On January 13, the U.S. Fish and Wildlife Service (Service) released its Final 4(d) Rule for the Northern Long-Eared Bat (Final Rule). The Final Rule greatly expands upon the scope of the interim 4(d) rule that the Service issued in connection with the initial listing of the northern long-eared bat (NLEB) as “threatened” under the Endangered Species Act (ESA) in April 2015. It provides authorization for incidental take of NLEB to all manner of commercial and industrial projects within the species’ range, subject to certain buffers from known occupied hibernacula and roost trees within areas affected by white nose syndrome. The Final Rule is a welcome development for the energy industry as it may alleviate the onerous ESA permitting burden that would otherwise apply to many projects within the 37-state range of the species. However, despite the considerable breadth of the protections offered by the Final Rule, there are other factors that energy developers should consider before deciding to abandon ongoing permitting efforts or push forward with new developments in the NLEB’s range without seeking individual permit coverage or at least consulting with the Service regarding the potential impacts of a project. This QuickStudy will explain the provisions of the new rule briefly, and highlight some of the considerations that should be accounted for in development and permitting decisions in light of the Final Rule.
Section 9 of the ESA prohibits take of a listed species without authorization. The Final Rule, issued pursuant to section 4(d) of the ESA, provides broad authorization for incidental take of NLEB except in certain areas and seasons. The Service purposefully crafted the Final Rule to focus on the principal reason for the species’ decline: white-nose syndrome (WNS), a disease caused by a fungus which affects bats in the caves and other structures in which they hibernate and is responsible for the rapid and widespread decline in populations of NLEB and other cave-hibernating bats across much of the eastern half of the U.S. The Final Rule designates all counties in which WNS has been detected as the “WNS zone.” To account for the spread of the fungus from year to year, the WNS zone also includes a 150-mile buffer around each county on the perimeter of the zone.
Outside the WNS zone, the Final Rule provides blanket authorization for incidental take of NLEB, with no requirement for surveys or consultation with the Service. The Service justified this authorization by noting that regulating incidental take outside the WNS zone would not influence the future impact of the disease throughout the species’ range or the status of the species, and thus is not necessary or advisable for the protection and recovery of the species.
Within the WNS zone, the Final Rule authorizes incidental take except from the following activities:
Outside of these specific, narrow circumstances, incidental take of NLEB is not prohibited. Thus, incidental take occurring due to collision of NLEB with wind turbine blades, or the clearing of trees (including known roost trees) for construction of a transmission line or pipeline outside of the pup season, as just a couple of examples, is not prohibited.
With such expansive authorization, it may be tempting to treat NLEB almost as if the species is not listed. After all, the Final Rule imposes no specific requirement to perform surveys, to implement minimization measures, to perform post-construction monitoring, or to mitigate for any incidental take that does occur. However, there are a number of caveats that developers must be cognizant of to avoid potentially costly situations or legal predicaments in the future.
First, it is a virtual certainty that one or more environmental or wildlife organizations will challenge the Final Rule or the “threatened” listing itself in court. The Service’s biological opinion supporting the Rule appears to be well-reasoned, and its administrative process sound. Nevertheless, a successful challenge to the Final Rule is possible and could lead to its vacatur or withdrawal, leaving incidental take prohibited entirely or limiting the scope of activities exempted from the take prohibition. Likewise, a successful challenge to the listing decision that resulted in the species being listed as endangered rather than threatened would render the Final Rule invalid, as 4(d) rules can authorize incidental take only for threatened and not endangered species. Developers should consider these possibilities before deciding not to pursue an incidental take permit (ITP) for their project. While most companies will likely decide that the litigation risk alone does not warrant the time, effort and expense involved in developing a habitat conservation plan (HCP) necessary to obtain an ITP, those that are already working on an HCP may find it worthwhile to continue that effort.
Second, and perhaps more likely, is the possibility that the Service may uplist the species from threatened to endangered at some point in the future. The ESA requires the Service to conduct five-year reviews of listed species, with the first review of NLEB due to be performed in 2020. If WNS has continued to progress, and the species continued to decline, the Service may deem it necessary to raise the status of NLEB to endangered, which would also have the effect of rendering the protections of the 4(d) rule invalid.
The Service has stated on several occasions, most recently in the teleconference presenting the Final Rule to industry on January 14, that in any of these circumstances it is likely to exercise prosecutorial discretion in the event an unauthorized, incidental take is committed by a company that has been pursuing an ITP or continuing consultations with the Service. On the other hand, companies that have not been engaged with the Service are unlikely to receive the benefit of such discretion in the event that an incidental take does occur.
Aside from a change in the Final Rule or the status of the species, there are other considerations that may lead a developer to pursue an individual ITP for a project, even where coverage is currently available under the Final Rule. If a project is located within the range of the endangered Indiana bat, which overlaps a large portion of the NLEB range (predominately in the Midwest), then an ITP may be necessary to address the risk of incidental take of Indiana bats. In such cases it is often possible to include NLEB in the HCP and ITP with marginal additional effort or expense. Doing so can provide cost and operational certainty over the full term of the ITP and operational life of the Project, since an ITP will contain “No Surprises” assurances that protect the permittee against increased costs or commitments in the event of future unforeseen circumstances. In contrast, the conditions or applicability of the Final Rule could change at any time, and if and when that happens it may be significantly more difficult and expensive to maintain eligibility for a revised 4(d) rule or obtain an individual ITP.
Developers must also be mindful of the requirements of state law. Many states protect the NLEB under their own state wildlife laws and may require a state permit for incidental take. If the state does not adopt or defer to the Service’s Final Rule, then a state permit may still be required. Depending upon the requirements to obtain a state permit, and/or to comply with other state measures such as Pennsylvania’s Voluntary Cooperative Agreement or various states’ NEPA processes, it may be preferable or worthwhile to obtain a federal ITP.
Finally, while the Final Rule does not impose any pre-construction survey, post-construction monitoring, minimization, adaptive management or other requirements typical of an HCP and ITP, best management practices (BMPs) for the developer’s industry may call for such measures. For example, the Land-Based Wind Energy Guidelines (WEGs) jointly developed by the Service and the wind industry do call for pre- and post-construction surveys, and the recent voluntary BMPs announced by the American Wind Energy Association call for feathering of turbine blades below applicable cut-in speeds. These BMPs and the WEGs have applicability beyond the NLEB and remain relevant despite the Final Rule. To the extent a developer will be implementing such measures at a project, it should consider whether the additional commitments that would be necessary to obtain an ITP are warranted in light of the additional cost. In certain circumstances the value of the certainty provided by an ITP may be worth the additional cost, particularly if favorable terms for NLEB permit coverage can be negotiated in light of the availability of the Final Rule.
While reliance on the Final Rule is likely to make sense for a majority of projects and developers, as favorable as it may be it is not a universal solution, and reliance on the Final Rule does entail risk associated with future changes in the Final Rule itself, the status of the species, or both. This is particularly true for developers that intend to own and operate a project long-term rather than build it and flip it. As a result, developers would be wise to consult with their environmental attorneys and consultants to consider the project-specific risks, benefits and potential alternatives rather than simply assuming that reliance on the Final Rule is the best option for a particular project.