The listing status of the northern long-eared bat (NLEB) under the Endangered Species Act (ESA) has been the subject of litigation since the U.S. Fish and Wildlife Service (Service) originally listed it as threatened in 2015. At that time, the Service also issued an ESA Section 4(d) rule that allowed incidental take resulting from development activities to occur within its range and habitat where white nose syndrome (WNS) was not present, so long as certain best management practices, such as time of year restrictions on tree removal, were followed. In 2021, the U.S. Court of Appeals for the D.C. Circuit found that the Service’s 2015 listing decision did not adequately explain why the bat was not listed as endangered, and failed to address how impacts, such as habitat modification allowed under the 4(d) rule, affected the NLEB. The court remanded the 2015 rule to the Service for further consideration, but allowed the threatened listing and 4(d) rule to stay in place while the Service reconsidered the listing status for the species.
The Service has now announced the results of its review following remand. On March 23, the Service issued a rule proposal (Proposed Rule) to uplist the NLEB to endangered status. The proposed uplisting prohibits take of the NLEB throughout the United States absent incidental take permit coverage. Given that the NLEB is known to occur in 37 states and the District of Columbia, the uplisting decision, if finalized, will have a significant impact. The bat’s endangered listing could affect development activities, particularly tree-clearing, in areas where the bat is known to be present.
In the preamble to the Proposed Rule, the Service identified several stressors for the species, in addition to WNS, including wind-energy-related mortality, climate change variables, and habitat loss from forest conversation. The Service has indicated that it may, at some point in the future, authorize incidental take for certain specific activities. However, the proposal states that the Service is unable to identify those activities at this time because the NLEB occurs in a variety of habitat conditions, and it is likely that site-specific conservation measures may be needed to offset the authorized take.
The preamble also states that recovery plans will be prepared after the listing determination is finalized. The Service notes that achieving recovery of NLEB will require cooperative conservation efforts, including by private landholders. The Service also invited stakeholders to express their interest in participating in recovery efforts. The Service previously published a determination that it was not prudent to designate critical habitat for NLEB; that determination remains in effect.
The Service will be accepting comments on the Proposed Rule until May 23, 2022.