US Fish & Wildlife Service proposes “Endangered Status” for Northern Long Eared Bat and seeks comments regarding possible designation of the species’ “critical habitat”

On October 2, 2013, the United States Department of Interior (U.S. Fish and Wildlife Service) published its proposal to list the “northern long-eared bat” as an endangered species throughout its entire range.  The Agency noted that it did not have sufficient information to determine whether it would designate any areas within the bat’s range as “critical habitat.”  The Agency is seeking comments regarding both the listing and the possible designation of the areas in the bats’ range as “critical habitat.”   

The Agency concluded that the bat is primarily threatened by a disease named White Nose Syndrome.  The Agency cites a report that found that in some of its habitats, the Northern Long Eared Bat population is experiencing a 99% mortality rate due strictly to the disease.1  Additionally, the Agency noted in its findings that WNS is generally spread by bat to bat contact or when the bats enter contaminated caves.  The Agency‘s notes in its study that the bats’ primary habitats are caves, abandoned mines and railway tunnels, however the bats roost and populate various forest areas near their primary habitat during the summer months.

Regardless of the Agency’s conclusions related to the disease, it proposes some limitations be placed upon energy and commercial development within the bat’s habitat range.  The Range at issue includes 38 states and the District of Columbia, stretching from the East Coast to Wyoming and as far South as Alabama. The Majority of States situated within the bats’ range produces some form of energy, be it coal, shale gas or are the sites of existing or proposed wind development projects.  The Agency concluded that commercial activity, highway construction and the development of energy projects (including Marcellus shale wells and wind powered projects and their associated activities such as turbine placement and lay down areas, transmission lines and substations may adversely affect the bats’ habitats.

All developing companies, including wind power developers, should be aware of the proposed regulations and the potential effects of the proposed rule upon their current or future activities.  If your business may be affected by the proposed listing and regulation now is the time to prepare your comments and to submit “scientific information” to the Agency for its consideration. The Agency is accepting comments concerning the proposed rule until December 2, 2013.2  Steptoe & Johnson, PLLC is working with local, regional and national trade associations to develop comments for filing.  For further information on that effort please contact either Kathy Beckett, (304) 353-8172/kathy.beckett@steptoe-johnson.com or Bob Pollitt (304) 353-8137/ robert.pollitt@steptoe-johnson.com.

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1 It appears that the scientific community has yet to identify the cause or develop a cure for the disease.

2 See Federal Register Vol. 78, No. 191, Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List the Eastern Small-Footed Bat and the Northern Long-Eared Bat as Endangered or Threatened Species; Listing the Northern Long-Eared Bat as an Endangered Species.

Bob Pollitt is a member of Steptoe & Johnson's professional staff assisting attorneys with research and client retention. Before focusing his efforts on research, Bob represented clients in administrative and civil environmental matters and related toxic tort litigation, including environmental permitting, compliance and enforcement in the areas of coal, water and groundwater resources, solid and hazardous waste and both above and underground storage tanks.
 
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