When black skimmers, royal terns and other migrating seabirds return to South Island this spring, they will be greeted by a fresh layer of pavement.
The Virginia Department of Transportation recently paved over the island to discourage the flock — more than 25,000 birds, most representing species in decline — from making their nests there. The state is claiming the space for a five-year, nearly $4 billion widening of the Interstate 64 Hampton Roads Bridge Tunnel, where the James River meets the Chesapeake Bay. The project is expected to begin later this year.
Under a new Trump administration interpretation of a century-old law, that could have been the end of the road for Virginia’s largest colony of nesting seabirds. In a reversal involving one of the oldest environmental laws in the country, the federal government is no longer penalizing those who take actions that lead to the unintentional killing of birds or destruction of their nests.
But facing mounting pressure from environmental groups, Gov. Ralph Northam’s administration recently stepped in and promised to find an alternative to help the birds, though details remain unclear.
Acting at the governor’s direction, officials from VDOT and other state agencies vowed in February to work with the U.S. Army Corps of Engineers to “assess the feasibility” of building an artificial island for the displaced birds. In the meantime, they said they will develop temporary nesting grounds, including anchoring sand-covered barges near the birds’ former summer home.
The avian drama may not pack as much suspense as a certain Alfred Hitchcock movie, but it contains about as many twists and turns. Scores of documents obtained by the Bay Journal from VDOT through a public records request show how the federal regulatory change blindsided the state’s bridge planners. And the records reveal that while the bird-preservation effort may have surmounted a Trump administration roadblock, it still faces several critical obstacles.
A bird island is born
Traffic on the 3.5-mile bridge and its two parallel tunnels is notoriously bad. Backups around Hampton on the north shore and Norfolk on the south can stretch up to 6 miles during commuting periods. Summer’s peak season brings more than 100,000 vehicles across it per day.
The state’s strategy to alleviate the bottleneck at the existing two tunnels largely rests on digging a third beneath the river. The finished subterranean highway will grow from four to eight lanes.
The bird flap centers on about 5 acres of dredge spoil constructed in 1957 as the southern landing spot for the tunnel portion of the crossing.
Where it wasn’t paved, the piece of land known as South Island was covered in sand. Jetty stones ring the perimeter. And, from the 1980s to last year, it was alive with thousands of adult birds and their nests from April to August.
None of the South Island species are listed as federally endangered or threatened, although one of the inhabitants, the gull-billed tern, is considered threatened at the state level. Because of their status as migratory birds, though, they are protected under one of the earliest environmental laws in the country: the Migratory Bird Treaty Act of 1918.
Congress passed the law at a time when the biggest threat to the birds was ladies’ hats. The plume trade has long since diminished, but new threats have emerged. Today, ornithologists say, migratory birds face a deadly mixture of pressures, including an expanding population of animal predators as well as habitat loss to development and sea level rise.
Scientists estimate that Virginia’s seabird population has plummeted 36% since the early 1990s. Certain species, including black skimmers and common terns, have seen declines of more than 50%.
Seabirds once nested across coastal Virginia. But as their habitat dwindled elsewhere, the flock continued to grow at South Island. In recent years, it had become their last “stronghold” in the state, said Sarah Karpanty, a Virginia Tech bird researcher who has studied the colony.
To be successful, a seabird colony requires a ready supply of fish for feeding, sandy or gravelly terrain for nesting and a landscape free from raccoons, foxes and other predators.
“South Island has all those things,” Karpanty said.
To complete the third tunnel, though, engineers say they needed to develop the rest of the island.
Not a voluntary endeavor
In 2017, VDOT commissioned Karpanty and her colleagues to analyze the colony and evaluate nearby alternative nesting sites that could be transformed into South Island’s replacement. State officials knew it would probably be a costly commitment to save the birds; other states have paid nearly $10 million to create islands for preservation purposes.
At the beginning, the bridge project’s leadership made it clear that their motivation wasn’t driven by sheer altruism but by the mandates of the migratory bird act.
“We cannot take the position that the agreed upon conservation measures (or mitigation) are ‘voluntary,’” an official in VDOT environmental office implored in an email to colleagues in September 2017 as the South Island bird plan was taking shape.
But soon, the state would have to do just that if it was going to preserve the colony at all.
'Virginia is stepping up'
The migratory bird law makes it illegal to kill any migratory bird or destroy its nest. Such intentional bird deaths, though, are rare. Far more are wiped out unintentionally by oil spills, wind turbines and other industrial activities. For decades, one administration after another interpreted such “incidental takes” as criminal violations of the law unless they were allowed by a permit.
In December 2017, the Interior Department’s legal counsel decriminalized that category of bird deaths, declaring that its application “hangs the sword of Damocles over a host of otherwise lawful and productive actions.”
Within months, the U.S. Fish and Wildlife Service, the agency charged with enforcing the act, notified VDOT officials that any “continued conservation efforts” for migratory birds on their part would be “purely voluntary.”
The new federal interpretation hamstrung the state by removing “some of our ability to force certain behaviors and took our ability to fund those in some circumstances,” said Josh Saks, deputy secretary of Natural Resources. Without a federal mandate hanging over their heads — like a certain sword — state officials found their hands tied when it came to spending money for habitat construction.
It appears that the state shelved any large-scale conservation efforts after receiving that all-clear. But after a December 2019 New York Times article highlighted the about-face in southeastern Virginia, Northam’s administration emerged two months later with its own proposal.
“This plan demonstrates that infrastructure and development can and must be compatible with wildlife conservation,” Northam said. “It also shows that Virginia is stepping up when federal policies change environmental protections.”
Environmental groups lauded the state for going forward with the conservation work, even though it was no longer federally required.
“We’re very pleased to see the [state] administration taking leadership and taking care of what is in many ways an external threat” from Washington, said Christy Everett, the Hampton Roads regional director for the Chesapeake Bay Foundation.
For his part, Mike Parr, president of the American Bird Conservancy, said that he is relieved that state officials have had an apparent change of heart.
“They came up with a lot of things in a fairly tight timeline on this,” he said. “There may be a slight loss [in bird numbers] in the short term, but they’re taking steps they can take.”
Still, if the challenges that loomed during the earlier round of planning are any indication, those steps may not be easy.
The Virginia Tech report recommended expanding South Island or creating a standalone island for birds. The state is pursuing that idea again, according to the governor’s office.
But the National Oceanic and Atmospheric Administration quashed the state’s previous island-making plans in their infancy. The federal agency is charged with protecting “essential fish habitat.” NOAA argued that filling in nearly 7 acres of the river’s bottom adjacent to South Island, as the state had proposed, may not be necessary when other options on existing dry land might be available.
The state will likely need to find acceptable trade-offs to overcome the quandary, Saks said.
“Obviously, if we’re going to build an island, there are a lot of equities we’ll need to balance,” he noted.
When it became apparent that creating new land wasn’t feasible because of concerns over the loss of fish habitat, the state considered transforming a small peninsula called Willoughby Spit into bird habitat. VDOT had bought a portion of the spit as a staging area for the construction project.
VDOT asked Fish and Wildlife early that year to give its opinion on the site, calling it “the most biologically effective option.” But before federal biologists could respond, VDOT called off the plan over new concerns raised by the Navy.
The new location was 1.5 miles closer to Naval Station Norfolk. The birds could become a flight hazard for passing jets and helicopters, the Navy said.
“You have an aircraft flying at a high rate of speed. An impact with even a small bird can lead to significant damage to an aircraft,” the Navy’s Steve Jones said in an interview. “Life comes first.”
After moving on from Willoughby Spit, VDOT advised Fish and Wildlife that all other land options “were fully evaluated and vetted” but ultimately “eliminated from further review.” That list included Fort Wool, a peninsula connected to South Island by a strand of jetty stones, but was rejected because the presence of a decommissioned military building on the site was likely to repel certain birds.
But that small piece of land is now being developed into a short-term nesting ground for the colony. Although her report dismissed Fort Wool as a permanent home for the birds, Karpanty said she supports the plan in combination with the other proposed measures, such as the barges.
When it comes to preserving the colony, she added, “all efforts should be made.”
In January, the Trump administration moved to solidify the migratory bird opinion into a regulation, making it more difficult for future administrations to undo.
Virginia leaders, meanwhile, are moving in a different direction. In his February announcement, Northam said that the Department of Game and Inland Fisheries has begun developing a state-level “incidental take” regulation for the birds.
A draft of the state rule is expected to be released in coming weeks.