U.S. Fish and Wildlife Service (USFWS) 4(d) Rule Effective February 16, 2016
USFWS has issued its final 4(d) rule of the Endangered Species Act regarding conservation measures for the threatened Northern Long-eared Bat (NLEB).
Understanding the rule, collecting the right data, and coordinating with the correct agencies can help avoid project delays and additional costs. Our professionals are ready and able to help you analyze the new NLEB requirements.
What you need to know:
• Applicants need to apply due diligence regarding the Final 4(d) rule, but the process is more straightforward than the interim rule.
• Applicants need to contact their local natural heritage organization for the latest hibernacula and maternity roost tree information. Note that hibernacula locations are geographically isolated and the vast majority of projects will not be located near one. Current maternity roost tree information is limited, however, their presence would only create tree-clearing restriction during the months of June and July.
• Projects with no federal action (e.g., 404 Permit) that meet the USFW distance criteria regarding hibernacula and maternity roost trees may proceed without required permits or consultation.
• Federal actions, such as a Section 404 Permit, still require the federal agency to consult with the US Fish and Wildlife Service under Section 7 of the Endangered Species Act if the federal agency determines that the proposed project may effect NLEB. The new streamlined process has a 30-day review period. Some federal agencies, such as the New England District of the Army Corps of Engineers, will not be requiring voluntary conservation measures, such as acoustic surveys, if there are no hibernacula or known maternity roost trees nearby.
• For non-delegated NPDES states (Massachusetts and New Hampshire), construction NPDES stormwater permits constitute a federal action and will require some type of consultation between EPA and USFWS. VHB is currently consulting with EPA to understand how they plan to handle this, so we can advise our clients of the best compliance strategies.
Our team can:
- Determine if your project activities are subject to the final 4(d) rule
- Conduct bat presence or absence surveys, including acoustic surveys
- Perform desktop or field based habitat assessments
- Analyze the new NLEB requirements and develop strategies to keep your project moving forward
- Advise on time-of-year restrictions or other mitigation strategies, as well as coordinate with the USFWS' local office
What types of projects does this rule apply to?
The rule applies whether or not a project has federal funding or permitting, so even privately funded projects must comply even if no other federal permit is required.
Impacted projects include: transportation, utility, land development, and even simple tree removal-related efforts.
The shaded area below shows the range of the northern long-eared bat in relation to our VHB offices.
Photo Credit: By Ann Froschauer/USFWS (Own work)
[CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)],
via Flickr (https://www.flickr.com/photos/usfwshq/5880926692/)