Vol. 24, No. 2 January 22, 2016

Final 4(d) Rule for Northern Long-Eared Bat Published - Implications Aren't Yet Clear

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. However, at this point the regulatory agencies are still determining its implications. The final rule goes into effect on February 16, 2016, but it's too early to come to definitive conclusions on its repercussions. Wetland Studies and Solutions, Inc. (WSSI) 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 (COE).

Hibernating northern long-eared bat. Photo courtesy of Al Hicks, New York DEC
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 (WNS) 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 nest 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). Incidental take of northern long-eared bats as a result of hazard tree removal for the protection of human life and property is also not prohibited. The FWS released two separate keys to the final 4(d) rule one for federal activities, and one for non-federal activities.

 Well, I've heard...

Many opinions are circulating, and they are giving the impression that the final 4(d) rule is easily interpreted - except that these opinions run the full spectrum (e.g., no time of year restriction vs. longer time of year restriction). The differences in these opinions and conjectures is proof that we will benefit from regulatory agency guidance on how the rule will be implemented. Without that we cannot accurately assess the impacts on development in this region.

WSSI will continue to stay in touch with all of the regulatory agencies so we can accurately determine the impact of this bat rule and we will keep you informed. If you wish to further discuss the bat situation and how it relates to your project, please contact Ben Rosner, Mark Headly, or Mike Klebasko.