Feds list NLEB as ‘threatened’ with 4(d) exemption

Barry column sig webOn April 2, the U.S. Fish and Wildlife Service (USFWS) announced that it has determined the Northern Long-eared Bat (NLEB) should be listed as a threatened species wherever it is found in the United States, effective May 4, 2015.  The Service acknowledges that the sole reason for the catastrophic decline of NLEB and other bats which hibernate in caves and abandoned mines is an introduced fungus known as White-nose Syndrome (WNS).  In Maine, there are only three known hibernacula, two of which held more than 100 bats each prior to the discovery of WNS. In 2013, only a single NLEB was found in all three locations.

Northern long-eared bat
Northern long-eared bat

Simultaneously with the listing, the Service issued an interim 4(d) exemption for a few land use activities that could result in the death of individual bats or destruction of their habitat.  The listing is open for further comments until July 1.  In areas currently known to be affected by WNS, including Maine, the interim 4(d) exempts “take” of NLEB “attributable to forest management practices, maintenance and limited expansion of transportation and utility rights-of-way, prairie habitat management, and limited tree removal projects,” provided these activities protect known maternity roosts and hibernacula.

In its listing the Service states, “Unlike forest conversion, forest management is not usually expected to result in a permanent loss of suitable roosting or foraging habitat for northern long-eared bats.  On the contrary, forest management is expected to maintain a forest over the long term for the species.  However, localized long-term reductions in suitable roosting and/or foraging habitat can occur from various forest practices (e.g. clearcuts).”  The concern for reducing all unnecessary “take” of bats is based on the limited reproductive potential of a species that only has one young per year.  These are not rodents with wings with the same reproductive capacity as rodents and if you think about it, humans can reproduce faster than bats!

The fine details within the language of the 4(d) exemption focus on some harvesting restrictions in the vicinity of known maternity trees and hibernacula and have caused some in the forest products industry to predict dire consequences for timber harvesting as a result of the listing, even in spite of the exemption.  (USFWS FAQ on 4(d) exemption.)

However, let’s remember our experience with Canada lynx which has been listed as threatened since 2000.  If your activities do not require a federal permit or are not funded with federal dollars, there is no federal nexus.  While federal paperwork is not a pleasant thought, even if there is a federal nexus, it does not automatically prohibit a project, it just states that the project must be reviewed by the Service before it can go forward or a permit can be issued.  With only three known hibernacula in Maine, the affected landowners are probably already aware if their land is near the location and possibly impacted by the ruling.  NLEB maternity trees are not permanent locations, even within the same breeding season, and there is no inventory of past, present or future locations.  Locating maternity trees would be extremely difficult and without a federal nexus, the Service has said that it cannot force landowners to survey for the presence of maternity trees.

The bottom line is that federal listing of NLEB in combination with the 4(d) exemption should not impact timber production in Maine.

At the state level, the Maine Department of Inland Fisheries and Wildlife has proposed listing three native bat species, northern long-eared, little brown and small-footed bats, as either threatened or endangered, but without the same level of protection for forestland owners included in the federal law. In light of this issue, representatives of the Council met with Commissioner Woodcock and his staff to discuss our concerns.

The Council also submitted LD 640, A  Resolve to  Establish a Working Group To Review the Incidental Take Permitting Process under the Endangered Species Laws.  The purpose of this resolve was to examine, with the DIFW, ways to establish a mechanism similar to the 4(d) exemption in federal rule for state listed species.  We agreed to have the Chairs of the IF&W committee direct DIFW to work with Audubon, MFPC and SWOAM to work on a draft rule to be presented back to the IF&W committee next session.  Our original resolve will be held over until next session in case parties cannot reach agreement in a less formal process.

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