Endangered Species Law & Policy

On April 2, 2015, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the northern long-eared bat (Myotis septentrionalis) as threatened under the Endangered Species Act (ESA).  The Service determined that there are several factors affecting the species, but none as severe and immediate to its persistence as the disease known as white-nose syndrome (WNS).  The Service found that WNS is the predominant threat to the northern long-eared bat and, in the absence of WNS, the species would not be experiencing the dramatic decline that it has since WNS emerged.

The rule provides that, in areas not yet affected by WNS, all incidental take resulting from any otherwise lawful activity will be excepted from prohibition.  In areas known to be affected by WNS, all incidental take prohibitions apply, except that take attributable to forest management practices, maintenance and limited expansion of transportation and utility rights-of-way, prairie habitat management, and limited tree removal projects are excepted from the take prohibition.

As we reported previously, the Service published a proposed rule to create a species-specific rule for the northern long-eared bat under authority of section 4(d) of the ESA in January 2015.  The final rule establishes an interim rule under section 4(d) providing measures that are necessary and advisable to provide for the conservation of the species.  These measures prohibit purposeful take of northern long-eared bats throughout the species’ range, except in instances of removal of the species from human structures and authorized capture and handling of the species by individuals permitted to conduct such activities for other bats.  According to the Service, the interim 4(d) rule provides flexibility to landowners, land managers, government agencies, and others as they conduct activities in northern long-eared bat habitat.

The Center for Biological Diversity (CBD) filed suit against the Service to set aside the final rule on the same day the rule was published.  Citing a 2013 Service recommendation that the species be listed as endangered, CBD claims that the Service bowed to industry pressure by listing the species as threatened.

On March 27, 2015, just days before the Service’s final listing decision was issued, the Senate approved an amendment for inclusion in a budget resolution (Amendment 422) related to the northern long-eared bat.  U.S. Senator John Thune (R-S.D.) stated:  This amendment puts the Senate on record opposing the [Service]’s proposal to list the long-eared bat.  Prior to the Service’s listing decision, the Defenders of Wildlife claimed that the amendment could block, perhaps permanently, any decision to list the bat.

The northern long-eared bat listing becomes effective May 4, 2015.  Because the Service received a significant number of comments in response to the proposed rule issued on January 15, 2015, the Service will accept further input on the final rule through July 1, 2015.