Legal Terrain

Halloween Special: Biden Vetoes Congressional Threat to Endangered Listing of Local Bat

October 31, 2023


On September 26, in time for the most bat-friendly month of the year (Halloween, here we come!), President Biden vetoed a bill that would have lessened protections for the northern long-eared bat (NLEB). The bat’s population has been decimated by a fungal disease, white-nose syndrome, discovered in 2006. According to Mass Audubon, the pollination activities of bats support a healthy ecosystem. They also eat insects and disperse seeds. Bats in the northeastern U.S. spend their winters hibernating. Surveys conducted in known NLEB “hibernacula” have shown a drastic population decline in the U.S., with some estimates greater than 97%.

The Senate had voted 51-49 and the House 220-209 on a resolution that would have, if enacted, disapproved the November 2022 rule proposed by the U.S. Department of Interior’s Fish and Wildlife Service (“Service”) uplisting the bat from “threatened” to “endangered.” Significant negative economic impacts were cited, such as restrictions on forest management and infrastructure project permitting. Proponents of the Congressional resolution said human activity and habitat loss are not contributing to the species’ decline. In a Message to the Senate explaining his veto, Biden said the resolution would “overturn a science-based rulemaking” and risk extinction of the species.

The NLEB has been Federally listed under the Endangered Species Act as “threatened” since 2015. The new Federal “endangered” listing became effective on March 31, 2023. In Massachusetts, the NLEB and four other bat species were already classified as endangered per Massachusetts Endangered Species Act (MESA) regulations. The NLEB has been found in 11 of 14 counties in the Commonwealth. The Massachusetts Division of Fisheries & Wildlife Natural Heritage & Endangered Species Program (NHESP) maintains an online map of known maternity roost trees and hibernacula.

The Federal rules apply to any proponent whose project has a “Federal nexus,” i.e., is permitted or funded by a Federal agency.  One common hook is the U.S. Environmental Protection Agency’s National Pollutant Discharge Elimination System (NPDES) permit. The Construction General Permit for construction projects disturbing one or more acres and the Multi-Sector General Permit for certain industrial activities cover categories of discharges under the Clean Water Act and include compliance steps for endangered species review. Another hook that requires proponents to consider endangered species is the U.S. Army Corps of Engineers Massachusetts General Permit.

When a project or activity is located within a mapped state-listed species habitat at the State level, MESA regulations require that proponents file with the NHESP for review and approval. A Conservation and Management Permit is generally needed if a proposed development would result in a “take” of a protected species. Applicants typically receive a determination letter from NHESP within 30 days.

Previously, when the NLEB was merely listed as “threatened” at the Federal level, projects within the species’ range had to follow a process called the 4(d) rule. Practically speaking, that rule authorized incidental take (a “take” that occurs during an otherwise lawful activity) without needing an individual permit. Exceptions for certain geographical areas and seasons, such as prohibitions on tree removal in June and July or within a quarter mile of a known NLEB hibernaculum, meant that most projects could proceed without further ESA review. No surveys, consultation with regulators, mitigation or monitoring were required.

In 2014, this process was imposed on Burns & Levinson Partner John Shea’s Olde Shrewsbury Village reconstruction and stream relocation project at Routes 20 and 9. The Service was concerned about modest parking lot perimeter tree removal, even though the known hibernaculum was over 30 miles away. A restriction on June and July tree removal was voluntarily adopted to avoid a lengthy ESA review.

For new projects, as of March 31, 2023 (the effective date of the NLEB listing as endangered) the process for determining a project’s impacts on NLEB became more rigorous. Now, proponents must use the Service’s Information for Planning and Consultation or IPaC tool to input details about the location, area of clearing, and timing of activities, for example. The NLEB Determination Key automates the due diligence and immediately outputs one of three “determinations:” No Effect; Not Likely to Adversely Affect; and May Affect. The third category calls for direct consultation with the Service’s New England Ecological Services Field Office in Concord, New Hampshire. The Service maintains undisclosed maps of NLEB occurrences and hibernacula, and the IPaC output depends upon a project’s radius from these occurrences.

In addition to the new Determination Key tool, the Service created an Interim Consultation Framework. The Framework, dated June 29, 2023 lists activity types that are covered by this streamlined consultation.  First, the acting Federal agency completes a Biological Assessment Form. The local Ecological Services Field office then issues a Biological Opinion and Incidental Take Statement Form. Purposeful take, wind turbine operation, and aerial application of pesticides over bat-suitable forested habitats are not covered and would require a separate, individual consultation.  After this interim period, the Service may recommend additional conservation measures for the NLEB.

Dan Wells, a Senior Wildlife/Wetland Scientist with LEC Environmental Consultants, Inc., says the new endangered classification for NLEB “requires a more thorough review process for landowners, developers and their consultants than what was previously required.” The Service is expected to issue a new, more formal procedure after April 1, 2024, when the interim guidance becomes invalid. So far, it is not known if new requirements or permitting actions will be included in the new rules. One possibility is a requirement for bat surveys to be performed within project locations to determine whether NLEB are present and inform the Service as to the locations of maternal roost trees. Dan has been trained in bat acoustic monitoring methodology in anticipation of this. While we await the Service’s next steps to guard their hiding places, the endangered northern long-eared bat need not feel frightened by Congressional politics.

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