Changes to Federal Threatened and Endangered Species Rules May Affect Developers and Dischargers
On January 14, 2016, the United States Fish and Wildlife Service (FWS) published a rule pursuant to Section 4(d) of the Endangered Species Act (ESA) that provides significant protections to the Northern Long-Eared Bat (81 Fed Reg. 1900), a species of bat the FWS had previously listed as “threatened” in April 2015. The rule imposes restrictions on the nature and types of activities that may occur in locations where White Nose Syndrome (WNS) – a fungal disease that affects hibernating bats and has resulted in widespread impact to Northern Long-Eared Bat populations in North America – has been identified. The area where WNS has been found includes most of the Eastern United States, including all of Pennsylvania, New Jersey, and Delaware. In these areas, “incidental take” of Northern Long-Eared Bats – that is harm, harassment or mortality to the species that may occur incidental to an otherwise lawful activity – is prohibited within a known hibernation site of the threatened bats. Perhaps more significantly, the rule also prohibits incidental take associated with all tree clearing activities within one quarter-mile of a known hibernation site, and from tree clearing activities that would remove or destroy known “occupied maternity roost trees” – trees to which female or juvenile bats have been linked – and trees within 150 feet of known occupied maternity roost trees between June 1 and July 31 of each year. Given these protections, any project in Pennsylvania, New Jersey, and Delaware that would require tree removal or disturbance may be impacted by this rulemaking.
In May of this year, the National Marine Fisheries Service (NMFS) is expected to publish a proposed rule identifying critical habitat for Atlantic Sturgeon, an anadromous fish species that NMFS listed as endangered in 2012. Populations of Atlantic Sturgeon have been linked to the Delaware River, and NMFS is expected to include sections of the Delaware in its critical habitat rule. Individuals who conduct activity in the Delaware should follow the rulemaking and consider submitting comments on the proposal to NMFS.