Working with Indiana 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 bat. Projects proposed in areas where suitable habitat occurs and the Indiana bat is known or assumed to be present require project proponents to determine if potential adverse effects to Indiana bats 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 bats, a 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 in Kentucky
Anyone wishing to conduct surveys for the Indiana bat in Kentucky should follow the current survey guidance and have all necessary permits. Surveys to determine probable absence may not be conducted within known Indiana bat habitat (link to map). For questions regarding bat surveys, contact Mike Armstrong (USFWS) or Brooke Hines (KDFWR).
If an approved survey does not result in the capture of Indiana bats, the project proponent(s) may assume that the project is not likely to adversely affect the Indiana bat and request concurrence from the Service under section 7 or proceed without further work/coordination under section 10. If Indiana bats are captured during the survey or assumed to be present, the project is likely to adversely affect the Indiana bat 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). Surface mining applicants should refer to these guidelines, the Kentucky Department of Natural Resources, and the Kentucky Field Office when addressing the Indiana bat for coal mining projects in Kentucky. Coal mining applicants should also be aware that, when an Indiana bat survey is a suitable option, 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 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 the Indiana bat, the project can be modified such that it is no longer likely to adversely affect 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 bat habitat. In exchange for this flexibility, the Cooperator provides recovery-focused conservation benefits to the Indiana bat through the implementation of the minimization and mitigation measures that are set forth in the Indiana Bat Mitigation Guidance for 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.
- Final Biological Opinion (PDF)
- Indiana bat Mitigation Guidance for Kentucky – updated (PDF)
- Map of Known Indiana bat Habitat in KY (PDF)
- Example of a project specific Indiana bat Conservation MOA
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.