Working with Indiana and northern long-eared bats in Kentucky
Photo Credit: John MacGregor, KDFWR
Kentucky, like most states, is experiencing significant growth. Projects associated with growth can cause the loss, degradation, and fragmentation of natural habitats as the alteration or development of these formerly natural to semi-natural habitats occur. Examples of such projects include land clearing for development (residential, commercial, industrial, and other), utility line (gas, electric, water, sewer, etc.) construction and maintenance, and road construction and maintenance. Additionally, natural resource activities such as surface coal mining and silviculture (forest management and timber harvest) can result in similar impacts to natural and semi-natural habitats.
These types of impacts have the potential to adversely affect the Indiana and/or northern long-eared bat. Projects proposed in areas where suitable habitat occurs and the Indiana and/or northern long-eared bat is known or assumed to be present require project proponents to determine if potential adverse effects to either species are likely to occur and, if so, how they can avoid, minimize, and/or mitigate for those adverse effects.
If avoidance of all likely adverse effects is not achievable, project proponents must take steps to ensure compliance with the ESA and avoid an illegal “take” of Indiana and/or northern long-eared bats, two federally listed species. “Take” of federally listed species means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” and is prohibited pursuant to section 9 of the ESA. Violations of section 9 can lead to significant civil and/or criminal penalties. In general, project proponents have three primary options:
2. Conducting informal and/or formal consultation under section 7(a)(2) of the ESA
3. Obtaining an Incidental Take Permit pursuant to section 10(a)(1)(B) of the ESA.
Surveying for the Indiana bat and/or Northern long-eared bats in Kentucky
Anyone wishing to conduct surveys for Indiana and/or northern long-eared bats in Kentucky should follow the current survey guidance and have all necessary permits. Surveys to determine probable absence of a species (Indiana or northern long-eared bat) may not be conducted within known habitat for that species. See maps of known habitat for the Indiana bat and northern long-eared bat for additional information.
If an approved survey does not result in the capture of Indiana or northern long-eared bats, the project proponent(s) may assume that the project is not likely to adversely affect the Indiana or northern long-eared bat and request concurrence from the Service under section 7 or proceed without further work/coordination under section 10. If Indiana and/or northern long-eared bats are captured during the survey or assumed to be present, the project is likely to adversely affect the species captured or assumed present and requires additional work/coordination with the Service under sections 7 or 10 to ensure compliance with the ESA.
Range-wide Indiana Bat Guidelines for Surface Mining
Surface coal mining projects in Kentucky are evaluated using the procedures outlined in the Range-wide Indiana Bat Protection and Enhancement Plan Guidelines (July 2009). These guidelines were developed by a team comprised of the U.S. Fish and Wildlife Service, Office of Surface Mining, and a group of Regulatory Authorities representing the Interstate Mining Compact Commission. The purpose of these guidelines is to aid coal mining applicants in understanding the options and protocols associated with assuring compliance with the 1996 Biological Opinion on implementation of the Surface Mining Control and Reclamation Act (SMCRA).
Until such time that NLEB-specific PEP guidelines are developed, the USFWS recommends that applicants address potential adverse effects to the NLEB by utilizing the Rangewide Indiana Bat Protection and Enhancement Plan Guidelines. While the USFWS recognizes that the protective measures in the IN Bat PEP will provide a certain level of protection to the NLEB, applicants should use the definitions of suitable NLEB habitat to evaluate whether or not habitat is present within the project area to minimize the potential for incidental take. Please refer to Appendix H of the NLEB Interim Conference and Planning Guidance http://www.fws.gov/northeast/virginiafield/pdf/NLEBinterimGuidance6Jan2014.pdf for additional information.
Surface mining applicants should refer to these guidelines, the Kentucky Department of Natural Resources, and the Kentucky Field Office when addressing the Indiana bat and NLEB for coal mining projects in Kentucky. Coal mining applicants should also be aware that, when Indiana bat and/or NLEB surveys are being proposed, the most current State survey guidance must be utilized for the survey results to be considered valid. For questions please contact Carrie Allison.
Section 7(a)(2) Consultations
Section 7(a)(2) of the ESA provides a process for the federal agency that is entering into a discretionary action with the project proponent (i.e., providing the authorization, permit, or funding) to consult with the Service. This consultation is designed to address “take” and ensure that the proposed action is not likely to jeopardize the continued existence of the species or result in an adverse modification of designated critical habitat.
Informal consultation with the Service begins when a project proponent submits a biological assessment that concludes that the proposed project will not effect or is not likely to adversely affect threatened or endangered species. If the Service concurs with this determination, informal consultation is concluded and the project may proceed without further coordination. If it is determined that a proposed project is likely to adversely affect threatened or endangered species, the project can be modified such that it is no longer likely to adversely affect threatened or endangered species or the federal action agency can request the initiation of formal section 7 consultation.
Formal consultations determine whether a proposed agency action is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat. They also determine the amount or extent of anticipated incidental take. Formal consultation concludes with the issuance of a biological opinion from the Service that, among other things, includes the incidental take statement and mandatory Reasonable and Prudent Alternatives (if jeopardy is expected) or mandatory Reasonable and Prudent Measures (if jeopardy is not expected). Reasonable and Prudent Measures minimize the impacts of incidental take to listed species. Additional information on section 7 consultations can be found at http://www.fws.gov/southeast/es/consultation.htm
Through a formal, programmatic intra-Service consultation, the Kentucky Field Office (KFO) has developed a streamlined consultation procedure where entities (federal or non-federal) can enter into Conservation Agreements with the KFO that allow Cooperators to gain flexibility in project timing (summer clearing is permissible) with regard to the removal of suitable Indiana and/or northern long-eared bat habitat. In exchange for this flexibility, the Cooperator provides recovery-focused conservation benefits to Indiana and/or northern long-eared bats through the implementation of the minimization and mitigation measures that are set forth in the Conservation Strategy for Forest-Dwelling Bats in the Commonwealth of Kentucky. These Conservation Agreements may be programmatic or project-specific in nature.
If you would like more information on Conservation Agreements, please see the information below or contact our office at 502/695-0468.
2015 Final Biological Opinion
Conservation Strategy for Forest-Dwelling Bats in the Commonwealth of Kentucky
Map of Known Indiana Bat Habitat in Kentucky (.pdf - 1.4mb)
Map of Known Northern Long-eared Bat Habitat In Kentucky (.pdf - 4mb)
Map of Known Forest-Dwelling Bat Habitat in Kentucky (.pdf - 3.7mb)
Incidental Take Permits under Section 10(a)(1)(B)
Section 10(a)(1)(B) of the ESA provides an opportunity for project proponents not receiving federal funding or authorizations to work with the Service under the Habitat Conservation Planning (HCP) process. To obtain an incidental take permit from the Service under section 10(a)(1)(b), the applicant (project proponent) needs to develop a Habitat Conservation Plan designed to offset any harmful effects the activity might have on the species. This process allows the project to proceed consistent with conserving the listed species through the issuance of an incidental take permit. More information on the HCP process can be found at http://www.fws.gov/southeast/es/hcp2.htm.
Northern Long-eared Bat Interim 4(d) Rule
On January 15, 2015, the Service published a proposed rule under section 4(d) of the Endangered Species Act (ESA) for the northern long-eared bat and opened a public comment period on the proposal. Rather than publishing a final 4(d) rule at this time, we published an interim 4(d) rule in conjunction with the final rule to list the northern long-eared bat as threatened. We also opened a 90-day public comment period on the interim rule to gather additional information as we work to refine and finalize the 4(d) rule. The final listing and interim rule published in the Federal Register on April 2, 2015, and the rule went into effect on May 4, 2015.
For all areas within the range of the northern long-eared bat, all purposeful take is prohibited except:
- removal of northern long-eared bats from human structures, and
- actions relating to capture, handling, and related activities for northern long-eared bat by individuals permitted to conduct these same activities for species of bats (for a period of one year).
For areas of the country impacted by white-nose syndrome (such as Kentucky), the measures provided in the interim 4(d) rule exempt take from the following activities:
- 1. forest management practices,
2. maintenance and limited expansion of transportation and utility rights-of-way,
3. prairie habitat management,
4. limited tree removal projects, provided these activities protect known roosts and hibernacula,
as long as these activities include these measures:
- 4a. Activity occurs more than 0.25 mile (0.4 km) from a known, occupied hibernacula.
4b. Activity avoids cutting or destroying known, occupied roost trees during the pup season (June 1–July 31).
4c. Activity avoids clearcuts (and similar harvest methods, e.g. seed tree, shelterwood and coppice) within 0.25 mile (0.4 km) of known, occupied roost trees during the pup season (June 1–July 31).
Additional information on the northern long-eared bat can be found by clicking HERE.
To assist project proponents in applying the measures described above, the USFWS and KDFWR have developed a document containing a map and list of quads that contain known, occupied northern long-eared bat roost trees and hibernacula.