The Impact of Reclassifying the Northern Long-Eared Bat on Home Building

On March 23, the U.S. Fish and Wildlife Service (FWS) published a proposed rule under the federal Endangered Species Act (ESA) to reclassify the “threatened” northern long-eared bat (NLEB) as an “endangered” species. This small species of bat — which once resided across wooded areas covering two-thirds of Canada and the continental United States (see map) — has experienced a rapid population decline over the past six years.

FWS will be accepting public comment until May 23, 2022.

This seemingly innocuous bat could have an outsized impact upon the U.S. residential construction sector’s ability to provide desperately needed building lots. FWS’ proposed rule to reclassify the bat’s status to “endangered” would also require the FWS to withdraw an ESA 4(d) rule for the NLEB (see 50 C.F.R. 17.40(o)) that provides landowners an exemption from the ESA’s otherwise strict “take” prohibition — provided the landowner's activities complied with FWS’ prescribed NLEB conservation measures, which include not removing existing trees within:

• A quarter mile of known winter hibernation caves (i.e., hibernacula), or
• A 150-foot (45-meter) radius from a known NLEB maternity roost tree, during the pup season (June 1 through July 31).

The agency’s rationale for protecting NLEB populations is not due to manmade impacts, such as habitat loss or destruction, but rather the impacts of a highly communicable disease known as white-nose syndrome (WNS). FWS estimates WNS is the primary culprit influencing NLEB population decline of more than 90% over the past 10 years.

In 2016, FWS also finalized a range-wide programmatic Section 7 consultation to authorize activities impacting NLEB habitats that also require a federal permit (e.g., a federal wetland permit under the Clean Water Act) or receipt of federal funds. The ESA prohibits federal agencies from authorizing or funding any activity that the FWS determines may jeopardize the continued existence of a species, or destroys a species’ critical habitat, unless that activity has been authorized by the FWS under the ESA’s Section 7 consultation process.

ESA’s Section 7 regulations afford federal agencies and FWS more than 135 days to complete the Section 7 consultation process, but the process can be plagued with delays of six months or longer for an individual activity. However, under the NLEB programmatic Section 7 consultation, a land development activity requiring a federal wetlands permit could be authorized within 30 days or less, provided it obeys the conservation measures under the NLEB 4(d) rule.

If FWS reclassifies the NLEB as an “endangered” species, the NLEB 4(d) rule that exempts certain private land clearing activities from the ESA “take” prohibitions will disappear. However, FWS’ reclassification does not necessarily mean FWS will no longer utilize the streamlined programmatic Section 7 consultation process.

FWS is hosting a virtual meeting to discuss the proposed NLEB reclassification on April 7, 2022, from 7:30– 8:30 p.m. EST. NAHB members interested in attending this virtual FWS hearing must pre-register.

For more information about FWS’ proposed action concerning NLEB, contact Mike Mittelholzer, assistant vice president of environmental policy.