By Marc Campopiano and Max Friedman
On April 1, 2015, the US Fish and Wildlife Service (“FWS”) announced that it would list the northern long-eared bat as a “threatened species” under the Endangered Species Act (“ESA”).
The listing comes in response to a sharp drop of more than 90 percent of the northern long-eared bat’s population in the eastern portion of its range over the last decade. In 2006, a new form of fungal disease, known as white-nose syndrome, began to afflict portions of the population and spread throughout the range, accelerating the species’ decline. The disease causes bats to end their winter hibernation prematurely, leading them to die of starvation and exhaustion due to lack of food. Currently, the disease has been identified in one or more counties of 28 states and the District of Columbia, out of the species’ 37-state overall range. In regions where the disease has not yet spread, bat populations remain stable.
For now, the bat species’ listing is only on an interim basis, with a finalized listing expected to come before the end of 2015. FWS has also extended the public comment period for the final rule and will continue to accept comments regarding the listing until July 1, 2015.
At the same time that FWS announced the bat’s listing, it also announced that it was instituting an interim rule, known as a “4(d) Rule” for the provision of the ESA from which it derives, to provide flexibility to landowners, forest managers, government agencies, and others by allowing the incidental “take” of northern long-eared bats during certain types of activity, such as forest and native prairie management, maintenance of existing rights-of-way and transmission corridors, and the removal of a minimal number of trees or hazardous trees. Incidental “take” refers to the accidental killing or harming of individual bats, including through the modification or degradation of crucial habitat.
Thus, under the interim 4(d) Rule, an exemption from the need to acquire an incidental take permit applies if the activity falls within certain categories, or if the activities occur outside the zone in which white-nose syndrome has been found or the surrounding buffer zone. FWS has prepared a questionnaire to help landowners and developers determine whether the exemption applies to specific activities. Non-exempt activities may trigger the obligation to obtain incidental take coverage from FWS, which can be a time-consuming and expensive permitting process, thereby impacting development in affected areas.