NAHB, MBIA, HBAV, and volunteer members worked extremely hard over the last week to help generate some very positive results for the building industry regarding the Northern Long-Eared Bat (NLEB) – but not before at least three projects were stopped under construction by locality staff in Maryland because of a Baltimore Corps Public Notice. Now, in most cases, tree clearing in Maryland can now continue.

The Good News:

The restrictions imposed by Baltimore Corps SPN 15-39 have been superseded in most of Maryland for this summer (2015), though a new Public Notice may not be issued per Baltimore Corps District staff, pursuant to the following changes to the U.S. Fish and Wildlife Service (USFWS) Chesapeake Bay Field Office website. It now includes the following statements:

Projects Previously Authorized by the U.S. Army Corps of Engineers, Baltimore District: For projects involving permanent clearing occurring this summer (2015), the Chesapeake Bay Field Office will only be evaluating previously authorized projects where there are known maternity roosts. If your project will occur through August 2015 and is located in Garrett County MD or New Castle County DE County, contact the Chesapeake Bay Field Office.

For Projects Not Yet Authorized: At this time, if permanent tree clearing is proposed for your project please contact the Chesapeake Bay Field Office to discuss the project. Avoiding take by cutting trees outside the active season (clearing between September 1 and April 15) or obtaining site specific surveys for the presence or absence of northern long-eared bats are two ways for a project to meet Section 7 obligations.

Upcoming News:

There is still a possibility that further Public Notices will be issued by the Baltimore District and Norfolk District of the U.S. Army Corps of Engineers to clarify the issue.

What do you need to do?

All new or modified Corps permits (and probably state §401 permits will follow) will likely include conditions for tree clearing Time of Year Restrictions unless consultation and bat surveys occur (it’s a limited window though to conduct them – May 15th to August 15th).

If you have an existing permit for a project in Maryland (that is not located in Garrett County) or Virginia, and your permit doesn’t require modification, you can proceed with clearing this summer. Just be careful - as you still are not allowed to “take” an endangered or threatened species. The Time of Year Restrictions will be imposed beginning April 15, 2016.

If you anticipate clearing in 2016 during the expected Time of Year Restrictions, you need to complete your bat survey before August 15, 2015.

How did this get reversed?

Lots of work by staff and members of NAHB, MBIA, and HBAV, with an extensive and extraordinary amount of research and work by Mike Mittelholzer and Owen McDonough of NAHB. These two NAHB letters are the tip of the iceberg:

1) Failure to Follow Regulation Prior to Issuing Public Notices #15-30 and #15-39 and Request for Relief (July 3, 2015)

2) 4(d) Rule comments (July 1, 2015) (see Interim Final 4(d) Rule Q&A for background)
(The 4(d) rule is critical for projects without a federal permit, funding, or other action - and thus need a section 10 consultation with USFWS).

Contact Ben Rosner, Mike Klebasko, Dan Lucey, Mark Headly, or Mike Rolband with any questions, or if you would like to arrange for a habitat assessment or survey for the Northern Long-Eared Bat.