USFWS Issues Final Rule

On January 14, 2016, the U.S. Fish and Wildlife Service published a final 4(d) rule for the protection of the northern long-eared bat (NLEB), a threatened species under the Endangered Species Act. This rule provides guidance on human activities in northern long-eared bat habitat. The NLEB was listed as threatened in April 2015 due to the impacts of white-nose syndrome (WNS), which has killed millions of cave-hibernating bats in the East, Midwest and Southeast. 

The final 4(d) rule significantly reduces the scope of prohibitions that were proposed in the interim 4(d) rule. Importantly, incidental take from most activities away from known populations is allowed, including incidental take caused by wind turbines. Also, take caused by tree removal that is not within ¼ mile of known hibernacula or within 150 feet of a known occupied maternity roost tree is allowed. This includes tree removal for any reason, such as clearing for rights-of-way, for energy projects, or for housing developments.

The approach of the final rule reflects the significant role WNS plays in the threat to this species, as it is the sole cause of the bat’s threatened status. As such, the protections are focused on specific periods in the bat’s life cycle and areas near known hibernacula or known occupied maternity roost trees within the area currently affected by WNS and areas within 150 miles of hibernacula where the fungus has been detected, i.e. the WNS Zone.

Under the final 4(d) rule, all purposeful take is prohibited across the entire range. You can’t intentionally kill a NLEB except under very specific circumstances (i.e. removal from human structures, removal of hazardous trees, etc.). Regarding incidental take: 

• In the WNS Zone, all incidental take is prohibited within hibernacula as is incidental take cause by tree clearing within ¼-mile of known hibernacula.   
• No tree clearing is allowed in a 150-foot radius of a known occupied maternity roost tree during the pup season (June 1 through July 31).
• Outside of the WNS Zone, incidental take is allowed.

Contact us for more information on this new rule and how it impacts your renewable energy project.