The U.S. Fish & Wildlife Service (FWS) issued a final rule under Section 4(d) of the Endangered Species Act (ESA), taking effect February 16, 2016 and imposing measures intended to protect the northern long-eared bat (NLE bat) under its status as a “threatened species.” Four environmental groups announced their intention to challenge the rule for the increase in timber, energy, agricultural and other industrial activity allegedly allowed in sensitive NLE bat habitat, as well as FWS’s failure to protect the bats as an “endangered species.”
The Service states that its final rule minimizes requirements imposed on landowners, land managers, agencies and others by tailoring the NLE bat restrictions to fit the conservation needs of specific locations and seasons and to include other exceptions necessary to protect public health and property. However, the final rule still imposes stringent prohibitions against “tree-removal” activities and other incidental takings across a massive swath covering all of New England, the Mid-Atlantic and significant parts of the Midwest, Southeast and other locations as the disease spreads west throughout the range of the species. Tree-removal is defined in the final rule “as cutting down, harvesting, destroying, trimming, or manipulating in any other way the trees, saplings, snags, or any other form of woody vegetation likely to be used by NLE bats.” This large area known as the White-Nose Syndrome Zone is mapped and updated monthly by FWS on its website. The January 29, 2016 version of this map is provided below.
NLE bats face a severe threat from the spread of white-nose syndrome (WNS), a disease caused by a fungus called Pseudogymnoascus destructans or Pd. The Service reports that bat populations have declined precipitously where the WNS disease occurs, often 90 to 100 percent. FWS also notes research estimating that bats provide at least $3 billion per year in economic value, thanks to their voracious consumption of insects and related benefits to farmers and foresters. If the WNS crisis causes the NLE bat population to become endangered, the Service intends to propose replacement of the threatened species measures adopted under this final ESA § 4(d) rule with the more stringent prohibitions afforded endangered species under the ESA.
The ESA defines “take” of a protected species broadly to include not only “purposeful takes,” resulting from the capture and handling, intentional killing or harassing of the species, but also “incidental takes” that are incidental to, but not the purpose of, an otherwise lawful activity. As summarized in the following table, the final ESA § 4(d) rule specifies the circumstances, locations, and periods when the taking of NLE bats is prohibited. These restrictions reflect the Service’s determination that “the most important conservation actions for the [NLE] bat are to protect bats in hibernacula [(caves and mines where bats hibernate in the winter)] and maternity roost trees [(trees where pregnant females migrate to roost in small colonies and give birth to their pups)] and to continue to monitor populations in summer habitat … while developing methods to abate WNS.”
The Midwest Region of FWS hosts the website “home” for NLE bat information, where the Service posts several background documents, “keys,” and other materials intended to help public and private parties determine the impact of the final NLE bat rule on their projects. The Service encourages, but does not require, private landowners to conduct surveys (using recommended methods) to reduce uncertainties and facilitate project planning. The website also provides links to state resources providing hibernacula and maternity roost tree location information.
Owners and developers should consider both these ESA and additional NLE bat requirements that agencies may impose under state laws or site-specific permitting decisions. Under the ESA, any person who knowingly violates any ESA provision, permit, certificate, or regulation may be assessed a civil penalty within prescribed limits ranging from $12,000 to $25,000 for each violation, in addition to facing potential criminal liability. Failing to secure an ESA permit required for takings or violating a permit condition, even if unintentional, may subject the party to a civil penalty, order, or other enforcement.
* Robert S. Melvin is a Robinson+Cole partner in the firm’s Environmental + Utilities Group and its Large Project Development Team. If you have any questions or would like to discuss this update further, please contact him or any other Northeast Development Law Blog author.