Energy and Environment Monitor

Fish & Wildlife Service Considers Listing Northern Long-Eared Bat as “Threatened” Rather than “Endangered”

January 26, 2015

“Threatened” Listing Would Create Fewer Burdens for Maintaining Existing Pipelines and Utility Lines           

Northern long-eared bats live throughout the Eastern and Midwestern United States. The bat’s population has declined in many areas due to the fungal disease white-nose syndrome (“WNS”). On October 2, 2013, the Fish and Wildlife Service (“FWS”) proposed to list the northern long-eared bat as endangered. Many public commenters opposed this listing because WNS—rather than human activities—are causing this decline. In response to those public comments, the FWS on January 15, 2015 announced that it is considering listing the species as “threatened” rather than “endangered.” 

For most large-scale industrial activities that involve tree removal (mining, oil and gas drilling, wind farms, commercial development), a listing of the northern long-eared bat as “threatened” rather than “endangered” makes little difference. A listing under either would impose additional regulatory burdens on these activities. For small businesses, timber operations, and the maintenance of existing pipelines and utility lines, however, a “threatened” listing may create fewer burdens than an “endangered” listing.   

Threatened vs. Endangered

When a species is listed as endangered, all “takes” of that species are illegal unless pre-authorized by the FWS through “incidental take permits.” The Endangered Species Act broadly defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. §1532(19). When a species is listed as threatened, the FWS has discretion to prohibit takes that the agency believes to be harmful to the species while allowing other takes that have minimal impacts. 

The FWS is contemplating allowing incidental takes of northern long-eared bats in areas where WNS has not been documented. Different rules would apply in areas where WNS has been detected. In the WNS regions, the FWS would ban all incidental takes except those from a select group of activities that have complied with conservation practices. The proposed exempted activities and conservation practices are described below.

 Activities Proposed to be Exempt from Incidental Take Prohibition

Forest Management Practices

Under the FWS proposal, incidental takes from forest management activities such as timber harvests and temporary road construction would not be prohibited as long as the conservation measures below are followed. 

Maintenance/ Expansion of Transportation and Utility Rights-of-Way

The maintenance and limited expansion of existing rights-of-ways and transmission corridors would also be exempt from incidental take prohibitions. Existing utility lines and pipelines would benefit from this exemption. These existing corridors could also expand up to 100 feet (30 m) from the edge of the existing pathway under this exemption. 

Minimal Tree Removal Projects

The FWS proposes to exempt incidental takes caused by “minimal” tree removal such as backyard landscaping and firewood cutting. The proposal does not make clear how many trees might be removed and still qualify as “minimal” tree removal. 

Required Habitat Conservation Practices

To qualify for the incidental take exemption, the activities listed above would need to follow   the following habitat conservation measures: 

• Avoid cutting or destroying known, occupied maternity roost trees during the pup season (June 1–July 31);
• Avoid clearcuts within 0.25 (0.4 km) mile of known, occupied maternity roost trees during the pup season (June 1–July 31); and 
• Avoid incidental takes within 0.25 mile (0.4 km) of known, occupied hibernation locations. 

While the FWS recommends coordination with the local FWS to determine the specific locations of the “known hibernacula” and “known maternity roosts,” such consultation does not appear to be required by the proposal. 

White Nose Syndrome Areas

The proposed rule would create separate taking standards based on the presence or absence of WNS within a county. The FWS considers WNS to be present in a county if the disease has been found within 150 miles (241 km) of that county’s boundary. As of June 2014, WNS has been detected in 24 states.[1]

https://www.whitenosesyndrome.org/sites/default/files/resource/white-nose_fact_sheet_6-2014_1.pdf           

Opportunity to Comment

The FWS is currently seeking comments on whether additional types of activities in areas with WNS should be exempted from incidental take prohibitions. If you would like to learn more about the FWS’s recent proposal, or would like help drafting comments urging exemptions for your industry or activity, please contact Bob McLusky or Aaron Heishman. 

This article was authored by Aaron Heishman, Jackson Kelly PLLC.  For more information on the author, click here.

 

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