(photo courtesy Don Donnelly)
(by Don Donnelly, chair)
With the pending federal listing of the Northern Long-Eared Bat (NLEB) as either threatened or endangered, foresters across the state will soon be facing many of the same questions about regulatory issues that those of us working near Indiana Bat hibernacula have faced for some time now. From recent discussions that I’ve had, it’s clear that many uncertainties exist as what forestry activities are considered a “take” under the “significant habitat alteration” provision of the Endangered Species Act.
The Indiana Bat BMP offered by the US Fish & Wildlife Service to prevent a take is the complete avoidance strategy; i.e. a person should not fell a tree during the season while bats are outside of caves – between certain dates depending on the distance from the hibernaculum. This has commonly been referred to as a cutting window; which offers essentially zero chance of a take, and is generally adhered to by state and local governments when doing projects. However, while most government entities adhere to the cutting window to avoid problems, conducting forestry activities outside of the cutting window does not automatically equate to a take and subsequent violation of the Endangered Species Act. This fact has been confirmed by biologists from the USF&WS. The landscape context of the project, tree size, phenotype, and magnitude of the project all play a role in determining what constitutes a significant habitat alteration, and these things vary at each site.
Basically, the USF&WS hasn’t offered more narrowly defined BMPs because there is always the possibility that a bat could be present during the non-hibernation period, and they have to err on the side of caution. But that shouldn’t preclude us from using our professional judgment in determining how much risk is involved, and when risk is low, not capitulate to overly conservative measures that impair our ability to effectively manage New Jersey’s forests at a meaningful scale.