Maine impact of final NLEB rule likely to be minimal

By Neil A. Ward Vice President, Public Affairs,  Forest Resources Association

On January 14, the U.S. Fish & Wildlife Service published its much-awaited Final 4(d) Rule, outlining allowable “incidental takes” of the threatened Northern Long-Eared Bat, superseding the Interim Final 4(d) Rule (IFR) published last summer.  The Final 4(d) Rule will go into effect on February 16, 2016.  Please note FWS’s on-line information resource.

NLongEaredBat_Wiki“Restrictions on wind-energy projects due to NLEB have been relaxed, at least by the feds, and with only 3-4 known hibernacula in the state and virtually no maternity trees identified, the impact on forestry should be minimal,” said Barry Burgason of Huber, chair of MFPC’s Wildlife Committee.

Generally, the Final 4(d) Rule appears to lighten the regulatory burden on forestry activities, and on other non-forestry activities involving tree removal, compared to the more burdensome terms of the IFR, although significant and potentially troubling restrictions remain.

(1)  Tree removal activities within a quarter-mile radius of any known hibernaculum (that is, hibernation site, usually a cave or mine), at any time of year, still create liability for any incidental take of the bat.  The Final Rule uses the term “known hibernaculum,” instead of the “known, occupied hiberaculum” phrase of the IFR.  FWS indicates that this phrasing is intended to bring hibernacula which have been used in the past but are not currently in use within the 4(d) rule’s restrictions, since FWS  presumes they may be used in the future.

(2)  The radius of permissible tree removal activities near “known, occupied maternity roost trees” during the June 1-July 31 pup season has been reduced to 150 feet.  This is a considerable improvement over the IFR, which imposed a quarter-mile radius restriction.

(3)  Much criticized terms establishing liability for incidental takes associated with conversion of natural forest to plantations, or to other uses, have been omitted from the Final 4(d) Rule.

(4)  The Final Rule reiterates that “project proponents” may apply for special permits for activities that may result in incidental takes but which the 4(d) rule does not cover—presumably potentially including projects close to hibernacula.

FWS acknowledges the difficulty that “project proponents” may experience in locating hibernacula or occupied maternity roost trees.  FWS’s Q&A document refers land managers to “the nearest Ecological Services Field Office” (see and to state Natural Heritage Inventory databases to determine locations.

Otherwise, although the Q&A makes clear that “due diligence” in locating such sites is expected, “if information is not available, we recognize that a project proponent who has made reasonable efforts to determine whether there are known maternity roost trees or hibernacula on their property or project area is in the position of ‘not knowing’ if no data has been provided.  If that is the case, document your attempt to find the information and move forward with your project.”  FWS encourages private landowners to survey their land for hibernacula and occupied maternity roost trees but does not require them to do so.