In order to comply with the Endangered Species Act (ESA), no tree clearing can occur between April 15th and September 15th of any year in Virginia - OR - between April 15th and August 30th of any year in Maryland unless you receive concurrence from the U.S. Fish and Wildlife Service (USFWS) that there are no federally-listed bats on your project site, or that your proposed action is not likely to adversely affect these bats. If you can conduct all tree clearing activities between September 16th and April 14th in Virginia, or between September 1st and April 14th in Maryland, no further coordination regarding federally-listed bats will be required. If you cannot complete your 2016 tree clearing activities before April 15th, or wait to start until after September 15th, you will need to conduct a survey to determine whether or not any listed bats are present. Note that these surveys can only be conducted between May 15th and August 15th. As a result, you may want to consider accelerating your tree clearing schedule to avoid potential construction delays. (Maryland note: Per recent communication with the USFWS Chesapeake Bay Field Office, a final rule is scheduled for December 2015 which is expected to establish a threshold for coordination based on the size of the proposed tree clearing area.)

The Northern Long-Eared Bat (Myotis septentrionalis) (NLEB) was listed as federally-threatened under the ESA in April 2015. This listing is accompanied by a time of year restriction (TOYR) on tree clearing to protect summer roost sites and habitat of the NLEB. In Virginia, the TOYR extends from April 15th to September 15th of any year. In Maryland, the TOYR extends from April 15th to August 30th of any year. In order for tree clearing to be allowed during the time of year restriction, you first need to conduct either a low-intensity acoustic survey, or a high-intensity mist-net survey, either of which must take place between May 15th and August 15th (in Virginia or Maryland). If the survey determines that no listed bats are present, and USFWS concurs, then you will be allowed to clear trees throughout the year. Note that these survey results are valid for three years. However, if the survey determines that the NLEB or other listed bats are present on the site, then you will still be bound by the time of year restriction, or will need to conduct additional surveys

If you have not yet applied for Clean Water Act permits from the U.S. Army Corps of Engineers (COE) or Virginia Department of Environmental Quality (DEQ)/Maryland Department of the Environment (MDE), coordination regarding the NLEB (and all other endangered or threatened species) will occur with USFWS and Virginia Department of Game and Inland Fisheries (DGIF)/Maryland Department of Natural Resources (MDNR) during the review process.

If suitable bat habitat is present, these permits will be issued with a time of year restriction for tree clearing unless you have completed a survey that documents the absence of listed bats. If you have an existing COE or state wetlands permit that does not include the time of year restriction, or your project does not require a COE or state wetlands permit, it is important to note that you are still required to comply with the ESA. Thus if you clear trees between April 15th and September 15th in Virginia, or between April 15th and August 30th in Maryland, and you don’t have concurrence from USFWS that there will be no adverse affect on listed bats, you run the risk that a project opponent may challenge your project on the grounds of a violation of the ESA.

See Field Notes Vol. 23, No. 2 and Field Notes Vol. 23, No. 6 for more information on the NLEB’s life history, ESA listing, and regulatory compliance. Stay tuned for updates regarding the USFWS Chesapeake Bay Field Office’s final rule regarding NLEB coordination in Maryland. Please note: This article only pertains to ESA provisions for the NLEB. There are other species in the VA/MD/DC area with other TOYRs and search windows that could apply to your site (e.g. small whorled pogonias and bald eagles). Please contact Ben Rosner, Mike Klebasko, Dan Lucey, Mark Headly, or Mike Rolband with any questions, or if you would like to arrange for a habitat assessment or survey for the Northern Long-Eared Bat or other endangered/threatened species.

¹Photo credit: http://featuredcreature.com/wp-content/uploads/2012/10/Brown+long-eared2.jpg