A new Endangered Species Act rule protecting the northern long-eared bat will likely have only limited impact on development and land use activities in Massachusetts due to fairly specific restrictions imposed by the final rule published in January by the U.S. Fish and Wildlife Service (FWS). See 81 Fed. Reg. 1900 (Jan. 14, 2016). The northern long-eared bat was listed as a threatened species in April 2015 and its protection was governed by an interim rule until the final rule was published. Because the range of the northern long-eared bat’s range covers 37 states including Massachusetts and much of New England, land owners, developers, and other stakeholders have been awaiting finalization of the rule.
Under section 4(d) of the Endangered Species Act, the FWS may develop species-specific prohibitions and exceptions tailored to a threatened species’ conservation needs. Here, the finalization of the rule was a response to the declining population of northern long-eared bats resulting from the spread of white nose syndrome, a fungal disease that affects hibernating bat species. The structure of regulation under the rule relies in fact on the reach of white nose syndrome. While the rule prohibits the “purposeful take” (intentional capture and handling) of northern long-eared bats across the bat’s range except in certain very limited circumstances, the rule regulates the “incidental take” (harm that is incidental to and not the purpose of an otherwise lawful activity) of northern long-eared bats differently and in a much less limiting manner.
FWS has developed a map that tracks the occurrence and spread of white nose syndrome in the U.S. (“the WNS zone”), which FWS intends to update and post each month here. Incidental take of northern long-eared bats is not prohibited in areas within the bat’s range that are not yet affected by white nose syndrome. For areas within the WNS zone and within known caves, mines, and similar structures in which bats hibernate (known as “hibernacula”), the incidental take of northern long-eared bats is prohibited without a permit. In areas within the WNS zone but outside of hibernacula, the incidental take of northern long-eared bats resulting from activities other than tree removal is not prohibited. Incidental take resulting from tree removal is prohibited without a permit if (1) the tree removal occurs within a quarter-mile of known northern long-eared bat’s hibernacula, or (2) the tree removal cuts or destroys known occupied maternity roost trees or any other trees within a 150- foot radius of the maternity roost tree in June and July. Thus, landowners within the WNS zone are expected to research available data on the presence of northern long-eared bats and their roosts prior to undertaking tree removal activities.
All of the New England states are currently within the WNS zone. Private landowners and project developers in Massachusetts planning tree removal activities should contact the Massachusetts Natural Heritage & Endangered Species Program to determine whether the northern long-eared bat is present in the area and whether maternity roost trees or hibernacula are located within or near a project area. If so, an incidental take permit from the FWS may be required.
It appears that the final rule will also have limited impact on permitting under the Multi-Sector General Permit (MSGP) for Stormwater Associated with Industrial Activities unless the stormwater controls that are implemented impact hibernacula or roosting areas themselves. The MSGP includes an evaluation of the presence of a threatened species as a factor in determining a facility’s eligibility for permit coverage. EPA recently concluded that if the northern longeared bat is the only listed species potentially present in a facility’s “action area,” and the facility will not be conducting discharge-related activities (such as the construction and operation of stormwater controls), no further threatened species review is required. However, where a facility is going to conduct discharge-related activities in an area where the northern long-eared bat may be present, it would first need to conclude that those activities will not adversely affect the bat and then seek concurrence from EPA. As a practical matter, these impacts seem limited to instances where tree removal that impacts roosting areas is required in order to construct or operate stormwater controls. Under those circumstances, EPA may impose certain measures or restrictions under the auspices of the section 4(d) rule, although what those measures and restrictions would look like is not yet clear