By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA
ARTBA July 1 restated objections to the U.S. Fish and Wildlife Service (FWS) applying federal Endangered Species Act (ESA) protections to the long-eared bat.
ARTBA’s comments follow an initial filing made with FWS on March 17, after which FWS issued an “interim rule” listing the bat as “threatened.” Under the ESA, once a species is listed, “critical habitat” provisions take effect, restricting a variety of activities – such as transportation construction – on any area the agency deems necessary to for an endangered or threatened species to subsist. While the interim rule did make some concessions for transportation construction activities occurring within a pre-existing right-of-way, ARTBA noted placing the long-eared bat under ESA protection activates a “critical habitat” encompassing 37 states.
FWS’s main concern is a condition known as “white nose syndrome.” While this disease has caused a significant impact on the long-eared bat’s population, it has not been linked to any specific type of human activity. Rather than place a majority of the United States under “critical habitat” restrictions, ARTBA instead asked FWS to rescind the listing of the long-eared bat and devote more study to the causes of “white nose syndrome” before enacting overly broad regulation. Such an approach, ARTBA noted, could lead to a more targeted action justifying a less expansive amount of “critical habitat.”