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NDOT threatened and endangered species biologists work to protect fish, wildlife, and habitat resources in conjunction with delivery of transportation projects under many different federal and state regulations. Federal regulations, such as the Endangered Species Act, Bald and Golden Eagle Protection Act, Fish and Wildlife Coordination Act, and Migratory Bird Treaty Act, and state regulations, such as Nebraska Nongame and Endangered Species Conservation Act, provide unique challenges when roadway development and wildlife come into conflict. The NDOT threatened and endangered species biologists have developed programmatic agreements with federal and state agencies to streamline the biological evaluation process, review all state and local programmed projects for impacts to fish and wildlife, created training programs for consultants and NDOT personnel, provide guidance to NDOT district personnel and local project proponents, conduct surveys for eagles, threatened or endangered species, and migratory birds, and provide technical support to various environmental research projects.
Endangered Species Act and NDOT
NDOR conducts many activities that are influenced by the Endangered Species Act (ESA) and the Nebraska Nongame and Endangered Species Conservation Act (NESCA). The ESA requires federal agencies supporting projects do not jeopardize the continued existence of listed threatened or endangered species and designated critical habitat. The NESCA states that it is “unlawful for any person to export, take, possess, process, sell or offer for sale, deliver, carry, transport, or ship threatened or endangered species.” To ensure compliance with the requirements of the ESA and NESCA, NDOT, in cooperation with Federal Highway Administration (FHWA), U.S. Fish and Wildlife Service (USFWS), and Nebraska Game and Parks Commission (NGPC), developed a programmatic agreement and biological review process (The Matrix). The Matrix is a programmatic statewide review that breaks down a project into activities to assess impacts to protected federal and state species and implement pre-determined conservation conditions to avoid or minimize impacts to the species and associated habitat.
Migratory Bird Treaty Act
The Migratory Bird Treaty Act (MBTA) (16USC 703), originally passed in 1918, makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid Federal Permit. The term “take” is not defined in the MBTA, but the U.S. Fish and Wildlife Service has defined it by regulation to mean to “pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt those activities. Under the provisions of the MBTA, the unauthorized take of migratory birds is a criminal offense, even if it is unintentional. NDOT developed an Avian Protection Plan (APP) to reduce conflicts between construction of NDOT projects and the laws governing migratory birds. This procedure is designed to protect and conserve avian populations and reduce avian conflicts through changes in project scheduling (i.e. tree clearing outside of primary nesting period), increased migratory bird surveys, and changes in project construction timelines. NDOR utilizes the APP to reduce conflicts with migratory birds on all projects.
Bald and Golden Eagle Protection Act
The Bald Eagle was removed from the federal list of threatened and endangered species on August 8, 2007. The Bald Eagle is still protected under the Bald and Golden Eagle Protection Act (BGEPA) and the MBTA. The BGEPA makes it illegal to take (kill, wound, pursue, shoot, shoot at, poison, capture, trap, collect, molest or disturb) bald or golden eagles. Disturb is defined in the BGEPA as "to agitate or bother a bald or golden eagle to a degree that caused, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior." The BGEPA prohibits unregulated take. NDOR biologists ensure compliance with BGEPA by assessing each state and local project for impacts to bald or golden eagles. Compliance with BGEPA is also part of NEPA documentation. A review process was developed in conjunction with the Matrix and can be found as an appendix in the Nebraska Biological Evaluation Process. Fact sheets were created for bald or golden eagles in Nebraska. If you think you have an eagle nesting near your project, stop work and contact NDOR Environmental threatened or endangered species biologists.
The links below provide information relating to our Fish and Wildlife program: