The United States Environmental Protection Agency (U.S. EPA) and United States Army Corps of Engineers (U.S. ACE) proposed a new definition of “Waters of the United States” (WOTUS) on December 11, 2018. The significance of this proposal is that WOTUS are the waters that these agencies regulate under Section 404 of the Clean Water Act (CWA).
The proposal defines WOTUS as including Traditional Navigable Waters (TNW, which are primarily waters upon which interstate commerce could be conducted), intermittent and perennial streams, ditches, channels that are relocated tributaries, impounded streams, wetlands adjacent to streams, and wetlands that have a direct connection to TNW.
The proposal further defines tributaries as excluding ephemeral streams, which are those that only flow during heavy rainfall events. This is likely the most significant part of the rule that will be challenged and is a rollback of the current 2015 federal definition of WOTUS (2015 Rule; see below) and the pre-2015 Significant Nexus standards.
The proposal also seeks to replace the Significant Nexus test with clear, defined categories, making WOTUS easier to determine and not subject to continual legal interpretations. Significant Nexus, a relatively defined and traceable pathway to TNW, had been defined by a United States Supreme Court ruling in 2006 called the Rapanos Ruling. That ruling eliminated federal jurisdiction to regulate isolated wetlands and channels under the CWA. Several clarifications of the Rapanos Rule were later issued, further complicating the definition and interpretation of a Significant Nexus.
The proposal is currently in a 60-day public comment period in which any member of the public can submit a comment and the agencies will consider them. According to the U.S. EPA, the proposal, if finalized, “would apply nationwide, replacing the patchwork framework for Clean Water Act jurisdiction that has resulted from litigation challenging the 2015 Rule. The proposal would also re-balance the relationship between the federal government, states, and tribes in managing land and water resources.”
The current federal definition of WOTUS, enacted August 28, 2015 by the Obama Administration (2015 Rule), essentially includes all channels, wetlands, and ponds that are within 100 feet of a “tributary” to a TNW, or within 1,500 feet of TNW water itself. “Tributaries” are broadly defined and often include discontinuous channels, drainage swales, and any wetland or water body located in a 100-year flood plain. This definition often extends jurisdiction over excavated ditches and other areas that were considered uplands prior to the 2015 Rule. WOTUS could include areas that were determined to contribute to downstream flow, retention, and even nutrient recycling, among other inclusive criteria. Prior to the 2015 Rule, these areas were not regulated unless it could be demonstrated that there was a Significant Nexus.
The 2015 Rule has been heavily litigated, with varying rulings issued in several states and on different legal grounds. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the 2015 Rule. Several other court cases moved forward in the meantime, making the rule effective in some states and not in others at varying times. Several rulings were issued and overturned in several courts and states. As of September 18, 2018, the latest ruling was that the 2015 Rule only applied in 22 states throughout the U.S., while the prior definitions applied in the remaining 28 states. This unpredictability has added to the already difficult regulatory hurdles faced by landowners, businesses, and the regulated public. Acquisition due diligence has become increasingly difficult, as it is almost impossible to determine what would be regulated; what the permitting path, if any, may be available; and how long the issue would take to resolve.
These hurdles, combined with other laws such as the Endangered Species Act,1 create significant economic hardships for landowners, farmers, real estate developers, and other businesses and industries. Some of these hardships are halting projects or rendering previously developable or farmable land unusable. As a result, the development and agricultural communities argued that the 2015 Rule was an overreach by the U.S. EPA and U.S. ACE. In light of this regulatory landscape, most industries involved in real estate development agree that a formal definition of WOTUS is needed to create predictability in due diligence. Furthermore, such a definition could help owners or consultants identify WOTUS without government verification and alleviate fear of differing WOTUS opinions by the U.S. ACE after a project has commenced, leading to enforcement actions.
Prior to the 2015 Rule, WOTUS were generally defined in the U.S. ACE regulations adopted under the CWA (33 Code of Federal Regulations Part 328.3). Several guidance documents such as the 1987 U.S. ACE Wetland Delineation Manual, Natural Resources Conservation Service Technical Notes, state-issued rainwater and storm water manuals, and Federal Regulatory Guidance Letters were used to further identify and determine the limits of WOTUS. While these resources shed light on how to identify WOTUS, they did not technically define what WOTUS was or what was regulated and what was not. As a result, most developers sought U.S. ACE verifications of WOTUS opinions, typically with the help of consultants. These verifications are expensive and often take months to obtain. In many parts of the U.S., these verifications can only be conducted during the growing season—the time when plants are not dormant. Combined with clearing restrictions, survey windows, and local permitting, this made legally timing construction activities a difficult proposition, delaying or halting projects and increasing carrying costs.
After the 60-day comment period ends, the most optimistic predictions forecast that the agencies will adopt the new proposal in September of 2019. If history is any indicator, however, the rule will be mired in legal challenges and politics. In the meantime, the 2015 Rule applies in 22 states and the prior standard applies in the 28 remaining states. Landowners and developers should exercise caution when acquiring property and add extra time for due diligence to avoid potentially catastrophic economic risk.
If you have questions about WOTUS or relevant regulatory updates, please contact Bill Acton (email@example.com) or at 614-310-1041.
1 The Endangered Species Act can delay land development projects by requiring season-specific surveys for protected species and preparation and agency approval of habitat conservation plans, and by imposing seasonal restrictions on land clearing activities.
The Pennsylvania Game Commission (PGC) is taking action to list three bats as state endangered species. In late September 2018, the agency’s Board of Game Commissioners preliminarily approved a measure to update the state’s list of threatened and endangered species to add the northern long-eared bat, tri-colored bat, and little brown bat. The PGC had attempted to list these species in 2012, but concerns from the timber, oil and gas, real estate development, and coal industries about unnecessary oversight and job loss prompted the PGC to withdraw its proposal.
The northern long-eared bat was previously listed as a federally “threatened” species in 2016 by the U.S. Fish & Wildlife Service (U.S. FWS). The little brown bat is proposed to be reviewed under the U.S. FWS 7-Year Listing Work Plan in 2023. The tri-colored bat will likely follow this same review schedule. Regardless of the intended future federal review for these species, the PGC has decided to move forward in an effort to protect these bat species ahead of U.S. FWS.
If the proposed state listings are finalized, the PGC will be the lead agency and coordinate with developers to resolve any conflicts for the little brown and tri-colored bats. For potential impacts to northern long-eared bats, coordination with both the U.S. FWS and the PGC will likely be required.
In Pennsylvania, potential threatened and endangered species conflicts can be evaluated using the Pennsylvania Natural Diversity Inventory (PNDI) environmental review tool. The PNDI database was established to provide information to help guide environmental decisions related to land development projects. It includes resource information from three state agencies (PGC, Pennsylvania Fish & Boat Commission, Pennsylvania Department of Conservation and Natural Resources) and one federal agency (U.S. FWS).
The proposed listings will only “flag” those projects that are within 300 meters of a recently identified maternity roost, hibernacula, or capture location. There are approximately 30 hibernacula and 120 maternity sites known to support little brown and tri-colored bats that will be added to the PNDI database. Sites where these bats were known to occur prior to the arrival of white nose syndrome (WNS) will not be included in the PNDI updates. Additional protective measures may include seasonal tree clearing restrictions for those sites with conflicts.
The decline of these bat species is specifically linked to WNS, a fungal disease that affects bats during hibernation. WNS has affected 97% of Pennsylvania’s bats that hibernate in caves. Given the fact that most female cave bats only produce one pup per year, it will take more than a century to replace previous populations.
Written comment will be accepted by the PGC on this status-change package until December 31, 2018. The Board of Game Commissioners also will accept public comment at its January 27 and 28, 2019, meetings and final adoption of the proposal will be considered at the Board’s January 29, 2019, meeting in Harrisburg, Pennsylvania.
CEC will continue to track the protection status of the abovementioned three bats as Pennsylvania state endangered species. Should you have any questions, please contact Daniel A. Maltese, Ecological Sciences Practice Lead, at firstname.lastname@example.org or (412) 249-3158. Mr. Maltese is located in CEC’s Pittsburgh headquarters office.
In 2017, running buffalo clover (Trifolium stoloniferum) was found growing in Greene County, Pennsylvania. This is the first known occurrence of this federally endangered clover in Pennsylvania. Users of the Pennsylvania Conservation Explorer tool who are completing an environmental review for projects in Greene County may now start seeing survey requests for this species, which will require a botanical survey to be completed by a U.S. Fish and Wildlife Service (USFWS)-Qualified Surveyor.
While conducting a botanical survey last summer, a botanist with the Western Pennsylvania Conservancy identified running buffalo clover plants growing along a Pennsylvania stream. Running buffalo clover has been found very close to the Pennsylvania border in the past, and its discovery within Pennsylvania does not come as a surprise to botanists in the southwestern corner of the state.
Following discussions at Pennsylvania’s Department of Conservation and Natural Resources (DCNR), charged with implementing the Wild Resource Conservation Act (PA Code Title 17 Chapter 45), and the USFWS, charged with administering the Threatened and Endangered Species Act, the new running buffalo clover population has been added to the Pennsylvania Natural Diversity Inventory (PNDI). Natural gas, coal, and oil producers, plus pipeline and utility companies, may now start receiving survey requests on PNDI searches occurring near the newly discovered population in Greene County.
Unlike botanical surveys requested by DCNR for Pennsylvania-listed plant species, the USFWS requires the use of Qualified Surveyors for botanical presence/absence surveys. Each USFWS Field Office maintains a separate list of Qualified Surveyors—persons known by the USFWS to have the skills and experience to conduct surveys—for each listed species. The USFWS Pennsylvania Field Office does not have plans to issue a Qualified Surveyors list for running buffalo clover at this time, but will accept surveyors listed as qualified by the Ohio or West Virginia Field Offices. The survey season has not yet been established for Pennsylvania, but it is expected to be somewhere within a May-to-September window.
Though DCNR has the authority to request botanical surveys for running buffalo clover in Pennsylvania, DCNR will typically defer to the USFWS for final decisions regarding this federally endangered clover, similar to the relationship between the Pennsylvania Game Commission and the USFWS for potential impacts to federally listed bat species.
If you have questions about running buffalo clover in Pennsylvania, please contact David Quatchak (email@example.com) or Joe Isaac (firstname.lastname@example.org). Mr. Quatchak and Mr. Isaac are USFWS-Qualified Surveyors for Running Buffalo Clover in West Virginia and Pennsylvania. Both individuals can also be reached at 800-365-2324.
Ohio EPA’s new Multi-Sector General Permit (MSGP) for Industrial Stormwater Discharges (Ohio EPA (OEPA) General Permit Number OHR000006) was issued final on May 8, 2017. The effective date of the permit is June 1, 2017. OEPA’s fifth-generation MSGP (OHR000005) expired on December 31, 2016, and its replacement has incorporated changes that clarify allowances and exceptions and ensure that Ohio’s MSGP is consistent with its U.S. EPA counterpart. This post describes some important dates for associated submittals and summarizes new provisions of the permit.
Companies with facilities currently covered by OHR000005 should expect to receive a letter from OEPA in the next few weeks. No action is required of current permit holders until this letter is received.
Important dates to keep in mind:
- Effective permit date: June 1, 2017
- Permit expiration date: May 31, 2022
- Notice of Intent (NOI) submittal deadline date for existing permit holders: within 90 days of the OEPA’s written instructions (letter) to re-notify. Per Jason Fyffe, Supervisor, OEPA Central Office Stormwater Permitting, renewal letters will be mailed late the week of May 22, at the earliest.
- Stormwater Pollution Prevention Plan (SWPPP) update timeframe for existing permit holders: within 180 days of the effective date of the permit (i.e., November 28, 2017)
- Facilities not covered under a prior NPDES permit (new dischargers) must prepare a SWPPP prior to submitting an NOI. NOIs for new dischargers are to be submitted at least 180 days prior to discharge.
It is important to note that as of February 1, 2017, OEPA has instituted an all-electronic NOI filing policy, and facilities must use eBusiness to prepare and submit the form. If you prefer, the NPDES application utility (Surface Water Tracking, Reporting, and Electronic Application Management System or STREAMS) allows consultants to prepare the NOIs on behalf of their clients and delegate the forms to the appropriate individual for electronic signature and final submittal. CEC can assist you with this matter. Online payment is also available.
Notable changes to the current MSGP compared to OHR000005 include the following:
- Clarifying language was added that defines conditions when pavement wash waters and routine external building washdown are an allowable non-stormwater discharge authorized by the permit. MSGP Part 1.1.3.
- A list of the stormwater discharges subject to effluent limitation guidelines under 40 CFR, Subchapter N that are not eligible for coverage under the general permit and would require authorization to discharge under an individual NPDES permit is now included in MSGP Part 184.108.40.206.
- A reduction in required frequency for routine facility inspections and quarterly visual assessments is now allowed for facilities recognized under the Gold and Platinum levels by OEPA’s Encouraging Environmental Excellence (E3) Program. MSGP Parts 4.1.3 and 4.2.3.
- The requirement for a comprehensive annual site inspection has been eliminated in order to match the U.S. MSGP and to “eliminate redundancies and reduce burden” on facilities. The requirement for routine facility inspection remains, and required procedures are listed in MSGP Part 4.1.1 (no change from OHR000005).
- Language has been added to clarify that documents incorporated into the SWPPP by reference may be maintained on site electronically (i.e., satisfies “available on site” requirement). MSGP Part 220.127.116.11.
- Permittees are now required to make their SWPPP available to the public when requested, excluding any confidential or restricted business information. MSGP Part 5.3.
- Language has been added to clarify that, for monitoring purposes, an outfall can include a discrete conveyance (i.e., pipe, ditch, channel, tunnel, or conduit) or a location where sheet flow leaves the facility property. MSGP Part 6.1.1.
- Language has been added to clarify that permittees obtaining coverage in years 4 and 5 of the general permit must complete benchmark monitoring requirements to the extent of remaining monitoring periods available before the general permit expires. (Permittees obtaining coverage before this time are to complete the benchmark monitoring requirements within the first three years of permit coverage. This has not changed from OHR000005.) MSGP Part 18.104.22.168.
- Provisions have been added for permittees who are exceeding a benchmark due to neighboring facility run-on to account for this situation. MSGP Part 22.214.171.124.
- Provisions have been added for a facility to default to a different benchmark value if a parameter’s water quality standard is less restrictive than the permit benchmark value. MSGP Part 126.96.36.199.
- Provisions have been added for permittees to consider pollutant concentrations (contributions) from the facility structures (roofs, walls, fencing, etc.) when determining whether it is available, practical, and achievable to implement additional control measures when a benchmark has been exceeded. MSGP Part 188.8.131.52.
- The annual report requirements have been revised to be consistent with the federal MSGP. (The frequency and recordkeeping requirements have remained the same.) MSGP Part 7.2 and Appendix I.
- Language has been added to clarify that the discharge of leachate (defined in OAC 3745-27-01(L)(1)) is not authorized under the MSGP. MSGP Part 8.C.2.1.
- Composting fertilizer mixing facilities (SIC 2875) have been removed from Subsector C1 and located in a newly created Subsector C6, which provides more appropriate benchmark monitoring parameters for this industry. Table 8.C-1 and Appendix D to Sector C have been revised to specify that SIC 2875 (non-composting fertilizer mixing facilities) will be subject to Subsector C1 and SIC 2875 (composting fertilizer mixing facilities) will be subject to Subsector C6.
- Language was added to Sector N (Scrap Recycling Facilities) to clarify that references to secondary containment under this part are referencing stationary outdoor equipment and not mobile equipment. MSGP Part 8.N.3.1.7.
- Marinas have been added to Sector Q (Water Transportation) of the MSGP. The current OEPA Marina stormwater general permit (OHRM00002) expires on January 21, 2018, and will not be renewed. Marinas with coverage under OHRM00002 will remain covered under that general permit until it expires, and at that time, will be instructed to renew their coverage under OHR000006. NOTE: the current Marina Stormwater general permit authorizes the discharge of boat wash water if no detergents or other chemical cleaning agents are used. OHR000006 does not authorize boat wash water. Such discharges would require proper collection and disposal (i.e., sanitary sewer) or be permitted by a separate NPDES permit. MSGP Part 8, Subpart Q – Sector Q
- Appendix B, “Standard Permit Conditions,” has been updated to reflect the “Standard Permit Conditions” language found within OEPA general permits.
For additional information regarding OHR000006, including fact sheets and a copy of the permit, visit OEPA’s Industrial Stormwater General Permit website.
If you have any questions on how the requirements of OHR000006 may affect your facility, or if you would like assistance with NOI submittal and/or updating the SWPPP for your facility, contact Amy Ritts (email@example.com) or Andy McCorkle (firstname.lastname@example.org).
Accelerated Remediation Catalysis (ARC) – An Emerging Water Treatment Technology for the Treatment of a Wide Range of Dissolved Phase Organic and Inorganic Contaminants
The Accelerated Remediation Catalysis (ARC) system is a process that can be applied to reduction or oxidation. For reduction, hydrogen gas and an inexpensive, proprietary catalyst are used to perform a chemical reduction of appropriate contaminants. The application of shear forces that can be achieved by using certain pumps is also a feature that dramatically accelerates reaction times.
On the reduction side, there is data supporting the degradation of 1,4-dioxane (1,4-D), perfluorocarbons (PFCs), chlorinated hydrocarbons, and oxyanions (nitrate and perchlorate). With respect to metals and metalloids such as selenium, these species are precipitated and collected for disposal. ARC is also applicable to oxidative processes for appropriate organics like petroleum hydrocarbons, as well as metals/metalloids that precipitate under high redox conditions. In this application, the oxygen is provided by dilute hydrogen peroxide or peracetic acid with a different catalyst.
To help reduce start-up costs, the ex-situ process uses common tankage, pumps, valves, and process controls that can be obtained from standard vendors. If the process handles low levels of contaminants, it can be constructed of common thermoplastics such as polyvinyl chloride (PVC), polyethylene, and fiberglass.
ARC can operate in either batch or continuous mode. In batch mode, the reaction tank is filled at start-up and the total reaction time is allowed to reach the predetermined level to assure destruction of the constituents of concern (COCs). After this point has been achieved, the process switches to continuous mode, and the reaction tank functions as a single-stage plug flow reactor. The process can be made to be continuous at start-up by simply filling the reactor tank with clean water. The overall retention time for completion of most reactions has been on the order of 10 to 15 minutes. Using reduction, hydrogen used in the catalyst vessel is generated electrochemically at the site, reducing the need to handle compressed gas. Depending on the COC, the reaction will either cause manageable gas evolution, or precipitate out of the water and be recovered by a variety of methods. The insoluble catalyst can be recovered by filtration and recycled back to the reactor vessel.
Case studies where ARC has been used for chemical reduction include:
- The conversion of 1,4-dioxane to ethanol. Water with 100 μg/l of 1,4-dioxane was reduced to <1 μg/l.
- The complete destruction of perfluorocarbons to non-detectable concentrations with a fluorine residue of low concentration, as the initial concentrations of perfluorocarbons are generally low.
- Chlorinated ethenes are easily reduced to ethene and ethane.
- Trihalomethanes have been reduced from a typical 80 μg/l level to <10 μg/l in 10-15 minutes.
- Perchlorate levels as high as 100 mg/l are reduced to chloride.
- Nitrate is reduced to nitrogen gas.
- Selenium in the form of selenate can be reduced to selenite and removed as a precipitate. Selenate was reduced from 200 mg/l to <1 mg/l.
- Chlorobenzene at ppm levels is reduced to benzene that is then collected on the low-cost catalyst.
The ARC system can be designed for a wide range of process flow rates. Design of the system is only limited by the required retention time for the reaction. In essence, the system was brought into focus because of the emerging contaminants issue, and it is applied to pump-and-treat systems. This is important because the nature of 1,4-dioxane and PFCs makes in-situ treatment challenging. It is expected that there will be both an increase in the use of pump-and-treat systems and a need for more efficient water treatment technologies, especially since conventional methods of treatment (such as those that use carbon) are limited.
Additionally, because of the low concentrations of reactants in the process, there is typically no detectable heat gain in the reaction vessel. Therefore, cooling of the process is generally not required prior to releasing the treated effluent. Then there are other applications in traditional wastewater treatment, such as removal of selenium from scrub water at coal-fired power plants. The ARC system’s inherent simplicity allows it to be easily scaled so that dealing with the large flow rates encountered in industrial settings is feasible. While the endpoint for ARC treated water is generally to be discharged, a supplementary feature called Advanced Regenerative Process (ARP) can be added as a further polishing step so that beneficial reuse, including human consumption, is an option.
ARC targets those applications where more complicated and expensive systems, such as conventional Advanced Oxidation Processes (AOP), are being used. The chemical usage, energy, and safety features of AOP systems, combined with their operational footprint, suggest they will eventually be replaced by better remedial options like ARC. There are other developing technologies that have similar objectives to displace AOP systems, such as resin-based operations, but ARC presents distinct advantages in cost, efficacy, physical layout, and scalability.
For additional information, please contact Chris Hortert at (800) 365-2324 (email@example.com); Steve Koenigsberg at (949) 262-3265 (firstname.lastname@example.org); or Thom Zugates at (602) 644-2163 (email@example.com).
The Pennsylvania Department of Conservation and Natural Resources (DCNR) is preparing to roll out an enhanced Environmental Review Tool. The existing tool is widely used by companies and organizations to screen development projects for potential impacts to threatened, endangered, and special concern species and resources in Pennsylvania. Though an exact roll-out date has yet to be announced by DCNR, the most apparent changes in the new tool will be enhanced mapping capabilities and a $40 online credit-card-only fee to be paid before an Environmental Review Receipt is issued. Pennsylvania Natural Diversity Inventory (PNDI) Environmental Review Receipts are required prior to obtaining permits from the Pennsylvania Department of Environmental Protection and the U.S. Army Corps of Engineers. The tool includes databases from three state agencies (DCNR, the Pennsylvania Game Commission, and the Pennsylvania Fish and Boat Commission) and one federal agency (the U.S. Fish and Wildlife Service).
The new tool, called the Pennsylvania Conservation Explorer, will replace the existing PNDI Environmental Review Tool, which has been free-of-charge since its launch in 2005. The Pennsylvania Conservation Explorer combines a new Conservation Planning Tool designed to help avoid impacts during project planning stages with a more robust Environmental Review Tool for formally requesting an Environmental Review Receipt. The new tool also has the ability to serve as a digital hub for revising project boundaries and communicating with DCNR. (The Pennsylvania Fish and Boat Commission, Pennsylvania Game Commission, and U.S. Fish and Wildlife Service may not fully support this functionality.)
Users of the Pennsylvania Conservation Explorer will notice several new features:
- The ability to screen possible project locations for potential environmental impacts without submitting the project locations for review
- The ability to create, revise, and save projects independent of submitting them for review
- The ability to revise submitted projects without resubmitting
The new Conservation Planning Tool provides greater access to conservation and species habitat information and allows users to view sensitive ecological areas and, in some cases, protected species habitats, which should make it easier to identify and potentially avoid sensitive areas. This feature could potentially save time and money by allowing the user to avoid impacts, thus reducing or eliminating the need for correspondence with regulatory agencies. The Conservation Planning Tool may be used without registering or logging in to the Pennsylvania Conservation Explorer website.
The enhanced Environmental Review Tool is more robust than the existing tool and allows users to upload project shape files in addition to drawing project boundaries on-screen. Project boundaries may also be revised without creating a new project search and incurring an additional fee. Additional drawing tools allow a user to edit, crop, and exclude areas—essentially allowing the inclusion of more than one area for a project, a nice upgrade from the previous version. The tool also displays the project buffer area based on the project type.
Digital hub functionality will be available through the My Project feature of the Pennsylvania Conservation Explorer. All correspondence, data, reporting, and project revisions (up to 10 MB in size) can be sent to DCNR through this feature by uploading most common file formats, including doc, jpg, png, text, pdf, ppt, ods, xls, kmz, and kml; however, this feature will be available only to the creator of the project in the Pennsylvania Conservation Explorer. This feature will not be available if a second or third party will be providing project documentation, as project sharing is not expected to be included in the initial release of the tool. In these cases, project information must be provided to the project creator for submission through the tool, or it may be provided outside the tool, as it is now. Users may also choose to submit information via mail or complete an entirely offline review, which would require separate communication and coordination with individual regulatory agencies.
If you have questions about the new Pennsylvania Conservation Explorer tool, please contact the post author, David Quatchak (firstname.lastname@example.org), or Dan Maltese (email@example.com), co-lead of the PNDI workgroup for the Marcellus Shale Coalition’s Surface Use Committee. Both individuals can also be reached at 800-365-2324.
On January 14th, 2016, the United States Fish and Wildlife Service (USFWS) published a final 4(d) rule for the federally threatened northern long-eared bat (Myotis septentrionalis). The final rule lifts the Endangered Species Act’s (ESA) “prohibition against incidental take.” As a result, all otherwise-legal activities related to tree clearing are exempt from the prohibition outlined in the ESA, except:
- Tree clearing within 0.25 mile of known hibernacula
- Tree clearing within 150 feet of a known maternity roost (i.e., a tree used by reproductive females to raise their young) between June 1 and July 31
If these exceptions cannot be avoided by project impacts, a project proponent will need to coordinate with the local USFWS office. The USFWS’s final 4(d) rule recognizes the fact that declines in northern long-eared bat populations are primarily attributable to White-Nose Syndrome (WNS), a fungal disease decimating bat populations, and not from direct take associated with the clearing of forested habitat. While this provides relief for some, it is important to note that take prohibitions of federally endangered Indiana bats (Myotis sodalis) are more stringent and remain in place. The two species’ geographic ranges greatly overlap. Additionally, state agencies have yet to officially weigh in on the final 4(d) rule and whether they will require additional conservation measures for the species.
The entire final 4(d) rule can be found here: https://www.federalregister.gov/articles/2016/01/14/2016-00617/endangered-and-threatened-wildlife-and-plants-4d-rule-for-the-northern-long-eared-bat.
For perspective, northern long-eared bats were listed as federally threatened with an interim 4(d) rule in April 2015. The interim rule allowed certain activities requiring tree clearing to be exempted from the ESA’s “prohibition against incidental take.” Similar to Indiana bats, northern long-eared bats raise their young each summer in trees within forested habitat. Northern long-eared bats range across 39 U.S. states and portions of Canada, which is the largest range of any federally listed species. Each winter, these bats hibernate in the region’s caves and mines (called ‘hibernacula’). WNS was first discovered near Albany, New York, in 2006 and has quickly spread across the eastern United States and Canada. The disease, which is not harmful to humans, causes bats to quickly burn through their fat reserves during the winter hibernation period. Affected animals emerge from hibernacula, depleted of their stored body fat, to a cold and snowy landscape devoid of insects, their sole food source. Mortality as a result of WNS is estimated to range from 90 to 100% at most hibernacula.
If you have any questions about the final 4(d) rule, please contact Ryan Slack at firstname.lastname@example.org or 317-655-7777.