On April 27, 2016, the U.S. Fish and Wildlife Service (FWS) published a decision reversing their prior decision and determining that designation of critical habitat is not prudent for the Northern Long-Eared Bat (NLEB).
The NLEB is a wide-ranging species that is found in a variety of forested habitats in summer and hibernates in caves and mines in winter. The FWS determined that the fungal disease, white-nose syndrome (WNS), is the main threat to this species and has caused a precipitous decline in bat numbers where the disease has occurred.
The FWS listed the NLEB as a “threatened” species under the Endangered Species Act (ESA) on April 2, 2015. At the time of the listing, the FWS determined that designation of critical habitat was prudent, but not determinable. Jackson Kelly wrote several articles concerning this listing on September 2010, January 2015, November 2015, and January 2016.
When the FWS proposes a species for listing under the ESA, they are required to consider whether there are geographic areas that are essential to conserve the species. If so, they may propose designating these areas as critical habitat. Critical habitat is the specific area occupied by the species at the time it was listed that contains the physical or biological features essential to the conservation of endangered and threatened species and that may need special management and protection.
Critical habitat designations do not affect activities by private landowners unless there is a Federal “nexus”—that is, Federal funding or authorization required for the activity (e.g., federally permitted activities like Clean Water Act Section 404 fill permits). For a project with a Federal “nexus”, any party proposing activity within an area designated as critical habitat that may “destroy or adversely modify” critical habitat for listed species is required to consult with the FWS prior to initiating the activity. This consultation requirement can be time consuming and burdensome. However, an area may be excluded from critical habitat designation based on any relevant impacts, including if the FWS determines that the benefits of excluding outweigh the benefits of including it.
Since the listing, the FWS discovered information demonstrating that designating the winter habitat as critical for the bat would likely increase the threat from vandalism and disturbance, and could increase the spread of white-nose syndrome. The FWS further determined that designating the summer habitat as critical habitat would not be beneficial to the species because there are no areas within the summer habitat that meet the definition of critical habitat. Based upon these findings, the FWS determined that designation of critical habitat for the NLEB is not prudent.
Given the burden placed on activities with a Federal “nexus” operating in areas designated as critical habitat, this decision will have a wide-ranging impact on energy industries. Under the final NLEB 4(d) rule, incidental takes of the NLEB are not prohibited by energy infrastructure development and operations operating within the WNS zone (which encompasses most of the east coast) so long as the projects do not: 1) result in the incidental take of the NLEB in hibernacula; 2) result in the incidental take of the NLEB by altering known hibernaculum’s entrance or interior environment; or 3) result in tree-removal activities that incidentally take NLEBs when the activity occurs within 0.25 miles or a known hibernaculum, or cuts or destroys known occupied maternity roost trees, or any other trees within a 150-foot radium from the known maternity roost tree, during the pup season (June 1 through July 31). For those complying with these steps, this recent decision removes a potentially unnecessarily burdensome consultation process which can span between 90 – 120 days, at a minimum, before a project can move forward.
A copy of the recent decision can be found here.
This article was authored by Matthew S. Tyree, Jackson Kelly PLLC.