On January 14, 2016, the Fish and Wildlife Service finalized a rule exempting certain types of "take" of northern long-eared bats from the requirement to obtain an incidental take permit, pursuant to Section 4(d) of the Endangered Species Act. In the final rule, the Service has made all incidental (as opposed to purposeful) take exempt from the permitting requirement unless it is caused by tree removal (a) that occurs within a 0.25 mile buffer around known occupied northern long-eared bat hibernacula or (b) that cuts or destroys known occupied maternity roost trees, or any other trees within a 150-foot (45-m) radius around the maternity roost tree, during the pup season (June 1 through July 31). The obligation to obtain an incidental take permit for tree removal in the vicinity of occupied habitat only applies in an area designated as the "white nose syndrome buffer zone," the area of the country in which the bats have been affected by the incurable disease white nose syndrome ("WNS"). As with the provisional 4(d) rule released last April, all incidental take outside of the WNS buffer zone is exempt.
The types of incidental take that the Service has exempted extend to takes caused by wind energy generating facilities due to turbine strikes. Yet, this exemption comes with certain obligations; the Service clarified that the reason it has decided not to require incidental take permitting for wind energy facilities that could impact the bat is because "the wind industry has recently published best management practices establishing voluntary operating protocols, which they expect 'to reduce impacts to bats from operating wind turbines by as much as 30 percent . . . . [W]e anticipate that these new standards will be adopted by the wind-energy sector and ultimately required by wind-energy-siting regulators at State and local levels." In fact, the Service goes so far as to say that it "recommend[s] that wind facilities adopt these operating protocols."
The Service's issuance of the final 4(d) provides a welcome level of certainty for most of the regulated community and ensures that activities that are not causing the bat's decline are not subject to undue regulation. Yet, by adopting what are otherwise voluntary operating protocols as a condition of exempting takes caused by wind energy facilities, which will require those facilities to curtail production during fall migration season, the final 4(d) rule remains impactful to the growing wind energy industry.
A copy of the final 4(d) rule can be found here.
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