The January 2016 listing of northern long-eared bats (Myotis septentrionalis) as federally threatened and the continued evolution of regulatory management practices for protecting federally endangered Indiana bats (Myotis sodalis) both require early attention in the commercial planning and development process. Both of the species rely heavily on trees for feeding, roosting and reproduction. Any proposed commercial real estate project within their known range that involves the removal of trees, including clearing for new development, faces new restrictions on how, when and what type of trees can be cleared. Regarding northern long-eared bats, the final 4(d) rule became effective February 16, 2016, and limits tree clearing within a 150-foot radius of known maternity roosts between June 1 and July 31 (pup season) as well as tree clearing within a quarter-mile of a known hibernacula, caves or abandoned mines where the bats hibernate in the winter.
The United States Fish and Wildlife Service (USFWS) has at least one field office in every state across the country. Each field office may take a different approach to interpreting the Endangered Species Act (ESA) as it relates to federally listed bats. A factor that may influence their interpretation of the ESA may include the locality of that USFWS office within the range of certain bat species; i.e., whether they are located in core areas of the range of certain bat species or located along the fringe of the range. Tree-clearing restrictions can vary from state to state, and this factor alone can significantly impact project schedules. Other habitat restrictions, such as stream corridors and foraging habitat, also have been applied even when roosting habitat has been found not to exist.
Some states where the ranges of both bat species overlap, such as Ohio, require the assumption of presence of both species within most forested areas containing trees that are of three-inch diameter at breast height (DBH) or greater, even though the requirement for Indiana bat-suitable habitat is a five-inch DBH or greater. A mist-net survey is typically required to prove probable absence for both species. While both species are technically regulated differently and the decline has been attributed to unrelated causes in northern long-eared bats, both species are often lumped together; as such, the worst-case scenario of a winter tree-clearing restriction between April 1 and September 30 is applied. If commercial real estate developers cannot adhere to the winter tree-clearing restrictions due to schedule constraints, then a mist-net survey, which typically can only be conducted between June 1 (or sometimes as early as May 15) and August 15, must be completed to prove the bats do not likely inhabit a given woodlot, regardless of the size of the woodlot.
In Kentucky and Tennessee, trees can be cut any time of the year in most cases, though sliding-scale fees based off of proposed cutting dates are applied. However, the USFWS in Kentucky has temporarily suspended this program in order to evaluate it further, but still allows voluntary use of sliding-scale fees in the interim.
West Virginia – a state on the fringe of the Indiana bat range – allows up to 17 acres of trees to be cut without needing to conduct a mist-net survey or perform mitigation. If a commercial real estate developer plans on removing greater than 17 acres of forested habitat, a mist-net survey must be performed or a conservation plan must be completed even to clear trees between October and March.
Other state-specific restrictions can apply to the above examples, so it is important to understand how each USFWS field office interprets tree-clearing limits and time-of-year restrictions. It is prudent to coordinate with individual USFWS offices to gather known presence information as it pertains to your project and to understand any local nuances relating to the office’s interpretation of the ESA. Typically, all states prohibit the cutting of known Indiana bat maternity roosts, which are trees that harbor pregnant female bats and/or their young during the summer, or any trees within a 2.5-mile radius of such a tree at any time of year.
Endangered species assessments should be included as part of the due diligence of any development project. Proper planning related to federally listed bat species is especially important given the time-of-year restrictions relating to tree clearing and bat surveys. Project planning and timely consultation with the local USFWS field office is critical to avoiding unplanned construction delays.
Article by William T. Acton and Ryan A. Slack. William T. Acton is the Vice President for Civil & Environmental Consultants, Inc and is based in Worthington, Ohio. Ryan A. Slack is the Senior Project Manager for Civil and Environmental Consultants, Inc and is based in Indianapolis, Indiana.
William T. Acton is a Vice President and Ecological Practice Lead in Civil & Environmental Consultants, Inc’s Columbus, Ohio office. He has over 20 years’ experience in real estate due diligence, site selection, environmental policy and compliance. His primary practice area is surface water and endangered species issues for clients in the real estate development, mining, power, and oil and gas exploration, production and distribution industries.