Northern Long-Eared Bat Listed as Endangered Species in January 2023
On November 30, 2022, the U.S. Fish and Wildlife Service (USFWS) issued a final rule designating the Northern Long-Eared Bat (Myotis septentrionalis) as an endangered species under the Endangered Species Act of 1973 (ESA). The Northern Long-Eared bat has habitat in 37 U.S. states, spanning nearly the entire eastern seaboard through the Midwest – including significant habitat in all of Pennsylvania, New Jersey, New York, and Delaware. The species spends most of the winter season hibernating within caves, mines, and sinkholes, and lives the remainder of the year in forested habitats. The bat was previously listed as a “threatened” species in April 2015, with corresponding regulations and restrictions on activities occurring in the bat’s habitat that was adopted through implementing rules in 2016. But now, the Northern Long-Eared bat will receive the highest level of protection under federal law, with the endangered species designation becoming effective on January 30, 2023.
To receive an “endangered species” designation, a plant or animal must be determined to be in danger of extinction throughout all or a significant portion of its habitat based on an evaluation of five factors. The Northern Long-Eared Bat is listed as an endangered species primarily due to a specific disease impacting the bat, known as “white nose syndrome,” which the USFWS has confirmed has spread throughout the bat’s territory, particularly concentrated in the Appalachian Mountains region. The USFWS has also determined that the bat is negatively affected by wind-turbines used for energy production (from direct collisions with turbine blades), climate change, and habitat loss. Reclassifying the bat from “threatened” to the heightened “endangered” status will impact various projects, including logging, wind power, and other development projects, which will lose some flexibility that was granted by the prior designation.
The ESA and its implementing regulations establish a series of prohibitions on activities effecting endangered species, and generally deem it illegal to “take” any endangered species. The definition of “take” includes any action to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to do any of those activities. If an activity will result in an “incidental take” in connection with otherwise lawful activities, a party must apply for a permit from the USFWS to cover that potential impact to the endangered species. The most common impact from a project on the bat’s territory relates to tree clearing for development activities, which can range from a local commercial or residential development, a utility infrastructure project, or a new roadway that traverses through forested lands.
When the Northern Long-Eared Bat was previously listed as only “threatened” (vs. endangered), Section 4(d) of the prior rule established certain area and timing restrictions for tree clearing, and compliance with those provisions would allow a project to proceed without obtaining a permit from the USFWS. The primary measure to avoid impacts under the prior Section 4(d) rule was a seasonal prohibition on tree clearing during the warm weather months (April through November), when the bats utilize the trees for their primary habitat. But now with the listing of the bat as an endangered species, the previous Section 4(d) rule will no longer apply, such that projects that will involve a potential impact to habitat – including most tree clearing activities – will now be regulated and potentially subject to permitting.
The final rule listing the Long-Eared Bat as an endangered species includes a non-exclusive list of activities that if carried out in accordance with existing regulations and permit requirements, are determined to be “unlikely” to result in a “take” or other violation of the ESA. The rule also conversely lists those activities that may potentially result in a violation of the ESA. Activities deemed “unlikely” to result in a violation or “take” include, for example, “minimal” tree and vegetation removal any time of year outside of the bat’s habitat and more than five miles from hibernacula, “insignificant” amounts of suitable forested habitat removal if it occurs during the bat’s hibernation period, tree removal in urban areas, activities that may disturb hibernation areas if the activity occurs during non-hibernation season, removal of human structures so long as the structure does not provide roosting habitat, and wind turbine operations at facilities that follow a USFWS-approved avoidance strategy.
The USFWS is slated to develop and publish additional guidance on the impact of the new classification of the Northern Long-Eared Bat as an endangered species in 2023, which will further delineate the scope and effect of the designation for development projects that occur in the bat’s habitat.