Wildlife laws including the Endangered Species Act (ESA) and the Migratory Bird Treaty Act (MBTA) have become part of the ever-increasing arsenal of tactics being used to oppose, delay or quash projects and developments. As a result, project managers and developers should take note of the recent ESA listing of the Northern Long-Eared Bat (NLEB), given the range of potential impacts such a listing can have on operations and development.
On January 14, 2016, the United States Fish & Wildlife Service (FWS) published its final rule under ESA Section 4(d) for the NLEB, which was initially listed as "threatened" on April 2, 2015. The primary motivation for listing the NLEB was the recent discovery of White-Nose Syndrome (WNS), a fungal disease, that leads to increased mortality and spreads during the NLEB's hibernation period.
The NLEB's listing, and the attendant protections afforded it under the ESA, are particularly troublesome for the regulated community given its widespread geographic range (see map below). The 4(d) rule, though accommodating some of the concerns raised during the listing process, clarifies the prohibitions and exemptions applicable to operations and activities in the NLEB's range.
The incidence of so-called "4(d) rules" have increased over the past few years given the tension between environmental advocacy organizations (EAOs), the regulated community, and FWS, due to an increase in the number of legal actions commenced by EAOs, the short time frames mandated by the ESA and its implementing regulations, and the limited resources of FWS. Though a sometimes welcome development to affected industries, 4(d) rules have been challenged by EAOs which view anything short of a moratorium on activities affecting the designated species as unacceptable.
The listing of the NLEB as "threatened" means FWS concluded that it is likely to become endangered in the foreseeable future throughout all or a significant portion of its range. The recently released 4(d) rule clarifies the circumstances under which a "take" of the NLEB will be considered a violation of the ESA. "Take" is broadly-defined under the ESA to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." The take of a listed species can subject a person to civil and criminal penalties, but can be mitigated when the "take" is considered "incidental" to otherwise lawful activity.
The final 4(d) rule reiterated that any purposeful take is still prohibited, except in limited circumstances (e.g. protection of human life or property, removal from human structures), and clarifies certain exceptions. The rule prohibits (with some exceptions) the incidental take of NLEB in "WNS Zones," which include areas within 150 miles of counties with a confirmed incidence of WNS. However, for areas not affected by WNS, incidental take is not prohibited. As the map below shows, the NLEB's range stretches from Canada to the Gulf of Mexico, and from the East Coast to Montana. WNS is present in much of this range and continues to spread.
Of particular concern to FWS are areas where NLEBs hibernate, known as hibernacula, where "take" includes activities that "impair essential behavioral patterns." Outside of hibernacula, the rule addresses "incidental take," including the prohibition of tree removal in designated areas, if:
- It occurs within 0.25 miles of a known hibernacula; or
- It cuts or destroys known occupied maternity roost trees or trees within 150 feet of a known maternity tree during the pup season (June 1 – July 31).
"Tree removal" is broadly defined to include tree "trimming" and "manipulating in any other way" trees, saplings, snags, or other woody vegetation. There are some exceptions, for example, for the removal of hazard trees, and the maintenance and expansion of right-of ways, when certain conservation measures are followed.
EAOs have opposed these exemptions, which are supported by FWS's recognition that WNS, not industry activity, is the primary cause of the NLEB's decline. EAOs have also pushed for an "endangered" listing due to the continued spread of WNS, which they claim may eventually decimate the NLEB population.
FWS, available at http://www.fws.gov/midwest/endangered/mammals/nleb/
The members of Barclay Damon, LLP's Wildlife Law and Conservation Team have been counseling clients on wildlife law issues, for decades. For further information about the final 4(d) rule or other wildlife laws and regulations, please contact Michael A. Oropallo at 315-425-2831 or moropallo@barclaydamon.com.