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Endangered Species Act Update:
Bats and Crayfish
Allyn G. Turner
Steptoe & Johnson, PLLC
January 28, 2016
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Key Federal Wildlife Laws
• Endangered Species Act
– 16 U.S.C. §§1531-44, enacted 1973.
• Migratory Bird Treaty Act
– 16 U.S.C. §§701-12, enacted 1918.
• Bald and Golden Eagle Protection Act
– 16 U.S.C. §§668-668d, enacted 1940 (bald eagle), 1972
(expanded to include golden eagle).
• Marine Mammal Protection Act
– 16 U.S.C. §§1361-1421h, enacted 1972.
• Magnuson-Stevens Fishery Conservation and Management Act
– 16 U.S.C. §§1801-84, enacted 1976.
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Endangered Species Act
• Endangered: In danger of extinction through all or a significant portion of
its range
• Threatened: Likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its range
• Critical Habitat: Specific areas within area occupied by species when
listed with physical and biological features essential to conservation
• Take: “Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct.” 16 U.S.C. §1532(19)
• Harm: “An act which actually kills or injures wildlife. Such act may
include significant habitat degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns, including
breeding, feeding, or sheltering.” 50 C.F.R. §17.3 Babbitt v. Sweet Home,
515 U.S. 687 (1995)
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Listing Factors
Factor A – destruction, modification or
curtailment of habitat or range
Factor B - overutilization for commercial,
recreational, scientific or educational purposes
Factor C – disease or predation
Factor D - inadequacy of existing regulatory
mechanisms
Factor E - manmade and natural factors
affecting continued existence (e.g., global
warming, isolation, invasive plant species, and
roadside mortality)
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Fish & Wildlife Service ESA Settlement
• In re: Endangered Species Act Section 4 Deadline Litigation, 716
F.Supp.2d 1369 (MDL 2010).
• 12 actions filed by WildEarth Guardians and Center for Biological
Diversity against FWS.
– “All actions allege that defendants have failed to make timely findings
on the petitions for listing as required by Section 4 of the ESA.”
• Consolidated in D.D.C.
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Fish & Wildlife Service
ESA Settlement
Process Challenged
– ESA §4(b)(3): Citizen petition to list species, designate habitat
• FWS must respond at 2 intervals:
– 90 day finding: “whether petition presents substantial
scientific or commercial information indicating the petitioned
action may be warranted.”
» If so, FWS must begin status review.
– 12 month finding: “warranted,” “not warranted,” or
“warranted but precluded by higher priority actions.”
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Fish & Wildlife Service
ESA Settlement
• Applies to 757 species, including all 251 candidate species at the
time
• By September 30, 2016: A Proposed Rule or “Not Warranted”
finding
– Specified schedule within that group
– No option to retain species as a candidate species
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Northern Long Eared Bat (NLEB)
• On April 2, 2015, the Service published a final
listing and interim rule under section 4(d) of
the Endangered Species Act (ESA) for the
northern long-eared bat. The effective date of
the rule is May 4, 2015.
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Northern Long Eared Bat (NLEB)
• Final 4(d) Rule published on January 14, 2016.
• Will become effective February 16, 2016
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Northern Long Eared Bat (NLEB)
• The NLE bat is found in 37 states, including
West Virginia, thirteen Canadian provinces,
and the District of Columba.
• The final rule focuses on areas where white
nose syndrome – WNS – have occurred.
• Several exemptions are included
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Northern Long Eared Bat (NLEB)
• The rule recognizes WNS as the main cause of
the decline of the NLE bat’s numbers, and that
it is not habitat limited
• The rule focuses on protection of hibernacula
and maternity roost trees
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Northern Long Eared Bat (NLEB)
• Purposeful take prohibition (the general
prohibition for threatened species) of 50 CFR
17.31, exceptions:
– Removal of bats from human structure
– Removal of hazardous trees for the protection of
human life and property
– Authorized handling and capture of NLE bats (until
May 3, 2016)
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Northern Long Eared Bat (NLEB)
• Incidental take of NLE bats:
• Inside WNS zone v outside WNS zone
– Outside WNS zone, incidental take not prohibited
• Non-tree removal activities v. tree removal
activities inside WNS zone
– For non-tree removal activities outside of
hibernacula, incidental take not prohibited (e.g.,
wind farms, prescribed fire, pesticides)
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Northern Long Eared Bat (NLEB)
• Tree removal activities inside WNS zone
prohibited:
– Within .25 mile radius of hibernacula
– Cuts or destroys maternity roost trees or
trees within 150-foot zone around a known
maternity roost tree during pup season,
June 1st through July 31st
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Crayfish update
Crayfish update
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Historical Range
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Historical Range and Population
Locations
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April 7, 2015 Proposal
• Service proposal to list both the Big Sandy
Crayfish and the Guyandotte River Crayfish as
endangered under the ESA. Found in WV, KY,
and VA. 80 Fed. Reg. 18709.
• Following a 60-day public comment and peer
review period, the Service will make a final
decision for each of these species to list as
endangered or threatened, or to withdraw the
proposal.
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Additional Comment period
• Additional sampling effort in second half of
2015 for both the Big Sandy Crayfish and the
Guyandotte River Crayfish by Prof. Loughman
and his students
• Reports prepared by Prof. Loughman in
support of listing both species
• Additional comment period to comment on
proposed listing (new data)
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Basis for proposed listings:
Threat to habitat
• The proposed listing and designation of critical
habitat was based primarily upon the USFWS’s
conclusion that activities or conditions in the
two river basins represent “the present or
threatened destruction, modification, or
curtailment of its habitat or range, and “other
natural or manmade factors affecting its
continued existence.”
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Primary Factor in species’ decline:
Sedimentation
• Sedimentation in streams is noted as a primary
factor in the stated decline of the Big Sandy and
Guyandotte crayfish.
• Coal mining, timbering and timber roads, oil and
gas well and pipeline development and oil and
gas roads, and off-road vehicle use, such as the
very popular Hatfield-McCoy trail system, are all
activities focused on by the USFWS as causing
sedimentation and water quality degradation
detrimental to the crayfish.
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Many offered comments opposing
listings during original comment
period
• Lack of adequate data upon which to base either proposed
listing and the failure of the USFWS to obtain peer review
of its listing determination prior to seeking public
comment.
• Proposed listing for the Guyandotte crayfish was based
upon a species just publically identified in December 2014,
only months prior to the USFWS’s April 2015 Federal
Register notice.
• Inconsistencies and data gaps in the USFWS’s notice and
pointed out the lack of consideration given to existing laws
limiting discharges of sediment or other pollutants into
waters.
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Prior Comments
• These two species have been considered a
single species for decades
• Numerous preserved specimens held by state
agencies and others should be evaluated to
the species level to more accurately evaluate
the range and population of these crayfish
prior to making a listing determination
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New Data
• Both sampling efforts resulted in more sites
where species present
– Clear Fork and Laurel Fork for Guyandotte crayfish
– For Big Sandy Crayfish, present in 16 of 65 sites
sampled in Tug watershed in 2015
• Guyandotte crayfish sites still limited
• Tug Fork sites for Big Sandy crayfish
• Other questions still not answered
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Allyn G. Turner
Steptoe & Johnson, PLLC
January 28, 2016
[email protected]
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