U.S. Fish and Wildlife Service Issues Final Protection for Northern Long-Eared Bat

On January 14, the U.S. Fish & Wildlife Service published its Final 4(d) Rule on the Northern Long Eared Bat that will go into effect on February 16, 2016.  You can see the release by clicking here.  As most expected,  the Final 4(d) Rule appears to lighten the regulatory burden on forestry activities, compared to the previous versions.

Click here for the final rule.  Here are some highlights of the new final rule:

(1)  Tree removal activities within a quarter-mile radius of any known hibernaculum (that is, hibernation site, usually a cave or mine), at any time of year, still create liability for any incidental take of the bat.

(2)  The radius of permissible tree removal activities near “known, occupied maternity roost trees” during the June 1-July 31 pup season has been reduced to 150 feet, which had been set at a quarter-mile radius in previous versions.

(3)  Most of the language that was associated with conversion of natural forest to plantations terms has been removed.

(4)  The Final Rule reiterates that “project proponents” may apply for special permits for activities that may result in incidental takes but which the 4(d) rule does not cover-presumably potentially including projects close to hibernacula.

Historical Timeline

Back in October of 2013, the USFW proposed to list the NLEB as endangered under the Endangered Species Act (ESA) in October 2013. The major threat to the bat’s population is the White Nose Syndrome (WNS). During the comment period, the USFW noted that WNS is the major threat an they are not sure how to treat it.

Forestry activities were also credited with helping the bat’s habitat. The Service’s options include listing the species as endangered; listing as threatened; listing as threatened with a 4(d) rule; and withdrawing the proposal to list.

In general, the proposed restrictions on forestry and other activities would be extreme if the NLEB was to gain “endangered status” and would have a dramatic impact on the rural economies in the range of the bat. The NLEB’s territory includes 38 states.

By introducing the 4d Rule, the USFW service acquired the time (60 days) to take comments on the proposed rule in time for the April 2, 2015 designation date. The rule provides flexibility for regulators and is used to tailor the take provisions of the ESA to apply to those actions most important for conservation of the species in question and exempt other actions. It is important to note that the 4d Rule can only be used when the Threatened designation is declared.

The U.S. Fish and Wildlife Service (USFW) announced in April of 2015 that the Northern Long Eared Bat (NLEB) will be listed as Threatened with the 4d Rule.  This new listing went into effect on Monday, May 4, 2015.

Earlier in March, the Fish and Wildlife Service released the final rule listing the Northern Long-Eared Bat (NLEB) as a threatened species, which was the preferred status to listing the bat as an endangered species that was originally proposed in October of 2013.

The agency also included a section 4(d) rule to provide exceptions for specified activities to the prohibition on “take” of the bats. The rule is characterized as an “interim” final rule.  The interim section 4(d) rule contains the same elements as the proposed rule:

* No prohibitions on forest management outside the white-nose syndrome buffer zone;

* No prohibitions on forest management outside 0.25 mile (0.4 kilometer) from a known, occupied hibernacula;

* Avoid clearcuts (and similar harvest methods, e.g., seed tree, shelterwood, and coppice) within 0.25 mile (0.4 kilometer) of known, occupied roost trees during the pup season (June 1-July 31);

* Avoid cutting or destroying known, occupied roost trees during the pup season (June 1-July 31)

After consulting with U.S. Fish and Wildlife personnel in Raleigh, the NCFA encourages members to consult the following map  if they have concerns about the NLEB when moving onto a new tract.  Currently, there are only six counties east of Greensboro where there are documented evidence of the existence of the NLEB.

There are a few challenging issues with identifying the ideal NLEB habitat since there has not been a lot of surveys completed in North Carolina on this species.  The bats seem to prefer large snag trees for maternity roosts, but individual bats, including younger males are not too particular tree to call home.  The U.S. Fish and Wildlife hopes to have more comprehensive data on the NLEB in the coming year.

The NCFA joined a coalition of organizations to submit comments on the Threatened Species Status for the Northern Long-Eared Bat in June of 2015. You can find the submitted comments by clicking here.

In summary, the comments address some of the top issues with the rule. Firstly, the coalition questions the need for a .25 mile restriction on any forest management activities around a known hibernacula or a maternity roost. The coalition also questions the language concerning converting mixed stands to pine plantations. The comments also request the Fish and Wildlife Services develop proper guidance and information for all of the parties (landowners, loggers, foresters, field offices) that will be impacted by this new rule.  Thanks to Chip Murray with NAFO for coordinating this effort and sharing the comments.