Maine DOT Shares Insight into Roadside Vegetation Management Program

The Maine Department of Transportation recently provided a behind-the-scenes look at its ongoing efforts to control brush along selected state roads via an “integrated” strategy that marries the use of herbicides with mowing and the hand-removal of young saplings growing too close to the pavement.

“Roadside trees are much easier to control when they are small,” the agency said in a statement. “Trees allowed to grow close to roads prevent proper water drainage and may obscure drivers’ views of large animals such as moose and deer. Controlling roadside vegetation is a key safety and road maintenance activity requiring yearly effort.”

In various locations, the Maine DOT noted it may also extend its vegetation control efforts to areas surrounding guardrails. “Reducing vegetation near guardrails increases safety because it protects our workers from tripping hazards and ticks,” the department pointed out. “Guardrails free of vegetation also function properly and are easier to maintain.”

Photo by Maine DOT

Integrated roadside vegetation management or IRVM is a strategy with a long history within the state DOT community, dating back to the 1970s. Iowa, for example, was one of the first states to establish IRVM programs at the city, county, and state levels with a goal of providing an alternative to “conventional” procedures that relied on the extensive use of mowing and herbicides, which provided often too costly to implement on a regular basis and increased the potential for surface water contamination.

That’s why in Maine DOT’s case, all herbicide treatments for brush, weeds, or invasive plants are selected to minimize impact to surrounding vegetation – deployed at the lowest application rates to protect workers and the environment.

[Selecting the correct herbicide is critical; a lesson the Oregon Department of Transportation learned the hard way as it just wrapped up a five-year effort to remove 2,300 Ponderosa pine trees poisoned by the use of herbicide aminocyclopyrachlor – also known as Perspective – sprayed along a 12-mile stretch of U.S. 20 to kill vegetation that posed a fire hazard.]

Starting in 2004, the department also began an “every-other-year” herbicide application program to help further reduce use of such chemicals, while encouraging municipalities and private citizens living adjacent to state roads to enter into a Cooperative Vegetation Management agreement if they are concerned about herbicide use.

Such agreements outline the municipal or landowner responsibilities for maintaining roadside vegetation; because when roadsides are properly maintained under such pacts, there is no need to use herbicides, the Maine DOT said.

Changing Protective Rules for Migratory Birds During Transportation Construction: Part 1

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. 

Wikimedia Commons

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.

Environmental News Highlights – June 24, 2020

A roundup of headlines curated for state transportation environmental professionals


House T&I Advances Surface Transportation Reauthorization Bill – AASHTO Journal

Federal judge denies Democratic AGs’ bid to halt Trump WOTUS rule – Politico

USDOT to Award $906M in INFRA Grants – AASHTO Journal

Delgado, Fitzpatrick Introduce Bipartisan Legislation to Identify PFAS Contamination at Federal Water Infrastructure Projects – Congressman Antonio Delgado (Press release)

Trump’s push for major infrastructure bill faces GOP opposition – The Hill

Democrats unveil $1.5 trillion infrastructure plan – The Hill


U.S. traffic has rebounded to about 90 percent of pre-pandemic levels, analysts say – The Washington Post

COVID-19’s transportation implications for people with disabilities – The Hill (Commentary)

Gov. Inslee sends letter to Pres. Trump for federal COVID-19 safety measures for airports and airlines – KNDO/KNDU-TV

Talking can spread coronavirus, so new NJ Transit commuting rules say to keep quiet –

Pandemic Travel Patterns Hint at Our Urban Future – CityLab


Senators introduce NEPA reforms to cut red tape – Transportation Today News


CA: Proposed California law would fast-track environmentally sustainable transit – San Francisco Chronicle

MDOT seeks input on long-range transportation plan –

Expert: ‘Shovel-ready’ projects ignore important aspects of community resilience –


Looking Back at 50 Years of the Clean Air Act of 1970 – Resources (Blog)

Md., Other States Push EPA to Force Stricter Pollution Standards for Pa. Power Plants – Maryland Matters


AASHTO Hosting Environmental Justice Virtual Peer Exchange – AASHTO Journal

Philly police no longer welcome in Vision Zero as bicyclists reckon with racism – WHYY

Group targeting environmental racism relaunches amid disparities in coronavirus impact – The Hill

Murphy backs New Jersey environmental justice bill – KYW


State environmental officials fail to report critical water data, according to state audit – Boston Globe (Sign-in Required)

Ohio EPA Accepting Public Comments About Plan to Study Large Rivers – Ohio EPA (Press release)


Georgia’s heritage bill worries preservation advocates – Albany Herald

National Trust for Historic Preservation Statement on Confederate Monument – National Trust for Historic Preservation (Press release)


Bicycle, pedestrian path opens on Governor Mario M. Cuomo Bridge – WABC

Why Car-Free Streets May Be Here to Stay – Bloomberg (Video)

Scooters will return to Chicago streets this summer as the city launches an even larger pilot program – Chicago Tribune

After coronavirus, bicycles will have a new place in city lifeFortune

The High Cost of Bad Sidewalks – CityLab

Helsinki pushes off with data study on e-scooter services for sustainable mobility – Conference & Meetings World

Lyft vows ‘100 percent’ of its vehicles will be electric by 2030 – The Verge


Reducing the complexity of decision making through a roundabout renaissance – TRB/NCHRP

TRB Centennial video on the future workforce wins three Telly Awards – TRB

Featured Centennial Paper – Transportation Demand Management: A Focus on Moving People – TRB

Commercial Space Operations Noise and Sonic Boom MeasurementsTRB/ACRP

Public Roads – Spring 2020 – FHWA


Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process; Public Hearing – EPA (Notice of proposed rulemaking; extension of comment period and notification of public hearing)

Safety Zones: Illinois River, Miles 10 to 187, Grafton, IL to Peoria, IL – Coast Guard (Temporary final rule)

Shipping Safety Fairways Along the Atlantic Coast – Coast Guard (Advance notice of proposed rulemaking)