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Sidley Environmental and Energy Brief US Fish and Wildlife proposes to list the northern long-eared bat as an endangered species

On Tuesday, the US Fish and Wildlife Service (service) proposed to reclassify the northern long-eared bat (Myotis septentrionalis), a species of bat found in 38 states or US territories, as an endangered species under the Endangered Species Act (Act). The Service’s proposed reclassification is a direct response to a request from a federal judge court order requiring the Service to review its earlier listing decision and take into account the impact of White Nose Syndrome (WNS), a disease-causing fungal infection that ultimately results in mortality. The increased listing of the species is very likely to affect current and future development in a large geographic region, given the species’ range outside of WNS-affected areas.

Currently, the northern long-eared bat is listed only as a threatened species. While this classification requires the Service to impose species-specific conservation measures in accordance with Section 4(d) of the Act, rule 4(d), species rule 4(d) provides various exemptions from the Prohibition of capture of the Law (various forms of harming or killing) of the species. These exemptions include, for example, all forms of incidental but unintentional taking resulting from lawful activities in areas not affected by WNS. Legal activities range from logging to clearing and infrastructure development.

If the proposed reclassification is finalized, the Act would explicitly dictate protections for the northern long-eared bat and remove the species-specific rule 4(d). Without rule 4(d), development of projects in these areas where the northern long-eared bat is present or suspected to be present will require more direct consultation, either formal or informal, with the Service. In addition to several new requirements imposed on various stakeholders, it would also likely extend project timelines to allow consultation with the Service and other federal and state agencies, as appropriate, to study the proposed project areas to confirm the presence of the species. and project review. Species effects if present. And due to the expansive range of the species, developers and project managers must be wary of the Service’s own ability to efficiently participate in the consultation process.

Unfortunately, the proposed reclassification is accompanied by little guidance to developers or the broader regulated community regarding the path forward for virtually any activity that occurs within the habitat of this species. Rather, the Service simply states that it can issue permissions that authorize acts that would otherwise be prohibited under certain circumstances, but which it cannot currently identify. none activity that would not be considered as a result of a violation of the Act due to the wide range of the species. The Service has identified, at a minimum, the Minnesota Wisconsin Ecological Services Field Office as a point of contact for those with questions about whether their specific actions may fall within the scope of the Act.

The Service has solicited a number of comments from interested parties on the proposed reclassification regarding both the validity of the proposed list and possible future direction. Although the Service has not indicated any proposed changes to current critical habitat designations, the Service’s request for comment includes habitat and range information for the species. Comments requested include the following:

  • the biology, range, and population trends of the species
  • biological, trade, or other relevant data on any threats (or lack thereof) to this species and existing regulations that may be addressing those threats
  • additional information on the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species

Comments must be filed with the Service by Monday, May 23, 2022, to be considered as part of any final rule.

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