New rules means permitting implications for land developers.
Last spring the U.S. Fish & Wildlife Service (USFWS) listed the northern long-eared bat (NLEB) as threatened under the Endangered Species Act of 1973 (ESA). With that listing, they issued an interim rule under section 4(d) of the ESA that exempted the prohibition of incidental take for certain development activities that, at the time, the USFWS felt posed little threat to the species. After receiving thousands of comments on the Interim 4(d) rule, on January 14, 2016, the USFWS released its Final 4(d) Rule, and developers – particularly those who work in power, energy, oil, and gas transmission – should take note of the changes, which went into effect on February 16, 2016.
So what changed?
In the Interim 4(d) Rule, incidental take – harm or harassment of bats resulting from, but not the purpose of, carrying out an otherwise lawful activity – was exempted only for a few types of activities: forest management practices, maintenance of transportation and utility rights-of-way, prairie habitat management, and limited tree removal. The Final 4(d) Rule authorizes incidental take of NLEB resulting from all types of development activities, with the exception of activities within a certain distance of known occupied hibernacula (where the bats hibernate) and roost trees within the area affected by white-nose syndrome (WNS). The WNS zone includes all counties with a positive WNS detection plus a 150-mile buffer of infected counties to account for the spread of the disease. Outside of the WNS zone, there are no prohibitions on incidental take, no survey requirement, and no consultation with the USFWS. Within the WNS zone, incidental take is prohibited only for the following activities:
- Activities occurring within a NLEB hibernaculum, or that could alter the entrance to or environmental conditions in a hibernaculum even when the bats are not present.
- Tree removal activities
- within a quarter-mile of a known, occupied hibernaculum
- where the activity cuts or destroys a known, occupied maternity roost tree or other trees within a 150 foot radius from the maternity roost tree during the pup season (June 1 through July 31)
As with projects outside of the WNS zone, there is no specific requirement for surveys for projects located within the WNS zone.
Why the change?
The USFWS recognizes that the imminent threat to the NLEB is WNS – a disease caused by a fungus that is wiping out the species in the Northeast and is moving into the Midwest. So rather than expend resources on layers of permitting that really do not promote the conservation of the species, the USFWS is authorizing take for low-risk activities and instead focusing its efforts on slowing down the spread of WNS and other measures that will provide true conservation benefits. The final rule is also more straightforward than the interim rule. Rather than highlight which activities are exempt, the new rule focuses on a short list of specific activities where take is prohibited, making it easier to understand what is and is not allowed.
Seems fairly black and white, right? Not exactly. One size never fits all since every project and every USFWS field office is different. Whether a project is federal or private, how much land and tree clearing is involved, what is already known about bat activity on the site – these factors (and more) could all play into the level of ESA consultation required. So even though the rule provides broad authorization for incidental take of NLEB, in some cases, coordinating with the USFWS may still be a good idea to ensure a project is in the clear. In other words, it is better to be safe than sorry – get a letter from USFWS stating the project area has no known NLEB hibernacula or maternity roosts, and no further consultation is required. That way, if any bats are discovered partway through the project, it is on record that the proper due diligence was conducted.
It is also good to keep in mind that the Final (4d) Rule only applies to the federal listing, and that NLEB may also be state-listed in some states, requiring developers to coordinate with state resource agencies in order to be in compliance with state law. Finally, a consortium of conservation groups have filed a notice of intent to sue the USFWS over what they believe are inadequate protections in the Final 4(d) rule. So “final” may not be the end of the story…
USFWS has a wealth of information on its website about this rule, including:
- The full text of the final rule
- An FAQ on the rule and its changes
- Summary presentation slides about the rule
- Keys to the 4(d) Rule for federal and non-federal projects
- Known hibernacula and maternity roost tree locations
- Fact sheets and maps about the northern long-eared bat
Working closely with wildlife biologists and your local USFWS field office can help clarify what specific issues a developer should consider moving forward.
About the AuthorMore Content by Terry VanDeWalle