Endangered bat poses new challenges for property owners and developers

Property owners, developers, and project proponents need to be aware of a new endangered species. On February 16, 2016, a new rule passed under the Federal Endangered Species Act, took effect listing the northern long-eared bat as “endangered.” The ruling comes as the result of drastic population declines in the northern long-eared bat population caused by a blight known as White-nose Syndrome (WNS). WNS is a disease, deadly to bats, caused by the presence of a fungus that has now been found in thirty states. In the United States, the northern long-eared bat is found from Maine extending south to North Dakota, west to Eastern Oklahoma, and north through the Dakotas and into eastern Montana and Wyoming, covering thirty-seven states.

While often found repulsive by the general population, bats are critical to our ecology and economy. According to the U.S. Fish and Wildlife Service, they consume tons of insects nightly, providing a natural benefit to farmers and foresters by eliminating harmful pests. Some research suggests that bats provide at least three billion dollars in economic value annually.

In declaring the northern long-eared bat as endangered, the new rule lists certain prohibitions that focus on protecting the bat’s sensitive life stages in areas affected by WNS. Under the new rule, no “purposeful takes” are permitted anywhere. Under the Endangered Species Act (ESA), a “take” is any activity that harasses, harms, pursues, hunts, shoots, wounds, kills, traps, captures, or collects any endangered species. A take is “purposeful” when the reason for the activity or action is to conduct some form of take.

Under the new rule, there are three exceptions to the purposeful take prohibition:

1. Where the northern long-eared bat is removed from a human structure;
2. Where the take is in defense of human life (for example, public health monitoring for rabies); and
3. In the removal of hazardous trees for protection of human life or property.

The new rule does provide that for research purposes, the handling of bats may be permitted under a permit issued by the U.S. Fish and Wildlife Service.

The new rule also bans “incidental takes” in areas impacted by WNS (the U.S. Fish and Wildlife Service has issued a zone map indicating those areas where WNS has been identified). The ESA defines “incidental take” as “a take that is incidental to and not for the purpose of, the carrying out of an otherwise lawful activity.” The prohibition against incidental takes applies only in certain circumstances. It applies if the incidental take occurs within a hibernaculum (i.e., within either a cave or a mine where the northern long-eared bat hibernates). The prohibition against incidental takes also applies where the take results from tree-removing activities that:

• Occur within 0.25 miles of a known, occupied hibernaculum; or
• Cut or destroy a known, occupied maternity roost tree or other trees within a 150-foot radius from the maternity roost tree during the pup season from June 1 through July 31.

If the activity resulting in an incidental take occurs outside the WNS zone, you will not need a permit and do not have to contact the U.S. Fish and Wildlife Service to proceed with your activity. The ban on incidental takes relating to hibernacula involves any activities taking place in a mine or cave, as well as any activity that will in any way alter the entrance to, or the environment of, the hibernaculum. Any questions regarding whether an activity falls within this category should be discussed with a U.S. Fish and Wildlife Ecological Services Field Office. Activity involving tree removal can proceed as long as it is not within the 0.25 mile or 150-foot thresholds. If the proposed activity will be within one of those thresholds, it may still proceed if the U.S. Fish and Wildlife Service is notified and determines that the activity will not harm or kill bats, or if the work can otherwise proceed under a permit issued by the U.S. Fish and Wildlife Service.

Property owners, developers, and project proponents bear responsibility for determining if a maternity roost tree or hibernaculum is present on their site. Most states keep Natural Heritage Inventory Databases for this type of information. On its website, the U.S. Fish and Wildlife Service states that they expect project proponents to make a diligent effort to determine available data. If such data is unavailable or cannot otherwise be found, proponents should document the effort to locate the data, and then may proceed with their activity. Property owners and developers are not required to perform a site survey as part of the diligence effort to determine the presence of northern long-eared bats, their hibernacula and/or maternity roosting trees. However, the U.S. Fish and Wildlife Service suggests that surveys can reduce uncertainty and facilitate project planning.

Under the ESA, the civil penalty for violating the take provisions is a fine of up to $25,000 for each violation. The criminal fine for knowingly violating the take provisions is not more than $50,000 for each violation, or imprisonment of up to not more than one year, or both.