A programmatic biological opinion recently signed by the federal transportation agencies and the U.S. Fish and Wildlife Service (FWS) completes a first-of-its-kind process to address potential transportation project impacts to two endangered bat species.  It will streamline the consultation process for common surface transportation projects and improve conservation for the two bat species across 37 states and the District of Columbia, according to federal officials.

The biological opinion applies to projects of the Federal Highway Administration, the Federal Transit Administration and the Federal Railroad Administration across the expansive “range” (see listing below) of the two species – the federally-listed endangered Indiana bat and federally-listed threatened northern long-eared bat.

Last year, the agencies announced a “programmatic consultation” process for the two bat species, in an effort to more efficiently meet the consultation requirements under Section 7 of the Endangered Species Act (ESA) for common types of transportation actions.  The process applies only to those projects that can meet specified effect determinations, project conditions and conservation measures. Specifically, it can be used for a large number of projects that are “not likely to adversely affect” the two species.   It may also expedite permitting processes for such actions.

In addition to the newly signed programmatic biological opinion, the multi-year collaborative effort has included development of a “Range-wide Programmatic Biological Assessment” (BA), a conservation strategy and a User’s Guide for implementing the agreement.  For more information, including document links and the guide, visit FWS’ Range-wide Consultation and Conservation Strategy Web page.

Section 4(d) Rule

Earlier this year, FWS issued a final rule on protections for the northern long-eared bat under ESA Section 4(d), imposing narrowly tailored restrictions on tree cutting in many locations for two months each year and in some locations all year round.

Generally, transportation agencies may choose to use the range-wide consultation and conservation strategy for projects affecting the northern long-eared bat, so long as the project adheres to the criteria of the programmatic biological opinion.  It is consistent with the 4(d) rule.

The intent of the agencies was to develop a process to streamline the consultation process and achieve better conservation for both bat species.  In a June 13 blog post, Federal Highway Administrator Greg Nadeau said the new process is expected to save between two weeks and three months in the environmental review process for hundreds of highway projects nationwide, saving money and speeding project delivery.

The strategy will allow transportation agencies to avoid projects in high impact or high risk areas for the two species.  For projects that can’t avoid impacts, the strategy will help agencies design projects to minimize impacts.  The biological opinion outlines a range of mitigation measures that may be used to compensate for adverse impacts, including a range-wide in-lieu fee program, conservation banks and local conservation sites.

The full range of the two bat species includes all or part of the following states (as well as the District of Columbia): Alabama, Arkansas, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.

More information, including document links, can be accessed on FWS’ website at http://www.fws.gov/Midwest/Endangered/section7/fhwa/index.html. If you have questions, please contact AGC’s Leah Pilconis at pilconisl@agc.org.