The supplemental comment period for the USFWS proposal to list as endangered the Northern Long Eared Bat (“NLEB”) and to not list the Eastern Small Footed Bat just closed on August 29, 2014. (79 Fed. Reg. 36698, June 30, 2014). The original proposal was published on October 2, 2013. (78 Fed. Reg. 61046). This proposed rulemaking has an unprecedented impact that covers a range of 39 states with regard to the Northern Long Eared Bat. This species of bat is experiencing population declines as the result of its susceptibility to the fungus that causes White Nose Syndrome (“WNS”). Since the October 2, 2013 proposal and invitation for comment, a number of state wildlife agencies has submitted comments to the docket that inform about the lack of full support for the USFWS’s proposal. 

The April 17, 2014 letter cosigned by the natural resource agency directors for the states of Wisconsin, Indiana, Michigan, and Minnesota asserts USFWS has not fully exercised its outreach to the states concerning the NLEB. “Although USFWS solicited comments on the proposed listing, it did not afford our agencies an opportunity to assist in the drafting of the ICPG [Northern Long-Eared Bat Interim Conference and Planning Guidance] and has not invited us to participate in the development of the consultation guidance. As Section 6 of the Endangered Species Act provides that the Service shall cooperate to the maximum extend practicable with the States in carrying out the program authorized by the Act, we request an opportunity to provide input on this guidance and any other species guidance and avoidance measures before they are finalized.” The full letter is attached here. Discussions with other fish and wildlife agencies and review of their as filed comment letters, support the observations publicly made by Wisconsin, Indiana, Michigan and Minnesota.

The West Virginia Chamber of Commerce filed a comment letter prepared by Kathy Beckett, Steptoe & Johnson, PLLC, to USFWS that recounts the legislative history of the Endangered Species Act that stresses the strong relationship the federal agency and the states are required to have in order for the act to accomplish its goals. The comment letter recounts the nature of comments filed both by states that support and object to the listing as endangered of the NLEB with a view toward the state’s concerns for the federal agency’s proposal. The collective message is that USFWS is moving with its agenda without full participation of the states.

USFWS has scheduled fall meetings to coordinate with the states to discuss their comments and the path forward for the NLEB. As recent as July 2, 2014, a letter was sent to Pennsylvania Governor Tom Corbett by the Service which is quick to note that “We contacted all of the state natural resource agencies within the species’ range, including the Pennsylvania Game Commission (PGC), to request survey data and any other information relevant to the species’ population status and threats, including white-nose syndrome.” The letter reports, “We have just begun a process to work with state directors of fish and wildlife agencies and regional forester organizations to better inform our decision.” The full letter can be found here.

It is apparent that the USFWS is working to repair their initial missteps with the states after having proposed for endangerment listing the NLEB and after having received pointed criticism of the federal agency’s actions.