USFWS Snubs State Natural Resources Agencies: Northern Long Eared Bat ESA Listing Proposal

By Kathy G. Beckett

There is a growing concern about USFWS action relative to the Northern Long-Eared Bat (NLEB) that speaks to the common dilemma, state versus federal. It was the state natural resource professionals who identified the impacts of White Nose Syndrome on bat populations in the United States and it is the states that have continued the research, yet USFWS dialogue on the matter fails to recognize the states’ leadership role and voice in the matter.

USFWS effectively has declared a state of emergency relative to the NLEB based upon declining populations where the fungus is identified. Directly on the heels of the close of the comment period on January 2, 2014 for the proposed listing of the NLEB, USFWS issued a January 6, 2014 “Northern Long-Eared Bat Interim Conference and Planning Guidance.” USFWS recently has commented that the final endangerment listing decision has been made and the listing for the NLEB will take place by October 2, 2014 at which point unpermitted take of the species will be enforceable action.

Both state government and its citizens are now engaged in managing a directive from USFWS that a proposed species for listing under Section 4 of the ESA such as the NLEB are now subject to early federal interagency cooperation requirements of Section 7(a)(4). How would federal interagency consultation relative to jeopardy to the species or adverse modification to critical habitat impact the states? As states are managing the species and federally driven permitting actions, they are drawn into the debate over what case-by-case analysis and state data is available to understand whether proposed projects will impact the bat and/or its habitat. What actions or conservations plan should be implemented to avoid such? States are concerned their input has not been appropriately solicited or accepted and they are going on record asserting criticism of USFWS management of this issue.

As evidenced by the December 2, 2013 comment letter to the proposed listing submitted by Curtis I. Taylor, Chief, Wildlife Resources Section of the WV Division of Natural Resources, USFWS is assuming a very conservative approach relative to the disease and the species that is not supported by available scientific research. “While this species is affected by the disease known as White Nose Syndrome (WNS) and populations are declining, data from West Virginia suggest the decline in this portion of the species’ range is not as great as has been observed in the northeastern portion of its range. However, the listing proposal assumes that WNS will have the same impact to the species as it continues to spread across.” Taylor concludes the letter by providing, “..behavioral difference may lead to differing mortality rates in portions of the species’ range, and, despite declines due to WNS, the population may be large enough that listing may not be warranted at this time.”

Other states like Wisconsin, Minnesota, Michigan and Indiana have recently expressed in writing their concerns about lack of inclusion of the state wildlife professionals by USFWS. Other states have resorted to litigation challenging the USFWS listing proposals and decision in federal court, like the Lesser Prairie Chicken, that are driven by a settlement document entered before a federal court in response to citizen suit litigation, rather than the science.

The ongoing Congressional discussions about USFWS and the funding needed to implement the ESA are being driven in part by the NLEB listing which will impact much of the country. A key unanswered question is what effort has the federal agency and other ESA advocates committed to acknowledging the large financial and resource commitment of the states. The states are the subject matter experts who have not been invited to the discussion.

Kathy Beckett is an environmental lawyer who is skilled at finding practical regulatory compliance solutions that compliment the ease of operating a business. She is also experienced in designing emergency response strategies for environmental impacts. Twenty-five years of experience practicing environmental, regulatory and natural resources law have enabled Ms. Beckett to develop a national reputation for her ability to influence environmental policies on behalf of her clients.

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