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Additional ESA Protections Possible for Northern Long-eared Bat

by Transect Team, on Jan 31, 2020

This week, a federal judge overturned the threatened status of the northern long-eared bat (NLEB) and ordered U.S. Fish and Wildlife Service (USFWS) to make a new listing decision.

Background on NLEB as Threatened

Northern long-eared bat (NLEB) is a cave-dwelling bat species with a known range that covers 37 eastern U.S. states. Following rapid population decline due to a deadly fungus called white-nose syndrome, NLEB was listed by USFWS as threatened under the ESA in 2015 with a final 4(d) rule published in 2016.

A “threatened” status under the ESA means that the species is likely to become endangered in the foreseeable future throughout its range. A “4(d) rule” is tool for threatened species that USFWS can use to provide flexibility by allowing some activities that do not harm the species to continue, while focusing “take” (i.e. impact) prohibitions in areas that are most sensitive to species recovery.

For the NLEB, the final 4(d) rule enforces take prohibitions ONLY in the following situations:

  • Areas affected by white-nose syndrome AND
  • Projects within a hibernaculum (cave or mine) OR the project involves tree removal within 0.25 miles of a known hibernaculum OR the project involves tree removal within 150 feet

There are no take prohibitions for projects that do not meet these requirements. As the 4(d) rule applies in such limited instances, the vast majority of proposed projects in the NLEB range do not need to consider effects to NLEB.

The Ruling

The federal judge’s Memorandum Opinion provides several reasons for the ruling, describing that the USFWS decision to list NLEB was not based on best available data, that cumulative effects were not adequately considered, that public notice and comment requirements were violated, and that USFWS did not adequately analyze the species status within the “significant portion of the range.”

In conclusion, the ruling requires USFWS to make a new listing decision consistent with the Memorandum Opinion and leaves the threatened listing in place in the meantime.

How does this affect your projects?

As long as NLEB is listed as threatened with a 4(d) rule, most projects in the NLEB range are not required to consider impacts to the bat unless they meet one of the 4(d) rule criteria listed above. If, as a result of this order, USFWS elevates NLEB to endangered, then the 4(d) rule will no longer apply and consideration of impacts to NLEB will be required across the entire range.  As an example: for Indiana bat, which is listed as endangered in much of the same geographic range as NLEB, removal of almost every tree greater than 3 inches in diameter needs to be considered for impacts to the species.  If NLEB is elevated to an endangered status, proposed projects in the NLEB range could warrant similar consideration.  A timeline on re-evaluation of the status of NLEB is unknown.

Will your project impact NLEB?

Is your project near a cave or maternity tree? Visit app.transect.com today to find out if NLEB is on or near your project and learn about next steps to take if they are.

Topics:Endangered Species Act