The U.S. Fish and Wildlife Service published their final rule reclassifying the northern long eared bat as an endangered species back on November 30, 2022, with an original effective date of January 30, 2023. This classification is pursuant to the Endangered Species Act (ESA). The US Fish and Wildlife service is able to make this determination when a species satisfies any one of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) over utilization for commercial recreational scientific or educational purposes; (C) disease or predation; (D) the inadequacy of the existing regulatory mechanisms; or (E) other natural or man-made factors affecting its continued existence. The foremost stressor impacting the northern long eared bat has been identified as consistent with factor (C), disease; specifically, a fungal infection that is being commonly referred to as white nose syndrome. The northern long eared bat was originally placed on the threatened list in 2015 at which time the primary stressor was also white nose syndrome.

Since the initial classification white nose syndrome continues to be the greatest threat to the northern long eared bat (NLEB). Of note here, there is little to no indication that logging or other harvesting of forest products are a threat to the northern long eared bat. Nevertheless, the northern long eared bat is protected under Section 9 of the ESA, and so it is unlawful for any person to “take” an endangered species. Under the ESA, “take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” Of particular note, “harm” means an act which actually kills or injuries wildlife and is further defined to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” Violations of the Endangered Species Act can also be quite severe. An action that can be construed as a knowing violation of section 1538 of the ESA can result in a civil penalty of up to $61,982.00; any other violations where the actor may be deemed or imputed to be knowing that they are in violation of the ESA may result in a civil penalty of $29,751.00; and any other violation of the ESA can result in a $1,566.00 civil penalty. There are also potential criminal charges which may result from a violation of the ESA. These penalties can range up to $50,000.00 and up to a year of incarceration per violation.

The United States Fish and Wildlife Service has presented “interim voluntary” guidelines which “may” be followed and therefore assist you in protecting yourself from potentially violating the ESA. The first step is to identify what type of “project” you are undertaking. For purposes of this guidance, the focus is going to be in determining if you are undertaking a forestry project. The Virginia Department of Forestry has released a general definition for forestry projects to mean timber management. Our concern is going to focus on forestry projects that deal specifically with timber management such as thinning, clear cutting, prescribed burns or even the creation of forest openings. Each of these activities can fall under the take and harm provisions of section 9 of the Endangered Species Act as it is clearly modifying the potential habitats of the northern long eared bat.

The next question to address is whether the forest project has any sort of federal nexus. To put it another way; is the task conducted on federally managed land, does the tree removal require specific federal permitting, or is it dealing with any sort of federal cost share activity. If you are dealing with federal projects or federal land then you will need to follow different requirements, as federal projects have other obligations and potential evaluations and reports that will need to be done. If the project is on private land and there is no federal permitting issue or federal cost-sharing implicated by this project, then we proceed to the third step.

At this juncture, we’ve determined that we’re handling some sort of forestry project, likely harvesting trees, and that we will be operating on private land with no federal nexus or federal cost-sharing aspect. The third and most significant issue is whether the project is going to be located in or near an identified northern long eared bat site. Specifically, you would check to see if you are operating in the area of any bat hibernacula, maternal roost trees, or capture sites, or if you are operating in or near any of the exclusionary buffer zones from those sites. As of this publication, the best tool is going to be the U.S Fish and Wildlife Service’s Information and Planning Consultation (IPaC) web tool. By accessing and utilizing this tool, you can plug in the specific project, either by dragging over the project outline and identifying the area where it will occur, or by manually sketching the area into the map. The next step is to have that project area evaluated to see what resources are potentially impacted by this project. This will identify endangered or threatened species, preservation or conservation areas, migratory birds, and access to other potential resources.

Once the project is outlined you will have to log-in and begin the review process. This will require the project proponent or consultant to supply substantive details about the project. This will require you to be informed about the area that you are looking to operate in. You will need to know if the project is likely to cause “intentional take” of the protected bat. You will need to be able to acknowledge if there are any caves, sinkholes, fissures, mines, tunnels, or rocky outcroppings that may act as the habitat for hibernating bats. If these hibernation points are present, you will need to either adjust your project parameters or initiate a Phase 1 habitat assessment for potentially suitable hibernacula. If none of the potential hibernacula are present, then the next query will be whether there are suitable summer habitats within the project activity area. The summer habitats include live trees or snags that are large enough for the bat to roost in. This would be any tree or snag larger than 3 inches (12.7 centimeters). This information is not inherently fatal to any project. The Service will likely require additional information.

Once it is established that the project is related to logging, the Service will inquire if there has been a presence/probably absence summer survey conducted consistent with its guidelines. If such a survey has been completed, it will need to have been done within the last 5 years and will likely have to be reviewed by the Service for compliance. If a survey hasn’t been completed, the map will automatically evaluate if the proposed project is in an area that is known to be environmentally sensitive for the NLEB. If the area is outside of that range, you will need to identify when the project will be completed. Specifically, if the project will occur during the NLEB’s inactive season; for Virginia, outside of the identified coastal plain area, this window is from November 15 until March 31. Based on all of this information, the program will generate a specific determination. The possible outcomes are “No effect” meaning that based on the answers provided, there will be no impacts, positive or negative, to the protected species; “Not likely to adversely affect” meaning that all effects to federally listed species or designated critical habitats from the proposed action would be insignificant, discountable, and/or completely beneficial; and, “May affect” meaning the DKey could not rule out the potential for adverse effects. In some cases, additional information is required, or additional information will need to be provided, or even that more time will be needed to complete the evaluation. If you are in an area where it is assumed the bats are NOT to be found, and/or if you receive a determination key response of “no effect” then you are free to continue with the project.

If the anticipated project is located within an area where the northern long eared bat has been previously identified, then you can take one of two actions: you can either completely avoid any activities in those areas during specific times of year or you can have a survey conducted to see if the bats are present. If you view the maps and see that you are near an area where either a capture site or a roost tree is located then you cannot engage in activities between April 1st through November 14th. If you are in the vicinity of a known hibernacula, then you are directed to avoid any activity at any time during the year. Virginia also has a number of counties which are considered to be year-round habitats. In these specially designated areas it is recommended that you avoid any forestry projects between December 15th through February 15th and April 15th through July 30th.

Most of the measures and data used to determine presence and potential of “taking” are based on probability and population density in areas where the bats were previously found. To this point, even the USFWS acknowledges that the NLEB has had a dramatic decline in population. It cannot be said with certainty that merely because an environment might be suitable you will also have an active population of the bats. Indeed at this point, most of the suitable habitat is now expected to be unoccupied. During the period of interim guidance, the USFWS has concluded that “take” is not reasonably certain to occur in areas of suitable habitat where presence has not been documented. If you are in an area where the northern long eared bat may be found either near an expected hibernacula, maternal roost tree, or prior capture locations and you still wish to proceed with your project then it may be necessary to conduct a survey of the area. Surveys must be conducted between March 1st and November 15th. At present there are two recognized forms of surveys: acoustic surveys which require at least 14 nights with suitable weather for the detection method per 123 acres of project area; and

mist-netting which would require fewer nights, but the surveyor must have all of the requisite federal and state permits for the capture of the bats. Surveys that are conducted to the standards set forth by the US Fish and Wildlife service are considered to be conclusive. In other words, if the survey says “no bats” you are free to proceed in your project zone.

This current guidance has been labeled as “interim voluntary” which means that it will be in effect for one year until March 31st, 2024. Voluntary means that you can choose to protect yourself from potentially violating the act by following the guidance as presented or not. Given the potential penalties for violation of the Endangered Species Act, it is highly recommended that you do not ignore this guidance.

To summarize:

Step 1 – Identify the project to be undertaken and identify the physical boundaries of that project.

Step 2 – Using the USFWS – IPaC program, determine what, if any, potential species may be impacted by the proposed project.

-If the IPaC report identifies no potentially threatened species and your own observations support the same, you may proceed with your project.

-If the IPaC report identifies any potential species impacted by your activity, then the next step is to look at other available maps to see what areas or issues are impacted by the cautionary notice and identify if the restriction is timing based or habitat based. The level of impact that is expected will play a critical role in determining what steps you take next to advance the project.

Step 3 – Identify what issues and restrictions are in play. If there is a hibernaculum issue, then you need to either abandon the project or have a survey done to verify if the site is still active. At present there are no mechanisms to remove identified capture area, hibernaculum, or roost trees from the state maps identifying these locations.

Step 4 – If there are likely bats in the area, consider partnering or requiring that the acoustic survey or mist-netting survey be completed. The survey is good for five years and may be relied on if it is performed to federal standards.

Step 5 – If bats are identified by the survey, you may consider seeking an incidental take permit, but be advised that this is not a guaranteed permit and more akin to a Hail Mary pass.

This interim guidance needs to be taken seriously, as the implications of a violation of the ESA can carry serious ramifications. If you find yourself in a situation where you are uncertain of how to proceed, we strongly recommend consulting a law firm that understands the intricacies of the ESA stance on the NLEB. For any questions related to this article, please contact Stephen Setliff (ssetliff@setlifflaw.com) at (804) 377-1261 or John Stacy (jstacy@setlifflaw.com) at (804) 377-1263.