Environmental Technical Assistance Program Newsletter

State departments of transportation may soon be forced to adapt to changing rules surrounding the protection of migratory birds within transportation construction projects.

As noted in part one of this story, a notice of proposed rulemaking originally issued January 30 by the U.S. Fish and Wildlife Service (FWS) – with a comment period set to end on July 20 – would change key aspects of the Migratory Bird Treaty Act of 1918 or MBTA in terms of how state DOTs manage migratory bird populations during transportation construction activities and would prevent them from being fined for accidentally killing birds such as geese, herons, ducks, and other migratory species.

Under the proposed rule change, many requirements would be considered voluntary and could result in many protective undertakings to be abandoned. 

One example centers on the Virginia Department of Transportation Hampton Roads Bridge-Tunnel expansion project. An estimated 25,000 seabirds recently lost their nesting site of 40 years when the entire South Island of the Bridge-Tunnel project was paved over during the tunnel expansion project. In early 2020. state DOT officials began work with researchers and federal agencies to establish alternative nesting areas, but those efforts were abandoned when the proposed rule loosened repercussions for bird deaths during construction and when federal money to protect or relocate the habitats elsewhere was eliminated.

As a result, Virginia’s Department of Game and Inland Fisheries submitted a request to the Army Corps of Engineers to use dredged material to build a new bird island to mitigate the situation and Governor Ralph Northam (D) acted in February to make sure this mitigation effort would occur. The Department of Game and Inland Fisheries plans to create a new habitat for the birds by preparing the artificial island adjacent to the Hampton Roads Bridge-Tunnel and will also seek authorization to put barges in place to provide additional nesting habitat in advance of the upcoming nesting season.

Furthermore, the Department of Game and Inland Fisheries has started developing a state regulation dealing with the “incidental take” of migratory birds; a step only California has emulated to date.

That illustrates the decisions state governments and state DOTs alike across the country may face in terms of protecting migratory birds during construction and inspection activities under the new FWS regulatory initiative.

The Migratory Bird Treaty Act of 1918 or MBTA – which guides the evaluation of bird nesting areas and flight paths in order to avoid “taking” of the creature’s lives unnecessarily – may change due to a notice of proposed rulemaking originally issued January 30 by the U.S. Fish and Wildlife Service (FWS), with its comment period set to end on July 20.

That proposed rulemaking would codify the Department of the Interior’s existing interpretation that MBTA only applies to actions “directed at” migratory birds, their nests, or their eggs and would not apply to any incidental killing of birds due to commercial activity.

This action may also change the way state of departments or transportation have traditionally dealt with migratory bird regulations and would also prevent them from being fined for accidentally killing birds such as geese, herons, ducks, and other migratory species.

Migratory birds are frequently killed by industrial construction activities and accidents such as oil spills or collisions with aircraft, such as the 2009 commercial jetliner crash-landing on the Hudson River after the plane collided with geese and lost all engine power.

Migratory birds also often make their homes in highway structures or nest in areas where construction is planned and as a result, over the past decade, the MBTA’s prohibitions have been an increasing target of litigation. In enforcing the MBTA, the federal government has typically relied on its discretion and FWS guidelines that recommend best practices for certain industries. State DOTs use those recommendations along with state-specific regulations to develop their own bird mitigation efforts where transportation construction is concerned. 

However, under the current proposed rule, those efforts will become largely voluntary and could result in mitigation efforts being decreased in order to save on overall construction costs.

The move toward this proposed rule started on January 10, 2017 when a legal opinion – M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty Act – interpreted the MBTA’s prohibitions and penalties as applying regardless of a violator’s intention. Under that interpretation, any act that takes or kills a migratory bird is within the scope of the MBTA prohibitions so long as the act resulted in the death of a bird. 

Yet on February 6, 2017, the M-37041 ruling was suspended for further review and then withdrawn and replaced on December 22, 2017, by the issuance of M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.

That ruling’s conclusion is an otherwise lawful activity that results in an incidental take of a protected bird does not violate the MBTA. And it is that 2017 legal ruling that the FWS’s current proposed rule would codify as a way to provide state agencies and construction companies with “legal certainty” so that they would not be fined for incidental taking of migratory birds.

Conservationists have proposed a different direction, describing instead a migratory bird incidental take permitting system in the Migratory Bird Protection Act (H.R. 5552), or MBPA, introduced on January 8, 2020, with agreed-upon best management practices providing the basis for a permit.

The Federal Highway Administration uses a similar permit system in order to work with swallow populations in construction and inspection. The Section 1439  of the Fixing America’s Surface Transportation or FAST Act authorizes the temporary take of nesting swallows that is otherwise prohibited under the MBTA.

Under the FHWA’s permitting system, the entity undertaking a bridge construction project must submit a document that contains the practicable measures to minimize significant adverse effects on nesting swallows. But those measures can often be time consuming, costly, and include timing bridge construction activities to avoid bird nesting season as well as moving and restoring nesting areas that are near the work area or constructing temporary alternative nesting areas in the vicinity of the bridge.

How are state DOTs responding to such changes in migratory bird protection rules? We’ll examine that in part 2 of this story next week.

As the Texas Department of Transportation works its way through a three-year study to determine why bats make their homes in certain types roadway bridges and culverts, other states are engaging in similar bat-preservation endeavors as well – especially in terms of mitigating the impact of bridge demolition and construction activity on bat populations.

For example, the southern region of New Mexico is home to year-round bat activity and Jim Hirsch, District 4 environmental analyst with the New Mexico Department of Transportation, said bats commonly hang out under bridges that span perennial waterways, such as the Rio Grande and Pecos rivers. 

“However, they also [hang out] under bridges that span ephemeral waterways, especially those near irrigated agricultural fields,” he added. “Most bat species are not protected by federal or state law, but the New Mexico DOT recognizes their importance in the ecosystem and the benefits they provide to the agricultural industry.” 

In addition, he said, New Mexico DOT “would rather manage bats with flexibility and adaptability, rather than by strict protocols and measures. It is in New Mexico DOT’s best interest to avoid listing of a bat species under the Endangered Species Act.”

Generally, Hirsch explained that the New Mexico DOT will install bat boxes under new bridges if the previous bridge supported daytime bat roosting activity. His agency will also perform bat exclusion measures if a bridge is scheduled for demolition or major rehabilitation during the “active season” for bat colonies.

“The active bat season usually coincides with the migratory bird nesting season in northern New Mexico,” he noted. “Therefore, avoidance and exclusion efforts usually protect both migratory birds and bats.”

A recent challenge faced by the agency is the cost of undertaking bat exclusion measure, as funds for such measures usually come from the limited resources of the New Mexico DOT’s environmental bureau budget. To change that, he said the department is evaluating cost effective partnerships with universities as well as with other state and federal agencies.

Research by the Texas DOT is creating a clearer picture of what specific types of bridge and culvert structures best buoy bat populations. The agency surveyed hundreds of bridges and culverts in West Texas over the last two years and found that state highway type pre-stressed concrete girder bridge designs situated near evergreen forests, deciduous forests, and standing water had a positive correlation to bat presence. Texas DOT also found that interstate highway and square box girder variables had a negative correlation on bat presence. 

“These results corroborate and refine anecdotal observations from decades of Texas DOT work to attract and maintain healthy bat populations on bridges, including the placement of artificial roosts on bridges that are not the right type, but are in the right ecological setting,” noted Dr. Stirling Robertson, the biology team lead in Texas DOT’s natural resources management section.

He added that those variables differed between species of bats, which is allowing Texas DOT to target species-specific bridge design solutions.

With a better understanding of the variables attracting bats to bridges and culverts, as well as the demonstrable success of artificial roost design and placement, Texas DOT is looking for future success by applying this knowledge where appropriate across the state.

“Bridges that are in the appropriate ecological setting and that are being replaced or rehabilitated give us ideal opportunities to enhance or preserve bat colonies,” Robertson pointed out. “We can also retrofit existing structures with artificial roosts if the existing design is not bat friendly.”