Common sense claimed a victory this week when the National Fish and Wildlife Service determined that it’s “not prudent” to designate any “critical habitat” within the 32-state range of the endangered northern long-eared bat.
The decision, published in the Federal Register today, brings an end to the latest chapter of the fight to save the bat, which has been decimated by reasons having nothing to do with land development and everything to do with the spread of a disease called white-nose syndrome in their typical nesting and breeding grounds.
It’s important for members to remember the bat is still a federally protected, “threatened” species under the Endangered Species Act.
That means developers and builders cannot undertake otherwise lawful activities if the Service determines that a proposed project may result in the intentional injury, harm or death of a bat.
Furthermore, if the developer needs to apply for a federal permit, such as a wetlands permit, the Service may determine that allowing the development to take place may jeopardize the bat.
To avoid violating the law in areas with northern long-eared bat habitats, builders and developers are urged to comply with FWS NLEB 4(d) rules: specifically, that developers avoid clearing trees within a quarter-mile from where the bats are known to hibernate, or within 150 feet of a known roost tree between June 1 and July 31.
Because the bat uses so many types of trees to roost in during the summer, regulators could make no specific determination of “physical and biological features” that are “essential to the conservation of the species” – a requirement for critical habitat designations which require builders to seek a special permit before beginning any construction or development on a property.
And while bats will find locations such as caves and abandoned mine shafts to spend the winters, designating them as protected areas would only encourage bat enthusiasts to further endanger the animals by pointing out specifically where they roost, regulators decided.
Earlier this year, the National Association of Home Builders helped regulators understand that the restrictions the Service had placed on development – not allowing any within a quarter-mile of a nesting site in the summer – would pretty much shut down all home building from Maine to Montana. But the decision to loosen restrictions and add more flexibility has been met with blowback by environmental groups, who are now likely to challenge this one as well.
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