FWS Designates NLEB as Threatened, Rather Than Endangered

What this means for forestry

On April 2, 2015, the U.S. Fish and Wildlife Service (FWS) announced that it would be listing the northern long-eared bat as threatened, rather than endangered, as it had initially proposed in October of 2013. The listing gives the bat new protections but does not enforce all of the requirements that would have been relevant had the bat been listed as endangered.


The US Fish & Wildlife Service designated the Northern Long-Eared Bat (NLEB) a threatened species, but attached an interim special rule that it states removes uncalled-for regulatory requirements for landowners, land managers, government agencies, and others in the bat’s multistate range. The listing is seen by some as FWS’s most restrictive designation to date with the potential to affect a number of US industries, including forestry.


Both the interim rule and the final rule regarding the bat’s status will take effect May 4, 2015.


What this means for forestry management and landowners

Because the main threat to the bats is from a disease, rather than from human activity, there are limited options to try to protect them. The primary tool is restrictions on tree removal to protect their habitat during certain months, thus improving breeding opportunities and giving newborn bats an opportunity to grow.


The USFWS has stated that landowners need not conduct bat surveys prior to undertaking private actions on private land. The interim rule provides added certainty that any incidental takings that occur from the exempted activities are not prohibited. States are similarly not required to survey for the bat before undertaking actions with no federal connection. However, if the bat is known to occur in an area and the proposed action is likely to cause an incidental take, the state must develop a Habitat Conservation Plan, and must also apply for an Incidental Take Permit, although again, actions exempted by the interim rule do not require an incidental take permit. Federal agencies are required to consult with the FWS to ensure that any action they authorize, fund, permit or carry out does not jeopardize the species. While the interim rule is in place, actions exempted by the rule will not require an incidental take statement.


In the areas in which the white-nose syndrome is prevalent, the interim rule exempts takings of the bat from forest habitat management, as well as restricted tree removal projects, provided that these activities protect known maternity roosts and hibernation caves. Specifically, activities must occur more than a quarter mile from known, occupied hibernacula; cutting or destroying of known, occupied roost trees shall be avoided during the pup season (June 1 – July 31); and clearcutting of known, occupied roost trees shall similarly be avoided during the pup season. Purposeful taking of the bat is prohibited everywhere, except where necessary to remove the bats from human structures or where permitted for research related activities.



In 2011, the FWS reached a secret sue-and-settle agreement with two environmental groups to require listing determinations on more than 250 species across the United States, including the northern long-eared bat. Today’s listing was accompanied by an announcement of publication of an interim regulation with a 90-day public comment period under Section 4(d) of the ESA for the northern long-eared bat. This interim rule was published in the Federal Register on April 2, 2015.  


On the very same day, the Center for Biological Diversity filed a complaint for declaratory and injunctive relief before the US District Court for the District of Columbia, Civ. No. 1:15-cv-00477 requesting tha the court, (1) declare that the Service’s failure to engage in a public process and prepare either an environmental assessment or environmental impact statement analyzing the potential environmental impacts of, and alternatives to, the interim 4(d) rule, prior to adopting it, violated NEPA and is unlawful; (2) vacate the interim 4(d) rule and remand it to the Service; (3) award Plaintiff fees and costs; and (4) grant such other relief as the Court deems just and proper.


 “It’s time to put people and species above the dangerous demands of national, big money environmental groups who simply want to stop human development in its tracks. In this case, the economic livelihoods of families across 38 states in the East and Midwest are on the line.”


Congressman Rob Bishop  (R-UT) Chairman of the House Natural Resources Public Lands and Environmental Regulation subcommittee

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Questions and Answers on determining if the NLEB ruling impacts your forestry activities

For anyone with questions about how the FWS’s ruling may impact their planned activities, the FWS has developed a simple Q&A document to help evaluate whether any permit requirements are triggered. A copy of that document is available here.


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