In April 2015, the U.S. Fish and Wildlife Service (“Service”) published a final decision to list the northern long-eared bat as threatened 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 4(d) rule.
As we discussed in a post last year, the effect of the interim 4(d) rule depended on the location of a particular activity. For areas of the country not affected by white-nose syndrome, the interim 4(d) rule exempted incidental take from all activities. For areas of the country affected by white-nose syndrome, the interim 4(d) rule exempted from Endangered Species Act 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 protected known maternity roosts and hibernacula. Under the interim 4(d) rule, those activities were exempted provided: (1) the activity occurred more than 0.25 mile (0.4 km) from a known, occupied hibernacula, (2) the activity avoided cutting or destroying known, occupied roost trees during the pup season (June 1–July 31), and (3) the activity avoided 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). Thus, with a few narrow exceptions, the interim 4(d) rule prohibited all incidental take within areas of the country affected by white-nose syndrome, including take resulting from the operation of utility-scale wind turbines.
On January 14, 2016, the Service published the final 4(d) rule and, in doing so, significantly revised the interim 4(d) rule. The significant difference between the interim 4(d) rule and the final 4(d) rule is the extent to which incidental take is prohibited within the “WNS zone” (defined as the set of counties within the range of the northern long-eared bat within 150 miles of the boundaries of counties where white-nose syndrome has been detected). As outlined above, the interim 4(d) rule prohibited all incidental take and then created specific exceptions. Under the final 4(d) rule, only the following incidental take is prohibited:
“(A) Actions that result in the incidental take of northern long-eared bats in known hibernacula.
“(B) Actions that result in the incidental take of northern long-eared bats by altering a known hibernaculum’s entrance or interior environment if it impairs an essential behavioral pattern, including sheltering northern long-eared bats.
“(C) Tree-removal activities that result in the incidental take of northern long-eared bats when the activity:
“(1) Occurs within 0.25 mile (0.4 kilometer) of a known hibernaculum; or
“(2) Cuts or destroys known occupied maternity roost trees, or any other trees within a 150-foot (45-meter) radius from the maternity roost tree, during the pup season (June 1 through July 31).”
Although environmental organizations were generally displeased with the final 4(d) rule, the change is positive for the wind industry. Under the final 4(d) rule, activities within the WNS zone not involving tree removal are not prohibited provided they do not result in the incidental take of northern long-eared bats in hibernacula or otherwise impair essential behavior patterns at known hibernacula. This includes take resulting from the operation of utility-scale wind turbines. In the Federal Register notice the Service explained its rationale:
“For the northern long-eared bat, we do not anticipate that the fatalities that will be caused by wind energy would meaningfully change the species’ status in the foreseeable future.
“* * * * *
“Our primary reason for not establishing regulatory criteria for wind-energy facilities is that the best available information does not indicate significant impacts to northern long-eared bats from such operations. We conclude that there may be adverse effects posed by wind-energy development to individual northern long-eared bats; however, there is no evidence suggesting that effects from wind-energy development has led to significant declines in this species, nor is there evidence that regulating the incidental take that is occurring would meaningfully change the conservation or recovery potential of the species in the face of WNS. Furthermore, with the adoption by wind-energy facilities of the new voluntary standards, risk to all bats, including the northern long-eared bat, should be further reduced.”
While the final 4(d) rule provides more flexibility for the development of wind energy within the range of the northern long-eared bat, developers within the WNS zone must still carefully evaluate potential impacts, particularly where construction will involve tree removal or will occur in the vicinity of hibernacula or maternal roost trees or both. Operators should also carefully consider the Service’s recommendation in the Federal Register notice to implement “voluntary conservation measures and best management practices such as cut-in speeds to reduce impacts to northern long-eared bats and other bats.”