On April 2, 2015, FWS released a decision containing both a final rule listing the northern long-eared bat as a threatened species, and an interim rule under Section 4(d) of the act establishing measures that it believed necessary and advisable to provide for the bat’s conservation. Although the ESA strictly forbids the unpermitted taking of an endangered species, the statute does not provide the same protection for those species listed as threatened. Instead, FWS adopted a regulation that extends those taking provisions to threatened species unless a special rule is developed under Section 4(d) of the act to provide species-specific prohibitions.
In this final Section 4(d) rule, FWS made significant changes from the interim prohibitions, particularly those involving tree clearing and industrial activities. This rule could affect any industry engaging in tree clearing or land management activities that occur within critical portions of the bat’s range. Here are the key highlights of the final rule:
- The incidental take of a northern long-eared bat in areas not yet affected by white-nose syndrome (WNS) is not prohibited. Although purposeful take of the northern long-eared bat for other than self-defense and public health purposes is prohibited throughout its range, the prohibition on incidentally taking such a bat is limited to those areas of the country where FWS has found the presence of WNS.
As FWS noted in this rule, this disease is the primary cause for the species’ decline and was the principal factor in its listing. This disease has caused a massive decline in bat numbers wherever it appears. In response, FWS has identified and mapped a WNS zone that measures the presence of the fungus causing the disease and that now provides the boundary for the application and implementation of this rule. The map will be updated monthly.
Outside this boundary, FWS has found no benefit to regulating any incidental taking because those activities are not expected to change the rate at which WNS progresses.
- The prohibitions on incidental taking within the WNS zone are modified to reflect the activities prohibited rather than the industries that undertake those activities. In the interim rule, FWS imposed a ban on certain tree clearing that contained an exemption for the timber industry but prohibited those tree clearing activities by oil, gas, energy, wind, agricultural and mining industries. FWS has now concluded that its final rule should focus on the activity in question, not on the identity of the entity taking that action. As a result, within the WNS zone, tree removal activities are now prohibited where the activity would occur within 0.25 miles of a cave, mine or other structure used by the northern long-eared bat to hibernate (hibernacula).
Also, the final rule prohibits the removal of any tree from June 1 through July 31 if that tree or others within a 150-foot radius are known to be occupied bat maternity roosting trees.
- Altering a cave, mine or other structure within the WNS zone where northern long-eared bats are known to hibernate is also prohibited. Because places such as caves, mines and other structures where bats hibernate during the winter are so crucial to their survival, the final rule prohibits activities to alter a known hibernaculum if the activity could disturb or disrupt hibernating individual bats or impair an essential behavioral pattern including sheltering. In addition, activities occurring outside a known hibernaculum’s entrance or interior environment are prohibited if that activity changes either a northern long-eared bat’s access to or the quality of a known hibernaculum.
Importantly, this prohibition on activities altering hibernacula applies whether or not the bats are then using the structure to hibernate if it can be shown that the activities will impair essential bat behavioral patterns when they return.
- Activities not involving tree removal or affecting hibernacula are not prohibited. The FWS final rule recognizes that many activities not involving tree removal can have direct or indirect effects on northern long-eared bats. The final rule lists a number of activities that have the potential to cause the incidental take of these bats, including the operation of utility-scale wind energy turbines, the application of pesticides and prescribed fires as a land management activity. For all of these named and unnamed actions, FWS has made a finding that any incidental take arising as a result will not have a significant effect at the species level, and therefore all incidental takes other than those resulting from activities expressly regulated are not prohibited.
- As with other activities regulated by the ESA, definitions remain very important. To fully appreciate the nature and scope of the ESA, it is important to understand a number of key definitions that are contained in the act or have been approved by FWS and its sister agency in the Department of Commerce. The statute, at 16 U.S.C. § 1538, prohibits “taking,” which is then defined at 16 U.S.C. § 1532(19) to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” In turn, FWS has defined “harm” as used by the ESA to mean an act that actually kills or injures wildlife and that may include significant habitat modification or degradation where such action actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering. 50 C.F.R. § 17.3. An “incidental take” is a taking that results from, but was not the purpose of, carrying out an otherwise lawful activity. 50 C.F.R. § 402.02. A “threatened” species is one that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C. §1532(20).
If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work, or
Peter R. Steenland
+1 202 736 8532
David T. Buente Jr.
+1 202 736 8111
Sidley Environmental Practice
To receive Sidley Updates, please subscribe at www.sidley.com/subscribe.
Sidley Austin provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.
Attorney Advertising - For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300; One South Dearborn, Chicago, IL 60603, 312.853.7000; and 1501 K Street, N.W., Washington, D.C. 20005, 202.736.8000.