Project review and protected bats in Kentucky
Development activities such as land clearing, utility line construction and maintenance, and road construction and maintenance can cause the loss, degradation, and fragmentation of natural habitats. Additionally, activities such as surface coal mining and forest management and timber harvest can have similar impacts. Such impacts have the potential to adversely affect the Indiana or northern long-eared bat.
Projects proposed in areas with 1) suitable habitat for these two bat species and 2) either of these species is present or assumed present require project proponents to determine if adverse effects to either species are likely and, if so, how they can avoided, minimized, or mitigated.
If avoiding all likely adverse effects isn’t possible, project proponents must take steps to ensure compliance with the Endangered Species Act by avoiding an illegal “take” of Indiana or northern long-eared bats, both protected animals. “Take” of federally threatened or endangered animals 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 under Section 9 of the Endangered Species Act (ESA). Violations can lead to civil and/or criminal penalties. In general, project proponents have three primary options:
- Federal agencies can consult with the Service under section 7(a)(2) of the ESA
- When federal agencies are not involved, proponents can pursue an Incidental Take Permit pursuant to section 10(a)(1)(B) of the ESA.
Surveying for the Indiana bat and/or Northern long-eared bat in Kentucky
Anyone wishing to survey for Indiana and/or northern long-eared bats in Kentucky should follow the current survey guidance (below) 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 (below)of known habitat for the Indiana bat and northern long-eared bat for additional information.
Range-wide Indiana Bat and Northern long-eared bat Survey Guidelines
If an approved survey does not reveal Indiana or northern long-eared bats, the project proponent may assume the project is not likely to adversely affect the two species and request concurrence from the Service under ESA or proceed without further work/coordination under ESA Section 10. If Indiana and/or northern long-eared bats are discovered during the survey or assumed to be present, the project is likely to adversely affect the species and requires additional work/coordination with the Service under ESA sections 7 or 10 to ensure compliance.
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 (below). These 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. These guidelines 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 northern long-eared bat –specific protection and enhancement guidelines are developed, the Service recommends applicants address potential adverse effects to the northern long-eared bat by using the range-wide Indiana bat protection and enhancement plan guidelines.
While the Service recognizes this will provide a certain level of protection to the northern long-eared bat, applicants should use the definitions of suitable northern long-eared bat habitat to evaluate whether 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 (below) 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 northern long-eared bat for coal mining projects in Kentucky. Coal mining applicants should also be aware that when Indiana bat and/or northern long-eared bat surveys are proposed, the most current State survey guidance must be used for the survey results to be considered valid.
Section 7(a)(2) Consultations
Section 7(a)(2) of the ESA provides a process for the federal agency entering into a discretionary action with the project proponent (i.e., providing the authorization, permit, or funding) to consult with the Service. This is designed to address “take” and ensure the proposed action won’t jeopardize the existence of the species or adversely modify its 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 affect or is not likely to adversely affect threatened or endangered species. If the Service concurs with this determination, informal consultation concludes and the project may proceed without further coordination. If it’s determined that a proposed project is likely to adversely affect threatened or endangered species, the project can 1) be modified such that it’s no longer likely to adversely affect threatened or endangered species or 2) the federal agency can request formal section 7 consultation.
Formal consultation determines whether a proposed agency action is likely to jeopardize the existence of a listed species or adversely modify critical habitat. It also determines the amount or extent of anticipated incidental take. Formal consultation concludes with the issuance of a biological opinion from the Service that includes a statement of the amount of permitted incidental take 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.
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 Service allowing 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 set forth in the Conservation Strategy for Forest-Dwelling Bats in the Commonwealth of Kentucky (below). 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.
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 project proponent develops a Habitat Conservation Plan to offset harmful effects the activity might have on the species.
Tailored protections for the northern long-eared bat
The northern long-eared bat was listed as a threatened species under the ESA in 2015. The Service also established a special rule under section 4(d) of the ESA, tailoring protections for the bat. For all areas within the range of the northern long-eared bat, all purposeful take is prohibited except:
- In defense of human life, including for public health monitoring.
- Removal from human structures, but only if the actions comply with all applicable state regulations. Removal recommendations include: minimize use of pesticides (e.g., rodenticides) and avoid use of sticky traps as part of bat evictions/exclusions; conduct exclusions during spring or fall unless there is a perceived public health concern from bats present during summer and/or winter; contact a nuisance wildlife specialist for humane exclusion techniques.
- Removal of hazardous trees for protection of human life and property.
For areas of the country impacted by white-nose syndrome (such as Kentucky), the measures provided in the ESA 4(d) rule exempt the following activities from take:
- Forest management practices,
- Maintenance and limited expansion of transportation and utility rights-of-way,
- Prairie habitat management,
- Limited tree removal projects, provided these activities protect known roosts and hibernacula,
As long as these activities include these measures:
- Activity occurs more than 0.25 mile (0.4 km) from a known, occupied hibernacula.
- Activity avoids cutting or destroying known, occupied roost trees during the pup season (June 1–July 31).
- Activity avoids clearcuts (and similar harvest methods, e.g. seed tree, shelterwood and coppice) within 150 feet (45.72 m) of known, occupied roost trees during the pup season (June 1–July 31).