USFWS Issues Expansive Final 4(d) Rule for Northern Long-Eared Bat
U.S. Fish & Wildlife Service (USFWS) issued its final rule under section 4(d) of the Endangered Species Act regarding conservation measures for the northern long-eared bat (the “Final 4(d) Rule”).
The Final 4(d) Rule replaces the interim 4(d) rule issued in April, 2015. The Final 4(d) Rule prohibits purposeful take of northern long-eared bats throughout the species’ range except in limited circumstances such as removal from human structures and defense of human life. White-nose syndrome (WNS) is the principal cause of the species' decline and was the reason for its listing, and therefore the Final 4(d) Rule does not prohibit incidental takes in areas not yet affected by WNS. In areas affected by WNS, including Maine, take of the species in their hibernacula (caves, mines and other areas where they hibernate in the winter) is prohibited unless authorized by permit. Outside of known hibernacula, incidental takes are not prohibited except in connection with tree removal. An incidental take associated with tree removal is prohibited only if it (i) occurs within 0.25 miles of a known hibernacula, or (ii) cuts or destroys any trees within a 150-foot radius of known occupied maternity roost trees during the pup season (June 1 through July 31).
The Final 4(d) Rule recognizes that land management and development activities that have been on-going for decades are not significantly impacting the northern long-eared bat and strikes a practical balance between protecting the species and allowing reasonable development activities that are not a primary cause of mortality to continue. The rule focuses on preventing harm during the most sensitive life stages at known occupied maternity roost trees and hibernacula within areas affected by WNS.
In its Final 4(d) Rule USFWS specifically studied impacts to the species from wind energy facilities and determined that mortality from operating projects was rare, even when northern long-eared bats were common on the landscape surrounding the facility. The agency concluded that fatalities caused by wind energy facilities would not meaningfully change the species’ status, and therefore did not establish regulatory criteria for wind energy facilities. The agency noted that the industry has implemented voluntary operating protocols that are expected to further reduce mortality by as much as 30% and recommended that wind-energy facilities adopt those standards.