Jan 25, 2016
United States Fish and Wildlife Service Issues Final Rule for the Northern Long-eared Bat
In an announcement on January 13, 2016, the United States Fish and Wildlife Service (USFWS) issued a final rule for the threatened northern long-eared bat (NLEB) under Section 4(d) of the Endangered Species Act. According to the USFWS the rule is “designed to protect the bat while minimizing regulatory requirements for land owners, land managers, government agencies and others within the species’ range.”
The final rule was published in the January 14, 2016 Federal Register and will take effect on February 16, 2016. The final rule replaces the interim 4(d) rule that was established in April 2015. The interim rule had widespread restrictions against incidental take, with several specific exemptions including forest management, maintenance and limited expansion of transportation and utility ROWs, prairie habitat management, and small-scale tree removal.
In areas with hibernacula that have been affected by the fungus that causes white-nose syndrome (WNS) - which has been found in 30 eastern and midwestern states and parts of Canada - NLEB populations have been severely reduced. WNS is the greatest threat to NLEB along with several cave-dwelling bats including the endangered Indiana bat.
The USFWS states “In areas of the country impacted by WNS, incidental take is prohibited if it occurs within a hibernation site for NLEB. It is also prohibited if it results from the tree removal activities within a quarter-mile of a hibernaculum or from activities that cut down or destroy known occupied maternity roost trees, or any other trees within 150 feet of that maternity roost tree, during the pup-rearing season (June 1 through July 31). Occupied roost trees may be removed when necessary to address direct threat to human life and property.” In essence, according to the final 4(d) rule, if there are no hibernacula within a quarter-mile of a project site or known maternal roost trees on or within 150 feet of the site, then there would be no development restrictions (including tree clearing) at any time of the year.
The final 4(d) rule prohibits intentional take throughout the range of the NLEB, except when they are removed from human structures and when necessary to protect human health and safety. Section 4(d) of the Endangered Species Act allows the USFWS to “tailor” protections to the species and relaxing prohibitions and regulatory burdens while considering a species’ conservation needs.
The USFWS cautions that if NLEB becomes an endangered species, they would publish a new proposed rule. The current 4(d) rule would no longer apply and regulatory prohibitions under the Endangered Species Act would be in effect (intentional and incidental take in the range of NLEB would be prohibited, unless permitted by the USFWS).
The new USFWS final 4(d) rule appears to be a practical regulation for developers, the general public, and agency personnel. By following the abbreviated 4(d) rule, the NLEB should not be impacted and the lengthy process of the Section 7 consultation of the Endangered Species Act can be avoided during the permit evaluation process.