News & Updates

Update: Virginia Building Codes, Incidental Take Regulations, Wetland/Stream Mitigation Credits

Feb 24, 2021 | HBAV News

In This Issue:

Virginia Building Code Update

Virginia Dept. of Wildlife Resources Proposes Incidental Take Regulation

Wetland and Stream Mitigation Credit Legislation Approved by the General Assembly

Virginia Building Code Update

In April of 2019, the Virginia Board of Housing and Community Development (BHCD) initiated the 2018 Code Development Cycle to consider amendments to the Virginia Uniform Statewide Building Code (USBC), Statewide Fire Prevention Code (SFPC), and other codes. As we’ve written before, Virginia has received national recognition for its deliberate, inclusive, and transparent code development process which is due, in large part, to the staff at the Department of Housing and Community Development (DHCD) who oversee the process. Despite the pandemic’s impact on our ability to meet in person, DHCD was able to quickly transition to a virtual platform to minimize delays to the code development process. In under two years, the Board and countless stakeholders reviewed more than 250 code proposals over approximately 50 meetings.

Click here for an overview of the significant changes to the Virginia Construction Code, Virginia Existing Building Code, Virginia Maintenance Code, Virginia Statewide Fire Prevention Code, Manufactured Housing Safety Regulations, and Virginia Certification Standards.

When do these codes become effective?

The planned publication date of the final regulations to the Virginia Register is March 1, 2021 and will likely become effective on July 1, 2021.

However, 13VAC5-63-30 Section 103 of the final regulation states that upon the effective date of the 2018 code (7/1/2021), an applicant for a permit shall have one year to choose whether to comply with the provisions of the 2018 code or the provisions of the 2015 code. In short, the 2018 code does not become mandatory until July 1, 2022.

HBAV will send out an update when these dates are confirmed.

Virginia Dept. of Wildlife Resources Proposes Incidental Take Regulation

Since 2018, the U.S. Fish and Wildlife Service (USFWS) had been developing a Final Rule for the Regulations Governing Take of Migratory Birds, which would have limited the need for migratory bird “take permits” to instances where the action was a purposeful taking, capturing, or killing of these species, their nests, or their eggs. Additionally, actions such as the clearing of trees would no longer require an incidental take permit under the federal Migratory Bird Treaty Act (MBTA), because the action was not intended to “take” these species.   The USFWS published their final rule in January 2021 but was ultimately placed on hold by the Biden Administration.

In anticipation to the Federal government’s rollback of migratory bird regulations, the Virginia Department of Wildlife Resources (DWR) made the decision to establish its own Incidental Take regulations to “fill the gap”. On January 8, 2021, the Virginia Department of Wildlife Resources issued their proposed regulations (4VAC15-30-70: Incidental Take of Bird Species). The Department’s press release on the proposed regulation can be found here. The text of the proposed regulation can be found here.

The proposed regulation would require various types of development and construction activities to obtain either general permit coverage or individual permits, depending on the type of activity and/or the conservation status of impacted species. It also directs the Board of Wildlife Resources to develop “sector-specific plans” that would identify the amount and nature of allowable incidental take and outline the specific strategies, best practices, schedules, and criteria for eliminating or limiting incidental take caused by various development and construction activity.

No Immediate Impact on Development/Construction Activity

Even if the proposed regulation is adopted by the Board of Wildlife Resources in March, there will be no immediate impact to any type of development/construction activity – i.e., no additional permits will be required. These proposed regulations are “Phase 1” of a much longer process. If the proposed regulation is adopted, the Department would then convene stakeholder groups to begin formulating “sector-specific plans” for each of the development categories listed on page 4 of the draft regulations (industrial, commercial, communications towers, electric transmission lines, etc). If the Board does not include provisions to exempt residential, mixed-use, and/or multi-family residential developments, HBAV will be actively engaged in the stakeholder process

HBAV Response to Proposed Regulation

On February 21st, the HBAV submitted formal comments to the Department and Board, which can be found here. In short, HBAV requested:

  • A clarifying amendment to the proposed regulation to explicitly exempt “residential land development and construction activity” from future permitting and/or sector-specific plan regulations.
  • Prioritizing the list of sector-specific plans to be developed by the Board by magnitude of the sectors’ impact on migratory bird species. Data provided by the U.S. Fish & Wildlife Service shows that there were very few incidental take cases filed against residential, commercial, or mixed-use developments between 2010 – 2018.
  • That the Board also consider exempting multi-family and mixed-use developments, based on the U.S. Fish & Wildlife Service data mentioned above.

HBAV will send out updates on the Board’s deliberations next month.

Wetland and Stream Mitigation Credit Legislation Approved by the General Assembly

We are happy to report that one of HBAV’s top legislative priorities this Session, HB 1983 (David Bulova – Fairfax), has passed both the House of Delegates and State Senate. The bill will now be sent to the Governor’s office for consideration.

Over the last several years, the volatility in the wetland and stream mitigation credit market has deterred, delayed, or increased the cost of residential, commercial, and infrastructure projects in various regions of the Commonwealth. To address this issue, HBAV and the Virginia Association for Commercial Real-Estate worked with several stakeholders and Delegate David Bulova to introduce HB 1983.

Public and private entities seeking approval for a development project are often required to offset their impact on local aquatic features by purchasing wetland and stream credits from a mitigation bank. However, the Code of Virginia restricts the purchase of credits to mitigation banks located in a limited geographic region. In areas of the Commonwealth where numerous public and private entities are competing for a limited pool of credits, this restriction has resulted in periods of extreme volatility in credit pricing, as well as credit supply shortages.

HB 1983 seeks to stabilize credit pricing and supply by allowing an applicant to purchase mitigation credits from an expanded geographic area (the “secondary service area”) within the same river watershed when it can be demonstrated that no credits are available in the primary service area or when credit pricing reaches double the cost of the in-lieu fund for the area.

In exchange for the flexibility to purchase mitigation credits from the secondary service area, the applicant would be required to purchase additional credits and submit a tree planting, preservation, or replacement plan to the Department of Environmental Quality to demonstrate that the development site is projected to meet enhanced tree canopy requirements 20 years after development.

HB 1983 would not require an applicant to purchase credits from the secondary service area; applicants would still be permitted to purchase credits under existing law.