Minnesota Department of Transportation

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Project development

Environmental process | Environmental review | Fish and Wildlife

Fish and Wildlife process

Threshold criteria

The Threatened and Endangered Species—Federal and the Threatened and Endangered Species—State documents cover the federal and state Endangered Species Acts, respectively.

Public Waters Work Permit Program

The Minnesota Department of Natural Resources (MNDNR) Public Waters Work Permit Program applies whenever a project may have impacts on public waters and/or public water wetlands. Include avoidance, minimization, and mitigation for fisheries and wildlife resources within the MnDOT public waters work permit.

Federal Migratory Bird Treaty Act (MBTA)

The MPTA applies whenever a project may have impacts on protected bird species. Most of the bird species living in Minnesota are protected, which means that you must obtain a depredation permit from the US Fish and Wildlife Service (USFWS) to destroy active nests. You may also need a MNDNR permit for bird species protected under state law. Depending on the species involve, the nesting season is approximately March 15 through August 15. Common transportation-related activities that may impact protected birds include, but are not limited to:

  • Building structure maintenance and demolition
  • Bridge painting
  • Bridge rehabilitation
  • Bridge construction
  • Mowing and haying
  • Shrub and tree clearing

Bald and Golden Eagle Protection Act (BGEPA)

The BGEPA applies whenever a project may have impacts on bald or golden eagles. This act protects both occupied and unoccupied nests.  You will need a permit from the USFWS to destroy or harass bald and golden eagles. Construction activities in close proximity (660 feet) of a nest may result in harassment and require a permit. Common transportation-related activities that may impact eagles include, but are not limited to:

  • Road and bridge construction within 660 feet of an eagle nest
  • Shrub and tree clearing within 660 feet of nests or known roosts
  • Clearing of nest trees at any time of the year (requires a permit)

Considerations for environmental document preparation

Class I Actions (EIS)

Initiate MNDNR and MnDOT Wildlife Ecologist review using the Early Notification Memorandum (ENM) Form.

Scoping Documents (SD) and Scoping Decision Document (SDD)

Conduct an early assessment of the magnitude of potential impacts. Assess the need for further study.

Draft Environmental Impact Statement (DEIS)

Conduct an inventory of potential impacts for the project alternatives. Contact the MnDOT Wildlife Ecologist and MNDNR to determine the level of USFWS and MNDNR involvement.

Public Hearing

Include information on the potential impacts of various alternatives.

Final Environmental Impact Statement (FEIS)

Include the specifics of any required mitigation measures. Include a letter of coordination/concurrence from the MnDOT Wildlife Ecologist and a MNDNR questionnaire.

Class II Actions (CATEX)

Initiate the MNDNR and MnDOT Wildlife Ecologist review using the ENM Form.

Class III Actions (EA)

Initiate the MNDNR and MnDOT Wildlife Ecologist review using the ENM Form. Conduct an inventory of the potential impacts for project alternatives. Include a letter of coordination/concurrence from the MnDOT Wildlife Ecologist and a MNDNR questionnaire.

Agencies involved

The MNDNR is in charge of protecting the fish and wildlife resources of the state of Minnesota. Involve them early in project development through the MnDOT ENM form. MNDNR should also receive a copy of most MnDOT-approved project development documents. They also issue Public Waters Work Permits prior to construction. For more information, see the MnDOT-MNDNR Memorandum of Understanding dated November, 1999.

You will need to involve USFWS if any of the threshold criteria above for the MBTA or BGEPA are met.

Permits and approvals

  • Public Waters Work Permit: Mitigation for fisheries and wildlife impacts can become part of the MNDNR Public Waters Work Permit
  • MNDNR Depredation Permit: If the project destroys migratory bird nests, you will need a depredation permit from the MNDNR
  • USFWS Depredation Permit: If the project destroys bird nests, you will need a depredation permit from the USFWS
  • Bald Eagle Permit: If the project harasses, disturbs, or destroys bald eagles and/or their nests, you will need a Bald Eagle Permit from the USFWS

Appendix A - Swallow procedure & depredation permit


Swallows are protected by the federal Migratory Bird Treaty Act (MBTA) and state law (MINN. STAT. 97A.015; MINN. STAT. 97B.701), and the destruction of swallows or their active nests is a misdemeanor punishable by a $500 fine or a jail term. An "active" nest is one that contains eggs or young birds. Nests that are in the process of being constructed or nests that have been abandoned after a breeding season are not "active" nests.

Cliff swallows and barn swallows, along with a few other species of migratory birds, often build their nests on bridges or highway overpasses. Bank swallows tunnel into open sandy vertical surfaces near wetlands and streams and may try to take advantage of vertical surfaces in borrow sites or construction sites.

Under the regulations of the federal Migratory Bird Treaty Act, depredation permits are required for the destruction of any active migratory bird nests. All permits issued by the USFWS contain the requirement that any young swallows and eggs removed from the bridges must be turned over to a federally licensed rehabilitator for care and subsequent release (see section below on depredation permits). The MNDNR also has permit authority over the destruction or possession of protected wildlife. The MNDNR permits contain the same restrictions and requirements as the USFWS permits.

Avoidance and minimization measures

The following options for dealing with swallows on bridges are acceptable to the USFWS and the MNDNR. The following measures should be identified in bridge removal and maintenance contracts, depending on how much responsibility is given to the contractor:

  • Bridge work may be performed outside of the nesting season, i.e., before May 1st or after September 1st. No permit is required for this activity
  • Bridge work may begin before May 1st and nest completion can be prevented by knocking down or hosing down the nests (at least three times a week) as they are being built
    • The success of this measure depends on the number of nests on a bridge
    • If the bridge contains only a few nests, the birds should be easily deterred from nesting. If the bridge contains a large number of nests, it is an indication that the site is very attractive to the birds and they will not be easily deterred from nesting
    • Preventing the birds from nesting by knocking down unfinished nests is acceptable to the USFWS, which considers this to be non-lethal harassment
    • No permits are required for this activity
  • The portions of the bridge providing nesting sites (overhangs and ledges) may be temporarily covered with fabric or netting to prevent the birds from nesting
    • One option is for the entire underside of a bridge to be "diapered
    • " Alternatively, for small bridges (over streams that do not carry canoe traffic), filter fabric reinforced with wire mesh can be suspended so that it hangs down from the side of the bridge to about a foot below the water line
    • When covering nesting sites it is crucial to seal off the entire area with a continuous barrier, as the birds can enter through small openings in the netting
    • No permit is required for this activity
      • Please note that netting and mesh may entangle some species of wildlife, especially snakes, so they should be completely removed from the project area once no longer needed
  • Another, more permanent product that may be used to reduce swallow nesting on bridges, ledges, etc. are bird spikes
  • Other non-lethal preventative measures, such as sprays, may be tried to discourage the birds from nesting, keeping in mind that water quality below the bridge should not be threatened
    • Such measures have not been officially proven to be effective, but they may work in specific cases

Depredation permits

Applying for a depredation permit and complying with its requirements should be used as a last-resort option because the procedure is costly and can cause delays. When the procedure is warranted, the MnDOT Wildlife Ecologist must be contacted prior to initiating the permit process. Depredation permits should be applied for under the following circumstances:

  • If the project is scheduled to begin before the end of the nesting season, e.g., August 15th, and birds are still actively nesting on a bridge (see above)
  • If the avoidance and minimization measures listed above fail to prevent birds from nesting on a bridge
  • If the bridge contains a small number of nests (i.e., a small enough number that a federally licensed rehabilitator is willing to provide the service of caring for the three to five nestlings that each nest may contain), the timing of bird work need not be restricted

The two major steps involved in working with depredation permits are a) obtaining the USFWS and MNDNR permits, and b) obtaining the services of a federally licensed rehabilitator.

  1. Obtaining permits: The permit applicant should be the party responsible for the bridge work (i.e., in most cases the contractor)In some cases the District Project Manager or Maintenance Supervisor may be the responsible party. The MnDOT Wildlife Ecologist may serve as the permit holder in select cases. The applicant must first contact USDA Wildlife Services to request form WS-37 (contact below); include project details and amount of anticipated take. Once form WS-37 is received, the applicant should review Section E of the USFWS application for process instructions (fws.gov/forms/3-200-13.pdf). A copy of the USFWS application along with form WS-37 should be sent to USFWS (see application instructions for contact information), and another copy of both forms should be sent to MNDNR attention Lori Naumann (contact information below).
    • The USFWS maintains its records on a calendar year basis and would prefer that the permit applications be submitted in the same year for which the permits are being requested
      • The turn-around time for receiving the approved permits is approximately 15 days
    • USDA/ APHIS/ Wildlife Services 644 Bayfield Street, STE 215 Saint Paul, MN 55107
      Phone: (651) 224-6027
      Fax: (651) 224-4271
    • In State Toll free (866) 4USDA-WS or (866-487-3297)
      Lori Naumann
      MN DNR, Division of Ecological and Water Resources 500 Lafayette Road
      St. Paul, MN 55155 Phone: (651) 259-5148
      E-mail: Lori.Naumann@state.mn.us
  2. Obtaining rehabilitator services: The USFWS and MNDNR permit issuers should be contacted to determine if there are any federally licensed rehabilitators in the project area. It is possible that the nearest rehabilitator may be hundreds of miles away. The network of rehabilitators was originally established to take care of limited numbers of orphaned or injured wildlife from the local area. The network, as it is presently set up, is neither able nor willing to commit to handling large numbers of young nestlings on a statewide basis. Most of the rehabilitators have full-time jobs from which they take time off to go and salvage the birds. Therefore the rehabilitators should be contacted at least several weeks in advance to make sure that their services will be available.

Bank swallows and vertical surfaces

At this point in time, bank swallow nesting does not need to be addressed in the project documents since the potential for a swallow presence cannot easily be predicted. The potential for a problem may not be known until borrow or construction activities actually begin. The Resident Engineers have been alerted to this issue and will respond accordingly. Avoidance is emphasized in cases where bank swallows have colonized vertical surfaces because the ability to rescue birds from sandy tunnels is unlikely. The suggested measures to prevent bank swallows from nesting in banks are as follows:

  • Cover up the vertical surface while it is not being excavated
  • Avoid having a vertical surface by leaving a slope at the excavation site

Appendix B - Bat procedure


USFWS listed the northern long-eared bat (Myotis septentrionalis), a bat native to Minnesota, under the federal Endangered Species Act of 1973 (ESA) in 2015 and listings of additional Minnesota bat species are anticipated in the future. The ESA prohibits various forms of disturbance to listed species, which are punishable by up to a $50,000 fine or imprisonment up to one year.

Bats use select trees, bridges, and other structures to roost during the day and/or night, and as a result, activities such as tree clearing and bridge work conducted April 1 to October 31 may incidentally affect them. Since 2016, Minnesota bridge inspectors have been responsible for recording whether or not bats, or bat signs, are present during inspections. These data are recorded under Element #900 in Minnesota Bridge Inspection Reports.


The following documents provide some guidance for dealing with bats on projects that include tree removal and/or bridge work. The applicable avoidance and minimization measures must be identified in project and maintenance contracts if they will be contractor responsibilities:

  • Tree Clearing Timing Requirement Technical Memo 17-04-ENV-02 sets MnDOT policy related to tree clearing timing based on location and quantity. Note guidelines on pages 3-6. A few key points are included below:
    • If working inside a township with documented NLEB roost trees and/or hibernacula, contact the MnDOT Wildlife Ecologist to determine the appropriate course of action
    • Minimize tree clearing to the maximum extent practicable
    • If clearing trees outside a township with documented NLEB roost trees and/or hibernacula:
      • Less than 2.5 acres – May clear trees between August 16 and May 31, inclusive
      • Great than or equal to 2.5 acres – May clear trees between November 1 and March 31, inclusive
    • On all projects, tree clearing must be avoided June 1 to August 15, inclusive, unless trees are high risk and posing a threat to human life or property, or the MnDOT Wildlife Ecologist has provided an exception based on habitat suitability
  • Range-wide Programmatic Consultation for Indiana Bat and Northern Long-eared Bat webpage includes a link to the “User’s Guide,” which includes several avoidance and minimization measures that are required on some federally funded projects - and recommended on others - that may affect the northern long-eared bat. A few key points are included below:
    • The MnDOT Wildlife Ecologist identifies federally funded projects that are subject to the linked avoidance and minimization measures while reviewing project Early Notification Memos or State Aid E&T Species Review Request Forms for compliance with Section 7 of the federal ESA
    • Consultation with USFWS is required before undertaking any activity that may affect the entrance of a cave, mine, or sewer used as a hibernaculum by protected bats, as well as other activities that may affect the northern long- eared bat, like some tree removal and bridge work activities
      • This includes activities using percussives within 0.5 mile of a hibernaculum and activities that may alter hibernaculum hydrology
    • A bat-bridge inspection should be completed no more than two years prior to initiating bridge work
      • If the bridge inspection determines that bats may be present, contact the MnDOT Wildlife Ecologist
    • Non-federally funded projects seeking to implement the guide’s avoidance and minimization measures are encouraged to download the most recent version of the guide before use, as it gets updated periodically

Please note that not all of the avoidance and minimization measures identified in Appendix C of the Programmatic Agreement are required for all actions. Please contact the MnDOT Wildlife Ecologist to determine which, if any, are recommended or required before undertaking an action.