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Service Lists Northern Long-eared Bat As Endangered – Environmental Law

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On November 30, 2022, the U.S. Fish and Wildlife Service
(Service) issued a final rule listing the northern long-eared bat
(NLEB) (Myotis septentrionalis) as an endangered species
under Section 4 of the Endangered Species Act (ESA), reclassifying
it from its former threatened status and rescinding its section
4(d) rule. In determining whether to list the NLEB, the Service
looked to factor C of ESA section 4, which requires the Service to
make a listing determination if “disease or predation”
poses a threat to the species. The Service cited the impacts of
white nose syndrome (WNS) on the species’ viability.

WNS depletes the fat reserves bats need to survive winter and is
estimated to have caused NLEB population declines of 97-100 percent
across 79 percent of the species’ range. The fungus causing WNS
is found in 43 states and 8 Canadian provinces, and there is no
known mitigation technique to slow the spread of the fungus or to
treat WNS in afflicted bats. The Service concluded that the
acceleration of the NLEB’s population decline from WNS leaves
the species in danger of extinction.

In the Federal Register notice, the Service provided a list of
activities unlikely to result in a violation of the ESA section 9
prohibition on “take.” These activities include minimal
tree removal and vegetation management any time of the year outside
of forested habitat and more than five miles from known or
potential hibernacula, insignificant forested habitat removal
during the hibernation period not negatively affecting an essential
behavioral pattern, tree removal at any time of year in highly
developed urban areas, among other listed activities. The Service
cautions, however, that the list is not comprehensive and take of
NLEB that occurs during any of the listed activities may still
result in legal liability.

The rule goes into effect January 30, 2023.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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