Black tern

A black tern flies in the La Crosse River marsh as captured by wildlife photographer Alan Stankevitz. The bird, an endangered species in Wisconsin, could be disturbed by construction of a second BNSF line through the marsh, according to the Wisconsin DNR, which has proposed allowing work during the bird's nesting period. 

Contributed photo

Under public pressure, Wisconsin wildlife officials have come up with a compromise that will allow the BNSF Railroad to continue building a second track through the La Crosse River marsh while minimizing disturbance to the nesting area of an endangered bird.

BNSF contractors began building the controversial second line in April after receiving a permit from the Army Corps of Engineers allowing them to fill 7.28 acres of wetlands. The Wisconsin Department of Natural Resources had previously granted BNSF a permit that prohibited work during the May-July nesting period of the black tern, an endangered species in Wisconsin.

The DNR later amended the permit to allow construction during the nesting period if BNSF received an “incidental take permit” from the department’s Bureau of National Heritage Conservation.

Opponents of the rail project rallied supporters, and the DNR received more than 100 emails, nine phone calls and six letters about the take permit. Conservation biologist Lisie Kitchel said most of the comments were opposed to the take permit, while a few opposed the project in general.

Rather than issue the take permit, which allows for “unintentional loss of individual endangered or threatened animals,” the DNR is limiting work in some areas until June 30 or until the birds’ eggs have hatched.

During a survey on May 20, a DNR specialist found about 3.5 acres of occupied nesting habitat in the marsh. The DNR would not disclose the exact location of the nesting area, but Kitchel said the avoidance area affects about 0.3 miles of the roughly 2-mile marsh construction zone.

Contractors will be allowed to move equipment and dirt but may not drive piles in the avoidance zone.

Kitchel said the birds in the nesting area are apparently not bothered by up to 50 passing trains each day but pile driving could scare them off during the critical incubation period.

“What we don’t want is the birds leaving the nest because of disturbances,” she said. “We want them sitting on those nests.”

La Crescent wildlife photographer Alan Stankevitz is a plaintiff in a lawsuit alleging the DNR issued the original wetland permit without conducting the required environmental review.

Stankevitz is happy with the restrictions, which believes will protect the birds, but questions why the issue was not studied earlier.

“This exemplifies the fact that the DNR did not do their due diligence in this,” he said. “You should have done the study that was done last week a year ago.”

DNR spokesman Bill Cosh said staff “followed the law, used good science and common sense” in approving the permit.

No survey was done in 2014 because high water likely discouraged the birds from nesting, Kitchel said. “A study last year would not have better informed the decision for this year.”

A gull-like bird that feeds by diving into the water, the tern breeds in marshes, sloughs and other wetlands. According to the DNR, there are just 169 pairs in the Great Lakes basin.

Its decline is attributed to loss of habitat, human disturbance, pesticide use and problems along the migration route.

BNSF received a similar take permit from the U.S. Fish and Wildlife Service for a bad eagle nest near the construction area.

The marsh work is part of a controversial project to add about four miles of new tracks through the city of La Crosse between Farnam and Gillette streets.

The railroad has said the upgrade should ease delays at each end of what is the area’s only section of single track. The project is one of 13 planned upgrades the railroad is making to its route along the Mississippi River between the Twin Cities and the Illinois border.

BNSF spokeswoman Amy McBeth said work continues outside the avoidance area and the project is on track to be completed in September.

“We’ll continue working closely with the DNR and will follow the permit conditions,” she said.

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