Vol. 24, No. 4 February 17, 2016

Final 4(d) Rule for Northern Long-Eared Bat Published

On January 14, 2016, the U.S. Fish and Wildlife Service (FWS) released its final 4(d) rule regarding the northern long-eared bat (Myotis septentrionalis). The final rule has some significant differences from the interim 4(d) rule that was issued with the listing of the bat last April. The final rule went into effect on February 16, 2016.

What Changed With the Final 4(d) Rule?
The interim 4(d) rule contained a very limited set of circumstances where incidental take (killing or harming of the bats incidental to, and not the purpose of, an otherwise lawful activity) was allowed. The final 4(d) rule allows incidental take outside of the White Nose Syndrome areas (see this Field Notes article for background and a map of the WNS areas) in all circumstances. Within the WNS area, take is prohibited in all hibernacula (i.e., areas where the bat hibernates during the winter such as caves and mines).

The final 4(d) rule also clarifies incidental take within the WNS area where tree removal activities will occur. Incidental take of northern long-eared bats outside of hibernacula resulting from activities other than tree removal is not prohibited. Incidental take resulting from tree removal is prohibited if it: 1) occurs within a 0.25 mile radius of known northern long-eared bat hibernacula; or 2) cuts or destroys known occupied maternity roost trees, or any other trees within a 150-foot radius from the known maternity roost tree during the pup season (June 1 through July 31). The FWS deemed these two conditions as “conservation measures.” Incidental take of northern long-eared bats as a result of hazard tree removal for the protection of human life and property is also allowed. The general provisions are summarized below; the FWS released two separate keys to the final 4(d) rule: one for federal actions, and one for non-federal activities.

Incidental Take Provisions Summarized

Allowed Not Allowed

Tree clearing activities greater than 0.25 miles from known hibernacula (e.g., caves) at any time of year.

Tree clearing activities within 0.25 miles of known hibernacula (e.g., caves).

Tree clearing activities greater than 150 feet from known occupied maternity roost trees at any time of year.

Tree clearing activities within 150 feet of known occupied maternity roost trees from June 1 to July 31. Allowed outside of these dates, with coordination from FWS.

Hazard tree removal at any time of year for the protection of human life and property.

 
What does this mean for me?
For the typical development project – where tree clearing is a common activity – there is now much greater freedom for incidental take, with either no time of year restriction (previously April 15 to September 15), or a greatly reduced time of year restriction (June 1 through July 31). Let’s take a closer look at how this actually plays out in Virginia and Maryland.

Virginia – the times, they are a changin’
And that’s good news. Prior to the final 4(d) rule, every project in Virginia that requires tree clearing had to adhere to the time of year restriction or conduct a survey (either acoustic or mist-net) to document the absence of threatened or endangered bats on the project site. The final 4(d) rule lifts this burden for most projects. FWS has updated their Information, Planning and Conservation (IPaC) service to allow for project reviews that follow the conservation measures noted in the 4(d) rule. Similarly, the Virginia Department of Game and Inland Fisheries (DGIF) has updated the information provided to users that have a subscription to allow for database searches that follow the conservation measures noted in the 4(d) rule. Previously, it was erroneously reported that the Virginia Department of Conservation and Recreation (DCR) would be the clearinghouse for this information instead of DGIF. An interim list of counties where DGIF has recorded hibernacula or roost trees of northern long eared bat was released by FWS on the 16th. This list includes: Bath, Bland, Botetourt, Chesapeake, Craig, Giles, Montgomery, Pulaski, Tazewell, Wise, and Wythe counties.

If your project is currently affected by a time of year restriction, we encourage you to have WSSI staff re-coordinate your project to determine if the conservation measures can be met and the time of year restriction lifted or reduced for your project. We expect the Virginia Department of Environmental Quality (DEQ) to honor re-coordinated findings in the wetland permits they have issued.

For any projects that continue to have a time of year restriction imposed (even a reduced time of year restriction), project managers can still have a survey conducted to verify if their site is occupied by the northern long-eared bat, and potentially lift the time of year restriction based on the findings of the survey. Note that surveys can only occur between May 15 and August 15. Even with the final 4(d) rule in effect, Virginia has proposed two additional species of bats that may impose a time of year restriction on tree clearing. See our Field Notes Article in this edition for more information.

Action Summary – Virginia

Existing Projects with Time of Year Restriction

Re-coordinate project if both conservation measures for incidental take can be met. No need to re-coordinate if you previously conducted a survey that lifted the time of year restriction for your project.

New Projects

Determine if both conservation measures for incidental take can be met. Submit certification to FWS per usual protocols.
Maryland – a rolling stone gathers no moss
At this point, the final 4(d) rule does not appear to change much in Maryland, and projects can keep rolling along as they did in 2015. Per the Chesapeake Bay field office of the FWS, the only known hibernacula occur in Allegany, Garrett, and Washington Counties. Thus, if your project occurs outside of these counties, you can continue to clear trees as you normally would, unless new information becomes available. For projects within these counties, you should continue coordinating with the Chesapeake Bay field office to avoid incidental take of the northern long-eared bat.

Action Summary - Maryland

Projects in Allegany, Garrett, and Washington Counties

Coordinate with FWS to determine restrictions or need for surveys.

All other Counties – new projects

No coordination necessary.

All other Counties – existing projects

Re-submit IPaC report, if northern long-eared bat was previously listed in the report.
If you wish to further discuss how this may affect your project or to have WSSI’s trained and certified staff conduct a survey for this species, please contact Ben Rosner, Mark Headly, or Mike Klebasko.