USFWS Proposes Re-Listing of Northern Long-Eared Bat

On March 23, 2022, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule to relist the northern long-eared bat (Myotis septentrionalis) from threatened to endangered. A relisting has been expected for some time following a court ruling in 2020. Comment on the proposed rule ends on May 23, 2022 and we expect a final rule to be published later this year.

The proposed rule, if finalized, will:

• Relist the northern long-eared bat from threatened to endangered, indicating that the species is more at risk than initially thought.
• Remove the 4(d) rule that provided leeway regarding activities that may affect the species.
• Prohibit the incidental take, or removal or destruction of habitat (among other things) outside of Endangered Species Act Section 7 or Section 10 authorization. This was not necessarily the case under the previous 4(d) rule.

The primary habitat during the spring, summer, and fall months for the northern long-eared bat consists of trees and forested areas. Any project that proposes to remove trees may be affected by this proposed rule.

I Have a Project That Proposes Tree Removal. Now What?

If you have a project within the species’ range that contains suitable habitat and you intend to clear that habitat for your project, what are your options?

Details on implementation will be forthcoming, but it is apparent that you will need USFWS authorization prior to doing so once the final rule is in effect. Authorization under Section 7 of the Endangered Species Act typically takes place through federal actions such as a wetland permit.

While not spelled out in the proposed rule, we anticipate that conservation measures implemented by the USFWS may include acoustic and mist-net surveys to determine presence/absence of the species and time of year restrictions on tree clearing – currently prohibited June 1 to July 31, and may expand to mirror the Indiana bat, as it did prior to the final 4(d) rule (April 1 to November 14). Surveys that result in “absence” findings (i.e., the species is not present) may lift the time of year restrictions. Currently, the acoustic bat survey window is May 15 to August 15. Per the Virginia Department of Wildlife Resources, a bat survey with absence findings is valid for a period of three years.

The staff at Wetland Studies and Solutions, Inc. have extensive experience with acoustic surveys and the northern long-eared bat. If you have any questions regarding this proposed listing or the implications for your project, please reach out to the contacts below.