterway in Maryland is protected by restrictions on instream work – these Time of Year Restrictions (TOYR) help minimize impacts to aquatic habitats during construction projects. The Maryland Department of the Environment (MDE) enforces restrictions by routinely visiting job sites to ensure contractors are not working in streams during restricted times of year, and will shut down those projects that are in violation. You can avoid violations and project delays by being aware of the Maryland Stream Use Classification for streams on your project sites prior to construction, and by planning any instream work around the TOYR period.
Holy Tricolored Bat, Man! USFWS Invites Comments on Tricolored Bat Threatened or Endangered Species Listing
In December 2017, the U.S. Fish and Wildlife Service (USFWS) announced a 90-day finding [link to Federal Register] for the tricolored bat (Perimyotis subflavus) – one of the most common bat species native to the eastern United States (map). With this finding, the USFWS is inviting scientific and commercial stakeholders to submit comments as the agency further investigates whether the tricolored bat should be listed as threatened or endangered under the Endangered Species Act (ESA). If listed, this change could halt development projects that involve tree-clearing until a bat survey can be completed, and further delay those projects where the bat is found by limiting tree-clearing to specific times of year and defined parameters.
Tricolored bat by U.S. Fish and Wildlife Service Southeast Region (uploaded by Albert Herring), via Wikimedia Commons
2018 Dam Safety Grants
WSSI staff inspecting a dam.
The Virginia Department of Conservation and Recreation (DCR) has announced that dam owners and local governments can apply for $900,000 in grants from the Virginia Dam Safety, Flood Prevention, and Protection Assistance Fund. For existing state regulated dams that are owned by local governments or private entities, 50% matching grants will be available to help offset engineering costs associated with dam safety improvements. Applications are due March 30.
8th Annual Reston Kids' Trout Fishing Day – Right Around the Corner!
For some, it's an opportunity to fish for the first time.
On Saturday March 24th, kids age 3-15 are invited to attend the 8th Annual Reston Kids’ Trout Fishing Day. Sponsors Wetland Studies and Solutions, Reston Association, Friends of Reston, the Virginia Department of Game and Inland Fisheries, Northern Virginia Trout Unlimited, and the Wildlife Foundation of Virginia are hosting this event along a section of Snakeden Branch that WSSI restored in the spring of 2009 as part of the Northern Virginia Stream Restoration Bank.