The listing of the northern long-eared bat as a threatened species could affect development for over a third of the US
This month the US Fish & Wildlife Service officially listed the northern long-eared bat (NLEB; Myotis septentrionalis) as a threatened species under the Endangered Species Act (ESA). When a species is listed as threatened, it means it is on the brink of being endangered. That listing, in turn, triggers a number of regulatory requirements to prevent further declines. The NLEB has been hit hard by white-nose syndrome, a quickly spreading disease that has killed over 6 million bats in the eastern United States and Canada. This threatened species listing is intended to help make sure the bat isn’t further endangered by development, thus this new level of permitting and regulations to protect the bats.
What does this mean for developers? Potentially some big impacts to the cost and schedule of any project that affects NLEB habitat (trees, caves, etc.). And that habitat is quite wide – the NLEB’s range extends from Maine south to North Carolina, west to eastern Oklahoma, and north through the Dakotas and into eastern Montana and Wyoming – roughly a third of the United States. What’s more, the species is known to roost alone or in small groups in trees over 3 inches in diameter which, for all intents and purposes, is practically any wooded area within this large habitat range. They are also known to use many different tree species, and may switch roosts every few days.
These factors mean that for a given project in the eastern half of the US, it’s possible that NLEBs could be somewhere in the area, and the requirements of the new ESA listing will apply. Because the bat covers such a wide range, USFWS published an interim rule under Section 4(d) of the Endangered Species Act that makes certain activities exempt from the full scope of the regulation. The intent is to provide flexibility for landowners, land managers, government agencies, and others working in NLEB range and focus regulatory attention on measures that best provide for the conservation of the species. With that in mind, certain activities – from expanding existing transportation corridors to removing hazardous trees – have been exempted from complying with the permitting requirements of the NLEB’s threatened species listing. However, that doesn’t mean that you’re also exempt from consulting with the USFWS; some level of consultation could still likely be required before development begins.
What that does mean is unless a project is clearly outside of the range of NLEB bat habitat and the white-nose syndrome buffer area, developers will still need to prove the bats are not in the proposed project area to be cleared by USFWS. Depending on the site and the project specifics, developers may need to conduct presence/absence surveys via traditional mist-netting or acoustic methods to determine it any bats could be on site. If the NLEB is found, minimal tree clearing may be allowed under the 4(d) rule but only if the activities do not occur within a quarter-mile of known hibernation areas; do not destroy roost trees during the pup season (June and July); or do not involve clear-cutting. Many types of projects – from oil and gas pipelines to transmission and transportation projects – could involve any or all of those criteria, making the chances of exemption slim and adding another one-to-two years or more of permitting and compliance processes before a project can begin.
Now is the time for developers to assess their projects to determine if and how the northern long-eared bat listing may affect their budget and timeline. If take (unintentional harm to the bats as a result of otherwise lawful activities) cannot be avoided, developers may need to permit such take through permitting processes in Section 7 or Section 10 of the ESA. These processes should begin as soon as possible to keep projects from being delayed further. USFWS has posted a useful “Do I Need a Permit?” guide on its website that steps developers through those questions and answers.
I’ve linked to several parts of it above, but the US Fish & Wildlife Service’s northern long-earned bat website includes a wealth of information about the species, the listing, the 4(d) rule, and more. Our team of wildlife biologists can also help figure out if a project is affected by this new listing and how to start the next steps.
About the AuthorMore Content by Adam Gravel