USFWS Issues Final 4(d) Rule for Northern Long-Eared Bat – Allows Broader Incidental Take Than Interim 4(d) Rule.

The U.S. Fish and Wildlife Service (“USFWS”) provided notice today that it has finalized its 4(d) Rule for the Northern Long Eared Bat (“NLEB”).  The NLEB was listed on April 2, 2015, (80 FR 17974) as Threatened due to White Nose Syndrome; a 4(d) Rule allows incidental take under certain circumstances.  The interim 4(d) rule limited tree clear activities – allowing incidental tree clearing only for forest management and expansion of existing right-of-ways and only under certain circumstances.  The Final 4(d) Rule is no longer industry limited.

The Final 4(d) Rule defines a White Nose Syndrome Zone (“WNS Zone”), an area that will be updated on the first of each month on the USFWS website - it will be a wide area currently covering much of the east coast and midwest, including Ohio.  Within this WNS Zone, incidental take is prohibited only if:

1. actions result in the incidental take of northern long-eared bats in hibernacula;
2. actions result in the incidental take of northern long-eared bats by altering a known hibernaculum’s entrance or interior environment if the alteration impairs an essential behavioral pattern, including sheltering northern long-eared bats; or
3. tree removal activities result in the incidental take of northern long-eared bats when the activity either occurs within 0.25 mile (0.4 kilometer) of a known hibernaculum, or cuts or destroys known, occupied maternity roost trees or any other trees within a 150-foot (45-meter) radius from the maternity roost tree during the pup season (June 1 through July 31).

Thus, incidental take attributable to maintenance, development, and rights-of-way (including new and expanded right-of-ways) is not prohibited by this Final 4(d) Rule, provided the conservation measures contained in the Rule are followed.