The northern long-eared bat faces extinction because of white-nose syndrome, a deadly disease affecting cave-dwelling bats across the continent. Most winter colonies of northern long-eared bats have experienced severe decline following the disease’s arrival in 2006. The U.S. Fish and Wildlife Service (USFWS) recently published the final endangered species listing for the northern long-eared bat (Myotis septentrionalis), a much-anticipated action since the proposed rule was pushed out in March 2022. The final rule will go into effect on March 31, 2023.
What Does The Listing Do?
The listing officially changes the legal status of the northern long-eared bat from threatened to endangered. Changing the official status of the northern long-eared bat also affects the 4(d) rules. While the 4(d) rule under the threatened listing gave opportunities for projects in some states to continue without TOYR on activities such as tree clearing, the endangered listing does not allow for a 4(d) rule. The final rule states that the 4(d) rule will be nullified once the final rule goes into effect on March 31, 2023. As a result of the listing change, any projects that have the potential to impact suitable habitat, defined as forested areas with trees measuring 3 or more inches in diameter that have exfoliating bark, cracks, crevices, or cavities as well as forested linear features such as wooded fencerows, riparian forests, and other wooded corridors, may need to coordinate with the USFWS.
How Does This Affect My Projects?
Under Section 7 of the ESA, projects that require a federal action, such as work on National Park Service lands, NEPA approvals, wetland permits, and construction or maintenance by the Federal Highway Administration, may need to coordinate with the USFWS regarding the potential for “take” of this species if suitable habitat is present within the project area. Projects that do not require a federal action may still need to coordinate with USFWS under Section 10 of the ESA to determine if the action is allowed or if an incidental take permit will be required.
On March 6, USFWS published the Interim Consultation Framework, the Interim Guidance for Habitat Modification, and the Interim Wind Guidance for the northern long-eared bat. A rangewide DKey was also published and linked to on the USFWS Information for Planning and Consultation tool. Modifications to the DKey are still forthcoming and are expected to be finalized before March 31.
Exceptions To The Listing
The final rule mentions a number of actions that would not constitute a “take,” including:
- Minimal tree removal and vegetation management activities that occur outside of suitable forested/wooded habitat and more than 5 miles from known or potential hibernacula, as specified by the state.
- Insignificant amounts of suitable forested/wooded habitat removal, provided it occurs during the hibernation period and the modification of habitat does not significantly impair an essential behavior pattern that could result in killing or injuring the northern long-eared bat after hibernation. The USFWS currently does not define insignificant amounts of tree removal, but it may appear in the DKey.
- Tree removal occurs at any time of year in highly developed urban areas (e.g., street trees, downtown areas).
- Herbicide application activities that adhere to the product label, occur outside of suitable forested/wooded habitat, and are more than 5 miles from known or potential hibernacula.
- Mowing of existing (non-suitable forested/woodland habitat) rights-of-way.
- Maintenance, repair, and replacement activities conducted completely within existing, maintained utility rights-of-way provided there is no tree removal or tree trimming.
- All activities (except wind turbine operation) in areas where a negative presence/probable absence survey result was obtained using the most recent version of the range-wide northern long-eared bat survey guidance and with USFWS approval of the proposed survey methods and results.
What Are My Options?
We recommend conducting a habitat assessment to determine if there is suitable habitat within the project area. If you have a project that has the potential to affect suitable habitat for the northern long-eared bat, you will need to coordinate with the USFWS. If your project is part of a federal action, coordination will take place through the responsible agency (e.g., the U.S. Army Corps of Engineers). At this time, coordination is expected to result in one of two options:
- Early indications are that projects will need to adhere to the Ecological Services Field Office’s TOYR.
- Perform a presence/absence survey. If the survey is negative for the northern long-eared bat (and other federally-listed bat species), then the TOYR may be lifted.
If your project is not part of a federal action, coordination will take place through the project managers and the USFWS to determine if the action is allowed or if an incidental take permit will be required.
We Can Help!
Davey Resource Group (DRG) has extensive experience with acoustic surveys and the northern long-eared bat.