In November 2015, the northern long-eared bat was listed as a threatened species due to the devastating impact of white-nose syndrome. White-nose syndrome is a disease caused by a fungus that affects hibernating bats and is decimating the bat population. As a result of continued population decline, the U.S. Fish and Wildlife Service (“USFWS”) announced a final rule to reclassify the northern long-eared bat as endangered under the Endangered Species Act (“ESA”). The rule will take effect January 30, 2023.
According to the USFWS press release, “the northern long-eared bat is found in 37 states in the eastern and north central United States, the District of Columbia, and all Canadian provinces from the Atlantic Coast west to the southern Northwest Territories and eastern British Columbia. These bats mostly spend the winter hibernating in caves and abandoned mines. During summer, northern long-eared bats roost alone or in small colonies underneath bark or in cavities or crevices of both live and dead trees. They emerge at dusk to fly primarily through the understory of forested areas, feeding on insects.” The press release indicates that bats contribute at least $3 billion annually to the US agricultural economy through pest control and pollination.
The reclassification of the northern long-eared bat as an endangered species mandates certain blanket protections under section 9 of the ESA and eliminates the application of species-specific, tailored protections afforded by the 4(d) rule. The practical impact of the endangered species designation for development projects is that projects with the potential to impact northern long-eared bat habitat must undergo a stringent ESA permitting process, and develop and implement a Habitat Conservation Plan (“HCP”).
As part of the permitting process, the USFWS prepares a biological opinion under section 7 of the ESA and conducts National Historical Preservation Act and NEPA analysis; it reviews the HCP for adequacy, prepares a findings document and opens the public comment periods for NEPA and HCP documentation.
Because the population decline is disease-related and not due to habitat loss, certain development factors, such as a projects location (more than 5 miles from a known hibernation site) and/or projects with clearing and tree removal performed during the bat’s hibernation period (roughly November through March), may be permitted. These same measures are referenced in USFWS guidance and noted as likely protective according to the Federal Register; however, the USFWS cautions that such factors, among others, are guidance-based, and not compliance-based exceptions to the ESA permitting process.
Given the range of the northern long-eared bat and its presence in New York and on Long Island, developers should factor potential impacts where tree removal is required as part of a development plan.