In a long-anticipated move, the U.S. Fish and Wildlife Service (“Service”)has published a final listing decision and interim rule on the northern long-eared bat. The Service listed the northern long-eared bat as threatened under the Endangered Species Act (“ESA”), and, rather than publishing a final 4(d) rule, opted to publish an interim 4(d) rule and open a 90-day comment period to gather additional information and potentially refine the interim rule.
The effect of the interim 4(d) rule depends on the location of a particular activity. For areas of the country not affected by white-nose syndrome, the interim 4(d) rule exempts incidental take from all activities. For areas of the country affected by white-nose syndrome, the interim 4(d) rule exempts from ESA take prohibitions the following activities: (1) forest management practices, (2) maintenance and limited expansion of transportation and utility rights-of-way, (3) prairie habitat management, and (4 )limited tree removal projects, provided these activities protect known maternity roosts and hibernacula. These activities are exempted provided: (1) the activity occurs more than 0.25 mile (0.4 km) from a known, occupied hibernacula, (2) the activity avoids cutting or destroying known, occupied roost trees during the pup season (June 1–July 31), and (3) the activity avoids clearcuts (and similar harvest methods, e.g. seed tree, shelterwood and coppice) within 0.25 mile (0.4 km) of known, occupied roost trees during the pup season (June 1–July 31).
Importantly, due to the significant number of comments received in response to the 4(d) rule proposed on January 15, 2015, the Service has opened a 90-day comment and will accept further input on the interim rule through July 1, 2015. The Service has specifically asked for comments on “whether it may be appropriate to except incidental take as a result of other categories of activities beyond those covered in the proposed rule and, if so, under what conditions and with what conservation measures.” More information on the interim rule and opportunity to comment is available here.