Section 4(d) Rule – Northern Long Eared Bat

The Fish and Wildlife Service (FWS) released its final 4(d) rule related to the endangerment finding made by FWS regarding the northern long eared bat (NLE) which was listed as a threatened species under the Endangered Species Act (“ESA”) last year. The NLE is found in 37 states, the District of Columbia, and 13 Canadian Provinces. The rule follows the issuance of a final endangerment finding and interim 4(d) rule meant to provide protection for the NLE on April 15, 2015. 

The final rule makes some positive changes from the interim rule, and becomes effective on February 16, 2016. The FWS’s final rule states that it focuses on the effects of “white nose syndrome” or WNS on the northern long eared bat. The final rule includes some exceptions to the prohibitions of 50 C.F.R. 17.31 (general prohibitions for threatened species) where (1) there is a removal of NLE bats from a human structure, and (2) for the authorized handling and capture of NLE bats until May 3, 2016.

Notably, the final rule does not prohibit incidental take of NLE bats outside of designated WNS zones. These zones, however, with be updated monthly, making determinations of whether an activity is within a WNS zone problematic.

The final rule can be viewed in full by accessed using the following link: https://www.federalregister.gov/articles/2016/01/14/2016-00617/endangered-and-threatened-wildlife-and-plants-4d-rule-for-the-northern-long-eared-bat#h-13

Allyn Turner concentrates her practice in the areas of environmental law, environmental litigation, and environmental policy issues.
 
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