On April 2, 2015, the U.S. Fish and Wildlife Service (Fish & Wildlife) issued a final rule listing the Northern Long-Eared Bat (NLEB) as a threatened species under the Endangered Species Act (ESA).  This listing took effect on May 4, 2015, and could potentially impact development projects in Northern New England and beyond.

The NLEB is found in 37 states, including Maine, New Hampshire and Massachusetts. Fish & Wildlife’s primary reason for listing the species as threatened is the increased mortality of the bat caused by White-Nose Syndrome (WNS). WNS is an emerging infectious wildlife disease that poses considerable threats to hibernating bat species, including the NLEB, throughout North America.  According to Fish & Wildlife, WNS has been the primary contributor to a significant decline in the population of the NLEB since 2007.

Under the ESA, the listing of a species as threatened means that individuals and businesses may not conduct activities that result in a “take” of that species, except in limited approved circumstances. The term “take” is defined broadly, as it means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

In addition to listing the NLEB as threatened, Fish & Wildlife also issued an interim 4(d) rule (which also took effect on May 4, 2015) which allows the take of the species in certain situations.  The interim 4(d) rule makes important distinctions between takes within and outside of the “WNS Buffer Zone,” which is defined as all portions of the bat’s range within 150 miles of boundaries of U.S. counties or Canadian districts where WNS has been detected.  The states of Maine, New Hampshire and Massachusetts are all entirely within the WNS Buffer Zone, meaning that the more stringent provisions of the interim 4(d) rule will apply in these three states.

For developers, the most important provisions of the interim 4(d) rule relate to incidental takes, which are those activities that, while not intended to take a species, may still result in a take due to their incidental harmful effects on the species.  Many development activities that disturb the habitat of an endangered or threatened species could be deemed an incidental take. 

Under the interim 4(d) rule, the exceptions for incidental take are quite limited.  They include only: (1) the implementation of forest management, maintenance and expansion of existing rights-of-way and transmission corridors, prairie management, and minimal tree removal projects that (i) occur more than 0.25 miles from a known bat hibernating shelter (a hibernacula), (ii) avoid cutting or destroying known occupied bat roost trees during the pup season (June 1 – July 31), and (iii) avoid clear-cuts of known occupied bat roost trees during the pup season; (2) routine maintenance within an existing corridor or right-of-way; (3) expansion of a corridor or right-of-way by up to 100 feet from the edge of an existing cleared corridor or right-of-way; and (4) removal of hazardous trees for the protection of human life and property.

For any other development activities within the WNS Buffer Zone, all of the take prohibitions in the ESA and Fish & Wildlife’s regulations will apply.  This means that developers could be required to obtain an incidental take permit for the NLEB for many development activities in Maine, Massachusetts and New Hampshire.

Importantly, due to the significant number of comments that Fish & Wildlife received in response to the interim 4(d) rule that was originally proposed on January 15, 2015, it has opened a 90-day comment period on the interim 4(d) rule through July 1, 2015.  Fish & Wildlife has specifically asked for comments on “whether it may be appropriate to except incidental take as a result of other categories of activities beyond those covered in the proposed rule and, if so, under what conditions and with what conservation measures.”

The extended comment period could be a good opportunity to encourage Fish & Wildlife to reduce the impact of this listing on development activities by allowing more incidental take exceptions.