Given the decline from white-nose syndrome over the last decade, effective May 4, 2015, the northern long-eared bat (Myotis septentrionalis) was officially listed as a threatened species under the Endangered Species Act. With this listing, the U.S. Fish & Wildlife Service (USFWS) also included an interim 4(d) rule that makes certain activities exempt from the full scope of the regulation. But if a project entails cutting down trees — which pipeline projects most often do — this new listing could mean some additional constraints for getting those projects through the permitting and approvals process.
What Does “Listing” Mean?
When a species is listed as threatened, it means its population has declined to a point where it’s nearing extinction. That listing, in turn, triggers a number of regulatory requirements to prevent further decline. For the northern long-eared bat, those requirements are far-reaching since the ruling involves a large geographic area as well as very specific conservation measures. For example, the northern long-eared bat’s range extends from Maine south to North Carolina, west to eastern Oklahoma, and north through the Dakotas and eastern Montana and Wyoming — roughly a third of the country. What’s more, the species is known to roost alone or in small groups in trees more than 3 in. in diameter, which, for all intents and purposes, is practically any wooded area. That means for a given pipeline project in the eastern half of the United States, it’s safe to assume northern long-eared bats may be in the area and the requirements of the new listing and interim exemptions in the 4(d) rule may apply.
The rule, explained in section 4(d) of the Endangered Species Act, is meant to limit unnecessary regulatory requirements for landowners, land managers, government agencies and others in the range of the northern long-eared bat. In other words, the rule ensures bats within areas threatened by white-nose syndrome (WNS) are protected by these added precautions without extending them to activities that really pose no threat or may even serve to benefit the species.
With that in mind, certain activities — from maintaining rights of way to removing hazardous trees — are exempt from complying with the permitting requirements of the bat’s threatened species listing. However, that doesn’t mean those projects are also exempt from consultation with the USFWS; with the widespread presence of northern long-eared bats across a large portion of the country, USFWS will likely need to officially review a project before it’s approved to proceed. If a project has a federal nexus, is within the range of the northern long-eared bat, and within an area of their range that has documented presence of WNS, projects should plan on consultation with the USFWS.
Given the scope of its protective measures, this threatened listing has some potentially significant impacts for new pipelines. To start, the interim 4(d) rule published with the listing does not specifically include pipeline-related activities in its exemptions. And because the regulations specifically address tree removal and other linear development activities, many pipeline projects are going to require clearance from USFWS. What that means is that, unless a pipeline project is clearly outside of the northern long-eared bat’s geographic range or tree removal cannot occur in the winter months, you may still need to prove these bats are not in the proposed project area in order to get permitting approval by USFWS. That likely entails conducting presence/absence surveys via acoustic methods or traditional mist netting to locate roosts, followed by the time needed for the agencies to review those results.
If a bat is found on the site, the 4(d) rule technically provides some recourse, noting that any incidental take could be exempted. But those exemptions only apply if the activities occur at least a quarter-mile outside of known hibernation areas, don’t destroy roost trees during the pup season (June and July) or don’t involve clear-cutting. Pipeline development could involve any or all of those criteria, making the chances of exemption slim and adding months or even years to the permitting and compliance process before a project can begin.
For many pipeline projects, some activities are exempted and may require fewer regulatory steps to get approval. Those exempted activities include:
• Routine maintenance and limited expansion of existing rights of way.
• Routine maintenance within an existing corridor or right of way, carried out in accordance with previously described conservation measures.
• Expansion of a corridor or right of way by up to 100 ft from the edge of an existing cleared corridor or right of way.
Now is the time to assess your projects to determine if and how the northern long-earned bat listing may affect budgets and schedules. USFWS has posted a useful “Do I Need a Permit?” guide on its website that steps developers through questions like these:
• Is my project within the range of the
northern long-eared bat range?
• Is my project within the white-nose
syndrome buffer area?
• Is habitat present within my project area?
• If so, is it winter habitat? Summer habitat?
Has it already been documented?
• Does my project meet one of the exempted activities under the interim 4(d) rule?
• Does my project affect habitat alone or
could it result in direct fatality?
• Can my project commit to conservation measures?
• Does my project area overlap with other species (e.g., Indiana bat)?
If permitting is required, a project may need to put together a biological assessment or a habitat conservation plan, depending on the permitting process the project is in and whether or not there is a federal nexus in order to get permits for incidental take or unintentional harm to the bats as a result of otherwise lawful activities. These processes should begin as soon as possible to keep projects from being delayed even further. If take cannot be avoided, developers may still need to go through the permitting processes in Section 7 or Section 10 of the Endangered Species Act.
The USFWS’s northern long-earned bat website, www.ws.gov/midwest/nleb, includes a wealth of information about the species, the listing, the 4(d) rule and more.
Doug Stewart is a senior principal and professional wetland scientist/ecologist at Stantec. He is the Environmental Services Sector Leader for Midstream Oil and Gas at Stantec. Stewart regularly works with clients to navigate the permitting process and better understand environmental regulations throughout the United States. Contact him at