On Tuesday, the U.S. Fish and Wildlife Service (Service) proposed to reclassify the northern long-eared bat (Myotis septentrionalis), a bat species found in 38 U.S. states or territories, as an endangered species pursuant to the Endangered Species Act (Act). The Service’s proposed reclassification is a direct response to a federal judge’s court order requiring the Service to revisit its previous listing decision and account for the impact of white nose syndrome (WNS), a disease-causing fungal infection that ultimately results in mortality. The heightened listing for the species is very likely to affect ongoing and future development over a large geographic region, given the species’ range outside of areas affected by WNS.
Currently, the northern long-eared bat is listed only as a threatened species. While this classification requires the Service to impose species-specific conservation measures in accordance with Section 4(d) of the Act—the 4(d) rule—the species’ 4(d) rule provides various exemptions from the Act’s prohibition on take (various forms of harming or killing) of the species. These exemptions include, for example, all forms of incidental, but not intentional, take resulting from otherwise lawful activities in areas not affected by WNS. Lawful activities range from timber harvesting to land clearing to infrastructure development.
If the proposed reclassification is finalized, protections for the northern long-eared bat would be explicitly dictated by the Act and the species-specific 4(d) rule removed. Without the 4(d) rule, project development in these areas where the northern long-eared bat is either present or presumed to be present will require more direct consultation—whether formal or informal—with the Service. In addition to various new requirements imposed on various stakeholders, it would also likely extend project timetables to allow for consultation with the Service and other federal and state agencies as applicable, survey of proposed project areas to confirm the species’ presence, and review of project effects to the species if present. And because of the species’ expansive range, developers and project managers should be wary of the Service’s own ability to efficiently engage in the consultation process.
Unfortunately, the proposed reclassification is accompanied by little guidance for developers or the broader regulated community regarding the path forward for virtually any activity occurring within this species’ habitat. Rather, the Service merely states it may issue permits authorizing otherwise prohibited acts under certain circumstances but that, currently, it’s unable to identify any activity that would not be considered to result in a violation of the Act due to the species’ extensive range. The Service has, at least, identified the Minnesota Wisconsin Ecological Services Field Office as a point of contact for those with questions regarding whether their specific actions may fall within the Act’s purview.
The Service has requested from stakeholders a number of comments on the proposed reclassification regarding both the validity of the proposed listing as well as potential future guidance. Although the Service has not indicated any proposed changes to the current critical habitat designations, the Service’s request for comments includes information regarding the species’ habitat and range. Comments being requested include the following:
- the species’ biology, range, and population trends
- biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats
- additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species
Comments must be filed with the Service by Monday, May 23, 2022, to be considered as part of any final rule.
This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.