Some interpretations of 4(d) rule are just Bat Shit Crazy!0
Six weeks after the U.S. Fish and Wildlife Service listed the Northern Long-Eared Bat as a Threatened species and drafted a temporary 4(d) rule which would theoretically exempt agriculture and forestry activities from punishment under the Endangered Species Act for “incidental take”, a handful of Federal agencies have adopted a perverted interpretation of said 4(d) rule in regard to summer timber harvesting. This is a HUGE DEAL because several other bat species are also susceptible to the same syndrome which is effecting the NLEB, and will be considered soon for listing by The Service. This cannot become the Law of the Land!
This summary was prepared by Jasen Stock, Executive Director of New Hampshire Timberland Owners Association (NHTOA), and approved by the legal department of National Association of Forestland Owners (NAFO).
In April the US Fish and Wildlife Service (FWS) listed the Northern Long Ear Bat (NLEB) a threatened species under the federal Endangered Species Act (ESA). Its population is down due to a fungal disease it contracts while hibernating – white nose syndrome. This bat hibernates in caves during the winter and roosts in trees during the summer. June and July are particularly sensitive months as the mother bats and their pups roost in trees. To allow certain land management activities to continue the FWS adopted a temporary “4(d) rule”. This rule, which the ESA allows to accompany a threatened listing, is open for comment until July 1. Also worth noting, a national group, the Center for Biological Diversity, is challenging this rule in D.C. District court – it is not clear what impact this may have on the rule.
A 4(d) rule is designed to determine how activities may be conducted without being considered a prohibited “take” under the ESA. Here, this rule would conclude that timber harvesting beyond ¼ mile of a hibernacula (there are 13 in NH) or known roost trees (there are 2 in NH) would not be considered a take of any bats. Within the ¼ mile zone “take” could occur unless certain restrictions are followed. The link below has more details on how the 4(d) rule will regulate timber harvesting. The concern is what is “known”. Because these bats can roost in any tree greater than 3 inches in diameter and the FWS has designated the entire state a NLEB buffer zone, that means any tree could have a bat in it. One recommendation is to have landowners contact the FWS before doing any tree cutting on their property to protect themselves. If land managers follow this rule they will protect themselves from being liable for a “take” (i.e. kill, harass, injure). If private, state or federal landowners don’t follow the rule and a bat is taken, the landowner could face severe penalties.
Unfortunately, the FWS has not been clear on how to work with the 4(d) rule. To make matters worse, other Federal agencies are interpreting the 4(d) rule in different ways. This is creating a lot of confusion. The US Department of Agriculture’s Natural Resource Conservation Service (NRCS) in particular, is taking an unnecessarily restrictive approach. Any NRCS-funded projects where tree cutting occurs (e.g. habitat management, timber stand improvement, early successional habitat creation, trail and log landing improvements, food plot installation, etc.) has a moratorium on it from April 15 until August 15 (recall, according to the FWS the critical months are June and July and only with the ¼ mile area). This will impact 200 landowners across the state and 500 practices. Ironically, the very programs designed to help improve land stewardship and wildlife habitat are being hung up because of a species health problem that has nothing to do with timber cutting. In addition, the Fish and Wildlife Service, in the preamble to the rule, recognized forest management as a key to the conservation of this bat species and yet NRCS has stopped all forest management from taking place.
The NHTOA is urging you to contact the NH Congressional Delegation to make them aware of this problem and urge FWS and the NRCS to allow more reasonable forest and wildlife management to occur.
CALL YOUR ELECTED OFFICIALS from your State! Help us stop the madness!