Once a ubiquitous, commonly-encountered species in the Eastern United States, the northern long-eared bat (Myotis septentrionalis) has suffered drastic declines due to a fungal disease called White-Nose Syndrome (WNS), which affects bats while they hibernate. In April 2015, the U.S. Fish and Wildlife Service (USFWS) listed the northern long-eared bat as a threatened species under the Endangered Species Act (ESA). The listing became effective May 4, 2015.
Interim Section 4(d) Rule
At the time of listing, the USFWS simultaneously established an interim Section 4(d) rule. This allows the USFWS flexibility to target take prohibitions and allows consultation flexibility in order to focus conservation efforts on those that are most important for a species’ recovery. Unfortunately, the interim rule for northern long-eared bat applied broad prohibitions against take associated with tree clearing that had wide-ranging implications on the public and private sector, including energy and infrastructure businesses and their proposed projects.
Final Section 4(d) Rule
On January 14, 2016, the USFWS published a final Section 4(d) rule for the northern long-eared bat. The most noteworthy change is that the update does not prohibit incidental take resulting from most tree clearing activities, including those associated with construction of energy and infrastructure projects. Incidental take of northern long-eared bats associated with tree clearing activities is only prohibited where it involves clearing of known, occupied maternity roosts or any trees within 150 feet of those roosts during the pup season (June 1 – July 31) or within 0.25 miles of known, occupied hibernacula. Due to forward-thinking by the USFWS, the rule provides for protection of northern long-eared bats where and when they are most vulnerable, particularly while hibernating and rearing young—allowing the focus of research and recovery efforts to be targeted on the true threat, WNS.
As always, federal agencies must consult with the USFWS to ensure that any action they authorize, fund, permit, or carry out does not jeopardize the existence of a listed species. This requirement does not change when a 4(d) rule is implemented. While federal agencies can use the biological opinion that was conducted to establish the 4(d) rule to make an opinion of take/jeopardy, they still must notify USFWS of their decision to implement the 4(d) rule for a project.
The final Section 4(d) rule took effect on February 16, 2016—visit USFWS for more information.
At GAI, the USFWS and state agencies recognize our bat biologists as qualified bat surveyors. Surveys for bats help determine potential environmental concerns around and near prospective projects. GAI is committed to assisting our clients with permitting issues related to native bats and other species.
For assistance with interpreting the Section 4(d) rule and questions on complying, contact Adam Mann at 859.647.6647 or Jason Duffey at 859.647.6647.
For related information, check out the following articles and blog posts:
A Peek into the Nightlife of a Bat Biologist | August 6, 2015
Northern Long-Eared Bat Gets Federal Protection | May 4, 2015
