Parker Moore Quoted in Bloomberg BNA and Law360 on Developing Successful ESA Strategy for Northern Long-Eared Bat

Bloomberg BNA Daily Environment Report and Law360

Parker Moore, a Principal in Beveridge & Diamond's Washington, DC office and leader of the firm’s Endangered Species and Wildlife Protection practice group, was quoted in two articles on the U.S. Fish and Wildlife Service’s (FWS) final rule that significantly broadened the activities that may be conducted within the northern long-eared bat’s 37-state range.

In a Law360 article titled “Legal Fight Looms After Industry Wins Big on FWS Bat Rule,” Mr. Moore explained the strategy that industry stakeholders used to address the listing of the bat under the Endangered Species Act (ESA) and subsequently to narrow restrictions on project development on account of the listing decision using a 4(d) rule, which exempts certain activities from the ESA’s prohibition on taking threatened species:

“Fish and Wildlife Service started out considering the northern long-eared bat for emergency endangered listing. So first we had to move them away from that, and then move them off of its proposed endangered listing to get it to threatened so that it could issue a 4(d) rule in the first place.” 

He further explained that, after an interim 4(d) rule for the bat was issued last year that covered only a few specific activities, affected industries collaborated to develop the data necessary to demonstrate to the Fish and Wildlife Service that the interim 4(d) rule could be expanded to cover a broader range of activities without posing a conservation risk to the species.  “We showed that these industry activities were of so little impact that they could coexist with the Service’s conservation efforts.”

Mr. Moore predicted that environmental groups likely will challenge the threatened listing for the bat in the coming months but that the Service’s listing decision should withstand judicial review in light of the comprehensive record underlying the decision that was developed by the agency and interested stakeholders. “That record was developed by stakeholders with an eye toward the Fish and Wildlife Service being able to defend against a challenge that we expected to come from an environmental group. The goal was to produce a bulletproof administrative record that would support Fish and Wildlife Service’s decision.”

In a Bloomberg BNA Daily Environment Report article titled “Final Rule Protects Bat Species, With Exemptions,” Mr. Moore further discussed the ad hoc coalition of industry representatives who gathered data to show the Fish and Wildlife Service that the impacts on the bat and its habitat from a variety of activities would be minimal and to identify possible conservation measures that the agency could use to enhance species protections.

Mr. Moore explained that the final 4(d) rule will offer significant benefits to project proponents in all industries whether their projects are entirely private or require federal authorizations.  He noted that the 4(d) rule and the accompanying programmatic biological opinion do not require species or habitat surveys for the bat, but cautioned that those surveys still may be required in areas of the country where the ranges of the northern long-eared bat and the endangered Indiana bat overlap.

Beveridge & Diamond’s Endangered Species Act practice provides strategic counseling and compliance advice to project proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities.  For more information on this rule or to discuss strategies for efficiently navigating your project through the complex and overlapping federal resources regulatory programs, please contact Parker Moore.