On April 2, 2015 the U.S. Fish and Wildlife Service (USFWS) published a final rule in the Federal Register designating the northern long-eared bat (Myotis septentrionalis) as Threatened with an interim 4(d) rule under the Endangered Species Act (ESA). These rulings became effective on May 4, 2015 and a 90-day comment period was opened.
Electric and gas utility projects, transportation projects and new commercial and residential development projects are among those that will be impacted by this ruling. State and Federal wildlife agency coordination will now be required for projects that involve US Army Corps of Engineers (USACE) or National Environmental Protection Act (NEPA) processes.
USFWS referenced the quickly-spreading threat from White Nose Syndrome (WNS), a fungal pathogen known to affect only bats, as the primary impetus for the ESA listing. The northern long-eared bat joins five other federally listed bat species, all of which are Endangered:
The interim 4(d) ruling, applicable to those species listed as Threatened rather than Endangered, has custom provisions for the northern long-eared bat, including measures exempting “take” (defined by the ESA as to harass, pursue, hunt, shoot, wound, kill, etc.) from certain activities.
These allowances differ depending on a given project’s proximity to WNS affected areas.
For areas not affected by WNS, the 4(d) rule exempts incidental take from all activities.
In areas impacted by WNS, the 4(d) rule exempts incidental take resulting from:
The above activities are exempt from take prohibition provided that they include protective Best Management Practices, such as:
The northern long-eared bat is known to occur in 37 eastern and central states, having a much wider range than all of the other listed bat species. This latest listing particularly affects projects in the extreme Northeast (New Hampshire and Maine) and upper Midwest (Minnesota, Wisconsin, the Dakotas and Nebraska) which have not previously had to address the presence of listed bats.
The additional agency coordination and field surveys required to assess bat impacts and obtain the necessary environmental permits may extend project schedules. If mitigation measures are needed, projects can be further delayed and costs can rise.
Just as with other listed bats, a Federal Endangered Species Recovery Permit will be required for any biologists to conduct surveys which might result in incidental take.
But other permitting requirements may differ from project to project and from region to region and these will have to be accounted for, even on projects which already hold permits.
In Pennsylvania for example, the USACE recently informed permit holders they will have to request a new Pennsylvania Natural Diversity Index search on previously authorized projects where construction has not been completed as of May 4, 2015 and on all new projects as well to address the northern long-eared bat.
Planning for Success
Companies working in areas where the northern long-eared bat call home can prepare in advance for the new threatened species requirements. Planning ahead will help avoid unanticipated costs and will keep projects moving according to schedule. The following considerations are important to successful compliance:
Stay tuned to this blog for more information as it is available. TRC will continue to monitor developments around this regulation and share important updates impacting compliance options and schedule.