May 30, 2015

SUBJECT: Black Terns Receive Some Protection


flock of black terns

Taken on May 18, 2008.This image really puts things in perspective. This was 7 years ago at Myrick Marsh. In this image there are 52 Black Terns. This is just one snap-shot of the Black Terns that once thrived in this marsh. Fast-forward to 2015 and the total number of Black Terns in Myrick Marsh are half of what you see here. We are rapidly losing Black Terns in the La Crosse River Wetlands.

Rant Disclaimer: A good number of the employees (who still have jobs) at the Wisconsin DNR are fine, outstanding science-based employees who really do have our natural resources at heart. I thank them for their efforts and offer my sympathy for they work in a department who has lost their purpose. A department who once championed the state’s natural resources that today champions industry.

To bring everyone up-to-date, Wisconsin’s DNR has decided not to issue an Incidental Take Permit to BNSF. The DNR states that the issuance is not required. BNSF and the WDNR came to an agreement last week that will prevent pile-driving from occurring in the Black Tern nesting area until the end of June, 2015. Note to Black Terns: Get busy breeding! You’ve only got one month!

I would also like to thank everyone who took the time to write to the DNR. The protection of the Black Tern is near and dear to my heart. Thank you!

Now you may think this is a win for the Black Tern. It is...sort-of. It's really only a partial win. All construction other than pile-driving is permissible and the time period for pile-driving refrainment is only for one month, not the original avoidance time end date of July 31, 2015.

Whatever happened to the original agreement between the DNR and BNSF that prevented construction throughout the marsh until July 31, 2015? BNSF agreed verbally and in writing to abide by the DNR's initial permit decision. Why didn't the DNR stand by their initial permit restriction?

Aerial View of the La Crosse River Wetlands
Aerial view of the La Crosse River Wetlands. BNSF rail line in background.

Here’s a time-line of events that have occurred since BNSF’s request (and subsequent granting) for a permit to construct a second track through the La Crosse River Wetlands as it involves the endangered Black Tern:

  • January 1, 2014 - The Black Tern is added to Wisconsin’s Endangered Species Law.

  • Throughout 2014 in numerous meetings with city and county officials, BNSF recognizes and agrees to refrain from construction in the marsh during the Black Tern Nesting Season.

  • January 7, 2015 - The DNR hears testimony from concerned citizens, the majority of which ask for an EIS – Environmental Impact Statement as the DNR’s equivalent environmental analysis does not go far enough to adequately study the impact of this rail construction project.

  • January 19, 2015 - The DNR closes the written comment period for the project. Numerous residents and elected officials (federal and state) ask the DNR for an EIS.

  • February 6, 2015 - The DNR grants BNSF the permit to construct the second track through the La Crosse River Wetlands. The DNR states that no EIS is required for this project since an equivalent analysis has been conducted. Item #25 states that no construction will occur within the La Crosse River Wetlands during the Black Tern nesting season: May 15 – July 31.

  • April 16, 2015 - Proposed Incidental Take Permit of Wisconsin’s Endangered Black Tern for the BNSF project is announced. One month is allowed for comments. A press release is issued but the local papers don’t pick up on it. It takes weeks before the news of the take permit reaches the general public.

  • May 4, 2015 - The DNR amends the permit allowing BNSF to continue construction through the wetlands, including the Black Tern breeding grounds until May 25, 2015. The public is not notified of this amendment – no press release, no legal notice, nothing.

  • May 18, 2015. Final date for comments regarding the proposed Incidental Take Permit of the Black Tern.

  • May 20, 2015. Alan Stankevitz while in the wetlands bumps into an avian specialist from the DNR’s office in Madison, WI. After almost four hours of surveying the Black Tern’s nesting area, the specialist finds 22 Black Terns in the marsh, some of which had already built nest cups.

  • May 22, 2015. DNR revises permit to allow BNSF to continue construction throughout the wetlands with no date restrictions. They do however prohibit BNSF from doing bridge pile driving in the Black Tern nesting area until June 30, 2015 or after the Black Tern’s incubation period.

Will this new action be enough to protect the Black Tern? I don’t know. I hope so. My biggest concern is pile driving. It is extremely loud and intermittent. This issue has been addressed by the DNR (Thank you). Questions still remain however as to if this will be enough to prevent disturbances that may affect the population of Black Terns in the marsh.

There are still many unanswered questions regarding the DNR’s “protection” of the Black Tern:

  • Considering BNSF was on record agreeing with the DNR that construction would be avoided from May 15 to July 31, why didn't the DNR take them to task over renegging on their commitment?

  • What studies were conducted by the DNR on the Black Tern in the La Crosse River Wetlands prior to the issuance of the BNSF permit?

  • What studies were conducted by the DNR prior to proposing the Incidental Take Permit?

  • How in-depth were these studies?
    • Did an avian specialist from the DNR conduct the study? What were the qualifications of the specialist?
    • How many studies on the Black Tern were conducted in the past 10 years?
    • How many black terns were located in the marsh in these studies?
    • Did the studies depict geographically where the terns nested?
    • How many nesting pairs were recorded?
    • What is the population trend? Higher? Lower?
    • How close to the BNSF construction zone did the Black Tern nest in the past 10 years?

  • Why did the DNR conduct the May 20, 2015 study AFTER issuing the proposal for the Incidental Take Permit? Shouldn't this study have been conducted prior?

  • Would the May 20 study have been conducted if it were not for the public comments submitted to the DNR about the Intentional Take Permit? When was it decided to do the May 20, 2015 study?

  • Why did the DNR grant BNSF 10 more days of unfettered construction in the marsh (until May 25) knowing that the Black Terns had already arrived on their breeding grounds in the latter part of April? And without public knowledge?

And finally, why does the protection of the Black Tern fall onto the backs of the general public? Why are we doing the DNR's job? They should be fighting for the protection of an endangered species whose numbers continue to drop in the marsh.

Aldo Leopold must be rolling in his grave.


—Alan Stankevitz

Black Tern Eggs
Black Tern Eggs


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All photographs © 2002-2015, Alan Stankevitz

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