ENDANGERED SPECIES ACT UPDATES

By TONI ELLINGTON 

On April 1, 2015, the U.S. Fish and Wildlife Service (“FWS”) announced that it was listing the northern long-eared bat as a threatened species under the Endangered Species Act (“ESA). The population of the northern long-eared bat has been impacted due to white-nose syndrome, a disease which has been spreading since 2006. The disease is caused by a fungus which affects the bats when they hibernate.  It has a 90 to 100 percent mortality rate. According to the FWS, the population of this species of bat has declined by 93 to 98 percent. The bat’s range covers much of eastern North America, from Maine to North Carolina. Its range also extends south to Louisiana and Oklahoma, and north into North and South Dakota and Canada, all active oil and gas exploration and shale play areas.

FWS received petitions to list the bat as threatened or endangered. On January 16, 2015, the FWS published a “special take rule” pursuant to Section 4(d) of the ESA. The proposed rule would exempt the following activities and practices from being a “taking”: forest management practices; maintenance; limited expansion of transportation and utility rights-of-way; removal of trees and brush to maintain prairie habitats; limited tree removal projects; removal of hazardous trees; removal of the bats from human dwellings, and research-related activities. None of these exemptions cover regular oil and gas operations.

The listing as “threatened” rather than “endangered” was considered as a positive by industry groups.

In other action under the ESA, Judge Susan Oki Mollway of the U.S. District Court in Hawaii ruled on March 31, 2015, that the Navy’s use of high powered sonar to conduct training activities in the Pacific Ocean would impact endangered species in the area. Environmental groups the Natural Resources Defense Council, Inc., Center for Biological Diversity, Earthjustice, Conservation Council of Hawaii, and Ocean Mammal Institute had sued the National Marine Fisheries Service over the agency’s decision to allow the Navy’s training activities. The environmental groups claimed the Navy’s use of sonar and explosives could result in death to thousands of whales, dolphins, imperiled sea turtles, and other mammals.

For the full text of the Court’s ruling, see Conservation Council for Hawaii, et al. v. Natl. Marine Fisheries Svc., et al, Case No. 1:13-cv-00684, available on PACER (Doc. 98).

For more information, contact Toni Ellington at (504) 599-8500.