By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA

The U.S. Fish and Wildlife Service (FWS) issued final regulations Jan. 14 applying federal Endangered Species Act (ESA) protections to the long-eared bat. FWS’s main concern is a condition known as white-nose syndrome, which  has caused a significant impact on the long-eared bat’s population.  However, the disease has not been linked to any specific type of human activity. 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.

In two sets of comments submitted on March 17 and July 1 of last year, ARTBA urged 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 placing most of the country under “critical habitat” restrictions.  Such an approach, ARTBA noted, could lead to a more targeted action justifying a less expansive amount of “critical habitat.”

In a partial victory for transportation construction, the final regulation does grant some concessions for transportation construction activities occurring within a pre-existing right-of-way, even if that right-of-way is within “critical habitat.”

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