4VAC Definitions and Miscellaneous: In General. Endangered and threatened species; adoption of federal list; additional species enumerated.

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1 4VAC Definitions and Miscellaneous: In General. Endangered and threatened species; adoption of federal list; additional species enumerated. SUMMARY: The proposal is to (i) update the date reference to the federal list of endangered and threatened wildlife species; (ii) update the Virginia List of Endangered and Threatened Species to add the little brown bat and the tri-colored bat as endangered species and remove the state threatened upland sandpiper and Dismal Swamp southeastern shrew to reflect their status in Virginia more accurately; and (iii) to describe certain activities in which incidental take of the little brown bat and the tri-colored bat may occur, that may be conducted without a permit from the Department, provided that the activities are performed in certain manners. PROPOSED LANGUAGE OF AMENDMENT: 4VAC Endangered and threatened species; adoption of federal list; additional species enumerated. A. The board hereby adopts the Federal Endangered and Threatened Species List, Endangered Species Act of December 28, 1973 (16 USC ), as amended as of May 20, 2014 October 2, 2015, and declares all species listed thereon to be endangered or threatened species in the Commonwealth. Pursuant to Code , the director of the department is hereby delegated authority to propose adoption of modifications and amendments to the Federal Endangered and Threatened Species List, in accordance with the procedures of Code and B. In addition to the provisions of subsection A, the following species are declared endangered or threatened in this Commonwealth, and are afforded the protection provided by Article 6 ( et seq.) of Chapter 5 of Title 29.1 of the Code of Virginia: Dace, Tennessee Darter, sharphead Darter, variegate Sunfish, blackbanded Darter, Carolina Darter, golden Darter, greenfin Darter, sickle Darter, western sand Madtom, orangefin Paddlefish 1. Fish: Phoxinus tennesseensis Etheostoma acuticeps Etheostoma variatum Enneacanthus chaetodon Etheostoma collis Etheostoma denoncourti Etheostoma chlorobranchium Percina williamsi Ammocrypta clara Noturus gilberti Polyodon spathula 1

2 Shiner, emerald Shiner, steelcolor Shiner, whitemouth Salamander, eastern tiger Salamander, Mabee's Treefrog, barking Rattlesnake, canebrake (Coastal Plain population of timber rattlesnake) Turtle, bog Turtle, eastern chicken Lizard, eastern glass Turtle, wood Plover, Wilson's Rail, black Wren, Bewick's Falcon, peregrine Sandpiper, upland Shrike, loggerhead Sparrow, Bachman's Sparrow, Henslow's Tern, gull-billed Bat, Rafinesque s eastern big-eared Bat, little brown Bat, tri-colored Hare, snowshoe Shrew, American water Vole, rock Notropis atherinoides Cyprinella whipplei Notropis alborus 2. Amphibians: Ambystoma tigrinum Ambystoma mabeei Hyla gratiosa 3. Reptiles: Crotalus horridus Glyptemys muhlenbergii Deirochelys reticularia reticularia Ophisaurus ventralis Glyptemys insculpta 4. Birds: Charadrius wilsonia Laterallus jamaicensis Thryomanes bewickii Falco peregrinus Bartramia longicauda Lanius ludovicianus Aimophila aestivalis Ammodramus henslowii Sterna nilotica 5. Mammals: Corynorhinus rafinesquii macrotis Myotis lucifugus Perimyotis subflavus Lepus americanus Sorex palustris Microtus chrotorrhinus 2

3 Shrew, Dismal Swamp southeastern Ghostsnail, thankless Coil, rubble Coil, shaggy Deertoe Elephantear Elimia, spider Floater, brook Heelsplitter, Tennessee Lilliput, purple Mussel, slippershell Pigtoe, Ohio Pigtoe, pyramid Springsnail, Appalachian Springsnail (no common name) Supercoil, spirit Floater, green Papershell, fragile Pigtoe, Atlantic Pimpleback Pistolgrip Riversnail, spiny Sandshell, black Supercoil, brown Amphipod, Madison Cave Pseudotremia, Ellett Valley Xystodesmid, Laurel Creek Crayfish, Big Sandy Sorex longirostris fisheri 6. Molluscs: Holsingeria unthanksensis Helicodiscus lirellus Helicodiscus diadema Truncilla truncata Elliptio crassidens Elimia arachnoidea Alasmidonta varicosa Lasmigona holstonia Toxolasma lividus Alasmidonta viridis Pleurobema cordatum Pleurobema rubrum Fontigens bottimeri Fonitgens morrisoni Paravitrea hera Lasmigona subviridis Leptodea fragilis Fusconaia masoni Quadrula pustulosa pustulosa Tritogonia verrucosa Io fluvialis Ligumia recta Paravitrea septadens 7. Arthropods: Stygobromus stegerorum Pseudotremia cavernarum Sigmoria whiteheadi 8. Crustaceans: Cambarus veteranus C. It shall be unlawful to take, transport, process, sell, or offer for sale within the Commonwealth any threatened or endangered species of fish or wildlife except as authorized by law. 3

4 D. The incidental take of certain species may occur in certain circumstances and with the implementation of certain conservation practices, as described below: Species Location Allowable Circumstances Little brown bat Tri-colored bat Statewide Human health risk need for removal of individual animals from human-habited structures Public safety or property damage risk need for tree removal, application of prescribed fire, or other land Required Conservation Measures Between May 15 and August 31, no exclusion of bats from maternity colonies, except for human health concerns. DGIF-permitted nuisance wildlife control operator with DGIF-recognized certification in techniques associated with removal of bats Use of exclusion devices that allow individual animals to escape Manual collection of individual animals incapable of sustaining themselves; transport to a willing and appropriatelypermitted wildlife rehabilitator. Hibernacula: no tree removal, use of prescribed fire, or other land management action within buffer area from September 1 through April 30, if Expected Incidental Take Little to no direct lethal taking expected Little to no direct lethal taking expected 4

5 management actions affecting known roosts; removal of animals from known roosts. possible. Otherwise, document the need (public safety, property damage risk) for tree removal during this period and verify that no known roost trees exist in the buffer area. Known Roost Trees: no tree removal, use of prescribed fire, or other land management action within buffer area from May 1 through August 31, if possible. Otherwise, document public safety or property damage risk. DGIF-permitted nuisance wildlife control operator with DGIF-recognized certification in techniques associated with removal of bats Use of exclusion devices that allow individual animals to escape Manual collection of individual animals incapable of sustaining themselves; transport to a willing and appropriatelypermitted wildlife rehabilitator. 5

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7 RATIONALE: (i) (ii) Adoption of the updated and modified federal list of endangered and threatened wildlife species: Maintaining the currency of the Board s adoption of the federal list is essential to clarifying the state and federal status of each affected species and to ensuring compliance with our Cooperative Agreements with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding interagency management of these species. Changes to the State List of Endangered and Threatened Species Addition of the little brown bat and tri-colored bat as state endangered species: Several issues are contributing or have the potential to contribute to the decline and possible extirpation of these two species in Virginia. The most significant issue is the discovery of white-nose syndrome (WNS) in Virginia in The little brown bat was considered one of the most common bat species found throughout Virginia. Between 2009 and 2014, WNS caused a 98.8% decline in little brown bat hibernacula (wintering) populations in the state. In addition, surveys at six summer maternity colonies between 2009 and 2012 showed a decline of 98%. The tri-colored bat was also considered one of the more common bat species found throughout Virginia. Between 2009 and 2013, WNS caused a 91.8% decline in tri-colored bat hibernacula (wintering) populations in the state. In addition, fall swarm surveys showed a decline of 92.7% in captures between 2009 and Importantly, the continued decline of these species and other cave bats, will result in a reduction of night-flying insect predators that help keep forests, residential, and agricultural pests in check. Listing these species will provide the DGIF with more authority in commenting on permitted projects that affect them. Through development of a state conservation plan, cooperative conservation efforts with public and private landowners will be elevated, affording conservation opportunities that may not be available otherwise, while limiting administrative, economic, and political burdens. Delisting/removal of the upland sandpiper and Dismal Swamp southeastern shrew as state threatened species: Historically the upland sandpiper was likely not a significant part of Virginia s avifauna and has never been abundant in the state. The core of the upland sandpiper s range is in the northcentral United States. Virginia is on the far southeastern edge of the distribution range for this species, and it is only known from a few locations in northern Virginia. In the state, this species utilizes artificial habitats created by sod farms and the extensive short grass on airports; there is little to no natural habitat present. This species occurs in very low numbers in Virginia and likely would not occur without the presence of artificial habitat. Historically, the Dismal Swamp southeastern shrew was thought to be restricted to the Dismal Swamp in southeastern Virginia and northeastern North Carolina. Because of limited distribution and perceived threats to its habitat, the U.S. Fish and Wildlife Service 7

8 (USFWS) listed the species as federally threatened in Additional surveys in the late 1990s, along with genetic studies, demonstrated the species to have a wider range and broader habitat preference than originally known. This new information led the USFWS to remove the southeastern shrew from the Federal list of Endangered and Threatened Wildlife in Continuing concerns about habitat modifications and limited distribution in the Virginia portion of its range, however, led the DGIF to include it as a state threatened species at that time. Recent reviews of the status of this species in the Commonwealth have found it to be more widely distributed and using a wider range of habitat types than previously thought. Removal of these species from the state list of endangered and threatened species will more accurately reflect their status in Virginia based on current information. Removal of these species will also reduce the economic, administrative, and political burdens that are associated with the current listing status. (iii) Provisions for the incidental take of certain listed species: Because of the significant impacts in Virginia due to WNS, additional losses of little brown bats and tri-colored bats resulting from actual take, disturbance at roosts, or loss of roosts have the potential to exacerbate or accelerate the decline of these species. Staff recognizes that certain existing activities intended to reduce risk, such as the removal of bats from homes or the removal of trees over roads, could be negatively impacted by designation of these species as state endangered. However, understanding that WNS is the major cause of the species decline, and that the aforementioned activities were not negatively impacting these species pre-wns, of the Code of Virginia will allow the DGIF the opportunity to focus efforts on WNS without impacting certain other activities in areas where the species occurs. The Board is authorized to allow for the incidental take of a state-listed species via regulation. The regulation shall describe the specific circumstance for which incidental take is authorized; identify provisions or conservation actions to enhance the long-term survival of the species and keep the actual taking of the target animal to a minimum. A companion guidance document (included here) has been developed to provide more information regarding conservation measures and incidental take actions. 8