Locke Lord QuickStudy: “Threatened” Listing for Northern Long-Eared Bats Threatens the Energy Industry

The northern long-eared bat (NLEB) is a wide-ranging species of bat that is currently being considered for potential listing under the federal Endangered Species Act (ESA).  On January 16, 2015 the U.S. Fish and Wildlife Service (FWS) published a proposed ESA section 4(d) rule (Special Take Rule) for the NLEB. The Special Take Rule would apply in the event that the FWS ultimately lists the NLEB as threatened under the ESA, and would exempt NLEB take resulting from specified activities from the broad take prohibition of the ESA.  If adopted, the Special Take Rule would become effective concurrently with a final decision to list the NLEB as threatened.  Although the publication of the proposed Special Take Rule suggests that the FWS may be leaning towards a threatened listing for the species, a final listing decision is not anticipated until April 2015.  Take exceptions in the proposed Special Take Rule would not apply if the NLEB is listed as endangered.

A. Potential Impacts of a Listing 
Under the ESA and its implementing regulations, threatened and endangered species are typically afforded the same protections.  The ESA broadly prohibits the “take” of endangered or threatened species without a permit, where a “take” includes harassing, harming, hunting, or killing the species or destroying or harming its critical habitat.  The NLEB has an extensive range that spans 37 states across the eastern half of the United States, but its population has been decimated throughout much of that range by a fungus that causes a disease known as white nose syndrome (WNS).  The FWS has determined that WNS is the primary threat to NLEB populations across its range.  Although WNS is the principal reason for the potential listing, in the event of a listing all activities that result in unauthorized NLEB take would be prohibited, and all companies conducting activities in NLEB habitat, which includes virtually all forested areas, would be at risk of causing a take and violating the ESA.  As a result, a decision by the FWS to list the NLEB would have significant impacts across a broad range of industries.  Industries as diverse as timber harvesting, wind energy development, and oil and gas exploration (including fracking), and linear infrastructure projects like transmission lines, highways, and pipelines are all likely to be significantly impacted.  

B. Take Exceptions Proposed in the Special Take Rule
The FWS has proposed the Special Take Rule with the intention of limiting the economic impact of a potential listing.  In conjunction with a threatened rather than endangered listing, the proposed Special Take Rule would exempt from the take prohibition of the ESA incidental take resulting from specific categories of activities: forest management practices, limited tree removal projects, and maintenance and limited expansion of transportation and utility rights of way and transmission corridors.  In addition, in recognition of the fact that NLEB populations are not presently at risk in areas that have not yet been reached by WNS, the Special Take Rule would establish a buffer zone consisting of the area within 150 miles of the boundaries of U.S counties or Canadian districts where WNS or the fungus that causes it has been detected.  Outside the WNS buffer zone, the species would effectively be treated as if it were not listed, and the proposed Special Take Rule would exempt all incidental take resulting from otherwise lawful activities.  Within that buffer zone, the previously specified activities would be exempt from the take prohibition only if conducted in compliance with certain conservation measures specified in the Special Take Rule.  Specifically, to be exempt the activities must: (1) occur more than 0.25 miles away from known, occupied hibernacula, (2) avoid cutting or destroying known, occupied maternity roost trees between June 1 and July 31, and (3) avoid clearcuts within 0.25 miles of known, occupied maternity roost trees between June 1 and July 31.

C.  Would the Special Take Rule Really Help? 
In the areas affected by WNS, certain sectors of the energy industry would benefit significantly from the Special Take Rule – specifically, linear infrastructure projects such as pipelines and transmission lines.  Take caused by routine maintenance and expansion of up to 100 feet of existing right of ways and transmission corridors such as highways, utility transmission lines, and energy delivery pipelines would be exempt if conducted in accordance with the specified conservation measures outlined above.  The timber industry also would receive significant protection in the WNS buffer zone. The proposed Special Take Rule specifically states that take resulting from timber harvesting, other silvicuture treatments, prescribed burning, invasive species control, wildlife openings, and temporary roads would be exempt, provided those activities are carried out in accordance with the specified conservation measures.  

While forestry and linear infrastructure would benefit from the Special Take Rule, as currently proposed, the Rule does not provide protection for other sectors of the energy industry, including wind energy and oil and gas development.  Within the WNS buffer zone, developers of such projects would be required to avoid all take of NLEB or obtain incidental take authorization under the ESA, most likely in the form of a Section 10 incidental take permit (ITP).  The ITP application process is invariably both extremely lengthy and costly, and involves the development of a Habitat Conservation Plan (HCP) outlining the steps the applicant has taken to minimize and mitigate take to the maximum extent practicable.  These steps involve operational adjustments and restrictions resulting in increased costs and/or decreased revenues and expensive monitoring to detect NLEB mortality.  It also involves identification and implementation of mitigation projects, typically requiring preservation or restoration of NLEB habitat, notwithstanding the fact that habitat loss is not the basis for the potential listing and habitat is not a limiting factor for the recovery of the species.  Thus, the Special Take Rule as currently proposed would do little to blunt the impact of a threatened listing on the bulk of the energy industry.  

While the proposed the Special Take Rule’s extension of the exceptions to the ESA’s take prohibition to all activities that result in incidental take outside of the WNS buffer zone is certainly helpful, the ultimate utility of this exception is likely to be limited.  WNS has already been documented in 25 of the 37 states in the NLEB’s range and the WNS buffer zone already encompasses most land east of North Dakota.  Furthermore, WNS is expected to continue spreading west and may soon be found across the NLEB’s entire range.  

Even in areas where the take exceptions in the proposed the Special Take Rule appear to provide some protection, the exceptions may be largely moot.  There is significant overlap between the ranges of the NLEB and the Indiana bat, a species that has long been listed as endangered, and both species occupy the same forested habitat for much of the year.  Thus, activities that result in exempted take of NLEB individuals or habitat may also result in the unauthorized take of Indiana bats.  In areas where both species occur, developers will still need to obtain an ITP for Indiana bats or risk violating the ESA if take cannot be avoided entirely.  For these projects, the primary benefit of the proposed Special Take Rule may simply be a reduction in mitigation costs, as additional mitigation for NLEB would not be required on top of the mitigation for authorized take of Indiana bats.  While this savings would not be insignificant, the costs of ESA compliance would remain substantial.

Finally, even industries or projects that would benefit from a threatened listing and applicability of the Special Take Rule should be cognizant of their obligations to comply with the wildlife laws of the state in which they are operating.  Many states have their own statutes that prohibit the unauthorized take of state-listed species.  In many of these states, once a species is listed under the ESA it is automatically listed under state law, while adoption of a Special Take Rule under ESA section 4(d) is not similarly automatic.  Therefore, a decision to list the NLEB under the ESA could trigger additional obligations at the state level, undermining the value of the proposed Special Take Rule.

Looking forward, if the NLEB is listed as threatened or endangered come April, careful planning must be given to project development and operations within the NLEB’s range.  Companies planning operations in or near NLEB habitat need to develop appropriate strategies to minimize the impacts of their operations on bats and ensure compliance with the ESA.  Locke Lord’s energy and environmental attorneys have been advising companies in both the oil and gas and renewables industries on their Indiana bat and NLEB obligations for many years and can provide additional information and insight on these issues as well as strategic options for ESA compliance.

For more information on the matters discussed in this Locke Lord QuickStudy, please contact the authors.