Challenges of New Indiana Bat Guidance

by Spilman Thomas & Battle, PLLC

The federal Endangered Species Act is designed to prevent the taking of endangered species and imposes a regulatory program geared toward the protection and conservation of federally listed species and their critical habitat. Companies undertaking activities with the potential to impact an endangered species must comply with the ESA, which typically involves such steps as advance planning regarding potential species impacts, a habitat assessment, and consultation with the United States Fish and Wildlife Service and other agencies with regulatory jurisdiction over the project.

One endangered species frequently under review and consultation is the Indiana bat, which still exists in at least 22 states, including those within Spilman’s footprint. These bats hibernate in limestone caves from mid-fall through early spring and roost in wooded or semi-wooded areas in the summer. Maternity colonies are located in crevices under loose tree bark in living or dead trees or in other tree cavities, hollows or crevices. The USFWS considers wooded areas, riparian zones, bottomland and fields or meadows with scattered trees to be foraging habitat for the Indiana bat.

With another construction season around the corner, project planners need to be aware that the USFWS released new “Range-wide Indiana Bat Summer Survey Guidelines” earlier this year. Notably, the Guidance, which replaces the 2007 guidelines, expands the level of work needed for summer surveys. According to USFWS, the new Guidance is “[a]n effort to maximize detection/capture of Indiana bats at a minimum or reasonable level of effort.”

The Guidance sets forth a phased approach for establishing the presence or absence of bats, and adopts additional protocols for data gathering in the event that presence is established. The first phase is habitat assessment. The second phase is presence/absence surveying. This includes both acoustic surveys and mist-netting. The third phase involves mist-netting to capture bats in follow-up to an acoustic survey. The fourth phase involves radio tracking and emergence surveys in follow-up to a determination of presence. Further, multiple steps are outlined within each phase, depending upon findings and assumptions made about the presence of Indiana bats. All this work is to be conducted between May 15 and August 15.  

Some may disagree with the balance struck by USFWS in its new Guidance. Many commenters on the Guidance were critical of the inclusion of acoustic surveys, questioning both the sufficiency of acoustic surveys from a technical standpoint and the need for such surveys in the place of mist-netting, which is a widely accepted survey method. Many consider acoustic surveys to be a still-developing and not-yet-reliable technology. Nevertheless, the agency included acoustic surveys as a primary element of the new guidelines. The USFWS also has expanded significantly the requirements for presence/absence surveys. When undertaking mist-netting, for example, at least six net nights per 0.6 miles of suitable habitat are required, whereas the prior guidelines required only one net site per 0.6 miles of stream corridor. For an acoustic survey, acoustic detectors must be employed for the entire night for two nights for every 0.6 miles of suitable habitat. Under the prior guidelines, of course, acoustic sampling was not required and was not universally accepted as being reliable.  Added to these expanded work elements are a number of logistical implementation concerns stemming from the various timing, location and monitoring requirements included in the Guidance. Notably, USFWS has defined Indiana bat habitat so broadly that most undeveloped land within the range would be included. 

When consultations with USFWS can already take an extended period, the added workload anticipated due to the new Guidance is problematic. Indeed, staff from the West Virginia Department of Environmental Protection commented on the guidance and pointed out the anticipated “tremendous workload for the field offices.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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