Environmental Technical Assistance Program Newsletter

The key role birds, bees, and insects play in agricultural propagation is typically celebrated once a year during events such as Pollinator Week. But for many state departments of transportation, support for such “pollinators” is becoming a year-round endeavor.

Take Idaho, for one. Idaho has more than 11.8 million acres in agricultural production and many of the state’s leading crops rely on insect pollination. For that reason, the Idaho Transportation Department (ITD) is actively engaged in supporting ants, butterflies, beetles, and other wildlife responsible for helping pollinate flowering plants. 

For starters, the ITD follows the Idaho Pollinator Protection Plan – recently published by the Idaho State Department of Agriculture – and partners with both it and the Idaho Department of Fish and Wildlife to put that plan into action. 

One example of the ITD’s use of the plan’s guidelines can be found at the Interstate 84 Westbound Bliss Rest Area. A partnership between ITD, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and Native Roots LLC resulted in the creation of a new “pollinator garden” located on the grounds of that rest area grounds. 

Cathy Ford, ITD’s roadside vegetation coordinator and program manager, explained that native flowering plants – such as the cordroot beardtongue and the firecracker penstemon – were added to the garden along with native plants to fit the arid environment and provide pollinator habitat. “We hope to do another one on the eastbound side in the future,” she noted.

[Editor’s note: ITD is also a part of the Candidate Conservation Agreement with Assurances or CCAA for the Monarch Butterfly – a national agreement established in April and supported by the American Association of State Highway and Transportation Officials that encourages transportation and energy firms to voluntarily participate in Monarch Butterfly conservation.]

In addition to the Bliss Rest Area, ITD has several other ongoing projects to promote pollination wellness. ITD’s District 5 is working to install pollinator plantings around its office in Pocatello, which will include small-stature flowering shrubs and perennial flowers as well as some milkweed plants – the only food source for Monarch caterpillars – salvaged in April from a state irrigation ditch construction project. The focus at the District Office is to provide blooming plants from early spring through fall to best support pollinators, Ford noted. 

Pollination “wellness” efforts also impact state DOT duties such as roadside and right-of-way moving practices. The Illinois Department of Transportation for one now uses “revised” mowing practices aimed at creating and maintaining habitat for pollinators, including the monarch butterfly. Last year, the Illinois DOT began following the Illinois Monarch Project Mowing Guidelines for Pollinators, establishing July 1 to August 15 as its “most extensive” roadside and highway right-of-way mowing period.

The agency said in a statement that by timing when mowing takes place and reducing the amount of land being mowed, the Illinois DOT is encouraging the growth of critical plant species, such as milkweed.

Back in Idaho, the ITD is also involved in the Operation Wildflower Program, where districts distribute native wildflowers to volunteer groups to seed in selected areas. Partnerships between ITD and Idaho Fish and Game led to the formation of “pollinator waystations,” created by seeding roadsides with native flowers and grasses. These efforts not only support more pollinators but also beautify Idaho’s roadways and reduce maintenance costs, Ford said.

“ITD uses a variety of native seed and pollinator plant species for re-vegetation activities on construction and maintenance projects around the state,” she added.

Photo credit: Idaho Transportation Department

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.