Interim Rule on Bats Causing Major Issues in Timber

Posted: July 22, 2015 in Uncategorized

This is an excellent article on the issues of the long eared bat and regulatory effects on the timber industry. Kudos to the author for such a fine piece of actual journalism!


Threatened bats halt some timber projects

Federal rule protecting landowners is uncertain

Posted: Sunday, July 19, 2015 7:05 am

By Kiera Blessing

This summer, lumber harvesters and landowners in the Northeast who want to sell their timber have new neighbors to worry about — and they’re hiding in the trees.

The Northern Long-Eared Bat (NLEB) was officially listed as “threatened,” just one step below endangered, in early April after a severe decline in their population in the Northeast due to White-Nose Syndrome, a fungal disease. Along with that designation came some new rules for timber harvesting, a lawsuit, and the creation of a limbo that has those in New Hampshire’s timber industry uneasy about the future.

A threatened species

As a threatened species, the NLEB automatically gets a lengthy list of protections from the U.S. Fish and Wildlife Service. Under the Endangered Species Act, violating these protections could result in federal punishment in the form of hefty fines (up to $50,000 for some violations) or, in some cases, a year in prison.

To protect residents in the bats’ range from unwarranted violations, the FWS implemented an interim rule.

The interim rule is an optional feature within the ESA that allows officials to relax the rules governing species protection in order to minimize conflict between people and industries and the government. In other words, the interim rule specifies parameters in which a person or business could accidentally harm a bat and still not be liable; without an interim rule, threatened species are protected as endangered species.

The interim rule went into effect in May and lists exemptions from the protections of the threatened bats. Homeowners can remove a bat that has roosted in their house, for example; and forest management practices, limited expansion of rights-of-way, and limited tree removal projects are still allowed.

But the interim rule, while providing protection for those in the timber industry, is only temporary. A comment period that began in January and was extended until July resulted in tens of thousands of comments being sent into the FWS, said Susi von Oettingen, a spokeswoman for the service, which could take months to comb through before the rule is finalized. Additionally, the service is being sued by the Center for Biological Diversity, which argues that the interim rule negates necessary protections for the threatened bat.

Those in the timber industry in New Hampshire could find themselves in hot water if the interim rule fails, either by a refusal to formally adopt the rule by the FWS or in court. Without the rule, landowners and others in the timber industry could face federal prosecution for cutting down a tree a bat was living in.

“Without the rule, anyone cutting trees in the summer who could get a bat would be in violation,” von Oettingen said.

That possibility has some worried about what serious implications there could be for one of the state’s oldest industries.

NH’s timber industry

About 76 percent of the forests in New Hampshire are privately owned by individuals or businesses, and about 138.8 million cubic feet of that timber is harvested annually, according to a 2013 study from the North East State Foresters Association. That timber production creates about $1.4 billion in revenue annually, employing more than 7, 700 people.

So it’s hardly surprising that Jasen Stock, executive director of the New Hampshire Timberland Owners Association, is concerned not only about the limitations of the interim rule, but also its precarious existence. In fact, the association included information about the interim rule in its newsletter this past May, urging members to call the Fish and Wildlife Service and state officials to comment on the rule and request that summer projects continue.

“If you’re a landowner and you’re going to do timber harvesting, there’s always the potential that there’s a bat present,” Stock said. “If the 4(d) rules get shot down or just not adopted (by the FWS), then you have a situation where if a bat is injured or allegedly injured, then as a landowner, you’re at risk of federal action.”

Some members of the industry are already being affected, even with the interim rule in place. Five hundred timber projects that were to receive federal funding from the Natural Resource Conservation Service, part of the United States Department of Agriculture, have been tabled for the summer. June and July are the months when the bats tend to raise their pups in the trees, and the NRCS has opted to err on the side of caution and stop funding all projects until the pup season ends.

And while the FWS hasn’t put an all-out ban on summer projects like the NRCS, von Oettingen said “there’s kind of a slow down on projects” right now.

“June and July are, from a forestry perspective, they’re pretty important months,” Stock said. “Just to be kind of terminated or shut off, that’s a problem.”

Geoff Jones, owner of Loveland Forestry in Stoddard, said he’s seen several clients and loggers affected by the NRCS’s halt on all summer projects. One landowner, Jones said, uses revenue from the timber sales to support his mother in a nursing home. A logger who relies on timber sales for income was “beside himself” when he was forced out of work for a month.

“I’m very reluctant to do any more NRCS plans because I don’t think landowners want to be held hostage to these federal rules and regulations. I’ve talked to some people and they’re just aghast,” Jones said. “I think everybody is concerned about diversity, they’re concerned about individual threatened species and the bats are no exception … but this is not the way to endear the public…by coming out with an asinine policy that makes no sense.”

Stock added that “what’s frustrating people the most” is that it isn’t the timber harvesting that’s affecting the bats — it’s White-Nose Syndrome.

But more than the summer hiatus, Stock said, he worries about the fate of the interim rule law, which is overall lenient toward the timber industry. Forest management practices, maintenance and limited expansion of transportation and utility rights-of-way, prairie habitat management and limited tree removal projects are allowed, provided these are done more than a quarter mile from any cave where the bats are known to hibernate, the harvester avoids known roost trees during June and July, and the harvester avoids clear-cuts within a quarter mile of known roost trees during June and July.

For certain practices, like land development, the owner or contractor would need a permit from the FWS.

These parameters protect landowners and harvesters from just about any accidental harm done to a bat, as long as the work is done with some degree of acknowledgement toward protecting some of the bats’ habitat.

Local problem

New England is one of the areas most heavily affected by White-Nose Syndrome, and one of the nation’s biggest contributors to the timber and lumber industries. Several professionals expressed concern and frustration with the new rule.

While Stock worried about the legal gray area for landowners and harvesters, Shaun Lagueux worried about the health of the forests themselves.

“Certainly, I would anticipate some financial restraints to both landowners and managers in terms of returns, but that’s only a small picture of it,” Lagueux, a manager at New England Forestry Consultants, said. “I’m more concerned with forest health. We harvest during certain times of year to help us regenerate desired species…and summertime harvesting really is the only way we can regenerate certain species.”

White Pine and Red Oak are two of the most profitable trees in the industry, and both provide necessary diversity for the forests. But to grow these trees, bare soil and lots of sunlight are necessary — two things that timber harvesters usually provide by executing forest management practices in June and July, the two months that are now off-limits to federally-funded projects and more complicated for private contractors because of the bats’ pup-rearing season.

The income from these trees, Lagueux said, makes it possible for many landowners to continue to keep their land while under pressure to sell or develop.

“Landowners and loggers and land managers in the state of New Hampshire have worked together historically to protect and manage special habitats in a cooperative way, and it’s discouraging to have the government come in and say maybe we’re not doing it right, or we need to be told additionally what we need to do. We have a long history of coming together to work cooperatively without regulations being forced on us,” Lagueux said.

While Lagueux said the new limitations have everyone in the timber industry worried, Jeff Eames of Fort Mountain Companies said he hasn’t been too adversely affected by the new rules.

“What we’ve done with some of those (affected summer) projects is just put them aside,” Eames said. “We’re fortunate enough to have enough work. … If we were short on work, it would be a big deal.”

Eames did add that “any time new types of regulations come up, there’s some concern.”

Legal battle over regulation

The same day the NLEB earned its “threatened” status, the Center for Biological Diversity filed a lawsuit on its behalf.

Initially, the Fish and Wildlife Service recommended listing the bats as endangered. But by the time they were actually listed, the bats’ protection status had been lowered to threatened. The center claims this was in response to pressure from the timber, oil and wind power industries, which would have been more adversely affected by an endangered classification.

“They gave it a less protective status and in addition they added to it a 4(d) rule,” said Mollie Matteson, a spokeswoman for the center. “They actually used the (4(d) rule) to exempt activities with the potential to harm the bat, such as logging.”

Matteson called the use of the interim rule in the case of the NLEB “counter to what the law is supposed to be there for” and said the center filed the lawsuit because “we felt this was an improper use of the law.”

Matteson said the center has sued the FWS many times before, and that the center’s litigation in general has about a 93 percent success rate. This particular lawsuit alleges that the scope of the exemptions in the NLEB interim rules law are too broad and negate necessary protections for the bats, which have declined dramatically since the emergence of White-Nose Syndrome in 2006.

“It’s in very, very bad shape,” Matteson said of the species. “It’s declined by 99 percent in much of the Northeast, including New Hampshire. It’s been on a very fast trajectory toward regional extinction.”

Matteson said no action has been taken with the lawsuit yet.

Uncertain future

The futures of the NLEB and the interim rule protecting the timber industry are unclear. Before the Fish and Wildlife Service decides whether or not to adopt the interim rule permanently, it must comb through and consider the tens of thousands of comments it received during the first half of this year.

Further, even if the service does decide to adopt the rule, a court could strike the decision down if the Center for Biological Diversity wins its lawsuit against the rule.

It’s difficult to predict what the listing could mean for the future of the New Hampshire timber industry. While the adoption of the current version of the interim rule could limit harvest during June and July only, the abandonment of the rule, or the listing of the bats as endangered rather than threatened, could potentially add new limits to the industry for much of the spring and fall as well.

“Overall, there’s just this general specter of uncertainty around the whole thing,” said Stock. “You’ve got a bunch of people kind of in limbo.”

About the Northern Long-Eared Bat

The bats’ range reaches from Northern Canada to Northern Louisiana, and from the East Coast to Eastern Colorado and Montana in the United States. In Canada, the bats’ range reaches further west, all the way into British Columbia.

White-Nose Syndrome has not spread to the entire bat range. A strip of the bats’ range reaching from New England southwest through Pennsylvania and West Virginia and out to Tennessee, Missouri and Arkansas has been hit worst by the fungus. The most western regions, like North and South Dakota and the western Canadian provinces have not been affected by White-Nose Syndrome.

The bats are small, with bodies that are only about 3.5 inches long on average, but their wingspan is closer to 9 or 10 inches.

The pups are usually able to fly within three weeks of birth.

The NLEB can live up to 18 years.

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