Northern Long-Eared Final 4(d) Rule

Final 4(d) Rule for the Northern Long-Eared Bat (Myotis septentrionalis)

The 4(d) Rule is a tool found within the Endangered Species Act (ESA) for protecting species listed as “threatened.”  This rule gets its name from section 4(d) of the ESA, which directs the U.S. Fish and Wildlife Service (FWS) to issue regulations deemed “necessary and advisable to provide for the conservation of threatened species.”

I participated in a conference call with Jason Luginbill, FWS, Kansas Ecological Services Field Office.  The following five PDF files were his “roll-out” notes for the discussion.  The January 14, 2016 information briefing allowed FWS to provide interpretation of the final 4(d) Rule regarding the northern long-eared bat, which will go into effect on February 16, 2016.

The final rule has differences from the April of 2015 interim 4(d) rule.  Environmental Systems Analysis, Inc. will keep you informed as the ramifications for the final rule are clarified by the regulatory agencies, including FWS and the U.S. Army Corps of Engineers (ACOE).

The 4(d) Rule provides flexibility to land developers, land owners, land managers, government agencies and others as they conduct activities in northern long-eared bat habitat.  Northern long-eared bats (NLEB) were listed under the ESA as threatened in April 2015 due to the impacts of a deadly disease, white-nose syndrome (WNS), which has killed millions of cave-hibernating bats in the East, Midwest and Southeast.

3Hdn83M

The ESA protects threatened and endangered wildlife from “take,” which includes harming, harassing or killing a listed species.

The FWS approach to regulatory prohibitions through the 4(d) Rule reflects the significant role white-nose syndrome plays as the central threat to the species.  Because this disease is the major threat and the sole cause of the bat’s threatened status, they chose not to apply broad protections across the bat’s entire range.  Instead, they focused protections on specific periods in the bat’s life history and areas near hibernacula within the area currently affected by white-nose syndrome and areas within 150 miles of hibernacula where the causative fungus has been detected.

Under the final 4(d) rule all purposeful take is prohibited across the entire range of the northern long-eared bat, except under these circumstances:

  • Defense of human life (includes for public health monitoring)
  • Removal of hazardous trees for protection of human life and property
  • Removal of bats from human structures

In areas outside the WNS Zone, incidental take is not prohibited.  These are the areas that have not yet been impacted by WNS or are further than 150 miles from hibernacula where the causative fungus has been detected.  See the White-nose Syndrome Zone Map as follows:

WNSZone

Within the WNS zone, all incidental take within hibernacula is prohibited.

All other incidental take is allowed, unless it is caused by tree removal that occurs in specific locations. These specific locations are:

  • within 1/4 mile of a known hibernaculum, at any time of year
  • within a 150-foot radius of a known occupied maternity roost tree during the pup season (June 1 through July 31)

In the case of Maryland, location information for northern long-eared bat hibernacula and maternity roost trees is generally kept at the FWS Annapolis Field office and MD DNR Natural Heritage Program, and which can be “determined” through a FWS Endangered Species Project Review, Information for Planing and Conservation (IPaC) and/or DNR environmental review request.  In some cases, to protect those resources, access to the information may be limited.

To clarify, only incidental take within a hibernacula or caused by tree removal activities is prohibited.  Also, take caused by tree removal that is not within 1/4 mile of hibernacula or within 150 feet of a known occupied maternity roost tree is allowed.  This includes tree removal for any reason, such as clearing for rights-of-way, for energy projects, or for housing developments.

We encourage land developers with a project that includes removing trees near hibernacula or a maternity roost to contact Environmental Systems Analysis, Inc. (ESA) for help in determining if the project is unlikely to take bats or if the project can be adjusted to avoid taking bats.  If needed, ESA can obtain a permit that would allow the project to proceed, and can provide acoustic and mist net surveys as and if necessary.

For further information contact:

Mark Burchick, Environmental Systems Analysis, Inc. (ESA), 2141 Priest Bridge Drive, Suite 1, Crofton, MD 21114, 410-267-0495 x-203, Natural Resources Management & Ecological Restoration Consultants.

 

Source Articles –

Two page FWS cover letter announcing the Final 4(d) Rule of the Endangered Species Act for NLEB:

Northern Long-eared Bat Final 4(d) Rollout Partners Letter January 13 2016

Three page FWS news release announcing Protection Finalized for Threatened NLEB:

NLEB 4(d) – NEWS RELEASE FINAL 1-13-16_TemplateVersion

Seven page FWS Frequently Asked Questions on the Final 4(d) Rule:

FAQs NLEB Final 4d_final 01.12.2016_FINAL(1)

Four page FWS Key to NLEB Regulations for Non-Federal Regulations:

Key NLEB Final 4d Rule_FINAL 12Jan2016

Seven page FWS Key to NLEB Regulations for Federal Projects:

Key Fed Projects NLEB Final 4d Rule_FINAL 12Jan2016

 

 

 

 

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