Northern Long-Eared Bat Update

Northern Long-Eared Bat Update

By Kathy G. Beckett

Since the October 2, 2013 proposed listing of the Northern Long Eared Bat (NLEB) as endangered or threatened, over thirty-seven thousand comments, letters of concern and support have been filed with the agency. (78 Fed. Reg. 61046) [enhanced version available to lexis.com subscribers]. The USFWS has determined that the NLEB is in danger of extinction, predominantly due to the threat of white-nose syndrome. Factor C within the Endangered Species Act, Section 4 provides that the USFWS can determine that a species is endangered or threatened based on any of five factors, one of which is disease. The Service also suggests that other statutory threats to the NLEB include Factors A, B, and E [1] which in combination with white-nose syndrome heighten the level of risk to the species.

In response to the proposal Curtis Taylor, Chief of the Wildlife Resources Section of the WV Division of Natural Resources (WVDNR) submitted comments that there is WV 2012 data that indicate the NLEB continues to have widespread and abundant presence in the state; and winter surveys are not reflective of the population because it is apparent that the NLEB use ill-defined habitat other than caves and mines. In addition, the WVDNR comments the USFWS has mischaracterized the WV data in its proposal as winter hibernation data, when the data was fall swarm data. In conclusion, WVDNR proposes are more careful examination of existing data to determine whether there are behavioral differences across the species range leading to differing mortality rates.

On January 6, 2014 the Service released an interim document entitled, “Northern Long-Eared Bat Interim Conference and Planning Guidance” (ICPG) which includes a list of voluntary conservation measures which may be undertaken while the final listing decision remains pending. The agency is also developing consultation guidance which will go into effect if the NLEB is listed.

Recent meetings with the USFWS Headquarters by oil and gas, business and industry representatives indicate that the Service is slated to finalize the listing of the NLEB as endangered in October of this year. The Service has suggested that if a fund of several tens of millions of dollars were dedicated to this species, a listing might delayed. They have since retracted that statement.

There is an ongoing organizational effort by the business community led by Andrew Morrison, Managing Counsel for MarkWest Energy Partners, LP, a midstream pipeline company, to create a collaborative group of representatives of the regulated community (wind, builders, chambers, oil and gas, etc.) to fund and design a programmatic multi-species habitat conservation plan (HCP) to allow for expedited incidental take permits (ITPs) for projects given that it sounds like the NLE will almost definitely be listed. It is recognized that this will entail a time-consuming and expensive effort that it will not solve all of the regulatory issues presented. Given the short time frame the Service is suggesting for an endangerment listing, it is being recommended that an effort to pursue an interim HCP with an EA as a temporary bridge to the HCP is an important next step. Solicitations are ongoing to gather funding and design of a scope for such efforts.

From the perspective of state regulators, the listing process in which the USFWS currently is engaged is not quite satisfactory. This listing effort that is causing rapid proposals for many species is driven by a federal court settlement agreement between the Service and the Center for Biodiversity, and others [2]. Some state scientists are asserting the Service is not working with them and express concern that the states’ are the best source of scientific data to design the correct response. On April 17, 2014 the states of Wisconsin, Indiana, Michigan and Minnesota filed a letter with the Service that lists concerns as follows:

·   The Service did not solicit states’ comment on the drafting of the ICPG and did not invite the states to participate in the development of the consultation guidance.

·   The ICPG is overly restrictive and too broad, particularly if applied to non-federal lands.

·   A partnership approach should be used to develop reasonable and appropriate conservation measures that avoid take, and ultimately benefit, NLEB while sustainably managing states’ natural resources.

·   Conservation measures for summer habitat and winter hibernacula must be carefully designed with a view toward realistic summer protections and white nose syndrome management in the hibernacula.

·   The timetable is too short to allow for gathering of sufficient data to develop appropriate avoidance measures and to adequately consider feedback from all conservation partners.

·   States will not have time to develop Habitat Conservation Plans and a delay in the listing is requested.

On the Congressional front, it is reported by Todd Ungerecht, Senior Counsel, House Natural Resources Committee in the U.S. House of Representatives that the Committee has held numerous hearings and certain representatives are sympathetic to the dilemma presented by the antiquated concepts presented in the Endangered Species Act. He is also quick to acknowledge that amendment of the act is unlikely. December 13, 2013 the Committee held a hearing titled, “ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies.” On March 7, 2014, the Natural Resources Committee rejected a petition request that the Service issue a “no jeopardy” determination for all individual activities undertaken by the oil and gas industry.

On March 26, 2014 the Committee held a hearing on Endangered Species Act prosecutions. On March 27, 2014, four bills were introduced by House Republicans (H.R. 4315, 4316, 4317, and 4318). These four bills address publicly available data for listing decisions; limit funds for litigation and award of attorney fees; use of best available scientific and commercial data; and prioritization of USFWS resources.

Finally, on the litigation front it appears that the federal courts are leaning toward entertaining listings as they arise, rather than entertain challenges to the settlement agreement to begin a schedule of listing proposals. However, there is a recent case filed initially by the Oklahoma Attorney General, Scott Pruitt, and Domestic Energy Producers asserting the “sue and settle” strategy that give us the Center for Biodiversity Settlement Agreement is a violation of the Administrative Procedures Act; it results in injury from implementation of a private settlement; USFWS improperly agreed not to exercise its authority to determine a designation may be “warranted but precluded” because of other agency priorities; and it violates the due process clause of the Fifth Amendment of the US Constitution [3]. This litigation also has been joined by Kansas.

Clearly, additional challenges and legal theories will ensue as the impacts of this proposed listing begin to occur.

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[1] ESA §4(a)(1)(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (E) other natural or manmade factors affecting its continued existence.

[2] Center for Biological Diversity v. Salzar, Civ. No. 10-cv-0230, (D.D.C).

[3] Oklahoma, et al. v. Department of Interior, Civ. No. 14-CV-123-TCK-PJC (N.D. Ok.)

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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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