Endangered Species Law & Policy

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.