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The Threat of Bats in Development Projects

By Bob Fitz, PLA, ASLA, Principal, Koontz-Bryant, P.C.

Are you familiar with the lovable looking critter pictured to the right? If you’re in the land development business then you may want to become more acquainted withthe Northern Long-Eared Bat (NLEB) also known as Myotis Septentrionalis.

The US Fish & Wildlife Service (USFWS) has officially listed the northern long-eared bat as a threatened species under the Endangered Species Act (ESA). Under the Act, a threatened species is likely to become endangered in the foreseeable future, while an endangered species is currently in danger of becoming extinct. This action initiates a host of regulatory requirements intended to protect the bats by preventing further declines of habitat. These tiny bats are in trouble because of white-nose syndrome, a rapidly spreading disease that has taken a significant toll on the NLEB population. NLEB numbers have declined by up to 99 percent in the Northeast. Although there is uncertainty about the rate that white-nose syndrome will spread throughout the species’ range, it is expected to spread throughout the United States in the foreseeable future.

It is the USFWS’s position that certain activities such as commercial development, highway construction, surface mining, and wind facility construction permanently remove habitat and are prevalent in many areas of this bat’s range. Forest management benefits northern long-eared bats by keeping areas forested rather than converted to other uses. But, depending on type and timing, forest management activities can cause mortality and temporarily remove or degrade roosting and foraging summer breeding habitat.

How does all of this affect new development or construction?

There could be substantial impacts to the cost and schedule of any project that affects NLEB habitat (trees, caves, etc.). The NLEB’s range covers parts of Canada, most of the northeastern U.S. down into North Carolina and extends to Oklahoma, Montana, Wyoming and the Dakotas.

During the summer when breeding begins, NLEBs roost singly or in colonies underneath bark, in cavities or in crevices of live trees and dead trees. Males and non-reproductive females may also roost in cooler places, like caves and mines. The bats seem to be flexible in selecting roosts, choosing roost trees based on suitability to retain bark or provide cavities or crevices. The species is known to roost alone or in small groups in trees over 3 inches in diameter which includes practically any wooded area within this large habitat range. They are also known to use many different tree species, and may switch roosts every few days. This means that for a given project in the eastern half of the US, it’s possible that NLEBs could be somewhere in the area, and the requirements of the new ESA listing will apply.

Because the bat covers such a wide range, and because of the concerns expressed by industry groups, USFWS published an interim rule under Section 4(d) of the Endangered Species Act that exempts certain activities from the full scope of the regulation. (Industries such as mining and timbering say new regulations will raise costs for businesses in more than two dozen states without actually addressing the disease that is decimating the flying mammals.) The intent of the rule is to provide flexibility for landowners, land managers, government agencies, and others working in NLEB range and focus regulatory attention on measures that best provide for the conservation of the species. As a result, certain activities – from expanding existing transportation corridors to removing hazardous trees – have been exempted from complying with the permitting requirements of the NLEB’s threatened species listing. However, some level of consultation is likely to be required with the USFWS before development begins.

What does this all mean?

Unless a project is clearly outside of the range of NLEB bat habitat and the white-nose syndrome buffer area, developers will still need to prove the bats are not in the proposed project area to be cleared. Depending on the site and the project specifics, developers may need to conduct presence/absence surveys via traditional mist-netting or acoustic methods to determine if any bats could be on site. If the NLEB is found, minimal tree clearing may be allowed under the 4(d) rule, but only if the following applies:

  • Activities do not occur within a quarter-mile of the known hibernation areas
  • The clearing does not destroy roost trees during identified Time of Year Restrictions (TOYR)
  • Activities do not involve clear-cutting

Many types of projects could involve these criteria, making the chances of exemption slim and adding another one to two years or more of permitting and compliance processes before a project can begin.

If “take” (unintentional harm to the bats as a result of otherwise lawful activities) cannot be avoided, developers may need to acquire a permit under Section 7 or Section 10 of the ESA. These processes should begin as soon as possible to keep projects from being delayed further.

Depending on the type of project and size of impacts, a Joint Permit Application for the project would be submitted. As part of the processing of the application, DEQ or the US Army Corps Of Engineers (ACOE) would initiate consultation with the USFWS if necessary. DEQ issues the State Program General Permit for the ACOE.

What will happen if a project proceeds without having an incidental take permit?

Section 9 of the Endangered Species Act prohibits taking, possession, sale, and transport of listed species. “Taking” is defined as to "harass, harm, pursue, hunt, shoot, wound, kill, capture, or collect." If you have a listed species on your property and you conduct a project that would "take" a listed species without first obtaining an incidental “take permit,” you are committing a federal offense in direct violation of Section 9 of the Endangered Species Act.

To avoid penalties and Time Of Year Restrictions with regulatory agencies the permittee shall comply with the following: No tree clearing shall occur from April 15 – September 15 of any year, in order to protect the NLEB. The permittee may elect to perform a survey, in accordance with the survey guidelines here, for the NLEB within the project boundary and coordinate results with the USFWS. Should the survey document the absence of the species within the project boundary, the TOYR is removed.

Developers should assess their projects NOW to determine if and how the northern long-eared bat listing may affect their budget and timeline. Our team at Koontz-Bryant can help you determine if your project is impacted by this listing.

Koontz-Bryant, P.C. has worked with local developers in the area to make sure their sites comply with state regulations with minimum impact to developable areas. Should you need assistance with any of your development projects, or have any questions, contact Bob Fitz, PLA at 804-200-1913 or by email.

(The US Fish & Wildlife Service’s northern long-earned bat website includes detailed information about the species, the listing, and the 4(d) rule.)