This article discusses regulations surrounding the protection of the Northern Long-Eared Bat, which has been threatened by White-nose Syndrome. Initially, the U.S. Fish and Wildlife Service proposed restrictions that concerned the construction industry. However, the final 4(d) rule eased burdens, specifying that only projects removing over an acre of forest in certain counties require review. For most of Maryland, construction can proceed unrestricted outside of known bat habitat areas. Within habitat areas, tree removal is prohibited during certain periods, though hazard tree removal is allowed. Landowners no longer need to survey for bats.

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Going Batty Over Rare Species
by Andrew Der
What do bats with White-nose Syndrome (WNS) have in common with construction projects? Some found
out the hard way when proposing clearing of forest that could be home to these WNS infected and federally
protected, bats. With recent new regulatory criteria, the good news now for the development industry is not
to worry too much about it in most of Maryland.
According to the U. S. Fish and Wildlife Service (FWS), WNS had gradually rendered the Northern Long-
Eared Bat (NLEB) species threatened, affording them interim protection measures last year when particular
regulatory approvals for construction work are triggered.
So, what is really going on? WNS is a potentially lethal disease caused by a white fungus that grows around
bat muzzles during hibernation. First documented in 2006-2007, WNS has spread across the bat populations
in the eastern United States and Canada producing a wake of odd bat behavior.
Early FWS initiatives to propose the rst restrictions to construction activity were initially viewed by some in
the development industry as a technically unsubstantiated regulatory over-reaction that failed to follow
mandatory public interest noti cation processes.
At that time, many construction projects needing a joint U. S. Army Corps of Engineers/Maryland
Department of the Environment Section 404 and Tidal/Nontidal Wetlands and Waterways Permit, or any
other authorization triggering federal species coordination, were going to potentially need additional
screening and time of year construction restrictions.
This potentially included bat habitat eld surveys, even if hundreds of miles away from known habitat – and
could have also retroactively applied to an already permitted project if construction impacts not yet
occurred.
Yikes.
In response to the panicked regulated construction industry, the FWS can be commended for reconsidering
their initial approach leading to what became the interim April guidance (declaring it a threatened species
under the Endangered Species Act Interim 4(d) Rule), which most in the industry could live with. The interim
guidance speci ed that only projects with forest clearing over an acre west of the Chesapeake Bay were
subject to potential review from the FWS Chesapeake Bay eld of ce in Annapolis. If under an acre of forest
impact was expected, then no FWS review would be needed if the forest cleared was in: urban woodlots in
industrial and commercially developed areas or high density residential areas; apple orchards; tree nurseries;
pine plantations; and Christmas tree farms. And if any permanent tree clearing was done outside of the
period of April 15 to August 30, then no restrictions applied.

2. 3/13/2019 Going Batty Over Rare Species » Straughan Environmental
http://www.straughanenvironmental.com/going-batty-over-rare-species/ 2/2
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While one could initiate the screening process themselves online with a follow-up to FWS eld of ce staff if a
triggering event occurs, terms such as “urban woodlots in industrial and commercially developed areas or
high density residential areas” are still subject to human interpretation and technical judgment.
In January 2016 the FWS released its nal 4(d) rule for the NLEB species– which further eased the on-the-
ground regulatory burden. Although agencies are still re ning the implications of the nal rule, the short
version is that construction activities can proceed unrestricted in locations outside of the known NLEB
habitat locations, which covers most of Maryland. Currently only Garrett, Allegany, and Washington
Counties in Maryland and New Castle County, Delaware are known to have NLEB species habitat.
So, where does that leave a project actually in one of these counties, or in any another area where NLEB
species are newly discovered? That too will be vetted through FWS consultation but for now tree removal is
prohibited: within 0.25 miles of hibernating habitat (caves); when known to be a maternity roost nest; or if
trees are within 150 feet of such roost trees June 1 through July 31. Hazard tree removal for the protection
of human life and property is allowed.
Most signi cant to the regulated public is neither landowners or permit applicants need to conduct surveys
to determine the bat’s presence on the property. Agencies such as the Corps and FWS will rely on data and
assessment efforts from the states’ natural heritage database for regulatory guidance as well as to interpret
some of the numerous ongoing debates and subjective issues.
Stay tuned – same bat time, same bat channel.
©2019 Straughan Environmental.
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