On January 28, 2020, a federal judge ruled in favor of a lawsuit, Center for Biological Diversity v. Everson, that the U.S. Fish and Wildlife Service’s (USFWS) 2016 threatened listing of the northern long-eared bat (Myotis septentrionalis; NLEB) did not adequately protect the species under the Endangered Species Act (ESA). Citing the best available science, the judge agreed with the challengers that the NLEB instead should be listed as endangered. The USFWS was given until November 2022 to either provide the best available science used to determine whether NLEB should remain threatened (with a 4(d) rule), delist the species, or uplist it to endangered.
Today (March 22, 2022), the USFWS published in the Federal Register their determination, which is to uplist the NLEB from threatened to endangered.
Why Was the NLEB Listed as Threatened Rather Than Endangered in 2016?
At the time of the 2016 decision, the USFWS had determined that white-nose syndrome (WNS) was such an overwhelming threat to the NLEB that an endangered listing’s blanket prohibitions on all forms of take across the expansive 37-state NLEB home range would not slow the spread and impact of WNS, nor would it benefit the NLEB at the population level. The USFWS decided to focus on finding a solution to WNS. By placing a 4(d) rule on the NLEB in 2016, the USFWS focused on protecting these bats when and where they are most vulnerable: during June and July (which is the pup-rearing time frame) at known maternity roost trees and known hibernation sites. More information about WNS can be found here.
Why Is the NLEB Being Proposed Listed as Endangered Rather Than Threatened Now?
The USFWS has determined that other stressors are affecting the NLEB besides WNS. Other factors Influencing NLEB viability (though to a far lesser extent than the influence of WNS) include wind energy mortality, effects from climate change, and habitat loss. The combination of these stressors led the USFWS to determine the NLEB should be uplisted to endangered, which means they feel it is in danger of extinction throughout all of its home range.
Based on the best available science, the USFWS has determined the following uncomprehensive list of activities may potentially result in ‘take’ as defined in section 9 of the ESA if they are unauthorized by applicable laws:
- Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species.
- Incidental take of the species without authorization in section 7 or section 10 of ESA.
- Disturbance or destruction of known hibernacula due to commercial or recreational activities during hibernation.
- Unauthorized destruction or modification of suitable forested habitat (including unauthorized grading, leveling, burning, herbicide spraying, or other destruction or modification of habitat) in ways that kill or injure individuals by significantly impairing essential breeding, foraging, sheltering, commuting, or other essential life functions.
- Unauthorized removal or destruction of trees and other natural and manmade structures being used as roosts by the northern long-eared bat that results in take of the species.
- Unauthorized release of biological control agents that attack any life stage of this taxon.
- Unauthorized removal or exclusion from buildings or artificial structures being used as roost sites by the species, resulting in take of the species.
- Unauthorized building and operation of wind energy facilities within areas used by the species, which results in take of the species.
- Unauthorized discharge of chemicals, fill, or other materials into sinkholes, which may lead to contamination of known northern long-eared bat hibernacula.
What Happens Now?
The NLEB uplisting reveals the USFWS’ decision based on new or updated best available science. No time frame or deadline was given for finalizing the decision outside of November 2022; but, separate guidance for summer surveying for the presence/absence of NLEB is to be released within a week of their determination announcement, along with the release of 2022 guidance for summer surveying for Indiana bats.
Now that NLEB is proposed listed as endangered, the 4(d) rule will be removed (by default) and full protective measures will be enforced across its entire 37-state range. For project developers, this likely means a massive increase of potential and occupied NLEB habitat buffers on the landscape, winter tree clearing restrictions in all or portions of 31 states (and DC) where endangered bat species were not previously present, and a likely increase in NLEB presence/absence surveys and conservation efforts due to limiting time frames of forest clearing.
Comments on the proposal may be submitted through May 23, 2022, either electronically, by hard copy mail, or during a virtual public informational meeting on April 7, 2022, from 6:00 p.m. to 7:30 p.m., Central Time, followed by a public hearing from 7:30 p.m. to 8:30 p.m., Central Time. To listen and view the meeting and hearing via Zoom, listen to the meeting and hearing by telephone, or provide oral public comments at the public hearing by Zoom or telephone, you must register here. You may submit comments during the public hearing.
For more background information on the NLEB, including a species profile and range map, visit the USFWS’s webpage at https://www.fws.gov/species/northern-bat-myotis-septentrionalis.
If you have any questions about this news, please contact Ryan Slack (513-237-5051 or firstname.lastname@example.org), J.D. Wilhide (615-887-0086 or email@example.com), or Jackie Rockey (412-249-3140 or firstname.lastname@example.org). CEC will keep you updated regarding the USFWS’s final uplisting decision.
UPDATE: On November 29, 2022, the USFWS announced a final rule to reclassify the NLEB as endangered under the ESA. The rule takes effect on January 30, 2023. Click here to learn more. Also, click here to listen to Ecological Sciences Principal Ryan Slack explain these recent regulatory changes, including what bat surveys are and how and why we conduct them.
UPDATE: On March 31, 2023, the final rule reclassifying the NLEB from threatened to endangered with a section 4(d) rule goes into effect. On March 6, 2023, the USFWS released an interim consultation framework (ICF) for NLEB in order to streamline the Section 7 review process for proposed projects located within the species range. The ICF will be in effect until April 1, 2024 and only applies to project activities occurring within that timeframe. Projects that are uncompleted, within the NLEB range, and previously reviewed by USFWS under Section 7 of the ESA (i.e. the project received federal funding or authorization) will need to use the NLEB Range-wide Determination Key in Information for Planning and Consulting (IPaC) to determine if the proposed project activities are likely to adversely affect the NLEB. If you have any questions about this new consultation process, need guidance on whether your project requires further review, or need assistance with the IPaC review process, please reach out to the above experts.